Daniel Kelly (Wisconsin judge)

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Dan Kelly
Kelly in 2023
Justice of the Wisconsin Supreme Court
In office
August 1, 2016 – July 31, 2020
Appointed byScott Walker
Preceded byDavid Prosser Jr.
Succeeded byJill Karofsky
Personal details
Born (1964-02-25) February 25, 1964 (age 60)
Santa Barbara, California, U.S.
SpouseElisa Kelly
Children5
EducationCarroll University (BA)
Regent University (JD)
WebsiteCampaign website

Daniel Kelly (born February 25, 1964) is an American attorney and former judge who served as a Wisconsin Supreme Court Justice from August 1, 2016, through July 31, 2020.[1]

He was appointed by Wisconsin Governor Scott Walker in 2016 to fill the unexpired term of Justice David Prosser Jr., but lost election for a full term in 2020 to circuit judge Jill Karofsky by a margin of 10.5%.[2][3] He lost in a second attempt to win a seat in the 2023 Wisconsin Supreme Court election to circuit judge Janet Protasiewicz by a margin of 11.2%.

Early life and education[edit]

Born in Santa Barbara, California, Kelly grew up in Arvada, Colorado. He moved to Waukesha, Wisconsin, in 1982 to attend Carroll College, where he graduated in 1986 with degrees in political science and Spanish.[4] He attended the evangelical Christian Regent University School of Law, where he was founding editor-in-chief of the law review,[5] graduating in 1991.[6]

Legal career[edit]

After law school, Kelly clerked for Wisconsin Court of Appeals judge Ralph Adam Fine for one year, then for the United States Court of Federal Claims for four years.[4]

From 1998 to 2013, Kelly worked as a litigator at Reinhart Boerner Van Deuren, a law firm headquartered in Milwaukee. While there, he represented a variety of corporate and political clients. In 1999, he represented University of Wisconsin student Scott Southworth in Board of Regents of the University of Wisconsin System v. Southworth, a United States Supreme Court case regarding the constitutionality of mandatory student activity fees to fund activist groups at public universities.[citation needed] Later in his private practice career, he represented Republicans in the Wisconsin Legislature in lawsuits over the 2010 legislative redistricting in Wisconsin.[7]

Kelly left Reinhart in 2013 to serve as vice president and General Counsel for the Kern Family Foundation, a conservative nonprofit in Waukesha County.[7]

In 2014, he left the Kern Family Foundation to co-found a private practice firm, Rogahn Kelly, LLC. He stayed there until his appointment to the Wisconsin Supreme Court.[7]

Wisconsin Supreme Court[edit]

After the announcement of the nearing retirement of Justice David Prosser Jr., in 2016, Kelly was appointed by Governor Scott Walker to serve as a justice of the Wisconsin Supreme Court. Under Wisconsin law, the seat would come up for election on the next spring election when no other Wisconsin Supreme Court seat was up for election.[8] At the time, Walker received criticism for selecting a Justice with no prior judicial experience who held the fringe view that affirmative action was comparable to slavery.[9] Justice Kelly ran for a full term on the court when it came up for election in 2020, but was defeated by current Wisconsin Circuit Court judge Jill Karofsky. Justice Kelly's term in office ended July 31, 2020.[10]

Wisconsin Carry v. City of Madison[edit]

In a 2017 case, Kelly wrote for a 5–2 majority holding that the City of Madison is forbidden under state statute from banning passengers from carrying firearms on city buses.[11]

Tetra Tech v. Department of Revenue[edit]

In a landmark 2018 administrative law case, Kelly wrote the Court's lead opinion, which held that the Court would no longer follow the practice of judicial deference to agencies' interpretations of their own rules in Wisconsin.[12]

Alleged conflicts of interest[edit]

During his time on the Wisconsin Supreme Court, Kelly came under fire for not recusing himself from multiple cases that involved organizations with which he had close ties. As one example, in the days immediately preceding the decision Koschkee v. Taylor, Kelly received $1,000 contributions from board members of the non-profit conservative law firm, Wisconsin Institute for Law and Liberty, that was representing the petitioners in Koschkee v. Taylor.[13] Kelly would ultimately join the majority opinion that ruled in favor of the Petitioners.[14]

Kelly also opposed a petition brought by over 50 retired Wisconsin judges to strengthen standards on when judges should remove themselves from cases because of a conflict of interest.[15]

2020 Wisconsin Supreme Court election[edit]

Main article: 2020 Wisconsin elections § State Supreme Court

On May 28, 2019, Kelly officially announced his intent to run for a full ten-year term on the Wisconsin Supreme Court. He faced two opponents in the race, Marquette University Law School professor Ed Fallone and Dane County Circuit Court judge Jill Karofsky.[16] He came in first in the February primary, but lost the April general election to Karofsky.[17]

Post-Supreme Court career[edit]

After losing the 2020 Wisconsin Supreme Court election, Kelly joined a conservative nonprofit, the Institute for Reforming Government, as a senior fellow in constitutional governance.[18] While there, he was the author of the "Lawmaker's Manual for Executive Oversight," a guide for Wisconsin legislators to use their investigatory committee powers to hold executive branch officials accountable.[19]

Since leaving the Wisconsin Supreme Court, Kelly has been vocal in his criticism of his former colleague, conservative justice Brian Hagedorn, for breaking with the court's conservative majority on several decisions. Kelly accused Hagedorn of considering the political implications of his rulings instead of "following what the law says".[20]

Involvement in Stop the Steal movement[edit]

Kelly was paid $120,000 by the Wisconsin State Republican Party and the Republican National Committee as an attorney who worked on election issues in 2020 after his term with the Wisconsin Supreme Court ended.[21] In the weeks following the 2020 presidential election, he provided legal counsel to the Wisconsin GOP to overturn the 2020 election.[22] Former Wisconsin Republican Party Chairman Andrew Hitt said in a deposition that he and Kelly had "pretty extensive conversations" about the illegal fake elector scheme in Wisconsin that was one of the well-known attempts to overturn the 2020 United States presidential election.[23]

2023 Wisconsin Supreme Court election[edit]

Main article: 2023 Wisconsin Supreme Court election

In September 2022, Kelly announced that he would run for retiring justice Patience D. Roggensack's seat on the Wisconsin Supreme Court.[24] He faced three opponents in the race, conservative Waukesha County Circuit Judge Jennifer Dorow and two liberal candidates, Milwaukee County Circuit Judge Janet Protasiewicz and Dane County Circuit Judge Everett Mitchell.[25] Kelly came in second in the February 2023 primary, advancing to the general election against Protasiewicz, which took place on April 4, 2023.[26]

Leading up to the February primary election, Kelly received financial support from influential political donors Richard and Elizabeth Uihlein,[27] with Fair Courts America, the Super Pac largely bankrolled by the Uihleins, having spent $1.8 million on ads supporting Kelly, and an additional $40,000 of political contributions made to Kelly's campaign by the Uihleins.[28]

Despite having taken no public stance on the constitutionality of Wisconsin's existing 1849 law that bans abortion in all cases except for when abortion is performed to save the life of the mother,[29] Kelly had also been endorsed by Wisconsin Right to Life, Wisconsin Family Action and Pro-Life Wisconsin, three anti-abortion groups.[30]

Ellen Brostrom, Milwaukee County circuit judge and Roggensack's daughter, opined an article in the Milwaukee Journal Sentinel criticizing Kelly's fitness to serve on the court and endorsing Janet Protasiewicz.[31]

Following his loss to Protasiewicz, Kelly refused to call Protasiewicz to formally concede the race. Instead, he called Protasiewicz "not ... a worthy opponent to which I can concede". Kelly added that he believed Protasiewicz was a "serial liar", her campaign was "dishonorable and despicable", and she had "demeaned the judiciary".[32][33] The day after this speech, local political columnist Daniel Bice opined that there was "no bigger or sorer [election] loser" than Kelly. Bice added that Kelly's legacy in Wisconsin would now focus on his being "the first Republican to put two liberals on the state Supreme Court single-handedly."[34]

Personal life[edit]

Kelly is a Christian.[35] Kelly is married to Elisa Kelly, whom he met during their time together as students at Carroll University. They have five children and reside in North Prairie, Wisconsin.[4]

Views[edit]

After President Obama's 2012 re-election win, Kelly said his re-election was a win for the "socialism/same-sex marriage/recreational marijuana/tax increase crowd."[36] Kelly has likened Social Security to slavery.[36] He has argued that U.S. Supreme Court's decision in Obergefell v. Hodges (2015), which ruled that bans on same-sex marriage were unconstitutional, was illegitimate.[36] In 2014, Kelly wrote that slavery and affirmative action both "spring from the same taproot" and that "neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship."[37] Kelly is also considered staunchly anti-abortion, after a 2012 blog post where he described abortion, at any stage of the pregnancy, to "the taking of human life."[38]

In his application to be Governor Walker's nominee to the Wisconsin Supreme Court in 2016, he wrote that the best U.S. Supreme Court decision of the prior 30 years was United States v. Lopez (1995) and that the worst decision was Kelo v. City of New London (2005).[39] In his 2023 bid for a seat on the Court, he reiterated his view that Kelo was wrongly decided.[40]

Electoral history[edit]

Wisconsin Supreme Court (2020)[edit]

Wisconsin Supreme Court Election, 2020[41]
Party Candidate Votes %
Primary Election, February 18, 2020
Nonpartisan Daniel Kelly (incumbent) 352,876 50.04%
Nonpartisan Jill J. Karofsky 261,783 37.13%
Nonpartisan Ed Fallone 89,184 12.65%
N/a Scattering 1,295 0.18%
Total votes 705,138 100.0%
General Election, April 7, 2020[42]
Nonpartisan Jill J. Karofsky 855,573 55.21%
Nonpartisan Daniel Kelly (incumbent) 693,134 44.73%
N/a Scattering 990 0.06%
Total votes 1,549,075 100.0%

Wisconsin Supreme Court (2023)[edit]

Wisconsin Supreme Court Election, 2023[43]
Party Candidate Votes % ±%
Primary Election, February 21, 2023
Nonpartisan Janet Protasiewicz 446,403 46.42%
Nonpartisan Daniel Kelly 232,751 24.20% -25.84%
Nonpartisan Jennifer Dorow 210,100 21.85%
Nonpartisan Everett Mitchell 71,895 7.48%
Write-in 516 0.05% -0.13%
Total votes 961,665 100.0% +36.38%
General Election, April 4, 2023[44]
Nonpartisan Janet Protasiewicz 1,021,822 55.43%
Nonpartisan Daniel Kelly 818,391 44.39% -0.30%
Write-in 3,267 0.18% +0.11%
Plurality 203,431 11.04% +0.48%
Total votes 1,843,480 100.0% +18.93%

References[edit]

  1. ^ Beck, Molly (July 23, 2016). "Scott Walker picks Waukesha lawyer Daniel Kelly for seat on Supreme Court | Politics and Elections". host.madison.com. Wisconsin State Journal. Archived from the original on July 10, 2018. Retrieved December 10, 2016.
  2. ^ Walker, Scott (July 22, 2016). "Governor Walker Appoints Daniel Kelly to the Wisconsin Supreme Court". Urban Milwaukee. Archived from the original on April 23, 2019. Retrieved December 10, 2016.
  3. ^ "Jill Karofsky Wins Wisconsin Supreme Court Race, Defeating Conservative Incumbent". April 13, 2020. Archived from the original on February 26, 2023. Retrieved February 26, 2023.
  4. ^ a b c Daley, Dave (October 18, 2017). "Taking a seat: A profile of Daniel Kelly". Badger Institute. Archived from the original on November 1, 2022. Retrieved November 1, 2022.
  5. ^ "Regent University School of Law Alumnus Selected to Supreme Court of Wisconsin". November 22, 2016. Archived from the original on June 27, 2019. Retrieved June 27, 2019.
  6. ^ "Taking a seat: A profile of Daniel Kelly". Badger Institute. Archived from the original on November 1, 2022. Retrieved March 1, 2023.
  7. ^ a b c "Scott Walker names Daniel Kelly to High Court". Archived from the original on November 8, 2022. Retrieved November 8, 2022.
  8. ^ "Gov. Scott Walker appoints attorney Dan Kelly to Wisconsin Supreme Court". FOX6Now.com. July 22, 2016. Archived from the original on July 25, 2016. Retrieved December 10, 2016.
  9. ^ Lueders, Bill (June 30, 2016). "Too extreme to be Supreme?". Isthmus | Madison, Wisconsin. Archived from the original on March 8, 2023. Retrieved March 1, 2023.
  10. ^ Epstein, Reid J. (April 13, 2020). "Jill Karofsky Wins Wisconsin Supreme Court Race in a Boost for Liberals". The New York Times. ISSN 0362-4331. Archived from the original on April 14, 2020. Retrieved April 14, 2020.
  11. ^ Vielmatti, Bruce (March 7, 2017). "Wisconsin Supreme Court approves passengers carrying guns on Madison buses". Milwaukee Journal Sentinel. Archived from the original on December 1, 2021. Retrieved November 2, 2022.
  12. ^ "End of an age: Courts halt deference to agencies' conclusions of law". October 9, 2018. Archived from the original on November 2, 2022. Retrieved November 2, 2022.
  13. ^ "What Price Justice, Dan Kelly?". One Wisconsin Now. Archived from the original on March 1, 2023. Retrieved March 1, 2023.
  14. ^ "Koschkee v. Taylor". Justia Law. Archived from the original on March 1, 2023. Retrieved March 1, 2023.
  15. ^ Bourdo, Ellie (February 22, 2023). "A Better Wisconsin Together: Dan Kelly's extremism on abortion, corruption runs deep". WisPolitics. Archived from the original on March 1, 2023. Retrieved March 1, 2023.
  16. ^ Reilly, Briana (May 28, 2019). "Dan Kelly launches campaign for Wisconsin Supreme Court". Archived from the original on November 2, 2022. Retrieved November 2, 2022.
  17. ^ "Liberal Jill Karofsky wins Wisconsin Supreme Court election, defeating conservative justice Daniel Kelly". Archived from the original on November 2, 2022. Retrieved November 2, 2022.
  18. ^ "Former Justice Dan Kelly joins Institute for Reforming Government". October 22, 2020. Archived from the original on November 2, 2022. Retrieved November 2, 2022.
  19. ^ "IRG, Justice Daniel Kelly Launch Oversight Manual to Help Legislature Hold Executive Branch Accountable". August 26, 2021. Archived from the original on November 2, 2022. Retrieved November 2, 2022.
  20. ^ "Ex-Justice Daniel Kelly calls Brian Hagedorn 'supremely unreliable' as he considers pursuing a return to Wisconsin's high court". Archived from the original on March 8, 2023. Retrieved November 2, 2022.
  21. ^ "Wisconsin Supreme Court candidate Kelly worked for Republican Party in 2020". PBS Wisconsin. Archived from the original on February 27, 2023. Retrieved February 27, 2023.
  22. ^ "Trump ally with ties to Wisconsin Supreme Court race". NBC News. February 22, 2023. Archived from the original on February 27, 2023. Retrieved February 27, 2023.
  23. ^ Hasen, Rick (February 17, 2023). ""Bice: Supreme Court candidate Daniel Kelly was paid $120,000 by Republicans to work on 'election integrity,' advise on fake electors" #ELB". Election Law Blog. Archived from the original on February 27, 2023. Retrieved February 27, 2023.
  24. ^ "Former Wisconsin Supreme Court Justice Dan Kelly running in 2023 election". Archived from the original on November 2, 2022. Retrieved November 2, 2022.
  25. ^ "Wisconsin Supreme Court candidate Kelly worked for Republican Party in 2020". PBS Wisconsin. Archived from the original on February 27, 2023. Retrieved February 27, 2023.
  26. ^ "Wisconsin State Supreme Court Primary Election". The New York Times. February 21, 2023. ISSN 0362-4331. Archived from the original on February 27, 2023. Retrieved February 27, 2023.
  27. ^ Justin, Elliott; O'Matz, Megan; Burke, Doris. "That Cardboard Box in Your Home Is Fueling Election Denial". ProPublica. Archived from the original on February 28, 2023. Retrieved February 27, 2023.
  28. ^ Pilkington, Ed; Levine, Sam (February 21, 2023). "In Wisconsin's supreme court race, a super-rich beer family calls the shots". The Guardian. ISSN 0261-3077. Archived from the original on February 27, 2023. Retrieved February 27, 2023.
  29. ^ Dohms-Harter, Elizabeth (June 4, 2022). "Wisconsin faces a 'tangled series' of abortion laws dating back to 1849 as it heads into a possible post-Roe future". Wisconsin Public Radio. Archived from the original on March 1, 2023. Retrieved March 1, 2023.
  30. ^ BAUER, SCOTT (February 27, 2023). "Work for anti-abortion group issue in Wisconsin court race". SFGATE. Archived from the original on March 1, 2023. Retrieved March 1, 2023.
  31. ^ Brostrom, Ellen (March 27, 2023). "Dan Kelly's role in conspiracy to overturn 2020 election makes him unfit to serve on Wisconsin Supreme Court". Milwaukee Journal Sentinel. Retrieved January 17, 2024.
  32. ^ Schulte, Laura (April 23, 2023). "Dan Kelly calls Wisconsin Supreme Court winner Janet Protasiewicz a 'serial liar' as he lashes out in his concession speech". Milwaukee Journal-Sentinel. Retrieved April 5, 2023.
  33. ^ Beck, Molly; Hess, Corrinne; Schulte, Laura (April 4, 2023). "Liberal Janet Protasiewicz declared winner over conservative Dan Kelly in closely watched Wisconsin Supreme Court race". Milwaukee Journal Sentinel.
  34. ^ Bice, Daniel (April 5, 2023). "Bice: Who were the biggest winners and (sore) losers in Wisconsin's elections Tuesday? We've got the list". Milwaukee Journal Sentinel. Retrieved April 5, 2023.
  35. ^ Daley, Dave. "Taking a seat: A profile of Daniel Kelly". Badger Institute. Retrieved April 4, 2023.
  36. ^ a b c Journal, Riley Vetterkind | Wisconsin State (March 29, 2020). "As election nears, COVID-19 pandemic highlights judicial style of Supreme Court candidates". madison.com. Archived from the original on May 19, 2020. Retrieved May 5, 2020.
  37. ^ Beck, Molly. "Supreme Court Justice Daniel Kelly seeks 10-year term on court". Milwaukee Journal Sentinel. Archived from the original on December 1, 2020. Retrieved May 5, 2020.
  38. ^ "Kelly's work for anti-abortion group issue in Wisconsin court race". www.nbc15.com. Associated Press. February 27, 2023. Archived from the original on March 1, 2023. Retrieved March 1, 2023.
  39. ^ "Walker's Judges: Daniel Kelly". Wisconsin Justice Initiative. February 12, 2020. Archived from the original on January 11, 2023. Retrieved January 11, 2023.
  40. ^ Hess, Corri [@CorriHess] (January 9, 2023). "WI Supreme Court Justice candidate Dan Kelly cites U.S. Supreme Court 2005 eminent domain Kelo case as the worst decision. Interesting note: the Village of Mount Pleasant leaned on this when taking homes to make way for #Foxconn development" (Tweet). Retrieved January 16, 2023 – via Twitter.
  41. ^ Canvass Results for 2020 Spring Primary (PDF) (Report). Wisconsin Elections Commission. February 18, 2020. p. 1. Archived from the original (PDF) on June 15, 2020. Retrieved March 10, 2020.
  42. ^ Canvass Results for 2020 Spring Election and Presidential Preference Vote - 4/7/2020 (PDF) (Report). Wisconsin Elections Commission. May 4, 2020. p. 2. Archived (PDF) from the original on February 22, 2023. Retrieved February 22, 2023.
  43. ^ Canvass Results for 2023 Spring Primary - 2/21/2023 (PDF) (Report). Wisconsin Elections Commission. March 6, 2023. pp. 1–2. Retrieved March 7, 2023.
  44. ^ 2023 Spring Election - Supreme Court - County by County Report (PDF) (Report). Wisconsin Elections Commission. April 17, 2023. Retrieved April 21, 2023.

External links[edit]

Legal offices
Preceded by Justice of the Wisconsin Supreme Court
2016–2020 		Succeeded by
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