Will the lawsuit against the Chief Justice amendment succeed?

At Right Wisconsin, I have a preliminary analysis of Chief Justice Shirley Abrahamson's attempt to block the change to the manner in which the Chief Justice of our Supreme Court is selected. There are multiple claims but I think it helps to see them as falling into two categories.

First, she argues about what the amendment means. She claims that it does not apply until her current term expires. To make it apply now, she says, would be a "retroactive" application. There is a presumption against retroactive application of new laws (that's true) and the amendment, she argues, does not clearly say that it applies immediately. She even goes so far to suggest that voters "were not told" and "did not understand" that it might displace her as Chief Justice before the expiration of her current term.

This argument is beset with problems. First, the amendment does not operate "retroactively." It goes into effect on the day that the election results are certified and changes designation of the Chief Justice from that day forward, i.e., it operates prospectively. Normally, we thing of a retroactive law as one that  imposes new consequences for past behavior or that disturbs vested rights or relationships. (More on that later.) It does not mean that one has the right to believe that the law will not change for some given period of time.
In fact, if application of the amendment to the incumbent Chief Justice is "retroactive," it is unclear why it would no longer be so once the incumbent's current term expires. If a prospective application requires the existence of a vacancy in the office of the Chief Justice, there will be none until the incumbent either relinquishes the office or leaves the Court. In other words, the argument proves too much.

Second, while there is a presumption against retroactive laws, there is no per se prohibition of retroactivity. (Retroactive application can cause other problems but we'll get to that.) It seems clear that the law was intended to change selection of the Chief Justice immediately. There is no "grandparent" provision. The legislature declined to insert one. The selection method is not conditioned upon  a vacancy or the completion of a term; it requires a new selection every two years.

It is simply not true that "no one thought" that the amendment could displace the current Chief Justice. In fact, voters were repeatedly told not only that it would do so, but that this was its sole purpose. Proponents of the amendment denied the latter, but not the former.

In any event, I wonder if the federal court will want to reach this question. The ultimate authority on the meaning of the amendment resides with state courts. While federal courts can address state law questions when that is necessary to resolve federal claims, they often, under certain circumstances, defer to state courts to first construe the state law in question. That could happen here in two difference ways. If someone were to file a state court action raising the issue, the federal court might choose to abstain. Alternatively, the federal court might request the Wisconsin Supreme Court to construe the amendment. While this might be awkward for the Supreme Court, it is not impermissible.

There is a third possibility. The federal court might find the federal claim - a constitutional challenge that we have not yet discussed - to be wholly without merit. In fact, it should do so - the claim is close to frivolous. If it dismisses that claim, it should probably dismiss the request to decide whether the law applies during Chief Justice Abrahamson's current term. That is a state law question over which federal courts have no jurisdiction. While there is a concept called supplementary jurisdiction that sometimes permits such claims to be heard, this does not seem like a good case for its application.

So what about that constitutional challenge? The complaint alleges that, if the amendment applies during Chief Justice Abrahamson's current term, it violates the federal constitution. The principal argument is that the Chief Justice has a property interest in being the Chief Justice which is being deprived without due process.  But there are some old U.S. Supreme Court cases that say that an elected official, unlike other public employees, has no property interest in his or her office.

If you argue that these cases are outdated or establish only a "default" rule, controlling doctrine makes clear that you must identify a state law source for the claim that the Chief Justice has an entitlement to her position. She can't do that. Nothing in Wisconsin law ever created such an entitlement (a fixed term of office does not do that). Moreover, state law - indeed the state Constitution - was just amended to make clear that there is no such entitlement. A duly enacted constitutional amendment is not a due process violation.

The complaint goes on to argue that the voters who elected her in 2009 were denied due process and equal protection of the law because their election of her "as Chief Justice" has been frustrated. It is, of course, a complete fiction that she was elected "as" Chief Justice. She simply stood for election to the Court. We don't elect the Chief Justice in Wisconsin. That voters knew she was Chief Justice and would remain so unless the law changed is not the same as electing her to that position. It is true that she ran aggrandizing ads referring to herself as "Wisconsin' Chief," but the purpose of those was to elevate her over her opponent, not to ask voters whether she should continue in that role as well as remain on the Court. No voter has ever elected her - as opposed to her colleagues - to be Chief Justice. No voter in 2009 had the option to retain her on the Court but displace her as the Chief.

But even were that not so, the "frustration" of the voters decision in 2009 is a product of a decision in 2015 by … the voters. We would not have thought that the folks who voted for Scott Walker in 2010 would have been denied due process and equal protection if he was recalled in 2012. While recall statutes existed in 2010, so did the process for amending the Constitution.

It is simply not the case that, once voters elect someone, the accoutrements and responsibilities of that office  - or even the term of office - cannot be changed until completion of the term. This is particularly true when the change is accomplished by the voters themselves by amending the state's highest law, its Constitution.


Cross posted at Purple Wisconsin