Likewise, the fact that the statutes give designated members of the judiciary a role in the nomination of candidates for Board membership is also insufficient to make such membership a “judicial office.” At most, such nomination procedures allow the designated members of the judiciary to decide which judges might be subjected to the potential influence of the political branches. The purpose of Wis. Const. art. VII, § 10, however, is to ensure that no judges are subject to such influence.
Finally, I also disagree with the contention that Board membership can be considered a “judicial office” because some of the work of the Board—such as issuing legal opinions and adjudicating certain controversies—is judicial in character. The Wisconsin Supreme Court has recognized that the delegation of some adjudicative authority to executive branch agencies does not violate separation-of-powers principles as long as that authority is sufficiently limited to what is reasonably necessary for carrying out the agency’s administrative responsibilities. See Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 348-50 and n.26, 262 N.W.2d 218 (1978). It does not follow, however, that the adjudicative authority delegated to executive branch agencies can properly be characterized as judicial in character. On the contrary, the Supreme Court said in Layton: “This court has recognized that not all adjudication is judicial and that courts are not the exclusive instrumentalities for adjudication.” Id. at 348 (emphasis added). The Court then approvingly cited an earlier decision that upheld worker’s compensation statutes which authorized the Industrial Commission to decide certain controversies on the ground that the statutes did not “‘vest[] in the Commission judicial powers within the meaning of the constitution.’” Id. at 348 n.26 (quoting Borgnis v. Falk Co., 147 Wis. 327, 358, 359, 133 N.W. 209 (1911)). Although the Commission may act quasi-judicially by ascertaining some questions of fact and applying the law thereto, the Court noted, “‘it is not thereby vested with judicial power in the constitutional sense.” Id. (emphasis added by the Court in Layton). In other words, the Layton decision reasoned that separation-of-powers principles are not violated by delegations of limited adjudicative power to executive branch agencies because that adjudicative power is not “judicial” power within the meaning of Wis. Const. art. VII, § 2, which vests the judicial power of the state in the courts. See id. at 347 and n.24. Your opinion request has suggested, however, that precisely such a delegation of limited adjudicative power to the Board makes membership on that body a “judicial office” under Wis. Const. art. VII, § 10. But if that were true, it would follow that the word “judicial” would have a different meaning in Wis. Const. art. VII, § 2, than it has in Wis. Const. art. VII, § 10. In my opinion, a court would be reluctant to construe the Judiciary article of the constitution in such a fashion. Accordingly, I conclude that an office vested with adjudicative authority that is not “judicial power” in the constitutional sense cannot thereby be deemed a “judicial office” within the meaning of Wis. Const. art. VII, § 10.
A review of the language of successive draft versions of Wis. Const. art. VII, § 10 supports the same conclusion. The version of that provision in the proposed 1846 constitution included, among other things, a clause that would have voided all votes given by the Legislature or the people for the purpose of electing a sitting judge to “any office except that of judge of the supreme or circuit court.” Wagner, 263 Wis. 2d 709, ¶¶ 2324 (quoting Milo Quaife, The Convention of 1846 (1919) at 293; Tenney, Journal of the Convention to Form a Constitution (1848) at 637). Similarly, the version of Wis. Const. art. VII, § 10 reported out of committee at the second constitutional convention in 1847 provided, in pertinent part, as follows: They shall hold no other office of public trust, and all votes for either of them for any office, except that of judge of the supreme or circuit court, given by the legislature or the people shall be void.
Wagner, 263 Wis. 2d 709, ¶ 29 (quoting Tenney, Journal of the Convention to Form a Constitution at 67). The convention subsequently voted to amend the above provision as follows: [B]y striking out . . . the word ‘other’ before the word ‘office’ and inserting after the word ‘trust’ the words ‘except a judicial office during the term for which they are respectively elected’; also by striking out . . . the words ‘judge of the supreme and circuit court’ and inserting ‘a judicial office.’
Milo Quaife, The Attainment of Statehood (1928) at 691.
The phrase “judicial office,” as ultimately used in the 1848 version of Wis. Const. art. VII, § 10, thus originated as a substitute for earlier phrases that had specifically identified the offices of supreme court judge and circuit court judge. This strongly suggests that, in the framers’ understanding, the phrase “judicial office” did not signify every office that might involve some adjudicative functions, including offices within the political branches of government, but rather was closely associated with a traditional view of the kinds of courts that compose the judicial branch of government.
Recent scholarship has likewise shown that, in the 19th century, specifically judicial power was understood as the power to conclusively dispose of an individual’s legal claim to the core private rights to life, liberty, and property that government was instituted to safeguard. Caleb Nelson, Adjudication in the Political Branches, 107 Columbia L. Rev. 559, 562 (2007). Under traditional separation-of-powers doctrine, such judicial power is vested exclusively in the courts of the judicial branch of government. Id. at 564-65. In contrast, the political branches of government were understood as being capable, in proper circumstances, of authoritatively adjudicating other legal interests—including interests held by the public as a whole—without thereby exercising specifically judicial power. Id. at 565; cf. Layton, 82 Wis. 2d at 348 (adjudicative authority exercised by executive branch agency is not judicial power).
With regard to the present inquiry, the Board is statutorily authorized to investigate complaints alleging certain violations of election laws, to conduct administrative hearings on such complaints in appropriate cases, and to order appropriate injunctive relief. Wis. Stat. §§ 5.06 and 5.061 (2007). In adjudicating such complaints, it appears that the Board would not be determining any private individual’s rights to life, liberty, or property, but rather would be vindicating the legal interests of the public as a whole in the integrity of the electoral and governmental processes. According to the understanding described above, the adjudication of such public rights does not involve the exercise of specifically judicial power, in the 19th century sense of the term. This historical analysis, too, thus supports the conclusion that, when the Wisconsin Constitution was created in 1848, the term “judicial office” was not understood in a way that would include an office like Board membership.
In conclusion, for all of the above reasons, it is my opinion that membership on the Board is an office of public trust but is not a judicial office within the meaning of Wis. Const. art. VII, § 10, and therefore, in conformity with that constitutional provision, an individual who has resigned from the office of judge may not serve as a member of the Board for the duration of the term to which the individual was elected to serve as a judge.
Finally, it is my understanding that one or more current Board members were elected to terms for judicial office that have not yet expired. However, please be advised that Wisconsin law follows the “de facto officer” doctrine. A “de facto officer” is a person who is in possession of an office, performs the duty of the office, and claims the office under color of an election or appointment. Walberg v. Deisler, 73 Wis. 2d 448, 463-64, 243 N.W.2d 190 (1976). As stated by the Wisconsin Supreme Court: “It is generally recognized that the acts of a de facto officer are valid as to the public and third parties and cannot be attacked collaterally.” Id. at 463. Therefore, unless and until information to the contrary is presented, the Board should assume that the Board members who are not entitled to hold the office of a Board member are de facto officers and that their prior actions, and the prior actions of the Board, are valid, legal, and binding. Sincerely,
J.B. Van Hollen
Attorney General
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