In a precedent-setting legal opinion, First District Court of Appeals Judge Phil Padovano ruled today that legislators are entitled to the common law immunity from prosecution and cannot be compelled to testify about how they arrived at their decisions. Download 1st DCA ruling on legislative immunity
The ruling reversed a trial court decision that had forced Rep. Rick Kriseman, a St. Petersburg Democrat, and his aide to testify about the source of legal documents they obtained during the 2011 legislative debate over how to tax online travel companies.
Expedia had subpoenaed Kriseman and his aide, David Flintom, so they could ask how they obtained confidential company documents that were sealed as part of the court record in a Georgia case over online travel company taxes. Download Flintom - subpoena for deposition on 11-04-2011The lower court ruled that the legislators and his aide could be deposed but required that the questions be limited.
Padovano disagreed with the lower court, threw out the subpoena and quashed the decision. He acknowledged that in Florida, unlike other states, the courts have "not yet directly held that a member of the state legislature is entitled to claim a testimonial privilege."
"Although there is no judicial precedent in Florida for legislative immunity, there is no reason why we should not now recognize that it exists. Nor do we see any reason why this form of immunity, like the others, should not also include a privilege that can be asserted against the obligation that would otherwise exist to give compelled testimony in a civil case.
"If legislators are immune from civil liability for actions taken in the course of their legislative duties, they are also entitled to refuse to testify about the performance duties."
Padavano explained that "gathering information pertaining to potential legislation and sharing it with colleagues is an essential part of the legislative process." He said that Kriseman and his aide were therefore "performing a legitimate legislative function." He wrote:
"The power vested in the legislature under the Florida Constitution would be severely compromised if legislators were required to appear in court to explain why they voted a particular way or to describe their process of gathering information on a bill. Our state government could not maintain the proper“separation” required by Article II, section 3 if the judicial branch could compel an inquiry into these aspects of the legislative process."
Padovano noted, however, that "the legislative privilege we have recognized in this case is not absolute" and cited previous opinions that held that "the privilege could not be used to withhold evidence of a crime."
Judges James. H. Wolf and Simone Marstiller concurred in the ruling.