Separation of Powers--Legislative Immunity
- Brenda Erickson
- Kae Warnock
- If you have any questions, please contact us in NCSL's Denver office at (303) 364-7700. Also, please email us if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website.
State constitutions typically grant two types of immunities to legislators. One protects speech and debate. The other prevents or limits arrest during the legislative session.
Speech and Debate Immunity
Legislative speech and debate immunity grew out of centuries of struggle between the English parliament and throne. During the 16th and 17th centuries, some English monarchs sought to intimidate legislators--especially those not sympathetic to the Crown's viewpoints--through legal action. The adoption of the English Bill of Rights in 1689 sharply limited this practice by granting immunity to members against civil or criminal action stemming from the performance of their legislative duties. It provided that “the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.”
In America, the constitutions of 43 states provide legislators with a fundamental protection of free speech and debate. This immunity protects legislators from punitive executive or judicial action. The intent is to allow lawmakers to work independently and unimpeded by the threat of intervention from the other branches of government in the discharge of their legislative duties.
Court decisions interpreting the extent of protection afforded by legislative immunity vary. The interpretations have centered on a definition of “legitimate legislative activity.” Such activities extend beyond floor debate and include the act of voting and views expressed in committee deliberations.
Questions remain, however. While legislators are protected from liability, are they also protected from having to testify about their legislative actions? Are legislative documents protected from judicial inquiry? These are just some of the questions that may not be fully resolved as states struggle to balance unencumbered legislative deliberations with more open government under "sunshine" laws and Freedom of Information Acts and new social networking capabilities.
Immunity from Arrest
The framers of the U.S. Constitution recognized the fundamental necessity of protecting members of Congress from arbitrary arrest. While U.S. Constitution Article I, section 6 placed some restrictions on the police or justice to arrest or detain legislators during a legislative session, its protections did not apply to situations involving "treason, felony or breach of the peace." Most state constitutions contain similar provisions.
Questions about arrest immunity often arise. For example, when--and in what situations--does the provision apply? Is protection from arrest removed only for "treason, felony or breach of the peace," or is a broader interpretation of the offenses applied?
General: Silvia, Eric S. Privilege and Immunity: Protecting the Legislative Process, (PPT Presentation, NCSL Legislative Summit, 2016)
Arizona: Arizona Legislative Manual, Legislative Powers, Privileges and Responsibilities, 2003
Colorado: A Look at the Limits of Legislative Immunity, 2014
Georgia: Press release by Speaker Glenn Richardson, Speaker of the Georgia House, "Speaker Richardson Comments on Resignation of Representative David Graves as Chairman of House Regulated Industries Committee," September 2005
Hawaii: Attorney General's Opinion, " Scope of Immunity Conferred by Section 7, Article III, Constitution of the State of Hawaii ," 1987
Minnesota: Wattson, Peter S. and Silvia, Eric S. Legislative Immunity. Senate Counsel & Research, State of Minnesota, July 1, 2016.
Reig, Michael. "Recent Decisions Construing the Speech and Debate Clause of the Wisconsin Constitution," presentation before a joint session of the National Conference of State Legislatures Legal Services, Research Librarians, and Research and Committee Staff Sections, Chicago, September 22, 2005.
Tennessee: Attorney General's Opinion No. 08-128, "Liability of Members of General Assembly for Impeachment or Removal of Judges," 2008
Tennessee: Attorney General's Opinion Opinion No. 02-014, "Legislator’s Oath of Office," 2002
Texas: Attorney General's Opinion 0R2008-01581, "Whether certain information is subject to required public disclosure under the Public Information Act," 2008
Washington: Attorney General's Opinion AGO 1979 No. 1, "Arrest of Legislators for Traffic Offenses," January 1979
Huefner, Steven F. The Neglected Value of the Legislative Privilege in State Legislatures, 45 Wm. & Mary L. Rev. 221 (2003).
Federal: Hutchinson v. Proxmire, 443 U.S. 111 (1979)
Federal: United States v. Brewster (1972)
Federal: Gravel v. United States (1972)
Federal: Doe v. McMillan, 412 US 306 (1973)
Federal: New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Federal: Kilbourn v. Thompson, 103 U.S. 168 (1881)
Louisiana: Copsey v. Baer, 593 So.2d 685 (First Cir. Ct. of Appeal of La. 1992)
Michigan: Wilkins v. Gagliardi, 556 N.W.2d 171 (Ct. of Appeals of Mich. 1996)
New Hampshire: Hughes v. Speaker of the New Hampshire House of Representatives, 876 A.2d 736 (New Hampshire Supreme Ct. 2005)
New York: 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
Pennsylvania. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (Pa. Supreme Ct. 1977)
Tennessee: Mayhew v. Wilder, 46 S.W.3d 760 (Ct. of Appeals of Tenn. 2001)
Wisconsin: 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.
Wisconsin: 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
Wisconsin. State v. Beno, 116 Wis. 2d 122, 341 N.W.2d 668 (1984)
Receiving Information or Recommending Additions
If you have any questions, please contact Brenda Erickson in NCSL's Denver office at (303) 364-7700. Also, please contact Brenda if you would like to recommend legislative resources or case that may enhance the Separation of Powers website.