In Nevada Legislative Immunity Case, Oral Arguments Raise Some Serious Issues

The oral arguments before the Nevada Supreme Court in the Commission on Ethics v. Hardy appeal are now available in MP3 format, suitable for your media player.

It doesn't look as if the decision will be a good one for government ethics enforcement, certainly at the state level and, perhaps, at the local level, as well.

The big problem is that, where there is a Speech or Debate Clause, at least the limits on an ethics commission's jurisdiction are clear:  it has no jurisdiction over legislators involved in legislative activities. Where, as in Nevada, there is no Speech or Debate Clause, and common-law legislative immunity is not accepted as the basis for determining the ethics commission's jurisdiction, things open up.

The Nevada state senator who brought this case is arguing, through legislative counsel, that the basis for determining the ethics commission's jurisdiction is the state constitution's Separation of Powers clause and a provision on the legislature's right to punish its members for disorderly conduct. Since neither of these limit the legislator's constitutional rights to legislative activity, there is no reason to allow an ethics commission any jurisdiction over the conduct of legislators.

Legislative counsel argues, however, that the state ethics commission still has jurisdiction over legislators when they are not involved in legislative activities. But this is based on legislative immunity, which is not a constitutional protection in Nevada. Legislative counsel has created a confusion of separation of powers, constitutional legislative immunity (which they insist applies in Nevada, although it clearly does not), and common-law legislative immunity.

The reason for this confusion is that institutional waiver is very difficult to prove where there is constitutional legislative immunity, but easy to prove where common-law legislative immunity has only a common-law basis. So the legislature has to argue that the state's legislative immunity is constitutional, or the ethics code would be considered a waiver and the state senator would have no case.

But since there is no legislative immunity in the state constitution, this constitutional right has to be derived from two provisions that are not limited by case law to legislative activity. The legislature, it appears, does not want to be seen as completely taking away the ethics commission's authority, so it is playing a compromise game that confuses the different sorts of protections of legislators.

The justices clearly feel that separation of powers is the most important consideration, and that the ethics commission's authority is unconstitutional under it. Therefore, if they do not accept the legislature's compromise game, the justices might find the entire ethics code unconstitutional as it applies to state legislators. If they do not, they would have to somehow impute legislative immunity into the state constitution or ignore the difference between common-law and constitutional legislative immunity.

Ethics commission counsel brings up the issue of application of separation of powers/legislative immunity rights in California to local legislators, which is relevant because California also does not have a Speech or Debate Clause. Ethics commission counsel feels that the California cases would also apply in Nevada under the state legislature's arguments, and that this would further undermine the ethics commission, which has jurisdiction over local officials. I need to do more research on this important issue before I comment.

Robert Wechsler
Director of Research-Retired, City Ethics

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