Background

Legislative immunity is provided to members of the Colorado General Assembly by article V, section 16 of the Colorado Constitution. Its purpose is to preserve the integrity of the legislative process and protect the legislative branch from intimidation by the executive and judicial branches of government and private parties. It grants legislators immunity from civil lawsuits and state criminal prosecution, but not from federal criminal prosecution. It also prevents legislators from being compelled to testify or produce documents in legal proceedings with respect to matters that fall within the "sphere of legitimate legislative activity." The "sphere" includes actions taken during official legislative proceedings that are conducted in accordance with constitutional procedural requirements and other activities that are integral to the legislative (i.e., lawmaking) function. However, the "sphere" does not include actions taken outside of official legislative proceedings that are not integral to the legislative function.

Hypothetical

Defamation - publication by legislative staff

The CEO of a privately held oil and gas exploration company testifies during a meeting of a special Interim Committee on Hydraulic Fracturing that imposing a statewide ban on hydraulic fracturing or allowing local governments to ban hydraulic fracturing will drive oil and gas exploration companies out of Colorado and severely damage Colorado's economy. In response, a legislator on the committee who supports a statewide ban on hydraulic fracturing calls the CEO a "greedy baby-murdering liar" who is concerned only about the bottom line and says that "you don't even care that fracking by your company is poisoning our water and food supply, causing an epidemic of severe birth defects, and making our children sick!" The CEO sues the legislator for defamation.

Following the completion of the Interim Committee on Hydraulic Fracturing's meetings, the committee, with the assistance of Legislative Council Staff, issues a written final report that quotes, as part of a summary of proceedings, the allegedly defamatory statements made by the legislator. The CEO then amends his defamation complaint to include both the other legislators who served on the committee and the legislative staff who prepared the report as defendants.

Question

Does legislative immunity prevent the legislators and legislative staff from being found liable for defamation?

1. NO, although the legislator who made the allegedly defamatory statements is entitled to legislative immunity because the statements were made during an official legislative proceeding, the other legislators and legislative staff are not entitled to legislative immunity because they republished the statements outside of the meeting.
2. YES, because the republication of the allegedly defamatory statements occurred in an official legislative report it falls within the "sphere of legitimate legislative activity."
3. YES and NO, because the republication of the allegedly defamatory statements occurred in an official legislative report, it falls within the "sphere of legitimate legislative activity" and the legislators cannot be found liable for defamation. But the legislative staff may be found liable for defamation because legislative immunity only protects legislators.
4. NO, legislative immunity does not protect the other legislators and staff from being found liable for defamation. But under the law of defamation itself, the other legislators and legislative staff cannot be found liable for defamation because only the person who originally makes an allegedly defamatory statement may be held liable for the statement.

Tutorial Home

The information on this page is presented as an informational service only and should not be relied upon as an official record of action or legal position of the State of Colorado, the Colorado General Assembly, or the Office of Legislative Legal Services.