HomeMy WebLinkAboutCOM 0831.006 2004-2006
Harry Kim ' Lincoln S.T. Ashida
Maym CarMwion Counsel
Gerald Takase
COUNTY OF HAWAII Assistant Corpmxion Counsel
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni street, Suite 325 Hilo, Hawaii 967204262 • (808) 961.8251 • Fax (808) 961.8622
April 24, 2006
Confidential: Attorney-Client Privile¢w
Not to Be Copied, Released Or Circulated
To The Public Or Anyone Without T1W
Consent of the Hawaii County Council
Councilman Bob Jacobson
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
Dear Councilman Jacobson:
Re: Personal Liability of Council Member Resulting from Introducing Legislation
Corporation Counsel WRK No. 06-12125
This is in response to your request for "formal legal advice regarding any personal legal
liability that I, or any other Council Member, can face as a result of introducing legislation."
Specifically, can an individual, organization, or other entity take legal action against a Council
Member as an individual because of alleged impact of legislation introduced by that Member?
In relevant part, the Hawaii State Constitution Article 3, section 7 states, "[n]o member
of the legislature shall be held to answer before any other tribunal for any statement made or
action taken in the exercise of the members legislative functions The Hawaii State
Supreme Court, in interpreting this Article, noted that the intent of the drafters was to grant a
broad scope of legislative immunity and "further intended for the courts to finally determine the
parameter of the legislative immunity by construing the clause `the exercise of his (legislator's)
legislative function' on a case by case basis." Abercombie v. McClung, 55 Haw. 598, 600,
525 P.2d 594, 597 (1974). In other words, while legislators have constitutional immunity for
their legislative actions, it is the courts which will decide if the legislator's action was within the
scope of his legislative function based on the facts of an individual case. Mehau v. Gannett
Pacific Group, 66 Haw. 133, 658 P.2d 312 (1983)
Comm No. 3 .b
Ref. Ta
Ref. Date
Hawai'i County is an Equal Opportunity Provider and Employer
Councilman Bob Jacobson
April 24, 2006
Page 2
15 Am. Jur. 2d Civil Rights § 108 (2"d Edition) cites to a collection of cases where
various courts have found that the introduction of legislation was covered by legislative
immunity as a legitimate legislative function. This citation further noted that were the legislative
act was found to be a legitimate legislative function that the legislators had immunity against
civil rights allegations under 42 U.S.C.A. § 1983.
Please note however that, as with any issue or case, even if a determination of legislative
immunity is ultimately made this does not prevent individuals, organizations, or other entities
from filing a legal action.
Sincerely,
C IRA G T. MASUDA
Deputy Corporation Counsel
CTM:fc
s:\dept\police\06-12125 Itr tojacobson re legislative immunity for introduction\4-24-06UKKfc.doc