Plaintiff's Motion to Strike Reply Brief

STATE OF WISCONSIN
CIRCUIT COURT
BRANCH 10
DANE COUNTY
MADISON TEACHERS INC.,
PEGGY COYNE,
PUBLIC EMPLOYEES LOCAL 61., AFL'CIO,
and JOHN WEIGMAN,
Plaintiffs,
V
SCOTT WALKER,
IAMES R. SCOTT,
IUDITH NEUMANN,
and RODNEY G. PASCH,
CASE NO.: 2011.CV003774
CASE CODE: 30701.
Defendants
PLAINTIFFS'MOTION TO STRIKE REPLY BRIEF
AND ACCOMPANYING AFFIDAVITS
Plaintiffs Madison Teachers, Inc. and P"ggy Coyne, by Cullen Weston Pines &
Bach LLP, their attorneys; and Plaintiffs Public Employees Local 61, AFL-CIO and John
Weigman, by Padway & Padway,Ltd., their attorneys, hereby respectfully move the
court to strike the reply brief and accompanying affidavits filed by the Defendants on
September 28,201.2, or in the alternative , to grant Plaintiffs permission to file a sur-reply
brief within seven calendar days of the Court's ruling on this motion.
As grounds for this motion, the Plaintiffs respectfully represent that:
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1,. The Defendants filed a motion for stay pending appeal and brief in
support of motion to stay on September 1.8, 2012.
2. The burden is on the Defendants, as the moving party, to present facts or
argument in support of the factors justifying relief on appeal . Leggett u, Leggett,134 Wis.
2d384,385,396 N.W.2d 787 (Ct App. 1986).
3. The Defendants submitted no affidavits with the motion for stay pending
appeal, Rather, the Defendants chose to support their motion exclusively through legal
argument presented in their accompanying brief.
4. The Plaintiffs filed their response brief in opposition to the motion for stay
on September 26,2012, in accordance with the Court's scheduling order.
5. On September 28,2012, the Defendants filed a document captioned
"Defendants' Reply Brief in Support of Motion to Stay" which presented legal
arguments that were neither responsive to the Plaintiffs' arguments nor raised in the
Defendants' openingbrief. To support the new legal arguments presented in their reply
brief, Defendants also submitted eight affidavits with the reply brief.
6. The legal arguments raised in the Defendants' reply brief for the first time,
and supported by the eight affidavits submitted with the reply brief, include the
following:
a. That municipalities are "arms of the State," thus, harms to municipalities
must be considered in determining whether "the State" (by which the
Defendants appear to mean "the Defendants") will be harmed by the
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decision;
b. That the Court's order is not universally binding nor precedential on the local
municipalities whom the Defendants claim are harmed by the decision;
c. That the decision will harm municipalities because the scope of bargaining on
"wages" is unclear and because unions are seeking permissive bargaining on
other subjects;
d. That municipalities are harmed by uncertainty regarding the availability of
fair share agreements, because the Court did not strike Wis. Stat.
5111.70(2)(a), which defines the rights of municipal employees under MERA;
e. That municipalities are harmed because the decision was issued "in the heart
of municipal budgeting season" artd will make it more difficult for
municipalities to enact budgets.
7. The reply brief cites the accompanying affidavits repeatedly in support of
numerous factual allegations it makes in the new arguments it raises. See Reply Brief at
pp.7,8,9,1'1.,13.
8. All of the facts alleged in the defendants' affidavits and the new
arguments raised for the first time in the reply brief were either known to the
defendants or capable of being ascertained by the defendants at the time they filed their
motion for a stay pending the appeal, and as such could and should have been raised in
their original motion and supporting brief ,
J

9. Because the Defendants chose to withhold the evidentiary affidavits in
support of their motion for stay pending appeal until øfter the Plaintiffs filed their brief
in opposition to the motion, the Plaintiffs are left with no right to respond to the factual
allegations.
10, Likewise, because the Defendants did not raise the legal arguments based
on the factual allegations contained in the affidavits until their reply brieÍ, the Plaintiffs
have no opportunity to respond to those legal arguments, having exhausted their sole
right under the Court's scheduling order to be heard on the Defendants' motion for stay
upon filing their September 26 response brief.
11,. The Defendants' strategic decision to withhold the evidentiary support for
their motion for stay pending appeal and the legal arguments utilizing that evidence
until submitting their reply brief has unfairly deprived the Piaintiffs of their right to be
fully heard on the motion for stay.
1.2. In the appellate courts, " [i]t is a well-established rule that [courts] do not
consider arguments raised for the first time in a reply brief ." Bildø u. County of
Milzuøukee,2006 WI App 57, n 20 n.7,292 Wis. 2d 212,713 N.W.2d 661 (citing Northrttest
WolesøIe Luntber,Inc. u. Anderson,191 Wis. 2d278,294n.11,528 N.W.2d 502 (Ct' App.
1995)). Raising new arguments in an appellate reply brief "thwart[s] the purpose of a
brief-in-chief, which is to raise the issues on appeal, and the purpose of a reply btief ,
which is to reply to arguments made in a respondent's brieÍ." Verex Assurance,Inc. a,
AABREC,Inc.,1.48 Wis. 2d 730,734n.L,436 N.W.2d 876,878 (Ct. App' 1989). The
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proper remedy is to strike the reply brief, or for the court to disregard the new
arguments. See Roy a. St, Lukes Medicøl Center,2007 WI App 218, Para.30,
n, 6, 305 Wis.
2d,658,741 N.W.2d256;Richmøna. Security Søaings €¡LonnAss'n,57Wis,2d358,361',
204 N.W.2 d 511, 51,3 (1,973).
13. The same rationale applies here. The purpose of the opening brief was to
present legal arguments in support of the motion for stay. Likewise, if the Defendants
wished to submit evidence to support their motion for stay, they should have filed it
with the motion. The purpose of the reply brief was to allow the Defendants to reply to
arguments made in the Plaintiffs' response brief. The Defendants improperly raise new
arguments and interject new factual allegations in the reply brief. The proper remedy is
for the court to strike the repty brief and the accompanying affidavits.
1,4. The reply brief filed by the Defendants also exceeds the L0-page limit for
reply briefs established by Dane County Circuit Court Rule 1L5.
15. Alternatively, fairness and due process require that Plaintiffs be given an
opportunity to respond to the new legal arguments and factual allegations raised by the
Defendants for the first time in their reply brief and accompanying affidavits.
1,6. The Plaintiffs therefore request that the Court strike the reply brief and
accompanying affidavits filed on September 28,2012by the Defendants in support of
their motion for stay or, in the alternative, grarrt Plaintiffs permission to file a sur-reply
brief,limited to 15 pages, and any evidentiary materials responsive to the Defendants'
September 28 fitings, within seven calendar days after the Court rules on this motion.
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Dated this 2nd day of October, 2012.
Respectfully submitted,
CULLEN WESTON PINES & BACH LLP
).L G,*n,
Lester A. Pines, SBN 0101
Lee Cullen, SBN 1,01,4859
Tamara B. Packard, SBN 1.023111'
Susan Crawford, SBN 1.03071'6
1.22 rN estWashington Avenue, Suite 900
Madison, WI53703
Telephone: (608) 251-0101
Facsimile: (608) 251-2883
Attorneys for
Mødison Teøchers Inc, ønd PrgW Coyne
PADWAY & PADWAY, LTD.
M. Nichol Padway, SBN 1016666
Aaron A. DeKosky, SBN 1081'404
633 West Wisconsin Avenue, Suite 1900
Milwaukee, WI 53203
Telephone : @1,a) 27 7 -9800
Facsimile: (41,4) 277 -01,89
Attorneys for Public Employees Locøl 6L, AFL-UO
ønd lohnWeigmøn
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