Next week, a small percentage of Wisconsin’s eligible voters will choose Justice Shirley Abrahamson’s successor on the Wisconsin Supreme Court. As it happens, the two contenders for her seat—Brian Hagedorn and Lisa Neubauer—are not only both judges on the court of appeals, they have sat in the same district ever since Hagedorn’s appointment to the court by Governor Scott Walker in 2015. During this period, they have decided hundreds of cases together, thereby furnishing us an opportunity to assess a substantial voting record.
As the election approaches, political advertisements on television and other forms of commentary have described the two candidates as occupying starkly different ideological positions. Consequently, one might also expect that their voting on the court of appeals would be marked by frequent divergence and perhaps even dissents of an unusually passionate nature. But such has not been the case. A recent article by Bill Lueders in Isthmus reported that Neubauer and Hagedorn voted in accord last year on 43 of 46 cases “that issued opinions,” and if we cast our net more broadly, over the entire period in which the two have served, their ostensible harmony is even more vivid.
A Nexis Uni search yielded 274 cases in which Judges Hagedorn and Neubauer participated on the same three-judge panels following Hagedorn’s appointment to the court of appeals.[1] In only five of these cases (2%) did either judge dissent. Their 98% rate of agreement exceeds that of even the supreme court’s two liberals, Justices Abrahamson and A.W. Bradley (90% in 2017-18) and its two most established conservatives, Justices Roggensack and Ziegler (96%).
In the large majority of cases decided unanimously, the opinions’ authors were not identified. Emerging as per curiam decisions and summary dispositions, these cases accounted for 203 of the 274 under consideration. This leaves 71 decisions with named authors: 26 by Neubauer and 21 by Hagedorn (along with 11 by Judge Reilly and 13 by Judge Gundrum). Such decisions are supposed to be reserved for the more important cases, and in 93% (66/71) we find Hagedorn and Neubauer joining each other in the majority.
Turning our attention to the cases in which they disagreed, two things stand out. First, dissents are scarce. Neubauer did not dissent even once in the entire batch of cases, and Hagedorn did so only five times.[2] Of course it would be unreasonable to anticipate separate opinions as frequently from the court of appeals as from the supreme court, given the different roles played by the two courts and the much heavier caseload that the court of appeals must process. But it may still occasion surprise that the apparent gulf between Hagedorn and Neubauer—proclaimed by commentators left and right—does not contain more abundant evidence of discord.
Second, Hagedorn’s handful of dissents are not nearly as fervent or bitter as those often encountered at the supreme court. Indeed, he commonly expressed sympathy with the majority’s position, before arguing that the law did not permit such a resolution of the case. In Pulkkila v. Pulkkila, for instance, a couple signed an agreement as part of a divorce proceeding that required the husband to preserve his current life-insurance policy with their children as the sole primary beneficiaries. Shortly thereafter, he named his new wife as the beneficiary instead, and she received the policy amount when he died a year later. Hagedorn and the majority shared condemnation of this, but they parted ways on a remedy. The majority crafted a forceful ruling likely to deliver the full sum to the children, while Hagedorn contended that the remedy actually specified in the agreement must be followed, even though it would regrettably not provide the children with anything close to the policy amount.
Judge Reilly wrote the majority opinion in Pulkkila, and Judge Gundrum filled that role in Wise v. LIRC, another of Hagedorn’s dissents. Of greatest interest to us, however, are his three dissents in cases where Neubauer authored the majority opinion—especially the two criminal cases: State v. Denny and State v. Vesper.[3]
In Denny, the appellant sought to challenge his murder conviction by contesting an order that denied his motion for DNA testing of certain items. Neubauer’s majority ruling held that he was entitled to test the items, at either his own or public expense. Hagedorn agreed with her that the trial court had erred in not permitting Denny to have the DNA tests conducted, but he argued that the circumstances of Denny’s case did not allow testing at public expense. Hagedorn’s dissent—whose opening line reads: “There is much in the majority opinion to commend”—is by no means scathing toward Neubauer’s opinion and, as noted, he accepted that Denny had the right to DNA testing. Later, when the supreme court reversed the court of appeals, it took a considerably harder line than Hagedorn (overruling one of its own decisions in the process) and declared that Denny had no right to DNA testing—not even at his own expense.
Moreover, in Vesper, the other criminal case that found Hagedorn and Neubauer at odds, Hagedorn’s dissent favored a less severe result for the appellant than that supported by Neubauer’s majority opinion. Here, when Vesper challenged the prison term and fine that he received for his seventh drunk-driving offense, Neubauer’s majority opinion affirmed the sentence. Although Hagedorn disapproved of Vesper’s conduct, he maintained that the circuit court judge was required to provide an explicit rationale for the various aspects of the sentence (an argument normally voiced by appellate attorneys). Because the circuit court did not offer such a rationale, Hagedorn asserted, the imposition of the fine was improper.
It’s worth observing that, once again, Hagedorn’s tone is anything but caustic regarding Neubauer’s opinion: “To be sure, I am sympathetic to the majority’s view on a number of fronts.” The case presents another instance where Hagedorn laments that while the majority’s decision may seem just, it cannot be achieved without bending the law: “As sympathetic as I am to the outcome occasioned by the majority’s decision, I cannot escape the conclusion that the law dictates a different outcome.”
Conclusion.
Thus, Hagedorn’s dissents are not particularly strident, and he can even take pains to highlight areas of agreement with Neubauer and others in the majority, as demonstrated by the quotations above.[4] More important, Hagedorn and Neubauer rarely dissented from one another at all—Hagedorn only five times, and Neubauer never—in hundreds of criminal and civil cases.
How strange it is to contrast the two candidates’ harmonious voting record with pronouncements about the election offered by liberal and conservative commentators alike. According to attorney Tim Burns, an unsuccessful liberal candidate for the supreme court in 2018, a Neubauer victory would be a vital step in altering the court’s ideological posture. Hence, “[i]t is absolutely critical we win this race.” Hagedorn himself has described the election as one that likely “determines the philosophy that will govern the Supreme Court for the next 10 to 20 years.”[5] In both tellings, the election’s result assumes epochal significance.
And yet … Where are we left on the eve of the election, if the candidates’ multitude of judicial decisions reveal negligible difference between them? In the absence of clear guidance from this quarter, attention shifts to indicators of the sort explored by diverse news sources—namely, Neubauer’s extensive family connections with the state Democratic Party and Hagedorn’s close association with Scott Walker along with unretracted statements such as those that likened homosexual relationships to bestiality and placed Christianity above other faiths as the “correct religion.” To put this another way, how much weight should be attached to judicial consensus spanning hundreds of decisions on the one hand and, on the other, much more provocative information from outside the courthouse—including Hagedorn’s own claim regarding the election’s extraordinary consequences? It appears that only after the victorious candidate takes a seat on the bench in Madison will we begin to discover which factors would have been the most help in predicting the votes that this newest justice will cast.
[1] This total excludes four “hits”—two certifications of cases to the supreme court and a pair of announcements that previous opinions had been withdrawn. (Revised decisions were filed in the two cases, and these decisions are included in the total of 274.) The search covered the period from 2015 through March 22, 2019.
[2] Gundrum authored no dissents, and Reilly authored only five.
[3] The third case is Associated Bank, N.A. v. Kathryn Brogli.
[4] The most sarcastic passage in any of Hagedorn’s dissents may be found in the opening line of his introductory paragraph in Wise v. LIRC (whose majority opinion was written by Judge Gundrum): “Like a master chef, the majority slices and dices Wise’s lengthy medical history, carefully working through the highs and lows to paint a picture of her evolving maladies.” The first sentence of his next paragraph adds: “But our review is not a Gordon Ramsay-like interrogation of an aspiring culinary artist’s latest dish.” However, these two sentences do not characterize the tone of the rest of the dissent—nor of Hagedorn’s three dissents directed at Neubauer’s majority opinions.
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