In the Losing Touch With Reality Department:
Blogging lawyer Mike Plaisted was impressed by a memo prepared by Lester Pines essentially concluding that legislators are exempt from arrest and thus the Senate has no way to exercise its constitutional authority to compel the attendance of missing members. Noting that I have consulted with lawyers who brought a petition for a writ of mandamus (indeed I was on the pleadings) and who represented the Senate in connection with the decision to hold the missing 14 in contempt, Plaisted pronounces that Lester "kicked my legal ass." Also, I'm a nut and an arrogant bastard. (Civility is not Mike's thing.}
I do lock heads with Lester from time to time and I expect I'll continue to do so. Sometimes kick my butt. Other times I'll kick his. He is a worthy opponent and I have invited him to my Supreme Court conference the last two years. He can expect an invitation this year as well.
But, in this instance, Lester (and Plaisted) are wrong - spectacularly so. There is no doubt that Senators have a duty to attend. The constitution clearly gives each house of the legislator the authority to compel attendance. Article IV, sec. 7“compel the attendance of absent members in such manner and under such penalties as each house may provide.” In the case, the Senate rules state that, when a quorum is lacking, missing members are to be identified to the Sergeant at arms who is authorized to bring them in. That resistance to a call to return is punishable by contempt is made clear in Art. IV, sec. 8.
Now there is a provision in the Constitution that exempts legislators from arrest or civil process during and immediately before or after a legislative session - subject to certain exceptions. But to apply it here is a perversion of its purpose. Historically, the immunity of legislators from arrest has been a protection against interference by outsiders with the legislative function. Art. IV, sec. 15 is designed to protect legislators in the performance of their legislative duties and prevent the executive, for example, from prohibiting the attendance of legislators through arrest or civil process. They are not intended to hamstring the legislature from the enforcement of its rules and taking those steps necessary to enable it to function. There is, then, no conflict among Art. IV, §§ 7, 8 and 15. They are complementary provisions in service of the same end. Constitutional language is to be harmonized whenever possible and should not be contrued to render one a dead letter.
Even were this not the case, general rules of constitutional construction require that the specific (enforcement of the duty to attend) control the general (immunity from arrest or civil process). Lester also relies on sec. 13.26 of the statutes which specifies when the legislature can punish a contemnor by imprisonment for disregard of its privileges or those of its members. Not applicable here. First, the legislature is not proposing to punish the missing Senator by imprisonment. Second, it is attempting to enforce its privileges. Indeed, it easier to read 13.26 as authorizing imprisonment of the missing 14 for failure to attend.
There are instances in which legislators have been apprehended and brought into a legislative chamber. For example, Sen. Bob Packwood was carried feet first into the Senate - notwithstanding the fact that there are parallel provisions in the United States Constitution regarding immunity from arrest.
And, of course, the Democrats on the run know this. It is why they are hiding. It is why they have left the state. If they really thought they were immune from apprehension, there would have been no need to go to the mattresses.
Plaisted's description of our Oconto County law suit is inaccurate. We didn't file a writ, we requested one and the case was not dismissed. What the judge did do was indicate that it was the prerogative of the Senate to enforce or not enforce its rules. That's not a surprise. I suggested as much on Fox News the week before.
I shouldn't be surprised at Mike. He closes his post with a bizarre story about this being somewhat akin to the freeing of Joshua Glover because, of course, restricting collective bargaining rights that don't exist for federal employees and in a number of states is like slavery.
I would think that Lester and Mike and others should think twice before defending this stunt. I am sure that, at some point in the future, the Democrats will be back in power. They may want to raise taxes and increase spending. Do they really want to establish the right of 14 Republican Senators to prevent that by running away?
Because this "by any means necessary" stuff cuts both ways.