"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
In his application's cover letter to Walker, Hagedorn wrote, "One of the great honors of my life has been serving as your top advisor on judicial appointments. Many hours have been spent seeking and promoting those that share your judicial values, those that will leave a legacy for years to come."
Name: Brian K. Hagedorn
Appointed to: District 2 Court of Appeals
Appointment date: July 31, 2015. (Elected to a six-year term in 2015.)
Law School – Northwestern University
Undergrad – Trinity College, Deerfield, IL
High School – Wauwatosa West
2011 - present – Chief legal counsel, Office of Governor Scott Walker
2010 - 2011 – Assistant attorney general, Wisconsin Department of Justice
2009 - 2010 – Law clerk, Wisconsin Supreme Court
2006 - 2009 – Attorney, Foley & Lardner
Eastern District of Wisconsin
Seventh Circuit Court of Appeals
Wisconsin State Bar
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Worked as litigator, adjudicator, and in-house general counsel.
My experience isn't complete without noting my time as a law clerk on the Wisconsin Supreme Court. While there, I assisted Justice Gableman and the Court in well over 100 cases dealing with insurance disputes, criminal procedure, administrative law, and significant constitutional cases, to name a few.
Finally, in my current role, I serve as essentially the in-house general counsel for the Walker administration. Thus, though I have not been the attorney of record, I have played a significant role in overseeing quite possibly the most significant flurry of legislation-related litigation this state has ever seen. My role included overseeing the hiring and management of outside counsel, reviewing briefs, leading strategic discussions, participating in mock arguments, and sitting at the counsel table in federal and state courts. As such, I have been a key player in many cases in state and federal courts, from the trial level to the appellate level, including multiple cases before the Wisconsin Supreme Court and the Seventh Circuit Court of Appeals. Sample litigation includes nine separate cases challenging Act 10 in Wisconsin and federal courts (we won them all); four different cases challenging the Voter ID law in Wisconsin and federal courts (we won them all); a bankruptcy/Eleventh Amendment case in federal court (pending); a challenge to a law we signed reforming administrative rules (pending); and the recent constitutional challenge to the state's new right to work law (pending). In addition, I have played a key role in multistate cases Wisconsin has participated in as a party and as amicus in courts around the country, including many in the United States Supreme Court. I have been the Governor's counselor and the key strategic and legal contact in the Governor's Office for the Attorney General on our participation in these cases. Sample cases include multistate medicaid fraud, amicus work in U.S. Supreme Court criminal procedure cases, and significant constitutional cases like the challenges to the Affordable Care Act and the President's recent immigration orders.
Number of cases tried to verdict or judgment: Jury, 0; non-jury, 10; arbitration, 1; administrative bodies, 0.
Cases on appeal: Including my work as chief legal counsel in the Office of the Governor, I have been involved in some capacity in dozens of appellate cases, though my level of involvement has varied. It is worth noting as well that I participated in well over one hundred additional appeals as a law clerk at the Wisconsin Supreme Court. ...
In my current position, as noted above, I am involved in most major litigation involving the State of Wisconsin. Notable cases include the following:
Act 10 Litigation: I oversaw the hiring and management outside counsel, and in partnership with the Department of Justice, helped lead the State's defense in all 9 cases challenging Act 10. These cases led to two decision in the Seventh Circuit--WEAC v. Walker, 705 F.3d 640 (7th Cir. 2013) and Laborers Local 236 v. Walker, 749 F.3d 628 (7th Cir. 2014), and two decisions in the Wisconsin Supreme Court--State ex rel. Ozanne v. Fitzgerald, 798 N.W.2d 436 (Wis. 2011) and MTI v. Walker, 851 N.W.2d 337 (Wis. 2014). These cases covered issues in employment law, the Fourteenth Amendment, the First Amendment, and core structural questions related to the separation of powers. I was deeply involved in strategy, editing briefs, and argument preparation.
Voter ID: I worked with the Department of Justice throughout two state court cases and two federal cases. The federal cases culminated in an opinion upholding the Voter ID law--Frank v. Walker, Lulac v. Deininger, 768 F.3d 744 (7th Cir. 2014). The same result was reached by the Wisconsin Supreme Court in the two state cases--League of Women Voters v. Walker, 851 N.W.2d 302 (Wis. 2014) and NAACP v. Walker, 851 N.W.2d 262 (Wis. 2014).
Administrative Rules: I have worked very closely with the Department of Justice in crafting our legal arguments in defense of the Governor's power to approve administrative rules promulgated by the Superintendent of Public Instruction. ...
Same-sex marriage: I worked with the Department of Justice to prepare the defense of Wisconsin marriage laws. The Seventh Circuit ultimately held that the Fourteenth Amendment to the United States Constitution prohibited Wisconsin from continuing to limit marriage to unions between one man and one woman. Baskin v. Bogan, Wolf v. Walker, 766 F.3d 648 (7th Cir. 2014).
The Governor's appointment powers: I worked with the Department of Justice in defense of the Governor's appointment powers vis-à-vis federal bankruptcy law. The Seventh Circuit issued a partial decision in Chasensky v. Walker, 740 F.3d 1088 (7th Cir. 2014) holding that the Governor enjoyed qualified immunity from the plaintiff's privacy and equal protection claims.
Significant multistate appeals I have worked on include our current challenge to the President's immigration laws (Texas v. United States, Fifth Circuit Case no. 15-40238) and the challenge to the Affordable Care Act (NFIB v. Sebelius, 132 S.Ct. 2566 (2012)). Indeed, it is fair to say I have been involved in most major multistate efforts around the country in some capacity, whether in cutting edge criminal law cases to ground-breaking cases dealing with core issues of federalism and religious freedom.
Two most significant cases:
State ex rel. Ozanne v. Fitzgerald (Wis. 2011)
I began assisting in the drafting of Act 10 not long after the Governor was inaugurated. We knew litigation would come, and come it did. But we did not expect the first legal fight to be over whether the legislature has the power to carry out its legislative role without judicial interference. Contrary to popular understanding, State ex rel. Ozanne was not about open government or even the merits of Act 10. It was about core separation of powers principles. Namely, does the Wisconsin Constitution permit a circuit court judge to tell the legislature how to follow the legislature's internal rules, and can a circuit court judge prevent a duly enacted bill from becoming law (separate distinct from the power to enjoin an unconstitutional law)? The case in circuit court was fraught with procedural irregularities; we felt our only recourse was to have the state bring an original action against the circuit court judge and the district attorney. The Wisconsin Supreme Court ultimately took the case and agreed with us that the circuit court had violated the separation of powers.
This case was important for several reasons. First, there have been few more consequential pieces of legislation in Wisconsin history. The public policy impact of this victory is hard to understate. Second, the separation of powers embodied in our Constitution is core to our freedom and to our republican form of government. The Wisconsin Constitution simply does not give the judiciary authority to act as it did. The Supreme Court recognized and remedied this, explaining that they granted the petition for original action "because one of the courts that we are charged with supervising has usurped the legislative power which the Wiconsin (sic) Constitution grants exclusively to the legislature." Id. at para. 7. Finally, this case is significant because the Court stepped into a complicated political situation to uphold the rule of law. Courts need to have the intellectual and moral courage to refrain, but also the intellectual and moral courage to step in--all of this in furtherance of their limited, but meaningful Constitutional role.
MTI v. Walker (Wis. 2014)
Following the procedural challenge to Act 10 in State ex. rel. Ozanne, a flurry of suits were filed challenging the substance. They followed two basic theories. One set of cases challenged the law on equal protection grounds, quibbling with legislative line drawing on general employees versus public safety employees, and arguing that prohibiting units of government from collecting union dues via payroll deduction violated the First Amendment. The Seventh Circuit Court of Appeals rejected these theories and upheld Act 10 in its entirety in WEAC v. Walker, 705 F.3d 640 (7th Cir. 2013). The second set of cases argued that the provisions of Act 10 collectively imposed a burdensome and unconstitutional condition upon membership in a union in violation of the unions' First Amendment speech and association rights. One case was decided in the federal courts, with both Judge Conley and the Seventh Circuit rejecting this theory (Laborers Local 236 v. Walker, 749 F.3d 628 (7th Cir. 2013)). A separate case brought in state court came to the same outcome (WLEA v. Walker, Case No. 12CV4474). The third case making the same claims, but this time finding some early success, was MTI v. Walker.
The Dane County Circuit Court struck down several provisions of Act 10 under this unconstitutional conditions theory. The case also raised significant issues regarding the Wisconsin Constitution's home rule provisions. There were many wrinkles in the case procedurally as well. We fought vigorously over a stay of the lower court ruling, and had significant disagreements over the reach of the circuit court decision. We argued that the order was a declaration applicable only to the parties; the plaintiffs argued it was the legal equivalent of a Supreme Court decision. While the case had already been accepted by the Wisconsin Supreme Court, the circuit court entertained and granted a motion for contempt against the WERC Commissioners for enforcing Act 10 against non-parties. The Supreme Court ultimately used its superintending authority to vacate the contempt order. On the merits, the Supreme Court again upheld Act 10 in its entirety.
The public confusion, procedural wrangling, and political import of every move in this case made it at once thrilling and dismaying. It was incredibly frustrating to have legal theories handily and correctly rejected in nearly identical cases nonetheless create incredible uncertainty and protracted litigation in this case for three years. But this case represents an even more incredible triumph. Act 10 was a significant and complex piece of legislation challenged at every level with nearly unlimited resources by those who were unable to defeat it at the ballot box. Every legal challenge failed in its entirety, as each should have under the law. At the end of the day, apart from the underlying policy merits, the rule of law won.
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: I was a member and later board member of the Kenosha County Republican Party from 2005-2009. In addition to various party-building activities, I assisted in various local races. In 2008, I was the county co-chair for the McCain campaign. Since taking on my role at the Governor's Office, I have, on my own time, given informal assistance and guidance to several judicial candidates.
Judicial or non-partisan candidates publically endorsed in the last six years: I do not recall all of the candidates who I have endorsed, but they include Justice David Prosser and (now Chief) Justice Patience Roggensack. I likely also gave my endorsement to several judicial appointees I met through the appointment process, but I do not know which, if any, would have listed me as having given a public endorsement.
Honors, prizes, awards received: In May 2014, I was named Trinity College alumnus of the year. I was honored at the graduation ceremony and gave brief remarks. I understand that I am the youngest award winner in the College's history. The award was given in recognition of "Outstanding Vocational Accomplishments, Community Leadership and Endeavors, and Meritorious Service and Commitment to Christ."
Memberships in bar associations and professional societies: ... I have been a member of the Eastern District Bar Association from roughly 2006-2014. I have also been a member of the State Bar Bench-Bar Committee since 2013.
In addition, I have long been a member of the Federalist Society, attending the national lawyers convention in Washington, D.C., attending local events, and helping to start the local lawyers chapter in Madison.
I do not recall all of the candidates who I have endorsed, but they include Justice David Prosser and (now Chief) Justice Patience Roggensack. – District 2 Appeals Judge Brian K. Hagedorn
Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application:
I have always been involved in my local church, often in a leadership role. At my current house of worship, The Vine Church in Madison, I have taught Sunday School, served on the cleaning team, led a small group, and served as a host pastor facilitating weekly worship. My church also serves regularly at the Elizabeth House, a residential maternity and parenting program for moms-to-be. I've engaged in similar service at my prior houses of worship.
Describe any significant pro bono legal work in the last five years:
No answer given to this question. Instead, in answer to the next question regarding legal teaching or lecturing, the applicant said, “For ease, I will combine the answers” to the two questions.
Hagedorn listed speeches and lectures, including leading a Federalist Society panel discussion, “Act 10: A Postmortem,” in 2014. Other presentations included a speech on “Top Tips for Succeeding as Chief Counsel to a Governor” at a 2015 conference of top legal leaders at the state level.
Quotes: Why I want to be a judge – Broadly conceived, I believe engagement in public life through the law is my vocational calling. Central to that for me is a devotion to the rule of law, our written Constitution, and the separation of powers. A significant portion my time in the Governor's Office has been devoted to precisely these values, through litigation, management of executive branch duties, and overseeing the judicial appointment process. Promoting judges who believe in the rule of law, and have the intellectual and moral courage to live out this commitment, has been a driving passion for me. Joining the ranks of these public servants, then, is a natural extention (sic) of this vocational calling.
The appellate bench is an opportunity to serve people by upholding the rule of law. It is an opportunity to influence how law is done in our courts through excellent legal scholarship. It is an opportunity to do basic justice by ensuring, consistent with the law, that contracts are enforced, criminals are held accountable, and constitutional rights are respected. I am not pursuing this to achieve a title or career capstone. My commitment to promoting the public good through the judicial role is what drives me.
After many conversations with colleagues and mentors, I believe this role is a proper fit not only to my calling, but to my gifts as well. I love reading and writing and thinking about the law. I have, I believe, the temperment (sic) and mindset of a jurist. And I look forward to the kind of collaborative and collegial decision-making performed by an appellate panel. In short, this position seems to accord with my vocational mission, my skill set, and my interests. Few are so fortunate to have this alignment in their career path.
Best United States or Wisconsin Supreme Court opinion in the last thirty years – Coulee Catholic Schools v. LIRC (Wis. 2009)
This case, which I had the privilege of working on while clerking at the Supreme Court, concerned whether Wisconsin non-discrimination laws could apply to the termination of a teacher at a Catholic school. The Court rightly determined that both the U.S. and Wisconsin Constitutions precluded an age discrimination claim, and it did so using a legal approach I would seek to emulate.
First, the Court understood its proper role. It is not clear who would win a popular vote today in a conflict between a discrimination claim and religious freedom. But the Court's job was not to decide what was more valuable or important to society, or to balance the values. Rather, the Court's job was to determine whether the federal or state constitutions protected the religious school's power to decide how to govern itself. ...
A second notable and noble virtue of this opinion is its root in the text, particularly in its analysis of the Wisconsin Constitution. The Court states, "The authoritative, and usually final, indicator of the meaning of a provision is the text--the actual words used." … And rather than just subsuming the Wisconsin Constitution into the First Amendment, the Court lets the different and broader language speak for itself, and more firmly root its holding. ...
Worst United States or Wisconsin Supreme Court opinion in the last thirty years – Lee v. Weisman (1992)
In 1989, a principle at a middle school in Providence, Rhode Island invited a Jewish rabbi to lead a voluntary prayer at the voluntary graduation ceremony. The parents of one student objected, arguing that the First Amendment prohibited such an invitation. The United States Supreme Court agreed. As a policy matter, it is not clear to me that government-led prayers in public school are an altogether good thing. My disagreement with this case rests upon its weak jurisprudential foundations.
First, legal analysis of a constitutional provision should begin with the original public meaning of the clause itself. This case does none of that. The Establishment Clause was, at least in large part, a federalism provision leaving regulation of religion to the states. But even accepting that it has some enduring application against state and local action, it can't be read to proscribe activity the authors of the First and/or Fourteenth Amendments would have understood to be very much in compliance with the First Amendment, as Justice Scalia's dissenting opinion ably points out.
Constitutions should be read consistent with the original public meaning of its terms. – Hagedorn
Second, this case, and Establishment Clause jurisprudence generally, looks very little like law. Much of it has the symptoms of a Court discussing desireable social policy or the proper place of religion in public life, and then crafting a legal rule that makes sense in light of that policy. This is not how judges should make law; that is the legislature's job absent violation of a clear constitutional imperative. ...
Thus, the opinion may or may not reach a desireable (sic) social policy outcome. But it is not the kind of legal reasoning, either in quality or in first principles, that should mark the judicial craft. Courts are at the nadir of legitimacy when their decisions set social policy for the people without grounding it in the constitutional text the people themselves have adopted.
Judicial philosophy – A judicial philosophy must begin with a sober sense of the judiciary's role in our constitutional system. The framers of our federal and state constitutions created a tri-partite system of government; the legislative branch (generally with the consent of the head of the executive branch) makes the laws, the executive branch executes the laws duly enacted, and the judiciary declares--when cases come before it--what the law is as applied to the facts of that case.
This means that, excepting certain discretionary determinations like sentencing, personal political values should not have a place in the judicial task. Faced with litigation laden with political and policy implications, the judge must simply say what the law says. This is easy to say, but hard to do. In practice, every judge will face the temptation to allow his or her own biases--we all have them--to color a judicial determination. Resisting this temptation requires both moral and intellectual courage, as well as a healthy dose of humility and self-awareness.
This does not mean, of course, that judges are impotent and must always defer to the legislature. Indeed, the people are sovereign, and the people have adopted a written Constitution that is supreme over the statutory enactments of legislatures. A court striking down a statute as unconstitutional is inherent in the power to say what the law is. A court must declare statutes conflicting with the higher law adopted by the people in a constitution invalid; to not do so is abdication of the judicial role. The danger, of course, is that some see the constitution as primarily about "fairness" or "justice" and use it to overrule the supposedly inferior policy choices of the people. Again, the judicial branch may say what the law is when properly presented with a case, but it must resist the temptation to assume the power of judicial review with respect to legislation it simply finds personally offensive.
Finally, a judge's power to declare what the law is must be rooted in the proper interpretive tools. Statutes should be read to say what they actually say. Constitutions should be read consistent with the original public meaning of its terms. Interpretation begins, and usually ends, with a proper analysis of text, context, and structure. Lower courts should adhere to precedent. And judicially created analytical frameworks should be tethered to the text and provide clear notice and application to those it regulates.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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