Jamil 2020 KANAWHA CO, CIRCUIT CLERK No.6820 P. 17

IN THE CIRCUIT COURT OF KANAWHA COUNTY, Eggs

STATE OF WEST VIRGINIA, 233Egan; i a. ?w
Plamtl?, 
v. Civil Action No. ZO-PCR-41

Judge Tod . Kaufman
MICHAEL L. CAPUTO,
Defendant.
FINAL ORDER ON PETITION FOR WRIT OF MANDAMU 
A. Procedure -

1, On January 22, 2020, the State of West Virginia ?led a Petition for Writ of
Mandamus. The case has been randomly assigned by the Circuit Clerk's of?ce to. 
the undersigned judge. I I

2. Prior to the State?s ?ling of the Petition for Mandamus, the Defendant (Delegate
Caputo) ?led Defendant?s Special Appearance and Motion to Dismiss Criminal
Charges Based Upon Legislative Immunity. (State?s Exhibit 2, attached to the
Petition far Writ ofMandamus).

3. The Court ?nds that since the Defendant?s Special Appearance and Motion to
Dismiss Criminal Charges Based Upon Legislatl?ve Immunity is a jtut'sdjetional
issue, it can be raised at any time.

4. The Defendant?s Special Appearance and Motion to Dismiss Criminal Charges
Based Upon Legislative Immunity continues to be apart of this case and remains a
ju?sdictioual response to the PB?tion for Writ of Mandamzw and any other

subsequent legal proceeding.

 

 

 

 

Jan. 27. 2020 KANAWHA CO. CIRCUIT CLERK No. 6820

B. HISTORY, FACTS, AND LAW OF THE CASE

F.



Defendant Michael L. Caputo was charged with a misdemeanor for allegedly violating

Code {State?s Exhibit 1, the Criminal Complaint ?led in the Magistrate Court

of Kanawha County and assigned misdemeanor case number Defendant

moved to dismiss the misdemeanor charge, based leCln legislative immunity, for the following

reasons i

in the Magistrate Court of Kanawha Connty. State?s Exhibit 1.

the West Virginia Legislature continuously since 1996. State's Exhibit 2.

. On or about September 6, 2019, a ethninal complaint was ?led against Defendant

. Defendant is an elected Delegate from the 50?ll District and has been a member of

. In the lemino! Complaint, this alleged crime doomed on March 1, 2019, when the

West Virginia Legislature was in session and Defendant was present at the State

Capitol carrying out his of?cial duties as a member of the Legislature. State?s

Exhibit 1.

. According to the Criminal Complaint:

On the above date, the defendant walked toward the steps leading to
the main door of the House of Delegates (HOD) Chamber, inside
the State Capitol Building, Kanawha County, in Charleston, W.
The defendant was makings commotion, talking loud, and saying
nasty things as he started up the steps. The defendant was observed
walking up to the door of the chamber and according to Wimesses
raised his hands, and either pushed, hit, or kicked the door, and
stated open the door and nobody keeps me out. The double
door entrance of the chamber had glass windows in each door and
would have allowed for easy visibility into the same. The de?ndant
pushed the chamber door into and struck the HOD doorman, Logan

.Casterline, as he entered the chamber. After the incident, Mr.

Casterline complained of pain and sought medical attention, on site
and at a local hospital. Delegate Sharon Malcolm was interviewed
after the incident and stated that while she was in the chamber, as
the session was starting, the defendant stepped around her and

 

 

 

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adidsed her to get the out of his way She stated he then took his
elbow and pushed her out. of his Way. She stated that she was out of.
his way and that he had to come up behind her order to hit her 
With his elbow She stated that he was already around her and had

to turn to strike her. Delegate Malcolm stated that she wasn?t
initially hurt, but she was sore, and later advised Capitol Police that
she had sought medical attention for pain that she had been
experiencing on the right side of her chest and shoulder, which re
the area the defendant struts]: her Delegate Malcolm has ?rther
advised, that she has continued to experience pain, and 13 still under
physician?s care for this injm'y. Based on information obtained from
witness statements, the complainant believes that a battery ocmnred
on Sharon Malcolm and Logan Casterline. State?s Exhibit 1.

5. While Defendant disputes many of the allegations made in the Criminal Complaint,
there is no diSpute that this alleged incident occurred while the West Virginia House
of Delegates was in session, when Defendant was entering the chamber of the
House of Delegates to participate in the sessiom in the presence of all members of
the legislature and public who were at or near the chamber doors, and indisputably
occurred while Defendant was acting within the legislative sphere. State?s Exhibit
3.

6. The ?legislative sphere? is de?ned in Code 4-1A-4 as ?all activities that
are an integral part of the deliberative and communicative processes by which
members of the Legislature 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 Censtitution places Within the jurisdiction of
either house.?

7. Being physically present in the chamber of the House of Delegates is an ?integral

part of the deliberative and communicative processes by which members of the

Lagislature participate in committee and house proceedings." State?s Exhibit 2.

 

 

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8. Defendant was both permitted and obligated to be in the House chamber when the
bell rings, calling the House to convene. In particular, House Rule 27 provides in
pertinent part, ?On a call of the House, the door shall not be closed against any
member until his name shall have been called twice.?

9. As a member of the House of Delegates entitled to be in the chamber, indeed
Defendant has a constitutional obligation to be in the chamber when the House is
in session and was trying to enter the House chamber during the time behveen the
prayer and the pledge of allegiance. State?s Exhibit 2.

10. Under controlling West Virginia law, members of the Legislature are entitled to
legislative immunity from civil and criminal prosecutions for all acts committed
within the legislative sphere. This is a basic separation of powers issue between
the branches of government, and in this case, the legislative immunity
provision prevails over an executive branch action by the State, tO-owit these
misdemeanor charges.

11. The facts alleged in the CRIMINAL COWLAWT fall squarely within the
legislative imnmnity mandated by Code 4-1A-6, which provides:

Legislative immunity, affording protection under the Separation of Powers
Doctrine and the Speech or Debate privilege, extends to all of a legislator?s
legislative acts, as de?ned in section three of this article.

The Speech or Debate privilege, when it applies, is absolute and has two
aspects: 

A member of the Legislature has immunity extending both to civil
suits andcriminal prosecutions for all actions within the legislative
sphere, even though the conduct, if performed in other than a
legislative context, would in itself be unconstitutional or otherwise
contrary to criminal or civil statutes; and

 

 

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(2) A member of the Legislature is provided a testimonial privilege that
operates to protect those to whom it applies from being compelled to
give testimony as to privileged matters and from being compelled to
produce privileged (Emphasis added).

12. Under Code 4e1A?13, the legislative immunity described in Code
4-1A-6, may be invoked to shield at legislator from judicially ordered relief;
including but not limited to the following: I

(1) (Sentinel prosecution for his or her legislative acts;

(2) Liability fer damages for his or her legislative acts;

(3) Declaratory judgments with respect to his or her legislative acts; I

(4) Injunctive relief with respect to his or her legislative acts; and

(5) write with respect to his or her legislative acts.

13. The legislative immunity shields a legislator from any criminal prosecution fer
legislative acts and extraordinary writs with respect to his legislative acts,

committed within the legislative sphere.

14. Under Code 4-1A-3, ?legislative acts? means:

An act that is generally to he performed by the Legislature in relation to the
investigative, deliberative and decision-making business before it A ?legislative
act? means:

(1) Is antintegral part of the processes by which members participate in proceedings
that come before'the Senate or House of Delegates or a committee thereof; and

(2) Relates to the consideration and pas sage or rejection of proposed legislation; or

(3) Relates to other matters that constitutional law places within the jurisdiction of
either the Senate; the House of Delegates or legislative branch of state
government as a whole. (Emphasis added).

15. Consistent with the de?nition of ?1egis1ative sphere," being present in the chambers

of the House of Delegates when the Legislature is in session is ?an integral part of

 

 

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the processes by which members participate in proceedings that come before the

Senate or House of Delegates or a committee thereof.? State?s Exhibit 2.

16. The Legislature very broadly described the extent of legislative immunity in WW.

Code 41M, as 

The scope of legislative immunity includes; but is not limited to, the
following legislative acts:

(1) Introducing and voting for legislation;

(2) Failing or refining to vote or enact legislation;

(3) Voting to seat or unseat a membex;

(4) Voting on the con?rmation of an executive 

(5) Making speeches;

(6) Enforcing the rules of the Senate or House of Delegates or joint
rules of the Leigsleture;

(7) Serving as a member of a committee or subcommittee;

(8) Conducting hearings and developing legislation;

(9) Investigating the conduct of executive agencies;

(10)
(11)
(12)



(14)
(15)

Publishing and distributing reports;

Composing and sending letters;

Drafting memorands and domnnents;

Lobbying other legislators to support or oppose legislation;
Abolishing personnel positions; and

Hiring and ?ring employees.

 

 

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17. Not every act committed by a legislator is subject to legislative immunity. For
example, in Code the Legislatm'e identi?ed the following actions
by legislators that are not protected:

Legislative immunity does not extend to activities by legislators that are
without law?il authority ?under constitutional law, statutory law or rules of
the legislature, including, but not limited to, the following:

(1) Using an unconstitutional procedme to enact legislation;

(2) Cenducting an illegal investigation or an unlaw?ll search or seizure;

(3) Performing another otherwise valid legislative act without proper
legislative authoring

(4) Filing a false or incomplete report, disclosure or claim regarding an
otherwise valid legislative act; 0r
(5) Using legislative of?ce for private gain in violation of the provisions of
chapter six-b of this code that de?ne and enforce governmental ethics.
18. While this list is not all inclusive, there is nothing to suggest that a legislator, who
is attempting to enter the chambers of the House of Delegates to be seated during
the legislative session, is barred ?om asserting legislative immunity for doing so.
State?s Exhibit 2.
c. 
1. The West Virginia Supreme Court has never issued any deeision applying and
interpreting any of these legislative immunity statutes. Defendant found a
ease ?'om another jm?isdiction where a legislator accused in a eivrl action of
committing a battery on a witness appearing at a committee was successful in
having the civil action dismissed upon legislative immunity. Allen v. Superior
rimming, 171 CalApp.2d 444, 340 P.2d 1030 (1959). My

g.

 

 

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2. Our Constitution, legislative rules and our statutes grant unique privileges to
legislators during legislative sessions. Our founding fathers knew that
protecting legislators to assure they are free to participate in legislative
proceedings was critical and vital to our system of government. The most
important privileges granted to all members is a right to enter, to be present to
vote, and to otherwise participate in legislative activities. As stated above,
House rules speci?cally say when a call of members to the House is made,
members are required to attend. The Speaker even has authority to Send out the
Sergeant of Arms to compel members to attend. House rules further say that no
one can bar a member being present during a session. Defendant was trying to
enter the House chamber in an effort to carry out his privileges and obligations
as a member of the House of Delegates. Because this legislative act committed
within the legislative sphere is statutorily protected activity, Defendant cannot
be prosecuted criminally and will be shielded from the issuance of extraordinary
visits with respect to his legislative acts.

Therefore, the Petition for Writ ofMandamus is hereby DENIED and the misdemeanor
charges against Defendant are DISMISSED. 

The Clerk of this Comt shall send certi?ed copies of this ORDER to all counsel of record:

Morgan M. Switzer, Esq. J. Timothy DiPiero, Esq.

Assistant Prosecuting Attorney DiPiero Simmons McGinley 5L Bastreas, PLLC
301 Virginia Street East P.O. Box 1531

Charleston, WV 25301 Charleston, WV 25326

ENTER this canes this Zlyd'avofianuary, 2.020.

J.
Judge

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