Walker's judges: Daniel Kelly

"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench who still are serving. We also are chronicling "Evers' judges." The information presented is taken from the appointees' own judgeship applications. 

Name: Daniel Kelly

Appointed to: Wisconsin Supreme Court

Appointment date: July 22, 2016 (primary election Feb. 18, 2020)
 
Education:
            Law School – Regent University, Virginia Beach, VA 
            Undergraduate – Carroll College, Waukesha
            High School – Arvada West High School, Arvada, CO
 
Legal employment:
            2014-appointment – Owner, Rogahn Kelly LLC 
            2013-2014 – Vice president and general counsel, Kern Family Foundation
            1998-2013 – Shareholder, Reinhart Boerner Van Deuren 

Memberships:
             Wisconsin State Bar
              Virginia State Bar

Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Primarily complex commercial litigation over previous 18 years. Served as head of appellate practice at Reinhart. Handled criminal cases early in career and served as Milwaukee County special assistant district attorney under Reinhart's auspices. Worked on administrative cases almost exclusively befor the Government Accountability Board or its predecessor, the State Elections Board.

I have also had the opportunity, from time to time, to litigate constitutional issues. I have represented individuals and the government in First Amendment, Due Process, Equal Protection, and Takings Clause cases. 

In addition, I have developed a practice in campaign finance and election law. In that segment, I represent and counsel candidates, office-holders, and campaign contributors. Some of the topics include campaign contributions, reporting obligations, redistricting, and recounts. 

Number of cases tried to verdict or judgment: Jury, about 20; non-jury, about 10; arbitration, 0; administrative bodies, 5. 

Cases on appeal: 23
 
Three most significant cases: 

AKG Real Estate, LLC v. Kosterman – The Kostermans owned an easement over property AKG wanted to develop into a subdivision. The Kostermans refused an alternative route AKG offered. AKG sued, and the State Court of Appeals sided with AKG, ruling that the benefits to Kosterman were far outweighed by the costs imposed to the parties. 
 
The Wisconsin Supreme Court’s AKG decision reversing the Court of Appeals was outstanding. Bad opinions are immediately identifiable for their departure from the judiciary’s proper role. Good opinions, on the other hand, are notable mostly for the fact that they break no new ground; and when it is necessary to do so, they create as few waves as possible. They reflect only judicial authority, they follow precedent, they do not sweep broadly. Instead, they go only as far as necessary to resolve the conflict at hand. 

The Wisconsin Supreme Court recognized that the judiciary ought not second-guess an owner’s decision to keep his property rights. “Even at the risk of sanctioning unneighborly and economically unproductive behavior, this court must safeguard property rights.” The opinion embodying that decision restored precedent, went no further than necessary to return property rights to their proper place, reached the result required by law, and did all this in an elegant and tightly reasoned manner. 

It was my honor to represent the Kostermans in the appellate process as lead counsel. 
 
Baldus v. Brennan – (A 2011 lawsuit challenging the gerrymandered redistricting maps designed by Republicans in the Legislature.)

As lead outside counsel, I (in conjunction with the rest of the team) conducted a successful multiple-day trial in which the 3-judge panel affirmed all Congressional districts as written, and all State districts but for two adjoining assembly districts on the south side of Milwaukee (AD 8 and AD 9). The court approved the outer boundaries of the two districts, and simply adjusted the line dividing the two. 

Redistricting is a quintessentially political activity, the conduct of which belongs to the political branches of government. This case represented an attempt to replace the judgment of the political branches with the judgment of the judiciary. The panel rejected the overture, and instead affirmed the Legislature's work with the minor exception noted above. 

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In the Matter of the Recount of Votes for Wisconsin Supreme Court Justice – The public perception of this race, after passage of Act 10, was that it had become a referendum on Governor Walker’s vision for the State. But it was equally about whether we should have an activist Supreme Court. 

Justice Prosser, on the contrary, had spent the previous twelve years carefully evaluating cases according to the law, without favoring anyone’s political agenda. His understanding of the judiciary’s proper role has earned him the well-deserved reputation of an impartial, intelligent jurist of integrity and conviction. 

Jim Troupis (co-counsel) and I developed the overall strategy for the recount. We then assembled and directed an ad hoc corps of volunteer attorneys that, if it were a law firm, would have been one of the largest in the state. These attorneys worked with and supervised a body of over 300 volunteer staffers who did the hard work of reviewing every ballot cast in this election (approximately 1.5 million), watching for any defects in the process, and ensuring that every vote cast for Justice Prosser was properly counted. In his victory speech, Justice Prosser described my role in this matter as a combination of Generals Omar Bradley and George Patton....
  
All previous runs for office: None
 
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: I was a "kitchen-cabinet" advisor to Justice Rebecca Bradley in her 2016 campaign for the Wisconsin Supreme Court. 
 
All judicial or non-partisan candidates endorsed in the last six years:
Justice Rebecca Bradley
Justice Patience Roggensack (in her bid for chief justice of the State Supreme Court)
Justice David Prosser

Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application:

Federalist Society (Milwaukee Lawyer's Chapter), President 
Wisconsin Institute for Law and Liberty, Litigation Advisory Board
United States Commission on Civil Rights, State Advisory Committee, Member 
Carroll University President’s Council, Member 

​Describe any significant pro bono legal work in the last five years: Appointed tby the State Supreme Court to representing a woman pro bono before the court in a civil case. (Kelly was appointed in April 2016 and removed in August 2016, after his appointment to the Supreme Court.)

Quotes:

Why I want to be a judge – 

• Civilization depends on ordered liberty, functional economics, and individual rights;
• The rule of law is an indispensable foundation for ordered liberty, functional economics, and individual rights;
• The judiciary is uniquely positioned to protect and nurture the rule of law; and because
• None of the above matters unless those entrusted with care for the rule of law are willing and able to consistently apply its first principles in clear and certain terms, even when those principles conflict with their personal policy preferences.

There is no end to the mischief the judiciary causes when it abandons its role of declaring what the law is, and instead arrogates to itself the power to develop new law in place of what it received from the ultimate lawgivers – the people of the State of Wisconsin and the United States.​... 

The motivating factor for those who backed Joanne Kloppenburg was, in large part, an understanding that she would be the necessary fourth vote to strike down politically conservative legislation. Electing a jurist to invalidate politically disfavored legislation is a fair definition of judicial activism. – State Supreme Court Justice Daniel Kelly

Best United States or Wisconsin Supreme Court opinion in the last thirty years – United States v. Lopez, 1995
 
The Court’s opinion is significant not just for the fact that it recognized, and applied, a limit on the Commerce Clause, but more for the reasoning that led to the conclusion. The Court started its analysis with first principles. Real first principles – like the recognition that the Constitution creates a government of enumerated powers, that those powers are few and defined, and that the federalist principle this represents was adopted to ensure the protection of our liberties. 

Although the Court did not reject the “affecting commerce” locution (which had long ago been used to pick the lock that had originally constrained the Commerce Clause’s reach), it at least recognized that there must be an outer boundary beyond which Congress would effectively swallow the several States’ general police powers. 

As an opinion for the Court, therefore, Lopez is the best in the last 30 years for its recognition of a structural limitation on the reach of Congressional authority. 

I notice that the question posed by the application is broad enough to encompass any opinion, so I will spend a few more words on a dissenting opinion that must surely qualify as amongst the very best. 

Justice Scalia’s deep appreciation for first principles, and impatience with their neglect, was on full display in his thundering dissent from Obergefell v. Hodges: 

"Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

Just so. It is said no man is indispensable, and surely that must be true. But we shall not see his equal again. And so this will probably always stand as one of the best opinions for the courage it took to speak the truth, the ability to do it in clear and compelling terms, and the sheer power of its prose. ​

Worst Wisconsin or U.S. Supreme Court decision in the last 30 years – Kelo v. City of New Lisbon, Connecticut, 2005
 
In concluding that a private “taking” is justifiable upon the government’s belief that the transferee will put the property to a more economically productive use, it (the U.S. Supreme Court) exercised legislative – not judicial – authority. And in doing so it simultaneously offended both the implicit and explicit limitations on governmental authority....

The Court operated as a legislature by making the dispositive question a matter of legislative discretion rather than compliance with a legal standard....

The judiciary owes no deference at all to a legislature’s position on a question of law. So when the Court deferred to the City’s “legislative judgment” that it should have title to the petitioners’ properties, it unmistakably signaled that the Takings Clause no longer stands as a legal prerequisite that must be satisfied before exercising the power of eminent domain.   

The Court further erred by exceeding governmental authority. No governmental entity in this country has the authority to allocate property rights based on economic utility. To the contrary, the Takings Clause prevents precisely what the Kelo Court allowed. For all of these reasons, Kelo is the worst opinion in the last 30 years. 

Judicial philosophy – Our constitutional republic, and the rule of law, can thrive only when the judiciary operates within its proper boundaries. Chief Justice Roberts, in his confirmation hearing, memorably analogized the judicial role to baseball. He observed that “[j]udges are like umpires. Umpires don’t make the rules; they apply them.” He then promised he would “remember that it’s my job to call balls and strikes, and not to pitch or bat.” While this is a good and pithy summary of judicial conservatism, its power comes from the truth that lies at its foundation. 

As Chief Justice Roberts would surely agree, his admonition will attract few adherents without a compelling explanation of why judges must restrict themselves to that role. The short answer is that judges are umpires because the function of their office admits of little else. 

In our tri-partite form of government, each branch has a discrete function that corresponds roughly to the temporal framework within which it works. Thus, it is peculiarly the legislature’s province to address the future. It determines what the laws shall be that will govern tomorrow’s actions. And the executive concentrates on the present; he decides what shall be done to properly carry the laws into effect today. ​​