Hagedorn recuses himself as Supreme Court appears ready to hear Act 10 challenge
A Wisconsin Supreme Court justice who helped write Act 10 recused himself Thursday as the high court signaled it was preparing to take up a legal challenge to the 2011 law limiting public employees' collective bargaining rights.
After a Dane County judge struck down Act 10 in December, the plaintiffs — a teachers union — filed a motion with the state Supreme Court to bypass the Wisconsin Court of Appeals and take up the case directly.
On Thursday, the Court issued an order related to that motion, granting a request from Republican leaders of the state Legislature to intervene and file a response to the bypass request. The Court set a Feb. 5 deadline for the response.
Along with Thursday's order, Justice Brian Hagedorn issued an order recusing himself from taking part in the case. Hagedorn previously served as legal counsel to Republican Gov. Scott Walker and helped draft the bill that became Act 10, then defended it against a federal court challenge.
In December, a Dane County judge ruled that parts of the law are unconstitutional because it treats similar types of state employees differently. The law retained collective bargaining rights for police officers, but excluded the state Capitol Police officers, conservation wardens and correctional officers.
'Act 10 as written by the Legislature specifically and narrowly defines 'public safety employee,'' Judge Jacob Frost wrote. 'It is that definition which is unconstitutional.'
In his recusal order Thursday, Hagedorn acknowledged his role in shaping and defending the law.
'Members of the judiciary take a solemn oath to be independent and impartial,' Hagedorn wrote. 'Our duty is to call it straight in every case, with neither partiality nor prejudice toward anyone. The law must guide our decisions — not politics, tribalism, or personal policy views.'
'After reviewing the filings and the various ethical rules I am sworn to uphold, I have concluded that the law requires me to recuse from this case,' he continued. 'The issues raised involve matters for which I provided legal counsel in both the initial crafting and later defense of Act 10, including in a case raising nearly identical claims under the federal constitution.'
Hagedorn also noted that many of the legal arguments in the current challenge are similar to those made in the 2011 federal case.
Justice Janet Protasiewicz, who had previously said she may recuse herself from an Act 10 case because she participated in protests against the legislation as it was pending, did not participate in the decision to accept the case, but she did not release an order saying she'd recuse herself.
Both Hagedorn and Protasiewicz had faced calls for recusal in the case. Protasiewicz had also faced threats of impeachment from Republican legislators in a previous case about the state's legislative maps.
In his order, Hagedorn warned about the politicization of the recusal process.
'In my view, recusal on this court should be rare — done only when the law requires it,' he wrote. 'Going beyond that can create problems. We have seen how recusal can be weaponized by parties seeking a litigation advantage.'
In response to the Court's order Thursday on the Legislature's petition to intervene, Justice Rebecca Bradley and Chief Justice Annette Ziegler dissented.
They, along with Hagedorn, have also dissented in several Supreme Court decisions to bypass lower courts and take up cases after the court's majority flipped in 2023 from four conservative justices to four liberal ones.
Bradley, writing Thursday's dissent, pointed out that the state Legislature had asked for a two-week extension to respond to the bypass petition, and was instead given three business days.
'There is absolutely no reason to deny the Legislature's request, unless three members of this court wish to fast track yet another politically charged case for the purpose of overturning settled law on an issue already decided by this court eleven years ago,' Bradley wrote.
The dispute over Act 10 is set to play a major role in this April's Supreme Court election between Dane County Judge Susan Crawford and Waukesha County Judge Brad Schimel, who was state attorney general during Walker's second term.
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