Wisconsin Supreme Court Chief Justice Shirley Abrahamson filed a federal lawsuit Wednesday to try and hold on to her leadership spot after voters approved a constitutional amendment that was likely to result in her demotion.
For the past 126 years, the chief justice position has gone to the most senior member of the Supreme Court. Since 1996, that has been Abrahamson. But the amendment approved by voters on Tuesday would instead allow the seven justices to decide who should be chief.
The liberal Abrahamson is expected to be voted out by the four-justice conservative majority.
Abrahamson, 81, argued in the lawsuit filed in U.S. District Court in Madison that the change should not be applied until after her current term ends in four years or if she leaves before then.
To have the selection process change immediately would shorten the 10-year term of office to which Abrahamson was elected as chief justice, she argued, and would therefore violate her constitutional rights to due process and equal protection rights.
She also is asking for a temporary restraining order to block the other six justices on the court from taking any action to remove her as chief justice.
The lawsuit names the other members of the court and top state officials charged with implementing the amendment. It was brought on behalf of Abrahamson and a handful of state residents who voted for her. Their votes, the lawsuit argues, will be “diluted and results of the 2009 election undone long after-the-fact, while the Wisconsin court system’s leadership will become unsettled.”
“In the most recent election, which took place April 7, 2009, her campaign committee was called the ‘Chief Justice Shirley Abrahamson Reelection Committee,’ and her campaign advertising ended with the tagline, ‘Wisconsin’s Chief’ ... making it clear to voters that a vote for her was a vote to continue her in the office of chief justice,” Abrahamson wrote in her complaint.
“She campaigned extensively and expended substantial resources for reelection on that theme of continuity in the chief justice position and would not have sought reelection if there was a question about whether her reelection would retain her in the office of chief justice,” the lawsuit says.
The chief justice selection amendment doesn’t take effect until after the election’s results are certified by the nonpartisan Government Accountability Board. That is expected to happen at the board’s April 29 meeting.
Abrahamson did not return messages for comment on Tuesday or Wednesday. She is both the longest currently serving chief justice and state Supreme Court member in the country.
A spokeswoman for the Wisconsin Department of Justice, which would defend the state, said attorneys were reviewing the lawsuit.
Abrahamson’s move to hold onto her position angered those who supported the amendment.
“She should accept the will of the people,” said Sen. Tom Tiffany, R-Hazelhurst, one of the amendment’s chief sponsors. “She’s an elected justice of the Supreme Court. She was not elected as the chief justice of the Supreme Court.”
Brandon Scholz, treasurer for a group called Vote Yes for Democracy that backed the change, said he was surprised by the lawsuit, calling it “self-serving.” Scholz is also the former campaign manager for Justice Pat Roggensack, who has often clashed with Abrahamson and who supported the amendment.
Earlier Wednesday, before Abrahamson filed the lawsuit, Roggensack told The Associated Press that she hoped to meet “quite soon” to discuss how to proceed following the amendment’s adoption.
Roggensack said her priority was improving the functioning of the court, which has been in the spotlight for high-profile disputes among the justices in recent years. Roggensack is part of the court’s four-justice conservative majority.
“We have some repair to do, frankly, with the image of the court and I want to work very hard to get that done,” said Roggensack, a member of the court since 2003.
The measure was placed on the ballot by the Republican-controlled Legislature, and opponents said it was a clear attempt to remove Abrahamson, a member of the court since 1976.
Under the new amendment, the justices have to decide every two years who they want to serve as chief justice. There are no specifics about how that is to be done or when the first decision has to be made.
The chief serves as lead administrator for the state court system, with power to assign judges and justices for cases below the Supreme Court level, designate and assign reserve judges and schedule oral arguments before the high court, among other duties. Justices are paid $147,403 a year while the chief justice earns $155,403.
Supporters of the change — including Wisconsin Manufacturers & Commerce’s group Vote Yes for Democracy, which spent at least $600,000 to get it adopted — argued it’s undemocratic to have the position go automatically to the justice with the most experience.
Justice at Stake, a national judicial watchdog group based in Washington, issued a statement following adoption of the amendment saying a “siege of special interest money” and “big money hardball politics” led to its adoption.
While 22 other states use some sort of similar selection process, changing from one system to another and replacing the current chief justice is unprecedented, said Bill Raftery, an analyst with National Center for State Courts based in Williamsburg, Virginia.
“There’s nothing comparable,” he said. “This has just not happened before. ... It’s exceptional and unique.”
Also Tuesday, Justice Ann Walsh Bradley won re-election to a second term. She and Abrahamson are generally considered the two most liberal justices.
Plaintiffs in the lawsuit are Joseph Heim, a UW-La Crosse professor; David Perkins, a farmer and resident of Blue Mounds; John Lien, a managing member of Operant, LLC, who lives in Madison; Marilyn Wittry, a retired librarian and resident of Manitowish Waters; and Hilde Adler, a homemaker who lives in Madison.