Nathan Sass

Are the “WI Fugitive 14” Potential Felons?

In Politics, Scott Walker, WI Budget Battle on February 20, 2011 at 11:10 AM

The actions of 14 Democrat Wisconsin State Senators has become national news. These 14 men and women have left the state of Wisconsin in order to prevent a quorum in the Senate, blocking passage of the Budget Repair Bill.

So far, these 14 have not faced any legal ramifications, but a close look at the WI Constitution and Code indicates that they may be in more danger than they may believe.

The Wisconsin Constitution, Article IV Section 7 reads (emphasis added):

Organization of legislature; quorum; compulsory attendance. SECTION 7.

Each house shall be the judge of the
elections, returns and 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.

http://legis.wisconsin.gov/rsb/unannotated_wisconst.pdf

The reading of this section is clear an unambigous.  A majority of members may compel the body to convene and all members are required to attend the session.

However, there are no prescribed mechanisms for enforcement of Section 7 specifically set out in the WI Constitution, which has seemed to tie the hands of the Senate to compel attendance.

Fortunately, I believe there is a applicable WI code that can be applied to these 14 Senators, and they would not like the ramifications.

According to the WI Code (emphasis added):

 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;

http://law.justia.com/wisconsin/codes/2010/946/946.12.html

 Violation of WI Statute 946.12(1) is a class I felony, and is punishable by 3 and one half years in prison, and a fine of $10,000 or both.

Some may argue that the WI Constitution prevents the arrest of members of the WI Legislature, and that is also correct, to a point.  However, that provision of the Constitution states in full (emphasis added):

 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.

 http://legis.wisconsin.gov/rsb/unannotated_wisconst.pdf

Since a violation of WI Statute 946.12(1) is a class I felony, and a failure to respond to the Call of the House is clearly a willful and intentional refusal to perform a known mandatory duty, each of the “fugitive 14” can be charged immediately with a felony count by the WI Attorney General in state court.

An arrest warrant could then be issued, consistent with the full text of Article IV – Section 15, and the 14 Senators would be considered known fugitives.

At this point, anyone with knowledge of their location and failing to report it, and/or providing any material assistance to the fugitives could also face charges of aiding and abetting a known fugitive.  This would include family members who could also have warrants sworn for their arrest.

If the Governor, who some have portrayed as a dictator, chose to do so, he could direct the Department of Justice to initiate proceedings immediately, and begin arrests.  He could also petition the state(s) where the fugitives are residing to arrest and turn over said Senators.

Upon conviction, each of the 14 would be immediately disqualified from service as an elected official and their seats vacated.

In reality, political considerations will probably prevent any of this from occurring.  I am sure Governor Walker does not want to project an image of being unduly harsh to his opposition, and would refrain from using all the tools at his disposal.

Personally, I don’t think I would be so magnanimous, and would follow the law as written.  If we as a society will condone and/or ignore clear violations of black letter law, we have already failed.  No one, and nothing, is above the law.

The law must always be paramount, even when we do not necessarily agree with it.  A nation, or state in this case, where the law is not supreme has descended into anarchy and cannot long survive.

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  1. Actually I do believe that the Kenosha Senator Wirch already has a warrant being sworn for him for this Felony as well is looking at a recall for his actions, or rather inaction of the last few days.

  2. I would like to see Gov. Walker enforce this. Taxpayers pay these fools to do their job. You want to make a stand, that’s fine , but there are consequences are they ready to pay the price? If I don’t pay my taxes because, I don’t agree with what these 14 are doing ,what will be my consequence?

  3. Now, now. Don’t you know? Laws are for the sheeple and Republicans. The elite Democrats are well above those trifling details. They obviously know what’s best for the rest of us, so of course they are outraged at the mere suggestion that they, of all people, should obey the law….

    (Man! Do you know how hard it is to be that sarcastic and not gag???)

  4. Anyone else just shake their heads at the irony? Conservatives are always labeled as heartless and unfeeling yet here the WI law states that these Senators should be arrested and prosecuted and not one of their Republican counterparts is calling for that to happen. Then I think of Nancy Pelosi carrying that gigantic gavel on her way to the Capitol to bash the American people over the head with Obamacare, that is so wonderful we have to be forced to buy it. But she loves the people and Republicans just want people to “die quickly” (former Fla Rep Alan Grayson). Truly it is funnier than any SNL skit, except for the fact that it is actually happening. Hang on WI, they will be bussing the protestors down to Ohio to protest SB 5. So maybe your state can finally get back to work.

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