A Look at the Limits of Legislative Immunity

By Julie Pelegrin

In representing the interests of constituents, a legislator may introduce legislation or an amendment that makes someone angry or that someone may consider unfair. When debating bills in committee or on the floor, a legislator may make a statement that offends someone or that someone believes is untrue. In the course of serving in the General Assembly, a legislator may do any number of things that could result in a civil law suit or even, in very rare circumstances, criminal charges. The framers of the Colorado constitution, anticipating these possibilities, included constitutional protections to ensure that legislators can do their jobs without interference or intimidation by the judicial or executive branches.

These constitutional protections are known as legislative immunity and are found in section 16 of article V of the Colorado constitution. This section states that a legislator cannot be arrested, except for treason or a felony, while attending or traveling to or from a legislative session or committee hearing. Further, what a legislator says or does during speech or debate in the Senate, the House, or a legislative committee cannot be “questioned in any other place.”

The courts have applied this section to more than just attending legislative sessions and engaging in speech or debate. The courts have said that, with regard to anything a legislator does that falls within the “sphere of legitimate legislative activity,” the legislator cannot be civilly sued, criminally prosecuted under state law, or forced to testify or produce documents.

In Colorado Common Cause v. Bledsoe, the Colorado Supreme Court explained that the founding fathers included legislative immunity in the U.S. Constitution to prevent the types of abuses that occurred in England during the 1600s and 1700s when monarchs tried to suppress and intimidate members of Parliament by subjecting them to criminal prosecution and civil suits in retaliation for their legislative actions. In the United States, legislative immunity preserves the independence and integrity of the legislature by reinforcing the separation of powers, preventing intimidation of legislators by the executive branch, and protecting legislators from unwarranted appearances before a possibly hostile judiciary.

The most important question in applying legislative immunity is whether a legislator’s actions fall within the “sphere of legitimate legislative activity.” There are actions a legislator may take, even when he or she is engaging in activities related to his or her legislative office, that do not fall within this sphere. If an action is not a legitimate legislative activity, the legislator is not protected by legislative immunity.

Actions within the sphere of legitimate legislative activity include:
• Actions that a legislator takes during formal legislative proceedings, such as chairing a committee, debating, making motions, and voting;
• Legislative committee investigations;
• Impeachment proceedings;
• Enacting and enforcing legislative rules; and
• Publishing official legislative documents.

Actions that the courts have found to be outside the sphere of legitimate legislative activity include:
• Publishing newsletters, press releases, and campaign materials;
• Giving speeches outside the legislature;
• Meeting with or influencing executive branch or local government employees or officials;
• Republishing protected legislative speech to the general public; and
• Engaging in committee activities that are outside the scope of the committee’s powers.

When the question of legislative immunity arises with regard to legislation or the legislative process, as in the cases of Lucchesi v. State of Colorado and Romer v. Colorado General Assembly, the court will determine whether the lawsuit is challenging the constitutionality of the legislation or the constitutionality of the procedure the General Assembly followed in enacting the legislation. If the suit challenges the legislation itself, then legislators are protected by legislative immunity. If the suit challenges the procedures followed in enacting the legislation, the legislators are not protected by legislative immunity if the court finds that the procedure did not fall within the sphere of legitimate legislative activity.

In the first case, Mr. Lucchesi challenged the constitutionality of certain tax statutes. The court dismissed the legislators who were named as defendants because, under legislative immunity, a legislator cannot be sued for sponsoring or voting for legislation, even if that legislation is later held to be unconstitutional. Sponsoring and voting on legislation is clearly within the sphere of legitimate legislative activity.

In the Romer case, however, the General Assembly sent a letter to the Governor stating that his attempted veto of certain headnotes and footnotes in the annual appropriations bill was unconstitutional and would therefore be ignored; the headnotes and footnotes would be implemented as if the veto had never occurred. The Governor challenged the procedure of sending a letter in response to a veto and asked the court for a declaratory judgment as to whether the Governor’s veto of the headnotes and footnotes was valid. The court held that the General Assembly did not act within the sphere of legitimate legislative activity when it chose to ignore the veto by letter. The General Assembly should have either tried to override the veto or asked for a declaratory judgment that the veto was unconstitutional. The court held that the headnotes and footnotes were presumed to have been vetoed absent a valid legislative override or a judicial declaration to the contrary.