Appellate Briefs Are Not the Place to Incorporate Material from Someplace Else by Reference

Buried in a footnote in the February 7 opinion in a criminal appeal is a helpful reminder for all advocates in the Seventh Circuit, including those handling civil appeals. In United States v. Moody, No. 18-1837 (7th Cir. Feb. 7, 2019), Mr. Moody sought to incorporate an argument by reference from the appellate brief of a trial court co-defendant whose appeal had not been consolidated with his.

The court declined to consider the argument, in part because, in the absence of consolidated appeals, “Moody was not permitted to incorporate by reference his codefendant’s arguments.” Slip op. at 2, n.1.

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Plain Language vs. Purpose: The Seventh Circuit Debates Statutory Interpretation

Last week, in an 8-4 en banc decision, the Seventh Circuit held that the Age Discrimination in Employment Act does not provide a cause of action for outside job applicants on a “disparate impact” theory. Kleber v. CareFusion Corp., No. 17-1206 (Jan. 23, 2019). Beyond the result, the court sharply divided over how to interpret the statute. Writing for the court, Judge Michael Scudder held that “plain language” dictated the outcome of the case, while Judge David Hamilton’s principal dissent aggressively defended a purposivist approach to statutory interpretation.

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The Need for a Marks Rule in Wisconsin

This article is the fourth and final installment in our series on the Wisconsin Supreme Court’s recently completed 2017-18 term. For previous installments, see here, here, and here.

Last term, the United States Supreme Court was expected to clarify its decision in Marks v. United States, 430 U.S. 188 (1977), which adopted a rule governing the precedential value of 4-1-4 decisions of the Court. Under Marks, the Court adopted the following rule (which had been proposed by three Justices the previous year):

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ”the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .”

Hughes v. United States, ___ S. Ct. ___ (June 4, 2018), which concerned the eligibility of a criminal defendant to receive a sentence reduction after entering a binding plea agreement with a recommended sentence length, seemed to present the opportunity to revisit the Marks rule, because a 4-1-4 split in Freeman v. United States, 564 U.S. 522 (2011), left unclear what rule applied. In Freeman, Justice Sotomayor largely agreed with the four-justice dissent’s rationale, but concurred in the judgment announced by the four-justice plurality for reasons separately stated with which none of the eight other Justices agreed. Though Hughes seemed to give the Court the chance to clarify the application of Marks, ultimately a majority of the Court was able to decide the sentencing issue on the merits, making it unnecessary to revisit Marks.

Hughes got us thinking about the fact that Wisconsin has no Marks rule. And the Wisconsin court in recent years has increasingly been unable to agree on a majority rationale for decisions. Nevertheless, the court continues its practice of issuing so-called “lead opinions.” A lead opinion is the first in the series of opinions published in a given case, but it commands no majority. A couple of the justices have been thinking about this issue, especially since the decision in State v. Lynch, 2016 WI 66 (2016), in which five of the seven agreed that the Court of Appeals ought to be reversed, but no four agreed on a rationale for reversal. In this context, Lynch generated an interesting mandate: “As a result of a divided court, the law remains as the court of appeals has articulated it.

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Tetra Tech EC, Inc. v. Wisconsin Department of Revenue

This article is the third installment in our series on the Wisconsin Supreme Court’s recently completed 2017-18 term.  For previous installments, see here and here.

One decision of the past term merits special attention: Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, 2018 WI 75. As we predicted (see prior post), Tetra Tech was the court’s chosen vehicle to revisit and restrict, on its own motion, previously mandated judicial deference to Wisconsin administrative agency decisions.  Wisconsin courts before Tetra Tech deferred to administrative agency decisions often and extensively.  But the “sea change” in the law forewarned by Justice Ziegler in the previous term arrived in June.

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Wisconsin Supreme Court Picks Up the Pace Under New Procedure

This installment is the second in our series on the Wisconsin Supreme Court’s 2017-18 term.  For the previous installment, click here.

The United States Supreme Court made headlines earlier this year for getting behind on its work.  Fortunately, Wisconsin’s supreme court has been trending in the opposite direction.  What is behind this development?

We wrote in December 2014 about the Wisconsin court’s new opinion drafting procedure.  As we discussed then:

  • A series of deadlines and flowcharts now govern each stage of the opinion-writing process and limit the timing of opinion revisions.
  • Justices no longer, as they once did, discuss draft opinions in conference, unless a majority of the court affirmatively votes to do so.
  • Justices can no longer place indefinite “holds” on the release of the court’s opinion.
  • Separate writings may be released after majority opinions, if necessary (though we haven’t seen this happen yet).

While the new procedure drew considerable criticism when it was adopted, the court has been releasing opinions faster since then.  By the end of April 2018, the court had released 28 opinions, nearly half of the cases that it decided during the term. By the end of June, the court had released 90% of its opinions, leaving only five decisions to be released in July.  By comparison, in the last term when the court did not use this procedure, two-thirds of its opinions had not been released by the end of June, and two opinions were not released until August.

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