THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, April 13, 1996 TAG: 9604130020
SECTION: FRONT PAGE: A12 EDITION: FINAL
TYPE: Editorial
LENGTH: Short : 48 lines
``I would love to be treated like everyone else,'' Suffolk Del. Robert Nelms lamented this week after a Richmond judge dismissed an indecent exposure charge brought against him while the legislature was in session.
Nelms suggests that ``legislative immunity'' is an inexorable force, compelling him to ask that his arrest be thrown out and forcing a judge to grant that request.
Clearly, the Richmond District Court judge was correct to dismiss Nelms' summons because of Article IV, Section 9 of the state constitution and a companion law. The pair state that legislators are not to be arrested or taken into custody while the General Assembly is in session, except for treason, felony or breach of the peace.
A political future is perhaps at stake here, but not state secrets or serious crime.
However, the question of whether a legislator is required by the Constitution to raise the legislative-immunity defense is far more debatable.
State legal scholars, well aware of the political ramifications in this case, are fuzzy on the issue. But several say there is a strong argument that legislative immunity is a right that can be waived.
The key question is whose interest the privilege is intended to serve - the individual legislator's or the broader public's. The protection clause is rooted in a time when there were legitimate fears that politically inspired arrests might threaten an individual lawmaker or disrupt the orderly conduct of the people's business.
If free speech or open debate or the flow of state business were at stake, then one would want legislative immunity protected at all costs. If only the personal interests of an individual lawmaker are at issue, as is the case here, then legislative immunity appears far less sacred.
The commonwealth's attorney's office intends to seek an indictment against Nelms when the grand jury convenes on May 6. Perhaps he will get his day in court then.
But if Nelms wanted to be treated like everyone else, only his own legal decision prevented him from trying to go that route this week. by CNB