March 3, 2011

"Republicans in the state Senate ordered Democrats on Thursday to return to the chamber by 4 p.m. or be found in contempt of the Senate..."

"... a move that means Democrats could be taken into custody."

148 comments:

chickelit said...

Bravo!

They need to at least show up and account for themselves.

Mike said...

I'm guessing Althouse didn't comment on this one because of the constitutionality issue--this is far beyond the legal bounds of what the state senate can do. I'm guessing that the police will dismiss this order, and the Democrats will have their attorneys on this one ASAP.

Triangle Man said...

"Taken into custody" does not mean arrested. It also does not mean extradited. I thought they could already be taken into custody if they were found in Wisconsin. If not, what was the purpose of sending State Patrol around looking for them? A show?

MayBee said...

Urrg. The Blogger "no cookies" thing is driving me crazy.

Sofa King said...

Mike -

Can you explain how this is "far beyond the legal bounds" of what the state senate can do, presumably constitutionally? Clearly, the state statutes authorize the Senate to hold people in contempt, and authorize confinement as a punishment for contempt. It's less clear if what the Democrats are doing is authorized as grounds for a finding of contempt, but it's not obviously far beyond the power of the senate, IMO.

chickelit said...

MayBee said...
Urrg. The Blogger "no cookies" thing is driving me crazy.

Heh. I think it's just the mahall monitors doing their job.

Dose of Sanity said...

@ Mike - That's how I read this as well. I'm curious to know what other people take.

@ Triangle - No, they are NOT allowed to be taken into Custody already (they can be compelled - no definition of that word). Certainly taken into Custody should trigger "arrest" language in the law - and would conflict with the constitution.

Sofa King said...

If not, what was the purpose of sending State Patrol around looking for them? A show?

Actually I have read that it was to attempt to persuade or cajole them into returning. The Patrol was not authorized to arrest them.

Sofa King said...

Dose of Sanity -

If you really are a law student, you should give some thought to maybe reading the statutes so you know what the hell you are talking about.

Dose of Sanity said...

Can you explain how this is "far beyond the legal bounds" of what the state senate can do, presumably constitutionally? Clearly, the state statutes authorize the Senate to hold people in contempt, and authorize confinement as a punishment for contempt. It's less clear if what the Democrats are doing is authorized as grounds for a finding of contempt, but it's not obviously far beyond the power of the senate, IMO. I think he's referring to the conflict that the senators have immunity from arrest (with some exceptions) while in session?

Triangle Man said...

13.26  Contempt.

(1) Each house may punish as a contempt, by imprisonment, a breach of its privileges or the privileges of its members; but only for one or more of the following offenses:

(a) Arresting a member or officer of the house, or procuring such member or officer to be arrested in violation of the member's privilege from arrest.

(b) Disorderly conduct in the immediate view of either house or of any committee thereof and directly tending to interrupt its proceedings.

(c) Refusing to attend or be examined as a witness, either before the house or a committee, or before any person authorized to take testimony in legislative proceedings, or to produce any books, records, documents, papers or keys according to the exigency of any subpoena.

(d) Giving or offering a bribe to a member, or attempting by menace or other corrupt means or device to control or influence a member's vote or to prevent the member from voting.

(2) The term of imprisonment a house may impose under this section shall not extend beyond the same session of the legislature.

Reagan said...

They can't just go grab them in Illinois. Nice to see that the attorneys for Club for Growth and WMC are earning their pay.

chickelit said...

I'm guessing that the police will dismiss this order, and the Democrats will have their attorneys on this one ASAP.

This little hide and seek ploy is the biggest backfire of the whole stunt so far.

I wonder if garage has polled the populace on exactly that aspect: Do Wisconsin voters approve of the state-line crossing stunt?

Triangle Man said...

13.19  Arrest of officers. No officer of the senate or assembly, while in actual attendance upon the duties of that person's office, shall be liable to arrest on civil process.

Dose of Sanity said...

Dose of Sanity -

If you really are a law student, you should give some thought to maybe reading the statutes so you know what the hell you are talking about.


Please correct me. My "custody is an arrest" language comes from cases discussing the interplay of Miranda v. Arizona and Terry v. Ohio. Because arrests trigger the need to Mirandize, cases where a Terry stop has been extending have called into question at what point custody becomes arrest. (Factors include restraints used, if they were transported, time of custody, etc).

And since you can't arrest the Senators...

Florida Gator said...

Here is a link to special session senate resolution.

http://legis.wisconsin.gov/ss-sr1.pdf

Sofa King said...

Dose of Sanity -

Please correct me.

No need, TM already has.

You don't really believe that Senators cannot be arrested EVER, do you? That they are literally above the law? Didn't you ever have to take basic civics?

Mike said...

"I wonder if garage has polled the populace on exactly that aspect: Do Wisconsin voters approve of the state-line crossing stunt?"

I've only seen two polls come out, and both were narrowly in favor of the Democrats (51-47). However, both polls were within the margin of error (it was roughly +/- 3.5%). It's fair to say that the state is essentially split.

MadisonMan said...

I only get the No Cookies problem when I'm on a wireless connection.

So the head of the Senate just ordered his father, the head of the state police, to find opposition leaders to compel their attendance, by force if necessary, to the locked & heavily guarded Capitol.

Interesting state to live in.

Sofa King said...

I'll also post, for consideration:

946.12
946.12 Misconduct in public office. Any public officer or public employee who does any of the following is guilty of a Class I felony:

946.12(1)
(1) Intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the officer's or employee's office or employment within the time or in the manner required by law; or

946.12(2)
(2) In the officer's or employee's capacity as such officer or employee, does an act which the officer or employee knows is in excess of the officer's or employee's lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do in the officer's or employee's official capacity;

I'll further note that felonies can be extradited even if the are subsequently pardoned.

Food for thought.

Dose of Sanity said...

How has he corrected me SofaKing? I mentioned the exception which allow for arrest. Contempt of the senate is not one of them.

tim maguire said...

Triangle Man, thanks for posting the statute. Based on that, I'd say they're going for it under 13.26(c). It's a stretch, but probably good enough to make the AWOL senators nervous.

13.19 clearly doesn't apply.

Whether the gambit works or not, the public will probably support the effort and applaud the Republicans trying to end this Democratic sabotage.

Triangle Man said...

If the Senate Democrats have not a) arrested another Senator, b) been disorderly, c) refused to appear as a witness, or d) bribed anyone, then they cannot be in contempt.

The only one that seems to apply remotely is c) and it is a bit of a stretch to say that they are "witnesses". Have they been subpoenaed to appear? Can they be?

Dose of Sanity said...

Sure, if they were at all in danger of violating 946.12 and committing a felony, they could of course be arrested.

However, you must not be a law student (or a lawyer) to bold that language. It's pretty clear they aren't at all in violation of that.

chickelit said...

I've only seen two polls come out, and both were narrowly in favor of the Democrats (51-47).

Was the poll specifically on the aspect of not returning in a timely way, or did you assume that the poll gave tacit support of going to Illinois?

Sofa King said...

How has he corrected me SofaKing? I mentioned the exception which allow for arrest. Contempt of the senate is not one of them.

Because legislators are only immune from arrest while *actually in attendance.* Get it?

Dose of Sanity said...

If the Senate Democrats have not a) arrested another Senator, b) been disorderly, c) refused to appear as a witness, or d) bribed anyone, then they cannot be in contempt.

The only one that seems to apply remotely is c) and it is a bit of a stretch to say that they are "witnesses". Have they been subpoenaed to appear? Can they be?


I don't see why not. They may actually be guilty of contempt. (but I'd love to see that legal battle). Interestingly, does trying to have them arrested bring the republicans into contempt under 13.26(2)?

Sofa King said...

Care to support that? Attendance of the legislative session is in fact known mandatory, nondiscretionary duty of being a state senator. Furthermore, it appears they are willfully and intentionally refusing to attend. What element do you believe does not apply?

Dose of Sanity said...

@Sofa King

Oh Sofa, tell me you didn't make that mistake.

13.19  Arrest of officers. No officer of the senate or assembly, while in actual attendance upon the duties of that person's office, shall be liable to arrest on civil process.

Rich B said...

Based on the link that FG provided, the legislation quotes specific sections of the Wisconsin constitution as authority for the demand. Are they wrong, Mike, Esq.?

Christopher said...

Dose,

Please excuse this nit picking but I must say that Miranda is only triggered where there is custody and interrogation. Custody ain't enough by itself.


As to this topic I imagine that this is merely a political ploy so that they can keep using the word "contempt" in regards to their opponents. I don't expect anyone to actually attempt to enforce this.

Dose of Sanity said...

Care to support that? Attendance of the legislative session is in fact known mandatory, nondiscretionary duty of being a state senator. Furthermore, it appears they are willfully and intentionally refusing to attend. What element do you believe does not apply?

It is actually not mandatory. There is no law saying they MUST be there to vote. Additionally, there are no time requirements. That's the support.

I feel bad debating you, because you obviously don't understand the statutes. :/

MadisonMan said...

By the way, I've mentioned a couple times an interest in how downtown businesses are faring with this.

Isthmus has an article that sort of addresses that this week. Link

Sofa King said...

Oh Sofa, tell me you didn't make that mistake.

What mistake, failing to read the words "actual attendance" out of the statute like you apparently are?

The Drill SGT said...

Don't the Majority have legal cover in this ruling from a judge?

Oconto County Circuit Court 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.

I'm a Shaaaaark said...

Here is a legal analysis, for whatever it is worth, on this very thing:

Summary of Wisconsin state powers to compel attendance of absent members

No matter what side of the issue you stand on, it's an interesting look.
(sent March 3 to Sen. Scott Fitzgerald from James Troupis of the Troupis Law Office.)

Simon said...

Senate orders arrest of missing dems; "it's about time" about covers it.

SK is right. If the (almost universally acknowledged) authority for legislatures to compel the attendance of absent members has any meaning at all, it must encompass actual compulsion; otherwise it becomes simply the power to request attendance.

Sofa King said...

Dose -

Do they teach in law school nowadays that statutes are the sole source of legal authority? I seem to recall a few others, but, you know, it's been a few years.

Dose of Sanity said...

Dose,

Please excuse this nit picking but I must say that Miranda is only triggered where there is custody and interrogation. Custody ain't enough by itself.


Ah, yes that is true. But my point in mentioning that is in deciding when miranda was required courts have already decided when custody became an arrest. (then they moved onto the interrogation/miranda issue)

shoutingthomas said...

13.19  Arrest of officers. No officer of the senate or assembly, while in actual attendance upon the duties of that person's office, shall be liable to arrest on civil process.

Well, those Democrats aren't in actual attendance, are they?

Dose of Sanity said...

Dose -

Do they teach in law school nowadays that statutes are the sole source of legal authority? I seem to recall a few others, but, you know, it's been a few years.


Not at all. Here's a lesson at the state level. (federal is obviously supreme)

Constitution
Statutes
Case Law

Obviously there are regulations and other details that sneak in there, but in this case Sofa we're taking about the CONSTITUTION here. It wins against other law. Good try mate.

Christopher said...

Dose,

I know, I know.

But after years of having that drilled into my head I felt compelled to mention it.

James said...

Oh wow...clearly the lawyers posting on this thread are much better informed that the lawyers the Senate leadership consulted. {eye roll}

I'm a Shaaaaark said...

It is actually not mandatory. There is no law saying they MUST be there to vote. Additionally, there are no time requirements. That's the support.

Actually, it IS mandatory, unless they have permission not to be there, if I'm reading this correctly:

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."

You think any of the Fleebaggers have obtained a leave of absence?

Sofa King said...

but in this case Sofa we're taking about the CONSTITUTION here.

You mean the same Constitution that specifically contains the words "compulsory attendance?"

Dose of Sanity said...

Holy crap, since ST and Sofa King don't get this, can someone explain to them that:

while in actual attendance upon the duties of that person's office.

Doesn't mean physical attendance at the Capital. They clearly won't listen to me, even though I'm 100% correct on this.

Mike said...

Hey Dose,
It appears to me as if Prof. Klingele teaching has gotten through as much to you as it has to me. I'm in total agreement.

Dose of Sanity said...

Actually, it IS mandatory, unless they have permission not to be there, if I'm reading this correctly:

That's a Senate Rule - it fails the other parts of the statute.

To use a meta argument here. If they were in danger of violating the law and causing a felony, why is the Senate bothering to hold them in contempt? Why hasn't the AG just issued a warrant?

shoutingthomas said...

Doesn't mean physical attendance at the Capital. They clearly won't listen to me, even though I'm 100% correct on this.

I read better than you Dose.

It means exactly what it says and that is actual attendance upon the duties of that person's office.

You seem headed toward being a former law student yourself.

Generally speaking, a strict reading of a text for its meaning is the best solution.

You're not bright.

Dose of Sanity said...

@ Mike

Didn't have Klingele.

But glad to have someone else back me up here. :)

I'm a Shaaaaark said...

Doesn't mean physical attendance at the Capital. They clearly won't listen to me, even though I'm 100% correct on this.



Right now, one of their elected duties is to be present, unless otherwise excused according to senate rules, and they are not that.

While it is true that a senator could be doing their duties from a location other than the capitol building, in this case they are not.

Triangle Man said...

From the Wisconsin Constitution


Organization of legislature; quorum; compulsory
attendance. SECTION 7. Each house shall be the judge of the 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.


Rules; contempts; expulsion. SECTION 8. Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and with the concurrence of two−
thirds of all the members elected, expel a member; but no member shall be expelled a second time for the same cause

Sofa King said...

Holy crap, since ST and Sofa King don't get this, can someone explain to them that:

while in actual attendance upon the duties of that person's office.

Doesn't mean physical attendance at the Capital.


It's not my area of expertise, so I'm prepared to be swayed by some authority, or even persuasive arguments, about this. However, it will take a little more than your unsupported opinion to persuade me that the statute means the opposite of the plain meaning of the text.

garage mahal said...

I wonder if garage has polled the populace on exactly that aspect: Do Wisconsin voters approve of the state-line crossing stunt?

If you believe the Rasmussen poll from this morning, yes they do approve. This reeks of desperate people to me. The polling, and the recall of 8 Repubs, the lockdown of the Capitol, cutting off the legislature complaint phone line, cutting off wi-fi, sending state troopers to their houses, etc etc etc. Oh, and the Koch Bros sponsored bus tour around the state. I think they're getting spooked.

Sofa King said...

So, DOS - why not make use of that free Lexis/Westlaw access you have and cite the relevant authority? Surely that is not beyond your ken?

Dose of Sanity said...

@ Triangle

True. The issue will still stand on compel. Does such manner overrule the arrest privilege?

Doesn't seem likely.

Dose of Sanity said...

So, DOS - why not make use of that free Lexis/Westlaw access you have and cite the relevant authority? Surely that is not beyond your ken?

The authority is already cited? What are you talking about?

tim maguire said...

In 13.19, it's an unnecessary mistake to interpret "actual attendance" as being "physically present in the statehouse." It means actually doing their job. It's not an all encompassing immunity like diplomats have, they simply cannot be interrupted during the exercise of their duties. This would extend to off-House sites so long as they are doing their duty there.

No one possessed of even a Dose of Sanity could claim that they are doing their duty by hiding out in another state. That is why 13.19 does not apply. It's not about where they are, it's about what they're doing. They're not doing their jobs so they are not protected.

Simon said...

shoutingthomas said...
"'13.19  Arrest of officers. No officer of the senate or assembly, while in actual attendance upon the duties of that person's office, shall be liable to arrest on civil process.' Well, those Democrats aren't in actual attendance, are they?"

Nor are they officers of the Senate. They are members.

Sofa King said...

The authority to support your argument that the words "in actual attendance" can safely be read out of the statute.

I'm a Shaaaaark said...

From the link I posted earlier:

Citing Article IV, §8, the court held "[i]t is the State Senate that mustenforce 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 manner...as are authorized by the assembly itself." 18 Op. Atty. Gen. 406 (1929)




Other Legislative Bodies have held Wilfully 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:// www.senate.gov/artandhistory/history/minute/Compulsory_Attendance.htm.

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 staterepresentative, 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 alegislative 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. "

Martin L. Shoemaker said...

Actually, Triangle Man, I think this part applies:

(b) Disorderly conduct in the immediate view of either house or of any committee thereof and directly tending to interrupt its proceedings.

They are clearly interrupting the Senate's proceedings.

Now you might argue that "not attending" does not constitute "Disorderly conduct in the immediate view of either house or of any committee thereof". But for two years now, we've been lectured that "not purchasing health insurance" constitutes interstate commerce, so clearly the lack of conduct is still conduct.

Bushman of the Kohlrabi said...

This is the take of Rick Esenberg who consulted with lawyers advising the Senate:

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.”

Sofa King said...

Furthermore, the exemption is on arrest for civil process only, and contempt is also a misdemeanor, so it would appear they would still be liable to criminal arrest.

Sofa King said...

Also, to LOS, in regards to 946.12: the elements of the offense do not specify that the established duties must come specifically from statutes, was my point. The constitutionally authorized rules of the Senate can - IMO - also create a mandatory, nondiscretionary duty.

Dose of Sanity said...

@ Sofa King - you are confusing so many issues it's hard to debate with you. I'm not trying to be mean here, just being honest.

@ Tim - I believe they are still doing their job to be afforded this protection.

Ironically, I think they should come home. However, this is not the solution to do it. (or even legal)

Andrew said...
This comment has been removed by the author.
Martin L. Shoemaker said...

Man, where can I get a job where not showing up and not doing my work is the definition of "still doing my job"?

Dose of Sanity said...

Also, to LOS, in regards to 946.12: the elements of the offense do not specify that the established duties must come specifically from statutes, was my point. The constitutionally authorized rules of the Senate can - IMO - also create a mandatory, nondiscretionary duty.

Oi. Common language reading vs. Statutory interpretation.

shoutingthomas said...

Dose,

You are a silly fool.

You really should butt out.

You're not very bright. I know this is contrary to your opinion of yourself.

Remember how you disgraced yourself by referring to Muslims as a race?

Do some reading. Get some experience in life. Come back around when you aren't so fucking dumb.

Triangle Man said...

@Sofa

I believe that the constitutionally authorized rules of the Senate regarding compulsory attendance must be established as Statutes. So, back to the Statutes.

chickelit said...

garage said...If you believe the Rasmussen poll from this morning, yes they do approve.

That Roshomon poll didn't query whether people approved of the means...only the ends.

wv = disses

Dose of Sanity said...

@ Martin

When your job is to represent people and they ask you to do it. (Again, i think they should come home, but it's not a stretch to make this argument)

vnjagvet said...

Does the Senate order of contempt contemplate an "arrest on civil process"? Or is it simply an arrest on charges of contempt? IOW what does "arrest on civil process" mean under WI law?

Dose of Sanity said...

@ ST

Nice Ad Hominem when you got schooled. Remember how I apologized for the "use" of racism and lamented there wasn't an "religionism" word to talk about dumbasses like you?

nonapod said...

Not sure they can be said to be "doing their job" as State Senators when they're out of the state apparently doing nothing in a hotel room.

Andrew said...

Assuming the 14 want to return then being "arrested" may be an attractive alternative to them. Walker gets his law, democrats can beat Republicans up over style points, and the 14 save as much face as is possible under the circumstances.

The trick will be how to get caught without being too obvious. Maybe an OB visit by the pregnant one. The optics of that wouldn't be too good for Republicans.

Dose of Sanity said...

@ ST

On a lighter note, don't tell a law student to "do some reading" ever. (even if you are playing off of something they said earlier, haha)

We may snap at the thought! :-p

shoutingthomas said...

Nice Ad Hominem when you got schooled. Remember how I apologized for the "use" of racism and lamented there wasn't an "religionism" word to talk about dumbasses like you?

Ad Hominem has nothing to do with it.

You're just fucking stupid, Dose. Now, we've discovered that you don't read that well, either.

You're not smart enough to talk with the grownups.

Sofa King said...

@ Sofa King - you are confusing so many issues it's hard to debate with you. I'm not trying to be mean here, just being honest.

Fine, I'll try to simplify for you, though you'd better practice issue spotting if you want to have any hope on the final.

ISSUE #1: Does 13.19 prevent the arrest of senators under 13.26?

DOS says: No, because of the Constitution or something.

SK says: Well, this is not obviously a constitutional issue, first of all, because these are both statutes. Second, the 13.19 exemption from arrest only applies to senators in *actual attendance* of their duties, which the senators in IL pretty clearly are not.

DOS says: But 13.19 doesn't ONLY apply to attendance in the capitol! Because I say so.

SK says: Maybe, though you offer nothing to support this opinion. Regardless, they are not plainly in actual attendance of any official duties in IL. Furthermore, contempt is a misdemeanor, and 13.19 applies to civil arrests only.

ISSUE #2: 946.12

SK says: There is a possibility that a reasonable interpretation of 946.12 fits the conduct of the legislators, because they have a non-discretionary duty to attend the legislative session that they are intentionally shirking. The Constitution establishes the duty and grants the Senate the power to enforce it through its own rules.

DOS says: It's pretty clear they're not in violation of that.

SK says: Can you explain why not?

DOS says: ...

Hope that brings you up to date.

Dose of Sanity said...

Assuming the 14 want to return then being "arrested" may be an attractive alternative to them. Walker gets his law, democrats can beat Republicans up over style points, and the 14 save as much face as is possible under the circumstances.

The trick will be how to get caught without being too obvious. Maybe an OB visit by the pregnant one. The optics of that wouldn't be too good for Republicans.


I hadn't considered this. This may actually be the case - perhaps even the democrats requested this as a save face move. It's really too bad we'll never know. (unless they don't come back and "get caught")

shoutingthomas said...

On a lighter note, don't tell a law student to "do some reading" ever. (even if you are playing off of something they said earlier, haha)

You're just an idiot right now, Dose.

Whatever Dose you've taken, it's several quarts shy of a gallon.

Go away, stupid kid. You're too fucking dumb to talk with the grownups.

I'm resigned to the fact that you won't take my advice. You seem determined to make a complete ass out of yourself.

Martin L. Shoemaker said...

Dose, come on. Nobody goes into the voting booth and casts a vote for "the guy I want to stay away and not vote". They're not doing their jobs. Their constituents currently have no representation in the Senate.

Sofa King said...

TM:
I believe that the constitutionally authorized rules of the Senate regarding compulsory attendance must be established as Statutes.



I have not read the relevant cites myself, but the statutory annotations contain the following note:

"A legislator's duty under this section may be determined by reference to a variety of sources including the Senate Policy Manual, applicable statutes, and legislative rules and guidelines. The Senate Policy Manual and senate guidelines restricted political campaigning with public resources. State v. Chvala, 2004 WI App 53, 271 Wis. 2d 115, 678 N.W.2d 880, 03-0442. Affirmed. 2005 WI 30, 279 Wis. 2d 216, 693 N.W.2d 747, 03-0442. See also State v. Jensen, 2004 WI App 89, 272 Wis. 2d 707, 684 N.W.2d 136, 03-0106. Affirmed. 2005 WI 31, 279 Wis. 2d 220, 694 N.W.2d 56, 03-0106."

So I think I will have to disagree with you on that.

vnjagvet said...

Triangle and Dose:

Where do you believe the legal analysis in the memo Shaaaark linked goes wrong? I am a lawyer, but not from WI, and I don't have time to get on Lexis to find out where the holes are; and I don't have any idea of the WI procedure involved in enforcing a legislative body's order of contempt.

In any event, I can't imagine any scenario where an WI Senate order of contempt could be enforced outside the state of WI.

If that is true, this exercise seems more symbolic than anything else.

Triangle Man said...

So I think I will have to disagree with you on that.

Fair enough, but it's clear that the answer is not in the Constitution.

vnjagvet said...

What is an "arrest on civil process" under WI law? Doesn't it matter?

Sofa King said...

If that is true, this exercise seems more symbolic than anything else.

Not at all. It has been widely published that at least some of the senators have been regularly returning to Wisconsin.

NotYourTypicalNewYorker said...

The Dems can't just come back with their tail between their legs without looking stupid, BUT, if they're dragged back kicking and screaming, well, that's a whole other kettle of fish then, in their minds anyway.

The Repubs shouldn't help these people climb out of their hole in any way, shape or form.

Dose of Sanity said...

@ Sofa King. Fine you made me do this to you:

Fine, I'll try to simplify for you, though you'd better practice issue spotting if you want to have any hope on the final.

ISSUE #1: Does 13.19 prevent the arrest of senators under 13.26?

DOS says: No, because of the Constitution or something.

SK says: Well, this is not obviously a constitutional issue, first of all, because these are both statutes. Second, the 13.19 exemption from arrest only applies to senators in *actual attendance* of their duties, which the senators in IL pretty clearly are not.

Article IV of the Wisconsin Constitution:
Exemption from arrest and civil process. SECTION 15.
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.
DOS says: But 13.19 doesn't ONLY apply to attendance in the capitol! Because I say so.

SK says: Maybe, though you offer nothing to support this opinion. Regardless, they are not plainly in actual attendance of any official duties in IL. Furthermore, contempt is a misdemeanor, and 13.19 applies to civil arrests only.

I'm sorry you disagree with the plain language of the statute. The Republicans in the Senate don't.
ISSUE #2: 946.12

SK says: There is a possibility that a reasonable interpretation of 946.12 fits the conduct of the legislators, because they have a non-discretionary duty to attend the legislative session that they are intentionally shirking. The Constitution establishes the duty and grants the Senate the power to enforce it through its own rules.

DOS says: It's pretty clear they're not in violation of that.

SK says: Can you explain why not?

DOS says: ...

Duties set by law. As in "Shall" and with specific timelines. No one is saying the Democrats are guilty of felony. Ask yourself why.
Hope that brings you up to date.

Dose of Sanity said...

@ ST

Sorry you feel that way. I've calmed from before. I still hope to change your mind.

Maguro said...

We need that other guy to stop by again and remind us how brilliant Dose of Sanity is.

Cause I'm just not seeing it right now.

Simon said...

Time's up.

Sofa King said...

DOS -

Okay, so disregarding 13.19, you have a decent point on Article IV. My recollection was that it had a time/place restriction similar to Article I Section 6 of the U.S. Constitution, but I suppose my memory is not as reliable as it used to be. So as it stands there is a conflict between this provision and the one that authorizes the legislature to compel the presence of its members. So while arrest for contempt is not barred by 13.19, it may or may not be barred by Article IV, depending on constitutional interpretation. I don't think it's a clear-cut case either way.

However, on 946.12, you haven't made an argument beyond appeal to status quo. I posted the annotations citing authority that duties need not only be set by statute, but can also be set by legislative rules. This would not be barred by Article IV in any case.

kent said...

We need that other guy to stop by again and remind us how brilliant Dose of Sanity is.

Give him a second to move the sock onto his other hand, first.

Sofa King said...
This comment has been removed by the author.
Sofa King said...

Furthermore, I would remind DOS that contempt is *also* a misdemeanor, meaning it is a crime, and thus the immunity from arrest under Article IV Section 15 would not apply.

Maguro said...

Give him a second to move the sock onto his other hand, first.

Are you sure that's where the sock is?

Dose of Sanity said...

@ Sofa -

Crime is not the distinction:

Members of the legislature shall in all cases, except treason, felony
and breach of the peace, be privileged from arrest; nor shall

Tom DeGisi said...

IANAL!

Plain reading? I think my alternate reading is more plain.

From 13.26 c:

> Refusing to attend or be examined as a witness, either before the house or a committee, or before any person authorized to take testimony in legislative proceedings, or to produce any books, records, documents, papers or keys according to the exigency of any subpoena.

I read this as: (Refusing to attend) or (be examined as a witness, either before the house or a committee, or before any person authorized to take testimony in legislative proceedings,) or (...). So since they are refusing to attend, they are in violation.

Others appear to be reading it as: (Refusing to attend or be examined as a witness, either before the house or a committee, or before any person authorized to take testimony in legislative proceedings,) or (...). So, since they aren't to be a witness before some committee meeting they aren't in violation.

I don't think that's right, on one of two counts. The first is that the words "to attend or" become superfluous according to that reading, and the second is that they are refusing to attend ALL committee meetings in any case, so they are under contempt even under this reading.

Again, IANAL, so I would be very happy for a lawyer to point out how I am wrong.

Yours,
Tom

Dose of Sanity said...

@ Tom

I'll analyze that in a second, but that's not what I'm referring to when I say plain language. (I'm referring to the felony)

Shanna said...

@ Tim - I believe they are still doing their job to be afforded this protection.

How on earth can leaving town (not just town, the state) for the express purpose of fleeing their legislative duties and in violation of Senate rules be “doing their job”?

Tom DeGisi said...

Thanks, Dose, but it's Triangle Man who said that it was a stretch to say that 13.26 c applies. I don't think it's a stretch at all. Reading it as an ignorant non-lawyer I think it's plainly not a stretch under either of two normal English reading. But, IANAL, so there probably is some important plain to any lawyer legal principle of which I am sadly unaware.

Yours,
Tom

Sofa King said...

@ Sofa -

Crime is not the distinction:

Yes, it is.

Please see 2002 WI App 291.

"We conclude that the members of the Wisconsin Constitutional Convention did not intend to create a legislative privilege from criminal arrest and prosecution when they included article IV, section 15 in the Wisconsin Constitution. The phrase 'treason, felony and breach of the peace' in that section was intended to mean 'all crimes.'"

Rep said...

@Dose

Are all Wiscy law students as cocky as you? What are you--a 1L?

Simon said...
This comment has been removed by the author.
Triangle Man said...

Although I think the "contempt" mechanism is flawed, it seems clear that the Senate can vote to compel attendance. The relevant rules are in Senate Rule 15 and Joint Rule 11 (3)

Senate Rule 15
Senate Rule 15. Roll call, quorum. Before proceeding to business, the roll of the members shall be called, and the names of those present and those absent shall be entered on the journal. A member present during any part of a roll call day shall be included in the official attendance roll call for that day. A majority of the membership presently serving must be present to constitute a quorum for the transaction of business; a smaller number, however, can adjourn and may compel the attendance of absent members. When a roll call discloses the lack of a quorum, further business may not be conducted until a quorum is obtained, but the members present may take measures to procure a quorum or may adjourn.
[am. 2001 S.Res. 2]
[am. 2009 S.Res. 2]

(3) A majority of those present, even though a smaller number than a majority of the current membership is present, 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, as provided under section 7 of article IV of the constitution.
[(2) am. 1987 SJR-48]
[(1) am.; (3) cr. 2001 AJR-15]

Dose of Sanity said...

@Rep

I'm only cocky online. Most law students in general are cocky though. Nature of the beast?

Dose of Sanity said...

@ TM

Yes, they can. (they have tried, in fact) But the issue becomes that "compel" word again. :)

Sofa King said...

Most law students in general are cocky though. Nature of the beast?

Maybe. I loved the law school subject matter. I was utterly repelled by most of the other students.

Triangle Man said...

@Tom

I am also not a lawyer, so...

My reading is that contempt rule "c" applies to a number of ways that someone can fail to comply with a subpoena.

Rep said...

Also, regarding whether they are actually in contempt... I think the senate rules are pretty facially ambiguous.

For instance, as Tom pointed out, there could be multiple readings of 13.26(c). Honestly, it would be easier for me to take Tom's reading of 13.26(c) if there was a comma after "refusing to attend." As much as I am skeptical of legislative history, I am sure there is some history to look at or something.

Honestly, one of the things that gives me reason to believe that they are actually in contempt is the fact that the state trial judge said that they appeared to be in violation of the Senate rules (but declined to issue an order).

Also, if the courts are going to refuse to get involved in Senate rules (as it appears), then this legal analysis is kind of irrelevant as long as the Senators interpret the Senate rules to say that the Democrats are in contempt.

Simon said...

Tom, what you're saying is that the question turns on whether "as a witness" modifies "be examined" or "attend or be examined." The absence of a comma, a fortiori given the structure of the dependent clause, points to the latter. Your reading inserts the absent comma ("Refusing to attend, or be examined as a witness, either before the house or a committee"), and that doesn't work in the face of a provision which is otherwise scrupulous in dividing its clause with commas.

Nor does your surplussage argument work. Attending and "be[ing] examined" (=answering questions; no one except Christina Hendricks is summoned before the legislature to be "examined" in the sense of a visual inspection) are discreet and separate activities. To prevail on that point, you would have to argue that one may not attend a hearing yet refuse to cooperate by answering questions. That would be a tough row to hoe; for example, Harriet Miers refused to appear before the US House, but Alberto Gonzales appeared before the Senate, he refused (some would argue) to be examined.

Dose of Sanity said...

Maybe. I loved the law school subject matter. I was utterly repelled by most of the other students.

You went to law school? Really? Why all the confusion today then?

(most of us hate each other here, anyway, its sad)

Triangle Man said...

"compel"

@Dose

In common usage compel means force. Is there a legal definition that differs from this?

Simon said...

Tom, what you're saying is that the question turns on whether "as a witness" modifies "be examined" or "attend or be examined." The absence of a comma, a fortiori given the structure of the dependent clause, points to the latter. Your reading inserts the absent comma ("Refusing to attend, or be examined as a witness, either before the house or a committee"), and that doesn't work in the face of a provision which is otherwise scrupulous in dividing its clause with commas.

Nor does your surplussage argument work. Attending and "be[ing] examined" (=answering questions; no one except Christina Hendricks is summoned before the legislature to be "examined" in the sense of a visual inspection) are discreet and separate activities. To prevail on that point, you would have to argue that one may not attend a hearing yet refuse to cooperate by answering questions. That would be a tough row to hoe. For example, while Harriet Miers refused to appear before the US House, Alberto Gonzales appeared before the Senate yet refused (some would argue) to be examined.

Rep said...

@Dose

You didn't answer my second question... 1L?

Sofa King said...

You went to law school? Really? Why all the confusion today then?

Why would my education have anything to do with your confusion? In any case, give me a break, I've also got real work to do out here so's I can afford to pay my taxes.

Dose of Sanity said...

@ TM

Anything not defined might have separate meaning. :) There is no particular meaning I'm referring to.

However, I agree that "by force" seems likely. That doesn't mean arrest. The only way to get them back from Illinois would be to arrest them.

I wasn't clear about that earlier, I think.

rmblam said...

Layoffs start tomorrow.

http://www.modbee.com/2011/03/03/1582378/walker-tells-ap-layoff-notices.html#

kent said...

Are you sure that's where the sock is?

Evidence in support of your implied alternate theory continues to mount. ;)

Rep said...

Let's get Althouse to weigh in on this. I trust her legal opinion more than Dose's (graduating first at NYU and litigating at S&C earns more respect than a 1L at UW--sorry), and I'm too lazy to Westlaw it myself.

Dose of Sanity said...

@ SK just surprised me on the lack of understanding on some things - very intelligent view, but those from an "untrained" point of view. That comes off as condescending, but I don't mean it so.

I also work 35 hours a week and pay plenty of taxes. And I worked for several years before law school. Don't play that card against me, it gets you no where.

@ Rep - Can't answer that right now. I'll explain why in a few months. :)

Martin L. Shoemaker said...

Rep,

Dose has already learned that Professor Althouse would rather not have commenters self-identify as her students. Dose made that mistake without realizing it was a mistake; but now that he has learned better, I think he would be foolish to further identify himself by specifying a year.

Dose of Sanity said...

@ Rep

Althouse won't weigh in on this because I did. Sorry guys.

Dose of Sanity said...

@ Martin - thanks.

Rep said...

@Dose and others:

Check out this link that was posted earlier in the comments... I just got around to reading it. It is persuasive.

http://www.journaltimes.com/news/local/article_fad6725e-45c7-11e0-8437-001cc4c03286.html

Sofa King said...

@ SK just surprised me on the lack of understanding on some things - very intelligent view, but those from an "untrained" point of view.

I've only made one real error, caused by my over-familiarity with the U.S. Constitution. Everything else I've said has been supported by citation. Everything you have said, save for that one point, has been supported by assertion. So I don't really know what you are referring to here.

Dose of Sanity said...

@ SK

I guess its the way your reading the statutes and cases. Particularly the way you read "attended".

If it was just a case of going to quickly, I apologize. You are obviously intelligent.

Dose of Sanity said...

OH NO. I MADE THE YOUR AND YOU'RE ERROR.

Forgive me.

rhhardin said...

Judge: Are you trying to show contempt for this court?

Mae West: On the contrary, your Honor, I was doing my best to conceal it.

Rep said...

@Dose, @SK, and others:

Check out this link that was posted earlier in the comments. I just got around to reading it. It's persuasive.

Constitutional authority for each house to "compel the attendance of absent members in such manner and under such penalties as each house may provide."

Argues that Senators have nondiscretionary duty to show up for work under Senate Rule 16: 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."

And more.

http://www.journaltimes.com/news/local/article_fad6725e-45c7-11e0-8437-001cc4c03286.html

Sofa King said...

I guess its the way your reading the statutes and cases.

Undoubtedly I am reading them in a partisan way. I trained to be an advocate, not a law professor. However, I also read them in a *plausible* way - plausible enough, that is, that you will need to bring better authority than, um, *none*, to make your case.

Good luck!

Triangle Man said...

The text of the resolution makes it clear that the Senators are being held in contempt for "disorderly conduct:" for failing to appear in the senate chambers after being ordered to appear by 4pm today:

"
Resolved, That Senators Carpenter, S. Coggs, T. Cullen, Erpenbach, Hansen, Holperin, Jauch, C. Larson, Lassa, Miller, Risser, Taylor, Vinehout, and Wirch are hereby ordered to appear at the senate chambers on or before 4:00 p.m. today, March 3, 2011, and to remain in the senate chambers until the senate is duly called to order and for such additional time as necessary to be counted as part of the quorum of that senate session; and, be it further

Resolved, That if any of the named senators fails to appear in the senate chambers on or before the prescribed time, then that member shall be held guilty of contempt and disorderly behavior by the senate, and the majority leader shall immediately issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers, by warrant or other legal process, as he may deem necessary in order to bring that senator to the senate chambers so that the senate may convene with a quorum of no less than 20 senators;"

Rep said...

@Dose, @SK, and others:

Check out this link that was posted earlier in the comments. I just got around to reading it. It's persuasive.

Constitutional authority for each house to "compel the attendance of absent members in such manner and under such penalties as each house may provide."

Argues that Senators have nondiscretionary duty to show up for work under Senate Rule 16: 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."

And more.

http://www.journaltimes.com/news/local/article_fad6725e-45c7-11e0-8437-001cc4c03286.html

Rep said...
This comment has been removed by the author.
Martin L. Shoemaker said...

Hey, Triangle Man, shows what I know. I was kidding when I made the disorderly conduct claim, making a joke regarding the Obamacare individual mandate. I never expected that to be the real claim.

There is no doubt that their conduct is interrupting the proceedings. I'll be interested, though, to see how well the claim stands regarding "disorderly" and "in the immediate view of either house or of any committee thereof".

Rep said...

@Dose, @SK, and others:

Check out this link that was posted earlier in the comments. I just got around to reading it. It's persuasive.

Constitutional authority for each house to "compel the attendance of absent members in such manner and under such penalties as each house may provide."

Argues that Senators have nondiscretionary duty to show up for work under Senate Rule 16: 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."

And more.

http://www.journaltimes.com/news/local/article_fad6725e-45c7-11e0-8437-001cc4c03286.html

Rep said...

@Dose, @SK, and others:

Check out this link that was posted earlier in the comments. I just got around to reading it. It's persuasive.

http://www.journaltimes.com/news/local/article_fad6725e-45c7-11e0-8437-001cc4c03286.html

t-man said...
This comment has been removed by the author.
Dose of Sanity said...

@ Rep - it ignores the fact that the compulsion might conflict with the constitution.

Good source though, keeps it clear.

Fen said...

an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers, by warrant or other legal process, as he may deem necessary in order to bring that senator to the senate chambers

Oh man, I would pay some serious cash to get Dog the Bounty Hunter in on this one.

I may just give him a call.

Tom DeGisi said...

Triangle Man,

> My reading is that contempt rule "c" applies to a number of ways that someone can fail to comply with a subpoena.

Are people ever required to "attend" to comply with a subpoena? That word (attend) is not needed to refer to a subpoena.

Still Not A Lawyer.

Yours,
Tom

Rep said...

@Dose

Yeah, I understand that there are potentially conflicting constitutional provisions--the compulsion provision and the arrest provision.

But the compulsion provision gives the legislature a fair amount of authority to decide how to compel attendance. Why, a good lawyer might ask, does the constitution give the legislature this power if the arrest provision trumps the compulsion power and literally makes the "power to compel" meaningless?

kent said...

Reason link, re: how Wisconsin's public unions managed to screw their own pooch, unaided: Shikha Dalmia on Wisconsin's Real Lesson

Simon said...

Tom, what you're saying is that the question turns on whether "as a witness" modifies "be examined" or "attend or be examined." The absence of a comma, a fortiori given the structure of the dependent clause, points to the latter. Your reading inserts the absent comma ("Refusing to attend, or be examined as a witness, either before the house or a committee"), and that doesn't work in the face of a provision which is otherwise scrupulous in dividing its clause with commas.

Nor does your surplussage argument work. Attending and "be[ing] examined" (=answering questions; no one except Christina Hendricks is summoned before the legislature to be "examined" in the sense of a visual inspection) are discreet and separate activities. To prevail on that point, you would have to argue that one may not attend a hearing yet refuse to cooperate by answering questions. That would be a tough row to hoe. For example, while Harriet Miers refused to appear before the US House, Alberto Gonzales appeared before the Senate yet refused (to some extent, some argue) to be examined.

Simon said...

Discrete and separate, I mean. Sorry. I'm new again at this.

Mickey said...

So it's official. They're all in contempt.

What a day to be a con law professor in Madison, Wisconsin, huh?

Looking forward to your comments, Ann.