Is McDonald eligible for judgeship?
JANESVILLE State election officials are unsure whether Rock County judge candidate Tom McDonald has been a lawyer long enough to be seated as judge if he wins the April 3 election.
McDonald believes that he has.
Reid Magney, spokesman for the state's Government Accountability Board, said his office isn't sure.
"It's a question that may have to be resolved if he (McDonald) is elected," Magney said.
"At this point, it's a campaign issue and not a legal issue," Magney said.
If McDonald were to win, "It's possible that someone could file a challenge to his qualifications, and it would have to be resolved at that point," Magney said.
The question to be resolved: Is a person considered elected on election night or when he or she is certified as the winner?
The Wisconsin Constitution sets out criteria for attorneys who seek judgeships.
It reads: "To be eligible for the office of supreme court justice or judge of any court of record, a person must be an attorney licensed to practice law in this state and have been so licensed for 5 years immediately prior to election or appointment."
McDonald was sworn in as an attorney April 18, 2007, which is 15 days short of five years from the April 3 election.
McDonald said he closely read state statutes before he decided to run because he knew the criteria might become an issue. He researched but could not find any case law on the topic, he said.
"I certainly wouldn't want an election to happen and then not be eligible for office," McDonald said.
"What the constitution doesn't do is define election and what it means to be elected," McDonald said. "I can't imagine this issue has come up very much."
McDonald said he used common sense in reading the statutes, noting that election results are unofficial until the canvassing process is finished and other deadlines are met. For example, residents are given a certain amount of time to challenge an election before it is certified.
The certification process would take more than the 15 days he needs to meet the five-year criteria, he said.
"That's why even though it is not specifically defined, I think a lot of it is just common sense," McDonald said.
McDonald said he did not get an opinion from the board before he decided to run.
Magney agreed there is nothing definitive in Wisconsin statutes that answers whether a candidate must qualify by election day or when an election is certified.
If McDonald wins, any challenge would have to be resolved after the election, Magney said. He was not sure whether that would be resolved by his office, the attorney general's office or the courts.
The person who knows the answer to that question was out of the office Thursday, Magney said.