Zac Schultz:

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.