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Judges Case Analysis

By: dmc-admin//July 16, 2003//

Judges Case Analysis

By: dmc-admin//July 16, 2003//

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In the wake of the decision, no judge can run for, or accept appointment to, a nonjudicial, nonfederal, office until the expiration of an elected term.

However, a judge or justice could still run for the U.S. House of Represen-tatives, U.S. Senate, or (however unfathomable it may be) U.S. President or Vice-President. As recognized in the case of Sen. McCarthy, eligibility for such positions are set by the U.S. Constitution, and cannot be limited by a state constitution.

Wettengel v. Zimmerman, 249 Wis. 237, 24 N.W.2d 504 (1946).

However, the continued validity of Wettengel is questionable, in light of the U.S. Supreme Court cases of Clements v. Fashing, 457 U.S. 957 (1982), and U.S. Term Limits, Inc., v. Thornton, 514 U.S. 779 (1995).

Clements involved two provisions of the Texas Constitution, one of which prohibited judges from running for the state legislature until the expiration of the term to which they were elected, and the other required judges to resign if they ran for any other office, including the U.S. Congress.

Four judges seeking to run for the Texas legislature challenged the provisions, but the U.S. Supreme Court upheld them. The court concluded that States have a valid interest in preventing judges from using their judicial positions as stepping stones to other office.

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Wisconsin Supreme Court

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None of the plaintiffs in Clements was seeking a U.S. congressional position, so the court only considered whether the laws impinged on the judges’ right to run for office, rather than whether they imposed unconstitutional qualifications for serving in Congress.

In Thornton, however, the court discussed Clements in the course of holding that states cannot impose term limits on its congressmen. There, the court referred to the provisions in Clements as a valid regulation of state office holders, not an imposition of additional qualifications for serving in Congress. Thornton, 514 U.S. at 835.

Arguably, the same statement would be equally true were a Wisconsin judge to run for Congress before the expiration of his term.

However, Clements can also be distinguished. The Texas provision did not prohibit any judge from running for Congress, but only required that he resign. The Wisconsin provision, by contrast, would prohibit any judge from running even if he did resign.

Thus, applied to judges seeking to run for Congress, Article VII, Section 10 may still be unconstitutional, as the court held in Wettengel, notwithstanding Clements and Thornton.

– David Ziemer

Click here for Main Story.

David Ziemer can be reached by email.

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