Seventh Circuit Uses Fed. R. Civ. P. 60(b)(5) to Reopen 23-Year Old Judgment

09 October 2014 Wisconsin Appellate Law Blog

Federal Rule of Civil Procedure 60(b)(5) allows a party to move for relief from a final judgment on the ground that “it prospectively is no longer equitable.” Motions under Rule 60(b)(5) must be made “within a reasonable time” under Rule 60(c)(1), but subsection (c)(1) otherwise sets no firm deadline.

So what is “a reasonable time”? According to the Seventh Circuit’s decision today in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin, it could be as much as 23 years. No. 14-1051 (7th Cir. Oct. 9, 2014). 

Judge Posner wrote for the court in a case in which the Wisconsin Indian tribes sought to reopen a 1991 judgment of the U.S. District Court of the Western District of Wisconsin. That judgment upheld a Wisconsin statute prohibiting the tribes’ members from hunting deer at night outside of their reservations. The land at issue is a large swath of northern Wisconsin that the tribes ceded as part of treaties with the federal government in the nineteenth century, but in which they had retained hunting rights. (Judge Posner included a map of the reservations and the “ceded territory” on page 4 of the slip opinion.)

Hunting deer at night, with the aid of a spotlight, is particularly effective for the hunter (as this Youtube video illustrates), and Wisconsin’s tribes have long permitted tribal members to hunt deer in this way on their reservations.

Wisconsin has outlawed it, however, based on safety concerns. But Judge Posner thought that the state’s justifications for enforcing the ban against Indians with treaty rights to hunt had long since been superseded by subsequent events. Beginning in the late 1990s, he explained, the state itself began to hunt deer at night, using state employees and private contractors, in an effort to reduce the expanding deer population and to eradicate chronic wasting disease. Experience since that time had shown that the practice was “so safe . . . that, given sensible regulations governing such hunting, there [was] no reason to prohibit the tribes’ members from engaging in such hunting on ceded territory.” (Slip Op. 6.)

That might be true, but 23 years is still a long time under Rule 60, particularly since similar motions for relief from judgments under subsections (b)(1)-(b)(3) of that rule must be brought no more than a year from the judgment’s entry.

“But,” the court held, “what is reasonable depends on the circumstances. If reasonable reliance on a judgment is likely to grow over time, a motion to modify it should be made sooner rather than later. But in the case of regulatory decrees, such as the judgment in this case forbidding night hunting of deer, often the passage of time renders them obsolete, so that the case for modification or rescission actually grows with time.” (Slip Op. 10.)

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.

Insights

A Review of Recent Whistleblower Developments
19 July 2019
Legal News: Whistleblower Developments
Cloud security inadequate for Cyber threats, are you surprised?
19 July 2019
Internet, IT & e-Discovery Blog
Blockchain: A Tool With a Future in Healthcare
18 July 2019
Health Care Law Today
Do You Know What IMMEX Stands For?
16 July 2019
Dashboard Insights
Review of 2020 Medicare Changes for Telehealth
11 December 2019
Member Call
2019 NDI Executive Exchange
14-15 November 2019
Chicago, IL
MAGI’s Clinical Research Conference
29 October 2019
Las Vegas, NV
Association for Corporate Counsel Annual Meeting 2019
27-30 October 2019
Phoenix, AZ