June 30, 2009

RI Supreme Court to the People of Rhode Island: We Think Legislative Immunity Needs to be Broader Than You Realize, So We're Going to Ditch the Plain Meaning of that Constitutional Amendment You Passed

Carroll Andrew Morse

In the Rhode Island Supreme Court's ruling in the case of Irons v. RI Ethics Commission, three justices of the Rhode Island Supreme Court defied very clear precedent in order to replace the plain meaning of the state Constitution with their own view of what the law regarding the ethical conduct of legislators should be, based on a belief that legislators should have immunity for "core legislative acts" that is more broad than what the people of Rhode Island are willing to provide. What had been specified by the people via Constitutional Amendment has thus been scaled back, for not being in harmony with what the judiciary thinks is best.

Yesterday's ruling ignored the fact that the United States Supreme Court had repeatedly and explicitly declined to extend legislative immunity to laws specifically intended to regulate legislative behavior prior to the ratification of the Rhode Island Ethics Amendment in 1986, in the 1966 case of United States v. Johnson

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.
...and in the 1972 case of United States v. Brewster
The [Johnson] opinion specifically left open the question of a prosecution which, though possibly entailing some reference to legislative acts, is founded upon a "narrowly drawn" statute passed by Congress in the exercise of its power to regulate its Members' conduct.
...both of which were used to define the scope of legislative immunity in Rhode Island law (via the 1984 case of Holmes v. Farmer).

It is an affront to the principles of self-government and the rule of law for judges to invalidate a Constitutional Amendment that filled an ambiguous area of Constitutional law, based on judges' granting themselves the power to extend previous court rulings beyond their original scope and asserting that that power outranks the actual amending of the Constitution by the people.

Adding insult to injury, the Court's explanation of its judge-manufactured rules that, for the moment, trump the plain meaning of the State Constitution is not coherent. The Court claims that legislators are not really immune from violating the Code of Ethics -- except when they are…

We wish to stress in the strongest possible terms, however, that it in no way grants a legislator the right to transgress the Code of Ethics or any other law. Legislators are held accountable for violations of the Code of Ethics, and they are not immune for actions which violate that code. The only exceptions are those in which the speech in debate clause of the constitution is implicated. The immunity afforded merely precludes the Ethics Commission from prosecuting within a narrow class of core legislative acts.
To understand the imprecision of the reasoning above, consider a hypothetical legislator who holds a position on the House or Senate Finance Committee that allows him or her control the flow of legislation. Suppose this legislator comes out and says "I'm not going to ever vote for tax deals with any company that doesn't throw some business my way."

That is now protected behavior in the state of Rhode Island, for which a state legislator is immune.

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Great post, Andrew.

Adding more insult to more injury, this ruling applies to criminal prosecution as well. Even though other evidence can be brought to bear, in the end, how can you get a conviction if you cannot demonstrate in the courtroom the "quid" (the vote) part of the quid pro quo?

Posted by: Monique at June 30, 2009 2:49 PM
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