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* Attorney General of Texas Jeffrey C. Mateer* First Assistant Attorney General Scott A. Keller* Solicitor General Kyle D. Hawkins* Assistant Solicitor General Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697

Steve Marshall* Attorney General of Alabama Lawrence G. Wasden* Attorney General of Idaho Curtis T. Hill, Jr.* Attorney General of Indiana M. Stephen Pitt* General Counsel for Governor of Kentucky Matthew G. Bevin Derek Schmidt* Attorney General of Kansas 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.

i

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

ii

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

iii

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

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 repre-

sentatives 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 princi-

ples 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 bur-

den 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

2

avoid ordering legislators to undergo intrusive discovery into their subjective mo-

tivations—especially where, as here, ample additional materials exist with which

the City could attempt to prove its claims.

3

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 coun-

sel 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 prepara-

tion. ASCR 4-6(c).

4

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 independ-

ence 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;

5

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 gov-

ernment”). 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 exer-cise 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 commit-

tees, 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

6

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 con-

clusion 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 read-

ily 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

7

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 pro-

ceedings 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 de-

fending 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

8

reason, “once it is determined that Members are acting within the ‘legitimate leg-

islative 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 protec-tion 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 de-

bate.” 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.

9

Texas courts have further underscored the important separation-of-powers

principles that the Texas Speech or Debate Clause protects. In ruling that legisla-

tors are not “susceptible to judicial inquiry into their subjective thought pro-

cesses,” 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 vir-

tually 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 leg-

islators not only from liability, but from suit altogether. As the Texas Supreme

Court has explained, “the immunity doctrine serves important public purposes,”

10

and consistent with those purposes “shields legislative actors not only from liabil-

ity, 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 litiga-

tion’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 execu-

tive 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

11

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 legisla-

tors 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.

12

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 de-

fend 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

13

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 hous-

ing 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 re-

quest. 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

14

were to present itself, “even then such testimony frequently will be barred by priv-

ilege.” 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 uncon-

stitutional 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 sug-

gests 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.

15

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 “nei-

ther alleged nor demonstrated any extraordinary circumstance that might justify

what would appear to be an almost unprecedented incursion into legislative im-

munity.” 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 ex-

plained, that Arlington Heights has no relevance. See 60 S.W.3d at 861-62.

16

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

17

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

18

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. II, § 6

“Legislators may not be held to an-swer before any other tribunal for any statement made in the exercise of their legislative duties while the legis-lature is in session.”

Colorado Colo. Const. art. V, § 16

“[A]nd for any speech or debate in ei-ther house, or any committees thereof, they shall not be questioned in any other place.”

Georgia Ga. Const. art. III, § 4, ¶ IX

“No member shall be liable to answer in any other place for anything spoken in either house or in any committee meeting of either house.”

Hawaii Haw. Const. art. III, § 7

“No member of the legislature shall be held to answer before any other tri-bunal for any statement made or ac-tion taken in the exercise of the mem-ber’s legislative functions. . . .”

Idaho Idaho Const. art. III, § 7

“[N]or shall a member, for words ut-tered in debate in either house, be questioned in any other place.”

Illinois Ill. Const. art. IV, § 12

“A member shall not be held to an-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.”

19

Kansas Kan. Const. art. II, § 22

“For any speech, written document or debate in either house, the mem-bers shall not be questioned else-where.”

Louisiana La. Const. art. III, § 8

“No member shall be questioned else-where for any speech in either house.”

Maine Me. Const. art. IV, pt. 3, § 8

“[N]o member shall be liable to an-swer for anything spoken in debate in either House, in any court or place else-where.”

Maryland Md. Const., Decla-ration of Rights, art. 10

“That freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature.”

Massachusetts Mass. Const. pt. 1, art. XXI

“The freedom of deliberation, speech and debate, in either house of the leg-islature, is so essential to the rights of the people, that it cannot be the foun-dation of any accusation or prosecu-tion, action or complaint, in any other court or place whatsoever.”

Michigan Mich. Const. art. IV, § 11

“They shall not be questioned in any other place for any speech in either house.”

Missouri Mo. Const. art. III, § 19

“[A]nd they shall not be questioned for any speech or debate in either house in any other place.”

Montana Mont. Const. art. V, § 8

“[A member] shall not be questioned in any other place for any speech or debate in the legislature.”

New Hamp-shire

N.H. Const. pt. 1, art. 30

“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

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the foundation of any action, com-plaint, or prosecution in any other court or place whatsoever.”

New Jersey N.J. Const. art. IV, § 4, ¶ 9

“[A]nd for any statement, speech or debate in either house or at any meet-ing of a legislative committee, they shall not be questioned in any other place.”

New Mexico N.M. Const. art IV, § 13

“And they shall not be questioned in any other place for any speech or de-bate or for any vote case in either house.”

New York N.Y. Const. art. III, § 11

“For any speech or debate in either house of the legislature, the members shall not be questioned in any other place.”

North Dakota N.D. Const. art. IV, § 15

“Members of the legislative assembly may not be questioned in any other place for any words used in any speech or debate in legislative pro-ceedings.”

Oregon Or. Const. art. IV, § 9

“Nor shall a member for words ut-tered in debate in either house, be questioned in any other place.”

Rhode Island R.I. Const. art. VI, § 5

“For any speech in debate in either house, no member shall be questioned in any other place. . . .”

South Dakota S.D. Const. art. III, § 11

“[A]nd for words used in any speech or debate in either house, they shall not be questioned in any other place.”

Texas Tex. Const. art. III, § 21

“No member shall be questioned in any other place for words spoken in debate in either House.”

Utah Utah Const. art. VI, § 8

“[A]nd for words used in any speech or debate in either house, they shall not be questioned in any other place.”

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Vermont Vt. Const. ch. I, art. 14

“The freedom of deliberation, speech, and debate, in the Legislature, is so essential to the rights of the peo-ple, 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. VI, § 17

“[A]nd for words spoken in debate, or any report, motion or proposition made in either house, a member shall not be questioned in any other place.”

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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, pt. 2, § 7

“No member of the legislature shall be liable in any civil or criminal prose-cution for words spoken in debate.”

Nebraska Neb. Const. art. III, § 26

“No member of the Legislature shall be liable in any civil or criminal action whatever for words spoken in de-bate.”

North Carolina N.C. Gen. Stat. § 120-9

“The members shall have freedom of 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, § 17

“No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spo-ken in debate.”

Wisconsin Wis. Const. art. IV, § 16

“No member of the legislature shall be liable in any civil action, or crimi-nal prosecution whatever, for words spoken in debate.”

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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

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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 iden-

tical 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