Judge Easterbrook provided a fundamental and valuable lesson on appellate review during today’s oral argument in O’Keefe v. Chisholm, a series of consolidated appeals that concern the John Doe investigation brought by Milwaukee’s elected (and Democratic) district attorney into the fundraising efforts of Wisconsin’s Governor (Republican) Scott Walker.
The exchange occurred during the oral argument presented by counsel for the district attorney and for certain members of the district attorney’s staff. As appellants in this case, they sought to overturn an injunction entered earlier by the U.S. District Court for the Eastern District of Wisconsin. That injunction halted the John Doe proceeding and ordered the destruction of all records collected by investigators, and, in the process of entering the order, the district court was critical in its opinion of the district attorney’s efforts.
What the appellants asked for, however, turned out to be a bit too much. The exchange is below.
Counsel: I would request the Court please vacate, in its entirety, the district court’s basis for the ruling. However this Court gets to that issue, if it perceives it needs to. This district court ruling has left a considerable stain, and we do not wish to have that…
Easterbrook, J.: What are you asking for concretely?
Easterbrook, J: Do you want us to issue a writ of erasure?
Easterbrook, J.: Tell the district court it has to say something else?
Easterbrook, J.: When we review a case on appeal, we will issue our own opinion. But we don’t go about erasing district court opinions. That seems to be what you want us to do.
Counsel: Well…what I was thinking, Your Honor, was the vacation of that opinion.
Easterbrook, J.: We do not vacate opinions. We review judgments.
The emphasis is in the original, and it’s a lesson worth remembering. Here is the audio of the oral argument: lj.14-1822.14-1822_09_09_2014. The exchange starts at approximately 26:30 min.
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