A poor and disconcerting judicial decision on local legislative immunity came down on May 24 from the U.S. District Court for the District of Kansas, Kickapoo Tribe v. Black.

The tribe made the argument in its brief that a watershed district board's members should not be able to raise a defense of legislative immunity when (1) two of them owned property in the project area under consideration by the board, and (2) board members participated in activities that made them appear to be seriously biased, including, with the aid of the Kansas Farm Bureau, lobbying trips to Washington, D.C., and letter writing campaigns to (a) convince local municipal and county governments to oppose the project, and (b) to sway public opinion against the project.

Last September, I wrote a blog post about the attempt by District of Columbia council members to block a subpoena by employing a legislative immunity defense. The case involves retaliation against a whistleblower who had alleged improper council input in the awarding of a lottery contract.

On Monday, the federal district court for the District of Columbia decided that the council members (one of whom is now mayor) are required to testify about matters relating only to retaliation. However, the basis for this decision was solely that "efforts to exhort" the executive branch do not fit under the D.C. legislative immunity law's definition of "legislative duties."

I did stop and and try to invoke legislative immunity, but the camera would have none of it.

—State senator Steve King of Grand Junction, CO, a career police officer, said jokingly about a red-light-camera ticket he received in Denver. He voted against banning red-light cameras in Colorado's municipalities. From an article in the Denver Post yesterday.

Below is the text of a talk I gave at the Council on Governmental Ethics Laws conference this week. Due to time limitations, I was not able to share this entire text, so even those who heard the talk may want to read this and see what they missed. For those who have been following my posts on legislative immunity, this talk not only brings together a lot of information, but also adds a section on how much of a misnomer "absolute" legislative immunity is.

Another serious problem posed by making a legislative immunity defense in the local government ethics context can be seen from reading the recommendation of the investigating panel of the Stamford (CT) board of ethics. In the section that provides reasons for dismissal of a complaint brought against a council member, the panel wrote:

The case also presents significant legal issues arising from [the respondent's] assertion of legislative immunity and First Amendment protection for his actions.  Whether or not [the respondent's] positions are correct, these issues are likely to result in costly and protracted legal proceedings.  The City will be forced to expend very significant financial resources to pursue this matter not only at the Board of Ethics level, but likely in court as well.

Did you know that the District of Columbia has its own Speech or Debate Clause? I learned this from reading the Motion for a Protective Order on Behalf of Mayor Vincent C. Gray filed on Thursday in the case of Payne v. District of Columbia. Gray, a former council president, is seeking to be protected from testifying in a case involving alleged retaliation against a whistleblower. A principal argument for protection is based on an unusual form of legislative immunity, based on a local ordinance rather than on a constitutional provision or common-law immunity.