                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   October 23, 2018
              Plaintiff-Appellee,                                  9:25 a.m.

v                                                                  No. 341817
                                                                   Ingham Circuit Court
TODD ANTHONY COURSER,                                              LC No. 16-000541-FH

              Defendant-Appellant.


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, based on his testimony before a House Select
Committee convened to evaluate claims of misconduct that questioned his qualifications to hold
office. Courser filed a motion 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.” 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



1
 People v Courser, unpublished order of the Court of Appeals, entered March 28, 2018 (Docket
No. 341817).


                                               -1-
       [t]here is testimonial and physical evidence that Representatives Courser and
       Gamrat forced their staff to forge their signatures on three bill “bluebacks” 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.

       Courser’s perjury charge was a result of testimony he gave before a Select Committee
hearing. When asked if he instructed or allowed his staff to forge his signature to the blue backs,
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 legislature director, Joshua Cline, testified for the prosecution that he signed
the blue backs at Courser’s direction. Cline said 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, who 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 bill 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.

       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

                                                -2-
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 conversation he had with House staff
was inadmissible based on legislative immunity and the evidentiary privilege rule, and that the
trial court should not have considered the prosecution’s response briefing because it was filed
late.

                                  II. STANDARD OF REVIEW

       This Court reviews constitutional issues de novo. People v Dipiazza, 286 Mich App 137,
144; 778 NW2d 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 NW2d 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 NW2d 399 (2013).

                                          III. ANALYSIS

       Courser’s testimony provided 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 blue backs 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, § 11.2]

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 NW2d 1 (2015). However, “[b]ecause Michigan’s Speech or Debate Clause



2
  The “immunity” granted by this provision was codified in 1984. Wilkins v Gagliardi, 219 Mich
App 260, 271; 556 NW2d 171 (1996). MCL 4.551 provides, “A member of the legislature of
this state shall not be liable in a civil action for any act done by him or her pursuant to his or her
duty as a legislator.”


                                                 -3-
is substantially similar to the Speech or Debate Clause found in the Constitution of the United
States,3 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 NW2d 226 (1984), citing Eastland v United
States Servicemen’s Fund, 421 US 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 US 606, 616; 92 S Ct 2614; 33 L Ed 2d 583 (1972); see also United
States v Johnson, 383 US 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 US at 501.
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 NW2d 171
(1996). “The heart of the Clause is speech or debate in either House.” Gravel, 408 US at 625.
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 US 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 (“A legislator is immune from civil liability for any activities
that fall within the legislative sphere.”) (quotation marks and citation omitted). However, the


3
    The Speech or Debate Clause found in the United States Constitution provides as follows:
         The Senators and Representatives shall receive a Compensation for their Services,
         to be ascertained by Law, and paid out of the Treasury of the United States. They
         shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged
         from Arrest during their Attendance at the Session of their respective Houses, and
         in going to and returning from the same; and for any Speech or Debate in either
         House, they shall not be questioned in any other Place. [US Const, art I, § 6, cl.
         1.]

This Court first incorporated principles governing the federal clause in Prelesnik v Esquina, 132
Mich App 341, 347; 347 NW2d 226 (1984).



                                                -4-
United States Supreme Court has “long held that, when it applies, the Clause provides protection
against civil as well as criminal actions, and against actions brought by private individuals as
well as those initiated by the Executive Branch.” Eastland, 421 US at 502-503. The Court read
its decision in Johnson, 383 US 169, as holding “that a Member of Congress may be prosecuted
under a criminal statute provided that the Government’s case does not rely on legislative acts or
the motivation for legislative acts.” Brewster, 408 US at 512.

        In this case, the parties dispute whether Courser’s testimony before the Select Committee
constitutes an act protected by the Speech or Debate Clause. We conclude that a legislator’s
testimony in a hearing to determine that person’s qualifications to hold office is not a protected
legislative act under the Speech or Debate Clause.

       The Select Committee was certainly engaged in a protected activity when it convened to
examine Courser’s qualifications. “The power to investigate and to do so through compulsory
process plainly falls within” the legislative sphere. Eastland, 421 US at 504; see also
Hutchinson v Proxmire, 443 US 111, 124; 99 S Ct 2675; 61 L Ed 2d 411 (1979) (noting “that
committee hearings are protected [by the Speech or Debate Clause], even if held outside the
Chambers; committee reports are also protected.”). The United States Supreme Court “has often
noted that the power to investigate is inherent in the power to make laws because ‘(a) legislative
body cannot legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change.’ ” Eastland, 421 US at 504,
quoting McGrain v Daugherty, 273 US 135, 175; 47 S Ct 319; 71 L Ed 580 (1927). Further, the
House has constitutional authority to determine the qualifications of its members. See Const
1963, art 4, § 16. In Rangel v Boehner, 415 US App DC 60, 64-66; 785 F3d 19 (2015), the court
determined that a congressional disciplinary proceeding was a legislative matter and therefore
the defendants, including the presiding House Members, were immune from suit brought by the
censured Member.

       But the question in this case is whether Courser, as a testifying witness4 before the Select
Committee, was acting within the legislative sphere. The prosecution identifies two cases
supporting the conclusion that he was not.

        In Fed Election Comm v Wright, 777 F Supp 525, 527-528 (ND Tex, 1991), a former
House member (Wright) argued that, under the Speech or Debate Clause, he did not have to
answer questions posed to him by the Federal Election Commission. The federal district court
rejected that argument, primarily because the questions “quite clearly are directed to
development of information concerning activities occurring outside, and away from, the House,
and which are totally unrelated to anything done in the course of the legislative process or any
motivation for any such thing.” Id. at 529. The court also rejected Wright’s argument that his
previous testimony5 before the House Committee on Standards of Official Conduct immunized

4
  Courser’s contention that he was not a witness at the hearing is without merit. A witness is
“[o]ne who gives testimony under oath or affirmation.” Black’s Law Dictionary (7th ed).
5
 Wright had not yet resigned from office when he testified before the Committee. Wright, 777 F
Supp at 532.


                                                -5-
him “from being required to give testimony on the same subject in any other context.” Id. at
530. The court reasoned that

       [t]his argument overlooks that any testimony given by Wright to the Committee
       on Standards was given by him in his capacity as a witness and not in his
       legislative capacity with the consequence that no immunity attached by virtue of
       the Clause. The report [generated by the Committee] itself undoubtedly should be
       viewed to be a legislative act, and there is no doubt that legislative acts went into
       the preparation of the report. However, none of those legislative acts were of
       Wright. He is no more protected from the use of the report than is any other
       citizen. [Id. at 530.]

        The prosecution also relies on United States v Rose, 28 F 3d 181, 182 (1994), in which
the Department of Justice brought a civil action against a congressman (Rose) based on his
testimony before the House Committee on Standards of Official Conduct. The District of
Columbia Circuit held that the clause did not apply because Rose’s testimony did not relate to
legislation:

       The testimony related to allegations that Congressman Rose had violated the
       Ethics Act by failing to report various personal loans and included detailed
       explanations of each financial transaction at issue. The testimony was not
       addressed to a pending bill or to any other legislative matter; it was, instead, the
       Congressman’s defense of his handling of various personal financial transactions.
       In short, Congressman Rose was acting as a witness to facts relevant to a
       congressional investigation of his private conduct; he was not acting in a
       legislative capacity. [Id. at 188 (citation omitted).]

The court indicated that it was irrelevant that Rose’s statements were made in a committee room
rather than on the House floor: “[W]e rely not on the fact that Congressman Rose testified in a
committee room but on the fact that his testimony was given in a personal capacity rather than
‘in the performance of [his] official duties’; we focus on what Congressman Rose said, not where
he said it.” Id. The court also emphasized that its decision was based on “the content of the
[congressman’s] speech,” stating that “the key factor is the subject matter of the speech, not the
identity of the listener.” Id. at 189.

        Wright and Rose support the prosecution’s position that a representative testifying before
a House committee concerning the representative’s qualifications to hold that office is not
performing a legislative act. In both cases, the House Committee on Standards of Official
Conduct was investigating the representative’s personal conduct. The representatives’ individual
testimony in those cases did not relate to the legislative process. The same is true in this case.
The hearing was convened to examine Courser’s qualifications to hold office. Courser focuses
on the fact that the allegedly perjurious statement related to the signing of legislation. As will be
discussed below, there is an evidentiary privilege to the Speech or Debate Clause. Any
statement made by Courser that is protected by the Speech or Debate Clause cannot be used as
evidence against him. But, as a general matter, Courser’s testimony was addressing his
misconduct in office. Therefore, he was not performing an act integral to the legislative process,
and he is not entitled to the absolute protections of the Speech or Debate Clause.

                                                -6-
        We see no issue in concluding that the Speech or Debate Clause does not protect Courser
even though it protects the members of the Select Committee questioning him. Courser relies on
Allard v Michigan House of Representatives, 200 F Supp 3d 703 (WD Mich, 2016), an action
brought by Allard and Graham in which they claimed that they were wrongly terminated for
reporting Courser’s and Gamrat’s misconduct. In that case, the plaintiffs “acknowledged that
statements made during the committee proceedings are subject to legislative immunity.” Id. 711-
712. Viewed in context, the plaintiffs were merely conceding that statements made by the
defendant at the hearing(s) were subject to legislative immunity; the court did not decide the
issue. In any event, although the Select Committee was not investigating Courser for the
purpose of enacting legislation, the Select Committee was performing its constitutional duty.
Const 1963, art 4, § 16 (“Each house shall be the sole judge of the qualifications, elections and
returns of its members.”).

        Even though legislation was not at issue, the House’s independence is protected by
immunizing it from civil suits based on statements made in a qualifications hearing like
Courser’s. In contrast, no policy consideration is furthered by insulating Courser’s testimony
before the Select Committee. Courser was not testifying to legislative matters. Rather, he was
testifying in his personal capacity in an attempt to prove that he was fit to hold office, a matter
which simply does not implicate the policies behind the Speech or Debate Clause. For those
reasons, the Speech or Debate Clause does not protect Courser from prosecution.

                                B. EVIDENTIARY PRIVILEGE

        Even if a legislator is not immune from prosecution, “evidence of a legislative act of a
Member may not be introduced by the Government” in that prosecution. United States v
Helstoski, 442 US 477, 487; 99 S Ct 2432; 61 L Ed 2d 12 (1979). In Helstoski, 442 US at 479-
480, a congressman testified before (and produced evidence to) grand juries investigating him for
political corruption, including allegations that he introduced “private bills” in exchange for
money. The congressman was eventually charged “with various criminal acts” and sought to
dismiss the indictment on the grounds that it violated the Speech or Debate Clause. Id. at 484.
Ultimately, the Supreme Court upheld the lower court’s evidentiary ruling that the government
would not be allowed to introduce evidence referencing the defendant’s past legislative acts. Id.
at 484-485, 488-489; see also Johnson, 383 US at 185-186 (holding that a former congressman
was entitled to a new trial when the prosecutor questioned him about a speech he gave in the
House, and the motives thereof, which were subjects protected by the Speech or Debate Clause.)

        United States v Swindall, 971 F2d 1531 (CA 11, 1992) is instructive as to how
evidentiary privilege is applied in a perjury prosecution. In that case, a congressman (Swindall)
appeared before a grand jury investigating money-laundering activities as a “subject” of that
investigation. Id. at 1538. “In the grand jury proceeding, the [government] sought to establish,
by questioning Swindall, that because of his memberships on the House Banking and Judiciary
Committees, Swindall had knowledge of the money-laundering and transaction-structuring
statutes.” Id. at 1539. Following his grand jury appearance, Swindall was charged with
numerous counts of perjury before the grand jury. Id. at 1538. At trial, the government used
Swindall’s committee memberships to show that he “lied when he told the grand jury that he was
not convinced of the criminality of the proposed transactions” for which he was being
investigated. Id. at 1539. Swindall was subsequently convicted of nine counts of perjury. Id. at

                                                -7-
1539. The Eleventh Circuit held that the government’s questions about Swindall’s committee
memberships before the grand jury and the references to those memberships at trial violated the
Speech or Debate Clause. Id. at 1543. Consequently, the court dismissed the three counts of
perjury relating to that evidence. Id. The court determined that the Speech or Debate Clause
“privilege protects legislative status as well as legislative acts.” Id. at 1543. Further, the court
found that an inquiry into Swindall’s committee membership essentially constituted an inquiry
into his legislative activities. Id. at 1546.

        The act of testifying before a grand jury is not an act protected by the Speech or Debate
Clause. See United States v Dowdy, 479 F2d 213, 224 (CA 4, 1973). This is a nuanced
distinction. In Swindall, the congressman could not be prosecuted for perjury for testimony
related to protected legislative activities. In this case, Courser argues that statements he made to
the Select Committee relating to the signing of blue backs are plainly “within the ‘legislative
sphere’ ” and so are protected by the Speech or Debate Clause.

        Courser’s allegedly perjurious testimony bears some relation to the legislative process.
The signing and submission of proposed legislation could be considered necessary or “integral”
to the legislative process. Gravel, 408 US at 625. But “[t]he Speech or Debate Clause does not
prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions.”
Brewster, 408 US at 528. “[C]ourts have extended the privilege to matters beyond pure speech
or debate in either House, but ‘only when necessary to prevent indirect impairment of such
deliberations.’ ” Gravel, 408 US at 625 (citation omitted).

        A recent decision by this Court is helpful in analyzing whether statements regarding the
signing of blue backs should be protected by the Speech or Debate Clause. In Cotton, 310 Mich
App at 122-123, this Court adopted “the functional approach stated in Forrester [v White, 484
US 219; 108 S Ct 538; 98 L Ed 2d 555 (1988)]”6 for determining whether a personnel decision
is a legislative act protected by the Speech or Debate Clause. “In applying that approach, courts
should be careful to distinguish between true legislative acts, which are entitled to absolute
immunity, and acts that merely happen to have been performed by a legislator, but are otherwise
administrative in nature.” Cotton, 310 Mich App at 123. This analysis turns on whether it will
be necessary to “inquire into the legislator’s legislative acts—‘how [the legislator] spoke, how he
debated, how he voted, or anything he did in the chamber or in committee’—in order to prove
the claim.” Id., quoting Fields v Office of Eddie Bernice Johnson, 373 US App DC 32; 459 F3d
1 (2006).

        Signing legislation, while obviously related to the legislative process, is an administrative
function. The pertinent testimony does not involve substantive discussion of the bills Courser
was introducing or his reasons for doing so. Although the Speech or Debate Clause should be
read broadly to accomplish its purpose, Courser is not being prosecuted for any speech, debate,
or deliberation pertaining to the bills. Rather, he is being prosecuted for his personal conduct at


6
  Forrester concerned “whether a judge had absolute immunity from suit under the common law
for allegedly terminating an employee on the basis of her sex in violation of the federal Civil
Rights Act.” Cotton, 310 Mich App at 117-118.


                                                -8-
a hearing called to address his potential misconduct in office. Inquiry into his conduct is not
precluded simply because it “has some nexus to legislative functions.” Brewster, 408 US at 528.
For those reasons, a prosecution based on Courser’s testimony before the House Select
Committee does not violate the Speech or Debate Clause.

        Courser also argues that his “initial conversation” with Allard, his chief of staff, “about
whether someone could sign a blue back on behalf of [Courser]” is protected by the Speech or
Debate Clause. He adds that “[a]ny conversation between [Courser] and any other House
member o[r] staff member is equally protected from disclosure.” As with his testimony, it is the
substance of Courser’s conversations that determines whether the Speech or Debate Clause
applies. See Gov’t of Virgin Islands v Lee, 775 F2d 514, 522 (CA 3, 1985) (“It is the content of
[the Virgin Island legislator’s] private conversations [with government officials], and not the
mere fact that the conversations took place, that determines whether [he] is entitled to legislative
immunity.”). For the reasons discussed above, conversations about signing the blue backs are
not protected by the Speech or Debate Clause.

         With respect to Allard, the prosecution notes that the trial court “ruled that Allard could
testify that Courser never asked him to check with the House Business Office.” But Courser is
not arguing that this specific conversation is protected by the Speech or Debate Clause. Courser
notes that there is evidence that he and Allard discussed whether a staff member could sign
Courser’s name to a blue back. In other words, Courser is arguing that, as a general matter, any
conversation about signing blue backs is protected, which presumably includes whether Courser
directed Allard to the House Business Office to determine if someone could sign the blue backs
on Courser’s behalf. So, to resolve Courser’s argument, it is not enough to say this particular
conversation between him and Allard allegedly never happened.7

        In conclusion, Courser is entitled to neither legislative immunity nor an evidentiary
privilege under the Speech or Debate clause. Because the trial court properly denied Courser’s
legislative immunity and evidentiary privilege claims, we do not address the remainder of his
arguments on appeal.

       Affirmed.



                                                             /s/ Thomas C. Cameron
                                                             /s/ Jane M. Beckering
                                                             /s/ Michael J. Riordan




7
  We note that Allard testified to Courser’s motive for introducing the bills, i.e. he wanted to
submit the legislation before another representative. Courser does not raise this point, but
testimony regarding his motive for introducing the bills is a matter squarely protected by the
Speech or Debate Clause. See Johnson, 383 US at 184-186.


                                                -9-
