A federal appeals panel has rejected Wisconsin Gov. Tony Evers’ attempt to secure sanctions against attorney Sidney Powell for her work, on behalf of Donald Trump, to lead the legal effort to overturn the state’s 2020 presidential election results.
The underlying legal battle began Dec. 1, 2020, when William Feehan brought a lawsuit in federal court in Wisconsin seeking an injunction forcing Evers and the Wisconsin Election Commission to “de-certify” the election results, as well as a judicial order preventing Evers and the Commission from certifying votes cast for Joe Biden and transmitting those results to the Electoral College and Congress.
Eight days later, U.S. District Judge Pamela Pepper dismissed the case, finding Feehan lacked standing to sue. On Dec. 10, Feehan challenged the dismissal before the U.S. Seventh Circuit Court of Appeals, then sought emergency relief from the U.S. Supreme Court. The Seventh Circuit dismissed the appeal as moot on a joint motion of parties and on March 1 the Supreme Court denied Feehan’s petition.
Sidney Powell
On March 31, 2021, Evers went back to federal court to seek sanctions, arguing Feehan’s lawsuit had no basis in fact or the law. Judge Pepper denied that request, prompting Evers to take the matter to the Seventh Circuit.
Judges Ilanna Rovner and David Hamilton concurred on the majority opinion, a nonprecedental disposition issued Aug. 2, with Judge Michael Scudder writing a special concurrence.
The majority said Judge Pepper properly recognized the precedent of a 1983 Seventh Circuit opinion, Overnite Transportation v. Chicago Industrial Tire, in which the court denied a sanctions motion made “nearly three weeks after this court’s mandate was docketed.” Similarly, once the appeals panel affirmed Judge Pepper’s dismissal, her court no longer had jurisdiction over the issue of sanctions.
The majority said Evers’ appeal cited to cases that didn’t fall under the same law through which he sought sanctions and said the relevant history “affirmed the general principle that a district court retains jurisdiction to hear and rule on collateral matters even after the court has lost (or if it never had) jurisdiction over the merits, but the court’s decisions assume that those matters are already pending before the district court before the appellate mandate issues.”
Although Evers asked the panel to overrule its 40-year-old Overnite finding, the judges declined to do so. The majority said Evers could’ve moved for sanctions while the case was still pending and noted the voluntary dismissal from Feehan and his legal team, including Powell, weighs against sanctions.
“We take into account the process for making tactical and strategic choices in lawsuits, including high-speed, high-pressure lawsuits like this attempt to prevent certification of electoral votes in a presidential election,” the majority wrote. “There may be several moments in a lawsuit when matters come to rest unless one party or the other takes further action. At those moments, a losing party often can choose to accept a loss and walk away without pursuing further relief or appeals. That choice may look very different if there is a pending motion for sanctions against the losing party.”
Saying a motion filed after the fact “can seem like a late ambush of a losing party wo was prepared to accept” defeat, the majority declared “it is not unfair to expect a winning party to seek sanctions before the losing party makes such a choice.” Although a circuit judge can issue sanctions when needed “to protect the integrity and authority of the court,” the majority said this was not a case where such issues were at stake.
In his concurrence, Scudder said the Seventh Circuit needs to revisit Overnite in light of U.S. Supreme Court rulings in the succeeding years, but nonetheless arrived “at the same outcome” as the majority because there is no evidence of legal harm. He said Judge Pepper had no intention to issue sanctions so Evers’ appeal didn’t demand a full investigation of whether sanctions would’ve been possible.