A member of the legislature is privileged from arrest during attendance at sessions of the legislature and in going to and returning therefrom, unless apprehended in the commission of a felony or a breach of the peace. He shall not be questioned in any other place for any speech or debate in the legislature.

History

Sources

Legislative immunity begins before the founding of the United States or the original 13 colonies. Beginning in Parliament in 1397, the House of Commons passed a bill "denouncing the scandalous customs of the court of Richard II of England and the excessive financial burdens to which this gave rise. The member, Thomas Haxey, from whom the initiative for this direct act against the king and his court had come, was put on trial and sentenced to death for treason. Following pressure applied by the Commons, however, the sentence was not carried out thanks to a royal pardon. This event gave rise within the House of Commons to the question of the right of Members of Parliament to discuss and debate in complete autonomy and freedom, without interference from the Crown." "Freedom from arrest also has an ancient English origin, but this privilege was connected there, as already mentioned, essentially with measure to restrict personal freedom resulting from civil actions."European Parliament, Directorate General for Research, Working Papers, "Parliamentary Immunity in the Member States of the European Community and in the European Parliament". EUROPEAN PARLIAMENT DIRECTORATE-GENERAL FOR RESEARCH BUDGETARY AND CULTURAL AFFAIRS AND COMPARATIVE LAW DIVISION, 1993.

Members of Parliament now could speak against the Crown without fear of arrest, imprisonment, or death. Furthermore, as Joseph Story later observed, silencing, harassing, or arresting representatives is a disservice to those whom they represent.

This Parliamentary Immunity found its way into the Articles of Confederation upon its November 15, 1777.

Articles of Confederation

Ratified on March 1, 1781, the Articles of Confederation, guaranteed the “Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress; and the members of Congress shall be protected in their persons for arrests and imprisonments during the time of their going to and form, and attendance on, Congress, except for treason, felony, or breach of peace.”Article 1, § 5, Articles of Confederation, https://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=127

United States Constitution

Article I, Section 6, Clause 1

They shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

1884 Montana Constitution (proposed)

Article V. Section 15.

The members of the Legislative Assembly shall, in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest, during their attendance at the sessions of their respective houses, and in going to and returning from the same ; and for any speech or debate in either house they shall not be questioned in any other place.

1889 Montana Constitution

Article V. Section 15.

The members of the legislative assembly shall, in all cases, except treason, felony, violation of their oath of office and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place.

1972 Montana Constitution

A member of the legislature is privileged from arrest during attendance at sessions of the legislature and in going to and returning therefrom, unless apprehended in the commission of a felony or a breach of the peace. He shall not be questioned in any other place for any speech or debate in the legislature.

Other States

Just a sample of some of the states that have a speech and debate clause in their constitution.

New Jersey

Article IV, Section IV, Paragraph 9.

Members of the Senate and General Assembly shall, in all cases except treason and high misdemeanor, be privileged from arrest during their attendance at the sitting of their respective houses, and in going to and returning from the same; and for any statement, speech or debate in either house or at any meeting of a legislative committee, they shall not be questioned in any other place.

Massachusetts

Part 1, Article XXI

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.”

New Mexico

Article IV, Section 13

Members of the legislature shall, in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and on going to and returning from the same. And they shall not be questioned in any other place for any speech or debate or for any vote cast in either house.

Wyoming

Article 3, Section 16

The members of the legislature shall, in all cases, except treason, felony, violation of their oath of office and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place.

North Dakota

Article IV, Section 15.

Members of the legislative assembly are immune from arrest during their attendance at the sessions, and in going to or returning from the sessions, except in cases of felony. Members of the legislative assembly may not be questioned in any other place for any words used in any speech or debate in legislative proceedings.

Other Sources

Pre-Constitution

Holiday v. Pitt, 93 Eng. Rep. 984 K.B. 1734

Holding: Legislative privilege required release of Member of Parliament arrested two days after dissolution of Parliament.http://press-pubs.uchicago.edu/founders/documents/a1_6_1s2.html

William Blackstone, Commentaries 1:159--61 (1765)

“Privilege of parliament was principally established, in order to protect it's members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown.” “This includes not only privilege from illegal violence, but also from legal arrests, and seisures (sic) by process from the courts of law.” “But this privilege of person does not hold in crimes of such public malignity as treason, felony, or breach of the peace; or rather perhaps in such crimes for which surety of the peace may be required.”Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765--1769. Chicago: University of Chicago Press, 1979. The Founders Constitution,http://press-pubs.uchicago.edu/founders/documents/a1_6_1s3.html

Post-Constitution

Charles Pinckney, Breach of Privilege, Senate 5 Mar. 1800

The remainder of the clause respecting privilege is so express on the subjects of privilege from arrest, government of members, and expulsion, that every civil officer in the United States, and every man who has the least knowledge, cannot misunderstand them. I assert that it was the design of the Constitution, and that not only its spirit, but letter, warrant me in the assertion, that it never was intended to give Congress, or either branch, any but specified, and those very limited, privileges indeed. They well knew how oppressively the power of undefined privileges had been exercised in Great Britain, and were determined no such authority should ever be exercised here. They knew that in free countries very few privileges were necessary to the undisturbed exercise of legislative duties, and those few only they determined that Congress should possess; they never meant that the body who ought to be the purest and the least in want of shelter from the operation of laws equally affecting all their fellow citizens, should be able to avoid them; they therefore not only intended, but did confine their privileges within the narrow limits mentioned in the Constitution. Let us inquire, why the Constitution should have been so attentive to each branch of Congress, so jealous of their privileges, and have shewn so little to the President of the United States in this respect. . . . No privilege of this kind was intended for your Executive, nor any except that which I have mentioned for your Legislature. The Convention which formed the Constitution well knew that this was an important point, and no subject had been more abused than privilege. They therefore determined to set the example, in merely limiting privilege to what was necessary, and no more.Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56. The Founders Constitution, http://press-pubs.uchicago.edu/founders/documents/a1_6_1s21.html

Joseph Story, Commentaries on the Constitution: §§ 857, 862. (1833)

§ 857. . . .When a representative is withdrawn from his seat by a summons, the people, whom he represents, lose their voice in debate and vote, as they do in his voluntary absence. When a senator is withdrawn by summons, his state loses half its voice in debate and vote, as it does in his voluntary absence. The enormous disparity of the evil admits of no comparison. The privilege, indeed, is deemed not merely the privilege of the member, or his constituents, but the privilege of the house also. And every man must at his peril take notice, who are the members of the house returned of record. § 862. The exception to the privilege is, that it shall not extend to "treason, felony, or breach of the peace." These words are the same as those, in which the exception to the privilege of parliament is usually expressed at the common law, and was doubtless borrowed from that source. Now, as all crimes are offences against the peace, the phrase "breach of the peace" would seem to extend to all indictable offences, as well those, which are, in fact, attended with force and violence, as those, which are only constructive breaches of the peace of the government, inasmuch as they violate its good order.Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833. The Founders Constitution, http://press-pubs.uchicago.edu/founders/documents/a1_6_1s24.html

Drafting

Constitutional Convention Occasional Paper No. 6

In October 1968, the Constitutional Convention Commission finished a series of reports titled "Constitutional Convention Studies". Its goal was to provide the 1971-72 Montana Constitutional Convention with historical, legal, and comparative information about the Montana Constitution.Montana Constitutional Convention Occasional Papers, Legislative Council Report on the Montana Constitution, Montana Legislative Council, 1968. PREFACE

Concluding the studies have led to a "general conclusion that there is a need for substantial revisions and improvements in the Montana Constitution. Provisions which invite subterfuge, provisions which are archaic, provisions which are ambiguous, provisions which are statutory, and provisions which have place serious limitation on effective state government were found throughout the Montana Constitution."Id.at iv.

The commission studied Article V, Section 15 (1889 Montana Constitution) and commented:

"All six constitutions used for comparative purposes have similar provisions; two extend this immunity for a short period before and following the session (one constitution specifies five days, the other fifteen days). Only six state constitutions (Florida, Maryland, New York, North Carolina, Rhode Island, and Vermont) do not provide immunity from arrest during session. The Council concludes that this section is adequate."Id. at 24.

Delegate Proposal No. 140

Introduced on February 4, 1972 by Delegate Grace Bates: The members of the legislature shall in all cases, except for treason, felony, violation of their oath of office and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses and in going to and returning from the same; and for any speech or debate in the legislature they shall note be questioned in any other place.

In a memorandum dated February 16, 1972, the Legislative Committee submitted a proposed a Legislative Article combining Article V and VI of the 1889 Constitution. In regards to Immunity, the committee observed:

"This section contains the substance of Article V, section 15. The committee feels that the protections provided by this section are still needed. However it should be noted that Charles Mahoney's statement that he would not allow the proposed Constitution to be accepted without this provision had tremendous influence on the committee's decision."Montana Constitutional Convention 1971-1972, Enabling Act Convention Rules Delegate Rules, Delegate Information, Delegate Proposals Committee Proposals, Vol. I, pg. 386, Published by the Montana Legislature in cooperation with the Montana Legislative Council, Helena Montana, 1979.

Style, Drafting, Transition, and Submission Committee

Changed the proposed language to "A member of the legislature is privileged from arrest during attendance at session of the legislature and in got to and returning therefrom, unless apprehended in the commission of a felony or breach of the peace. He shall not be questioned in any other place for any speech or debate in the legislature."Verbatim Transcript 881

On February 19, 1972, Delegate Mae Nan Robinson explained the changes in the wording when called upon by Chairman Graybill:

DELEGATE ROBINSON: Section 8 is almost like Section 15 in Article V of our present Constitution. The only changes are, we left out the word "treason", which is a felony so it's included in "except felony and breach of peace." We did not feel that members of the Legislature should be exempt from arrest for violation of their oath of office because, for example, if they're violating their oath of office by not being in attendance, that they maybe should have to be arrested to get them here. So we left out treason and violation of their oath of office, and otherwise, it's the same as it is in the old Constitution. The committee felt pretty much that this could be left to statute but Charley MahoneyBillings Gazette, December 3, 1971, Leo Graybill suggests Control over the news Constitutional Convention President Leo Graybill Jr. suggested Wednesday that delegates should have their statements to the news media "screened" first through the standing Committee on Public Information. The Great Falls Democrat told the committee he was not remarking about statements delegates might make on the convention floor during an official session. Graybill also told the committee that delegates should be asked to have their prepared news releases screened by the committee before they are given to reporters. Later, in response to a statement from a reporter, Graybill explained the committee would have no real power to "gag anyone." Margaret Warden. D-Great Falls, committee vice chairman, suggested that it would be a good idea to have prior clearance before materials are left on delegates desks and delegates conducted what she termed "private press conferences."Mahoney Unmuzzled Helena Independent Record, December 9, 1971. Charles Mahoney, I-Clancy, responded to the announcement by Convention President Leo' Graybill Jr., that delegates should have their public announcements screened by the Public Information Committee to create a good image for the convention. I suppose that's the way Stalin would have done, or Hitler, or any of those great dictators," said Mahoney. "this creates an image of a dictator ship type of thing, and that's exactly what, he wants to do, in my opinion." Asked if he would consider having his remarks screened, Mahoney said, "What I want to say, I'm going to say. I was elected by the people of this district and I'm not going to clear anything with a committee." Mahoney said he had never heard of a similar proposal ir his years with Montana's legislature. "Why, if they'd ever tried it we'd have ousted them, the speaker, the lieutenant governor, the governor, or whoever he was, we'd have ousted him." Me said the convention lore important than the legislature. It creates everything. It's the framework for all government. And then we speak out the way we wish to speak? "This idea of Idling people what they can say, this is only going to affect the meek and the mild. It isn't going to worry me. Mahoney said. Graybill said he thought It would be wise if delegates submit all public statements to the committee. He said 11 would be on a volunteer basis and could just as well be after as before any statement Is released. "I'm interested in having a good image of this convention and I'm going to ask the press to help," Graybill said.warned us that if we took Section 15 out of the Constitution, that our Constitution would fail at his hands so we decided to put it in. (Laughter).

CHAIRMAN GRAYBILL: Very well, is there any discussion? (No response)

CHAIRMAN GRAYBILL: Very well. Members of the Committee, you now have before you the motion by Mrs. Robinson that when this committee does arise and report, after having under consideration Section 8, it recommended the same be adopted. All those in favor, please say Aye.

DELEGATES: Aye.

CHAIRMAN GRAYBILL: Opposed, No. (No response)Verbatim Transcript, 595 (February 19, 1972).

Adoption

On March 10, 1972, the Delegates approved the committee proposal on ballot vote, 87 voting Aye, 5 voting No (Barnard, Brazier, Driscoll, Warden, Wilson), 7 absent (Dahood, Davis, Drum, Etchart, Holland, Mahoney, Swanberg), and 1 excused (Furlong).Transcript, 1879-1880. (March 10, 1972).

Ratification

1972 Voter Information Pamphlet

The 100 Delegates signed the Proposed Montana Constitution on March 22, 1972 and it would be submitted to Montana voters on June 6, 1972. As required by Chapter 296, 1971 laws of Montana, the Montana Legislature provided funding for a Voter Information Pamphlet. The pamphlet provided a table of contents with article and listed any additions or changes to the article or section.

In the Voter Information Pamphlet, the Delegates determined that Article V, Section 8, requried "No change except in grammar."http://www.umt.edu/media/law/library/MontanaConstitution/Miscellaneous%20Documents/Const%20VIP.pdf

Interpretation

The Immunity Clause protects members of the Montana Legislature from harassment from those who have the power to sanction those members. Although the intent of this clause has been met, it can possibly violate Article II, Section 7 (Freedom of speech, expression, and press) because it could be possibly be extended to the members of the general public.<ref>Elison, Larry and Snyder, Fritz, The Montana State Constitution, A Reference Guide Greenwood Press, Westport, Connecticut, 2001, 112-13.</ref>

Cooper v. Glaser

The first and only challenge to Article V, Section 8 of the Montana Constitution. (As of May 4, 2018)

In Cooper, The plaintiff filed a defamation action against House Representative William Glaser in July 2009, claiming Glaser defamed him in March 2009 when, under a “Point of Personal Privilege"<ref>A procedure that allows a legislator to make personal comments on any subject while the legislature is in session</ref>, he was speaking to the House of Representatives during a legislative session about a letter Cooper had sent to the Legislature. Cooper contended the plaintiff lied when he said Cooper had spent time in prison for threatening an officer while in the military, had threatened his neighbors, had spent time in the Montana State Hospital at Warm Springs, and was a “kook” and “not an ordinary member of society."

The plaintiff filed a motion to dismiss asserting he was immune from litigation under the Montana Constitution because he was a legislator making statements on the floor of the House during a legislative session. Cooper argued that the privilege only extends to acts considered “legislative” and that Glaser's statements were personal and did not relate to legislative business.

The Montana Supreme Court held, "Regardless of the truth of Glaser's statements, he made them on the floor of the House of Representatives while it was in session. These are the precise circumstances under which legislators should be immune from the threat of prosecution. To hold otherwise would compromise the independence of the Legislature in expressing the will of the people it represents. We must conclude that Glaser is immune from litigation and such immunity prevents prosecution for Cooper's free speech, equal protection, and due process challenges."<ref>Cooper v. Glaser, 2010 MT 55, 355 Mont. 342, 228 P.3d 443.</ref>

References

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