Senator Montalbano's Flawed Defense, Part 1

Rhode Island Senate President Joseph Montalbano wants four of the charges brought against him by the Rhode Island Ethics Commission thrown out on the grounds that "members of the General Assembly cannot be prosecuted for an offense based on a past legislative act such as voting". The legal claim is based on the "speech-in-debate" clause in the Rhode Island Constitution, the last sentence of Article VI, section 5…

The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place.

Talking to Projo columnist Charles Bakst, Senator Montalbano's defense counsel Max Wistow explained how broad he believes the immunity privilege to be…

Montalbano is accused of a conflict for voting to support legislation for a West Warwick casino while doing legal work for the town involving land abutting the proposed site.

The commission plans a trial-like hearing in six weeks, but Wistow wants a court to block it…Under his view about votes themselves being off limits, Wistow says you could still prosecute a legislator if, for instance, you could show he agreed to take a bribe. But, I asked after Tuesday’s commission session, suppose he hadn’t plotted with anyone? Suppose he sought to make a buck by, say, voting to sell the state a building he owns?

Wistow said the solution is for voters to throw the guy out in the next election. Or delete the Constitution’s speech-in-debate provision, something I wouldn’t hold my breath waiting to happen.

Speech-in-debate immunity is an aspect of the doctrine of separation of powers, inserted into both the state and the Federal Constitution to prevent the executive and judicial branches of government from improperly interfering with the workings of the legislature by using criminal or civil charges to punish legislative debate.

According to briefs filed in this case, the key ruling establishing the scope of speech-in-debate immunity was the 1972 United States Supreme Court case United States v. Brewster (introduced to Rhode Island law via the State Supreme Court decision in the 1984 case of Holmes v. Farmer). In Brewster, the court held that a legislator could not be questioned about his votes, even when compelling other evidence existed indicating that he or she had accepted bribes…

It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts.

The response from the Ethics Commission to Senator Montalbano's claim that floor-actions of legislators are immune from Ethics Commission scrutiny rests heavily on the "unique constitutional mandate" (a phrase taken from the Ethics Commission brief) of the RI Ethics Commission. Under the Rhode Island Constitution, the Ethics Commission does not truly belong to the legislative, executive or judicial branches of government, but is built from an amalgam of functions that have been separated from their "natural" branches of government and united under the Commission. Because of its special nature, the Commission's lawyers argue that Ethics Commission proceedings do not constitute executive or judicial interference with the legislative branch, and that…

1. Ethics commission proceedings do not come into conflict with the speech-in-debate clause, and...
2. In the absence of such a conflict, there is no basis for the courts (or anyone else) to override the clear intent of the people expressed via the 1986 Constitutional Convention that subjected legislators to the jurisdiction of the Ethics Commission.

Even in the absence of any unique Constitutional standing, however, Senator Montalbano's claim of immunity would still be very weak, as the the Brewster precedent cited by Senator Montalbano’s defense team does not apply to the laws relevant to this case. We know this because the Supreme Court has said so....