Northwood cites a circuit court decision from another case as persuasive authority, correctly noting that such a citation does not violate WIS. STAT. RULE 809.23(3), which prohibits citing unpublished appellate cases decided before July 1, 2009. However, Northwood then emphasizes we affirmed the circuit court, provides citation to the 2005 unpublished appellate court decision, and quotes directly from the appellate decision. This is a blatant violation of RULE 809.23(3), of which counsel was obviously aware given his citation to it. We therefore sanction Northwood’s counsel and direct that he pay $50 to the clerk of this court within thirty days of the date of this decision. See WIS. STAT. RULE 809.83(2).
A blatant violation? Let’s unpack this a bit. As the court indicates, you can cite circuit court opinions all day long till the cows come home and the Brewers win the pennant. For that matter, you can cite unpublished opinions from any other jurisdiction in the world. And, after 7/1/09, you can cite certain unpublished Wisconsin opinions (“signed” opinions, whether 1- or 3-judge panels), for “persuasive,” as opposed to precedential, effect. What you can’t do is cite any pre-7/1/09 type of unpublished Wisconsin opinion “as precedent or authority,” subject to limited exceptions not pertinent here. With that in mind: just what horrible transgression did Northwood’s counsel commit? They cited a relevant circuit court opinion – which the court of appeals grudgingly acknowledges was “correct” argumentation – and then had the temerity to inform the court what it did with that opinion. The entire thrust of Northwood’s argument on the point was that a) circuit court opinions are fair game for discussion (which, as just seen, is absolutely correct); and b) “(t)he circuit court proceedings in this case illustrate the proper analysis and procedure which must be followed” here. In the course of its discussion on this point, Northwoods quoted a single sentence from the court of appeals’ unpublished affirmance, followed immediately by this observation: “It is submitted that the circuit court in [the unpublished case] properly followed the statutory mandates of § 118.125(2)(f), unlike the circuit court here.” Is this a blatant violation of the no-cite rule? Is it even a violation at all? You decide: here is the brief (the outlawed portion at pp. 26-27).
What might be termed blatant is the court’s persistent violation of rudimentary due process: counsel has the right to due process in the form of notice and opportunity to be heard before the court strips him of his property (not to say his reputation). That is the bare minimum, even if the alleged briefing transgression is likened to summary contempt. E.g., Matter of Contempt in: State v. Kruse, 194 Wis.2d 418, 435, 533 N.W.2d 819 (1995) (“in the context of a summary contempt proceeding, the contemnor must be afforded a right of allocution”).
Might not hurt to recall the now apparently forgotten caution issued by the supreme court in Anderson v. Circuit Court for Milwaukee County, 219 Wis. 2d 1, 9-10, 578 N.W.2d 633 (1998):
¶ 22. A court should use caution in imposing sanctions against attorneys. See Strong v. Brushafer, 185 Wis. 2d 812, 822, 519 N.W.2d 668 (Ct. App. 1994). Mistakes by attorneys can often be corrected without sanctions if they are isolated mistakes resulting from inexperience, inadvertence or misunderstanding. See Brushafer, 185 Wis. 2d at 822 (citing SCR 60.01(7) that “[a] judge should utilize opportunities to criticize and correct unprofessional conduct of attorneys and counselors, brought to his or her attention ….”). Furthermore, circuit courts should tailor sanctions to the severity of the misconduct.
¶ 23. Arbitrary action by a circuit court undermines attorney and public confidence that they will receive fair treatment by the circuit court….
To elaborate the obvious, the perception of “fair treatment” by the court of appeals is equally vital to “attorney and public confidence” in the judicial system.