Today Nevada Legislature Is Debating Its Own Legislative Immunity, and Local Legislators', Too
The Nevada legislature is really going out of its way to make sure that
its members, and no one else in the state, is protected by legislative
immunity with respect to the state ethics commission. For a body that
was afraid, without a court's blessing, to exclude its members from the
state ethics commission's jurisdiction (to the extent a member is
involved in legislative activity), it does not seem afraid, even before
the appellate opinion in its legislative immunity case has been
published, to apply constitutional legislative immunity to itself, even
though the state constitution doesn't do this.<br>
<br>
Before I go into this more, I want to focus on the way local legislators are treated by this proposed
amendment (<span>see attachment below</span>, and note that the original senate bill passed unanimously). Local legislators, like Nevada state legislators,
are protected by common-law legislative immunity, which is much the
same as constitutional legislative immunity, except for the fact that,
because it isn't constitutional, it can be more easily waived. For
example, legislators in a city that has passed an ethics code have
effectively waived their common-law legislative immunity.<br>
<br>
Common-law legislative immunity isn't good enough for Nevada's state
legislators, but according to the current proposed amendment, it's too
good for local legislators. The state legislators don't want any
common-law legislative immunity to protect any other legislators from ethics
commission jurisdiction, because if there's any legal common-law
legislative immunity around, people might think that's what state
legislators have, as well. Sort of like the way some people in Nevada
think having legalized prostitution anywhere in the state makes other
prostitutes look legitimate.<br>
<br>
It's good that the state legislature is considering making the state
ethics commission's jurisdiction clear with respect to local
legislators (and everyone else but them, by the way). But without doing somersaults with constitutional separation of
powers (it appears successfully), which is only one support for legislative immunity, the state
legislators would be no different than local legislators. So even
though they're protecting ethics jurisdiction over local legislators,
they're muddying the waters for all local and some state ethics commissions elsewhere
in the country.<br>
<br>
For anyone really into legislative immunity discussions, you can <a href="http://leg.state.nv.us/audio/AudioVideo.cfm" target="”_blank”">watch or listen</a>
to the committee debate online <span>today</span>
at 3:45 pm Pacific Time. Click for <a href="http://leg.state.nv.us/75th2009/agendas/Assembly/EPE/final/1102.pdf" target="”_blank”">the
agenda</a> (the immunity amendment is the third agenda item).<br>
<br>
One thing that fascinates me about this amendment is how often and in
how many different ways it repeats the fact that state legislators have
legislative immunity. It's not quite "You doth protest too much," but
it's close. I think it exhibits a lack of confidence about how
constitutional this legislative immunity is, even though there will
most likely soon be an appellate decision supporting this position.
Giving themselves legislative immunity once would have been enough.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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