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.
Under the established methodology for construing the meaning of a constitutional provision, courts give priority to the plain meaning of the words of the provision in the context in which those words were used at the time the provision was adopted, taking into account other provisions of the constitution. See Dairyland Greyhound Park v. Doyle, 2006 WI 107, ¶ 117, 295 Wis. 2d 1, 719 N.W.2d 408 (Prosser, J., concurring in part and dissenting in part) (citing Buse v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976) and State ex rel. Bare v. Schinz, 194 Wis. 397, 403-04, 216 N.W. 509 (1927)). Therefore, in attempting to determine whether Board membership can be considered a “judicial office” within the meaning of Wis. Const. art. VII, § 10, primary attention should be given to the meaning that the phrase “judicial office” would have had to the framers of the constitution in 1848, rather than any meanings derived from contemporary English usage. And in determining that historical meaning, it is helpful, in particular, to examine how that term or closely related terms were used in other contemporaneous provisions of the Wisconsin Constitution. The specific phrase “judicial office” appears not to be used anywhere in the 1848 Wisconsin Constitution other than in Wis. Const. art. VII, § 10. The component word “judicial,” however, is used in several other sections of the Judiciary article. See Wis. Const. art. VII, § 1 (“No judicial officer shall exercise his office after he shall have been impeached . . .”); § 2 (“The judicial power of this state . . . shall be vested in a supreme court, circuit courts, courts of probate, and in justices of the peace.”); §§ 4-5 (organization of “judicial circuits”); § 12 (court clerks for “each county organized for judicial purposes”); § 21 (publication of certain “judicial decisions made within the state”); and § 23 (Legislature may vest in certain persons “such judicial powers as shall be prescribed by law”) (1848). It is desirable, if possible, to harmonize the meaning of these various uses of the word “judicial” within Wis. Const. art. VII, including its use in the phrase “judicial office” in Wis. Const. art. VII, § 10.
In order to harmonize these meanings, it is necessary to look to the overall purpose of the Judiciary article of the Constitution in light of general principles of the separation of powers. The Wisconsin Constitution implicitly provides for the separation of powers by separately vesting the state’s legislative power in a bicameral legislature, Wis. Const. art. IV, § 1, its executive power in a governor, Wis. Const. art. V, § 1, and its judicial power in a unified court system, Wis. Const. art. VII, § 2. This constitutional structure creates three separate coordinate branches of government that may share certain powers but that are unable either to control the other branches or to exercise the core powers committed to the other branches by the constitution. See State v. Holmes, 106 Wis. 2d 31, 42-43, 315 N.W.2d 703 (1982); see also Wis. Stat. § 15.001(1) (“It is a traditional concept of American government that the 3 branches are to function separately, without intermingling of authority, except as specifically provided by law.”). In light of this structure, the overall purpose of Wis. Const. art. VII is plainly to establish an independent judicial branch of state government. This is accomplished not only, as has been shown, by vesting the judicial power of the state in a unified court system, but also by expressly providing that the supreme court shall have superintending and administrative authority over all courts. Wis. Const. art. VII, § 3. Furthermore, the Wisconsin Constitution declares that the chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise that administrative authority pursuant to procedures adopted by the supreme court. Wis. Const. art. VII, § 4. In addition, as previously noted, the specific purpose of Wis. Const. art. VII, § 10 was to protect the independence of the judiciary from political influence. See Wagner, 263 Wis. 2d 709, ¶¶ 25-29. The framers nonetheless chose to allow a judge to hold another “judicial office”—but not “any other office of public trust”—prior to the end of the term to which the judge had been previously elected. The most reasonable inference is that the framers believed it was acceptable to allow a judge to assume another “judicial office” because, like the judge’s previous office, the new “judicial office” would be similarly insulated from political influence. It follows that the phrase “judicial office,” as used in the Judiciary article of the Constitution, should be construed as referring to an office that is located within the judicial branch of government created by that article. The Legislature has, in another context, provided a good definition of those agencies that are in the judicial branch. See Wis. Stat. § 16.70(5): “‘Judicial branch agency’ means an agency created under ch. 757 or 758 or an agency created by order of the supreme court.” Compare Wis. Stat. § 16.70(4) (“‘Executive branch agency’ means an agency in the executive branch but does not include the building commission.”). The Board, however, is not a judicial branch agency in this sense, for it is not created under Wis. Stat. ch. 757 or 758, nor is it an agency created by order of the supreme court. On the contrary, the Board has been created by the Legislature under Wis. Stat. ch. 15, the title of which refers to the “Executive Branch.” The Board thus is an executive branch agency that is not under the supervisory authority or superintending control of the Wisconsin Supreme Court or the judiciary. Accordingly, membership on the Board cannot be deemed a “judicial office” in the constitutional sense. Your opinion request noted that it has been the longstanding, continual practice of the Legislature to statutorily require judges to serve as members of certain agencies, such as the Judicial Commission, the Sentencing Commission, the Council on Uniformity of Traffic Citations and Complaints, and the Crime Victims Council. In my opinion, however, those examples do not establish a practice of allowing “judicial offices” to exist outside the judicial branch of government.
The example of the Judicial Commission does not support your position for the simple reason that the Judicial Commission is not an executive branch agency. It is created under Wis. Stat. § 757.83 and, as already shown, an agency created under Wis. Stat. ch. 757 is a judicial branch agency. Furthermore, Wis. Stat. § 757.83 has been enacted pursuant to Wis. Const. art. VII, § 11, which authorizes the Legislature to establish procedures for implementing the supreme court’s inherent superintending and administrative authority over judges. Accordingly, the Judicial Commission, unlike an executive branch agency, is subject to the supervisory authority and superintending control of the supreme court. See State ex rel. Lynch v. Dancey, 71 Wis. 2d 287, 293-95, 238 N.W.2d 81 (1976). The other three examples cited in your letter do involve executive branch agencies or entities: the Sentencing Commission (Wis. Stat. § 15.105(27) (now repealed)); the Crime Victims Council (Wis. Stat. § 15.257); and the Council on Uniformity of Traffic Citations and Complaints (Wis. Stat. § 15.467(4)). It is not at all clear, however, that membership on any of those entities amounts to an “office” in the constitutional sense. The Wisconsin Supreme Court has said that “the principal consideration determining whether a position is an office and one holding it is an officer is the type of power that is wielded.” Burton v. State Appeal Board, 38 Wis. 2d 294, 300, 156 N.W.2d 386 (1968). Moreover, as noted earlier in this opinion, the characteristics of a public office include the possession of some delegated portion of the sovereign power of government to be exercised for the benefit of the public without the control of a superior power. Martin v. Smith, 239 Wis. at 332. Each of the three executive branch entities referenced above is an advisory body. There is authority for the proposition that advisory bodies do not exercise a delegated portion of the sovereign power of government. In Harmer v. Superior Court In and For Sacramento County, 79 Cal. Rptr. 855, 857 (Cal. App. 1969) and in Parker v. Riley, 113 P.2d 873, 875-76 (Cal. 1941), the California courts indicated that a California constitutional provision prohibiting legislators from holding any office, trust, or employment other than an elective office did not preclude California legislators from serving on advisory committees. See Parker, 113 P.2d at 876 (“Such tasks do not require the exercise of a part of the sovereign power of the state.”); see also 83 Cal. Op. Att’y Gen. 50, *2 (2000), 2000 WL 223305. Cf. Harvey v. Ridgeway, 450 S.W.2d 281, 284 (Ark. 1970) (examining the interpretation of a since-repealed Illinois constitutional provision that was similar to Wis. Const. art. VII, § 10(1)). If advisory bodies do not exercise a delegated portion of the sovereign power of government, then membership on them does not constitute service in a public “office” and, ipso facto, also does not constitute service in a “judicial office” within the meaning of Wis. Const. art. VII, § 10.
Nor do I agree with the suggestion that Board membership is a “judicial office” because only former judges are statutorily eligible for such membership. In my opinion, it is logically circular to reason that an office is judicial, in the constitutional sense, merely because the Legislature has decreed that it must be occupied by a judge—whether current or former. If that were true, then Wis. Const. art. VII, § 10 would place no limits at all on the ability of the Legislature, at its own pleasure, to create additional public offices for judges to occupy by the simple expedient of not allowing anyone other than a judge to hold those offices. Such an outcome would be inconsistent with the evident intent of the framers of Wis. Const. art. VII, § 10 to insulate judges from the influence of the political branches of government.
Likewise, the fact that the statutes give designated members of the judiciary a role in the nomination of candidates for Board membership is also insufficient to make such membership a “judicial office.” At most, such nomination procedures allow the designated members of the judiciary to decide which judges might be subjected to the potential influence of the political branches. The purpose of Wis. Const. art. VII, § 10, however, is to ensure that no judges are subject to such influence.
Finally, I also disagree with the contention that Board membership can be considered a “judicial office” because some of the work of the Board—such as issuing legal opinions and adjudicating certain controversies—is judicial in character. The Wisconsin Supreme Court has recognized that the delegation of some adjudicative authority to executive branch agencies does not violate separation-of-powers principles as long as that authority is sufficiently limited to what is reasonably necessary for carrying out the agency’s administrative responsibilities. See Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 348-50 and n.26, 262 N.W.2d 218 (1978). It does not follow, however, that the adjudicative authority delegated to executive branch agencies can properly be characterized as judicial in character. On the contrary, the Supreme Court said in Layton: “This court has recognized that not all adjudication is judicial and that courts are not the exclusive instrumentalities for adjudication.” Id. at 348 (emphasis added). The Court then approvingly cited an earlier decision that upheld worker’s compensation statutes which authorized the Industrial Commission to decide certain controversies on the ground that the statutes did not “‘vest[] in the Commission judicial powers within the meaning of the constitution.’” Id. at 348 n.26 (quoting Borgnis v. Falk Co., 147 Wis. 327, 358, 359, 133 N.W. 209 (1911)). Although the Commission may act quasi-judicially by ascertaining some questions of fact and applying the law thereto, the Court noted, “‘it is not thereby vested with judicial power in the constitutional sense.” Id. (emphasis added by the Court in Layton). In other words, the Layton decision reasoned that separation-of-powers principles are not violated by delegations of limited adjudicative power to executive branch agencies because that adjudicative power is not “judicial” power within the meaning of Wis. Const. art. VII, § 2, which vests the judicial power of the state in the courts. See id. at 347 and n.24. Your opinion request has suggested, however, that precisely such a delegation of limited adjudicative power to the Board makes membership on that body a “judicial office” under Wis. Const. art. VII, § 10. But if that were true, it would follow that the word “judicial” would have a different meaning in Wis. Const. art. VII, § 2, than it has in Wis. Const. art. VII, § 10. In my opinion, a court would be reluctant to construe the Judiciary article of the constitution in such a fashion. Accordingly, I conclude that an office vested with adjudicative authority that is not “judicial power” in the constitutional sense cannot thereby be deemed a “judicial office” within the meaning of Wis. Const. art. VII, § 10.
A review of the language of successive draft versions of Wis. Const. art. VII, § 10 supports the same conclusion. The version of that provision in the proposed 1846 constitution included, among other things, a clause that would have voided all votes given by the Legislature or the people for the purpose of electing a sitting judge to “any office except that of judge of the supreme or circuit court.” Wagner, 263 Wis. 2d 709, ¶¶ 23‑24 (quoting Milo Quaife, The Convention of 1846 (1919) at 293; Tenney, Journal of the Convention to Form a Constitution (1848) at 637). Similarly, the version of Wis. Const. art. VII, § 10 reported out of committee at the second constitutional convention in 1847 provided, in pertinent part, as follows: They shall hold no other office of public trust, and all votes for either of them for any office, except that of judge of the supreme or circuit court, given by the legislature or the people shall be void.
Wagner, 263 Wis. 2d 709, ¶ 29 (quoting Tenney, Journal of the Convention to Form a Constitution at 67). The convention subsequently voted to amend the above provision as follows: [B]y striking out . . . the word ‘other’ before the word ‘office’ and inserting after the word ‘trust’ the words ‘except a judicial office during the term for which they are respectively elected’; also by striking out . . . the words ‘judge of the supreme and circuit court’ and inserting ‘a judicial office.’
Milo Quaife, The Attainment of Statehood (1928) at 691.
The phrase “judicial office,” as ultimately used in the 1848 version of Wis. Const. art. VII, § 10, thus originated as a substitute for earlier phrases that had specifically identified the offices of supreme court judge and circuit court judge. This strongly suggests that, in the framers’ understanding, the phrase “judicial office” did not signify every office that might involve some adjudicative functions, including offices within the political branches of government, but rather was closely associated with a traditional view of the kinds of courts that compose the judicial branch of government.
Recent scholarship has likewise shown that, in the 19th century, specifically judicial power was understood as the power to conclusively dispose of an individual’s legal claim to the core private rights to life, liberty, and property that government was instituted to safeguard. Caleb Nelson, Adjudication in the Political Branches, 107 Columbia L. Rev. 559, 562 (2007). Under traditional separation-of-powers doctrine, such judicial power is vested exclusively in the courts of the judicial branch of government. Id. at 564-65. In contrast, the political branches of government were understood as being capable, in proper circumstances, of authoritatively adjudicating other legal interests—including interests held by the public as a whole—without thereby exercising specifically judicial power. Id. at 565; cf. Layton, 82 Wis. 2d at 348 (adjudicative authority exercised by executive branch agency is not judicial power).
With regard to the present inquiry, the Board is statutorily authorized to investigate complaints alleging certain violations of election laws, to conduct administrative hearings on such complaints in appropriate cases, and to order appropriate injunctive relief. Wis. Stat. §§ 5.06 and 5.061 (2007). In adjudicating such complaints, it appears that the Board would not be determining any private individual’s rights to life, liberty, or property, but rather would be vindicating the legal interests of the public as a whole in the integrity of the electoral and governmental processes. According to the understanding described above, the adjudication of such public rights does not involve the exercise of specifically judicial power, in the 19th century sense of the term. This historical analysis, too, thus supports the conclusion that, when the Wisconsin Constitution was created in 1848, the term “judicial office” was not understood in a way that would include an office like Board membership. In conclusion, for all of the above reasons, it is my opinion that membership on the Board is an office of public trust but is not a judicial office within the meaning of Wis. Const. art. VII, § 10, and therefore, in conformity with that constitutional provision, an individual who has resigned from the office of judge may not serve as a member of the Board for the duration of the term to which the individual was elected to serve as a judge.
Finally, it is my understanding that one or more current Board members were elected to terms for judicial office that have not yet expired. However, please be advised that Wisconsin law follows the “de facto officer” doctrine. A “de facto officer” is a person who is in possession of an office, performs the duty of the office, and claims the office under color of an election or appointment. Walberg v. Deisler, 73 Wis. 2d 448, 463-64, 243 N.W.2d 190 (1976). As stated by the Wisconsin Supreme Court: “It is generally recognized that the acts of a de facto officer are valid as to the public and third parties and cannot be attacked collaterally.” Id. at 463. Therefore, unless and until information to the contrary is presented, the Board should assume that the Board members who are not entitled to hold the office of a Board member are de facto officers and that their prior actions, and the prior actions of the Board, are valid, legal, and binding. Sincerely,
J.B. Van Hollen
Attorney General
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