Weekly Case Digests – November 9, 2020 – November 13, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Mark Milsna v. Union Pacific Railroad Company

Case No.: 19-2780

Officials: EASTERBROOK, HAMILTON, and BRENNAN, Circuit Judges.

Focus: ADA Violation – Reasonable Accommodation

When the Federal Railroad Administration put in place new regulations related to hearing, a train conductor—who has been hearing‐impaired since youth and has worn hearing aids for years—was caught in a bind. He passed a hearing acuity test, but only when using hearing aids without additional hearing protection.

According to the railroad, this placed him in violation of a policy which requires that protection be worn if the employee is exposed to noise above a certain level. The railroad and the conductor could not agree on an accommodation for him to use other hearing devices. The railroad would not recertify the conductor, and he lost his job.

The conductor sued arguing that the railroad discriminated against him because of his hearing disability. The district court granted summary judgment to the railroad, finding that the conductor “failed to marshal enough evidence for a reasonable jury to conclude that he could fulfill the essential functions of the train conductor position with a reasonable accommodation.” We view the record differently. Issues of fact exist as to whether wearing hearing protection is an essential function of the plaintiff’s work as a conductor, as well as whether reasonable accommodations for the conductor were properly considered. So we reverse and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Gerald Peeters v. Andrew M. Saul

Case No.: 19-2530

Officials: SYKES, Chief Judge, and BAUER and ST. EVE, Circuit Judges.

Focus: ALJ Error – Disability Benefits

Gerald Peeters appeals the denial of his claim for disability insurance benefits. In 2016 and 2018, the Administrative Law Judge (ALJ) determined Peeters was not disabled under the relevant regulations. Peeters sought relief in the district court, which reviewed the ALJ’s opinion and found that the decision was supported by substantial evidence. Peeters contests the ALJ’s weight and application of the opinions given by Dr. Sandra King and state agency psychologists. Because we find the ALJ’s opinion was supported by substantial evidence, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Hector Uriarte

Case No.: 19-2092

Officials: SYKES, Chief Judge, and FLAUM, EASTERBROOK, RIPPLE, KANNE, ROVNER, WOOD, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines – First Step Act

Section 403 of the First Step Act of 2018 amended the mandatory minimum sentence for certain firearm offenses. Although sentencing reform is generally prospective, Congress specifically mandated that these amendments were to apply to an offense committed before enactment “if a sentence for the offense has not been imposed as of such date of enactment.” First Step Act of 2018, Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222 (codified at 18 U.S.C. § 924 note). We vacated, on unrelated grounds, Hector Uriarte’s initial sentence before the enactment of the First Step Act. United States v. Cardena, 842 F.3d 959 (7th Cir. 2016). At resentencing, the district court ruled that he was entitled to be sentenced under the provisions of the Act. We agree with the district court and therefore affirm its judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Rashod Bethany

Case No.: 19-1754

Officials: RIPPLE, WOOD, and SCUDDER, Circuit Judges.

Focus: Sentencing Guidelines – First Step Act

Rashod Bethany participated in a conspiracy to distribute crack cocaine in Chicago. He was sentenced originally in 2013, but that sentence was vacated, and he was resentenced in 2019 after the enactment of the First Step Act of 2018. He now appeals from that sentence. He submits that, in imposing the 2019 sentence, the district court should have applied to him two sections of the First Step Act, as well as three retroactive amendments to the Sentencing Guidelines. We hold that Mr. Bethany is entitled to the benefit of § 401 of the First Step Act, but the record leaves us in doubt as to whether he would have received the same sentence if he had the benefit of that provision. Accordingly, we order a limited remand to the district court to ascertain whether the district court is inclined to impose a different sentence in light of our decision today. See United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005).

Remanded

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7^th Circuit Court of Appeals

Case Name: John Myers v. Ron Neal

Case No.: 19-3158

Officials: FLAUM, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Ineffective Assistance of Counsel

Indiana University student Jill Behrman went for a bike ride one morning but never returned. The police later found her bicycle less than a mile from the home of John Myers II, on the north side of Bloomington. Two years later a woman named Wendy Owings came forward confessing to the murder, but the case was reopened when a hunter came upon Behrman’s remains far from the location Owings described. A renewed investigation led the authorities to Myers, who was eventually charged with the murder. Six years after Behrman’s disappearance, a jury convicted him. Multiple Indiana courts affirmed. Myers then sought relief in federal court, and the district court granted his application for a writ of habeas corpus, concluding that Myers’s counsel performed so deficiently at trial as to undermine confidence in the jury’s guilty verdict. We reverse.

The district court was right about the performance of Myers’s trial counsel. It was deficient and plainly so in at least two ways. What leads us to reinstate Myers’s conviction, though, is the strength of the state’s case against him separate and apart from those errors. Among the most convincing evidence were the many self‐incriminating statements that Myers made to many different people, like telling his grand‐ mother that, if the police ever learned what he did, he would spend the rest of his life in jail. The weight of these statements, when combined with other evidence, leads us to conclude that his counsel’s deficient performance did not prejudice him. The proper outcome is to respect the finality of Myers’s conviction in the Indiana courts.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: John Myers v. Ron Neal

Case No.:  19-3158

Officials: JOEL M. FLAUM, Circuit Judge, MICHAEL Y. SCUDDER, Circuit Judge , AMY J. ST. EVE, Circuit Judge.

Focus: Order Correcting Opinion

Petitioner‐appellee filed a petition for rehearing and rehearing en banc on September 1, 2020. No judge in regular active service has requested a vote on the petition for rehearing en banc and all members of the original panel have voted to deny rehearing and to issue an amended opinion. The court’s opinion dated August 4, 2020 is amended by the attached opinion, which includes changes on pages 30 and 31.  Accordingly, IT IS ORDERED that the petition for rehearing and rehearing en banc is therefore DENIED.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Matthew E. Moultrie

Case No.: 19-2896

Officials: RIPPLE, BARRETT, and BRENNAN, Circuit Judges.

Focus: Abuse of Discretion – Sentencing Guidelines

Matthew Moultrie was charged with, and pleaded guilty to, being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The probation office’s final presentence report calculated Mr. Moultrie’s offense level at 21; this calculation included enhancements for possessing a firearm with an obliterated serial number, for discharging his firearm in a manner that endangered others, and for obstructing justice by both fleeing and engaging in a standoff with law enforcement. The presentence report also determined that Mr. Moultrie had a criminal history category of III. The resulting guidelines range was 46 to 57 months’ imprisonment.

At sentencing, the district court employed Mr. Moultrie’s offense level and criminal history category as baselines. However, the court determined that, applying the factors set forth in 18 U.S.C. § 3553(a), Mr. Moultrie’s offense level did not account adequately for the dangerous situations that his actions had created, nor did it account for his post-arrest behavior, which included attempting to dissuade witnesses from testifying against him. According to the court, an offense level of 23, as opposed to 21, was more appropriate. Additionally, the court determined that Mr. Moultrie’s criminal history category did not account for the rapid escalation in his criminal activity or his risk of recidivism. The court believed a criminal history category of IV better captured the risk that he posed. These levels yielded a guidelines range of 70 to 87 months, and the court imposed a sentence of 84 months.

On appeal, Mr. Moultrie challenges only the substantive reasonableness of his sentence. Concluding that the district court acted well within its discretion, we now affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Rumael Green

Case No.: 19-2330

Officials: BAUER, EASTERBROOK, and WOOD, Circuit Judges.

Focus: De Novo Review – 4^th Amendment Violation 

Rumael Green was indicted for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). A security guard stopped and searched Green at a Chicago Housing Authority (CHA) public housing unit. After recovering a handgun, the security guard called the Chicago Police Department. At trial, Green moved to suppress the gun. The district court ruled that the security guard was not a state actor subject to the Fourth Amendment. Green entered a conditional guilty plea, reserving the right to appeal the denial of his motion. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Christopher Andre Vialva v. T.J. Watson, Warden

Case No.: 20-2710

Officials: EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

Focus: Stay of Execution Denied

Christopher Vialva has been sentenced to death for murders he committed in 1999. In this proceeding under 28 U.S.C. §2241 he seeks a stay of his execution, which is scheduled for September 24. The district court denied that request, ruling that resort to §2241 is forbidden by 28 U.S.C. §2255(e), which provides: “An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” The district court held that §2255 is adequate to resolve Vialva’s legal claims. After reviewing the parties’ briefs, which address the merits as well as the request for a stay, we agree with that conclusion.

The motion for a stay of execution is denied, and the judgment of the district court is summarily affirmed.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Friends of the Black River Forest, et al., v. Wisconsin Department of Natural Resources, et al.,

Case No.: 2019AP299; 2019AP534

Officials: Blanchard, Dugan and Donald, JJ.

Focus: Court Error – Certiorari Review – Standing to Sue

Friends of the Black River Forest and Claudia Bricks (collectively referred to herein as the Friends) appeal the dismissals of their challenges to a land exchange that took place between Kohler Company (Kohler) and the Wisconsin Department of Natural Resources (the Department).

On appeal, the Friends argue that the Sheboygan County Circuit Court erred in dismissing their WIS. STAT. ch. 227 (2017-18) petition for judicial review for lack of standing and that the Dane County Circuit Court erred in dismissing their common law certiorari complaint under WIS. STAT. § 802.06(2)(a)10.

We conclude that the Friends have alleged an injury in their Amended Petition sufficient to meet the standing requirements of WIS. STAT. § 227.52 and WIS. STAT. § 227.53. We, therefore, reverse the decision of the Sheboygan County Circuit Court and remand for proceedings consistent with this opinion. We also conclude that the Dane County Circuit Court erred when it dismissed the common law certiorari complaint pursuant to WIS. STAT. § 802.06(2)(a)10., and, therefore, we reverse that decision of the Dane County Circuit Court and remand for proceedings consistent with this opinion.

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WI Court of Appeals – District I

Case Name: Daniel J. Hennessy, Jr., et al., v. Wells Fargo Bank, N.A.,

Case No.: 2019AP1206

Officials: Brash, P.J., Blanchard and Donald, JJ.

Focus: Court Error – Abuse of Discretion

Daniel Hennessy and Jane Hennessy appeal a circuit court order finding that a Mexican court judgment against the Hennessys is valid under Mexican law, and determining that Wells Fargo Bank, N.A., is entitled to domesticate the Mexican judgment in Milwaukee County Circuit Court, giving it effect in Wisconsin under principles of comity. On the valid-under-Mexican-law issue, the Hennessys argue that the circuit court clearly erred in finding key facts. We disagree and conclude that there is evidence in the record that would permit a reasonable person to make the same findings. On the comity issue, the Hennessys contend that the circuit court erroneously exercised its discretion in multiple ways. We reject this argument because we conclude that the court properly considered the facts of record under the proper legal standards and reasoned its way to a rational conclusion. Accordingly, we affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Cortez Lorenzo Toliver

Case No.: 2018AP836

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Plea Withdrawal – Evidentiary Hearing 

Cortez Lorenzo Toliver appeals pro se from a circuit court order denying his WIS. STAT. § 974.06 (2017-18) postconviction motion without a hearing. Toliver contends that he is entitled to an evidentiary hearing on the issue of whether he should be permitted to withdraw his guilty pleas. Because Toliver’s claims are barred by § 974.06(4), and State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and because the record conclusively shows that Toliver is not entitled to relief on the merits of his plea withdrawal claim, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Nikola Stevlic

Case No.: 2018AP2289-CR

Officials: Neubauer, C.J., Gundrum and Davis, JJ.

Focus: Court Error – Other-acts Evidence

Nikola Stevlic appeals from a judgment convicting him of two counts of second-degree sexual assault by use of force; false imprisonment; two counts of substantial battery intending bodily harm; second-degree recklessly endangering safety, all with a domestic-abuse penalty enhancer; and exposing a child to harmful descriptions. He also appeals from an order denying his motion for postconviction relief based on his claim of ineffective assistance of counsel. Stevlic first contends the trial court’s admission of other-acts evidence infected the entire trial. We affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: Friends of Frame Park, U.A., v. City of Waukesha

Case No.: 2019AP96

Officials: Neubauer, C.J., Gundrum and Davis, JJ.

Focus: Statutory Interpretation – Public Records – Attorney Fees

This is a public records case involving a draft contract, exchanged between Defendant-Respondent City of Waukesha (the City) and a private entity, Big Top Baseball, LLC (Big Top), setting forth proposed terms under which Big Top’s professional baseball team would play in a stadium to be constructed in Waukesha’s Frame Park. Plaintiff-Appellant Friends of Frame Park, U.A. (Friends), a community organization, was rebuffed in its attempt to obtain the draft contract from the City and sought a writ of mandamus. The City then released the record and, some months later, moved for summary judgment. The trial court granted the City’s motion, reasoning that the City properly relied on a public records law exception to initially withhold the draft contract and that in any event, Friends’ lawsuit did not cause the record’s eventual release (i.e., Friends was not a “prevailing party” entitled to attorney fees). Friends now appeals.

At the outset, we acknowledge that the City voluntarily released the draft contract shortly after Friends filed suit. Ordinarily, where a party obtains the relief it seeks while litigation is pending, the case becomes moot. In public records cases, however, the relief sought typically includes more than the release of records—it also includes the requesting party’s attorney fees. The public records statute allows fees to a requesting party who “prevails in whole or in substantial part.” WIS. STAT. § 19.37(2)(a). Thus the issue before us is whether Friends substantially prevailed in this action.

The test most often invoked to determine the prevailing party in a public records case is based on causation; it asks whether the lawsuit is “a cause, [if] not the cause, of the records’ release.” WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 459, 555 N.W.2d 140 (Ct. App. 1996). Here, the City denies that the lawsuit caused the release. Instead, the City maintains, it released the record because the statutory exception it initially invoked (allowing records to be withheld for “competitive or bargaining reasons”) no longer applied.

We hold that where litigation is pending and an authority releases a public record because a public records exception is no longer applicable, causation is not the appropriate inquiry for determining whether the requesting party has “substantially prevailed.” Rather, the key consideration is whether the authority properly invoked the exception in its initial decision to withhold release. This result follows from the language of the statute, which requires compliance with a records request “as soon as practicable and without delay.” See WIS. STAT. § 19.35(4)(a). A plaintiff with standing to seek a withheld record in a mandamus action should generally be considered to have “substantially prevailed” where it demonstrates a violation of this statute; that is, an unreasonable delay caused by the improper reliance on an exception. In reaching this result, however, we must reconcile what, at least superficially, appears to be inconsistent language from prior decisions addressing how and whether a public records plaintiff can recover attorney fees following voluntary release during litigation.

Application of this rule leads us to reverse. We hold that the City’s reliance on the “competitive or bargaining reasons” exception was unwarranted and led to an unreasonable delay in the record’s release. Consequently, even if the lawsuit was not an actual cause of the release, Friends has “prevail[ed] in whole or in substantial part” and is entitled to some portion of its attorney’s fees, to be determined under the parameters set forth herein.

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WI Court of Appeals – District II

Case Name: Village of Chenequa v. Jill Dahlquist

Case No.: 2019AP1145

Officials: NEUBAUER, C.J.

Focus: Ordinance Interpretation – Parking  

Jill Dahlquist appeals from an order determining that she violated a Village of Chenequa no parking ordinance. Dahlquist primarily argues that the ordinance conflicts with state law and is therefore invalid and unenforceable. Because Dahlquist fails to show how the presumptively valid ordinance violates state law, we affirm.

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WI Court of Appeals – District II

Case Name: Fond Du Lac County v. Paul Meixensperger, et al.,

Case No.: 2019AP2195

Officials: GUNDRUM, J.

Focus: Court Error – Summary Judgment

Paul Meixensperger and Harry Schmitz appeal from a judgment of eviction, asserting that the circuit court erred in granting summary judgment in favor of Fond du Lac County. They also contend that Schmitz was a necessary party, yet the County failed to name him as a party.  For the following reasons, we affirm

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WI Court of Appeals – District II

Case Name: County of Walworth v. Bozena Twarowski

Case No.: 2020AP208

Officials: GUNDRUM, J.

Focus: Sufficiency of Evidence – Testimony

Bozena Twarowski appeals pro se from a judgment of conviction after being found guilty of disorderly conduct following a court trial. She contends the trial court erred in finding her guilty because it erred in finding the testimony of her accuser credible. We conclude that the court did not err, and we affirm.

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WI Court of Appeals – District II

Case Name: Waukesha County v. H.M.B.,

Case No.: 2020AP1570

Officials: DAVIS, J.

Focus: Involuntary Commitment – Medication and Treatment 

“Heather” appeals from an order for involuntary commitment. We find that her appeal is moot and dismiss.

WI Court of Appeals – District II

Case Name: Walworth County v. C.A.E.

Case No.: 2020AP834-FT

Officials: REILLY, P.J.

Focus: Involuntary Commitment – Medication and Treatment

Carly appeals from an order of the circuit court extending her involuntary commitment and from an order for involuntary medication and treatment. Carly argues that the circuit court erred when it ordered recommitment and involuntary medication based on hearsay and that Walworth County (the County) failed to present sufficient evidence to support the orders. We conclude that the evidence supports the circuit court’s conclusion that Carly is mentally ill, is a proper subject for treatment, would be a proper subject for commitment if treatment were withdrawn, and is not competent to refuse medication. See WIS. STAT. §§ 51.20(1)(a)1.-2., (am); 51.61(1)(g)4. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeffrey R. Palmer

Case No.: 2019AP993-CR

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Unlawful-stop Claim – Reasonable Suspicion

Jeffrey R. Palmer appeals a judgment of conviction entered on his guilty plea to one count of operating a motor vehicle while intoxicated (OWI) as a fourth offense. Palmer argues that the circuit court erred in denying his motion to suppress because police (1) lacked reasonable suspicion to justify a traffic stop and (2) unlawfully extended the traffic stop to investigate whether he was driving while intoxicated. We reject Palmer’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Tyrone F. Brown

Case No.: 2019AP1139-CR

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Abuse of Discretion – Other-acts Evidence

Tyrone Brown appeals a circuit court judgment convicting him of disorderly conduct, false imprisonment, intimidating a victim, and felony and misdemeanor bail jumping. Brown argues that the circuit court erroneously exercised its discretion when the court denied his motion for a mistrial based on the prosecutor’s improper use of other-acts evidence. We disagree and, therefore, we affirm the judgment of conviction.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Peter J. King, Jr.,

Case No.: 2019AP1642-CR

Officials: Fitzpatrick, P.J., Blanchard, and Nashold, JJ.

Focus: Sentencing Guidelines – Probation

Peter J. King, Jr., was convicted in the Sauk County Circuit Court of using a computer to facilitate a child sex crime and child enticement. The circuit court imposed a bifurcated imprisonment sentence on the count of using a computer to facilitate a child sex crime. The circuit court also imposed conditions of extended supervision which restricted King’s access to the internet, and King’s extended supervision was twice revoked for violating those conditions.

On the child enticement count, King received a probation disposition of ten years, which began after completion of King’s sentence for the use of a computer to facilitate a child sex crime. King’s conditions of probation imposed by the circuit court included restrictions on his access to the internet. King’s probation was revoked for, among other reasons, violating those court-ordered conditions that restricted his access to the internet. After revocation, the circuit court imposed a bifurcated imprisonment sentence for the child enticement count. When King is released to extended supervision, he will be subject to court-ordered conditions of extended supervision that restrict his access to the internet. Those court-ordered extended supervision conditions are a subject of this appeal.

King contends, based on the U.S. Supreme Court’s opinion in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), that the court-ordered extended supervision conditions restricting his access to the internet are overly broad and, as a result, his First Amendment rights to freedom of speech and freedom of association are improperly infringed. King also argues that the circuit court erred in denying his motion for resentencing and a reduction in his imprisonment sentence on the child enticement conviction because the Court’s opinion in Packingham is a “new factor” that was overlooked at sentencing.

We conclude that the extended supervision conditions imposed by the circuit court that will restrict King’s access to the internet are not overly broad and do not improperly infringe King’s First Amendment rights to freedom of speech and freedom of association. We also conclude that the Court’s opinion in Packingham is not a new factor requiring resentencing on the child enticement count. Accordingly, we affirm the rulings of the circuit court.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Jackson County v. C.A.D.

Case No.: 2020AP69

Officials: NASHOLD, J.

Focus: Involuntary Commitment – Extension

C.A.D. appeals a February 1, 2019 order of the circuit court extending his involuntary commitment for a 12-month period. The extension, also referred to in this opinion as a recommitment, expired on or about February 1, 2020. For the reasons set forth below, I conclude that C.A.D.’s challenge to the recommitment order is moot and that C.A.D. has not shown that an exception to the mootness doctrine applies. Accordingly, C.A.D.’s appeal is dismissed.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Howie Hawkins, et al., v. Wisconsin Elections Commission, et al.,

Case No.: 2020 WI 75

Focus: Abuse of Discretion – Injunctive Relief

Petitioners, Howie Hawkins and Angela Walker, the Green Party’s candidates for President and Vice President of the United States, have filed a petition for leave to commence an original action pursuant to Wis. Stat. § (Rule) 809.70 and a motion for temporary injunctive relief. They ask this court to order that their names be placed on Wisconsin’s 2020 fall general election ballot. Responses have been received from respondent Allen Arntsen and from respondents Wisconsin Elections Commission (Commission), Ann Jacobs, Mark Thomsen, Marge Bostelmann, Julie Glancey, Dean Knudson, and Robert Spindell. Petitioners filed a letter replying to the responses, accompanied by a supplemental affidavit. The respondents filed a motion to strike the letter reply and supplemental affidavit. On September 10, 2020, this court issued an order directing the Commission to obtain certain information from the county clerks and municipal clerks of this state, including how many absentee ballots had already been mailed to electors. The September 10, 2020 order also directed the Commission to advise all municipal clerks in this state not to mail any additional absentee ballots pending further order of this court. The Commission filed a response to the order indicating that hundreds, if not thousands, of absentee ballots have already been mailed to electors.

The underlying facts of the case are as follows. On August 4, 2020, the petitioners filed nomination papers with the Commission to be placed on the ballot for the November 3, 2020 general election. On August 7, 2020, respondent Arntsen filed a verified complaint with the Commission alleging that 2046 of the signatures appearing on the petitioners’ nomination papers did not list a correct address for Walker. On August 20, 2020, the Commission voted 6-0 to sustain Arntsen’s challenge to 57 signatures, and the Commission also voted 6-0 to reject Arntsen’s challenge to 48 signatures. The Commission then deadlocked 3-3 on Arntsen’s challenge to the validity of 1834 signatures. On August 21, 2020, the Administrator for the Commission sent the petitioners a letter stating that since the Commission had only certified a total of 1789 valid signatures, less than the 2000 required for ballot access under Wis. Stat. § 8.20(4) and (8), the petitioners’ names would not appear on Wisconsin’s 2020 general election ballot.

Even if we would ultimately determine that the petitioners’ claims are meritorious, given their delay in asserting their rights, we would be unable to provide meaningful relief without completely upsetting the election. We agree with the Commission that requiring municipalities to print and send a second round of ballots to voters who already received, and potentially already returned, their first ballot would result in confusion and disarray and would undermine confidence in the general election results. Under the circumstances presented here, it would be unfair both to Wisconsin voters and to the other candidates on the general election ballot to interfere in an election that, for all intents and purposes, has already begun. For these reasons, we determine that the best exercise of our discretion is to deny the petitioners’ petition for leave to commence an original action and motion for temporary injunctive relief.

IT IS ORDERED that the respondents’ motion to strike petitioners’ letter reply brief and supplemental affidavit is denied; and IT IS FURTHER ORDERED that the directive in this court’s September 10, 2020 order that “the Wisconsin Elections Commission shall advise all municipal clerks in this state that they should not mail any absentee ballots until this court has issued a further order stating that absentee ballots may be mailed out or granting relief regarding the contents of the ballots for the November 3, 2020 general election” is hereby vacated; and IT IS FURTHER ORDERED that the petition for leave to commence an original action and the motion for temporary injunctive relief are denied. No costs.

Denied in part. Vacated in part.

Concur:

Dissent: REBECCA GRASSL BRADLEY, J., PATIENCE DRAKE ROGGENSACK, C.J., ANNETTE KINGSLAND ZIEGLER, J.,
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