Justice Hagedorn Surprises Observers

Two recent actions by Wisconsin Supreme Court Justice Brian Hagedorn surprised many observers who expected him to be a reliable vote for the court’s conservative majority.

The first case, Timothy Zignego v. Wisconsin Elections Commission, was an attempt by the conservative group, Wisconsin Institute for Law and Liberty to force the Wisconsin Elections Commission to purge voters who did not respond to a postcard and might have moved. Supporters of the suit tried to get the Supreme Court to take the case directly, bypassing the Wisconsin Court of Appeals. This attempt failed when Justice Hagedorn voted against it, creating a 3-3 tie. (Justice Daniel Kelly abstained.)

Justice Rebecca Dallet summed up the second decision where Hagedorn dissented, in a case entitled Wisconsin Legislature v. Palm, this way

This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history.

The ruling killed Emergency Order #28, the “Safer at Home Order,” issued in response to the Covid-19 pandemic by the State Department of Health Services (DHS). Hagedorn refused to joint the court majority that struck down the order. Instead he wrote a stinging dissent, much of which was joined by Justices Dallet and Ann Walsh Bradley, the other two dissenters.

In an obvious swipe at Justices Rebecca Bradley and Kelly, whose tendency is to make every issue a constitutional issue, Hagedorn starts by asserting:

We are a court of law. We are not here to do freewheeling constitutional theory.

Later, he adds:

The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature.

Hagedorn argues that there are two issues. The first, whether Order 28 is really a rule rather than an order and so thus must go through a rule-making process with the Legislature, concluding it was “not because Order 28 is an order applying to a specific factual circumstance,” Covid-19.

The second issue is whether the Legislature lacks standing to bring the case. He concludes that “the legislature–as a constitutional body whose interests lie in enacting, not enforcing the laws–lacks standing to bring this claim.”

The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS … But those are the laws it drafted; we must read them faithfully whether we like them or not. … To the extent we countenance an argument that Wis. Stat. § 252.02 grants too much power to DHS, we are allowing the legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make.

There follows a discussion on the constitution and the limits of power. While the “federal government is one of limited and enumerated powers,” states have police power, covering “public health, safety or welfare.”

From the British common law through the Industrial Revolution and up through today, the power to quarantine and take other invasive actions to protect against the spread of infectious diseases has been universally recognized as a legitimate exercise of state police power.

Not surprisingly neither Kelly nor Rebecca Bradley are pleased with Hagedorn’s dissent. For example, here is Rebecca Bradley’s footnote 3:

Spurning more than two centuries of fundamental constitutional law as well as the Wisconsin Constitution’s guarantee of liberty, Justice Brian Hagedorn shockingly proclaims “the judiciary must never cast aside our laws or the constitution itself in the name of liberty.” … Setting aside the self-contradictory nature of that statement, Justice Hagedorn’s 53-page opinion contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty.

Kelly’s Footnote 5 takes a similar tone:

Chief Justice Marshall could be reaching through the intervening centuries to ask that exact question of Justice Hagedorn, who deploys a bevy of decision-avoidance doctrines …

Because of Hagedorn’s vote, the proposed voter purge was considered by the Wisconsin Court of Appeals. Its unanimous ruling overturned the trial judge’s decision, based on the actual wording of applicable Wisconsin law in section 6.50, Revision of registration list.

(1) No later than June 15 following each general election, the commission shall examine the registration records for each municipality and identify each elector who has not voted within the previous 4 years if qualified to do so during that entire period and shall mail a notice to the elector …

It then proceeds to describe the format of the notice which threatens to suspend the voter’s registration. But Wisconsin law then passes responsibility for action to local election officials, the municipal clerks in most places or election commissions in Milwaukee city and county:

(3) Upon receipt of reliable information that a registered elector has changed his or her residence to a location outside of the municipality, the municipal clerk or board of election commissioners shall notify the elector by mailing a notice by 1st class mail to the elector’s registration address stating the source of the information.

In its amici brief, the right-wing Honest Elections Project attempts to rewrite that law. It claims that:

Wisconsin law is clear: “Upon receipt of reliable information that a registered elector” has moved, WEC must send a notice to that elector and remove him from the voter rolls if he fails to respond within 30 days. Wis. Stat. §6.50(3).

In his dissent to the decision ending Safer at Home and his vote against bypassing the Court of Appeals, Justice Hagedorn appears to harken back to an earlier, traditional version of conservative judging, which emphasized that the role of judges was a modest one. Rather than making sweeping decisions that firmly put one’s stamp on public policy, it emphasized sticking to the specific wording of laws, resisting the urge to broaden the issues, and allowing the other branches of government do their thing.

Conservatives used to accuse judges appointed by Democrats as “activists,” meaning that they aimed at using cases to change society. While I think this charge was exaggerated, today we see a plague of conservative judicial activists, including several on the state’s highest court. Their eagerness to skip over the Court of Appeals is evidence of justices who cannot wait to get their hands on cases.

Order 28, like any public policy, has costs and benefits. Good public policy results from an honest balancing of these costs and benefits. Appealing to the constitution short-circuits this conversation. If a policy is unconstitutional, after all, it fails regardless of the balance of costs and benefits.

Justice Hagedorn’s actions in these two cases suggest he may evolve into a thoughtful and honest conservative judge, something the court has missed since the death of Justice Patrick Crooks in 2015.

In her ruling, Chief Justice Patience Roggensack starts on a mean-spirited note by asserting, “This case is about the assertion of power by one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not ‘essential’ …” This nasty tone continues throughout the 32 pages of her majority opinion. Here she goes again: “Rulemaking exists precisely to ensure that kind of controlling, subjective judgment asserted by one unelected official, Palm, is not imposed in Wisconsin.”

Never mind that Palm was appointed by an elected official, the governor, and that she clearly knows her business, unlike the four justices in the majority. Among the majority opinion and the concurring opinions, “unelected” appears 12 times; “death” never. We give our Supreme Courts virtually unaccountable power in the expectation that they will exercise it with discretion and compassion. In Wisconsin, that bet is a loser.