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A Limit on the Use of the Legislative Immunity Defense
Monday, August 16th, 2010
Robert Wechsler
The defense of legislative immunity is not limited to city councilors and county
commissioners. It also can be used by non-legislative officials acting in a
legislative way. It may be used by planning and
zoning board members and officials, school board members, and a variety
of other officials involved in the creation of legislation or who act in a legislative manner.
Here's an interesting case of a non-legislative official trying out a defense of legislative immunity and, fortunately, failing. The official is none other than one of the judges in the infamous Luzerne County case, where two judges were involved in putting children in juvenile detention facilities for the judges' own financial benefit (see my first blog post describing the situation).
According to an article last week in the Legal Intelligencer, the judge, acting as his own attorney, argued that "some of the allegations lodged against him stemmed from the funding decisions he made in his role as president judge." The court didn't buy the argument: "It does not appear that Conahan had the type of general policy-making power that would cloak his actions with legislative immunity." But this is an ambiguous standard that judges could certainly disagree about.
The court did find that the judges were protected by the doctrine of absolute judicial immunity. According to the article, the court determined that the plaintiff could not "pursue any claim that is premised on a theory that Conahan and Ciavarella did not act as impartial judges, failed to advise juveniles of their right to counsel or failed to determine whether guilty pleas were knowing and voluntary," even though it appears that the judges did all of these horrible things. Fortunately, the court found that "many of the actions taken by Conahan were not of a judicial nature."
It's hard to imagine that judges would have the temerity to argue for immunity after what they did. The legislative immunity defense in a non-ethics contexts might make a lot of sense, but in an ethics context it is sometimes the last refuge of a scoundrel.
Robert Wechsler
Director of Research-Retired, City Ethics
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Here's an interesting case of a non-legislative official trying out a defense of legislative immunity and, fortunately, failing. The official is none other than one of the judges in the infamous Luzerne County case, where two judges were involved in putting children in juvenile detention facilities for the judges' own financial benefit (see my first blog post describing the situation).
According to an article last week in the Legal Intelligencer, the judge, acting as his own attorney, argued that "some of the allegations lodged against him stemmed from the funding decisions he made in his role as president judge." The court didn't buy the argument: "It does not appear that Conahan had the type of general policy-making power that would cloak his actions with legislative immunity." But this is an ambiguous standard that judges could certainly disagree about.
The court did find that the judges were protected by the doctrine of absolute judicial immunity. According to the article, the court determined that the plaintiff could not "pursue any claim that is premised on a theory that Conahan and Ciavarella did not act as impartial judges, failed to advise juveniles of their right to counsel or failed to determine whether guilty pleas were knowing and voluntary," even though it appears that the judges did all of these horrible things. Fortunately, the court found that "many of the actions taken by Conahan were not of a judicial nature."
It's hard to imagine that judges would have the temerity to argue for immunity after what they did. The legislative immunity defense in a non-ethics contexts might make a lot of sense, but in an ethics context it is sometimes the last refuge of a scoundrel.
Robert Wechsler
Director of Research-Retired, City Ethics
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