by Sharon Eubanks
Citizens often turn to the courts to challenge the acts of the General Assembly and its members, which can lead to legislators being served with subpoenas commanding them to appear at a deposition, trial, or administrative proceeding to give testimony. Because responding to a subpoena can be time consuming and inconvenient and can implicate the interests of the General Assembly as a whole, legislators should be familiar with the range of options that are available if they are served with a subpoena.
Does the subpoena seek testimony regarding the legislator’s legislative duties?
When a legislator is served with a subpoena, he or she must generally appear at the time and place specified in the subpoena to give testimony unless the doctrine of legislative immunity provides an evidentiary privilege against testifying. Legislative immunity provides this evidentiary privilege only with respect to activities that fall within the sphere of legitimate legislative activity, such as:
- Taking actions during committee meetings and floor sessions;
- Taking actions during the course of committee investigations;
- Participating in impeachment proceedings; and
- Enacting and enforcing legislative rules.
In contrast, courts have found the following actions to be outside the sphere of legitimate legislative activity:
- Meeting with or influencing executive branch or local government employees or officials; and
- Engaging in committee activities that are outside the scope of the committee’s powers.
For further discussion of the doctrine of legislative immunity and activities that fall within the sphere of legislative activity, see this LegiSource article.
The Office of Legislative Legal Services (OLLS) can help a legislator determine whether a particular activity is likely to fall within the sphere of legitimate legislative activity. If the subpoena is seeking testimony regarding an activity that does not fall within the legislative sphere, the subpoena probably applies to the legislator as a private citizen and the legislator may be compelled to testify. In this case, the legislator should consider retaining private counsel if he or she wants to try to avoid testifying; the OLLS will not be able to provide further legal assistance.
Options when the subpoena seeks testimony with respect to legislative activities.
If a legislator is subpoenaed to testify regarding activities that fall within the sphere of legitimate legislative activity, the legislator has the option of deciding whether to testify and, if a legislator decides not to testify, the legislator may ask the Committee on Legal Services to retain legal representation to assist with the matter.
If the legislator does not wish to testify, the appropriate legal action is to file a motion to quash the subpoena. Alternatively, the OLLS has found that many private attorneys are unfamiliar with the doctrine of legislative immunity and will voluntarily withdraw a subpoena once informed of the doctrine.
Legislative immunity does not prohibit a legislator from testifying voluntarily, and the legislator must ultimately make the decision about whether to testify. However, before deciding to testify and while testifying, a legislator should consider the following issues:
- Testifying can be time consuming and can interfere with the legislator’s legislative duties;
- The best evidence of legislative intent or of what was said during a debate is the recording or transcript of the debate itself, and a legislator’s subsequent testimony as to legislative intent will likely be inadmissable; and
- The legislator should clearly state while testifying that he or she is testifying solely as an individual and that he or she is not representing the views of the General Assembly as a whole.
In sum, a legislator who is served with a subpoena can often avoid testifying and, before deciding to testify, should give serious consideration to the potential consequences of testifying and the possibility that his or her testimony may be given little weight or even ruled inadmissible. After being handed a subpoena, the first call that a legislator makes should be to the OLLS so the Office may help the legislator work through these issues.