The Wisconsin Constitution provides each legislator with a broad privilege or immunity from arrest and any civil process during the legislative session except in cases of treason, felony or breach of the peace:

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. Wis. Const. Art. IV, §15.

A 2002 court decision (State v. Burke, 258 Wis.2d 832, 653 N.W.2d 922 (Ct. App. 2002) states that this legislative privilege protects members from arrest or civil process except for criminal cases. State Senator Brian Burke (D-Milwaukee) tried unsuccessfully to stay criminal proceedings when he was charged with 18 felony counts until after the end of the legislative session. Burke faced charges for "misconduct in office and evidence tampering for allegedly using state resources and state employees for partisan campaigning and trying to cover up his crimes."

The Court of Appeal affirmed the trial court's decision, which concluded that the exception of "breach of the peace" included the crimes charged against Burke. The key for the Court of Appeal was that the constitutional provision is defined not by "modern definitions," but by the 19th Century "plain meaning of the words in the context used" in the state's 1848 Constitution.

The trial court examined several nineteenth century authorities to conclude that the phrase "treason, felony and breach of the peace" included all crimes. A modern reader might define "breach of the peace" as "disorderly conduct." But in the early and mid-nineteenth century, the term had a broader meaning. Justice Joseph Story, in Commentaries on the Constitution of the United States, Vol. 2 § 862 (Boston, Hilliard, Gary & Co. 1833), noted that all crimes were defined as "offenses against the peace."

The Wisconsin court concluded that "it is apparent that the earliest legislative interpretation of article IV, section 15 of the Wisconsin Constitution was that the privilege applied only to civil arrest and not to criminal actions. There is no redundancy in privileging legislators from arrest and also from any civil process because in 1848, while some civil actions were commenced by arrest, actions on contract were not. Legislators were privileged from both. "

The Wisconsin GOP is relying upon another state constitutional provision as authority for their contempt resolution. This provision allows each House of the legislature to "compel the attendance of absent members in such manner and under such penalties as each house may provide." Wis. Const. Art. IV, §7." At first glance, this constitutional provision may appear to be in conflict with the constitutional privilege from arrest. But a state statute provides consistency between these two constitutional provisions.

A Wisconsin statute limits the reach of grounds for contempt by each house of the legislature to specified offenses:

(a) Arresting a member or officer of the house, or procuring such member or officer to be arrested in violation of the member’s privilege from arrest. (b) Disorderly conduct in the immediate view of either house or of any committee thereof and directly tending to interrupt its proceedings. (c) Refusing to attend or be examined as a witness, either before the house or a committee, or before any person authorized to take testimony in legislative proceedings, or to produce any books, records, documents, papers or keys according to the exigency of any subpoena. (d) Giving or offering a bribe to a member, or attempting by menace or other corrupt means or device to control or influence a member’s vote or to prevent the member from voting. (2) The term of imprisonment a house may impose under this section shall not extend beyond the same session of the legislature. Wis. Stat. §13.26 (1).

The Madison Memo notes the obvious: The absent Senators did not commit any of these offenses; moreover, arresting an absent Democratic Senator would violate para (a) of arresting or procuring the arrest of a member "in violation of the member's privilege from arrest" in the first Constitutional provision.

Moreover, aside from para (a), the remaining offenses involve third parties, not the members: Para (b) is disorderly conduct before the house or a committee that directly tends to interrupt the proceedings; para (c) is refusal of a witness to attend legislative proceedings; and para (d) regards third parties that give or offer bribes to legislative members.

Thus, the Madison Memo concludes that while the state Constitution "authorizes each house to penalize its members in order to compel their attendance, this power must give way to the constitutional protection bestowed on each member privileging them from arrest or civil process." The constitutional authority to compel attendance is thus consistent with the constitutional privilege from arrest, which is also referenced in the statutory provision regarding grounds for contempt.

The Madison Memo concludes that the Senate may impose penalties on absent members, and may order the Sergeant at Arms to find and somehow bring the members to the house, but the Senate can not issue an arrest warrant.

Senate Majority Leader Scott Fitzgerald obtained a legal opinion from private attorney James Troupis for this contempt resolution. The Attorney General did not sanction this resolution.

Republican Attorney General J.B. Van Hollen said he had not advised GOP senators on the resolution. Asked if it was constitutional, Van Hollen said he had not reviewed it.

Troupis, who according to a blogger practices intellectual property disputes and commercial litigation, states that "detaining the senators and bringing them back to the Capitol is a legislative process, not the type of civil or criminal process intended by the constitution's prohibition against arresting lawmakers during a session." Troupis did not explain how this "legislative process" is consistent with the state statute defining the contempt powers. Fitzgerald claims that the Democrats would be "taken into custody" which is a "legal difference from arrest," and asked citizens who see the Democrats to "report them to police." After the Democrats return, Fitzgerald says the GOP "would consider additional possible discipline for them, such as reprimanding them, censuring them or expelling them from the Senate."

Meanwhile, Gov. Walker says he "will start sending out layoff notices to state unions and workers by the end of Friday if the standoff over his budget-repair bill isn't resolved."

Walker has said that he would seek the layoffs of up to 1,500 state employees in an attempt to save $30 million to help address the state's fiscal problems. He said he would seek to protect workers in round-the-clock jobs such as prison guards and medical staff.