Larry Shapiro
Connecticut General Assembly
September 22, 2005

Legislative Immunity/Privileges Concurrent Session 

Topic:  Application of Speech or Debate Clauses to state Freedom of Information Laws

I.   Introduction

·        Issues

·        Connecticut's experience

·        Summary of conclusions

II.   Cases applying speech or debate clauses to state freedom of information laws

III.  Does a state freedom of information law act as a waiver of the speech or debate clause?


(1)  Consumers Education and Protective Association v. Nolan

            (470 Pa. 372, 368 A.2d 675 (Pa. Supreme Ct. 1977))

Significance of the case:

  • Court held that the Pennsylvania Speech or Debate Clause prohibited enforcement of the Pennsylvania Sunshine Law against Pennsylvania state legislators.

Plaintiffs' claim:

  • That the Senate Rules and Executive Nominations Committee violated the Sunshine Law by failing to provide public notice of a meeting to vote on a gubernatorial nomination.
  • Sought order declaring that (1) the committee vote on the nomination was illegal and invalid under the Sunshine Law and (2) the subsequent Senate confirmation vote was also invalid.
  • The complaint was brought against the Senate chairman of the committee and the Lieutenant Governor (Senate President). 

Court decision:

  • Speech or Debate Clause of the Pa. Constitution "is essentially identical to and obviously derived from the Speech and Debate Clause in Article I, Section 6 of the Federal Constitution". 
  • Therefore looked to the standard established by the United States Supreme Court:  "a court must determine if [legislative activity] falls within the 'legitimate legislative sphere'; if it does, the action against the legislator calling it into question, whether civil or criminal, must be dismissed."  (p.681)
  • Committee and Senate confirmation votes were "clearly within the 'legitimate legislative sphere'".  (p.681)
  • Upheld dismissal of action against committee chairman and Lieutenant Governor (Senate President).

(2)  Mayhew v. Wilder

            (46 S.W.3d 760 (Ct. of Appeals of Tenn. 2001))

Significance of the case:

  • Court held that the Tennessee Speech or Debate Clause prevents the courts from reviewing decisions of the Tennessee General Assembly to hold closed sessions, including decisions made pursuant to the state constitution.

Plaintiffs' Claim:

  • That the houses and separate and joint committees of the General Assembly held closed sessions in violation of the Tennessee Open Meetings Act and the Tennessee and United States Constitutions.
    • Applicable Tennessee constitutional provision:  "The doors of each House and of committees of the whole shall be kept open, unless when the business shall be such as ought to be kept secret."
    • Plaintiffs:  "even if the Legislature has a limited right to hold closed sessions under [this constitutional provision], that right must be exercised sparingly and is subject to judicial review". 
  • Sought declaration that budget and revenue bills were void because they resulted from these closed sessions.
  • The complaint was brought against the leaders of both houses and all other members of the General Assembly.   

Court decision (re Tenn. constitutional open meetings provision):

  • Tenn. speech or debate clause is almost identical to the federal speech or debate clause.  Therefore relied on cases interpreting the federal clause.
  • Also relied on common law immunity of state legislators from liability for legislative acts, as recognized by the U.S. Supreme Court.  (Tenney v. Brandhove, 341 U.S. 367 (1951))
  • Court observation:  "Of all the immunities enjoyed by government officials the legislative immunity is perhaps the most sweeping and absolute."  (p.774)
  • Court holding:  "a legislator's immunity from suit when performing his or her legislative duties prevents the courts from making the Legislature justify its decision to hold closed sessions."  (p.775)
  • The court dismissed the complaint, citing other constitutional grounds as well.

(3)  Copsey v. Baer (593 So.2d 685 (First Cir. Ct. of Appeal of La. 1992))

·        Claim:  That the Administrator of Research Services of the Louisiana Legislature denied a request for copies of legislative drafting files concerning bills sponsored by two Louisiana legislators, in violation of the public records provisions of the Louisiana constitution. 

·        Court:  The Speech Clause of the Louisiana Constitution prohibited enforcement of a later enacted public records constitutional provision with regard to the legislative drafting files.  The files were at the "very core of the legislative process" and therefore were "legislative acts" protected by the Speech Clause.  (p.689)

(4)  Wilkins v. Gagliardi (556 N.W.2d 171 (Ct. of Appeals of Mich. 1996))

·        Claim:  That the chairman of the Michigan House Oversight Committee denied a request for permission to videotape a meeting of the committee, in violation of the Michigan Open Meetings Act.

·        Court:  The committee chairman was entitled to immunity under the Speech or Debate Clause of the Michigan Constitution.  "When defendant had plaintiffs' camcorder removed, he was acting as the chairman of the committee as it was conducting legislative business and was, therefore, immune."  (p.177)  (See further discussion of this case under the Waiver section.)

(5)  Uniontown Newspapers, Inc. v. Roberts  (839 A.2d 185 (Pa. Supreme Ct. 2003))

·        Claim:  That a Pa. state legislator denied a newspaper's request for copies of records of his telephone calls which he had submitted to the House of Representatives for reimbursement.  The newspaper alleged that the legislator's denial (1) violated its equal protection rights because the legislator provided copies of these records to other media outlets and  (2) was in retaliation against the newspaper for exercising its First Amendment rights in its reporting re the legislator.  (Note: The newspaper pursued constitutional claims for disclosure because the Pa. Right to Know Act applies only to the executive branch.)


·        Court:  No Speech or Debate Clause immunity for the legislator because the legislative activity –- transmission of information by the legislator --  was not within the "legitimate legislative sphere".  The court followed federal court interpretations: "Under the federal clause, individual discriminatory and retaliatory distribution of records by a legislator are not protected legislative activities, and the Speech or Debate Clause does not immunize them."  (p. 195) (Remanded to lower court for further proceedings.)

(6)  Hughes v. Speaker of the New Hampshire House of Representatives (876 A.2d 736 (New Hampshire Supreme Ct. 2005))

·        Claim:  That the speaker, Senate president, legislature and a conference committee violated constitutional right-to-know provisions by excluding legislator and the public from separate meetings of the House and Senate conferees. 

·        Court: Because defendants did not seek immunity from suit under the N.H. Speech or Debate Clause, the court did not decide whether plaintiff's claims were nonjusticiable under the clause.  However, the court acknowledged that "the clause potentially makes the plaintiff's claims nonjusticiable" (p. 750) and appeared to balance the clause, along with another constitutional provision, against the public's right of access and held for the legislature.  


       (an "institutional waiver")

(1)  Excerpt from Ct. Freedom of Information Act threshold definition:

         "Public agency" means any executive or legislative office of the state and any state agency, department, institution, bureau, board, commission, authority or official of the state, including any committee of, or created by, any such office, agency, department, institution, bureau, board, commission, authority or official."  (C.G.S. sec. 1-200(1))(condensed, underlining added)

(2)  Case law note:  State case law on institutional waivers is limited; best guidance provided by U.S. Supreme Court decisions on speech or debate clause waivers generally.

(3)  Argument in favor of upholding institutional waivers of the clause:

·        "[B]y enacting 18 U.S.C. sec. 201 [bribery statute], Congress has shared its authority with the Executive and the Judiciary by express delegation authorizing the indictment and trial of Members [of Congress] who violate that section – in short an institutional decision to waive the privilege of the Clause." (from the Government's argument in United States v. Helstoski, 442 U.S. 477, 486-487 (1979)

(4)  U.S. Supreme Court distinction between a general statute and a narrowly-drawn statute:  A general statute that applies to any "person" or "public official" is not a waiver of the clause; the clause prevails over the statute.  In the case of a narrowly-drawn statute that applies to a "legislator", the court may consider a waiver argument but the standard for proving a waiver is very high.

(5)  Case concerning a general statuteTenney v. Brandhove, 341 U.S. 367 (1951)

·        Suit brought against state legislator under 8 U.S.C. sec. 43, which provides:

"Any person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects… any citizen of the United States… to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured…" (p.369, underlining added)

·        Supreme Court:

"Did Congress by the general language of its 1871 statute [codified at 8 U.S.C. sec. 43] mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here?  Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity?…We cannot believe that Congress – itself a staunch advocate of legislative freedom – would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us."  (p.376, underlining added)

·        Supreme Court's conclusion:  This statute does not create civil liability for the state legislator.  Common law legislative immunity prevailed over the statute.

(6)  Case concerning a narrowly-drawn statute: United States v. Helstoski

·        Former Congressman charged with conspiracy to violate official bribery statute (18 U.S.C. sec. 201) while in office.  The statute prohibited "public officials" from seeking or accepting anything of value in return for an official act.  The definition of "public official" included "Member of Congress".

·        Supreme Court:

o       Declined to rule on whether Congress as a body had power to strip individual members of legislative immunity.

o       The Court only assumed that Congress had this power.

o       Standard established by the Court for upholding an institutional waiver:

"Assuming, arguendo, that the Congress could constitutionally waive the protection of the Clause for individual Members, such waiver could be shown only by an explicit and unequivocal expression." (p.493, underlining added)

o       The Court found no evidence of such a waiver in the language or the legislative history of the bribery statute.

o       The standard of "explicit and unequivocal expression" appears to mean a waiver that specifically cites the Speech or Debate Clause, not just language that specifically applies the statute to Members of Congress.  The court noted that the legislative history of the bribery statute "reveal[s] no discussion of the speech or debate privilege."  (p.493)

o       The Court held that evidence of a legislative act by a Member of Congress may not be introduced by the Government in the prosecution of the Member under the bribery statute.

(7)  State Freedom of Information Act waiver cases

·        Wilkins v. Gagliardi (556 N.W.2d 171, Ct. of Appeals of Mich. 1996) (case summarized above on page 4)

 The court relied on Helstoski in deciding that the Michigan Open Meetings Act did not constitute a waiver of the speech or debate clause.  The Michigan court applied the test established by the Supreme Court in Helstoski, finding that  "Nowhere in the OMA [Open Meetings Act] is there a provision that expressly and unequivocally waives the Speech or Debate Clause protection for legislators."  (p.178, emphasis added)  However, the Michigan court appears to have applied this test differently than the Supreme Court.  The Michigan court looked for a waiver in the form of language in the definitions of the Open Meetings Act that specifically included legislators (and not finding it), rather than looking for language in the OMA or its legislative history that specifically referenced and waived the Speech or Debate Clause.

·        Campaign for Fiscal Equity v. State (687 N.Y.S.2d 227, Supreme Court, New York County, N.Y. 1999, aff'd 697 N.Y.S.2d 40, Supreme Court, Appellate Division, N.Y., 1999)

The case concerned whether contacts between a state education employee and legislative officials and staff could be disclosed.  The plaintiffs claimed that the legislature waived its common law legislative immunity by adopting rules pertaining to the disclosure of legislative documents.  The lower court rejected the argument:  "the common law privilege belongs to individual legislators, and not the legislature as a whole, so the cited rules cannot waive a legislator's privilege with respect to documents that she considered during the course of drafting or evaluating legislation." (Supreme Court, N.Y. County, p.232)  The court issued a protective order barring disclosure of the contacts and the decision was affirmed on appeal.

(8)  Conclusion:   The reluctance of courts to accept a waiver argument underscores the broad scope and application of speech or debate clauses.