A former Michigan lawmaker charged with perjury is not entitled to legislative immunity or evidentiary privilege under the Michigan Constitution, the Michigan Court of Appeals has ruled.

In People v Courser (Docket No. 341817), former state Representative Todd Courser was charged with perjury. The charges stemmed from testimony Courser gave to a House Select Committee that was examining allegations that he had committed misconduct in office. During his testimony before the Committee, Courser was asked if he ordered his staff to forge his signature on certain proposed legislation. Courser testified that signing the bills was his staff’s idea; however, staff members testified that Courser directed them to sign his name on the bills. All this occurred amid a rather bizarre scheme to cover up an extramarital affair that Courser was having with a fellow legislator. Courser ultimately resigned from the Michigan Legislature.

Courser filed a motion to dismiss the perjury charges, claiming he was entitled to legislative immunity and evidentiary privilege under the Michigan Constitution’s Speech or Debate Clause, Const 1963, art 4, §11. The Speech or Debate Clause says: “Except as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof. They shall not be questioned in any other place for any speech in either house.”

The Ingham County Circuit Court denied Courser’s motion to dismiss the perjury charges, finding he did not have legislative immunity to make false statements under oath. Courser appealed.

The Court of Appeals affirmed the trial court’s ruling in a published and binding decision. “Courser was not testifying to legislative matters,” the Court of Appeals said. “Rather, he was testifying in his personal capacity in an attempt to prove that he was fit to hold office, a matter which simply does not implicate the policies behind the Speech or Debate Clause. For those reasons, the Speech or Debate Clause does not protect Courser from prosecution.”

Legislative Immunity

On appeal, the parties disputed whether Courser’s testimony before the Committee constituted an act protected by the Speech or Debate Clause. “We conclude that a legislator’s testimony in a hearing to determine that person’s qualifications to hold office is not a protected legislative act under the Speech or Debate Clause,” the Court of Appeals wrote.

“The Committee was certainly engaged in a protected activity when it convened to examine Courser’s qualifications,” the Court of Appeals said. “But the question in this case is whether Courser, as a testifying witness before the Select Committee, was acting within the legislative sphere.”

The prosecution relied on two cases to support its argument that Courser was not acting within his legislative capacity when testifying before the Committee: Federal Election Comm’n v Wright, 777 F Supp 525 (ND Tex, 1991), and United States v Rose, 28 F 3d 181 (1994).

“Wright and Rose support the prosecution’s position that a representative testifying before a House committee concerning the representative’s qualifications to hold that office is not performing a legislative act,” the Court of Appeals explained. “In both cases, the House Committee on Standards of Official Conduct was investigating the representative’s personal conduct. The representatives’ individual testimony in those cases did not relate to the legislative process. The same is true in this case. The hearing was convened to examine Courser’s qualifications to hold office. Courser focuses on the fact that the allegedly perjurious statement related to the signing of legislation. … [T]here is an evidentiary privilege to the Speech or Debate Clause. Any statement made by Courser that is protected by the Speech or Debate Clause cannot be used as evidence against him. But, as a general matter, Courser’s testimony was addressing his misconduct in office. Therefore, he was not performing an act integral to the legislative process, and he is not entitled to the absolute protections of the Speech or Debate Clause.”

Moreover, “[w]e see no issue in concluding that the Speech or Debate Clause does not protect Courser even though it protects the members of the Select Committee questioning him,” the Court of Appeals wrote. “Courser’s testimony provided before the House Select Committee was not a legislative act. Accordingly, he is not entitled to legislative immunity from the perjury charge.”

Evidentiary Privilege

The Court of Appeals continued by finding that Courser’s testimony and conversations relating to the signing of “blue backs” (original copies of bills) were not protected by the evidentiary privilege under the Speech or Debate Clause.

“Signing legislation, while obviously related to the legislative process, is an administrative function,” the Court of Appeals stated. “The pertinent testimony does not involve substantive discussion of the bills Courser was introducing or his reasons for doing so. Although the Speech or Debate Clause should be read broadly to accomplish its purpose, Courser is not being prosecuted for any speech, debate, or deliberation pertaining to the bills. Rather, he is being prosecuted for his personal conduct at a hearing called to address his potential misconduct in office. Inquiry into his conduct is not precluded simply because it ‘has some nexus to legislative functions.’ … For those reasons, a prosecution based on Courser’s testimony before the House Select Committee does not violate the Speech or Debate Clause.”

In conclusion, “Courser is entitled to neither legislative immunity nor an evidentiary privilege under the Speech or Debate clause,” the Court of Appeals held.