Can a Minnesota legislator avoid arrest for DWI or other criminal conduct during a legislative session by invoking the 'privilege from arrest' clause in the state constitution?

Plain-English summary

Minnesota Senator Ron Latz asked the Attorney General to address a long-running ambiguity: does Article IV, Section 10 of the Minnesota Constitution, which says legislators "in all cases except treason, felony and breach of the peace, be privileged from arrest during the session," let a legislator escape arrest for criminal offenses like driving while intoxicated?

The constitutional text is old and uses old terminology. "Breach of the peace" once had a narrower meaning than today's idea of "any crime that disturbs public order." The Minnesota Supreme Court had touched the question once, back in 1893 in Walsh, but had not returned to it. Meanwhile a few legislators had reportedly pulled out wallet-sized certificates from the Secretary of State, claiming the privilege when stopped for DWI.

The AG concluded that there is no privilege from arrest for criminal activity. The U.S. Supreme Court had, in three modern cases (Williamson v. United States (1908), Long v. Ansell (1934), and Gravel v. United States (1972)), construed the parallel federal Speech-or-Debate language to cover only civil arrests. Williamson held that "treason, felony and breach of the peace" "excepts from the operation of the privilege all criminal offenses." Long v. Ansell reaffirmed that the privilege applies only to civil suits, which were common at the founding but obscure today. Wisconsin's appellate courts had reached the same conclusion in State v. Burke (2002), rejecting an older Wisconsin opinion that had read the parallel state-constitutional language more narrowly.

Because the Minnesota Supreme Court in Walsh had said the state and federal language was "substantially the same," the AG predicted that Minnesota courts, if presented with the question, would adopt the modern federal reading and reject any criminal-arrest immunity. The opinion recommended that the legislature enact a clarifying statute to dispel any remaining confusion.

The opinion also flagged a practical oddity: the Secretary of State had been issuing wallet-sized "privilege from arrest" certificates since the 1980s, with the constitutional text printed on the back. The opinion implied (without saying directly) that those cards may have outlived whatever useful purpose they once served, since the AG read the privilege to be limited to civil arrests that essentially do not happen anymore.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context: what the AG concluded

The AG opinion read Article IV, Section 10 alongside its federal counterpart in Article I, Section 6 of the U.S. Constitution. The Minnesota Supreme Court in Walsh (an 1893 decision the opinion cites as 57 N.W. 213) had described the state and federal provisions as "substantially the same," and had also articulated a broader principle that "all citizens should be deemed to stand equal in their rights before the law" and that anyone claiming a privilege bears the burden of "show[ing] affirmatively and conclusively that he is privileged above other of his fellow citizens."

After Walsh, the U.S. Supreme Court returned to the federal privilege three times:

• Williamson v. United States, 207 U.S. 425 (1908), held that the phrase "treason, felony and breach of the peace" "excepts from the operation of the privilege all criminal offenses," reasoning that the privilege "only applies to prosecutions of a civil nature."
• Long v. Ansell, 293 U.S. 76 (1934), reaffirmed that the legislative privilege from arrest applies only to "arrests in civil suits."
• Gravel v. United States, 408 U.S. 606 (1972), reiterated that "the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws."

Wisconsin had wrestled with the same question. State v. Polacheck, 101 Wis. 427, 77 N.W. 708 (Wis. 1898), had reasoned that the Wisconsin constitution's exception for "treason, felony and breach of the peace" applied only to offenses that were felonies in 1848, when the Wisconsin constitution was adopted. Over a century later, State v. Burke, 258 Wis. 2d 832, 653 N.W.2d 922 (Wis. Ct. App. 2002), rejected the Polacheck reading and held that the exception meant "all crimes," leaving no criminal-arrest immunity for Wisconsin legislators.

The AG predicted that Minnesota appellate courts, faced with the same question and Walsh's recognition of the federal parallel, would follow the modern majority view. No Minnesota appellate court has, since Walsh, construed Article IV, Section 10. Until they do, the AG opinion is the most authoritative reading available.

The opinion's recommendation: the legislature should pass a clarifying statute saying legislators have no immunity from arrest for criminal activity, including DWI. The opinion notes that AG opinions "do not have the force of law" (citing County of Hennepin v. County of Houston, 39 N.W.2d 858, 861 (Minn. 1949)), so any binding resolution would need either legislative action or a court ruling.

The opinion also addressed the wallet-sized certificate. Since the 1980s the Minnesota Secretary of State had been issuing each legislator a personal certificate quoting Article IV, Section 10 and asserting the privilege from "arrest." Because legislators are also issued an election certificate to certify their election (Minn. Stat. § 204C.40, subd. 1), the AG inferred that the additional wallet card "must have been intended to serve some additional purpose, presumably to be used in a situation involving an 'arrest.'" The opinion mentions, "it is well-known that at least a few legislators have invoked the privilege when arrested for misdemeanor DWI driving offenses." The card itself was not invalidated, but the reasoning in the opinion strongly implies it overstates the legal privilege.

Common questions

Q: If a Minnesota legislator is stopped for DWI during the legislative session, can they refuse to be arrested?
A: Under the AG's reading, no. The privilege from arrest in Article IV, Section 10 covers only civil arrests, which are largely obsolete. A DWI arrest is a criminal arrest and is not within the privilege.

Q: What about the wallet card the Secretary of State has issued to legislators?
A: The opinion mentioned that the Secretary of State has issued these cards since the 1980s. The card quotes the constitutional text. Under the AG's reading the card does not give a legislator immunity from criminal arrest; it simply states the constitutional language, which has been narrowly construed.

Q: Is the AG opinion binding on Minnesota courts?
A: No. AG opinions are advisory. The Minnesota Supreme Court in County of Hennepin v. County of Houston held that AG opinions do not have the force of law. A trial court would not be bound by this opinion, though it would likely find the reasoning persuasive.

Q: Has the Minnesota legislature acted on the AG's recommendation since 2014?
A: The opinion recommended a clarifying statute. Anyone applying this opinion today should check the current text of Minn. Stat. ch. 3 (legislature) and any post-2014 legislative enactments to see whether the recommendation was followed.

Q: What about civil arrests? The opinion says those are different.
A: Yes. The privilege from arrest as read by the modern federal cases (and as the AG predicted Minnesota courts would adopt) covers only civil arrests, which were common in the 18th and 19th centuries but are essentially extinct in modern American practice. The privilege thus has very little operational effect today.

Q: What if the legislator is going to or returning from the session and is stopped?
A: The constitutional text covers privilege "during the session of their respective houses and in going to or returning from the same." Under the AG's reading, that temporal scope still does not reach criminal arrests. It only protects against civil arrests during those times.

Background and statutory framework

Article IV, Section 10 of the Minnesota Constitution provides: "The members of each house in all cases except treason, felony and breach of the peace, shall be privileged from arrest during the session of 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."

The language tracks Article I, Section 6, Clause 1 of the U.S. Constitution, which provides essentially the same privilege for members of Congress. The Minnesota Supreme Court in Walsh (1893) treated the two as substantially the same.

The "treason, felony and breach of the peace" exception is the textual vehicle through which the U.S. Supreme Court and Wisconsin Court of Appeals (after Burke) read all criminal offenses out of the privilege.

The opinion is signed by Attorney General Lori Swanson.

Citations and references

Constitutional and statutory:
- Minn. Const. art. IV, § 10
- U.S. Const. art. I, § 6, cl. 1
- Minn. Stat. § 204C.40, subd. 1

Cases:
- Walsh, 57 N.W. 213 (Minn. 1893) (cited as referenced in the opinion)
- State v. Polacheck, 101 Wis. 427, 77 N.W. 708 (Wis. 1898)
- State v. Burke, 258 Wis. 2d 832, 653 N.W.2d 922 (Wis. Ct. App. 2002)
- Williamson v. United States, 207 U.S. 425 (1908)
- Long v. Ansell, 293 U.S. 76 (1934)
- Gravel v. United States, 408 U.S. 606 (1972)
- County of Hennepin v. County of Houston, 39 N.W.2d 858 (Minn. 1949)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/280l1-20140422.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

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

[The opening of the opinion as scanned by Sofya did not include the introductory paragraphs. The reproduced text below begins mid-discussion.]

[The 1893 Walsh opinion]... 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 arrested 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 Wis. 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. Art. 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 Arrest 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 Court 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 "arrests 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 Court 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 Department 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.

Having said this, I should note that, since the 1980s, the Minnesota Secretary of State has issued a wallet-sized personal certificate 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 certificate card must have been intended to serve some additional purpose, presumably to be used in a situation involving an "arrest."

Furthermore, as noted in the House Research opinion of April 9, it is well-known that at least a few legislators have invoked the privilege when 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 arrest 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.W. 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.

LORI SWANSON
Attorney General

Exhibit A: A wallet card issued by the Minnesota Secretary of State quoting Article IV, Section 10 of the Minnesota Constitution, captioned "Privileged From Arrest."