By Graham Kilmer
The Wisconsin Department of Justice (DOJ) filed a motion in a federal court on Monday to throw out a lawsuit filed by state Supreme Court Justice Shirley Abrahamson.
On April, 7 2015, Wisconsin voters approved an amendment to the state constitution effectively changing the 126 year-old process for selection of the chief justice.
Abrahamson filed her lawsuit the following day, which ostensibly calls for her to retain her title as chief justice.
The new method for naming the chief justice allows for the members of the Supreme Court to elect their chief justice by a majority vote.
The original rule designated the justice who had served the longest consecutive term as the chief justice.
The new amendment allowed the conservative majority on the supreme court to strip chief justice Abrahamson of her title.
On Wednesday, April 29, four members of the state Supreme Court voted via email to elect justice Patience Roggensack the new chief justice, with Roggensack casting the deciding vote
The DOJ’s recent motion calls for the federal court to dismiss the lawsuit because it fails to contend that justice Abrahamson’s constitutional rights were violated by the amendment.
In Abrahamson’s lawsuit, she requests the federal court declare her position as chief justice a “constitutionally protected interest.”
In her suit, she requested that the amendment, altering the selection process of the chief justice, only be applied if there is a vacancy in the office of the chief justice, or until her term ends in July 2019.
Abrahamson stated that the implementation of the amendment, immediately following its approval by the Wisconsin Board of Elections, was “retroactive” and a violation of her constitutional right to due process under the 14th amendment.
In the motion filed Monday by the DOJ, Attorney General Brad Schimel stated that the office of elected public officials are not a “constitutionally protected interest,” and that Wisconsin voters have the right to amend the constitutional terms regarding a public office as they did on April 7.
The motion from the DOJ also claims, because the amendment was passed by the state legislature and approved by a public vote, Abrahamson’s due process had been served.
Under Wisconsin state law, if a constitutional amendment does not specify the date it becomes effective, then it can be implemented once it is approved by a board; in this case, the Wisconsin Board of Elections.
Abrahamson also argued, because she campaigned in 2009 as the state chief justice, those that voted for her had the expectation that she would finish out her term in the position of chief justice.
She stated that the votes from the 2009 election were “diluted” by the passage of the new amendment, because they changed the result of the election.
She was joined in her suit by several registered Wisconsin voters to argue this point.
The DOJ responded in their recent motion stating that the voters had no “stake” in the suit, and also, because the amendment was ultimately passed by a public vote, the voters who passed the amendment on April 7 have rights equivalent to the rights of the voters who voted for Abrahamson in 2009, and are now plaintiffs in the suit.