Candidates for Wisconsin Supreme Court in the April 7 election: Jill Karofsky (left) and incumbent Daniel Kelly (right)
UPDATE: On Monday, April 6, Gov. Evers signed an executive order suspending in-person voting and directing the state's legislative bodies into a special session to be held Tuesday, April 7. Read story here.
As Justice Daniel Kelly and Judge Jill Karofsky vie for a 10-year seat on Wisconsin’s Supreme Court in the April election, a case involving the statewide purging of voter-registration rolls has become a hot-button issue.
Kelly, appointed by Gov. Scott Walker to fill a Supreme Court vacancy in 2016, recused himself when the case landed before the court in December. An appeals court ruled that about 200,000 people who have moved should not be purged from voter rolls during the current election cycle. The Supreme Court has not yet taken up the case. Kelly recently said he is “rethinking” whether he will recuse himself again, if elected, when the court reviews it.
“[If] there has been no substantive work done on the case by the Supreme Court, then I wouldn’t see any basis to continue to recuse,” Kelly said.
Milwaukee attorney Walter F. Kelly, a 1997 Wisconsin Supreme Court candidate, said that the “original recusal was the right thing to do” for Justice Kelly (they are not related). “Justice Kelly advanced a reason for doing that based on the fact that he was going to be on the ballot, with respect to that vote.” However, attorney Kelly noted that Justice Kelly failed to also base his recusal on the fact that those filing the suit are represented by the Wisconsin Institute for Law & Liberty (WILL), a conservative legal group with whom Daniel Kelly had a relationship. Kelly formerly served on the litigation advisory board of the WILL. He has ruled in favor of WILL’s clients each time a case has come before the Supreme Court.
Wisconsin’s Code of Judicial Conduct (Statute 60) mandates recusal whenever a judge has any financial or personal connection to a case. In part, the law says, “A bias or prejudice requiring recusal most often arises from a prior personal relationship…” A judge also may recuse herself or himself for discretionary reasons, after weighing the ethics of potential conflicts of interest or the appearance of such conflicts.
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If Justice Kelly decides to reverse this recusal after the election, attorney Kelly said, “I think that is unacceptable because it gives the appearance of partisanship, rather than the nonpartisanship that should be attached to Supreme Court justices.” He said that “any layperson, any member of the electorate, would be offended” by what Justice Kelly is doing in such a recusal reversal.
Bad Behavior on the Bench
Failure to recuse has become more common with current members of Wisconsin’s Supreme Court. Attorney Kelly said it “has been particularly egregious with respect to the conservative members of the court and their receipt of huge amounts of campaign funds—substantial enough to have put them on the court--and then declining to recuse themselves when the sources of those funds come before the court.” He said that those justices have defended themselves by saying their non-recusals were acceptable. “Most legal ethicists agree that is not acceptable because it harms the appearance of impartiality,” said Kelly.
Douglas Hoffer, a deputy city attorney in Eau Claire, told the Milwaukee Journal Sentinel last week that judges should be hesitant about joining a case after disqualifying themselves. “I think the decision he made to recuse himself was appropriate and I think he should consider what the impact is on the public perception of the court, should he decide to reverse that decision.” Hoffer told the newspaper that he usually votes for Republicans and conservatives. He had been involved in a case in 2017 in which the City of Eau Claire asked Justice Kelly to recuse himself because of his relationship with WILL. Kelly declined to do so.
Challenger Jill Karofsky, a Dane County circuit court judge, blasted Daniel Kelly. She told the Journal Sentinel that Kelly is effectively saying, “Look, I’ll be there for you (to Republicans)—get me across the finish line on April 7 and I’ll be there for you come November. It’s not surprising to me at all and that is corruption in its purest form.”
Daniel Kelly called Karofsky’s comments out of line. He said he had declined to recuse himself from the City of Eau Claire case involving WILL because he had not been recently involved with WILL and had not discussed the case with the group.
Bill Lueders wrote in Isthmus last month, “According to a review by One Wisconsin Now, Kelly voted in sync with the conservative Wisconsin Institute for Law & Liberty on all nine cases he’s heard in which it has represented a litigant or filed an amicus brief, including his two dissents from rulings that went against the group. (One of these was cited by Kelly as an instance in which he opposed WILL while siding with it, because he rejected one of its arguments.)”
April’s election will determine the size of the court's conservative majority. “According to Ballotopedia, “A win for Karofsky would reduce the conservative majority to 4-3, meaning that the next regularly scheduled election in 2023 would decide control of the court. A Kelly win would preserve the court's 5-2 conservative majority. Assuming no justices leave the bench before their terms expire, a Kelly win would prevent a liberal majority from forming on the court until 2026 at the earliest.”
