{"id":24565,"date":"2015-05-08T14:07:32","date_gmt":"2015-05-08T19:07:32","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=24565"},"modified":"2015-05-08T15:16:56","modified_gmt":"2015-05-08T20:16:56","slug":"the-chiefs-lawsuit","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2015\/05\/the-chiefs-lawsuit\/","title":{"rendered":"The Chief’s Lawsuit"},"content":{"rendered":"

\"220px-Shirley_Abrahamson\"<\/a>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.\u00a0 The reaction to the filing of the complaint in Abrahamson v. Neitzel<\/em>\u00a0<\/a>\u00a0by the\u00a0mainstream media has ranged from viewing the lawsuit as comedy (The Milwaukee Journal Sentinel: \u201cWill the Real Chief Justice Please Stand\u201d<\/em><\/a>) to viewing this latest\u00a0development as part of an ongoing tragedy (The New Yorker: \u201cThe Destruction of the Wisconsin Supreme Court\u201d<\/em><\/a>).\u00a0 However, the legal question at the heart of the Chief\u2019s lawsuit is actually quite interesting.<\/p>\n

Does the new method for selecting a Chief Justice of the Wisconsin Supreme Court take effect in the middle of the sitting Chief Justice\u2019s term, or does it take effect upon the conclusion of the term of the current Chief?<\/p>\n

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.\u00a0 Removing Justice Abrahamson from her current position as Chief would result in the immediate loss of this portion of her salary.\u00a0 Moreover, a mid-term reduction in salary appears to be prohibited by Article IV of the Wisconsin Constitution.<\/p>\n

Article IV, Section 26 of the Wisconsin Constitution states:<\/p>\n

2)\u2002Except as provided in this subsection, the compensation of a public officer may not be increased or diminished during the term of office:<\/p>\n

(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.<\/p><\/blockquote>\n

The Wisconsin Constitution is unusual in that it expressly allows for the decrease of the compensation of judges.\u00a0 Every other state constitution limits the ability of legislatures to reduce judicial salaries or else is silent on the issue.<\/a>\u00a0 As a point of comparison, the U.S. Constitution prohibits the salaries of federal judges from being reduced by Congress during a judge\u2019s term in office.<\/p>\n

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\u2019s term of office.\u00a0 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.\u00a0 There has been no proposal to reduce the salaries of all of the Justices.<\/p>\n

Against this backdrop, the voters of Wisconsin approved a constitutional amendment to Article VII of the Wisconsin Constitution on April 7, 2015.<\/p>\n

The official ballot text was as follows:<\/p>\n

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?”<\/p><\/blockquote>\n

The official explanation statement for the proposed amendment was as follows:<\/p>\n

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.<\/p>\n

A \u201cyes\u201d 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.<\/p>\n

A \u201cno\u201d 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.<\/p><\/blockquote>\n

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.\u00a0 It could become effective immediately upon passage of the constitutional amendment.\u00a0 Alternatively, the new selection process could become effective when the term of the current Chief Justice ends.\u00a0 Either interpretation is possible in light of the amendment\u2019s silence on this topic.<\/p>\n

This matter could have been addressed.\u00a0 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\u2019s term.\u00a0 Twice the Republicans in the legislature rejected the clarification.\u00a0 No reason was given.<\/p>\n

Now the ambiguous issue of when the amendment takes effect has come to the forefront.\u00a0 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\u2019s term.<\/p>\n

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.\u00a0 In contrast, interpreting the amendment to have prospective effect would not contradict Article IV.\u00a0 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.<\/p>\n

Normally, the authoritative interpretation of the Wisconsin Constitution would be a matter for the Wisconsin Supreme Court.\u00a0 However, it is hard to imagine how the current Justices could rule dispassionately on this issue in a state court proceeding.\u00a0 In Abrahamson v. Neitzel<\/em>, 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.<\/p>\n

The position of Chief Justice carries with it an extra $8,000 per year in compensation.\u00a0 There is no explicit language in the amendment which addresses whether the current Chief Justice should be deprived of this compensation.\u00a0 The Wisconsin Constitution places limits on the power of the legislature to reduce judicial salaries in the middle of a term.\u00a0 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.<\/p>\n

The Chief\u2019s 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.\u00a0 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.\u00a0 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\u2019s term, when Article IV of the Constitution suggests the contrary.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 The reaction to the filing of the complaint in Abrahamson v. Neitzel\u00a0\u00a0by the\u00a0mainstream media has ranged from viewing the lawsuit as comedy (The Milwaukee Journal Sentinel: \u201cWill the Real Chief […]<\/p>\n","protected":false},"author":16,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[80,126,68,122,75],"tags":[],"class_list":["post-24565","post","type-post","status-publish","format-standard","hentry","category-constitutional-interpretation","category-constitutional-law","category-judges-judicial-process","category-public","category-wisconsin-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/24565","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/16"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=24565"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/24565\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=24565"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=24565"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=24565"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}