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City of Shawano v. Darlene F. Sense, 2010AP2193-FT, District 3, 2/8/11

court of appeals decision (1-judge, not for publication); case activity; Memo Br.; Memo Resp.; Memo Reply

¶10      As a final matter, we address certain deficiencies in Sense’s appellate brief.  First, Sense’s repeated references to “appellant” and “respondent” throughout her brief violate WIS. STAT. RULE 809.19(1)(i), which requires reference to the parties by name, rather than by party designation.  Second, Sense cites an unpublished case as legal authority, in violation of WIS. STAT. RULE 809.23(3).  Third, Sense’s appendix does not include “oral or written rulings or decisions showing the circuit court’s reasoning,” as required by WIS. STAT. RULE 809.19(2)(a).  The appendix merely contains the court’s order affirming the judgment of conviction, which “tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant.”  See State v. Bons, 2007 WI App 124, ¶23, 301 Wis. 2d 227, 731 N.W.2d 367.  Fourth, Sense’s “Certification Regarding Appendix” is incomplete, in that it does not certify that the appendix meets the content requirements of RULE 809.19(2)(a).  See WIS. STAT. RULE 809.19(2)(b).

¶11      Fifth and finally, Sense’s statement of facts contains several brazen assertions that are completely unsupported by the record.  For instance, Sense states that the Best Western hotel’s parent company “has been targeted repeatedly with numerous complaints and false accusations and negative publicity because the president is from India.”  Sense contends, “Local officials and specifically, [the] mayor of Shawano, … have positioned themselves against [the parent company’s president] time after time and seek every opportunity to cause harm to any businesses in Shawano connected with [the parent company].”  Sense also alleges the police’s routine compliance check was “a tactic to get into the facility during a private party to scare and intimidate guests who value their privacy … so that they might cancel their contract with the hotel …. Cancellation of their contract would have delighted City officials[.]”  Sense does not provide record citations for any of these allegations, presumably because they are completely unsupported by the record.[3]

¶12      Accordingly, we sanction Attorney Rebekah M. Nett and direct that she pay $200 to the clerk of this court within thirty days of the release of this opinion.

The court’s authority to impose a monetary sanction without notice or opportunity to be heard is questionable; indeed, is currently being litigated, in State v. Gregory K. Nielsen, 2010AP000387-CR. Undoubtedly, the court’s view is that the attorney has committed an offense that is obvious and admits of no defense, therefore nothing remains but to punish the scoundrel. But even punishment for summary contempt – which assumes disruptive conduct occurring in the court’s very presence – can’t be meted out this way, State v. Kruse, 194 Wis.2d 418, 435, 533 N.W.2d 819 (1995) (“This court has previously held that in the context of a summary contempt proceeding, the contemnor must be afforded a right of allocution. Contempt in State v. Dewerth, 139 Wis. 2d at 565. The right is so basic that it will not be inferred from the record. The right must be exercised after the court has made its finding of contempt but before punishment is imposed, thereby permitting the judge to vacate the contempt order entirely or to give a more lenient sanction, after considering any mitigating factors revealed in the allocution.”).

Of course, making sure you follow the applicable rules is the best hedge against having to assert a right of allocution in the first place.

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