Whitford, William et al v. Nichol, Gerald et al

Filing 318

ORDER granting 316 Plaintiffs' Motion to Dismiss the case without prejudice; Denying 317 Defendants' motion to dismiss the case with prejudice. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 7/2/2019. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM WHITFORD, GRAHAM ADSIT,
ROGER ANCLAM, WARREN BRAUN,
HANS BREITENMOSER, JUDITH BREY,
BRENT BRIGSON, EMILY BUNTING,
SANDRA CARLSON-KAYE, GUY COSTELLO,
TIMOTHY B. DALEY, MARGARET LESLIE
DEMUTH, DANIEL DIETERICH, MARY LYNNE
DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA,
BARBARA FLOM, HELEN HARRIS,
GAIL HOHENSTEIN, WAYNE JENSEN,
WENDY SUE JOHNSON, MICHAEL LECKER,
ELIZABETH LENTINI, NORAH MCCUE,
JANET MITCHELL, DEBORAH PATEL,
JANE PEDERSEN, NANCY PETULLA,
ROBERT PFUNDHELLER, SARA RAMAKER,
ROSALIE SCHNICK, ALLISON SEATON,
JAMES SEATON, ANN E. STEVNING-ROE,
LINEA SUNDSTROM, MICHAEL SWITZENBAUM,
JEROME WALLACE, DONALD WINTER,
EDWARD WOHL, and ANN WOLFE,

OPINION and ORDER
15-cv-421-jdp

Plaintiffs,
v.
BEVERLY R. GILL, JULIE M. GLANCEY,
ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON,
and MARK L. THOMSEN,
Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.

Both plaintiffs and defendants move to dismiss this case in light of Rucho v. Common
Cause, in which the Supreme Court held that “partisan gerrymandering claims present political
questions beyond the reach of the federal courts.” No. 18-422, slip op. (June 27, 2019), at 30.

Two issues remain. First, plaintiffs say that the dismissal should be without prejudice, Dkt.
316; defendants say it should be with prejudice, Dkt. 317. There is no doubt that this case
cannot succeed in federal court. But political questions are beyond the jurisdiction of federal
courts, Rucho, slip op., at 7, and dismissals for lack of jurisdiction are not decisions on the
merits, and thus such dismissals are always without prejudice, Bernstein v. Bankert, 733 F.3d
190, 224 (7th Cir. 2013). Accordingly, this case will be dismissed without prejudice.
Second, defendants express their intent to seek fees or costs. Statutory costs will be
awarded to the defendants as the prevailing party and taxed by the clerk as provided under
Rule 54(c)(1). Defendants have until July 15, 2019, to file a brief supporting their entitlement
to fees (but not the amount). Plaintiffs have until July 29, 2019, to respond. Each side is limited
to 20 pages. The court will set a schedule to determine the amount of fees after it decides
whether defendants are entitled to them.

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ORDER
IT IS ORDERED that:
1. Plaintiffs’ motion to dismiss the case without prejudice, Dkt. 316, is GRANTED.
Defendants’ motion to dismiss the case with prejudice, Dkt. 317, is DENIED.
2. This case is DISMISSED without prejudice. The clerk of court is directed to enter
judgment accordingly.
3. Defendants have until July 15, 2019, to submit a bill of costs to the clerk of court;
plaintiffs may file any opposition to the bill of costs by July 29, 2019.
4. Defendants may have until July 15, 2019, to file a motion for fees. Plaintiffs may
have until July 29, 2019, to respond.
Entered July 2, 2019.
BY THE COURT:
/s/________________________________________
KENNETH F. RIPPLE
Circuit Judge
/s/________________________________________
WILLIAM C. GRIESBACH
District Judge
/s/________________________________________
JAMES D. PETERSON
District Judge

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