Court unhappy with citation problems

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Over the summer, the Court of Appeals issued four decisions involving criminal cases, both published and unpublished, sanctioning counsel for various infractions.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In State v. Kubat, a one-judge unpublished opinion, the Court (District III), sanctioned counsel from both parties.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 State v. Zurkowski, 2009AP929 at ¶23 (unpublished), quoting State v. Bons, 2007 WI App 124, ¶23, 301 Wis.2d 227, 732 N.W.2d 367.

In another unpublished decision, this time from District II, the Court handed down a $150 sanction to the state, which was the appellant, for failing to include the trial court’s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.