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The Commission on Ethics of State v. Hansen

Supreme Court of Nevada

June 29, 2017

THE COMMISSION ON ETHICS OF THE STATE OF NEVADA, Appellant,
v.
IRA HANSEN, IN HIS OFFICIAL CAPACITY AS NEVADA STATE ASSEMBLYMAN FOR ASSEMBLY DISTRICT NO. 32; AND JIM WHEELER, IN HIS OFFICIAL CAPACITY AS NEVADA STATE ASSEMBLYMAN FOR ASSEMBLY DISTRICT NO. 39, Respondents.

         Motion to dismiss an appeal of a petition for judicial review. First Judicial District Court, Carson City; James E. Wilson, Judge. Appeal dismissed.

          State of Nevada Commission on Ethics and Tracy L. Chase, Carson City, for Appellant.

          Legislative Counsel Bureau Legal Division and Brenda J. Erdoes, Legislative Counsel, Kevin C. Powers, Chief Litigation Counsel, and Eileen G. O'Grady, Chief Deputy Legislative Counsel, Carson City, for Respondents.

          BEFORE PICKERING, HARDESTY and PARRAGUIRRE, J J.

          OPINION

          HARDESTY, J.

         Assemblymen Ira Hansen and Jim Wheeler seek dismissal of this appeal, arguing that the notice of appeal is void because it was not authorized by the client, the Nevada Commission on Ethics, a public body. Because we determine that an attorney for a public body must have authorization from the client in a public meeting prior to filing a notice of appeal, the notice of appeal is defective and we lack jurisdiction to further consider this appeal.

         FACTS AND PROCEDURAL HISTORY

         In November 2013, respondent Assemblyman Ira Hansen received four citations from a Nevada Department of Wildlife employee for allegedly violating NRS 503.580, which prohibits certain animal traps from being set within 200 feet of public roads or highways. While the dispute was pending, respondent Assemblyman Jim Wheeler requested, and the Legislative Counsel Bureau (LCB) provided, a written legal opinion analyzing whether box traps and snare traps constitute traps prohibited under NRS 503.580.

         On March 5, 2014, Fred Voltz filed an ethics complaint, termed a Request for Opinion (RFO), against each assemblyman with appellant the State of Nevada Commission on Ethics (the Commission). The RFO alleged that the assemblymen used their official positions to benefit personal interests. Voltz claimed that Hansen sought to use the LCB opinion to assist him in the defense of his criminal case.

         After the Commission's general counsel reviewed the RFOs, the assemblymen sought dismissal by the Commission. The Commission denied the motion to dismiss on March 3, 2015. . On April 2, 2015, the assemblymen filed a petition for judicial review in the district court.

         Finding that the Nevada Assembly had sole jurisdiction to consider ethical questions concerning the assemblymen's acts, the district court granted the assemblymen's petition for judicial review on October 1, 2015, ordering the Commission to dismiss the RFOs. The assemblymen served the Commission with written notice of entry of the district court's order on October 26, 2015.

         On the advice of the Commission's legal counsel, the chair and the executive director, without consulting the Commission, authorized the filing of a notice of appeal of the district court order directing the Commission to dismiss the RFOs. Three days later, on October 29, 2015, a notice of appeal was filed with this court on behalf of the Commission. The Commission did not hold a meeting prior to filing the notice of appeal.

         On December 1, 2015, the assemblymen filed an open meeting law complaint against the Commission in the district court. The complaint alleged that the Commission violated the open meeting law when the Commission filed a notice of appeal without first making its decision, or taking action, to appeal the district court's order in a public meeting. The complaint sought to have the Commission's action of filing an appeal declared void because it was taken in violation of Nevada's open meeting law.

         The Commission then held an open meeting on December 16, 2015, seeking to ratify and approve the action taken by the Commission's counsel in filing the appeal. The Commission voted unanimously in favor of appealing the district court's order granting the petition for judicial review and ordering the Commission to dismiss the RFOs. Alleging the notice of appeal is defective, the assemblymen now move to dismiss this appeal.

         DISCUSSION

         The assemblymen fundamentally argue that the Commission's notice of appeal is defective because it was filed without proper authorization from the client. The Commission argues that the notice of appeal is valid because its chair and executive director provided counsel the authority to file the notice of appeal. The Commission further argues that it cured any initial failure to provide authority to its counsel when it later authorized an appeal in an open meeting. We conclude that the Commission's contentions lack merit and grant the motion to dismiss this appeal.

         The right to appeal ...


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