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.
McCampbell asked the Supreme Court to strike down the June ruling and return the case to the Court of Criminal Appeals, which then could determine whether the criminal case against Leftwich should be dismissed.
Rowland said the criminal case against Leftwich and Terrill would proceed even if the Court of Criminal Appeals ruling is struck down.
“We still have ample evidence to go forward which wouldn't be covered by this,” he said. “Our prosecution will be able to go forward unless the Supreme Court does something which would be completely out of step with U.S. Supreme Court case law.”
Justices asked both attorneys several questions during the hourlong session.
Chief Justice Steven Taylor asked McCampbell more than once how any legislative immunity offered by the constitution could protect Leftwich and Terrill at meetings that were held away from the state Capitol, such as a restaurant in Moore where Terrill and Leftwich, according to prosecutors, met to discuss the legislation. He also questioned how the constitutional privilege could protect them if their discussions touched on, as prosecutors alleged, a possible job for Leftwich.
Justice John Reif asked, “Doesn't this kind of horse trading go on all the time?”
Reif said the House of Representatives and the Senate have the power to investigate allegations of misconduct by legislators and have the authority to discipline them. Lawmakers involved in mischievous deeds also face repercussions from voters at the ballot box, he said.
Rowland said any punishment handed down by the Legislature should not be the exclusive remedy.
“That shouldn't divest the criminal justice process from doing its job when the law is broken,” he said. “Furthermore, there has been a special House committee in session to investigate this for something in excess of six months. So far, there isn't any reason to think that they're going to take any action.”
Prosecutors allege that the position offered to Leftwich was defined and funded in two bills adopted by the Legislature last year.
The legislation was vetoed by former Gov. Brad Henry after the allegations surfaced.
Among other things, Terrill pressured officials at the state medical examiner's office to hire Leftwich, prosecutors say. He was chairman of a House budget subcommittee that authorized funding for the office.
Terrill, who did not formally join in Leftwich's appeal, attended Tuesday's hearing. Any ruling by the Supreme Court would affect Leftwich and Terrill alike.
“I am 100 percent factually and legally innocent,” Terrill said.
“I am confident as I always have been that I will be exonerated and ultimately vindicated.”