Abrahamson’s Suit Has Strong Legal Argument
Language of state constitution suggests the switch in chief justices must wait until her current term ends.
A lawsuit filed in federal court by a sitting Chief Justice of a state Supreme Court against her colleagues is certainly unusual, if not unprecedented. The reaction to the filing of the complaint in Abrahamson v. Neitzel by the mainstream media has ranged from viewing the lawsuit as comedy (The Milwaukee Journal Sentinel: “Will the Real Chief Justice Please Stand”) to viewing it as part of an ongoing tragedy (The New Yorker: “The Destruction of the Wisconsin Supreme Court”). However, the legal question at the heart of the lawsuit by Chief Justice Shirley Abrahamson is actually quite interesting.
Does the new method for selecting a Chief Justice of the Wisconsin Supreme Court, approved in a state referendum, take effect in the middle of the sitting Chief Justice’s term, or does it take effect upon the conclusion of the term of the current Chief?
Complicating the issue is the fact that an $8,000 salary differential exists between the position of Chief Justice and the other six Justices on the Court. Removing Justice Abrahamson from her current position as Chief would result in the immediate loss of this portion of her salary. Moreover, a mid-term reduction in salary appears to be prohibited by Article IV of the Wisconsin Constitution.
Article IV, Section 26 of the Wisconsin Constitution states:
2) Except as provided in this subsection, the compensation of a public officer may not be increased or diminished during the term of office:
(a) When any increase or decrease in the compensation of justices of the supreme court or judges of any court of record becomes effective as to any such justice or judge, it shall be effective from such date as to every such justice or judge.
The Wisconsin Constitution is unusual in that it expressly allows for the decrease of the compensation of judges. Every other state constitution limits the ability of legislatures to reduce judicial salaries or else is silent on the issue. As a point of comparison, the U.S. Constitution prohibits the salaries of federal judges from being reduced by Congress during a judge’s term in office.
However, while permitting a reduction in salary, the language of Article IV, Section 26 in the Wisconsin Constitution is clear that when any decrease in salary is enacted, it must take effect at the end of the public officer’s term of office. The language of Subsection (a) creates an exception for circumstances where salaries are reduced across the board for all of the Justices on the Supreme Court. There has been no proposal to reduce the salaries of all of the Justices.
Against this backdrop, the voters of Wisconsin approved a constitutional amendment to Article VII of the Wisconsin Constitution on April 7, 2015.
The official ballot text was as follows:
Question 1: “Election of chief justice. Shall section 4 (2) of article VII of the constitution be amended to direct that a chief justice of the supreme court shall be elected for a two-year term by a majority of the justices then serving on the court?”
The official explanation statement for the proposed amendment was as follows:
The Wisconsin constitution currently provides that the chief justice of the Wisconsin Supreme Court is its longest-serving member. The proposed constitutional amendment would instead select the chief justice through an election by a majority of the justices then serving on the Court.
A “yes” vote on this question would mean that the chief justice shall be elected for a term of two years by a majority of the justices then serving on the Wisconsin Supreme Court. The justice who is elected may decline to serve as chief justice or resign the position, but still continue to serve as a justice of the Wisconsin Supreme Court.
A “no” vote would mean that the longest-serving member of the Wisconsin Supreme Court serves as chief justice of the Court. The justice designated as chief justice may decline to serve as chief justice or resign the position, but still continue to serve as a justice of the Wisconsin Supreme Court.
As should be obvious, the language of the amendment does not specify when the new method of selecting a Chief Justice is to become effective. It could become effective immediately upon passage of the constitutional amendment. Alternatively, the new selection process could become effective when the term of the current Chief Justice ends. Either interpretation is possible in light of the amendment’s silence on this topic.
This matter could have been addressed. Twice the Democrats in the Wisconsin Legislature attempted to add language to the amendment that would have clarified that the new method of selecting a Chief Justice would take effect upon the completion of the current Chief’s term. Twice the Republicans in the legislature rejected the clarification. No reason was given.
Now the ambiguous issue of when the amendment takes effect has come to the forefront. This is because the Chief Justice has filed a lawsuit in federal court seeking to prevent her colleagues from taking action to select a new Chief Justice until the end of Justice Abrahamson’s term.
Normally, the authoritative interpretation of the Wisconsin Constitution would be a matter for the Wisconsin Supreme Court. However, it is hard to imagine how the current Justices could rule dispassionately on this issue in a state court proceeding. In Abrahamson v. Neitzel, the Chief Justice seeks a federal court ruling that removing her from office would deprive her of property without due process of law in violation of the United States Constitution.
The position of Chief Justice carries with it an extra $8,000 per year in compensation. There is no explicit language in the amendment which addresses whether the current Chief Justice should be deprived of this compensation. The Wisconsin Constitution places limits on the power of the legislature to reduce judicial salaries in the middle of a term. Judicial salaries are set by law and cannot be altered without legal authority. In the absence of any legal authority, there is no question that the current Chief Justice has a constitutionally protected property interest in receiving her full salary for the remainder of her term.
The Chief’s lawsuit argues that, by choosing an interpretation of the amendment that operates to deprive her of a portion of her salary, when the language of the amendment does not expressly require such a result, state officials would be depriving her of her property without due process of law. Some commentators, including several who might normally be expected to craft paeans to the sanctity of property rights, have urged the Chief to drop her lawsuit out of deference to the democratic will of the people. However, these appeals beg the question of whether the voters actually intended the new selection process to take effect in the middle of the Chief’s term, when Article IV of the Constitution suggests the contrary.
Ed Fallone is an associate professor of law at Marquette University Law School.