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Despite 48 letters of recommendation, Gundrum skipped over for vacancy

Waukesha, Wis., lawyer Daniel Kelly speaks during a press conference at the Wisconsin State Capitol in Madison, Wis. after being appointed to the state Supreme Court by Governor Scott Walker, left, Friday, July 22, 2016. (John Hart/Wisconsin State Journal via AP)

Waukesha lawyer Dan Kelly speaks during a news conference at the state Capitol in Madison on Friday after being appointed to the state Supreme Court by Gov. Scott Walker. (John Hart/Wisconsin State Journal via AP)

Of the various letters of recommendation urging Gov. Scott Walker to appoint the Waukesha lawyer Dan Kelly to a seat on the state’s high court, some of the most noteworthy came from business owners and top officials at conservative groups.

Twenty-three letters of recommendation were sent to Walker in support of Kelly, who was appointed to the Wisconsin Supreme Court on Friday. Most came from attorneys in private practice, including six from Kelly’s former colleagues at Reinhart Boerner Van Deuren. Kelly had been a shareholder at Reinhart’s Milwaukee office before founding his current firm, Rogahn Kelly.

Besides his colleagues, Kelly received letters of recommendation from the leaders of three conservative groups that he had defended in various legal challenges. Among them was Roger Clegg, president and general counsel of the Center for Equal Opportunity, a conservative think tank dealing primarily with matters related to race and ethnicity. That non-profit organization was represented by Kelly in a dispute with the University of Wisconsin.

Another letter of recommendation came from Jordan Lorence, senior counsel of the Alliance Defending Freedom, a Christian organization concerned primarily with religious freedom. The letter drew attention to Kelly’s work in a lawsuit that was filed in 1999 and was eventually decided by the U.S. Supreme Court. The suit concerned whether mandatory student-activity fees should be deemed unconstitutional if they support speech a student disagrees with.

Support for Kelly also came from Heather Weininger, executive director of Wisconsin Right to Life, a pro-life organization. A news release issued by the group on Monday struck a common theme: “Dan Kelly fully comprehends that the courtroom is not the place to create law, but rather to interpret it.”

Among the others to write in support of Kelly were William Brash, a state Court of Appeals judge; Ray Taffora, University of Wisconsin vice chancellor of legal affairs; and the Rev. Joe Medina, who is Kelly’s pastor.

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Kelly also had the backing of various non-lawyers and business people. Letters of recommendation came in from Fred Young, the former owner of Young Radiator Co.; and James Barry III, CEO and president of The Barry Co., a Milwaukee-based commercial real estate firm.

Mark Gundrum

Mark Gundrum

Walker chose Kelly over fellow finalists Mark Gundrum and Thomas Hruz. Gundrum, a former Republican legislator who served alongside Walker in the state Assembly, helped write the state’s now-defunct ban on gay marriage and is now a state appellate judge. Hruz, a former Prosser clerk, also is a state appellate judge.

Hruz received 15 letters of recommendation. Among them were letters from Joseph Kearney, Marquette University Law School Dean; Janine Geske, a former Supreme Court justice; and Robert Gagan, a former State Bar president and current De Pere lawyer. Hruz also received support from five trial-court judges and three state Court of Appeals judges.

The biggest show of support, though, came for Gundrum. Forty-eight letters were sent to Walker on Gundrum’s behalf. Of those, 19 came from trial-court judges throughout the state and 12 from members of the state Assembly. Also calling for Gundrum’s appointment were Jon Wilcox, a former justice, and the county executives of Waukesha and Manitowoc counties.

In the end, though, it was Kelly who will be replacing current Justice David Prosser on the Supreme Court bench. Prosser announced his retirement in April and his last day on the court will be July 31.

Kelly, 52, will serve as a justice at least until 2020, when he will have to go before voters if he wants to keep his seat. State law calls on Supreme Court appointees to stand for election as soon as possible, but only one incumbent justice is allowed to run in any given year. Justice Annette Ziegler is up in 2017, Justice Michael Gableman in 2018 and Justice Shirley Abrahamson in 2019.

Kelly’s appointment is Walker’s second to the high court. Before Kelly, Walker had filled a vacant spot on the court by appointing Justice Rebecca Bradley, who was re-elected to a full 10-year term in April.

Kelly, who has been licensed to practice in Wisconsin since 1991, was also Prosser’s co-counsel during the justice’s election recount in 2011 and advised Bradley during her election campaign this year.

Kelly, who earned his law degree from Regent University School of Law in Virginia Beach, is president of the Milwaukee Lawyers Chapter of the Federalist Society and is a member of the litigation-advisory board of Wisconsin Institute for Law and Liberty, a conservative group that has fought against lawsuits challenging Walker’s signature law stripping public workers of nearly all their union rights.

Kelly also sided with Walker in a lawsuit to end a secret John Doe investigation into the unsuccessful campaign to have the governor recalled in 2012.

About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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