Protasiewicz says she will recuse from cases involving the state Democratic Party, Kelly says he will decide case by case

MADISON – As partisan groups pour in millions making this year's state Supreme Court race the most expensive judicial race ever run, the two candidates seeking a seat on the state's highest court are taking different approaches to how they will handle cases involving the state political parties that are backing their campaigns.

Milwaukee County Judge Janet Protasiewicz, the race's liberal-backed candidate, said Wednesday she would recuse herself from hearing lawsuits brought by or against the Democratic Party of Wisconsin because of the millions of dollars the state party has funneled into her campaign for the state's highest court.

Conservative candidate Daniel Kelly, a former justice, would not make a similar pledge to step away from cases involving the state Republican Party, which supported his 2020 campaign with funding and office space, instead saying he would decide on a case-by-case basis.

The state Democratic Party has put $2.5 million into the Milwaukee County judge's campaign, according to Protasiewicz — a level she said is high enough to affect the public's perception of her neutrality.

"I don't know that the public could really say, 'she's fair when she's received two and a half million dollars from a particular entity," Protasiewicz told reporters following an event hosted by the Wisconsin Counties Association in Madison.

Following a separate appearance Wednesday at the counties association's annual legislative conference, Kelly said "the decision to recuse is an individual one."

"One of the important things that we can be looking at, as we look forward to this election, is electing someone whose character you trust and recusal is a matter of character," he said. "I will look at it at that issue very closely in any case that would potentially implicate the Republican Party or anyone else who makes contributions."

Kelly also has worked for the GOP, including providing legal advice to former Republican Party of Wisconsin chairman Andrew Hitt in December 2020 about Republicans' efforts to organize a group of electors for former President Donald Trump despite his election loss — a nationwide plan that became the target of a U.S. House investigation into the Jan. 6, 2021 attack on the U.S. Capitol.

Kelly said Wednesday he could not discuss the nature of the work citing attorney-client privilege and characterized his advice as a 30-minute phone call to Hitt.

Wisconsin's legitimate electors have sued the Trump electors in a case that could end up at the state Supreme Court. Kelly said Wednesday he would recuse himself from the case if his legal advice to Hitt were part of the lawsuit.

Protasiewicz says she will not step away from abortion cases

Protasiewicz said if elected, she would not step away from cases involving abortion policy despite her campaign's intense focus on the issue, which has defined the race after Wisconsin doctors stopped performing abortions following last year's U.S. Supreme Court ruling overturning Roe v. Wade.

Democratic Gov. Tony Evers and Attorney General Josh Kaul have filed a lawsuit seeking to repeal the state's abortion ban, which will likely end up at the state Supreme Court.

"I've been very, very clear and very, very careful that I have talked to people about what my personal values are ... I make sure everybody understands that I will only be making decisions based on what the law is, and based on what the Constitution is," Protasiewicz said.

If Planned Parenthood spent hundreds of thousands of dollars in the race, Protasiewicz also said the campaign support would not push her off a case involving the group.

"Absolutely not. I have made no promises in regard to that," she said.

The state Democratic Party, state GOP, and Planned Parenthood of Wisconsin have each been a party to a case before the Supreme Court three times over the last 20 years, according to state court records.

This year’s race has already shattered national records with more than $18 million spent less than a week into the general election.

Democrats are pouring millions into Protasiewicz’s campaign, seeing an opportunity for the first time in more than a decade to seize control of policymaking in the Badger State, as Republicans are unloading their coffers with a $1 million ad buy starting this week to support Kelly and defend the court’s 4-3 majority.

At least $8.8 million has been spent since the Feb. 21 primary election, putting the total spending tally from the start of the primary election race to Tuesday at $18 million — breaking the record of the country’s most expensive judicial race, previously set in 2004 in Illinois at $15 million, with five weeks still to go until the April 4 general election.

Molly Beck can be reached at molly.beck@jrn.com.

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This article originally appeared on Milwaukee Journal Sentinel: What Protasiewicz and Kelly are saying about recusing from cases