Chapter 4. The Legislature


Published: 2015

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
WEST VIRGINIA CODE











‹ Back



 |   Print







WVC 4-

CHAPTER 4. THE LEGISLATURE.

WVC 4 - 1 A-

ARTICLE 1A. LEGISLATIVE IMMUNITY.







WVC 4 - 1 A- 1

§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;

(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.







WVC 4 - 1 A- 2

§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.







WVC 4 - 1 A- 3

§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.







WVC 4 - 1 A- 4

§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.







WVC 4 - 1 A- 5

§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.







WVC 4 - 1 A- 6

§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.







WVC 4 - 1 A- 7

§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.







WVC 4 - 1 A- 8

§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.







WVC 4 - 1 A- 9

§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.







WVC 4 - 1 A- 10

§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 decision making 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; or

(2) Are peculiar to a legislator's work as a legislator or

intimately cognate to the legislative process.







WVC 4 - 1 A- 11

§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.







WVC 4 - 1 A- 12

§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.







WVC 4 - 1 A- 13

§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.







WVC 4 - 1 A- 14

§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.







WVC 4 - 1 A- 15

§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.







WVC 4 - 1 A- 16

§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.





Note: WV Code updated with legislation passed through the 2015 Regular Session

The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.