Appellate Brief

By Steven M. Badger*
email: sbadger@boselaw.com

            The United States Court of Appeals for the Seventh Circuit heard oral argument on January 14, 2011 in a case of first impression that will decide whether a high school athletic association may require media organizations to buy licenses for internet streaming of high school athletic events.

The appellate court is reviewing a lower court decision last June upholding the Wisconsin Interscholastic Athletic Association’s (the “Wisconsin Athletic Association”) policies regulating internet streaming of high school tournament events. Two Gannett newspapers in Wisconsin challenged the licensing policy on First Amendment grounds.  

            The Wisconsin licensing scheme at issue requires any media organization to pay a fee ranging from $250 to $1500 for the right to stream video of any tournament event over the internet. The Wisconsin Athletic Association also reserves to itself “sole discretion” to grant such rights without specifying any standards for the exercise of its discretion.

Under the Wisconsin licensing policy, any media organization that pays the licensing fee and receives internet streaming rights must provide a master copy its video to a private company holding exclusive broadcast rights.   That private company then may market the video and the media organization that made the video is entitled to a 20% share of the proceeds as a royalty.

The lower court observed in its June ruling that “ultimately, this case is about commerce, not the right to a Free Press.” Gannett’s appeal however argues that the Wisconsin Athletic Association’s revenue-generating motive does not trump the media’s First Amendment rights.

Gannett also focuses its constitutional arguments on the unrestricted discretion the Wisconsin Athletic Association reserves for itself to grant licenses to media organizations of its choosing. Gannett contends that if the athletic association wishes to pick and choose which media organizations may stream video over the internet, the First Amendment requires it do so on an even-handed basis without any threat of exclusion based on viewpoint.

An array of national media associations and media companies has joined in supporting Gannett’s appeal through the filing of an amicus curiae (friend of the court) brief. Those supporting organizations include the Newspaper Association of America, the American Society of News Editors, the National Press Photographers Association and The Online News Association. The supporting media companies include Sun Times Media, LLC and Lee Enterprises, Incorporated, among others.

The Wisconsin Athletic Association is supported by two amicus briefs, one by the National Federation of State High School Associations and the other by 10 state high school associations, including the IHSAA.  

            A decision by the Seventh Circuit is expected this summer or fall. Any of the parties could then seek review by the United States Supreme Court. The decisions of the Seventh Circuit Court of Appeals are binding precedent for lower federal courts in the states of Indiana, Illinois and Wisconsin.

*Steve Badger is a partner at Bose McKinney & Evans and represents media organizations and journalists in media law and First Amendment matters.

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UNPUBLISHED

For the underlying proceedings in the trial court, appellant Carolynda Applebury-Todosichuk was represented by local Indiana counsel and an out-of-state attorney granted pro hac vice status by the trial court. Although out-of-state counsel failed to seek permission to proceed pro hac vice on appeal, both attorneys signed Applebury-Todosichuk’s Notice of Appeal. Out-of-state counsel then filed an Appellant’s Brief bearing only her signature; local counsel did not sign the brief. Here, we are faced with the threshold question of whether we may even consider the brief.

Conclusion (slip op. at 2): We cannot consider the merits of a brief improperly filed by an attorney not licensed to practice law in Indiana and not granted temporary permission to proceed in this Court. Because Applebury-Todosichuk has failed to timely file an appellate brief pursuant to Indiana Appellate Rule 45(B), we dismiss this appeal.

Key Analysis (slip op. at 5): Although we will exercise our discretion to reach the merits when violations are comparatively minor, if the parties commit flagrant violations of the Rules of Appellate Procedure we will hold issues waived, or dismiss the appeal . . . This is a flagrant violation of the Rules of Appellate Procedure, and we therefore dismiss the appeal

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UNPUBLISHED

In this interlocutory appeal, Appellant-Plaintiff Jack’s Wholesale Windows and Design of Hammond, Inc. (“Jack’s”) challenges the trial court’s denial of its motion for sanctions, to compel discovery, for issuance of contempt citation, and entry of judgment against Appellees-Defendants Mark Flesher, Lakeside Contractor Supply, Inc., and James Flamini (collectively, “Defendants”). Upon appeal, Jack’s challenges the trial court’s ruling on several grounds. On cross-appeal, the Defendants claim that this appeal is not properly before this court because it was not timely filed. Concluding that Jack’s has waived its claims on appeal, we affirm.

Key Analysis (slip op. at 3-4):  Our review of this appeal is fatally impeded by Jack’s’ failure to conform to Indiana Appellate Rules 46(A)(5), (6), and 46(A)(8)(a). Jack’s’ Statement of the Case and Statement of the Facts in its brief is a stream-of-consciousness recitation of alleged events purportedly leading to the instant appeal but unsupported by necessary citation to or documentation in the record. Much of Jack’s’ brief is unaccompanied by record citations, and certain record citations which are included merely refer to Jacks’s’ own petitions containing similarly undocumented assertions . . . In addition, Jack’s’ argument, which includes citations to pages “xx,” and “xxx,” pages not contained in its appendix, is similarly unsupported by cogent reasoning or by citations to parts of the record relied upon. Accordingly, we deem Jack’s’ claims waived and therefore find it unnecessary to address the Defendants’ cross-appeal.

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Appellant-plaintiff Bryan Woodard appeals the trial court’s order granting summary judgment in favor of appellee-defendant City of New Albany (New Albany) and affirming the decision of New Albany’s Board of Public Works and Safety (Safety Board) to terminate Woodard’s employment as a firefighter. Woodard raises a number of arguments on appeal, many of which have been waived, and we combine and restate the non-waived arguments as follows: (1) the trial court erred by striking a portion of Woodard’s designated evidence and brief in opposition to New Albany’s motion for summary judgment; and (2) the trial court erroneously affirmed the Safety Board’s decision, which was arbitrary and capricious and not based on substantial evidence.

Conclusion (slip op. at 8):  The judgment of the trial court is affirmed.

Key Analysis (slip op. at 7,8):  Woodard has never claimed, and does not claim on appeal, that the information in his affidavit or the Policy was newly discovered evidence that could not have been discovered and raised before the Safety Board. Consequently, we find that the trial court properly granted New Albany’s motion to strike this material . . . We conclude that the Safety Board’s findings were supported by substantial evidence and that its decision to terminate Woodard’s employment was neither arbitrary nor capricious. Thus, the trial court properly deferred to the Safety Board’s decision by granting summary judgment in New Albany’s favor.