Judge Easterbrook on Appellate Review: There Are No "Writs of Erasure"

10 September 2014 Wisconsin Appellate Law Blog

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?

Counsel: Well…

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. You can find the audio of the oral argument here. The exchange starts at approximately 26:30 min.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services