The Extent of Legislative Immunity in an Open Records Proceeding
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 <a href="http://www.isthmus.com/daily/article.php?article=40931" target="”_blank”">an
article posted on the Madison <i>Isthmus</i> site yesterday</a>,
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."<br>
<br>
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.<br>
<br>
What is at issue here is the interpretation of the phrase "during the
session." <a href="http://www.jsonline.com/news/opinion/legislators-are-not-above-states-o…; target="”_blank”">A
<i>Sentinel-Journal</i> editorial this week </a>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 <a href="http://www.jsonline.com/news/opinion/the-answer-in-sen-leah-vukmir-case…; target="”_blank”">his
op-ed piece yesterday</a>, responding to the <i>Sentinel-Journal</i>
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.<br>
<br>
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."<br>
<br>
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
<i>Isthmus</i>, "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."<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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