Several times, in many forums, I have talked about the process the Legislature uses to develop the Budget Digest, a non-legally binding document that makes recommendations for spending some of the discretionary state funds allocated by the Legislature during its legally binding appropriation process (a primary function of the Legislature).

Critics, motivated in large part by politics, have repeatedly argued against the use of the digest process, and once again this debate has landed in court.

But this litigation is not merely a discussion of the Budget Digest’s merits. The question currently before a Kanawha Circuit Court judge, and ultimately before the state Supreme Court, goes much deeper. At its heart is the constitutional tenet of the separation of powers, and the time-honored immunity that has protected members of the Legislature from being tied up in a litany of lawsuit-driven court appearances.

The case is the surprising result of a lawsuit filed on behalf of a Montgomery resident who lost her home to an out-of-state lending company. Her attorney maintains that lobbyists have worked excessively to keep laws regarding out-of-state lenders weak, and that the state Ethics Commission should better control lobbyists, but that the Ethics Commission is underfunded. Through this rather disjointed series of arguments, the attorney declares the Budget Digest to be at fault for the plaintiff’s loss, and calls for a judicial review and revision of the digest process.

This lawsuit has bounced back and forth between the circuit and state Supreme courts, and is currently back at the circuit level. At issue at the moment is whether a legislator, or by proxy his or her staff member, can be compelled to testify regarding legislative action. While in some ways, I and fellow members of the legislative leadership would like nothing more than to go before the court to answer questions about the merits of the Budget Digest, I am extremely wary of the precedent such testimony would create.

As far as I or any of my colleagues are aware, if the plaintiff’s request to force legislative testimony is granted, it would be the first time in this state’s history.

There is no law in this state to support the right to subpoena a legislator or staff member in a civil case, and there is a vast number of rulings elsewhere in the country that would prevent it.

For many years, the West Virginia Supreme Court has recognized the merits of the Constitution’s “Speech or Debate Clause,” which is also included in state law, providing lawmakers immunity from being forced to testify regarding actions taken as legislators. The justices have done this for good reason.

If this testimony is compelled, this case would surely be cited by any number of people who, for any reason, might feel aggrieved by some governmental action and decide to sue the Legislature, then call individual lawmakers or staff members to testify.

Certainly the Legislature has its fair share of critics, some of whom are wholly justified in their complaints and others who are not. Thankfully, the democratic process gives those who are dissatisfied regular opportunities to remedy the situation by voting members out of office. The state would not be served by dragging the legislative process from the statehouse to the courthouse.

This is a case that the Legislature must fight vigorously. While on the surface the question of whether to grant the subpoena at hand is a procedural one, the potential precedent is huge.

There have been many times during my decade-long tenure as speaker that I have forced myself to look beyond a pressing issue to the effect any actions taken by me or the Legislature as whole could have in the long term. So-called “precedents” can be easily, sometimes unintentionally, created, but they are seldom easily undone.

— Contact House Speaker Kiss, D-Raleigh, by phone: (304) 340-3210; by writing: Office of the Speaker, Room M-228, Building 1, Capitol Complex, Charleston, WV 25305; or by e-mail:

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