Dan Kelly wants to keep court meetings closed; Janet Protasiewicz wants them open

“Those hearings should be open,” Protasiewicz told the Wisconsin State Journal editorial board on Tuesday. “I’m all about transparency.”

She noted that Kelly was among the five conservative justices who in 2017 voted to curtail the 22-year practice of allowing the public access to Wisconsin Supreme Court meetings where the justices deliberate on rules pertaining to the state court system.

“I find that decision disturbing,” she said.

In the previously public meetings, Wisconsin high court justices would discuss and vote on changing judicial policies across the state court system, from when they should recuse themselves from Supreme Court cases and rules regarding evidence to coming up with new ways to encourage state lawyers to provide free legal services.

Some hearings on proposed rules remain public under a state law, but the votes on those rules are private.

“It was obvious to me that when the camera was on, there were people who were grandstanding,” Kelly told the State Journal editorial board on Thursday in describing his opposition to making the meetings public. His vote to return to closed meetings was meant to facilitate frankness and open conversation between the justices, he said.

Deliberating over rules in closed meetings brought about “the openness and willingness to test and to debate the issues that came before us,” which trumped the lack of transparency by not allowing public access, Kelly said.

In 1995, the Wisconsin Supreme Court justices voted unanimously to meet in public when it deliberates on petitions to alter its rules, making it the first state in the country to do so. Four years later, the court further expanded its open meeting policy.

That policy allowed the public to tune into, for example, the justices considering whether concealed weapons should be allowed in the court and whether they should recuse themselves from cases in which the litigants have donated to their campaigns.

In 2012, the court rolled back its open meetings policy, and did so again five years later, drawing ire from the liberal bloc on the court.

Proponents of the change said closed sessions would promote collegiality. Opponents said it would reduce transparency.

Kelly also expressed doubt Thursday about proposed rules that would require justices to recuse themselves from a case if they’ve received a campaign contribution from litigants or their attorneys.

“If those who advocate (for) a particular person being elected would know that there’s no possibility that (the candidate) could sit on a case that they would have, that would chill their speech,” Kelly said. “They’d be unwilling to speak, because they would want the full court to have the ability to sit on and decide the case that’s come before it.”

The candidates previously differed on a similar recusal question. Protasiewicz said she would recuse herself from cases involving the Democratic Party of Wisconsin after the organization donated $2.5 million to her campaign. Kelly, who hasn’t received a direct donation close to that amount, said he’d consider recusing himself on a case-by-case basis.

“That’s one of the reasons why I’ve not received contributions like that, because I don’t want that to create a potential recusal problem,” Kelly said.

The Republican Party of Wisconsin raised $56,061 in the first five weeks of 2023. The Democratic Party of Wisconsin raised over $3.5 million in that period.

Republican Party of Wisconsin chair Brian Schimming since said on WisconsinEye that the party’s fundraising numbers have since increased drastically.

One proposed recusal rule asked for justices to recuse themselves from cases if a litigant donated $1,000 or more to their election campaigns. Another proposed rule would require recusal if a litigant or one of the lawyers on a case donated $10,000 or more.

“Every single proposal that I’ve seen so far deals with half the ledger,” Kelly said. “We talk about what if an individual or organization has supported you in your run for the court? And we never talk about what happens if an individual or organization spent massive amounts opposing you.

“Resentment is a more powerful emotion than gratitude,” he added.

But he expressed doubt about a rule requiring justices to recuse themselves from cases involving groups based on their donations, saying it could lead to “sophisticated gameplay.”

“You could have organizations that would choose to spend heavily against a justice, knowing that if that justice wins and then a case comes before the court, you can force them off the case,” Kelly said.