A Limit on the Use of the Legislative Immunity Defense
The defense of legislative immunity is not limited to city councilors and county
commissioners. It also can be used by non-legislative officials acting in a
legislative way. It may be used by planning and
zoning board members and officials, school board members, and a variety
of other officials involved in the creation of legislation or who act in a legislative manner.<br>
<br>
Here's an interesting case of a non-legislative official trying out a
defense of legislative immunity and, fortunately, failing. The official
is none other than one of the judges in the infamous Luzerne County
case, where two judges were involved in putting children in juvenile
detention facilities for the judges' own financial benefit (see <a href="http://www.cityethics.org/node/640" target="”_blank”">my first blog post describing the situation</a>).<br>
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According to <a href="http://www.law.com/jsp/article.jsp?id=1202464455694&Disgraced_Former_Ju…; target="”_blank”">an
article last week in the <i>Legal Intelligencer</i></a>, the judge, acting as
his own attorney, argued that "some of the allegations lodged against
him stemmed from the funding decisions he made in his role as president
judge." The court didn't buy the argument: "It does not appear that
Conahan had the type of general policy-making power that would cloak
his actions with legislative immunity." But this is an ambiguous standard that judges could certainly disagree about.<br>
<br>
The court did find that the judges were protected by the doctrine
of absolute judicial immunity. According to the article, the court
determined that the plaintiff could not "pursue any claim that is
premised on a theory that Conahan and Ciavarella did not act as
impartial judges, failed to advise juveniles of their right to counsel
or failed to determine whether guilty pleas were knowing and
voluntary," even though it appears that the judges did all of these horrible things. Fortunately, the court found that "many of the actions
taken by Conahan were not of a judicial nature."<br>
<br>
It's hard to imagine that judges would have the temerity to argue for
immunity after what they did. The legislative immunity defense in a
non-ethics contexts might make a lot of sense, but in an ethics context
it is sometimes the last refuge of a scoundrel.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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