Thursday, March 03, 2011

Senate Orders Democrats to Return

In a brief memorandum opinion yesterday, Judge found that the respondent State Senator had violated his plain duty to attend a Senate session. He also held - and I was not surprised - that the Senate had the authority to enforce its rule of compulsory attendance.

Today the Senate decided to do just that. It has ordered the absconding fourteen to return by fourteen by 4 pm today. If they do not do so, they will be in contempt of the Senate and the Sergeant at Arms will be ordered to bring them in - with the help of law enforcement if necessary.

By way of full disclosure, I consulted with lawyers advising the Senate - again on a pro bono basis. The authority of the Senate to do this is clear. Article VII, sec. 7 gives each house of the legislature the power to compel the attendance of absent members to obtain a quorum. The Senate's own rules require attendance and provide for the Sergeant at arms to be directed to compel bring them in. Art. VIII, sec. 8 of the Constitution says that Article IV, § 8 provides that “each house may determine the rules of its own proceedings, [and] punish for contempt and disorderly behavior.”

There are relatively few precedents for this because relatively few legislators have behaved so irresponsibly for such a lengthy period of time. (In fact, the scofflaws - and that's what they are - have arguably gone beyond any prior example of this anywhere.) But there are examples of legislators being arrested and compelled to attend to obtain a forum. It has been done by the United States Senate, the Alaska Senate and the New Hampshire house.

21 comments:

Nick said...

But of course, as long as they remain in Illinois... there are interesting issues of law enforcement that could go on.

First of all, if the Sergent of Arms attempts to take them into custody, is that in effect bounty hunting? Wouldn't there have to be some form of extradition request made in order to compel them to come back into the state?

Anonymous said...

They are explicitly exempt from arrest.

Anonymous said...

To an older generation it's Guber Pyle. "Citizen arrest, citizen arrest", and to a younger group it's Dog the Bounty Hunter. For many it smacks of a desperate attempt to end the stalemate NOW before public support drops to levels that the Gov. has to capitulate or face an open revolt from his members of the Legislature.

Rick Esenberg said...

The general immunity from arrest has to, I think, give way to the specific grants of authority in Article IV, secs. 7 and 8. It's hard for me to see how an attempt to compel elected officials to perform a clear and plain public duty could ever be described as desperate. It is a sad statement on our political culture that people's disagreement over a particular piece of policy would lead them to endorse lawlessness. I can understand opposition to changes in the ability of public employees to collectively bargain but is it really so important that legislators are justified in ignoring the state's constitution and their body's rules?

The one thing that a compelled return of the legislators would not be is bounty hunting or a citizens arrest. A contempt finding by a legislative body and its enforcement by sworn law enforcement officers are neither of those things.

If the 14 stay out of the state(as they have not consistently done) there are other issues that would have to be addressed.

George Mitchell said...

Speaking of lawlessness, MSJ reports millions of dollars of damage to marble in the Capitol.

Nick said...

Rick - I'm not suggesting the lawlessness... I'm questioning whether the State of Illinois has to give deference to something in our State Constitution.

If the Sergent of Arms goes into Illinois and attempts some form of arrest, outside of the state jurisdiction (and the jurisdiction of our State Constitution), could that be considered kidnapping in Illinois?

William Tyroler said...

Jim Lindgren makes a persuasive case (pun unintended) that Art, IV § 15 applies to civil suits. If that's so, then there's no inconsistency to resolve, no need for specific-controls-general construction.

Dad29 said...

Nick, as I understand the news-releases on the topic, the Senate's authority for arrest/detention stops at the State line(s).

The Senate COULD pursue extradition, under some folks' reading of the constitution--but Fitzgerald specifically stated that they would not do so.

I prefer Dog the Bounty Hunter anyway. Would make great TV.

Anonymous said...

The "contempt" citation was pure theater. From the get go, Fitzgerald sent folks after the 14 to compel their attendance. Was an open question whether they could be arrested, i.e., physically forced to return. (A better question is why the Republicans would possibly think its a good idea to pass major legislation with opponents duct-tapes to their chairs to provide a quorum).

The silly "contempt" finding leaves it an open legal question. Of course there is no contempt, the legislative contempt statute doesn't apply and -- surprise -- the Senate rules provide for a "call of the Senate" when absent members leave it without a quorum which involves the Sargent at Arms finding them, etc.

There is no rule of law that lets one political party invent legal authority out of whole cloth because they really, really, really wanna pass the governor's bill.

And apparently the Republican have no one to ask the question: "Would we (and the state) be better off if we made respectful noises and behaved like a civil and deliberative body instead of trying to find a bigger war drum day after day?"

Anonymous said...

"It is a sad statement on our political culture that people's disagreement over a particular piece of policy would lead them to endorse lawlessness." Isn't this the same kind of conservative political rhetoric that was leveled at the Boston Tea Partiers?

Anonymous said...

George, please take a look at jsonline regarding the damage to the capitol. Evidently the Walker administration was a little loose with the numbers. I know, I was shocked as well.

John Foust said...

Here's the link. Aww. "Pay To Plale" helps pay back Walker for his new job, I guess, with some fudged figures. It'll be days before that correction reaches Fox News. Mission accomplished!

George Mitchell said...

Several hundred thousand $ of damage is chump change only to liberals.

How the multi-million estimate got public is troubling.

John Foust said...

George, what should happen if free speech and assembly has a cleanup cost? In many reports, the protesters organized their own cleanup gangs.

What are the ordinary daily cleanup costs associated with the Capitol?

Anonymous said...

Rick's first paragraph is a rather incomplete and somewhat misleading summary of the Oconto County circuit judge's two-page ruling. The judge, quite properly, denied the petitioner's emergency request for a writ of mandamus. It's not up to judges to order legislators to attend meetings of the Legislature. That power is vested by the Wisconsin Constitution in the respective houses of the Legislature. This is what is referred to in federal procedure as a "nonjusticiable political question." The lawsuit should never have been brought. It's the Senate, not an Oconto County circuit judge, that alone can seek to compel the attendance of absent members. How its writ would extend beyond the state borders escapes me, since ordinary criminal law extradition procedures do not apply.

AnotherTosaVoter said...

Walker's approval rating is at 43%. Even Rasmussen shows 60% against his plan to take away collective bargaining.

Like health care reform, is he not attempting to "SHOVE THIS DOWN OUR THROATS!!1!!!!!" ??

Anonymous said...

Message to Gov Walker:

Honor all Mothers and Fathers that it may be well with thee and that thoj may live long in the Gov Mansion.

Rick Esenberg said...

Anon 7:45

There is nothing inaccurate in my description and the judge did not say that the lawsuit should never have been brought. It was not surprising to me that a judge would regard the matter as nonjusticiable - I said as much on Fox News Network the week before - but there are arguments that cut the other way. The duty to attend is clear. There are few legal propositions as clear as that the Senators are ignoring a plain duty. If lawyers don't - in the cotext of unprecedented lawlessness (no one has ever persisted in this kind of stunt for this long) - look for a remedy, what good are we? The judge put the ball in the court of the Senate. It acted.

Incidentally, no one has ever suggested that the state police go to Illinois.

As far as public opinion polls, right is right no matter what they say and my guess is that Walker benefits in the end.

Anonymous said...

The judge only found Holperin "appeared to be" violating his plain and positive duty. That's what's misleading about your first paragraph. Attendance itself and whether attendance is a plain and positive are two separate questions and both you and Troupis have conflated those questions, without foundation in the judge's decision.

Anonymous said...

You probably are the best connected legal blogger in Wisconsin. You sometimes defend the indefensivable but it is the best way for us to learn what not to do.

I truly respect you and do enjoy your blog. Thanks for all you do and for the opportunity to comment.

AnotherTosaVoter said...

Hey Rick, I wonder what your take will be on the fact that the same people who loved the chaos at town hall meetings in the Fall of 2009 are probably going to start complaining about chaos at town hall meetings such as that in Wauwatosa.

And vice versa, of course.