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Gov. Ducey Signs Executive Order Saying State Representatives Aren't Above The Law

By Tom Maxedon
Howie Fischer, Capitol Media Services
Published: Saturday, July 21, 2018 - 5:05am
Updated: Monday, July 23, 2018 - 8:43am
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Josh Orcutt/Cronkite News
Arizona Gov. Doug Ducey.

Saying legislative immunity is being abused, Gov. Doug Ducey directed that police officers under his control have the authority to cite — and if necessary arrest — lawmakers whose bad driving is more than just simple speeding.

In an executive order Friday, the governor pointed out that the constitutional provision protecting lawmakers from arrest is not absolute. Exemptions include treason, felonies and "breach of the peace.''

There is no definition in Arizona law of exactly what that entails. It generally is considered to fall into the category of disorderly conduct.

But Ducey, in his order, told officers they "shall consider any criminal violation that endangers the safety of another ... as a breach of the peace." And the governor said that specifically includes drunk driving, reckless driving and criminal speeding, that last category as driving at least 20 miles per hour over the posted speed limit.

Gubernatorial press aide Daniel Scarpinato said this is not an order to Department of Public Safety officers to issue a citation in each of these cases. Instead, he said, it simply gives officers the discretion to decide on appropriate action when lawmakers are involved, discretion that they do not have under current policy that lets lawmakers drive away with a warning.

Still, Scarpinato said, there are situations where his boss would expect that "discretion'' to be exercised in a certain way.

"Obviously, if someone is going 140 miles per hour, I think that would certainly, under almost any circumstance, warrant a ticket,'' he said.

In fact, Ducey wants to go even farther — Scarpinato said his boss favors repeal of the entire constitutional provision on legislative immunity.

"Everyone in elected office, including him, should have to follow the same laws as every other citizen and be held accountable,'' Scarpinato said. "So he thinks this should go.''

Ducey, however, lacks the power to simply abolish the immunity by fiat. Constitutional provisions can be altered or repealed only with a public vote.

Scarpinato brushed aside the concern that the immunity exists to keep some rogue police officer or agency from keeping legislators from getting to the Capitol to cast their votes. "Have you ever heard of an instance like that?'' he asked.

"And, by the way, today we have cell phones,'' Scarpinato said, where a legislator who believes he or she is being wrongfully detained can seek assistance. "This isn't 1912.''

In his order, the governor never directly names Rep. Paul Mosley, R-Havasu City, who was stopped on March 27 by a La Paz County sheriff's deputy for driving 97 mph on a 55 mph stretch of State Route 95 in La Paz County. The deputy, after learning he was a legislator, let him off with a warning.

"I was doing 120 earlier,'' Mosley was seen on body camera footage telling the deputy. "I go 130, 140, 120.''

MORE: Police Organization Rebukes Arizona Lawmaker Who Bragged About Speeding

It was clearly that incident, though, that got Ducey's attention.

"It is clear in some recent cases that the peace has been breached, and we have a responsibility to enforce the law in these cases,'' the order states.

Ducey's order does not govern the conduct of other police agencies. They remain free to set their own policies.

But the decision to direct the actions of at least officers under state control likely would have an impact — at least on this one particular legislator. Records show that DPS officers stopped Mosley at least six other times while the Legislature was in session the past two years, five for speeding and one for failing to stop at a stop sign.

Those records do not show whether Mosley specifically claimed legislative immunity. But each time he was let off with a warning.

Mosley has since apologized through a Facebook post.

"My desire to get home to see my family does not justify how fast I was speeding nor my reference to legislative immunity when being pulled over,'' he wrote, calling it "a serious responsibility (that) should not be taken lightly or abused.''

Mosley also said his "jokes'' about frequently driving faster than 100 miles per hour "were entirely inappropriate and showed extremely bad judgment on my part, for which I am truly sorry.''

In his order, Ducey also pointed out that the immunity is limited not just in scope but in time: it applies only when the Legislature is in session and for 15 days leading up to each session.

The governor's directive and views about the scope of the immunity clause are now more in line with those that have been used by the House of Representatives for more than a decade.

In a 2002 memo, Don Jansen, then an attorney for the House, said he reads the constitutional provision to say that there is no immunity from speeding tickets or violations of drunk driving laws. A House spokesman said that remains the policy.

Jansen's memo, however, points out something else: that immunity language covers more than criminal and traffic citations. It also says that lawmakers "shall not be subject to any civil process'' during the session and for 15 days leading up to it.

That, in essence, means they cannot be sued during those time periods. But Scarpinato said that, as far as his boss is concerned, that part of the immunity provision also should be repealed.

And Scarpinato hinted that Arizonans may see the issue come up in the State of the State speech ahead of the 2019 legislative session — assuming his boss is still the governor.

"He thinks this should be a priority.''

Capitol Media Services contributed to this report.