Jessica M. Karmasek Apr. 23, 2015, 8:45am



MADISON, Wis. (Legal Newsline) - A federal judge has refused to halt the implementation of a constitutional amendment approved by voters this month changing the method by which the Wisconsin Supreme Court’s chief justice is selected.




 




On Tuesday, Judge James Peterson for the U.S. District Court for the Western District of Wisconsin denied Chief Justice Shirley Abrahamson’s renewed request for a temporary restraining order while her lawsuit is pending.




 




Peterson said there would be no “irreparable” or “enduring” harm if Abrahamson is removed from her post, temporarily.




“When and how to implement a duly passed amendment to the Wisconsin Constitution is a question of state law, not federal law. Plaintiffs have made a plausible showing that they have interests that may be recognized by the Federal Constitution, and that those interests may be infringed by the way in which Wisconsin implements the new method for selecting a chief justice. But plaintiffs have not shown that they would suffer significant irreparable harm in the absence of a temporary restraining order, or that any harm to them would outweigh the harm that defendants would suffer from such an order,” the judge wrote in an order entered Wednesday.




 




“If plaintiffs prevail, Justice Abrahamson can be reinstated and her lost salary repaid. Such a change in chief justice would be inconvenient for all, but plaintiffs have not demonstrated any enduring harm to their interests that would flow from the interruption in her service as chief justice.”




 




He continued, “Based on the presentations of the parties so far, greater harm would flow from this court’s interference in the election of a new Chief Justice of the Wisconsin Supreme Court.”




 




Abrahamson filed her lawsuit the day after state voters approved the amendment, which changes the seniority rule to an election of the justices for a two-year term. The nonpartisan Government Accountability Board is expected to certify the vote at its April 29 meeting.




 




Wisconsin was one of just a handful of states where the most experienced, or tenured, justice serves as chief justice. In most states, justices vote on who will head the court.




 




Abrahamson has been chief justice since 1996. She was first elected to the court in 1979, and her current term expires in 2019.




 




State officials believe the amendment should apply retroactively, after the election is certified, and be implemented immediately, before the end of Abrahamson’s term.




 




Abrahamson argues that she will be “disrupted,” her interest in the office will be “impaired” and the votes of her supporters will be “diluted” if that should happen. She also argues that retroactive application of the new amendment raises “profound issues” of due process and equal protection.




 




She also would earn $8,000 less a year if she lost the title of chief justice.




 




Counsel for defendants and fellow justices N. Patrick Crooks, Michael Gabelman, David T. Prosser, Patience Roggensack and Annette Kingsland Ziegler told Peterson Tuesday that the justices believe they have an “obligation” to elect a new chief justice more or less immediately -- or before the court would issue a final decision.




 




Justice Ann Walsh Bradley, also named as a defendant in the case, told the judge she will represent herself. Bradley opposed the constitutional amendment.




 




Peterson set a briefing schedule for the plaintiffs’ motion for preliminary injunction: defendants’ oppositions are due May 4; plaintiffs’ reply is due May 11; and a hearing will be held May 15.




 




The judge said he will set the calendar for the rest of the case after he issues a decision on the plaintiffs’ motion for preliminary injunction.




 




“The court expects that this case will progress quickly enough so that a final decision can be made before Aug. 1, 2015,” Peterson wrote in his three-page order.




 




His decision would be appealed to the U.S. Court of Appeals for the Seventh Circuit.




 




From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.


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