In a coda to the walkout by state Senate Democrats in Wisconsin, who fled the state in an attempt to block Gov. Scott Walker’s (R) anti-public employee union bill, it’s now been revealed that state Senate Majority Leader Scott Fitzgerald (R-WI) had a hard time finding ways to force the Dems back — and finding police officers who would enforce such an order for him.
The Wisconsin State Journal reports:
“The whole thing was a mess,” Fitzgerald said. “You just can’t compel a senator to come back to the chamber.”
He said the reality was brought home when police agencies refused to carry out his March 3 order to forcibly detain the senators. Among them was Rock County Sheriff Robert Spoden, who said his department would not honor any order to bring in Sen. Tim Cullen, D-Janesville.
Said Fitzgerald: “There was no cop in the state that would enforce it.”
In addition, Fitzgerald had to grapple with a tension in the law, calling into question just how far he could go. On the one hand, the state constitution says that legislators cannot be arrested while the legislature is in session, except for treason, felony or “breach of the peace.” This led attorneys with the legislature to argue that the fugitive Dems could not be arrested and brought to the legislature, if they came back to Wisconsin.
On the other hand, Fitzgerald and his private attorneys noted that the constitution allows the chamber to “compel the attendance of absent members” — thus maintaining that they could have the Dems “forcibly detained,” but not call it an arrest.
Things came to a head in the attempt to have law enforcement detain the Dems if they crossed the border back to Wisconsin:
When Fitzgerald tried to have the order to detain put out on the statewide system that officers use to check for arrest warrants it drew the attention of the state Department of Justice, which urged the Senate to back down.
“We would strongly recommend that you attempt to get the Senate’s Order to Detain out of the system, i.e. to the extent possible indicate publicly that it has been withdrawn so that law enforcement do not rely upon it and attempt to enforce it, thereby creating unnecessary liability exposure to them and the state,” Kevin Potter, an assistant attorney general, said in a March 4 email.
The email response from [Fitzgerald’s private attorney] Troupis, three hours later, was defiant: “We are not withdrawing the Order.”