Edwards v. Vesilind , 790 S.E.2d 469 ( 2016 )

PRESENT: All the Justices
JOHN S. EDWARDS, ET AL.
OPINION BY
v. Record No. 160643 CHIEF JUSTICE DONALD W. LEMONS
SEPTEMBER 15, 2016
RIMA FORD VESILIND, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
W. Reilly Marchant, Judge
This appeal arises from a civil contempt order entered after the Division of Legislative
Services (“DLS”) and several Members of the General Assembly, invoking legislative privilege,
refused to comply with a production order in a matter pending before the circuit court. The court
held that legislative privilege, as set forth in the Speech or Debate Clause of Article IV, Section 9
of the Constitution of Virginia (“the Clause”), 1 does not extend to DLS or to documents and
communications between Members of the General Assembly and consultants, DLS, or other
third parties. For the reasons stated below, we conclude that the court abused its discretion by
holding the appellants in contempt. With respect to the appellants in this case, the production
order of February 16, 2016 and the provisions of the order of April 14, 2016 holding appellants
in civil contempt will be vacated in part.
On appeal we are confined to the record developed in the court below and the
assignments of error granted. Of necessity, our resolution of this case addresses legal principles
implicated by the controversy but may not resolve specific application of these principles
because the record is not fully developed.
1
The Clause provides in pertinent part: “Members of the General Assembly . . . for any
speech or debate in either house shall not be questioned in any other place.” This opinion refers
to Members of the General Assembly interchangeably as “Members” or “legislators.” We note
that there are numerous other bodies in the Commonwealth whose members perform legislative
functions, such as boards of supervisors, city councils, etc. This opinion, however, is limited to
consideration of the legislative privilege granted to Members of the General Assembly by the
Constitution of Virginia.
I. FACTS AND PROCEEDINGS
On September 14, 2015, plaintiff-appellees Rima Ford Vesilind, Arelia Langhorne,
Sharon Simkin, Sandra D. Bowen, Robert S. Ukrop, Vivian Dale Swanson, H.D. Fiedler, Jessica
Bennett, Eric E. Amarteis, Gregory Harrison, Michael Zaner, Patrick M. Condray, Sean Sullivan
Kumar, and Dianne Blais (collectively, “the appellees”) brought an action in the circuit court
against the Virginia State Board of Elections, the Department of Elections, and various officers
in their official capacities. The appellees alleged that House of Delegates districts 13, 22, 48, 72,
and 88, and Senate districts 19, 21, 28, 29, 30, and 37 were not sufficiently contiguous, compact,
and as nearly equal in population as practical, thereby violating Article II, Section 6 of the
Constitution of Virginia. The appellees seek a declaration that these eleven districts are
unconstitutional, seek to enjoin the use of the current district map in future elections, and seek
other equitable relief as necessary. 2
In November 2015, subpoenas duces tecum were served upon, as relevant to this appeal,
Virginia Senators John Edwards, Ralph Smith, Richard Saslaw, Charles Colgan, David Marsden,
and George Barker (collectively, “the Virginia Senators”) 3 and DLS, demanding production of
17 categories of documents and communications, such as those relating to:
2
On October 7, 2015, the House of Delegates and the Speaker of the House, William J.
Howell, intervened as defendants seeking to preserve the redistricting plans. As a result of their
voluntary intervention in the proceedings below, the House of Delegates and Speaker Howell
were found to have waived legislative privilege and are not party to this appeal.
3
Senator Richard Stuart also was served with a subpoena. Because Senator Stuart
elected to comply with the court’s order directing him to produce documents and
communications subject to the subpoena, he is not party to this appeal. Also, Susan Schaar,
Clerk of the Senate, although originally served with a subpoena, was not compelled to respond.
2
• compactness, total population, contiguity, total number of splits, communities of
interest, and core retention of the challenged districts and adjacent districts
• development and prioritization of the criteria used to draft and modify the districts
• Senators’ partisan considerations affecting the shape or composition of the
districts or adjacent districts, including impact on incumbents
• the establishment and implementation of the 2001 redistricting criteria
• preclearance through the Virginia Attorney General’s Office
• communications from the public concerning compactness
• map files and plans proposed, considered, or adopted, and
• any official or unofficial meeting of the General Assembly.
The DLS subpoena also requests “All documents consisting of electronic map files for
redistricting plans which were used for any election for the House . . . or Senate of Virginia from
1980 to the present.” The subpoenas seek production of all “documents or communications in
your possession, custody or control, including items in the possession, custody or control of your
agents, employees or attorneys.”
The Virginia Senators and DLS filed motions to quash, claiming legislative privilege
protected disclosure of the documents and communications sought. Following the submission of
briefs and oral argument, the circuit court issued a letter opinion defining the scope of legislative
privilege.
Relying on Gravel v. United States, 408 U.S. 606 (1972), the circuit court stated that
“legislative privilege applies absolutely to purely internal legislative communications solely
among legislators, and between legislators and legislative staff.” However, adopting the analysis
3
in Page v. Virginia State Board of Elections, 15 F. Supp. 3d 657, 664 (E.D. Va. 2014), the court
then explained that it
declines to extend the privilege beyond that core definition [protecting
communications solely between legislators and other legislators or
legislators and their staff] and finds that the individuals included within
the legislative privilege are only the legislators and their legislative
assistants and/or aides who are employed and paid by the individual
legislator, a legislative committee, or the legislature as a whole.
The court required the Virginia Senators to answer all discovery at issue, although “such
responses shall be limited and protected by the scope of legislative privilege as defined [in the
letter opinion].”
As to DLS, the circuit court ruled that it
is a legislative agency that serves legislators individually and collectively,
but is not a legislator, a legislative committee, or the legislature as a
whole, and is not a paid employee of the above. Therefore, DLS does not
fall within the scope of this Court’s definition of the legislative privilege
and . . . shall answer the discovery propounded herein. Certainly, this
includes all communications between DLS and legislators or their aides or
staff, as well as documents or communications among DLS staff or
between DLS staff and others.
Accordingly, on February 16, 2016, the circuit court entered an order denying the
Virginia Senators’ motion to quash and requiring that they answer discovery requests “limited
and protected by the scope of the legislative privilege defined in the letter opinion.” The court
also denied the motion to quash as to DLS, directing that it answer all discovery requests because
DLS falls outside the scope of legislative privilege. 4 In the same order, the court held that two
political consultants were third parties and did not fall within the scope of the privilege.
4
The circuit court nonetheless granted legislative privilege to the Attorney General’s
office insofar as that office acted in a legislative capacity regarding preclearance of the
4
The Virginia Senators and DLS moved the circuit court to certify an interlocutory appeal.
The court denied the certification request because the appellees’ opposition prevented the parties
from meeting the mutuality requirement of Code § 8.01-670.1. In the alternative, the Virginia
Senators and DLS asked to be held in contempt in order to produce an appealable order. The
appellees did not oppose this request. On April 14, 2016, the court held the Virginia Senators
and DLS in contempt, assessing a fine of $100.00 per party per day. The circuit court stayed the
collection of the fines imposed during the pendency of this appeal.
Before the Court of Appeals considered this matter, the parties filed a joint motion for
certification to transfer the proceedings to this Court pursuant to Code § 17.1-409 (providing for
expedited appeals when the case is of “such imperative public importance as to justify the
deviation from normal appellate practice and to require prompt decision in the Supreme Court”).
This Court granted the motion and set oral argument for special session on July 19, 2016.
II. ASSIGNMENTS OF ERROR
In its sole assignment of error, DLS contends that:
1. The Circuit Court erred in holding that legislative work product and other materials
concerning core legislative acts held in the custody of DLS, including communications
between Virginia legislators and their staff, on the one hand, and DLS and its staff, on the
other, are categorically excluded from the protections afforded in Virginia’s Speech or
Debate Clause.
The Virginia Senators raise three assignments of error, contending that:
1. The circuit court erred as a matter of law when it found the Virginia Senators in contempt of
court because the court’s underlying opinion and order held that the Speech or Debate Clause
in Virginia’s Constitution does not protect communications between the Virginia Senators
and their staff with consultants when those communications are within the legislative sphere.
redistricting plan when it advised and advocated for changes in the map, thereby bringing the
office under the “umbrella of the legislative privilege.”
5
This was error because U.S. Supreme Court precedent concerning the substantially similar
federal Speech or Debate Clause emphasizes function over form and, when within the
legislative sphere, protects the communications and actions of non-legislators.
2. The circuit court erred as a matter of law when it found the Virginia Senators in contempt of
court because the court’s underlying opinion and order held that the Speech or Debate Clause
in Virginia’s Constitution does not protect communications between the Virginia Senators
and their staff with third parties such as constituents and interest groups when those
communications are within the legislative sphere. This was error because, in addition to the
reasons stated in Assignment of Error 1 above, a Virginia circuit court has held that
communications with constituents are absolutely privileged so as to encourage citizens to
communicate with the legislature about pending legislation. See Mills v. Shelton, 66 Va. Cir.
415 (Va. Cir. Ct. 1998) (Bedford County). Furthermore, Fourth Circuit precedent has
explicitly held that the federal Speech or Debate Clause protects communications between
local legislators and interest groups. See Bruce v. Riddle, 631 F.2d 272 (4th Cir. 1980).
3. The circuit court erred as a matter of law when it found the Virginia Senators in contempt of
court because the court’s underlying opinion and order held that the Speech or Debate Clause
in Virginia’s Constitution does not protect communications between the Virginia Senators
and their staff with the DLS when those communications are within the legislative sphere.
This was error because the DLS is statutorily authorized to assist legislators in fulfilling their
legislative duties. In addition to the reasons stated in Assignment of Error 1 above, the circuit
court’s ruling conflicts with holdings that the substantially similar federal speech or debate
clause protects communications and actions of officials at the Government Accountability
Office and the Congressional Research Service. See Chapman v. Space Qualified Systems
Corp., 647 F. Supp. 551 (N.D. Fla. 1986); Webster v. Sun Co., 731 F.2d 1 (D.C. Cir. 1984).
III. DISCUSSION
It is well-established law in Virginia that discovery disputes are generally “interlocutory
and not subject to immediate appeal.” America Online v. Anonymous Publicly Traded Co., 261
Va. 350, 359, 542 S.E.2d 377, 382 (2001). However, an order of contempt for disobedience of a
discovery order may be appealed before the conclusion of the underlying suit. Id. at 359 n.6, 542
S.E.2d at 382 n.6 (citing HCA Health Services of Virginia v. Levin, 260 Va. 215, 530 S.E.2d 417
(2000)).
6
A. Standard of Review
“[W]e review the exercise of a court’s contempt power under an abuse of discretion
standard.” Petrosinelli v. People for the Ethical Treatment of Animals, 273 Va. 700, 706, 643
S.E.2d 151, 154 (2007).
An abuse of discretion can occur in three principal ways: when a relevant factor
that should have been given significant weight is not considered; when an
irrelevant or improper factor is considered and given significant weight; and when
all proper factors, and no improper ones, are considered, but the court, in
weighing those factors, commits a clear error of judgment.
Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137
(2011) (internal quotation marks and alteration omitted). “[W]hether a court possesses or lacks
authority, and whether it has correctly identified and fulfilled the legal prerequisites to a
discretionary act, are themselves significant factors in its consideration.” Lawlor v.
Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847, 862 (2013).
“[A] party cannot be guilty of contempt of court for disobeying an order which the court
had no authority of law to make.” Robertson v. Commonwealth, 181 Va. 520, 537, 25 S.E.2d
352, 359 (1943) (internal quotation marks omitted). If, as the Virginia Senators and DLS
contend, the Clause protects the documents and communications from discovery, the circuit
court had no authority of law to compel their production and the legal prerequisite for holding
the appellants in contempt was not fulfilled. This is a question of state constitutional
interpretation that we consider de novo. Lawlor, 285 Va. at 240, 738 S.E.2d at 877. If the court
erred by ruling that it had authority to compel production of the documents and communications,
it necessarily abused its discretion when it held the appellants in contempt.
7
B. Issue of First Impression
This appeal presents issues of first impression concerning the scope and application of
legislative privilege under the Clause. This Court recently acknowledged in Board of
Supervisors v. Davenport & Co., 285 Va. 580, 586, 742 S.E.2d 59, 61 (2013), that “the Virginia
Supreme Court has not had occasion to construe the scope of the Virginia [S]peech or [D]ebate
[C]lause.” (Internal quotation marks and citation omitted.) Davenport involved issues of
common law legislative immunity and therefore did not squarely implicate the questions before
the Court today. 5
We have said that, “[i]n construing constitutional provisions, the Court is not permitted to
speculate on what the framers of a section might have meant to say, but are, of necessity,
controlled by what they did say. . . . It is a general rule that the words of a Constitution are to be
understood in the sense in which they are popularly employed, unless the context or the very
nature of the subject indicates otherwise.” Blount v. Clarke, 291 Va. 198, 205, 782 S.E.2d 152,
155 (2016) (internal quotation marks and citations omitted) (emphasis added). Although we
have not had occasion to construe the Clause, the idea it expresses is not new. Its language “is
derived from” the similar provision in the federal Speech or Debate Clause found in Article I,
Section 6 of the United States Constitution. Davenport, 285 Va. at 587, 742 S.E.2d at 62. Both
provisions afford similar protections because they are based upon the same historical and public
policy considerations. Id. at 586, 742 S.E.2d at 61.
5
Because the immunity at issue in Davenport derives from common law rather than the
Clause, our decision today neither expands nor restricts the scope of the immunity discussed in
that case.
8
The legislative privilege the Clause and its federal counterpart confer emerged from the
twin principles of freedom of speech and legislative immunity in parliamentary law, and both
principles appear historically in statutes dating as far back as 1512. 4 William Holdsworth, A
History of English Law 91 n. 6 (1924); Privilege of Parliament Act 1512, 4 Hen. 8 c. 8 (Eng.),
available at http://www.legislation.gov.uk/aep/Hen8/4/8/contents (last visited Sept. 7, 2016)
(abrogating the judgment in Strode’s Case). The term “freedom of speech,” in its earliest usage
in the English Parliament, referred solely to the freedom of members to speak positively or
negatively about issues referred to them by the Crown. 6 4 Holdsworth, supra, at 89-90. In the
early 17th century, the House of Commons asserted a broader list of parliamentary privileges,
including the right to freedom of speech, the right of freedom from arrest, the right to initiate
legislation, and the right to decide the order of business in the House. 6 William Holdsworth, A
History of English Law 95 (1924). Following the “Glorious Revolution,” Parliament adopted the
1689 English Bill of Rights protecting the “Freedom of Speech, and Debates or Proceedings in
Parliament” from being “impeached or questioned in any Court or Place outside of Parliament.”
1 Wm. & Mary, Sess. 2, c. II.
Legislative privilege arose in the young American nation from the same underlying
principles, combined with the uniquely American emphasis on separation of powers and
representative government. See Tenney v. Brandhove, 341 U.S. 367, 373 (1951). Freedom of
speech in the legislature “was deemed so essential for representatives of the people” that the
6
This right was recognized in the House of Commons as early as the reign of Henry VIII,
who sometimes sat in on its proceedings and earnestly encouraged its members’ candid
discussion. 4 Holdsworth, supra, at 91. Later in the 16th century, tensions emerged between
Parliament and the Crown as to the power to introduce legislation and control over the
parliamentary agenda. Id. at 89-90, 178-180.
9
federal Speech or Debate Clause appeared first in the Articles of Confederation and then in the
Constitution, with little change. Id. at 372-73 (“Freedom of speech and action in the legislature
was taken as a matter of course by those who severed the Colonies from the Crown and founded
our Nation. . . . The provision in the United States Constitution was a reflection of political
principles already firmly established in the States.”)
Here, “[i]n Virginia, as well as in the other colonies, the assemblies had built up a strong
tradition of legislative privilege long before the Revolution.” Id. at 374 n.3. Those principles
were codified in Virginia statutes 7 before appearing in the Constitution of Virginia of 1870. 8
The Constitution of 1902 brought a linguistically modernized but substantively similar version of
its predecessor, 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 511-12
(1974), and this version remains in effect today.
The Clause was not introduced into the Constitution of Virginia devoid of history or
context, nor should it be interpreted as if it had. Rather, it is deeply rooted in British and
American law. To ignore this rich history in favor of a narrow interpretation would flout the
framers’ obvious intent. The Clause is an integral piece of the separation of powers framework,
one of the most central and enduring principles of the Constitution of Virginia. As part of the list
7
See Laws of Virginia, March 1623, James 1st, § 11 (immunity from arrest); 1789 Acts
ch. 248 (immunity for words spoken or written in the General Assembly).
8
Article V, Section 11 of the 1870 Constitution of Virginia provided:
The members of the general assembly shall, in all cases except treason, felony, or
breach of the peace, be privileged from arrest during the sessions of their
respective houses; and for any speech or debate in either house, they shall not be
questioned in any other place. They shall not be subject to arrest under any civil
process, during the session of the general assembly, nor for fifteen days next
before the convening and after the termination of each session.
10
of “Immunities of legislators” in Article IV, Section 9, the Clause represents one of the specific
and significant bulwarks the Constitution erects to protect the legislature from improper
interference by the executive branch and the judiciary. Legislative privilege necessarily must be
robust in order to preserve constitutional separation of powers and prevent interference with the
legislative process. The “freedom of speech and debate” is a “great and vital privilege . . .
without which all other privileges would be comparatively unimportant or ineffectual.” Kilbourn
v. Thompson, 103 U.S. 168, 204 (1881) (internal quotation marks and citation omitted).
Accordingly, it must be addressed with an eye toward promoting, not eroding, the separation of
powers principles integral to the sound government of this Commonwealth.
C. Defining the Privilege
The principal questions in defining legislative privilege under the Clause are what does
the privilege protect, and who may invoke that protection. However, because this case arises
from an order compelling discovery in response to subpoenas duces tecum, we must first
consider the threshold question whether the protection provides only immunity from liability or
extends to evidentiary privilege. Once a court determines that legislative privilege attaches, it is
absolute in nature. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588, 590, 118 S.E.2d
668, 669 (1961).
1. The Nature of the Protection Afforded by Legislative Privilege
The Clause states, “Members of the General Assembly . . . for any speech or debate in
either house shall not be questioned in any other place.” (Emphasis added.) The term
“questioned” should be understood broadly to mean “subjected to examination by another body.”
See, e.g., Gravel, 408 U.S. at 616 (observing that the Clause “was designed to assure a co-equal
11
branch of the government wide freedom of speech, debate, and deliberation without intimidation
or threats from” another branch of government); Davenport, 285 Va. at 587, 742 S.E.2d at 62
(observing that the Clause, “which is derived from the Speech or Debate Clause of the United
States Constitution, affords General Assembly members with immunity that protects them from
being called into an outside forum to defend their legislative actions”). The very nature of the
Clause concerns the separation of powers and the protection of legislative processes. At its
essence, it prevents intrusion into the legislative process from the executive branch or from a
“possibly hostile judiciary.” Id. at 617. Therefore, when it applies, legislative privilege confers
immunity from criminal prosecution, United States v. Johnson, 383 U.S. 169, 184-85 (1966), and
civil suit. Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (under the federal Speech or Debate
Clause, legislators are “protected not only from the consequences of litigation's results but also
from the burden of defending themselves”); see also Powell v. McCormack, 395 U.S. 486, 505
(1969) (“The purpose of the protection afforded legislators is . . . to insure that legislators are not
distracted from or hindered in the performance of their legislative tasks by being called into court
to defend their actions.”).
Courts have also held that when legislative privilege applies, it protects against both
compulsory testimony and compulsory production of evidence. Brown & Williamson Tobacco
Corp. v. Williams, 62 F.3d 408, 418, 420-21 (D.C. Cir. 1995) (“A party is no more entitled to
compel congressional testimony – or production of documents – than it is to sue congressmen.”).
Evidentiary privilege exists as a natural outgrowth of the original English parliamentary
privileges as applied in the Commonwealth. The function of the parliamentary privilege was to
insulate legislators from harassment, “not with the intention of protecting the members against
12
prosecutions for their own benefit, but to support the rights of the people.” Kilbourn, 103 U.S. at
203 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808)). “Legislative privilege against compulsory
evidentiary process exists to safeguard this legislative immunity and to further encourage the
republican values it promotes.” EEOC v. Washington Suburban Sanitary Comm’n, 631 F.3d
174, 181 (4th Cir. 2011).
Protection from compulsory production of privileged evidence is a necessary corollary to
immunity. “Documentary evidence can certainly be as revealing as oral communications,” and
subjecting legislators to “[d]iscovery procedures can prove just as intrusive” as naming
legislators as parties to a lawsuit. Brown & Williamson Tobacco Corp., 62 F.3d at 418, 420-21.
“Because litigation’s costs do not fall on named parties alone, [legislative] privilege applies
whether or not the legislators themselves have been sued.” Washington Suburban Sanitary
Comm’n, 631 F.3d at 181; see also Arizona Indep. Redistricting Comm’n v. Fields, 75 P.3d 1088,
1098 (Ariz. Ct. App. 2003) (“We are persuaded the legislative privilege protects against
disclosure of documents in appropriate circumstances . . . . Even though such documents will
not be used in any evidentiary proceeding, their mere disclosure could ‘chill’ legislators from
freely engaging in the deliberative process necessary to the business of legislating.”). “[A] key
purpose of the privilege is to prevent intrusions in the legislative process and that the legislative
process is disrupted by the disclosure of legislative material.” United States v. Rayburn House
Office Bldg., Room 2113, 497 F.3d 654, 660 (D.C. Cir. 2007). Accordingly, documentary
evidence is subject to legislative privilege under the Speech or Debate Clause.
Because the purpose of legislative privilege is to protect the legislature from intrusion by
the other branches of government and to disentangle legislators from the burden of litigation and
13
its detrimental effect on the legislative processes, Davenport, 285 Va. at 588-89, 742 S.E.2d at
63 (internal quotation marks and citations omitted); see Gravel, 408 U.S. at 617, a legislator is
generally not required to produce a detailed privilege log in order to invoke the privilege. A
legislator must merely address, in describing the function of the evidence requested (and, in the
case of a communication, with whom such communications would have occurred), why the
privilege would apply. Courts may request more information only when essential to determine
whether the privilege should attach and in some cases, review of such additional information
may be required in camera.
Having established that legislative privilege extends beyond mere immunity from
prosecution and suit to protect compulsory production of evidence, we next turn to the questions
of what the privilege protects and who may invoke that protection.
2. To What the Privilege Applies
The Clause provides that legislative privilege may be invoked to protect “any speech or
debate in either house.” Va. Const. art. IV, § 9. It is “incontrovertible” that this protection
applies to any statement made during an official legislative proceeding, such as on the floor of
either chamber while it is in session or during a meeting of a legislative committee or
subcommittee wherever it may sit. See Gravel, 408 U.S. at 615-16 (holding that legislators are
absolutely protected with respect to events that occur at a subcommittee meeting); see also
Hutchinson v. Proxmire, 443 U.S. 111, 124-25 (1979) (noting that judicial interpretations of the
federal Speech and Debate Clause are extensions of the literal meaning).
However, by the time the Clause was adopted in Virginia, the phrase “speech or debate in
either house” already had become a term of art signifying a “sphere of legitimate legislative
14
activity” that was not necessarily tied to official legislative proceedings, but to essentials of the
legislative process. Tenney, 341 U.S. at 376-77 (coining the phrase “sphere of legitimate
legislative activity”); Kilbourn, 103 U.S. at 203-204 (quoting Coffin, 4 Mass. at 27). In 1808, the
Massachusetts Supreme Court stated that the legislative sphere referred to in that state’s similar
speech or debate clause was not confined to
delivering an opinion, uttering a speech, or haranguing in debate; but will
extend . . . to the giving of a vote, to the making of a written report, and to every
other act resulting from the nature, and in the execution, of the office; and . . .
every thing said or done by him, as a representative, in the exercise of the
functions of that office, without inquiring whether the exercise was regular
according to the rules of the house, or irregular and against their rules.
Coffin, 4 Mass. at 27. Six decades before the Clause was adopted, speech or debate in either
house was understood to apply to the many facets of the legislative process. Id. at 28 (holding
that legislative privilege attaches to the “exercise of [the legislator’s] functions”).
In Davenport, we emphasized these same principles, invoking similar language as to
legislators “acting [with]in the sphere of legitimate legislative activity”: “Legislative actions
include, but are not limited to, delivering an opinion, uttering a speech, or haranguing in debate;
proposing legislation; voting on legislation; making, publishing, presenting, and using legislative
reports; authorizing investigations and issuing subpoenas; and holding hearings and introducing
materials at Committee hearings.” 285 Va. at 589, 742 S.E.2d at 63 (internal quotation marks
and citations omitted).
The emphasis in the Constitution of Virginia on separation of powers also lends support
to a broad understanding of legislative privilege. The Clause falls among several other
enumerated privileges, all designed to protect legislators from undue interference with the
legislative process. It would be of little use to protect speech or debate between legislators on
15
the floor of either house but not to protect other communications or functions integral to the
legislative process. Accordingly, the phrase “any speech or debate in either house,” as used in
the Clause, refers to communications or acts integral to the sphere of legitimate legislative
activity, whether in an official legislative proceeding or not.
However, legislators
engage in many activities other than the purely legislative activities protected by
the Speech or Debate Clause. These include a wide range of legitimate errands
performed for constituents, the making of appointments with Government
agencies, assistance in securing Government contracts, preparing so-called news
letters to constituents, news releases, and speeches delivered outside the [General
Assembly]. The range of these related activities has grown over the years. They
are performed in part because they have come to be expected by constituents, and
because they are a means of developing continuing support for future elections.
Although these are entirely legitimate activities, they are political in nature rather
than legislative, in the sense that term has been used by [courts]. But it has never
been seriously contended that these political matters, however appropriate, have
the protection afforded by the Speech or Debate Clause. Careful examination of
the decided cases reveals that the [courts] ha[ve] regarded the protection as
reaching only those things generally done in a session of the [legislature] by one
of its members in relation to the business before it, or things said or done by [a
legislator], as a representative, in the exercise of the functions of that office.
United States v. Brewster, 408 U.S. 501, 512 (1972) (internal quotation marks and citations
omitted).
Accordingly, legislative privilege applies only to acts within the sphere of legitimate
legislative activity. Va. Const. art. IV, § 9; see United States v. Helstoski, 442 U.S. 477, 491
(1979) (barring inquiry into “the sphere of protected legislative activities”); Gravel, 408 U.S. at
625 (“Legislative acts are not all encompassing . . . . [T]hey must be an integral part of the
deliberative and communicative processes by which Members 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
16
of either House.”). Whether such an act falls within the sphere of legitimate legislative activity
requires the court to assess, on the whole, the function it serves. In the case of a communication,
a court must also consider the persons by and to whom it is made.
A legislator’s communication regarding a core legislative function is protected by
legislative privilege, regardless of where and to whom it is made. See Coffin, 4 Mass. at 27
(holding that the legislative sphere includes “every thing said or done by [the legislator], as a
representative, in the exercise of the functions of that office”). A legislator’s communication not
regarding such a function is not protected, unless it is made during an official legislative
proceeding. See Gravel, 408 U.S. at 615-16; see also Hutchinson, 443 U.S.at 124-25. For
example, two legislators could not invoke the privilege for a conversation regarding reelection
strategy or vacation plans, see Davenport, 285 Va. at 590, 742 S.E.2d at 63-64 (“Legislative
immunity will not protect [legislators] when they step outside the function for which their
immunity was designed.”) (internal quotation marks and citation omitted); see also Brewster,
408 U.S. at 512, unless the conversation occurred, for example, on the floor of a chamber while
it is in session. Va. Const. art. IV, § 9.
3. Who May Invoke the Privilege
a. Members
The Clause provides that “[m]embers of the General Assembly . . . for any speech or
debate in either house shall not be questioned in any other place.” This Court has previously
observed in Davenport that this language, by its terms, applies to “[m]embers.” 285 Va. at 587,
742 S.E.2d at 62 (“This provision . . . affords General Assembly members with immunity that
protects them from being called into an outside forum to defend their legislative actions.”
17
(emphasis added)). A Member’s legislative privilege necessarily must be robust in order to
preserve constitutional separation of powers and prevent interference with the legislative process.
As previously noted, the “freedom of speech and debate” is a “great and vital privilege . . .
without which all other privileges would be comparatively unimportant or ineffectual.”
Kilbourn, 103 U.S. at 204 (internal quotation marks and citation omitted).
Applying these principles, under the Constitution of Virginia, a Member of the General
Assembly holds the legislative privilege regarding communications protected by the Speech or
Debate Clause. The privilege may be invoked and waived only by the legislator or legislators
who hold the privilege. So long as the communications concern matters protected by the Speech
or Debate Clause, legislators’ communications with other legislators are cloaked with
constitutional legislative privilege. Accord Gravel, 408 U.S. at 622. This rule applies both to
protect communications between legislators and among legislative committees which, of course,
are composed of legislators. Accordingly, legislative privilege belongs to the legislator. 9
However, the rulings of the circuit court and the assignments of error require us to consider
whether the privilege may be invoked by a non-legislator. We hold that under certain
circumstances, it may. Gravel, 408 U.S. at 616-17.
b. Alter-Egos: Invocation by Non-Legislators
The extent to which a non-legislator may invoke the privilege is informed by the United
States Supreme Court’s alter-ego doctrine set forth in Gravel, 408 U.S. at 616-17, allowing non-
9
One legislator’s waiver of the privilege may not impair another legislator’s right to
invoke it. For example, if two legislators draft a bill and one waives his or her privilege
regarding the bill’s development in response to a subpoena, the other legislator retains the right
to invoke the privilege and thereby protect the communications from discovery.
18
legislators serving legislative functions for legislators to, under some circumstances, invoke the
legislator’s privilege with the legislator’s permission.
In Gravel, the government subpoenaed Dr. Leonard Rodberg, a resident fellow at the
Institute of Policy Studies, whom Senator Gravel added to his staff mere hours before a
subcommittee meeting at which Gravel read from sensitive material and placed it in the public
record. Id. at 608-09. Dr. Rodberg assisted Gravel in preparing for and conducting the meeting.
Id. at 609. The lower courts barred the government from questioning Dr. Rodberg about his
interview with Gravel and observations and communications arising from his employment with
Gravel. Id. at 611-12. The federal court of appeals observed that it was necessary “for a
legislator to have personal aides in whom he reposes total confidence.” The relationship “could
not exist unless, during the course of his employment, the aide and the legislator were treated as
one,” and “this synonymity is founded upon the relationship, not on the fact of employment.”
United States v. Doe, 455 F.2d 753, 761 (1st Cir. 1972).
Agreeing with the lower courts’ analysis and upholding the protective order as to
Gravel’s aide, the Supreme Court held the federal Speech or Debate Clause “prohibits inquiry
into things done by Dr. Rodberg as the Senator’s agent or assistant which would have been
legislative acts, and therefore privileged, if performed by the Senator personally.” Gravel, 408
U.S. at 616. The Supreme Court recognized that application of the privilege to alter egos of the
legislators, when performing legislative functions, was vital to a functioning legislative process.
Id. at 617.
Accordingly, when a non-legislator seeks to invoke the privilege under the Clause, a
court is presented with a threshold question: whether the individual is functioning in a
19
legislative capacity on behalf and at the direction of a Member. If so, this non-legislator is acting
as an alter ego of the legislator and may, with the legislator’s permission, invoke the legislator’s
privilege. The alter ego’s actions on behalf of the legislator are then protected as though they
were the legislator’s actions. See Gravel, 408 U.S. at 622. However, where the legislator would
not be protected by the privilege if the act was done by the legislator himself or herself, such as
where the act falls outside the scope of legitimate legislative activity, his or her alter ego is
likewise unprotected. 10 Just as a communication within the sphere of legitimate legislative
activity between two legislators is protected, so too is an alter ego’s communication with a
legislator, or even a communication between two alter egos.
Factors for the court to consider in determining whether an individual functions as an
alter ego include the individual’s relationship with the legislator, the individual’s identity, and
the source or terms of the individual’s pay, if any. This list is not exhaustive, and no one factor
is determinative. Based on the totality of the circumstances, courts must evaluate function:
whether the person is acting as “one” with the legislator, id. at 616-17, and whether the
individual is functioning in a legislative capacity. See id. at 622.
The first factor, the relationship with the legislator, bears both on function and whether
the individual was truly acting on behalf of the legislator. A subordinate or employee working
on legislative matters, such as a legislative staffer or DLS employee, is likely to perform
legislative functions on behalf of the legislator. A constituent with whom the legislator has had
only one contact is unlikely to be acting on the legislator’s behalf. An individual need not be a
10
Because the privilege belongs to the legislator, non-legislators may not waive a
legislator’s privilege. Gravel, 408 U.S. at 622 & n.13. Consequently, a legislator may invoke
the privilege to prevent his or her non-legislator agent’s disclosure of material it protects.
20
legislator’s personal staffer to function within the ambit of the Speech or Debate Clause’s
protections. See Doe v. McMillan, 412 U.S. 306, 312 (1973) (“[I]t is plain to us that the
complaint in this case was barred by the Speech or Debate Clause insofar as it sought relief from
the Congressmen-Committee members, from the Committee staff, from the consultant, or from
the investigator. . . .”); Rangel v. Boehner, 785 F.3d 19, 25 (D.C. Cir. 2015) (legislative alter
egos may come “from all walks of legislative life”). In all cases, however, the alter ego must
function as an extension of the legislator, not on behalf of the interests of others. Fields, 75 P.3d
at 1098 (“[A] legislator may invoke the legislative privilege to shield from inquiry the acts of
independent contractors retained by that legislator that would be privileged legislative conduct if
personally performed by the legislator.”).
Next, the individual’s identity informs whether he or she is likely to be functioning in the
legislative sphere. For example, policy consultants are more likely to be working in the
legislative sphere than political or media consultants. A lawyer working for the legislative
branch is more likely to be working in the legislative sphere than someone who specializes in
information technology. Admittedly, attempts to draw fine lines between policy and politics will
in many cases prove to be illusive. Nonetheless, to the extent that particular communications can
be considered policy oriented, they are likely to fall within the legislative sphere.
Third, the source of an individual’s remuneration, if any, may also be relevant to this
inquiry to the extent it informs his likely function. The nature of a remuneration agreement may
inhibit some individuals from acting on “behalf” of a legislator. However, it is the individual’s
function, not the fact or form of employment, that informs whether the individual acts as an alter
ego. See Gravel, 408 U.S. at 622; see Fields, 75 P.3d at 1098 (“[F]unction trumps title.”).
21
The circuit court acknowledged that communication between legislators and their aides
could be privileged. However, relying on Page, 15 F. Supp. 3d at 663, which in turn relied on
Code § 30-19.20, the circuit court utilized a dispositive test requiring that a party be employed
and paid by the General Assembly for privilege to attach. Code § 30-19.20, a statutory
provision, cannot serve to limit the legislative privilege set forth in the Constitution of Virginia.
Further, that statute relates to the hiring of employees for the General Assembly. Code § 30-
19.20 does not inform this issue. Gravel did not turn on compensation. 11 The circuit court
therefore erred in finding that DLS and DLS employees could not, as a matter of law, act in an
alter ego capacity.
The circuit court also erred to the extent it held there is a categorical bar against a
consultant serving as the alter ego of a legislator. 12 Although the nature of a consultant’s
engagement may bear upon whether the communications with the legislator are within the
legislative sphere, or purely political and outside the legislative sphere, the form of hire as a
“consultant,” standing alone, is not dispositive. “Gravel turned on the function fulfilled by [the
aide] rather than his job title.” Fields, 75 P.3d at 1097. Other state courts applying Gravel in
redistricting litigation have observed that consultants serve a vital function to part-time
legislators who lack the budget necessary to hire staffers with specialized areas of expertise. See
11
Neither the lower courts’ opinions nor the Supreme Court’s opinion disclosed whether
and how much Dr. Rodberg was paid for his services on Gravel’s behalf.
12
The appellees acknowledge that, if a legislator or group of legislators hired an outside
consultant on a legislative matter, communications with the consultant could relate to the
legislative process. However, the appellees assert the consultant would not function as an alter
ego because Code § 30-19.20 does not deem consultants “necessary.” As discussed above, that
argument is not persuasive.
22
Fields, 75 P.3d at 1097-98; Holmes v. Farmer, 475 A.2d 976, 983-84 (R.I. 1984). Further,
although the consultants in Fields were retained by Arizona’s independent redistricting
commission, not the state legislature, that court observed that, in that case, the “manner of
employment does not affect the consultant’s function within the legislative process.” Fields, 75
P.3d at 1097-98. As with DLS, the focus must be upon the consultant’s function in the sphere of
legitimate legislative activity and the nature of the consultant’s relationship with the Member.
The circuit court further erred by holding that, as a matter of law, communications
between legislators and constituents or other third parties cannot be protected by legislative
privilege. Such individuals are equally capable of performing acts as alter-egos, subject to the
same requirements that the acts that they perform both fall within the sphere of legitimate
legislative activity and are delegated by the legislator to be performed on his or her behalf. Any
basis on which to differentiate a constituent or other third party from a legislator’s personal
legislative staffer, including unpaid interns, or consultants would be artificial. Doe, 455 F.2d at
761. Provided the legislator has requested the constituent or third party’s assistance in the
performance of a legislative act, the privilege applies to that individual as much as to any other
alter ego. However, unsolicited communications and acts taken by the constituent or third party
on his or her own initiative will not satisfy this test, even when closely connected to legitimate
legislative activity.
In this case, due to the early stage of discovery, this Court cannot speculate as to
potentially privileged communications involving third parties. However, the circuit court erred
in concluding legislative privilege could not, as a matter of law, apply to communications
between legislators or their staff and third parties.
23
The Clause allows legislators to fulfill their legislative duties without undue interference.
That legislators seek assistance in accomplishing these functions does not diminish this goal or
this protection. It would be of little use to protect acts regarding the drafting of a bill when
performed by a legislator but not an agent at the legislator’s direction. Legislators must be free
to accomplish legislative tasks through agents, including and especially to obtain assistance in
legislative drafting from the experienced staff at DLS. 13 Focusing on function affords the
legislator the ability to make use of agents with particular areas of expertise and to delegate
substantial workloads. Refusing to protect such requests and DLS’ resulting work product as
privileged would frustrate the purposes of the Clause, as commonly understood, and severely
hamper the legislative process.
IV. CONCLUSION
On this record, the circuit court abused its discretion by holding the Virginia Senators and
DLS in contempt because it erroneously ruled that the materials sought in the appellants’
subpoenas duces tecum were not protected by the legislative privilege enshrined in the Clause.
Accordingly, the portion of the April 14, 2016 order holding the Virginia Senators and DLS in
contempt will be vacated. The portions of the February 16, 2016 order that are inconsistent with
this opinion will be vacated, and the case will be remanded for further proceedings consistent
with this opinion.
13
The Code of Virginia directs that delegation to DLS is made to DLS as an entity. See
Code § 30-28.18 (“All requests for the drafting of bills or resolutions by the Division shall be
submitted in person, in writing, or by voice transmission.” (emphasis added)). Therefore,
legislative privilege covers all relevant delegated legislative work within DLS and, with a
legislator’s permission, may be invoked by the agency or the staffers who are engaged in this
work.
24
Vacated in part and remanded.
25