Nevada Senator Given Legislative Immunity from Ethics Commission Jurisdiction
A Nevada court found yesterday that the state ethics commission did not
have jurisdiction over a state senator on grounds of legislative immunity,
even though the state constitution has no Speech or Debate Clause. The
judge gave the senator a preliminary injuction to prevent his having to
appear before the ethics commission next week. No decision is available
yet, but the judge did say that the state constitution would have to be
amended for the ethics commission to have jurisdiction over a state
legislator.<br>
<br>
Adriana Fralick, general counsel for the ethics commission, was kind
enough to send me, at my request, the senator's motion for a prelimary injunction (it's
broken into two searchable PDF files, <a href="http://www.northhaveninfo.org/resources/Nevada-Hardy+Motion+110308+I.pd…; target="”_blank”">1</a>
and <a href="http://www.northhaveninfo.org/resources/Nevada-Hardy+Motion+110308+II.p…; target="”_blank”">2</a>),
the senator's <a href="http://www.northhaveninfo.org/resources/Nevada-Hardy+Petition+110308.pd…; target="”_blank”">petition
for judicial review</a>, and the <a href="http://www.northhaveninfo.org/resources/Nevada+Opposition+to+Motion+110…; target="”_blank”">ethics
commission's opposition</a> to the motion for a preliminary injunction.<br>
<br>
The ethics commission's opposition points out that at United States v.
Johnson, 383 U.S. 169, 185 (1966), the Supreme Court stated, "we
expressly leave open<br>
for consideration when the case arises a prosecution which, though
possibly entailing inquiry into legislative acts or motivations, is
founded upon a narrowly drawn statute passed by Congress in the
exercise of its legislative power to regulate the conduct of its
members." This certainly seems to apply to an ethics statute. The statute
in Johnson was a more generally applicable criminal law.<br>
<br>
The opposition also shows that separation of powers issues, which
underlie legislative immunity and which were also the basis for a
separate argument made by the senator, were considered when the state
ethics statute was being debated, because an earlier ethics statute
was found to be unconstitutional. Legislative counsel, which represents the senator, felt the statute did not violate the separation of powers.<br>
<br>
Finally, unlike in the recent decision in Rhode Island (too recent to
be mentioned in the opposition), which found that ethics provisions,
even in the state constitutiion, do not take precedence over or
constitute an institutional waiver of the constitution's "speeech in
debate" clause, here there was no such clause and, therefore, it could
more easily be argued that there was indeed an institutional waiver.
But the judge didn't seem to buy this.<br>
<br>
This could be seen as another nail in the coffin of independent ethics
jurisdiction over legislators. But with one decision after the other, this might also get the government ethics community worked up enough to go to
work solving this problem. Whether through waivers or constitutional
amendments, independent ethics oversight must be ensured. It's what
everyone knows is the right way to handle these problems. Legislators
cannot police themselves, and even they know that self-policing is more
political (and more unacceptable to the public) than independent oversight.
Most of the purposes for which the Speech or Debate Clause was created simply
do not apply to ethics proceedings, especially when they stick to the
civil side of the law.<br>
<br>
See <a href="http://www.lasvegassun.com/news/2008/nov/28/judge-rules-ethics-case-sen…; /> a Las Vegas <i>Sun</i> article</a> on the decision, and <a href="http://www.cityethics.org/node/554" target="”_blank”">my first blog entry</a> on the Nevada case.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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