Obscure Constitutional Provision Disqualifies Two Former Judges
MADISON, WI – Two members of Wisconsin’s Government Accountability Board (GAB) resigned today after receiving advice that they could not continue to serve as members of that body.
GAB Chairman Judge David Deininger and GAB member Judge James Mohr sent to Governor Jim Doyle letters of resignation which are effective immediately. They resigned due to a little-known provision of the Wisconsin Constitution.
Article 7, Section 10, Subsection 1 of the Constitution says, “No justice of the supreme court or any court of record shall hold any other office of public trust, except a judicial office, during the term for which elected.”
Even though they no longer served as judges when they were appointed to the GAB, neither Mohr nor Deininger had completed the six-year judicial terms from which they resigned. Because the terms of their previous positions as judges have not expired, the two former judges cannot be members of the GAB.
“The Board cannot allow its authority – to act on questions of the highest import to the State of Wisconsin – to be brought into question by the eligibility of two of its members,” said Chairman Deininger. “We have chosen to resign to protect the integrity of this board and the legitimacy of its future decisions.”
In January, the Board identified the potential problem and directed staff to ask the Wisconsin Department of Justice (DOJ) to render an opinion on the proper application of the constitutional provision. Past cases interpreting the provision had dealt with only elective offices, not appointive offices like the GAB, and it was not clear whether GAB members might be deemed to hold “judicial office” because, by statute, only former judges may serve as members. The DOJ informed the Board today that the provision indeed appears to disqualify two members of the Board.
“Accountability is our focus,” said Judge James Mohr, “and we are accountable first and foremost to the Constitution. When this was brought to our attention, we immediately requested legal advice. Now, the best course is for the Governor and the State Senate to act quickly to replace us and keep the Board’s important work on track.”
The Attorney General confirmed none of the Board’s actions, to date, could be called into question.
The GAB – made up of six non-partisan, former judges and a non-partisan staff – was created last year by the merger of the former State Elections Board and State Ethics Board. It oversees administration and enforcement of state law in the areas of campaign finance, elections, ethics and lobbying, and is the first body of its kind in the United States. Members are appointed by the Governor and confirmed by the Legislature.
Because the GAB has six members, it must decide any contested questions with a four-member majority. Because there are four remaining members, the Board can continue to make decisions as long as its decisions are unanimous.
“We intend to move forward with the work of the Board,” said Kevin Kennedy, GAB Director and General Counsel. “Our hope is that the nomination process for two new board members can proceed without any delay.”
The first step in the replacement process is for a nomination panel of four Wisconsin Appeals Court judges to receive applications from interested former judges, and submit the names of new nominees to the Governor. Kennedy said he hopes that process will take place this month.