Legislative Immunity

It's official:  what differentiates us from chimpanzees is not our intelligence, our ability to deal with the abstract, or our ability to tell jokes. According to the decision of a five-member New York state appellate panel yesterday, "Unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions.

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.

Update: May 27, 2011 (see below)

Last week, I wrote about a temporary restraining order (TRO) placed on the publication of a Wisconsin bill that was allegedly passed in violation of the state's open meetings law. However, the court placing the TRO took four legislative leaders off the complaint on grounds of legislative immunity. Only the secretary of state, who is required to publish a bill in order for it to become law, was left as a defendant.

According to articles on the WKOW TV (Madison, WI)  website, this morning a Wisconsin judge placed a restraining order to stop a controversial budget repair bill from becoming law. The principal cause of action was a violation of the state's open meetings law. However, the names of four legislative leaders were taken off the suit due to their legislative immunity to civil action during the legislative session. Only the secretary of state was left as a defendant.

Here's a curiosity relating to local official legislative immunity. According to an article in statehousenewsonline.com on Friday, Virginia state senator Chap Peterson sponsored a bill to give local officials in Virginia legislative immunity. The bill would have added the following provision to the state code, using the U.S.

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.

I listened yesterday to the testimony of Kevin Powers, a member of the Nevada Legislative Counsel's office, to the House Committee considering the legislative immunity amendment I discussed in yesterday's blog post. He was very impressive, with all the facts and laws at his fingertips. But his defense and explanations fell short of convincing me (but apparently not the legislators) that the amendment is appropriate.

The Nevada legislature is really going out of its way to make sure that its members, and no one else in the state, is protected by legislative immunity with respect to the state ethics commission.

The Nevada legislative immunity appellate briefs have been filed, and they are worth reading for those interested in the intersection between government ethics enforcement and legislative immunity, an intersection where, in the last year, there have been a few collisions harmful to the cause of government ethics. Although this case involves a state legislator, it is in some ways applicable to local government legislators.