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Former lawmaker shouldn't be prosecuted, attorney tells Oklahoma Supreme Court

BY MICHAEL MCNUTT Published: September 14, 2011

A former state senator charged with bribery shouldn't be prosecuted for alleged misconduct while she was a legislator because she is protected under a clause in the Oklahoma Constitution, her attorney told the state Supreme Court on Tuesday.

The speech and debate clause of the constitution provides that lawmakers may not be brought into court to testify about discussions or debates during the legislative process, said Robert McCampbell, an attorney for Debbe Leftwich, told the court.

McCampbell asked the Supreme Court to strike down part of a ruling handed down in June by the state Court of Criminal Appeals. In the ruling, the criminal appellate court, which also refused to stop the criminal case against Leftwich, said the constitution's speech and debate clause includes an express exception for felonies. It said lawmakers in 1975 passed a law making it a crime to bribe a candidate to withdraw from a race or to accept a bribe to withdraw from a race.

“If the Court of Criminal Appeals' interpretation that the clause simply does not apply in felony cases survives, that will significantly chill the discussions of legislators engaged in legislative functions,” McCampbell said.

Oklahoma County Assistant District Attorney Scott Rowland, who asked the court to let the appellate court's ruling stand and allow criminal proceedings to resume, said legislators are not “super citizens, immune from criminal responsibility.”

“When they commit crimes and those crimes can be proved by evidence not subject to the speech or debate clause, they should be prosecuted,” he said.

“It is our position the speech and debate clause protects legislators who are engaged in legitimate legislative activity,” Rowland said after the hearing. “It's never legitimate legislative activity to take a bribe. It's never legitimate legislative activity to offer a bribe or exert influence unduly on an agency.”

The Supreme Court did not immediately issue a ruling.

Criminal case on hold

Leftwich, a Democrat from Oklahoma City, is accused of soliciting and/or accepting a bribe last year to withdraw as a candidate for re-election. Rep. Randy Terrill, R-Moore, is accused of offering the bribe — an $80,000-a-year state job.

The constitutional issue raised by Leftwich has halted proceedings in the Oklahoma County criminal case against her and Terrill, who also is charged with bribery.

Leftwich, who attended the hearing but did not speak with reporters afterward, contends she is immune from prosecution because the Oklahoma Constitution states “senators and representatives ... for any speech or debate in either House shall not be questioned in any other place.”

Prosecutors have subpoenaed eight current or former legislators to talk about their involvement with legislation discussed by Leftwich and Terrill, McCampbell said. Prosecutors also have notes from a legislative staff member who took notes during conversations with lawmakers, he said.

If legislators have to worry that their conversations and emails will be the subject of a subpoena as well as the notes being taken by staff members, “that will materially chill and alter their ability to have candid conversations regarding legislation,” he said. The ruling also alters the balance of power between the legislative and executive branches, he said.

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