Justice Kelly asks whether to ‘unrecuse’ himself in two cases

Justice Daniel Kelly, the conservative Wisconsin Supreme Court justice who lost the April 7 election to Dane Co. Circuit Judge Jill Karofsky, is pondering whether or not to “unrecuse” himself from two separate cases involving Wisconsin voters.

On April 15, Kelly, who was appointed to his seat by former Gov. Scott Walker, sent a letter to the lawyers in the Zignego v. Wisconsin Elections Commission case. The plaintiffs in that case sought to bypass the court of appeals and get the Supreme Court to take up their petition to force the elections commission to purge more than 200,000 voters who may have moved from the voting rolls. Kelly writes that the case “could have affected the 2020 spring primary and general elections.”

“I recused myself from considering the petition because I was a candidate in those elections,” he added. The Supreme Court denied the petition to bypass the lower court in that case. But now that the court of appeals has ruled on the case, and there is a new petition before the Supreme Court to review the case.

“The 2020 spring general election is now complete,” Kelly writes, “so it appears the reason for my recusal from considering any aspect of this matter no longer obtains.”

Kelly therefore issued an order “that any party wishing to address the issue of my participation in or recusal from the consideration of the petition for review and potentially of the merits of these consolidated matters shall file a written response to this order no later than April 22, 2020.”

He issued the order, he explained, “to give the parties an opportunity to state their position on whether I should recuse myself from considering the pending petition for review and, potentially, the merits .. [of the case], before I make a final decision on my participation.”

On April 23, Kelly sent a separate letter to the lawyers in another case, Jefferson v Dane County, again ordering them to weigh in on whether he should recuse himself.

In that case, the petitioners, Mark Jefferson and the Republican Party of Wisconsin, asked the Court to order Dane County Clerk Scott McDonell to remove a Facebook post in which he told Dane County voters that they could declare themselves “indefinitely confined” during the Safer at Home order and avoid the legal requirement to present or upload a copy of their voter ID when requesting an absentee ballot.

Although the April 7 election has now passed, and McDonell has now posted the Elections Commission guidance on indefinite confinement and voter ID on his Facebook page, the Court decided to take the case, explaining that “McDonell’s March 25, 2020, advice was legally incorrect. In addition, McDonell’s subsequent Facebook posting does not preclude McDonell’s future posting of the same erroneous advice. Furthermore, his erroneous March 25, 2020 Facebook posting continues distribution on the internet.”

Attorneys in that case have until April 30 to weigh in on whether Kelly should continue to recuse himself.

The section of the Supreme Court’s internal operating procedures on Recusal or Disqualification of Justices reads, “When a justice recuses or disqualifies himself or herself, the justice takes no further part in the consideration of the matter.”