Shirley Abrahamson
From Judgepedia
Shirley S. Abrahamson (born December 17, 1933) is the Chief Justice of the Wisconsin Supreme Court. She was initially appointed to that body by Governor Patrick Lucey in 1976, and subsequently elected to ten-year terms in 1979, 1989, and 1999. Her current term expires July 31, 2009. Abrahamson is planning to run for another ten year term in 2009 against Jefferson County Circuit Court Judge Randy Koschnick[1]. While judicial races in Wisconsin are non-partisan, Abrahamson is identified with the Democratic Party.
Background
Born and raised in New York City, Chief Justice Abrahamson received a bachelor's degree from New York University in 1953, a law degree from Indiana University School of Law-Bloomington in 1956, and a doctorate of law in American legal history in 1962 from the University of Wisconsin Law School. She is the recipient of 14 honorary doctor of laws degrees and the Distinguished Alumni Award of the University of Wisconsin-Madison.
Legal career
Abrahamson became the Chief Justice on August 1, 1996, and in that capacity serves as the administrative leader of the Wisconsin court system. She is the first woman to have served as either Justice or as Chief Justice of the Wisconsin Supreme Court. Before joining the court, Justice Abrahamson practiced law in Madison, and taught at the University of Wisconsin Law School. Abrahamson was once considered by President Bill Clinton a possible United States Supreme Court nominee during his term in office [2].
2009 Supreme Court election
For more information see Wisconsin Supreme Court elections. Earlier in 2008, Shirley Abrahamson announced that she was going to run for re-election in the April 2008 election. Shirley Abrahamson will be facing Jefferson County Circuit Court Judge Randy Koschnick.[1]
Endorsements
Shirley Abrahamson has received the endorsements of[3].
- Susan Riseling-Chief of the UW-Madison Police Department
- Larry Peterson-President-Wisconsin Public Defenders Association
- Michael McCann-Former Milwaukee County District Attorney
- Wisconsin Assistant Attorney General David Pearlman
- North Central Wisconsin Police Chiefs Association
Judicial activism
In a 2008 interview with The Capital Times of Madison, Abrahamson was told by writer Stephen Elbow that the majority of Wisconsin citizens who identify themselves as "conservatives" or "republicans" in a scientific poll done by the Capital Times in 1999 said that they label Abrahamson as a ultra-liberal, activist judge[2]. In response to Elbow's question, Abrahamson said on judicial activism: "The polls show that activist judge has no meaning to anyone. Nobody knows what (a) activist judge means when they say it, and for the listener it doesn't have any meaning. When you say somebody's an activist judge, what you're really saying is I don't like that particular opinion. I think the people who use it think it's a slur and it will ultimately take on their connotation."[2]
Judicial philosophy
Abrahamson is an advocate of judicial independence. Her well-circulated essay "Judicial Independence as a Campaign Platform" articulates the debate as such "Many judicial candidates are choosing not to exercise their First Amendment rights fully because they are concerned they may tarnish the public's perception of fairness and impartiality, and may disqualify themselves from sitting on cases....In any judicial selection system, the best way to ensure judicial independence is to develop the public's understanding of, and respect for, the concept of judicial independence....Judicial independence means that judges decide cases fairly and impartially, relying only on the facts and the law...There are two types of judicial independence: decisional independence and institutional independence (sometimes called branch independence). Decisional independence refers to a judge's ability to render decisions free from political or popular influence; decisions should be based solely upon the facts of the individual case and the applicable law. Institutional independence describes the judicial branch as a separate and co-equal branch of government with the executive and legislative branches."[4]
Expanded Federalism
Shirley Abrahamson has been noted by those in the legal community for expanding the definition of Federalsim in her judicial philosophy. New federalism is a legal observation that claims that state supreme courts should feel free to interpret state constitutional provisions differently than the U.S. Supreme Court interprets the federal constitution, especially regarding the rights of criminal defendants. In an article, Chief Justice Abrahamson defined it this way:
“In judicial jargon, new federalism describes a growing awareness in the state courts of the importance of state law, especially state constitutional law, as the basis for protection of individual rights against state government. It also describes the willingness of state courts to assert themselves as the final arbiters in questions of citizens’ individual rights by relying on their own state law, especially the state constitution.” Abrahamson, 19 Hum Rts. at 26[5].
Many experts in the legal profession claim that the belief of expanded Federalisim encourages laywers especially in constitutional law to do a practice called "Forum shopping" in which it allows attorneys especially in constitutional and civil law to pick and choose which states to pursue cases based on how much constitutional protection one state may have over the other[5]. Also, many experts in the legal profession who practice judicial restraint also criticize this practice as this is a way to protect judges in the State courts who practice judicial activism in hopes the Supreme Court of the United States or a Federal Courts of Appeal does not overturn their rulings.
Judicial Empathy
Abrahamson has had received criticism from critics on the right for believing in a system of "Judicial Empathy" which was a key of Barack Obama's judicial philosophy. On the issue of Judicial Empathy, Chief Justice Abrahamson wrote in a edition of the 1996 DePaul Law Review stating that:
Judging requires more than such a mechanical application of pure reason to legal problems. To be sure, legal principles and logic necessarily influence the outcome of every case. But though they alone will determine many cases, in other cases they will not suffice. Principles may admit of more than one interpretation, conflicting principles may apply, or the application of principles to the facts may be unclear. In cases such as these, the blindfolded judge who is blind to the real world in which the parties live is blind indeed, bereft of a basis on which to make an intelligent, let alone fair, decision
Oliver Sacks, the neurologist whose experiences in a Brooklyn hospital became the basis of the movie Awakenings and whose book An Anthropologist on Mars was a bestseller for much of this past year, describes the case of a judge deprived of emotion by frontal-lobe damage from shell fragments in the brain. Though in a basic sense the judge was impartial, free of emotion and the biases that go with emotion, the judge resigned his judgeship, ‘saying that he could no longer enter sympathetically into the motives of anyone concerned, and that since justice involved feeling, and not merely thinking, he felt that his injury totally disqualified him
Despite their judicial oath to "administer justice without respect to persons" and to ‘faithfully and impartially discharge’ the duties of the office, judges must remember that individuals are not fungible and that the legal system cannot treat them as such. We laugh when we say that rich and poor are equal because both are free to sleep under the bridge. But the laughter–invariably nervous–reminds us that a judge must judge different people differently. A just and equitable jurisprudence is based on consideration of individuals. A judge who cultivates a sense of connectedness with the parties, witnesses, jurors and staff with whom she interacts will come to understand their experiences. She will thereby come to show tolerance and empathy for those who appear before her, respecting their differences to ensure consistency in her application of the law.[6].
Abrahamson's approach to Judicial Empathy has led to Abrahamson being criticized by her conservative and moderate counterparts in the Wisconsin Supreme Court[6]. This was evident in 2005 when Supreme Court Justice David Prosser harshly criticized Abrahamson on using judicial empathy in the case of Geihn v. Wisconsin Group Insurance in 2005 and also being subjected to more harsh criticism by the more centrist Patience Roggensack in the case of Wisconsin Auto Title Loans v. Jones in 2006. Their criticisms come from the notion that siding on emotion versus the facts of the law create serious consequences to the impacts of the laws being applied[6]
Public financing of judicial elections
Like her opponent Randy Koschnick, Justice Abrahamson has spoken in support of public financing of judicial elections, ostensibly to curb the influence of third party attack advertising by special interest and advocacy organizations[1].
On non-partisan judicial elections
On the subject of non-partisan elections, Justice Abrahamson has said: "A court election is like no other. Justices are not for or against any cause -- we are not pro- or anti- anything. Citizens expect their judges to be fair and impartial and to make decisions based on the merits of a case rather than political and ideological grounds. People need to know that when it’s their day in court, the judge will be a fair, even-handed and independent decision maker of justice. Therefore, it is essential that candidates for election be as nonpartisan as citizens expect their judges to be."[1].
Mental health issues
Also, Abrahamson is also focusing on a new mental health initiative to improve the criminal justice system's administration of cases involving Mental health issues. Wisconsin is one of four states selected by the Council of State Governments, a national non-profit organization to participate in the Chief Justices’ Criminal Justice/Mental Health Leadership Initiative which would help identify effective options to help with cases involving mental health issues at the state level and also eliminate backlogs caused in the court system that make it hard to expedite cases through the court system[3].
Court system administration
During her time as a Chief Justice, Abrahamson has had an active role in listening to judges, citizens, and law enforcement professionals across Wisconsin on the state of the judicial branch in the State of Wisconsin. First, Abrahamson holds listening sessions in all of Wisconsin's 72 counties in which she listens to legal professionals and uses these sessions to help improve the administration of the court system in Wisconsin[2]. Second, Abrahamson started the "Justice on Wheels Tour" to help expand the State Supreme Court's reach and scope beyond the State Capital of Madison as they hear cases in other parts of the state to help educate people on the judicial branch of the State of Wisconsin.
Home foreclosures
As the sub-prime mortgage crisis has become a bigger issue on a national level, Abrahamson has been an advocate of a proactive approach in allowing judges to deal with the sub-prime crisis to make sure ordering foreclosure is a last resort used at all times and to allow people to work between parties to re-write an agreement that best serves their interests[3].
Civic activities
Abramson is the past president of the National Conference of Chief Justices and past chair of the board of directors of the National Center for State Courts. She also served as chair of the National Institute of Justice, National Commission on the Future of DNA Evidence. She is a member of the Council of the American Law Institute and the board of directors of New York University School of Law Institute of Judicial Administration.
She also has served on the State Bar of Wisconsin's Commission on the Delivery of Legal Services and American Bar Association's Coalition for Justice.
She is a fellow of the Wisconsin Academy of Arts and Sciences and the American Academy of Arts and Sciences and an elected member of the American Philosophical Society. In 2004, she received the American Judicature Society’s Dwight D. Opperman Award for Judicial Excellence. Chief Justice Abrahamson is featured in Great American Judges: An Encyclopedia (John R. Vile ed. 2003).[7]
Notable rulings
On Litigation Abuse
In this lead-paint liability case from 2005, Justice Butler authored the 4-2 majority opinion (concurring Justices Abrahamson, Bradley and Crooks), over the vigorous dissents of Justices John P. Wilcox and David Prosser (Justice Roggensack did not participate). In the decision, the court ruled:
- (1) that because [the plaintiff] cannot prove the specific type of white lead carbonate he ingested, he need only prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses' existence; and
- (2) Once [the plaintiff] makes a prima facie case under either claim, the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. The Majority further opined that, if relevant records do not exist that can substantiate either defense, “we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers].”
"The end result of the majority opinion is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market. Even though the injury in this case is tragic, the plaintiff cannot demonstrate that he was lead poisoned as a result of white lead carbonate, much less the type of white lead carbonate produced by any of the respective defendants. More importantly, he cannot prove when the supposed white lead carbonate that allegedly poisoned him was manufactured or applied to the houses in which he was supposedly lead poisoned. However, none of these facts seem to matter to the majority."
- ON ALTERNATIVE REMEDIES AGAINST LANDLORDS: "While we agree with the Pigment Manufacturers that landlords are in the best position to contain the dangers of lead pigment in paint once the paint has been applied, landlords are not to blame for the fact that the lead pigment in the paint is poisonous in the first instance".
- ON THE COMMON LAW AND PRECEDENT: "Th[e] common law, however, is frequently refined by this court, consistent with the dynamic principle that “allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose.”
- ON THE COMMON LAW AND PRECEDENT: "Although there are those who champion rigid rules with clear delineations, the fact is that the “[c]ommon law is law subject to continuing judicial development, including abrogation.” Indeed, this process of continuing refinement is a vital component of judicial power. If in the name of certainty this court simply deferred to the eras of days passed, we would “ succumb to a rule that a judge should let others long dead and unaware of the problems of the age in which he [or she] lives, do his thinking for him [or her].” (Citations omitted).
- ON IMPOSING LIABILITY ON INNOCENT BUSINESSES: "As a prefatory note... we recognize that cases involving lead poisoning stemming from lead pigment pose difficult problems. The entirely innocent plaintiffs may... never know or be able to prove with certainty which manufacturer produced or promoted the white lead carbonate that caused the injuries. (citations omitted). The Pigment Manufacturers are faced with possible liability for white lead carbonate they may not have produced or marketed. As this court did in Collins, we again conclude 'that as between the plaintiff, who probably is not at fault, and the defendants, who may have provided the product which caused the injury, the interests of justice and fundamental fairness demand that the latter should bear the cost of injury.'"
- ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING 'DEEP POCKETS': "Second, as compared to Thomas, the Pigment Manufacturers are in a better position to absorb the cost of the injury. They can insure themselves against liability, absorb the damage award, or pass the cost along to the consuming public as a cost of doing business."
- ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING: "[T]he Pigment Manufacturers note that the paint Thomas allegedly ingested could have been applied at any time between construction of the two houses in 1900 and 1905 and the ban on lead paint in 1978. This significant time span greatly exceeds the nine-month window during which a plaintiff's mother would have taken DES, the Pigment Manufacturers note. Given that Collins attempted to strike a balance between assuring a DES plaintiff had a remedy and providing a realistic opportunity to each DES pill manufacturer to prove that it could not have caused the plaintiff's harm (by establishing its DES could not have reached the mother during her pregnancy), the Pigment Manufacturers contend that Collins should not be extended given that they have no reasonable ability to exculpate themselves. We recognize that the window during which the possible injury causing white lead carbonate was placed in a house that eventually harmed Thomas is drastically larger than a nine-month window for pregnancy. However, the window will not always be potentially as large as appears in this case."
- ON THE COMMON LAW AND PRECEDENT: "A legitimate system of law requires adherence to established legal principles, even if such adherence does not produce a result deemed desirable by the collective wisdom of four members of this court. Our common law used to require a plaintiff to prove four elements in order to recover under a theory of negligence: duty, breach, causation, and damages. Throughout the years, this court has essentially eliminated the requirement that a plaintiff prove the second element by holding that in Wisconsin, everyone owes a duty of reasonable care to the entire world."
- ON TORT LIABILITY: "Subjecting the defendants in this case to liability under these circumstances amounts to an unwarranted and unprecedented relaxation of the traditional rules governing tort liability, and raises serious concerns of fundamental fairness, as the defendants will be unable to realistically exculpate themselves. The majority opinion not only creates the risk that liability may be wholly out of proportion with the culpability of each individual defendant; it raises a distinct possibility that some defendants may be held liable for an injury they did not and could not have caused. The majority seems content to run roughshod over established principles of causation and the rights of each defendant to present a defense and be judged based on its own actions. The majority's decision renders Wisconsin the only state to apply some form of collective liability in lead paint suits under similar facts."
External links
- Shirley Abrahamson's Campaign Re-Election Website
- Wisconsin’s Chief Justice Named Chair-Elect of National Court Reform Organization
- Chief Justices Meet in Manhattan
- Shanghai to Madison: Group of 20 Chinese judges visits U.S. to learn about legal system
- Wisconsin Court System page on Chief Justice Shirley S. Abrahamson
- Interview with Shirley Abrahamson
References
- ↑ 1.0 1.1 1.2 1.3 "Channel 3000", Koschnick Announces Bid, November 17, 2008
- ↑ 2.0 2.1 2.2 2.3 "The Capital Times, One on One with Chief Justice Abrahamson, May 7, 2008
- ↑ 3.0 3.1 3.2 "Abrahamson Campaign", 2009 Campaign Status Report, September 30, 2008
- ↑ "Washington State Bar Association, Judicial Independence as a Campaign Platform, March 5, 2005
- ↑ 5.0 5.1 "GOP3.com", Abrahamson and Defendant's Rights, December 27, 2008
- ↑ 6.0 6.1 6.2 "GOP3.com", Shirley Abrahamson and Judicial Empathy, December 24, 2008
- ↑ Judge Abrahamson's Bio
Portions of this article have been taken from Wikipedia the free encyclopedia.
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