A bill aimed at ensuring civil immunity for legislative staff got
sidetracked today when Democrats in the House questioned whether it might go
too far in protecting both lawmakers and employees from the consequences of
House Speaker Brian Porter held off on taking a vote on the floor to see
whether differences could be resolved.
The bill, by House State Affairs Chairman John Coghill, was in response to a
subpoena his legislative aide, Rynnieva Moss, received from the Attorney
General's Office in February. The state sought her testimony in a court case
involving the Division of Youth and Family Services.
Coghill noted there already is federal and state constitutional case law
that extends legislative immunity to staff, notably a 1972 U.S. Supreme
Court decision involving former Alaska Sen. Mike Gravel and the Pentagon
Papers on the Vietnam War.
But there needs to be statutory protection to prevent further incidents in
which staffers are threatened with arrest for failing to comply with an
erroneous subpoena, said Coghill, a North Pole Republican. "Now we're
looking for an address in our statutes to say this is in fact true, so that
we don't have the courts intimidating us."
Moss resisted the subpoena, writing to R. Poke Haffner in the Fairbanks
office of the attorney general: "If I were to testify, it would set a
precedent that could completely destroy a legislator's ability to handle
While the Attorney General's Office ultimately did not stick with its
subpoena of Moss, officials also implied that they weren't backing off
because they thought they were wrong but only because they "weren't willing
to fight that battle right now," Coghill said.
But Democrats were alarmed because Coghill's bill would go from the current
protection of "statements" made in the course of legislative business to
covering "actions" of lawmakers and aides.
"I'm not quite certain what this language does," said Rep. Beth Kerttula, a
Juneau Democrat and former assistant attorney general. "I believe it'll make
it confusing to the courts if they're called to deal with it."
Rep. Eric Croft of Anchorage said that it's too much to stipulate that
legislators and staff "may not be held to answer before any other tribunal
for actions undertaken in the exercise of their legislative duties."
"Sending a staffer to pick up the mail, to drive down to pick up printing
that you're going to send out, and they crash into somebody - undertaken in
the exercise of their duties?? I think so," Croft said. "Cannot be held in
any tribunal? Why? ...
"This is not technical. This is not minor. This doesn't close, simply, a
communication confidentiality. This fundamentally changes our accountability
and the accountability of the myriad of staff that we have."
Fairbanks Republican Rep. Jim Whitaker made an appeal for common sense.
"I never cease to be amazed at our ability to focus on an outlandish
improbability, and then give that outlandish improbability the credibility
of a probability," Whitaker said. "It probably isn't going to happen. ...
"I don't think it's probable a legislator who commits murder is going to be
able to claim, 'Well, we had an argument, and I shot him, and that was my
legislative duty.' "
House Minority Leader Ethan Berkowitz of Anchorage said it's "noble" to
provide for free debate by immunizing speech.
"But when we run the risk of making our process less transparent, when we
run the risk of immunizing for actions that would leave otherwise deserving
Alaskans from getting recourse, that's not a probability of doing something
wrong; that's a certainty of doing something wrong."
The House could revisit the issue Thursday.
Bill McAllister can be reached at email@example.com.