Opinion No. Oag 49-82, (1982)

71 Op. Att'y Gen. 162

• Court: Wisconsin Attorney General Reports
• Decided: September 9, 1982
• Status: Published

Opinion

FRED A. RISSER, President State Senate

You inquire on behalf of the Senate Organization Committee, as follows: "Can an incumbent Senator file and run for a newly numbered Senate seat without resigning his or her present seat?" No specific details or background is provided for your question.

In general response to your question, I advise that a state senator need not resign his or her present seat before filing and running for a newly numbered senate seat, merely because he or she is presently an incumbent senator.

Wisconsin Constitution art. IV, § 6, provides that "[n]o person shall be eligible to the legislature who shall not . . . be a qualified elector in the district which he may be chosen to represent." To be "a qualified elector in the district which he may be chosen to represent," a candidate must be, among other things, a resident of the district. The State ex rel. Wannemakerv. Alder, 87 Wis. 554, 558, 58 N.W. 1045 (1894); Wis. Const. art. III, § 1; sec. 6.02, Stats. However, eligibility to office is generally determined as of the time the person assumes the duties of office. State ex rel. Zimmerman v. Dammann, 201 Wis. 84,92-93, 228 N.W. 593 (1930). Section 8.15(4)(b), Stats., also presently provides that each candidate for nomination at the September partisan primary must declare that he or she "will atthe time he or she assumes office meet applicable age, citizenship, residency or voting qualification requirements, if any . . . and that he or she will otherwise qualify for office if nominated and elected." Therefore, under normal circumstances, these provisions would not act to require resignation of an incumbent senator in order for such person to file and run for a newly numbered senate seat. It should be noted, however, that such incumbent senator would vacate his or her present seat by "ceasing to be an inhabitant of the district from which he or she is elected." Wis. Const. art. XIII, § 10; sec. 17.03(4), Stats. Furthermore, candidates should be aware that the affidavits of circulation of nomination papers for the newly numbered district seat may only be made by qualified electors of the new district. Sec. 8.15(4)(a), Stats.

BCL:JCM