§3667.3. Statewide elected officials, members of the legislature, legislative personnel, appointed heads of state departments, compelled appearance as witness in court or at administrative proceeding, hearing required

A.(1) A party litigant in a civil case or in a criminal misdemeanor case seeking to compel the attendance of a statewide elected official, or the head of any department of the state of Louisiana appointed to the position by the governor, as a witness in a suit that arises out of, or in connection with, the person's exercise of his duties as an official of the state, shall file a written motion with the proper court requesting a hearing on the matter. The motion shall set forth the facts sought to be proved by the person's testimony, the relevance of those facts to the case, and the basis for the mover's belief that such person has knowledge of those facts. This Subsection shall not apply to any person who is subpoenaed as a prospective factual witness to an incident resulting in criminal prosecution.

(2) If the judge determines that the motion is well-founded and that denial of the motion may prejudice the case of the mover, the judge shall order a hearing and shall notify the mover and the witness of the hearing time and date by certified mail, return receipt requested, and the hearing shall be conducted in open court. At that time, the witness may present evidence or argument in opposition. After the hearing, if the court determines that the mover has established that the witness is necessary to the case, it shall issue a subpoena as sought. The court's ruling shall be an appealable order.

B. For purposes of this Section:

(1) "Legislative employee" means the clerk of the House of Representatives, the secretary of the Senate, or an employee of the House of Representatives, the Senate, or the Legislative Bureau.

(2) "Member" means a sitting or former member of the Louisiana Legislature.

C.(1)(a) Any party litigant seeking to compel the attendance of a member of the Louisiana Legislature, in his capacity as a state lawmaker, or a legislative employee in his official capacity, as a witness or deponent in any civil or criminal case shall file a written motion with the court requesting a hearing on the matter. The motion shall set forth in detail the facts sought to be proved by the member's or employee's testimony, the relevance of those facts to the case, the basis for the mover's belief that the member or employee has personal knowledge of those facts, and a statement as to why such testimony is not otherwise available or otherwise privileged under the privileges and immunities provision of Article III, Section 8 of the Louisiana Constitution. If after examination of the record, the judge determines that the motion is well-founded, that denial of the motion may prejudice the case of the mover, and that the mover has made a sound argument supported in law and jurisprudence that the legislative privilege is inapplicable to the facts sought to be proved, the judge shall order a hearing in accordance with Paragraph (2) of this Subsection.

(b)(i) Any judge on his own motion seeking to compel the attendance of a member of the Louisiana Legislature, in his capacity as a state lawmaker, or a legislative employee in his official capacity, as a witness or deponent in any civil or criminal case shall enter into the record his intent to compel such attendance. Thereafter, the court shall provide, in writing, the facts sought to be proved by the member's or employee's testimony, the relevance of those facts to the case, the basis for the judge's belief that the member or employee has personal knowledge of those facts, and a statement as to why such testimony is not otherwise privileged under the privileges and immunities provision of Article III, Section 8 of the Louisiana Constitution.

(ii) In a district court having a single judge, the judge shall appoint a district judge of an adjoining district or a lawyer domiciled in the judicial district who has the qualifications of a district judge to conduct the hearing required in Paragraph (2) of this Subsection. In a district court having two judges, the other judge of the court shall conduct the hearing. Such order of the court appointing a judge ad hoc shall be entered on its minutes, and a certified copy of the order together with a written copy of the information required in Item (i) of this Subparagraph shall be sent to the judge ad hoc. In a district court having more than two judges, the hearing shall be conducted by another judge of the district court through the random process of assignment in accordance with the provisions of Code of Civil Procedure Article 253.1.

(2) Prior to the issuance of a subpoena commanding the appearance or testimony of a member or legislative employee, a hearing shall be conducted in accordance with the following provisions:

(a) Notice of the hearing must be provided to all parties, the member or legislative employee, and the attorney general. In the case of a member or employee of the House of Representatives, notice must also be made to the clerk of the House of Representatives, and in the case of a member or employee of the Senate, notice must also be made upon the secretary of the Senate at their respective offices in the State Capitol building.

(b) Notice may be served by sheriff or by certified mail, return receipt requested, and shall be served a minimum of fifteen days prior to the date of the hearing.

(c) The content of the notice shall include the facts sought to be proved by the member's or legislative employee's testimony, the relevance of those facts to the case, the basis for the belief that the member or employee has personal knowledge of those facts, and a supported statement as to why such testimony is not otherwise privileged under the privileges and immunities provision of Article III, Section 8 of the Louisiana Constitution.

(d) At the hearing, the member, legislative employee, or attorney general may each question the requesting party regarding the content of the notice and may present evidence or argument in opposition to the issuance of a subpoena or other order compelling discovery.

(e) The provisions of R.S. 13:3667.1 shall apply to the scheduling of the hearing and all other court proceedings.

(3) After the hearing, if the court determines that the member's or legislative employee's testimony is necessary to the case and that the testimony is not privileged, it shall issue the subpoena or order.

(4) A member or legislative employee may, by affidavit, waive the hearing requirement of this Subsection with respect to his appearance as a witness or deponent. In the case of an employee, if the testimony being sought is privileged or otherwise confidential under law belonging to or inuring to the benefit of the legislature or a member thereof, the waiver shall include the concurrence of the presiding officer of either house of the legislature or the member, as applicable, evidenced by his signature on the affidavit.

(5) Any subpoena to compel the attendance of a member of the Louisiana Legislature, in his capacity as a state lawmaker, or a legislative employee in his official capacity, as a witness or deponent in any civil or criminal case which is not issued in strict conformity with the provisions of this Subsection is void ab initio.

D.(1)(a) Any party to an administrative proceeding seeking to compel the attendance of a member of the legislature, in his capacity as a state lawmaker, or a legislative employee in his official capacity, as a witness or deponent in the proceeding shall file a written motion with the agency, subordinate presiding officer, or administrative law judge, as applicable, requesting a hearing on the matter. The motion shall set forth in detail the facts sought to be proved by the member's or employee's testimony, the relevance of those facts to the proceeding, the basis for the mover's belief that the member or employee has personal knowledge of those facts, and a statement as to why such testimony is not otherwise available or otherwise privileged under the privileges and immunities provision of Article III, Section 8 of the Louisiana Constitution. If after examination of the record, the agency, subordinate presiding officer, or administrative law judge, as applicable, determines that the motion is well-founded, that denial of the motion may prejudice the case of the mover, and that the mover has made a sound argument supported in law and jurisprudence that the legislative privilege is inapplicable to the facts sought to be proved, the agency, subordinate presiding officer, or administrative law judge, as applicable, shall order a hearing in accordance with Paragraph (2) of this Subsection.

(b)(i) Any agency on its own motion or any subordinate presiding officer or administrative law judge on his own motion seeking to compel the attendance of a member of the Louisiana Legislature, in his capacity as a state lawmaker, or a legislative employee in his official capacity, as a witness or deponent in any administrative proceeding shall enter into the record its or his intent to compel such attendance. Thereafter, the agency, officer, or judge shall provide, in writing, the facts sought to be proved by the member's or employee's testimony, the relevance of those facts to the proceeding, the basis for the agency's, officer's, or judge's belief that the member or employee has personal knowledge of those facts, and a statement as to why such testimony is not otherwise privileged under the privileges and immunities provision of Article III, Section 8 of the Louisiana Constitution.

(ii) The agency, subordinate presiding officer, or administrative law judge shall appoint or otherwise arrange for another subordinate presiding officer or administrative law judge to conduct the hearing required in Paragraph (2) of this Subsection.

(2) Prior to the issuance of a subpoena commanding the appearance or testimony of a member of the legislature or legislative employee pursuant to Paragraph (1) of this Subsection, a hearing shall be conducted in accordance with the following provisions:

(a) Notice of the hearing must be provided to all parties, the member or legislative employee, and the attorney general. In the case of a member or employee of the House of Representatives, notice must also be made to the clerk of the House of Representatives, and in the case of a member or employee of the Senate, notice must also be made upon the secretary of the Senate at their respective offices in the State Capitol building.

(b) Notice may be served by sheriff or by certified mail, return receipt requested, and shall be served a minimum of fifteen days prior to the date of the hearing.

(c) The content of the notice shall include the facts sought to be proved by the member's or legislative employee's testimony, the relevance of those facts to the proceeding, the basis for the belief that the member or employee has personal knowledge of those facts, and a supported statement as to why such testimony is not otherwise privileged under the privileges and immunities provision of Article III, Section 8 of the Louisiana Constitution.

(d) At the hearing, the member, legislative employee, or attorney general may each question the requesting party regarding the content of the notice and may present evidence or argument in opposition to the issuance of a subpoena or other order compelling discovery.

(e) The provisions of R.S. 13:3667.1 shall apply to the scheduling of the hearing and all other administrative proceedings.

(3) After the hearing, if the agency, subordinate presiding officer, or administrative law judge, as applicable, determines that the member's or legislative employee's testimony is necessary to the proceeding and that the testimony is not privileged, the agency, officer, or judge shall issue the subpoena or order.

(4) A member or legislative employee may, by affidavit, waive the hearing requirement of this Subsection with respect to his appearance as a witness or deponent. In the case of an employee, if the testimony being sought is privileged or otherwise confidential under law belonging to or inuring to the benefit of the legislature or a member thereof, the waiver shall include the concurrence of the presiding officer of either house of the legislature or the member, as applicable, evidenced by his signature on the affidavit.

(5) Any subpoena to compel the attendance of a member of the legislature, in his capacity as a state lawmaker, or a legislative employee in his official capacity, as a witness or deponent in any administrative proceeding which is not issued in strict conformity with the provisions of this Subsection is void ab initio.

E. The legislature, member, legislative employee, or attorney general may apply directly to the Supreme Court of Louisiana for supervisory writs upon:

(1)(a) A judge's decision to hold a hearing or to issue a subpoena commanding the attendance of the member or employee, or other order compelling discovery.

(b) An agency's, subordinate presiding officer's, or administrative law judge's decision to hold a hearing or to issue a subpoena commanding the attendance of the member or employee, or other order compelling discovery.

(2)(a) The failure of a judge to appoint a judge ad hoc to conduct the hearing when such appointment is required in Paragraph (C)(1) of this Section.

(b) The failure of an agency, subordinate presiding officer, or administrative law judge to appoint or otherwise arrange for an administrative law judge to conduct the hearing when such appointment or alternative arrangement is required in Paragraph (D)(1) of this Section.

Acts 1984, No. 709, §1; Acts 2004, No. 873, §1; Acts 2006, No. 690, §2, eff. June 29, 2006; Acts 2008, No. 374, §3, eff. June 21, 2008; Acts 2012, No. 519, §3.