Scott Fitzgerald
Senate majority leader Scott Fitzgerald (R-Juneau) signs one of 14 orders to detain the missing 14 Senate Democrats at the state Capitol in Madison, Wis., Thursday, March 3, 2011. M.P. KING – State Journal

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.

Contact Mary Spicuzza at mspicuzza@madison.com or 608-252-6122; contact Dee J. Hall at dhall@madison.com or 608-252-6132.

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