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Senate
Bill No. 616
ENROLLED
(By
Senators Bowman, Kessler, McKenzie and Yoder)
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[Passed
April 16, 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;
(4) text not found 5-2-2005 12:54 PM JSurkamp
(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;
(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 with respect to his or her legislative
acts;
(4) Injunctive relief with respect to his or her legislative
acts; and
(5) Extraordinary writs with respect to his or her legislative
acts.
§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.
Courtesy: West Virginia State Legislature
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