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RELACS Report | Winter 2020-21

December 3, 2020

NCSL’s Bill Information Service (BIS)

By Amber Widgery

NCSL has partnered with LexisNexis State Net to provide legislators and legislative staff access to NCSL’s Bill Information Service (BIS), a 50-state searchable legislation database containing the full text of every bill in the 50 states, the District of Columbia and Congress for the current session. You can also search the bill archive for legislation in previous sessions going back more than a decade.

What does the BIS do?

You can search current session or historical bills by bill number, term or phrase, author or sponsor or location/state. You can term-search within your results or sort by status, legislative stage or content type.

Bills, amendments, executive orders and ballot measures are all included in the BIS. Information on bill status is updated throughout the day and search results can be emailed with links to the most recent bill text.

How else can the BIS be used?

The BIS also provides additional legislative resources, such as session calendars and deadlines, weekly session schedules with links to upcoming committee hearings, bill resources and summaries, and other state-specific resources such as session statistics, code impacts of a bill and elections calendars.

How do I access the BIS?

You must have an NCSL account and be logged into the NCSL website to access the BIS here. Register for an upcoming live training on how to use the BIS here.

The Applicability of Common Law Privileges in Legislative Hearings

By Frank Arey, Legal Counsel, Arkansas Legislative Audit

While the recent decision in Trump v. Mazars USA is worthwhile reading for legislative attorneys, one questionable statement in the majority opinion should be handled with care. Addressing the privileges available to recipients of Congressional subpoenas, the opinion states: “And recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications....”

Evaluating that statement requires some understanding of both constitutional and common law privileges. What are they, and how were they created?

Constitutional privileges include protections such as the right against self-incrimination contained in the Fifth Amendment. These privileges are based on constitutional language, structure, or principles. This aspect of the quoted statement is not controversial: witnesses in congressional hearings are entitled to assert applicable constitutional privileges.

Common law privileges are a different matter. These privileges are judicial creations, not based in constitutional provisions. They are designed to protect confidential communications between parties in certain relationships, such as the attorney-client, doctor-patient, and spousal privileges.

Congress has long maintained that it is not required to respect common law privileges asserted by witnesses. Discretion to require testimony or materials despite common law privileges rests entirely with Congress, since courts cannot dictate Congress’s rules of proceedings. As Andy Wright observed,

In sum, the Supreme Court’s assertion in Mazars that it has “long been understood” that parties retain common law privileges in congressional investigations is not supported by Congress’s historical practice, litigation precedent, legal advice provided clients by the private bar, or bar association concerns about Congress’s dismissiveness of these privileges.

The majority opinion statement that witnesses can use common law privileges in  has been criticized as a “small, inaccurate assertion” ignoring “stacks of contrary evidence”; as “poorly researched”; and as “easily cast as dicta.”

How should you respond, if a witness asserts a common law privilege in response to a legislator’s question during a hearing? It always helps to know if the courts of your state have addressed this issue. Some state courts appear at least open to allowing the assertion of common law privileges in legislative proceedings, perhaps balancing the asserted privilege against the legislative need for information.

What if your state has no controlling law on this topic, and the reluctant witness relies on the Trump v. Mazars majority opinion statement? The summary above identifies a number of problems with the statement: it is contradicted by congressional practice and precedent, poorly researched, and characterized as dicta (that is, it is not essential to the decision reached in the case, and therefore of perhaps limited value). But there is another argument against the majority opinion statement, which may be useful if your courts have not addressed the matter, or if they have not considered this particular argument.

In 49 state constitutions, each legislative chamber is granted the power to adopt its own rules of proceeding (only North Carolina’s constitution lacks such a provision). For example, the Arkansas constitution provides that “[e]ach house shall have power to determine the rules of its proceedings....” The term “rules of proceeding” has been interpreted broadly, to include internal operating procedures which may apply to the exercise of any power, transaction of any business, or performance of any duty conferred by the state constitution.

Under these “rules of proceeding” provisions, it is entirely a legislative prerogative to make, interpret, and enforce procedural rules, all without judicial interference unless another constitutional provision is offended. As the Supreme Court of Florida noted in Moffitt v. Willis, “It is the final product of the legislature that is subject to review, not the internal procedures.”

Of course, common law privileges aren’t grounded in state constitutions – they are judicial creations, perhaps codified, that are designed for use in judicial proceedings. In another context, the Arkansas Supreme Court observed that “the attorney-client privilege, A.R.E. Rule 502, is an evidentiary rule limited to court proceedings. It has no application outside of court proceedings....”

Thus, when presented with the Trump v. Mazars majority opinion statement supporting use of a common law privilege in a legislative hearing, respond with reference to your legislature’s power to adopt its own rules of proceeding under the state constitution. Common law privileges are judicial creations meant for judicial proceedings. Courts should not interfere with the legislative prerogative to establish legislative rules of proceeding, by requiring compliance with judicial common law privileges.

A couple of Congressional Research Service publications are worth quoting on this point, because they provide support for state-level arguments in favor of the legislative power to set rules of proceedings. The CRS Congressional Oversight Manual notes:

... Although CRS found no court case directly on point, it appears that congressional committees are not legally required to allow a witness to decline to testify on the basis of these other, similar testimonial privileges. In addition, the various rules of procedure generally applicable to judicial proceedings, such as the right to cross-examine and call other witnesses, need not be accorded to a witness in a congressional hearing. The basis for these determinations is rooted in Congress’s Article I, Section 5, rulemaking powers, under which each house is the exclusive decision maker regarding the rules of its own proceedings. This rulemaking authority and general separation of powers considerations suggest that Congress and its committees are not obliged to abide by rules established by the courts to govern their own proceedings.

In another CRS publication, Morton Rosenberg observed that “the necessity to protect the individual interest in the adversary process is less compelling in an investigative setting where a legislative committee is not empowered to adjudicate the liberty or property interests of a witness.” Concerning common law privileges, he continued:

Indeed, the suggestion that the investigatory authority of the legislative branch of government is subject to non-constitutional, common law rules developed by the judicial branch to govern its proceedings is arguably contrary to the concept of separation of powers. It would, in effect, permit the judiciary to determine congressional procedures and is therefore difficult to reconcile with the constitutional authority granted each House of Congress to determine its own rules. …

There arguments could obviously be used at the state level, too.

It may be worth considering the adoption of a legislative rule addressing the availability of common law privileges in legislative proceedings. Regardless of the policy adopted, that would be a clear signal to your state’s courts that the legislature exercised its constitutional prerogative to adopt rules of proceedings. However, even if your legislature does not address these common law privileges by rule, it would remain questionable for a court to force their use.

And, legislative committees retain the discretion to respect common law privileges, if the issue is not addressed by a rule of proceeding. Morton Rosenberg notes that “Congress has been sparing in its attempts to challenge claims of attorney-client privilege,” for example. The point is that this decision is at the legislature’s discretion, and not determined by judicial fiat.

The early commentary on the Supreme Court’s assertion – that witnesses retain common law privileges in congressional hearings – is not favorable. Hopefully, future development of the law will clarify and sustain legislative rule-making power. In the meantime, state legislative counsel should study the majority opinion statement in Trump v. Mazars, as well as the arguments in opposition.

View the footnoted article here.

Online Training Opportunities in 2021

NCSL will be offering several virtual meetings and webinars over the next few weeks. Register now for your seat in one of these great virtual events.

Jan. 26 Webinar (presented by the State and Local Legal Center) | Supreme Court Amicus Briefs 2-3:30 p.m. (ET). Three former U.S. Supreme Court clerks will discuss how to write an effective Supreme Court amicus brief from a state and local government perspective.

Jan. 27 Virtual Meeting | 2020 Census Update

Jan. 28 Webinar | Pharmacy Benefit Managers (PBMs) and Options for State Legislatures

Feb. 5-26 Webinar (Fridays) | 2021 State Policy 101

Topics include:

  • Economic Outlook for 2021
  • Just the Facts: How to Find and Use Evidence in Policymaking
  • Redistricting: Nuts, Bolts and Policymaking
  • Policing Policy Trends: Balancing Accountability and Safety
  • Improving Access to Health Care: Medicaid, Telehealth and the Health Workforce
  • States Tackle Transportation and Traffic Safety
  • Preventing Despair: Understanding Behavioral Health Issues
  • Unemployment Insurance: Compensating for Tough Times
  • How We Vote: In-Person and Absentee/Mail Options
  • Mastering the Legislative Rules
  • State Education Finance: The Basics
  • The Role of State Legislatures in the Evolving Energy Sector
  • State Budget and Tax Overview
  • Child Support: It's Not (Just) What You Think
  • NCSL Services and Governance Structure
  • The Environment Policy Landscape: An Overview
  • Time Off to Care: The Fundamentals of Paid Leave Programs
  • Broadband and Wireless Connectivity: To Infinity and Beyond?
  • Educating During a Pandemic
  • Insights into Insurance: Your Private Health Coverage Crash Course
  • Immigration Policy: State Actions and Federal Considerations
  • Intro to Public Pension Design and Funding
  • Getting Ahead of Cybercriminals
  • NCSL IN D.C.
  • State Military and Veterans Affairs: From Benefits to Land Use
  • Keeping Up With Supreme Court Cases That Affect States
  • State Revenue Disrupters in the Modern Age
  • Knowing—and Showing—An Election Was Accurate
  • The Legislature's Role in Public Health During and After COVID-19
  • Setting the Stage: Understanding Early Childhood Policy
  • Bringing People with Disabilities into the Workforce
  • Networking With the NCSL Foundation
  • Networking With NCSL Meet and Greet: Mountain and Pacific Time Zones

Feb. 15 Webinar | Business Interruption Insurance and Pandemics

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