July VIA ECF SYSTEM The Honorable William Conley Judge by MikeJenny


									       Case: 3:11-cv-00428-wmc Document #: 53               Filed: 07/01/11 Page 1 of 2
                                                                         Michael Best & Friedrich LLP
                                                                         Attorneys at Law
                                                                         100 East Wisconsin Avenue
                                                                         Suite 3300
                                                                         Milwaukee, WI 53202-4108
                                                                         Phone 414.271.6560
                                                                         Fax 414.277.0656

                                                                         Joseph Louis Olson
                                                                         Direct 414.277.3465
                                                                         Email jlolson@michaelbest.com

July 1, 2011


The Honorable William Conley
Judge, United States District Court
Western District of Wisconsin

       Re:     Wisconsin Education Association Council, et al., v. Scott Walker et al.,
               Case No. 3:11-cv-00428-wmc

Dear Judge Conley:

Defendants submit this letter in opposition to Plaintiffs Motion for Leave to File Instanter a Brief
In Reply, Dkt # 48 (“Motion”). This Court’s rules are clear. Reply briefs are not permitted on
motions for temporary injunctive relief. (See Procedure To Be Followed On Motions For
Injunctive Relief). Plaintiffs have not articulated any valid reasons for departing from the Rule.
Accordingly, this Court should deny Plaintiffs’ Motion.

Plaintiffs claim new case law from the Supreme Court justifies another brief. While it is true that
Sorrell v. IMS Health Inc., 564 US. – (2011) was released after Plaintiffs filed their moving
papers, that case broke no new ground and adds nothing to this case. Plaintiffs’ suggest that
Sorrell is important because it refutes defendants’ argument that speaker-based distinctions
cannot constitute First Amendment violations. In doing so, Plaintiffs misstate Defendants’
argument and continue to misunderstand the concept of viewpoint discrimination – the very
theory upon which they attempt to base their claim. As Defendants pointed out in their Brief,
viewpoint discrimination assumes a restriction based on the particular views or ideas of the
speaker and not the identity of the speaker. Brief, pp. 25-26. Sorrell does nothing to change this.
Indeed, while the law at issue in Sorrell did prohibit certain persons called “detailers” from
gaining access to certain information related to the prescription tendencies of doctors, it is clear
that the reason the Supreme Court found the law violated the First Amendment was because the
identity of these persons was defined solely by the content of their expected speech. “Here, the
Vermont Legislature explained that detailers, in particular those who promote brand-name drugs,
convey messages that are often in conflict with the goals of the state.” Slip Opinion, p. 9. Thus,
Sorrell does not necessitate additional briefing. Instead, it offers further support for Defendants’
        Case: 3:11-cv-00428-wmc Document #: 53              Filed: 07/01/11 Page 2 of 2

The Honorable William Conley
July 1, 2011
Page 2

Plaintiffs’ second ground for seeking leave also fails. Plaintiffs claim they should be allowed to
file a reply because the Defendants have defended the Equal Protection claim on grounds that
were never publicly stated before the lawsuit was filed. This statement is not only inaccurate; it
is irrelevant. Defendants had no obligation to “actually articulate at any time the purpose or
rationale supporting its classification.” Heller v. Doe, 509 U.S. 312, 319 (1993) (citations
omitted). Further, the fact that the Defendants have (unsurprisingly) articulated the basis in their
response does not mean Plaintiffs are entitled to a reply. Instead, the “burden [was] on the one
attacking the legislative arrangement to negative every conceivable basis which might support it
…”. Id. at 320-21. Plaintiffs’ failure to recognize the actual basis articulated by the
administration on numerous occasions and discuss it in their opening brief does not give them
the right to a do-over.

Plaintiffs’ Motion should be denied. If this Court disagrees and grants Plaintiffs’ motion,
Defendants request the ability to respond.


s/Joseph Louis Olson_______

Joseph Louis Olson, SBN 1046162

cc:     All Counsel of Record via ECF

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