Wisconsin Supreme Court Kicks Open Records Case to the Curb

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When Rebecca Bradley was appointed to the Wisconsin Supreme Court in October, the question arose what role she would play in cases argued this term before her appointment. Specifically, if the Court were otherwise split 3-3 on a case, would Justice R. Bradley participate in order to break the tie? The Court answered “No” in New Richmond News v. City of New Richmond, 2015 WI 106.

New Richmond involves the interplay between Wisconsin’s Public Records Law, Wis. Stat. ch. 19 subch. II, and the federal Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721-25, which protects from disclosure “personal information” and “highly restricted personal information” in motor vehicle records (ranging from street address to social security numbers). The Court thought the question to be one of state-wide importance when it accepted the case last April through its “bypass” procedure, which is one of the ways a case can skip the court of appeals. Nevertheless, the Court sent the case back to the court of appeals when the supreme court was deadlocked 3-3 after Justice N. Patrick Crooks passed away between argument and the release of an opinion. It explained that vacating its bypass allows the court of appeals to decide it and preserves the supreme court’s ability to take it up later, under the usual review process.
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The Assignment of Visiting Federal Judges, and a Little Wisconsin Judicial History

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A decision from the U.S. Court of Appeals for the D.C. Circuit earlier this month, Wrenn v. District of Columbia, D.C. Cir. No. 15-7057, is a reminder of the crucial importance of crossing t’s and dotting i’s when it comes to the temporary assignment of federal judges to hold court outside their own districts. This situation has presented itself occasionally in Wisconsin and arises in two different ways.

Rarely, but occasionally, all the judges on the court or in the circuit will be unable to sit in a case. That happened in a bizarre case filed in 1983 by a Milwaukee lawyer, Roland J. Steinle, Jr. He sued U.S. District Judge Robert W. Warren, claiming that Judge Warren, in 1969, while Attorney General of Wisconsin, had known of and consented to a break-in of Steinle’s law office by one John Forbes, whom the Seventh Circuit described as “a professional burglar and a close friend of Steinle.”  Steinle v. Warren, 765 F.2d 95, 99 (7th Cir. 1985). Steinle said that Forbes told him (in 1971) that the purpose of the break-in was to remove Steinle’s file on his long-time client Frank Balistrieri, the reputed head of the Mafia in Milwaukee. Steinle didn’t act on the story for twelve years, until five days before Balistrieri was scheduled to go to trial before Judge Warren on gambling and tax evasion charges. Steinle admitted during oral argument in the Seventh Circuit that he sued Judge Warren for the express purpose of compelling his recusal. Id. The effort succeeded, though it did Mr. Balistrieri no good. District Judge Terence T. Evans took over the case and began the trial on the scheduled date. The jury convicted Balistrieri, Judge Evans sentenced him to four years, and the Seventh Circuit affirmed, U.S. v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985). All the judges in the Seventh Circuit declined to hear the civil case against Judge Warren, so an out-of-circuit judge had to come in. This required a certificate of necessity from the Chief Judge of the Seventh Circuit and a designation and assignment by the Chief Justice of the United States of a senior judge, under 28 U.S.C. § 294(d). Chief Justice Burger assigned Senior District Judge Edward J. Devitt, from the District of Minnesota, to the case. (Judge Devitt granted summary judgment to Judge Warren and awarded him attorney’s fees for having to defend against a frivolous lawsuit; the Seventh Circuit affirmed and added an award of attorney’s fees and double costs on appeal.)

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Seventh Circuit Reins in EEOC: Agency Cannot Bypass Conciliation Requirement

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On December 17, the Seventh Circuit in U.S. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 14-3653 (7th Cir. Dec. 17, 2015), rejected the EEOC’s aggressive effort to sue an employer without engaging in conciliation or even alleging discrimination or retaliation. Employers—at least in Wisconsin, Illinois, and Indiana—can breathe a little easier now that it’s clear that the EEOC must follow these procedures before it can bring a lawsuit.

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Split Circuit: Seventh Circuit Debate over Judicial Internet Research Ends in a Tie

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The results are in this afternoon in the Seventh Circuit’s vote to rehear en banc Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), and it was a close one, a 4-4 tie, which means that the majority’s opinion stands, though not without an extraordinary exercise in defensiveness by the panel majority (but more on that below).

A vote of the majority of the judges in regular active service on the Seventh Circuit was required to rehear the case en banc, leaving the petitioner one vote short.

There are currently nine judges in regular active service on the court, but Judge Joel Flaum did not participate in the vote, creating the potential for a deadlocked court since there were only eight votes left to be cast. Judges Frank Easterbrook, Michael Kanne, Diane Sykes, and David Hamilton (the last of whom wrote a stinging dissent in Rowe) voted to rehear the case en banc. Chief Judge Diane Wood and Judges Richard Posner, Ilana Diamond Rovner, and Anne Claire Williams voted to deny the petition for rehearing.

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Seventh Circuit Reverses Order Denying Costs Because the Case Was “Close”

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Can federal courts deny a prevailing party litigation costs because it was a close case? According to the Seventh Circuit’s recent opinion in United States ex rel. Pileco, Inc. v. Slurry Systems, Inc., No. 14-1267 (7th Cir. Oct. 28, 2015), written by Judge Richard Posner, the answer is “yes,” though only under limited circumstances, when the loser is indigent.

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