Wagner v. Milwaukee County Election Com'n

• Decision Date: 10 July 2003
• Docket Number: No. 02-0375-OA.,02-0375-OA.
• Parties: Honorable Jeffrey A. WAGNER, Petitioner, v. MILWAUKEE COUNTY ELECTION COMMISSION, Respondent, STATE of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

263 Wis.2d 709

2003 WI 103

666 N.W.2d 816

Honorable Jeffrey A. WAGNER, Petitioner, v. MILWAUKEE COUNTY ELECTION COMMISSION, Respondent, STATE of Wisconsin, Respondent.

No. 02-0375-OA.

Supreme Court of Wisconsin.

Oral argument October 9, 2002.

Decided July 10, 2003.

For the petitioner there were briefs by Michael A.I. Whitcomb and Michael A.I. Whitcomb S.C., Milwaukee, and oral argument by Michael A. Whitcomb.

For the respondent, State of Wisconsin, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. An amicus curiae brief was filed by Howard B. Eisenberg and Joseph D. Kearney, Milwaukee, on behalf of Janine P. Geske, and there was oral argument by Joseph D. Kearney.

¶ 1. JON P. WILCOX, J.

On February 7, 2002, the Honorable Jeffrey A. Wagner (Petitioner), a circuit court judge in Milwaukee County, sought leave to commence an original action for declaratory judgment regarding the interpretation of Article VII, Section 10(1) of the Wisconsin Constitution. Although this court initially determined that it was unable to grant the petitioner's request for expedited review, we eventually granted the petitioner leave to commence this original action on March 4, 2002. In this action, we are presented with two related issues. First, we consider whether Article VII, Section 10(1) of the Wisconsin Constitution prohibits a judge or justice of a court of record in this state 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. Second, if such a prohibition exists, the petitioner asserts that it deprives a resigned judge or justice of liberty and equal protection of the law.

¶ 2. We conclude that Article VII, Section 10(1) is more than a dual office holding provision and does, in fact, prohibit a judge or justice from holding a nonjudicial position of public trust during the entire term for which he or she was originally elected, not simply during the judge or justice's actual time of service in the position. We further find that such a restriction does not violate petitioner's constitutional rights to liberty and equal protection of the law.

I

¶ 3. The facts in this action are not disputed. On March 26, 2002, this court ordered the parties to this matter to submit a Joint Stipulation of Facts, which they did on April 11, 2002. Other important facts emerge from the procedural history of the case. The petitioner is presently serving his third term as a circuit judge for Milwaukee County. His term commenced in August 2000 and expires in August 2006. The petitioner may desire to resign his position as circuit judge and run for the office of County Executive of Milwaukee County and, if elected, hold the office of County Executive of Milwaukee County. Respondent Milwaukee County Election Commission is the agency with whom declarations of candidacy for the position of Milwaukee County Executive must be filed. If it were clear that Article VII, Section 10(1) of the Wisconsin Constitution precluded the petitioner from holding the position of County Executive prior to August 2006, the Milwaukee County Election Commission would refuse to place the petitioner's name on the ballot pursuant to Wis. Stat. § 8.30(1)(c) (1999-2000).¹ ¶ 4. As noted, the petitioner first sought leave to commence an original action in this court on February 7, 2002. At the time, he expressed specific interest in becoming a candidate in an upcoming election for Milwaukee County Executive. On February 26, 2002, the 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 for the position of Milwaukee County Executive was March 5, 2002. In an order dated February 27, 2002, this court stated that because there was no respondent taking a position adverse to the petitioner, the court would be unable to expeditiously resolve the action before the March 5 deadline. However, the court further ordered that if the petitioner wished to proceed, it would grant the petitioner's request to commence an original action and invite the Office of the Attorney General to serve as the respondent.

¶ 5. On March 1, 2002, the petitioner informed the court that he wished to proceed. By order dated March 4, 2002, this court granted the petitioner leave to commence an original action seeking declaratory relief. It further ordered that the Office of the Attorney General advise the court if it would accept the court's invitation to serve as respondent. The Office of the Attorney General agreed to serve as a respondent in this original action on March 14, 2002. On March 29, 2002, this court granted Professor Janine P. Geske's motion for leave to file a nonparty brief.

II

[1]

¶ 6. Before reaching the merits of this dispute, we address the issue of justiciability raised by the amicus in this case. The amicus argues that no justiciable controversy exists in this action and that even if such a controversy does exist, this is an inappropriate case for the court to exercise its jurisdiction. We cannot agree.

¶ 7. Wisconsin Stat. § 806.04, the Uniform Declaratory Judgments Act, provides, in part, that "[c]ourts of record within their respective jurisdictions shall have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." The statute goes on to enumerate some specific powers conferred to courts, but in Wis. Stat. § 806.04(5), explicitly notes that these enumerations do not limit the general power conferred "in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty." In the present case, a determination by this court will end uncertainty and terminate the controversy that exists regarding the interpretation of this constitutional provision.

¶ 8. This court has stated the requisites for declaratory judgment on previous occasions. In Loy v. Bunderson, 107 Wis. 2d 400, 409-10, 320 N.W.2d 175 (1982), this court held that a justiciable controversy must exist in an action for declaratory judgment. The court then went on to state that a justiciable controversy is defined by four factors:

(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it. (2) The controversy must be between persons whose interests are adverse. (3) The party seeking declaratory relief must have a legal interest in the controversy—that is to say, a legally protectible interest. (4) The issue involved in the controversy must be ripe for judicial determination.

Id. at 410 (internal quotations omitted); see also Slawek v. Stroh, 62 Wis. 2d 295, 306, 215 N.W.2d 9 (1974)

.

¶ 9. The amicus suggests that this action is moot and the factors above not satisfied because the election in which the petitioner specifically expressed interest has already taken place. We do not find this argument convincing. First, the petitioner and respondents have stipulated that the petitioner maintains an interest in being a candidate for the position of Milwaukee County Executive sometime before his term is due to expire. The State, of course, contends that the Wisconsin Constitution prohibits the petitioner from holding such a position before August 2006. In Clements v. Fashing, 457 U.S. 957, 962 (1982), a case similar to the one at hand, the United States Supreme Court held that a Texas Justice of the Peace's claim that a constitutional provision made him ineligible even to become a candidate was sufficient to create a case or controversy and was not merely hypothetical.

¶ 10. Second, we agree with the parties' stipulation that the petitioner has responsibilities to adhere "to his oath as an attorney and a circuit judge to uphold and abide by the laws of the state of Wisconsin." (Joint Stipulation of Facts at 2.) Before running for Milwaukee County Executive, or any other nonjudicial position of public trust, he is right to ascertain what those laws require. It would be bad policy for this court to force a public servant, particularly a judge such as the petitioner here, to risk violating ethical rules and the constitution he has sworn to uphold in order to determine his eligibility to hold a nonjudicial position of public trust. Because the petitioner still has an interest in holding the position of Milwaukee County Executive or another nonjudicial office of public trust before his term expires in 2006, and because he has a present interest in fulfilling his obligations as an attorney and a circuit judge, we do not find that the case is moot. A decision by the court in this case will affect the decisions regarding candidacy to be made by the petitioner, and the responses by the State and Milwaukee County Election Commission.

¶ 11. Additionally, this court has recognized circumstances where it is appropriate to make a determination in an otherwise moot case. State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 120 n.6, 561 N.W.2d 729 (1997). In Kruzicki, this court held that exceptions to the mootness rule exist "when the issues presented are of great public importance, or the question is capable and likely of repetition and yet evades appellate review because the appellate process usually cannot be completed in time to have a practical effect on the parties." Id. (internal citations omitted). In In re Guardianship of L.W. v. L.E. Phillips Career Development Center, 167 Wis. 2d 53, 63, 66-68, 482 N.W.2d 60 (1992),²

this court used similar standards to get to the merits of a case where the rights of a patient in a persistent vegetative state were at issue, but the patient died of natural causes while the case was pending.

¶ 12. This court ...