>> THE INCUMBENT IN THE RACE IS
JUSTICE DANIEL KELLY.
JUSTICE KELLY IS A FORMER
SPECIAL PROSECUTOR WITH THE
MILWAUKEE COUNTY DISTRICT
ATTORNEY'S OFFICE.
HE'S A FORMER STAFF ATTORNEY
WITH THE US 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.
>> IT'S MY PLEASURE.
THANKS FOR HAVING ME ON.
>> 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?
>> 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 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.
>> 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?
>> YEAH, WELL, IF YOU HAVE AN
ALL 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
THOSE.
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 WHAT-- 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 CORRUPTION
-- DIRECTION FOR OUR BRANCH OF
GOVERNMENT.
>> NOW THE WISCONSIN SUPREME
COURT HAS ISSUED ORDERS
POSTPONING ALL JURY TRIALS.
YOU DISSENTED TO THAT DECISION.
WHY?
>> THAT'S CORRECT.
WELL, PARTLY BECAUSE OF WHAT I
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 SIXTH 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
TRIALS TO MAKE SURE THAT BY
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.
>> 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?
>> 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.
>> 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 POSTPONINGTHIS ELECTION?
>> WELL, I THINK 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
YES 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.
>> AND HOW HAS YOUR CAMPAIGN
RESPONDED TO THE PANDEMIC AND
ALL THESE SHIFTS IN HOW THE VOTE
IS OCCURRING?
>> 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 IS 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'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, THE
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 TELEVISED -- 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 NOT-- 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.
>> 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 ISN'T A
POLITICAL ELECTION?
>> 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-- WHEN MY
OPPONENT HAS MADE THIS REPEATED
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-- IT'S WITHOUT
PRECEDENT, 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 -- 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 THE 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 COURT'S 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 IN MY
-- 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 THE
VERY INTEGRITY OF THE COURT, THE
INSTITUTION THAT SHE SAYS AS 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 DID-- 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 ARE 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.
>> 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'VE NOW
CAMPAIGNING FOR THE COURT.
YOU'VE SEEN BOTH THE GOOD AND
THE UGLY, AND CAMPAIGNING GIVEN
THOSE EXPERIENCES.
IN JUST A FEW SECONDS, ARE
ELECTIONS STILL THE BEST WAY TO
CHOOSE WISCONSIN'S SUPREME
COURT?
>> 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 EXERCISE AS A
SUPREME COURT JUSTICE BELONGS TO
THE PEOPLE OF WISCONSIN.
I USE IT AS A LOAN FROM THEM, ON
THEIR BEHALF AND 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 THEM
REPORTS 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,
GOING AROUND TO THE FOLKS OF
WISCONSIN AND DESCRIBING WHAT
I'VE BEEN DOING WITH THEIR
AUTHORITY.
THE 1 AND ONE-HALF PERCENT OF
THE CAMPAIGN THAT I DON'T LIKE,
IS MOSTLY MY OPPONENT'S
BEHAVIOR.
>> WELL, THAT IS ALL THE TIME WE
HAVE.
WE THANK Y