Conservative Justice Brian Hagedorn has ruled he can’t hear a case before the Wisconsin Supreme Court on collective bargaining powers for public employees after he helped draft the law and later defended it while working for then-Gov. Scott Walker.
Hagedorn, who served as Walker’s legal counsel, noted his work defending Act 10 after it was passed in 2011 included nearly identical claims that are now before the court in a challenge filed by public employee unions.
Hagedorn wrote in yesterday’s order that he believes recusal on the Supreme Court should be rare and only when the law requires it. Still, he believes “recusal is not optional when the law commands it.”
Hagedorn’s decision comes days after GOP lawmakers seeking to defend Act 10 filed a motion asking liberal Justice Janet Protasiewicz to step off the case. They argued Protasiewicz can’t be impartial after indicating during her 2023 campaign that she believed the law is unconstitutional. The GOP filing also called into question Protasiewicz’s ability to be impartial after she protested the law in 2011 and signed a recall petition against Walker.
Protasiewicz didn’t participate in a procedural motion in the Act 10 suit before the court as she weighs the recusal request.
Protasiewicz didn’t indicate a reason for her decision in yesterday’s order that gave GOP lawmakers an additional three business days to respond to a request from unions for the justices to take over the appeal in the case. Republicans had asked for a two-week extension.
A Dane County judge last year ruled large swaths of Act 10 unconstitutional. The Supreme Court is currently considering a motion to bypass an appellate court and take over the case.
The court has a 4-3 liberal majority. Without Hagedorn, that puts the court’s balance at 4-2 as it considers whether to take the case, pending Protasiewicz’s ruling on the recusal motion.
Conservative Justice Rebecca Bradley suggested her liberal colleagues denied the GOP request for a longer extension 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.”
Republicans originally faced a deadline today to respond to the union motion asking the justices to take over the appeal. Rather than the two additional weeks Republicans sought, the court in yesterday’s 3-2 ruling gave lawmakers until 11:59 p.m. on Wednesday.
Bradley also slammed two members of the majority, but not by name, while referencing oral arguments the court heard last week in a separate suit involving the same legal team for Republican lawmakers.
“Two of the three members who deny the Legislature’s requested extension displayed such hostility, derision, and disrespect toward the Legislature’s attorney in a politically charged case the court heard earlier this month, that denying the Legislature’s extension request appears to be rooted in something other than the law,” Bradley wrote.
Fellow conservative Annette Ziegler joined Bradley in her dissent.
The majority — consisting of liberals Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky — didn’t explain its reasoning in yesterday’s order.
