So, is this legal/Constitutional???

[charlestudor2005]

Just curious as to whether or not you think this action is legal/Constitutional. Does it amount to an ex post facto law? Not just the arrest warrants, but also the $100 daily fine.

From http://host.madison.com/wsj/news/loc...cc4c03286.html

Senate Republicans Thursday ordered the forcible detention of their 14 Democratic colleagues, who fled the state two weeks ago to avoid a vote on Gov. Scott Walker's controversial budget repair bill.
"They have pushed us to the edge of a constitutional crisis," Senate Majority Leader Scott Fitzgerald, R-Juneau, said of the boycotting senators.
But it remained unclear Thursday whether the resolution and warrants seeking to force the senators back to the Capitol are legal. The state constitution prohibits the arrest of legislators while in session unless they're suspected of committing felonies, treason or breach of the peace.
Democrats say the Republicans are overreaching, and they have consulted an attorney for an opinion on whether the GOP actions are legal.
"The Republicans have gone around the bend," said Sen. Chris Larson, D-Milwaukee. "They've just increased their bullying tactics and are producing an even greater divide in our state."
But James Troupis, an attorney for Fitzgerald, said rounding up the senators is legal under a constitutional provision that allows the Senate to enforce its own rules, including mandatory attendance. That section allows each house to "compel the attendance of absent members."
Troupis insisted the detention is not an arrest because the senators are not suspected of any crimes. Rather, he said, the resolution seeks to enforce a legislative process.
"The Legislature has its own powers - that's the principle here," he said. "The constitution is quite explicit in providing our Legislature with independent authority."
But the distinction between "arrest" and "detention" was lost on a pair of Madison attorneys who are active in Democratic politics who said the state constitution provides an absolute bar against legislators being arrested for non-criminal offenses.
In an open letter to the Senate, Madison attorneys Lester Pines and Susan Crawford said "none of the fourteen absent Senators has been charged with a crime. Nor has any crime occurred. The Wisconsin Senate has absolutely no authority to order any of its members arrested or taken into custody in order to compel their attendance."
Pines said he put out the legal analysis because he believes the legal advice the Senate has been given is wrong.
Meanwhile, the governor said he remains optimisic the Democrats will return soon.
"My hope is we can figure out a way to help the state senators come back on their own," Walker said.
Republicans voted unanimously Thursday morning to give the Democrats until 4 p.m. to appear before the Senate. The 14 Democrats are believed to be in Illinois. Because they failed to show up, the Senate found them "in contempt and disorderly behavior."
The Senate resolution authorizes the Senate sergeant at arms to use force and enlist the help of law enforcement to bring missing members to the Capitol - any time of the day or night.
Longtime Sen. Fred Risser, D-Madison, said it was "below the dignity of the state Senate to be spending its time passing such resolutions."
Thursday's move was made in concert with a lawsuit filed Tuesday by Oconto County Republican Party Chairman Kevin Barthel to compel Sen. Jim Holperin, D-Conover, to return to the Senate,
Barthel, who also was represented by Troupis, said in a statement that he filed the action as an individual resident of Holperin's Senate district.
"In my neck of the woods ... folks fortunate enough to have jobs do them every day following the rules of employment. If not, they quit or get fired," Barthel said.
Oconto County Circuit Court Judge Jay Conley ruled it was clear that Holperin was absent without leave from the Senate and violating a "positive and plain duty" of his position. But Conley said only the Senate had the right to enforce the attendance rule.
Under the resolution adopted Thursday, the senators may only be taken into custody if they return to Wisconsin, Fitzgerald said. The resolution does not call for their extradition from another state. Starting Friday, the missing senators also will be subject to $100-a-day fines, part of a series of ever-harsher measures taken by Senate Republicans to force the Democrats back to Madison.
Some police - many of whom have marched alongside protesters against Walker's plan to effectively end collective bargaining for public workers - have already objected to the arrest resolution. Jim Palmer, head of the 11,000 member Wisconsin Professional Police Association, called it an "unreasonable abuse of police power."
State Journal reporter Clay Barbour contributed to this report.

[gnadfly]

I wonder what a "reasonable abuse of police power" is.

[pjorourke]

Who was it that said "Elections have consequences"

[discreetgent]

Originally Posted by pjorourke

Who was it that said "Elections have consequences"

Many politicians have. Dick Gephart, Lindsey Graham, Barack Obama, Rand Paul, etc, etc,

[charlestudor2005]

Originally Posted by discreetgent

Many politicians have. Dick Gephart, Lindsey Graham, Barack Obama, etc, etc,

You could add Newt to that. Any of the Christians in this country believe in reincarnation?

[pjorourke]

Originally Posted by discreetgent

Many politicians have. Dick Gephart, Lindsey Graham, Barack Obama, Rand Paul, etc, etc,

Okay, so this was one of those rare occasions when a politician was telling the truth.

The simple fact is that the Dems in Wisconsin (and a lot of other states) lost BIG TIME in the 2010 elections. These 14 renegade ones are trying to invalidate those elections by taking their ball and going home because they don't like the situation. This behavior isn't attractive among children and its less so for adults. As noted in the article Chuck copied, the legislature in WI sets its own rules. So the 14 probably don't have a leg to stand on, but I'm sure it will be litigated.

I've read a number of analysis that say the WI Senate can pass a bill changing collective bargaining without them. I think that would be more effective in getting them back.

[DFW5Traveler]

I would have to say that they aren't representing the people that voted for them very well. I know you, CT, think they are by not voting, but they were voted on to represent their constituents by participating with either a yea or nay vote. By them running for the hills they are not providing a vote and circumventing the process. I'm sure their constituents would be unhappy if the vote passed, however, they would still have respect for the politicians for participating. This is no more than a temper tatrum, "I'll hold my breath until you give in." It shows a true lack of respect for the office they hold.

[WTF]

Originally Posted by pjorourke

Who was it that said "Elections have consequences"

As will the next election.

There is no law stating they must be there.

I had dinner with a woman from WI last night and her take was they might just recall the GOP senators before the Dem's.

Poetic justice in my mind.

[Iaintliein]

It would be a matter of what is allowed by the Wisconsin Constitution I'd think. In my simplistic layman mind it seems that if someone is hired (elected) to do a job there must be some way to compel them to do that job or to fire them. Of course, that is counter to the pro-union stance of hired for life no matter what.

[Mazomaniac]

The answer on both the "detention" and the daily fine is "maybe". The Republicans have stepped into a mud pit on this one. The water's too murky to say for sure.

However, when you give a law professor a chance to expound on the law it's impossible for him to resist . . . .

The Wisconsin Constitution - like the US Constitution - prohibits the arrest or detention of lawmakers unless charged with a serious crime (and even then there might be limits). The Dems argue this prevents what the Republicans are trying to do. The Republicans argue that the provision is meant to prevent somebody interfering with the attendance of a lawmaker, not to impede the Senate from bringing lawmakers in.

Seems like a stalemate until you consider the US Constitution.

The Thirteenth Amendment abolished involuntary servitude in the US. That means that you can't arrest or detain somebody in order to force them to do their job. As the Supreme Court has said, you can't create "a situation in which the victim is compelled to work by law." Elected office is, after all, nothing but a form of employment. Any use of state force to try and get the Dems physically back into the Senate would violate the Thirteenth Amendment.

That's obviously never been tested but it seems like a no-brainer to me. You just can't arrest and hold somebody because they didn't come to the office. (And before we get the inevitable argument about military service: No. The Thirteenth Amendment does not apply to the military where there's a unique special exemption under the Constitution.)

As for the fine, that's a closer question but one that I think is still a big problem. Again like the US Constitution, the Wisconsin Constitution prohibits the reduction of a lawmaker's pay during his or her term. If fines like this are allowed then that clause becomes meaningless. The dominate party could simple fine a lawmaker out of office rather than just cutting off his pay. I think the fine loses in court as well.

In the end both of these measures are just political stunts. They're not going to hold up in court and everybody knows it. The Republicans up here are taking even more heat on it than they were before. They're making themselves look like a bunch of buffoons with these school yard tactics.

Cheers,
Mazo.

[Rudyard K]

Originally Posted by Mazomaniac

As for the fine, that's a closer question but one that I think is still a big problem. Again like the US Constitution, the Wisconsin Constitution prohibits the reduction of a lawmaker's pay during his or her term. If fines like this are allowed then that clause becomes meaningless. The dominate party could simple fine a lawmaker out of office rather than just cutting off his pay. I think the fine loses in court as well.

Yes, I guess it is possible that the dominate party could simply fine a lawmaker out of office...just as that dominate party could drag them behind a pickup truck and that would probably also be against the law. But neither of those is the facts here. Aren't they fining them for not doing what "his/her" job" calls for him/her to do?

[Mazomaniac]

Originally Posted by Rudyard K

Aren't they fining them for not doing what "his/her" job" calls for him/her to do?

Well, put it that way and you're right back into the Thirteenth Amendment problem, aren't you?

See the paradox?

If you're cutting their salary for "not doing their job" then you're violating the Wisc Constitution that says you can't cut pay for any reason.

If you're fining them for "not doing their job" then you're the using the force of law to compel them to work in violation of the Thirteenth Amendment.

Either way you lose - and that's if you can survive a challenge about what "not doing their job" actually means and who gets to decide that question. AFAIC my Senator is doing the best damn job I've gotten out of a state politician in the last thirty years.

Like I said, the issue of the fine is a closer question since it doesn't raise the specter of personal liberty the way detention does. There's at least a colorable argument that the fine is legal. It don't think it is, but I can at least see how others jurists might disagree.

Cheers,
Mazo.

[Randy4Candy]

how it's always the repubs who trot out the tactics outlined in the article? For all of the whining, hand-wringing and gnashing of teeth about how bad them thar liberrels are and how they are forcing the whole country to do their bidding at extreme peril to the republic, I'm having a hard time remembering them suggesting, either in public or as a matter of policy, retribution or "encouragement" aimed towards people they don't agree with in order to get them to "behave properly." But, I'm supposing the backlash coming from the oppressed masses in boardrooms across the country and their minions, such as Scotty Walker, is understandable.....

Whew! It sure must be hell trying to be the tough, macho guy - especially if, like Walker, one is unburdened by functioning brain mass.

Elections do have consequences and the 2010 ones will result in a backlash in 2012 against many who won in 2010. Typical deal, run on jobs (or whatever they can advertise the dems are screwing up) and then focus on cultural issues and stuffing more power and $$$ towards the super huge corporations. This deal is way far from being over. Hell, if I were a demo political consultant, I'd be tempted to send out checks to Walker and some others for writing all of the campaign ads I'd use on behalf of my clients.

[pjorourke]

Hope & Change Baby!! Hope & Change!

[topsgt38801]

I am not sure the Wisconsin Constitution or the US Constitution is relevant in any of these issues. Both parties in states and the US legislature and the Executive Branch have violated parts of the Constitution that they all swore to uphold. The same way with the US Supreme court making rulings from liberal and conservative sides that are not truly the real intent of our forefathers who wrote the document.

The same way that a US Supreme Court Justice stating that it is an evolving document whose interpretation is constantly changing with the world views and views of the people.

It also goes back to our Bill of Rights that so many people are declaring privleges to be rights that are not truly allowed under the Bill of Rights. There is a big difference in a right guranteed under the Bill of Rights and a priviledge we can earn.

The whole damn government from local all the way to the Federal level is so screwed up and all of them are guilty of not upholding the Constitution as it was written and intended.

I am not taking sides for any party as I stated all are equally guilty of not upholding the laws they swore to uphold.

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