Today Nevada Legislature Is Debating Its Own Legislative Immunity, and Local Legislators', Too

The Nevada legislature is really going out of its way to make sure that its members, and no one else in the state, is protected by legislative immunity with respect to the state ethics commission. For a body that was afraid, without a court's blessing, to exclude its members from the state ethics commission's jurisdiction (to the extent a member is involved in legislative activity), it does not seem afraid, even before the appellate opinion in its legislative immunity case has been published, to apply constitutional legislative immunity to itself, even though the state constitution doesn't do this.

Before I go into this more, I want to focus on the way local legislators are treated by this proposed amendment (see attachment below, and note that the original senate bill passed unanimously). Local legislators, like Nevada state legislators, are protected by common-law legislative immunity, which is much the same as constitutional legislative immunity, except for the fact that, because it isn't constitutional, it can be more easily waived. For example, legislators in a city that has passed an ethics code have effectively waived their common-law legislative immunity.

Common-law legislative immunity isn't good enough for Nevada's state legislators, but according to the current proposed amendment, it's too good for local legislators. The state legislators don't want any common-law legislative immunity to protect any other legislators from ethics commission jurisdiction, because if there's any legal common-law legislative immunity around, people might think that's what state legislators have, as well. Sort of like the way some people in Nevada think having legalized prostitution anywhere in the state makes other prostitutes look legitimate.

It's good that the state legislature is considering making the state ethics commission's jurisdiction clear with respect to local legislators (and everyone else but them, by the way). But without doing somersaults with constitutional separation of powers (it appears successfully), which is only one support for legislative immunity, the state legislators would be no different than local legislators. So even though they're protecting ethics jurisdiction over local legislators, they're muddying the waters for all local and some state ethics commissions elsewhere in the country.

For anyone really into legislative immunity discussions, you can watch or listen to the committee debate online today at 3:45 pm Pacific Time. Click for the agenda (the immunity amendment is the third agenda item).

One thing that fascinates me about this amendment is how often and in how many different ways it repeats the fact that state legislators have legislative immunity. It's not quite "You doth protest too much," but it's close. I think it exhibits a lack of confidence about how constitutional this legislative immunity is, even though there will most likely soon be an appellate decision supporting this position. Giving themselves legislative immunity once would have been enough.

Robert Wechsler
Director of Research-Retired, City Ethics

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