People v. Courser

326 Mich.App. 298

926 N.W.2d 299

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Todd Anthony COURSER, Defendant-Appellant.

No. 341817

Court of Appeals of Michigan.

Submitted October 9, 2018, at Lansing.

Decided October 23, 2018, 9:25 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Chief Legal Counsel, and Christopher M. Allen, Assistant Attorney General, for the people.

DePerno Law Office, PLLC (by Matthew S. DePerno ) for defendant.

Before: Beckering, P.J., and Riordan and Cameron, JJ.

Cameron, J.Defendant, Todd Courser, a former member of the Michigan House of Representatives, was charged with perjury, MCL 750.423, on the basis of his testimony before a House Select Committee convened to evaluate claims of misconduct that called into question his qualifications to hold office. Courser moved to dismiss the charge, claiming legislative immunity under the Michigan Constitution’s Speech or Debate Clause, Const. 1963, art. 4, § 11. On December 14, 2017, the trial court denied the motion, reasoning that Courser does not have legislative immunity to make false statements under oath. This Court granted Courser’s interlocutory appeal.¹ On appeal, Courser claims, inter alia , that the trial court erred when it denied his motion to dismiss because he is entitled to legislative governmental immunity and an evidentiary privilege. We disagree and therefore affirm.

I. FACTUAL BACKGROUND

In November 2014, Courser was elected to the Michigan House of Representatives. On August 19, 2015, the House passed a resolution "to create a House select committee to examine the qualifications of Representative Cindy Gamrat ... and Representative Todd Courser ... and determine their fitness to continue holding the high office to which they were elected." House Resolution 129 (August 19, 2015). In an investigative report, the House Business Office found that Courser had engaged in misconduct while in office. Relevant to this appeal, the House Business Office found that

[t]here is testimonial and physical evidence that Representatives Courser and Gamrat forced their staff to forge their signatures on three bill "bluebacks"^{[2 ]} for introduction, namely House Bills 4174, 4317, and 4318. According to their staff, this was done in an attempt to quickly subvert the efforts of other Representatives to introduce similar legislation. [Michigan House of Representatives Business Office, Report on the Investigation of Alleged Misconduct by Representative Todd Courser and Representative Cindy Gamrat (August 31, 2015), p. 4.]

Courser’s perjury charge was the result of testimony he gave during a House Select Committee hearing. When asked if he instructed or allowed his staff to forge his signature on the bluebacks, Courser stated:

No, I did not. What—I think that needs some clarification. Forging, obviously, is done without my knowledge or without my consent. The—the events that led up to—to that week, I can explain, if you wanna hear it. If you don’t, somebody can object, I guess. Inside of that, the—I wasn’t going to be available the day that those came back. I spoke to my chief of staff. I asked what was the process to be able to do that. In the legal profession, we do it. It’s called signing for another. And so you can sign for other attorneys, attorneys I’ve never met, with their permission. And so I was—I was falling under that.

I asked my chief of staff at that point to speak with the [House] Business Office to say, is there an exception for that? My understanding was, and they affirmed to me, that, yes, it was not a problem to do that. I should’ve checked myself in regards to that. But that’s actually how it happened. So when they came back, they let me know. And I said, yeah, well, if—if it’s okay, go ahead and do it. So I should’ve checked and been more involved in that.

On September 11, 2015, Courser resigned from office, and in February 2016, he was charged with perjury and three counts of misconduct in office. At the preliminary hearing, Courser’s former legislative director, Joshua Cline, testified for the prosecution that he signed the bluebacks at Courser’s direction. Cline stated that Courser lied at the Select Committee hearing, claiming his testimony "wasn’t even remotely close to the truth that I knew." According to Cline, Courser simply instructed him to "just get it done."

Benjamin Graham, whom Cline described as Courser’s director of constituent services, also testified that Courser never asked him to contact the House Business Office to learn whether his staff could sign his name "to blue back legislation." Keith Allard, whom Cline was described as the chief of staff for Courser’s and Gamrat’s combined office, testified that Courser wanted to submit proposed legislation before another representative did so and, because he was not going to be present on the day the bills arrived, "he wanted a staff member to sign his name to that legislation." With respect to "signing blue backs," Allard denied that Courser directed him to consult the House Business Office for that purpose. The district court bound Courser over on the perjury charge and one charge of misconduct in office, MCL 750.505.

Courser filed a number of motions in circuit court, including a motion to dismiss, a motion for summary disposition, and a motion in limine to exclude testimony of conversations that he claimed had legislative-immunity protection. The trial court addressed the numerous motions at a hearing held on December 14, 2017. The trial court concluded that Courser did not have legislative immunity to lie under oath, regardless of the committee’s purpose at the hearing. Thereafter, the trial court entered an order denying the motion to dismiss, the motion for summary disposition, and the motion in limine. On appeal, Courser argues that the trial court erred because he is afforded legislative immunity under the Speech or Debate Clause of the Michigan Constitution, Const. 1963, art. 4, § 11, that any conversations he had with House staff were inadmissible because of legislative immunity and the evidentiary-privilege rule, and that the trial court should not have considered the prosecution’s responsive brief because it was filed late.

II. STANDARDS OF REVIEW

This Court reviews de novo constitutional issues. People v. Dipiazza , 286 Mich. App. 137, 144, 778 N.W.2d 264 (2009). A trial court’s ruling on a motion to dismiss is reviewed for an abuse of discretion. People v. Bylsma , 493 Mich. 17, 26, 825 N.W.2d 543 (2012). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v. Duncan , 494 Mich. 713, 722-723, 835 N.W.2d 399 (2013).

III. ANALYSIS

Courser’s testimony before the House Select Committee was not a legislative act. Accordingly, he is not entitled to legislative immunity from the perjury charge. Furthermore, Courser’s testimony and conversations relating to the signing of bluebacks are not protected by the evidentiary privilege under the Speech or Debate Clause. Therefore, Courser’s claims are without merit.

A. LEGISLATIVE IMMUNITY

The Speech or Debate Clause of the 1963 Michigan Constitution provides:

Except as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof. They shall not be questioned in any other place for any speech in either house. [ Const. 1963, art. 4, § 11.]^{[3 ]}

The second sentence is at issue in this case. "Read literally, the [second] clause only provides senators and representatives with immunity for speeches made in either house—that is, from being ‘questioned in any other place for any speech in either house.’ " Cotton v. Banks , 310 Mich. App. 104, 112, 872 N.W.2d 1 (2015). However, "[b]ecause Michigan’s Speech or Debate Clause is substantially similar to the Speech or Debate Clause found in the Constitution of the United States,^{[4 ]} it should be similarly construed." Id .

The Speech or Debate Clause "should be read broadly to effectuate its purpose...." Prelesnik v. Esquina , 132 Mich. App. 341, 347, 347 N.W.2d 226 (1984), citing Eastland v. United States Servicemen’s Fund , 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). "The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch." Gravel v. United States , 408 U.S. 606, 616, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972) ; see also United States v. Johnson , 383 U.S. 169, 181, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966) (stating that the clause’s purpose was "to prevent intimidation by the executive and accountability before a possibly hostile judiciary").

The Speech or Debate Clause’s protections are absolute. Eastland , 421 U.S. at 501, 95 S.Ct. 1813. However, "[i]n order for the conduct to be protected under the Speech or Debate Clause, it must fall within the legislative sphere." Wilkins v. Gagliardi , 219 Mich. App. 260, 268, 556 N.W.2d 171 (1996). "The heart of the Clause is speech or debate in either House." Gravel , 408 U.S. at 625, 92 S.Ct. 2614. In order for the clause to apply to other legislative acts,

they 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 of either House. [ Id . ]

"A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it." United States v. Brewster , 408 U.S. 501, 512, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972).

Michigan courts have applied the current Speech or Debate Clause to civil actions only. See Cotton , 310 Mich. App. at 116, 872 N.W.2d 1 ("A...