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Arizona Senator Bundgaard freeway incident stirs debate

by Mary K. Reinhart - Mar. 5, 2011 12:00 AM

The Arizona Republic

Among the issues arising from the freeway altercation between Senate Majority Leader Scott Bundgaard and his now ex-girlfriend, what amounts to appropriate use of legislative immunity from arrest may prove the most difficult to sort out.

Questions persist about whether Bundgaard abused the constitutional provision of legislative privilege to avoid arrest on Feb. 25.

Legal experts differ on the finer points of the limited immunity, its origins and its modern meaning. But they generally agree that Phoenix police could have arrested Bundgaard, a case in which police said both he and Aubrey Ballard showed signs of assault.

Police agencies have handled the issue in various ways over the years. Authorities note that each case is unique and subject to the best judgment of officers on the scene.

What's clear is that the legal privilege enjoyed while the state Legislature is in session, no matter how it may be interpreted or applied, doesn't prevent legislators from being prosecuted for a crime.

"The overriding thing to remember is, just because the individual did not go to jail that night does not mean that he has totally walked away from any charges," Phoenix police Sgt. Tommy Thompson said of Bundgaard. "Those charges will be submitted to the city prosecutor for review."

The Bundgaard case

Although Bundgaard has said he didn't invoke his legislative privilege when police handcuffed him along Arizona 51, police say otherwise.

The Peoria Republican cited the provision in the Arizona Constitution by name, Thompson said.

"He said that he was a senator and because the Legislature was in session, that under Article 4 of the Arizona Constitution that he was not to be arrested," Thompson said.

After checking with legal counsel, officers released Bundgaard. Ballard was arrested on suspicion of domestic violence and jailed overnight.

The Constitution says lawmakers are "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 15 days before the commencement of each session."

Some Senate Democrats say they believe Bundgaard may have abused legislative immunity from arrest, and they are considering whether to call for an ethics investigation.

Domestic-violence charges would be misdemeanors, however, which wouldn't appear to fall under the Constitution's exceptions for a felony. Treason would not be applicable.

That leaves breach of the peace.

Breach of the peace

Legal experts agree that scuffling along an urban freeway could fall under the broad constructs of "breach of the peace."

The common-law offense is generally defined as anything that endangers or disturbs public peace and order, such as disorderly conduct.

"Certainly, when there is an altercation on a public roadway . . . if you're going to list all the kinds of things that would be appropriately categorized as breach of the peace, this would be," said Larry Hammond, a Phoenix defense attorney.

Hammond said police typically arrest at least one person in a domestic-violence incident, even if only on suspicion of disorderly conduct, as a way to diffuse the situation.

But Thompson said officers investigating the Bundgaard-Ballard fight determined that it didn't meet the threshold.

"The best information the officers had at the time was that it didn't constitute a breach of the peace," Thompson said. He said each case is considered separately, based on the circumstances.

In June 2008, Phoenix police arrested then-Rep. Mark DeSimone on the last day of the legislative session after his wife called 911 to say he had hit her in the face. DeSimone, a Phoenix Democrat, resigned and agreed to undergo counseling in exchange for dismissal of a misdemeanor assault charge.

The Tucson Police Department includes a section on "immunity from arrest" in its general operating procedures. It states that a breach of the peace would include assault, domestic violence and disorderly conduct but not drunken driving.

Thompson said Phoenix police have no such provision, but it's his understanding that legislative privilege would not extend to drunken driving.

In March 2007, Rep. Trish Groe was arrested on suspicion of drunken driving while on her way back to Lake Havasu City from the state Capitol. Groe took a one-month leave of absence to complete an in-patient alcohol-treatment program and later served a 10-day jail sentence after pleading to a misdemeanor DUI.

On the other hand, Gov. Jan Brewer avoided arrest in 1988 after she was involved in a car crash. Brewer, then a state senator, told Department of Public Safety officers she had been drinking, but they released her after determining she was a lawmaker.

Law officers learn about legislative privileges during their training, Thompson said, but almost never practice it.

"To say that we encounter it very rarely would be an understatement," Thompson said, adding that he had never faced a legislative-privilege case in 27 years of policing. The conundrum

The Arizona Constitution's provision on legislative privilege from arrest borrows from the U.S. Constitution, but it's not identical. Both stem from common law and were intended to ensure lawmakers weren't prevented from voting and other legislative duties.

Neither the Arizona Supreme Court nor the state Attorney General's Office has offered an opinion directly on legislative privilege from arrest.

The only state Supreme Court ruling is a 2006 case involving Rep. David Burnell Smith, R-Scottsdale, who sued the Arizona Citizens Clean Elections Commission after it removed him from office for campaign-finance law violations. The state's high court said Burnell Smith couldn't claim legislative privilege to stop a ruling on a lawsuit he had filed.

Although there was little background on the passage of Article 4, the court said, it appeared that it was intended to "prevent an arrest, either criminal or civil, that would prevent a legislator from attending session."

Dan Barr, a Phoenix attorney specializing in constitutional law, said the state and federal language are centuries-old anachronisms that have no modern-day practical application.

The U.S. Supreme Court has ruled twice, in 1908 and in 1934, that the legislative privilege was intended only to prevent arrests in civil cases back when such arrests were common.

"The courts are very consistent that it doesn't apply to legislators' criminal acts," Barr said.

It doesn't matter what the U.S. Supreme Court has ruled, said Paul Bender, a former Arizona State University law-school dean. The Arizona Supreme Court can, and frequently has, deviated from federal rulings to give Arizona citizens broader constitutional rights. The state's high court, for example, allowed media access to criminal trials long before the U.S. Supreme Court did.

"This is an individual-rights case," he said. "There's nothing in the U.S. Constitution stopping Arizona from giving its legislators a larger privilege from arrest."

Bender said he believes Article 4 clearly gives state legislators privilege from arrest during the session in misdemeanor cases, such as domestic violence.

But he agreed that the freeway fracas between Bundgaard and Ballard appeared to be a breach of the peace.