On April 7, Wisconsin voters chose to amend Art. VII §4(2) of the Wisconsin Constitution to allow state supreme court justices to elect the chief justice among themselves. The elected chief justice would have a two-year term. The amendment passed with 53% of the vote. The next morning Chief Justice Abrahamson sued her fellow justices and several other statewide elected officials in order to keep her position on the court.
In her complaint, Chief Justice Abrahamson is seeking a declaratory judgment from the court to determine when the new constitutional amendment will come into effect. She argues that the amendment is prospective only and therefore does not apply until the end of her elected term in 2019. Alternatively, she argues that a retroactive application of the amendment would change the terms of her office, which would violate the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution. The Chief Justice argues that she has a property interest in her office and it is being taken without due process of law. She further argues that retroactive application of the amendment violates the Equal Protection Clause because no other elected official elected to a full term and still able to hold office would be “prematurely ousted from office on that basis.”
Chief Justice Abrahamson also filed a motion for a temporary restraining order to stop the amendment from taking effect prior to this litigation being resolved. District Court Judge (Wis. W.D.) James Peterson denied the motion because the Chief Justice did not show eminent harm.
Marquette University Law School Professor Rick Esenberg responded in a column in the Milwaukee Journal Sentinel where he rebuts the Chief Justice’s arguments. First, Professor Esenberg argues that the amendment does not apply retroactively because it goes into effect on the day the election results are certified, not prior to that and therefore it applies prospectively. Second, he contends that if applying the amendment after the election results are certified is considered retrospective, then it is not clear why applying the results at the chief justice’s term would not still be retrospective. This, according to Esenberg, is because “if a prospective application requires the existence of a vacancy in the office of the Chief Justice, there will be none until the incumbent either relinquishes the office or leaves the Court.” In replying to the Chief Justice’s alternative argument, Professor Esenberg explains that there is U.S. Supreme Court precedent that states that elected officials do not have a vested property interest in their office.
On Monday, April 13, several Wisconsin voters submitted a motion to intervene in the case arguing that if Chief Justice Abraham’s lawsuit succeeds that it will undermine the voters’ ability to direct democracy in Wisconsin. See the motion here and the supporting brief here. There motion to intervene was denied because the court found the voters’ interests are already adequately represented by the Department of Justice. You can read the ruling here.
A status conference for the case will be held on April 21.