Abrahamson’s Suit Has Strong Legal Argument

Language of state constitution suggests the switch in chief justices must wait until her current term ends.

By - May 11th, 2015 01:51 pm
Shirley Abrahamson,

Shirley Abrahamson,

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.

Any interpretation that the amendment has an immediate effect would seem to contradict Article IV which prohibits salary reductions in the middle of a term.  In contrast, interpreting the amendment to have prospective effect would not contradict Article IV.  Under these circumstances, the appropriate response would seem to be to interpret the amended Section VII, which is silent as to its effective date, in such a way as to avoid a conflict with another part of the Constitution.

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.

Categories: Politics

44 thoughts on “Abrahamson’s Suit Has Strong Legal Argument”

  1. TF says:

    One of the frustrating things about this issue has been the decision of outlets as varied as M.D. Kittle and the Journal Sentinel editorial board to paint Abrahamson’s lawsuit as frivolous. Her claims are arguably correct, and Judge Peterson warned her colleagues that the fewer the changes in the chief justice’s office, the better. Thanks to Professor Fallone for elucidating Abrahamson’s points, especially pertaining to the salary issue. The right to litigate, thankfully, is not reserved to the good Senator from Oshkosh and his allies at the Club for Growth.

  2. AG says:

    Are there any articles that specifically state that the term of the chief justice should coincide with the term of the Justice themselves? I’d imagine if the Chief Justice steps down or does not run for re-election that the new Chief Justice would take the job immediately.

    Another consideration is whether that idea of a Chief Justice term in office is separate from the term of the Justice them self. If that’s the case, the term for compensation could only apply to their term spent as Chief justice and reverts to their regular salary there after.

    Finally, should they decide, could she be compensated the extra salary for her remaining term in order to avoid the debate altogether?

  3. Patrick says:

    This is not a good argument. Deciding what the state constitution should mean has no place in federal court. That is for the state courts.

  4. Paul says:

    The people have spoken that they wanted the Chief Judge elected, she was never elected to that position.

  5. Jon says:

    As one of our Founding Fathers said “The masses are asses”.

    As it has been reported, most of the “people” who voted for it didn’t understand what they were voting for and picked “yes” cause it seemed to be the best alternative.

    Any educated person would come to the conclusion that the Supreme Court is not a democracy and should not be.

    If the people did not want Abrahamson to be chief justice they would have not reelected her.

    The amendment was a means where the radical right wing legislators thwarted the will of the people and upset the system of checks and balances by the legislature interfering with function of the judiciary.

    On that basis alone the amendment should be declared UNCONSTITUTIONAL

  6. WiG says:

    With all due respect, this is another case of conservatives being intentionally thick and misleading — and changing the rules — to get their way. When the pendulum swings, and it always swings, watch how they complain that their person isn’t in the leadership role. Boo hoo hoo.

    If it’s a matter of democracy, why can’t the vote of whom the chief justice should be go to the populace at large? Will the conservatives support that? Ask them — and see how much they actually support democracy.

  7. Judy says:

    Only 18% of the electorate showed up for this election, and only 52% of that minority voted to amend the Constitution. Rough math says that about 10% of the electorate approves of the amendment, the other 90% either against it or indifferent. So how does that make “the people have spoken” in any meaningful sense?

  8. Paul says:

    Jon, it was a very simple question, who couldn’t understand it.
    Judy, So only elections where 100% of the people vote count?

  9. PMD says:

    My wife didn’t get it. She asked me to explain it to her before she voted. My wife is not dumb. My parents asked me about it after they voted and said they didn’t really understand it fully either. My parents are not dumb.

    It’s fine if someone believes this is a better way for a state to elect its Supreme Court Chief Justice. Many other states do it this way. But let’s not pretend that this wasn’t the GOP throwing a hissy fit because they don’t like Shirley. This doesn’t happen if say Prosser was the Chief Justice. They are crybabies.

  10. Paul says:

    PMD, you threw me a meatball, but I’ll give you a pass on this one.

  11. PMD says:

    Are you hinting that my loved ones are stupid Paul?

  12. Paul says:

    PMD, so you’re saying your parents voted not knowing what was on the ballot? Sample ballots are online and also printed in the paper, this was talked about for weeks on the radio and on the news.

  13. PMD says:

    My wife and parents are casually interested in politics Paul. They don’t listen to talk radio or watch much news. They don’t follow politics or elections as closely as some people here do. My wife saw a TV spot for the Shirley amendment and asked me to explain it to her, saying she didn’t fully get what it was about. I talked to my parents on voting day after they both voted, and they asked me a similar question, wondering if what they suspected the amendment was about was accurate. They were seeking clarification. You can’t tell me that this is unusual. Not everyone has the time or desire to study up on every candidate or amendment. But my wife and parents are not stupid Paul. I hope you aren’t suggesting otherwise. I don’t think much of you, but I hope you wouldn’t stoop that low.

  14. Kyle says:

    PMD, allow me to translate: “low information voter” is a used as a euphemism for stupid (and Democrat). I doubt Paul would ever be so crass as to use the word stupid, even if he is willing to chuckle to himself that you’d tell a story that they voted without fully understanding why Paul and talk radio are correct.

    That being said, I’m a little curious which of your family is off limits and which is not. You’ve said some pretty awful things about your family in the past. That might have always been your in-laws though…

  15. PMD says:

    I have never said anything “awful” about my wife or parents Kyle.

    I am familiar with “low information voter,” but I appreciate your condescension. I’d expect nothing less. I find it hard to believe that every Republican voter had a full understanding of the Shirley amendment, nor do I know how my parents voted. They are moderates who have voted for both parties in the past and I didn’t ask them how they voted on the Shirley amendment.

  16. Kyle says:

    You have used your in-laws’ involvement in the tea party as proof that the tea party has always been far right wing and never bipartisan. I hope you’ll forgive me for not tracking your entire family tree with a naughty/nice list. I will admit that “awful” is probably the wrong term, but

    And I intended for my condescension to split equally between Paul thinking he was taking a high road by mentioning that he was taking a high road and your feigned hurt that your family might be insulted on the internet. I don’t expect every voter to be indoctrinated with information before heading to the polls. I would appreciate if people would form an opinion ahead of time, but I figure that usually gets cancelled out pretty well by people on both sides.

  17. Kyle says:

    I have no idea what happened to the end of my sentence in that last comment. I would fix it, but

  18. PMD says:

    I did use anecdotal evidence to dispute the claim that the tea party started out as a bipartisan initiative. I stand by that based on the rallies by father-in-law attended back in 2008/2009, which if I remember correctly is when the tea party movement started. It’s not like someone couldn’t disagree with me, but that’s what I believe.

    I would appreciate that too, Kyle, and I’m sure it does get cancelled out in the end.

  19. PMD says:

    Can I guess the end?

    I will admit that “awful” is probably the wrong term, but I think swell isn’t quite right.

    Am I close?

  20. Paul says:

    PMD, back to your comment #13 you said something about that it’s not to unusual for people to vote without researching the candidates or the issues. That is the problem, if you’re to lazy to get a basic understanding of what’s on the ballot, why are you voting, and that goes for both sides.

  21. TF says:

    Paul, if you’ve been deluged with misleading advertisements acting as if Shirley Abrahamson is the reincarnation of King George III, well you might be easily swayed to vote “yes.” I think the fault lies in those who peddle misinformation, not those who buy it.

  22. Paul says:

    TF, that’s why I said to do your research; get as much information as possible before you vote.

  23. TF says:

    @Paul: you make a reasonable point. Sometimes, one wishes for an appointed judiciary, but I suppose that wouldn’t be much better in the long run.

  24. Judy says:

    Paul, that’s not what I said. To put it another way, when a ballot proposal gains 10% of the electorate’s vote, the proponents of that proposal cannot claim a mandate from the people, whether or not they can claim an electoral victory.

  25. Paul says:

    Judy, the people that cared enough about the issue voted on it, those that didn’t care or weren’t informed sat it out, although reading some comments here the uninformed still voted

  26. Tim says:

    Judy, in the next election that these people lose… they’ll say there wasn’t a mandate for whatever reason. Then, back when they win, will call even a 10% turnout a mandate again.

    You can’t convince these type of people on facts, you have to outvote them.

  27. PMD says:

    It isn’t unusual Paul. You must know single-issue voters. I know several of them. The issue is abortion. It’s all they care about. No other issue really matters and they are very much “low information voters.” I’m sure you can guess which party they vote for. You must think those people are pretty stupid.

    I think many people do try to stay informed and care very much about voting, but they might fall a little short sometimes (especially in elections without major, high-profile races like president and/or governor).

  28. Paul says:

    PMD, for once I agree with you, those people that only vote for those that support abortion and don’t care about any other issues are low information voters. I’m not going to go as far as you and call them stupid though.

  29. PMD says:

    I didn’t call them stupid, but glad we found some common ground. I knew it was possible and never gave up hope.

  30. PMD says:

    And I was talking about pro-life voters, but I’m sure you know that.

  31. Jon says:


    A simple question would have been: Currently the voters of Wisconsin choose the Chief Justice of the Wisconsin Supreme Court through re-election of justices. We are not confident that the people of Wisconsin are smart enough to choose a Chief Justice. We think that the supreme court should be politicized so that one political party can control all three branches of government and therefore pass abusive laws that discriminate.

    By voting “Yes” for this amendment you are agreeing that you too stupid to choose the Chief Justice and need to be led like a sheep to the slaughter .

    The result of the referendum would have been different.

  32. Paul says:

    Jon, show us on the ballot where it states that anyone is running for Chief Justice.

  33. Jon says:


    I am just trying to point out that if the true intent of the amendment had been stated instead of the legislative “weasel words” that say nothing in a lot of words, people wouldn’t have been so quick to vote yes.

    Of course the Chief. Justice demotion wasn’t on the ballot because then the voters would know it was just another part of the grand conspiracy to establish a rogue government in Wisconsin compliant to the whims of the cartel of billionaires bent on the overthrow of any democracy in America.

  34. Paul says:

    Jon, there were no weasel words it was plain and simple.

  35. PMD says:

    You are really dug in here Paul. Partisanship has blinded you.

    I wonder how many state residents can name say two state supreme court justices? Even people who closely follow the news and try to stay informed, do they really pay close attention to the state supreme court, who its members are, how it’s functioning, how the chief is chosen?

  36. Paul says:

    PMD, it’s easy to be “dug in” when you are right.

  37. PMD says:

    It’s also easy to be dug in when you’re so partisan you reflexively dismiss every other argument regardless of the argument’s validity.

    But as someone with an opposing viewpoint, I’m genuinely curious to know what you think about my earlier questions. Let’s ignore the wording of the referendum for a second. Do you believe that even generally well-informed voters pay close attention to the state supreme court? That they are well-versed in how it has been functioning in recent years?

  38. Paul says:

    PMD, if someone isn’t well informed on an issue, they shouldn’t be voting on it. The uninformed voter will believe the last commercial they have seen or a bumper sticker slogan they have heard. Are you ignoring the wording because there are no “weasel words” in it like Jon claimed?

  39. PMD says:

    Yes many uninformed voters probably do believe the last attack ad they heard. I’m guessing that was true in this instance. A 2012 poll found that nearly two-thirds of Americans can’t name a single Supreme Court justice (http://usnews.nbcnews.com/_news/2012/08/22/13413900-nearly-two-thirds-of-americans-cant-name-a-single-supreme-court-justice-can-you?lite). If that’s true, how many can name a single State Supreme Court justice? If they can’t even name a single justice, how likely is it that they are aware of the inner workings of the court and how it elects its Chief Justice? It’s highly likely that many people voted “YES” without a full understanding of the referendum.

  40. Paul says:

    And just as likely that many voted no without a full understanding of what they were doing. And we have a President that wants mandatory voting, makes you question his intentions.

  41. PMD says:

    Yes no doubt there were “low information voters” voting Yes and No. I agree.

    I’m sure people like you find a conspiracy in every single thing he says.

  42. Paul says:

    So do you agree that those that are uniformed should refrain from voting?

  43. PMD says:

    Like I believe Kyle alluded to above (sorry if I’m wrong on this Kyle), it would be wonderful if everyone who voted educated themselves on the issues and cast informed votes. But even this is a partisan issue right? People on the left and right complain about “low information voters” because they want everybody to vote for their preferred candidates, and when that doesn’t happen, partisans on both sides often claim an uninformed electorate is to blame.

  44. Paul says:

    Kyle stated in comment 14 that “low information voter” is a euphemism for stupid (and Democrat) . And as I stated uninformed people vote on both sides, it’s not a partisan issue for me.

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