By M.D. Kittle | Wisconsin Watchdog
MADISON, Wis. – Shirley Abrahamson may be trying all she can to hold on to the reins of power, but the former state Supreme Court Justice doesn’t have the votes.
On Wednesday, the four conservative members of the seven-person court took up a motion by Justice Michael Gableman to elect Justice Patience Roggensack as the court’s new chief justice. The legal reading is that Abrahamson’s nearly 20-year term as chief justice is over.
“As of yesterday (there are) four votes in favor of the motion, all by email,” a source close to the court told Wisconsin Watchdog.
The vote was taken by email shortly after the state Government Accountability Board certified the results of the April 7 election. That’s when voters approved a referendum on a constitutional amendment allowing the state Supreme Court to elect its chief justice, ending the state’s 126-year practice of determining the post on seniority alone – and Abrahamson’s tenure as chief.
As of the certification of the vote, the Supreme Court had a vacancy at the top, attorneys for five of the seven justices assert in court documents.
The swiftness of the vote underscored the justices’ dissatisfaction with Abrahamson’s fellow justices.
In recent years the seven-member court, deeply divided along ideological lines, has been the butt of national jokes for its dysfunction and acrimony.
While there was some initial confusion as to who is chief justice, the source close to the court tells Wisconsin Watchdog that Wednesday’s motion allows voting to take place over 48 hours, between 9 a.m. Wednesday and 9 a.m. Friday. The new chief justice will begin as of 9 a.m. Friday.
When that window closes Roggensack will officially be the court’s new chief justice.
While Justice David Prosser has said the new chief shouldn’t be installed until Aug 1, the beginning of the next term, the source who spoke to Wisconsin Watchdog on condition of anonymity said Prosser voted for Roggensack in a two-part motion. As did Gableman, Justice Annette Ziegler and Roggensack.
But the outgoing chief justice isn’t ready to give up her title – and the $8,000 more in salary that comes with it.
In a letter to U.S. District Court Judge James D. Peterson, Abrahamson’s attorney asserts there is “no vacancy to be filled” and that Abrahamson “properly holds the office of chief justice.”
“The objecting justices to (Wednesday’s) vote questioned whether the procedure and emails utilized (Wednesday) constitute an appropriate implementation of the new constitutional amendment, assuming for the time being that implementation at this time was proper,” wrote Robert S. Peck, the Washington, D.C. attorney representing Abrahamson and a half-dozen other plaintiffs.
The day after the April 7 election, Abrahamson filed a civil rights complaint in federal court against her fellow justices, the state of Wisconsin and, effectively the voters who voted for the constitutional amendment.
“Ordinarily, the Wisconsin Supreme Court would, on an important procedure like this one, agree to a procedure and vote only in person in conference,” Peck wrote in the letter to Peterson.
In recent years, the court has struggled to agree on much of anything, court insiders say. They have a difficult time sitting in the same chamber together.
Abrahamson, and Justices Ann Walsh Bradley and N. Patrick Crooks, who make up the court’s liberal wing minority, object to the vote and whether the “procedure and emails utilized … constitute an appropriate implementation of the new constitutional amendment, assuming for the time being that implementation at this time was proper,” Peck wrote.
Beyond the court’s swearing-in ceremony on May 18, the court is not scheduled to meet again until early June. The justices in support of Roggensack wanted the matter promptly settled, the source said.
As Peck notes the court has no procedure for election of a chief justice. “The constitutional amendment’s implementation that is before this Court in this case does not indicate any particular procedure for the election of a chief justice except that it be ‘by a majority of the justices then serving on the court,’” Peck wrote.
It appears to be a clear case of majority rules – among the state’s electorate and on the state’s Supreme Court.
Bradley told the Milwaukee Journal Sentinel that the case is now before the federal court, so any leadership “appears premature.”
“The federal judge states his wish No. 1 would be to get a full decision on the merits before there is an election of a new chief justice. We should honor his directive,” Bradley said.
In fact, the federal judge earlier this month denied Abrahamson’s request for a temporary restraining order on implementation of the amendment. He said Abrahamson does not face the possibility of “irreparable injury” because the amendment wouldn’t take effect until at least April 29, following the official canvassing of voters.
“I think it is a rather extraordinary thing for me to be asked to order the State of Wisconsin to forestall implementation of a duly-elected — duly-passed constitutional amendment, the validity of which isn’t challenged and the effective date of which will be when the Government Accountability Board certifies the election,” Peterson said during an April 21 conference hearing.
Even if a change does cause some problems for Abrahamson, the federal judge said it was not his business to intervene in a state matter at that time.
And Abrahamson herself wrote the defining 2002 opinion in State v. Gonzalez that seems to undermine her claim that the leadership amendment should be delayed until 2019, when her current term on the court expires.
“[U]nless a constitutional amendment provides otherwise, it takes effect upon the certification of a statewide canvass of the votes,” Abrahamson wrote.
The federal court hearing her case will have to defer to such a ruling coming from the state Supreme Court and the chief justice herself, legal experts tell Wisconsin Watchdog.
Roggensack sounded ready to lead the court. In a statement she said she looks forward to serving the people of Wisconsin as the newly elected chief justice of the Wisconsin Supreme Court.
“The Chief Justice plays a crucial role, not only on behalf of the Supreme Court, but also for the state court system as a whole. I look forward to working with my fellow justices and with judges throughout the state to ensure Wisconsin has an effective, efficient and responsive court system,” Roggensack said in a statement.
“My initial focus will be two-fold: First, to enable the Wisconsin Court System to better serve the public; and second, to begin repairing damage that has been done to the reputation of the Wisconsin Supreme Court.”
Roggensack said she will donate her additional $8,000 annual salary increase to the Access to Justice Commission, which arranges legal services for those persons who are unable to afford them.