ENROLLED
Senate Bill No. 616
(By Senators Bowman, Kessler, McKenzie and Yoder)
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[Passed April 8, 2005; in effect from passage.]
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AN ACT to amend and reenact §4-1-17 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new article, designated §4-1A-1, §4-1A-2, §4-1A-3, §4-1A-4,
§4-1A-5, §4-1A-6, §4-1A-7, §4-1A-8, §4-1A-9, §4-1A-10,
§4-1A-11, §4-1A-12, §4-1A-13, §4-1A-14, §4-1A-15 and §4-1A-16,
all relating to legislative priorities and immunities under
statute, common law and constitutional law.
Be it enacted by the Legislature of West Virginia:
That §4-1-17 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new article, designated §4-1A-1, §4-1A-2, §4-1A-3, §4-1A-
4, §4-1A-5, §4-1A-6, §4-1A-7, §4-1A-8, §4-1A-9, §4-1A-10, §4-1A-11,
§4-1A-12, §4-1A-13, §4-1A-14, §4-1A-15, and §4-1A-16 all to read as
follows:
ARTICLE 1. OFFICERS, MEMBERS AND EMPLOYEES; APPROPRIATIONS;
INVESTIGATIONS; DISPLAY OF FLAGS; RECORDS; USE OF
CAPITOL BUILDING; PREFILING OF BILLS AND
RESOLUTIONS; STANDING COMMITTEES; INTERIM
MEETINGS; NEXT MEETING OF THE SENATE.
§4-1-17. Priority of legislative business for members and
designated employees.
(a) In accordance with the constitutional separation of powers
and principles of comity, it is the purpose of this section to
provide that members of the Legislature and certain designated
legislative employees are not required to attend to matters pending
before tribunals of the executive and judicial branches of
government when the timing of those matters may present conflicts
with the discharge of the public duties and responsibilities that
are incumbent upon members or employees of the Legislature. During
legislative sessions or meetings and for reasonable time periods
before and after, the judicial and executive branches should
refrain from requiring the personal presence and attention of a
legislator or designated employee who is engaged in conducting the
business of the Legislature.
(b) For the purposes of this section, the words or terms
defined in this subsection have the meanings ascribed to them.
These definitions are applicable unless a different meaning clearly
appears from the context.
(1) "Applicable time period" means and includes the following:
(A) The ten-day time period immediately before any regular or
extraordinary session of the Legislature;
(B) The time period during any regular or extraordinary
session of the Legislature;
(C) The thirty-day time period immediately following the
adjournment sine die of any regular or extraordinary session of the
Legislature;
(D) The four-day time period before any interim meetings of
any committee of the Legislature or before any party caucus;
(E) The time period during any interim meetings of the
Legislature or any party caucus; or
(F) The four-day time period following the conclusion of any
interim meetings of any committee of the Legislature or party
caucus.
(2) "Designated employee" means any legislative employee
designated in writing by the Speaker of the West Virginia House of
Delegates to the Clerk of the House of Delegates or by the
President of the West Virginia Senate to the Clerk of the West
Virginia Senate to be necessary to the operation of the
Legislature, such that the legislative employee will be afforded
the protections of this section.
(3) "Member" means a member of the West Virginia House of
Delegates or the West Virginia Senate.
(4) "Tribunal" means a judicial or quasijudicial entity of the
judicial or executive branch of government, or any legislative,
judicial or quasijudicial entity of a political subdivision,
created or authorized under the Constitution or laws of this state.
(c) A notice filed with a tribunal pursuant to subsection (e)
of this section operates as an automatic stay of a judicial or
administrative action or proceeding commenced before or after the
notice was filed. The automatic stay is in force for the
applicable time period or periods described in the notice unless it
is otherwise waived in accordance with the provisions of subsection
(f) of this section. In the event a session or meeting of the Legislature is extended, the notice may be amended to reflect a
longer applicable time period. The filing of the notice and the
automatic stay do not prohibit the commencement of an action or
proceeding, the issuance or employment of process or other
preliminary procedures that do not require the presence or personal
attention of the member or designated employee.
(d) During any applicable time period, a member or designated
employee who does not otherwise consent to a waiver of the stay is
not required to do any of the following:
(1) Appear in any tribunal, whether as an attorney, party,
witness or juror;
(2) Respond in any tribunal to any complaint, petition,
pleading, notice or motion that would require a personal appearance
or the filing of a responsive pleading;
(3) File in any tribunal any brief, memorandum or motion;
(4) Respond to any motion for depositions upon oral
examination or written questions;
(5) Respond to any written interrogatories, request for
production of documents or things, request for admissions or any
other discovery procedure, whether or not denominated as such; or
(6) Appear or respond to any other act or thing in the nature
of those described in subdivision (1), (2), (3), (4) or (5) of this
subsection; or
(7) Make any other appearance before a tribunal or attend to
any other matter pending in a tribunal that in the discretion of
the member or designated employee would inhibit the member or
designated employee in the exercise of the legislative duties and responsibilities owed to the public.
(e) A member or designated employee who desires to exercise
the protections afforded by this section shall not be required to
appear in any tribunal to assert the protections. In all cases, it
shall be sufficient if the member or designated employee notifies
the tribunal in question orally or in writing, stating that he or
she is invoking the protections of this section, describing the
action, proceeding or act to be stayed, and further identifying the
applicable period or periods for which the notice will operate as
a stay. An oral communication with the tribunal shall be followed
by a written notice or facsimile transmission to the tribunal
mailed or transmitted no later than two business days after the
oral communication. From the time of the oral communication or the
mailing or transmission of the written notice, whichever is
earlier, the notice operates as a stay of all proceedings in the
pending matter until the applicable time periods have passed and
expired.
(f) Notwithstanding the filing of a notice that operates as a
stay, a member or designated employee may later consent to waive
the stay and make an appearance or attend to a matter that would
otherwise be stayed. However, a waiver as to a particular
appearance or act does not terminate, annul, modify or condition
the stay for any other purpose.
(g) The deference afforded by this section to members and
designated employees who are serving a client in a representative
capacity is also fully and completely extended to their clients, so
that no person whose representative before a tribunal is a member or designated employee may be required, during any applicable time
period, to do anything that his or her representative is not
required to do under subsection (d) of this section.
(h) Unless the member or designated employee consents thereto,
no cocounsel, partner, associate, spouse or employee of the member
or designated employee may be required to make any appearance or do
any act during any applicable time period in the place and stead of
the member or designated employee.
(i) Any sentence, judgment, order, decree, finding, decision,
recommendation or award made contrary to the provisions of this
section in any action or proceeding in any tribunal, without the
consent of the member or designated employee, is void.
(j) Tribunals of the federal government and those of other
states are requested to honor the spirit and purpose of this
section pursuant to the doctrines of comity and federalism.
Further, it is the policy of this state that tribunals of this
state shall afford to legislators and staff personnel of the
federal government and other states the protections afforded by the
provisions of this section if the tribunals of the federal
government and the other jurisdictions afford members or designated
employees of the West Virginia Legislature the same protections in
their tribunals.
ARTICLE 1A. LEGISLATIVE IMMUNITY.
§4-1A-1. Purpose; legislative findings and declarations.
(a) The purpose of this article is to describe the scope and
limitations of legislative immunity provided by:
(1) English common law;
(2) The Speech or Debate Clause of the United States
Constitution, Article I, Section 6;
(3) Decisions regarding legislative immunity as developed in
federal common law by the federal judiciary in interpreting the
Speech or Debate Clause of the United States Constitution, Article
I, Section 6;
(5) The Speech or Debate Clause of the West Virginia
Constitution, Article VI, Section 17;
(6) The Separation of Powers Doctrine and the system of checks
and balances embodied in the United States Constitution; and
(7) The Division of Powers set forth in the West Virginia
Constitution, Article V, Section 1.
(b) The Legislature finds and declares as follows:
(1) That the privilege of Speech or Debate has been recognized
as an important protection of the independence and integrity of the
Legislature.
(2) That the ancestry of this privilege traces back to a
clause in the English Bill of Rights of 1689 and the history traces
even further back, almost to the beginning of the development of
the English Parliament as an independent force.
(3) That in the American governmental structure, privileges
arising under the Speech or Debate Clause reinforce the Separation
of Powers Doctrine and the system of checks and balances that was
so deliberately established by the founding fathers and was carried
over into the West Virginia Constitution.
(4) That the protections provided by the Speech or Debate
Clause and the Separation of Powers Doctrine were not written into the national and state Constitutions simply for the personal or
private benefit of members of Congress, the state Legislatures and
local governing bodies, but were intended to protect the integrity
of the legislative process by insuring the independence of
individual legislators.
§4-1A-2. Applicability of definitions.
For the purposes of this article, the words or terms defined
in this article have the meanings ascribed to them. These
definitions are applicable unless a different meaning clearly
appears from the context.
§4-1A-3. Legislative act defined.
"Legislative act" means an act that is generally to be
performed by the Legislature in relation to the investigative,
deliberative and decision-making business before it. A
"legislative act":
(1) Is an integral part of the processes by which members
participate in proceedings that come before the Senate or House of
Delegates or a committee thereof; and
(2) Relates to the consideration and passage or rejection of
proposed legislation; or
(3) Relates to other matters that constitutional law places
within the jurisdiction of either the Senate, the House of
Delegates or the legislative branch of state government as a whole.
§4-1A-4. Legislative sphere defined.
The "legislative sphere" includes all activities that are an
integral part of the deliberative and communicative processes by
which members of the Legislature participate in committee and house proceedings with respect to the consideration and passage or
rejection of proposed legislation or with respect to other matters
which the Constitution places within the jurisdiction of either
house.
§4-1A-5. Political act defined.
"Political act" means an act, nonetheless legitimate, that is
political in nature rather than being a legislative act as defined
in section three of this article.
§4-1A-6. Scope of legislative immunity generally.
(a) Legislative immunity, affording protection under the
Separation of Powers Doctrine and the Speech or Debate privilege,
extends to all of a legislator's legislative acts, as defined in
section three of this article.
(b) The Speech or Debate privilege, when it applies, is
absolute and has two aspects:
(1) A member of the Legislature has immunity extending both to
civil suits and criminal prosecutions for all actions within the
legislative sphere, even though the conduct, if performed in other
than a legislative context, would in itself be unconstitutional or
otherwise contrary to criminal or civil statutes; and
(2) A member of the Legislature is provided a testimonial
privilege that operates to protect those to whom it applies from
being compelled to give testimony as to privileged matters and from
being compelled to produce privileged documents.
§4-1A-7. Legislative immunity in specific instances.
The scope of legislative immunity includes, but is not limited
to, the following legislative acts:
(1) Introducing and voting for legislation;
(2) Failing or refusing to vote or enact legislation;
(3) Voting to seat or unseat a member;
(4) Voting on the confirmation of an executive appointment;
(5) Making speeches;
(6) Enforcing the rules of the Senate or House of Delegates or
the joint rules of the Legislature;
(7) Serving as a member of a committee or subcommittee;
(8) Conducting hearings and developing legislation;
(9) Investigating the conduct of executive agencies;
(10) Publishing and distributing reports;
(11) Composing and sending letters;
(12) Drafting memoranda and documents;
(13) Lobbying other legislators to support or oppose
legislation;
(14) Abolishing personnel positions; and
(15) Hiring and firing employees.
§4-1A-8. Actions taken without lawful authority are not immune.
Legislative immunity does not extend to activities by
legislators that are without lawful authority under constitutional
law, statutory law or rules of the legislature, including, but not
limited to, the following:
(1) Using an unconstitutional procedure to enact legislation;
(2) Conducting an illegal investigation or an unlawful search
or seizure;
(3) Performing another otherwise valid legislative act without
proper legislative authority;
(4) Filing a false or incomplete report, disclosure or claim
regarding an otherwise valid legislative act; or
(5) Using legislative office for private gain in violation of
the provisions of chapter six-b of this code that define and
enforce governmental ethics.
§4-1A-9. Political acts are not privileged.
Legislative immunity does not extend to political acts,
including, but not limited to, the following:
(1) Communications to the press through letters, electronic
mail, newsletters or news releases:
Provided, That the release of
pending legislation, committee reports, journals, acts and other
official legislative reports and documents is a legitimate
legislative activity;
(2) Privately releasing a republication of a speech made
within the legislative sphere;
(3) Holding a press conference;
(4) Making speeches or giving interviews outside of the
legislative sphere; or
(5) Assisting a constituent or supporter through constituent
services, including, but not limited to, making appointments with
government agencies, attempting to influence discretionary acts of
a government officer or providing assistance in securing government
contracts.
§4-1A-10. Administrative acts are not immune.
(a) Legislative immunity does not extend to activities by
legislators that are administrative in nature rather than
legislative. If the underlying facts on which a decision is based are legislative facts involving establishment of a general policy
or state of affairs, then the decision is legislative. If the
facts used in the decisionmaking are more specific, such as those
that relate to particular individuals or situations, then the
decision is administrative.
(b) With regard to legislative personnel matters, whether a
personnel decision regarding a legislative employee is shielded by
legislative immunity depends upon the nature of the duties of the
employee about whom the personnel decision is made. Personnel
decisions regarding a legislative employee are afforded immunity if
the employee's duties are directly related to the functioning of
the legislative process and the duties:
(1) Involve work that significantly informs or influences the
shaping of laws, such as when the employee has an opportunity for
meaningful input into the legislative process; or
(2) Are peculiar to a legislator's work as a legislator or
intimately cognate to the legislative process.
§4-1A-11. Certain offers of proof about legislative activities not
prohibited.
(a) Proof of a person's status as a member of the Legislature
is not prohibited.
(b) A member of the Legislature who chooses to offer evidence
of legislative acts as a defense to a criminal prosecution has not
been "questioned", even though the member thereby subjects himself
or herself to cross-examination.
§4-1A-12. Legislative acts of legislative staff, aides or
assistants.
Legislative immunity extends to legislative staff, aides or
assistants working on behalf of a legislator. Inquiry is
prohibited into things done as a legislator's staff member, aide or
assistant which would have been legislative acts if performed by
the legislator personally.
§4-1A-13. Legislative immunity from ultimate relief.
Legislative immunity may be invoked to shield a legislator
from judicially ordered relief, including, but not limited to, the
following:
(1) Criminal prosecution for his or her legislative acts;
(2) Liability for damages for his or her legislative acts;
(3) Declaratory judgments;
(4) Injunctive relief; and
(5) Extraordinary writs.
§4-1A-14. Testimonial immunity.
(a) Testimonial immunity is an aspect of legislative immunity
that protects a legislator from questioning elsewhere than in the
legislative forum.
(b) When a legislator has been improperly questioned before a
grand jury concerning legislative acts, the counts in a criminal
indictment that are based on the testimony must be dismissed.
(c) When a legislator is found to be immune from a civil
complaint, the relief to be granted is to have the complaint
dismissed or to have a writ of prohibition issued to stop further
proceedings.
(d) In the case of a subpoena that seeks to improperly
question a legislator's conduct as to legislative acts, to depose a legislator or to seek disclosure as to any matters pertaining to
the memoranda, documents or actions by a legislator which are or
were in connection with the legislative process, the subpoenas may
be quashed or the court may grant a motion for a protective order.
§4-1A-15. Right to interlocutory appeal.
Denial of a claim of legislative immunity is immediately
appealable under the collateral order doctrine because the Speech
or Debate Clause is designed to protect legislators not only from
the consequences of litigation's results but also from the burden
of defending themselves.
§4-1A-16. Common law regarding legislative immunity not affected
by the enactment of this article.
The Legislature of the State of West Virginia, in codifying
certain elements and doctrines of the common law regarding
legislative immunity through the enactment of this article, does
not intend to narrow the common law definition of legislative
immunity that is afforded the Legislature under the speech or
debate privilege and the separation or division of powers, and does
not, with the enactment of this article, otherwise revoke or
abrogate any portion of the common law. This article shall not be
construed so as to narrow, restrict, revoke or abrogate the common
law.
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