An Undisciplined Nevada Supreme Court Legislative Immunity Decision
To those who read <a href="http://www.cityethics.org/node/713" target="”_blank”">my
recent blog entry</a>, it will come as no surprise that, yesterday, the
Nevada Supreme Court unanimously affirmed the District Court's ruling
in the Nevada legislative immunity case (the Order of Affirmation, in
searchable form, is attached to this blog entry below).<br>
<br>
What's most fascinating about this unanimous decision is that it
applies constitutional legislative immunity rules regarding core
legislative functions and institutional waiver, without there being a
Speech or Debate Clause in the Nevada constitution and without
mentioning legislative immunity, or any sort of immunity at all.<br>
<br>
I want to address one point that I did not consider in my recent blog
entry. The Supreme Court depends heavily on the Discipline Clause of
the Nevada constitution, which provides for the legislature to "punish"
its own members for "disorderly conduct." Not only does the Supreme
Court define "disorderly conduct" to include dealing with a conflict of
interest, which is stretching the term almost certainly beyond what it
was intended to cover. But the Supreme Court also ignores the
possibility that the ethics commission could make a finding of
violation, recommend a penalty, and let the legislature punish its own.<br>
<br>
This seems to be a perfectly reasonable compromise position, based on
the language of the Discipline Clause. One has to wonder why the
Supreme Court took the Discipline Clause beyond what was necessary,
that is, a conclusion that the ethics commission had no right to punish.<br>
<br>
What is so interesting about this stretching of the relatively minor
Discipline Clause is that the Supreme Court held back on applying the
Separation of Powers Clause, which could have allowed the Court to take
away all the ethics commission's jurisdiction over legislators. No
reason is stated for limiting the removal of jurisdiction only to
matters within a legislator's core legislative functions. It is simply
assumed that this legislative immunity rule applies to separation of
powers issues.<br>
<br>
But the real reason appears to be that this is all the legislator in
this case asked for. However, if the legislature cannot waive the
separation of powers by clearly giving jurisdiction over its ethics to
an independent commission, how can one legislator limit the application
of the Separation of Powers Clause by not asking for more? This doesn't
make any sense to me. This whole thing doesn't make sense to me.<br>
<br>
Fortunately, the Supreme Court's decision does not apply to local
government ethics commissions. But it is not only of direct concern in
states that lack a Speech or Debate Clause in their constitution,
because its position on institutional waiver is even stronger than the
U.S. Supreme Court's position on institutional waiver of constitutional
legislative immunity (see <a href="http://supreme.justia.com/us/442/477/case.html" target="”_blank”">U.S.
v. Helstoski</a>,
442 U.S. 477 (1979)). If this muddle-headed Nevada decision were
accepted as precedent elsewhere, a legislature could not set up an
independent ethics commission even if it stated clearly in the statute
that for the purposes of ethics inquiries and enforcement, it was
waiving its legislative immunity, and even if every legislator
individually waived legislative immunity when he or she took office.<br>
<br>
There is no reason or precedent for such a strong position against
institutional and personal waiver. And yet not a single justice appears
to have considered how radical this decision is.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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