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Nevada Senator Given Legislative Immunity from Ethics Commission Jurisdiction
Tuesday, November 25th, 2008
Robert Wechsler
A Nevada court found yesterday that the state ethics commission did not
have jurisdiction over a state senator on grounds of legislative immunity,
even though the state constitution has no Speech or Debate Clause. The
judge gave the senator a preliminary injuction to prevent his having to
appear before the ethics commission next week. No decision is available
yet, but the judge did say that the state constitution would have to be
amended for the ethics commission to have jurisdiction over a state
legislator.
Adriana Fralick, general counsel for the ethics commission, was kind enough to send me, at my request, the senator's motion for a prelimary injunction (it's broken into two searchable PDF files, 1 and 2), the senator's petition for judicial review, and the ethics commission's opposition to the motion for a preliminary injunction.
The ethics commission's opposition points out that at United States v. Johnson, 383 U.S. 169, 185 (1966), the Supreme Court stated, "we expressly leave open
for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members." This certainly seems to apply to an ethics statute. The statute in Johnson was a more generally applicable criminal law.
The opposition also shows that separation of powers issues, which underlie legislative immunity and which were also the basis for a separate argument made by the senator, were considered when the state ethics statute was being debated, because an earlier ethics statute was found to be unconstitutional. Legislative counsel, which represents the senator, felt the statute did not violate the separation of powers.
Finally, unlike in the recent decision in Rhode Island (too recent to be mentioned in the opposition), which found that ethics provisions, even in the state constitutiion, do not take precedence over or constitute an institutional waiver of the constitution's "speeech in debate" clause, here there was no such clause and, therefore, it could more easily be argued that there was indeed an institutional waiver. But the judge didn't seem to buy this.
This could be seen as another nail in the coffin of independent ethics jurisdiction over legislators. But with one decision after the other, this might also get the government ethics community worked up enough to go to work solving this problem. Whether through waivers or constitutional amendments, independent ethics oversight must be ensured. It's what everyone knows is the right way to handle these problems. Legislators cannot police themselves, and even they know that self-policing is more political (and more unacceptable to the public) than independent oversight. Most of the purposes for which the Speech or Debate Clause was created simply do not apply to ethics proceedings, especially when they stick to the civil side of the law.
See a Las Vegas Sun article on the decision, and my first blog entry on the Nevada case.
Robert Wechsler
Director of Research-Retired, City Ethics
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Adriana Fralick, general counsel for the ethics commission, was kind enough to send me, at my request, the senator's motion for a prelimary injunction (it's broken into two searchable PDF files, 1 and 2), the senator's petition for judicial review, and the ethics commission's opposition to the motion for a preliminary injunction.
The ethics commission's opposition points out that at United States v. Johnson, 383 U.S. 169, 185 (1966), the Supreme Court stated, "we expressly leave open
for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members." This certainly seems to apply to an ethics statute. The statute in Johnson was a more generally applicable criminal law.
The opposition also shows that separation of powers issues, which underlie legislative immunity and which were also the basis for a separate argument made by the senator, were considered when the state ethics statute was being debated, because an earlier ethics statute was found to be unconstitutional. Legislative counsel, which represents the senator, felt the statute did not violate the separation of powers.
Finally, unlike in the recent decision in Rhode Island (too recent to be mentioned in the opposition), which found that ethics provisions, even in the state constitutiion, do not take precedence over or constitute an institutional waiver of the constitution's "speeech in debate" clause, here there was no such clause and, therefore, it could more easily be argued that there was indeed an institutional waiver. But the judge didn't seem to buy this.
This could be seen as another nail in the coffin of independent ethics jurisdiction over legislators. But with one decision after the other, this might also get the government ethics community worked up enough to go to work solving this problem. Whether through waivers or constitutional amendments, independent ethics oversight must be ensured. It's what everyone knows is the right way to handle these problems. Legislators cannot police themselves, and even they know that self-policing is more political (and more unacceptable to the public) than independent oversight. Most of the purposes for which the Speech or Debate Clause was created simply do not apply to ethics proceedings, especially when they stick to the civil side of the law.
See a Las Vegas Sun article on the decision, and my first blog entry on the Nevada case.
Robert Wechsler
Director of Research-Retired, City Ethics
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