Resignation can’t help judge run for other office

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“The existence of such conduct in the past makes no difference to the present legal analysis. Simply put, multiple wrongs do not make a right.” Justice Jon P. Wilcox Wisconsin Supreme Court

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.

“As one of its first acts the legislature selected Judge Isaac Walker to a position of trust in the middle of his judicial term. Such an act by the legislature undermines the rationale which is central to the majority’s interpretation of the phrase.” Justice Ann Walsh Bradley in dissent

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 following provision: “[T]hey shall hold no office of public trust, except a judicial office, during the term for which they are respectively elected, and all votes for either of them for any office except a judicial office, given by the legislature or the people, shall be void.”

In determining the intent of the drafters, the court relied heavily on scholarship considering the conventions: Ray A. Brown, The Making of the Wisconsin Constitution, 1949 Wis. L. Rev. 648; Ray A. Brown, The Making of the Wisconsin Constitution, 1952 Wis. L. Rev. 23; Milo M. Quaife, The Convention of 1846 (1919); and Milo M. Quaife, The Struggle Over Ratification, 1846-1847 (1920).

In deciding that the debates from the unsuccessful 1846 convention were more illuminating than those of the successful 1848 convention, the court quoted from one of those articles, “Although the constitution framed by this [the 1846] convention was rejected by the people, extended discussion of its proceedings is appropriate. In essential details the 1848 constitution followed closely the rejected predecessor. Also the framing of the 1846 constitution brought more sharply into focus the vital political, economic and social issues of the period than did its successor. After the 1846 convention, that of 1848, in matter of public interest, was largely an anticlimax.” Brown I, at 655.

The court concluded, “We believe the debate surrounding elected judges and the best method of achieving an independent judiciary was one that began in 1846 and continued its evolution through the second constitutional convention.”

In finding that the history indicates that judges should not be permitted to resign and run for nonjudicial office before the expiration of their terms, the court reasoned, “While no explanation of the particular amendment adding the ‘during the term for which elected’ phrase appears in the written accounts of the convention, we believe the concerns raised at the conventions and the various drafts of the constitution can lead to only one logical conclusion. All of the drafts from the 1846 convention contained a provision prohibiting judges from holding a nonjudicial office of public trust for a period of time even after resignation. The second draft lengthened the period of prohibition. The first draft from the second convention contained no such provision, but the language was significantly revised into the version that went before the people. The latter, the draft that became part of our original constitution, again contained a description of the period of prohibition. The drafters of the constitution voiced concerns over the evils of an elected judiciary and long debated over the appropriate term lengths for various judges. Given the nature of the debates and the text itself of early versions of the constitution, it is clear to us that the drafters considered various periods of restriction and eventually settled on ‘during the term for which they are respectively elected.’ The very fact that such restrictions were written into the constitutional drafts indicates a compromise between those favoring an elected judiciary and those leery of the elective system. The judiciary was to be elected, but strict restrictions were put into place to preserve its independence. While today such a provision might not seem the best option to some, at the time and for the 150-plus years since its creation, this provision has effectively served to preserve the independence and integrity of this state’s judiciary.”

History

The court also found that prior precedent supports its interpretation. In State ex rel. Bashford v. Frear, 138 Wis. 536, 120 N.W. 216 (1909), the court considered the meaning of the word “term” in Article IV, Section 26 of the Wisconsin constitution, and the court compared the word “term” to the phrase at issue in Article VII, Section 10.

In addition, in State v. McCarthy, 255 Wis. 234, 38 N.W.2d 679 (1949), the court held that Sen. Joseph R. McCarthy violated the provision by running for U.S. Senate before the expiration of his term as a circuit court judge. In finding that McCarthy violated the constitution, the court stated, “the defendant by accepting and holding the office of United States senator during the term for which he was elected circuit judge did so in violation of the terms of the constitution and laws of the state of Wisconsin, and in doing so violated his oath as a circuit judge and as an attorney at law.”

In McCarthy, the court acknowledged that it had earlier held that it was powerless to prevent the candidacy, because the qualifications for U.S. Senate are set by the U.S. Constitution, Wettengel v. Zimmerman, 249 Wis.237, 24 N.W.2d 504 (1946), but nevertheless, held that it had authority to discipline him for violating the Wisconsin Constitution.

In the case at bar, the court acknowledged that, in numerous instances, many shortly after statehood, judges ran for nonjudicial office before the expiration of their terms, but concluded, “the existence of such conduct in the past makes no difference to the present legal analysis. Simply put, multiple wrongs do not make a right.”

The majority further remarked in footnotes that many of those early judges were not circuit judges, but territorial or probate judges, to whom the provision did not apply at that time.

The court also rejected the position of Professor Janine P. Geske, who served as interim county executive in Milwaukee County before the expiration of her term as Wisconsin Supreme Court Justice, and who submitted an amicus brief arguing that the term ends when a successor is duly elected. The court stated, “While the position may present a ‘happy medium,’ we find no basis for this interpretation in the language of the constitution, the debates, or the relevant legislative acts.”

In conclusion, the court stated, “We agree that a ‘term’ may in one sense end with resignation, but we agree with the State that the ‘term for which elected’ does not.

That term is explicitly set by the constitution, and the restriction in Article VII, Section 10 supports voters’ expectation that when they elect a judge or justice, he or she will serve the term constitutionally set — the term for which elected.”

Liberty Rights

The court also rejected Judge Wagner’s argument that the provision violates his constitutional rights to liberty and equal protection under the Wisconsin and U.S. Constitutions.

In the case of Clements v. Fashing, 457 U.S. 957 (1982), the U.S. Supreme Court upheld the constitutionality of Texas laws with similar limitations on judges running for public office.

The court found Clements persuasive, and held, “While we agree that petitioner’s rights are somewhat burdened in this case, we find that the State’s legitimate interests … far outweigh the burdens put upon the petitioner’s right to be a candidate for office.”

The court accepted the State’s purported interest as legitimate and iterated it as follows: “It is reasonable to believe … that judges who seek a different office earlier in their term are more likely than judges who serve their entire term to view judicial office as a mere stepping stone to political office, and are therefore more likely to misuse their judicial office for the purpose of advancing their own career.”

Accordingly, the court denied relief.

The Dissent

Justice Bradley dissented, calling the majority’s interpretation, “unsupported by the 1848 convention debates and … inconsistent with the early practices and legislative acts,” and agreeing with the amicus curiae brief that the “term for which elected” does not end with mere resignation, but does end once a successor is duly elected and qualified for the judgeship.

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The dissent begins, “First, let us discard some of what is irrelevant. Much of the discussion in both the plain meaning section and the constitutional debates section of the majority’s opinion is irrelevant because it cites debates focusing on the wrong issue, from the wrong constitutional convention, to interpret a phrase that was not adopted at that convention, by delegates who were not elected to the subsequent and more relevant 1848 convention.”

The primary focus of the dissent was on the number of people who participated in the convention, and who later ran for nonjudicial office before the expiration of their elected terms.

The dissent noted that Edward G. Ryan, whom the majority opinion cites at great length, was a nominee for U.S. Senate while serving as chief justice of the Wisconsin Supreme Court.

The dissent also noted that James R. Doolittle, a circuit court judge, resigned and ran successfully for U.S. Senate in 1856, after his successor was elected and qualified.

The dissent lists many other judges who resigned to run for other office: Charles Larrabee, 1858; Isaac Walker, 1848; George Noyes, 1890; Herman Humphrey, 1862; and A. P. Hodges, 1861.

Discussing these early moves from the court to political office, the dissent remarked: “as one of its first acts the legislature selected Judge Isaac Walker to a position of trust in the middle of his judicial term. Such an act by the legislature undermines the rationale which is central to the majority’s interpretation of the phrase. Additionally, the election of former Judge James Doolittle to the United States Senate represents an early legislative act that is completely at odds with the majority’s interpretation [U.S. Senators were chosen by the legislature at that time].”

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David Ziemer can be reached by email.