What is a “legislative privilege” and how is it applied in California, and how is it different from “legislative immunity”?
Under a longstanding doctrine known as legislative immunity, legislators are generally immune from civil liability for their official acts. On the other hand, a derivative doctrine, called the legislative privilege, creates a privilege against giving evidence on official legislative acts.
In essence, the “legislative privilege” allows an elected member of a legislature to speak freely in debate, without fear that the legislator will be sued for what he or she says, such as for slander. The term is also referred to as a parliamentary privilege as it originated in European parliaments.
So, legislative immunity basically protects a legislator from a civil lawsuit in cases of either a legislative act or the legislator’s individual motivation for a legislative act. On the other hand, legislative privilege is a privilege for evidence purposes that limits the type of evidence and testimony at a civil trial.
Why would these elected officials have this privilege? This privilege is meant to ensure that verbal or written statements made by legislators as part of the legislative business offers these elected officials the ability to engage in robust debate and consideration of different point of views.
It is the courts that refer to this as the “legislative privilege.” (People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 936, 944.) The legislative privilege is codified in California Civil Code Section 47, a length section of law that provides the following:
A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.
(2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, “physical evidence” means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.
(3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.
(4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.
(5) This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.
(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment. This subdivision authorizes a current or former employer, or the employer’s agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment. This subdivision does not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
(d) (1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.
(2) Paragraph (1) does not make privileged any communication to a public journal that does any of the following:
(A) Violates Rule 5-120 of the State Bar Rules of Professional Conduct.
(B) Breaches a court order.
(C) Violates a requirement of confidentiality imposed by law.
(e) By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.
Note two additional Civil Code sections that impact Section 47: The first is Section 47.5, which provides:
Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer’s employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will. Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth.
The second is Section 48, which provides:
In the case provided for in subdivision (c) of Section 47, malice is not inferred from the communication.
California courts have basically interpreted Civil Code Section 47(b) as an absolute privilege, which means that officials are immune from civil lawsuits for making certain statements as a part of official proceedings. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638) Specifically, Section 47(b)(1) protects statements made in “proceedings of all legislative bodies, whether state or municipal.” (Scott v. McDonnell Douglas Corp. (1974) 37 Cal.App.3d 277)
Does the legislative privilege apply to non-legislators? Yes. The courts in this state have applied the legislative privilege to official legislative proceedings and have, for example, applied it to a witness’ potentially defamatory testimony before a local government committee concerning a proposed ordinance. (Rizzo, 214 Cal.App.4th at p. 944; Spitler v. Children’s Institute International (1992) 11 Cal.App.4th 432, 440.) An additional case specifically holding that the legislative privilege may extend, in appropriate circumstances, to non-legislators is Board of Supervisors v. Superior Court (1995) 32 Cal. App. 4th 1616.
According to the Court of Appeal in Rizzo, the legislative privilege “is ‘broad and comprehensive’” (214 Cal.App.4th at p. 944), and must “be construed broadly” (Spitler, supra, 11 Cal.App.4th at p. 440). California courts have generally looked at whether the statement made is connected to the official proceeding and whether that statement “serves a useful function in that type of proceeding.” (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146.)
In the Winograd case, the California ruled that the plaintiff’s statements to the press and public preceding a city council hearing “fell within the broad construction of the legislative privilege” because they “solicited public support” for the “petition to cause the city of Santa Monica to take action to end the pony ride and petting zoo.”
Civil Code Section 47(b)(1) provides protection for communications made in connection with “proceedings of all legislative bodies, whether state or municipal.” (Rizzo, 214 Cal.App.4th at p. 944.) The legislative privilege in Subdivision (b)(1) applies to a statement that “bears some connection to the work of the legislative body.” (Scott, 37 Cal.App.3d at p. 285.)
As a result, the legislative immunity doctrine applies to legislators. However, the legislative privilege doctrine can apply to both legislators and non-legislators alike, such as individuals testifying in a legislative committee in support of or opposition to a bill.