STATE OF WISCONSIN

CIRCUIT COURT
BRANCH 11

DANE COUNTY

CENTER FOR MEDIA & DEMOCRACY
520 University Avenue, Suite 260
Madison, WI 53703,
Plaintiff,

Case No.: 13-CV-1875

v.
LEAH VUKMIR
State Senator
Room 131 South
State Capitol
P.O. Box 7882
Madison, WI 53707
Defendant.
RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO QUASH
The Center for Media and Democracy submits this response to the motion to
quash summons filed by defendant, Senator Leah Vukmir, and her counsel, the
Attorney General of the State of Wisconsin. For the reasons set forth herein, defendant’s
motion must be denied.
Senator Vukmir is urging the court to adopt a novel interpretation of the
temporary legislative privilege in Article IV, Sec. 15, Wis. Const. (“Section 15”), one
which would do enormous damage to Wisconsin’s longstanding traditions of openness,
transparency, and governmental accountability. Senator Vukmir’s arguments would
effectively strike out words in the Constitution that limit the reach of the Section 15
privilege. This novel claim ignores both the intent of the framers of Wisconsin’s

1 
  

 Constitution and the intent of the people of Wisconsin that their elected representatives
be subject to the public records laws that protect the integrity of our democracy. Her
new interpretation would give legislators a perpetual grant of immunity from civil
actions seeking to enforce the state’s public records law – or, for that matter, any state
law with civil penalties.
Never before has a legislator sought to invoke the legislative privilege from civil
process in the context of an open records suit for mandamus.1 Research has revealed not
a single case where a legislator has successfully argued that the phrase “the session of
the legislature” in Section 15 – which was ratified in 1848 -- actually refers to an entirely
modern scheduling practice that deems the legislative session to extend uninterrupted
for the entire biennium. Because the next “session” begins immediately upon the close
of the previous one, under Senator Vukmir’s construction, a legislator would be
absolutely privileged from any civil process for as long as the legislator holds office.2
In fact, prior to filing the rash motion filed on Senator Vukmir’s behalf in this
case, the Wisconsin Attorney General’s office had interpreted Section 15 to apply only
when the legislature is actively conducting its work during scheduled floor periods,
rather than during the entirety of the never-ending biennial legislative term – a
relatively modern invention. In 2002, the Attorney General specifically argued that
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
See e.g. Wisconsin Freedom of Information Coalition, “Statement on Claims of Legislative Immunity to
State Open Records Law,” September 13, 2013, listing open records lawsuits against Wisconsin
legislators, none of whom claimed they were privileged from suit under Section 15.
2 The 2011-2012 biennial session began on January 3, 2011, and ended at noon on January 7, 2013. See
Senate Joint Resolution 1 (2011). The 2013-2014 session began on the same day the previous session
ended, January 7, 2013, and will end at noon on January 5, 2015. See Senate Joint Resolution 1 (2013). The
next biennial session will almost certainly begin on the final day of the 2013-2014 session, as has been the
practice since at least 1971. See State of Wisconsin Bluebook 2007-2008, at p. 171 (attached as an exhibit).
1

2 
  

 Section 15 was limited to scheduled floor periods. State v. Burke, 258 Wis.2d 832, 841 n.2
(Ct. App. 2002).
With reference to the immediate case and this new interpretation of Section 15,
the Attorney General has said publicly that the privilege is “temporary,” but does not
explain in Senator Vukmir’s brief or anywhere else when the Section 15 privilege could
possibly end, for as long as a legislator holds office, if the privilege is in effect for the
entire biennium.
The court should reject Senator Vukmir’s claim of privilege. First, the complaint
and order in this case were served while the legislature was in summer recess. No
legislative business was scheduled during the period from June 28 to September 17.
Because the legislature was not “in session” for purposes of Wis. Const. Art. IV, §15,
Senator Vukmir was not privileged from civil process when she was served on August
29, 2013. Secondly, even if the Legislature had been “in session” within 15 days of
service, the privilege conferred by Wis. Const. Art. IV, §15 does not extend to the service
of an order of the court directing a legislator to respond to a complaint for mandamus,
which did not require Vukmir’s personal appearance in court so as to risk depriving her
constituents of representation.
I.

Summary of Arguments Supporting the Denial of the Defendant’s Motion
Article IV, Section 15 of the Wisconsin Constitution has been unchanged since it

was ratified in 1848, and states:

3 
  

 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.
Under a proper analysis of the Wisconsin Constitution, it becomes clear that the
framers of the Constitution clearly understood the phrase “session of the legislature” to
apply only to those periods where the legislature is actually meeting. Although the
concept of an unending “biennial session” – where each new biennial session is
declared to begin immediately upon the close of the previous session, without
interruption -- has been the practice for decades, it is an entirely modern conception.
For the first hundred-plus years that Wisconsin was a state, legislative sessions lasted
only months at a time. “As recently as 1951, the Legislature met in Madison for [only] 5
months, every other year.” State of Wisconsin Bluebook 1985-1986, at p. 131 (attached as
an exhibit).
Under Senator Vukmir’s reinterpretation of Section 15 – where the privilege
applies during the entire, unending biennial session -- there is no window of time
where a legislator could be served with an order and complaint for mandamus to
enforce their legal obligations under the state public records law, for as long as he or
she remains in office. This is contrary to the plain language of the provision and the
intent of the framers in drafting it.

4 
  

 As evidenced by the nineteenth century plain meaning of the provision and its
contemporaneous interpretation, the framers of the Constitution quite intentionally
made the privilege in Article IV, Section 15 temporary, and never meant to make
legislators above the law, in perpetuity. Indeed, by its very terms, Art. IV, Section 15
anticipates at least a thirty-day gap between sessions of the legislature, because it
extends the privilege for fifteen days after the end of one session and fifteen days before
the next one.3
Senator Vukmir’s interpretation of the Section 15 legislative privilege would also
lead to absurd results. Applying the privilege to the entire biennial session not only
eliminates the enforcement mechanism of the open records law – thereby making the
law optional – it could provide legislators with perpetual immunity from civil process
for everything from ethics and campaign finance violations to a first offense Operating
While Intoxicated.
The Wisconsin Supreme Court has concluded that the purpose of the Section 15
privilege is “to preserve the public’s right to representation in the state legislature
during the session of the legislature. When a legislator cannot appear the people whom
the legislator represents lose their voice in debate and vote.” State v. Beno, 116 Wis.2d
122, 138-139, 341 N.W.2d 668 (1984).

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

This is, in part, a recognition of how long it took mid-19th Century legislators to travel to-and-from the
legislature; similar provisions in other state constitutions state specifically that a legislator is immune
when traveling to-and-from the legislative body.
3

5 
  

 This underlying purpose of Section 15 further demonstrates that the privilege
only applies when the legislature is actually meeting, rather than for the duration of the
entirely modern and never-ending biennial legislative session.
Additionally, regardless of when the Section 15 legislative privilege applies, an
action for mandamus compelling a legislator to comply with his or her statutory duties
does not deprive the legislator’s constituents a voice in the legislature. A Writ of
Mandamus does not interfere with a legislator’s public duties; by its very definition, a
Writ of Mandamus compels public officials to discharge their public duties.
Finally, the Section 15 legislative privilege from “civil process” does not
encompass service of an order, which does not require a legislator’s personal
appearance. This is in clear contrast with the example of a subpoena for deposition
provided by Senator Vukmir.
II.

Senator Vukmir’s Interpretation Was Not Intended to Refer to the Entire
Biennium So As To Grant Legislative Immunity in Perpetuity
Senator Vukmir is asking the court to interpret Article IV, Section 15 to

immunize a legislator from responding to an order for writ of mandamus in perpetuity,
for as long as a legislator holds office, regardless of whether the legislature is actually
meeting and conducting business.
As the Wisconsin Supreme Court has previously admonished, interpreting the
Wisconsin Constitution is not accomplished using modern definitions and syntax, but
by examining:

6 
  

 (1) The [nineteenth century] plain meaning of the words in the context used;
(2) The historical analysis of the constitutional debates and of what practices were in
existence in 1848, which the court may reasonably presume were also known to the framers
of the 1848 constitution, and;
(3) The earliest interpretation of this section by the legislature as manifested in the first
law passed following the adoption of the constitution.
Burke, 258 Wis.2d at 832, citing Beno, 116 Wis.2d at 122.
A. “During the session of the legislature” Was Not Intended to Apply to a
Biennial Session
The term “session” is not defined in the Wisconsin Constitution and the
Wisconsin Statutes use the term in multiple ways.4 However, by looking to the plain
meaning of the phrase “during the session of the legislature” in 1848, when the
Wisconsin Constitution was adopted, it becomes clear that the privilege only applies
during the period the legislature is actually meeting.5
As discussed below, the legislature’s practices for calendaring legislative work
have changed in recent decades, but these changes in practice cannot possibly be

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
The Wisconsin Statutes make reference to an “actual session” (see Wis. Stat. § 13.47(1), 13.123(2)), a
“regular or special legislative session” (see §§13.02, 13.123(1)(a)), a “biennial session” (Id.), and a
“legislative session biennium” (13.45(1)(a)), among other usages.
5 In the twelve years before the Wisconsin Constitution was adopted, when Wisconsin was a territorial
organization, “legislative sessions” lasted between 10 and 76 days. State of Wisconsin Bluebook 1915, at
p.317 (attached as an exhibit). The legislature was called into session two to three times per year for a
relatively short period of time. What was referred to then as “legislative sessions” appear to be analogous
to what today we would understand as “floor sessions.”
4

7 
  

 bootstrapped to expand the intentionally narrow and temporary legislative privilege
offered by Section 15 into a grant of perpetual immunity for legislators.
At the time Section 15 and the Wisconsin Constitution were enacted, the
Constitution demanded that the legislature meet once every year “and no oftener.” Wis.
Const. Art. IV, Sec. 11 (1848).
The first session of the legislature lasted seventy-eight days. Id. The second
session convened more than four months later and lasted eighty-three days. Id. For
decades, legislative sessions lasted just a few months, with months between each
session. Id. Notably, several times during the early years of Wisconsin, the legislature
convened, recessed, and convened again – but only those days where the legislature
was actually meeting were counted as part of the “legislative session.”6
Clearly, the use of the term “legislative sessions” in the Wisconsin Constitution
was intended to refer to those periods during which the legislature was actually
convened for debate and voting on bills and conducting other legislative business.
In 1881, Art. IV, Sec. 11, of the Wisconsin Constitution was amended to change
the legislature from a one-meeting-per-year annual session to a one-meeting-everyother-year biennial session. As a result of this amendment, the legislature did not meet
in even-numbered years unless the governor called a special session. State of Wisconsin
Bluebook 2007-2008, p. 135.

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

See “Legislative Sessions,” State of Wisconsin Bluebook 1915, at p.318: “Fourteenth Session—Convened
January 9, and adjourned April 17, 1861. Reconvened May 15, and adjourned May 27, 1861, a total of one
hundred and twelve days.”
6

8 
  

 Accordingly, the legislature convened once every two years in a “biennial
session” starting in 1883. But the legislature continued its practice of adjourning when
they were not actually meeting, and “[a]s recently as 1951, the Legislature met in
Madison for [only] 5 months, every other year.” State of Wisconsin Bluebook 1985-1986, at
p. 131.
Starting in the mid-20th century, the legislature began to change its practice,
adjourning via joint resolution, rather than the more decisive sine die7 adjournment. By
not adjourning sine die, the legislature reserved its ability to call itself back into session,
allowing it to override gubernatorial pocket vetoes and to retain the Senate’s advice and
consent review over the governor’s executive appointments.8 Subsequent legislatures
also followed this practice, going into recess for periods defined by joint resolutions but
delaying adjournment until the final day of their term. 9

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
Latin for “without day,” meaning the legislature is completely adjourned, with no day assigned for
resuming the session. Black’s Law Dictionary.
7

In 1945, the legislature adjourned on June 20 until Sept 5 via resolution – rather than sine die
adjournment – in order to override the governors’ pocket vetoes, and delayed sine die adjournment until
after September. State of Wisconsin Bluebook 2007-2008, p. 135-136. The legislature continued this practice
from 1945-1957 (except for 1951). In the 1959 and 1961 biennial sessions, the Republican-controlled
legislature recessed itself via joint resolution, but delayed adjournment sine die in order to preserve the
Senate’s advice and consent review over the Democratic governor’s executive appointments. The 1959
session did not adjourn until May 27, 1960, “making it in terms of calendar days about twice as long as
most recent sessions.” Id. at 136.
8

Throughout the 1960s, as the legislature delayed its adjournment until the following year, it ran up
against the Constitution’s Art. IV, Sect. 11, requirement that the legislature meet “once in two years, and
not oftener.” An amendment to Art. IV, Sect. 11, allowing the legislature to meet “at such time as
provided by law” was adopted by the 1965 and 1967 legislatures and approved by the people in April
1968. There is no evidence that this change was intended to enlarge the limited privilege in Section 15.
Moreover, the Court is required by canons of constitutional construction – Generalia specialibus non
derogant -- to construe later provisions of the Constitution not to override or implicitly repeal earlier
provisions unless there is specific language and intent to do so. Additionally, the power of the legislature
to set the length of its meeting cannot include the power to moot out the provisions of Section 15, which
9

9 
  

 Wis. Stat. § 13.02, enacted in 1971, requires the legislature to set its session
schedule early in the biennium. The legislature now passes a Senate Joint Resolution
(SJR) 1 dividing the biennium into specified floor periods, but never actually adjourning
sine die throughout the biennium. According to the Legislative Reference Bureau, the
legislature has not adjourned sine die since the period of May 27, 1960 to January 11,
1961. State of Wisconsin Bluebook 2002-2003, at p. 136.
This change in practice of how the legislature creates its calendar and “adjourns”
without ending the “session” was unanticipated by the founders and would be alien to
their understanding of the phrase “session of the legislature.” A mere change in
legislative practice should not be ahistorically applied to expand the Section 15
legislative privilege into a sweeping, perpetual grant of legislative immunity. The
purpose of the legislative immunity provided by Section 15 was to guarantee that
legislators can represent their constituents when the legislature is actually convened for
debate and voting, not to provide continuous immunity, for as long as a legislator holds
office.
The Legislature’s change in practice from sine die adjournments at the close of
legislative business to a session spanning the entire biennium with designated “floor
sessions” for legislative business – that adjourn via joint resolution -- does not transform
the constitutional grant of a temporary privilege from civil process into a perpetual
immunity for as long as a legislator holds office.
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

by its terms contemplates periods in which the legislature is not in floor session and therefore when
Wisconsin legislators can be subject to civil process.

10 
  

 These facts make it clear the Constitution’s framers understood the term “session
of the legislature” to apply only to those periods where the legislature was actively in
session.
The notion of the never-ending “biennial session” is a recent construction that
reflects a mere change in legislative practice. But just as was the case in 1848, there are
still specific times when legislators are actually meeting, debating, and voting on
legislation, usually designated as “floor periods.”10 These are the limited periods where
a legislator would be privileged from civil process.
The Section 15 privilege does not apply in the immediate case, when Senator
Vukmir was served well outside the period of any legislative meetings.
B. Constitutional Framers Never Intended to Grant Permanent Immunity
to Legislators
The framers never intended an absolute and never-ending privilege from civil
liability for legislators, but instead only intended to protect the democratic process by
granting a temporary privilege from arrest and civil process while the legislature was
actively in session. Because one biennial session ends as soon as the next one begins,
Senator Vukmir’s effort to redefine Section 15 would have the effect of making this
temporary privilege into permanent immunity.
The temporary nature of Section 15 is demonstrated by looking at the nineteenth
century plain meaning of the provision.
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

In 2013, there were 15 regular floor periods scheduled throughout the year, with months between many
of the sessions, even though the legislature never adjourned sine die. Senate Joint Resolution 1 (2013).
10

11 
  

 By its very terms, Section 15 offers legislators a limited privilege from civil and
criminal process for a defined time period: “during the session of the legislature” and
for fifteen days before and after.
The intentionally temporary nature of Section 15 is further demonstrated by
comparing it to Art. IV, Sec. 16, Wis. Const., the speech and debate clause, which was
adopted at the same time as Section 15 and has been unchanged since 1848. Section 16
states:
“No member of the legislature shall be liable in any civil action, or criminal
prosecution whatever, for words spoken in debate.”
In contrast with Section 15, the speech and debate clause only protects legislators
from specific acts -- liability for words spoken during debate -- but applies permanently:
“in any civil action, or criminal prosecution whatever.11
In other words, the framers quite intentionally drafted Section 15 with a time
limit, envisioning a time when a legislator could be subject to civil process, and they
intentionally omitted a time limit for the immunity granted under Section 16 -- and
indeed, made plain that the latter privilege applied perpetually.
It is a canon of constitutional interpretation -- In Pari Materia -- that two
provisions relating to the same subject matter but which use different terms must be
interpreted in light of one another, and construed to give the full meaning to each. Both
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

These distinctions are reflected in the purposes underlying the two provisions. Section 15 is designed to
preserve the people’s voices and representation in the legislature, when the legislature is actually
meeting. Section 16 is designed to protect the integrity of the legislative process by ensuring that a
legislator’s speeches on matters of public concern do not subject them to slander claims for matters
discussed on the floor.
11

12 
  

 Section 15 and Section 16 relate to forms of legislative privilege, but only the former
includes a precise and unambiguous time limit, whereas the latter quite clearly applies
permanently. These two sections must be construed to give full meaning to each
provision. Section 15 cannot be properly construed as offering a permanent privilege for
lawmakers because when the framers intended permanence, they plainly knew how to
write that into law.
Pursuant to the framework in Beno, there is nothing in the record of
constitutional debates that sheds light on Section 15, but the historical practice at the
time provides further evidence that the Section 15 privilege was designed to be
temporary.12
One of the earliest cases to apply Section 15 is State ex rel. Isenring v. Polacheck, 101
Wis. 427 (Wis. 1898), which made it clear that the legislative privilege is temporary. In
that case, the Court noted that “after the privilege from arrest has expired the relations of
the parties are the same as though no arrest had been made” – clearly anticipating a
date where the privilege would no longer apply. Id. at 433-434 (emphasis added).
Senator Vukmir is attempting to unilaterally amend the Constitution with a
novel and damaging interpretation, warping the application of the Section 15 privilege
according to modern legislative calendaring practices. In so doing, she is seeking to
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
The extent of the constitutional debate is largely the following: ”During the debates on the article
entitled, `Legislative,' Mr. Chase moved to strike out the fifteenth section, exempting members from
arrest. Mr. Estabrook then moved `to amend the amendment so as to strike out that part of it which
privileged members of the legislature from civil actions.' Journal of the Convention to Form a Constitution for
the State of Wisconsin at 212 (Tenney, Smith and Holt 1848). Mr. Estabrook's `amendment to the
amendment' was rejected. Journal at 212.” Beno at 137.
12

13 
  

 make Section 15 into a permanent privilege. This is the opposite of what the
Constitution’s framers intended.
C. The Legislature Cannot, of its Own Accord, Create a Perpetual
Immunity from Civil Process for its Members Until they Leave Office
The legislature may have changed its practices for organizing its calendar, but by
no means does this calendaring process supersede the framers’ intent to grant only a
narrow and intentionally temporary privilege to legislators for floor sessions.
Since the early years of the State, it has been well-established that it is beyond the
power of the legislature to create an open-ended privilege from civil process. In the 1862
decision Hasbrouck v. Shipman, 16 Wis. 296 (Wis. 1862), the Wisconsin Supreme Court
held that the legislature cannot create an indefinite and open-ended privilege from civil
process. In that case, the state’s highest court found unconstitutional a law creating a
privilege from civil process for military volunteers, since it would have lasted
indefinitely, for as long as the volunteer remained in military service – for as many as
“three, five, ten or twenty years.” Id. at 297-298.
It should be noted that Senator Vukmir was elected to the legislature in 2002 and
has been in office for over ten years.13 Thus, under the Attorney General’s new
construction of Section 15, Senator Vukmir has been immune from civil process
continually since she was sworn into office in January 2003, and would be immune for
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

To use an even farther reaching example, under the Attorney General’s construction of the legislative
privilege, the Legislature’s longest-serving member, Senator Fred Risser, has been immune from any
arrest or civil process since at least the early 1970s, when the legislature adopted its current calendaring
practice.
13

14 
  

 as long as she remains in the legislature, regardless of any wrongdoing or abdication of
responsibility with civil penalties that might transpire.
In Hasbrouck, the Court noted: “It is very evident that this is a suspension for an
indefinite period of all remedies whatever. And such being the character of the law, we
cannot see upon what ground its validity can be sustained.” Id. at 298. Accordingly, the
Court rejected the legislature’s effort to create any general permanent immunity from
civil suit by way of statute.
The legislature sets its own meeting schedule, but in so doing it cannot by statute
or joint resolution extend a constitutional privilege that was intended to be temporary
into something perpetual.
D. Senator Vukmir’s Interpretation Would Lead to Absurd Results
Senator Vukmir’s interpretation of the Section 15 legislative privilege would not
only eliminate the enforcement mechanism of the open records law – thereby making
the law optional – it could provide legislators with perpetual immunity from civil
process for ethics and campaign finance violations, to first offense Operating While
Intoxicated (OWI), and a range of other offenses with civil penalties.
For example, according to Wisconsin statutes, a corrupt legislator who promises
political favors in exchange for campaign contributions violates Wis. Stat. § 19.45(13),
and is subject to a civil forfeiture of up to $5,000 plus the amount of the donation,14
enforceable via a civil action. A legislator who accepts an illegal gift from a lobbyist
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
14

Wis. Stat. § 19.579.

15 
  

 violates Wis. Stat. § 13.625(3), and is subject to a civil forfeiture of up to $1,000.15 A
legislator who fails to file a statement of economic interests16 faces a civil forfeiture of
up to $5,000.17 But under Senator Vukmir’s interpretation of the Section 15 legislative
privilege, legislators violating these laws would get a free pass from any suit
adjudicating those violations for as long as they are in office, since they are not subject
to any civil process during the entire biennium. A lawmaker in a safe district could
ignore the law and run for re-election claiming the charges are baseless without ever
having to face them, thereby gaming the system. If the legislator holds office for more
than three years, he or she could entirely escape liability, since the statute of limitations
for these offenses expires three years after the conduct at issue occurred. Wis. Stat. §
893.90(2).
It defies logic to conclude that the comprehensive code governing the conduct of
legislators, enforceable by civil penalties, were merely optional and the penalties could
not be enforced for as long as the legislator holds office.
In other words, under the Attorney General’s interpretation of Section 15, the
civil penalties under Wisconsin’s ethics, lobbying, and campaign finance laws – as well
as the public records laws -- would be made unenforceable for as long as a legislator
held office, and in many cases would become entirely unenforceable since the statute of
limitations would have expired by the time legislators have left office.

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
Wis. Stat. § 13.69(6).
Wis. Stat. § 19.43(1).
17 Wis. Stat.§ 19.579(1).
15
16

16 
  

 In the public records context, during such long periods between an alleged
violation and the date a legislator could become subject to service, the records sought
could be lost or destroyed and the information would almost certainly become less
relevant to current debates over public policy. The immunity, in other words, can keep
crucial public records out of the public’s view, shielding scandal or other disreputable
activity from the people of the state. That is a formula for corruption, and it is at odds
with Wisconsin’s proud traditions of transparency.
The absurdity of the Attorney General’s interpretation doesn’t end there. This
interpretation of Section 15 would put legislators above the law for a vast range of civil
forfeitures for offenses unrelated to their public duties, such as violations of hunting
and environmental protection laws, motor vehicle laws, trade regulations, professional
licensing laws, consumer protection laws, real estate conveyance laws, and gaming
laws. Moreover, under the Attorney General’s interpretation, such legislators would be
immune from civil suit by private parties for anything ranging from contract actions to
property disputes, and would even prevent legislators from having to respond to a
summons for divorce or child custody proceedings, or even a domestic violence
restraining order.
III.

The Legislative Privilege in Section 15 Does Not Extend To An Order
Requiring A Response To a Complaint for Mandamus
Even if the Attorney General were correct that Section 15 grants an unlimited

privilege to legislators immunizing them from civil service for as long as they hold

17 
  

 office, such a privilege should not extend to an order requiring a legislator to respond to
a complaint for mandamus in an open records case.
To interpret the constitutional term “civil process,” we analyze Section 15 using the
framework outlined in Beno, 116 Wis.2d at 122 (cited supra at pp. 6-7).18 “Civil process” is not
defined in the Wisconsin Constitution. And as noted above, the constitutional debates at the
time shed no light on the phrase.19 But early interpretations of Section 15 and the nineteenth
century plain meaning of the relevant terms indicate that the provision’s purposes would be
thwarted if it were applied to an order requiring a legislator to respond to a complaint for
mandamus in an open records case.
In the contemporaneous 1841 decision Anderson v. Rountree, the Court explained
that legislative privilege is designed to protect legislators from “the service of any civil
process that would in any way interfere with the discharge of their public duties.” 1 Pin. 115
(1841) (Cited by Beno at 138; Burke at 835) (emphasis added).
The remedy sought in this case is a Writ of Mandamus, which by no means
interferes with a legislator’s public duties. By its definition in the late 1800s and today, a
Writ of Mandamus compels a public official to discharge their public duties. See Black's
Law Dictionary 748 (1st ed. 1891); see also Morrissette v. DeZonia, 63 Wis.2d 429 (1974).

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
Courts consider: “(1) The [nineteenth century] plain meaning of the words in the context used; (2) The historical
analysis of the constitutional debates and of what practices were in existence in 1848, which the court may
reasonably presume were also known to the framers of the 1848 constitution, and; (3) The earliest interpretation
of this section by the legislature as manifested in the first law passed following the adoption of the Constitution.”
Burke at 832, citing Beno at 122.
18

19

See footnote 12.

18 
  

 Just as the people are deprived of their voice when their Representative or
Senator is absent during debates or votes in floor session, the people are deprived of
representation when a legislator fails to perform their statutory duties. A Writ of
Mandamus is designed to remedy that.
Under Wis. Stat § 19.37, a writ of mandamus is the enforcement mechanism if a
public official refuses to comply with a lawful written public records request. In this
case, a Writ of Mandamus would require that Senator Vukmir perform her statutorilyrequired duties and disclose the public records requested by the Center for Media and
Democracy. Mandamus is necessary in a public records case to compel an official to
comply with the law, since a failure to perform would result in substantial damages and
because there is no other legal remedy available to require the legislator to comply with
the public records law. Burns v. City of Madison, 92 Wis.2d 232, 243 (1979). Any member
of the public is damaged when the public records law is broken. See Watton v. Hegerty,
2007 WI App 267, ¶ 33, 306 Wis. 2d 542, rev'd on other grounds, 2008 WI 74, 311 Wis. 2d
52.
Senator Vukmir is asking this court to rule that legislators are out of the reach of
the courts to enforce the public duties ascribed to them by law. If Senator Vukmir were
to have her way, an action for mandamus would essentially become optional, and no
court could compel legislators to carry out their assigned statutory duties, public
records or otherwise.
However, any member of the public has a right to public records, and any
member of the public is damaged when the open records law is broken. See Watton. In
19 
  

 this way, a suit for Mandamus seeking compliance with Wisconsin’s public records law
is distinguishable from a traditional civil suit: it is a case seeking to vindicate the
public’s right to public records and to remedy a wrong that is felt by the entire public.
According to the First Edition of the Black’s Law Dictionary, the purpose of a
civil action “is the enforcement of merely private obligations and duties.” Black's Law
Dictionary 207 (1st ed. 1891). It involves “the enforcement or protection of a private
right, or the prevention or redress of a private wrong.” Id. This definition reveals the
nineteenth-century meaning of the term “civil process” as used in Section 15.
The legislature’s current practice of calendaring its session for the entire
biennium, following without interruption from the previous session, and calendaring
floor periods during which legislative business is scheduled and conducted, is new in
terms of Wisconsin’s 165-year-history. But it was well-established at the time
Wisconsin’s Public Records Law was enacted in 1981. Section 15 cannot properly be
interpreted to render that law optional, as Senator Vukmir’s argument would
accomplish. It would be odd indeed for the legislature to have created a comprehensive
public records law, subjected itself to that law, and to have created civil forfeitures for
violations if the Section 15 privilege applied to the entire biennial session and the public
records law could not be enforced.
IV.

The Complaint for Mandamus and the Order Directing the Defendant to
Respond Are Not “Civil Process” For Purposes of Section 15
Plaintiffs served Senator Vukmir with a complaint for mandamus and an order

from this Court directing the defendant to file a response pursuant to Wis. Stat. §
20 
  

 801.02(5). The Section 15 legislative privilege from “civil process” should be construed
as not encompassing the service of an order of the court directing a legislator to respond
to a complaint for mandamus.
Because a petition for Writ of Mandamus is an extraordinary remedy, Wisconsin
law allows a plaintiff to commence a suit by serving a respondent with an order
shortening the time for filing a response, in lieu of a summons. See Judicial Council
Note to Wis. Stat. § 801.02.
Therefore, because the plaintiff has served the defendant with an order rather
than a summons, Senator Vukmir’s September 11, 2013, “Motion to Quash Summons” is
not the proper pleading. But notwithstanding the form of the motion, Senator Vukmir’s
claim of legislative privilege is improper.
In her Motion to Quash Summons, Senator Vukmir included two court orders
from another case purporting to show that “legislative immunity, therefore,
undoubtedly applies to this case.” See Def.’s Motion to Quash Summons at pp. 3-4,
exhibits 1-2.
However, those court orders quashed subpoenas that would have required
personal appearances from Sen. Scott Fitzgerald and Rep. Jeff Fitzgerald for
depositions, while the legislature was in session. The deposition, scheduled for April 25,
2011, was within 15 days of the floor period that ended on April 14, 2011. See Senate
Joint Resolution 1 (2011). Moreover, at the time of the subpoena and deposition, the
legislature was in the midst of a special session ordered by the governor. Those

21 
  

 depositions could have prevented the legislators from being on the floor while the
legislature was conducting legislative business.
The court orders submitted by Senator Vukmir in support of her motion only
provide further proof that the privilege is intended to protect the public’s right to
representation and only applies during the period where the session is actually
meeting.
In contrast with a deposition – which requires a defendant to personally appear
and be deposed for questioning – no personal appearance is required by the order that
plaintiffs served on Senator Vukmir and her attorneys. Indeed, Senator Vukmir is
represented by counsel, the Attorney General, who presumably will prepare and file the
response on her behalf. Accordingly, even if the legislature were in session at the time
of service, Senator Vukmir’s constituents would not be deprived of representation since
the order does not require her personal appearance. Moreover, as the case moves
forward, the court has the power to set a schedule for depositions and other discovery
that would not require Senator Vukmir to be absent during any legislative floor period.
Interpreting the Section 15 privilege not to apply to the service of an order
requiring a response to a complaint for Mandamus is supported by the 19th century
understanding and use of the term “subject to any civil process.” Burke, 258 Wis.2d at
832, citing Beno, 116 Wis.2d at 122.
At the time the Wisconsin Constitution was drafted, except for contract actions,
civil lawsuits arising ex delictu could be commenced by “capias ad respondendum”
(usually referred to as “a capias”), “which commands the sheriff to take the defendant,
22 
  

 and him safely keep, so that he may have his body before the court on a certain day, to
answer the plaintiff in the action.” Burke, 258 Wis.2d at 840, citing Black's Law Dictionary
168 (1st ed. 1891).
In short, the framers of the Wisconsin Constitution would have understood the
phrase “subject to any civil process” in Article IV, Section 15 to include the civil seizure
of the person sued. Burke at 841. This fact – that a legislator in 1848 subject to civil
process might be arrested -- helps explain the underlying purpose of the privilege: “to
preserve the public’s right to representation in the state legislature during the session of
the legislature,” by making sure legislators are not hauled off the floor when they are
supposed to be representing constituents and carrying out official duties.
Today, a civil summons no longer “summons” a defendant to appear in person,
enforceable by the physical seizure of a defendant. Rather, a civil summons only
compels the filing of a written answer. An order involves even less interference with a
person than a summons. 20
The leading cases considering the Section 15 privilege support an interpretation
of “civil service” that would exclude service of orders that do not require a personal
appearance. The legislator in Beno successfully invoked the privilege to avoid service of
a subpoena for a deposition -- the same form of civil service facing Sen. Fitzgerald and
Rep. Fitzgerald in the exhibits cited by the Attorney General in this case – which would
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

order, n. (16c) 1. A command, direction, or instruction. See mandate (1). 2. A written direction or
command delivered by a court or judge.
summons, n. (13c) 1. A writ or process commencing the plaintiff's action and requiring the defendant to
appear and answer. Black's Law Dictionary (9th ed. 2009).
20

23 
  

 have required the legislator’s appearance. In Burke, a legislator was facing felony
criminal charges, and in criminal proceedings a defendant must appear personally. See
Wis. Stat. § 968.04. These are clearly distinct from the service of an order, or for that
matter, other legal pleadings that do not require the personal appearance of the
defendant.
The Constitution’s framers would not have intended that Section 15 apply to
service of an order. Contemporaneous cases made it clear that the legislative privilege
does not apply if a legislator is not required to personally appear. The Wisconsin
Supreme Court in Polacheck, 101 Wis. 427 (1898), cited Nones v. Edsall,21 a case from New
Jersey decided in April 1848, at the same time the Wisconsin Constitution was being
ratified. In Nones, the Court denied a legislator’s effort to invoke the privilege, holding
that “it does not necessarily follow, that if this trial proceed the defendant need be
compelled to neglect his public duties. In contemplation of law he is already in court by
his counsel; and his personal attendance is not required at the trial either in theory or in
practice. We all know that causes are tried in this and every other civil court, almost
daily without the presence of the parties.” Nones v. Edsall at 297.
In this case, an attorney is appearing on the defendant’s behalf, and the order
does not demand Senator Vukmir’s personal appearance before the court.
CONCLUSION
The most reasonable interpretation of the Section 15 privilege – one supported by
the history of the Constitution and by the purpose of the privilege, and one which
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
21

18 F. Cas. 296, 297 (C.C.D.N.J. 1848).

24 
  

 would avoid absurd results – is to find that Section 15 only applies when the legislature
is actually meeting, and not to construe the privilege to give immunity to lawmakers
during their whole term in office based on a modern scheduling practice that deems the
legislative session to extend uninterrupted for the entire biennium.
In the immediate case, it is clear that Senator Vukmir was served when the
legislature was in summer recess and was not meeting, and during a period where the
legislator herself was so unconsumed by her legislative duties that she was not even in
the state.22
Additionally, even if the legislative privilege were to apply during this period, it
should not apply to service of an order of the court directing a legislator to respond to a
complaint for mandamus.
For the above reasons, we respectfully ask the Court to deny Senator Vukmir’s
Motion to Quash Summons and her novel reinterpretation of the temporary legislative
privilege in Section 15, and we respectfully ask the court to preserve Wisconsin’s
longstanding traditions of openness, transparency, and governmental accountability.

Dated this October 1, 2013, in Madison, Wisconsin.

Respectfully submitted,

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  

The court need not define the specific parameters of when Art. 15 shall apply: it is clear in this situation,
when the legislature was not meeting and the legislator herself was actually out of state at the time of
service, that the privilege may not be invoked.
22

25 
  

 ______________________________
Brendan Fischer, SBN 1089027
Attorney for Plaintiff
Mailing Address:
520 University Ave Ste 260
Madison, WI 53703
Telephone: (608) 260-9713
Facsimile: (608) 260-9714
Brendan@prwatch.org

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