Can you remember the last law that was passed that didn't end up in court? The Affordable Care Act, Act Ten, Voter ID, voter-approved same sex marriage bans and legalization, immigration reform, Right To Work--all of them taken to court, appealed, appealed again and then re-filed in different jurisdictions. Meanwhile, citizens can't keep track of what is and isn't in effect. County judges issuing injunctions that are overturned by appeals courts--but then Federal judges issuing injunctions that other Federal judges lift. All creating the kind of chaos that I don't think the Founding Fathers envisioned when they created the international model for checks and balances in a system of government.
The latest to join in the litany of litigation is Wisconsin State Supreme Court Chief Justice Shirley Abrahamson--who didn't even wait for the official canvass of the results of Tuesday's statewide referendum on a constitutional amendment changing the way her position is selected to file a lawsuit. Abrahamson claims that the new law can't go into effect until her current term is over because....well she doesn't want to give up the position. And Abrahamson--who should be considered the ultimate expert on the law being Chief Justice and all--has hired some big guns out of Washington to make her case for her.
Abrahamson's suit also seeks to place an injunction on all other members of the Court from taking any legal action to challenge her legal action and to have her removed as Chief Justice. She adds that she campaigned for re-election in 2009 as Chief Justice--and that people voted for her to be Chief Justice ONLY (even though that title did not appear next to her name on the ballot and the race was not labeled "Chief Justice"). Abrahamson apparently believes that people are not allowed to change their minds about such things either--even though she made the same arguments in discussions about the VOTER-APPROVED ban on same sex marriages that was also in our state constitution that she wanted to overturn in a previously mentioned lawsuit and appeal and appeal.
But to get back to the root issue here, we have gone beyond the use of the court system to prove legal injury with the passage of new laws and have gone into a realm where judges are asked to assume that there will be legal injury to specific parties. Are there still public sector unions following Act Ten? They may be smaller and have less money to spend on political campaigns--but that is because employees exercised their right of association (and corresponding right not to associate). And when that one person whose original birth certificate burned up in the Courthouse Fire of 1932 can't get one of the free forms of state identification that will be accepted to vote in the February primary of 2016, then they can file their lawsuit and seek legal remedy.
Shirley Abrahamson hasn't been denied due process--because there hasn't been a process yet. The State Supreme Court didn't meet three minutes after the Associated Press called the election in favor of the "Yes" votes to vote her out as Chief Justice. And whose to say that they will actually do that when they do hold such a vote? Will the Federal Judge assigned her lawsuit call up the six other members of the Court to the witness stand and poll them as to whether they will vote for against Shirley? Of course, if her lawyers do their jobs, they will keep the amendment tied in up the various court systems long enough for her to serve out the last four years of her term as Chief Justice--regardless of whether or not that is what the voters wanted.