Lawmakers Are Not Above the Law

Hillary Chambers, KLJ Staff Editor

Many of our fellow Kentucky citizens were disturbed when a member of the state legislature, charged with DUI, defended himself by claiming he was immune from prosecution.[1] On January 6, 2015, the first day of the legislative session, Senator Brandon Smith was charged with DUI.[2] To many people’s surprise, he filed a motion to dismiss citing Section 43 of the Kentucky Constitution, which says that legislators are “privileged from arrest during their attendance of their respective Houses, and in going to and returning from the same.”[3] Although Smith subsequently asked his attorney to withdraw the motion, the episode sparked interest in the immunity clause he initially sought to use in order to have his case dismissed.[4] What was the clause intended to do? Do we still need the clause in our Constitution? Do we still want the clause in our Constitution?

In Swope v. Commonwealth, the Kentucky Supreme Court made it clear that “[Section] 43 of the Constitution was never intended as a sanctuary for members who had committed a public offense.”[5] In that case, a member of the 1964 General Assembly of Kentucky was charged with breach of the peace after getting into a dispute with someone upon his return from Frankfort.[6] Similar to Smith’s withdrawn motion, William Swope claimed the court did not have jurisdiction to try the offense of breach of the peace against a member of the General Assembly under the provisions of Section 43.[7] The court considered parliamentary privilege in England to decide whether Swope should be immune from prosecution.[8] The crimes of treason, felony, and breach of the peace are expressly excluded from the immunity provided by Section 43; in England, those words were intended to exclude all crimes from the operation of parliamentary privilege, meaning only prosecutions of a civil nature were protected.[9]

When the Constitution was adopted, there were state laws authorizing imprisonment for debt in aid of civil process, and the exemptions in state and federal Constitutions were meant to provide immunity in those cases.[10] Today, there is no such law in Kentucky.[11] Therefore, the reason for incorporating Section 43 in the Constitution has virtually disappeared.[12] In Swope, the state legislator was not immune from prosecution, and the judgment convicting him of breach of the peace was affirmed.[13] The lack of case law on this issue shows that not many legislators try to utilize or abuse the immunity clause, but what if Senator Smith would have gone forward with his initial plan and been successful? It would have left many outraged. Most would tend to agree with Kentucky Senate President Robert Stivers when he said, “[n]o member of the general assembly is above the law.”[14] After taking a look at why the clause was incorporated in the Constitution and seeing that the purposes have disappeared, it becomes apparent that Section 43 serves no real purpose. If there were more widespread abuse of the clause, it is likely there would be a stronger push to repeal Section 43 altogether. A law that was necessary in 1891 is no longer necessary in 2015.


[i] See Kentucky Lawmaker Wants DUI Charge Dismissed Based on Rule From 1891, Huffington Post, Jan. 26, 2015, http://www.huffingtonpost.com/2015/01/26/

brandon-smith-dui_n_6550090.html.

[ii] Id.

[iii] Id.

[iv] State Senator to Withdraw Motion in DUI Case, The Courier-Journal, Jan. 28, 2015,

http://www.courier-journal.com/story/news/politics/2015/01/28/brandon-smith-dui/22454591/.

[v] Swope v. Com., 385 S.W.2d 57, 59 (Ky. 1964).

[vi] Id. at 57.

[vii] Id.

[viii] Id. at 58.

[ix] Id.

[x] Id.

[xi] Id.

[xii] Id.

[xiii] Id. at 59.

[xiv] Kentucky Lawmaker Wants DUI Charge Dismissed Based on Rule From 1891, Huffington Post, Jan. 26, 2015, http://www.huffingtonpost.com/2015/01/26/

brandon-smith-dui_n_6550090.html.