The Virginia Supreme Court recently issued a decision in Edwards v. Vesilind, No. 160643 (Va. Sept. 15, 2016), a case involving the application of the Virginia constitution’s speech or debate clause to a subpoena for documents directed to Virginia state senators and the Division of Legislative Services (DLS), a legislative agency that provides legal and other research services to the Virginia General Assembly. The subpoena, which arose from a lawsuit alleging that certain state house and senate districts violated the Virginia constitution, sought written communications and other documents related to the legislature’s formation of these districts, including documents that discussed (1) compactness, population and other criteria used to form the districts; (2) the role played by partisan or incumbent-protection considerations; and (3) the process of preclearance through the Virginia attorney general.
The Virginia senators and DLS objected to the subpoenas based on the Virginia speech or debate clause, which provides “Members of the General Assembly . . . for any speech or debate in either house shall not be questioned in any other place.” The trial court, however, narrowly construed this privilege as applying only to “purely internal legislative communications solely among legislators, and between legislators and legislative staff.” Moreover, it defined “legislative staff” as “legislative assistants and/or aides who are employed and paid by the individual legislators, a legislative committee, or the legislature as a whole.” It found DLS and its employees to fall outside these parameters and therefore held that agency entirely unprotected by legislative privilege. It further found that the senators could not withhold communications with DLS, political consultants or other third parties.
The trial court’s ruling was certified for direct appeal to the Virginia supreme court because of the importance of the questions presented, which were ones of first impression concerning the scope of the Virginia speech or debate clause. The supreme court’s ruling as to the scope of the privilege and who may invoke it is also of wider interest because it construed the Virginia clause as co-extensive with the federal Speech or Debate Clause. As the court noted, the language in the Virginia constitution is derived from the federal Clause, and “[b]oth provisions afford similar protections because they are based on the same historical and public policy considerations.” Slip op. at 8.