State v. Beno
1984 Wisc. LEXIS 2273, 116 Wis. 2d 122, 341 N.W.2d 668 (1984)
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Rule of Law:
The legislative privilege under Article IV, section 16 of the Wisconsin Constitution, which protects a legislator from being questioned for 'words spoken in debate,' extends to a legislative aide when the aide is acting as the legislator's 'alter ego' in the performance of a core legislative function. The privilege belongs to the legislator, who must formally invoke it on the aide's behalf.
Facts:
- The Wisconsin Department of Revenue initiated a tax audit of lobbyist Delbert Beno.
- Sharon Beno, Delbert's wife, was subpoenaed by the Department to produce certain financial records.
- Richard White, an administrative assistant to Assembly Speaker Ed Jackamonis, attended a settlement conference for an unrelated lawsuit.
- At this conference, White allegedly stated that Delbert Beno would not be a credible witness in that suit because he was about to be indicted on tax fraud charges.
- Speaker Jackamonis had directed White to conduct an investigation into alleged misconduct by a legislator, and White claimed he received the information about Beno during this investigation from a confidential informant.
- Seeking evidence of the Department's 'institutional bad faith' in its investigation, Sharon Beno's attorneys subpoenaed White to depose him about his statement and its source.
Procedural Posture:
- The Wisconsin Department of Revenue commenced an action in the Dane County Circuit Court to compel Sharon Beno to comply with an administrative subpoena.
- The circuit court refused to quash the subpoena, but the Court of Appeals, in a prior decision (Beno I), remanded for further discovery on Beno's claim of 'institutional bad faith.'
- During discovery, Beno subpoenaed Richard White; White and Speaker Jackamonis moved to quash the subpoena based on legislative privilege.
- The circuit court granted the motion to quash White's subpoena and issued a writ of attachment against Beno for her continued refusal to comply with the Department's subpoena.
- Beno appealed to the Wisconsin Court of Appeals, which reversed the circuit court's order, holding that White did not have legislative privilege.
- The State and the intervenors (White and Jackamonis) sought and were granted review by the Supreme Court of Wisconsin.
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Issue:
Does the legislative privilege under Article IV, section 16 of the Wisconsin Constitution, which protects a 'member of the legislature' from liability for 'words spoken in debate,' extend to a legislative aide acting as the legislator's alter ego, thereby allowing the legislator to quash a subpoena directed to the aide?
Opinions:
Majority - Shirley S. Abrahamson, J.
Yes, the legislative privilege under Article IV, section 16 of the Wisconsin Constitution extends to a legislative aide acting as the legislator's alter ego. The phrase 'words spoken in debate' is not limited to literal speeches on the chamber floor but encompasses matters that are an integral part of the legislative process, such as a committee investigation into member misconduct. The court reasoned that due to the complexities of modern governance, legislators rely heavily on their aides, and to deny them the protection of the privilege would force legislators to perform all tasks personally and undermine the privilege's purpose of ensuring legislative independence. For the privilege to apply to an aide, the aide must be acting as the legislator's 'alter ego,' and the legislator must formally invoke the privilege, taking responsibility for the aide's actions. Here, Speaker Jackamonis directed White's investigation, which was a legitimate legislative function, and properly invoked his privilege to prevent White from being questioned.
Dissenting - Louis J. Ceci, J.
No, the legislative privilege should not be extended to cover a legislative aide. The dissent argues that the public has a fundamental right to every person's evidence, and testimonial privileges are rare exceptions that must be construed as narrowly as possible. The plain language of Article IV, section 16 explicitly protects a 'member of the legislature' and makes no mention of aides or staff. By extending this privilege, the majority creates a new class of persons exempt from the duty to testify, based not on constitutional text but on legislative convenience. This expansion unjustifiably obstructs the administration of justice and the judicial system's search for truth.
Analysis:
This decision significantly broadened the scope of legislative privilege in Wisconsin by establishing the 'alter ego' doctrine, which treats a legislative aide as one with the legislator for purposes of testimonial immunity. It recognizes the practical realities of the modern legislative process, where staff play a critical role in executing legislative functions. The ruling strengthens the separation of powers by shielding internal legislative investigations from judicial scrutiny, but it also creates a higher barrier for litigants seeking evidence from legislative sources, potentially hindering the search for truth in court proceedings as the dissent warns.
