September 09, 2019

Claiming the protections of the Doctrine of Legislative Immunity in the course of litigation


The Doctrine of Legislative Immunity may be invoked by members of a legislative body being sued for alleged acts or omissions made in the course of their serving in their official capacity as a legislator.*

In this action certain members of a school board [Members] were subpoenaed to give depositions in the course of litigation initiated by the Plaintiffs in federal district court against the school district. The Members resisted, contending that they could not be forced to appear for such depositions because they were entitled to legislative immunity.

The United States District Court, Southern District of New York, affirming an order of the magistrate judge, rejected the Members' claim that they were entitled to legislative immunity that protects them against being called as witnesses at depositions regardless of whether they are parties in the action and directed the Members to appear for their depositions. The Members appealed the district court's ruling to the United States Court of Appeals, Second Circuit.

The Circuit Court rejected the arguments advanced by the Members that they entitled to legislative immunity explaining that "because the Board Members are not parties to this action and have not raised a colorable claim of official immunity," they are not within the ambit of the Doctrine.

Citing Mitchell v Forsyth, 472 U.S. 511, in which the Mitchell court described such “immunity from suit” as “entitlement not to stand trial or face the other burdens of litigation,” the Circuit Court said that the Members’ claim that their status as legislators shields them from serving as witnesses at depositions "sounds in evidentiary privilege,** and, as non-party witnesses seeking to challenge an order compelling them to appear for depositions, they have not presented a question of their entitlement to immunity."

Further, the Circuit Court opined that although the Members attempted to cloak  their claims under color of seeking the protection of legislative immunity, in fact the Members "in this case have sought to exercise an evidentiary privilege to avoid attending a deposition."

As the Members’ claims were founded on an evidentiary privilege, the Circuit Court concluded that it lacked jurisdiction over the appeal of the order compelling their attendance at the depositions as “[a]n order compelling testimony in an ordinary civil or criminal action is neither a final order ... nor an interlocutory order granting an injunction ... and it is not appealable.”

In contrast, the Circuit Court pointed out that to obtain such appellate review, the subpoenaed person ordinarily "must defy the district court’s enforcement order, be held in contempt, and then appeal the contempt order" which is regarded as a final order.

Indicating that this requirement applies whether the individual subpoenaed “is a party to the litigation or a non-party witness,” the Circuit Court granted the Plaintiffs' motion to dismiss the Members' appeal seeking to vacate the lower court's decision.

* The Doctrine of Legislative Immunity does not protect legislators from criminal prosecution, nor does it relieve them from responsibility for their actions unrelated to their office. See also https://publicpersonnellaw.blogspot.com/2018/02/sovereign-immunity-absolute-immunity_12.html addressing Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings.

** Privileged evidence refers to evidence that is exempt from production to an opposing party.

The decision is posted on the Internet at:


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