You are on page 1of 21

1 Corinna Cohn

cohnc@unr.nevada.edu
2

5 IN THE JUDICIAL COUNCIL OF THE ASSOCIATED STUDENTS

7 CORINNA COHN (for herself and the ) Case No.: AN-006


)
8 members of the Association collectively) )
) OPEN MEETING LAW COMPLAINT FOR
9 Petitioner, ) DECLARATORY RELIEF AND VOIDED
) ACTION AND TO COMPEL COMPLIANCE
10 vs. ) WITH THE OPEN MEETING LAW
) (INJUNCTIVE RELIEF) AND COMPLAINT
11 ASSOCIATED STUDENTS OF THE ) FOR DECLARATORY AND INJUNCTIVE
UNIVERSITY OF NEVADA, ELI REILLY ) RELIEF
12 (in his official capacity as President of the )
Associated Students), PRISCILLA ACOSTA )
13 (in her official capacity as Speaker of the 76th )
Senate of the Associated Students), GRACIE )
14 GEREMIA (in her official capacity as Speaker )
of the 77th Senate), ALEJANDRA REYES (in )
15 her official capacity as Secretary of the Senate )
of the Associated Students), CAITLIN GUNN )
16 (in her official capacity as Secretary of the )
Senate), JENNY McMENOMY (in her official )
17 capacity as Archivist of the Associated )
Students), SENATE OF THE ASSOCIATED )
18 STUDENTS, )
)
19 Respondents )
)
20 )
)
21

22 Petitioner complains and alleges as follows:

23 PRELIMINARY STATEMENT

24 This complaint is being brought under the Judicial Rules of Procedure as enacted by

25 ASUN Public Law 75–17, as amended by ASUN Public Law 75–56. This complaint alleges,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-1-
1 in part, that certain bills passed by the Senate were never properly enacted into law, including

2 a bill making amendments to the Judicial Rules of Procedure. Therefore, this complaint is

3 being brought under the rules as they stood at the end of the 75th Session of the Senate.

4 JURISDICTION AND VENUE

5 Jurisdiction in the Judicial Council of the Associated Students is proper under Article

6 IV, section 4 of the Constitution of the Associated Students. The Judicial Council is the sole

7 judicial body of the Associated Students.

8 GENERAL ALLEGATIONS

9 The Parties

10 1. Petitioner is, and at all times relevant to this complaint was, a member of the

11 Associated Students of the University of Nevada, within the meaning of Art. I, sec. 1(a) of

12 the Constitution of the Associated Students.

13 2. Eli Reilly is, and at all times relevant to this complaint was, the President of

14 the Associated Students.

15 3. Priscilla Acosta was the Speaker of the Senate of the Associated Students at

16 its 76th Session.

17 4. Gracie Geremia is the Speaker of the Senate of the Associated Students at its

18 77th Session.

19 5. Alejandra Reyes is the Secretary of the Senate of the Associated Students. She

20 was appointed on March 4, 2009.

21 6. Caitlin Gunn was Secretary of the Senate from April 16, 2008, to October 13,

22 2008.

23 7. Jenny McMenomy is the Archivist of the Associated Students.

24 8. The Senate of the Associated Students is the legislative branch of the

25 Associated Students, established under Article II of the ASUN Constitution. It is the sole

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-2-
1 lawmaking branch of ASUN.

2 Factual Allegations

3 9. Petitioner repeats and realleges each and every allegation contained within

4 paragraphs 1 through 8 as though fully incorporated herein.

5 10. On April 16, 2008, the 76th Session of the Senate convened, pursuant to

6 Article I, section 1(c) of the ASUN Constitution.

7 11. During that meeting, Respondent Acosta was elected Speaker of the Senate

8 and Respondent Gunn was elected Secretary of the Senate.

9 12. On April 16, 2008, at or about 6:00 p.m., Eli Reilly was sworn in as President

10 of the Associated Students for his first term as President.

11 13. At a time subsequent to being sworn in, the President submitted his proposed

12 budget, in compliance with his obligations under the Constitution (“The President shall

13 submit a proposed budget to the Senate” (ASUN Const., Article III, section 2(e)).).

14 14. Thereafter, on May 2, 2008, the Senate began consideration of the President’s

15 proposed budget through its Budget and Finance Committee. The minutes of the Committee

16 of that date show that no action was taken on the budget.

17 15. The Committee met on May 14, 2008, to continue consideration of the budget,

18 according to the agenda of the meeting. There is no audio record or minutes posted on the

19 Web site of the Associated Students for that meeting as of the time of filing of this complaint.

20 16. The Senate’s agenda for May 30, 2008, shows that “S.B. 76-3: Budget of the

21 Associated Students in Schedule A for the 2008-09 fiscal year” was up for first reading.

22 Given that evidence, the budget was presumably reported from the Budget and Finance

23 Committee at its May 14 meeting.

24 17. The provisions of the Nevada Open Meeting Law (Chapter 241 of NRS) and

25 the Nevada Public Records Act (Chapter 239 of NRS) are actionable in the Judicial Council

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-3-
1 under ASUN law through ASUN Public Law 75-51, the Public Records, Transparency and

2 Accountability Act of 2008 because such laws are incorporated against the ASUN by the

3 terms of those laws, under Board of Regents Policy, and/or under ASUN law.

4 18. As of the date of the filing of this complaint, the Respondent Senate of the

5 Associated Students is unable to provide Petitioner with a copy of the minutes from the

6 meeting of the Senate held May 30, 2008. The Respondent Senate is also not able to produce

7 audio recordings of that meeting, in violation of NRS 241.035(4).

8 19. Pursuant to NRS 241.035(2), minutes of meetings of a public body are public

9 records and must be made available within 30 working days of the meeting. Accordingly,

10 Respondent Senate is in violation of NRS 241.035(2).

11 20. By its total failure to provide minutes and audio recordings of the meeting

12 specified in Paragraph 18, the Respondent Senate is in violation of NRS 241.035(2) and (4)

13 and has further violated NRS 239.010(1) by failing to produce public records.

14 21. NRS 241.020(3)(a) requires that notice of a meeting of a public body be

15 posted at the principal office of the public body and at not less that three other separate,

16 prominent places within the jurisdiction of the public body.

17 22. The Respondent Senate posted notice of its May 30, 2008, meeting in only 2

18 separate places, besides the place of its principal offices in the Joe Crowley Student Union on

19 the University of Nevada, Reno, campus.

20 23. The failure of the Respondent Senate to place its notice and agenda of the

21 May 30, 2008, meeting in enough places constituted a violation of NRS 241.020(3)(a).

22 24. The notice and agenda of the May 30, 2008, meeting does not list the “time,

23 place, and location” of the meeting in sufficient detail, in violation of NRS 241.020(2)(a).

24 25. On information and belief, Petitioner alleges that the bill designated Senate

25 Bill 76-3, relating to the budget of the Associated Students, was passed at the May 30, 2008,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-4-
1 Senate meeting.

2 26. At some indeterminate time subsequent to the passage of the bill alleged in

3 Paragraph 22 (months later), an enrolled bill was printed, memorializing the Senate’s alleged

4 action on the budget. This enrolled bill bears the signature of the Speaker of the Senate,

5 Priscilla Acosta, but bears no other mark (Exhibit A). This document was obtained on

6 [DATE] and was certified by the Secretary of the Senate, witnessed by a Senator, to be a true

7 and correct copy of the enrolled bill bearing the original signature of Respondent Speaker

8 Acosta on file in the records of the Senate.

9 27. The bill does not carry the proper certification of the Secretary of the Senate,

10 in violation of section 6 of the Bill Governance Act of 2008 (ASUN Public Law 75-39; 75

11 ASUN Stat. 109).

12 28. The allegation in Paragraph 27 further constituted a violation of Rule XVIII

13 (a) of the Rules of the Senate.

14 29. The Senate and the President are unable to present evidence of presentment of

15 Senate Bill 76-3, in violation of section 9 of the Bill Governance Act of 2008 (ASUN Public

16 Law 75-39; 75 ASUN Stat. 110).

17 30. The allegation in Paragraph 29 further constituted a violation of Rule XVIII

18 (b) and Rule XIX (e)(2)(D) of the Rules of the Senate.

19 31. The enrolled bill does not bear evidence of presentment on the face of the bill,

20 in violation of section 10(a) of the Bill Governance Act of 2008 (ASUN Public Law 75-39;

21 75 ASUN Stat. 110).

22 32. On information and belief, Petitioner is now aware that the budget bill was

23 signed by the President at some time after the exhibit referred to in Paragraph 26 was

24 provided to Petitioner.

25 33. On information and belief, the exact date of the President affixing his

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-5-
1 signature to the bill is indefinite because the date of the President’s approval of the bill is not

2 affixed to the enrolled bill, in violation of section 10(b) of the Bill Governance Act of 2008

3 (ASUN Public Law 75-39; 75 ASUN Stat. 110).

4 34. The enrolled bill has not been promulgated by the Archivist of the Associated

5 Students, in violation of section 12 of the Bill Governance Act of 2008 (ASUN Public Law

6 75-39; 75 ASUN Stat. 110).

7 35. The enrolled bill has not been assigned an ASUN Public Law number by the

8 Archivist of the Associated Students, in violation section 12(b) of the Bill Governance Act of

9 2008 (ASUN Public Law 75-39; 75 ASUN Stat. 110).

10 36. Additional bills were subsequently passed by the Senate amending the initial

11 budget bill creating the budget for this fiscal year, namely: bills numbered S.B. 76-9, S.B.

12 76-11, S.B. 76-15, and S.B. 76-18.

13 37. With respect to Senate Bills 76-9 and 76-11, Petitioner cannot determine to

14 any reasonable degree of certainty, based on Petitioner’s review of the agendas and minutes

15 available online, they were lawfully enacted.

16 38. With respect to Senate Bill 76-15, Petitioner alleges the bill was passed at the

17 Senate’s January 21, 2009, meeting.

18 39. The minutes of the January 21, 2009, meeting do not state the substance of

19 what was decided with respect to the bill, in violation of NRS 241.035(1)(c).

20 40. With respect to Senate Bill 76-18, Petitioner alleges the bill was passed at the

21 Senate’s February 25, 2009, meeting.

22 41. The minutes of the February 25, 2009, meeting do not state the substance of

23 what was decided with respect to the bill, in violation of NRS 241.035(1)(c).

24 42. On information and belief, the Associated Students engaged in spending from

25 the period July 1, 2008 (the beginning of the fiscal year), to date. At least until the point

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-6-
1 mentioned in Paragraph 26, the spending could not have been lawful, in violation of Article

2 II, section 3(a)(2) of the ASUN Constitution.

3 43. On information and belief, the Respondent President authorized the release of

4 funds and spending, in violation of Article II, section 3(a)(2) of the ASUN Constitution.

5 44. The allegation in Paragraphs 42 and 43 constituted further violation of section

6 224 of the Association Budget and Finance Act of 2008 (ASUN Public Law 75-52; 75

7 ASUN Stat. 148).

8 45. The enrolled bill mentioned in Paragraph 26 is not a proper appropriations

9 bill, as defined, generally, by the Association Budget and Finance Act of 2008 (ASUN Public

10 Law 75-52; 75 ASUN Stat. 139), and by the established practice of the Senate.

11 46. The enrolled bill mentioned in Paragraph 26 is not a proper appropriations bill

12 because it does not make appropriations. Further, according to the plain language of the bill,

13 the bill simply makes amendments to a prior enacted budget.

14 47. A budget is not a continuing document. A budget only has effect in the fiscal

15 year for which it was adopted.

16 General Statement as to Constitution and Laws

17 48. The Constitution of the Associated Students requires a specific process play

18 out before laws are created. Section 4 of Article II of the Constitution requires as follows:

19 (a) PRESENTMENT TO PRESIDENT.—Every bill which shall


have passed the Senate shall, before it becomes a law, be presented to the
20 President of the Associated Students.
(b) APPROVAL; VETO.—If the President approves the bill, he or
21 she shall sign it. If not, he or she shall return it, with his or her objections, to
the Senate, who shall enter the objections in their records, and proceed to
22 reconsider it.

23 49. The Senate’s constitutional powers state that, relevant to this complaint, that

24 “The Senate shall have the [power] [t]o set a budget for the ASUN, but no money shall be

25 spent from the treasury without appropriations made by law” (Article II, section 3(a))

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-7-
1 (internal citations omitted).

2 50. The Constitution presumes that the exclusive means of creating binding

3 legislation is by legislative enactment, done in a manner in accordance with the

4 Constitution’s plainly expressed terms.

5 51. The Senate has enacted legislation governing the enrollment of bills, the Bill

6 Governance Act of 2008 (ASUN Public Law 75–39; 75 ASUN Stat. 109). That law, among

7 other things, creates a process by which bills are to be enrolled subsequent to passage by the

8 Senate (see sections 6, 7, 9-11).

9 52. The Senate Report accompanying the bill creating the law states:

10 The bill creates provisions governing the printing, enrollment, presentation,


and Presidential consideration of Senate bills. The bill, in many cases,
11 simply codifies the current practice of Senate officials in the conduct of their
official duties. The bill serves to clarify certain provisions of the Senate
12 Rules governing Senate bills. The bill further clarifies the constitutional
provisions governing the legislative process. The purpose of the bill is to
13 provide clearer guidance for officials in the conduct of their official duties

14 (Senate Report 75–31, Committee on Government Operations, February 5, 2008,

15 accompanying S. B. 75–35, at 1) (emphasis added).

16 53. It becomes clear that, in reading the law, its provisions were also intended to

17 create records of the essential acts of the Senate, its officials, and the President related to the

18 enactment of laws to create sufficient evidence to prove the enactment of legislation. The

19 author’s statement on the bill reveals as much. “Some provisions of the bill deal with the

20 importance of keeping records of the Acts of the Senate” (Ibid., at 2).

21 54. Senate Rules also govern the enrollment of legislation. Rule XVIII of the

22 Rules of the Senate provides that “the Secretary [of the Senate] shall cause [every bill which

23 shall have passed the Senate] to be enrolled. After enrollment, the Secretary shall certify the

24 bill, and then the Speaker shall sign it.” This rule is to be read in concert with the Bill

25 Governance Act of 2008. Senate Rule XVIII also provides, in clause (b), that “[t]he Secretary

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-8-
1 shall present all bills which shall have passed the Senate in person to the President. The

2 Secretary shall make a note of the time and date of presentment.” Again, the clear purpose of

3 the rule is to establish sufficient evidence to corroborate essential steps in the legislative

4 process.

5 55. Senate Rule XIX, governing the officers of the Senate, provides in clause (e)

6 the duties of the Secretary of the Senate. In particular, paragraph (2)(D) states that the

7 Secretary shall “examine all bills after passage by the Senate to see that they are correctly

8 enrolled and forthwith present those bills to the President in person after their signature by

9 the Speaker, and report to the Senate the fact and date of their presentment.”

10 First Claim for Relief

11 Violation of NRS 241.035(2), Request for Declaratory Judgment for Violation of the

12 Open Meeting Law, Preliminary and Permanent Injunction for Compliance with the

13 Open Meeting Law

14 56. Petitioner repeats and realleges each and every allegation contained within

15 paragraphs 1 through 55 as though fully incorporated herein.

16 57. The Respondent Senate failed, as specifically required by NRS 241.035(2)

17 and NRS 239.010(1) to provide minutes to the May 30, 2008, meeting of the Respondent

18 Senate to the Petitioner.

19 58. Petitioner requests a declaratory judgment that the failure to provide the

20 minutes as specified in Paragraph 57 constitutes a violation of both NRS 241.035(2) and

21 NRS 239.010(1).

22 59. Petitioner requests such preliminary and permanent injunctions as are

23 necessary to ensure that the Respondent Senate provides the documents specified in

24 Paragraph 57, and timely provides public in the future that are required by law to be

25 disclosed.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-9-
1 Second Claim for Relief

2 Violation of NRS 241.035(2), Request for Voided Action

3 60. Petitioner repeats and realleges each and every allegation contained within

4 paragraphs 1 through 59 as though fully incorporated herein.

5 61. NRS 241.036 states “[t]he action of any public body taken in violation of any

6 provision of this chapter is void.” Accordingly, Petitioner requests the Council declare the

7 actions taken during the May 30, 2008, Senate meeting void and of no effect.

8 62. Although Petitioner is aware that NRS 241.037(3) contains a statute of

9 limitations on when a person can bring a complaint seeking declaratory and injunctive relief

10 to seek compliance with the OML or to have actions declared void, NRS 241.038 states that

11 the Board of Regents is to establish the regulations governing student governments and is to

12 “provide for their enforcement.”

13 63. The parallel provision at the Regents level to NRS 241.036 is at Title 4, Board

14 of Regents Handbook, Chapter 20, Part B, section 3(5)(a): “Violations of this section shall be

15 treated as follows: a. Any action taken in violation of the provisions of this section is void.”

16 Because ASUN has enacted its own legislation stating that its officials, in the ASUN context,

17 are to comply with the law, the provisions of the OML as applied on ASUN by the Regents is

18 enforceable in this Council under the constitutional judicial power of the Associated

19 Students.

20 64. Further, the Regents did not institute a statute of limitations on enforcement

21 complaints, nor did ASUN. Therefore, there is no statute of limitations barring this claim for

22 relief.

23 ///

24 ///

25 ///

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-10-
1 Third Claim for Relief

2 Violation of NRS 241.035(2) and (4), Request for Declaratory Judgment for Violation of

3 the Open Meeting Law, Preliminary and Permanent Injunction for Compliance with

4 the Open Meeting Law

5 65. Petitioner repeats and realleges each and every allegation contained within

6 paragraphs 1 through 64 as though fully incorporated herein.

7 66. Respondent Senate has failed to provide an audio recording of the May 30,

8 2008, Senate meeting, in violation of NRS 241.035(2) and (4).

9 67. Petitioner requests a declaratory judgment that the failure to provide the audio

10 recording as specified in Paragraph 66 constitutes a violation of NRS 241.035(2) and (4).

11 68. Petitioner requests such preliminary and permanent injunctions as are

12 necessary to ensure that the Respondent Senate provides the documents specified in

13 Paragraph 66, and timely provides public in the future that are required by law to be

14 disclosed.

15 Fourth Claim for Relief

16 Violation of NRS 241.035(2) and (4), Request for Voided Action

17 69. Petitioner repeats and realleges each and every allegation contained within

18 paragraphs 1 through 68 as though fully incorporated herein.

19 70. NRS 241.036 states “[t]he action of any public body taken in violation of any

20 provision of this chapter is void.” Accordingly, Petitioner requests the Council declare the

21 actions taken during the May 30, 2008, Senate meeting void and of no effect.

22 ///

23 ///

24 ///

25 ///

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-11-
1 Fifth Claim for Relief

2 Violation of NRS 241.020(3)(a), Request for Declaratory Judgment for Violation of the

3 Open Meeting Law, Preliminary and Permanent Injunction for Compliance with the

4 Open Meeting Law

5 71. Petitioner repeats and realleges each and every allegation contained within

6 paragraphs 1 through 70 as though fully incorporated herein.

7 72. By its failure to post notice of the May 30, 2008, meeting in enough locations,

8 Respondent Senate is in violation of NRS 241.020(3)(a).

9 73. Petitioner requests a declaratory judgment that the failure to post notice of

10 meetings in sufficient places is in violation of NRS 241.020(3)(a).

11 74. Petitioner requests such preliminary and permanent injunctions as are

12 necessary to ensure that the Respondent Senate posts notice in sufficient places.

13 Sixth Claim for Relief

14 Violation of NRS 241.020(3)(a), Request for Voided Action

15 75. Petitioner repeats and realleges each and every allegation contained within

16 paragraphs 1 through 74 as though fully incorporated herein.

17 76. NRS 241.036 states “[t]he action of any public body taken in violation of any

18 provision of this chapter is void.” Accordingly, Petitioner requests the Council declare the

19 actions taken during the May 30, 2008, Senate meeting void and of no effect.

20 Seventh Claim for Relief

21 Violation of NRS 241.020(2)(a), Request for Declaratory Judgment for Violation of the

22 Open Meeting Law, Preliminary and Permanent Injunction for Compliance with the

23 Open Meeting Law

24 77. Petitioner repeats and realleges each and every allegation contained within

25 paragraphs 1 through 76 as though fully incorporated herein.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-12-
1 78. Because the Senate failed to provide adequate notice of the place and location

2 of the May 30, 2008, meeting, the Respondent Senate is in violation of NRS 241.020(2)(a).

3 79. Petitioner requests a declaratory judgment that the failure to list in sufficient

4 detail the place and location of the meeting is in violation of NRS 241.020(2)(a).

5 80. Petitioner requests such preliminary and permanent injunctions as are

6 necessary to ensure that the Respondent Senate lists in sufficient detail the place and location

7 of its meetings.

8 Eighth Claim for Relief

9 Violation of NRS 241.020(2)(a), Request for Voided Action

10 81. Petitioner repeats and realleges each and every allegation contained within

11 paragraphs 1 through 80 as though fully incorporated herein.

12 82. NRS 241.036 states “[t]he action of any public body taken in violation of any

13 provision of this chapter is void.” Accordingly, Petitioner requests the Council declare the

14 actions taken during the May 30, 2008, Senate meeting void and of no effect.

15 Ninth Claim for Relief

16 Declaratory Relief

17 Violation of Art. II, sec. 4(a), Constitution of the Associated Students

18 83. Petitioner repeats and realleges each and every allegation contained within

19 paragraphs 1 through 82 as though fully incorporated herein.

20 84. The Constitution explicitly governs the process for enacting legislation

21 carrying the force of law in ASUN. In particular, certain actions must play out before

22 legislation which has passed the Senate, according to lawful process, becomes law. Article II,

23 section 4(a) of the ASUN Constitution states “Every bill which shall have passed the Senate

24 shall, before it becomes a law, be presented to the President of the Associated Students”

25 (emphasis added).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-13-
1 85. By the clearly expressed terms of that clause, presentment of bills is an

2 essential element of the legislative process; mere passage of measures by the Senate does not

3 create law. Indeed, the President cannot play his constitutional role to consider the Senate’s

4 acts until he is “presented” with its measures.

5 86. The Constitution continues, “If the President approves the bill, he or she shall

6 sign it. If not, he or she shall return it, with his or her objections, to the Senate, who shall

7 enter the objections in their records, and proceed to reconsider it” (ASUN Const. Art. II, sec.

8 4(b)). The Constitution contains a time limit on presidential vetoes (returning of the bill to

9 the Senate): “If any bill shall not be returned by the President within five working days after

10 it shall have been presented to him or her, the same shall be a law, as if he or she had signed

11 it” (ASUN Const. Art. II, sec. 4(d)).

12 87. The language of the Constitution clearly implies physicality to presentment.

13 “Every bill…shall…be presented”, “If the President approves the bill, he…shall sign it. If

14 not, he…shall return it”. The fact that a physical bill, and not mere notice of knowledge of

15 the Senate’s actions, is required is evidenced by the use of the verb “presented”. The context

16 of the use of the verb is clearly that of presentment, “the act of presenting to an authority a

17 formal statement of a matter to be dealt with” (Merriam-Webster Online Dictionary).

18 88. The fact that ASUN’s Constitution mirrors the federal Constitution’s

19 presentment clause is not without accident. The federal Constitution, art Article I, section 7,

20 clause 2, states “Every Bill which shall have passed the House of Representatives and the

21 Senate, shall, before it become a Law, be presented to the President of the United States: If

22 he approve he shall sign it, but if not he shall return it…”. The operative language is

23 functionally identical: passage by the legislature, presentment, and presidential consideration.

24 Because of the fact that the two constitutions mirror one another, the Council should consider

25 guidance from U.S. Supreme Court precedent, in particular INS v. Chadha (462 U.S. 919

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-14-
1 (1983)), which instructs that presentment is an indispensible part of legislative enactment.

2 Parliamentary practice of the U.S. Congress should also be accorded deference.

3 89. Lest there be any doubt of the Constitution’s meaning that presentment be a

4 physical act with a physical, written instrument communicating legislative acts to the

5 President for his consideration, the Senate clarified the process in enacting the Bill

6 Governance Act of 2008., which is to be read in concert with the ASUN Constitution and the

7 Senate Rules relevant to enrollment of legislation.

8 90. Section 6 of the Bill Governance Act requires whenever a bill has passed the

9 Senate “the Secretary of the Senate shall carefully enroll the bill, taking care to ensure that

10 the bill accurately and exactly reflects the action of the Senate. The Secretary shall affix to

11 the back of the bill a certificate attesting to its proper enrollment,” which is in a form fixed

12 by the law.

13 91. Section 7 of the Act further defines enrollment: “Every bill in the Senate shall,

14 when such bill has passed the Senate, be printed, and such printed copy shall be called the

15 enrolled bill, and shall be signed by the presiding officer of the Senate and presented to the

16 President of the Associated Students. Only a single copy of an enrolled bill shall be

17 prepared.”

18 92. Section 8 of the Act provides that presentment is a physical act. “Each

19 enrolled bill, subsequent to being signed by the presiding officer of the Senate, shall be

20 presented to the President…by the Secretary. Such presentment must be done in person.”

21 93. Since presentment is an essential element on the road to a bill becoming law

22 under the Constitution, the Senate felt it wise to create proof of the fact of presentment.

23 Section 8 of the Act continues, “The Secretary shall note in a journal the date and time of

24 presentment of enrolled bills and the official who received the enrolled bill. Such journal

25 shall be competent evidence of the date of presentment.” Because the constitutional time

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-15-
1 limit on presidential consideration (to sign, to veto, or to take no action) does not begin until

2 presentment occurs, the date (and perhaps the time) of presentment is a crucial fact to be able

3 to competently establish.

4 94. To create evidence of presentment on the presented enrolled bill itself, section

5 10 of the Act provides “any person duly authorized shall endorse by stamp, in the left-hand

6 margin of the first page of the enrolled bill, the date (and if necessary the time) of receipt” as

7 soon as the enrolled bill is presented.

8 95. All of these provisions, taken together, make it abundantly clear that

9 presentment is not optional; it is an indispensible part of the legislative process. After the

10 Senate passes a bill it must be physically presented to the President, so as to allow the

11 President an opportunity to know the exact language of the legislative measure.

12 96. Given the Senate’s express desire that the Government be able to document

13 evidence of presentment in case any question should ever arise as to whether a bill was

14 properly enacted into law according to the exclusive constitutional process, the standard of

15 review should be: absent competent evidence that a bill was presented to the President, after

16 its proper enrollment, the presumption must be that the bill was never presented, and

17 therefore, by definition, could never have become law.

18 97. Because the Government is unable to produce competent evidence that S.B.

19 76-3, the budget bill for the fiscal year ending June 30, 2009 (this fiscal year), according to

20 the process laid out in the Bill Governance Act of 2008, this Council should declare that the

21 budget was not enacted into law and is therefore unenforceable and unactionable.

22 Tenth Claim for Relief

23 Declarative Relief

24 Violation of Art. II, sec. 3(a)(2), ASUN Constitution

25 98. Petitioner repeats and realleges each and every allegation contained within

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-16-
1 paragraphs 1 through 97 as though fully incorporated herein.

2 99. Article II, section 3(a)(2) states that the Senate has exclusive power “[t]o set a

3 budget for the ASUN”. But, perhaps more important than that exclusive grant of authority, is

4 the limitation placed on the Association’s power to spend contained in the remainder of that

5 clause: “but no money shall be spent from the treasury without appropriations made by law”.

6 100. Having already established the exclusive constitutional and lawful means for

7 enacting laws, and since authority to spend can only be granted through “appropriations

8 made by law,” the Council should declare that all obligations entered into, spending, and

9 other actions otherwise taken as a consequence of a budget being passed by the Senate, were

10 entered into unlawfully, and that all actions taken under the authority of a budget that was not

11 enacted into law are null and void.

12 Eleventh Claim for Relief

13 Injunctive Relief

14 Collateral Relief Arising Out of First and Second Causes of Action

15 101. Petitioner repeats and realleges each and every allegation contained within

16 paragraphs 1 through 100 as though fully incorporated herein.

17 102. Assuming the Council grants the relief granted in the Ninth and Eleventh

18 Claims for Relief, an injunction should be issued preventing any further obligation arising

19 out of the budget from being incurred or paid. In other words, the Council should order all

20 spending and other actions which would normally be taken in consequence of a budget being

21 lawfully passed halted until the proper process has played out.

22 Twelfth Claim for Relief

23 Declaratory and Injunctive Relief

24 Subsequent Bills Amending the Budget

25 103. Petitioner repeats and reallege each and every allegation contained within

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-17-
1 paragraphs 1 through 102 as though fully incorporated herein.

2 104. Because a budget was never lawfully enacted for this fiscal year, the Council

3 should declare any and all subsequent bills amending the budget for this fiscal year null and

4 void, regardless of being lawfully enacted.

5 105. The Council should enjoin the Government from enforcing or otherwise

6 acting on any and all amendments to the budget passed subsequent to the budget bill,

7 regardless of being lawfully enacted.

8 Thirteenth Claim for Relief

9 Injunctive Relief

10 Preventing Further Unlawful Acts

11 106. Petitioner repeats and realleges each and every allegation contained within

12 paragraphs 1 through 105 as though fully incorporated herein.

13 107. The Council should enter an order freezing the accounts of the Association, or

14 within the control of the Association, including an order that all outstanding obligations be

15 stopped until a full audit can be performed on the Association’s accounts at the direction of

16 the Council.

17 108. The Council should further order the shutdown of the Government, except for

18 essential elements necessary to maintain the health, safety, or welfare of the members of the

19 Association, until such time as the Council is satisfied that appropriations have been made by

20 law in support of the Government.

21 Fourteenth Claim for Relief

22 Violations of NRS 241.035, Request for Declaratory Judgment for Violation of the Open

23 Meeting Law, Preliminary and Permanent Injunction for Compliance with the Open

24 Meeting Law, Request for Voided Action

25 109. Petitioner repeats and realleges each and every allegation contained within

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-18-
1 paragraphs 1 through 108 as though fully incorporated herein.

2 110. This Claim for Relief makes specific reference to Paragraphs 36 through 41 of

3 this Complaint.

4 111. Because either the minutes do not exist, in violation of NRS 241.035(1), or do

5 not sufficiently state the substance of what was decided at the respective meetings, in

6 violation of NRS 241.035(1)(c), Petitioner requests the subsequent bills making amendments

7 to the budget be declared void, pursuant to NRS 241.036.

8 Fifteenth Claim for Relief

9 Violation of Section 224 of the Association Budget and Finance Act

10 112. Petitioner repeats and realleges each and every allegation contained within

11 paragraphs 1 through 111 as though fully incorporated herein.

12 113. On information and belief, the Associated Students engaged in spending from

13 the period July 1, 2008 (the beginning of the fiscal year), to date. At least until the point

14 mentioned in Paragraph 26, the spending could not have been lawful, in violation of Article

15 II, section 3(a)(2) of the ASUN Constitution.

16 114. On information and belief, the Respondent President authorized the release of

17 funds and spending, in violation of Article II, section 3(a)(2) of the ASUN Constitution.

18 115. The allegation in Paragraphs 42 and 43 constituted further violation of section

19 224 of the Association Budget and Finance Act of 2008 (ASUN Public Law 75-52; 75

20 ASUN Stat. 148).

21 116. Because it cannot be established by any competent evidence that a budget was

22 enacted while certain spending was occurring, Petitioner requests the Council declare that the

23 President violated section 224 of the Association Budget and Finance Act of 2008.

24 ///

25 ///

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-19-
1 Sixteenth Claim for Relief

2 Senate Bill 76-3 Is Not A Proper Appropriations Bill

3 117. Petitioner repeats and realleges each and every allegation contained within

4 paragraphs 1 through 116 as though fully incorporated herein.

5 118. Even if the Council finds the previous Claims for Relief unconvincing, the

6 Council should find and declare that Senate Bill 76-3 (and the subsequent bills amending the

7 budget) are not proper appropriations bills under the Association Budget and Finance Act or

8 the established practice of the Senate in making appropriations during the 75th Session.

9 Seventeenth Claim for Relief

10 Violation of Section 12 of the Bill Governance Act of 2008, Failure to Promulgate Bill

11 119. Petitioner repeats and realleges each and every allegation contained within

12 paragraphs 1 through 118 as though fully incorporated herein.

13 120. Because of the failure to promulgate S. B. 76-3, if held to be lawfully enacted,

14 the bill should be declared to be of no effect.

15 WHEREFORE, Petitioner pray for judgment against Defendants as follows:

16 1. For a declaration that Defendants’ actions constitute a violation of the

17 Constitution and the relevant laws enacted in pursuance thereof.

18 2. For a declaration that the bills relevant to this complaint are not properly

19 enacted into law, and are therefore null and void

20 3. For an order enjoining the Government from engaging in any and all spending

21 and other actions which would normally be taken in consequence of a budget being lawfully

22 passed halted until a budget for the current fiscal year is properly enacted into law.

23 4. For an order that all outstanding obligations undertaken under unlawful

24 budgetary authority be stopped until a full audit can be performed on the Association’s

25 accounts at the direction of the Council.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-20-
1 5. For an order to shutdown the Government, except for essential elements

2 necessary to maintain the health, safety, or welfare of the members of the Association, until

3 such time as the Council is satisfied that appropriations have been made by law in support of

4 the Government.

5 6. For an order enjoining Defendants from unlawfully exercising the power of

6 the Association under bills which never became law.

7 7. For such other relief as directly requested under each Claim for Relief

8 8. For such other relief as the Council deems just and proper.

9 Dated this _____ day of __________________, 2009.

10
____________________________
11 Corinna Cohn
cohnc@unr.nevada.edu
12 Petitioner

13

14

15

16

17

18

19

20

21

22

23

24

25

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


-21-