You are here
The Extent of Legislative Immunity in an Open Records Proceeding
Thursday, September 19th, 2013
Robert Wechsler
This blog has been closely following cases where the legislative
immunity defense has been used in government ethics proceedings.
This week, the same issue arose with respect to an open records
proceeding in Wisconsin. According to an
article posted on the Madison Isthmus site yesterday,
Wisconsin's attorney general has argued in an open records
proceeding that a state senator is immune from a suit based on the
state's open records law throughout her term in office, pursuant to
state constitutional provision Article IV, Section 15, which
provides that members of
the state legislature "shall not be subject to any
civil process, during the session
of the Legislature."
If the court accepts the attorney general's argument, the open records law may not be enforced against state legislators who choose to raise the legislative immunity defense. Of course, once they have left office, enforcement may proceed, but at that point they won't have access to the records anymore, and public access to the records will be less important.
What is at issue here is the interpretation of the phrase "during the session." A Sentinel-Journal editorial this week admits that legislators do have immunity while the legislature is in session. But the attorney general has apparently extended immunity to include a legislator's entire period in office. What is telling is that, although the article and editorial focus on this extension, the attorney general does not mention it at all in his op-ed piece yesterday, responding to the Sentinel-Journal editorial. The fact that the attorney general ignores what transparency advocates see as the principal problem with his argument shows how weak he must feel his argument is.
But this is basically the same argument made by state and local legislators who say they need not appear before an ethics commission while in office. One wonders whether the attorney general would have made the same argument if, as in some states, the Wisconsin legislature had set up a freedom of information commission to hear complaints against officials regarding open records requests and the like. This would still be a "civil process," but it would be a special process created by the legislature to enforce the open records law against all state officials, including themselves. The more common Speech or Debate Clause argument would involve the distinction regarding whether such a commission is "an other place."
Hopefully, the attorney general's argument will not prevail. If it does, it will create a very poor precedent. The executive director of the National Freedom of Information Council told the Madison Isthmus, "This is a brand new defense to me. I have heard of state legislatures that have said [their members] can't be compelled to appear during session, but that is different from being entirely above the law."
Robert Wechsler
Director of Research-Retired, City Ethics
---
If the court accepts the attorney general's argument, the open records law may not be enforced against state legislators who choose to raise the legislative immunity defense. Of course, once they have left office, enforcement may proceed, but at that point they won't have access to the records anymore, and public access to the records will be less important.
What is at issue here is the interpretation of the phrase "during the session." A Sentinel-Journal editorial this week admits that legislators do have immunity while the legislature is in session. But the attorney general has apparently extended immunity to include a legislator's entire period in office. What is telling is that, although the article and editorial focus on this extension, the attorney general does not mention it at all in his op-ed piece yesterday, responding to the Sentinel-Journal editorial. The fact that the attorney general ignores what transparency advocates see as the principal problem with his argument shows how weak he must feel his argument is.
But this is basically the same argument made by state and local legislators who say they need not appear before an ethics commission while in office. One wonders whether the attorney general would have made the same argument if, as in some states, the Wisconsin legislature had set up a freedom of information commission to hear complaints against officials regarding open records requests and the like. This would still be a "civil process," but it would be a special process created by the legislature to enforce the open records law against all state officials, including themselves. The more common Speech or Debate Clause argument would involve the distinction regarding whether such a commission is "an other place."
Hopefully, the attorney general's argument will not prevail. If it does, it will create a very poor precedent. The executive director of the National Freedom of Information Council told the Madison Isthmus, "This is a brand new defense to me. I have heard of state legislatures that have said [their members] can't be compelled to appear during session, but that is different from being entirely above the law."
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
- Robert Wechsler's blog
- Log in or register to post comments
