MADISON – Ethics rules for judges — often an issue raised in Wisconsin Supreme Court races — are featured in a concrete way in this year’s contest.
Justice Daniel Kelly has stepped aside from two voting-related lawsuits because his name is on the ballot, but has said he might participate in one of the cases if it continues after the April 7 election. His opponent, Dane County Circuit Judge Jill Karofsky, has called such a move into question.
Joining a case after initially recusing may be unusual, but it wouldn’t necessarily be unwarranted, national experts on judicial ethics said.
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The winner of the election will serve a 10-year term on the high court. Kelly is part of the court’s 5-2 conservative majority and Karofsky has won backing from liberals.
Kelly in December stepped aside from a lawsuit seeking to remove thousands of people from the voter rolls who are believed to have moved.
Those bringing the lawsuit are represented by the Wisconsin Institute for Law & Liberty, a conservative legal group that Kelly advised before he was on the bench. WILL’s president, Rick Esenberg, in 2016 urged then-Gov. Scott Walker to appoint Kelly to the court, which he did.
An appeals court found the voters should not be kicked off the rolls and the Supreme Court hasn’t decided yet whether to review that decision. Kelly stayed away from the case because he didn’t want to rule on who would be registered to vote in his own race.
But he said he might involve himself in the case after the election.
“(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,” he said in an interview. “Then I think the general obligation to sit on all cases that come before the court, I think that would kick back in.”
He said he has been cut off from all information about the case because he has recused himself and doesn’t know how much it has been discussed by the other justices. If they have begun work on the case in earnest he will stay out of it because “it should be a decision that is arrived at by those who have participated in substantive aspects from the beginning.”
Although the election is next week, the new term of office doesn’t start until Aug. 1. So Kelly will remain on the court for the short term whether he wins or loses, giving him a chance to participate in the case.
Karofsky pilloried Kelly for considering putting himself on the case after the election.
“This is a guy who was endorsed by Donald Trump,” she said. “This is someone who is running his Supreme Court campaign out of the Wisconsin GOP headquarters, a guy who has pictures of himself cradling AR-15s.”
“(He’s) basically 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.”
Kelly called those comments out of line.
“I don’t want to play armchair psychologist or anything, but I am familiar with this concept of projection, that you suspect other people would do what you would do,” he said. “And I think what she’s doing is she is projecting her own outcome-driven approach to the resolution of cases.”
Kelly has repeatedly ruled in favor of WILL’s clients when they have come before the Supreme Court. Kelly said his decisions were rooted in logic and he hadn’t tipped them in WILL’s favor because of his ideological leanings.
In a case over an Eau Claire arts center, the city’s lawyers in 2017 asked Kelly to step aside because of his relationship with WILL.
Kelly declined because he said he had not been involved with WILL for years and had not discussed the case with the group. The other justices sided with allowing him to participate in the case.
Douglas Hoffer, a deputy city attorney in Eau Claire, said he was disappointed that Kelly stayed on that case and that he wasn’t allowed to review documents about Kelly’s relationship with WILL. He said it was reasonable to question whether Kelly could handle litigation involving WILL impartially given his past ties to the group and his support from WILL’s president.
Regarding the voter rolls case, Hoffer said judges should be reluctant about joining a case after disqualifying themselves.
“Once a decision is made to recuse themselves, I think judges should be extremely careful about reversing that decision,” he said. “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 said he usually votes for Republicans and conservatives, noting he supported conservatives David Prosser, Rebecca Bradley and Brian Hagedorn in recent court races. But he said he was supporting Karofsky this time around in part because of Kelly’s handling of recusal.
Stephen Gillers, a professor at New York University School of Law who specializes in judicial ethics, said there are times when judges can reverse a decision to stay out of a case if they’re asked to do so by one of the party’s involved in a case.
“I’ve never heard of a judge doing so without being asked,” Gillers said by email. “However, it would not be improper to do so if the circumstances that led to the recusal decision are changed.”
Charlie Geyh, a professor at Indiana University Maurer School of Law who has written extensively about judicial disqualification, said it’s uncommon for judges to change course after initially stepping away from a case.
“It is unusual, it is probably best avoided, but the state of the law is uncertain enough that I cannot say it is improper,” he said by email.
On Friday, the state Republican Party asked the Supreme Court to accept a lawsuit against Dane County’s clerk for telling people they could request absentee ballots without providing ID if they were confined to their home because of the coronavirus pandemic sweeping the globe.
Kelly stepped aside in that case too.
The Republican Party lawsuit comes as others are asking a federal judge to loosen voting rules or postpone the election because of coronavirus.
Kelly said he thought the election could continue
“We need to have an election,” he said. “I think we can do that and be mindful of people’s well being at the same time. … The problem with potentially changing up the rules of the of the election is that the election is already underway, and has been for several weeks (with absentee voting).”
Karofsky said she is assuming the election will stay on schedule.
“All I’m focusing on is the April 7 date that you and I are talking right now,” Karofsky said. That is the date that I know, that is the date that we have right now. And so I’m focusing on that and I’m focusing on getting people to vote absentee.”
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.
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