Monday, July 11, 2016
JACKSON Gov. Phil Bryant has filed a motion to quash a subpoena for his appearance in the airport takeover lawsuit, claiming "legislative immunity."
"Legislative immunity shields a governor from testifying even (if) the governor is named as a defendant in the lawsuit or if the governor's testimony is relevant to the underlying claims," the memorandum accompanying the motion to quash the subpoena states.
Matt Steffey, professor of constitutional law at the Mississippi College School of Law, said that immunity for legislators and executive branch members meant a "fuzzy" area of the law. But, he said, in the past courts have given broad application to the privilege protecting individuals from influence from the judicial branch.
"It's a very opened-ended doctrine," Steffey said. "Normally, the governor's or a legislator's subjective views and considerations and advice they had in passing a particular bill are immune. Usually, they can't be called into court to answer for how they exercise their basic governmental functions."
The memo from the attorney general's office paralleled Steffey's explanation of the immunity.
"Even should JMAA argue that the governor should be required to undergo cross-examination regarding his deliberative process or motivation in signing the questioned litigation, such a claim does not overcome legislative immunity," the memo states.
The Jackson Municipal Airport Authority, still awaiting formal inclusion in the lawsuit, argue in the response to the motion to quash their subpoena that Bryant will not be testifying concerning his "legislative action."
"It has been reported that Defendant Bryant will soon name his appointees in accordance with Senate Bill 2162," their response states. "This action will directly negatively affect the Plaintiffs/Intervenors City of Jackson, MS and JMAA."
Sen. Josh Harkins owns and lists land near the Jackson Airport. He says it's not a conflict of interest, though.
"The act of the Governor in appointing members of the proposed commission actions is specifically related to particular individuals and situations," the memo further argues. "It involves appointing persons, which will negatively affect operations of the Jackson airports by JMAA."
The question then becomes, does forcing the governor to appear and testify to that part of the process, the appointees, qualify for the "immunity" he claims? Steffey said he isn't sure.
"Whether every aspect of the airport lawsuit falls within this or not is something that the court is going to have to figure out," Steffey said.
Steffey said that although the governor can claim the immunity, he will still have to prove it.
"A private citizen in another branch of government can't call me into court and make me explain under oath how I do my job," Steffey said, explaining that it was not a clear-cut issue. "That's true until it's not."
"The burden is on the person claiming immunity to show that it applies, and a court is going to have to resolve it," Steffey said.
At the moment, there is not a hearing scheduled to decide on the motion.