MADISON, Wis. (Legal Newsline) - Wisconsin officials are asking a federal judge to dismiss a lawsuit filed against them by Wisconsin Supreme Court Justice Shirley Abrahamson over a constitutional amendment approved by voters last month.
The amendment, adopted by voters April 7 and certified by the state’s nonpartisan Government Accountability Board April 29, changes the method by which the high court’s chief justice is selected.
Now, members of the court elect the chief justice, bringing it in line with the majority of states. Previously, selection was based on seniority.
Abrahamson sued in the days following the election.
The defendants include: the Wisconsin Department of Administration; Scott Neitzel, secretary of the Wisconsin Department of Administration; fellow justices Ann Walsh Bradley, N. Patrick Crooks, Michael Gabelman, David T. Prosser, Patience Roggensack and Annette Kingsland Ziegler; Pam Radloff, deputy director of management services for Wisconsin State Courts; Margaret Brady, human resources officer for Wisconsin State Courts; Doug La Follette, secretary of state; and Matt Adamczyk, state treasurer.
In a court filing last week, Neitzel, Radloff, Brady, La Follette and Adamczyk asked Judge James D. Peterson, for the U.S. District Court for the Western District of Wisconsin, to dismiss the lawsuit.
“Plaintiff Shirley Abrahamson’s due process claim fails because she has no property or liberty interest in the designation of chief justice, and she has received all the process due,” the defendants wrote. “Her equal protection claim fails because the State had a rational basis for changing the qualification for chief justice from seniority to majority vote.”
They continued, “The claims of the voter Plaintiffs should be dismissed, pursuant to Fed. R. Civ. P. 12(b)(1), because they have no standing to bring claims based on a change to the state constitution that affects a candidate for whom they voted.
“In any event, the Amendment does not implicate their right to vote or ‘dilute’ the votes they cast in 2009.”
The state officials also argue that the Department of Administration should be dismissed from the lawsuit on sovereign immunity grounds and La Follette and Adamczyk because injunctive relief against them would be “ineffective and unnecessary.”
In addition to Abrahamson, registered voters Joseph P. Heim, David Perkins, John V. Lien, Marilyn Wittry and Hilde Adler are named plaintiffs.
According to the justice’s complaint, Heim, Perkins, Lien, Wittry and Adler voted for Abrahamson in 2009, with the “expectation that her successful reelection, in which she campaigned as ‘Wisconsin’s Chief,’ would keep her in the position of chief justice until her term expires in 2019, absent her resignation, death, disability, or recall.”
In her lawsuit, 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.
In addition, as a justice, she now earns $8,000 less a year.
Abrahamson, who was first elected to the court in 1979, served as the high court’s chief justice from 1996 until late last month, when Roggensack was selected as the new head of the court.
The court held a vote the same day the GAB met and certified the statewide vote.
Abrahamson, along with justices Bradley and Crooks, objected to the vote.
“The chief justice plays a crucial role, not only on behalf of the Supreme Court, but also for the state court system as a whole,” Roggensack said in a statement. “I look forward to working with my fellow justices and with judges throughout the state to ensure Wisconsin has an effective, efficient and responsive court system.”
Roggensack said she is donating the extra $8,000 a year in compensation to the Access to Justice Commission for those who cannot afford legal services.
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.