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AGO 1979 No. 1 - January 05, 1979
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATORS ‑- MOTOR VEHICLES ‑- ARREST OF LEGISLATORS FOR TRAFFIC OFFENSES

Although the privilege from arrest in Article II, § 16 of the Washington Constitution extends beyond the term of a legislative session, it relates to the possibility of civil arrest only and is not a privilege from arrest for the commission of a crime; therefore, Article II, § 16 does not preclude the arrest of a member of the Washington State Legislature for the commission of a traffic offense within the purview of RCW 46.61.010.

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                                                                  January 5, 1979

Honorable Paul Pruitt
State Representative, 34th Dist.
7537 ‑ 31st S.W.
Seattle, Washington 98126

                                                                                                                   Cite as:  AGO 1979 No. 1

Dear Sir:

            By letter previously acknowledged you directed our attention to Article II, § 16 of the Washington State Constitution which provides that:

            "Members of the legislature shall be privileged from arrest in all cases except treason, felony and breach of the peace; 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."

            You then requested our opinion on the following two question[s]:

            (1) Does Article II, § 16, supra, preclude the arrest of a member of the Washington State Legislature for the commission of a traffic offense within the purview of RCW 46.61.010?

             [[Orig. Op. Page 2]]

            (2) Without regard to the answer to question (1),

                        ". . . are any such legislative immunities limited to when the legislature is in actual session, or to when members are on official legislative business, or are such immunities applicable at all times?"

            We answer your first question in the negative and your second question as set forth in our analysis.

                                                                     ANALYSIS

            In essence, as indicated in your letter, your request calls upon us to review and reconsider a previous attorney general's opinion which was issued by this office some years ago pursuant to a letter dated March 18, 1955, to then State Representative Leonard A. Sawyer.  In that opinion (copy enclosed) the following conclusion was stated:

            "We conclude from an evaluation of the language of the constitution, the reported cases, the historical background and from a consideration of the purpose sought to be accomplished, that legislators are immune from arrest for minor infractions of the law, such as traffic violations. . . ."

            Question (1):

            In stating your first question we have made specific reference to the provisions of RCW 46.61.010 with the thought that by so doing we might best highlight and focus on the underlying legal issue raised.  This section of the state motor vehicle code, as most recently amended by § 1, chapter 95, Laws of 1975-76, 2nd Ex. Sess., reads in material part as follows:

            "Failure to perform any act required in this chapter or performance of any act forbidden by this chapter or violation of any local ordinance relating to traffic, parking, standing, stopping, and pedestrian offenses is a misdemeanor.  A misdemeanor under this chapter shall be  [[Orig. Op. Page 3]] punishable by imposition of a fine not to exceed two hundred fifty dollars, and shall not be punishable by confinement in any jail or correctional institution. . . ." (Emphasis supplied)

            Following the passage of the legislature's 1976 amendment to this statute we advised, in AGO 1976 No. 19, that by reason of the above‑underscored express language thereof, declaring all traffic violations to be misdemeanors regardless of whether both a fine and jail term, or only a fine could be imposed:

            "All traffic offenses covered by RCW 46.61.010, as amended by § 1, chapter 95, Laws of 1975-76, 2nd Ex. Sess., including those for which no term of confinement may be imposed, nevertheless constitute crimes (misdemeanors)for which an individual may be arrested and prosecuted in the normal manner provided for by law."  (Emphasis supplied)

            Given the foregoing proposition the question here raised, quite simply, is whether the provisions of Article II, § 16 of our state constitution (as above quoted) nevertheless have the effect of immunizing incumbent members of the state legislature from such arrest and prosecution.  Based upon an overwhelming weight of authority from other jurisdictions having comparable constitutional provisions we now answer in the negative, reversing the above‑noted earlier opinion of this office on the question.1/

             Both the United States Constitution and the constitutions of virtually every other state contain congressional or legislative immunity provisions like our Article II, § 16,supra.  Moreover, while those provisions differ somewhat from the standpoint of the time frame to which the privilege attaches, they are all identical in one very critical respect; namely, their uniform  [[Orig. Op. Page 4]] exclusion of ". . . treason, felony and breach of the peace, . . ." from the scope of the privilege.  Thus, for example, we find in Article I, § 6 of the United States Constitution the following provision:

            "The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.  They shall in all cases,except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.

            ". . ."  (Emphasis supplied)

            Those same three exceptions, and those alone, also appear in the constitutions of California, Michigan, Wisconsin, Kentucky, Rhode Island, South Carolina and New York, in all of which states there exist reported cases construing the scope and extent of the privilege.2/    In only one of those jurisdictions, however, has the court indicated (as did this office in 1955) that certain "minor" criminal offenses do not constitute either treason, a felony or, most importantly, a breach of the peace.  See,State ex rel. Isenring v. Polacheck, 101 Wis. 427, 77 N.W. 708 (1898).  Moreover, even that one decision to the contrary was really only dicta since the case actually dealt with an offense which wasstatutorily a felony‑-and not a misdemeanor.  However, because it was not a crime at all at common law the Wisconsin court reasoned that it was not a "felony" under the constitution and allowed the arrested legislator to invoke a claim of immunity.

            Conversely, in two separate cases the United States Supreme Court, in considering the scope of Article I, § 6 of the federal constitution,supra, has unequivocably held that the words "treason, felony and breach of the peace," as understood at the time of adoption of the constitution, must be taken to exclude from the privilege from arrest ". . . all arrests for all criminal offenses."  See,Long v. Ansell, 293 U.S. 76, 79 L.Ed. 208, 55 S.Ct. 21 (1934); and Williamson v. United States, 207 U.S. 425, 52 L.Ed. 278, 28 S.Ct. 163 (1907).  Likewise, state  [[Orig. Op. Page 5]] appellate court cases to the same effect (construing the identical terminology of their respective state constitutions) includeSwope v. Commonwealth, Ky., 385 S.W.2d 57 (1964);In Re Emmett, 120 Cal.App. 349, 7 P.2d 1096 (1932); andIn Re Wilkowski, 270 Mich. 687, 259 N.W. 658 (1935).  See also, 5 Am.Jur.2d, Arrests, § 104, supra, and the relevant annotations which are to be found in 1 A.L.R. 1156,et seq., 95 L.Ed. 1030 at 1031 and 23 L.Ed.2d 915 at 919,et seq.

            As explained by the court in Williamson v. United States, supra, the reason for this conclusion is largely historical.  It would unduly lengthen this opinion to quote, in full, the court's extensive documentation of that premise as it appears in 207 U.S. at pp. 436-446.  Instead, it would here seem to suffice to quote only the following pertinent excerpt (wherein the court's ultimate conclusion may be found) from that portion of the opinion:

            "'. . . The question therefore arises whether the exception of treason, felony, or breach of the peace, being stated in express terms in these constitutions, is to be understood strictly, and confined to cases coming within the technical definitions of those offenses, or whether it is used as a compendious expression to denote all criminal cases of every description.  In favor of the latter opinion, it may be said, first, there can be no doubt that the framers of these constitutions intended to secure the privilege in question upon as reasonable and intelligible a foundation as it existed by the parliamentary and common law of England; in short, that, as in a multitude of other cases, they intended to adopt, with the words, the full meaning which had been given to them by usage and authoritative construction; and, second, that the word "felony," which alone gives rise to any doubt, "has derived so many meanings from so many parts of the common law, and so many statutes in England, and has got to be used in such a vast number of different senses, that it is now impossible to know precisely in what sense we are to understand it; and, consequently, that unless it is allowed to have such a signification as, with the other  [[Orig. Op. Page 6]] words of the exception, will cover the whole extent of criminal matters, it must be rejected altogether for uncertainty, or, at least, restricted to a very few cases.  These reasons, alone, though others might be added, are sufficient to establish the point that the terms "treason, felony, and breach of the peace," as used in our constitutions, embrace all criminal cases and proceedings whatsoever. . . ."

            We would readily acknowledge that this now heavily favored interpretation of the sort of constitutional provision with which we are here concerned is subject to criticism from the somewhat mechanical standpoint that it largely renders the privilege from arrest meaningless‑-the concept of a civil (as opposed to criminal) arrest being largely an historical anachronism.  On the other hand, in support of this approach there is, in our opinion, the overwhelming argument that it affords a degree of certainty which is totally absent from the opposing view that, in effect, each misdemeanor must be judged and evaluated on the basis of all of the surrounding facts in order to determine whether or not it constitutes a breach of the peace.  Furthermore, the mere number of decided cases in which what we may here refer to as theWilliamson rule has been adopted by other courts (versus the single Wisconsin case containing dicta to the contrary) makes it highly unlikely to us that the Washington court would go along with the minority view inferentially expressed in that one early case,State ex rel. Isenring v. Polacheck, supra.

            Question (2):

            Having so answered your first question in the negative we turn to your second which, here repeated for ease of reference, is as follows:

            Without regard to the answer to question (1),

            ". . . are any such legislative immunities limited to when the legislature is in actual session, or to when members are on official legislative business, or are such immunities applicable at all times?"

             [[Orig. Op. Page 7]]

            Strictly speaking, the answer to this question is that under the Washington Constitution (unlike the federal constitution and those of most other states) the "privilege" from arrest extends beyond the term of a given legislative session.  Once again, Article II, § 16, supra, reads as follows:

            "Members of the legislature shall be privileged from arrest in all cases except treason, felony and breach of the peace; they shall not be subject to any civil processduring the session of the legislature, nor for fifteen days next before the commencement of each session."  (Emphasis supplied)

            The underscored phrase, grammatically speaking, only applies to the second clause of the constitution involving immunity from civil process.  In view of our negative answer to question (1), however, it will readily be seen that this distinction is of very little practical importance.  A member of the legislature may be arrested for the commission of any crime, including a traffic offense constituting a misdemeanor under RCW 46.61.010, at any time‑-regardless of whether or not the legislature is in session.  That is so because, under the majority view which we have here adopted, the constitutional privilege does not apply to any form of criminal conduct by a legislator.  Conversely, under the second clause of the subject section of the constitution a legislator is immune fromcivil process ". . . during the session of the legislature . . ." and, as well, for 15 days next before the commencement of each such session.  Cf.,Seamans v. Walgren, 82 Wn.2d 771, 514 P.2d 166 (1973).

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Notably, none of the cases from other jurisdictions (there are, at present, no Washington cases) to which we will hereinafter refer, including the single supportive case from Wisconsin, were even cited in this 1955 attorney general's opinion.

2/See 5 Am.Jur.2d, Arrest, § 104 and cases cited therein.

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