Kennedy v. Wis. Elec. Comm'n

• Docket Number: 2024AP1872
• Decision Date: 27 September 2027
• Citation: 413 Wis. 2d 509,11 N.W.3d 786
• Parties: Robert F. Kennedy, Jr., Petitioner-Appellant, v. Wisconsin Elections Commission, Respondent-Respondent.
• Court: Wisconsin Supreme Court

413 Wis. 2d 509

11 N.W.3d 786

Robert F. Kennedy, Jr., Petitioner-Appellant,

v.Wisconsin Elections Commission, Respondent-Respondent.

Supreme Court

No. 2024AP1872. Decided September 27, 2027.

2024 WI 37

(Also reported in 11 N.W.3d 786.)

The Court entered the following order on this date:

This is a review of a circuit court order denying Robert F. Kennedy, Jr.'s request for a temporary injunction requiring the Wisconsin Elections Commission(WEC) to remove Kennedy as a candidate for President on the November 5, 2024 Wisconsin general election ballot.The case is before this court on bypass of the court of appeals pursuant to Wis. Stat. § (Rule) 809.60.

The facts relevant to this matter are as follows.On August 6, 2024, Kennedy and Nicole Shanahan submitted nomination papers and declarations of candi- dacy to WEC as independent candidates for President and Vice President in the November 2024 general election.On August 23, 2024, Kennedy sent a letter to WEC stating that he was "withdraw[ing] his candidacy from the 2024 United States Presidential Election" and requesting that his name not be printed on the ballot in Wisconsin.WEC considered Kennedy's request at an August 27, 2024 statutorily mandated meeting, at which WEC was required to certify the candidates to be placed on the ballot.SeeWis. Stat. § 10.06(1)(i).The commissioners voted 5-1 to deny Kennedy's request to withdraw from the ballot based on Wis. Stat. § 8.35(1), which provides that "[a]ny person who files nomination papers and qualifies to appear on the ballot may not decline nomination.The name of that person shall appear upon the ballot except in case of death of the person."WEC included Kennedy's name on the certified list of candidates for President.

On September 3, 2024, Kennedy filed a petition for judicial review of WEC's decision under Wis. Stat. § 227.52 in the Dane County circuit court.Kennedy also immediately filed a motion for a temporary injunction that would compel WEC to remove his name from the ballot.After receiving briefing from the parties and declarations from WEC staff and various municipal clerks, and after having afforded Kennedy an evidentiary hearing at his request, the circuit court issued an oral ruling denying the temporary injunction motion on September 16, 2024.The circuit court memorialized its oral ruling in a written order that same day.

On September 17, 2024, Kennedy filed a petition for leave to appeal the denial of his motion for a temporary injunction, which the court of appeals granted on September 18, 2024.The following day, WEC filed a petition to bypass the court of appeals, which we granted on September 20, 2024.

[1, 2]

In the circuit court ruling under review, the court examined whether Kennedy had satisfied the criteria for issuing a temporary injunction.A temporary injunction may be granted if: (1)the movant is likely to suffer irreparable harm if an injunction is not issued; (2)the movant has no other adequate remedy at law; (3) an injunction is necessary to preserve the status quo; and (4)the movant has a reasonable probability of success on the merits.Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶ 93, 393 Wis. 2d 38, 946 N.W.2d 35.The circuit court noted that a motion for injunctive relief is addressed to the sound discretion of the circuit court.Temporary injunctions are not to be issued lightly; the cause must be substantial.Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 520, 259 N.W.2d 310(1977).

The circuit court focused on the first, third, and fourth temporary injunction factors.¹Regarding the first factor, the circuit court concluded that Kennedy had not demonstrated irreparable harm since Kennedy had voluntarily submitted his nomination papers and declaration of candidacy, thereby choosing to place his name before the voters.The circuit court also pointed to the fact Kennedy had simultaneously claimed harm in some states from not being removed from the ballot and harm in other states from not being placed on the ballot.On the other side of the balance, the circuit court noted the harm that would be inflicted on the public if the requested injunction were granted, including the high cost of reprinting ballots or the logistical problems in conducting an election with ballots on which stickers were placed to obscure Kennedy's name, as he requested.While the circuit court did not rely solely on this court's decision in Hawkins v. WEC, 2020 WI 75, 393 Wis. 2d 629, 948 N.W2d 877, it said it was mindful of the admonition there that court orders issued during or close to elections can cause harm to the public in the form of voter confusion or an incentive for voters to refrain from voting.The circuit court further determined that Kennedy's requested injunction would alter the status quo and grant him the ultimate relief he sought in his petition, rather than maintain the status quo.SeeSchool District of Slinger v. Wis. Interscholastic Athletic Ass'n, 210 Wis. 2d 365, 373,563 N.W.2d 585(Ct. App.1997)("The purpose of 'a temporary injunction is to maintain the status quo, not to change the position of the parties or compel the doing of acts which constitute all or part of the ultimate relief sought.'Codept, Inc. v. More-Way North Corp., 23 Wis. 2d 165, 173, 127 N.W.2d 29, 34(1964)(emphasis added).").With respect to the likelihood of success on the merits of Kennedy's claim, the circuit court agreed with WEC's interpretation of Wis. Stat. § 8.35(1) that once a candidate has submitted nomination papers and a declaration of candidacy that meet the required qualifications to be on the ballot, the candidate's name must be placed on the ballot, unless the candidate dies prior to the election.The circuit court further concluded that Kennedy's claims of constitutional violations of his equal protection and free speech rights lacked legal merit, which meant that Kennedy had no likelihood of success on the merits.Considering all of these factors, the circuit court denied the motion for a temporary injunction.

[3]

In this appeal our task is not to decide the merits of the case, but simply to review whether the circuit court properly exercised its discretion in denying the requested temporary injunction.Serv. Emps. Int'l Union, 393 Wis. 2d 38, ¶ 93(circuit court's decision to grant or deny a motion for a temporary injunction is reviewed for an erroneous exercise of discretion).We will sustain a discretionary decision as long as the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.Industrial Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶ 41, 299 Wis. 2d 81, 726 N.W.2d 898.

[4–6]

As the party challenging the circuit court's exercise of discretion, Kennedy has the burden of demonstrating an erroneous exercise of discretion.SeeColby v. Colby, 102 Wis. 2d 198, 207-08, 306 N.W2d 57 (1981).The challenger must demonstrate that the circuit court did not examine the relevant facts, apply a proper standard of law, or reach a conclusion that a reasonable judge could reach by applying a demonstrated rational process.We conclude that he has failed to satisfy this burden.

It is worth pointing out that, in addition to the case law that places the burden of demonstrating an erroneous exercise of discretion on the appellant, the court of appeals' order granting leave to appeal twice explicitly directed Kennedy's counsel to address the merits of his appeal in his appellate briefs, as well as to answer specific questions posed by the court of appeals.Kennedy v. WEC, No. 2024AP1872, unpublished order at 2(Wis. Ct. App.Sept. 18, 2024)("Granting Kennedy's leave petition now will allow briefing on the merits of Kennedy's claim to commence immediately— specifically, whether the circuit court erred by denying Kennedy's motion for a temporary injunction.");id. at 3("In addition to whatever arguments the parties wish to make in their briefs on whether the circuit court erred by denying Kennedy's request for a temporary injunction, the parties shall address the following questions in their briefs:….").

Despite this additional admonition from the court of appeals, Kennedy's appellate briefs fail to develop arguments showing an erroneous exercise of discretion.We focus initially on the fourth injunction factor —whether Kennedy has demonstrated that the circuit court erred in concluding that he lacked a reasonable probability of success on the merits.First, we note that Kennedy's appellate briefs omit any argument that the circuit court misinterpreted Wis. Stat. § 8.35(1).While Kennedy's appellate briefs do mention his constitutional arguments (equal protection, free speech, and freedom of association) in cursory terms, they fail to develop those arguments to even a minimal standard sufficient for us to consider their merits.Kennedy's appellate briefs focus...