Empty chambers?

Legislature's power to approve weapons on campus in doubt

Measures to allow guns on campus have roiled the student population at UNR.

Measures to allow guns on campus have roiled the student population at UNR.

PHOTO/DENNIS MYERS

Legislative measures being processed to allow guns on state college campuses may face an obstacle state lawmakers have not dealt with. The legislators may lack the authority to pass the bills. And if they do enact them, the Nevada Board of Regents may still have the power to disallow guns on campus.

The Nevada Supreme Court has twice ruled that “exclusive executive and administrative control of the university” rests with the Regents, not the Nevada Legislature.

The issue first arose in 1948 in the court case King vs. Board of Regents. The Legislature had enacted a statute creating a sort of shadow board of regents that was appointive and appeared to intrude on the elected Board of Regents’ administrative authority. While the second board was alleged to be advisory and the statute contained a clause saying it should not usurp the elected board’s authority, it appeared to have the power to do just that.

It was the first time the issue of the Legislature’s power over the university compared to the regents’ power over the university had been litigated, and the court issued an 11,580-word ruling. The court said it had consulted the 1864 constitutional debates and found that Nevada’s founders had withheld from legislators the authority to curb the regents’ powers but had empowered the legislators to define the regents’ duties, a conundrum of which the court observed, “In frankness it must be said that the recourse to these debates affords scant assistance.”

In the opinion written by Justice Milton Badt, the court found, “While it is urged by [the state taxpayer who brought the lawsuit] that the act is invalid for the further reason that it divides and clouds responsibility for official acts done in the name of the elected board, that it will result in ’buck passing’ and shoulder shrugging and would discourage men from seeking or accepting the office of regent, and while these contentions have some measure of appeal, they go more to the wisdom, judgment and policy of the legislation, in which field the legislature is supreme. …

“It is urged by [the state attorney general who defended the statute] that the act in question grants to the advisory board ’rights and privileges’ only, and no ’powers,’ and thus cannot encroach upon the powers of the elected board. This distinction is too finely drawn and we are not impressed by it. The terms have often been held to be synonymous and it has been said that whatever may be the value of the distinction in ethics, in law it is ’very shadowy and unsubstantial.’ …

“[The attorney general] insists that the unquestioned right of the legislature to appropriate the required funds for maintaining the university indicates that the elected board of regents was not vested by the constitution with exclusive and plenary control. However, the two processes are distinct. The power of the legislature to provide the requisite money and to limit and decrease the amount considered by the regents to be necessary is entirely a different function from the administration and control of the university itself. From what we have said it is clear that we are of the opinion that it was the intention of the framers of the constitution to vest exclusive executive and administrative control of the university in a board of regents to be elected by the people and that the act creating the advisory board would change, alter or modify its constitutional powers and functions and cannot find its justification in the power of the legislature to define the duties of the elected board.”

In 1981, another court ruling came down in Board of Regents vs. Oakley that further clarified the authority issue but still left the regents masters of their own administrative house. In Oakley, the issue was whether the board had to comply when a new state law on age discrimination conflicted with its own mandatory retirement age policy that had been in place for many years. The regents overreached in defending their position, claiming—based on King—absolute autonomy.

The Nevada Supreme Court disagreed, ruling “that this statute reasonably and properly imposes upon the governing board of our state university the same obligation that it imposes on other state, county and municipal boards. … Since the law in question simply prescribes duties concerning fair treatment of its personnel, it in no apparent way interferes with the Board’s essential management and control of the university.”

The court did not undercut its previous King finding that the board has authority over the legislature in the administrative duties of running the university system. It still found “that the legislature may not invade the constitutional powers of the Board through legislation which directly interferes with essential functions of the University.”

Attorney Don Klasic, who was for many years the university system’s general counsel and participated in Oakley, said that though he has not yet read the specific provisions of the bills the legislature is considering (the principal bill is ever-changing), said he thinks they have some problems.

“If the legislators were processing a bill that applied to all state offices, that would be one thing,” he said. “But when they pass a measure that targets just the university, I doubt that it will prevail.”

As noted above, the Oakley opinion observed that the age discrimination law did not target the campuses but applied widely to state agencies.

“I don’t know what’s more essential than running your own campus,” Klasic said, noting that Oakley upheld “essential” administrative functions of the Board of Regents. “If the board chooses to create a regulatory structure for this purpose, I think [they] can do it.”

In fact, that structure already exists. As Jeri Chadwell-Singley reported in these pages last week (“Campus targeted,” April 2), there is a procedure for applications to carry weapons on campus. Those applications are sent to the campus police for review, and the police may run background checks and interview applicants. While some rejected applicants have complained about the basis for their rejections, for the Legislature to substitute its judgment for that process raises questions of micro-managing the regents’ administrative procedures.

Of five applications filed in 2014, the most recent year for which figures are available, four involved weapons to be brought onto campus for academic reasons. They were approved. The fifth, filed by a holder of an off-campus weapon permit, was denied.

The Nevada Assembly approved Assembly Bill 148, providing for campus carry, on April 6. To become law, it must now be approved by the Senate and signed by the governor.