legislative privilege in Arizona

2022The Speech or Debate Clause is rooted in separation of powers principles and “protects Members against prosecutions that directly impinge upon or threaten the legislative process.” Gravel v. United States, 408 U.S. 606, 616 (1972). ¶18 Legislative immunity “prevents legislators, their aides, and their contractors from being criminally prosecuted or held civilly liable for their legislative activities.” Mesnard v. Campagnolo, 251 Ariz. 244, 248, ¶ 12 (2021).

2022Legislative privilege—as set forth in Gravel v. United States, 408 U.S. 606 (1972), and Arizona Independent Redistricting Commission v. Fields, 206 Ariz. 130 (App. 2003) (the “Gravel/Fields framework”)—exists to protect the integrity and functioning of the legislature.

2022Legislative privilege—as set forth in Gravel v. United States, 408 U.S. 606 (1972), and Arizona Independent Redistricting Commission v. Fields, 206 Ariz. 130 (App. 2003) (the “Gravel/Fields framework”)—exists to protect the integrity and functioning of the legislature.

2022Legislative privilege “is not intended to protect legislators’ individual interests, ‘but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal.’” Fields, 206 Ariz. at 137 ¶ 17 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808)).

2022The Speech or Debate Clause is rooted in separation of powers principles and “protects Members against prosecutions that directly impinge upon or threaten the legislative process.” Gravel v. United States, 408 U.S. 606, 616 (1972). ¶18 Legislative immunity “prevents legislators, their aides, and their contractors from being criminally prosecuted or held civilly liable for their legislative activities.” Mesnard v. Campagnolo, 251 Ariz. 244, 248, ¶ 12 (2021).

2022Legislative immunity applies to legislators, legislative aides, and legislative contractors’ “legislative activities.” Id. at 248 ¶ 12.

2022Legislative privilege “is not intended to protect legislators’ individual interests, ‘but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal.’” Fields, 206 Ariz. at 137 ¶ 17 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808)).

2003The privilege is not intended to protect legislators’ individual interests, “but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal.” Coffin v. Coffin, 4 Mass. 1, 27 (1808). ¶ 18 This legislative privilege does not extend to cloak “all things in any way related to the legislative process.” Steiger, 112 Ariz. at 4 , 536 P.2d at 692 .

2021See Doe v. McMillan, 412 U.S. 306, 312 (1973) (extending legislative immunity to a consultant); AIRC, 206 Ariz. at 140 ¶¶ 29–30 (acknowledging that “the modern, part-time legislature, in light of budgetary constraints, contracts with expert consultants on a variety of subjects rather than retaining staff with such expertise” and extending the legislative privilege to such contractors’ acts “that would be privileged legislative conduct if personally performed by the legislator”). ¶21 The resulting investigative report, even if modified by Mesnard, was “an integral part of the deliberative and c

2021See Doe v. McMillan, 412 U.S. 306, 312 (1973) (extending legislative immunity to a consultant); AIRC, 206 Ariz. at 140 ¶¶ 29–30 (acknowledging that “the modern, part-time legislature, in light of budgetary constraints, contracts with expert consultants on a variety of subjects rather than retaining staff with such expertise” and extending the legislative privilege to such contractors’ acts “that would be privileged legislative conduct if personally performed by the legislator”). ¶21 The resulting investigative report, even if modified by Mesnard, was “an integral part of the deliberative and c

2021See Gravel, 408 U.S. at 625 ; see also Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979) (acknowledging that preparation of committee reports is protected by legislative immunity).

2021See Gravel, 408 U.S. at 625 ; see also Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979) (acknowledging that preparation of committee reports is protected by legislative immunity).

2006As Division One has since explained: “In Arizona Independent Redistricting Commission v. Fields, 206 Ariz. 130 , 75 P.3d 1088 (App. 2003), this court determined that the legislative privilege, like the work-product immunity, may be waived by designating a consulting expert as a testifying expert.” Slade v. Schneider, 212 Ariz. 176, ¶ 22 , 129 P.3d 465, 469 (App. 2006). 3 Federal cases addressing Rule 26(b)(4) are persuasive, as “uniformity in interpretation of our rules and the federal rules is highly desirable.” Orme Sch. v. Reeves, 166 Ariz. 301, 304 , 802 P.2d 1000, 1003 (Ariz. 1990); see a

2006As Division One has since explained: “In Arizona Independent Redistricting Commission v. Fields, 206 Ariz. 130 , 75 P.3d 1088 (App. 2003), this court determined that the legislative privilege, like the work-product immunity, may be waived by designating a consulting expert as a testifying expert.” Slade v. Schneider, 212 Ariz. 176, ¶ 22 , 129 P.3d 465, 469 (App. 2006). 3 Federal cases addressing Rule 26(b)(4) are persuasive, as “uniformity in interpretation of our rules and the federal rules is highly desirable.” Orme Sch. v. Reeves, 166 Ariz. 301, 304 , 802 P.2d 1000, 1003 (Ariz. 1990); see a

2006As Division One has since explained: "In Arizona Independent Redistricting Commission v. Fields, 206 Ariz. 130 , 75 P.3d 1088 (App.2003), this court determined that the legislative privilege, like the work-product immunity, may be waived by designating a consulting expert as a *464 testifying expert." Slade v. Schneider, 212 Ariz. 176, ¶ 22 , 129 P.3d 465, 469 (App.2006). 3 .

2006As Division One has since explained: "In Arizona Independent Redistricting Commission v. Fields, 206 Ariz. 130 , 75 P.3d 1088 (App.2003), this court determined that the legislative privilege, like the work-product immunity, may be waived by designating a consulting expert as a *464 testifying expert." Slade v. Schneider, 212 Ariz. 176, ¶ 22 , 129 P.3d 465, 469 (App.2006). 3 .

2022In Steiger, a member of Congress invoked the legislative privilege under the federal Speech or Debate Clause to prevent his former aide from being deposed about a meeting that took place with the member, his aide, and other individuals. 112 Ariz. at 2 .

2022While the court recognized that “the impetus” for subsequent proposed legislation may have been related to the investigation, it declined to extend the legislative privilege to “all things in any way related to the legislative process.” Id. at 4 (“Under such an expansive view there are few activities in which a legislator engages that could not be somehow related to the legislative process.”). ¶30 In short, the Senate has made no showing that the audit was in any way related to any proposed legislation.

2025Council v. Howe, 192 Ariz. 378 , 383 ¶ 16 (1998) (“Put another way, the language must not mislead, be ‘tinged with partisan coloring,’ or argue for one side or the other.” (quoting Greene, 180 Ariz. at 590)). ¶77 Turning to the legislative analysis here, I conclude that the term “unborn human being” is “tinged with partisan coloring” when used in describing the Initiative’s impact.

2025See Howe, 192 Ariz. at 383 ¶ 16 (quoting Greene, 180 Ariz. at 590).

2025Council v. Howe, 192 Ariz. 378 , 383 ¶ 16 (1998) (“Put another way, the language must not mislead, be ‘tinged with partisan coloring,’ or argue for one side or the other.” (quoting Greene, 180 Ariz. at 590)). ¶77 Turning to the legislative analysis here, I conclude that the term “unborn human being” is “tinged with partisan coloring” when used in describing the Initiative’s impact.

2025See Howe, 192 Ariz. at 383 ¶ 16 (quoting Greene, 180 Ariz. at 590).

2022See Edwards v. Vesilind, 292 Va. 510, 525 (2016) (“Once a court determines that legislative privilege attaches, it is absolute in nature.”); see also Miller v. Transamerican Press, Inc., 709 F.2d 524, 528 (9th Cir. 1983). ¶21 Legislative privilege, however, does not apply to all legislative-related conduct in all circumstances, and a court must first determine whether the records or conduct at issue fall within the scope of the privilege.

2022But the legislative privilege “should not extend beyond what is necessary to accomplish the purposes of the [Speech and Debate] clause.” Miller, 709 F.2d at 528 ; see Gravel, 408 U.S. at 618 8 FANN, et al. v. HON.

2022Scope of the Privilege ¶22 The federal Speech or Debate Clause is interpreted “broadly” and covers “anything ‘generally done in a session of the House by one of its members in relation to the business before it.’” United States v. Brewster, 408 U.S. 501, 509 (1972) (citation omitted).

2022See id.

2022See Edwards v. Vesilind, 292 Va. 510, 525 (2016) (“Once a court determines that legislative privilege attaches, it is absolute in nature.”); see also Miller v. Transamerican Press, Inc., 709 F.2d 524, 528 (9th Cir. 1983). ¶21 Legislative privilege, however, does not apply to all legislative-related conduct in all circumstances, and a court must first determine whether the records or conduct at issue fall within the scope of the privilege.

2013And that policy justification does not implicate subject matter jurisdiction because it does not involve the court’s “statutory or constitutional power to hear and determine a particular type of case,” State v. Maldonado, 223 Ariz. 309, ¶ 14 , 223 P.3d 653, 655 (2010), but instead only creates a legislative presumption that the state would be unable to prove a defendant’s guilt beyond a reasonable doubt. ¶ 11 Finally, Banda asserts the trial court erred in summarily rejecting his claim trial counsel had been ineffective for failing to raise the statute of limitations before “allowing him to en

2013And that policy justification does not implicate subject matter jurisdiction because it does not involve the court’s “statutory or constitutional power to hear and determine a particular type of case,” State v. Maldonado, 223 Ariz. 309, ¶ 14 , 223 P.3d 653, 655 (2010), but instead only creates a legislative presumption that the state would be unable to prove a defendant’s guilt beyond a reasonable doubt. ¶ 11 Finally, Banda asserts the trial court erred in summarily rejecting his claim trial counsel had been ineffective for failing to raise the statute of limitations before “allowing him to en

2013And that policy justification does not implicate subject matter jurisdiction because it does not involve the court’s “statutory or constitutional power to hear and determine a particular type of case,” State v. Maldonado, 223 Ariz. 309, ¶ 14 , 223 P.3d 653, 655 (2010), but instead only creates a legislative presumption that the state would be unable to prove a defendant’s guilt beyond a reasonable doubt. ¶ 11 Finally, Banda asserts the trial court erred in summarily rejecting his claim trial counsel had been ineffective for failing to raise the statute of limitations before “allowing him to en

2013And that policy justification does not implicate subject matter jurisdiction because it does not involve the court’s “statutory or constitutional power to hear and determine a particular type of case,” State v. Maldonado, 223 Ariz. 309, ¶ 14 , 223 P.3d 653, 655 (2010), but instead only creates a legislative presumption that the state would be unable to prove a defendant’s guilt beyond a reasonable doubt. ¶ 11 Finally, Banda asserts the trial court erred in summarily rejecting his claim trial counsel had been ineffective for failing to raise the statute of limitations before “allowing him to en

2013State v. Quick, 177 Ariz. 314, 316 , 868 P.2d 327, 329 (App.1993).

2013State v. Quick, 177 Ariz. 314, 316 , 868 P.2d 327, 329 (App.1993).

2009Similarly, Rule 802 provides that hearsay is inadmissible “except as provided by applicable constitutional provisions, statutes, or rules.” Nonetheless, in State v. Robinson, we struck down a legislative exception to the hearsay rales under the separation of powers doctrine. 153 Ariz. 191, 197-98 , 735 P.2d 801, 807-08 (1987).

2009Similarly, Rule 802 provides that hearsay is inadmissible “except as provided by applicable constitutional provisions, statutes, or rules.” Nonetheless, in State v. Robinson, we struck down a legislative exception to the hearsay rales under the separation of powers doctrine. 153 Ariz. 191, 197-98 , 735 P.2d 801, 807-08 (1987).

2008This, too, as explained herein, is consistent with the Arizona Supreme Court's subsequent decisions in Phillips and Christian pertaining to those portions of § 13-604(W)(2) (subsections (a) and (d) as contrasted with (b) and (c)) which do not have a specific legislative requirement as to the timing of the offenses rather than the convictions. ¶ 54 In State v. Fallon, 151 Ariz. 188, 189 , 726 P.2d 604, 605 (App.1986), this court had before it the issue of whether then-§ 13-702(H) "is to be applied retroactively to designate an open-end offense as a felony in order to trigger the repeat felony o

2008This, too, as explained herein, is consistent with the Arizona Supreme Court's subsequent decisions in Phillips and Christian pertaining to those portions of § 13-604(W)(2) (subsections (a) and (d) as contrasted with (b) and (c)) which do not have a specific legislative requirement as to the timing of the offenses rather than the convictions. ¶ 54 In State v. Fallon, 151 Ariz. 188, 189 , 726 P.2d 604, 605 (App.1986), this court had before it the issue of whether then-§ 13-702(H) "is to be applied retroactively to designate an open-end offense as a felony in order to trigger the repeat felony o

2005Creasy, 198 Ariz. at 544, ¶ 18, 12 P.3d at 219 (stating that legislature cannot authorize by statute activity that would result in the unauthorized practice of law because a court rule governing the practice of law “trumps statutory law”); see also Ariz. Land Title & Trust Co., 90 Ariz. at 95, 366 P.2d at 14 (“although the legislature may impose additional restrictions which affect the licensing of attorneys, it cannot infringe on the ultimate power of the courts to determine who may practice law”) (citing In re Greer, 52 Ariz. 385, 389-90 , 81 P.2d 96, 98 (1938)); Conway, 60 Ariz. at 81, 131

2005Creasy, 198 Ariz. at 544, ¶ 18, 12 P.3d at 219 (stating that legislature cannot authorize by statute activity that would result in the unauthorized practice of law because a court rule governing the practice of law “trumps statutory law”); see also Ariz. Land Title & Trust Co., 90 Ariz. at 95, 366 P.2d at 14 (“although the legislature may impose additional restrictions which affect the licensing of attorneys, it cannot infringe on the ultimate power of the courts to determine who may practice law”) (citing In re Greer, 52 Ariz. 385, 389-90 , 81 P.2d 96, 98 (1938)); Conway, 60 Ariz. at 81, 131

2004(Emphasis added.) The statute applies only if the “defendant’s conduct ... [was] focused on, directed against, aimed at, or targeted] a victim under the age of fifteen.” 206 Ariz. at 324, ¶ 19 , 78 P.3d at 735 (quoting Williams, 175 Ariz. at 103, 854 P.2d at 136).

2004(Emphasis added.) The statute applies only if the “defendant’s conduct ... [was] focused on, directed against, aimed at, or targeted] a victim under the age of fifteen.” 206 Ariz. at 324, ¶ 19 , 78 P.3d at 735 (quoting Williams, 175 Ariz. at 103, 854 P.2d at 136).

2003Bryan v. City of Madison, 213 F.3d 267, 273 (5th Cir.2000). ¶ 19 The IRC argues that the trial court erred by compelling production of documents exchanged between the IRC and NDC because such communications are protected by the legislative privilege.

2003See Bogan v. Scott-Harris, 523 U.S. 44, 48-49 , 118 S.Ct. 966 , 140 L.Ed.2d 79 (1998) (citation omitted) (recognizing that legislative immunity “‘has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries’ and was ‘taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.’”); United States v. Johnson, 383 U.S. 169, 177-78 , 86 S.Ct. 749 , 15 L.Ed.2d 681 (1966) (tracing origins of Speech or Debate Clause to English Bill of Rights of 1689 and Articles of Confederation and noting that clause reinforces separation of powers). 2

2003See Bogan v. Scott-Harris, 523 U.S. 44, 48-49 , 118 S.Ct. 966 , 140 L.Ed.2d 79 (1998) (citation omitted) (recognizing that legislative immunity “‘has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries’ and was ‘taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.’”); United States v. Johnson, 383 U.S. 169, 177-78 , 86 S.Ct. 749 , 15 L.Ed.2d 681 (1966) (tracing origins of Speech or Debate Clause to English Bill of Rights of 1689 and Articles of Confederation and noting that clause reinforces separation of powers). 2