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Saturday, July 26, 2014

Ind. Decisions - So will the oral arguments in the Indiana and Wisconsin same sex marriage appeals be consolidated, or not?

Friday the 7th Circuit issued a notice of oral argument in the Indiana consolidated appeals (Baskin, et al), and a notice in the Wisconsin appeal (Wolf), each setting the time for oral argument as 9:30 in room 2721 on August 26th. [h/t @EQCF for docs]

Each notice states: "Oral argument will be no more than 20 minutes for each side."

The question is, will the Indiana appeal be heard separately from the Wisconsin appeal, with 20 minutes per side in the Indiana case, followed by the panel hearing the Wisconsin appeal, also with 20 minutes per side?

Or will the appeals of the two states be consolidated by the 7th Circuit, with the States of Indiana and Wisconsin splitting 20 minutes, and the Indiana and Wisconsin plaintiffs sharing the other 20 minutes?

The volume, Case Management Procedures in the Federal Courts of Appeals, Federal Judicial Center, 2011, is helpful. Discussion of the procedures of the 7th Circuit begins at p. 135 (141 of the PDF). Section V on p. 140 concerns "Argument Panel Operations." Some quotes:

The calendar for a particular day will generally consist of six appeals scheduled for oral argument. The amount of time allotted for oral argument will be based on the nature of the case and is generally 10–20 minutes per side. The clerk will notify counsel of the allocation approximately 21 days before the argument. * * *

Cases are set for oral argument about a month before argument and will usually be scheduled for oral argument shortly after the last brief is due. In criminal cases, the setting of oral argument often occurs as soon as the appellant’s brief is filed, and in civil cases after the appellee’s or respondent’s brief is filed. Counsel for the parties, or the parties themselves if they are without counsel, are notified of the setting approximately 21 days before the scheduled date of oral argument. After receipt of the court’s “Notice of Oral Argument,” counsel are directed to notify the clerk, at least two days in advance of the scheduled oral argument date, of the name of counsel who will be appearing in court to present the oral arguments. A return postcard is enclosed with the “Notice of Oral Argument” for this purpose. It must be completed and returned to the clerk immediately. * * *

The circuit executive reviews the briefs and sets the time for oral argument in each appeal to be argued. He or she then assembles a week’s worth of cases, designating six cases to be argued on each of the five days, and balancing civil and criminal cases between easy and difficult cases. The calendar is circulated to the judges, who note the days they cannot sit because of date conflicts or conflicts in individual cases. Panels of judges are then randomly assigned for each day. In setting the calendar, the court considers several factors, including the following:

  • Issues similarity. The court schedules appeals with the same issue for argument before the same panel on the same day. * * *
The panel judges’ names and the order of cases to be argued that day are posted at 9:00 a.m. each morning that the court is in session. Also, a card on the rostrum that day will list the names of the panel judges and their positions on the bench.
Prof. Schumm, who pointed me to the procedures handbook, notes re the posting of the judges’ names and the order of cases to be argued at 9:00 a.m. each morning that the court is in session:
I think the only other circuits with this policy are the Fourth and Federal Circuits. The Tenth, for example, posts the panel members names the Monday of the preceding week. The Indiana Court of Appeals, of course, informs us weeks in advance with the order scheduling argument.
The ILB has a question in to the Indiana Attorney General's office from late Friday afternoon, re whether the Indiana and Wisconsin oral arguments will be combined or separate, but has not yet had a response.

The ILB has asked an attorney who practices frequently before the 7th Circuit the import of the fact that the notices sent to Indiana and Wisconsin individually both say 9:30 in the same courtroom. The response:

You won’t know the order or the panel until you get there. But it is a cattle-call system, and I think they set arguments for two different times – maybe 9:30 and 11 or something like that. That way everyone is there and ready if an argument is cancelled at the last minute or doesn’t last the full amount of time it was scheduled for.

So Indiana and Wisconsin were always going to be set for the same time on the argument order. I do not know whether that means the arguments have been consolidated, or whether it means simply that one case will go first and then the second one will go separately – that’s something a phone call to the Clerk’s office is going to have to resolve for sure, I imagine.

So the answer: they will certainly be held the same morning, and will be either one argument or two arguments held back-to-back. Read nothing into the fact that they were both set at exactly the same time because that’s what the orders would look like under either scenario.

In sum, the answer to the question of whether the oral arguments are to be consolidated on August 26th in the appeals of the State of Indiana and the State of Wisconsin is not yet clear.

Posted by Marcia Oddi on July 26, 2014 02:50 PM
Posted to Ind. (7th Cir.) Decisions