DRAFT ORDER OF THE WISCONSIN ELECTIONS COMMISSION CREATING RULES
The Wisconsin Elections Commission adopts the following permanent rule to create EL 19, relating to confidentiality of judicial officer information on certain election materials.
The statement of scope for this rule, SS 096-24, was approved by the Office of Wisconsin Governor Tony Evers on August 1, 2024, published in Register No. 824B, on August 26, 2024, and approved by the Wisconsin Elections Commission on September 11, 2024. RULE ANALYSIS
1. Statutes Interpreted:
2. Statutory Authority:
3. Explanation of Agency Authority:
Section 5.05(1)(f), Stats., allows the Commission to “Promulgate rules under ch. 227 applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensuring their proper administration.” Section 8.10(8)(a) explains the ability of judicial officers and candidates to withhold residency information on nomination papers and declarations of candidacy and requires the Commission to “promulgate rules for the administration of this subsection and prescribe a certification of residence for a candidate or circulating judicial officer for use under this subsection.” Section 227.11(2)(a), Stats., authorizes an agency to promulgate rules interpreting the statutes administered by the agency. 4. Related Statutes:
Sections 8.10(2)&(4), 8.21(4)(b), 19.36(15), and 757.07 Stats. Section 8.10(8), Stats., modifies the process of completing nomination papers and declaration of candidacy documents by judicial officers and judicial candidates under Sections 8.10(2)&(4) and 8.21(4)(b). Section 19.36(15), Stats., clarifies that when a judicial officer or judicial candidate submits a certification of residence with the Commission, that document is not subject to public records requests. Section 757.07, Stats., contains the other privacy provisions for judicial officers created by 2023 WI Act 235. 5. Plain Language Analysis:
The proposed administrative rule carries out the legislative directive in Wis. Stat. § 8.10(8) for the Wisconsin Elections Commission to promulgate rules to allow judicial candidates and judicial officers to withhold their residential address information on nomination papers and declarations of candidacy. The rule prescribes what must be included on the certificate of residence that must be submitted to the Commission and how the Commission will process a form once received. The rule details the specific instances in which a judicial candidate and judicial officer may withhold residential information and instead add "Residence Certified with WEC" in the spaces on the forms asking for residence information. The rule also details how the Commission will communicate this information to the municipal or county clerks who may be processing nomination papers and declarations of candidacy signed by such officers and candidates. The rule also details that a new form must be submitted when any information on the form changes, such as running for election to a new office or for reelection, or if an address changes. Section EL 19.01 defines terms relevant to the process for judicial officers and judicial candidates to submit certification of residence forms. Section EL 19.02 details the information that must be included in order for a certification of residency form to be sufficient. Section EL 19.03 provides what a may be submitted as a proof of residency document, and how the document may be submitted. Section EL 19.04 provides how the Commission will verify the address provided and how the Commission. Section EL 19.05 provides how the Commission will maintain the information provided on certificates of residency. Section EL 19.06 provides the procedures that must be followed by judicial officers and candidates, and by the Commission, county clerks, and municipal clerks following the proper filing of a certificate of residency with the Commission. 6. Summary of, and Comparison With, Existing or Proposed Federal Regulations:
Wis. Stat. § 8.10(8) was created by 2023 WI Act 235, which is closely related to recent federal legislation protecting the information of federal judicial officers. The federal law is the Daniel Anderl Judicial Security and Privacy Act of 2021, which passed as a part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, 117 P.L. 263; 2022 Enacted H.R. 7776; 117 Enacted H.R. 7776; 136 Stat. 2395. It is Section 5931-39 of the legislation. The federal law aimed to prohibit the public posting of certain personal identifying information of federal judges or their immediate family members and includes any home address of the officer. This rule relates more narrowly to residence information on declarations of candidacy and nomination papers but is otherwise in keeping with the federal law. However, it should be noted that the state law does not apply to federal judicial officers and only applies to Wisconsin judicial officers under the state system. The Commission has requested that the legislature amend the legislation to include federal officers. 7. Summary of Comments Received During Preliminary Comment Period and at Public Hearing on Statement of Scope
The Commission did not receive a directive from the Joint Committee for the Review of Administrative Rules to hold a preliminary public hearing and did not hold a preliminary hearing, and it has not yet held the public hearing for the rule.
8. Comparison with Similar Rules in Illinois, Iowa, Michigan, and Minnesota
Illinois enacted their own Judicial Privacy Act effective September 22, 2012. The Judicial Privacy Act covers Federal as well as State judges and their immediate families. Any judge in the district or circuit, appellate, or the highest court in the state is covered by the act. Bankruptcy judges are also included in the act. The act includes any blood relative of the judge or their spouses who live in the same residence as the judge. 705 ILCS § 90/1-10. The act protects information about a home address, home phone number, cellphone number, pager number, personal email address, social security number, federal tax identification number, checking and savings account numbers, credit card numbers, marital status, and the identity of a child under the age of 18. 705 ILCS § 90/1-10 Like the federal act, the Illinois act prohibits a government agency from posting this information or displaying it publicly. 705 ILCS § 90/2-1(a). If such protected information is displayed a covered individual may make a written request that the information be removed.
Iowa also has a law like the federal Judicial Security and Privacy Act. The legislature, in a 2017 amendment, added judges into their address confidentiality program that functions to protect the identity of individuals who seek to avoid domestic abuse and their abusers. Under § 9E.2(2), active or retired state and local judges, federal judges, and the spouse or children of the judge may participate in the program. A state judge includes a supreme court justice, an appellate judge, a district court judge, magistrate judge, associate juvenile judge, associate probate judge, or a magistrate. If an individual is only temporarily serving in that role they are also included in the program. An individual must apply for the protection program. They must include identifying information like their name and address as well as why they fear for their safety or the safety of another person in their household. Iowa Code § 9E.3(1). If any of the identifying information changes the applicant must also inform the secretary of state of those changes. The act provides that program participants’ name, address, and phone number are confidential information and may not be disclosed unless ordered by a court or pursuant to state or federal law. Iowa Code § 9E.7.
Minnesota has an equivalent to the Judicial Security and Privacy Act, which took effect on August 1, 2024. The act protects current, senior, and retired judges, as well as judicial referees and magistrate judges, of the state courts of Minnesota. The act also protects current and retired employees of the Minnesota judicial branch, and current employees of the Office of Administrative Hearsing, Workers’ Compensation Court of Appeals, and the Tax Court. Minn. Code § 480.40(1)(b). The act protects against release the residential address of the judge, their spouse, domestic partner, or child, a personal phone number or email address, the names of their children, the name of any child care facility or school the judges children attend, however, the information can still be accessed through a federal, state, or local record request. A judicial official may also waive protection by disclosing that information themselves or to another person if they do not restrict that other person from further disclosure. Minn. Code § 480.40(1)(c), (d). The act prohibits people, businesses, associations, or government entities from knowingly posting, displaying, publishing, selling, or making available protected information. Minn. Code § 480.40(2). It does not appear that Michigan has enacted legislation or rules on the topic of judicial officer privacy.
9. Summary of Factual Data and Analytical Methodologies
The Commission met on March 7 and 12, 2025, to discuss the draft rule. The Commission may make changes to the rule in response to feedback on the EIA and after the public hearing. Commission staff examined the current nomination paper and declaration of candidacy procedures and statues during the drafting of the rule.
10. Analysis and Supporting Documents used to Determine Effect on Small Business
There is no anticipated effect on small business. No specific analysis was performed for the fiscal estimate, nor were any supporting documents generated, because there is no anticipated effect on any fiscal liabilities and revenue, and no anticipated costs to be incurred by the private sector.
11. Effect on Small Business (initial regulatory flexibility analysis):
