Arizona law-enforcement agencies say they don't give lawmakers speeding tickets during the legislative session, despite contradicting opinions from legislative and outside attorneys over whether speeding is considered part of legislative immunity.
Republican Rep. Paul Mosley of Lake Havasu City has been warned several times by the Arizona Department of Public Safety about speeding, though not ticketed, since he took office in 2017.
He was caught on officer body camera bragging about driving more than 120 mph after a deputy pulled him over for going 97 mph in a 55 mph zone north of Parker. He later issued a statement saying he was joking about the higher speeds.
The incidents highlight a privilege in the Arizona Constitution called legislative immunity. The provision says lawmakers can't face civil processes during the legislative session or 15 days before its start.
Some attorneys say it's not clear if speeding actually falls under legislative immunity. And attorneys from the Arizona House of Representatives advise members that speeding is likely not covered by their immunity.
But some law-enforcement agencies say they are following the state Constitution by not ticketing lawmakers for speeding.
"All law enforcement has the same statute (to follow)," Arizona Department of Public Safety spokesman Bart Graves said, referring to the legislative-immunity provision.
Mosley isn't the first lawmaker to use the immunity. Several lawmakers in past years have cited legislative immunity, with varying degrees of success.
Mosley now faces an ethics complaint from another Republican lawmaker. Spurred by the speeding incident, his colleagues in both parties spoke out about other inappropriate behavior, including comments about women in the workplace and pushing his religion on others.
How come lawmakers don't get tickets?
This is what the Arizona Constitution says about lawmakers and arrests and other actions:
Members of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace, and they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.
Law-enforcement agencies in Arizona have interpreted the provision to mean they can't ticket lawmakers for speeding. Troopers are briefed on the immunity in their training, Graves said.
Traffic tickets are a civil process, Graves said.
Lawmakers may identify themselves to troopers when they get pulled over. Legislators also could place a placard on their vehicles that notes they are a member of the Legislature, wear a pin that identifies them as such, or flash a business card.
The Maricopa County Sheriff’s Office doesn’t arrest or cite lawmakers for any misdemeanors, including criminal traffic violations, during the legislative session unless it can be “clearly shown that the offense represents a breach of the peace,” an MCSO policy says.
Traffic tickets are civil processes, the policy says, so lawmakers are immune from traffic tickets as long as they can show identification that proves they are lawmakers.
“If he is unable to present the appropriate identification, the citation should be issued,” MCSO’s policy says.
The La Paz County Sheriff's Office, whose officer conducted the traffic stop of Mosley captured on body-camera video, posted on Facebook that their deputy was given information at the time that the Legislature was currently in session.
Mosley had informed the deputy he was a lawmaker during the traffic stop, showing the deputy a placard that identified himself as a state representative.
"The deputy acted properly during the traffic stop then forwarded the traffic offense to the County Attorney’s Office for review," the statement from the sheriff's office said.
In practice, lawmakers like Mosley could theoretically be pulled over for speeding every day during the legislative session and only receive a warning. Average citizens likely would receive a ticket at some point, not endless warnings.
What is the House's policy?
The law-enforcement interpretation differs from guidance that legislative attorneys gave House members in 2002.
The guidance, authored by House counsel Don Jansen in November 2002, specifically says speeding tickets do not fall under legislative immunity.
The memo also says DUIs and other crimes aren't protected. Civil lawsuits need only wait until after the session, the memo says.
In short, lawmakers are "not above the law," the House guidance says.
"Claims of immunity are very rare and may not be favored by the courts or the public. A legislator should take care not to assume that this immunity will be honored," the guidance says.
House attorneys still advise members that speeding is "unlikely" to be covered by legislative immunity, House spokesman Matt Specht told The Arizona Republic in an email.
House Speaker J.D. Mesnard, R-Chandler, said in a statement that the provision is narrow and doesn't protect lawmakers from consequences after the session ends.
"However, until the courts precisely define the parameters of legislative immunity, it’s unclear exactly how they will interpret the constitutional provision," Mesnard said.
What is legislative immunity and why does it exist?
The federal government and most states have some type of legislative immunity law.
The U.S. Constitution contains similar language to Arizona's, saying members of Congress are "privileged from arrest" during the legislative session unless in cases of treason, felony or breach of the peace.
The immunity is meant to protect lawmakers from missing votes because of arbitrary arrests, perhaps at the behest of political opponents.
There are also federal and state provisions immunizing speech and debate taken as part of the legislative process. Lawmakers can't be sued or arrested for those actions.
What do attorneys say about immunity?
Attorneys who specialize in constitutional matters have cautioned that immunity is not absolute and may not apply to speeding tickets or Mosley's situation.
Paul Bender, an attorney and law professor at Arizona State University, said he suspects driving nearly 100 mph while weaving in and out of traffic, as Mosley did, could be considered a breach of the peace, and thus an activity that would not be covered by legislative immunity.
"Mosley was also not privileged from receiving a speeding ticket, so long as he didn't have to go to court during the legislative session," Bender said in an email.
Joe Kanefield, an attorney with Ballard Spahr in Phoenix, said the immunity is "not a get-out-of-jail-free card in any respect" and should be exercised by lawmakers with caution when they interact with law enforcement.
Kory Langhofer, an attorney with Statecraft Law, said the purpose is to make sure lawmakers aren’t taken away from their work for civil matters than can wait until after the session.
“It’s pretty narrow, narrower than most legislators would want it to be,” he said.
What can be done to change it?
Getting rid of, or adding limitations to, legislative immunity would be an uphill battle in Arizona.
To change the state Constitution to alter or remove legislative immunity, a majority of members in both legislative chambers would need to vote in favor of a resolution. That resolution would then go to voters, who could affirm or deny the change.
Alternatively, voters could take it upon themselves to change the Constitution. That would require people to gather nearly 226,000 valid signatures to place the issue on the ballot.
Gov. Doug Ducey hasn't weighed in on legislative immunity or how it's interpreted, but said Mosley should slow down.
“Those aren’t speeds that are safe for any driver on our freeways, and I don’t think anybody’s above the law,” Ducey told reporters Wednesday.
But Ducey declined to say Mosley should resign from office.
“That’s going to be up to the voters,” he said.
Contributing: Richard Ruelas, Arizona Republic Follow Rachel Leingang on Twitter: @rachelleingang.