Texas AG leads 10-state brief supporting legislative immunity in Arkansas Supreme Court case

By David Yates | May 30, 2018

AUSTIN – On May 30, Attorney General Ken Paxton filed a 10-state friend-of-the-court brief supporting Arkansas in its legal fight to preserve the venerable principle of legislative immunity that first appeared in the English Bill of Rights of 1689 and was incorporated into the Constitution at the founding to ensure that legislators can do their jobs without fear of retribution.

AUSTIN – On May 30, Attorney General Ken Paxton filed a 10-state friend-of-the-court brief supporting Arkansas in its legal fight to preserve the venerable principle of legislative immunity that first appeared in the English Bill of Rights of 1689 and was incorporated into the Constitution at the founding to ensure that legislators can do their jobs without fear of retribution.

The city of Fayetteville sued the state of Arkansas to override legislative immunity, candidly confessing its goal of uncovering the reasons that individual state legislators supported a legislative initiative (Act 137) that the city opposes.

The ACLU sought to compel the depositions of various Arkansas legislators who voted in favor of the law.

In the brief, filed with the Arkansas Supreme Court, Paxton pointed out that the city’s effort runs contrary to the Arkansas Speech or Debate Clause, which shields state legislators from being forced to explain themselves and their actions. It also invites courts to override the separation of powers by overseeing an inquisition into how a co-equal branch of government conducts its business.

“At stake in this case is the fundamental right of any legislator to speak his or her mind with impunity while engaged in legislative work,” Paxton said. “The ACLU’s deposition requests threaten to violate that independence and undermine the important principle of legislative immunity that our founders incorporated into the U.S. Constitution.”

The principles underlying legislative immunity are so essential that 38 states, including Arkansas and Texas, have enshrined a speech or debate clause in their foundational charters.

The Texas Speech or Debate Clause, like its federal counterpart, shields legislators not only from liability, but from all lawsuits.

In ruling that legislators are not “susceptible to judicial inquiry into their subjective thought processes,” Texas courts have explained that a “court has no more authority to investigate the motives of local legislators than the legislative body has to regulate [judges] deliberations in conference or ask why [judges] ruled a certain way in a given case,” Attorney General Paxton wrote in the brief.

Texas was joined on the amicus brief by Alabama, Idaho, Indiana, Kansas, Louisiana, Michigan, Missouri and Oklahoma, along with Kentucky Governor Matthew Blevin.

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