LEGISLATORS IMAGINING PRIVILEGES

Lexington Herald-Leader (KY)
August 7, 2006
Author: Richard Day

I've been racking my brain, but I can't remember the last time I hid money in the freezer.

That's what U.S. Rep. William Jefferson, D-La., did.Court documents say Jefferson accepted bribes to help a Kentucky-based company obtain government contracts -- economic development's ugly side, I guess. The FBI followed the money to the congressman's freezer, and Jefferson cried "legislative immunity." Did the FBI have a right to conduct a warranted search of the congressman's office?

In a rare, yet unfortunate, act of bipartisan unity, Democratic and Republican lawmakers went berserk, complaining that they should be immune from searches by the executive branch.Jefferson called it "an outrageous intrusion in the separation of powers between the executive and legislative branches of government."

In a recent ABC News poll, 86 percent of Americans disagreed.

Privileges granted to Kentucky legislators -- such as Republican Senate President David Williams and Democratic Speaker of the House Jody Richards -- under Kentucky's Constitution are identical to those for members of the Congress.And like Jefferson, Williams and Richards want to reinvent the definition of legislative immunity.

Fortunately for us, the Kentucky Supreme Court recently ruled on the issue in Baker vs. Fletcher.The court illustrated the intent of the law, citing the English Bill of Rights and James Wilson, a Pennsylvania delegate to the Constitutional Convention who said, "In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense."

Virginia's experience with legislative immunity is instructive.

In 1660, Virginia Delegate Nathaniel Bacon was arrested by the royal governor as he traveled to the House of Burgesses to vote in opposition to the governor's wishes. Clearly, in such instances, legislative immunity is vital.

Unfortunately, in recent years Virginia lawmakers have used legislative immunity as a dodge. The Virginian-Pilot reported that state troopers were powerless to stop legislators from "driving as fast as they pleased on county roads outside Richmond."One delegate claimed immunity while he continued to use his radar detector, which is illegal in Virginia. Still another delegate claimed immunity as a defense against an indecent-exposure charge. Clearly, in such cases, legislative immunity is a coverup.

In a Kentucky case, Council for Better Education vs. Williams, Williams and Richards have not been deposed for almost a year now. They are claiming legislative immunity.

CBE vs. Williams questions whether the General Assembly has met its constitutional obligation to public education. The Supreme Court has already made clear in Rose vs. Council for Better Education that the General Assembly is solely responsible for maintaining an efficient system of schools and providing adequate resources to reach its rather ambitious goals.But the Council for Better Education, a collection of nearly all of the state's school districts, has filed suit asserting that the legislature has not met its constitutional mandate.

I understand that legislators should be protected from the resentment of the powerful, but I'm pretty sure that does not include Kentucky's children. There's a legitimate legal question; we need a ruling.

Rather than claiming immunity to protect legislative free-speech rights, Williams and Richards want to clam up. They want to misuse one section of the constitution to keep from having to do what another section requires of them.

We've come to expect this kind of legislative over-reaching from Williams. He's the legislative top dog in a state with a weak Republican governor, a confused opposition and a growing number of "right thinking" judges.Who can forget Williams' infamous assertion that "if 20 people in (the Senate) voted that someone was 30 years old (even though they aren't), no court in the land could overturn that."I can guess where his head is. "King David" has a nice ring to it.

But what is the explanation for Richards? Good stewardship of the public schools ought to be a bedrock principle of the Democratic Party, but I guess not.

The praise Republicans deserve for a 2006 regular session that improved the schools pales when one recalls the previous decade of neglect. And Democrats were largely responsible during most of Kentucky's history; that's a story with more lows than highs.

Clearly, Williams and Richards should not be deposed when the legislature is in session. But they have refused for a long time now, whether the General Assembly was in session or not. Shame on them. It's time to drop the pretense, take the immunity defense out of the freezer and do the people's business.

Caption:- Richard Day of Lexington is a former elementary school principal.
Edition: FinalSection: CommentaryPage: A9
Copyright (c) 2006 Lexington Herald-Leader
Record Number: 0608080135