Whether a statute violates the speech and debate clause presents a question of constitutional interpretation. See generally State v. Beno, 116 Wis. 2d 122, 341 N.W.2d 668 (1984). The framers' objective in enacting WIS. CONST. art. IV, § 16 was "to ensure the independence of the legislature and the integrity of the legislative process by precluding the possibility of intimidation or harassment of members of the legislature."
(3) The earliest interpretation of this section by the legislature as manifested in the first law passed following the adoption of the constitution.State v. Beno, 116 Wis.2d 122, 136-37, 341 N.W.2d 668 (1984) (citations omitted). ¶ 5.
State v. Beno, 116 Wis.2d 122, 136, 341 N.W.2d 668, 675 (1984). The analysis requires a court first to examine the plain meaning of the words in the context used.
An obvious source to examine is the United States Constitution, which also explicitly vests “[t]he judicial power” in the Supreme Court, as well as in other inferior courts that Congress may establish. U.S. Const. Art. III, § 1; see State v. Beno, 116 Wis.2d 122, 135–37, 341 N.W.2d 668 (1984) (acknowledging that the framers of the Wisconsin Constitution sought guidance from the federal Constitution). Scholars have noted that there does not appear to be a clear statement as to the meaning of “[t]he judicial power” in the federal Constitution, but that many courts and academics have conceived of the principle as either directly analogous to, or closely related to, subject matter jurisdiction.
As with any document, the interpretive task is to "ascertain its true intent and meaning." State v. Beno, 116 Wis. 2d 122, 136-37, 341 N.W.2d 668 (1984). The authoritative, and usually final, indicator of the meaning of a provision is the text — the actual words used.
Wahl also contends that he is excused from complying with the subpoena because Article IV, Section 16 of the Wisconsin Constitution provides that "[n]o member of the legislature shall be liable in any civil action, or criminal prosecution whatever, for words spoken in debate." It is Wahl's position that according to State v. Beno, 116 Wis. 2d 122, 341 N.W.2d 668 (1984), he is entitled to raise Section 16 as a defense to the subpoena, even though the communications are not his, because he is the agent of the legislators who could raise that defense. On the other hand, the State asserts that the John Doe proceeding is an investigation of alleged criminal activity that is not closely related to the purpose for which Section 16 was enacted; therefore, Section 16 is no defense.
We interpret provisions of the Wisconsin Constitution de novo. See State v. Beno, 116 Wis.2d 122, 136-38, 341 N.W.2d 668, 674 (1984). In Beno, this court set forth the appropriate analysis for interpreting provisions of the Wisconsin Constitution: (1) the 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; and (3) the earliest interpretation of the provision by the legislature as manifested in the earliest law passed following the adoption of the constitution.
Aladdin's Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1076, 71 L.Ed.2d 152 (1982) (acknowledging that the Texas Constitution could provide broader protections than federal Constitution); Carreras v. City of Anaheim, 768 F.2d 1039, 1042-43 (9th Cir. 1985) (finding a restraining order overbroad under the California Constitution). Farmers New World Life Ins. Co. v. Bountiful City, 803 P.2d 1241 (Utah 1990) (looking to federal law only after finding no inverse condemnation under the state constitution); Mountain States Tel. Tel. Co. v. Arizona Corp. Comm'n, 160 Ariz. 350, 773 P.2d 455, 461 (1989); In re T.W., 551 So.2d 1186, 1190 (Fla. 1989); O'Neill v. Oakgrove Constr., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 6, 523 N.E.2d 277, 282 (1988) (Kaye, J., concurring); State v. Jewett, 146 Vt. 221, 500 A.2d 233, 238 (1985) (federal law considered but required briefing of the state constitutional issue before the case could be decided); State v. Koppel, 127 N.H. 286, 499 A.2d 977, 979 (1985); State v. Beno, 116 Wis.2d 122, 341 N.W.2d 668 (1984) (following the state constitution even though recognizing the existence of a closely corresponding federal speech and debate clause found in U.S. Const. Art. 1, Sec. 6, cl. 1); People v. Rolfingsmeyer, 101 Ill.2d 137, 77 Ill. Dec. 787, 790-92, 461 N.E.2d 410, 413-15 (1984) (Simon, J., concurring); State v. Hunt, 91 N.J. 338, 450 A.2d 952, 959 (1982) (Pashman, J., concurring); Ravin v. State, 537 P.2d 494, 513-15 (Alaska 1975) (Boochever, J., concurring); Burrows v. Superior Court of San Bernardino County, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590 (1975); Freedman v. New Jersey State Police, 135 N.J. Super. 297, 343 A.2d 148, 150 (1975); William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N YU.L.Rev. 535 (1986) (hereinafter Brennan, Revival of State Constitutions ); Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Court
To determine the constitutionality of the Parental Choice Program the court must look to the words of art. X, the constitutional debates and educational practices in existence in 1848, and the earliest interpretations by the legislature. State v. Beno, 116 Wis.2d 122, 136-37, 341 N.W.2d 668 (1984). If these sources do not provide an answer, the court will look to "the objectives of the framers in adopting the provision."
Therefore, the defendants argue their freedom of expression is protected in the East Towne and West Towne malls through Art. I, sec. 3 of the Wisconsin Constitution. As we stated in State v. Beno, 116 Wis.2d 122, 136, 341 N.W.2d 668 (1984): "We have previously articulated the analysis which a court should employ in interpreting provisions of the Wisconsin Constitution.