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  • WisBar News
    April 09, 2015

    Chief Justice’s Federal Lawsuit Challenges New Chief Selection Process (Updated)

    Joe Forward
    Legal Writer

    This article was updated on April 10, 2015. See “Update” below.

    April 9, 2015 – A day after Wisconsin voters adopted a constitutional amendment to change how the chief justice of the Wisconsin Supreme Court is selected, current Chief Justice Shirley Abrahamson and voters filed a lawsuit that would delay the constitutional amendment from taking effect until her term expires or the seat becomes vacant.

    On April 7, about 53 percent of voters passed a constitutional amendment that requires the justices of the seven-member supreme court to choose the chief justice every two years. For the past 126 years, seniority has determined who served as chief justice.

    Abrahamson, 81, was appointed to the court in 1976, and won elections to remain on the court in 1979, 1989, 1999, and most recently, 2009. She has remained the court’s chief justice for nearly 20 years, since 1996, and her current term expires in 2019.

    But two consecutive Wisconsin legislatures passed bills to change the chief justice selection process, a requirement for constitutional amendments, allowing a statewide referendum. The amendment changes Wisconsin Constitution, Art. VII, s. 4(2), which says the justice with the longest continuous service shall serve as chief justice.

    However, the amendment passed by voters does not indicate an effective date. In the lawsuit, filed April 8 in the U.S. District Court for the Western District of Wisconsin, Chief Justice Abrahamson and five voters seek to delay the amendment’s effective date.

    Abrahamson, through a lawyer for the Washington D.C.-based Center for Constitutional Litigation, says she has a constitutional right to serve out her term as chief and applying the amendment retroactively would deprive her of a “constitutionally protected interest in the office of chief justice and the additional remuneration she receives as chief justice.”

    Specifically, giving the constitutional amendment retroactive effect would violate Abrahamson’s due process rights under the U.S. Constitution, as well as the the equal protection rights of both Abrahamson and the plaintiff voters, the complaint states.

    The plaintiff voters say they have equal protection rights to ensure Abrahamson is chief justice until 2019, because they reelected Abrahamson to a 10-year term as the chief justice and removing her from that office would dilute the value and import of their votes.

    The complaint – filed against the other six supreme court justices, Secretary of State Doug La Follette, Wisconsin Department of Administration Secretary Scott Neitzel, and other public officials – seeks a declaration that the constitutional amendment passed by voters is effective only when Abrahamson’s term expires or the seat becomes vacant.

    It also seeks a declaration that retroactive application would violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and would enjoin the other supreme court justices from taking a vote on who should be chief justice.

    Update (April 10)

    U.S. District Court James Peterson, of the Western District of Wisconsin, on April 9 declined to issue a temporary injunction preventing justices of the Wisconsin Supreme Court from electing a new chief justice before the case is decided on the merits.

    In a four-page order, Judge Peterson made no determination on the merits but said the plaintiffs “have not shown that I should take the extraordinary step of issuing an injunction without hearing from the defendants.”

    Judge Peterson noted that temporary restraining orders are reserved for cases that clearly show a risk of irreparable injury or loss if the injunction is not granted.

    “Neither the complaint nor the motion for preliminary relief articulate a reason to believe that the Wisconsin Supreme Court or other state officers will implement the amendment immediately, before defendants can be heard in opposition to plaintiff’s request for preliminary injunction.,” Judge Peterson wrote in the order.

    The plaintiffs could revive the motion, Judge Peterson said, “if new evidence shows the need for it.” Peterson set a status conference for April 21 to set briefing deadlines and a hearing date on the plaintiffs’ motion for a preliminary injunction.


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