An Undisciplined Nevada Supreme Court Legislative Immunity Decision

To those who read my recent blog entry, it will come as no surprise that, yesterday, the Nevada Supreme Court unanimously affirmed the District Court's ruling in the Nevada legislative immunity case (the Order of Affirmation, in searchable form, is attached to this blog entry below).

What's most fascinating about this unanimous decision is that it applies constitutional legislative immunity rules regarding core legislative functions and institutional waiver, without there being a Speech or Debate Clause in the Nevada constitution and without mentioning legislative immunity, or any sort of immunity at all.

I want to address one point that I did not consider in my recent blog entry. The Supreme Court depends heavily on the Discipline Clause of the Nevada constitution, which provides for the legislature to "punish" its own members for "disorderly conduct." Not only does the Supreme Court define "disorderly conduct" to include dealing with a conflict of interest, which is stretching the term almost certainly beyond what it was intended to cover. But the Supreme Court also ignores the possibility that the ethics commission could make a finding of violation, recommend a penalty, and let the legislature punish its own.

This seems to be a perfectly reasonable compromise position, based on the language of the Discipline Clause. One has to wonder why the Supreme Court took the Discipline Clause beyond what was necessary, that is, a conclusion that the ethics commission had no right to punish.

What is so interesting about this stretching of the relatively minor Discipline Clause is that the Supreme Court held back on applying the Separation of Powers Clause, which could have allowed the Court to take away all the ethics commission's jurisdiction over legislators. No reason is stated for limiting the removal of jurisdiction only to matters within a legislator's core legislative functions. It is simply assumed that this legislative immunity rule applies to separation of powers issues.

But the real reason appears to be that this is all the legislator in this case asked for. However, if the legislature cannot waive the separation of powers by clearly giving jurisdiction over its ethics to an independent commission, how can one legislator limit the application of the Separation of Powers Clause by not asking for more? This doesn't make any sense to me. This whole thing doesn't make sense to me.

Fortunately, the Supreme Court's decision does not apply to local government ethics commissions. But it is not only of direct concern in states that lack a Speech or Debate Clause in their constitution, because its position on institutional waiver is even stronger than the U.S. Supreme Court's position on institutional waiver of constitutional legislative immunity (see U.S. v. Helstoski, 442 U.S. 477 (1979)). If this muddle-headed Nevada decision were accepted as precedent elsewhere, a legislature could not set up an independent ethics commission even if it stated clearly in the statute that for the purposes of ethics inquiries and enforcement, it was waiving its legislative immunity, and even if every legislator individually waived legislative immunity when he or she took office.

There is no reason or precedent for such a strong position against institutional and personal waiver. And yet not a single justice appears to have considered how radical this decision is.

Robert Wechsler
Director of Research-Retired, City Ethics

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