No. CV-17-873 in the Supreme Court of Arkansas

No. CV-17-873 In the Supreme Court of Arkansas

The State of Arkansas, Petitioner, v. The City of Fayetteville et al., Respondents.

On Appeal from the Circuit Court of Washington County, First Division The Honorable Doug Martin, Circuit Judge

BRIEF FOR THE STATES OF TEXAS, ALABAMA, IDAHO, INDIANA, KANSAS, LOUISIANA, MICHIGAN, MISSOURI, OKLAHOMA, AND THE COMMONWEALTH OF KENTUCKY, BY AND THROUGH GOVERNOR MATTHEW G. BEVIN, AS AMICI CURIAE IN SUPPORT OF PETITIONER

BRETT D. WATSON (2002182) Brett D. Watson, Attorney at Law, PLLC P.O. Box 707 Searcy, Arkansas 72145-0707 Tel.: (501) 281-2468 Fax.: (501) 421-1756

Counsel for Amici Curiae Additional counsel listed on next page.

Ken Paxton* Steve Marshall* Attorney General of Texas Attorney General of Alabama

Jeffrey C. Mateer* Lawrence G. Wasden* First Assistant Attorney General Attorney General of Idaho

Scott A. Keller* Curtis T. Hill, Jr.* Solicitor General Attorney General of Indiana

Kyle D. Hawkins* M. Stephen Pitt* Assistant Solicitor General General Counsel for Governor of Kentucky Matthew G. Bevin Office of the Attorney General P.O. Box 12548 (MC 059) Derek Schmidt* Austin, Texas 78711-2548 Attorney General of Kansas Tel.: (512) 936-1700 Fax: (512) 474-2697 Jeff Landry* Attorney General of Louisiana

Bill Schuette* Attorney General of Michigan

Josh Hawley* Attorney General of Missouri

Mike Hunter* Attorney General of Oklahoma

* Not admitted to practice in Arkansas and not entering an appearance in Arkan- sas. Listed in ex officio capacity only on behalf of their respective States.

Table of Contents Page Table of Authorities ...... ii Introduction ...... 1 Argument...... 3 I. Federal and State Speech or Debate Clauses Are Consistently Applied Broadly to Prevent the Compelled Disclosure of Materials Related to a Legislator’s Motivations...... 3 A. The principle and purpose of the federal speech or debate clause, on which many state clauses are based, weigh in favor of broad protection of legislator speech...... 3 B. The interpretation of other States’ speech or debate clauses, which are similar to Arkansas’s, weighs in favor of broad protection of legislator speech...... 8 II. Respondents Seek Discovery of Material Protected by the Arkansas Speech or Debate Clause...... 10 A. Interpretations of the federal speech or debate clause, on which many state clauses are based, show that the material Respondents seek is not discoverable...... 10 B. As the Texas Supreme Court has shown in In re Perry, a party who seeks to overcome a speech or debate clause cannot do so absent extraordinary circumstances—circumstances which the City has neither alleged nor shown...... 12 Conclusion ...... 16 Appendix A: Other State Constitutional Provisions Identical to the Arkansas Speech or Debate Clause ...... 17 Appendix B: Other State Constitutional Provisions Substantially Similar to the Arkansas Speech or Debate Clause ...... 18 Appendix C: Other Analogous State Constitutional and Statutory Provisions . 22 Certificate of Service...... 23 Certificate of Compliance ...... 24

Table of Authorities

Page(s) Cases:

A.H. Belo & Co. v. Wren, 63 Tex. 686 (1884) ...... 8

Bowles v. Clipp, 920 S.W.2d 752 (Tex. App.—Dallas 1996, writ denied) ...... 9

Canfield v. Gresham, 17 S.W. 390 (Tex. 1891) ...... 8

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ...... 14

Clear Lake City Water Auth. v. Salazar, 781 S.W.2d 347 (Tex. App.—Houston [14th Dist.] 1989, no writ) ...... 9

Doe v. McMillan, 412 U.S. 306 (1973) ...... 8

Dombrowski v. Eastland, 387 U.S. 82 (1967) ...... 7, 10, 12

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975) ...... 7, 8, 12

Fletcher v. Peck, 10 U.S. 87 (1810) ...... 6

Gravel v. United States, 408 U.S. 606 (1972) ...... 3, 4, 7, 10

Irons v. R.I. Ethics Comm’n, 973 A.2d 1124 (R.I. 2009)...... 5

Kilbourn v. Thompson, 103 U.S. 168 (1880) ...... 5, 6, 8, 11

In re Perry, 60 S.W.3d 857 (Tex. 2001) ...... 9, 10, 13, 14, 15

Tenney v. Brandhove, 341 U.S. 367 (1951) ...... 1, 4, 5, 6, 11

United States v. Brewster, 408 U.S. 501 (1972) ...... 6, 7, 11

United States v. Johnson, 383 U.S. 169 (1966) ...... 1, 3, 4, 6, 11

Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ...... 12, 13, 14

Washington v. Davis, 426 U.S. 229 (1976) ...... 13

Constitutional Provisions

Tex. Const. art III, §21 ...... 8

U.S. Const. art. I, § 6 ...... 3

Other Authorities

1 W. & M., Sess. 2, c. 2 ...... 4

II Works of James Wilson 38 (Andrews ed. 1896) ...... 5

L. Tribe, American Constitutional Law 372 (2d ed. 1988) ...... 9

James L. Buckley, Speech and Debate Clause, The Heritage Guide to the Constitution 80 (2005) ...... 4

iii

Introduction Constitutional speech or debate clauses represent “an important protection of the independence and integrity of the legislature.” United States v. Johnson, 383 U.S. 169, 178 (1966). Such clauses first appeared in the English Bill of Rights of

1689 and subsequently were enshrined in American law as “essential for representatives of the people.” Tenney v. Brandhove, 341 U.S. 367, 372 (1951). They ensure that legislators “enjoy the fullest liberty of speech.” Id. at 373. The principles underlying this legislative immunity are so essential that 38 states, including Arkansas, have enshrined a speech or debate clause in their foundational charter. The City seeks to override this centuries-old pillar of constitutional law. The City candidly confesses its goal of uncovering the reasons that individual Arkansas officials supported Act 137, a legislative initiative the City opposes. The City seeks to force each individual legislator “to explain himself and his actions.” Br. for Ar- kansas at Ab. 7. But that effort runs contrary to the text and purposes underlying the Arkansas Speech or Debate Clause, which shields Arkansas legislators from the exact burden that the City seeks to impose. What’s more, the City’s request invites courts to override the separation of powers by overseeing an inquisition into how a co- equal branch of government conducts its business. Just as legislatures do not pass laws requiring courts to divulge their internal deliberations, so too should courts

avoid ordering legislators to undergo intrusive discovery into their subjective motivations—especially where, as here, ample additional materials exist with which the City could attempt to prove its claims.

Argument*

I. Federal and State Speech or Debate Clauses Are Consistently Ap- plied Broadly to Prevent the Compelled Disclosure of Materials Re- lated to a Legislator’s Motivations. The historical background of the federal and state constitutions’ speech or debate clauses confirms that they broadly protect legislators against the compelled disclosure of materials related to their motivations.

A. The principle and purpose of the federal speech or debate clause, on which many state clauses are based, weigh in favor of broad protection of legislator speech.

The Speech or Debate Clause of the U.S. Constitution provides: “[F]or any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6. The origins of that Clause predate the Republic and call for broad protections for any legislative acts. 1. The earliest inspiration for the clause lies in the English Bill of Rights of 1689. See Gravel v. United States, 408 U.S. 606, 623 n.14 (1972); Johnson, 383 U.S.

* No party’s counsel authored this brief in whole or in part. No party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief or otherwise collaborated in the preparation or submission of the brief. No person or entity other than amici curiae, their members, or their counsel made monetary contributions to the brief or collaborated in its preparation. ASCR 4-6(c).

3 at 177; Tenney, 341 U.S. at 372-73. That charter provided “[t]hat the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” Gravel, 408 U.S. at 623 n.14 (citing 1 W. & M., Sess. 2, c. 2). That guarantee was designed to protect legislators “for what they do or say in legislative proceedings.” Tenney, 341 U.S. at 372. It was motivated by the experience of “the Parliamentary struggles of the Sixteenth and Seventeenth Centuries.” Id. King Charles I, for example, had actively perse- cuted legislators “for ‘seditious’ speeches in Parliament.” Id. (citation omitted). Throughout the Tudor and Stuart dynasties, “successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators.” Johnson, 383 U.S. at 178. The 1689 charter represented “the culmination of a long struggle for parliamentary supremacy.” Id. The fundamental “right of legislators to speak their minds with impunity while engaged in legislative work” thus predates the Republic. James L. Buckley,

Speech and Debate Clause, The Heritage Guide to the Constitution 80 (2005). By the time of the drafting of the Articles of Confederation and federal Constitution, “the privilege ha[d] been recognized as an important protection of the independence and integrity of the legislature.” Johnson, 383 U.S. at 178; see also Buckley, supra at 80 (legislative privilege “was acknowledged by the British Bill of Rights of 1689 [and] written into the Articles of Confederation” before it was enshrined in the federal Constitution by the Speech or Debate Clause). The resulting Speech or Debate Clause is “essential for representatives of the people.” 341 U.S. at 372;

4 see also Irons v. R.I. Ethics Comm’n, 973 A.2d 1124, 1134 (R.I. 2009) (Speech or Debate Clause represents “an ancient and venerable hallmark of our form of government”). The Clause enshrines “the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and Na- tional Governments here.” Tenney, 341 U.S. at 376. The original purpose of the federal Speech or Debate Clause matched that of its English forebear. See id. As the U.S. Supreme Court has explained:

The reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was re- sponsible for the provision in the Federal Constitution. ‘In order to ena- ble and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.’

Id. at 373 (citing II Works of James Wilson 38 (Andrews ed. 1896)). 2. Consistent with those principles and purposes, the U.S. Supreme Court has consistently enforced a broad view of the federal Speech or Debate Clause’s protections. It first did so in Kilbourn v. Thompson, 103 U.S. 168, 204 (1880), which expressly declined to limit the Clause to “words spoken in debate.” Indeed, the Clause must apply also “to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers.” Id. The Clause, the Court held, protects “things generally done in a

5 session of the House by one of its members in relation to the business before it.” Id.

Seven decades later, the Court reiterated in Tenney that the Clause broadly protects legislators “acting in the sphere of legitimate legislative activity.” 341 U.S. at 376. The Court emphasized that “[t]he claim of an unworthy purpose does not destroy the privilege.” Id. at 377. After all, it would be intolerable to subject legislators “to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives.” Id. It is “unquestioned” that it is “not conso- nant with our scheme of government for a court to inquire into the motives of legislators.” Id. (citing Fletcher v. Peck, 10 U.S. 87 (1810)). That is especially so “[i]n times of political passion,” when “dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.” Id. at 378. The proper remedy is not courts, but rather “the voters,” who “must be the ultimate reliance for discouraging or correcting such abuses.” Id. The Court has consistently adhered to the principles it articulated in Kilbourn and Tenney. For example, the Court explained in Johnson that the Speech or De- bate clause “will be read broadly to effectuate its purposes.” 383 U.S. at 180. And in United States v. Brewster, 408 U.S. 501, 507 (1972), the Court underscored the importance of that broad reading in protecting not “the personal or private benefit of Members of Congress,” but rather “the integrity of the legislative process by insuring the independence of individual legislators.” For that reason, the Speech

6 or Debate Clause “protect[s] Members from inquiry into legislative acts or the motivation for actual performance of legislative acts.” Id. at 509; see also Gravel, 408 U.S. at 625 (Clause reaches an “integral part of the deliberative and commu- nicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation . . .”). It places “an act generally done in Congress in relation to the business before it” off limits. Brewster, 408 U.S. at 512. And it protects anything that would pose an “indirect impairment” of a legislator’s deliberations. Gravel, 408 U.S. at 625; see also Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 510 (1975) (“Congressmen and their aides are immune from liability for their actions within the ‘legislative sphere,’ even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.” (citations omitted)). The Court has further emphasized that the Clause protects legislators “not only from the consequences of litigation’s results but also from the burden of defending themselves.” Dombrowski v. Eastland, 387 U.S. 82, 85 (1967). The reason for such broad protection is that such suits “create[] a distraction and force[] Members to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland, 421 U.S. at 503. Because such suits “may be used to delay and disrupt the legislative function,” they are barred. Id. Furthermore, as to civil actions brought by private parties, “judicial power is still brought to bear on Members of Congress and legislative independence is imperiled.” Id. For that

7 reason, “once it is determined that Members are acting within the ‘legitimate legislative sphere’ the Speech or Debate Clause is an absolute bar to interference.”

Id. (citing Doe v. McMillan, 412 U.S. 306, 314 (1973)).

B. The interpretation of other States’ speech or debate clauses, which are similar to Arkansas’s, weighs in favor of broad protection of legislator speech.

As the State of Arkansas’s brief demonstrates, the Arkansas Speech or Debate Clause reflects similar history, principles, and values. See Br. for Arkansas at 5-12. So too do the analogous provisions in other States.1 For example, Texas courts have interpreted Article III, Section 21 of the Texas Constitution to broadly protect legislative acts. That provision states: “No member shall be questioned in any other place for words spoken in debate in either House.” Tex. Const. art. III, § 21. From the start, the Texas Supreme Court has recognized that Section 21 applies to “proceedings of a legislative . . . character.” A.H. Belo & Co. v. Wren, 63 Tex. 686, 722 (1884). The Texas Supreme Court has endorsed Kilbourn’s reasoning, quoting it for the proposition that “[i]t would be a narrow view of the constitutional provision to limit it to words spoken in debate.” Canfield v. Gresham, 17 S.W. 390, 392 (Tex. 1891) (quoting Kilbourn, 103 U.S. at 204).

1 The speech and debate clauses in other States’ constitutions and legislative codes are chronicled in Appendices A, B, and C, infra.

Texas courts have further underscored the important separation-of-powers principles that the Texas Speech or Debate Clause protects. In ruling that legislators are not “susceptible to judicial inquiry into their subjective thought processes,” Texas courts have explained that “[a] court has no more authority to in- vestigate the motives of local legislators than that legislative body has to regulate our deliberations in conference or ask why we ruled a certain way in a given case.” Clear Lake City Water Auth. v. Salazar, 781 S.W.2d 347, 348, 350 (Tex. App.— Houston [14th Dist.] 1989, no writ). The speech or debate clause “would be virtually worthless if courts judging its applicability had to scrutinize closely the acts ostensibly shielded.” Id. at 350 (quoting L. Tribe, American Constitutional Law 372 (2d ed. 1988)). That is why “consideration of alleged improper motivation is thus necessarily an inappropriate mode of analysis.” Id. (quoting L. Tribe, Amer- ican Constitutional Law 372 (2d ed. 1988)); see also In re Perry, 60 S.W.3d 857, 859 (Tex. 2001) (Texas and federal speech or debate clauses “embody fundamental separation-of-powers tenets”); Bowles v. Clipp, 920 S.W.2d 752, 758 (Tex. App.— Dallas 1996, writ denied) (“Legislators engaged in legitimate legislative activities are immunized from the consequences of litigation and the burden of defending themselves.”). The Texas Speech or Debate Clause, like its federal counterpart, shields legislators not only from liability, but from suit altogether. As the Texas Supreme Court has explained, “the immunity doctrine serves important public purposes,”

9 and consistent with those purposes “shields legislative actors not only from liability, but also from being required to testify about their legislative activities.” In re

Perry, 60 S.W.3d at 860 (citing Gravel, 408 U.S. at 615-16). The Texas Supreme Court has endorsed the U.S. Supreme Court’s pronouncement in Dombrowski that legislators “should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.” Id. (quoting Dombrowski, 387 U.S. at 85).

II. Respondents Seek Discovery of Material Protected by the Arkansas Speech or Debate Clause. The State of Arkansas’s brief argues persuasively that the Arkansas Speech or Debate Clause should be given the same reading as that applied to analogous clauses of the federal and state constitutions. Br. for Arkansas at 5-12. Under a proper application of the values that speech or debate clauses enshrine, Respond- ents are not entitled to the discovery they seek. Id. at 12-15.

A. Interpretations of the federal speech or debate clause, on which many state clauses are based, show that the material Respond- ents seek is not discoverable.

In this case, Respondents served subpoenas on individual legislators and on the State of Arkansas demanding the production of internal legislative and executive branch materials, and further seeking to depose individual legislators about their legislative activities. See Br. for Arkansas at x; Ab. 6. Respondents do not deny this; they admit explicitly that they seek to uncover “purposes” motivating

Act 137. See Br. for Arkansas at Ab. 6 (hearing transcript); id. at Ab. 10 (“We are seeking . . . the reason for [Act 137] and what people said about it.”). As Respond- ents put it, they “should have the right to ask [a legislator] to explain himself and his actions.” Id. at Ab. 7. To that end, Respondents have sought “every document in state files or on state computers mentioning: (1) Act 137; (2) either Fayetteville ordinance; or (3) any other topic that could somehow ‘impact’ local decision-mak- ing.” Id. at SoC 3 (citing Add. 377-81). But forcing a legislator “to explain himself” in connection with legislation is what courts have held constitutional speech or debate clauses proscribe. Such clauses protect legislators “for what they do or say in legislative proceedings.” Tenney, 341 U.S. at 372. They prevent efforts to “suppress and intimidate critical legislators.” Johnson, 383 U.S. at 178. And they apply not only to literal words spoken in debate, but to “things generally done in a session of the House by one of its members in relation to the business before it.” Kilbourn, 103 U.S. at 204. Respondents claim to seek evidence to demonstrate that the Arkansas legislators acted with what Respondents believe was an improper purpose, but “[t]he claim of an unworthy purpose does not destroy the privilege.” Tenney, 341 U.S. at 377. In the context of the U.S. Speech or Debate Clause, it is black-letter law that a court may not “inquire into the motives of legislators.” Id. Any alternative view would impermissible impinge upon “the independence of individual legislators.”

Brewster, 408 U.S. at 507.

Respondents suggested below that Arkansas courts can review the materials at issue in camera. But that is no solution at all. Speech or debate clauses protect legislators “not only from the consequences of litigation’s results but also from the burden of defending themselves.” Dombrowski, 387 U.S. at 85. The reason for such broad protection is that such suits “create[] a distraction and force[] Mem- bers to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland, 421 U.S. at 503. Such suits, in other words, “may be used to delay and disrupt the legislative function.” Id. Furthermore, as to civil actions brought by private parties, “judicial power is still brought to bear on Mem- bers of Congress and legislative independence is imperiled.” Id. For that reason, “once it is determined that Members are acting within the ‘legitimate legislative sphere’ the Speech or Debate Clause is an absolute bar to interference.” Id. For these reasons, and those set out in the brief of the State of Arkansas, this Court should hold that Respondents are not entitled to the discovery they seek.

See Br. for Arkansas at 12-15.

B. As the Texas Supreme Court has shown in In re Perry, a party who seeks to overcome a speech or debate clause cannot do so absent extraordinary circumstances—circumstances which the City has neither alleged nor shown.

Respondents rely largely on Village of Arlington Heights v. Metropolitan Hous- ing Development Corp., 429 U.S. 252 (1977), but they misread that case. As the

Texas Supreme Court explained in In re Perry, 60 S.W.3d at 861-62, Arlington Heights does not abrogate legislative immunity.

Arlington Heights began as a zoning dispute. See 429 U.S. at 255. A local housing developer acquired property in the Village of Arlington Heights, then peti- tioned the Village to rezone the property to permit the developer to build a partic- ular type of development. Id. at 256-57. The Village denied the developer’s request. Id. at 258. The developer sued, arguing that the Village’s denial violated the Equal Protection Clause of the U.S. Constitution. Id. at 260. The matter reached the Supreme Court for the purpose of deciding what type of proof was required to establish such a violation. Id. at 265. The Court noted: “[D]etermining whether invidious discriminatory purpose was a motivating fac- tor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id. at 266. It may be relevant to consider, for example, whether the action at issue “‘bears more heavily on one race than another.’” Id. (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). If that impact is not de- terminative, it may be appropriate to look to other types of evidence, including the historical background, the sequence of events leading up to the action, departures from procedural and substantive norms, and legislative history, including deci- sionmakers’ contemporaneous statements, meeting minutes, and reports. Id. at 266-68. But a plaintiff may not call a legislator to testify to legislative purpose except in “extraordinary instances.” Id. at 268. And even if an extraordinary instance

13 were to present itself, “even then such testimony frequently will be barred by privilege.” Id. The reason, the U.S. Supreme Court explained, is that “judicial inquir- ies into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government.” Id. at 268 n.18. Thus, “[p]lacing a decisionmaker on the stand is therefore ‘usually to be avoided.’” Id. (quoting

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)). The Texas Supreme Court applied that reasoning in In re Perry. That case concerned legislative redistricting plans that various parties challenged as unconstitutional infringements of their voting rights. 60 S.W.3d at 858-59. To support their claims, the challengers sought to depose three government officials and their chief legislative aides and obtain various private documents. Id. at 859. The State moved to quash the deposition notices, citing legislative immunity derived from the Texas Speech or Debate Clause. Id. The matter reached the Texas Supreme Court, where the challengers argued that Arlington Heights overcame the officials’ claims of legislative immunity. The Texas Supreme Court rejected that argument. Interpreting the U.S. Supreme Court’s analysis, the Texas Supreme Court observed that “Arlington Heights suggests that there could be a circumstance, albeit extraordinary, that might constrict the grant of legislative immunity when . . . a plaintiff alleges that the action violates the Equal Protection Clause.” Id. at 861. But before Arlington Heights’s suggestion may be considered, “all other available evidentiary sources must first be ex- hausted before extraordinary circumstances will be considered.” Id. at 861-62.

The court then went on to observe that the challengers had ample opportunity to prove their claims based on other materials without resorting to depositions or documents shielded by legislative privilege. Id. at 862. The court noted that “a wide array of documentary information has been provided to the plaintiffs,” along with “alternative information sources.” Id. For that reason, the challengers “neither alleged nor demonstrated any extraordinary circumstance that might justify what would appear to be an almost unprecedented incursion into legislative immunity.” Id. That analysis is instructive here. The brief for the State of Arkansas suggests that Respondents have ample materials available to them already. See, e.g., Br. for Arkansas at Ab. 14; Ab. 18 (“The statements in the public record show [Respond- ents] don’t even need the [privileged] material.”). It follows, as In re Perry explained, that Arlington Heights has no relevance. See 60 S.W.3d at 861-62.

Conclusion The Court should reverse the decision of the Washington County Circuit Court.

Respectfully submitted.

/S/ BRETT D. WATSON BRETT D. WATSON (2002182) Brett D. Watson, Attorney at Law, PLLC P.O. Box 707 Searcy, Arkansas 72145-0707 Tel.: (501) 281-2468 Fax.: (501) 421-1756

Counsel for Amici Curiae

Appendix A: Other State Constitutional Provisions Identi- cal to the Arkansas Speech or Debate Clause The following 12 States’ constitutions contain language virtually identical to that of the Arkansas Speech or Debate Clause. The following State constitutional provisions state that, “[F]or any speech or debate in either house, they shall not be questioned in any other place.”

State Provision Alabama Ala. Const. art. IV, § 56 Connecticut Conn. Const. art. III, § 15 Delaware Del. Const. art. II, § 13 Indiana Ind. Const. art. IV, § 8 Kentucky Ky. Const. § 43 Minnesota Minn. Const. art. IV, § 10 Ohio Ohio Const. art. II, § 12 Oklahoma Okla. Const. art. V, § 22 Pennsylvania Pa. Const. art. II, § 15 Tennessee Tenn. Const. art. II, § 13 Virginia Va. Const. art. IV, § 9 Wyoming Wyo. Const. art. III, § 16

Appendix B: Other State Constitutional Provisions Sub- stantially Similar to the Arkansas Speech or Debate Clause The following 26 States’ constitutions contain language substantially similar to that of the Arkansas Speech or Debate Clause.

State Provision Text Alaska Alaska Const. art. “Legislators may not be held to an- II, § 6 swer before any other tribunal for any statement made in the exercise of their legislative duties while the legislature is in session.” Colorado Colo. Const. art. V, “[A]nd for any speech or debate in ei- § 16 ther house, or any committees thereof, they shall not be questioned in any other place.” Georgia Ga. Const. art. III, “No member shall be liable to answer § 4, ¶ IX in any other place for anything spoken in either house or in any committee meeting of either house.” Hawaii Haw. Const. art. III, “No member of the legislature shall § 7 be held to answer before any other tribunal for any statement made or action taken in the exercise of the member’s legislative functions. . . .” Idaho Const. art. III, “[N]or shall a member, for words ut- Idaho § 7 tered in debate in either house, be questioned in any other place.” Ill. Const. art. IV, “A member shall not be held to an- Illinois § 12 swer before any other tribunal for any speech or debate, written or oral, in either house. These immunities shall apply to committee and legislative commission proceedings.”

Kansas Kan. Const. art. II, “For any speech, written document § 22 or debate in either house, the members shall not be questioned else- where.” Louisiana La. Const. art. III, “No member shall be questioned else- § 8 where for any speech in either house.” Maine Me. Const. art. IV, “[N]o member shall be liable to an- pt. 3, § 8 swer for anything spoken in debate in either House, in any court or place else-where.” Maryland Md. Const., Decla- “That freedom of speech and debate, ration of Rights, art. or proceedings in the Legislature, 10 ought not to be impeached in any Court of Judicature.” Massachusetts Mass. Const. pt. 1, “The freedom of deliberation, speech art. XXI 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.” Michigan Mich. Const. art. “They shall not be questioned in any IV, § 11 other place for any speech in either house.” Missouri Mo. Const. art. III, “[A]nd they shall not be questioned § 19 for any speech or debate in either house in any other place.” Montana Mont. Const. art. V, “[A member] shall not be questioned § 8 in any other place for any speech or debate in the legislature.” New Hamp- N.H. Const. pt. 1, “The freedom of deliberation, shire art. 30 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 action, complaint, or prosecution in any other court or place whatsoever.” New Jersey N.J. Const. art. IV, “[A]nd for any statement, speech or § 4, ¶ 9 debate in either house or at any meeting of a legislative committee, they shall not be questioned in any other place.” New Mexico N.M. Const. art IV, “And they shall not be questioned in § 13 any other place for any speech or debate or for any vote case in either house.” New York N.Y. Const. art. III, “For any speech or debate in either § 11 house of the legislature, the members shall not be questioned in any other place.” North Dakota N.D. Const. art. IV, “Members of the legislative assembly § 15 may not be questioned in any other place for any words used in any speech or debate in legislative proceedings.” Oregon Or. Const. art. IV, “Nor shall a member for words ut- § 9 tered in debate in either house, be questioned in any other place.” Rhode Island R.I. Const. art. VI, “For any speech in debate in either § 5 house, no member shall be questioned in any other place. . . .” South Dakota S.D. Const. art. III, “[A]nd for words used in any speech § 11 or debate in either house, they shall not be questioned in any other place.” Texas Tex. Const. art. III, “No member shall be questioned in § 21 any other place for words spoken in debate in either House.” Utah Utah Const. art. VI, “[A]nd for words used in any speech § 8 or debate in either house, they shall not be questioned in any other place.”

Vermont Vt. Const. ch. I, art. “The freedom of deliberation, 14 speech, and debate, in 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.” West Virginia W.Va. Const. art. “[A]nd for words spoken in debate, or VI, § 17 any report, motion or proposition made in either house, a member shall not be questioned in any other place.”

Appendix C: Other Analogous State Constitutional and Statutory Provisions The following states include constitutional or statutory provisions concerning the liability of representatives for speech or debate.

State Provision Text Arizona Ariz. Const. art. IV, “No member of the legislature shall pt. 2, § 7 be liable in any civil or criminal prosecution for words spoken in debate.” Nebraska Neb. Const. art. III, “No member of the Legislature shall § 26 be liable in any civil or criminal action whatever for words spoken in debate.” North Carolina N.C. Gen. Stat. “The members shall have freedom of § 120-9 speech and debate in the General As- sembly, and shall not be liable to im- peachment or question, in any court or place out of the General Assembly, for words therein spoken.” Washington Wash. Const. art. II, “No member of the legislature shall § 17 be liable in any civil action or criminal prosecution whatever, for words spoken in debate.” Wisconsin Wis. Const. art. IV, “No member of the legislature shall § 16 be liable in any civil action, or criminal prosecution whatever, for words spoken in debate.”

Certificate of Service I certify that a copy of the foregoing has been sent to the following by the elec- tronic-filing system on May 29, 2018, to all counsel of record.

/s/ Brett D. Watson Brett D. Watson

Certificate of Compliance I hereby certify that I have submitted and served on opposing counsel an un- redacted document and, if required, a redacted PDF document that comply with the Rules of the Supreme and the Court of Appeals. The PDF documents are identical to the corresponding parts of the paper documents from which they were created as filed with the Court. To the best of my knowledge, information, and belief formed after scanning the PDF documents for viruses with an antivirus pro- gram, the PDF documents are free of computer viruses. A copy of this certificate has been submitted with the paper copies filed with the Court and has been served on all opposing parties.

Identification of paper documents not in PDF format: The following original paper documents are not in PDF format and are not included in the PDF document(s): None.

/s/ Brett D. Watson Brett D. Watson