No Block on Vote to|Oust Wisc. Chief Justice

     MADISON, Wis. (CN) – Wisconsin could have a new chief justice before the end of April.
     U.S. District Court Judge James Peterson declined on Tuesday to issue a temporary restraining order halting a chief justice election before the official preliminary injunction hearing, which is scheduled for May 15.
     As a result, the other six justices on the Wisconsin Supreme Court may hold an election with the power to oust Chief Justice Shirley Abrahamson as early as April 29, when election results are set to be certified on a ballot initiative giving them the right to vote.
     Kevin St. John, the attorney for the five justices considered to be conservative to Abrahamson’s liberal, said his clients felt “obligated under the Wisconsin Constitution to act” as soon as legally possible, but would not confirm a date.
     Tuesday’s status conference was the first in a legal battle that began when Wisconsin voters narrowly passed a ballot measure changing the selection of chief justice from seniority to an election by the other six justices.
     Abrahamson and five citizen supporters filed a federal suit in the Western District of Wisconsin the day after the election, claiming that the ballot measure deprives her of property rights to her chief status and accompanying salary.
     “Different Wisconsin public officials and analysts, some of whom are named as defendants below, have speculated that the now-approved constitutional amendment will apply retroactively and be implemented immediately against Abrahamson, before the end of Chief Justice Abrahamson’s current term, so as to permit the election of a new chief justice,” Abrahamson’s complaint states.
     Her position is that she has a right to the office until 2019, when her term as justice expires.
     St. John argued that the office becomes vacant as soon as the election results are certified, and no one has a right to the office after that date unless they are elected to it.
     All six remaining justices were hearing oral argument in the state Supreme Court and thus absent from Tuesday’s hearing. The complaint also names state officials responsible for payroll and administration.
     Five citizen supporters of the ballot measure unsuccessfully attempted to intervene last week, claiming their interests would not be served by the named defendants.
     “The office of Chief Justice of the Supreme Court of Wisconsin is not Justice Abrahamson’s personal property,” the hopeful intervenors wrote in their motion to dismiss. “It belongs to the people of Wisconsin, and their will is clear.”
     Peterson disagreed, stating in his order that the addition of intervenors would unnecessarily lengthen and complicate the case.
     Peterson on Tuesday also kyboshed discovery in favor of stipulated facts or judicial notice for timing reasons, estimating a final ruling from the district court by “mid to late summer,” at which point the case can be appealed to the 7th Circuit Court of Appeals.
     The judge’s ultimate decision not to block an election, he said, boiled down to a lack of evidence of irreparable harm absent a restraining order – should Abrahamson ultimately prevail after losing her seat, she could be entitled to back pay.
     Further, Peterson said, none of the interests at stake justify a federal judge interfering in matters of state law.
     After the conference, Abrahamson’s attorney Robert Peck of the Washington, D.C.-based Center for Constitutional Litigation told reporters there is no “compelling reason” for the judges to vote before the end of the judicial term on June 30.
     The defendants will file motions to dismiss for lack of jurisdiction, according to their attorneys. Responses to a request for a temporary injunction are due by May 4, to which Peck must reply by May 11.
     Justice Ann Walsh Bradley, newly re-elected and the only other justice considered liberal on the court, is representing herself.
     Maria Lazar of the Wisconsin Department of Justice is representing the state employee defendants.

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