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Judge: Roggensack to remain chief justice (UPDATE)

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A federal judge has said the Wisconsin Supreme Court’s Shirley Abrahamson can be replaced as chief justice while her lawsuit over her removal is pending.

In his ruling Friday, Judge James Peterson said he did not see “any irreparable harm befalling the court system” in letting Justice Pat Roggensack continue as chief justice.

Once the vote on the referendum had been certified April 29, four justices voted Roggensack into the position via email that afternoon. According to attorney Kevin St. John, who is representing the justice defendants in the lawsuit, Roggensack began her term as chief justice May 1.

Peterson, addressing concerns from Abrahamson and her co-plaintiffs, noted that Roggensack “is not consolidating power in any sinister way” nor did he see any danger, present or future, of any of the court’s discretionary programs suddenly being eliminated.

“I don’t see that there is any kind of a radical change,” he said, “in the direction of the court.”

Peterson referred to a letter from Justice Patrick Crooks, which asked the federal court to put in place a plan for transitioning into the chief justice change required by the constitutional amendment to alleviate the “chaotic situation” in the court.

But Peterson said the only way for the Supreme Court to repair its image in the public’s mind is for it to take action on its own, not for a federal judge to tell them what to do.

“There is really nothing I can do,” he said, “that would make things better at this point.”

Abrahamson’s lawyer, Robert Peck, refused to comment on the decision, saying he had to consult with his client.

“I think the court has made it clear,” said St. John., “that Justice Roggensack is the chief justice.”

The lawsuit stems from a constitutional amendment approved by voters April 7. The amendment changed the law so that the chief justice is elected every two years by the court instead of being selected by seniority.

Abrahamson filed her lawsuit against the state and her fellow justices on April 8, arguing that the change should not be applied until after her term ends in 2019. If it is applied, she argued, it would be a violation of her constitutional due process rights.

Peterson began the hearing by first outlining what he did not want to hear about from the parties. He said the matter was not a case of sovereign immunity, nor was he concerned about whether all the defendants and plaintiffs named in the case were the right ones. He also said he was not interested in discussing news reports.

Rather, the pertinent questions of the case, he said, include whether there is a federal constitutional violation and whether Abrahamson was deprived of due process with the enactment of the constitutional amendment.

“What we really are dealing with here is the status of enacted law,” said Peterson. “I’m not interested in the psychoanalysis of the voters and the legislature.”

Also on Friday, Peterson dismissed the defendants’ three motions in limine filed Thursday objecting to portions of Abrahamson and Justice Ann Walsh Bradley’s affidavits. He also dismissed the state defendants’ and justice defendants’ motion for summary dismissal for not following court injunction procedures. Peterson said the order on the injunction renders them moot.

Neither Bradley, who is representing herself, nor any of the justices appeared in federal court Friday. Maria Lazar appeared on behalf of the Wisconsin Department of Administration defendants named in the suit. Roger Sage appeared on behalf of Wisconsin Secretary of State Douglas La Follette. Lazar said the state objected to La Follette’s separate representation.

The parties agreed to submit a stipulation of facts by May 9 and that Abrahamson would file a new brief including damages by June 8. A hearing date will be scheduled by the federal court at a later time.

Peterson said that he plans to rule on the matter quickly.


About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.