Brian Hagedorn (left) and Lisa Neubauer are both members of the same state appeals court.
One of the most consequential elections in modern Wisconsin history will take place April 2. The Supreme Court contest between appeals court judges Lisa Neubauer and Brian Hagedorn could shape the court’s ideological balance, with deep ramifications for the state’s future.
Outside groups will spend vast sums — likely more than the candidates, as in other recent state Supreme Court elections — to urge voters to pick one judge over the other, painting the differences between them as vast.
But are they?
Clearly, the two candidates’ backgrounds suggest ideological affiliations that comport with what their core supporters want.
Neubauer was appointed to the 2nd District Court of Appeals in 2007 by Democratic Gov. Jim Doyle, won two elections and is now its chief judge. Her husband, Jeff, is a former Democratic state legislator who later chaired the state party and ran Bill Clinton’s Wisconsin presidential campaigns. Her daughter, Greta, is a Democratic lawmaker from Racine.
Hagedorn was tapped for the same court by Republican Gov. Scott Walker in 2015, and won a six-year term in 2017. He headed his law school’s chapter of the conservative Federalist Society and became Walker’s chief legal counsel, where he was, states his campaign bio, “involved in some of the most significant and high profile litigation in Wisconsin history.” Read: Act 10.
The winner will replace longtime Justice Shirley Abrahamson, who at age 85 and fighting cancer is not seeking another 10-year term. A win by Neubauer would preserve the court’s current 4-3 balance, with conservatives in the majority, and set the stage for liberals to regain control in 2020, when Walker appointee Daniel Kelly — an ultraconservative who has inveighed against same-sex marriage and likened affirmative action to slavery — must face voters.
Republicans in the Legislature were so concerned Kelly would be at a disadvantage in 2020, when Democratic voters are expected to turn out en masse for Wisconsin’s presidential primary, that they tried moving the primary to a different date, but had to back down.
If liberals do clinch the majority, conservatives’ next chance to regain it would be against three-term Justice Ann Walsh Bradley in 2025, followed by Justice Rebecca Dallet in 2028. Meantime, the court’s ideological balance could prove pivotal in court challenges involving GOP-initiated Republican gerrymandering and voter suppression laws meant to hurt Democrats.
In sum, the April 2 election could affect Wisconsin’s future for years, even decades, to come. Yet a review of Neubauer and Hagedorn’s recent rulings reveals little difference between them.
The 2nd District Court of Appeals, one of four state appellate courts, covers 12 counties in southeastern Wisconsin. Its purpose is to review actions by the state’s circuit courts.
In 2018, the court issued 117 opinions, including 46 on which both Neubauer and Hagedorn participated, an Isthmus analysis shows. (The court has four judges who decide cases either on their own or as part of three-judge panels.) Of these, the rival judges agreed 43 times.
In one of the three exceptions, Hagedorn dissented from his colleagues’ decision to overturn a state commission that had denied an employee workers compensation, writing saucily, “Like a master chef, the majority slices and dices [the employee’s] lengthy medical history, carefully working through the highs and lows to paint a picture of her evolving maladies.” In a second case, Hagedorn disagreed with Neubauer and another judge on a property-division dispute.
And in the only 2018 criminal case in which he and Neubauer differed, Hagedorn dissented from a ruling to uphold a fine in a drunken driving case, saying the majority lacked an adequate basis for its actions.
Isthmus also analyzed all 122 opinions regarding criminals by the 2nd District in 2016, 2017 and 2018 — the three full years both Neubauer and Hagedorn served. (About a third of the court’s cases result in opinions; the rest are resolved through other means, including summary dispositions.)
Of these opinions, 44 were issued by panels that included both Neubauer and Hagedorn. They disagreed just twice: the aforementioned drunken driving fine and a 2016 ruling involving convicted murderer Jeffrey C. Denny. Neubauer and another judge said Denny was entitled to test crime scene items “at private or public expense.” Hagedorn, in dissent, said Denny had not met the standard for publicly funded testing but could do so at private cost under precedent law.
The state Supreme Court’s conservative majority later cited Hagedorn’s analysis in ditching its precedent ruling, denying Denny any DNA testing. Justice Ann Walsh Bradley, in dissent, decried this as conservative judicial activism: “Throwing caution (as well as any semblance of judicial restraint) to the wind, the majority steps in to perform the Legislature’s job.”
Of these 122 opinions involving criminals, Neubauer took part in 78 and Hagedorn in 74, either singly or as part of three-judge panels. Both generally ruled against criminal defendants, rejecting arguments that evidence was improperly obtained or defendants received ineffective assistance of counsel, among other challenges.
The exceptions are few. Besides his dissent on the drunken-driving fine, Hagedorn served on unanimous three-judge panels that gave a convicted drug dealer a three-day sentence credit; granted a new trial to a convicted thief due to a faulty jury instruction; and ruled that the standard had not been met for ordering a man convicted of possessing child porn to pay restitution to the child’s mother. Hagedorn also, as a sole judge, overturned a termination of parental rights that was based on a single conviction, not “a pattern of abusive behavior,” as the law requires.
Besides being in the majority on the Denny case, Neubauer was on a panel that ordered a sentencing reconsideration for a man convicted of causing a death while driving after license revocation. And she and Hagedorn joined in a 2017 ruling that a circuit court erred in suppressing evidence that a fatal crash was caused by a seizure and not the use of drugs.
That makes just eight opinions in which Neubauer and Hagedorn sided at least in part with convicted criminals. Add in their fellow District 2 judges, Mark Gundrum and Paul Reilly, and the total is nine, or about 7 percent of the 122 opinions. In several cases, the judges overturned lower court rulings in defendants’ favor.
Dean Strang, a prominent local defense attorney, is not surprised by these findings. “It’s a court that in my view routinely, and with little apparent critical analysis, affirms the status quo and looks for reasons to excuse errors as harmless [and] for technicalities on which to uphold unreliable convictions,” he says. “The next time I see a well-reasoned, inspiring or courageous ruling out of District 2 will be the first time.”
The 2nd District and other state appeals courts, Strang notes, handle a large number of cases relative to the state Supreme Court, which also has more jurists, and deliver “rapid, assembly-line justice.”
Strang points to the 2013 decision, by a District 2 panel including Neubauer, which spent just two pages analyzing before rejecting Brendan Dassey’s effort to disallow the confession he gave as a 16-year-old in the murder case involving his uncle (and Strang’s client) Steven Avery.
That confession later spurned international outrage when the Netflix series Making a Murderer provided a glimpse into how it was obtained. A three-judge federal court panel later deemed the District 2 court’s ruling “objectively unreasonable,” but this determination was narrowly overturned when the full court took the case.
The general antipathy shown by Neubauer and Hagedorn toward lawbreakers in no way ensures they won’t be portrayed in campaign ads as criminal-coddling menaces to society. In the last Supreme Court race, in which liberal Dallet trounced conservative Michael Screnock, both sides aired messages to this effect.
For instance, the business lobby group Wisconsin Manufacturers & Commerce has spent nearly $7 million since 2007 on such ads, even through crime isn’t on its nine-item list of areas of concern. WMC’s soft-on-crime messaging is meant solely to scare voters into picking justices who will, say, side with companies over injured consumers.
Asked what “distinguishes you [from your opponent] in terms of the legal analysis you apply and the decisions you reach on cases?” Hagedorn’s campaign said he is “an originalist and a textualist” in interpreting the law while “Judge Neubauer has never described herself that way.” It added: “The biggest differences in the cases they have decided together arise when Judge Neubauer’s sense of justice is violated. In those cases, she is more willing to exercise judicial power to achieve her version of a just result.” The sole example given was the Denny case.
Neubauer’s campaign, which proclaims in its literature that Hagedorn has “a deeply partisan history and an ideological agenda,” responded to the same question as follows: “As a sitting judge, it would not be appropriate for Chief Judge Neubauer to comment on the court’s cases, and particularly those in which she and her opponent have disagreed.”
But, Neubauer stressed, “I don’t come to any decision with an outcome in mind, an agenda or any ideology.”
