Wisconsin Supreme Court Justice Brian Hagedorn recuses himself from Act 10 challenge

Conservative Wisconsin Supreme Court Justice Brian Hagedorn will not participate in a case challenging the constitutionality of Wisconsin Act 10, the 2011 law restricting public employee collective bargaining rights.

In an order released Thursday afternoon, Hagedorn said he would recuse himself from a case being considered by the state Supreme Court that was filed in 2023 by the Abbotsford Education Association. The court is currently weighing whether to take the case directly before a state appeals court weighs in.

Hagedorn previously served as chief legal counsel for former Republican Gov. Scott Walker when Act 10 was drafted and defended in earlier court challenges.

Hagedorn said after reviewing legal filings in the case and the court’s ethics rules, he determined that recusal “is not optional when the law commands it.”

“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 said.

The lawsuit argues Act 10 is unconstitutional because it retains union bargaining rights for some employees, like police and firefighters, but not for other public safety workers who perform similar jobs.

Liberals currently hold a 4-3 majority on the Supreme Court. Hagedorn’s recusal changes that split to 4-2.

Hagedorn is no stranger to taking positions that are unpopular with conservatives. In 2020, he sided with liberals to reject several lawsuits attempting to overturn President Joe Biden’s victory in Wisconsin.

In a subsequent order Thursday, the Supreme Court’s majority announced it would grant a short deadline extension to file briefs in a tangent of the case. Hagedorn and liberal Justice Janet Protasiewicz did not participate in the scheduling order.

While Protasiewicz did not give a reason, her non-participation is potentially significant because Republican leaders have asked Protasiewicz to recuse herself from the case, arguing that she had “prejudged” Act 10 while campaigning for her seat on the court.

In December, a Dane County circuit court judge ruled several sections of Act 10 were unconstitutional, but placed a temporary stay on his ruling while the case is appealed.

Act 10 was previously upheld by the Supreme Court’s former conservative majority in 2014, declaring that public-sector bargaining remains “a creation of legislative grace and not constitutional obligation.”

That same year, the federal 7th Circuit Court of Appeals in Chicago also upheld Act 10, rejecting arguments that it violated the U.S. Constitution’s equal protection clause.