LEGISLATIVE: MEMBERS: Privilege from arrest during session does not apply to criminal conduct. Minn. Const. art. IV, § 10. 280l-1 (Cr. Ref. 86a-16)
The Honorable Ron Latz April 22, 2014 Page 2
also stated: "As members can only be arrested, during a session of the legislature, for treason, felony, and breach of the peace, does it not necessarily follow that they could not be anested during such time for the most serious misdemeanors, unless such ones as may be included in the term 'breach of the peace?"' Id.
Thereafter, in 1898, a member of the Wisconsin Assembly was arrested and charged with attempting to bribe a Milwaukee alderman. State v. Polacheck 101 Wis. 427, 77 N.W. 708 (Wis. 1898). The assemblyman later tried to retroactively assert a legislative privilege against the bribery charge based upon a provision of the Wisconsin Constitution similar to Art. IV, Sec. 10. While finding that the assemblyman waived the privilege by not timely asserting it, the Wisconsin Supreme Court also found that the privilege from arrest in the Wisconsin Constitution for "all cases, except treason, felony and breach of the peace" only applied to offenses that were felonies at the time the state constitution was adopted in 1848. Polacheck, 77 N.W. at 709. Over 100 years later, in State v. Burke, 258 \Vis. 2d 832, 653 N.W.2d 922 (Wis. Ct. App. 2002), the Wisconsin Court of Appeals rejected the Polacheck reasoning, finding that legislators had no privilege from criminal arrest and that the privilege exception for "treason, felony and breach of the peace" was intended to mean "all crimes." Burke, 258 Wis. at 841, 653 N.W.2d at 927.
In Walsh, supra, the Minnesota Supreme Court found that the language of Art. IV, Sec. 10 is "substantially the same" as the similar provision in the U.S. Constitution that applies to members of Congress. Walsh, 57 N.W. at 215. Al1. I, Sec. 6, cl. 1 of the U.S. Constitution provides that members of Congress "in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Anest during their Attendance at the Session of their respective Houses .... "
The United States Supreme Court construed the federal constitutional privilege from arrest several times after Walsh was decided. In Williamson v. United States, 207 U.S. 425 (1908), the Supreme Court held that the phrase "treason, felony and breach of the peace" in the U.S. Constitution "excepts from the operation of the privilege all criminal offenses." Williamson, 207 U.S. at 446. The Com1 reasoned that the privilege only applies to "prosecutions of a civil nature." Id. at 438. Thereafter, in Long v. Ansell, 293 U.S. 76, 83 (1934), the Supreme Court again found that the legislative privilege from arrest only applies to "anests in civil suits," which were "still common in America" when the U.S. Constitution was adopted. In Gravel v. United States., 408 U.S. 606, 615 (1972), the Supreme Com1 reiterated that "the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws." As noted in the House Research Depa11ment opinion, there is also substantial case law authority from other states that interpret similar provisions in state constitutions to exclude a privilege from arrest for criminal activity.
Since Walsh, no Minnesota appellate court has construed Art. IV, Sec. 10. If the Minnesota appellate courts were presented with the issue, it is highly likely they would adopt the majority view set forth in modern cases and find no legislative privilege from arrest for DWis or other criminal activity under the Minnesota Constitution.
The Honorable Ron Latz April 22, 2014 Page 3
Having said this, I should note that, since the 1980s, the Minnesota Secretary of State has issued a wallet-sized personal ce11ificate to each Minnesota legislator stating that the legislator is entitled to a privilege from "arrest" and quoting Art. IV, Sec. 10 of the Minnesota Constitution. A copy is attached as Exhibit A. Because legislators are issued an election certificate to certify their election, Minn. Stat. § 204C.40, subd. 1, it appears that the wallet-sized ce11ificate card must have been intended to serve some additional purpose, presumably to be used in a situation involving an "arrest."
Furthe1more, as noted in the House Research opinion of April 9, it is well-known that at least a few legislators have invoked the privilege 'vhen arrested for misdemeanor DWI driving offenses.
As you know, opinions of the Attorney General do not have the force of law. County of Hennepin v. County of Houston, 39 N.W.2d 858, 861 (Minn. 1949). Under the circumstances, I believe that it would be helpful and beneficial for the Minnesota Legislature to give additional direction to legislative members, the public, law enforcement, and the courts by enacting legislation to clarify that state legislators have no immunity from anest for criminal activity, including the crime of driving while intoxicated. Based upon the above analysis, I believe that the Minnesota appellate courts would uphold the constitutionality of such a statute. See Walsh, 57 N.\V. at 213 ("All citizens should be deemed to stand equal in their rights before the law. This country recognizes no special privileged class ... when a citizen or officer claims such a privilege, it is his duty to show affirmatively and conclusively that he is privileged above other of his fellow citizens.").
I thank you for your April 10 letter. If you have any questions, please let me know.
7:[2 LORI SWANSON Attorney General
CONSTITUTION OFTHE STATE OF MINNESOTA ARTICLE IV, SECTION 10:
This is to certify that State Representative PRIVILEGED FROM ARREST. Sec. 10. The membe~ of each Na~~ house in all cases excepttreason, felony and breach of the is entitled to the pi::vi~ct es s·. u!d:::m ·''.le back of this peace, shall be privileged from arrest during the session of card until January 2l·15. . their respective houses and in going to or returning from the same. For any speech or debate In either house they shall not be questioned In any other place.
Mlnnesota Secretary of State Front of legislative privilege from arrest card Back of legislative privilege from arrest card
Exhibit A