In Nevada Legislative Immunity Case, Oral Arguments Raise Some Serious Issues
The <a href="http://www.nvsupremecourt.us/info/audio/04.20.09_53064.php" target="”_blank”">oral
arguments</a> before the Nevada Supreme Court in the Commission on
Ethics v. Hardy appeal are now available in MP3 format, suitable for
your media player.<br>
<br>
It doesn't look as if the decision will be a good one for government
ethics enforcement, certainly at the state level and, perhaps, at the local level, as well.<br>
<br>
The big problem is
that, where there is a Speech or Debate Clause, at least the limits on
an ethics commission's jurisdiction are clear: it has no jurisdiction over legislators involved in legislative
activities. Where, as in Nevada, there is no Speech or Debate Clause,
and common-law legislative immunity is not accepted as the basis for
determining the ethics commission's jurisdiction, things open up.<br>
<br>
The Nevada state senator who brought this case is arguing, through
legislative counsel, that the basis for determining the ethics
commission's jurisdiction is the state constitution's Separation of
Powers clause and a provision on the legislature's right to punish its
members for disorderly conduct. Since neither of these limit the
legislator's constitutional rights to legislative activity, there is no
reason to allow an ethics commission <span>any</span>
jurisdiction over the conduct of legislators.<br>
<br>
Legislative counsel argues, however, that the state ethics commission
still has jurisdiction over legislators when they are not involved in
legislative activities. But this is based on legislative immunity,
which is not a constitutional protection in Nevada. Legislative counsel has created a confusion of separation of powers,
constitutional legislative immunity (which they insist applies in
Nevada, although it clearly does not), and common-law legislative
immunity.<br>
<br>
The reason for this confusion is that institutional waiver is very difficult to prove where there is constitutional legislative immunity, but easy to prove where common-law legislative immunity has only a common-law basis. So the
legislature has to argue that the state's legislative immunity is
constitutional, or the ethics code would be considered a waiver and the
state senator would have no case.<br>
<br>
But since there is no legislative immunity in the state constitution,
this constitutional right has to be derived from two provisions that
are not limited by case law to legislative activity. The legislature,
it appears, does not want to be seen as completely taking away the ethics
commission's authority, so it is playing a compromise game that
confuses the different sorts of protections of legislators.<br>
<br>
The justices clearly feel that separation of powers is the most
important consideration, and that the ethics commission's authority is
unconstitutional under it. Therefore, if they do not accept the
legislature's compromise game, the justices might find the entire
ethics code unconstitutional as it applies to state legislators. If
they do not, they would have to somehow impute legislative immunity
into the state constitution or ignore the difference between common-law
and constitutional legislative immunity.<br>
<br>
Ethics commission counsel brings up the issue of application of
separation of powers/legislative immunity rights in California to local
legislators, which is relevant because California also does not have a Speech or Debate Clause. Ethics commission counsel feels that the California cases would also apply in Nevada under
the state legislature's arguments, and that this would further undermine the ethics
commission, which has jurisdiction over local officials. I need to do
more research on this important issue before I comment.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---</p>