Why the Perry indictment should be dismissed: count I (veto), immunity

|The Volokh Conspiracy |

As I noted below, Jim Ho and Prerak Shah (Gibson, Dunn & Crutcher) and I have filed an amicus brief on behalf of 14 scholars, former judges, and former prosecutors (liberal, conservative, and moderate) arguing that the indictment of Gov. Rick Perry should be dismissed. (For a refresher on the indictment itself, see here.) You can read the brief in PDF form here, but I thought I'd also post the full text on the blog. Here is the immunity argument on count I, which focuses on Perry's veto of appropriations for the Travis County District Attorney Rosemary Lehmberg's office; I've posted separately on the separation of powers argument on count I, and I'll post shortly on count II, which focuses on Perry's threat of the veto.

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B. Governor Perry Cannot Be Prosecuted for His Veto, Because He Is Entitled to Absolute Legislative Immunity for Any Exercise of His Veto Power.

Count I also suffers from a separate yet equally fatal flaw: a Governor has absolute legislative immunity from any prosecution based on the exercise of his veto power.

1. Legislative immunity is a common law doctrine that flows from the Speech or Debate Clauses of the Texas and U.S. Constitutions. See In re Perry, 60 S.W.3d 857, 859 (Tex. 2001) (citing U.S. Const. art. I, § 6; Tex. Const. art. III, § 21). It declares that "individuals acting in a legislative capacity are immune from liability for those actions." Id.

The reason for this legislative immunity is simple, as the U.S. Supreme Court has explained, and the Texas Supreme Court has endorsed:

"[T]he threat of liability can create perverse incentives that operate to inhibit officials in the proper performance of their duties. In many contexts, government officials are expected to make decisions that are impartial or imaginative, and that above all are informed by considerations other than the personal interests of the decisionmaker. Because government officials are engaged by definition in governing, their decisions will often have adverse effects on other persons. When officials are threatened with personal liability for acts taken pursuant to their official duties, they may well be induced to act with an excess of caution or otherwise to skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct."

Id. (alterations in original) (quoting Forrester v. White, 484 U.S. 219, 223 (1988)).

And for precisely those same reasons, the motive behind a legislative act—be it partisan, personal, or parochial—is utterly irrelevant to the privilege of legislative immunity:

The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected 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.

Tenney v. Brandhove, 341 U.S. 367, 377 (1951). See also Perry, 60 S.W.3d at 859-60 ("The legislative immunity doctrine recognizes that it is not consonant with our scheme of government for a court to inquire into the motives of legislators.") (quotations and citation omitted).

2. Notably, legislative immunity extends to any official who is acting in a legislative capacity, whether or not the official is a member of the Legislature. For example, the Texas Supreme Court has held that legislative immunity protects the Attorney General and the Comptroller when they perform "legislative functions" as members of the Legislative Redistricting Board. Id. "Courts have extended the legislative immunity doctrine beyond federal and state legislators to other individuals performing legitimate legislative functions," such as mayors, city council vice-presidents, and others. Id. at 860. Indeed, "[a]ctions to which courts have extended absolute legislative immunity include a mayor's veto of an ordinance passed by a city council." Camacho v. Samaniego, 954 S.W.2d 811, 823 (Tex. App.—El Paso 1997, pet. denied) (citing Hernandez v. City of Lafayette, 643 F.2d 1188, 1194 (5th Cir. 1981)). "[W]hen the mayor of a municipality vetoes an ordinance passed by the city's legislative body, he performs a legislative function and is entitled to absolute immunity from a civil suit complaining about actions taken in his legislative capacity." Hernandez, 643 F.2d at 1194.

Just as a mayoral veto is a legislative act subject to legislative immunity, so too is a gubernatorial veto. Texas law is clear that a gubernatorial veto is a legislative act, not an executive act. See, e.g., Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 598 (Tex. 1975); Fulmore v. Lane, 140 S.W. 405, 411 (Tex. 1911); Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893). So Governor Perry is immune from liability for his veto.

This immunity from liability applies to criminal prosecutions as well as civil suits based on legislative activity. Indeed, the core principle behind legislative immunity is to enable our "representatives to execute the functions of their office without fear of prosecutions, civil or criminal." Tenney, 341 U.S. at 373-74 (emphasis added). As courts have recognized, the "level of intimidation against a local legislator arising from the threat of a criminal proceeding is at least as great as the threat from a civil suit," so "the privilege or immunity enjoyed by local legislators should be extended to criminal proceedings." State v. Holton, 997 A.2d 828, 845, 856 (Md. Ct. Spec. App. 2010), aff'd, 24 A.3d 678 (Md. 2011) (quotations and citation omitted).

[Footnote: See also Doe v. McMillan, 412 U.S. 306, 312-13 (1973) ("Congressmen . . . 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.") (citation omitted); D'Amato v. Superior Court, 167 Cal. App. 4th 861, 871 (Cal. Ct. App. 2008) ("The district attorney . . . contends immunity applies only to civil suits, and does not extend to criminal prosecutions. We disagree."); Dublin v. State, 742 N.E.2d 232, 236 (Ohio Ct. App. 2000) ("'legislative privilege' embodies . . . substantive immunity from civil and criminal liability"); State v. Neufeld, 926 P.2d 1325, 1337 (Kan. 1996) ("[I]f a legislator's conduct falls within a legitimate legislative sphere, legality of the conduct is not a primary concern.").]

So Count I presents a particularly straightforward application of legislative immunity. A conviction under Section 39.02(a)(2) requires an inquiry into Governor Perry's subjective state of mind. See Tex. Penal Code § 39.02(a)(2) (requiring "intent to harm"). But "it is not consonant with our scheme of government for a court to inquire into the motives of legislators." Perry, 60 S.W.3d at 859-60 (quotations and citation omitted). "If the motives for a legislator's legislative activities are suspect, the constitution requires that the remedy be public exposure; if the suspicions are sustained, the sanction is to be administered either at the ballot box or in the legislature itself." State v. Dankworth, 672 P.2d 148, 152 (Alaska Ct. App. 1983). See also Tenney, 341 U.S. at 377-78 ("The claim of an unworthy purpose does not destroy the privilege . . . In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies.").

[Footnote: See also United States v. Dowdy, 479 F.2d 213, 266 (4th Cir. 1973) ("Once it was determined that the legislative function . . . was apparently being performed, the propriety and the motivation for the action taken, as well as the detail of the acts performed, are immune from judicial inquiry.'"); Irons v. R.I. Ethics Comm'n, 973 A.2d 1124, 1131 (R.I. 2009) ("'[A]s long as [a legislator's] challenged actions, stripped of all considerations of intent and motive, were legislative in character, the doctrine of absolute legislative immunity protects them from such claims.'") (citation omitted); D'Amato, 167 Cal. App. 4th at 869 ("courts cannot inquire into the impetus or motive behind legislative action") (quotations and citation omitted).]

3. The special prosecutor argues that legislative immunity does not apply to a criminal prosecution of a Governor's exercise of the veto power, relying heavily on a single district judge's decisions in United States v. Mandel, 415 F. Supp. 997 (D. Md. 1976), and United States v. Mandel, 415 F. Supp. 1025 (D. Md. 1976). But those cases are inapposite.

First, a crucial aspect of Mandel is not present here. The district judge in that case reasoned that "the rationale for immunity from criminal prosecution is wholly lacking" because prosecution came from the executive branch. Mandel, 415 F. Supp. at 1031. As the judge explained, "[t]he executive has no reason to fear for its independence as a co-equal branch of government as a consequence of any criminal prosecution brought by itself." Id.

But the executive branch in Texas is not unitary. The Governor and the Attorney General are separately elected. Moreover, the power to bring criminal prosecutions in Texas is divided between the Attorney General and local district attorneys, with the bulk of the authority in the hands of district attorneys. So the chief executive of Texas does have reason to fear for its independence as a consequence of criminal prosecutions brought by officials wholly outside of his authority, as evidenced by this very case.

Second, Governor Mandel was not entitled to legislative immunity in any event. Mandel concerned the federal prosecution of a state official. As the U.S. Supreme Court has made clear, legislative immunity does not apply in that context, because immunity derives from the separations of powers within a sovereign, not between sovereigns. See United States v. Gillock, 445 U.S. 360, 370 (1980). Mandel did not involve a state prosecution of a state official and is thus inapplicable to this case.

The special prosecutor also cites Jorgensen v. Blagojevich, 811 N.E.2d 652 (Ill. 2004), and Clinton v. Jones, 520 U.S. 681 (1997), to argue that legislative immunity should not apply in this case. But neither of those cases even remotely supports that position.

Jorgensen involved suing a governor in his official capacity to declare an official act unconstitutional. It had nothing to do with holding a governor personally liable, either civilly or criminally, for an official act. Obviously Governor Perry can be sued in his official capacity when a plaintiff is seeking to declare a government action unlawful. That happens all the time. But that has nothing to do with trying to hold him personally liable for a legislative act, as is the case here. Indeed, Jorgensen itself explicitly acknowledged this distinction:

We note, moreover, that the Judges have not sought to hold the Governor personally liable for his actions, nor are they attempting to force him to take or to refrain from taking any particular action. He was named in the litigation because he was one of the state officials involved in the sequence of events which led to the failure of the Judges to receive their FY2004 COLAs. There is nothing unusual about his inclusion as a party. Examples of Illinois governors being joined as defendants in cases seeking declaratory and injunctive relief based on alleged violations of state constitutional and legal requirements are commonplace.

Jorgensen, 811 N.E.2d at 652 (emphasis added).

The special prosecutor curiously omitted this passage from his discussion of Jorgensen, even though it appears immediately before the passage that the special prosecutor chose to block quote. This omission is telling. After all, the passage shows that a governor would have legislative immunity if someone were seeking to hold him "personally liable for his actions," id.—as the special prosecutor is attempting to do here.

Clinton is not helpful to the special prosecutor either. The Supreme Court there said that immunity does not apply to unofficial conduct—but that it would apply to official acts. As the Court explained, "[t]he principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct." Clinton, 520 U.S. at 692-93. Here, Governor Perry is being held criminally liable for an official act (a veto), not for any unofficial conduct, so he is entitled to immunity.

* * *Allowing Count I to proceed would utterly defeat the purpose of legislative immunity. Governors "must enjoy the same ability to speak and act in their legislative capacities, without fear of retribution, either criminally or civilly, because of what they say or how they vote." Holton, 997 A.2d at 856. Governors "may be called upon to answer for their legislative conduct to the citizens who elected them, which is what democracy is all about." Id. "[B]ut they may not be compelled to defend their legislative conduct to a prosecutor, to a grand jury or to a court." Id.