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Court unhappy with citation problems

Amelia L. Bizzaro

Amelia L. Bizzaro

Over the summer, the Court of Appeals issued four decisions involving criminal cases, both published and unpublished, sanctioning counsel for various infractions. In one decision, the Court sanctioned counsel from both parties. What piqued the Court’s ire the most were false appendix certifications and, in one case, missing record citations.

The Court of Appeals’ power is limited to violations of appellate procedure found in Chapter 809. See WIS. STAT. (RULE) 809.83(2) (failure to follow the rules of appellate procedure is grounds to impose a penalty on counsel or take any other action the court considers appropriate). All of these decisions involve a violation of Rule 809.19, which makes sense, since that is the rule explaining what a brief and appendix must contain.

In State v. Kubat, a one-judge unpublished opinion, the Court (District III), sanctioned counsel from both parties. Kubat’s attorney drew a $250 sanction for his false appendix and e-filing certifications, while the state’s attorney received a $50 sanction for citing a case “for a proposition of law that cannot be found in that case.” Kubat, 2010AP509 at fn 6.

In another case about a lacking appendix, and thus a false certification, District III sanctioned appellant’s counsel $150 for including only the judgment of conviction and nothing else. “‘A judgment of conviction tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant.'” State v. Zurkowski, 2009AP929 at ¶23 (unpublished), quoting State v. Bons, 2007 WI App 124, ¶23, 301 Wis.2d 227, 732 N.W.2d 367.

In another unpublished decision, this time from District II, the Court handed down a $150 sanction to the state, which was the appellant, for failing to include the trial court’s findings or opinion, contrary to the state’s certification. See State v. Voeller, 2009AP1596. Despite the sanction, however, the Court reversed the case and remanded it for further proceedings; demonstrating, if nothing else, that failing to follow the rules of appellate procedure will not doom the case on substantive grounds

District III struck again against the appellant’s attorney in State v. Bergwin, 2009AP1151 & 2009AP1152, but this time for failing to cite the record. Bergwin is recommended for publication and, like in Voeller, the Court’s sanction was against the lawyer who obtained relief. The Court sanctioned counsel $200 for failing to include record citations to the record to corroborate the facts in the brief. Bergwin at ¶18. The Court found that it “seriously hampered” its ability to resolve the appeal, which was magnified because the respondent elected not to provide a full statement of the case. Id. See also S.C. Johnson & Son Inc. v. Morris,  2010 WI App 6, 322 Wis. 2d 766, 779 N.W.2d 19 (Court sanctions two different appellant attorneys for lacking record citations and deficient appendices, reminding them that “[w]e are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to.”)

Generally, appellate counsel should take away from these summer decisions that the Court is paying close attention to the rules of procedure, particularly when it comes to appendix certifications. There is a sense of frustration from the Court about appendices that do not help the Court understand the decisions made below, particularly when they are coupled with a certification promising otherwise. So while the appendix may be last on counsel’s mind, it appears to be on the forefront of the Court’s, and attorneys should take the time to strictly comply with the rules of appellate procedure.

Amelia L. Bizzaro is the principal at Bizzaro Law LLC and dedicates her practice to state and federal post-conviction and appellate work. She is on the board of directors for the Wisconsin Association of Criminal Defense Lawyers, a member of the state bar’s appellate practice section and is co-chair of the Milwaukee Bar Association’s Bench/Bar Court of Appeals Committee. The Wisconsin Law Journal named her one of 2010’s Up and Coming Lawyers.

One comment

  1. I sympathize with the Court of Appeals. A failure to include basic documents to help them understand the issues is simply really poor lawyering, along with being a violation of the rules. Why hurt your client’s case by failing to follow the rules? If you want to prevail you need to make it easy for the Court of Appeals to understand what happened in the trial court.

    However, on the other side, there are now at least three “certifications” that must be filed: word count, appendix and e-filing. For counsel new to appellate practice complying with all these, and all the other rules of appellate procedure, can be daunting. Likewise, in this economy people want to pay less and less for an appeal. That is no excuse for failing to follow the rules but is the reality of some situations. I would guess this is an acute problem in private SPD cases where appellate attorneys are being paid $40/hour. That is no excuse but lawyers under immense pressure to get briefs out who represent convicted criminals may not be thinking as clearly as well-paid civil counsel.

    I would be remiss if I did not point out that reading many of the briefs filed by the Wisconsin Attorney General, that they are printed on both sides of the page and are single spaced. Printing on both sides may be allowed, but single-spaced briefs are not. Again, why make it hard for the court to read your brief? Single spaced briefs are difficult to read. The AG’s office should stop doing that. Paper can be recycled, strained eyes cannot.

    What we really need is an increased dialog between our appellate court judges and those who practice appellate law. The State Bar’s Appellate Practice Section, of which I am a member, does a good job of that but it will hopefully do more. Complying with the court’s rules is common sense but perhaps it has implemented too many new rules in too short a time and it will take counsel time to catch up.

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