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Home / Legal News / Waukesha attorney to replace Prosser on Supreme Court (UPDATE)

Waukesha attorney to replace Prosser on Supreme Court (UPDATE)

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)

Gov. Scott Walker has appointed the Waukesha attorney Dan Kelly to the Wisconsin Supreme Court.

Walker announced Friday that Kelly, a commercial litigator, will take the place of Justice David Prosser, who announced his retirement in April. Prosser’s last day on the court is July 31.

Kelly, 52, will serve on the bench 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.

Walker chose Kelly over his 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.

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.

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Kelly, who has been licensed to practice in Wisconsin since 1991, is a litigator and founding partner at Rogahn Kelly, in Waukesha. Before founding the firm, he was a shareholder at Reinhart Boerner Van Deuren, in Milwaukee.

The high court has heard several cases involving Kelly’s clients. Currently, only one is pending before the court. Some of Kelly’s cases have also been heard by the U.S. Supreme Court, including a case concerning whether mandatory student-activity fees should be deemed unconstitutional if they support speech a student disagrees with.

Kelly 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 his 2012 recall campaign.

Walker said Friday that what was most notable about Kelly was his extensive work in cases before the state Court of Appeals, the Wisconsin Supreme Court and federal courts.

Walker made the announcement alongside Chief Justice Pat Roggensack, who said she was pleased with the appointment and looked forward to Kelly’s help in assembling the Supreme Court’s next two-year budget.

Kelly, who also appeared at the news conference with Walker and Roggensack, said he was honored by the appointment.

“I will faithfully apply the constitution of this state and this country to the best of my ability,” he said.

Kelly wrote in application materials he submitted to Walker that same-sex marriage robs the institution of meaning and affirmative action is akin to slavery. 

Asked about the writings, Kelly said that his personal beliefs will take a back seat once he takes the oath of office.

“Those things simply have no place in the courtroom,” he said.

The Associated Press also contributed to this report.

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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