Comm'n on Ethics of Nev. v. Hansen
| Decision Date | 29 June 2017 |
| Docket Number | No. 69100,69100 |
| Citation | 396 P.3d 807 |
| Parties | 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. |
| Court | Nevada Supreme Court |
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, JJ.
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.
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.
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 rests with the client
"The right to appeal is a substantial legal right," and "[i]t is the client, not the attorney, who determines whether an appeal shall be taken." 7A C.J.S. Attorney & Client § 301 (2015) ; see also Restatement (Third) of the Law Governing Lawyers § 22(1) (Am. Law Inst. 2000) ( that the client decides "whether to appeal in a civil proceeding"). Further, the attorney must have such authority prior to filing a notice of appeal, because "there is no implied authority in the event of a judgment adverse to the client, to prosecute review proceedings by appeal and to bind the client for costs and expenses incidental thereto." In re Judicial Settlement of the Account of Proceedings of McGinty, 129 Misc.2d 56, 492 N.Y.S.2d 349, 352 (N.Y. Sur. Ct. 1985). "A client may not validly authorize a lawyer to make the decision [ ] [whether to appeal] when other law ... requires the client's personal participation or approval." Restatement (Third) of the Law Governing Lawyers § 22(2) (Am. Law Inst. 2000).
Like decisions to settle a case , public bodies must comply with Nevada's Open Meeting Law when authorizing legal counsel to file a notice of appeal
The Commission argues that the decision to file a notice of appeal does not require an "action" by the public body. See NRS 241.015(3)(a)(1). In support of its argument, the Commission suggests that the decision to appeal is similar to the decision to file a motion by counsel. We view these litigation decisions differently on two grounds.
First, "action," as applicable to public bodies, is defined as a decision, commitment, or vote "made by a majority of the members present ... during a meeting of a public body." NRS 241.015(1). In order for a public body to make a decision, there must be a meeting. NRS 241.015(1). Although "the public body may gather to confer with legal counsel at times other than the time noticed for a normal meeting," Adam Paul Laxalt, Nevada Open Meeting Law Manual § 4.11 (12th ed. 2016), http://ag.nv.gov/uploadedFiles/agnvgov/Content/About/Governmental_Affairs/OML_Portal/2016-01-25_OML_12TH_AGOMANUAL.pdf, when the public body confers with its counsel, its 2005-04 Att'y Gen. Open Meeting Law Op. 4 (2005).
While NRS 241.015(3)(b)(2) allows public bodies to hold attorney-client conferences behind closed doors, we agree with our sister state that any "legal advice" exception to the open meeting law cannot be extended "to include a final decision to appeal" because such a decision "transcends ‘discussion or consultation’ and entails a ‘commitment’ of public funds." Johnson v. Tempe Elementary Sch. Dist. No. 3 GoverningBd., 199 Ariz. 567, 20 P.3d 1148, 1151 (Ariz. Ct. App. 2000). Since filing an appeal involves the commitment of public funds, we hold that the decision to file a notice of appeal requires an "action" by the public body. Just as a public body would need to meet in an open meeting to determine other material steps in the litigation process, such as initiating a lawsuit or agreeing to a settlement, it must also authorize an appeal of an adverse determination in an open meeting.1
Second, "[w]hether to appeal is an issue much like whether to settle." Restatement (Third) of the Law Governing Lawyers § 22 cmt. d (Am. Law Inst. 2000). This distinction comes into focus when considering the expenditure of public funds in both the decision to settle and the decision to file an appeal. See Johnson , 20 P.3d at 1151.
Here, the notice of appeal was filed without any authorization from the Commission. It is the Commission as a whole that is the client—not the executive director, nor the Commission chair. We therefore conclude that the Commission's notice of appeal is defective, and we lack jurisdiction to consider it. See Guerin v. Guerin, 116 Nev. 210, 214, 993 P.2d 1256, 1258 (2000).2
The American Bar Association Model Rules of Professional Conduct indicate that "[u]nder various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority ... to decide upon settlement or whether to appeal from an adverse judgment." Model Rules of Prof'l Conduct preamble and scope 18 (2015). The dissent's analysis presupposes that the authority to file a notice of appeal is (1) delegable and (2) was delegated in this case. The dissent also cites City of San Antonio v. Aguilar, 670 S.W.2d 681 (Tex. App. 1984), rejecting a Texas Open Meeting Act appeal filed by a city attorney based on the city attorney's separate authority under the city's ordinances. Here, whether the authority to file a notice of appeal is delegable is not germane to our analysis because the record does not show and nothing in the statutes or regulations concerning the Ethics Commission provides for a grant or delegation of decision-making authority to the Commission's chair, director, or legal counsel to file a notice of appeal without action by the Commission as a whole. See NRS Chapter 281A; NAC Chapter 281A.
Although the Commission, as the client, subsequently authorized its attorney to file a notice of appeal, that authorization was not in...
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