Will the real chief justice please stand
Roggensack, Abrahamson are both claiming title
Madison — The members of the Wisconsin Supreme Court are so divided they can’t agree who their chief justice is.
Patience Roggensack and Shirley Abrahamson are both laying claim to the title. A majority of the state’s high court agrees with Roggensack, but a federal judge may ultimately be called on to sort out the matter.
The dispute is just the latest in a string of conflicts and bouts of name-calling. In the highest profile incident, Justice David Prosser put his hands on the neck of Justice Ann Walsh Bradley in 2011 in front of other justices as they argued over a case.
“Historically, the Wisconsin Supreme Court was regarded as one of the blue-chip state judiciaries in the country,” said James Sample, a professor at the Maurice A. Deane School of Law at Hofstra University in New York.
“Today, the Wisconsin Supreme Court is like an episode of the ‘Bad News Bears.’ ”
For 126 years, the job of chief justice went to the most senior member of the court, and Abrahamson got the position in 1996 because of her
veteran status. Having Abrahamson, a liberal, in that position for years has frustrated conservatives who control the court.
Republicans in the Legislature adopted a measure to change the state constitution to allow the members of the court to pick the chief justice. The issue went to voters, who approved the change 53% to 47% last month.
The next day, Abrahamson and her backers sued in federal court in Madison, arguing she should remain chief justice until 2019, when the 10-year term she was elected to expires. Forcing her out early would violate her constitutional rights to due process and equal protection under the law, they argue.
On Wednesday, state election officials certified the referendum results to change the state constitution. The same day, the four conservatives on the court — Roggensack, Prosser, Michael Gableman and Annette Ziegler — voted by email to make Roggensack the chief justice effective Friday.
Also Friday, Abrahamson’s attorney told the federal judge overseeing her lawsuit that she and her backers did not believe Abrahamson had been replaced.
“Plaintiffs continue to believe that there is no vacancy to be filled and that plaintiff Shirley S. Abrahamson properly holds the office of chief justice,” wrote her attorney, Robert Peck of Washington, D.C.
Ordinarily, the court would agree on a system to pick a new chief justice and vote on the matter in person, not by email, Peck wrote.
Dmitry Bam, a professor at the University of Maine School of Law, said the public generally views courts as above the political fray, even
though that’s not always “Historically, the the case.
“This just sort of Wisconsin Supreme
highlights the party Court was regarded
and political leanings as one of the of judges matter,” blue-chip state he said of the
fight over who now judiciaries in the
serves as chief justice. country. Today, the Wisconsin Supreme The matter could Court is like an hurt the court’s public standing for the episode of the ‘Bad
moment, but there News Bears.’ ” may also be value in the public seeing James Sample, a professor at the Maurice A. that the court isn’t Deane School of Law at immune from politics, Hofstra University in New Bam said. York Rick Esenberg,
president of the Wisconsin Institute for Law & Liberty, said of Abrahamson it was “unfortunate she’s so publicly hanging onto this.”
“I suppose it’s another instance where people can make jokes” about the court, he said.
Sample, the Hofstra professor, said the inability to agree on who the chief justice is is the latest sign of the court’s problems. The damage to the court’s reputation in recent years will have long-term effects, he said.
“I can’t even fathom the number of high-caliber Wisconsin lawyers and judges who would otherwise consider a position on the wisconsin Supreme Court who would not even think about it now,” Sample said.
Roggensack issued a statement last week saying she was becoming chief justice and would focus on helping the court better serve the public and improving the court’s reputation.
Who gets the money?
The chief justice makes $155,403 a year, or $8,000 more than the $147,403 the other justices make. Part of Abrahamson’s legal argument rests on the potential loss of pay if she were no longer chief justice.
Roggensack said last week she would donate the extra $8,000 she would make to help pay for legal costs for the poor.
For the moment, it is unclear who will get the higher pay. The next round of paychecks will go out next week.
Abrahamson’s lawsuit is being heard by U.S. District Judge James Peterson, who has twice declined to block the state Supreme Court from choosing a new chief justice while Abrahamson’s case continues.
On Monday, attorneys for five justices and other state officials asked to throw out the case because they said Abrahamson did not have a legitimate claim to the office.