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Gov. Ducey calls for public vote to eliminate legislative immunity

January 15, 2019

PHOENIX — Gov. Doug Ducey asked state lawmakers Monday to ask voters to rescind a constitutional provision that some have interpreted as immunity for state lawmakers.

In his fifth State of the State speech, the governor told lawmakers to “chop the stacks and stacks of statutes down’’ to leave only those that are relevant to current-day Arizona.

“And how about we start with eliminating the most unnecessary law of them all: legislative immunity,’’ the governor said.

Ducey was an outspoken critic of legislative immunity after former State Rep. Paul Mosley claimed legislative immunity while receiving a traffic citation in La Paz County. Mosley, who was reportedly traveling at 97 miles per hour in a 55-mile-per-hour zone, has since apologized for his statements to La Paz County deputies while receiving his citation.

Mosley, a Lake Havasu City resident, was defeated in his bid for re-election in August.

Last July, Ducey issued an executive order stating that peace officers would be permitted to limit application of Arizona Constitution Title 4, Section 6, Part 2, specifically as it refers to legislative immunity during traffic offenses. As a part of Arizona’s constitution, however, an end to legislative immunity would require a public vote.

Arizona’s constitution, as it is written today, allows state lawmakers to be excused from arrest in all cases except treason, felony crimes and breach of the peace. It also allows legislators to avoid civil processes during legislative session, and for 15 days prior to each legislative session.

During his State of the State speech on Monday, Ducey said one reason people hold members of Congress in contempt is that they exempt themselves from 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,’’ Ducey said.

The constitutional provision does not immunize lawmakers from having to be accountable for their actions.

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 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.

More recently, 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 Rep. David Cook claimed he could not be arrested.

Despite those incidents, the governor may get some opposition even to putting the question on the 2020 ballot.

When Ducey first made the proposal, Rep. John Kavanagh, R-Fountain Hills, said he understands there was a good reason for the provision.

“This is because there were situations or police in some counties attempted to prevent legislators from going to the Capitol by arresting them so that they could not vote,’’ he said.

Karen Fann, who is becoming the new Senate president, also expressed her concerns at that time.

“The whole thing in there was not allowing legislators to break the law and get away with it,’’ she told Capitol Media Services at the time. “It was only put in there to make sure that legislators could do their job while they’re in session.’’

The concerns are bipartisan.

Sen. Lela Alston, D-Phoenix, also said at the time 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.

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