J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
April 8, 2008 OAG—4—08
Mr. Kevin J. Kennedy
Legal Counsel
Government Accountability Board
17 West Main Street, Suite 310
Madison, WI 53701
Dear Mr. Kennedy:
You ask whether a person who has previously been elected as a judge but who has resigned before completing the term to which the person was elected may serve as a member of the Government Accountability Board (“Board”), even if the term for which the person was elected as a judge has not yet expired.
In my opinion, Wisconsin law does not allow a person who has resigned from the office of judge to serve as a member of the Board for the duration of the term to which the person was elected as a judge.
The Wisconsin Constitution provides that “[n]o 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.” Wis. Const. art. VII, § 10. This prohibition is echoed by Wis. Stat. § 757.02(2), which provides that “[t]he 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.” In Wagner v. Milwaukee County Election Com’n, 2003 WI 103, ¶ 85, 263 Wis. 2d 709, 666 N.W.2d 816, the Wisconsin Supreme Court construed these provisions to mean that a person who was elected or appointed judge cannot hold any other office of public trust, except a judicial office, during the entire term the person would be legally entitled to serve as a judge by reason of the person’s election or appointment, even if the person resigns from the bench before completing that term. Whether a former judge with an unexpired term would be eligible to serve on the Board thus depends on whether Board membership is an “office of public trust,” and if so, whether it is a “judicial office,” as those terms are used in Wis. Const. art. VII, § 10 and Wis. Stat. § 757.02(2). 1. Is Board Membership an Office of Public Trust?
Your opinion request takes the position that, for purposes of restricting the conduct of a judge under Wis. Const. art. VII, § 10, the phrase “office of public trust” refers only to an elective office. According to your analysis, the constitutional history of the provision establishes that it was intended to bar a judge, during the judge’s term of office, from using a judicial position as a stepping-stone to an elective political office. I conclude, to the contrary, that membership on the Board is an office of public trust, within the meaning of Wis. Const. art. VII, § 10.
When interpreting the Wisconsin Constitution, the courts seek to give effect to the intent of the framers and of the people who adopted the constitution by examining three sources: the plain meaning of the words in their context; the practices as they existed at the time the constitution was written; and the earliest interpretations of the constitutional provision under consideration. Kocken v. Wisconsin Council 40, AFSCME, AFL-CIO, 2007 WI 72, ¶ 85, 301 Wis. 2d 266, 732 N.W.2d 828. The term “office of public trust” is not defined in either the constitution or statutes of this state. The history of the adoption of Wis. Const. art. VII, § 10, also provides little specific direction regarding the meaning of the term. It does not appear that any question was ever raised in the state constitutional conventions about what constitutes an office of public trust so as to trigger any reported discussion about the matter.
An important historical clue can nonetheless be gleaned from a phrase that existed in Wis. Const. art. VII, § 10, from the time of its adoption until its elimination in a 1977 amendment. After stating the rule that a judge could not hold another “office of public trust,” the provision immediately went on to state that “all votes for [judges] . . . for any office, except a judicial office, given by the legislature or the people, shall be void.” The fact that the provision voided “votes” for “any office” immediately after prohibiting judges from holding an “office of public trust”—without mentioning votes—implies that the authors of the constitution thought that an office of public trust included, but was not necessarily limited to, any office for which an incumbent would receive votes—i.e., an elective office.
The broader constitutional history of the period also supports the view that the framers of Wis. Const. art. VII, § 10, were concerned about the potential threats to judicial independence posed by the pursuit of appointive office, as well as elective office. Between 1846 and 1860, numerous states, in addition to Wisconsin, provided in their constitutions for popular election of judges. See Kermit L. Hall, The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary, 1846-1860, 45 The Historian 337 (1983). Proponents of popular election of judges saw that practice as enhancing, rather than subverting, the independence, prestige, and power of the judicial branch of government. Id. at 343-45 and 349-50. In their view, the appointment of judges by governors or legislatures had led to the distribution of judgeships based on political service, rather than legal skill or judicial temperament. Id. at 347. Appointment of judges, they believed, was itself dangerous to judicial independence because it denied the judiciary its own claim to direct support from the sovereign people. Id. at 350. The elective system was thus meant to insulate the judiciary from the control of the other branches of government by providing for direct popular support of judges. Caleb Nelson, A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, 37 American Journal of Legal History 190, 205-06 (1993). This view of the purpose of judicial elections was articulated in the constitutional debates in Wisconsin. See Wagner, 263 Wis. 2d 709, ¶ 26 (quoting Milo Quaife, The Convention of 1846 (1919) at 287-88). At the same time, fears that elected judges might be too dependent on the popular will were calmed by including constitutional devices that staggered judicial elections, provided for district rather than state-wide judicial elections, gave judges fixed terms of office during good behavior, and made elected judges ineligible for other offices during the term for which they were elected. Hall, The Judiciary on Trial, 45 The Historian at 352. The provision at issue here, Wis. Const. art. VII, § 10, is an example of the latter kind of constitutional safeguard, designed to insulate elected judges from the sway of popular politics. See Wagner, 263 Wis. 2d 709, ¶¶ 27-28. It is reasonable to conclude that the very same framers who required judges to be elected in order to protect them from the perceived evils of political patronage that were seen to be inherent in the appointment system would not have assumed that a sitting judge was immune to being influenced by the prospect of appointment to a non-judicial office, as well as by the prospect of election to such an office. In this historical context, it is apparent that the use of the broad phrase “office of public trust” in Wis. Const. art. VII, § 10—without any qualifier related to the elective or appointive nature of such office—was intended to shield sitting judges against possible political influences deriving either from election or appointment to a non‑judicial office. Moreover, it makes sense to construe “office of public trust” to be consistent with the term “public office,” which clearly encompasses both elective and non-elective positions. Some sixty years after the adoption of the 1848 constitution, the Supreme Court suggested that the term “office of public trust” as used in Wis. Const. art. VII, § 10, was synonymous with “public office.” In re Appointment of Revisor, 141 Wis. 592, 124 N.W. 670 (1910). In that case the Court considered the argument that being a trustee of the state law library “endows the justices with another public office not judicial . . . in violation of the constitution, which says that they shall hold no office of public trust during their term except a judicial office.” Id., 141 Wis. at 608. The Court went on to discuss whether the trustees held “an office” as “‘public officers.’” Id.
One of my predecessors suggested essentially the same thing in a 1925 opinion, 14 Op. Att’y Gen. 332 (1925). There, it was stated that the “terms ‘office’ and ‘public trust’ in the constitution are nearly synonymous.” Id. at 333. That opinion quoted a case which indicated that an office of public trust is in effect a public office because the words “public trust” include every agency to which the public appoints persons to perform some duty or service. Id.
In Law Enforce. Stds. Bd. v. Lyndon Station, 98 Wis. 2d 229, 238, 295 N.W.2d 818 (Ct. App. 1980), aff’d, 101 Wis. 2d 472, 305 N.W.2d 89 (1981), the Court of Appeals indicated by analogy that an office of public trust is a public office. In discussing the parallel constitutional provision that a person convicted of an infamous crime was not eligible to any “‘office of trust, profit or honor,’” the court stated that the “term ‘office’ as used in art. XIII, sec. 3 of the Wisconsin Constitution, means ‘public office.’” Id. Another of my predecessors provided an unequivocal definition of the term in a 1988 opinion, 77 Op. Att’y Gen. 256, 258 (1988), plainly stating that, in Wis. Const. art. VII, § 10, the “term ‘office of public trust’ is used synonymously with ‘public office.’”
The Legislative Reference Bureau (“LRB”) appears to hold the same view. In discussing changes to the constitution proposed in 1995, the LRB titled its discussion of a proposed change in Wis. Const. art. VII, § 10, “Removing Restriction on Judges Holding Nonjudicial Public Office after Resignation During the Judicial Term.” Wisconsin Briefs, Constitutional Amendments to be Considered by the Wisconsin Voters April 4, 1995, LRB-95-WB-6 (March 1995).
The few cases from other jurisdictions that have attempted to define a term that, paradoxically, is widely used in legislation have agreed that an office of public trust is the same as a public office. See, e.g., State ex rel. Gilson v. Monahan, 84 P. 130, 133 (Kan. 1905); Smith v. Moore, 90 Ind. 294, *3 (1883), 1883 WL 5621.
A “public office” is one that is created by legislative act, possesses a delegation of a portion of the sovereign power of the state to be exercised independently without the control of a superior power, has some permanency, and is held by virtue of written authority. Martin v. Smith, 239 Wis. 314, 330-32, 1 N.W.2d 163 (1941). Whether a position in government is a public office is not determined by the manner in which the incumbent is chosen. Id., 239 Wis. at 333. A person may be “a public officer, however chosen, [if] there is devolved upon him by law the exercise of some portion of the sovereign power of the state in the exercise of which the public has a concern.” Id. at 332. Public offices thus include those filled by either election or appointment. See id. at 330-33. Indeed, the Legislature has expressly defined “local public office” and “state public office” to include both elective and appointive offices, specifically including offices to which the incumbent is appointed by the Governor. Wis. Stat. §§ 19.42(7w) and 19.42(13). Another of my predecessors has stated that the position of notary public, an appointive position, Wis. Stat. § 137.01(1)(a), is an “office of trust, profit or honor,” as that term is used in Wis. Const. art. XIII, § 3. 63 Op. Att’y Gen. 74, 75 (1974). As noted above, the term “office of trust, profit or honor” in Wis. Const. art. XIII, § 3, has also been construed to be synonymous with “public office.” Wis. Law Enforce. Stds. Bd., 98 Wis. 2d at 238. Thus, Attorneys General have recognized, in essence, that public offices include those filled by appointment. This means, among other things, that a judge may not hold the appointive public office of notary public. The Legislature has apparently acknowledged this disqualification by providing that judges, although not notaries public, are authorized to perform notarial acts. Wis. Stat. § 706.07(3)(a)2. This authorization does not violate Wis. Const. art. VII, § 10, which only prohibits judges from holding another public office, not from performing functions that may also be performed by those who hold another public office. Under the established definition of “public office” discussed above, Board membership is a public office. Wis. Stat. § 15.60(1) (2007). The Board independently exercises the power to enforce the elections, ethics, and lobbying laws of the state. Wis. Stat. § 5.05(1) (2007). And the members of the Board are appointed by the Governor for fixed six-year terms. Wis. Stat. § 15.60(1) and (2) (2007). Because Board membership is a public office, members of the Board also hold an office of public trust within the contemplation of Wis. Const. art. VII, § 10. Indeed, they hold an office in which the public has placed considerable trust to oversee the conduct of elections, and of elected and appointed officers. Therefore, under the restriction of Wis. Const. art. VII, § 10, a former judge whose term of office as a judge has not expired can be a member of the Board only if Board membership is a “judicial office” within the meaning of that constitutional provision.
2. Is Board Membership a Judicial Office?
Your opinion request also takes the position that Board membership is a “judicial office” because statutory eligibility for such membership is entirely dependent on having held a judgeship, because the statutes require the active participation of the judiciary in the selection of Board members, and because much of the work of the Board is judicial in character. I conclude that Board membership cannot be considered a “judicial office,” within the meaning of Wis. Const. art. VII, § 10.
