CONSTITUTIONAL LAW ‑- STATE ‑- LEGISLATORS ‑- PRIVILEGE FOR WORDS SPOKEN IN DEBATE ‑- DEFAMATION

CONSTITUTIONAL LAW ‑- STATE ‑- LEGISLATORS ‑- PRIVILEGE FOR WORDS SPOKEN IN DEBATE ‑- DEFAMATION.

Under Article II, § 17, of the Washington State Constitution members of the legislature are granted an absolute privilege for words spoken in debate which privilege attaches while a legislator is performing his proper legislative function whether within or without the physical confines of the legislature itself.

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                                                                   May 14, 1962

Honorable Albert C. Thompson, Jr.
State Senator, 48th District
250 Bellevue Square
Bellevue, Washington

                                                                                                              Cite as:  AGO 61-62 No. 134

Dear Sir:

            By letter previously acknowledged you have directed our attention to Article II, § 17, of the Washington Constitution.  In the light of this provision, you have requested an opinion of this office on the following question:

            "Is a member of the state legislature subject to an action for civil damages on a theory of libel or slander in any of the following circumstances:

            "(1) In floor discussions in either house of the state legislature.

            "(2) During committee meetings for the discussions of legislation referred to such committee during a legislative session.

            "(3) During public hearings held by a legislative committee during a legislative session on legislation duly referred to the committee.

            "(4) During committee meetings or public hearing of interim committees of the legislature between sessions thereof when the matter under discussion is properly within the authority of the committee.

            "(5) In a meeting or a public hearing of a subcommittee of an interim committee of the legislature between regular sessions of the legislature.

            "(6) In remarks given to State Boards, Agencies and Commissions."

             [[Orig. Op. Page 2]]

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            Article II, § 17, of the Washington Constitution reads as follows:

            "No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate."

            Similar provisions appear in the United States Constitution (Article I, § 6) and in the constitutions of almost every state.  Though the precise language is not in every case the same, each of these constitutional provisions simply adopts, as a constitutional principle, a concept born of the struggle by England's Parliament for increasing independence from the Crown.  See, Tenney v. Brandhove, 341 U.S. 367, 95 L.Ed. 1019, 71 S.Ct. 783 (1950).

            No decisions of the Washington court involving application of this principle have been found.  Nor do we find any great number of pertinent judicial decisions from other jurisdictions.

            However, to the extent that the matter has been considered by the courts, there appears to have been established with a high degree of unanimity the principle that constitutional provisions similar to our own Article II, § 17,supra, clothe members of the legislature with an absolute privilege to utter or publish defamatory statementsin the course of performance of legislative business.

            In an article entitled "The Constitutional Privileges of Legislators," 9 Minnesota Law Review 442 (1925), note was made of the cases of Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1880); andCoffin v. Coffin, 4 Mass. 1, 3 Am.Dec. 189 (1808).  With regard to these two decisions, the author made the following observation:

            "The test laid down by both the United States court and the Massachusetts court seems to be:  Is the member engaged in legislative business at the time he makes the alleged defamatory statement?  If he is engaged in his legislative capacity, he is within the privilege, but if he is not so engaged, even though he be within the walls of the House, he loses the protection offered by the privilege. . . ."

             [[Orig. Op. Page 3]]

            Coffin v. Coffin, supra, involved a provision of the Massachusetts Constitution of 1780 reading:

            "'. . . The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever. . . .'"

            Regarding this provision, Chief Justice Parsons, delivering the opinion of the court, made the following statement:

            "These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, 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.  I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered.  I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, andto every other act resulting from the nature, and in the execution, of the office; and I would define the article as securing to every member exemption from prosecution, for everything said or done by him, as a representative,in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.  I do not confine the member to his place in the house, and I am satisfied that there are cases in which he is entitled to this privilege, when not within the walls of the representatives' chamber."  (Emphasis supplied.)

            This statement of Chief Justice Parsons was subsequently quoted with approval by the United States Supreme Court in Kilbourn v. Thompson, supra, and, considerably more recently, inTenney v. Brandhove, supra.   [[Orig. Op. Page 4]] Thus (at least according to the pertinent decisions from other jurisdictions), the absolute privilege here under consideration is one which attaches to the legislator while he is in the performance of his proper legislative function whether within or without the physical confines of the legislature itself.  If he is engaged in the performance of proper legislative business, his defamatory utterances or writings are privileged.  Conversely, if he is not so engaged, his statements are not privileged; and this, seemingly, even though he may be physically situated within the confines of a house of the legislature.

            Though the Washington court has not yet spoken on the matter, we can conceive of no reason to anticipate any substantial departure from this concept when, and if, the matter comes before our court.

            As for the six factual situations or circumstances which you have set forth in your question, about all we can say, in view of the above stated principle, is that in each case, if the legislator is engaged in proper legislative business, the privilege attaches.

            Each case, however, must be judged and determined on the basis of its own facts.  In the first three situations which you have presented, each involving the performance of business of a traditionally legislative nature during a legislative session, it appears most likely that the necessary factual showing (to invoke the privilege) could be made.

            Also in the case of interim legislative committee (or subcommittee) work (your situations Nos. 4 and 5), such a showing is within the realm of reasonable possibility.  See,State ex rel. Robinson v. Fluent, 30 Wn. (2d) 194, 191 P. (2d) 241 (1948);State ex rel. Hamblen v. Yelle, 29 Wn. (2d) 68, 185 P. (2d) 723 (1947).

            In the case of situation No. 6 ("remarks given to State Boards, Agencies and Commissions") it is much more difficult for us to conceive of a factual situation which could be said to involve the actual performance of a legislative function or duty.  Again, the facts of the particular case would be determinative of the question, and we only caution you that the crucial facts (giving rise to the privilege above discussed) may be considerably more difficult to establish in the case of situation No. 6 than in the other situations which you have set forth.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General