Two members of the state board that regulates ethics and
campaigns resigned Tuesday after an opinion from the attorney general’s office
said they were ineligible.

Judge David Deininger and Judge James Mohr served on the
relatively new Wisconsin Government Accountability Board as retired judges,
like all members of the body, but Attorney General J.B. Van Hollen’s formal
opinion on the issue pointed to a constitutional clarification that makes them
ineligible.

“We recognized right away this was an issue that you
could make a case either way, and we felt because it was that kind of a close
call, we would seek the opinion of the attorney of the state,” said the
GAB’s director and general counsel, Kevin Kennedy.

Deininger and Mohr had served on the board since just after
its formation in early 2007. The board replaced and absorbed the duties of the
Wisconsin Ethics Board and the Wisconsin Elections Board, overseeing campaign
finance, election ethics and lobbying in the state.

The judges are ineligible because of what the GAB called a
“little-known” provision of the Wisconsin Constitution.

Article seven, section 10, subsection one 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.”

In his opinion, Van Hollen said the appointed position on
the GAB did serve as an office of public trust, though it is not an elected
office, and furthermore he said it was not classified as a judicial office,
though members of the board must be former judges.

Though both Deininger and Mohr retired from their judicial
posts on a court of appeals and circuit court, respectively, their six-year
terms have not expired, making them technically ineligible.

“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,” Deininger said in a statement.
“We have chosen to resign to protect the integrity of this board and the
legitimacy of its future decisions.”

In his opinion, Van Hollen said the board’s work until this
point could not be called into question.

“Accountability is our focus, and we are accountable
first and foremost to the Constitution,” Mohr said in a statement.

He added the best course would be for the governor and the
state Senate to act quickly to replace the two missing members and keep the board’s
work on track.

Kennedy said though he was “disappointed that we have
to take this detour,” the board would continue to operate without
Deininger and Mohr.

“The board can continue to operate. It takes four votes
to act. We have four members left,” Kennedy said. “As long as there
is agreement, they can still vote and make decisions.”

He said issues with dissent, however, would be put on hold
until two new members could be added.

A panel of four appeals court judges will receive
applications from eligible former judges and present at least three nominees to
the governor, who will select two. The state Senate must then confirm the new
board members.

Kennedy said he hopes that process would take place this
month.