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Appellate Procedure – Sanctions and Inadequate Argumentation

State v. Michael E. Ballenger, 2010AP664-CR, District 3, 11/16/10

court of appeals decision (1-judge, not for publication); for Ballenger: Ryan D. Lister; Ballenger BiC; State’s Resp.

Appellate Procedure – Sanction

Ballenger’s brief’s appendix does not include any portion of the suppression motion hearing transcript—neither deputy Campbell’s testimony nor the court’s factual findings or reasoning for denying the motion.  Yet, as required by rule, counsel certified to this court that his appendix contains “the findings or opinion of the circuit court [and] portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues.”  See Wis. Stat. Rule 809.19(2)(a), (b).  “Filing a false certification with this court is a serious infraction” justifying the imposition of sanctions.  State v. Bons, 2007 WI App 124, ¶¶23-25, 301 Wis. 2d 227, 731 N.W.2d 367.  We therefore direct Ballenger’s counsel to pay $50 to the clerk of this court within thirty days of the date of this decision.

¶5 n. 3.

Sure as death or taxes, sign a false certification on appeal and you will be fined. You have nothing to gain, only $50 to lose, by testing the court’s resolve.

Appellate Procedure – Inadequate Argumentation

Appellant’s failure to address relevant caselaw or discuss the trial court’s conclusion works a waiver of his argument. ¶6, citing State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994), for idea that “appellate court may decline to address issues that are inadequately briefed; arguments that are not supported by legal authority will not be considered.” More: failure file a reply brief and thus failure to address State’s arguments is treated as concession of same, ¶7, citing Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) for the principle that “unrefuted arguments are deemed conceded.”

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