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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6142

April 6, 1983

CONSTITUTIONAL LAW:

Const 1963, art 4, Sec. 11, as amended--privilege from civil arrest and civil process of legislators subject to change by Legislature

LEGISLATURE:

Authority of Legislature to restrict or remove privilege of legislators from civil arrest and civil process

The Legislature may enact legislation pursuant to Const 1963, art 4, Sec. 11, as amended, to restrict or remove the existing privilege of legislators from civil arrest and civil process.

Honorable William Faust

Senate Majority Leader

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

Does the recently effective amendment of Const 1963, art 4, Sec. 11 change the privilege of members of the Legislature from civil arrest and civil process?

Const 1963, art 4, Sec. 11, prior to amendment, provided:

'Senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof. They shall not be questioned in any other place for any speech in either house.'

Const 1963, art 4, Sec. 11, as amended, provides:

'Except as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof. They shall not be questioned in any other place for any speech in either house.' (Emphasis added.)

The amendment of Const 1963, art 4, Sec. 11 did not remove the privilege of members of the Legislature from civil arrest and civil process, but it did authorize subsequent legislative enactment to impact the privilege. It provides that a subsequently enacted law establishing a different privilege or no privilege whatsoever shall prevail over the privilege in Const 1963, art 4, Sec. 11. Thus, the privilege originally provided will continue until legislation is enacted and becomes effective which establishes a privilege, if any, differing from the privilege in Const 1963, art 4, Sec. 11.

The Legislature has acquired the authority to enact legislation impacting the privilege from civil arrest and civil process through the added words 'provided by law.' Where 'provided by law' is used in Const 1963, it is intended that the Legislature shall do the entire job of implementation. Beech Grove Investment Co v Civil Rights Commission, 380 Mich 405, 418; 157 NW2d 213, 219. This is confirmed as the intent of the framers of Const 1963. 2 Official Record, Constitutional Convention of 1961, pp 2673, 2674.

It is my opinion, therefore, that as a result of the recently effective amendment, Const 1963, art 4, Sec. 11 has been altered to enable the Legislature to enact legislation that may restrict or remove the existing privilege of legislators from civil arrest and civil process.

Frank J. Kelley

Attorney General

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