Jessica Karmasek Aug. 4, 2015, 12:00pm


MADISON, Wis. (Legal Newsline) - A federal judge ruled Friday that a new constitutional amendment that changes the method by which the Wisconsin Supreme Court’s chief justice is selected “passes constitutional muster” -- even if implemented immediately.

Judge James Peterson for the U.S. District Court for the Western District of Wisconsin issued his 35-page ruling, concluding that the state’s new method was effective April 29 -- when the referendum was certified -- and that the high court was authorized to implement the method and elect a new chief justice that day.

Under the new amendment, adopted by voters April 7, members of the court now elect the chief justice, bringing it in line with the majority of states. Previously, selection was based on seniority.

Justice Shirley Abrahamson, along with five citizens who had voted for her re-election in 2009, sued days after voters adopted the amendment.

In her lawsuit, Abrahamson argued she would be “disrupted,” her interest in the office “impaired” and the votes of her supporters “diluted” if immediately replaced. She also argued that retroactive application of the new amendment raised “profound issues” of due process and equal protection.

In addition, as a justice, she now earns $8,000 less a year.

Abrahamson served as the high court’s chief justice from 1996 until late April, when Justice Patience Roggensack was selected as the new head of the court. Abrahamson, along with justices N. Patrick Crooks and Ann Walsh Bradley, objected to the vote.

The former chief justice urged Peterson to temporarily block her fellow justices from replacing her as the court’s leader.

“Plaintiffs do not challenge the amendment itself. They concede, as they must, that Wisconsin has the power to change the manner of selecting its chief justice. Nor do they challenge that the amendment was duly ratified according to the process established in the Wisconsin Constitution,” Peterson explained in his opinion. “Rather, plaintiffs seek only an interpretation of the amendment, under which the amendment would not be implemented until the next vacancy in the position of chief justice, which is to say when Abrahamson leaves the position.”

He continued, “To paraphrase it simply, plaintiffs contend that if Wisconsin wanted to change the manner of selecting its chief justice immediately, so that it would deprive Abrahamson of the position before her term as chief was over, Wisconsin needed to do so with an amendment of utter clarity. Otherwise, the voters did not truly understand what they were voting for, and Abrahamson did not have sufficient notice that her position as chief was on the line.”

But the federal judge said he was “not persuaded” by the plaintiffs’ arguments.

“There is no requirement that a state, in restructuring its government or the powers and duties of its officials by means of a constitutional amendment, do so with super-clarity to protect the interests of the officials or voters whose interests might be impaired,” he wrote.

“Unless its actions are plainly unconstitutional, Wisconsin has the authority and autonomy to restructure its government without interference from the federal government.”

Peterson noted that the high court -- “once a sterling example among state supreme courts” -- has “hit a long rough patch” and become known for its “fractiousness.”

“With that history as a backdrop, the state legislature in 2013 started the process of amending the state constitution to change the method of selecting the chief justice, from seniority to election by a majority of the sitting justices,” he explained in his opinion.

Last month, attorneys for Abrahamson filed a motion for an expedited appeal in the U.S. Court of Appeals for the Seventh Circuit.

The appellate court granted the motion and in a July 7 order set oral arguments in the case for Sept. 11.

On Friday, state officials who are named defendants in the case asked the Seventh Circuit to dismiss the case, pointing to Peterson’s opinion.

Abrahamson’s lawyer, Robert S. Peck of the Center for Constitutional Litigation PC, could not immediately be reached for comment.

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

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