Last month, we wrote about the Seventh Circuit’s decision in Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), a decision written by Judge Richard Posner that created considerable controversy regarding the propriety of internet factual research by appellate courts. Now it appears that Judge Posner’s colleagues will have the opportunity to critique his methodology.
Judge Posner relied on publicly available information on the web concerning the effects and use of Zantac to conclude that the district court in Rowe should not have granted summary judgment in favor of the defendants in an Eighth Amendment claim, where the plaintiff alleged that prison officials had been deliberately indifferent to his esophagus condition by imposing certain restrictions on his Zantac prescription. Judge Ilana Rovner wrote a concurrence in which she agreed with the result, though not with Judge Posner’s use of internet research, and Judge David Hamilton wrote a dissent in which he described Judge Posner’s decision as "an unprecedented departure from the proper role of an appellate court."
The debate appears far from over, and it might even continue in Rowe itself.
Earlier this month the defendants, represented by new counsel, Milwaukee lawyer Michael Brennan of Gass Weber Mullins LLC, filed a petition for rehearing en banc, arguing that they were not afforded due notice of the evidence that Judge Posner gleaned from the internet and that it was inappropriate for the court to surf the web for evidence outside the record.
In response to that filing, the court appointed Chicago lawyer Linda Coberly of Winston & Strawn LLP, chair of that firm’s appellate practice, to represent Rowe, who had appeared pro se. The court set November 9 as the due date for Rowe’s response. It seems certain that a judge has called (or soon will) for a vote on the petition by all the circuit judges in regular active service. See Fed. R. App. P. 35(f); 28 U.S.C. § 46(c).
Only time will tell the outcome. We note that the last time Judge Posner stirred up this debate in Mitchell v. JCG Industries, Inc., No. 13-2115 (Mar. 18, 2014), by conducting an experiment in his chambers in which his clerks donned and doffed protective equipment used by employees in a chicken-rendering plant (see our post here and our coverage of the petition vote here), he won the vote on the petition for rehearing en banc when the court denied the petition by a vote of 6-4. The four dissenters were Chief Judge Diane Wood and Judges Ann Claire Williams, Rovner, and Hamilton. Judge Posner penned a rare opinion concurring in the denial of the petition in which he further explained his position.
One thing is certain. There will be one less vote this time, and it comes at the expense of Judge Posner’s majority in Mitchell. Judge John Tinder voted to deny the petition in Mitchell, but he retired from the court in February.