PHOENIX — A call by Gov. Doug Ducey to repeal the so-called “legislative immunity” provision of the Arizona Constitution is getting a chilly reception from several senior lawmakers.
Legislators who spoke with Capitol Media Services said there’s a good reason for a limited privilege from arrest, which dates from the first days of statehood.
“I’m told, because I wasn’t around when they passed this, this is because there were situations where sheriffs or police in some counties attempted to prevent legislators from going to the Capitol by arresting them so that they couldn’t vote,” said Sen. John Kavanagh, R-Fountain Hills.
The “immunity” became an issue for the governor after the recent release of a videotape of Rep. Paul Mosley explaining to a La Paz County deputy that it was OK for him to drive 97 miles an hour in a 55 mph zone and boasting of having driven up to 140 mph.
“I don’t break the law because I can,” Mosley, a Lake Havasu City Republican, is seen telling the deputy.
On Friday, Ducey directed Department of Public Safety officers under his control to consider criminal speeding — anything 20 miles over the limit — to be a “breach of the peace” not covered by the constitutional protection.
Unable to repeal the immunity provision himself, Ducey said he wants lawmakers to put the question on the state’s 2020 ballot for voters, whose approval would be needed for the change.
Prior efforts to refer the issue to voters have gone nowhere.
Kavanagh said the language was put there for a reason. And he's not convinced those protections should go away.
Ditto Sen. Sylvia Allen, R-Snowflake, and Sen. Karen Fann, R-Prescott.
“The whole thing in there was not allowing legislators to break the law and get away with it,” said Fann. “It was only put in there to make sure that legislators could do their job while they’re in session.”
It’s not just legislative Republicans who are balking at what Ducey wants.
Rep. Lela Alston, D-Phoenix, also said there’s a good reason for the provision. “There could be mischief” by those trying to keep lawmakers away from the Capitol, she said. Alston, first elected to the Legislature in 1976, has been around longer than anyone else currently there.
If there’s a common denominator among lawmakers, it seems to be that while the incident with Mosley has drawn attention to the century-old provision, they want something more than a knee-jerk reaction from legislators and voters.
The main outlier is Sen. Martin Quezada, D-Glendale, who has tried to put repeal on the ballot since 2013 without luck. Quezada said he’s not convinced any lawmaker needs to be free from arrest while the Legislature is in session.
Even Quezada would not go as far as Ducey wants. He said he wants to preserve the part that says lawmakers should not have to appear in court in civil cases during the session, something gubernatorial press aide Daniel Scarpinato said Ducey wants repealed.
“There’s some legitimacy to not having to subject lawmakers to being served until after the session is over,” Quezada said.
The controversy is built around a mistaken impression that lawmakers have actual immunity. What the provision says is lawmakers cannot be arrested during the legislative session or in the 15 days leading up to the session unless they are charged with treason, a felony or “breach of the peace.”
Nothing keeps them from being arrested after the session is over.
The provision also says lawmakers are not subject to “civil process” during the same period.
“There is no immunity,” Kavanagh said. “You still can be served when the session ends. So I don’t think there’s a problem with that.”
Even assuming the privilege applies to traffic citations — a point of dispute — Kavanagh said nothing keeps a lawmaker from having to answer for his or her offenses.
“The officer notes the information,” he said. “Then, when the session’s over, they get (a) summons or they get arrested.”
Quezada, who sponsored the measure that Kavanagh would not consider, acknowledged that part of the problem is that some of his colleagues have tried to use the privilege in ways not intended.
“Every legislator is aware that we have some sort of immunity,” he said. “But very few of us, at least in my experience, actually understand what it actually means and what kind of benefit it actually gives you. So they then abuse what they believe is their immunity.”
Quezada said some of that could be resolved with better training of lawmakers about the limits of the provision. But he said that’s not the answer.
“Why do we even need that arrest privilege in there at all?” he asked.
He dismissed the possibility that eliminating the provision could lead to the kind of mischief of detaining lawmakers that constitutional framers feared. Legislative hearings and votes are postponed all the time when someone is delayed for any reason, Quezada said.
A long history
The incident earlier this year with Mosley —along with six other times he escaped being cited since taking office last year — is not the first time lawmakers have used what some see as a de facto get-out-of-jail card.
In a 2011 incident, Scott Bundgaard, then a Republican state senator from Glendale, was seen by police fighting physically with his girlfriend alongside a Phoenix freeway.
When police sought to arrest both, Bundgaard claimed legislative immunity from arrest. That allowed him to avoid jail while his companion was locked up for 14 hours.
The following year, Rep. Daniel Patterson, D-Tucson, used the same claim to try to avoid facing charges of domestic violence. He ended up resigning from the Legislature.
Before she was governor, Jan Brewer, then a state lawmaker, escaped being charged with drunken driving in 1988 after the vehicle she was driving rear-ended a van on a freeway. While police reports say she failed the field sobriety test, she was not given a breath test after a DPS officer concluded she was entitled to immunity.
In 1995, then-state Rep. Phil Hubbard, D-Tucson, argued he was entitled not to be ticketed for driving 14 mph over the speed limit on Interstate 10 because he was en route to a legislative hearing.
And eight years earlier, then-Rep. Bill English, R-Sierra Vista, was charged with drunken driving. English initially claimed immunity but eventually dropped that defense, was convicted and paid a $373 fine.