Here & Now

Shirley Abrahamson Suing Over Constitutional Amendment

Frederica Freyberg:

Within 24 hours of a statewide vote to approve changing the state constitution to say the chief justice of the Wisconsin Supreme Court must be elected by fellow justices rather than accruing that position by seniority, the current Chief Justice, Shirley Abrahamson, filed a federal lawsuit contesting it. Attorney Robert Peck of the Center for Constitutional Litigation in Washington, D.C. filed the lawsuit on Abrahamson’s behalf. He joins us now from Washington. Thanks very much for being here.

Robert Peck:

Thank you for having me.

Frederica Freyberg:

Well, now why do you say that Shirley Abrahamson’s constitutional rights are violated? Wasn’t her position just kind of a victim of a law change?

Robert Peck:

Well, that’s the question that the federal court will answer. The fact of the matter is nothing in the constitutional amendment says that it changes the chief justiceship immediately. At the moment there’s no vacancy. And until there’s a vacancy, it’s our position that there’s no election to replace her.

Frederica Freyberg:

And so that’s where the retroactive nature of the amendment change versus prospective, which is what you want. Tell us what you want.

Robert Peck:

Well, what we believe is the law, our reading of both the constitutional amendment that was passed, as well as federal constitution law, means that she gets to finish the term that she was elected to in 2009, which doesn’t end until 2019, And at that point. the constitutional amendment is first implemented to fill that vacancy.

Frederica Freyberg:

Now, and so that is based on the wording of the referendum itself?

Robert Peck:

That’s right. You know, retroactive application of statutes or constitutional provisions is disfavored in the law. And so unless it’s explicit and unmistakably clear that it is to apply retroactively, a constitutional amendment only applies prospectively.

Frederica Freyberg:

And don’t you also, though, say that her constitutional rights are violated, not by the language of the referendum that voters voted on, but by the amendment itself?

Robert Peck:

Yes. That’s right. We contend that she has a constitutionally-protected interest in serving the rest of her term, as was elected by the voters. Voters when they voted on Tuesday were not specifically voting to change the chief justiceship. They were changing the method for selection of chief justiceships in the future.

Frederica Freyberg:

Now, one of the things — yeah. Go ahead.

Robert Peck:

Well, because she has a constitutionally-protected right in the position, based on her election and as well as the voters who supported her have a right to have their votes counted the way they were counted in 2009, that’s why the federal constitutional issue is present.

Frederica Freyberg:

Because there are plaintiffs in your lawsuit that say they voted for Shirley Abrahamson for a ten-year term in 2009, as you say, as chief justice. But wouldn’t they have voted for her regardless of whether or not that was her current title?

Robert Peck:

Well, the fact of the matter is she mobilized her campaign and supporters supported her because election was tantamount to remaining chief justice. That is what was at issue as far as they were concerned.

Frederica Freyberg:

Isn’t it a little bit like saying, though, that people voted for Paul Ryan here in Wisconsin because he was chair of Ways and Means instead of just voting for Paul Ryan, the Republican candidate?

Robert Peck::

There’s nothing in the federal constitution that creates the position of Ways and Means for Paul Ryan just because he was reelected. So it’s not the same at all.

Frederica Freyberg:

A federal judge just yesterday denied your request for a temporary restraining order to block the amendment changing the selection process. Does that mean that this could happen by the end of the month?

Robert Peck:

It does mean that. The fact is that what he did was he said that there was no imminent danger of this being decided by some sort of election until the vote was certified on April 29th. He set a status hearing for April 21st, at which time we will have a final schedule, and he’s promised to decide the question quickly.

Frederica Freyberg:

In the midst of all of this, what has the chief justice expressed to you about the difficulty of the majority on that court apparently having no confidence in her?

Robert Peck:

We have not discussed that at all.

Frederica Freyberg:

You’ve just been on the bare bones issues of constitutional law?

Robert Peck:

That’s all we’ve discussed. We’ve discussed what a proper interpretation of this constitutional amendment is and what constitutional rights are at issue.

Frederica Freyberg:

All right. We leave it there. Robert Peck, we appreciate you joining us from Washington.