Seemingly lost in the non-stop coverage of COVID-19 is the fact that Wisconsin faces a critical choice on April 7. No, I am not talking whether to hold an election. I am instead referring to the race for the Wisconsin Supreme Court.
The results of the February 18 primary would suggest that incumbent Justice Daniel Kelly is headed for a comfortable victory, as his vote total eclipsed that of Dane County Judge Jill Karofsky and the third-place finisher, Marquette Law School professor Ed Fallone, combined. But of course, this year’s Supreme Court race has a twist: liberals could be turning out in droves to vote in the Democratic presidential primary, while the Republican primary is a mere formality. And that was all before the COVID-19 pandemic.
A failure of conservatives to vote could not only deprive Wisconsin of one of the most talented and capable jurists to ever warm a seat on the high court, but it would severely undermine the rule of law in our state by installing a nakedly political jurist on the state supreme court.
Justice Daniel Kelly – Wisconsin’s Scalia
Before being appointed to the Supreme Court by Governor Scott Walker in 2016, Justice Kelly established a decorated career in private practice, where he headed up the appellate practice section of one of Milwaukee’s oldest and largest law firms. While in private practice, Justice Kelly argued over a dozen cases before the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the Seventh Circuit Court of Appeals. He also served as general counsel and vice-president to one of Wisconsin’s largest charitable organizations, and was also president of the Milwaukee Lawyers Chapter of the Federalist Society, the local chapter of America’s leading intellectual organization for conservative lawyers and judges who adhere to originalist constitutional principles.
Since assuming his seat on the state’s high court, Justice Kelly has made his mark for his strong defense of originalism, which looks to the original public understanding of constitutional provisions. He has also argued forcefully in favor of textualism, which counsels that it is the text of statutes that controls a law’s meaning, not the unexpressed “feelings” behind a law that may have been residing deep in a legislator’s heart, but which never made their way into the statute books. Justice Kelly’s principles are essential to protecting the rights of citizens, who must live their lives everyday based on the law as it is written, not what some judge may decide is the preferable meaning.
The examples below are a sampling of Justice Kelly’s work in three important areas of the law. These cases demonstrate not only his commitment to the rule of law, but his sparkling prose and inimitable style.
In Wisconsin Carry, Inc. v. City of Madison, the issue before the court was whether the City of Madison’s transit commission could ban firearms on city buses. In 2011, Wisconsin changed its state law to become the 49th state to allow the concealed carry of firearms, although the statute still prohibited guns in certain public places such as schools and courthouses. The statute said nothing about banning guns on buses, or whether municipal agencies had the power to draft rules banning weapons.
By a 5-2 majority, the Wisconsin Supreme Court held that Madison’s transit commission had no authority to regulate firearms on buses. Wrote Justice Kelly: “In the City’s reading of the statute, the legislature made a conscious decision to withdraw firearms-regulating authority from a municipality’s democratically-accountable governing body, while leaving that authority entirely undiminished when exercised by the municipality’s democratically-unaccountable sub-units.”
The Supreme Court held there was no statutory basis for the interpretation urged by the City of Madison, and hence the concealed carry law preempted the transit commission’s attempt to ban weapons on city buses.
Another significant case where Justice Kelly wrote for the court was Milewski v. Town of Dover. Vincent Milewski and Morganne MacDonald own a home in Dover, Wisconsin. In 2013, the Town hired an appraisal service to re-appraise all homes via inspection for property tax purposes. The Milewskis, along with three other homeowners in the subdivision, allowed the inspector to view the exterior of their home but would not grant access into their home. The four homeowners who refused to allow the town inspector into their homes received an increased assessment (meaning higher property taxes) while the other 39 homeowners who allowed entry received a decreased assessment.
The Milewskis challenged the increased assessment with Dover’s board of review, but pursuant to a Wisconsin statute, because the Milewskis had refused to allow a home inspector into their home, the Milewskis lost their right to appeal the assessment. The Milewskis sued the Town, and the case made its way to state supreme court.
Justice Kelly nicely framed the Milewskis’ dilemma: “The Town told them they must either submit to a tax assessor’s inspection of the interior of their home or lose the right to challenge the revaluation of their Property. The Milewskis say the Town may not make them ransom their due process rights with a search of their home. The Fourth and Fourteenth Amendments, they say, protect the sanctity of their home as well as their right to contest the Town’s revaluation.”
Although the court splintered in its reasoning, five justices held the town could not put the Milewskis to this choice. Writing the lead opinion for the court, Justice Kelly (joined by Justice Rebecca Bradley) wrote, “A tax assessor’s inspection of a home’s interior is a search within the meaning of the Fourth Amendment, and so it is presumptively unreasonable—and therefore unconstitutional—in the absence of a warrant . . . . The Milewskis suffered an abridgement of their Fourteenth Amendment rights solely because they exercised their Fourth Amendment rights, which is a real and immediate constitutional injury.”
Accordingly, the case was remanded to allow the Milewskis to challenge their increased assessment.
Reigning in the Administrative State
Since the 1930s and the New Deal, our federal government has metastasized largely through the creation of new federal departments and administrative agencies. In the decades since, Congress has been all too willing to cede its legislative power, delegating rulemaking and regulatory authority to unelected bureaucrats who draft regulations which now cover nearly every aspect of daily life. We now also see so-called administrative law judges (some of whom are not even attorneys) who adjudicate disputes involving citizens and administrative agencies.
For our tripartite system of government to function properly, each branch must limit itself to properly exercising its constitutional powers. Nevertheless, administrative agencies now enforce regulations, interpret statutes, and render binding decisions in quasi-judicial fora. They have effectively become a fourth branch of government.
At the federal level, since the 1982 Chevron case, the United States Supreme Court has been deferring to administrative agencies’ interpretations of statutes. It is odd that members of the Supreme Court—the cream of the legal crop as it were—would feel it necessary to defer to a bureaucratic decision of how to read a statute. And yet the Wisconsin Supreme adopted its own version of Chevron deference in 1995 (Harnischfeger), and applied one of three standards of review to administrative agency decisions: (1) great weight deference; (2) due weight deference; or (3) no deference.
In a magisterial tour d’horizon, Justice Kelly’s opinion in the 2018 Tetra Tech case traced the historical roots of the agency deference doctrine and determined that it could not be squared with the Wisconsin Constitution. As the Tetra Tech opinion demonstrated, when judges affirm an administrative agency’s decision based on the agency’s reading of a statute, the court has effectively abdicated its responsibility to interpret the law and decide legal questions for its citizens. Moreover, the court recognized the fundamental due process concerns presented when an administrative agency gets to decide whether the agency correctly adjudicated a case involving a private party.
The Tetra Tech decision was a significant victory for those who believe in separate and properly cabined branches of government. Moreover, Justice Kelly rolled up his sleeves and did the hard detective work of tracing the doctrine of agency deference so its historical roots could be properly understood. This was crucial, because the court was overturning its own precedent. Whenever a court discards its prior decisions, it is vital that it explain itself with clarity so citizens can have confidence in the decision. Because of the scholarly work in the Tetra Tech opinion, the Wisconsin Supreme Court laid bare the incompatibility of the judiciary deferring to administrative agencies’ interpretations of the law.
Judge Jill Karofsky Would Impose a Radical Agenda of “Social Justice” Outcomes
Justice Kelly’s opponent takes a different approaching to judging. She has stated that once on the supreme court, she would behave as a “social justice warrior,” (her words). She has also openly attacked President Donald Trump, a dangerous precedent to set for someone asking the public to trust her to make judicial decisions independently and free of a desire for policy-oriented outcomes.
Given Judge Karofsky’s open advocacy for progressive and liberal political causes, her victory would undermine public confidence in the courts as detached and neutral defenders of the rule of law. Instead, the public would come to see judges as indistinguishable from partisan politicians.
Conservatives and voters of all stripes who care about the rule of law need to show their commitment to their principles. I urge my fellow Wisconsinites to join me in supporting Justice Daniel Kelly, a man of rock-ribbed character and impeccable judgment. The Wisconsin Supreme Court is too important to ignore.
Matthew Fernholz practices civil litigation at a law firm in Waukesha.