Legislators not pushing their luck on immunity

When a high-ranking Arizona lawmaker was detained last weekend by Phoenix police after a roadside fight with his girlfriend, it looked like he was headed to jail. Then the state constitution swooped in and saved him.

A Nevada legislator in a similar spot would not be so lucky.

Like Arizona, Nevada's constitution includes an immunity clause that protects lawmakers from arrest while the Legislature is in session. But there is one big difference: Legislative immunity in Nevada only applies to civil matters, which almost never result in arrest anyway. Immunity in Arizona extends to all offenses "except treason, felony, and breach of the peace."

Such constitutional protections for lawmakers might not be widely talked about; but Lorne Malkiewich, long-time director of Nevada's Legislative Counsel Bureau, said his office does field questions about the state's immunity clause from time to time.

Most inquiries come from people who mistakenly believe it applies to things like speeding tickets.

Malkiewich joked that his phone seems to ring every time a legislator races past someone on the highway.

In truth, state lawmakers are always subject to arrest -- and to moving violations -- even when the Legislature is in session. And they can still be sued and served with civil papers at any time, same as the rest of us.

"It's not really a way to duck the law," Malkiewich said. "It's only for civil matters, and they'll still be waiting for you in June."

Arrests in civil matters are exceedingly rare. State law allows for them only under a few specific circumstances, including the recovery of fraudulently obtained property that has been hidden or disposed of or when a defendant is about to flee the state to escape creditors.

Incidentally, the Nevada Constitution also protects us commoners from being arrested on civil matters, albeit only on general Election Day and only those of us who are qualified to vote.

Historian and former state archivist Guy Rocha said he can list several state lawmakers who have gotten in trouble with the law, but he can't think of any who actually were arrested in Carson City during a session.

The only example of legislative immunity he could recall involved Clarence Van Duzer, a congressman from Nevada in the early 1900s.

Once a rising star among Nevada Democrats, Van Duzer saw his political career derailed when he was implicated in bogus mining ventures.

In 1906, a woman filed a lawsuit in Washington, D.C., charging the congress­man with fraud. The following year, Van Duzer narrowly avoided being hauled away in shackles as he tried to collect $1,100 in travel expenses on his last day in office.

"An attempt to forcibly arrest Van Duzer on the grounds of the U.S. Capitol was thwarted by a Capitol police officer who claimed that the U.S. Constitution prevented a member of Congress from being arrested," Rocha wrote in a 2006 article about the scandal. "Van Duzer disappeared without collecting his money."

Rocha said legislative immunity clauses are probably common across the country, since most state constitutions were ripped off from the founding documents of other states.

"Nevada's constitution was modeled after what was then California's constitution, and California -- they looked at New York," he said.

The immunity clauses in Nevada and Arizona, for example, protect law­makers from arrest during a legislative session and "for fifteen days next before the commencement of each session."

Of course, none of this means Arizona Senate Majority Leader Scott Bundgaard is off the hook.

Though he avoided arrest a week ago, police are recommending that he be brought up on a misdemeanor domestic violence charge as soon as the Legislature adjourns.

The police report on the Feb. 26 incident states the only reason an arrest wasn't made then and there was because of "Senator Bundgaard's position."

Instead, the Republican went free while his now-former girlfriend went to jail.

That was probably a mistake, says Arizona Republic newspaper columnist Laurie Roberts, who argues that lawmakers in Arizona are not as immune to arrest as they might think.

Roberts writes that Arizona's legislative immunity clause reflects similar language in the U.S. Constitution, but the U.S. Supreme Court has twice held that such federal immunity applies only to an arrest in a civil lawsuit.

The high court had this to say on the subject in Long v. Ansell in 1934: "When the Constitution was adopted, arrests in civil suits were still common in America. It is only to such arrests that the provision applies."

Which is exactly what Nevada's constitution says.

Behave yourselves in Carson City, lawmakers.

Contact reporter Henry Brean at hbrean@reviewjournal.com or 702-383-0350.