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

The Nevada legislative immunity opinion has come down. It's in two parts, searchable, 1 and 2. There's also a Las Vegas Review-Journal article 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 the state constitution 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):


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:


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.

The Ethics in Government Act clearly provides for jurisdiction over legislators, and even limits this in the very first section:


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:


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 Review-Journal article, 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

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