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  • WisBar News
    April 22, 2015

    Federal Judge Won’t Halt New Chief Justice Selection Process, Case Still Pending

    Joe Forward
    Legal Writer

    April 22, 2015 – A judge for the U.S. District Court for the Western District of Wisconsin won’t block the justices of the Wisconsin Supreme Court from selecting a new chief justice under a voter-approved constitutional amendment that recently passed.

    U.S. District Court Judge James Peterson yesterday denied a motion for preliminary injunction, filed by current Chief Justice Shirley Abrahamson and five Wisconsin voters, which would have halted the justices from selecting a chief justice under a new process.

    On April 7, Wisconsin voters adopted a constitutional amendment to change how the chief justice of the Wisconsin Supreme Court is selected. Under the amendment, justices of the seven-member supreme court choose the chief justice every two years. For the past 126 years, seniority has determined who serves as chief justice.

    Current Chief Justice Shirley Abrahamson, 81, who has served as chief justice since 1996, immediately filed a lawsuit in federal court that would delay the constitutional amendment from taking effect until her term expires or the seat becomes vacant.

    Abrahamson was appointed to the court in 1976, and won elections to remain on the court in 1979, 1989, 1999, and most recently, 2009. Her current term expires in 2019.

    On April 9, Judge Peterson declined to issue a temporary injunction that would have prevented the justices from taking a vote under the amendment. Yesterday, Judge Peterson affirmed that ruling, denying Abrahamson’s motion for preliminary injunction.

    The ruling allows the supreme court justices to vote for a new chief justice after state election officials certify, on April 29, the constitutional amendment passed by voters.

    Judge Peterson did not find a sufficient risk of irreparable injury to Abrahamson and the plaintiff voters if an injunction was not issued. However, he did not rule on the merits of the case. Reportedly, Judge Peterson will rule on the merits sometime this summer.

    That means Chief Justice Abrahamson could potentially be removed from the chief justice post, but be reinstated if she and the plaintiff voters ultimately win the case.

    The Lawsuit

    The past two Wisconsin legislatures passed bills to change the chief justice selection process, allowing a statewide referendum that passed with about 53 percent of voters approving the change to Wisconsin Constitution, Art. VII, s. 4(2), which had previously granted the chief justice post to the justice with the longest continuous service.

    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 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.

    The lawsuit also asked the court to prevent the other supreme court justices from taking a vote on who should be chief justice until the case is decided on the merits.

    In his April 9 order, Judge Peterson 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. After a hearing yesterday, Judge Peterson still found no substantial risk of irreparable harm.

    The Wisconsin Department of Justice, noting a conflict in representing justices, hired Kevin St. John, former deputy attorney general, to represent the other six justices. However, Justice Ann Walsh Bradley has indicated the she will represent herself.

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