Nevada Legislative Immunity Appeal: A Sigh of Relief Regarding Institutional Waiver, and a Legislator's Neverneverland

Anonymous

Mon, 04/13/2009 - 10:00

Legislative Immunity

The Nevada legislative immunity appellate briefs have been filed, and
they are worth reading for those interested in the intersection between government ethics enforcement and legislative
immunity, an intersection where, in the last year, there have been a few collisions harmful to the cause of government ethics. Although this case involves a state legislator, it is in some ways applicable to local government legislators.

The essential facts are straightforward. Twenty-four years ago the
state legislature merged its legislative and executive ethics
commissions into one. The new ethics law was constitutionally tested,
and the court only found a constitutional problem with the vagueness of
the financial disclosure provisions. These were corrected and the law
was not challenged further, until last year, when a state senator
challenged the ethics commission's jurisdiction in a conflict of
interest disclosure and recusal matter. 
 
Because Nevada does not have a Speech or Debate Clause in its
constitution, the district court (its long decision is available in two
parts, <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>)
got to legislative immunity through two other constitutional
provisions: separation of powers and a nonexclusive provision allowing
legislators to punish their members for "disorderly conduct." 
 
In <a href="http://www.cityethics.org/node/595" target="”_blank”">an earlier blog entry</a>,
I dealt in detail with the district court's attempt to stretch these
two provisions into a legislative immunity argument. The Nevada ethics
commission takes some different approaches in<a href="http://www.northhaveninfo.org/resources/Nevada+EC+App+Opening+Brief+031…; target="”_blank”">
its opening brief</a>. Since this is such an unusual, backdoor
approach to legislative immunity, I won't discuss it further here. 
 
Institutional Waiver of Legislative Immunity at the Local Level 
The ethics commission argued that both the legislature and the
particular senator waived any legislative immunity they might have had.
Its
arguments in its opening and <a href="http://www.northhaveninfo.org/resources/Nevada+EC+App+Reply+Brief+04060…; target="”_blank”">reply
brief</a>s contrast almost humorously to the arguments of the senator
in his answering brief (which, because it is long and was scanned,
comes in three parts <a href="http://www.northhaveninfo.org/resources/Pages+from+Hardy-Nevada+App+Ans…; target="”_blank”">1</a>
<a href="http://www.northhaveninfo.org/resources/Pages+from+Hardy-Nevada+App+Ans…; target="”_blank”">2</a>
<a href="http://www.northhaveninfo.org/resources/Pages+from+Hardy-Nevada+App+Ans…; target="”_blank”">3</a>). The senator goes on and
on with legalistic arguments against institutional waiver, that is,
waiver by the legislature on behalf of individual legislators. Some of
these arguments are to be taken seriously. But if they do apply, it
seems that they would apply only where
legislative immunity is clearly a constitutional provision, not where
there is only common-law legislative immunity (which the senator
scarcely mentions) or legislative immunity
imputed from separation of powers and disorderly conduct provisions in
a constitution. 
 
This is important to local governments, where only common-law
legislative immunity applies (this is something I did not understand
until I read these briefs; I made corrections to some of my past
blog entries on this topic). I thought it was possible that the Speech
or
Debate Clause might prevent a local legislative body from waiving the
legislative immunity of a legislator. But since the Speech or Debate
Clause does not apply to local legislatures — only common-law
legislative immunity applies — institutional waiver, in the form of an
ethics code that expressly applies to legislators, is
effective in giving ethics commissions jurisdiction over legislators. 
 
This discovery is worthy of a deep sigh. Although the state legislative
immunity cases are certainly worth watching and understanding, because
these arguments will definitely arise, I feel much more confident that
a suit by a local legislator to defend himself from a local or state
ethics commission's jurisdiction will be dismissed. In short, a local
legislative body that passes an ethics code enforceable against
legislators by an independent ethics commission waives each of its
members'
right to contest the ethics commission's jurisdiction. 
 
However, this does not so easily apply to members of
boards who may legislate (e.g., a planning and zoning board) but have
not passed their own ethics code. A way to deal with this is to have every potentially legislative body in a local government pass the same ethics code, giving jurisdiction over its members and staff to the same ethics commission. 
 
Personal Waiver of Legislative Immunity 
One good argument that can be found in the ethics commission's <a href="http://www.northhaveninfo.org/resources/Nevada+EC+App+Reply+Brief+04060…; target="”_blank”">reply
brief</a> is that the senator personally waived legislative immunity
when
he filed with the commission, as required by law, an acknowledgment
“that he has received, read and understands the statutory ethical
standards” found in the Ethics Law, and again when the commission
advised the senator that it was taking jurisdiction over the underlying
ethics complaint, and the senator did not object to the commission’s
jurisdiction. 
 
To the extent these acts constitute a personal waiver, it would be a
good idea for ethics commissions to require local legislators – both
council members and members of boards that legislate – to sign
off on the ethics code and expressly accept the ethics commission's
jurisdiction over them in all matters covered by the ethics code. 
 
Legislative Immunity as a Personal Civil Right 
The weakest part of the senator's anti-waiver argument (<a href="http://www.northhaveninfo.org/resources/Pages+from+Hardy-Nevada+App+Ans…; target="”_blank”">part
3</a>, p.
38-39) is that legislative immunity is a personal constitutional right,
akin to the Fifth Amendment right not to incriminate oneself.
Legislative immunity is personal not because a legislator is a human
being with certain civil rights, but because a legislator represents
constituents who deserve an independent voice representing them.
Legislative immunity is the constituents' right, not the legislator's. 
 
Conflict of interest deals with the same right of constituents to have
an independent voice representing them, rather than someone acting in
his or her own personal interest. That is why responsible legislators
set up independent ethics commissions and give the commission
jurisdiction over
the very people who set them up. Nothing can better protect
constituents' rights. 
 
The senator took this supposedly personal right a step further: 
 
<div>with regard to conduct
that falls within the sphere of legitimate legislative activity, the
Legislature may have declined to exempt legislators ... in order to
give each individual legislator the discretion to determine, on a
case-by-case basis, whether to raise legislative immunity as an
affirmative defense. Because legislative immunity is a personal
constitutional right that belongs to each individual legislator, there
is nothing telling about a statutory scheme in which each individual
legislator has the discretion to determine on his own whether to raise
the affirmative defense of legislative immunity based on the particular
facts of each case. (<a href="http://www.northhaveninfo.org/resources/Pages+from+Hardy-Nevada+App+Ans…; target="”_blank”">part
3</a>, p. 41) 
</div>
 
A Senator in Neverneverland 
Who has ever heard of an ethics code that allows each individual
official to except himself or herself from its rules on a case-by-case
basis? This argument, like others of the senator's arguments, exist only
in a
neverneverland. The ethics commission's arguments exist in the real
world, where legislation that applies to government officials is seen
to be intended to apply to government officials, except to the extent
they are expressly excluded. No amount of sophistry can change this
reality. 
 
In the real world, the independent ethics commission is the norm at
all levels of government, and nearly everyone other than legislators
and their attorneys
believe that enforcement by an independent ethics commission is
far superior to self-enforcement. 
 
Also in the real world, as in Nevada, legislators file disclosure
statements. Why would they file disclosure statements if a principal
purpose of
them – to make it easier to deal with possible conflicts – is outside
the ethics commission's
jurisdiction? What constitutional argument can trump this important
aspect of reality? 
 
The Public's Right to Honest Representation 
My favorite part of the ethics commission's succinct <a href="http://www.northhaveninfo.org/resources/Nevada+EC+App+Reply+Brief+04060…; target="”_blank”">reply brief</a> is its
inclusion of the following excerpt from the U.S. Supreme Court's decision
in <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0408_0501_ZS.ht…; target="”_blank”">United
States v. Brewster</a>, 408 U.S. 501 (1972): 
 
<div>[F]inancial abuses by way of bribes,
perhaps even more than Executive power, would gravely undermine
legislative integrity and defeat
the right of the public to honest representation. Depriving the Executive of the
power to investigate and prosecute and the Judiciary of the
power to punish bribery of Members of Congress is unlikely to enhance legislative
independence. [emphasis mine] Given the disinclination and
limitations of each House to police these matters, it is understandable
that both Houses deliberately delegated this function to the courts, as
they did with the power to punish persons committing contempts of
Congress. 
</div>
 
Like bribery, ignoring conflicts of interest "defeats the right of the
public to honest representation," and depriving independent ethics
commissions of the power to investigate and prosecute those who act
against the public interest is "unlikely to enhance legislative
independence." 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
---

Search

Nevada Legislative Immunity Appeal: A Sigh of Relief Regarding Institutional Waiver, and a Legislator's Neverneverland

Tags

Share This Page