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A Pitched Battle for Wisconsin Supreme Court

Both sides paint the other as dangerous, 30 seconds at a time. One side may be right.
March 7, 2023
A Pitched Battle for Wisconsin Supreme Court
The Wisconsin state capital after sunset. The building houses both chambers of the Wisconsin legislature along with Wisconsin Supreme Court . (Photo credit: Jay Yuan / Shutterstock)

One thing both candidates for Wisconsin Supreme Court and their supporters agree on is that nobody wants an extremist to win the April 4 election. What they differ over is which candidate is the extremist.

Making matters more dicey in what the New York Times has called“arguably the most important election in America in 2023,” both candidates—former state Supreme Court Justice Daniel Kelly and Milwaukee County Circuit Judge Janet Protasiewicz—are accusing the other, essentially, of condoning child rape.

“A convicted felon kidnapped and raped a 15-year-old girl, abducting her off the street in broad daylight,” intones a female voice in a 30-second ad that a group backing Kelly began airing last week. “Judge Janet Protasiewicz could have sentenced him to 20 years. Instead, she put him back on our streets.” It then shows a clip of Protasiewicz telling a TV interviewer, with a little laugh, that it was “ridiculous” to say that she is soft on crime. The voice continues: “Judge Protasiewicz puts our families at risk, and putting her on our supreme court—that’s what’s ridiculous.”

Wisconsin Supreme Court Race: 'Ridiculous'

The ironically named Fair Courts America, an outside interest group of the sort Kelly boasted he would be able to attract, spent nearly $1 million to air this ad for a week. The group is largely funded by billionaires Richard and Elizabeth Uihlein. The Illinois couple own Uline, a shipping supplies business headquartered in Wisconsin, and take a keen interest in state elections. The group ponied up $2.8 million prior to the Feb. 21 primary to help Kelly edge past a fellow conservative to advance to the general election.

In fact, with four weeks to go until election day, the race to determine whether conservatives or liberals comprise the Wisconsin court’s majority is already the most expensive judicial contest in U.S. history, topping the $15 million record set in Illinois in 2004. The previous Wisconsin highwater mark was reached in the 2020 race, when Kelly, an appointee of Wisconsin Gov. Scott Walker, was defeated by a liberal challenger. Then, a total of $10 million was spent, about half by the candidates and half by outside groups. The current race is expected to cost more than $30 million.

Both the Republican and Democratic parties are deeply invested in this officially nonpartisan election. Kelly, who ran his failed 2020 campaign out of the state Republican party headquarters, says he will not recuse himself from cases involving the GOP. Protasiewicz, who has received at least $2.5 million in help from the Democratic party, has vowed to recuse herself from any of its cases.

The next incarnation of Wisconsin’s supreme court will likely rule on a challenge to the state’s 1849 anti-abortion law, which clicked back into place in June when the U.S. Supreme Court overturned Roe v. Wade. It will also likely decide questions regarding the partisan redistricting that allows Republicans to dominate the legislature in an otherwise equally divided state, as well as challenges over the rules for and results from the 2024 presidential election. (Wisconsin’s supreme court very nearly became the only court in the country to side with Donald Trump in one of his 2020 election challenges.)

Even before the Kelly camp began airing ads about the 15-year-old girl, Protasiewicz (pronounced “pro-tuh-SAY-witz”) delivered a preemptive strike in the way of an ad calling out Kelly for representing a West Bend, Wisconsin, husband-and-wife couple convicted of multiple counts of child sexual assault in the late 1990s. Kenneth Dwight Spaulding, a minister, was convicted at trial of two counts of first-degree sexual assault involving middle school–age girls and sentenced to 80 years in prison. Rhonda Spaulding was sentenced to 30 years in prison for abusing a young boy with developmental disabilities. Kenneth died in 2006.

“Dan Kelly won’t keep our communities safe,” states the ad, Protasiewicz’s first of the post-primary. “As a lawyer, Kelly defended child sex predators who posed as ministers in order to prey on vulnerable young girls. They lured young children to locations they believed to be safe only to sexually assault and molest them. And Dan Kelly defended those monsters. Do you want someone like that on the supreme court? Dan Kelly: an extremist who doesn’t care about us.”

It’s difficult to decide which of these ads is more distasteful, but let’s give it a try.

The ad targeting the liberal candidate, Protasiewicz, by Fair Courts America—and a remarkably similar ad aired by the WMC Issues Mobilization Council, the advocacy arm of the state’s largest business lobby, Wisconsin Manufacturers & Commerce—deal with a 2020 case she heard involving Anton Veasley. The 34-year old Milwaukee man was charged with multiple felony counts, including second-degree sexual assault of a child, for taking a 15-year-old girl who had fled from a group home to a hotel and having sex with her. Veasley pleaded guilty to two felonies, for which the prosecution recommended an unspecified amount of prison time.

Protasiewicz, who spent 25 years as a prosecutor in Milwaukee County before being elected to the bench, stayed Veasley’s sentence of four years behind bars followed by four years of extended supervision, and sentenced him to four years of probation with credit for the 417 days in jail. Last July, Veasley was busted for being a felon in possession of a handgun and spent six months in jail.

The Milwaukee Journal Sentinel also identified two other occasions in which Protasiewicz declined prosecutors’ requests that people convicted of harming children receive additional prison time, instead of time-already-served and probation. Her spokesperson, Sam Roecker, said this amounted to cherry-picking from among thousands of cases. “You don’t have a crystal ball,” Protasiewicz has said about the Veasley case, which WMC used in its ad: “Tell Janet Protesiewicz: With violent criminals, it doesn’t take a crystal ball.”

But however questionable these sentencing decisions may be, they do not seem to reflect a pattern. Alan Ball, a history professor at Marquette University who keeps his eye on the state supreme court, recently reviewed the 61 criminal cases in which Protasiewicz’s rulings or sentences were heard by the court of appeals. All 61 cases were brought by the defense, never the prosecution. In five of these cases, the appellate court ruled in favor of the defendants.

“Judge Protasiewicz almost invariably ruled against defendants in postconviction proceedings, and on the rare occasions when the court of appeals reversed her, the judges found that she should have granted the defendant’s motions,” Ball wrote.

The charge that Protasiewicz’s sentencing in a few cases “puts our families at risk” is the toxic sludge of campaign messaging produced by a system for electing justices that has become so deeply dependent on cash. And it is disingenuous: WMC, the leading outside funder of conservative state Supreme Court candidates in recent years, has aired countless ads that sought to raise the public’s blood pressure over crime, and the judges who love it. Yet crime and public safety appear nowhere among the 11 top-level issue headings on the group’s website, or in its 16-page Legislative Agenda.

Kelly, in making his second bid to be elected to the court to serve a ten-year term, is following the playbook of every conservative Wisconsin Supreme Court candidate for the last two decades. It is a strategy that has helped keep the state supreme court under conservative control for many years. Here’s how I outlined this strategy in 2018:

Pledge to apply the law, not personal beliefs. Insist opponent will not. Deny political or ideological inclinations of any sort. Rely on outside groups to pump money into the race, mostly on ads portraying opponents as criminal-coddling threats to public safety. Get elected. Never miss an opportunity to behave like an ideologue.

In that 2018 election, the conservative candidate, Michael Screnock, lost to a liberal, Rebecca Dallet. This shaved the conservative majority on the seven-member court from 5-2 to 4-3 and put the elusive goal of liberal control within striking distance. The election proved that it was possible to be, in the minds of Wisconsin voters, too extreme. Screnock, a circuit court judge, was twice arrested as a young man for physically blocking access to a Madison abortion clinic, which he said was “not something I’ve ever regretted doing.”

Two years earlier, Walker appointee Rebecca Bradley was elected despite revelations of her writings as a student at Marquette University, in which she called being gay “an abnormal sexual preference” and professed her lack of sympathy for “the homosexuals and drug users who do essentially kill themselves and others through their own behavior.” When the writings came to light, she did apologize.

And in 2019, conservatives were able to maintain control by electing Brian Hagedorn, Walker’s former chief legal counsel, even though he compared homosexuality to bestiality, called Planned Parenthood “a wicked organization,” and helped found a Christian school that kicked students out if their parents were gay.

So Wisconsin’s standard for “too extreme” is pretty elastic.

Kelly, for his part, hopes it is elastic enough to apply to Protasiewicz, who has said that she supports the right of women to reproductive choice. In a statement he issued on primary election night, Kelly described his rival’s candidacy in apocalyptic terms.

“Tonight we join battle in the fight to preserve our constitutional form of government against a novel and grave threat: Janet Protasiewicz’s promise to set aside our law and our Constitution whenever they conflict with her personal ‘values,’” Kelly declared. “If we do not resist this assault on our Constitution and our liberties, we will lose the Rule of Law, and will find ourselves saddled with the Rule of Janet. We must not allow this to come to pass.”

Kelly is a hardcore religious conservative who attended law school at Regent University, which was founded by the televangelist Pat Robertson. He asserted in the inaugural issue of the law review he edited there that all valid law comes from God and hence is immutable, likening proper jurisprudence to Stephen Hawking’s view of the laws of the universe.

“Just as we do not choose to submit to the general theory of relativity, so is consent unnecessary with regard to the general principles of Scripture, though when considered carefully, reason will show that it is only logical that we are subject to them,” he wrote.

Kelly comes into the race with an ark-load of negatives. He’s the past president of the Milwaukee Lawyers Chapter of the ultra-conservative Federalist Society—whose picks for U.S. Supreme Court under Trump set the stage for the end of Roe v. Wade. He was appointed by Scott Walker, who is loathed by roughly half the state. He’s disparaged affirmative action and same-sex marriage, derided Social Security and Medicare as “welfare when the recipients are those who don’t create enough to sustain themselves during their working years,” and called abortion “a policy that has as its primary purpose harming children . . . to preserve sexual libertinism.” He has done legal work as a lawyer in private practice for Republican lawmakers coming up with gerrymandered election maps and for Wisconsin Right to Life, which along with other anti-abortion groups has endorsed him.

Last year, Kelly was paid $120,000 by the Republican party for work that included advising the GOP operatives who tried to steal the election in Wisconsin for Trump by coming up with a slate of fake electors. (Last week, the four conservatives who now sit on the state Supreme Court, reappointed one of those fake electors to a committee that advises judges on judicial conduct.)

Kelly’s extreme views were a factor in his defeat in 2020. They will likely be a much bigger factor now that abortion has been effectively banned in Wisconsin and a dozen other states. Plus, the April 4 ballot includes advisory referenda affirming reproductive rights drawing voters to the polls in three Democratic-leaning counties: Eau Claire, Milwaukee, and Dane.

This is why there is no reason that Protasiewicz needs to go after Kelly for having represented sex criminals. Unless she and her supporters find a way to blow it, the guy is toast.

I asked Roecker, the Protasiewicz campaign spokesperson, whether his candidate believes that people accused of heinous crimes have no right to legal representation or that attorneys have an ethical obligation to not represent certain individuals, based on the seriousness of their alleged offenses. He provide a brief statement in reply:

Dan Kelly has spent months misleading voters about Judge Protasiewicz’s record of upholding public safety as a prosecutor and judge, while ignoring his own decisions to advise anti-abortion groups, help the fake electors scheme, and represent child sex predators. Nobody is suggesting there isn’t a right to legal representation. Voters will decide whose judgment and temperament they want on the court.

An argument can be made that it has become necessary for liberal candidates to fight fire with fire on the crime issue, by seizing every opportunity to fight and counter the inevitable attempts to portray them as soft. But that doesn’t make it any less unseemly. When you run an ad that rips your opponent for having “defended those monsters,” you actually are suggesting that such people don’t have a right to legal representation.

It’s not a good look, especially given that the ad concludes on a note that could have been backed up with so many other examples: “Dan Kelly: an extremist who doesn’t care about us.”

Bill Lueders

Bill Lueders, former editor and now editor-at-large of The Progressive, is a writer in Madison, Wisconsin.