JOHN S. EDWARDS, ET AL. v. RIMA FORD VESILIND, ET AL.
Record No. 160643
Supreme Court of Virginia
September 15, 2016
CHIEF JUSTICE DONALD W. LEMONS
JOHN S. EDWARDS, ET AL.
v. Record No. 160643
RIMA FORD VESILIND, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
W. Reilly Marchant, Judge
OPINION BY
CHIEF JUSTICE DONALD W. LEMONS
SEPTEMBER 15, 2016
This appeal arises from a civil contempt order entered after the Division of Legislative Services (“DLS”) and several Members of the General Assembly, invoking legislative privilege, refused to comply with a production order in a matter pending before the circuit court. The court held that legislative privilege, as set forth in the Speech or Debate Clause of Article IV, Section 9 of the Constitution of Virginia (“the Clause”),1 does not extend to DLS or to documents and communications between Members of the General Assembly and consultants, DLS, or other third parties. For the reasons stated below, we conclude that the court abused its discretion by holding the appellants in contempt. With respect to the appellants in this case, the production order of February 16, 2016 and the provisions of the order of April 14, 2016 holding appellants in civil contempt will be vacated in part.
On appeal we are confined to the record developed in the court below and the assignments of error granted. Of necessity, our resolution of this case addresses legal principles implicated by the controversy but may not resolve specific application of these principles because the record is not fully developed.
On September 14, 2015, plaintiff-appellees Rima Ford Vesilind, Arelia Langhorne, Sharon Simkin, Sandra D. Bowen, Robert S. Ukrop, Vivian Dale Swanson, H.D. Fiedler, Jessica Bennett, Eric E. Amarteis, Gregory Harrison, Michael Zaner, Patrick M. Condray, Sean Sullivan Kumar, and Dianne Blais (collectively, “the appellees”) brought an action in the circuit court against the Virginia State Board of Elections, the Department of Elections, and various officers in their official capacities. The appellees alleged that House of Delegates districts 13, 22, 48, 72, and 88, and Senate districts 19, 21, 28, 29, 30, and 37 were not sufficiently contiguous, compact, and as nearly equal in population as practical, thereby violating Article II, Section 6 of the Constitution of Virginia. The appellees seek a declaration that these eleven districts are unconstitutional, seek to enjoin the use of the current district map in future elections, and seek other equitable relief as necessary.2
In November 2015, subpoenas duces tecum were served upon, as relevant to this appeal, Virginia Senators John Edwards, Ralph Smith, Richard Saslaw, Charles Colgan, David Marsden, and George Barker (collectively, “the Virginia Senators”)3 and DLS, demanding production of 17 categories of documents and communications, such as those relating to:
compactness, total population, contiguity, total number of splits, communities of interest, and core retention of the challenged districts and adjacent districts - development and prioritization of the criteria used to draft and modify the districts
- Senators’ partisan considerations affecting the shape or composition of the districts or adjacent districts, including impact on incumbents
- the establishment and implementation of the 2001 redistricting criteria
- preclearance through the Virginia Attorney General’s Office
- communications from the public concerning compactness
- map files and plans proposed, considered, or adopted, and
- any official or unofficial meeting of the General Assembly.
The DLS subpoena also requests “All documents consisting of electronic map files for redistricting plans which were used for any election for the House . . . or Senate of Virginia from 1980 to the present.” The subpoenas seek production of all “documents or communications in your possession, custody or control, including items in the possession, custody or control of your agents, employees or attorneys.”
The Virginia Senators and DLS filed motions to quash, claiming legislative privilege protected disclosure of the documents and communications sought. Following the submission of briefs and oral argument, the circuit court issued a letter opinion defining the scope of legislative privilege.
Relying on Gravel v. United States, 408 U.S. 606 (1972), the circuit court stated that “legislative privilege applies absolutely to purely internal legislative communications solely among legislators, and between legislators and legislative staff.” However, adopting the analysis
declines to extend the privilege beyond that core definition [protecting communications solely between legislators and other legislators or legislators and their staff] and finds that the individuals included within the legislative privilege are only the legislators and their legislative assistants and/or aides who are employed and paid by the individual legislator, a legislative committee, or the legislature as a whole.
The court required the Virginia Senators to answer all discovery at issue, although “such responses shall be limited and protected by the scope of legislative privilege as defined [in the letter opinion].”
As to DLS, the circuit court ruled that it
is a legislative agency that serves legislators individually and collectively, but is not a legislator, a legislative committee, or the legislature as a whole, and is not a paid employee of the above. Therefore, DLS does not fall within the scope of this Court’s definition of the legislative privilege and . . . shall answer the discovery propounded herein. Certainly, this includes all communications between DLS and legislators or their aides or staff, as well as documents or communications among DLS staff or between DLS staff and others.
Accordingly, on February 16, 2016, the circuit court entered an order denying the Virginia Senators’ motion to quash and requiring that they answer discovery requests “limited and protected by the scope of the legislative privilege defined in the letter opinion.” The court also denied the motion to quash as to DLS, directing that it answer all discovery requests because DLS falls outside the scope of legislative privilege.4 In the same order, the court held that two political consultants were third parties and did not fall within the scope of the privilege.
Before the Court of Appeals considered this matter, the parties filed a joint motion for certification to transfer the proceedings to this Court pursuant to
II. ASSIGNMENTS OF ERROR
In its sole assignment of error, DLS contends that:
1. The Circuit Court erred in holding that legislative work product and other materials concerning core legislative acts held in the custody of DLS, including communications between Virginia legislators and their staff, on the one hand, and DLS and its staff, on the other, are categorically excluded from the protections afforded in Virginia’s Speech or Debate Clause.
The Virginia Senators raise three assignments of error, contending that:
1. The circuit court erred as a matter of law when it found the Virginia Senators in contempt of court because the court’s underlying opinion and order held that the Speech or Debate Clause in Virginia’s Constitution does not protect communications between the Virginia Senators and their staff with consultants when those communications are within the legislative sphere.
redistricting plan when it advised and advocated for changes in the map, thereby bringing the office under the “umbrella of the legislative privilege.”
2. The circuit court erred as a matter of law when it found the Virginia Senators in contempt of court because the court’s underlying opinion and order held that the Speech or Debate Clause in Virginia’s Constitution does not protect communications between the Virginia Senators and their staff with third parties such as constituents and interest groups when those communications are within the legislative sphere. This was error because, in addition to the reasons stated in Assignment of Error 1 above, a Virginia circuit court has held that communications with constituents are absolutely privileged so as to encourage citizens to communicate with the legislature about pending legislation. See Mills v. Shelton, 66 Va. Cir. 415 (Va. Cir. Ct. 1998) (Bedford County). Furthermore, Fourth Circuit precedent has explicitly held that the federal Speech or Debate Clause protects communications between local legislators and interest groups. See Bruce v. Riddle, 631 F.2d 272 (4th Cir. 1980).
3. The circuit court erred as a matter of law when it found the Virginia Senators in contempt of court because the court’s underlying opinion and order held that the Speech or Debate Clause in Virginia’s Constitution does not protect communications between the Virginia Senators and their staff with the DLS when those communications are within the legislative sphere. This was error because the DLS is statutorily authorized to assist legislators in fulfilling their legislative duties. In addition to the reasons stated in Assignment of Error 1 above, the circuit court’s ruling conflicts with holdings that the substantially similar federal speech or debate clause protects communications and actions of officials at the Government Accountability Office and the Congressional Research Service. See Chapman v. Space Qualified Systems Corp., 647 F. Supp. 551 (N.D. Fla. 1986); Webster v. Sun Co., 731 F.2d 1 (D.C. Cir. 1984).
III. DISCUSSION
It is well-established law in Virginia that discovery disputes are generally “interlocutory and not subject to immediate appeal.” America Online v. Anonymous Publicly Traded Co., 261 Va. 350, 359, 542 S.E.2d 377, 382 (2001). However, an order of contempt for disobedience of a discovery order may be appealed before the conclusion of the underlying suit. Id. at 359 n.6, 542 S.E.2d at 382 n.6 (citing HCA Health Services of Virginia v. Levin, 260 Va. 215, 530 S.E. 2d 417 (2000)).
“[W]e review the exercise of a court’s contempt power under an abuse of discretion standard.” Petrosinelli v. People for the Ethical Treatment of Animals, 273 Va. 700, 706, 643 S.E.2d 151, 154 (2007).
An abuse of discretion can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.
Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (internal quotation marks and alteration omitted). “[W]hether a court possesses or lacks authority, and whether it has correctly identified and fulfilled the legal prerequisites to a discretionary act, are themselves significant factors in its consideration.” Lawlor v. Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847, 862 (2013).
“[A] party cannot be guilty of contempt of court for disobeying an order which the court had no authority of law to make.” Robertson v. Commonwealth, 181 Va. 520, 537, 25 S.E.2d 352, 359 (1943) (internal quotation marks omitted). If, as the Virginia Senators and DLS contend, the Clause protects the documents and communications from discovery, the circuit court had no authority of law to compel their production and the legal prerequisite for holding the appellants in contempt was not fulfilled. This is a question of state constitutional interpretation that we consider de novo. Lawlor, 285 Va. at 240, 738 S.E.2d at 877. If the court erred by ruling that it had authority to compel production of the documents and communications, it necessarily abused its discretion when it held the appellants in contempt.
This appeal presents issues of first impression concerning the scope and application of legislative privilege under the Clause. This Court recently acknowledged in Board of Supervisors v. Davenport & Co., 285 Va. 580, 586, 742 S.E.2d 59, 61 (2013), that “the Virginia Supreme Court has not had occasion to construe the scope of the Virginia [S]peech or [D]ebate [C]lause.” (Internal quotation marks and citation omitted.) Davenport involved issues of common law legislative immunity and therefore did not squarely implicate the questions before the Court today.5
We have said that, “[i]n construing constitutional provisions, the Court is not permitted to speculate on what the framers of a section might have meant to say, but are, of necessity, controlled by what they did say. . . . It is a general rule that the words of a Constitution are to be understood in the sense in which they are popularly employed, unless the context or the very nature of the subject indicates otherwise.” Blount v. Clarke, 291 Va. 198, 205, 782 S.E.2d 152, 155 (2016) (internal quotation marks and citations omitted) (emphasis added). Although we have not had occasion to construe the Clause, the idea it expresses is not new. Its language “is derived from” the similar provision in the federal Speech or Debate Clause found in Article I, Section 6 of the United States Constitution. Davenport, 285 Va. at 587, 742 S.E.2d at 62. Both provisions afford similar protections because they are based upon the same historical and public policy considerations. Id. at 586, 742 S.E.2d at 61.
Legislative privilege arose in the young American nation from the same underlying principles, combined with the uniquely American emphasis on separation of powers and representative government. See Tenney v. Brandhove, 341 U.S. 367, 373 (1951). Freedom of speech in the legislature “was deemed so essential for representatives of the people” that the
Here, “[i]n Virginia, as well as in the other colonies, the assemblies had built up a strong tradition of legislative privilege long before the Revolution.” Id. at 374 n.3. Those principles were codified in Virginia statutes7 before appearing in the Constitution of Virginia of 1870.8 The Constitution of 1902 brought a linguistically modernized but substantively similar version of its predecessor, 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 511-12 (1974), and this version remains in effect today.
The Clause was not introduced into the Constitution of Virginia devoid of history or context, nor should it be interpreted as if it had. Rather, it is deeply rooted in British and American law. To ignore this rich history in favor of a narrow interpretation would flout the framers’ obvious intent. The Clause is an integral piece of the separation of powers framework, one of the most central and enduring principles of the Constitution of Virginia. As part of the list
The members of the general assembly shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during the sessions of their respective houses; and for any speech or debate in either house, they shall not be questioned in any other place. They shall not be subject to arrest under any civil process, during the session of the general assembly, nor for fifteen days next before the convening and after the termination of each session.
C. Defining the Privilege
The principal questions in defining legislative privilege under the Clause are what does the privilege protect, and who may invoke that protection. However, because this case arises from an order compelling discovery in response to subpoenas duces tecum, we must first consider the threshold question whether the protection provides only immunity from liability or extends to evidentiary privilege. Once a court determines that legislative privilege attaches, it is absolute in nature. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588, 590, 118 S.E.2d 668, 669 (1961).
1. The Nature of the Protection Afforded by Legislative Privilege
The Clause states, “Members of the General Assembly . . . for any speech or debate in either house shall not be questioned in any other place.” (Emphasis added.) The term “questioned” should be understood broadly to mean “subjected to examination by another body.” See, e.g., Gravel, 408 U.S. at 616 (observing that the Clause “was designed to assure a co-equal
Courts have also held that when legislative privilege applies, it protects against both compulsory testimony and compulsory production of evidence. Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 418, 420-21 (D.C. Cir. 1995) (“A party is no more entitled to compel congressional testimony – or production of documents – than it is to sue congressmen.”). Evidentiary privilege exists as a natural outgrowth of the original English parliamentary privileges as applied in the Commonwealth. The function of the parliamentary privilege was to insulate legislators from harassment, “not with the intention of protecting the members against
Protection from compulsory production of privileged evidence is a necessary corollary to immunity. “Documentary evidence can certainly be as revealing as oral communications,” and subjecting legislators to “[d]iscovery procedures can prove just as intrusive” as naming legislators as parties to a lawsuit. Brown & Williamson Tobacco Corp., 62 F.3d at 418, 420-21. “Because litigation’s costs do not fall on named parties alone, [legislative] privilege applies whether or not the legislators themselves have been sued.” Washington Suburban Sanitary Comm’n, 631 F.3d at 181; see also Arizona Indep. Redistricting Comm’n v. Fields, 75 P.3d 1088, 1098 (Ariz. Ct. App. 2003) (“We are persuaded the legislative privilege protects against disclosure of documents in appropriate circumstances . . . . Even though such documents will not be used in any evidentiary proceeding, their mere disclosure could ‘chill’ legislators from freely engaging in the deliberative process necessary to the business of legislating.”). “[A] key purpose of the privilege is to prevent intrusions in the legislative process and that the legislative process is disrupted by the disclosure of legislative material.” United States v. Rayburn House Office Bldg., Room 2113, 497 F.3d 654, 660 (D.C. Cir. 2007). Accordingly, documentary evidence is subject to legislative privilege under the Speech or Debate Clause.
Because the purpose of legislative privilege is to protect the legislature from intrusion by the other branches of government and to disentangle legislators from the burden of litigation and
Having established that legislative privilege extends beyond mere immunity from prosecution and suit to protect compulsory production of evidence, we next turn to the questions of what the privilege protects and who may invoke that protection.
2. To What the Privilege Applies
The Clause provides that legislative privilege may be invoked to protect “any speech or debate in either house.” Va. Const. art. IV, § 9. It is “incontrovertible” that this protection applies to any statement made during an official legislative proceeding, such as on the floor of either chamber while it is in session or during a meeting of a legislative committee or subcommittee wherever it may sit. See Gravel, 408 U.S. at 615-16 (holding that legislators are absolutely protected with respect to events that occur at a subcommittee meeting); see also Hutchinson v. Proxmire, 443 U.S. 111, 124-25 (1979) (noting that judicial interpretations of the federal Speech and Debate Clause are extensions of the literal meaning).
However, by the time the Clause was adopted in Virginia, the phrase “speech or debate in either house” already had become a term of art signifying a “sphere of legitimate legislative
delivering an opinion, uttering a speech, or haranguing in debate; but will extend . . . to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office; and . . . every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.
Coffin, 4 Mass. at 27. Six decades before the Clause was adopted, speech or debate in either house was understood to apply to the many facets of the legislative process. Id. at 28 (holding that legislative privilege attaches to the “exercise of [the legislator’s] functions”).
In Davenport, we emphasized these same principles, invoking similar language as to legislators “acting [with]in the sphere of legitimate legislative activity”: “Legislative actions include, but are not limited to, delivering an opinion, uttering a speech, or haranguing in debate; proposing legislation; voting on legislation; making, publishing, presenting, and using legislative reports; authorizing investigations and issuing subpoenas; and holding hearings and introducing materials at Committee hearings.” 285 Va. at 589, 742 S.E.2d at 63 (internal quotation marks and citations omitted).
The emphasis in the Constitution of Virginia on separation of powers also lends support to a broad understanding of legislative privilege. The Clause falls among several other enumerated privileges, all designed to protect legislators from undue interference with the legislative process. It would be of little use to protect speech or debate between legislators on
However, legislators
engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate errands performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called news letters to constituents, news releases, and speeches delivered outside the [General Assembly]. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by [courts]. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the [courts] ha[ve] regarded the protection as reaching only those things generally done in a session of the [legislature] by one of its members in relation to the business before it, or things said or done by [a legislator], as a representative, in the exercise of the functions of that office.
United States v. Brewster, 408 U.S. 501, 512 (1972) (internal quotation marks and citations omitted).
Accordingly, legislative privilege applies only to acts within the sphere of legitimate legislative activity. Va. Const. art. IV, § 9; see United States v. Helstoski, 442 U.S. 477, 491 (1979) (barring inquiry into “the sphere of protected legislative activities”); Gravel, 408 U.S. at 625 (“Legislative acts are not all encompassing . . . . [T]hey must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction
A legislator’s communication regarding a core legislative function is protected by legislative privilege, regardless of where and to whom it is made. See Coffin, 4 Mass. at 27 (holding that the legislative sphere includes “every thing said or done by [the legislator], as a representative, in the exercise of the functions of that office”). A legislator’s communication not regarding such a function is not protected, unless it is made during an official legislative proceeding. See Gravel, 408 U.S. at 615-16; see also Hutchinson, 443 U.S. at 124-25. For example, two legislators could not invoke the privilege for a conversation regarding reelection strategy or vacation plans, see Davenport, 285 Va. at 590, 742 S.E.2d at 63-64 (“Legislative immunity will not protect [legislators] when they step outside the function for which their immunity was designed.”) (internal quotation marks and citation omitted); see also Brewster, 408 U.S. at 512, unless the conversation occurred, for example, on the floor of a chamber while it is in session. Va. Const. art. IV, § 9.
3. Who May Invoke the Privilege
a. Members
The Clause provides that “[m]embers of the General Assembly . . . for any speech or debate in either house shall not be questioned in any other place.” This Court has previously observed in Davenport that this language, by its terms, applies to “[m]embers.” 285 Va. at 587, 742 S.E.2d at 62 (“This provision . . . affords General Assembly members with immunity that protects them from being called into an outside forum to defend their legislative actions.”
Applying these principles, under the Constitution of Virginia, a Member of the General Assembly holds the legislative privilege regarding communications protected by the Speech or Debate Clause. The privilege may be invoked and waived only by the legislator or legislators who hold the privilege. So long as the communications concern matters protected by the Speech or Debate Clause, legislators’ communications with other legislators are cloaked with constitutional legislative privilege. Accord Gravel, 408 U.S. at 622. This rule applies both to protect communications between legislators and among legislative committees which, of course, are composed of legislators. Accordingly, legislative privilege belongs to the legislator.9 However, the rulings of the circuit court and the assignments of error require us to consider whether the privilege may be invoked by a non-legislator. We hold that under certain circumstances, it may. Gravel, 408 U.S. at 616-17.
b. Alter-Egos: Invocation by Non-Legislators
The extent to which a non-legislator may invoke the privilege is informed by the United States Supreme Court’s alter-ego doctrine set forth in Gravel, 408 U.S. at 616-17, allowing non-
In Gravel, the government subpoenaed Dr. Leonard Rodberg, a resident fellow at the Institute of Policy Studies, whom Senator Gravel added to his staff mere hours before a subcommittee meeting at which Gravel read from sensitive material and placed it in the public record. Id. at 608-09. Dr. Rodberg assisted Gravel in preparing for and conducting the meeting. Id. at 609. The lower courts barred the government from questioning Dr. Rodberg about his interview with Gravel and observations and communications arising from his employment with Gravel. Id. at 611-12. The federal court of appeals observed that it was necessary “for a legislator to have personal aides in whom he reposes total confidence.” The relationship “could not exist unless, during the course of his employment, the aide and the legislator were treated as one,” and “this synonymity is founded upon the relationship, not on the fact of employment.” United States v. Doe, 455 F.2d 753, 761 (1st Cir. 1972).
Agreeing with the lower courts’ analysis and upholding the protective order as to Gravel’s aide, the Supreme Court held the federal Speech or Debate Clause “prohibits inquiry into things done by Dr. Rodberg as the Senator’s agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally.” Gravel, 408 U.S. at 616. The Supreme Court recognized that application of the privilege to alter egos of the legislators, when performing legislative functions, was vital to a functioning legislative process. Id. at 617.
Accordingly, when a non-legislator seeks to invoke the privilege under the Clause, a court is presented with a threshold question: whether the individual is functioning in a
Factors for the court to consider in determining whether an individual functions as an alter ego include the individual’s relationship with the legislator, the individual’s identity, and the source or terms of the individual’s pay, if any. This list is not exhaustive, and no one factor is determinative. Based on the totality of the circumstances, courts must evaluate function: whether the person is acting as “one” with the legislator, id. at 616-17, and whether the individual is functioning in a legislative capacity. See id. at 622.
The first factor, the relationship with the legislator, bears both on function and whether the individual was truly acting on behalf of the legislator. A subordinate or employee working on legislative matters, such as a legislative staffer or DLS employee, is likely to perform legislative functions on behalf of the legislator. A constituent with whom the legislator has had only one contact is unlikely to be acting on the legislator’s behalf. An individual need not be a
Next, the individual’s identity informs whether he or she is likely to be functioning in the legislative sphere. For example, policy consultants are more likely to be working in the legislative sphere than political or media consultants. A lawyer working for the legislative branch is more likely to be working in the legislative sphere than someone who specializes in information technology. Admittedly, attempts to draw fine lines between policy and politics will in many cases prove to be illusive. Nonetheless, to the extent that particular communications can be considered policy oriented, they are likely to fall within the legislative sphere.
Third, the source of an individual’s remuneration, if any, may also be relevant to this inquiry to the extent it informs his likely function. The nature of a remuneration agreement may inhibit some individuals from acting on “behalf” of a legislator. However, it is the individual’s function, not the fact or form of employment, that informs whether the individual acts as an alter ego. See Gravel, 408 U.S. at 622; see Fields, 75 P.3d at 1098 (“[F]unction trumps title.”).
The circuit court also erred to the extent it held there is a categorical bar against a consultant serving as the alter ego of a legislator.12 Although the nature of a consultant’s engagement may bear upon whether the communications with the legislator are within the legislative sphere, or purely political and outside the legislative sphere, the form of hire as a “consultant,” standing alone, is not dispositive. “Gravel turned on the function fulfilled by [the aide] rather than his job title.” Fields, 75 P.3d at 1097. Other state courts applying Gravel in redistricting litigation have observed that consultants serve a vital function to part-time legislators who lack the budget necessary to hire staffers with specialized areas of expertise. See
The circuit court further erred by holding that, as a matter of law, communications between legislators and constituents or other third parties cannot be protected by legislative privilege. Such individuals are equally capable of performing acts as alter-egos, subject to the same requirements that the acts that they perform both fall within the sphere of legitimate legislative activity and are delegated by the legislator to be performed on his or her behalf. Any basis on which to differentiate a constituent or other third party from a legislator’s personal legislative staffer, including unpaid interns, or consultants would be artificial. Doe, 455 F.2d at 761. Provided the legislator has requested the constituent or third party’s assistance in the performance of a legislative act, the privilege applies to that individual as much as to any other alter ego. However, unsolicited communications and acts taken by the constituent or third party on his or her own initiative will not satisfy this test, even when closely connected to legitimate legislative activity.
In this case, due to the early stage of discovery, this Court cannot speculate as to potentially privileged communications involving third parties. However, the circuit court erred in concluding legislative privilege could not, as a matter of law, apply to communications between legislators or their staff and third parties.
IV. CONCLUSION
On this record, the circuit court abused its discretion by holding the Virginia Senators and DLS in contempt because it erroneously ruled that the materials sought in the appellants’ subpoenas duces tecum were not protected by the legislative privilege enshrined in the Clause. Accordingly, the portion of the April 14, 2016 order holding the Virginia Senators and DLS in contempt will be vacated. The portions of the February 16, 2016 order that are inconsistent with this opinion will be vacated, and the case will be remanded for further proceedings consistent with this opinion.