In fact, it's a virtually unassailable privilege. For more than four centuries, dating back to the 17th-century English struggle of parliament versus crown, the doctrine of legislative immunity has stood as a bulwark against the encroachment of kings, presidents and governors. There are immunity clauses in the U.S. Constitution and in most state constitutions. Designed to safeguard the legislative branch from intimidation at the hands of its executive rival, they are crucial to the whole idea of separation of powers.
Four years ago, however, this high-minded principle hit rock bottom. Arrested during a nocturnal stroll in a Richmond city park, Virginia state Delegate Robert Nelms exercised his archaic legislative right, not in a gallant attempt to fend off a political assault but to evade a charge of indecent exposure.
According to Nelms' account, he had merely stepped off a hiking path to relieve himself in the bushes when an overzealous undercover vice officer happened upon him. Local police, on the other hand, saw things differently. To them, it was just one more lewd act in a park notorious for such activity.
The district court would have sorted it all out, except that Nelms viewed the incident as something more than a misguided-morals charge. In court papers, he described the whole episode as a violation of constitutional and statutory privilege. And sure enough, once he played the immunity card, the court said it had no choice but to dismiss the charges against him.
Virginia is not the only place where legislative immunity has been stretched to questionable limits. In recent years, lawmakers in a surprising number of states have found the privilege of immunity to be a convenient and creative refuge from charges that constitutional framers hardly could have envisioned.
In West Virginia, for example, one legislator claimed immunity from paying child support while the legislature was still in session. Another avoided testifying before a grand jury in an investigation into events that had transpired during his earlier tenure as state police superintendent. Elsewhere, the legislative-immunity defense has been used to dodge speeding tickets, to avoid drunk driving arrests and to delay a lawmaker's criminal sentencing.
"You've got over 7,000 legislators with a high percentage of them being new after each election, so you have a large percentage of people without an idea of what their privileges and immunities are," explains Peter Wattson, counsel to the Minnesota Senate. "It's not something you learn in high school or even in college. Very few people are familiar with this."
The overwhelming majority of legislators, of course, don't take the trouble to learn the nuances of the immunity defense. There's no reason to. What matters to them is that they have freedom of speech on the floor of their chamber--exactly the protection that the immunity clause was designed to ensure. As the courts see it, however, they actually have quite a bit more freedom than that. Minnesota's Wattson says there's perhaps one immunity case a year in that body, usually the result of a complicated legal dispute. Most often, he says, plaintiffs in civil cases want to bring in legislators to talk about the intent behind the measures they drafted. Legislators aren't required to discuss their intent, so they invoke legislative immunity. The main effect, in Wattson's view, is "to make bad use of the time of members of the legislature."
In one recent Minnesota case, tobacco companies sued the state Senate, seeking the private files of legislators and staff. The tobacco industry sought a half-century of legislative documents related to measures designed to tax or control tobacco products. Citing the immunity clause of the Minnesota Constitution, a district court denied that motion. Most other courts, acting in similar situations, have ruled the same way.
But defining just what constitutes legislative speech, duties and acts is an inexact science. After California state Senator Alan Robbins pleaded guilty to corruption charges in 1992, he was dismissed as a defendant in a civil racketeering suit precisely because he had admitted accepting bribes to sponsor legislation. Despite the "unworthy purpose," the federal court ruled, state legislators still have immunity for their official acts--and Robbins' sponsorship of legislation was undeniably an official act.
Even blackmail charges have been dismissed when the incident in question took place in the legislative arena. A few years ago, the Kansas Supreme Court upheld a lower court's dismissal of charges against a legislator who blackmailed another in an attempt to sway his vote. While the facts were not in dispute--the legislator called his colleague's wife and informed her that her husband was fraternizing with other women--the court found that the conduct was "within the legitimate legislative sphere" because it occurred on the House floor during an appropriations bill debate.
But if immunity seems like a license for legislators to do just about anything, that isn't quite true either. There are some forms of conduct that courts and legal experts are reluctant to protect. Three years ago, Mississippi state Representative Ed Ryan was arrested and pleaded guilty to a DUI charge during a legislative session. He later requested the attorney general's opinion on whether the immunity privilege might apply in drunk driving cases. The answer he received was that it didn't. Drunk driving was held to be a breach of the peace and therefore an exception to the immunity clause, along with such offenses as treason, felony and theft.
Equally creative ploys have been tried in other states. In Virginia in 1996, a clerk for the House of Delegates claimed legislative immunity after a drunk-driving incident, notwithstanding the fact that she was an aide, not an elected member. The judge didn't dismiss her claim of staff privilege, but he ruled against her anyway, deciding that she had breached the peace and was therefore unprotected.
Despite such rulings as these, however, law enforcement personnel in many states mistakenly believe that immunity protects legislators even from violations utterly unrelated to legislative work. In New Mexico two years ago, a state legislator escaped a speeding ticket because a supervisor told the officer involved that legislators were immune. This happened even though a 1993 attorney general's opinion declared the state constitution's privileges and immunities clause inapplicable to minor criminal offenses such as traffic violations. The state Public Safety Department then issued a clarifying memo to state troopers reminding them that legislators can be cited for speeding.
Not that legislators in New Mexico or any state routinely trot out the immunity clause to avoid traffic citations. Most of the time, they keep their privileges to themselves and simply pay the fine. The onslaught of bad publicity that usually results from the act of invoking immunity in a questionable situation makes it a dangerous tactic to use.
In Virginia, Robert Nelms never rebounded from his brush with the law and the immunity defense. Prosecutors reluctantly agreed to dismissal of the indecent exposure charge, but then sought the same charge from a grand jury. Nelms ultimately pleaded guilty and then drafted legislation to repeal the prohibition on the arrest of lawmakers when the General Assembly is in session. By then, however, it was too late. Hammered in the press and challenged for renomination, Nelms decided to retire.
Another Virginia lawmaker faced equally withering criticism last year over his frequent use of a privilege that permits attorney-legislators to delay court cases scheduled within 30 days of any legislative session. According to the Virginian-Pilot newspaper, Delegate William P. Robinson Jr. sought hundreds of delays--including some that he asked for while vacationing.
"The law gives me no relief," said one exasperated judge as he granted a Robinson request. "The Commonwealth may not like it. The court may not like it. The newspaper may not like it. But until the Assembly curtails its own privileges, there's nothing any of us can do."
Ultimately, Robinson apologized for misusing his legislative privilege. Bowing to public pressure, the Assembly took small steps toward closing the loophole. But there is continuing resistance to any wider-ranging immunity reform, and that appears to reflect a still- prevailing sentiment among lawmakers that membership should have its substantial privileges. In their view, the privileges aren't the problem--the legislator who misuses them is.
"It's not one of those things that we get a steady diet of," says Richard Cranwell, the Assembly's minority leader. "The continuances, as they relate to one legislator, have been a big deal. There's no question that the series of newspaper articles was instrumental in getting the rules changed." Most legislators remain opposed to scaling back the limits of legislative privilege based on the occasional scandal.
And quite a few legal scholars agree. "It's not unlike the protections we give to the press," says A.E. Dick Howard, a professor of constitutional law at the University of Virginia. "There may be some abuses, but I think that by and large we're better served by it. If immunities are abused by legislators, chances are they will pay the price at the polls. Obviously, the other side of the argument is that no man should be above the law. But I think the framers kept that in mind when they wrote it."
