RI Supreme Court Prefers Speech in Debate Clause to Constitutional Authority of Ethics Commission Over Legislators
The Rhode Island Supreme Court has reached <a href="http://www.projo.com/news/2009/pdf/0629_riscruling_irons.pdf" target="”_blank”">a
decision</a> on the legislative immunity case (Irons v. RI Ethics
Commission) involving the state ethics commission and the state
legislature. As expected, its majority opinion (it was a 3-1 split)
concluded that the state's Speech in Debate Clause 100% overrides the
1986 constitutional amendment that granted the state ethics
commission full authority over state legislators. Here's how the majority presented
the conflict between the constitutional provisions:<br>
<br>
<div>We cannot accept an invitation to read
into the Ethics Amendment an unexpressed repeal of such an ancient and
venerable hallmark of our form of government as is the immunity
provided in the speech in debate clause without a clear and explicit
directive...<br>
</div>
<br>
Note the prejudice in favor of something "ancient and venerable" in
favor of something newfangled. And isn't it unusual for a
constitutional amendment to explicitly refer to other constitutional
provisions it may, in small part, override?<br>
<br>
The dissent, by the newly appointed chief justice, concludes, "it is my
opinion that the express application of the ethics amendment to '[a]ll
elected * * * officials' necessarily implies a limitation on the full
reach of the speech in debate clause. In other words, I would hold that
in matters concerning the ethical conduct of legislators the ethics
amendment creates a narrow exception to the immunity historically
adhering to legislators in the performance of their legislative
activities. Such a construction of our constitution, I believe, gives
greater effect to the intent of the convention delegates and electorate
in 1986 than an interpretation that places legislators beyond the reach
of the ethics commission for violations of the code of ethics with
respect to their performance of legislative activities."<br>
<br>
This is not your typical legislative immunity decision. It says nothing
about the applicability of legislative immunity to ethics commissions.
It deals only with a conflict between constitutional provisions. The
thing to learn from it is to explicitly, in big CAPITAL LETTERS, put
your ethics authority over legislators in the charter and say that it
overrides all common-law and, if there are any, charter-based
legislative immunities for local government legislators. Otherwise, this decision has no relevance to local government ethics.<br>
<br>
Here's the first comment to the <a href="http://www.projo.com/news/content/Irons_Supreme_Court_06-30-09_MVET075_…; target="”_blank”">Providence
<span>Journal</span> article</a> on the
decision:<br>
<br>
<div>If you have nothing to hide then you
hide nothing. Once again the courts have found a way to insulate these
knuckleheads
from prosecution. Now they will push the envelope further without fear.<br>
</div>
<br>
One wonders why, if the Speech in Debate Clause is so venerable and, as
the majority decision states, the public is "the ultimate beneficiary"
of it, the public cares so little for this clause. And one wonders why,
when the public, disgusted with the misconduct of its legislators,
votes by an enormous margin to effectively override the Speech in
Debate Clause, its will is ignored in favor of a provision that was
designed to protect legislators from a king, a provision that,
venerable as it may be, the Rhode Island public, if it could vote
directly on it, would almost certainly repeal as it applies to all
ethics and criminal enforcement.<br>
<br>
Here are links to my other blog posts on the Rhode Island case:<br>
<br>
<a href="http://www.cityethics.org/node/562" target="”_blank”">Superior Court Decision</a><br>
<a href="http://www.cityethics.org/node/581" target="”_blank”">Ethics Commission Brief</a><br>
<a href="http://www.cityethics.org/node/746" target="”_blank”">Supreme Court Oral
Arguments</a><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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