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Expert: Abrahamson Lawsuit Has 50 Percent Chance of Prevailing

Indiana University
Wisconsin Chief Justice Shirley Abrahamson has filed a lawsuit challenging a referendum on selection of the court's leader.

This past Tuesday, Wisconsin voters approved a change in the state constitution. A day later, Wisconsin’s Chief Justice filed a lawsuit in federal court to halt the change, at least for now.

Then late on Thursday, a federal judge refused to block Wisconsin from enforcing its new amendment, while the legal battle proceeds. 

The amendment requires the state’s justices to select their chief judge every two years. For the past 126 years, the constitution assigned the job to the judge with the most seniority.

The amendment Wisconsin voters approved does not say when the change would take effect. But there’s been chatter that the high court might vote on a leader within weeks.

In her lawsuit, Justice Shirley Abrahamson insists the job is hers until 2019 when her term ends. Marquette University Law Professor Peter Rofes says he was not surprised to hear that Abrahamson is suing.

“She’s claiming that if she’s required to step down prior to the end of her current term, she’s being denied rights guaranteed by the federal constitution. In particular, she alleges, she’s being denied the due process of the 14th Amendment and the equal protection of the laws,” Rofes says.

The constitutional expert says it’s clear the chief judge believes that any state officials who enact the amendment would be violating her constitutional rights. So the defendants Abrahamson names in her suit include her six colleagues on the high court.

“They’re being sued in their official capacities. It’s not particularly common, but I suspect that if we search databases for lawsuits by members of a court against other members, we’d probably find some. So, I’m guessing it’s not unprecedented,” Rofes says.

Abrahamson is viewed as part of the court’s liberal minority, so she is expected to eventually lose her leadership position. Rofes predicts she has about a 50 percent chance of prevailing in her case, although it could take a while.

“I think we’re in for at least two rounds: a trial court decision and an appeal to the United States Court of Appeals for the Seventh Circuit. For all we know it’s possible it could go beyond that to the nation’s highest court. If so, I think we may be talking a good three or four years,” Rofes says.

A handful of private citizens have also signed on to the lawsuit.  They claim they helped elect Abrahamson to another ten year term on the court in 2009 with the understanding they were also voting for her to be the Chief Justice.

Marti was a reporter with WUWM from 1999 to 2021.
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