April 2, 2011- 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.
“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.