The Wisconsin Supreme Court Quietly Imposes New Term Limit on the Chief Judge of the Wisconsin Court of Appeals
Chief Justice Ziegler provides a contrived and unpersuasive after-the-fact justification for the Wisconsin Supreme Court's decision not to reappoint Chief Judge Lisa Neubauer.
On June 30th, two days after the Wisconsin Supreme Court decided not to reappoint Lisa Neubauer as chief judge of the Wisconsin Court of Appeals, the state supreme court quietly imposed a new limit on how many consecutive terms the chief judge of the Wisconsin Court of Appeals may serve, according to a report published last month by the Wisconsin Law Journal.
According to Wisconsin Supreme Court Chief Justice Annette Ziegler, the new term limit for the chief judge of the Wisconsin Court of Appeals “brings symmetry to the [state] judicial system” because “all chief judges in the state now may serve a maximum of six years.”
However, it appears that the Wisconsin Supreme Court’s actual motivation for imposing the new term limit on the chief judge of the Wisconsin Court of Appeals was to provide an after-the-fact justification for the state supreme court’s failure to reappoint Wisconsin Court of Appeals Judge Neubauer to that position.
On June 28th, the Wisconsin Supreme Court issued a cryptic one-page court order—signed only by Chief Justice Ziegler—that unexpectedly appointed Wisconsin Court of Appeals Judge William Brash, III, to replace Judge Neubauer as chief judge of the Wisconsin Court of Appeals. And the Wisconsin Supreme Court’s order failed to provide a specific reason for its decision not to reappoint Judge Neubauer as chief judge. According to the Wisconsin Law Journal, however, Chief Justice Ziegler called then-Chief Judge Neubauer “a few days before the [Wisconsin Supreme Court] issued its order to give her advanced notice of the decision.”
Although Judge Neubauer was nearing the completion of her second three-year term as chief judge of the Wisconsin Court of Appeals, nothing prevented the Wisconsin Supreme Court from reappointing her to a third term as chief judge of the state’s intermediate appellate court. As I noted in a previous Wisconsin Jurisprudence article, “Chief Judge Neubauer’s immediate predecessor, Richard Brown, served as chief judge of the Wisconsin Court of Appeals for eight years—and was only replaced by her because of his retirement from the state court of appeals. And the two chief judges before Brown each served for nine years respectively.”
Two days after the Wisconsin Supreme Court formally appointed Judge Brash, III, as the new chief judge of the Wisconsin Court of Appeals, the Wisconsin Examiner published an article about the state supreme court’s decision, noting that the court’s three more liberal justices—Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky—raised concerns about the Wisconsin Supreme Court’s decision not to reappoint Judge Neubauer as chief judge in an email sent to all 16 judges serving on the Wisconsin Court of Appeals on June 30th.1 And unbeknownst to the public at large, the Wisconsin Supreme Court had also just amended its own internal operating procedures to limit the chief judge of the Wisconsin Court of Appeals from serving more than two consecutive terms—unless the Wisconsin Supreme Court uses its discretion to extend a particular chief judge’s tenure past the two consecutive terms based on “exceptional circumstances.”
According to the June 30th email sent by the Wisconsin Supreme Court’s three more liberal justices, those justices had decided to write an email to all the judges on the Wisconsin Court of Appeals because they were not given an opportunity to attach a separate writing to the Wisconsin Supreme Court’s June 28th order appointing Judge Brash, III, as chief judge of the Wisconsin Court of Appeals.
In the three justices’ view, the Wisconsin Supreme Court’s decision not to reappoint Judge Neubauer as chief judge of the Wisconsin Court of Appeals was unwarranted—especially given that several of her predecessors had served as chief judge for more than two terms. Furthermore, in their view, the purpose of the Wisconsin Supreme Court’s decision two days later to amend its own internal operating procedures—generally limiting the chief judge of the Wisconsin Court of Appeals from serving more than two consecutive terms—was to provide the state supreme court with a purportedly neutral “justification for an otherwise unjustified termination of” Judge Neubauer as chief judge of the state’s intermediate appellate court.
According to a statement provided to the Wisconsin Law Journal by Chief Justice Ziegler, however, the new “term limit for the chief judge of the [Wisconsin Court of Appeals] brings symmetry to the [state] judicial system.” She also noted that “all chief judges in the state now may serve a maximum of six years.”
Wisconsin Supreme Court Rule 70.18 generally limits the chief judge of a state judicial administrative district from serving more than three consecutive two-year terms—for a total of six years. And with the recent amendment to the Wisconsin Supreme Court’s internal operating procedures, the chief judge of the Wisconsin Court of Appeals is now generally limited from serving more than two consecutive three-year terms—for a total of six years.
Significantly, though, in its order appointing Judge Brash, III, as chief judge of the Wisconsin Court of Appeals, the Wisconsin Supreme Court only cited its statutory authority to appoint the chief judge of the Wisconsin Court of Appeals.2 However, this wasn’t surprising; after all, the Wisconsin Supreme Court appointed Judge Brash, III, to replace Judge Neubauer as chief judge of the Wisconsin Court of Appeals two days before amending its internal operating procedures to generally limit the chief judge of the state’s intermediate appellate court from serving more than six consecutive years in that position.
Given these circumstances, it appears that the Wisconsin Supreme Court’s recent amendment of its internal operating procedures was done solely to provide an after-the-fact justification for its decision not to reappoint Judge Neubauer as chief judge of the Wisconsin Court of Appeals. As I wrote in a previous Wisconsin Jurisprudence article, “the [actual] motivation behind the [Wisconsin Supreme Court’s] decision [to appoint Judge Brash, III, as chief judge of the Wisconsin Court of Appeals] seems crystal clear: to reduce [then-Chief Judge Neubauer’s] perceived liberal influence on the state’s intermediate appellate court by replacing her with a more conservative judge—in this instance, Judge Brash, III.”
It would behoove the Wisconsin Supreme Court to rely on its contemporaneous explanation for deciding not to reappoint Judge Neubauer as chief judge of the Wisconsin Court of Appeals—rather than a contrived after-the-fact justification two days later.
In the context of reviewing the legality of action taken by a federal administrative agency, the United States Supreme Court has categorically rejected an agency’s post hoc rationalizations for why the agency undertook a particular action—instead relying on the agency’s contemporaneous explanation when the particular action occurred. And like a federal agency’s post hoc rationalization for why the agency took a particular action, the Wisconsin Supreme Court’s after-the-fact justification for its decision not to reappoint Judge Neubauer as chief judge of the Wisconsin Court of Appeals is wholly unpersuasive.
Apparently, the Wisconsin Supreme Court is unfamiliar with the well-known idiom: “don’t put the cart before the horse.”
However, the Wisconsin Examiner article did not provide its readers with the full content of the three Wisconsin Supreme Court justices’ June 30th email. In contrast, the Wisconsin Law Journal did provide its readers with the full content of the June 30th email.
See Wis. Stat. § 757.02.