The primary election is coming up on Tuesday, February 21. There's a statewide primary for an open seat on the Wisconsin Supreme Court, as Justice Patience Roggensack is not seeking reelection.
Wisconsin Justice Initiative asked each of the candidates to answer a series of questions. One candidate responded, and her answers are printed here as submitted. The questions are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.
The responding candidate, Janet Protasiewicz, is a trial judge on the Milwaukee County Circuit Court.
Candidate Everett Mitchell is a trial judge on the Dane County Circuit Court. You can view his April 2022 presentation at a WJI Salon on the topic of juvenile justice here.
Candidate Jennifer Dorow is a trial judge on the Waukesha County Circuit Court. You can read the "Walker's judges" profile of her, which WJI published in 2016 based on Dorow's 2011 application for her judicial appointment by then-Gov. Scott Walker, here. WJI's post on Dorow has been linked to or cited recently by other publications, including The New York Times and Urban Milwaukee.
Candidate Daniel Kelly is a former Wisconsin Supreme Court justice. After losing his election campaign in 2020, he served as a senior fellow at the Institute for Reforming Government. You can read the "Walker's judges" profile of him, which WJI published in 2020 based on Kelly's 2016 application for his judicial appointment by Walker, here.
Why do you want to become a justice?
I have found service as a Milwaukee County Circuit Court Judge extremely fulfilling. It is intellectually stimulating, allows me to learn about many aspects of the law I was not exposed to as a prosecutor, and fulfills my commitment to public service.
I am running for the Wisconsin Supreme Court, because I feel it is my duty to serve and I cannot sit back and watch right-wing extremists manipulate the law for political benefit and destroy the reputation of our once truly nonpartisan court. There are so many issues that will come before the court that will have a real impact on the lives of people in Wisconsin, that I feel compelled to devote my energy and talents so I can help ensure the court is fairly administering justice to protect the rights of all the people. I believe I possess the depth of legal experience, life experience, judgment, judicial demeanor, and values to be a just and effective Justice on the Wisconsin Supreme Court.
Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.
Obergefell v. Hodges is one of the best Supreme Court opinions in the last thirty years. In 2015, the Supreme Court ruled that all same-sex couples are guaranteed the right to marry by the Due Process Clause of the Fourteenth Amendment. This was a monumental decision because the Court deemed the right to marry as one of the fundamental liberties it protects. This was a huge victory for LGBTQIA+ individuals who have faced decades of discrimination and have been fighting tirelessly for civil rights. This win affirmed that all Americans should be regarded equally and moved the United States toward being a more fair and just society.
Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.
The 2022 SCOTUS decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, is one of the worst decisions in modern times. It stripped women of their right to determine their own health decisions, within the well-reasoned personal rights and limitations established in Roe for women to access abortion services legally. It threw to the States, after 50 years, the ability to determine rights on a state-by-state basis, resulting immediately in a patchwork of rights, the limitation of medical resources for women based upon where they lived, and the re-animation of the 1849 Wisconsin abortion ban that is now being challenged by the Attorney General and Governor. It failed to recognize the right of privacy in the 9th Amendment to the Constitution, as well as case law on privacy rights, which lays the groundwork for attacking a host of other privacy rights. The concurring opinion of Justice Thomas made it clear that marriage equality, birth control, and sodomy laws are the next rights to be challenged. Although he found exception for interracial marriage, which would have negatively impacted him personally, this issue is also based upon the same theories as the other privacy cases. This decision was extreme, did not respect precedent, did not tailor a narrow holding on the facts of the particular case, and was a radical stripping of an established right for over half the population of this country. As the challenge to the Wisconsin law will be heard before the Wisconsin Supreme Court, I cannot prejudge the merits of that case. I can say that the decision in Dobbs, which took away reproductive rights instead of expanding them, laid a road map for stripping more rights in the future by analogy, and was wrongly decided in my opinion.
Describe your judicial philosophy.
My judicial philosophy is that every person deserves to walk into our courtrooms and demand justice, and not feel like the thumb is on the scale against them. I believe in upholding our constitution and defending our hard-earned rights. I believe in the simple credo of “do justice.” My philosophy is founded in the Constitution of the United States and the State of Wisconsin.
Being a judge involves examining facts, applying the law, and making sure the legal protections are observed. Those who interact with the judicial system need to know they are seen, heard, and treated with fairness and respect. A judge must never lose sight of the impact of the legal system on victims, witnesses, law enforcement, and those accused of crimes. All persons before the court deserve respect for their rights, protection of their safety, justice and restitution for harms suffered, and offenders need rehabilitation opportunities to make them better citizens.
Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.
During my 26 years as a Milwaukee County Assistant District Attorney, I spent many years in the Juvenile Division, where I prosecuted termination of parental rights (TPR) cases, where family reunification was not viable and there was an adoptive resource available. One such case was State of Wisconsin v. Margaret H., which was a TPR case involving two young brothers, where I was the prosecutor, representing the State of Wisconsin in the trial before the Circuit Court.
In this case, it was the grandparent who was not an adoptive resource, but wanted the TPR to be denied. The State’s positions allied with that of the Guardian ad Litem (GAL), who was the attorney appointed for the children in this matter to protect their best interests. The GAL filed an appeal of the Circuit Court denial of termination of parental rights, based upon a minimal family relationship the children had with the grandmother. I joined the GAL in that appeal process, where the Court of Appeals reversed the decision of the Circuit Court and the grandparent appealed to the Wisconsin Supreme Court. I filed a brief with the Wisconsin Supreme Court on behalf of the State, which supported the position of the GAL. I argued before the WSC, as well as filing the appeal briefs, and the State and GAL prevailed, when the WSC affirmed the decision of the Court of Appeals to overturn the Circuit Court and grant the TPR, so these boys could be adopted and have a stable and safe future. That was a difficult case, but extremely gratifying.
As a Milwaukee County Circuit Court Judge, I have handled homicides and sexual assault cases. One of the most difficult was State of Wisconsin v. Dariaz Higgins, Milwaukee County Case Number 2019CF001050. The defendant snatched his 2-year old daughter, concealing her whereabouts from her mother, resulting in the family frantically searching for the young child. The defendant contacted the mother, to lure her into meeting him to get the child back. When the mother and her friend went to meet him in Milwaukee County, he shot and killed the 24-year-old mother and seriously wounded the mother’s friend. The little girl’s body was later found dead in Minnesota. He was prosecuted in Milwaukee County for First Degree Intentional Homicide, Attempted First Degree Intentional Homicide, and First Degree Recklessly Endangering Safety. While this did not proceed to trial, because he pled guilty to the two most serious charges, the horrendous nature of this case and the issues at sentencing made this case significant in my career. I sentenced him to life without parole, which was the only appropriate sentence in this matter. This was only a small measure of justice for his crimes, because these lives could never be made the same and these families could never be made whole, when nothing could bring back this child or her mother.
Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.
In my long life and career, I have witnessed many injustices in and outside of court. What stays with me is the impact of abuse and neglect on children, which I dealt with as a prosecutor on CHIPS cases, and later as a judge on abuse cases. I think this injustice strikes at the heart of the community. In court as a prosecutor, I could advocate for children’s safety and the punishment of those who abused them. As a judge, I tried to fashion remedies that take into respect the particular facts of the case and the impact of abuse that makes a victim child more likely to suffer as an adult from poverty, lack of education, substance abuse, and mental health concerns. As a person outside of the courtroom, I have volunteered with at-risk teens and mentored groups to support women to try and break this cycle and make our community healthier. We are a country of privilege and wealth, so I have endeavored to use the privileges I have enjoyed in a stable family and faith community to give back to my community. That was why when I became an attorney, went into public service, and became a judge.
I believe respect for persons before the bench, whether they be litigants, attorneys, or court staff, is essential to modeling equity. The behavior of a judge is reflected in how the court staff interacts with the public. I have an open and welcoming courtroom. Small things, like asking someone what they want to be called, or scheduling around someone’s work or daycare needs when possible, can really make a difference in the atmosphere of the courtroom. I also make every effort to show litigants that they are seen, heard, and respected. On the Wisconsin Supreme Court, though there are no litigants appearing, I would use the same people skills to build bridges with my colleagues, because having respectful relationships is conducive to getting others to listen to your viewpoint, which results in a more equitable outcome.
Describe other relevant work experience that would assist you in your performance as a justice.
Before being elected to the bench, I served more than 25 years as Assistant District Attorney, where I prosecuted serious crimes and protected families. I have been elected to the bench twice without opposition. I currently serve in Family Court and have also presided over homicide, sexual assault, misdemeanor, domestic violence, and drug courts. I earned my bachelor’s degree at UW Milwaukee and my law degree at Marquette University, where I later served as an Adjunct Professor of Law.
Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?
Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur?
Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge's election? If not, why not? If so, why? What contribution limits would you set?
It is important to have a strong, clear recusal rule. I believe this should be developed through public hearings, and an open and transparent process, so that all actors are aware of what might trigger a recusal. This would help to restore greater confidence in judges. People should have increased confidence that special interests are not rigging the judicial system for their own political agendas.
What, if anything, would you do to improve the judicial commission?
The judicial commission operates with too much secrecy, is too staff-driven, and is not effective as a body to hold bad-acting judges accountable. I would support a review of its policies and procedures and support public hearings to advance this discussion and create a more effective mechanism to hold judges accountable.
What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them?
The funding for the court system statewide is insufficient. The lack of public defenders, and now even prosecutors, available to take cases, especially in more rural counties, delays the court process, impacting not only offenders who may be in custody, but victims and witnesses involved in a case. If an offender is out of custody awaiting trial, there are insufficient resources for pretrial supervision, such as electronic monitoring, that can provide the offender with rehabilitative interventions pretrial, but also protect the public from new offenses while the accused is on bail status. One great resource in Milwaukee County is the Milwaukee Justice Center, but its funding is not sufficient. There are not enough programs available for drug and alcohol counseling, batterers intervention, parenting classes, job training, etc., which aid in not only rehabilitating those convicted, but in allowing those charged to avail themselves of alternative dispositions to conviction and incarceration.
For example, when I was a judge in Domestic Violence Court, it was common to order violence counseling and parenting classes, not only at sentencing, but also as conditions of Deferred Prosecution Agreements. Sometimes, the accused would even start this programming while the case was pending, to show good faith and get a more favorable outcome, or to get a No Contact Order with the intimate partner victim lifted or modified to allow non-violent contact. In my current assignment in Family Court handling divorces, I have encountered persons who completed these extensive programs through the criminal process, but they are not “certified” for application in the family courts. I believe rigid adherence wastes vital system resources and frustrates the purpose of improving people’s lives and futures, which is counterproductive to treatment and rehabilitation. The additional deficiencies in the system include the lack of court reporters, court clerks, prosecutors, and court interpreters; the system being overburdened results in justice being delayed.
This was exacerbated during the pandemic, where the courts being unable to conduct trials for more than a year resulted in a tremendous backlog of cases, while the accused sometimes remained in custody without being convicted, where victims or witnesses became uncooperative or felt out of contact, or those out of custody without services and supervision were not being rehabilitated, or were financially impacted by being unable to gain employment with an open case and could get into more trouble. So, in short, the Wisconsin Supreme Court has to vigorously advocate to the legislature for more resources for the whole system, so that society is safer, justice is swifter, and rehabilitation is a focus to build stronger families and communities in the future.
Provide any other information you feel would be helpful to potential voters deciding for whom to vote.
Dan Kelly and Jennifer Dorow are cut from the same cloth. Both are right-wing partisans that will do what is in the best interest of their party and right-wing extremists. They were both selected by Scott Walker to reflect his political goals and the interests of the Republican Party. We can’t afford to let either one of them sit on our state's highest court. Judge Dorow has presided in the trial court of a far less populous county than I have, and her level of experience does not match my own. While she has received sudden fame from a tragic high-profile homicide case, I spent years litigating many tragic sexual assault and homicide cases, day after day, without live broadcast or extended television interviews. Former Justice Kelly was appointed by Walker to the Wisconsin Supreme Court, to finish the term of a conservative justice who stepped down even though he had absolutely no experience as a trial court judge, but plenty of political connections. In 2020, Kelly faced the voters four years later, with record special interest group spending and the endorsement of then President Trump. The voters of Wisconsin resoundingly defeated Kelly by electing Justice Jill Karofsky to a 10-year term on the Court.
I believe that my temperament and ability to work well with people of all social and political backgrounds is a strength I can bring to the Wisconsin Supreme Court. I want to restore faith in the Supreme Court so that the Court is not a partisan political body, but one that upholds and applies the law and Constitution.
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