Kelly did unrecuse himself in voting case, but never got the chance to decide the matter

In a hotly contested race that will decide the balance of the Wisconsin Supreme Court, the somewhat arcane topic of recusals has been front and center.

A recusal is the term applied to judges and prosecutors who face conflicts of interest, or believe they cannot be impartial, and therefore step aside instead of hearing a case. 

Milwaukee County Circuit Court Judge Janet Protasiewicz, a liberal, has said she would recuse herself from hearing cases brought by or against the Democratic Party of Wisconsin because of the money the party has put into her campaign. 

Former Justice Dan Kelly, a conservative, has refused to say he would step aside on cases involving the Republican Party. In 2017, when he was on the court, Kelly voted against a proposal that would have overhauled recusal rules, including requiring judges and justices to step aside from cases involving those who spent money on their elections. 

In a March 9 TV ad that labels Kelly "corrupt" and "extreme," Protasiewicz cites a 2019 case involving  Timothy Zignego over the state’s voter rolls. 

The ad claims that while he was a justice, Kelly recused himself from the case, then "pocketed $20,000 in contributions" from the plaintiff and family members and "unrecused himself so he could judge the case." 

There is some truth here, but in mangling the timeline, Protasiewicz leaves an incorrect impression.

Protasiewicz’s campaign spokesman Sam Roeker shared a number of news reports to establish the timeline. The same timeline was examined in a March 14 report in the Milwaukee Journal Sentinel. 

Let’s look more closely.

The 2019 case revolved around claims brought by Zignego and two other men from suburban Milwaukee over the state’s voter rolls. The three were represented by the Wisconsin Institute for Law & Liberty, which argued state law requires election officials to remove people from voter rolls if they haven’t heard from them within 30 days of notifying them they believe they have moved. 

State Elections Commission officials argued the 30-day requirement did not apply, partly because the state had not determined that it has reliable information about who has moved. 

Ultimately, the court voted 5-2 to reject the lawsuit, which the ad doesn't mention. Kelly’s not being on the court at the time  also isn't mentioned.

Kelly, who was appointed to the court by then-Gov. Scott Walker, recused himself from the case because the lawsuit was poised to be before the court while he was on the ballot seeking a full 10-year term.

He also sat out the vote to hear an expedited appeal of the case in January 2020. That left the court split 3-3, Wisconsin Public Radio reported March 9. 

On the matter of campaign contributions, Zignego family members did contribute exactly $20,000 in total to Kelly, according to campaign finance records maintained by the Wisconsin Democracy Campaign. The donations were made between Dec. 31, 2019, and Jan. 31, 2020. 

In April, Kelly lost the race to his challenger, now-Justice Jill Karofsky. But he would remain on the bench until August.

After the election, while the case was pending, he formally asked parties in the case whether he should involve himself.

"Justice Kelly sent a letter to both sides that his reason for recusal, stated earlier, was no longer relevant. Neither side came back (objecting to his participation)," said Kelly spokesman Ben Voelkel told the Journal Sentinel. "Oral arguments did not begin until September 2020, after Justice Kelly was off the court. The ruling was in January 2021."

Even before the election was over, Kelly had signaled he would likely rejoin the case after the election because little substantive work had been done on it. 

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Mark Pocan

stated on May 13, 2013 in a speech

"Nothing in the Constitution explicitly guarantees our right to vote."

"Having fully considered the matter, I have concluded that, in light of the fact that this case cannot now affect any election in which I would be a candidate while the case is being decided, there is no ethical bar to my participation in the consideration of the petition for review or the merits of the case if the petition for review is granted," he wrote in his order.

The order did not mention the campaign contributions or whether that created a conflict to compel him to recuse himself.

Protasiewicz ad leaves the false impression that Kelly was involved in ruling on the case. He was not. But when Kelly unrecused himself, he would not have known that the final decision would come after his tenure. Indeed, he signaled he wanted back on the case before the election even happened.

Ultimately, he could have joined a vote on the matter, it just wasn’t taken up in time. 

"Voters can follow the facts — on Christmas Eve, one day after Dan Kelly recused himself, the Zignego family began contributing thousands of dollars to his campaign. $20,000 in contributions later, Dan Kelly decided to un-recuse himself so he could participate in the case," Roecker said in the Journal Sentinel story.

When asked about the claim, Kelly’s campaign declined to share any information on the record aside from a statement, which said Protaziewicz’s claim was false, and that Kelly "will continue to uphold the Rule of Law." 

Protasiewicz’s campaign claimed that Kelly recused himself, pocketed money from donations from the plaintiff and family in a specific case, and then unrecused himself to make a judgment in the case. 

The sequence has validity, but not to the bottom-line implication. The ad leaves voters thinking Kelly ultimately voted in favor of the donors when the main portions of the case and the ruling happened after he was off the court.

But if the court had taken up the case before the end of Kelly’s term, he would have been able to vote on the matter. And he unrecused himself before the election, when he still expected to be on the court at the time.

We rate this claim Half True — the statement is partially accurate but leaves out important details or takes things out of context.