Michael Reig

Wisconsin Legislative Technology Services Bureau

September 22, 2005

Legislative Immunity/Privilege Concurrent Session 

Topic:  Recent Decisions Construing the Speech and Debate Clause of the Wisconsin Constitution.

No member of the legislature shall be liable in any civil action, or criminal prosecution whatever, for words spoken in debate.  Wisconsin Const. art. IV, § 16.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.  U.S. Const. art. I, § 6.

State v. Beno

116 Wis. 2d 122, 341 N.W.2d 668 (1984)

Significance of the Case

•          Member allowed to assert legislative privilege to protect his legislative aide from a subpoena compelling the aide to testify.      

Claim

•          Legislative immunity does not protect a legislative aide from a subpoena compelling the aide to appear for a deposition and answer questions involving information the aide uncovered while conducting a legislative investigation at the direction of the member for whom he worked.

           

Court Decision

•          Because of the difference of language between the federal and state

constitutions, a construction of the federal Speech or Debate Clause provides no clear implication as to the meaning of the state clause.

•          The state clause reinforces the separation of powers doctrine, protecting the independent functioning of the legislative branch by preventing interference, intrusion, or intimidation by the other branches.

•          A member may not be compelled to testify to matters within the scope of legislative immunity.

•          The protections of legislative immunity are not limited to words spoken in debate in the Senate or Assembly and extend to matters that are an integral part of the process by which members participate with respect to the consideration of proposed legislation or with respect to other matters which are within the regular course of the legislative process.

•          Because of the complexities of the modern legislative process and members’ increased reliance upon the assistance of employees, a legislative aide’s relationship with the member for whom he or she works creates the realistic possibility that questioning of the aide in a judicial forum might have an inhibiting effect upon the member’s performance and might infringe upon the member’s legislative independence. 

•          When the aide is acting as the member’s alter ego in carrying out activity which is protected by legislative immunity, the aide and the member are treated as one and the member is allowed to assert his or her privilege to protect the aide from questioning.

•          To assert legislative immunity to protect the aide from being compelled to testify, the member must demonstrate that the aide was in fact acting at the member’s request and that the act about which the aide will be questioned falls within the scope of legislative function protected under legislative immunity if performed personally by the member.

•          The privilege of not being compelled to testify is the member’s, not the aide’s, and only the member may invoke the privilege.

•          Legislative immunity is designed to prevent questioning of a member even if the substance of the matter is public information. 

Custodian of Records v. State

2004 WI 65, 272 Wis. 2d 208, 680 N.W.2d 792, reconsideration denied, 2004 WI 149, 277 Wis. 2d 75, 689 N.W. 2d 908.

Significance of the Case

•          Legislative immunity under the Wisconsin Constitution provides only use immunity and not a right to prohibit the production of legislative documents requested by a subpoena duces tecum in a criminal proceeding.   

Claim

•          Legislative immunity prohibits a secret John Doe subpoena duces tecum directed to the custodian of records for the Legislature’s technology services bureau seeking the Legislature’s emergency disaster recovery backup tapes containing all stored email and electronic files of the entire Legislature.

•          The custodian of records for the technology services bureau acts as an aide to all members of the Legislature.

•          The secret subpoena duces tecum is unconstitutional unless members are allowed the right to invoke their privilege to prohibit the questioning of the custodian of records. 

Court Decision

•          The court assumed arguendo that the custodian of records for the technology services bureau could raise the issue of legislative immunity as an aide to the members whose data was sought by the subpoena duces tecum.

•          Legislative immunity exists only to the extent necessary for the adequate functioning of the state legislative body.

•          Legislative immunity does not prohibit disclosure of documents sought by a subpoena duces tecum in a criminal proceeding.

•          Legislative immunity provides only use immunity and not protection from disclosure.  That is, legislative immunity provides protection from prosecution based on documents sought by the subpoena duces tecum, but does not prevent disclose of the documents to the state. 

•          The subpoena duces tecum was quashed on other grounds.

State v. Chvala

271 Wis. 2d 115, 678 N.W.2d 880, 2004 WI App 53, aff’d, 2005 WI 30, 279 Wis. 2d 216, 693 N.W.2d 747 (the Wisconsin Supreme Court affirmed the decision of the Wisconsin Court of Appeals in a two page opinion without legal analysis)

Significance of the Case

•          Personnel decisions made by a member that further legitimate legislative duties are protected by legislative immunity.

•          Hiring, directing, and managing legislative caucus staff to oversee political campaigns is not protected by legislative immunity.

Claim

•          Personnel decisions made by a member involving legislative staff and partisan legislative caucus staff are integral to the legislative process and are protected by legislative immunity.

•          Using partisan caucus staff as political operatives is part of the legislative process and is protected by legislative immunity.   

Court Decision

•          To be protected by legislative immunity, the legislative activity must be related closely to the purposes justifying the protection.

•          Legislative immunity protects members from adverse judgments, whether civil or criminal, and from questioning in judicial proceedings.

•          Legislative immunity forbids judicial scrutiny of a member’s employment decisions that further his or her legitimate duties as a legislator.

•          Political acts are not protected by legislative immunity, only legislative acts receive protection.

•          Directing and managing state employees to engage in private political campaign activity is not activity integral to the legislative process.