Supreme Court Calls for the Views of the Solicitor General in a Case That the 7th Circuit Could Not Review En Banc

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Last summer, we wrote about a unique situation that arose in the case of Rubin v. Islamic Republic of Iran, No. 14-1935 (7th Cir. July 19, 2016), in which the Seventh Circuit found itself unable to assemble a “majority” of the judges in regular active service who were eligible to vote whether to rehear a case en banc.

As of this Monday, January 9, 2017, based on the Order List released by the Supreme Court, there are signs that this long-running saga might not be over.  In a practice that is known as issuing a CVSG, or “calling for the views of the Solicitor General,” the Court entered an order inviting the Acting Solicitor General to file a brief “expressing the views of the United States.” Petitions in which the Court enters a CVSG order typically stand a better chance than most of being granted, though making predictions in this realm still is not much more than a guessing game. The case is No. 16-534 on the Supreme Court’s docket.

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The New Wisconsin Court of Appeals

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Bill Gates once wrote that “[w]e always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten.” Mr. Gates surely wasn’t thinking about the turnover of judges on Wisconsin’s Court of Appeals when he wrote that, but a review of the court’s membership over the last 10 years illustrates his point superbly.

We began to think about how much change has occurred in Wisconsin’s intermediate appellate court in the last decade with the announcements that Judge Patricia Curley (District 1) will retire later this month and that Judge Paul Higginbotham (District 4) will not run for re-election in the spring. The Governor has appointed Milwaukee County Circuit Judge Timothy Dugan to replace Judge Curley; Judge Higginbotham’s replacement will take office August 1 (Rock County Circuit Judge Michael Fitzpatrick is the only announced candidate for the position).

We did a little more digging, and the results surprised us. While we expected to find some change, perhaps even substantial change, we did not expect to find that the turnover has been nearly total.

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The Case of the Vanishing § 1292(b) Certification

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Nothing about the Seventh Circuit’s recent per curiam decision in Kenosha Unified School District No. 1 Board of Education v. Whitaker, No. 16-8019 (7th Cir. Nov. 14, 2016), could be considered much of a mystery, but file the case away as something you don’t see often. It answers the question of what happens to the court of appeals’ jurisdiction if the district court makes and then withdraws certification of an interlocutory order under 28 U.S.C. § 1292(b).

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Wisconsin Court of Appeals Enforces Parties’ Stipulation to Remedies and Waiver of Judicial Review in Administrative Proceeding

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While many of us spent this past Halloween gorging on a variety of candies and sweets, Wisconsin’s court of appeals was busy rendering an opinion that likely left Travis Technology High School (“Travis Tech”) with a decidedly bitter taste in its mouth. Ceria M. Travis Academy, Inc. v. Evers, No. 2015AP2314, (Wis. Ct. App. Oct. 31, 2016), an opinion written by Judge Joan Kessler of District I (and recommended for publication in the official reports), confirmed that parties to an administrative proceeding can negotiate a settlement agreement that not only stipulates to a remedy for future violations but waives the breaching-party’s right to seek judicial review when the agency invokes the remedy.

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Seventh Circuit Recognizes “Substantial Truthfulness” Defense to Tortious Interference Claims under Wisconsin Law

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As we wrap up another election cycle that has kept “fact checkers” working overtime analyzing the many dubious claims by candidates of all political persuasions, the Seventh Circuit has issued a decision that reminds us of the value of the truth—at least insofar as it concerns truth (or “substantial truthfulness” in this case) as a defense to a claim for tortious interference with contract.

In Wesbrook v. Ulrich, No. 15-3870 (7th Cir. Oct. 20, 2016), a Wisconsin doctor sued two of his colleagues for tortious interference with his employment contract, alleging that statements made by the colleagues to the clinic’s Board of Directors led to his firing. The defendants sought and obtained summary judgment on the grounds that the statements were either true or, at the very least, “substantially true.”

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