Should Huffman, state lawmakers be exempt from depositions?

By Laura Hancock

cleveland.com (TNS)

COLUMBUS — A judge can’t force Ohio Senate President Matt Huffman to answer lawyers’ questions about which private school lobbyists he speaks to outside of legislative chambers, the Republican has argued before the Ohio Supreme Court.

That means the question of how far constitutionally protected legislative privilege extends is before the state’s high court, which has yet to decide whether it will take the case.

This fight is part of a larger, two-year-old lawsuit brought by 155 public school districts challenging state spending on EdChoice private school scholarships, which they argue violates another part of the constitution that requires the General Assembly to provide a system of public schools. They argue spending on vouchers, which combined across all five programs is expected to approach $1 billion this year, translates to less money being available public schools, which this year received around just $9.6 billion.

The trial on the overall lawsuit is scheduled to begin Nov. 4 in Franklin County Common Pleas Court.

Huffman’s battle has lasted over a year, and even included a request from Huffman during last year’s state budget season that every school district provide the legislature and Ohio Auditor Keith Faber the amount of money they’re spending on the litigation.

Huffman believes that a portion of the Ohio Constitution that privileges lawmakers’ speech and debate from questioning applies not just to speech and debate on the Senate floor but to all discussion on bills, from the beginning of the General Assembly session until it concludes two years later.

Attorneys representing the school districts say Huffman is taking a simple phrase in the Ohio constitution and incorrectly broadening it to apply to all speech.

Subpoenaed in the Senate Building

Huffman began fighting the plaintiffs’ deposition on March 22, 2023, when they served him with a subpoena in the Senate Building, just across the hall from his office, requiring his presence at an in-person deposition.

Huffman first moved to quash the subpoena, citing the Speech and Debate Clause of the Ohio constitution that generally exempts state senators and representatives from query: “and for any speech, or debate, in either house, they shall not be questioned elsewhere.”

Franklin County Common Pleas Judge Jaiza Page agreed Huffman had privilege under the Speech and Debate Clause. She modified the plaintiffs’ deposition request on Dec. 21, 2023, allowing them to submit to Huffman up to 20 questions in writing, instead of him being questioned for hours in person at an attorney’s office. Page limited the questions to areas not directly related to his legislative actions. Huffman appealed Page’s order on Jan. 22.

The Ohio 10th District Court of Appeals dismissed Huffman’s appeal on March 29, saying it couldn’t address the matter because Page’s order of written deposition was not final. Ohio law states that generally only final judicial orders are appealable.

The 10th District Court said that while Page’s order allowed the questioning, the order didn’t compel Huffman to answer, even though Huffman’s attorneys read the order as a requirement to answer. Once the plaintiffs send the questions, Huffman may again move to quash them, the court stated.

On April 23, Huffman appealed to the Ohio Supreme Court. There’s no word from the court yet about what they’re going to do with the case.

“This appeal raises significant – and, to date, unanswered – questions about the scope of the constitutional protections provided to the Ohio General Assembly’s members that ‘for any speech, or debate, in either house, they shall not be questioned elsewhere,’ which is commonly referred to as the Speech and Debate Clause,” Huffman’s filing to the Ohio Supreme Court states.

Huffman notes he’s not named as a defendant on the case.

Huffman’s attorneys say the questions the plaintiffs want to ask focus on the identities of groups and individuals with whom he spoke to about the 2021 state budget bill.

That year’s budget bill increased the scholarship amounts per student, offered a tax credit of up to $1,000 for people who contribute to organizations that help low-income families pay for private school and offered a tax credit of up to $2,500 for tuition for students who attend a category of schools called “nonchartered, nonpublic schools,” which are private schools that don’t participate in the voucher program and are subject to fewer educational standards. A later state budget bill expanded a category of vouchers so all families, regardless of income, could get at least a partial scholarship.

“If the trial court’s decision is allowed to stand, President Huffman’s constitutional protection to ‘not be questioned elsewhere’ will be forever lost by the very act of Appellees submitting the questions,” Huffman’s filing states. “Perhaps more importantly, precedent ignoring this constitutional protection provided to members of the Ohio General Assembly will open a proverbial Pandora’s box to creative special interest attorneys and chill legislators’ ability to freely perform their duties required of them under the Ohio Constitution.”

Huffman doesn’t believe anything he would provide the plaintiffs would alter its case, his attorneys said.

“Respectfully, either H.B. 110 [the 2021 state budget] facilitates an Ohio educational system that is ‘thorough and efficient’ and provides “equal protection,” or it does not,” they said. “Nothing that Appellees may seek from President Huffman would alter that analysis. His appeal to this Court asserts that he can properly raise these issues with an appellate court — as he did below — without having to jump through the extra hoops required by the Tenth District.”

Huffman’s filing doesn’t ask the Supreme Court to rule on whether all non-final orders are appealable. The issue of whether non-final orders, which include temporary restraining orders and preliminary injunctions – are appealable has come up in several lawsuits involving guns, abortion and youth transgender medical care. Huffman’s chamber even recently altered a bill to allow these more temporary orders to become appealable. The amendment went nowhere in the Ohio House, although still could resurface in another bill.

But in this case, Huffman’s attorneys argue that under the state laws designating which orders are appealable is an exception for some provisional orders that the involve “ discovery of privileged matter.”

“Here, President Huffman asserts that the Speech and Debate Clause of Article II, Section 12 of the Ohio Constitution creates a testimonial privilege protecting legislators from compelled questioning about their legislative acts in the absence of any credible allegation of illegal activities,” his filing says. “Of course, once President Huffman is compelled to answer questions about his legislative acts, his testimonial privilege will be forever lost. The proverbial bell cannot be unrung.”

Huffman also argued the mere act of being questioned is a violation of legislative privilege, regardless of whether he answers the questions.

“A key purpose of the Clause is to ensure that legislators can focus on the issues facing their constituents, rather than spending the public’s time and resources responding to litigants about their constitutionally-protected decision-making,” his attorneys write.

‘Short and unambiguous’

Attorneys for the school districts tell the Supreme Court the Speech and Debate Clause is short and unambiguous, simply protecting lawmakers from arrest during General Assembly sessions and preventing them from being questioned about speeches or debates on the House or Senate floors.

Huffman’s interpretation that it involves any conversations with “anyone, at any time, on any topic,” is overly broad, they say.

“Does it mean he cannot be questioned about his mental processes? It certainly doesn’t say that,” the school district attorneys say. “Does it mean he cannot be questioned about whether lobbyists for school vouchers have suggested legislative language to him? It doesn’t seem to say that. Does it mean he cannot be questioned about whether he has a personal financial interest in the subject of legislation he has pushed to adoption? Once again, it is hard to find that meaning in the language of the Ohio Constitution he claims to rely on.”

The plaintiffs said that Page, the trial court judge, relied on a previous court case to guide her narrowing of the deposition from in-person to in-writing and a maximum of 20 questions. Her order said that questions cannot be on topics that infringe on Huffman’s privilege.

“Appellant cannot use the doctrine of legislative privilege to completely shield himself from discovery in the underlying litigation,” the districts argue.

Huffman did not wait to see the 20 questions to determine whether they infringe on his privilege before appealing Page’s order.

“If the framers intended to extend legislative privilege to all statements made by legislators concerning a piece of legislation, i.e., statements made both in and outside of either [chamber], the framers would not have used the phrase ‘in either house’ and would not have limited the privilege to speech or debate,” the plaintiffs say. “A broad interpretation of this constitutional provision would not benefit the public. The historical underpinnings of Ohio’s second constitution, the Constitution of 1851 –– which stripped power from the General Assembly and gave it to the people –– support a narrow and textual interpretation.”

Laura Hancock covers state government and politics for The Plain Dealer and cleveland.com.