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Friday, March 04, 2011

Wisconsin Senate Holds Runaway Democrats In Contempt

Wisconsin Senate Democrats have been hiding in another state since February 17, 2011 to prevent a vote on Governor Scott Walker's budget repair bill and they were warned to present themselves back to work by 4 pm yesterday or be held in contempt.

Fitzgerald said the contempt resolution was in part a response to a judge's decision Wednesday not to immediately order Sen. Jim Holperin (D-Conover) to attend the Senate.

Oconto County Circuit Judge Jay N. Conley ruled Wednesday that Holperin appears to be violating a rule that requires senators to attend sessions. But he wrote that it is the Senate - not the courts - that enforce those rules.

"The Senate must enforce Senate rules, if it chooses to do so. It can, also, ignore its own rules, if it chooses to do so," Conley wrote.

Critics of the resolution to hold the runaway Senate Democrats in contempt argue the GOP portion of the WI Senate is overreaching and does not have the legal authority to take such actions, so it comes down to the Wisconsin constitution.



[Organization of legislature; quorum; compulsory attendance.] Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide.

Critics argue that Section 15 prevents the Senate from having the runaway Dems arrested:


[Exemption from arrest and civil process.] Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.

Jim Lindgren over at Volokh explains the two sections:

Reading the two constitutional sections together, the courts can’t meddle in legislative affairs by arresting legislators in a civil court case, but each house of the legislature “may compel the attendance of absent members in such manner and under such penalties as each house may provide.” Given that force was traditionally used to compel attendance and is still used in the US Senate (which operates under similar Constitutional provisions), there would have to be a reason that I haven’t seen yet why this provision does not authorize force if necessary.

As I noted this afternoon:

Historically, constitutional guarantees against the arrest of members of legislative bodies developed as protections against judicial or executive arrests, not against the power of a house of a legislature to seize and discipline its members. Indeed, this was considered a matter of legislative privilege, and when a house of a legislature remained within its privilege, its disciplinary decisions were considered beyond the review of the courts. The Wisconsin constitutional provision on the arrest of members (Art. IV, s. 15) follows this tradition . . . .

The privilege to compel attendance is just as much a legislative privilege as the privilege not to be arrested in court cases.

Why would commentators assume that the arrest clause and compulsory attendance clause were inconsistent — and that the drafters of both the US Constitution and the Wisconsin Constitution were too sloppy to notice it and resolve the tension — and that the arrest clause trumps the compulsory attendance clause? If you just read both clauses according to the language they actually used, they are not at all inconsistent. One applies to court cases in the judicial sphere, the other to house discipline in the legislative sphere. This interpretation is consistent with their language, their purpose, their history, and their logic.

The Journal Times provides the legal summary of the state Senate powers to compel attendance of absent members sent March 3 to Sen. Scott Fitzgerald from James Troupis of the Troupis Law Office.

"Constitutional Authority to Act: Article IV, § 7 of the Wisconsin Constitution, provides that each house "may compel the attendance of absent members in such manner and under such penalties as each house may provide." This makes clear that,should each body require, attendance is mandatory. The quorum requirement is not a grant of authority to a minority of the body to prevent it from acting and to frustrate the will of the majority.

Senate Rules Confirm every Senator's Duty to Attend All Sessions: Wisconsin legislators have a non-discretionary duty to attend legislative sessions. The Senate itself has reinforced that constitutional duty. Senate Rule 16 provides that "[m]embers of the senate may not be absent from the daily session during the entire day without first obtaining a leave of absence."

Senate Rules Confer Authority to Compel Attendance: Senate Rule 15, "When a roll call discloses the lack of a quorum...the members present may take measures to procure a quorum...." Senate Rule 84, "[t]he chief clerk shall furnish the sergeant at arms with a list of those who are absent without leave, and the sergeant at arms shall forthwith proceed to find and bring in such absentees."

The Senate, and Only the Senate, May Act to Enforce the Duty of Attendance: Article IV, § 8 provides that "each house may determine the rules of its own proceedings, [and] punish for contempt and disorderly behavior." On Wednesday, March 2, the Circuit Court of Oconto County found that Senator Holperin violated his plain and positive duty to attend Senate Sessions, as provided in Senate Rule 16, but then held that the Senate, and only the Senate, had the right and obligation to enforce the rule of attendance.

Citing Article IV, §8, the court held "[i]t is the State Senate that must enforce its own rules, if it chooses to do so." Barthel v. Holperin, Case No. 11CV100 (Order, March 2, 2011). All 14 absent Senators are subject to the same Court holding. The Senate has clear legal authority to act to compel the return of its members. The Circuit Court explicitly stated, "‘Each house may determine the rules of its own proceedings...', and may punish for contempt."

In response to a request from the legislature, the Wisconsin Attorney General's Office came to the same conclusion many years ago. "Members of the assembly, regardless of number, in lawful session, can compel attendance of absent members in such are authorized by the assembly itself." 18 Op. Atty. Gen. 406 (1929)

Other Legislative Bodies have held Willfully Absent Members in Contempt and Compelled them to Return: United States Senate: United States Senate Rule VI, authorizes a majority of the Senators present to direct the sergeant at arms "to request, and when necessary, to compel the attendance of the absent Senators." That Senate rule was invoked in February 1988 when "Capitol Police carried Senator Bob Packwood feet first into the Senate chamber. This occurred after the Senate ordered the arrest of absent senators to maintain a quorum during a filibuster on campaign finance legislation." See U.S. Senate, Compulsory Attendance, at http:// (last visited March 2, 2011).

Alaska. In Schultz v. Sundberg, 759 F.2d 714 (9th Cir. 1985), Kerttula, president of the state senate, ordered Alaska State Troopers to compel Schultz, an Alaska state representative, to attend a joint session of the state legislature for the purpose of achieving a quorum. Schultz sued and the district court dismissed the case because the defendants were immune from suit. The Ninth Circuit affirmed.

New Hampshire. The Speaker of the New Hampshire House of Representatives ordered the House Sergeant at Arms to arrest an absent representative and return him to the chamber in order to secure a quorum. Keefe v. Roberts, 116 N.H. 195, 355 A.2d824 (1976). The absent representative sued and the court held that "the right of a legislative body to have the attendance of all its members and to enforce such attendance, if necessary, is one of its most undoubted and important functions" and that the Speaker in trying to secure a quorum was acting in performance of official duties. "

Governor Walker and Senate GOP members also have another option, explained at NRO.

Basically the bill can be split into parts and certain portions, such as the controversial collective bargaining overhaul, can be passed with a simply majority, without the attendance of the runaway Democratic Senators.

Read the whole thing.