Wagner v. Milwaukee County Election Commission

ANN WALSH BRADLEY, J.

¶ 87. (dissenting). I agree with the majority that our task is to discern the meaning of the phrase "during the term for which elected" as intended by the drafters of the 1848 consti*778tutional convention. I acknowledge the tried and true analytical framework employed by the majority when determining the meaning of a constitutional provision: examine the words of the text, the constitutional debates, the practices at the time, and the earliest interpretations manifested by the legislature. Majority op., ¶ 18.

¶ 88. I part ways with the majority, however, because its interpretation is unsupported by the 1848 convention debates and is inconsistent with the early practices and legislative acts. Rather, after stripping away the irrelevant discussion of the majority, and employing the accepted analytical framework, I conclude that the "term for which elected" ends after a successor is duly elected and qualified.

¶ 89. 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.

¶ 90. As the majority correctly notes, one of the issues of great debate at the first convention in 1846 focused on whether the constitution should provide for an elected or appointed judiciary. The eloquent orations of Charles Baker and Edward Ryan cited by the majority argue the pros and cons of an elected judiciary. Yet, the discussion from the first convention on this issue is largely unpersuasive because the issue of an elected judiciary had essentially been put to rest by the time of the second convention. It was recognized that the popular will demanded election and no serious argu*779ment against it was made at the second convention. Ray A. Brown, The Making of the Wisconsin Constitution, 1952 Wis. L. Rev. 23, 37.

¶ 91. Indeed, although the majority quotes liberally from Edward Ryan, it seems to be misguided about the influence that he had on the judiciary article at either convention. As the majority notes, Ryan never served on the all-important judiciary committee of the first convention. Most of his commentary on the article on the judiciary dealt with his determined opposition to the election of judges. See Milo M. Quaife, The Convention of 1846, 590-603. The 1846 convention ultimately presented for ratification a constitutional provision on the selection of judges that was at odds with the position espoused by Ryan. He was not a delegate to the second convention, and there is little to show that he had any influence on the relevant discussion, the meaning of the phrase "during the term for which they are respectively elected."1

¶ 92. It is curious that the majority relies so heavily on statements made by Edward Ryan at the first constitutional convention as support for its interpretation. Perhaps it does not realize that these statements were made in a speech promoting the merits of an appointed judiciary, a position which was defeated in both constitutional conventions. More pointedly, it is difficult to understand why the majority so heavily *780relies on Ryan because he did not interpret the phrase at issue as the majority does today.

¶ 93. In April 1875, Ryan was elected chief justice of the supreme court to fill the unexpired term of Chief Justice Luther Dixon, who had resigned. If he had lived, Ryan's term would have expired on the first Monday of January 1882. John R. Berryman, History of the Bench and Bar, Vol. 1, p. 180-81 (1898). On January 22, 1879, while Ryan was serving as chief justice of the Wisconsin Supreme Court, the Wisconsin legislature met in joint session to elect a United States Senator. Ryan was one of the three nominees for the position.

¶ 94. In a hotly contested election, Ryan finished second.2 1879 Senate Journal, pp. 96-101. If he had been elected senator, he would have had to resign his position on the court in the middle of his term. By his actions, we must conclude that either Chief Justice Ryan intentionally and publicly violated the constitutional prohibition, or that he did not interpret the prohibition as does the majority today. I conclude the latter. His actions reflect an interpretation of the phrase in issue that is decidedly at odds with that advanced by the majority.

*781¶ 95. Although the acceptance of an elected judiciary, which Ryan opposed, was well settled by the time of the second constitutional convention, other issues in the judiciary article remained in dispute. The remarks of Byron Kilbourn at the opening of the second constitutional convention indicate that the judiciary article, along with a handful of other articles, would be the most prominent at the new convention.

It was the province of this body to study out and avoid those measures known to be repugnant to the popular will, and although there might be some little difference of opinion as to what those articles were and precisely to what effect they had been condemned, yet he apprehended that all would agree that the judiciary article, the bank article, and the articles on exemption and the rights of married women were most prominent and had met with most disapprobation.

Milo M. Quaife, The Attainment of Statehood, 179 (1928).

¶ 96. The phrase at issue, which was introduced at the second constitutional convention, was not a part of the initial Article VII, Section 10 draft submitted to the 1848 convention by the Committee on the Judiciary. It first appeared before the convention on the afternoon of January 21, 1848. The Committee on the Judiciary reported Article VII back to the convention with "sundry amendments." Quaife, The Attainment of Statehood, at 691. Among the amendments advanced by the Committee on the Judiciary was a fifth amendment which added the phrase "during the term for which they are respectively elected." Id. at 696. Apparently the creation and discussion of this phrase took place in committee. No discussion is reflected in the written accounts of the convention. Id.

*782¶ 97. In addition to the largely unpersuasive discussions of the majority noted above, the opinion is replete with irrelevant, albeit interesting, discussion. The legislative history concerning the 1977 court reform (majority op., ¶¶ 34, 35) and the defeated 1995 referendum (majority op., ¶¶ 31-33, 36-39) offers current views of what the phrase provides or what it should provide. Such discussion sheds no light on the essential inquiry before us: what did the drafters of the 1848 constitution mean by the phrase "during the term for which they are respectively elected."

¶ 98. Likewise discussion concerning the adoption in 1967 of the Code of Judicial Ethics, and cases cited concerning enforcement actions brought under the Code, miss the mark of our essential inquiry. See Majority op., ¶¶ 45-47. Similarly, since the attorney general opinions cited are not interpreting the Wisconsin constitution, but are offered to interpret subsequent statutory provisions, they are of little assistance. See Majority op., ¶¶ 48-49.

¶ 99. The majority and I differ as to the length to which the prohibition is extended. The majority would extend the period of prohibition as though the judge had remained on the bench and not resigned.

¶ 100. I believe such an interpretation is not supported by the constitutional debates and is inconsistent both with the practices at the time and the early legislative acts. Rather, the more reasonable interpretation is that the prohibition ends when the term ends: when a successor is duly elected and qualified.

¶ 101. Unlike the majority, I focus not on Edward Ryan as providing the key to understanding the meaning of the phrase in question, but on Charles Dunn. Morgan Martin, president of the second constitutional convention, described Dunn as the strongest man intel*783lectually in the second constitutional convention. Quaife, The Attainment of Statehood, at 911. When Wisconsin became a territory in 1836, President Andrew Jackson appointed Dunn chief justice of the new court. He served as the chief justice during the entire territorial period. See also, John Bradley Winslow, Story of a Great Court, 33-36 (1912).

¶ 102. Of greater significance for our discussion, Dunn also served as chair of the five-member Committee on the Judiciary of the second constitutional convention. Quaife, The Attainment of Statehood, at 912. Serving as chair of the judiciary committee, he was considered very influential in preparing the judiciary article of the constitution. Id. As noted above, the wording of the phrase in question came from his committee and passed the constitutional convention without discussion by the convention as a whole. Since no record exists of the committee discussion, I look to his actions and the practices of the time for illumination of how the drafters interpreted the phrase "during the term for which they are respectively elected."

¶ 103. The majority builds a house of cards premised on the foundation that the drafters, out of a heightened concern for preserving judicial independence, intended that the prohibition at issue be interpreted to last the entire period for which the judge or justice was originally elected. Majority op., ¶¶ 28, 63. As with an examination of the life of Chief Justice Ryan, the house of cards collapses when we examine how Dunn and the early legislature approached this limitation.

¶ 104. After the second constitutional convention, Dunn was elected to the state senate and served as the chair of its Judiciary Committee. In 1857 he was a candidate for the United States Senate, which was a *784position elected by the state legislature. His main opponent, and the ultimate victor, was none other than James R. Doolittle, a former circuit court judge. Doolittle had been elected judge of the first circuit in 1853, taking office on January 1,1854, for a term of six years. He resigned two years later, in March of 1856, and within a month John Keep was elected to fill the judgeship. Berryman, History of the Bench and Bar, Vol. 1, p. 352.

¶ 105. In addition to Dunn, five members of the legislature in 1857 were also members of the second constitutional convention. Laws of 1857, pp. 3-6.3 All participated in this election of a former circuit court judge,, who resigned mid-term and accepted a position of trust, the United States Senate. But the election of Doolittle was not accomplished until his successor had already been duly elected and qualified.

¶ 106. Certainly, if such an election violated a judicial provision of the new constitution, a provision which he advanced as chair of the convention's judiciary committee, Dunn would have insisted that the votes cast for Doolittle, his opponent and the victor, should be voided. Surely if such an election violated the constitution which the five legislators/convention delegates had so recently drafted, they would not have condoned such a violation.

¶ 107. The majority's interpretation requires us to believe that Charles Dunn would silently acquiesce in allowing his opponent to unconstitutionally declare *785victory. It requires us to believe that the five former delegates quietly participated in an unconstitutional election. Instead, I believe that neither Dunn nor the 1857 legislature interpreted the phrase as does the majority.

¶ 108. Likewise, Charles Larrabee, a circuit court judge and early supreme court justice who served as a delegate to the second constitutional convention, did not interpret the phrase as does the majority. He resigned mid-term in 1858 to serve as a member of congress. Winslow, Story of a Great Court, p. 18.

¶ 109. Admittedly these positions of trust are federal positions. The constitutional provision at issue, however, makes no distinction between federal and state positions of trust. As the court noted in State v. McCarthy, 255 Wis. 234, 38 N.W.2d 679 (1949), the "clear" language of Article VII, Section 10 would have also applied to federal positions of trust: "It may have been argued that sec. 10, art. VII, Const. applied only to state offices of public trust. The subsequent language of the section that all votes cast for circuit judges by the legislature or the people makes perfectly clear that the office of United States senator was included." McCarthy, 255 Wis. at 248.

¶ 110. A review of the practices of the time reveal that the rationale espoused by the majority for extending the period of prohibition also lacks support. The majority asserts that a heightened concern for the "evils" attendant to an elected judiciary led the second constitutional convention to extend the period of prohibition not just until the incumbent resigned, or not just until a successor was duly elected and qualified, but for the entire length of the original term elected. Majority op., ¶ 28. The practices of the day do not reflect this heightened concern.

*786¶ 111. Examples abound in the early days of statehood of judges who resigned mid-term to accept positions of trust. Many of these were not justices or circuit court judges, but their practices illustrate that the heightened concern necessitating a prolonged period of prohibition simply did not exist.

¶ 112. Isaac Walker, the first probate judge from Milwaukee, resigned mid-term in 1848 after being selected by the legislature to serve as a U.S. Senator. The selection of this judge to a position of trust after his mid-term resignation represents one of the earliest acts of the newly created Wisconsin legislature. The legislature first convened on June 5, 1848, and three days later, on June 8, 1848, it selected Walker as one of the two initial senators from Wisconsin. 1848 Senate Journal, pp. 1, 17.4

¶ 113. George Noyes, the first superior court judge in Milwaukee, resigned in March of 1890 after serving only two years of a six-year term. He was well acquainted with the early leaders of the bench and bar, having been a law partner with the former chief justice *787of the Wisconsin supreme court, Luther Dixon. Shortly after his resignation Governor Hoard appointed Noyes to a position of trust as a regent of the state university of Wisconsin. Berryman, History of the Bench and Bar, Vol. 2, p. 51-53.

¶ 114. Other examples include Herman Humphrey, a county judge, who resigned in February 1862, to become a member of the state legislature, after serving only one year of his judicial term (Berryman, History of the Bench and Bar, Vol. 2, p. 300); and A. P. Hodges, a Winnebago county judge, who resigned in December 1861 to occupy a position of trust, the state prison commissioner, which at that time was an elected position. Berryman, History of the Bench and Bar, Vol. 2, pp. 76-77.

¶ 115. Thus, not only do the practices of the day undermine the interpretation advanced by the majority, but also the early acts of the legislature evince a contrary interpretation. The majority advances that the earliest legislative interpretation of Article VII, Section 10 did not occur until over 50 years after its ratification when in 1913 the constitutional language was codified in Wis. Stat. Ch. 115, § 2523-22. (Majority op., ¶ 65). It acknowledges that the codification of the constitutional language "provides no real guidance regarding correct interpretation." Id. at ¶ 66.

¶ 116. The majority has overlooked the earliest legislative acts shedding light on the interpretation of this phrase. As noted above, 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 *788Doolittle to the United States Senate represents an early legislative act that is completely at odds with the majority's interpretation.

¶ 117. In buttressing its interpretation, the majority discusses at length the case of State v. McCarthy, 255 Wis. 234, 38 N.W.2d 679 (1949). The question before the court in that case was whether to impose judicial discipline against a judge who ran for the United States Senate while still serving in his capacity as a circuit court judge. In its per curiam decision, the court mistakenly attributed to an earlier McCarthy case, State ex rel. Wettengel v. Zimmerman, 249 Wis. 237, 24 N.W.2d 504 (1946), an interpretation to Article VII, Section 10, which the Zimmerman court did not make.

¶ 118. The Zimmerman court had no need to analyze and interpret Article VII, Section 10 because it based its holding on the premise that a state could not prescribe qualifications for the United States Senate in addition to those prescribed the constitution of the United States. Zimmerman, 249 Wis. at 247. The petitioner argued that Article VII, Section 10 precluded McCarthy from seeking the nomination by the Republican party for the office of senator of the United States. Without addressing whether the language of Article VII, Section 10 precluded such a candidacy, the court held that even "if the argument of the [petitioner] is sound," the state does not have the authority to prescribe the qualifications for United States senator "in addition to those prescribed by the United States Constitution." Id.

¶ 119. In a further attempt to support its interpretation, the majority cites to the constitutions of Minnesota, Majority op., ¶ 51, and Illinois, Majority op., ¶ 64. In State ex rel. Childs v. Sutton, 65 N.W. 262 (Minn. 1895), the Minnesota Supreme Court inter*789preted a provision in the Minnesota Constitution prohibiting senators and representatives from holding any office "during the time for which he is elected." However, the constitutional provision prohibiting judges from holding another office does not contain a similar phrase.

¶ 120. Article 6, § 11 provides: "[t]he justices of the supreme court ... shall hold no other office under the United States nor any other office under this state." Thus, the majority opinion correctly details the Minnesota court's analysis as it relates to senators and representatives, but the language relating to the judiciary is different in the Minnesota constitution, and different from the language in our constitution.

¶ 121. The majority advances that the purpose for including the phrase in the Wisconsin constitution is to preserve the independence of the elected judiciary. It is unclear how that stated purpose applies to Minnesota legislators given that there is no similar phrase in the judiciary article of the Minnesota constitution.

¶ 122. In 1950, Minnesota Supreme Court Justice Harry H. Peterson resigned his seat on the court and immediately became a candidate for governor. See, Dougherty v. Holm, 44 N.W.2d 83 (Minn. 1950). In a case involving the election, the Minnesota Supreme Court noted that Peterson could not ethically have announced his candidacy while he occupied the bench. Id. at 86. Nothing in the court's opinion suggests that he was constitutionally prohibited from resigning and then seeking the position of governor. Contrary to the majority's suggestion, neither the Minnesota constitutional provision on the judiciary nor the practice in Minnesota supports the majority's interpretation.

¶ 123. Likewise, the earliest Illinois case interpreting the cited constitutional provision falls short of *790supporting the majority's claim. The court in Ballou v. DuBois, 23 Ill. 547 (1860) interpreted article 5, section 10 of the Illinois Constitution which provides: "the judges of the Supreme and circuit courts shall not be eligible to any other office or public trust, of profit, in this State, or the United States, during the term for which they are elected, nor for one year thereafter." However, it appears as though the Ballou court did not interpret this provision to apply when a judge voluntarily resigns: "it was the intention of the constitution that he should only be disqualified for one year after he went out of office, unless he voluntarily resigns, or is impeached or addressed out of office." Id.

¶ 124. I look instead to how a relatively early Wisconsin case, State ex rel. Johnson v. Nye, 148 Wis. 659, 668, 135 N.W 126 (1912), interpreted the same phrase "during the term for which he was elected" as it appears in Article iy Section 12 of the Wisconsin Constitution. Article iy Section 12 provides:

No member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected.

¶ 125. Although the court in that case dismissed the complaint concluding that it failed to state a cause of action because no emoluments of office were increased during the relevant period, it gave a cautionary instruction: "The constitutional provision under consideration should be narrowly construed in favor of eligibility." Johnson, 148 Wis. at 668. Although acknowledging the Johnson court directive that the provision interpreting the same phrase for legislators should be narrowly construed in favor of eligibility, the *791majority fails to explain why such a directive does not apply to the same language set forth for the judiciary in Article VII, Section 10.

¶ 126. I would apply the Johnson directive and interpret the same language in Article VII, Section 10 in favor of eligibility, limiting the majority's extended period of prohibition after resignation. The majority's interpretation is simply incorrect. It is not supported by the constitutional debates and is inconsistent with the practices at the time and the early legislative acts. In addition, it does not make good sense.

¶ 127. The majority's interpretation is premised on the belief that Article VII, Section 10 allows two people who are elected to have the same judicial term for the same judicial position at the same time. It mistakenly defines the length of all judicial terms as though the judges had remained on the bench.

¶ 128. Here, the essential question before us is: when does the judicial term end when the judge resigns? The question of course is important because it is instructive as to how long the period of prohibition extends.

¶ 129. I conclude that the period of prohibition after resignation extends until the successor is duly elected and qualified. This interpretation is consistent with the practices of the times and the earliest legislative acts, and finds support in Article VII, Section 9 of the Wisconsin Constitution. Article VII, Section 9 provides:

When a vacancy occurs in the office of justice of the supreme court or judge of any court of record, the vacancy shall be filled by appointment by the governor, which shall continue until a successor is elected and qualified. There shall be no election for a justice or *792judge at the partisan general election for state or county officers, nor within 30 days either before or after such election.

Wis. Const. art. VII, § 9 (2001-02) (emphasis added). The interpretation is also supported by Wis. Stat. § 17.19:

Vacancies in elective state offices shall be filled as follows: ... (2) JUDICIAL. In the office of justice of the supreme court, court of appeals judge or circuit judge, by temporary appointment by the governor, which shall continue until a successor is elected, as provided in s. 8.50(4)(f), and qualifies. When so elected the successor shall hold office for a full term and shall take office on August 1 succeeding the election.

Wis. Stat. § 17.19 (2001-02) (emphasis added).

¶ 130. Thus when a successor is duly elected and qualified, the successor commences an entirely new term on August 1 for a full six or ten years. When the new full term commences, the predecessor's judicial term ends.

¶ 131. In sum, the majority interprets the constitutional provision as barring a former judge from holding another office until the judicial term to which the judge was previously elected would have expired if the judge had remained on the bench. Such an extended prohibition is not supported by the 1848 constitutional debates and is inconsistent with the practices of the times and the earliest legislative acts. Instead, for the reasons set forth above, I interpret the period of prohibition to extend until a successor is duly elected and qualified. Accordingly, I respectfully dissent.

*793¶ 132. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this dissent.

The majority observes that Ryan recommended similar language during the debate over the 1846 constitution. Majority op., ¶ 27. It fails to note, however, that Ryan's proposal was for a judiciary appointed by the governor.

The word "respectively" was removed as part of the revisions to this section made in 1977. See 1975 Enrolled Joint Resolution 13; 1977 Enrolled Joint Resolution 7.

Both the Assembly and Senate voted for nominees for United States Senate. They met first separately and then met in a joint session. In the initial vote in the Senate, Ryan finished second out of four candidates. He fared better in the Assembly, finishing first out of five candidates. However, when the Senate and Assembly voted in joint session, Ryan ultimately lost the election.

The majority attempts to minimize Ryan's nomination by noting that he was not elected. The fact remains, however, that his name was placed in nomination for an office of public trust while he was serving as chief justice of the supreme court.

Members of the 1857 legislature who were also members of the second constitutional convention were: James Fagen from Cedarburg; Ezra Albert Foot from Footville; Louis Powell Harvey from Shopiere; Frederick S. Lovell from Kenosha (he was also chair of the Assembly Judiciary Committee in 1857); and James Denoon Reymert from Milwaukee.

I am perplexed by the majority's lengthy quote and discussion of Isaac Walker, a delegate of the first constitutional convention. Majority op., ¶ 63. The quote is offered by the majority as a contemporaneous statement decrying the kind of ambition which would cause a jurist to leap from the bench to a higher office of trust. Walker is quoted as complaining about men who . . leaped from the ranks of mere ambition to the bench . .. into the United States Senate.1'

What the majority fails to note or connect is that Walker himself later became an example of the very thing he earlier decried. In "leaping" from the position of probate judge to the United States Senate, Walker apparently changed his mind about the wisdom set forth in the quote which the majority now embraces.