Legislators consider staffer immunity

Democrats concerned about breadth of bill

Posted: Wednesday, April 10, 2002

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

their actions.

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

constituent complaints."

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 billm@juneauempire.com.



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