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Wis. chief justice sues over amendment, argues it cannot be applied immediately

By Jessica M. Karmasek | Apr 13, 2015

MADISON, Wis. (Legal Newsline) - Wisconsin Chief Justice Shirley Abrahamson says a constitutional amendment approved by voters last week changing the method by which the state’s chief justice is selected cannot be implemented until a “naturally-occurring” vacancy occurs.

Abrahamson filed a lawsuit in the U.S. District Court for the Western District of Wisconsin Wednesday -- 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 have speculated that the amendment will apply retroactively and be implemented immediately, before the end of Abrahamson’s term.


“Should the new method of selecting a chief justice be put into immediate effect before the expiration of Chief Justice Abrahamson’s current term and a new chief justice selected, the term of the current, elected chief justice will be disrupted, her constitutionally protected interest in the office of chief justice will be impaired, the votes of her supporters will be diluted and the results of the 2009 election undone long after-the-fact, while the Wisconsin court system’s leadership will become unsettled,” according to Abrahamson’s 16-page complaint.


The chief justice also argues that retroactive application of the new amendment raises “profound issues” of due process and equal protection.


Proponents of the change have argued the chief justice would be more accountable and allow justices more say in their court. Others have countered that the change is merely a political move, used to oust Abrahamson as the court’s leader.


The court’s majority is generally regarded as conservative. Abrahamson is considered by many to be a liberal Democrat.


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 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.”


The named 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.


As chief justice, Abrahamson currently earns a salary of $155,403. She would earn $8,000 less a year if she lost the title.


In turn, she is seeking a declaration that the newly-approved amendment is prospective only, so that the change cannot be implemented until her current term ends.


If the amendment should not be construed to apply prospectively, she is seeking a declaration that retroactive application would violate the U.S. Constitution.


Also last week, Abrahamson asked for a temporary restraining order and/or preliminary injunction restraining and enjoining defendants from enforcing or implementing the new amendment. However, Judge James D. Peterson, who has been assigned the case, denied the motion Thursday.


A status conference has been set for April 21.


Robert S. Peck and Kathryn Minton of the Washington, D.C.-based Center for Constitutional Litigation PC is representing Abrahamson.


From Legal Newsline: Reach Jessica Karmasek by email at

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