To lay the necessary foundation, an understanding of a couple of provisions of the ‘Wisconsin Constitution is necessary. Other provisions of the state constitution are also implicated by this issue; however, it is not necessary to discuss them immediately. To begin, the state constitution provides: 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 ‘Wis. Const. art. IV, § 7. Because the protested bill contains fiscal provisions, however, “three- fifths of all the members elected to such house shall in all such cases be required to constitute a quorum therein.” Id. at art. VIII, § 8. The Wisconsin Senate has utilized the authorization provided by article IV, § 7 and established rules governing situations in which it is necessary to “compel the attendance of absent members.” Wisconsin Senate Rule 81 provides for a parliamentary procedure known as a “call of the house.” A call of the house is defined as “A legislative body's order compelling each absent member's attendance, usually instructing that the sergeant at arms arrest and present each absentee Black's Law Dictionary, 232 (9th ed. 2009) citing Henry M. Robert, Robert's Rules of Order Newly Revised § 40, at 339 (10th ed. 2000) (“In legislative bodies or other assemblies that have power to compel the attendance of their members, a procedure that can be used to obtain a quorum, if necessary is the motion for a Call of the House. This is a motion that unexcused absent members be brought to the meeting under arrest.” |. In the Wisconsin Senate, a call of the house requires five senators to invoke the procedure and “thereby require absent members to be sent for...” ‘Wis. Sen, R. 81. A separate Senate Rule, Rule 84, provides for the process in which absent members may be sent for, or compelled into attendance: Sergeant to bring in absentees. The chief clerk shall immediately call the roll of the members, and note the absentees, whose names shall be read, and entered uponthe journal in such manner as to show who are absent with leave and who are absent without leave. The chief clerk shall furnish the sergeant at arms with a list of those who are absent without leave, and the sergeant at arms shall forthnvth proceed fo find and bring in such absentee. (emphasis added). Thus, it is the sergeant at arms who may proceed to bring in the absent members. See Bumam v. Davis, 2003 WL 25301368 (Tex. Dist, 250th) (declaring that “the Deparment of Public Safety [...] lacks legal authority to arrest members of the Texas House of Representatives in response to a call for quorum . . ..”), rucated, 137 S.W.3d 325 (2004). The rule makes no mention of either the state police or the sergeant at arm's authority to delegate his duties to the state police! Some might counter this textual argument with the account of the U.S. Senate sergeant at arms, who, with the assistance of U.S. Capitol Police, carried Senator Bob Packwood of Oregon into the U.S, Senate chamber feet first in 1988, Senate.gov, The Senate Enforces Attendance, htep:www.senate.gov/artandhistory/history/minute/Compulsory_Attendance.htm (last _ visited March 1, 2011), After all, the U.S. Constitution, like the Wisconsin Constitution, provides for compelling members of Congress into attendance. U.S. Const. art, 1, §5, cl. 1. The U.S. Senate has provided the manner in which absent members may be compelled into attendance. U.S. Sen. R. VI. Senate Rule XI provides A quorum shall consist of a majority of the Senators duly chosen and sworn, 2. No Senator shall absent himself from the service of the Senate without leave. 3. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. 4. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Ams to request, and, when necessary, to compel the attendance of the absent Senators * Contrast the Wisconsin senate rule with the comparable Alaska rules a issue in Shult= Sundberg, 877 B Supp. 1491 (D. Alaska 1984). In Shultz, the dstice court granted qualified immunity to ovo state toopers and the ‘executive director of the Aluka State Troopers for their role in compelling a state representative to attend 2 joint sesion of the legiature. The district court stated that its “cencusion rests primarily on the apphiation of |...) the Uniforms Rules [of the] Alaska State Legislature. Rolle 16(e) provides that the presiding olficer of the house may direct the sergeantatarms to obtain asitance fom the Departnent of Public Safty wo secure the atendance of any missing member.” dat 1497 (emphass added)which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order. (emphasis added). Therefore, one might be inclined to use the events surrounding Senator Packwood’s compelled attendance, involving the U.S. Capitol Police, to make the short leap from the federal legislative realm to the state legislative realm in arguing that the involvement of state police in Wisconsin dows not create any legal problems. But while the two situations seem similar, there is one key difference: the Sergeant at Arms of the U.S. Senate shares with the Sergeant at Arms of the U.S, House of Representatives and the Architect of the Capitol over the U.S. Capitol Police. See 2 U, § 1969; see also Thing v. United States, 16 Ct. Cl. 13 (1880) (“The members of the apitol police are appointed by the Sergeants-at- ‘Arms of the two house of Congress and the Architect of the Capitol Extension [and] are subject to their control. . . .”); Senate.gov, Sergeant at Arms, http://www.senate.gov/artandhistory/ history/common/briefing/sergeant_at_arms.htm (last visited March 1, 2011). The Wisconsin state police, however, are not under the responsibility of the Wisconsin Senate sergeant at arms, Rather, they are organized under the authority of the Wisconsin secretary of transporta ‘Wis, Stat. Ann, § 110.07 (“The secretary shall employ not more than 399 traffic officers.”). Therefore, having settled the initial question of who has the authority to compel the attendance of absent Wisconsin senators—the Senate sergeant at arms alone—it remains unsettled the bounds his or her authority. The Wisconsin Constitution provides that the Senate sergeant at arms is an elected officer of the legislature, Wis, Const. art, XII, § 6. A statute provides for the sergeant at arms salary and for the reimbursement of expenses, but provides few details as to the duties accompanying the position, merely stating that the sergeant at arms “shall perform all such * Wisconsin Capitol Police are organized under the authority of department of administration, See Wis, Stat, ‘Ann. § 16.84.duties as by custom appertain to the office of sergeant at arms and all duties imposed by law or by the rules.” Wis, Stat. Ann. § 13.18, Authority is scant as to what “duties as by custom appertain to the office,” but a mid-nineteenth century Wisconsin Supreme Court case does provide some insight.’ In Massing v. State, 14 Wis, 502 (1861), the sergeant at arms, under the direction of various committees of the legislature, “served certain subpoenas, warrants, ete., duly issued by said committees, and had made arrests of members in different parts of the state, under a call of the house Pda 2. The sergeant at arms, in carrying out these functions, had incurred expenses totaling $1,361 but had only received payment of $60. He brought suit for the balance. The Wisconsin Supreme Court found itself tasked with defining the duties of a sergeant-at-arms. In the words of the court, “If the performance of those services was a part of his duties as sergeant-atarms, and if the five dollars per day was all that he could legally claim for performing the duties of that office, it is clear that he has no claim to recover anything more.” Id. at 504, The court held that his expenses were within his duties as sergeant at arms: But that these services were a part of the regular duties of a sergeant-at-arms, seems to us too plain to admit of any doubt. The rules of the assembly under which the plaintiff acted, prescribed certain specific duties, and then provided that he should “perform all other services pertaining to the post of sergeantat-armms.” In Cushing's Law and Practice of Legislative Assemblies [...] the duties of a sergeant- atarms are thus stated: “The duties of this office are analogous to those of a sheriff in a court of justice. They consist principally in attending upon the assembly, maintaining order among the persons there present—serving the processes and executing the orders of the assembly—giving notice to the presiding officer of persons attending with messages, or other communications, or in obedience to the orders of the Assembly—anesting persons, whether members or strangers, ordered to be taken into custody—and restraining in confinement, in his custody or elsewhere, all persons subjected thereto by way of punishment.” The Senate rules are just as vague, stating that “[iJhe sergeant at arms shall .. [perform all other services pertaining co the olfice of sergeant at arms.” Wis. Sen. R. 6(2)Q) * With regards to the ability of Congress to arrest its own members, the Supreme Court Kithauns » Thompson, 103 US. 168, 189-90 (1880), stated, in dicta, that “the Constitution expresly empowers each House t0 punish its own members for disorderly behavior. We see no reason to doubt this punishment may in proper case be imprisonment, and that it may be for refusal to obey some rule on that subject made by the House for the preservation of order.”Id, 504-5, Furthermore, the Massing court reemphasized the sheriff analogy, stating “it is generally understood to be as much the duty of the sergeant-at-arms to execute the process and hold the persons in custody as it is to be the duty of a sheriff to perform similar services for a court.” Id. at 505. Thus, while the Massing court recognized the similarities between the sergeant-atarms and Jaw enforcement in a call of the house procedure (and also the authority of the sergeant-atarms ation of to arrest members), it did not recognize the authority of law enforcement, or the deleg authority by the sergeant-at-arms to law enforcement, to participate in compelling the attendance of absent legislators, Having answered the bounds of the sergeantat-arms’ authority, one last state constitutional hurdle must be cleared—the legislator’s privilege from arrest. In Wisconsin, “Members of the legislature shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest... .” Wis, Const. art IV, § 15. Consequently, the question to be asked is that granted the sergeant-at-arms’ inherent authority to arrest, is that authority trumped by the privilege? This was the issue confronted by the New Hampshire Supreme Court in Keefe ». Robe 355 A.2d 824 (1976). In Keefe a state representative was asked by the sergeant-at-arms to return to chambers, where “the presence of a quorum was being questioned... .” Id. at 825, Afier the representative's refusal, the sergeant-atarms placed the representative under arrest. Id The representative was released from custody when the house adjourned. Id. The representative brought suit claiming false arrest and false imprisonment. Id. at 826, can be no doubt that when a First, the New Hampshire Supreme Court held that “The call of the house has been ordered the attendance of members may be compelled.” Furthermore, the language of the court placed this authority squarely, and solely, on the sergeant-at-arms Specifically, the court stated that “[ulpon call of the house, those absent members may be taken into custody by the sergeant-at-anms and returned to the chamber.” Id, Second, as to the speaker ofthe house’s lability in ordering the sergeant-at-arms to take the representative into custody, the court held that the speaker was protected by the state constitution’s speech and debate clause, Id. at 827. Finally, the court rejected the representative's argument that he was privileged from arrest under the constitution. The court held that “this type of custody by the sergeant-at-arms at the direction of the speaker attempting to secure a quorum is not the type of arrest which this provision was intended to prevent.” Id 6