Op. Atty. Gen 280l-1 (Cr. Ref. 86a-16)

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