Chief justice referendum atypical, says think-tank analyst

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On April 7, voters will decide whether the state constitution should be amended to let the Wisconsin Supreme Court Justices choose their own leader, replacing a system that now has the top position go to the member with the most seniority.

The referendum is unprecedented, according to Bill Raftery, who is an analyst at the National Center for State Courts, an independent information clearinghouse for research and data on state courts.

“It’s atypical where the selection of the chief justice stands alone on the ballot,” he said. “I can’t remember a time where it has occurred.”

In general, Raftery said, it’s rather unusual to see changes made to the way chief justices are selected. In the United States, it has happened no more recently than about 20 years ago, when Virginia went from automatically selecting the member with the most seniority to letting the state Supreme Court justices make the decision themselves – much like what would happen in Wisconsin if voters approve the referendum that will be on state ballots in about a week. What makes Virginia different, he said, is that the change in selection methods came as part of an overhaul of the state’s judicial system.

Virginia’s experience could also provide some insight into what could happen in Wisconsin if voters approved the state’s referendum next week, Raftery said. The chief justice in Virginia at the time, the late Harry Carrico, was not forced to step down. The court’s first order of business following the change was in fact to elect him chief justice, Raftery said. Carrico did not have to leave the top spot until he was required by Virginia law to retire from the bench.

Besides Wisconsin, six states let seniority determines who the court’s chief justice will be, according to data from the National Center for State Courts. Louisiana’s highest court is the most like Wisconsin’s in that it lets the longest-serving justice leads the court. In two of the other states – New Hampshire and Nevada – the chief-justice title rotates, going to the most senior justice who has not yet held the position.

The rationale behind a seniority system, Raftery said, is that the longest-serving senior justice will have the most experience to draw on when administering a state’s court system . The drawback is that, if the system is not rotational, a justice could be obliged to serve for much longer than he wants.

The seniority system developed for two reasons, Raftery said. One, at the time of the United States’ formation, as well as in the preceding colonial times, the chief justice’s only additional responsibility was to gavel the court in and out. The second reason was that, especially in the mid- to late 1800s, state Supreme Courts were a stepping stone to some other office.

“It was very common for a member of a supreme court to run for governor,” Raftery said, “so seniority was a way to indicate who was … not going anywhere and able to function as administrative responsibility increased.”

If Wisconsin voters choose to let the justices select the chief justice, then the state would join 22 others that have a similar system. The argument for peer selection is that it shifts the burden from someone who would not necessarily want it, Raftery said.

In the remaining states, no single system dominates in the selection of chief justices. Governors in 12 play some role in the selection. In seven others, including Minnesota, the chief justice is chosen by a popular election. The remaining states, Raftery said, are “odd ducks.”