Court denies motion to strike brief in diploma privilege case

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The Oklahoma City University Law School graduates challenging Wisconsin’s “diploma privilege” have lost a motion to strike the appellee’s brief filed by the Board of Bar Examiners (BBE) in the Seventh Circuit.

The lawsuit, which alleges the diploma privilege violates the U.S. Constitution’s dormant commerce clause, has now already resulted in two published decisions of the Seventh Circuit on procedural issues.

The court earlier held that the district court erred in refusing to certify the lawsuit as a class action on behalf of all out-of-state graduates. Wiesmueller v. Kosobucki, 513 F.3d 784 (7th Cir. 2008).

However, in June, after certifying the class as directed by the Seventh Circuit, U.S. District Court Judge Barbara B. Crabb dismissed the case, holding that the diploma privilege had only incidental effects on interstate commerce under Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

After the graduates appealed and the parties submitted briefs on that issue, the graduates moved the court to strike the fact section from the BBE’s brief, and award costs for filing the motion.

But, Judge Richard A. Posner denied the motion in a chambers order.

On its face, the BBE’s brief failed to comply with Circuit Rule 289(c), which requires that the statement of facts “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.”

Judge Posner noted that the fact section of BBE’s brief was 18 pages, yet the first 14 contain only two citations to the record. Instead, the section contains 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 Web sites of various bar authorities.

Only in the last four pages, Posner noted, does the BBE discuss the facts of the case.

Nevertheless, he denied the motion on two grounds, one procedural and one substantive.

First, the order notes that the court disapproves of motions to strike an opponent’s statement of facts. In Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 726 (7th Cir. 2006), the court 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.” The court also has authority on its own to reject a brief that violates Rule 28(c).

Second, the order noted that the BBE’s statement of facts does not contain “argument” prohibited by the rule.

“Their statement of the facts OF THE CASE is unexceptionable,” Posner wrote. “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.”

Posner wrote that such facts may include the sort of facts found in the BBE’s brief, such as laws and policies of other states, the history of qualifications for the bar, and data on bar exam results.

Posner’s order stated that such facts can be included in either the body of the argument, or the statement of the facts, provided they are clearly separated from facts peculiar to the case (which they were in the BBE’s brief).

Christopher L. Wiesmueller, an attorney with Kuchler & Cotton in Waukesha, who represents the plaintiffs and was the original plaintiff in the case (see sidebar), said in an interview that he brought the motion to strike, because the brief contained 18 pages of irrelevant information.

“It had 18 pages of things that don’t matter,” Wiesmueller said, noting that the case is being decided on stipulated facts. The issue is whether Wisconsin has two systems that operate to discriminate against out-of-state graduates. What other states do is irrelevant.”