Tuesday, June 30, 2009

High Court Rules for Irons


PROVIDENCE — In a case likely to have profound implications for government ethics and reform for years to come, the Rhode Island Supreme Court, by a 3-1 vote, has reaffirmed that General Assembly members have “absolute” immunity from questioning “by any other branch of government” about their votes and other legislative business.

To the dismay of good-government groups, the high court upheld a decision issued late last year by Superior Court Judge Francis Darigan that said former Senate President William Irons could not be called to account by the Rhode Island Ethics Commission for voting on a bill in 1999 and 2000 that affected two of the clients of his private insurance company, CVS and Blue Cross/Blue Shield of Rhode Island,
In an unusual wrinkle, all three justices on the prevailing side — Justices Francis Flaherty, William Robinson and retired Chief Justice Frank Williams — claimed co-authorship of the majority opinion in the most closely watched case in this court session. In most cases, one justice is assigned to put the court’s decision into words. Justice Paul Suttell, soon to become the Chief Justice of the court, signed his own dissent. Acting Chief Justice Maureen McKenna Goldberg recused from the case, citing a friendship with Irons’ wife, Mary.
Robert Arruda, the Operation Clean Government member who, along with Beverly Clay, brought the original ethics complaint against Irons in 2004, called the court’s decision “appalling,” saying it “ignores the rule of the people.”
Irons said it is proof that “our society gets it right. In the long run, the majority of people see it, follow it (and) understand it.
“I don’t know what else (someone) would need to believe in my innocence,” Irons told The Times shortly after the decision was announced. “I am at peace, and I know that I never did anything wrong. And I’m happy this day has come.”
Asked about a possible public perception that he “got away with something,” Irons acknowledged, “I know there will always be people who say that. For some people, someone being exonerated is not enough, but the U.S. Attorney and the Justice Department spent years of grand jury time and eventually concluded there was nothing to follow. I don’t know what more anyone can say.”
In a sense, the court found itself at the point of collision between the irresistible force of a 1986 constitutional amendment that called for all elected officials to be accountable to state ethics law and the immovable object of a “speech in debate” clause with roots in 15th century English common law that provides legislators immunity from encroachment by other branches of government. Irons and his attorneys argued the speech in debate clause while Ethics Commission attorney Jason Gramitt asserted that voters changed the constitution to hold legislators accountable for misbehavior and that intent should trump the immunity.
In the eyes of three of the four justices, the speech in debate clause won
“We cannot accept an invitation to read into the Ethics Amendment an unexpressed repeal of such an ancient and venerable hallmark of our form of government as is the immunity provided in the speech in debate clause without a clear and explicit directive for such an exception in the language of the Ethics Amendment itself,” the 18-mage majority decision states. “Because no such language is present, we decline to recognize any partial repeal of speech-in-debate immunity.
“Because we hold that the Ethics Amendment does not create an exception to the speech in debate clause and, because the alleged actions of Senator Irons were core legislative acts entitled to speech-in-debate immunity, we hold that the Ethics Commission may not question him with respect to those acts,” the ruling continues. “We do not accept the Ethics Commission’s argument that such a holding on our part emasculates the entire Code of Ethics with respect to members of the General Assembly. Indeed, the Ethics Commission remains responsible to enforce the Code of Ethics against legislators when they are engaged in activities other than core legislative activities.”
Among the activities for which lawmakers can be held to account the court listed were “speeches delivered outside of the legislature; political activities of legislators; undertakings for constituents; assistance in securing government contracts; republication of defamatory material in press releases and newsletters; solicitation and acceptance of bribes; and criminal activities, even those committed to further legislative activity.”
Agreeing with the majority that the two constitutional provisions “stand in diametrical opposition to each other,” Suttell in his dissent came down on the side of the 1986 Ethics Amendment.
“In light of the very specific intent of the framers to adopt a comprehensive ethics amendment and in view of the history of the times and the state of affairs in 1986, it is my opinion that the express application of the ethics amendment to “[a]ll elected * * * officials” necessarily implies a limitation on the full reach of the speech in debate clause. In other words, I would hold that in matters concerning the ethical conduct of legislators the ethics amendment creates a narrow exception to the immunity historically adhering to legislators in the performance of their legislative activities.
“Such a construction of our constitution, I believe, gives greater effect to the intent of the convention delegates and electorate in 1986 than an interpretation that places legislators beyond the reach of the ethics commission for violations of the code of ethics with respect to their performance of legislative activities,” Suttell wrote. “It would also preserve the full measure of protections accorded legislators by the speech in debate clause as to questioning from any person or entity except the ethics commission.”
The justices seemed to hint at an invitation of their own, for voters to once again amend the constitution to reverse the court’s ruling.
“If the citizens of Rhode Island wish to empower the Ethics Commission to investigate and prosecute legislators with respect to their legislative actions, notwithstanding the operation of the speech in debate clause, they most certainly have the power to do so,” the decision states.
Arruda said the ruling represents “a dark day for Rhode Island, and Rhode Island is already suffering through pretty dark days. It’s a terrible, terrible decision. It gives the General Assembly carte blanche.”
A new constitutional amendment, as suggested by the court “is absolutely necessary here,” Arruda said, while at the same time worrying that attempting to get one passed would be “an exercise in futility. I don’t see it happening. It is very depressing.”
Gramitt, the Ethics Committee attorney, took the ruling in stride, although he did allow “we hoped for a different result.”
He said the significance of the decision is that “it removes such a visible aspect of our enforcement authority. These types of cases are the ones that bring out the reporters and TV cameras, so it is what people think about when they think of our cases. But in fact those kinds of cases against legislators are a small part of what we do. It’s high-profile and significant, but maybe 1 percent of what we do.”
Ethics Commission Chairman Barbara Binder said the court “has taken away a critically important tool in the Ethics Commission’s arsenal for ensuring that legislators engage in the highest ethical standards.
John Marion of Common Cause of RI “will spend much of its time” in the near future, advocating for a constitutional amendment to make the Ethics Amendment apply to legislators, the speech in debate clause notwithstanding. He noted there is already language for a proposed constitutional amendment introduced in the House of Representatives by Rep. David Segal of Providence that would do just that.

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