Nevada Legislative Immunity Decision Comes Down -- A Bit Too Far For My Taste

Anonymous

Wed, 12/24/2008 - 11:51

City Related

The Nevada legislative immunity opinion has come down. It's in two
parts, searchable, <a href="http://www.northhaveninfo.org/resources/Nevada+decision+1+1208.pdf" target="”_blank”">1</a>
and <a href="http://www.northhaveninfo.org/resources/Nevada+decision+2+1208.pdf" target="”_blank”">2</a>.
There's also a<a href="http://www.lvrj.com/news/breaking_news/36655564.html" target="”_blank”"> Las Vegas
Review-Journal article</a> on
the decision, which says that the ethics commission plans to appeal the
decision. 
 
Despite its finding against the state ethics commission's jurisdiction
over state legislators, there is good news for local government ethics
practitioners. Since <a href="http://www.leg.state.nv.us/Const/NVConst.html" target="”_blank”">the state
constitution</a> does not have a Speech or Debate Clause, the court
based its decision primarily on separation of powers. And it states
that the decision does not apply to local or regional legislators (p.
17-18):

<div>the Court emphasizes that Senator Hardy
is a state legislator who is a constitutional officer of the
Legislative Department of State Government under Article 4, Section 4
of the Nevada Constitution. Legislative immunity exists under the
Federal and State Constitutions to preserve the separation of powers
among coequal branches of government. See United States v Gillock, 445
U.S. 360, 368-70 (1980); Guinn v. Legislature, 119 Nev. 460, 472
(2003) ("Guinn II'). Unlike members of the Nevada Legislature, members
of local or regional legislative bodies ate not part of a coequal
branch of Nevada State Government. See Lincoln County, Nev. v. Luning,
133 U.S. 529, 530-3 (1890); State v. Coulon, 3 So. 2d 241, 243 (La.
1941). In addition, the doctrine of separation of powers generally does
not apply to local or regional legislative bodies. See People ex reI.
Att'y Gen. v. Provines, 34 Cal. 520, 523-40 (1868); Holley v. County of
Orange, 39 P. 790, 792 (Ca1, 1895); Mariposa County v. Merced Inig.
Dist, 196 P.2d 920, 925-26 (Cal, 1948); La Guardia v. Smith, 41 N.E.2d
153, 155-56 (N.Y. 1942); Poynter v. Walling, 177 A.2d 641, 645 (Del.
Super. Ct. 1962). Therefore, nothing contained in the Court's decision
applies to members of local or regional legislative bodies. 
</div>
 
This position is emphasized in the first sentence of the substantive
part of the decision: "This case is about the proper separation of
powers between the Legislative Department and Executive Department of
State Government." Well, it is and it isn't, as you'll see. I find it a
poorly thought-through decision. 
 
Article 4, Section 6 of the Nevada Constitution reads as follows: 
 
<div>Power of houses to judge qualifications,
elections and returns of members; selection of officers; rules of
proceedings; punishment of members. Each House shall judge
of the qualifications, elections and returns of its own members, choose
its own officers (except the President of the Senate), determine the
rules of its proceedings and may punish its members for disorderly
conduct, and with the concurrence of two thirds of all the members
elected, expel a member. 
</div>
 
So, essentially, the court interpreted "disorderly conduct" to include
violations of ethics laws. Of course, the section does not say that the
legislature cannot set up an independent ethics commission to punish
its members on its behalf, at least as long as it can't expel a
legislator. 
 
Article 3, Section 1 of the Nevada Constitution is also important to
the decision: 
 
Three separate
departments; separation of powers; legislative review of administrative
regulations. 
 1. The powers of the Government of
the State of Nevada shall be divided into three separate
departments,—the Legislative,—the Executive and the Judicial; and no
persons charged with the exercise of powers properly belonging to one
of these departments shall exercise any functions, appertaining to
either of the others, except in the cases expressly directed or
permitted in this constitution. 
 2. If the legislature authorizes
the adoption of regulations by an executive agency which bind persons
outside the agency, the legislature may provide by law for: 
 (a) The review of these regulations by a
legislative agency before their effective date to determine initially
whether each is within the statutory authority for its adoption; 
 (b) The suspension by a legislative
agency of any such regulation which appears to exceed that authority,
until it is reviewed by a legislative body composed of members of the
Senate and Assembly which is authorized to act on behalf of both houses
of the legislature; and 
 (c) The nullification of any such
regulation by a majority vote of that legislative body, whether or not
the regulation was suspended.
<a href="http://www.leg.state.nv.us/NRS/NRS-281A.html" target="”_blank”">The Ethics in
Government Act</a> clearly provides for jurisdiction over legislators,
and even limits this in the very first section: 
 
<div>Members of the Legislature serve as
“citizen Legislators” who have other occupations and business
interests. Each Legislator has particular philosophies and perspectives
that are necessarily influenced by the life experiences of that
Legislator, including, without limitation, professional, family and
business experiences. Our system assumes that Legislators will
contribute those philosophies and perspectives to the debate over
issues with which the Legislature is confronted. The law concerning
ethics in government is not intended to require a member of the
Legislature to abstain on issues which might affect his interests,
provided those interests are properly disclosed and that the benefit or
detriment accruing to him is not greater than that accruing to any
other member of the general business, profession, occupation or group. 
</div>
 
It's clear that the legislature intended the ethics commission to have
full jurisdiction over it, with the stated exceptions. However,
according to the court, it screwed up by making the ethics commission
part of the executive branch, something the legislature says it will
now remedy by creating a legislative committee. Well, the legislature
could have done this without a court decision. Now it can say it had no
choice. This is itself unethical behavior -- although not "disorderly
conduct" -- by legislators, and I'll bet they won't discipline
themselves for it. 
 
In addition, the court compares, rather than contrasts, the treatment
of judicial and legislative ethics in the Constitution. You've seen the
treatment of legislative ethics, all in that crystal-clear term
"disorderly conduct." Judicial ethics has a long section all its own.
Here's how Article 6, Section 21 starts: 
 
Commission on Judicial Discipline; Code of
Judicial Conduct. [Effective through November 22, 2010, and
after that date if neither of the proposed amendments is agreed to and
passed by the 2009 Legislature and approved and ratified by the voters
at the 2010 General Election.] 
 1. A justice of the Supreme Court,
a district judge, a justice of the peace or a municipal judge may, in
addition to the provision of Article 7 for impeachment, be censured,
retired, removed or otherwise disciplined by the Commission on Judicial
Discipline. Pursuant to rules governing appeals adopted by the Supreme
Court, a justice or judge may appeal from the action of the Commission
to the Supreme Court, which may reverse such action or take any
alternative action provided in this subsection. 

The section goes into detail concerning the
Commission on Judicial Discipline and, respecting the separation of
powers upon which the court bases its decision, it even provides: 

 3.
If at any time the State Bar of Nevada ceases to exist as a
public corporation or ceases to include all attorneys admitted to
practice before the courts of this State, the Legislature shall provide
by law, or if it fails to do so the Supreme Court shall provide by
rule, for the appointment of attorneys at law to the positions
designated in this Section to be occupied by members of the State Bar
of Nevada. 

So the legislature is allowed to get involved in
judicial ethics, despite the separation of powers. And the Governor has
his appointments to the Commission, as well. Sounds like an amalgam,
not a separation of powers to me. And not only that, but subsection 5
provides for the legislature to establish: 



(a) In addition to censure, retirement and removal, the other
forms of disciplinary action that the Commission may impose;

(b) The grounds for censure and other disciplinary action that the
Commission may impose, including, but not limited to, violations of the
provisions of the Code of Judicial Conduct;

(c) The standards for the investigation of matters relating to the
fitness of a justice or judge; and

(d) The confidentiality or nonconfidentiality, as appropriate, of
proceedings before the Commission, except that, in any event, a
decision to censure, retire or remove a justice or judge must be made
public.
 
And the court compares all of this detailed cross-branch ethics
discipline to the measly phrase "disorderly conduct" (a phrase the
court only managed to mention once, on page 17 of the opinion, as
opposed to 5 uses of the phrase "improper conduct," which the court
clearly prefers, even if it happens not to be in the Constitution). The
fact is that the differences far outweigh the similarities, and you've
got to stick with the language of the Constitution, even when it's not
optimal or appropriate. 
 
What I don't understand is why, on the basis of the Nevada
Constitution, the court believes that the state ethics commission can
discipline state legislators for conduct that is not part of their
legislative activity, when "disorderly conduct," unlike the Speech or
Debate Clause, has never been interpreted like this, and it makes no
sense. Effectively, the court has applied the Speech or Debate Clause
under the guise of separation of powers and the "disorderly conduct"
clause. Another way of saying this is that the court read the Speech or Debate Clause into the Nevada Constitution. 
 
There are citations to state cases (mostly from other states) that
provide some support for the court's expansive interpretation of
"disorderly conduct," but I won't be able to read them until after the
holidays. But why, were this really the case, would the court have
bothered with the pitiful comparison to the treatment of judicial
discipline in the Constitution? 
 
The court makes a good argument that the ethics commission is part of
the executive branch. But just as the Commission on Judicial Discipline
is part of the judicial branch, presumably, the legislature could
quickly remedy this problem by creating a separate ethics commission
that is part of the legislative branch, a legislative committee
consisting of non-legislators, which is the case in some states. This
costs a lot more than having just one commission (and there would have
to be two separate commissions, one for each house), but apparently the
legislature would prefer this to allowing the current ethics commission
from interfering with its members' rights. 
 
The court is very dependent on another phrase, this time from a Nevada
Supreme Court decision: 
 
<div>the Nevada Supreme Court has determined
that "[u]nder the separation of powers doctrine, individual legislators
cannot, nor should they, be subject to fines or other penalties for
voting in a particular way." Guinn II, 119 Nev. at 472 & n.28. 
</div>
 
The case before the court, however, was not a case of penalizing a
legislator for "voting in a particular way." It was a case of
jurisdiction over the issue of whether the legislator is permitted to
vote at all. This is another contrast the court ignores. 
 
Near the end of the opinion, the court tells us something I didn't
know: last year, both houses of the state legislature promulgated
standing rules dealing with conflicts of interest. In other words, the
legislature had paved the way for this suit. This shows excellent
planning. The court found that these rules take precedence over the
legislature's statute. 
 
And that's the decision. In short, the court based a legislative
immunity argument not on a Speech or Debate Clause, since the Nevada
Constitution lacks one, but purely on separation of powers "disorderly
conduct" clauses. Even though the U.S. Supreme Court has found that common-law
legislative immunity applies all the way down to local
government legislators, the court chose to ignore this route and focus
on a broad interpretation of what's in the state's constitution. The
result is a confusion of legislative immunity and separation of powers,
the latter being only one reason for legislative immunity. 
 
The result is also a decision worse for state government ethics
commissions than decisions based on common-law legislative immunity, at least
if the court's expansive interpretations and questionable reasoning hold up on appeal. 
 
For local governments, where separation of powers is not
required and often does not exist, the separation of powers
argument does not apply. Local legislators in Nevada, at least for now, have no constitutional right to be free of ethics commission jurisdiction. 
 
I'd like to end this piece with a look at what we can expect from
Nevada legislators in the way of self-discipline. According to
yesterday's <a href="http://www.lvrj.com/news/breaking_news/36655564.html" target="”_blank”">Review-Journal article</a>, former
state senator Sandra Tiffany "paid a $10,000 fine [to the state ethics
commission] after admitting she used her position as a legislator to
benefit her private online sales business. She lost her bid for
re-election in 2006, before the decision was made but after the
complaint was filed. After being told of [the] decision today, Tiffany
said she will contact her lawyer and see if her admission can be
withdrawn on the grounds the Ethics Commission should not have heard
her case. 'I want to be vindicated,' Tiffany said." 
 
Vindication from an admission of unethical conduct. Sen. Tiffany says better than anyone else what this court
case is all about. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
---

Search

Nevada Legislative Immunity Decision Comes Down -- A Bit Too Far For My Taste

Tags

Share This Page