Legislature to Litigants: “Can’t Touch This!” – Virginia Supreme Court Recognizes Legislative Privilege
By: Cullen Seltzer. This was posted Thursday, September 22nd, 2016
Co-authors: Cullen D. Seltzer and Andrew R. McRoberts
The Virginia Supreme Court, interpreting the Virginia Constitution’s speech and debate clauses, has recognized a legislative privilege from responding to a document subpoena substantially similar to that of the better-known federal privilege. Edwards v. Resilind, decided by opinion of Justice Lemons without concurrence or dissent, arose in the context of a discovery dispute in a redistricting case where plaintiffs challenging redistricting sought production of documents from various legislators and from the General Assembly’s Division of Legislative Services (DLS). The Virginia Supreme Court, after setting out at length the correct definition of the privilege, remanded the case to the Circuit Court for application of the rule to contested documents.
Here are some of the opinion’s essential points from our review:
- The legislative privilege applies only to actions undertaken in the “legislative sphere” which is law making but not politicking and not generally constituent outreach.
- The legislative privilege can be exercised by legislators and it is the legislators’ privilege to waive.
- Ordinarily, a detailed privilege log need not be provided regarding the documents insulated from production or discovery based on the legislative privilege, but a summary of the basis for the invocation of the privilege should suffice. (Note that Judge Payne, in applying the federal privilege, even as to Virginia General Assembly documents, has taken very much the opposite view.)
- Even non-legislators may invoke the legislative privilege if they are acting as a legislator’s alter-ego, i.e., a person authorized or directed by a legislator to act on her behalf. Legislators’ staff, Division of Legislative Services staff, are likely such persons. Policy consultants are likely such persons as they are more likely to be acting in the legislative sphere. Political consultants, lobbyists, and constituents are less likely to be alter-egos but, on a case by case basis, they may be if they are acting in the legislative sphere and delegated to act as a legislator’s alter-ego. If a putative “alter-ego” is paid by the legislator or public body, that is a factor that cuts in favor of qualifying as an alter-ego; conversely being privately paid to act on behalf of an outside constituency suggests the person is not a legislator’s alter-ego. Mere employment circumstances, however, are not dispositive of the inquiry. The inquiry is focused on whether the putative alter-ego is acting in the legislative sphere on behalf of the legislator.
Justice Lemons’s opinion is scholarly and focused on the history of the relevant Constitutional provisions. It will bear considering whether the privilege attaches to legislators other than those in the General Assembly. Much of the opinion’s discussion of the origins of the privilege is grounded in a separation of powers rationale: the Executive and Judicial branches are obliged to be deferential to the Legislature’s internal legislative deliberations as a matter of treating co-equal branches of government with appropriate respect. This rationale appears to apply to legislators wherever they may be found at state or the local level, at which political subdivisions of the Commonwealth exercise authority granted to them by the state. However, the language of the Constitutional provision at issue, however, appears to apply to members of the “General Assembly.” Therefore, as stated in footnote 1 of the opinion, it is unclear whether the legislative privilege described in this case would apply to materials generated by a Board of Supervisors or City Council.
In a case to apply the rationale of this opinion to a local governing body, the case of Nogiec may be instructive because that was a legislative immunity case. In that case, involving alleged defamation of a member of the Isle of Wight County Board of Supervisors, the Supreme Court described the nature of legislative action of a local governing body in applying the defense of legislative immunity. The scope of legislative action and therefore the immunity was narrower than the supervisor had desired. Va locality Law blog: http://valocalitylaw.com/#article/922
This new opinion will be worth reading carefully for local government attorneys faced with document requests of various kinds for legislative materials. We note that this opinion does not address the Freedom of Information Act, but presumably a constitutional privilege would apply to requests under the Act as well as subpoenas in court.