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Briefs – Appendix: Importance of, and Sanction for Falsely Certifying Compliance

State v. Philip R. Bons, 2007 WI App 124, PFR filed 4/24/07

¶23      Applying the plain language of the rule, Gorokhovsky’s certification of compliance is false. His appendix contains only a copy of the judgment of conviction, the notice of motion and motion to suppress, and the notice of intent to pursue postconviction relief. How these documents in any way inform this court about the trial court’s determinations “essential to an understanding of the issues raised,” we do not know. A judgment of conviction tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant. A notice of motion and motion to suppress and the notice of intent to pursue postconviction relief are meaningless to the discussion of the issues at bar. Here, the trial court provided extensive oral decisions on the issue of whether Ramstack properly detained Bons and the question of whether Bons voluntarily consented to the searches of his vehicle or trunk. Both of these oral decisions were “essential to an understanding of the issues raised.” Neither were in the appendix. Yet, Gorokhovsky certified that the essential items were in his appendix. They were not. Therefore, his certification is false. In fact, no items essential to our understanding of the issues were in his appendix.

¶24      Filing a false certification with this court is a serious infraction not only of the rule, but it also violates SCR 20:3:3(a) (2006). This rule provides, “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal.” By attesting that he complied with the appendix rules when he did not, Gorokhovsky made such a false statement.

¶25      Gorokhovsky’s deficient appendix placed an unwarranted burden on this court. Failure to comply with a requirement of the rules “is grounds for … imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.” Wis. Stat. § 809.83(2) (2005-06). Accordingly, we sanction Gorokhovsky and direct that he pay $150 to the clerk of this court within thirty days of the release of this opinion.

Judge Brown’s concurrence (¶¶26-30) both stresses the importance of a complete Appendix and laments the current tendency to burden the court with “worthless” Appendices. The certification requirement is meant to improve this practice and, in the event you missed the point of raking the unfortunate Mr. Gorokhovsky over the coals: “It is time that the rule was enforced.” Indeed, the underlying search and seizure issue seems to be so utterly mundane that the only purpose of publication is to drive home the need for more complete Appendices. In this respect, it’s probably not irrelevant that the same sort of transgression also resulted in a $150 fine, but in an unpublished opinion, State v. Devin Brown, 2005AP2450-CR, Dist. I, 12/19/06. And lest you think this is a merely parochial concern, you might want to take a look at U.S. v. White, 472 F3d 458 (7th Cir 2006) (order to show cause why counsel should not be fined $1000 for same sort of violation—yep, that’s one more digit than our COA thought necessary for condign punishment; accompanied by strong language re: need to ensure “meticulous” compliance with briefing rules).

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