April 24, 2009

The ACLU is Wrong on Legislative Immunity

Carroll Andrew Morse

The Rhode Island Chapter of the American Civil Liberties Union has filed a legal brief supporting former Senate President William Irons’ claim that the Rhode Island Constitution's Ethics Amendment cannot be applied to the official acts of state legislators, because such an application would conflict with “speech-in-debate” immunity also granted to legislators at the Constitutional level.

However, the ACLU's brief (as well as in much other discussion on this issue) ignores an basic facet of the law being considered in this case, that in its rulings on speech-in-debate related issues, the United States Supreme Court has expressly declined to extend legislative immunity to laws intended to regulate legislative conduct (short version of the history available here, longer version available here). The people of Rhode Island, in the 1980s, chose to step into this unresolved area of the law and settle the issue of what the limits on legislative immunity are through a Constitutional amendment, the most definitive mechanism of government that is possible. Since the Constitutionality of laws regulating legislative conduct had been expressly left open by the Supreme Court, no conflict with the speech-in-debate clause requiring an alteration of the plain meaning of the Ethics Amendment can have been created.

The ACLU's brief warns of dire consequences, if the applicability of the Ethics Amendment to the official acts of legislators is upheld…

In sum, there are no acceptable limits to the Ethics Commission’s “implied limitation” argument, and it should be rejected for this reason alone. This Court, therefore, cannot, should not, and must not allow the Ethics Commission to drag this State into such uncharted territory...

At best, the Ethics Commission’s argument that the Ethics Amendment impliedly limited the Speech in Debate Clause is a launch down a slippery slope of eroding the civil liberties of all Rhode Islanders who come before the Ethics Commission, not just Mr. Irons.

This conclusion completely misses the most important issue at stake; it is the Rhode Island Superior Court's decision that judicial opinions based on non-existent precedent outrank plain Constitutional language that is dragging the state towards uncharted territory.

But should we really be surprised that the ACLU has a blind spot when it comes to defending nearly unlimited powers for the judicial branch of government?

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I only have one question and it would apply to the ACLU regardless of the topic.

Is there a way to file a writ to stop the ACLU from serving as a mouthpiece for left wing nutjobs?

They are so far left that if they went right for a day or two, they wouldn't even approach the definition of a liberal.

Posted by: Roland at April 24, 2009 5:30 PM

"an basic facet of the law being considered in this case, that in its rulings on speech-in-debate related issues, the United States Supreme Court has expressly declined to extend legislative immunity to laws intended to regulate legislative conduct"

So this matter is already settled by the highest court in the land. How in the world did Judge Darrigan reach this clearly erroneous decision?

Posted by: Monique at April 24, 2009 6:02 PM

It's not quite that bad. By declining to extend, I mean that while the Supreme Court has gone out of its way to state that its speech-in-debate rulings do not imply that legislators cannot be prosecuted for their official acts under laws specifically intended to regulate legislative conduct, the Court has also never issued a ruling directly affirming the Constitutionality of a law intended to regulate legislative conduct.

But -- as is sometimes forgotten -- courts don't have the only say in our system of government.

When Rhode Islanders approved the Ethics Amendment in 1986 and created a body at the Constitutional level with the singular purpose of regulating the conduct of government officials, they answered the question that the courts had deferred, as to what mechanism was acceptable for regulating legislator conduct.

The judiciary doesn't get go back now and declare that speech-in-debate immunity should have been extended further than it was in the first place, so therefore the plain language of a Constitutional amendment must be ignored, in order to make the amendment fit with a ruling that was never made, but that the judge probably would have been alright with if it had been.

Posted by: Andrew at April 24, 2009 7:42 PM

I'd love to see Irons tried on ethics charges as much as anyone, but I side with the ACLU on the basis that if you're going to prosecute public officials based on how they vote, we're heading down a slippery slope to totalitarianism.

Posted by: rhody at April 24, 2009 10:23 PM
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