New EDWBA President Bob Gegios
Looks Toward the Future of the Association. The Eastern District of Wisconsin Bar Association welcomes its new president for the 2007-2008 term, Bob Gegios. As many in the membership know, Bob has been a prominent member of the Milwaukee legal community for a number of years, and has been on the EDWBA’s board of directors since its inception in 2002. Bob has taken on his new role with excitement about the positive direction of the organization. “Due in no small part to the tireless effort and dedication of its past presidents, board members, and staff, the EDWBA has come a very long way in the short time that it has been in existence. I’m very happy to be taking on this responsibility at a time when the association is excelling in achieving its goals of education and service within the Eastern District.” Bob takes the helm during a year that will see exciting new initiatives and continued growth, centered on the EDWBA’s commitment to improving practice before the Eastern District of Wisconsin, encouraging pro bono work within the district, and educating the bar with timely and informative programs. This year, the association is seeking to expand its contacts with the Milwaukee legal community through an increased involvement with the Marquette University Law School, as well as with the legal community throughout the rest of the district, with a continued focus on district-wide pro bono work and a CLE focusing specifically on practice in the Green Bay Division. The association also hopes to work closely in conjunction with the newly re-constituted Eastern District Rules Committee in updating and revising our local rules to better reflect recent changes in the federal rules and to suit current practice. Of course, the association will continue its dedication to providing educational opportunities to the bar that are geared specifically towards current practice in the federal courts and the Eastern District, as well as opportunities for positive interaction between attorneys and the judges within the district. “The EDWBA takes its responsibility of enhancing the quality of practice before the Eastern District very seriously,” says Gegios. “The best way for the association to bring about a better awareness of the issues facing Eastern District lawyers and judges, and to make positive changes within our community, is to increase our visibility through the good works of our members and committees.” To further its visibility, the association soon will have its website up and running, which will allow anyone to learn more about and join the EDWBA, access archived newsletters, view a calendar of upcoming events, and access CLE materials. The current EDWBA membership understands and appreciates the work of the association in improving the knowledge of the federal bar, and promoting fair, efficient, and civil practice in the Eastern District. Bob and the rest of the executive committee ask our current members to continue to spread the word of our efforts, and work to bring new members in to take advantage of the association’s programs, as well as further the goal of enhancing the quality and effectiveness of practice before the Eastern District of Wisconsin.
The EDWBA Focuses on Practice in the Green Bay Division Do you want to know more about the Green Bay Division of the United States District Court for the Eastern District of Wisconsin? With the help of United States District Court Judge William C. Griesbach, the EDWBA presents this article as an aid, as well as a preview of its November 13, 2007, CLE regarding federal court practice for the state court practitioner. Judge Griesbach was appointed by President George W. Bush in May 2002. In August 2002, Judge Griesbach was designated to hold court for the Eastern District in Green Bay. In addition to Judge Griesbach, United States Magistrate Judge James R. Sickel serves the Green Bay Division. He works as a part-time Magistrate and maintains his own private practice. Judge Sickel conducts mediations and certain criminal pretrial matters such as initial appearances, bail hearings and detention hearings. When conducting courtroom proceedings, Judge Sickel uses the courtroom regularly used by Judge Griesbach. The Green Bay Division serves Brown, Calumet, Door, Florence, Forest, Kewaunee, Langlade, Manitowoc, Marinette, Menominee, Oconto, Outagamie, Shawano, Waupaca, Waushara, and Winnebago counties. Until January 2005, the Green Bay Division also served Dodge, Fond du Lac, Green Lake, Marquette and Sheboygan counties. These latter counties, along with Kenosha, Milwaukee, Ozaukee, Racine, Walworth, Washington, and Waukesha counties, are now served by the Milwaukee Division. Judge Griesbach believes that geography favors the present division. Statistics also suggest that the current alignment results in each court being assigned an appropriate proportion of new cases.
The Green Bay Division court facilities, located at 125 South Jefferson Street in Green Bay, are housed in a building originally constructed in 1903 as a Carnegie library. In 1927, an attached museum was constructed. By the 1980s, the building had fallen into disrepair. A group of attorneys, among them Judge Sickel’s father, purchased and renovated the building into office spaces. The building, marked by attractive stone columns, is distinct from the Milwaukee courthouse in that it is not owned by the General Services Administration. The building houses professional offices, including those belonging to attorneys. Owing to this arrangement, attorneys, jurors, litigants and visitors coming to the court do not pass through building security. Rather, two courthouse security officers conduct the screening process at the entrance to the court. The Green Bay Division is supported by a permanent office of the Clerk of Court. The office is staffed by Deputy Clerks Terri Lynn Ficek, Mary Conard and Cheryl Veazie, who maintain records for cases assigned to the Green Bay Division. The complement of other individuals working regularly in the Green Bay Division includes several Assistant United States Attorneys who staff a Green Bay office. The Federal Defender’s office also has two employees in Green Bay. The United States Marshal maintains two Deputies in Green Bay, and has constructed holding cells. Probation maintains four agents in Green Bay, and assisting Judge Griesbach in his chambers are his legal secretary and two elbow law clerks.
Which matters will be heard in Green Bay? Criminal pretrial matters not handled by Judge Sickel are referred to Milwaukee to be handled by Magistrate Judges William E. Callahan, Aaron E. Goodstein and Patricia J. Gorence. Judge Griesbach will personally hear some criminal pretrial matters in which the parties and attorneys are located in Green Bay.
A cooperative relationship with the United States Bankruptcy Court helps to serve litigants from counties within the Green Bay Division. United States Bankruptcy Judge Susan V. Kelley conducts proceedings in the Green Bay courtroom and by videoconference. Judge Griesbach hears bankruptcy appeals concerning a party located in the area served by the Green Bay Division. Matters removed to federal court are assigned to a court based on the division of counties between the Milwaukee and Green Bay Divisions. Mediation or trial may occur in Green Bay in civil matters in which parties consent to Magistrate Judge jurisdiction. More frequently, however, the matter is addressed in Milwaukee. Practice tips. Documents are filed using the Electronic Case Filing system or ECF. Hard copies of documents exceeding 10 pages in length should also be directed to Judge Griesbach’s chambers. (Be mindful that unlike the Milwaukee Division, there is no drop box available for the Green Bay Division.) In using ECF, it is best to file documents in a Portable Document Format or PDF, rather than scanning a hard copy. PDF documents enable the court to search text, copy text such as proposed findings of fact, and are easier to read. Attorneys filing summary judgment motions should keep in mind the ease of the court in referring to supporting documents. Hard copies of affidavits with lengthy and multiple exhibits should be tabbed to make information easy to locate. In most cases, it is advisable to economize proposed findings of fact summarizing relevant evidence rather than reciting all evidence. Generally, a party arguing that an essential element of a claim fails or that an affirmative defense defeats a claim may tailor their facts to that argument. Judge Griesbach routinely conducts status and scheduling conferences telephonically. In addition, in recognition of the fact that “many attorneys and parties are traveling to attend hearings” in the Green Bay Division, Judge Griesbach is very amenable to conducting other hearings telephonically. Judge Griesbach prefers personal appearances, however, on disputed matters. What can you expect from the courtroom in the Green Bay Division? Judge Griesbach’s courtroom is sizeable enough to accommodate the vast majority of proceedings. Only, for example, a very large multi-party conspiracy action or a matter involving an exceedingly large number of documents would present space constraints. The configuration of the courtroom is such, however, that parties intending to use an ELMO or other projection screens in presentations to the court or jury should confirm the suitability of their equipment. A court reporter is not assigned to Judge Griesbach’s court. The courtroom employs electronic digital recording equipment, the technology of which is regularly upgraded. By contacting the Clerk’s Office, parties may request copies of the audio recordings of proceedings on disc. Parties may also request transcripts. To process such a request, recordings are sent to an outside court reporter who prepares a transcript within the same timeframe as in courts with assigned court reporters. Calling it a “useful tool,” Judge Griesbach notes that there are advantages for the court in using the electronic digital recording system. The system enables the court to revisit archived recordings of testimony and argument, refreshing recollections and clarifying details without need of transcription. The EDWBA Newsletter Committee hopes this overview of practice before the Green Bay Division is helpful. To learn more and to have the opportunity to ask questions, please attend the upcoming CLE.
Sweeping Amendments to Federal Rules to Take Effect December 1, 2007 Barring any unforeseen congressional action, the new federal rules of civil procedure will take effect on December 1, 2007. While there are a few substantive changes, the most sweeping change is a comprehensive re-write and re-styling with the purpose of making the rules more “user-friendly.” Lee Rosenthal, United States District Judge and chair of the Advisory Committee commented in a May 2007 press release that “Our goal was to make the rules clearer, more readable, and more consistent without changing the substantive meaning.” The Advisory Committee’s drafting notes for the new rules list areas in which the changes were predominantly made, in the hope that the rules would be more concise and logical. In several cases, large block paragraphs were broken out into their constituent parts for the sake of clarity. For example, Rule 4(a) currently includes a number of requirements for the form of a summons to federal court, and allows for amendments to the summons. The new Rule 4(a) breaks out each requirement into its own separate subdivision, creating Rule 4(a)(1)(A) through (G) (specifying the necessary contents of the summons), and Rule 4(a)(2) (noting that the summons may be amended). Although the introduction of new subdivisions throughout the rules may seem to ensure confusion in researching and applying judicial decisions to the new format, the drafting notes assure the practitioner that, for the most part, the former subdivision designations have been retained. The new rules also include a comparison chart to ensure a smooth transition in the case that a particular provision has received a new designation. The most significant change in the new rules is the wording itself, which has been amended to reduce the use of “inconsistent, ambiguous, redundant, repetitive, or archaic words.” Much of the language in the rules has been simplified, and an effort has been made to ensure that different words with similar meanings or interpretations have been changed to promote consistently throughout the rules. The new rules also address traditionally ambiguous wording, such as the word “shall,” the meaning of which can differ depending on which rule is under consideration. “Shall” has therefore been removed from the rules in favor of the more exact words “must,” “may,” and “should.” Finally, the rules were streamlined to remove redundancies and outdated phraseology. In each case, the advisory committee cautions that no substantive change was meant in the process. Critical reviews of the language changes that have been submitted to the Civil Rules Advisory Committee have been predominantly positive. A major concern over the new changes is, of course, that they would incur a flood of “satellite litigation” to determine the possible unintended changes in substantive meaning. In a November 2005 letter to the Advisory Committee, Judge W. Eugene Davis, circuit judge for the Fifth Circuit Court of Appeals, wrote of his fear of satellite litigation surrounding the similar restyling of the Federal Rules of Criminal Procedure that took place in 2001. Judge Davis noted that those fears have largely proven to be unfounded, and stated that he has “every reason to believe that the concern about significant satellite litigation over the meaning of the changes to the Civil Rules will turn out to be just as unfounded as it was with the Criminal Rules.” Barry H. Bauman, Executive Director of the Lawyers for Civil Justice, wrote regarding the initial draft: “We believe that the draft as achieved its primary objectives: the rules are much easier to read and understand and their meaning is unchanged.” Others believe that the sweeping changes to the language in the rules require closer inspection by Congress before taking effect, fearing that the transition to the new rules will prove overly costly and time-consuming for litigants and courts alike. Jeffrey Parker, a professor of law at George Mason, recently wrote a plea to Congress to postpone the effective date of the new rules. Mr. Parker opines that “the proposed amendments are likely to produce a material degradation of civil justice in our federal courts by imposing enormous burdens of transitional cost, in exchange for little or no benefit.” Still others, noting that the rules are now seventy years old, maintain that the Advisory Committee’s efforts in re-styling the rules would better have been spent on drafting an entirely new set of rules reflecting current practice in the 21st century. Of course, it remains to be seen whether the misgivings of critics of the newly re-styled rules will be realized. Attorneys practicing in federal courts will do well to familiarize themselves with the changes to the rules, if for no other reason than accurate citation in legal briefs and memoranda. The best way to minimize the effects of the transition to the new rules will be for both bench and bar to be conversant with the rule changes themselves. Parker, Jeffrey S., "Postponing the 2007 'Restyling' Amendments to the Federal Rules of Civil Procedure" (September 2007). George Mason Law & Economics Research Paper No. 07-33 Available at SSRN: http://ssrn.com/abstract=1016221
Significant Eastern District Decision Judge Callahan Strikes Down 68 Year-Old Gasoline Minimum Markup Law Finding that Wisconsin’s failure to actively supervise the setting of gasoline prices under Wisconsin’s Unfair Sales Act was unconstitutional, Judge William Callahan struck down the statute on October 12, 2007 in the case of Lotus Business Group, LLC v. Flying J Inc., no. 07-CV-0144-WEC. On Flying J’s motion for summary judgment, Judge Callahan first considered whether the markup law, Wis. Stat. § 100.30, violates the Dormant Commerce Clause. Judge Callahan noted that, while the defendant Flying J Inc. may lose some of the competitive advantage of its ability to procure gasoline at lower wholesale prices and pass that on to the consumer, that disadvantage was minimal and was actually more likely to result in a greater profit margin for Flying J. Further, Judge Callahan found that, while the statute may not be the best way for Wisconsin to prevent below-cost pricing in gasoline, it nevertheless was not excessively burdensome on interstate commerce such that it was violative of the Dormant Commerce Clause. Despite the fact that the Dormant Commerce Clause argument was the focus of Flying J’s attack on the statute, Judge Callahan found Flying J’s challenge on the basis of the Supremacy Clause more persuasive. Flying J argued—and the court agreed—that the Act as it applied to gasoline sales restrained trade in contravention of the Sherman Act, 15 U.S.C. § 1. However, under the United States Supreme Court’s decision in Parker v. Brown, 317 U.S. 341 (1943), state price-fixing is immune to antitrust claims where the state has clearly articulated the restraint on trade as state policy, and where the state actively supervises that policy. Flying J contended that the Wisconsin Act violated both prongs of the Parker immunity test. Judge Callahan, however, found that Wisconsin has stated its policy very clearly within the statute itself. However, the court found that the State’s failure to actively supervise the policy with regard to the setting of gasoline prices ran afoul of the second prong of the Parker test. Placing great weight on the fact that Wisconsin had revised the administration of the gasoline markup only once in the 68 years of its existence, the court concluded: “it is my opinion that, under the umbrella of the minimum markup statute, ‘[t]he State has displaced competition among [gasoline] retailers without substituting an adequate system of regulation.” In so holding, the court agreed with Flying J’s characterization of the State’s lack of involvement in regulating gas prices as simply putting the scheme on “autopilot.” In closing, the court buttressed its opinion by noting that none of the other federal and state court cases in which the statute was upheld against constitutional attack dealt with the precise antitrust issue before the court. There is no word yet on whether the Lotus Business Group plans to appeal the ruling.
Spotlight on the Newsletter Committee The EDWBA promises to deliver timely information through the distribution of its newsletter, The Docket. William Fischer and Jeremy McKenzie are co-chairing the newsletter committee, and as you can see through this edition, are already bringing important and relevant information to the EDWBA members. If you have a story idea or are interested in writing, please contact either of them. Their contact information is as follows: Bill Fischer: 414-962-5110 or wfischer@kmklawfirm.com
Jeremy McKenzie: 414-225-1430 or jmckenzie@dkattorneys.com
EDWBA CALENDAR OF EVENTS Handling a 7th Circuit Appeal: Tips and Opportunities for Younger Lawyers
Tuesday, October 30
8:30 – 9:30 a.m.
Quarles & Brady LLP
1 CLE credit applied for
$25 members/$35 non-members
Participants will hear from Judge Michael S. Kanne, United States Court of Appeals for the Seventh Circuit, Gino Agnello, Clerk of the Seventh Circuit, and Julie Lyons, Supervisory Motions Attorney, Seventh Circuit. For more information and to register, please contact Elizabeth Perkins at 414-277-5763 or eperkins@quarles.com. Introduction to Federal Practice
Thursday, November 8
10:30 – 11:30 a.m.
Milwaukee Athletic Club
1 CLE credit applied for
NO COST
Anyone new to federal practice should attend this program. An overview of federal practice will be provided by Chief Judge Rudolph T. Randa, U.S. District Court, Chief Judge Margaret Dee McGarity, U.S. Bankruptcy Court, Paul L. Kanter, U.S. Attorney’s Office, and Nancy Joseph, Federal Defender Services of Wisconsin, Inc. For more information and to register, please contact Katy Borowski at 414-276-5933 or kborowski@milwbar.org. History of the Federal Courthouse
Thursday, November 8
11:30 – 1:30 p.m.
Milwaukee Athletic Club
$20 first-year associates/$25 members/$35 non-members
If you attend the Introduction to Federal Practice, you should definitely stay for the History of the Federal Courthouse. And if you practice in the courthouse, you should attend to learn about the original construction and use of the building as well as the extensive renovation that was done beginning the the late 1980’s. Participants will hear from Jamese G. Plunkett, Designer, Plunkett Rayisch Architects, and Tony Lillibridge, Director of Facilities for the State of Wisconsin, U.S. General Services Administration. An introduction will be given by Judge J.P. Stadtmueller, U.S. District Court. For more information and to register, please contact Katy Borowski at 414-276-5933 or kborowski@milwbar.org. Federal Court Practice for the State Court Practitioner and More
Tuesday, November 13
8:45 a.m. – 1:15 p.m.
KI Convention Center/Regency Suites
Green Bay, WI
4 CLE credits applied for
$40 EDWBA government member/$50 EDWBA member/$75 Non-EDWBA member
Not only will attendees learn about the differences between federal court practice and state court practice, they will also hear presentations about jurisdiction and removal, summary judgment, and appellate jurisdiction and Seventh Circuit practices. The program will conclude with a lunch and discussion of practices and procedures in Judge Griesbach’s court. For more information and to register, please contact Katy Borowski at 414-276-5933 or kborowski@milwbar.org. Bankruptcy Appeals
Friday, November 16
Noon – 1:30 p.m.
Milwaukee Bar Association
1 CLE credit applied for
$30 member with no lunch/$39 member with lunch/$49 non-member with no lunch/$58 non-member with lunch
Presenter Samuel R. Maizel, Pachulski Stang Ziehl & Jones, LLP, Los Angeles, CA, will discuss all of the “must-know” issues relevant to conducting an appeal – including choosing the proper forum, standing, timing, standards for review and stays pending appeal. He will also provide guidance on drafting appellate pleadings and presenting an effective appellate argument. Mr. Maizel is the co-author of the recently published American Bankruptcy Institute’s Bankruptcy Appeals Manual-Winning Your Bankruptcy Appeal (ABI 2007). For more information and to register, please contact Katy Borowski at 414-276-5933 or kborowski@milwbar.org. A LOOK AHEAD Introduction to Federal Court Practice, Part II, Tuesday, November 27 Pleadings Standards – What You Need to Know, Tuesday, December 4 Ethics CLE – Tuesday, December 1
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