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A FORMER JUDGE WHOSE JUDICIAL TERM HAS NOT EXPIRED MAY NOT SERVE ON GOVERNMENT ACCOUNTABILITY BOARD, ATTORNEY GENERAL VAN HOLLEN REASONS IN FORMAL OPINION

 

Wisconsin Constitution Prohibits A Judge Whose Term Has Not Expired From Holding An Office Of Public Trust That Is Not A Judicial Office

 

MADISON - Wisconsin Attorney General J.B. Van Hollen issued a formal opinion today holding that Wisconsin law does not allow a person who has resigned from the office of judge to serve as a member of the Government Accountability Board for the duration of the term to which the person was elected or appointed judge. Van Hollen's opinion is based on an interpretation of article VII, section 10 of the Wisconsin Constitution, which 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." Van Hollen's opinion notes that though the Constitutional provision applies to one or more members of the Government Accountability Board, Wisconsin follows the "de facto officer" doctrine. Under that doctrine, acts undertaken by a person in possession of an office under the color of an appointment are generally valid as to the public and third parties and cannot be attacked collaterally.

 

The opinion was issued in response to a formal request made by Government Accountability Board's Director and General Counsel, Kevin Kennedy.

 

In construing the Wisconsin Constitution, Van Hollen's opinion first cites Wisconsin Supreme Court precedent holding that the Constitutional provision applies to the term of a judge's office, even if the person resigns as judge before the term expires. The opinion then provides a comprehensive discussion of the Constitutional provision as applied to membership of the Government Accountability Board. The opinion asks and answers two questions: first, is Board membership an "office of public trust"; second, is Board membership a "judicial office"?

 

Van Hollen's opinion answers the first question in the affirmative, rejecting the suggestion that "office of public trust" was meant only to apply to elective offices. Though the term "office of public trust" is not defined in the Constitution or statutes, the opinion discusses how the historical evolution of the provision and the broader constitutional history implies that the framers intended "office of public trust" to include, but not be limited to, elective offices. After an extensive discussion about Constitutional history as it relates to the framers' strong belief in judicial independence, the opinion notes that the Constitutional provision in question was intended to insulate elected judges from the sway of popular politics. "In this historical context," Van Hollen writes, "it is apparent that the use of the broad phrase вЂ˜office of public trust' in Wis. Const. art. VII, Ð’ 10вЂwithout any qualifier related to the elective or appointive nature of such officeвЂwas intended to shield sitting judges against the possible political influences deriving either from election or appointment to a non-judicial office."

 

The opinion then discusses Wisconsin case law, opinions of predecessor attorneys general, and other authority that suggests the term "office of public trust" to be synonymous with "public office." Van Hollen's opinion notes that a "public office" is one that is created by a legislative act and 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. As recognized in the case law and statutes, both elective offices and appointed offices can be "public offices."

 

Applying this precedent and reasoning, Van Hollen's opinion concludes that membership on the Government Accountability Board is an "office of public trust" because the Government Accountability Board was created by a legislative act, members serve fixed terms, and the Board independently exercises the power to enforce the elections, ethics, and lobbying laws of the state.

 

Van Hollen's opinion then discusses whether membership on the Government Accountability Board is a "judicial office," thus excepting it from the prohibition contained in article VII, section 10 of the Wisconsin Constitution. The opinion interprets the term in the context of the Constitution's many uses of the term "judicial" and within the context of the separation of powers doctrine, and holds that the Board 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."

 

Van Hollen's opinion rejects arguments that Government Accountability Board members hold a "judicial office" because only former judges are statutorily eligible for membership, noting that such an argument is circular and would deprive the Constitutional provision of any application to a law that merely limited eligibility of membership to judges. Citing legal precedent, Constitutional context, and Constitutional history, the opinion also rejects the contention that because some of the Government Accountability Board's work appears judicial in character (for example, issuing legal opinions and adjudicating certain controversies) it is a judicial office.

 

Van Hollen's opinion concludes by holding that an individual who has resigned from the office of judge may not serve as a member of the Government Accountability Board for the duration of the term to which the individual was elected to serve as judge.

 

Attorney General Van Hollen's formal opinion on these issues is the fourth he has issued this year, and the eighth he has issued since taking office on January 1, 2007. Opinions of the Attorney General provide guidance about the meaning and application of Wisconsin law, and are often requested where Wisconsin appellate courts have not definitively answered a question or to address legal questions that are unlikely to be resolved in the course of judicial proceedings. Though Wisconsin courts do not have any obligation to follow an interpretation provided by a formal opinion of the Attorney General, they often will. As the Wisconsin Court of Appeals has written, "Well-reasoned attorney general's opinions have persuasive value when a court later addresses the meaning of the same statute."

 

The opinion and request are available here.