Judge’s ruling on ‘legislative immunity’ gives lawmakers get-out-of-jail card

Cynics have often argued that members of the West Virginia Legislature can get away with anything. That was frustrated hyperbole.

But now, perhaps they really can!

First, the background.

Marion County Democrat Delegate Mike Caputo got in trouble when, during last year’s session, he became angry over a controversial display at the Capitol.

According to the criminal complaint—some of the details Caputo disputes—he pushed, hit or kicked open the door of the House Chamber. The door struck a doorman. Caputo also allegedly elbowed a fellow delegate as he was hurrying to the floor.

Caputo was called on the carpet for his behavior. House Speaker Roger Hanshaw stripped him of his committee assignments. Caputo delivered a sincere apology on the House floor.

That should have been the end of it.

However, several months later, a criminal misdemeanor charge of battery was brought against him over the incident. Caputo used the unique defense that he could not be prosecuted because he enjoyed legislative immunity.

This week, Kanawha County Circuit Court Judge Tod Kaufman ruled in Caputo’s favor and dismissed the charge, saying that Caputo’s attempt to enter the chamber was “within the legislative sphere” and a “statutorily protected activity.”

First, Caputo never should have been prosecuted. This was a very minor event for which he apologized multiple times and suffered significant embarrassment. It damaged his reputation, and he knows that.

But legislative immunity? Really?

It is true that the legislative immunity provision of the state code is very broad. It extends to civil suits and criminal prosecution “for all actions within the legislative sphere, even though the conduct, if performed in other than a legislative context, would in itself be unconstitutional or otherwise contrary to criminal or civil statues.”

Judge Kaufman said that the “legislative sphere” includes the most basic right of being present in the House Chamber.

So, what if a delegate takes a baseball bat to the doorman who is momentarily holding the door closed during the session’s opening prayer. Would that be protected behavior?

Could a delegate drive like a maniac on I-64 creating a highway demolition derby and get away with it because he’s trying to make it to Charleston before the floor session begins at 11 a.m.?

As absurd as it sounds, you could make that case for immunity based on Kaufman’s ruling.

It is self-evident that the immunity provision was designed to protect lawmakers from criminal charges and civil suits for legislative acts, functions integral to the deliberative and decision-making process of government, not to give them a get-out-of-jail free card for breaking the law.

If there had been a concerted effort to keep Caputo from entering the chamber at all or to stop him from voting on a bill, that would be different, but this was a momentary delay for Caputo that was completely irrelevant to the functions of the House.

Maybe Kaufman was trying to find a way to let Caputo off the hook because he, like many, thought the criminal charge against him was ridiculous. But Kaufman’s rationale invites almost as much derision as the charge itself.

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