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The following program is a PBS Wisconsin original production.

Frederica Freyberg:

Canvassers pound the pavement, planning a weekend blitz to promote their candidates for Wisconsin’s next Supreme Court justice ahead of Tuesday’s election. It will determine the future direction of the court in the most expensive judicial race in U.S. history.

I’m Frederica Freyberg, tonight on “Here & Now,” we speak with both campaigns for the high court. Plus a law professor brings context to the constitutional amendment questions also on the ballot. It’s “Here & Now” for March 31.

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

Frederica Freyberg:

There are just days before the statewide spring election this Tuesday, April 4. As part of our “Here & Now” 2023 election coverage, we hear from both campaigns one last time, making their final appeals to voters. Up first, candidate Daniel Kelly, who previously served on the Wisconsin Supreme Court. Kelly was appointed by Republican Governor Scott Walker in 2016. He ran for re-election in 2020 and lost, but says he is running again as a constitutional conservative. Daniel Kelly, thanks very much for being here.

Daniel Kelly:

It is a pleasure. Thanks so much.

Frederica Freyberg:

I wanted to ask you, first, what are the stakes in this election?

Daniel Kelly:

Well, I think it’s the difference between the rule of law and the rule of Janet. She’s made it abundantly clear that, if elected, she intends to place herself above the law. She’s made it public that she subscribes to a judicial philosophy known as living constitutionalism. The idea behind that is that the courts have the power to amend what the statutes and the constitutions say and that’s certainly not the way that our form of government is set up. Those changes happen through the conversations of the people of Wisconsin with their legislatures. Our job is really very humble. Our responsibility is simply to use the existing law to decide the cases that come before us, and that’s it. And people of Wisconsin have told us that they’re not really interested in what we think about the laws, whether they’re good or useful. They say reserve those conversations for the Legislature. So the question is, are we going to continue with our 175-year tradition with our Wisconsin Constitution or are we going to trade that in for someone who believes that she can be above the law?

Frederica Freyberg:

Your challenger calls you a “threat to democracy” for having, “extensive conversations with the head of the state Republican Party and others about the false elector scheme.” When she said that in the debate, you called her a liar.

Daniel Kelly:

Yes.

Frederica Freyberg:

And yet the transcript of the Andrew Hitt deposition quotes him as saying about yourself and another GOP lawyer: “Mr. Olsen and I and another lawyer, Mr. Kelly, had some pretty extensive conversations.” So how is what she said a lie?

Daniel Kelly:

Because, as you properly know, he’s referring to multiple attorneys, so if you go onto the transcript, he says that he had one conversation with me, so the extensive conversations were obviously with the other lawyer. So if she had been careful with her homework, she would have been able to avoid that. Now, here’s the thing. I think she knows, and I think she just intended to lie because she wants to make it look bad. So what the congressional testimony shows is that I had one conversation with a client about this subject. He asked if I was in the loop on that question. I said I wasn’t because I wasn’t and that was it.

Frederica Freyberg:

That was the end of your involvement?

Daniel Kelly:

That was the end of my involvement.

Frederica Freyberg:

Your attack ads against your opponent have focused on her sentencing decisions as a judge in criminal cases. But why, when the Supreme Court doesn’t sentence defendants, is this relevant?

Daniel Kelly:

Because of something Alexander Hamilton said 235 years ago when he was writing about the way our Constitution works, the United States Constitution, he said courts have neither have the power of the purse nor the sword, but merely judgment. And so we look at jurist judgments to find out how they actually use their authority. One of the areas where, if you’re a circuit court judge, one of the areas where your judgment becomes most apparent is in criminal sentencing, and so we go there because that’s where trial judges have the greatest discretion. So you can really get a glimpse into their juridical mind by looking at their judgments and how they sentence. So we look at that and what we find there is really pretty chilling.

Frederica Freyberg:

She says you’re cherry picking those cases.

Daniel Kelly:

Well, they keep coming out day after day after day and that list is getting pretty darn long. I don’t know when cherry picking stops and a pattern starts, but I think we’re well into pattern.

Frederica Freyberg:

You both promise to follow the law in deciding cases. Why would your endorsement from anti-abortion groups and your former legal work for them not hinder your impartiality and yet Janet Protasiewicz is making her view supporting abortion rights public would hinder her ability?

Daniel Kelly:

Yeah, so here’s the difference. So obviously, you have to be an attorney to be on the Supreme Court. My work as an attorney has represented people all across the political spectrum with all kinds of different interests and so when I have conversations with individuals who are thinking about endorsing me, the conversations are the same regardless of who I talk to. It is the same conversation everywhere, and it is this. I understand the role of the court is simply to apply the existing law without reference to our political opinions or our political views. Now in order to do that, to effectuate that, to live it out on the bench, you have to have a system for doing it. And so here’s my system. So I start with the law. In any case I analyze or any opinion that I write, I start with the law applicable to that case, whether it’s a constitutional provision, statute, regulation, common-law, whatever it might be, and then I use rigorous logic to move from those propositions all the way down to the conclusion, and when you’re done, you should be able to see an unbroken chain of logic between the conclusion and the premises, and that’s your guarantee the conclusion is commanded by law and is not infected by personal politics.

Frederica Freyberg:

Some states are saying parents can be investigated for child abuse if they help their transgender child transition. In your opinion, would such a policy be legal if enacted in Wisconsin?

Daniel Kelly:

That’s a great question. We start with how you described it, a policy. In the court, we don’t determine whether policies are good or bad or warranted or not.

Frederica Freyberg:

Legal?

Daniel Kelly:

We question — we examine whether they’re legal. Now, whether it’s legal will depend entirely on the language of the statute. So our job, when challenges come to us on statutes, we look carefully at the words of the statute, we compare that to the constitution, and if it’s consistent with the provisions of the Constitution, we apply that. And if it’s not, we prefer the constitution over the statute. So the answer to the question is, we have to see the statute.

Frederica Freyberg:

Given an onslaught of attack ads in this race, what is the one thing that you would like to refute?

Daniel Kelly:

All of it. I mean, honestly. This is, this is just a pattern of lying. My opponent is a serial liar. Every single time she puts out an ad about me, it’s just a lie. And what I mean by that it’s not a taking out of context, it’s not spinning. It’s just a lie. She is making things up. So there’s not enough time in the afternoon to refute all of that. What we can do is this. On my campaign website, JusticeDanielKelly.com, that’s JusticeDanielKelly.com, at the top, there’s a fact check tab and we’re compiling all of my opponent’s lies and telling the truth about each one of them. I think this is important because, one, I think it is really bad character to be a serial liar running for the Supreme Court of Wisconsin, but I find this personally terribly, terribly offensive. Maybe I should have a thicker skin about this, but on that, I don’t. That’s partly because of how I was raised, that you don’t lie. And also because of this: when I was growing up, our family didn’t have a whole lot. I had three brothers and three sisters and my mom and dad had to stretch every dollar pretty far to get from month to month. I still remember when I was a teenager, my dad sat me down one day and he says, “Dan, when I’m done with this life, I’m not going to have a lot to leave you, but I’ll make you this promise. I will leave you a good name.” Now, when I graduated law school a year later, his comments came to pass, and he didn’t have much to leave me. A couple of cufflinks and a broken pocket watch. But he left me a good name, and I have treasured that my whole life. It’s been my goal to hand down that good name to my children and now I’ve got a serial liar like Janet Protasiewicz out there trying to trash my father’s legacy. I think that is just inexcusable.

Frederica Freyberg:

Daniel Kelly, thanks very much.

Daniel Kelly:

Thank you, I appreciate it.

Frederica Freyberg:

We were to turn to liberal candidate and Milwaukee County Circuit Court Judge Janet Protasiewicz now. However, she asked Justice Jill Karofsky to appear in her place due to illness. Justice Karofsky ran and won her seat on the high court after defeating Daniel Kelly in 2020. She joins us now. Thanks very much for being here.

Jill Karofsky:

I’m happy to be here. Thank you for letting me pinch-hit this morning.

Frederica Freyberg:

It does seem irregular, what with a sitting Supreme Court justice standing in for a candidate, but how does this speak to the high stakes in this election?

Jill Karofsky:

I think everything that Wisconsinites care about is on the line in this election, from abortion rights to fair maps to the 2024 election to democracy itself, all of those things are going to be on the ballot on April 4th and certainly anyone who has been in Wisconsin for 20 seconds can’t escape the fact that this election is happening, that Wisconsinites and voters are paying attention, and that the whole nation is watching to see how this election turns out.

Frederica Freyberg:

Janet Protasiewicz called Daniel Kelly a true threat to democracy, pointing to his work as an attorney for the Republicans hatching the fraudulent elector scheme following the 2020 election. Couldn’t it be said that he was just doing his job?

Jill Karofsky:

I think Daniel Kelly is a true threat to democracy. He is corrupt and he is extreme and we have many, many examples of that. I started to lay that case out in 2020 and Janet Protasiewicz has continued to make that case now in 2023. If you just look at the decisions that he rendered when he was on the Supreme Court, I have never seen a judge first decide what the outcome of a case is going to be, the outcome that he wants, and then work backwards more than Dan Kelly. You have the example of the Zignego case where he recused himself and then received $20,000 from the Zignegos and unrecused himself. I didn’t even know unrecusing yourself was a thing when someone first asked me about it. It’s an oxymoron. It can’t be. These can’t — still, three years later, you can’t explain the consistency of his rulings, where he always ruled in favor of the right-wing special interests when he was on the court. He’s been campaigning with insurrectionists, with antisemites, with election deniers, and then just this week, he and his cronies put an ad up about a case where they ended up — it’s hard to even find the words for what they did to this poor victim. They harassed her, they revictimized her, they made her relive this horrible, horrible sexual assault. She didn’t want any part of this campaign, and if that is not acting in an extreme and corrupt manner, I don’t know what is.

Frederica Freyberg:

Meanwhile, the Kelly campaign attacks with slogans like “No jail Janet” for sentencing decisions. What’s your response to those attacks and her being called a serial liar by the conservative opponent?

Jill Karofsky:

Those are baseless lies. They are meant to distract from the fact that Dan Kelly lost in 2020 and he’s very likely to lose in 2023. Compare their records. Judge Janet Protasiewicz was in the district attorney’s office in Milwaukee for 25 years. She stood up for the people of Milwaukee. She protected their rights. She protected victims. She held defendants accountable. She made sure that defendants’ rights were not violated, and then she’s been serving on the circuit court in Milwaukee County for almost a decade. Compare that to the career of Dan Kelly. Dan Kelly has never sentenced a single person. Janet Protasiewicz has sentenced thousands and thousands of people. They cherry pick a couple of cases, they don’t fully disclose what the facts are of those cases, and then they throw up these TV ads with all the outside money that’s coming from the right-wing special interests because they want to keep Dan Kelly on the court because they know Dan Kelly will carry their water and he will not spill a drop of it.

Frederica Freyberg:

Janet Protasiewicz has been plain on her views supporting abortion rights and that Wisconsin’s legislative maps are rigged. Why would openly stated personal views not hinder impartiality as a justice but Daniel Kelly’s endorsement by anti-abortion groups, for example, would?

Jill Karofsky:

Well, look. I think there’s — I think Dan Kelly is talking out of both sides of his mouth. Right? What Janet Protasiewicz has done is she has said, I’m going to tell you what my values are. Dan Kelly has been saying, oh, I’m not going to be, you know, overtly tell you what my values are. Voters in Wisconsin are intelligent. They are sophisticated and they’re not going to be fooled by that ad. Just look at Dan Kelly’s words and his actions. We can look in his writings to see how he feels about abortion. You can look at the right to life who has endorsed him. In order for him to get that endorsement, he had to pledge to be anti-endorsement. When it comes to the maps, the maps are rigged. I wrote in a dissent that the maps, I didn’t use the word rigged, but if you read the dissent that I wrote in the final case in WEC v. Johnson, err — Johnson v. WEC, you will see those maps are rigged. You can’t be in this state and not realize that. Janet Protasiewicz is saying the quiet part out loud. Dan Kelly is trying to remain quiet but look at his words and his actions. There is no doubt in anybody’s mind that if Dan Kelly has the chance to rule on an abortion case, how he will rule on that case, and it’s hard for me to believe that any pregnant person in this state would want Dan Kelly making such an important medical decision on their behalf.

Frederica Freyberg:

For his part, Kelly states that he practices the rule of law and his opponent, what he calls the rule of Janet, intending, he says, to place herself above the law. What about that?

Jill Karofsky:

Janet Protasiewicz has talked several times. I’ve heard her talk about times where she has followed the law and she hasn’t wanted to. She talks about when she’s had to sentence people and when she’s received sentencing recommendations from the state and she’s received sentencing recommendations from the defense and she has to, in the end, choose what the right sentence is based on the sentencing factors that we have in Wisconsin. Dan Kelly, on the other hand, he cannot prove, he cannot show you one time when he sat on the Supreme Court when he did not rule in favor of the right-wing special interests. So I think we really have to question here who is following the rule of law. It’s clear it is not Dan Kelly. It most definitely is Judge Janet Protasiewicz.

Frederica Freyberg:

As to recusal rules, does Janet Protasiewicz hold that individual justices alone should get to decide when to recuse or step aside from a case because of a conflict of interest? With all the money in this race, it seems that there could be a lot of conflicts.

Jill Karofsky:

Sure. Let’s look at the recusal rule. They were supposed to have a hearing on the recusal rule back in 2016 or 2017 when Dan Kelly was on the court. They wouldn’t even allow a hearing. Dan Kelly voted against the Supreme Court getting the information it needed in order to craft a recusal rule that would be fair to voters, that would be fair to donors, that would be fair to candidates, that would be fair to justices. In this race, Janet Protasiewicz has said, “I received millions of dollars from Democratic Party of Wisconsin, so if they are a party in a lawsuit, I will recuse myself.” Dan Kelly has made no such promise, even though he has received, I think as of yesterday, it was either $5.1 or $5.8 million from Wisconsin Manufacturers and Commerce.

Frederica Freyberg:

We have just 15 seconds left. Final pitch in this race.

Jill Karofsky:

This is probably the most significant Supreme Court election in our lifetime. Please go and vote on April 4th for your seat on the Wisconsin Supreme Court. Thank you.

Frederica Freyberg:

Justice Jill Karofsky, thanks very much for, as you said, pinch-hitting.

Jill Karofsky:

My pleasure. Thank you.

Frederica Freyberg:

Disability rights advocates are reiterating concerns this week about assistance for voters with disabilities and returning an absentee ballot. Disability Rights Wisconsin says roughly a dozen people have sought their help after having difficulty with an assister returning their ballot. Additionally, some clerks have stated in postings at the polling place, on their website or from ballot enclosures that only the voter can turn in an absentee ballot and they don’t list exceptions for voters with disabilities. Both federal and state law protect people with disabilities to have accommodations to vote and, last year, a federal court ruling clarified this includes ballot return assistance. For questions, voters can call their local clerk or the Disability Rights Wisconsin Voter Hotline at 1-844-347-8683.

In addition to the names of the candidates for state Supreme Court, Wisconsin voters will see something else on their ballot Tuesday. Two questions asking voters to amend the state’s constitution. Both of these questions have to do with the state’s cash bail system. Question one reads, “Conditions of release before conviction. Shall the constitution be amended to allow a court to impose on an accused person being released before conviction conditions that are designed to protect the community from serious harm?” And question two reads, “Cash bail before conviction. Shall the constitution be amended to allow a court to impose cash bail on a person accused of a violent crime based on the totality of the circumstances including the accused’s previous convictions for a violent crime, the probability that the accused will fail to appear, the need to protect the community from serious harm and prevent witness intimidation and potential affirmative defenses?” That’s a lot of words and proving confusing to even the highest information voters. Here for help, UW Law School Professor Cecelia Klingele. Thank you for being here.

Cecelia Klingele:

My pleasure.

Frederica Freyberg:

Let’s break this down. That first question first. It would allow judges to impose conditions of release. What are some examples of that?

Cecelia Klingele:

Judges already can impose conditions of release in most cases and those conditions can be things like curfews. They can be requirements even in some cases that people subject themselves to electronic monitoring. It can be restrictions on the consumption of alcohol. A broad array of conditions really limited to the judge’s discretion, but currently they have to be conditions that are tied closely to the risk that someone will cause serious bodily harm to someone, will intimidate witnesses or will not show up in court.

Frederica Freyberg:

And so, again, this is different how?

Cecelia Klingele:

From what’s being proposed? So the proposal would broaden the circumstances in which judges were able to impose conditions of people. During that time between when they are charged with a crime and when they’re convicted of a crime. This is really important that we keep remembering that during that time, under our law, people are presumed innocent. And so the law is really nervous, appropriately, about imposing restrictions that could feel punitive on people who haven’t yet been convicted of doing anything wrong. And so what the law change would do is enable judges to impose conditions in a broader array of circumstances, including not just when someone poses a risk of serious bodily harm, but of serious harm which the Legislature has separately defined in statutes that recently passed and would take effect were this amendment to be approved. That would effectively cover any situation where anyone caused any kind of harm to property, to a person, or even to the emotional well-being of another.

Frederica Freyberg:

And that is broad. Let’s look at the second question. It’s about setting cash bail based on things like past criminal history, protecting the community from serious harm and affirmative defenses. Now, affirmative defenses, what is that?

Cecelia Klingele:

So an affirmative defense is a legal term that we use to describe when someone engages in conduct that, under the law, would ordinarily be illegal, but the person is able to claim and prove that the circumstances were such that it wasn’t illegal in that particular instance. The best example of this is self-defense. So ordinarily you don’t get to hit someone or hurt someone, but if you’re acting in self-defense, then it’s not illegal.

Frederica Freyberg:

Does this seem reasonable or unreasonable to consider things like past convictions?

Cecelia Klingele:

Well, I think we have to sort of stop and ask what it is that we’re doing. So, again, under existing law, judges already can impose conditions on people that are designed to advance legitimate considerations. The question now in question two is when we get to ask people to pay money to post cash bond in order to be able to secure release.

Frederica Freyberg:

What are the consequences of these, if they pass, for courts?

Cecelia Klingele:

So the biggest change has to do with cash bond. Under our current law, you are only allowed as a court to ask someone to post money to be released during that period before conviction. If you have concerns if the person isn’t going to show up to court, the idea is we’re asking you to pay money as an incentive because you forfeit it if you don’t show up. Now, under the change, we would be able to ask you to give money in a much broader array of situations where we actually don’t have necessarily a concern that you’re not going to show up in court but we’re just — we don’t like the kind of crime that you are alleged to have committed. That’s a very different way to use cash than we have been using it in the past.

Frederica Freyberg:

Does it seem as though cash bails will go higher and people will sit in jail longer?

Cecelia Klingele:

That is certainly a possibility. Even more importantly, it’s likely to be imposed more frequently. And the reason why that might be a problem for us is that under the law, you’re not supposed to use cash to keep people detained. Cash bond is always supposed to be just a way of making sure people are complying with the rules to decide if they actually are guilty or not. The idea isn’t if you have money, you get to be out pending release and if you don’t have money, you’re stuck, and so we should set high bonds that people can’t meet. In fact, under existing law, U.S. and state law, you have to set reasonable bonds in amounts that people are expected to be able to pay, people are supposed to be out pending release, and we use conditions to keep everyone safe, not money, which has disparate effects on different people.

Frederica Freyberg:

With less than half a minute left, what is your guidance to voters who take a look at these when they go to vote?

Cecelia Klingele:

I think you want to spend some time really thinking about what good is being done by imposing cash in more cases. It’s important to remember we already have a statute in the state that allows people convicted of certain crimes of violence to be able to be detained without release under any circumstances when we have serious enough safety considerations.

Frederica Freyberg:

All right. Professor, thank you very much. We appreciate it.

Cecelia Klingele:

My pleasure. Thank you.

Frederica Freyberg:

Wisconsin voters will see one more question on the ballot, but it will have no policy effect as it is a non-binding referendum. The question reads “shall able-bodied, childless adults be required to look for work in order to receive taxpayer-funded welfare benefits?” Republicans say they added this question to the ballot as a way of gauging public opinion about the issue, while Democrats say because there are already work or training requirements for benefits, it is intended to boost turnout among conservative voters in the state Supreme Court race.

You can learn more about the candidates and issues as well as follow election night results by visiting WisconsinVote.org.

For more on this and other issues facing Wisconsin, visit our website at PBSwisconsin.org and then click on the news tab. That’s our program for tonight. I’m Frederica Freyberg. Have a good weekend.

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Funding is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.