DAILY KOS examines possible unconstitutionality of closing the Capitol

February 28, 2011

Ok, this is going to be a long one, so bear with me.

Initial background: there is a quote in circulation that purports to be from the Wisconsin Constitution, reading "The legislature cannot prohibit an individual from entering the capitol or its grounds". These words do not, in fact, appear in the Wisconsin constitution; Article 1 Section 4 reads, in it's entirety

Right to assemble and petition. SECTION 4. The right of the people peaceably to assemble, to consult for the common
good, and to petition the government, or any department thereof,
shall never be abridged.

The quote does, however, appear in the annotated version of the state Constitution, thus the confusion. The original source is an "Opinion of the Attorney General" dated January 15th 1970 and written by Robert W. Warren (who, interestingly, graduated from my Alma Mater, Macalester College). I will transcribe the entirety of the opinion here along with my thoughts.


   Father Groppi Resolution - Power of the legislature of joint resolution discussed. S Jt. Res. 53 prohibiting Father James Groppi from entering the state capitol and capitol grounds of no binding force or effect. Restraint of named individual, under circumstances here, violates U.S. Const., Arts. I, V, XIV.


    The Honorable The Senate

    By S. Res. 27 you have requested my opinion on the constitutionality of S. Jt. Res. 53 which reads as follows:

    "Prohibiting Father James Groppi from entering the state capitol or the capitol grounds.

    "Whereas, the visits of Father James Groppi and his followers to the capitol have resulted in thievery and disorder; now, therefore, be it

    "Resolved by the senate, the assembly concurring, That Father James Groppi is hereby prohibited from entering the state capitol and the capitol gourds; and, be it further

    "Resolved, That the capitol security officers be informed of this resolution and take whatever steps are necessary to make it effective."

The violation of US Constitutionality referred to above is based on the prohibition of "bills of attainder", which are bills intended to punish a specific individual and which would violate due process. This argument is not of significance in the current situation.

   Since courts frequently decline to rule on federal constitutional issues where other grounds for decision are available, and since, if passed and obeyed this resolution invites almost certain litigation, it seems appropriate to being with a short discussion of the non-federal constitutional issues raised by S. Jt. Res. 53.

    First, the Wis. Const., Art. IV, sec. 17, provides that legislature may enact laws only by bill. My predecessors have consistently ruled that this provision prevents joint resolutions from having the force ad effect of law. 43 OAG 350 (1954), 4 OAG 1076 (1915) amd 1904 OAG 335. In an opinion fated November 12 1969, addressed to this Body, I indicated that the legislature could not, bu joint resolution, order the Board on Government Operations to release funds over which the Board had been given discretion by prior legislation. A joint resolution, it was there pointed out, is directory in that it may express the legislative will, but has no binding force and effect.

This immediate section is not germane, as of course we are not discussion a J.R.

   By secs. 16.84 (1) and (2) Stats., you have vested control over the capitol building, grounds, and security in the Department of Administration. Jt. Res. 53 cannot change that relationship or legally obligate the department or its employees to follow the intended command of the resolution. As to the question of power, therefore, I conclude that the legislature, by Jt. Res., may not obligate the Department of Administration to carry out its wishes.

This is significant, as it points out that Warren's concerns are at least in part based in jurisdictional questions.

    Second, as a matter of interpretation, S. Jt. Res. 53 appears to be intended as a prohibition on entry of the state capitol and the state capitol grounds. The legislature under the Wisconsin's Constitution is vested with two types of power. Under Art. IV, sec 1 it is vested with the legislative power of the state. This is must exercise by legislation. Art IV, sec. 17. The legislature also has power to make rules necessary for its proceedings. Article IV sec. 8 provides that "each house may determine the rules of its own proceedings..." Other portions of Art. IV appear to confer other powers on the legislature which, when read together with Art. IV sec. 8, grant to the legislature the power to manage its own affairs--the necessary housekeeping function. Thus by resolution of one house, or joint resolution, the legislature or one house thereof may adjourn from time to time, fix its rules or procedure, and require the attendance of members. This grant of power many [sic] generally be classified as "management power."    

    Neither the legislative nor the management power, described above, encompass the type of resolution we have here. By its form  it is not the exercise of legislative power. By its nature it goes beyond the management powers.

Obviously none of this is relevant today, but it's interesting and I want people to have full access to the document so I'll type it anyway. Someone should buy me a finger massage.

    Further problems may arise if this resolution were to be adopted and the Department of Administration chose to follow its directive. Because a joint resolution does not have the force and effect of law, it would not cloak the capitol guards with authority to arrest for violation of its command. This would place the capitol guards in a wholly untenable position. Although directed to take "whatever steps are necessary," they would have no actual power under the resolution. Arrest or physical detention of Father Groppi might expose the guards to liability for dales arrest and for assault.

   Finally, mere passage of this resolution would probably entitle Father Groppi to an injunctive and/or declaratory relief against the state and its agents on the basis that passage and threatened enforcement of this resolution may have a chilling effect on his First Amendment rights.    

    It therefore appears, and I am of the opinion, that S. Jt Res. 53, if enacted, would be of no binding force or effect for the reasons stated above.    

    Other problems inhere in the proposed joint resolution which deserve comment. I think it plain that the legislature may not do my joint resolution that which it could not do by law. I am of the opinion that the legislature cold not prohibit Father James Groppi, or any other named individual, from the capitol grounds or building either on the basis of past acts or in fear of future actions.

Ok, this is where we tackle the question of bills of attainder: note "Father James Groppi, or any other named individual". A bill specifically punishing a named individual is a violation of the US Constitution.

  If S Jt. Res 53 constitutes punishment, it is void as a Bill of Attainder. As a general rule, the legislature may not punish an individual or group of individuals for past acts. Brown v. United States, (1965) 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed. 2d 484; Wis Const Art 1, sec. 12.    

    If S. Jt Resolution is designed as a deterrent then it is overly broad. Each citizen has a protected First Amendment right to peaceably assemble and to petition his government for redress of grievances, U.S.  Const, Amend. 1. these rights may only be taken away by due process of law. Douglas v. City of Jeanette (1943) 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324.    

    Where, as here, the legislature is dealing with protected activity it must deal narrowly with the subject.

    "* * * even though the governmental purpose be legitimate and substantial, that purpose cannon be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, (1960) 364 U.S. 479, 488, 81 S.Ct 247, 5 L.Ed. 2d 231.

    The intent of S. Jt. Res. 53 appears to be to prevent Father James Groppi from committing acts of "thievery and disorder" in the future in the state capitol or on the capitol grounds. Wisconsin already has laws against disorderly conduct, sec. 947.01 States., and against theft, secs 943.20, 943.32, States. These are "less drastic means" of achieving the goal of peace and security on the capitol grounds. Moreover, Wisconsin has recently enacted a "misconduct on public grounds" statute which if constitutional would appear to cover potential problems. Sec. 946.80, Stats.    

    I conclude therefore that even if S. Jt. Res 53 were to have force and effect it would be unnecessary and clearly unconstitutional.


So there you have it - the opinion that the legislature cannot prohibit an individual from accessing the capitol or grounds. Sadly, that's not what's happening here, here the Department of Administration is prohibiting all citizens from accessing the capitol except under particular circumstances. The argument of jurisdiction does not hold in this case, nor does the prohibition of bills of attainder.

What this document does (and note that an OAG is not case law and is non-binding) is establish access to the capitol as a free-speech issue, and THAT could be a useful thing. But it does not appear to me (as a non-lawyer) that it outlines a violation of the WI Constitution.