Even if Brooks is convicted, it appears he could still serve

UPDATE: Legal eagles now providing unsolicited but potentially sound...legal opinions. Could lawmakers have an out with Article 15, Sec. 3?


  Sec. 3.  Eligibility for public office.

      1.  No person shall be eligible to any office who is not a qualified elector under this Constitution.

If Brooks were convicted of a felony, he is no longer a "qualified elector," so doesn't that mean he can't serve?

Of course none of this would matter if Brooks were to resign or were to be expelled before the court case is resolved.


News this morning that Clark County District Attorney Steve Wolfson has decided to file a series of charges, including a felony, against Assemblyman Steven Brooks, raises the question of whether he will lose his job if he is convicted.

The answer appears to be: No.

Lawyers are combing the Nevada Revised Statutes right now -- and Legislative Counsel Bureau boss Rick Combs told the "newspaper" he's unsure Brooks can't continue to serve even with a felony conviction. He may be right, and here's why:

The state Constitution gives the Legislature sole power over the qualifications of its members, and even that is not overridden by a felony conviction. Take a look at the relevant law:

283.040  Events causing vacancy in office; action by Attorney General or district attorney.

      1.  Every office becomes vacant upon the occurring of any of the following events before the expiration of the term:

      (a) The death or resignation of the incumbent.

      (b) The removal of the incumbent from office.

      (c) The confirmed insanity of the incumbent, found by a court of competent jurisdiction.

      (d) A conviction of the incumbent of any felony or offense involving a violation of the incumbent’s official oath or bond or a violation of NRS 241.040, 293.1755 or 293C.200.

      (e) A refusal or neglect of the person elected or appointed to take the oath of office, as prescribed in NRS 282.010, or, when a bond is required by law, a refusal or neglect of the person to give the bond within the time prescribed by law.

      (f) Except as otherwise provided in NRS 266.400, the ceasing of the incumbent to be an actual, as opposed to constructive, resident of the State, district, county, city, ward or other unit prescribed by law in which the duties of the incumbent’s office are to be exercised, or from which the incumbent was elected or appointed, or in which the incumbent was required to reside to be a candidate for office or appointed to office.

      (g) The neglect or refusal of the incumbent to discharge the duties of the incumbent’s office for a period of 30 days, except when prevented by sickness or absence from the State or county, as provided by law. In a county whose population is less than 15,000, after an incumbent, other than a state officer, has been prevented by sickness from discharging the duties of the incumbent’s office for at least 6 months, the district attorney, either on the district attorney’s own volition or at the request of another person, may petition the district court to declare the office vacant. If the incumbent holds the office of district attorney, the Attorney General, either on the Attorney General’s own volition or at the request of another person, may petition the district court to declare the office vacant. The district court shall hold a hearing to determine whether to declare the office vacant and, in making its determination, shall consider evidence relating to:

             (1) The medical condition of the incumbent;

             (2) The extent to which illness, disease or physical weakness has rendered the incumbent unable to manage independently and perform the duties of the incumbent’s office; and

             (3) The extent to which the absence of the incumbent has had a detrimental effect on the applicable governmental entity.

      (h) The decision of a competent tribunal declaring the election or appointment void or the office vacant.

      (i) A determination pursuant to NRS 293.182 or 293C.186 that the incumbent fails to meet any qualification required for the office.

      2.  Upon the happening of any of the events described in subsection 1, if the incumbent fails or refuses to relinquish the incumbent’s office, the Attorney General shall, if the office is a state office or concerns more than one county, or the district attorney shall, if the office is a county office or concerns territory within one county, commence and prosecute, in a court of competent jurisdiction, any proceedings for judgment and decree declaring that office vacant.

      3.  The provisions of this section do not apply to the extent that they conflict or are otherwise inconsistent with any provision of the Constitution of the State of Nevada regarding the power to judge of the qualifications, elections and returns of or to punish, impeach, expel or remove from office the Governor, other state and judicial officers or State Legislators.


So 1, (d) would seem to indicate Brooks loses his spot in Carson City. But subsection 3 appears to control, meaning the Constitution would nullify the previous provision.

That means the Assembly -- or two-thirds -- would still have to expel Brooks. Majority Leader William Horne, who is chairing the expulsion committee (I bet he loves that name), previously told me: "I’ve consistently said that Mr. Brooks’ criminal charges would not be taken into consideration, but his conduct and behavior leading to those arrest would be considered to determine his fitness to serve."

Oh? Somehow I doubt the committee will ignore those charges, espcially with the felony Wolfson filed and the strength of the case. I have attached the charges here.