Resignation can't help judge run for other office.

Byline: David Ziemer

Article VII, Section 10(1) of the Wisconsin Constitution prohibits a judge or justice from holding a nonjudicial position of public trust during the entire period of time for which he was elected and entitled to serve as a judge or justice, even if the person resigns from the judicial position before the term would otherwise expire, the Wisconsin Supreme Court held on July 10.

Milwaukee County Circuit Court Judge Jeffrey A. Wagner is presently serving his third term, which commenced in August 2000 and expires in August 2006. On Feb. 7, 2002, Wagner sought leave to file an original action in the Supreme Court, expressing interest in becoming a candidate in an upcoming election for Milwaukee County Executive.

The named respondent, Milwaukee County Election Commission, filed a response indicating that it neither supported nor opposed the petition by Judge Wagner. The deadline for filing nomination papers was March 5, 2002.

The Supreme Court issued an order stating that, because there was no respondent taking an adverse position, the court would be unable to expeditiously resolve the action before the deadline. However, the court further ordered that, if Wagner wished to proceed, it would grant the request and invite the Attorney General to serve as the respondent.

Wagner informed the court that he wished to proceed, and was granted leave to do so. In a decision by Justice Jon P. Wilcox, the Supreme Court held that a sitting judge could not run for nonjudicial office until the term was completed, even if the judge resigned. Justice Ann Walsh Bradley dissented, in an opinion joined by Chief Justice Shirley S. Abrahamson. Justice Diane S. Sykes did not participate.

Mootness

Before reaching the merits of this case, the court first held that the case was justiciable, even though the election is over.

The court stated, "It is not this court's purpose to disrupt the flow of the elective process, nor is it desirable for this court to force potential candidates into an untenable position in which they must risk violating the very constitution they are entrusted to uphold in order to seek another position from which to serve the public. As such, it is appropriate that we resolve the question as it arises under the facts presented in this case. There is a core institutional interest in protecting the integrity of the judiciary by making a determination in this case. This issue must be resolved so that all those serving as judges and justices of courts of record in this state may know and understand what is required of them under the Wisconsin Constitution."

Constitutional Conventions

The court concluded that the plain meaning of the provision does not allow a judge to run for nonjudicial office until the expiration of his term.

The provision states, "No justice of the Supreme Court or judge of any court of record shall hold any other office of public trust, except a judicial office, during the term for which elected."

A corresponding provision in the statutes provides, "The judge of any court of record in this state shall be ineligible to hold any office of public trust, except a judicial office, during the term for which he or she was elected or appointed." Sec. 757.02(2).

The court began with a review of the history of the provision, beginning with the constitutional convention of 1846, which failed to produce a constitution.

Early versions of the provision prohibited judges from running for nonjudicial office, even if they resigned, for a period of a year or two later. Neither version was adopted, however, and instead, the 1848 convention produced the...