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 there is a privilege from arrest, which dates from the first days of statehood. That’s part of the reason there has not been a concerted push to rescind it.
In fact, it only became an issue for the governor following the release of only the videotape of Rep. Paul Mosley, R-Lake Havasu City, 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,” he is seen telling the deputy.
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” which is not covered by the constitutional protection. And Ducey, unable to repeal the provision himself, said he wants lawmakers to put the question on the ballot for voters whose approval would be needed for the change.
But prior efforts to refer the issue to voters have gone nowhere.
Sen. John Kavanagh, R-Fountain Hills said the language was put there for a reason. And he’s not convinced those protections should go away.
“The whole thing in there was not allowing legislators to break the law and get away with it,” said Sen. Karen Fann, R-Prescott. “It was only put in there to make sure that legislators could do their job while they’re in session.”
And Sen. Sylvia Allen, R-Snowflake, said the problem isn’t the anti-arrest provision. “Some people are not interpreting it the way I believe the way the original constitutional founders had intended to put it in there.”
It’s not just legislative Republicans who are balking at what Ducey wants.
“I think there’s a good reason for that,” Rep. Lela Alston, D-Phoenix, said of the provision.
“There could be mischief,” she said, by those trying to keep lawmakers away from the Capitol. And 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 believe something more than a knee-jerk reaction from legislators and voters is needed.
The main outlier on the issue 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 that any lawmaker needs to be free from arrest while the Legislature is in session.
But even Quezada would not go as far as Ducey wants. He told Capitol Media Services he wants to preserve the part which says lawmakers should not have to appear in court in civil cases during the session, something gubernatorial press aide Daniel Scarpinato said his boss wants repealed.
“There’s some legitimacy to not having to subject lawmakers to being served until after the session is over,” he said.
The entire controversy is built around a mistake that lawmakers have actual immunity.
What the provision actually says is lawmakers cannot be arrested during the 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 same provision also says lawmakers are not subject to “civil process” during the same period.
Ducey, who had never mentioned the constitutional provision since being elected in 2014, stepped in with an executive order last week in the wake of the Mosley video.
He directed DPS officers that they should not interpret that language to conclude that legislators cannot be ticketed for speeding. But Ducey also said he thinks it’s time for the entire provision to go, saying he will ask lawmakers when the session resumes in January — assuming he is still governor — to put the issue on the 2020 ballot.
Kavanagh, first elected in 2006, said that ignores the reason the framers of the Arizona Constitution included the provision in the first place.
“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,” he said.
Anyway, Kavanagh pointed out, “there is no immunity.”
“You still can be served when the session ends,” he said. “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 for years in ways it was 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,” Quezada said. “So they then abuse what they believe is their immunity.”
He said some of that could be resolved with better training of lawmakers about the limits of the provision. But Quezada said that’s not the answer.
“Why do we even need that arrest privilege in there at all?” he asked. And he dismissed the possibility that eliminating the provision could lead to the kind of mischief of detaining lawmakers that constitutional framers feared, saying that legislative hearings and votes are postponed all the time when someone is delayed for any reason at all.
The incident earlier this year with Mosley — along with six other times he escaped getting 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.
But the history goes back even farther.
Before she was governor, Jan Brewer, then a state lawmaker, escaped being charged with drunk driving in 1988 after the vehicle she was driving rear-ended a van on the 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 miles per hour over the speed limit on Interstate 10 because he was enroute to a legislative hearing.
And eight years earlier, then Rep. Bill English, R-Sierra Vista, was arrested on a charge of drunken driving. English initially claimed immunity but eventually dropped that defense, was convicted, and paid a $373 fine.