Here & Now

Here & Now for April 3, 2020

Announcer:

A PBS Wisconsin Original Production. The following program is part of our “Here & Now” 2020 election coverage.

Zac Schultz:

I’m Zac Schultz. Welcome to a special edition of “Here & Now” on PBS Wisconsin. And hello to people listening around the state on Wisconsin Public Radio. While officials and residents around the state cope with the COVID-19 pandemic, Wisconsin election clerks are trying to figure out how they will pull off the April 7th spring election. In addition to the presidential primary, the most prominent race on the ballot is for the Wisconsin Supreme Court. And tonight we have interviews with both candidates. It’s a special edition of “Here & Now”: Wisconsin’s Race for the State Supreme Court.

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Funding for “Here & Now” is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.

Zac Schultz:

Incumbent Justice Daniel Kelly was appointed to the Wisconsin Supreme Court by former Governor Scott Walker. The Republican Party of Wisconsin and other conservative groups are campaigning for him. Judge Jill Karofsky was elected to the Dane County bench. The Democratic Party of Wisconsin and other liberal groups are campaigning for her. For most of you, that’s all the information you need to decide how to vote. And many people have already cast their ballot. For those of you who haven’t decided yet, and haven’t voted yet, we hope these interviews will help inform your decision. We begin with the challenger. Jill Karofsky is a Dane County Circuit Court Judge. Prior to her time on the bench, Judge Karofsky served as the Executive Director of the State Office of Crime Victim Services. She’s also a former State Assistant Attorney General. Jill Karofsky joins us now via Skype. Thanks for your time today.

Jill Karofsky:

Thanks for having me. I really appreciate it.

Zac Schultz:

Now let’s start by addressing the COVID-19 pandemic and the statewide emergency called by Governor Tony Evers. This week the governor issued a “safer at home” order that prohibits all nonessential travel. The order remains in place until April 24th. What are the legal limits to the governor’s power to issue and enforce these orders and would it be up the courts to determine if an order becomes too oppressive or unreasonable?

Jill Karofsky:

Look, we all need to do everything we can to be safe and to make sure that our neighbors and our family members and those around us are safe. In our campaign, what we have done is gone virtual. We’re having no more in-person events. We are making sure though that we are still getting our message out every way we can, whether it’s on Facebook or Twitter or email or text, doing interviews like this, or radio interviews. As far as me commenting on the governor’s legal authority, I want to be very careful to do that because that is an issue that could get up to the Wisconsin State Supreme Court, and when I win this race, it’s an issue that I would have to weigh in on. And so, I’m going to, with all due respect, not directly answer that question, but I do think that it’s incumbent upon all of us to do what we can to stay safe, which is why I’m appearing by Skype today. I’m here in my kitchen, where I’m telling my kids to wash their hands about every 20 seconds.

Zac Schultz:

So, understanding you don’t want to comment directly on the order, but at what point do you as a member of the court start thinking about these legal issues that could come before you?

Jill Karofsky:

You would start thinking about them when a lawsuit is filed and once it makes its way through the circuit court and through the Court of Appeals and then gets to the Wisconsin State Supreme Court.

Zac Schultz:

But you don’t ponder what may happen now, if you see a legal opinion that’s thrown around on the Internet?

Jill Karofsky:

When I am thinking about COVID-19 right now, Zac, I am thinking about number one: how can I keep my family safe. Number two: my concern right now as a circuit court judge and as the only person in this race right now who is a trial court judge, I am trying to figure out How do I do my job right now? I have been working very, very hard with my colleagues to figure out what our approach needs to be. We’re no longer having jury trials throughout the state, but there are some other hearings that we must have. And so, we are using different apps so that we can still hold hearings so that people are afforded their constitutional rights. And I’m constantly balancing people’s constitutional rights with the safety of our community, and I’m the only person in this race who’s having to do this right now. That’s the kind of experience I’m going to bring to the Wisconsin State Supreme Court.

Zac Schultz:

You mentioned the postponement of all jury trials that’s been done by the Supreme Court. Your opponent agreed with the dissent to that order that said this emergency does not warrant suspending the Sixth Amendment right to a speedy trial. What do you think with the order from the court?

Jill Karofsky:

As far as I have myself, in my branch, we had one case that we moved back two weeks. And I do not believe that that is going to– I was I was comfortable doing that, obviously, and I don’t want to get into details about any case that I have before me because I need to make some important decisions. But we had talked about it with the parties ahead of time that we had saved a date at the end of May, and that’s what we’re doing in our case.

Zac Schultz:

But is this a threat to the 6th Amendment, as your opponent seems to say in his argument to that dissent?

Jill Karofsky:

You know, we have– the– as far as I’m concerned, any decision that I have made in my court, I have made and it is it is constitutional and it will hold up assuming that the Constitution is applied the way that it should be.

Zac Schultz:

Governor Evers has suspended all admissions to state prisons, leaving inmates in county jails. Do you agree with that policy and at what point does the emergency come into conflict with due process in that area?

Jill Karofsky:

Well, we are in Dane County taking it case by case. So, I have– I was assigned over 1,700 cases last year. And in each of those cases we are painstakingly going through and identifying cases where a sentence could be stayed for a short period of time. And in some cases, sentences can’t be stayed, it would be– it would be a danger to the community. It would be a danger to the victims. We are looking at bail conditions. We are looking at every single part of a case to determine the correct response. And again, that is an experience that I’m going to bring to the Wisconsin State Supreme Court that my opponent doesn’t have. Look, this is a guy who has never presided over any case. He was appointed to the Wisconsin State Supreme Court without having one minute of judicial experience. He never had to make the types of decision that I have make– having to make many, many times a day, day in and day out. He was appointed for one reason and one reason only, and it was because his right-wing agenda matched up with the right-wing agenda of Scott Walker.

Zac Schultz:

You mentioned that– You’ve talked about him being appointed to– so carry water for right-wing special interests. He says that you are slandering members of the court that agree with those decisions he’s made. Are your statements slanderous and are you trying to lump in other members of the court that agree with his decisions?

Jill Karofsky:

I am running against one member of the court and one member only. I am running against Dan Kelly. And I am– every first-year law student knows that the defense to slander is the truth. And what I am talking about is the truth. And when you look at his decisions, when every single time he has had the opportunity to rule in favor of the right-wing special interests, he has done it. Every single time he has had the opportunity to make a decision, he’s made decisions, procedural decisions that benefit the right-wing special interests. If you look at the lame duck case where they just took that case, plucked it right from the trial court, without ever having a hearing, without ever knowing what the evidence was, so that he could get to that case and so he could make a decision as fast as he could. If you look at the recusal rule, we have one of the weakest recusal rules in the United States. Our recusal rule was drafted by the Wisconsin Manufacturers and Commerce and the Realtors Association. That is a recusal rule that Dan Kelly has stood by. He wants to have outside special influence have an impact on these races. He is happy to take their money, and they are more than happy to benefit by his decisions. What we have is a for sale sign on our Supreme Court.

Zac Schultz:

If elect– if elected, how will you work with members of the court that have said you are not fit to serve on the court?

Jill Karofsky:

Look, I agree with the members of the court who say that we need to have a Supreme Court with integrity. People need to have confidence in our Supreme Court. I agree with them. They are absolutely right. The problem is not– the problem is this: the problem is is that Dan Kelly has an agenda. Not that I’m shining a light on the fact that he has an agenda, and if we want to bring integrity back to the Wisconsin State Supreme Court, what we need to do is replace Dan Kelly on April 7th.

Zac Schultz:

Do you think Dan Kelly is qualified and fit to serve on the Supreme Court?

Jill Karofsky:

I think that Dan Kelly was put on the court for one reason and one reason only, and that was to carry the water of the right-wing special interests of corporations, of the wealthy and he has done just that. He has not spilled a drop of their water.

Zac Schultz:

Switching topics slightly. The Chief Justice of the Supreme Court has extended a commercial court pilot project to Dane County that would allow her to hand-pick judges to preside over business lawsuits. Do you agree with this project and what are the ramifications of it?

Jill Karofsky:

I think that appearances are very, very important and I agree with many of my colleagues on the Dane County bench. When you have a system that appears to be two-tiered. That there is one system of justice for big business, and one system of justice for the rest of us, that really is troubling to many, many people. Look, I preside over many, many criminal cases in a year, and every single victim in every one of those cases would like their case to get, to get to a result faster. Same for defendants. They want these cases to reach a resolution. People need finality. And to say that we’re going to give one group of people finality and a quicker resolution in their cases, rather than another group of people just seems to me to look like we have a system that isn’t fair to everybody.

Zac Schultz:

Now, a number of county municipal clerks from around the state have called for this election to be postponed. They’ve even filed a federal lawsuit. Do you as a candidate agree with the idea of postponing this election?

Jill Karofsky:

What we are encouraging people to do is to vote absentee. People can still get on MyVote.wi.gov. They can register online until the 30th. You can get an absentee ballot until April 2nd. Your ballot has to be received by the municipal clerk’s office and your municipality by April 7th at 8 o’clock. And that’s what we are encouraging people to do.

Zac Schultz:

Do you have an opinion on extending any of those deadlines due to the pandemic?

Jill Karofsky:

Look, we, we are focused on April– as you and I are talking right now and as we are recording this, the election is April 7th and that is what we are focused on today.

Zac Schultz:

Now, your opponent was first appointed to the court. You’re running in a statewide election. Which is the best way to choose members of the Wisconsin Supreme Court, especially considering how ugly some of these races have become in recent years?

Jill Karofsky:

I think it is really important that we have these elections. I have learned so much by traveling all around the state of Wisconsin and listening to people around the state of Wisconsin. And if we want to change these elections, if we want to stop the influence of the outside money that comes into these races, what we need to do is, number one: we need to elect justices who are willing to look at our recusal rule. That is what I am willing to do. Second: we need justices then to change the recusal rule in this state so that when the outside money comes in, if in a campaign, a judge or a justice will not sit on those cases. And that is not what we have– that’s not what we’re seeing today, and Dan Kelly is against that.

Zac Schultz:

But direct elections by the populace is still the best way to fill our Supreme Court?

Jill Karofsky:

I believe so, yes.

Zac Schultz:

Now, you’ve got a few seconds left. Please give me your best summary of why voters should vote for you.

Jill Karofsky:

Voters should vote for me because I have the experience that we need on the Wisconsin State Supreme Court. I’m the only person in this race, as I mentioned, who has been a trial court judge. I see how the law impacts real people every single day. In my courtroom, we follow the rule of law and I treat everyone in my courtroom fairly and equally and respectfully. I’ve also got the Wisconsin values that I’m going to bring to the Wisconsin Supreme Court. And I’m also going to bring my toughness and my independence. And I will urge voters to vote for me. Vote absentee. Vote before April 7th, which is the election date.

Zac Schultz:

All right, Judge Jill Karofsky, thanks for your time today.

Jill Karofsky:

Thank you so much. Stay well.

Zac Schultz:

The incumbent in the race is Justice Daniel Kelly. Justice Kelly is a former special prosecutor with the Milwaukee County District Attorney’s Office. He’s a former staff attorney with the U.S. Office of Federal Claims and has also worked a long career in private law practice. Daniel Kelly joins us now via Skype. Thanks for being here.

Daniel Kelly:

It’s my pleasure. Thanks for having me on.

Zac Schultz:

Well, let’s start by addressing the COVID-19 pandemic and the statewide emergency called by Governor Tony Evers. What are the legal limits to the governor’s power to issue and enforce these orders and would it be up to the courts to determine if an order becomes too oppressive or unreasonable?

Daniel Kelly:

Yeah, so, of course, one of the things I can’t do of course is opine on any particular matters that might come before the court, and I think– but that goes into the rest of your question. It’s entirely possible that parts of this order could come before the court as contested matters. You know, the, the Constitution does not go into suspension just because we have an emergency. So all the constitutional guarantees need to remain in place, and so. So, there’s always a possibility that someone might believe some part of the order has gone beyond what the governor’s constitutional authority might be. And if they believe that, I’m sure they’ll bring that to the courts, and we’ll consider it in due course.

Zac Schultz:

When there’s not much history of a pandemic and an emergency of this precedent, at what point do you as a justice start thinking about these legal issues, understanding you wouldn’t make a decision before you had briefs and appearances, but when do you start thinking about it?

Daniel Kelly:

Yeah, well, if you have at all a curious mind, you start thinking about it right away, you know. And, of course, we do have a long history. And we’ve had, we’ve had national emergencies before, and we’ve had pandemic emergencies before. The Spanish flu came before this. We’ve had more minor health emergencies subsequent to that, but there is– there’s a history out there that we can look back to for guidance in how to handle it as a policy matter. And that’s of course for the legislature and the governor to take care of. And then, as a legal matter, our responsibility to the Constitution and ensuring that we continue to be faithful to its terms. You know, we can look to that history as well for direction for our branch of government.

Zac Schultz:

Now the Wisconsin Supreme Court has issued orders postponing all jury trials. You dissented to that decision. Why?

Daniel Kelly:

That’s correct. Well, partly because of what I’d just been talking about. The Constitution does not have an exception for crises. In fact, the Constitution was written in a time of crisis and is designed to to function in that way. So, so, we need to do two things. We can do them simultaneously. We need to be concerned and careful about people’s well– well-being and they’re not doing anything that’s going to endanger anyone else. But at the same time, we can be honoring constitutional guarantees. The 6th Amendment to the United States Constitution says that defendants shall enjoy a speedy trial. And, and that’s not subject to an exception because there happens to be a health crisis. We just have to be creative in the way that we handle the trials to make sure that we’re [not] putting any witnesses or court personnel at risk. And we have the technological means for that. You know, most of our courthouses are empty right now. There’s plenty of space in which you can keep people adequately separated. And you can still honor the Constitution. And that’s why I dissented is because I don’t believe that we have the authority as the court, to suspend the very document that by which we exercise our authority.

Zac Schultz:

Another legal issue: Governor Evers has suspended all admissions to state prisons. Inmates are being held at county jails. Do you agree with this policy and at what point does that emergency possibly come into conflict with due process?

Daniel Kelly:

Yeah, so I don’t agree or disagree with the policy. You know, that’s a policy decision he needs to make. And again that potentially could come to the courts as a contested matter and so I don’t want to make– I want to make sure that I’m not prejudging any issues that we might need to be deciding, but there’s– obviously there is a due process component to which everyone is entitled and that due process guarantee does not go away. Just like the speedy trial guarantee does not go away.

Zac Schultz:

Now, a number of county and municipal clerks from around the state have called for this election to be postponed. They’ve actually filed in federal court on that issue. As a candidate, not as a judge, but as a candidate, do you agree with postponing this election?

Daniel Kelly:

Well, I think that, again, this is something where we can do two things at the same time. I think that we, we do need to be cognizant of the potential risks. But we have been able to deal with this in an intelligent and careful way. And we also have to recognize that the date of the election is set by statute. And you know, that needs to be conducted according to law just as every other aspect of the Constitution and our statutes have to be carried out according to their terms. And so, you know, I look at this and I– you know all the planning has gone into a– an election date of April 7th. But– that’s what we’re counting on at the moment because, you know, we’re relying on the laws as they exist at this point and so that’s been our plan.

Zac Schultz:

And how has your campaign responded to the pandemic and all these shifts in how the vote is occurring?

Daniel Kelly:

Yeah, so that’s been– we, we’ve had to get creative. So, three weeks ago, my calendar was chock-full of events from that point all the way to election day. And now that’s all, that’s all been canceled. And we want to make sure, of course, that we’re protecting our volunteers and that we’re not putting them in a place where they’d be potentially putting others at risk for the spread of this disease. So, everything’s pretty much moved online. And so I think we are in the midst of figuring out how to do an entirely online campaign. And it’s a little awkward, I have to tell you. You know, we, we’ve really enjoyed this past year of going around this beautiful state of ours and talking with folks who care about their communities and their courts, and, you know, their Constitution and having folks on the, on the Supreme Court who are committed to upholding the Constitution as it’s written. And that’s just been– that’s been a joy. So now, we’re trying to recreate that in some sense all online. So we have– we’re having kind of televise– teleconference and videoconference for a kind of a town hall sort of, sort of meeting online. And so, it’s, it’s really meeting a lot of folks virtually now rather than in person. And you know, I’m a– I’m kind of a tech, a tech buff myself. I enjoy technology. I love it, but it is, it is at the end of the day a poor substitute for for being able to actually spend time with our fellow Wisconsinites. But we’ll make do as everyone else has. You know, a lot of people are making sacrifices and so we’re standing right along with them, making sure that we conduct business as we need to, but in a way that’s going to be safe and responsible of those with whom we interact.

Zac Schultz:

Now, getting to the meat of this race, your opponent says that you were appointed to the court to carry water for right-wing special interests. Now you have responded by saying that she’s slandering you and all members of the court that agree with decisions you’ve made. Is slander the appropriate term considering this is a political election?

Daniel Kelly:

It is. You don’t get to slander people just because it’s an election. Slander is slander. When you intentionally lie about someone, that is, that is slander. And that’s what my opponent has made the centerpiece of her entire campaign. In fact, if she did not have lies and slander, she wouldn’t have a campaign. You know, and I think that’s a really important point to dwell on for just a moment. This is, this is not campaigning as normal. What she is doing is so far outside the pale of what’s acceptable in a race like this, that it has cau– it’s without precedence. And it is, it is so unusual that it has caused a majority of the sitting Supreme Court to come out and condemn her behavior in this campaign. I just want to read a little bit of what they– of what they’ve said, just as an illustration of how egregious and how disgraceful her behavior has been. So Justices Rebecca Bradley and Brian Hagedorn wrote that Judge Jill Karofsky’s slander statements about Justice Kelly’s work on the court are evidence of her lack of fitness for the bench. And then the Chief Justice and the Deputy Chief Justice wrote that attacks on the integrity of the court strike at the heart of the judicial system. Such language risks undermining the courts legitimacy with parties, attorneys, and the public. So, this is, and this is unprecedented that a behavior has been so bad, so disruptive, that it has caused a majority of a Supreme Court to come out and condemn that behavior. And this goes beyond me. It even goes beyond the current members of the court. The slanders and the lies that my opponent is telling strike at the very heart of the judicial system as an institution. You know, I recall that Alexander Hamilton, when he was writing about the adoption of the United States Constitution, he talked about the courts and he said that the courts have neither force, nor will, but only judgment. Just judgment. That’s the only thing that we have for this branch of government to be effective. It requires that the people have confidence in the court’s judgment. And what my opponent is doing to further her personal and selfish ambitions, she’s striking at the very integrity of the court, the institution she says that she wants to join. So that behavior has been disgraceful and despicable, and I’ve called her out every time she’s done this. I called her out and challenged her. What– what evidence do you have to support that? What is there to support that? The only thing she’s ever been able to do is point to a couple of cases that are actually not evidence in support of her claim, but they’re evidence that she’s either lying or that she’s an incompetent judge. Now, I don’t think that she’s an incompetent judge, but the only other alternative is she’s just lying about it.

Zac Schultz:

We’ve only got a little bit of time left, but I do want to ask you. You were appointed to the court and you’ve talked about the process that Governor Walker put you through to get there. And you’re now campaigning for the court. You’ve seen both the good and the ugly in campaigning. Given those experiences, in just a few seconds, are elections still the best way to choose Wisconsin’s Supreme Court?

Daniel Kelly:

Notwithstanding the unprecedented bad behavior of my opponent, I still believe the elections are the best. And the reason for that is because I understand the only authority that I exercised as a Supreme Court justice belongs to the people of Wisconsin. I use it as a loan from them, on their behalf in trust. And so, I think it’s a very healthy and an appropriate thing for us to, on a regular basis, go back to the people whose authority we are borrowing to give a report of what we’ve been doing with their authority and then allow them to stand in judgment of us. And that’s been, that’s the part of the campaign actually that has just been an absolute joy. 98.5% of campaigning I love because it’s all about that. It’s going around to the folks of Wisconsin and describing what I’ve been doing with their authority. The 1.5% of the campaign that I don’t like, is mostly my opponents behavior.

Zac Schultz:

Well, that is all the time we have. We thank you for participation. Thank you for your time today, Justice Kelly.

Daniel Kelly:

Thanks so much. I appreciate it.

Zac Schultz:

That concludes our State Supreme Court Candidates Special. To our statewide audience watching on PBS Wisconsin and listening tonight on Wisconsin Public Radio, stay tuned. Here & Now gets you up to date on COVID-19 following this broadcast. I’m Zac Schultz. Thanks for joining us.

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For more “Here & Now” 2020 election coverage, go to PBS.org and click on News. Funding for “Here & Now” is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.