A proposal by Gov. Doug Ducey to abolish so-called legislative immunity is getting some negative reaction from some lawmakers who enjoy its protections — and would have to vote to put it on the ballot for voters to repeal.
“It was put here for a reason, by the people, in the constitution,” said House Speaker Rusty Bowers.
House Minority Leader Charlene Fernandez said there are legitimate reasons that lawmakers need protections from being arrested in certain circumstances.
Rep. Vince Leach, R-Tucson, said the few lawmakers who have abused the immunity have paid the price.
And Sen. Lela Alston, D-Phoenix, who has been at the Capitol longer than anyone else, said Ducey’s call to repeal the provision reflects a misunderstanding of exactly what it says — a misunderstanding she said is apparently shared by some legislators who have tried to claim it.
“They think they have carte blanche to do whatever they wanted, whenever they wanted,” Alston said.
That occurred last year when Rep. Paul Mosley, R-Lake Havasu City, claimed legislative immunity when he was stopped for speeding. The deputy even has videotape of Mosley claiming he has driven as fast as 140 miles an hour because his legislative immunity allows him to do that.
Not true, said Alston, first elected to the Legislature in 1976.
What it actually says is that 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 immunizes them from being arrested and prosecuted after the session is over.
The same provision also says lawmakers are not subject to “civil process” during the same period.
Ducey, in his State of the State speech Monday, referred to the provision as “legislative immunity.”
He said one reason people hold members of Congress in contempt is that they exempt themselves from many of the laws they pass.
“Let’s show the people of Arizona that their elected leaders will live under the same laws as every man and woman in this state,” the governor said.
Bowers, however, said he sees no reason to repeal the protection simply because some lawmakers have acted badly and then sought to escape being held accountable.
Leach said the whole idea of the protection is to keep a police officer or sheriff’s deputy from detaining one or two lawmakers whose votes are needed.
“You could render it nonfunctional,” he said of the Legislature if a member were kept away.
Anyway, he said, those who have abused the immunity have paid the price in bad publicity — and more.
“One member didn’t return,” he said, referring to Mosley who lost his re-election bid last year.
Fernandez agreed that the purpose of the provision is to ensure that lawmakers can get to the Capitol without being delayed.
“It wasn’t for me to get out of running a stop sign,” she said. And Fernandez said the fact that a few people have sought to misuse it is insufficient reason to eliminate the protection entirely.
Some lawmakers, however, side with Ducey.
“We’re no better than any of our constituents,” said Senate President Karen Fann.
She said that at one time — anywhere from 50 to 100 years ago — there were “games” played where a legislator might be stopped en route to a vote.
“I don’t think that’s an issue any more,” Fann said. “So it’s about time we got rid of all that.”
Rep. John Kavanagh, R-Fountain Hills, agreed, saying the days are long past when law enforcement would try to block a lawmaker from coming to the Capitol.
The issue of legislative immunity comes up from time to time.
In December, Rep. David Cook, R-Globe, stopped for drunk driving, gave police his House ID card rather than his driver’s license. But there is no indication that Cook claimed he could not be arrested.
Cook later apologized on his Facebook page. And Bowers sanctioned him by abolishing the newly created County Infrastructure Committee that Cook was to chair.
Cook couldn’t say whether he would be comfortable losing legislative immunity.
“I really don’t understand what that legal term means because I wouldn’t, I just don’t know,” Cook said. “I’ll study it a little bit.”
In 2012, Rep. Daniel Patterson, D-Tucson, claimed legislative immunity to avoid facing charges of domestic violence. He ended up resigning as it appeared his colleagues were going to have him ousted.
A year earlier, 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, allowing him to avoid jail while his companion was locked up for 14 hours.
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 en route 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.