Wisconsin Question 1, Supreme Court Chief Justice Amendment (April 2015)

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Question 1
Type	Amendment
Origin	Wisconsin Legislature
Topic	Judiciary
Status	Approved

The Wisconsin Supreme Court Chief Justice Amendment, Question 1 was on the April 7, 2015 ballot in Wisconsin as a legislatively referred constitutional amendment, where it was approved. The measure provided for the election of the Wisconsin Supreme Court Chief Justice by a majority of the justices serving on the court. The chief justice chosen by the court would serve a two-year term.^[1]

Before Question 1's passage, the Wisconsin Constitution mandated that the chief justice be appointed based on seniority from the pool of seven justices sitting on the Wisconsin Supreme Court. Chief Justice Shirley Abrahamson, at the time, had served as the court's chief justice since 1996. She was considered a liberal, but the court majority was considered conservative, according to the Milwaukee Journal Sentinel.^[2]

Opponents argued that the amendment was a political attack on Chief Justice Abrahamson and that the seniority method was more democratic because it allowed the justice who had been elected by voters the most times to be chief justice, while supporters contended the majority-vote system was more democratic because the justices would decide who would be the head of the court, thereby decreasing conflict among the justices.^[3]

In April 2015, Abrahamson filed a federal lawsuit seeking to block the amendment and any action to remove her from the chief justice's seat. Read the Aftermath section below to learn more about this lawsuit.

Aftermath

On April 8, 2015, the day after the election, Justice Patience Roggensack said the Wisconsin Supreme Court would be meeting "quite soon" to elect a chief justice.^[4] This did not happen, however, until after election results were certified on April 29, 2015.^[5]^[6]

Just hours after election results were certified, the justices voted by e-mail to replace Abrahamson. Justice Patience Roggensack was made chief justice, with Justices Roggensack, Michael Gableman, David Prosser, Annette Ziegler voting to replace Abrahamson.^[7]

Justice Ann Walsh Bradley, who is an Abrahamson ally, cited the lawsuit in federal court to argue the vote was premature:

“	The issue of whether constitutional amendment is to be applied retroactively is currently before a federal judge. Any vote now appears premature. The federal judge states his wish No. 1 would be to get a full decision on the merits before there is an election of a new chief justice. We should honor his directive.^[8]	”
—Justice Ann Walsh Bradley^[7]

Justice Michael Gableman, who voted for Roggensack, cited the same lawsuit to make a case in favor of the vote:

“	Part of the judge's written decision when he denied Chief Justice Abrahamson's request for a temporary restraining order to block the members of the court from voting for a new chief justice reads: 'When and how to implement a duly passed amendment to the Wisconsin Constitution is a question of state law, not federal law.'"^[8]	”
—Justice Michael Gableman^[7]

Abrahamson v. Department of Administration

See also: List of ballot measure lawsuits in 2015

Abrahamson, along with five registered voters, filed a federal lawsuit on April 8, 2015, unsuccessfully seeking to block implementation of an approved amendment to the state constitution that changed how the chief justice was selected. Federal judge James D. Peterson, on July 31, 2015, ruled in favor of the defendant's request for a dismissal. Peterson concluded that there was no compelling reason for federal courts to intervene on a state amendment interpreted by voters.

Timeline:

Question 1, approved on April 7, changed chief justice selection from a seniority system to a process where justices choose a chief for a two-year term. The lawsuit, filed with the U.S. District Court for Western Wisconsin, argued that Abrahamson's rights to due process and equal protection were abridged by the amendment. Her filing sought to block application of the amendment until her term expired in 2019 or she left office prior to that year. Abrahamson filed the suit against the six members of the court, Secretary of State Doug La Follette (D), and State Treasurer Matt Adamczyk (R).^[9]^[10]

The filed complaint stated:

“	Should the new method of selecting a chief justice be put into immediate effect before the expiration of Chief Justice Abrahamson’s current term and a new chief justice selected, the term of the current, elected chief justice will be disrupted, her constitutionally protected interest in the office of chief justice will be impaired, the votes of her supporters will be diluted and the results of the 2009 election undone long after-the-fact, while the Wisconsin court system’s leadership will become unsettled. The retroactive application of the new amendment raises profound issues of Due Process and Equal Protection under the Fourteenth Amendment to the Constitution of the United States.^[8]	”
—Shirley Abrahamson et al. v. Department of Administration^[11]

The five registered state voter plaintiffs all listed the following as their complaint:

“	The challenged amendment if construed as applicable to Chief Justice Abrahamson and given retroactive effect dilutes the value of his vote and upsets his settled expectations by limiting the term of the candidate he successfully supported in the 2009 election.^[8]	”
—Shirley Abrahamson et al. v. Department of Administration^[11]

Abrahamson, who served as chief justice from 1996 until fellow justices voted for her replacement on April 29, also sought a restraining order against her fellow justices, which would have prevented a vote to remove her as chief. Judge James Peterson rejected the request for a temporary restraining order on April 9, opting to wait until a hearing on April 21 to evaluate Abrahamson's filing in light of testimony from defendants.^[12]^[13] Abrahamson and other plaintiffs did not contact the defendants about the restraining order application prior to the filing, which is a requirement of Federal Rules of Civil Procedure (FRCP) Rule 65.^[14]

Supreme Court Justice Ann Walsh Bradley decided to defend herself in the lawsuit, breaking with her five colleagues. The other five justices were defended by former Deputy Attorney General Kevin St. John, who was paid $300 an hour by the state, although his contract was capped at $100,000.^[15]

On April 21, Judge Peterson declined to block the amendment from going into effect while the lawsuit was pending. He claimed there would be no "irreparable harm" if Abrahamson was temporarily removed from her position. However, he warned the other justices not to replace her too quickly, saying, "The state would be well-served to have as few changes in chief justice as possible."^[16] On May 15, the judge refused to fulfill a request from Abrahamson to stop the court from electing a new chief justice. Peterson contended that recently elected Chief Justice Patience Roggensack had not proposed any radical changes to the court's structure; thus, there would be no harm in allowing Roggensack to be chief justice while the case moved forward.^[17]

On July 31, 2015, Judge Peterson ruled in favor of the defendant's request for a dismissal. Peterson concluded that there was no compelling reason for federal courts to intervene on a state amendment interpreted by voters. In his ruling, Peterson stated:

“

Constitutional provisions are drawn with broad strokes ... There is no requirement that a state, in restructuring its government or the powers and duties of its officials by means of a constitutional amendment, do so with super-clarity to protect the interests of the officials or voters whose interests might be impaired.

Unless its actions are plainly unconstitutional, Wisconsin has the authority and autonomy to restructure its government without interference from the federal government. ^[8]

”

—Milwaukee Journal Sentinel, (2015), ^[18]

Responses

Brandon Scholz, an organizer of the pro-amendment group Vote Yes for Democracy, made the following statement in response to the lawsuit:

“

I find it surprising that someone who has served as long as Justice Abrahamson has, for what would appear to be self-serving reasons, files the lawsuit in federal court against the will of the people.^[10]^[8]

”

Both the Milwaukee Journal Sentinel and Beloit Daily News called on Abrahamson to drop the lawsuit.^[19]^[20] The Capital Times editorial board, on the other hand, backed Abrahamson's lawsuit.^[21]

On April 14, 2015, members of Citizens for Responsible Government, a political action committee, asked the court to allow it to intervene in the case. The group argued against the validity of Abrahamson's lawsuit and sought to have the case thrown out. David Rivkin, an attorney for those asking to intervene, contended, "The office of chief justice of the Supreme Court of Wisconsin is not Justice Abrahamson's personal property. It belongs to the people of Wisconsin, and their will is clear."^[22]

Election results

Wisconsin Question 1
Result	Votes	Percentage
a Yes	433,533	53.00%
No	384,503	47.00%

Election results via: Wisconsin Government Accountability Board

Text of measure

Ballot title

The official ballot text was as follows:^[23]

“

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?"^[8]

”

Ballot summary

The official explanation statement was as follows:^[24]

“

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.^[8]

”

Constitutional changes

See also: Article VII, Wisconsin Constitution

Question 1 amended Section 4 of Article VII of the Constitution of Wisconsin. The following ~~struck-through~~ text was deleted and the underlined text was added by the measure's approval:^[1]

Section 4 (2) The justice having been longest a continuous member of said court, or in case 2 or more such justices shall have served for the same length of time, the justice whose term first expires, shall be the chief justice. The chief justice of the supreme court shall be elected for a term of 2 years by a majority of the justices then serving on the court. The justice so designated as chief justice may, irrevocably, decline to serve as chief justice or resign as chief justice but continue to serve as a justice of the supreme court.^[8]

Election background

Background on chief justice selection

Wisconsin was one of eight states, at the time of the election, that used the seniority system to select chief justices for their supreme courts according to the state Legislative Reference Bureau. This selection method became part of the Wisconsin Constitution in 1889, when voters opted for seniority over a dedicated seat for the chief justice. The chief justice seat was established by the Wisconsin State Legislature in 1852 and lasted until the 1889 amendment. Wisconsin voters amended the constitution again in 1903 to expand the court to seven members, and Question 2, a 1977 amendment, allowed the longest-serving justice to decline the chief justice's office.^[25]

The next significant effort to change the seniority system came in 1985 with a proposal by state Sen. Gary George to allow justices to elect their chief. George sponsored 1985 Senate Joint Resolution 80, which called for election of the chief to a four-year term by fellow justices. This proposed amendment did not pass through the senate and the effort was left aside until 2011. Sen. Rich Zipperer and Rep. Tyler August proposed joint resolutions in the senate and assembly, respectively, calling for election of a chief justice following the inauguration of any new justice. Both resolutions failed to pass and August's 2012 resolution also failed to make it out of the state house.^[25]

Question 1's origins began with Sen. Tom Tiffany and Rep. Rob Hutton, who proposed joint resolutions in the senate and assembly in October 2013. Both measures proposed a two-year term for chief justices with a limit of three terms. Sen. Mary Lazich's amendment removed the three-term limit, and 2013 Senate Joint Resolution 57 was passed.^[25] Amendments referred by the legislature must pass two successive sessions of the legislature, which was achieved when Senate Joint Resolution 2 was passed in January 2015. Twenty-two states selected their chief justices by votes of current justices prior to passage of Question 1.^[26]

Targeting Abrahamson

See also: Political outlook of state supreme court justices, 2012

Chief Justice Shirley Abrahamson

One of the central arguments for opponents of the amendment was that the measure's goal was to rid the "liberal" Shirley Abrahamson of her position as chief justice. They contended that the Republican-controlled Wisconsin Legislature was attempting to empower the conservative-majority court to select a "conservative" Chief Justice.^[2] Former Mississippi Justice Oliver Diaz, commenting on the debate in Wisconsin, noted, "Of course, this is about getting rid of one justice. If it wasn’t, they would grandfather in sitting justices or not have the law take effect mid-term."^[27] Rep. Gary Hebl (D-46) commented, "Clearly, this is going against Shirley."^[28] Lisa Kaiser, assistant editor at the Milwaukee-based newspaper Shepherd Express, summed up the opposition's concerns:

“	The proposed amendment is widely seen as an attempt to reduce the power of Chief Justice Shirley Abrahamson, who has served as chief since 1996. Abrahamson frequently dissents from the conservative majority and has at times issued blistering critiques of their decisions. For example, Abrahamson was a strong critic of the conservative justices’ decision to shred the state’s open meeting law in an effort to justify the way the Republican Legislature passed Act 10, the 2011 law busting public employee unions. And Prosser, a former Republican legislative leader who is now viewed as the leader of the conservative wing of the Supreme Court, famously called Abrahamson a “total bitch” and threatened to “destroy” her. At the same time, most court watchers, both Democrats and Republicans, agree that Justice Abrahamson is without question the smartest member of the Supreme Court and a fair chief justice.^[8]	”
—Lisa Kaiser^[29]

Adam Bonica and Michael Woodruff, political science professors at Stanford University, attempted to determine the partisan ideology of state supreme court justices in their paper, State Supreme Court Ideology and 'New Style' Judicial Campaigns. A score above 0 indicated a more conservative leaning ideology while scores below 0 are more liberal. Abrahamson received a Campaign finance score (CFscore) of -1.29, indicating a liberal ideological leaning. Abrahamson was more liberal than the average CF score of 0.42 that justices received in Wisconsin. Of the seven supreme court justices on the bench in 2012, Abrahamson was deemed the most liberal, followed by Justice Ann Bradley. The other fives justices were all considered "conservative" in the study. At the time, the Wisconsin Supreme Court was the 11th most conservative state supreme court in the nation, while Chief Justice Abrahamson was the 12th most liberal supreme court justice.^[30]

The following table lists the seven Wisconsin Supreme Court justices and their ideology scores:^[30]

State Supreme Court Ideology
State	Justice	Ideology Score
Wisconsin	Shirley Abrahamson	-1.29
Wisconsin	Ann Bradley	-0.39
Wisconsin	Patrick Crooks	0.59
Wisconsin	Patience Roggensack	0.67
Wisconsin	Annette Ziegler	1.25
Wisconsin	David Prosser	0.77
Wisconsin	Mike Gableman	1.35

Timeline for vote certification, court session

Political observers in the Badger State waited on certification of the vote as well as the justices' decision on the chief's seat with approval of Question 1. Wisconsin Statute 7.70 requires the official canvass of votes for a spring election to be completed by the 15th day of May following the election.^[31] The next meeting of the canvassing board following the election was April 29.^[32] In 2014, state election officials completed canvassing of votes on an approved amendment for transportation funds by April 24.^[33] In the 2013 spring election, state canvassers certified results on April 23, while the 2011 election was not certified until May 23 due to a recount.^[34]^[35]

The wording of the measure did not address limits on when the justices could elect a new chief justice, leaving unanswered the question of a timeline for Question 1's use. The last day of the 2014-2015 court calendar was June 30, 2015.^[36]

Court composition

Wisconsin's supreme court justices are elected in nonpartisan elections. However, there is currently a 4-3 conservative majority on the court based on support during elections and decisions in cases. Justice N. Patrick Crooks is considered a swing vote in some cases, bringing the ideological balance to 4-2 with one outstanding vote. Ann Walsh Bradley is typically considered a liberal member of the court.^[37]^[38]

Current justices

A blue dot denotes a liberal leaning justice and a red dot denotes a conservative leaning justice.

Margin of victory analysis

A University of Minnesota analysis of supreme court races in Wisconsin found that incumbents were defeated in only six of 95 re-election campaigns between 1852 and 2011.^[39] The following table details the margins of victory for supreme court races dating back to 2005:

Court race competitiveness, 2005-2013
Year	Winning candidate	Ideological lean	Percent of vote	Losing candidate	Ideological lean	Percent of vote	Margin of victory	Majority
2013	Patience Roggensack (incumbent)	Conservative	57.5%	Ed Fallone	Liberal	42.5%	15%	4-3
2011	David T. Prosser (incumbent)	Conservative	50.2%	Joanne Kloppenburg	Liberal	49.7%	0.5%	4-3
2009	Shirley Abrahamson (incumbent)	Liberal	59.6%	Randy Koschnick	Conservative	40.2%	19.4%	4-3
2008	Michael Gableman	Conservative	51.1%	Louis Butler (incumbent)	Liberal	48.5%	2.6%	4-3
2007	Annette Ziegler	Conservative	58.6%	Linda M. Clifford	Liberal	41.1%	17.5%	4-3
2006	N. Patrick Crooks (incumbent)	Liberal	99.4%	Write-in	-	0.6%	98.8%	4-3
2005	Ann Walsh Bradley (incumbent)	Liberal	99.6%	Write-in	-	0.4%	99.2%	4-3

Support

The campaign in support of the amendment was led by Vote Yes for Democracy.^[40]^[41]

Supporters

Officials

A number of legislators voted to place the amendment on the ballot, including 62 representatives and 17 senators in 2015. A full list of legislators by how they voted on the amendment can be found here.

The following state senators sponsored the amendment:^[42]^[43]

The following state representatives sponsored the amendment:^[42]^[43]

Other officials who supported the amendment included:

Judge Daley ran against Justice Bradley for a seat on the Wisconsin Supreme Court in the election on April 7, 2015.

Former officials

The following former legislators sponsored the amendment:^[42]

Former justices

Former Supreme Court Justice Jon Wilcox^[46]
Former Supreme Court Justice Louis J. Ceci^[47]
Former Supreme Court Justice William G. Callow

Organizations

Wisconsin Manufacturers & Commerce^[48]
Wisconsin Family Action^[49]

Arguments

Former Supreme Court Justices Jon P. Wilcox, Louis J. Ceci and William G. Callow co-wrote an opinion article in support of the amendment. The three justices argued:

“	Did you know that Wisconsin is one of only five states that select its chief justice based on seniority alone? In 22 states, the chief justice is selected by his or her fellow justices. This permits the court to work in a more collegial fashion than the Wisconsin Supreme Court is permitted to do.^[8]	”
—Jon P. Wilcox, Louis J. Ceci and William G. Callow^[47]

Don Huebscher, editor of the Eau Claire Leader-Telegram, concluded the "world isn’t going to end whichever way this vote goes," but also argued that a "yes" vote was preferable. He wrote:

“

... Proponents of the change say a peer vote would make the court more congenial. That would be welcome given the rancor that has embarrassed the court and the state in several episodes in recent years, although it’s debatable whether having someone other than Abrahamson as chief justice would have made any difference...

It’s hard to have strong feelings either way. But if the referendum passes, perhaps the two sides can collaborate and agree to promote someone both sides see as a strong leader who respects all voices on the court, be that Abrahamson or someone else.

Besides, we all know that what goes around comes around in politics, and labels aside, this is about politics. So if and when the liberal bloc regains control of the court, those justices will hold sway in picking their leader.

It’s hard to argue that the person on the court the longest is the most qualified to be chief justice, so what’s the harm of letting the justices pick their leader? It’s not as if that person gets two votes or wields some other extraordinary powers.

Another plus might be that whomever the conservative bloc picks would have to lead with dignity and respect for the body or risk being ousted two years hence. If nothing else, the bi-annual vote would bring a bit more attention to a body that most people know far too little about.^[8]

”

—Don Huebscher^[50]

Other arguments in support of the amendment included:

Rock County Circuit Court Judge James Daley contended, "The disadvantage of the system is that chief judge`s position is a position of power. Sets the agenda, controls the budgets, controls all the communications for the judicial branch. A lot of the public dysfunction we’ve seen on the Supreme Court would go away as soon as the chief justice position becomes accountable to the other six."^[51]
Rep. Rob Hutton (R-13) argued that the amendment would allow for a more democratic system of choosing the supreme court chief justice. He elaborated, "It not only minimizes the politics but it introduces more collaboration and cohesion."^[2]
Sen. Scott Fitzgerald (R-13) labeled the amendment a "common-sense measure." He said, "For me, it's kind of a no-brainer. You have to remember, that one person has control over the entire judicial branch of government in our state. Because of that, I think we can make the case that it's [the amendment] a good thing to do."^[52]

Opposition

The campaign in opposition to the amendment was led by Make Your Vote Count and Fair Courts Wisconsin.^[41]