Corrine Wiesmueller v. John Kosobucki

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2527
C ORRINE W IESMUELLER and H EATHER R. D EVAN,
Plaintiffs-Appellants,
v.
JOHN K OSOBUCKI, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07 C 211—Barbara B. Crabb, Chief Judge.
O CTOBER 28, 2008
ORDER
P OSNER, Circuit Judge (in chambers). The plaintiffs have
moved us to strike the entire fact section from the defen-
dants’ brief, to bar the defendants from assessing costs
related to their preparation of that section of their
brief (should they eventually prevail), and to order reim-
bursement of the plaintiffs’ costs for the expenses they
have incurred in filing this motion.
Wisconsin grants graduates of the two law schools
located in Wisconsin the “diploma privilege.” That is, they
2 No. 08-2527
may be admitted to the Wisconsin bar without taking
an examination. Graduates of out-of-state law schools
are denied the privilege, and the plaintiffs claim that the
denial violates the commerce clause of the federal Consti-
tution.
Circuit Rule 28(c) provides that the statement of facts
in a brief “shall be a fair summary without argument or
comment. No fact shall be stated in this part of the brief
unless it is supported by a reference to the page or pages
of the record or the appendix where that fact appears.”
The fact section of the defendants’ brief begins at the
bottom of page 2 and continues to the bottom of page 20.
The first 14 pages contain only two citations to the
record but 20 citations to constitutions, rules, or statutes,
13 citations to law review articles, two to cases, and 18 to
other materials drawn largely from the websites of
various bar authorities. Not until page 17 do the defen-
dants begin to discuss the facts of this case. The rest of the
statement of facts, the plaintiffs argue, although it con-
tains material germane to the appeal, belongs in the
argument portion of the brief.
In Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725(7th Cir. 2006), one of the parties moved to strike its
opponent’s statement of facts on the ground that it con-
tained unsupported assertions of fact and misconstrued
the record. In a chambers opinion, Judge Easterbrook
ruled that “the way to point out errors in an appellee’s
brief is to file a reply brief, not to ask the judge to serve
as editor.” Id. at 726; see also Redwood v. Dobson, 476 F.3d
462, 470-71 (7th Cir. 2007). To evaluate a challenge to
the accuracy of the statement of facts would require an
No. 08-2527 3
analysis of the record, thus duplicating work that would
be required for deciding the merits of the appeal. No
such undertaking is necessary here, any more than if
the defendants had simply omitted the statement of facts
from their brief. And we could refuse to accept a brief
that violated Rule 28(c), though alternative sanctions
will usually be preferable, for reasons explained in Day
v. Northern Indiana Public Service Corp., 164 F.3d 382, 384-
85 (7th Cir. 1999).
But we think the plaintiffs in arguing that the defen-
dants’ brief violates Rule 28(c) have confused “argument”
with “argumentative.” It is forbidden for the statement
of facts to misstate the record or omit unfavorable
material facts, e.g., McDonald v. Village of Winnetka, 371
F.3d 992, 1009 n. 11 (7th Cir. 2004); Albrechtsen v. Board of
Regents, 309 F.3d 433, 435-36 (7th Cir. 2002); Lawson v.
Trowbridge, 153 F.3d 368, 371 (7th Cir. 1998); Greenslade v.
Chicago Sun-Times, 112 F.3d 853, 857 n. 1 (7th Cir. 1997), or
to make work for the court by failing to give record
references for all the facts included in the statement. E.g.,
Correa v. White, 518 F.3d 516 (7th Cir. 2008) (per curiam);
Corley v. Rosewood Care Center, Inc., 388 F.3d 990, 1001
(7th Cir. 2004); Day v. Northern Indiana Public Service
Corp., supra, 164 F.3d at 384. But that is not what the
defendants have done. Their statement of the facts of the
case is unexceptionable. But besides facts in that sense—the
kind of facts that a trier of fact determines—there are
background facts (sometimes called “legislative” facts)
that lie outside the domain of rules of evidence yet are
often essential to the decision of a case. Those facts may
include, in this case, the laws and policies of other states
4 No. 08-2527
relating to qualifications to practice law, accounts of the
history of qualifications for the bar, and data on bar
exam results, and all these are facts found in the sources
cited in the defendants’ statement of facts rather than
in the record compiled in summary judgment or trial
proceedings. Such facts and the sources from which they
are derived could be incorporated in the argument
section of the brief, but they can with equal propriety be
set forth in the statement of facts, provided that the
brief clearly separates them from the facts peculiar to the
case, as the defendants’ brief does. Moving them from
the statement of facts to the argument section of the
brief would not assist the judges in deciding the appeal.
Forbidden argument in the statement of facts within
the meaning of our rule means an argumentative rather
than a neutral presentation of the facts of the case.
Albrechtsen v. Board of Regents, supra, 309 F.3d at 435; Day
v. Northern Indiana Public Service Corp., supra, 164 F.3d at
384; Palmquist v. Selvik, 111 F.3d 1332, 1337 (7th Cir. 1997);
Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1224
(7th Cir. 1995); Markowitz & Co. v. Toledo Metropolitan
Housing Authority, 608 F.2d 699, 704 (6th Cir. 1979). The
defendants have done that; even the plaintiffs, in the
(very brief) statement of facts section in their brief,
quote from a judicial decision and from an online inter-
view with a judge.
The plaintiff’s motion is D ENIED.
10-28-08