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Court Gives Lawmakers Immunity From Testifying

March 29, 2012 - 6:00pm

In a case that centers on whether online travel company Expedia could subpoena Rep. Rick Kriseman, a Tallahassee-based appeals court Thursday said state lawmakers have broad immunity from testifying about their legislative actions.

The ruling, by a three-judge panel of the 1st District Court of Appeal, could set a precedent in Florida. But the judges said it follows longstanding legal principles and also reflects the separation between the legislative and judicial branches of government.

"The power vested in the Legislature under the Florida Constitution would be severely compromised if legislators were required to appear in court to explain why they voted a particular way or to describe their process of gathering information on a bill,'' said the ruling, written by Judge Philip Padovano. "Our state government could not maintain the proper 'separation' required if the judicial branch could compel an inquiry into these aspects of the legislative process."

The ruling reversed a decision last year by Leon County Circuit Judge Terry Lewis that would have given Expedia limited ability to depose Kriseman and an aide, David Flintom, in a long-running tax fight between counties and online travel companies.

Kriseman, a St. Petersburg Democrat, has been an outspoken critic of the industry, arguing that it owes disputed amounts of hotel bed taxes. He angered Expedia at the end of the 2011 legislative session when he distributed potentially damaging internal company documents to all other members of the House.

Attorneys for Broward County sought to use those documents in a lawsuit about whether Expedia and other online-travel companies owe the disputed taxes. That led Expedia to try to subpoena Kriseman and Flintom --- and prompted the House to fight the subpoenas.

Kriseman said Thursday he thinks the subpoenas were an attempt to intimidate or harass him. Regardless, he said he will continue challenging the online-travel companies, which have unsuccessfully lobbied in recent years for legislation that would make clear they dont owe the disputed taxes.

"I'm not going to let up,'' Kriseman said. "I'm going to keep the pressure on, because there is too much money that is owed to the citizens of this state."

It was not clear Thursday whether Expedia will consider appealing the appeals-court ruling to the Florida Supreme Court. One company attorney said he was not authorized to comment, and another could not be immediately reached.

Expedia and similar companies, which serve as middlemen between hotels and travelers, charge customers for room rentals and fees for providing the service. The disputes focus on whether bed taxes should apply to the total costs or, as the companies argue, only to the amounts they pay for room rental.

While the appeals-court ruling stems from the Kriseman case, it appears that it could have far broader implications. A debate erupted in the House during this year's legislative session, for example, about whether lawmakers could be shielded from testifying in lawsuits about redistricting.

As an indication of the potentially precedent-setting nature of the case, the ruling said Florida courts had "not yet directly held that a member of the state Legislature is entitled to claim testimonial privilege."

But the judges wrote that such immunity stems from the longstanding legal principles of "common law'' and from the Florida Constitution's separation of powers.

"Although the issue has not been squarely addressed in Florida, there is ample authority in American law for the proposition that a member of the legislative branch has a right to assert a legislative privilege,'' the ruling said.

The ruling said such immunity is not "absolute," because lawmakers could not use it to withhold evidence of a crime. But the judges said lawmakers should not be forced to testify about their legislative actions, similar to the way they are shielded from civil lawsuits.

"If legislators are immune from civil liability for actions taken in the course of their legislative duties, they are also entitled to refuse to testify about the performance duties,'' the ruling said.

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