to dismiss this appeal from a district court order granting a
petition for judicial review. First Judicial District Court,
Carson City; James E. Wilson, Judge.
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.
THE COURT EN BANC.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
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.
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.
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.
right to appeal ...