State legislators not immune from criminal arrest.

• Date: 06 November 2002
• Published date: 06 November 2002

Byline: David Ziemer

The term, "breach of the peace," as used in the Wisconsin Constitution, refers to all misdemeanors, not just those involving violence or the threat of violence, the Wisconsin Court of Appeals held on Oct. 31.

Thus, legislators have no immunity from any criminal arrest, regardless of the nature of the crime.

Corruption Probe

State Senator Brian Burke was charged in criminal court with 18 felony counts. He moved to stay the proceedings until 15 days after the end of the current legislative session, claiming that he was exempt from the proceedings, pursuant to Article IV, Section 15, of the Wisconsin Constitution.

That provision states: "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."

Dane County Circuit Court Judge Angela B. Bartell denied the motion, and the court of appeals granted Burke's petition for interlocutory review, but affirmed Bartell's holding, in a decision by Judge Charles P. Dykman.

Isenring v. Polacheck

Although Burke was charged with felonies, the constitutional exemption from immunity for felonies is inapplicable, because the term, "felony," in the constitution refers only to crimes which were felonies at the time the constitution was adopted. State ex rel. Isenring v. Polacheck, 101 Wis. 427, 431, 77 N.W. 708 (1898).

Because Polacheck was neither charged with treason, nor a felony as that term is used in the constitution, the Supreme Court there held that bribery does not come within the exceptions named in the constitution.

Burke argued that the necessary implication of Polacheck is that Article IV, Section 15 applies to criminal prosecutions, and can protect legislators from some cases.

The court rejected that argument, however, concluding that the provision applies only to civil arrests.

Discussing Polacheck, the court stated, "The State did not argue, however, and the opinion in Polacheck did not address the question Burke raises here. ... The State and the Supreme Court were assuming the applicability of article IV, section 15 to Polacheck's case. ... It is hardly surprising, then, that the Supreme Court did not address it. Burke's reliance on one sentence taken out of context from Polacheck is misplaced."

Breach of the Peace

The court determined...