Legislative immunity isn’t really immunity

The wayward impulsiveness of our politics is illustrated by the rush to repeal the misleadingly labeled “legislative immunity.”

A state legislator, Paul Mosley, is exposed as a serial speeder. He escapes citation because state highway patrol officers mistakenly think the state Constitution prohibits it.

The constitutional provision in question prevents a legislator from being arrested or being subject to civil process while the Legislature is in session or for a period of 15 days before a legislative session commences.

Issuing a ticket isn’t an arrest — or even a civil process — in the sense intended by the constitutional provision.

And the provision isn’t “immunity.” A legislator can be arrested or subject to civil process for anything, just not when the Legislature is in session or about to be so. There are no statutes of limitations so short as to allow a legislator to escape punishment or accountability after a session ends.

Moreover, the prohibition doesn’t apply to treason, felonies or a breach of the peace. Legislators can be arrested for those things at any time, including in the middle of a legislative session. Under Arizona’s elastic criminal statutes, there isn’t much misbehavior that cannot be construed as a felony.

So, a legislator who speeds can be cited. A lawmaker who beats his girlfriend or his wife, previous examples of where the claim of “legislative immunity” came into play, can be arrested.

There was a public uproar over the serial speeder and outrage expressed over the supposed “legislative immunity” provision.

Enter Gov. Doug Ducey’s involvement in the debate.

Ducey has turned out to be more of a political wind-surfer than a conservative reformer. And he wanted to get on top of this wave.

So, he issued an executive order directing the highway patrol to cite legislators for traffic violations, saying that it met the “breach of the peace” exception. And he called for the Legislature to refer a repeal of the “legislative immunity” provision to voters, with the usual harrumph about no one being above the law.

As a matter of law, this is a Humpty-Dumpty definition of “breach of the peace” — the term apparently means whatever Ducey decides that it means.

However, a traffic ticket is not what the drafters of the Arizona Constitution meant by a “breach of the peace.” Instead, it was intended to cover rabblerousing that disturbed or threatened public order.

There are ways to conclude that the constitutional privilege doesn’t cover traffic tickets without the governor channeling his inner Lewis Carroll.

The privilege against arrest or civil process while the Legislature is in session isn’t intended to put legislators above the law. And it doesn’t. They can be arrested or subjected to civil process when the Legislature isn’t in session, including for things they did while it was.

Instead, it is designed to protect representative government.

Arizona’s constitutional provision is taken in considerable part from a comparable provision of the U.S. Constitution.

People elect members of the legislative branch to cast votes. If a lawmaker can’t cast a vote, the people who elected him or her are left unrepresented. Delaying an arrest or civil process was regarded, by the framers of both the U.S. and Arizona constitutions, as a lesser evil to leaving a portion of the electorate unrepresented.

The provision was also to prevent arrest and civil process from being misused to incapacitate a political adversary.

A Ducey spokesman dismissed that as an anachronistic concern. Really? Have people so quickly forgotten how former Maricopa County Attorney Andrew Thomas and former Sheriff Joe Arpaio once went after political opponents on the board of supervisors and in the county, including a judge who was about to rule in a case concerning them?

The misuse of the legal system for political purposes didn’t start fading in 1912.

Perhaps this incident can serve a useful purpose in increasing understanding of what this particular constitutional provision does and doesn’t do.

Regardless, this isn’t a political wave to ride all the way to shore.