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Monetary Sanction, Appendix- Content Certification Rule

In the Matter of Sanctions in: State v. Gregory K. Nielsen, 2011 WI 94, remanding sanctions order; for State Public Defender: Joseph N. Ehmann; case activity; subsequent history: sanction re-imposed on remand

Monetary sanction summarily ordered by court of appeals against appellate counsel for allegedly violating appendix-content rule reversed, with following “suggestion” for procedure to be followed in such situations:

¶5   Considering the interests of the court of appeals, the interests of counsel, the interests of litigants, and the effective and efficient administration of justice, we suggest that hereafter when the court of appeals is considering imposing a sanction on an attorney for filing a brief with a deficient appendix, an order should be issued (separate from the court’s opinion on the merits of the appeal) directing counsel to show cause why a violation of the rules governing appendix content and certification, Wis. Stat. § (Rule) 809.19(2)(a) and (b) (2009-10),[5] should not be found and why the attorney should not pay a stated amount of money to the clerk of the court of appeals as a sanction for failing to include in the appendix portions of the record that may have been essential to an understanding of the issue on appeal and for filing an incorrect certification.  The order to show cause should also state that alternatively, the attorney may pay the amount of money set in the order within 30 days of the order without showing cause why the attorney should not be relieved of this obligation.[6]

¶33  We suggest that hereafter when the court of appeals is considering imposing a sanction on an attorney for filing a brief with a deficient appendix, an order to show cause should be issued directing counsel to explain why a violation of Wis. Stat. § (Rule) 809.19(2)(a) and (b) should not be found and why the attorney should not pay a stated amount of money to the clerk of the court of appeals as a sanction for failing to include in the appendix portions of the record that may have been essential to an understanding of the issue in the case and for filing a false certification.[20]  We also suggest that the order to show cause should state that alternatively,the attorney may pay the amount of money stated in the order within 30 days of the date of the order without showing cause why the attorney should not be relieved of this obligation.

Background, very briefly: The appeal raised a challenge to sentencing discretion, and counsel’s appendix included 3 of the total of 8 transcript pages devoted to sentencing remarks. The relevant rule, § 809.19(2), requires “a short appendix containing, at a minimum, the findings or opinion of the circuit court, limited portions of the record essential to an understanding of the issues raised.” The court of appeals here thought the appendix too short and in its decision affirming the sentence also summarily sanctioned the Office of the State Public Defender $150 for violating the appendix rule. (Nielsen was represented by SPD staff counsel; the court of appeals didn’t indicate why the order ran against the office institutionally rather than against the individual attorney.)

This – summary sanction by the court of appeals – is a recurrent problem. The supreme court presently notes that “costs have been imposed in less than 1% of the appeals where appendices are filed” since 2005, ¶23. Two points. First, to take the most recent compilation, in 2010, over 3,000 appeals were filed, which could mean as many as 30 such sanction orders in that year alone. Over time, then, the number is probably in the 100s. Second, the reference is, seemingly, limited to violations of the appendix rule. No telling, in other words, how many sanctions have been meted out for other violations, such as the “no-cite” rule, § 809.23(3). And that raises a question as to whether the reach of the present opinion is limited precisely to the appendix rule. Take a look at ¶¶34-44, where the court marshals policy reasons for favoring the order to show cause over summary procedure; those reasons apply outside the particular context of appendix. Note, as well, the court’s ringing endorsement of “counsel’s interests, especially counsel’s reputational interests,” in not being branded a “liar” for filing a false certification when counsel had actually made a good-faith effort at compliance, ¶32. Fine. But will that passage be read narrowly, to apply only to allegations of signing a false certification? We’ll see.

The court explicitly declines to address the propriety of imposing a monetary penalty on the Office of the State Public Defender, ¶44 n. 25. Not clear why the court of appeals did that in the first place. If the idea is to deter intentional violations – and a sanction would surely be misplaced if applied to an inadvertent violation – then what purpose is served by penalizing the institution rather than the individual? A nice question might be raised, as well, about whether the Office of the State Public Defender has sovereign immunity against such a penalty (which probably would turn on whether the penalty is considered the result of a “suit”; perhaps not, but you never know). Questions for another day that, with any luck, will never dawn.

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