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Chief justice proposal raises political concerns (UPDATE)

By: Jack Zemlicka, [email protected]//February 1, 2012

Chief justice proposal raises political concerns (UPDATE)

By: Jack Zemlicka, [email protected]//February 1, 2012

A plan to force the Wisconsin Supreme Court to elect its chief justice drew concern Wednesday that the process would politicize the state’s judicial branch.

Senate Joint Resolution 36 proposes a change in how the administrative head of the state court system is chosen, from an appointment based on seniority to a majority election by the seven sitting justices.

“I think the court would be better lead,” author of the proposal, Sen. Rich Zipperer, R-Pewaukee, said in an interview. “If the leader, whoever he or she might be, has a vote that occurs to put him or her in the position it shows that they have the majority support on the court.”

Zipperer, chairman of the Senate Committee on Judiciary, Utilities, Commerce and Government Operations pitched the resolution to fellow committee members Wednesday morning.

But committee member Sen. Jon Erpenbach, D-Middleton, said the constitutional change would only further divide an already contentious court.

While justices are elected by the public to serve 10-year terms, Erpenbach said allowing an internal vote for chief justice would wrongly politicize the position.

“It’s a pretty partisan court right now, even though it’s not supposed to be,” he said in an interview. “I think what it does is it drives a wedge further into the court no matter who has 4-3 control.”

Erpenbach said he wasn’t aware of any members of the court who support the change.

“I have no problem with the current system,” Erpenbach said. “I think it’s none of our business. It’s their court. If they want to change the constitution, normally they come to us and say we want this changed.”

Justice Michael Gableman supports the change and said he favors election of the chief justice by other members of the Supreme Court in order to build collegiality and respect on the bench.

“I think it’s a fairly common sense proposition,” Gableman said. “All things being equal, a leader who has to ask other people for their vote is more inclined to be collegial and considerate of the others opinions, if they have to rely on those others for their continued stay in that position.”

He declined to comment on concerns the process would politicize the judiciary.

Gableman did say, however, that the majority of the court’s administrative decisions are made through a vote of the seven justices and selecting a chief justice through the same process wouldn’t be a departure from the ordinary.

The current constitutional method of selecting the chief justice based on longevity is “arbitrary,” he said, and doesn’t reflect leadership skills of a particular justice.

“It seems to be a relatively random means,” he said, “of selecting someone for a very important position.”

Zipperer said he has not been contacted by any justice pushing for the proposal.

He also said the resolution is not a condemnation of current Chief Justice Shirley Abrahamson, who has served as administrative head of the courts since 1996.

“I wouldn’t say this is a reaction to any particular justice or decision,” Zipperer said. “Some people have raised that notion and we’ve had one chief justice for a lot longer than others. But I would leave it up to the court to decide if a change was needed.”

According to the resolution, an election for chief justice would occur immediately after a justice is elected or reelected and takes the oath of office.

As a constitutional amendment, the proposal would need to pass two successive legislatures and then voted on by the public.

The Assembly Committee on Judiciary and Ethics is scheduled to take executive action Thursday on its version of the proposal.

If the legislation advances, Erpenbach said, he wants an amendment that the justices submit nominations and hold the chief justice elections in public.

But even with the added transparency, he said, it isn’t a proposal he will support, unless the justices are on board.

“What’s next?” Erpenbach said. “Tell them what color robes to wear, or they can or can’t wear robes or what cases to take up?”


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