Senate Majority Leader Scott Fitzgerald was repeatedly warned he would be stepping outside the law if he forcibly returned 14 Democratic senators who fled Wisconsin in February, according to internal emails.
Records obtained from the offices of Fitzgerald and Senate Sergeant-at-Arms Ted Blazel show Fitzgerald was told he was on shaky legal ground by attorneys from three state agencies. The memos and email correspondence were released in response to a public records request from the State Journal.
In an interview Friday, Fitzgerald, R-Juneau, said the flight of the senators and the resulting legislative stalemate were “uncharted territory” that no one knew how to navigate.
But he acknowledged the efforts to return the senators to Madison came off as “comical” and would have become a public relations “disaster” if any lawmakers had been hauled back to Madison in a squad car.
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“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.”
Senate Minority Leader Mark Miller, D-Monona, said Fitzgerald was more interested in bullying Democrats than “working to find a reasonable compromise that protected people’s rights and helped create jobs.”
The ordeal began Feb. 17 when the Democrats fled to avoid a vote on Gov. Scott Walker’s controversial anti-union bill. Fitzgerald issued a “call of the house” to compel the 14 senators, who went to Illinois, back to session. On Feb. 18, Fitzgerald sent State Patrol officers to Miller’s home. He was not there.
Three days after the walkout, on Feb. 20, Fitzgerald staffer Rob Richard reviewed his understanding of the law with attorneys from the Legislative Council and the Legislative Reference Bureau. Richard recited the state constitution’s prohibition against arresting lawmakers while the Legislature was in session except in cases of treason, felony or “breach of the peace.”
“It would appear that Section 15 prevents us from ‘arresting’ or ‘physically forcing’ a member to attend,” Richard wrote in an email to attorneys at the two legislative service agencies and John Hogan, Fitzgerald’s chief of staff. “It now seems that monetary penalties and removal of privileges may be our only recourse with this resolution.”
Nevertheless, four days later, Fitzgerald once again sent troopers from the State Patrol, which is run by his father, Stephen Fitzgerald, to senators’ homes.
On March 3, two weeks after the walkout, Fitzgerald ratcheted up the pressure. He called his 18 Republican colleagues into session, and when the Democrats did not return by 4 p.m., the Republicans found them in “contempt of the Senate.” Fitzgerald ordered that the Democrats be “forcibly detained” if they stepped foot in Wisconsin.
That day, Fitzgerald and his private attorney, James Troupis, sounded confident in Fitzgerald’s legal authority to bring the errant senators back to Madison. Troupis cited a constitutional provision that allows the Senate to “compel the attendance of absent members.”
The Senate resolution authorized Blazel to use force and enlist the help of law enforcement to bring in the missing members. Troupis explained that detention was not an “arrest” because the senators were not suspected of any crimes.
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 Troupis, three hours later, was defiant: “We are not withdrawing the Order.”
On March 7, Senate Chief Clerk Robert Marchant asked for a meeting with the Department of Justice, Fitzgerald’s office and Blazel to clarify what the sergeant-at-arms could legally do to “understand the risks involved in proceeding.”
The effort ended March 9 after Fitzgerald removed certain “fiscal” items from the bill that had required a 20-vote majority, and it quickly passed the Senate. Implementation of the law — which strips most collective bargaining rights from most public employees in Wisconsin — is now stalled in a court battle.
Fitzgerald said he doesn’t regret trying to force the Democratic senators back but “I certainly understand it was futile.”
“Every time we made a move it was always something that you in your wildest dreams never that you’d be involved with,” Fitzgerald said. “The discussions we had were incredible, almost surreal.
“They characterize me as some evil overbearing guy who was trying to do all these dirty tricks. We were just trying to do the best we could ... to figure out how to get these things back on track — get the Senate back.”
Sen. Jon Erpenbach, D-Middleton, called the efforts “pathetic.”
“They wasted a lot of time trying to figure out how to make us look bad rather than working to resolve the issues,” Erpenbach said.