Kelly, with a pro-business record, runs on originalism

By: - February 15, 2023 7:00 am
Justice Daniel Kelly (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)

Justice Daniel Kelly (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)

Daniel Kelly’s campaign to regain a seat on the Wisconsin Supreme Court, where he served from 2016 to 2020 after being appointed by former Republican Gov. Scott Walker, has largely focused on his belief that his style of constitutional originalism and his reliance on the “original public meaning” of the law is the only legitimate method for interpreting the issues the court hears. 

He has attacked the two liberal candidates, Dane County Judge Everett Mitchell and Milwaukee County Judge Janet Protasiewicz, for tipping their hand on what they believe about certain issues the court is likely to hear in the coming years. At the same time, he’s criticized the other conservative candidate, Waukesha County Judge Jennifer Dorow, for not being conservative enough — going as far as saying he wouldn’t endorse Dorow in the general election if she wins the primary next week. 

“There’s no treatise, there’s no law review article. There’s not even an opinion piece in the newspaper,” Kelly said of Dorow’s lack of stated beliefs. “There’s no lecture or presentation of summary judgment decision, no motion to dismiss opinion, that describes what she means” by saying she’s conservative.

Kelly, whose campaign did not respond to requests for an interview, has compared Dorow to conservative-leaning Justice Brian Hagedorn, who was elected in 2019 but has since been criticized by Republicans for a handful of cases in which he sided with the court’s liberal minority — most notably in the case that ended former President Donald Trump’s hopes of overturning Wisconsin’s election results in 2020. 

Despite his attacks on Dorow, she continues to outpace him in fundraising. At the end of the most recent reporting period, campaign finance records show, she’d brought in more than $365,000 compared to his total of around $100,000. 

At a forum in January — the only time all four candidates have shared a stage — Kelly expounded on his belief that the justices shouldn’t bring  their political beliefs into judging cases. In his failed campaign to hold onto his seat in 2020, Kelly was endorsed by Trump and spent much of his earlier legal career advancing conservative causes. 

“Politics is poison to the work of the court,” Kelly said at the forum. “Everybody who comes to the court, regardless of what they want to tell you, has political beliefs. The question is whether they can set them aside to do the work of the court. In order to do that you need to have a methodology developed and ready at hand that you can apply every single day.” 

In one of the few times a candidate directly criticized the comments of others on the stage, Kelly took a shot at the two liberal candidates for saying they don’t prejudge cases but do bring their own values to the bench. 

“I think when someone tells you what their values are in an answer to a legal question, they’re telling you how they’re going to decide a case,” he said in response to a question about redistricting. 

Kelly is the only candidate who has not served as a circuit court judge. He was appointed in 2016 by Walker after working as a lawyer to defend Walker against charges that he violated campaign finance laws in 2014. Kelly has also served as the president of the Milwaukee chapter of the Federalist Society — a right wing legal organization — and has been involved with the Wisconsin Institute of Law & Liberty, a right wing law firm that often brings lawsuits to the state Supreme Court that aim to bend state policy in a conservative direction. 

Mitchell says it’s easy for someone to say their values don’t influence their work as a judge when they’ve never dealt with the day-to-day realities of overseeing a circuit court branch. 

“I think Dan Kelly has never been elected as a judge so he doesn’t have the benefit of having to work every day deciding issues for which there is no originalist constitutional answer or defined constitutional response,” Mitchell tells the Wisconsin Examiner. “You have to use values such as in sentencing or termination of parental rights. When do you use discretion? He doesn’t know because he’s never been elected as a circuit court judge, of course it’s easy for him to be distant. A judge in that space has to use their values to best understand the facts in front of them.” 

Despite Kelly’s insistence that he leaves his personal opinions at the door when judging cases, a report from People’s Parity Project Action, an advocacy group aimed at making the justice system more fair for workers and consumers, Kelly’s previous four-year tenure on the court resulted in decisions that largely aligned with the pro-business interests that supported him. 

In 102 cases under a conservative majority from 2009 to 2023, the court sided with business interests 59% of the time. In the two years since Kelly was ousted from his seat, that proportion dropped to half of the cases. 

“For more than a decade, Wisconsinites have seen their constitution and laws interpreted in ways that benefit big business and deny justice to injured workers or consumers,” the report states. “Local and national groups funded by corporations spent tens of millions of dollars to get their preferred judges on the Wisconsin Supreme Court. And this spending has paid off in the form of a pro-corporate court.”

Wisconsin Supreme Court candidates (from left to right) Jennifer Dorow, Daniel Kelly, Everett Mitchell and Janet Protasiewicz appeared at a panel hosted by on Jan. 9. (Henry Redman | Wisconsin Examiner)

“But in the last two years, since voters ousted a corporate-backed justice, the court ruled for corporate defendants in only half of the cases,” the report continues. “On a more evenly divided court, one with a mere one-vote conservative majority, Wisconsin workers and consumers actually had a chance to access justice. This illustrates the power of voters to shape the Wisconsin Supreme Court.”

Among the cases analyzed in the report, Kelly often wrote or joined opinions that sided with business interests. 

In Westmas v. Selective Insurance Company of South Carolina, a family sued after a mother and her son were walking on Lake Geneva’s public walking path, through a property in which tree trimming was being done. A tree branch fell and hit the mother, killing her. The court’s majority ruled that the tree trimming company was not immune from liability for the incident under the state’s recreational immunity statute. 

But Kelly and Rebecca Bradley, in a joint dissent, wrote that while the incident was tragic, the company was acting as the agent of the property owner and the property owner is protected by the recreational immunity statute, and therefore neither should  be held liable for the woman’s death. 

“Refusing to recognize immunity for Creekside may force companies like it to weigh the risk of liability to the public when performing their tasks, dissuading them from working at these sites,” they wrote. “This could create a domino effect of discouraging landowners … from opening their land to the public because of the unsafe conditions arising from neglected maintenance the landowner is unwilling, unable, or unqualified to perform.”

In Flug v. Labor and Industry Review Commission, Kelly wrote in the majority opinion that a Wal-Mart employee who suffered a shoulder strain on the job, which was followed by surgery on a longer-term back injury and subsequently caused a permanent disability, is not eligible for ongoing disability benefits from the company because the workplace injury and the back surgery were not related — even though she believed the surgery was necessary because of the workplace injury. 

Deciding for the injured worker “would represent a significant step towards making the Worker’s Compensation system ‘a blanket insurance policy to provide benefits for disabilities which may become manifest while on the job but are in no way caused by or related to the employment,’” Kelly wrote. “There is nothing in the text of Wis. Stat. § 102.42(1m) to suggest such a momentous change, and even if that change is warranted, we are not the proper branch of government to prescribe it. Thus, we will not adopt an understanding of this statute that would extend employer liability to injuries and diseases that have nothing to do with the workplace.” 

Kelly authored these opinions as he was supported by some of Wisconsin’s most prominent pro-business voices. In his 2020 campaign, the state’s largest business lobby, Wisconsin Manufacturers and Commerce, and a national Republican group aired ads attacking his opponent, Jill Karofsky. 

The ads accused Karofsky of going “easy on predators” in her work as a Dane County Circuit Court judge. At the time, the Karofsky campaign filed a complaint with the Wisconsin Elections Commission requesting that the ads stop being run because their claims were “demonstrably false.” 

In his current campaign, Kelly has received $11,000 in donations through WMC’s conduit committee, which directs other people’s political donations to candidates. He has also received a maximum donation of $20,000 from Kim Hendricks, the daughter of Beloit-area billionaire Diane Hendricks. 

In addition to the direct contributions to his campaign, Kelly has received support from Fair Courts America, a super PAC tied to Illinois billionaire Richard Uihlein — who also supported Kelly’s 2020 campaign. Fair Courts America has pledged to spend millions of dollars to aid Kelly’s campaign. On Tuesday, a PAC associated with the anti-abortion group Susan B. Anthony Pro-Life America announced it would be spending six figures to help Kelly in the primary. 

The primary is set for Feb. 21. The two highest vote getters will advance to the April general election.


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Henry Redman
Henry Redman

Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.