A bill aimed at ensuring civil immunity for legislative staff got sidetracked Wednesday when Democrats in the House questioned whether it might go too far in protecting 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," he said.
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 today.
Bill McAllister can be reached at firstname.lastname@example.org.
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