Wiesmueller v. Kosobucki

• Decision Date: 29 January 2008
• Docket Number: No. 07-2601.,07-2601.
• Citation: 513 F.3d 784
• Parties: Christopher L. WIESMUELLER, Plaintiff-Appellant, v. John KOSOBUCKI, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

513 F.3d 784

Christopher L. WIESMUELLER, Plaintiff-Appellant, v. John KOSOBUCKI, et al., Defendants-Appellees.

No. 07-2601.

United States Court of Appeals, Seventh Circuit.

Submitted December 4, 2007.

Decided January 29, 2008.

Christopher L. Wiesmueller, submitted, Greenfield, WI, pro se.

Thomas J. Balistreri, Office of the Attorney General, Madison, WI, for Defendants-Appellees.

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

Wisconsin allows graduates of the two law schools in the state to be admitted to the practice of law without having to take the Wisconsin bar exam. The plaintiff, a graduate of an out-of-state law school, brought this suit against the members of the Wisconsin Board of Bar Examiners and the Supreme Court of Wisconsin, charging a violation of the commerce clause of Article I of the Constitution and seeking injunctive relief. The plaintiff moved for summary judgment; the defendants moved to dismiss. After the judge denied the plaintiffs motion but while the defendants' motion to dismiss was pending, the plaintiff moved to certify a class consisting of other graduates of out-of-state law schools who want to practice law in Wisconsin. The district judge granted the motion to dismiss the plaintiffs claim and having done so denied as moot the plaintiffs motion to certify the class.

The plaintiff has appealed. But shortly after filing his notice of appeal, he took the Wisconsin bar exam, and now he has learned that he passed it. The defendants ask us to dismiss his appeal as moot. Moot it is as far as his claim for relief on his own behalf is concerned, for the object of his suit, now attained, was to satisfy a prerequisite to being licensed to practice law in Wisconsin. The question is whether his appeal from the denial of class certification is moot.

If, on the one hand, the class in a class-action suit is certified before the named plaintiffs claim becomes moot, the mooting of his claim does not doom the suit. For the suit is not moot unless the claims of all the unnamed class members have also become moot; if not, they have a live claim against the defendant. United States Parole Commission v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Franks v. Bowman Transportation Co., 424 U.S. 747, 755-56, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). Were the rule otherwise "the defendant could delay the action indefinitely by paying off each class representative in succession," Primax Recoveries, Inc. v. Sevilla, 324 F.3d 544, 547 (7th Cir.2003); see Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332-33, 339, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), though that is not what happened in this case.

Since the named plaintiff is the representative of the unnamed class members, the evaporation of his claim no more bars him from continuing in that capacity (provided a class has been certified), Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), than a lawyer is barred from representing a litigant just because the lawyer himself has no dispute with the defendant. The named plaintiff who no longer has a stake may not be a suitable class representative, but that is not a matter of jurisdiction and would not disqualify him from continuing as class representative until a more suitable member of the class was found to replace him. Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157-58 (7th Cir.1999); Walters v. Edgar, 163 F.3d 430, 433 (7th Cir.1998). Here, as in the Geraghty case, see 445 U.S. at 396, 100 S.Ct. 1202, an unnamed class member (the plaintiffs wife, in fact, who has a law degree from an out-of-state school and has not taken the Wisconsin bar exam), has expressed interest in substituting for the plaintiff as class representative.

If, on the other hand, the named plaintiffs claim becomes moot before the class is certified, the suit must be dismissed because no one besides the plaintiff has a legally protected interest in the litigation. Board of School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975) (per curiam); Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 456 (7th Cir.2007). But coming to our case, what if the district court denies the plaintiffs motion to certify a class, the plaintiff appeals from that denial, and his appeal is pending when his substantive claim evaporates? In that case, the appeal is not moot, Deposit Guaranty National Bank v. Roper, supra, 445 U.S. at 335-37, 100 S.Ct. 1166; United States Parole Commission v. Geraghty, supra, 445 U.S. at 404, 100 S.Ct. 1202, because unless and until the appellate court affirms the denial of the motion to certify a class, there may be people other than the plaintiff with a legally protected interest in the suit— namely the unnamed members of the class.

The district judge seems to have thought that once he rejected the plaintiffs claim on the merits, there was no point in considering whether to certify a class, because the suit, whether on the plaintiffs behalf or on behalf of any other graduate of an out-of-state law school who wants to practice in Wisconsin without taking the Wisconsin bar exam, wasn't going anywhere. But a district judge does not have the last word on the merits of a plaintiffs claim. The fact that he thinks it unsound doesn't mean that a class action by the plaintiff is doomed to failure. Moreover, the fact that a suit...