The Wisconsin Court of Appeals can’t brand an attorney a liar without giving the attorney a chance to challenge that label, according to a Wisconsin Supreme Court decision Tuesday.
Specifically, the justices concluded, when the Court of Appeals is considering imposing a sanction for filing a brief with a deficient appendix, it should issue an order directing counsel to show cause why a violation of the rules should not be found and why the attorney should not be sanctioned.
Gregory K. Nielsen challenged the circuit court’s rationale for sentencing. In an unpublished decision, the Court of Appeals wrote in a footnote that Nielson’s counsel, an assistant public defender, did not include all the relevant portions of the transcript. The appellate court imposed a sanction of $150 on the State Public Defender’s Office after finding the appendix deficient and the attorney’s certification of the appendix to be “false.”
The SPD objected to the summary procedure used by the Court of Appeals in finding a rules violation and sanctioning the lawyer without giving notice to counsel and without giving counsel an opportunity to be heard in writing.
In its Nov. 1 decision, the state Supreme Court sided with the SPD, remanding with directions in a unanimous opinion penned by Chief Justice Shirley Abrahamson.
At issue was an alleged violation of § 809.19(2)(a), providing in relevant part that the appellant’s brief must include “a short appendix containing, at a minimum, the findings or opinion of the circuit court, limited 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.”
In addition, § 809.19(b) requires a signed certification that the appendix meets the content requirements, including “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.”
The appendix rule was proposed by the Judicial Council and adopted by the Supreme Court in 1978, and mirrors rules in place at the U.S. Supreme Court and the U.S. Court of Appeals for the Seventh Circuit. As for the certification requirement, that was added in 2005.
The SPD focused on the subjective nature of the rule and that the lawyer had acted in good faith. Of the 46-page transcript, the court’s decision spanned eight pages, three of which were provided by Nielsen’s appellate attorney.
In contrast, the Court of Appeals stressed its heavy work load and reliance on appendices to help do its work, pointing out that most lawyers comply with the rules and that they are very careful in imposing sanctions. Annually since 2005, sanctions had been imposed in less than one percent of the appeals where appendices were filed.
The appellate court suggested a motion for reconsideration or seeking review by the state Supreme Court as potential recourses for attorneys they have found to be outside the rules.
But Wisconsin’s high court concluded that would be problematic because litigation about the content of the appendix and the sanctions would remain attached to the merits of the case.
Abrahamson wrote: “[T]his case no longer involves Gregory K. Nielsen. It has morphed into an altogether different dispute. The two disputes — Nielsen’s and counsel’s — should be untethered from one another to avoid any risk of confusion or conflict. If the court of appeals had granted Mr. Nielsen a new sentencing, the defense attorney would want to appeal the monetary sanction to this court, but the client would be expecting the litigation to move back to the circuit court. …
“The significance of counsel’s interests, especially counsel’s reputational interests, makes us wary of the risk, however slight, that an attorney who acts diligently, reasonably, and in good faith might unfairly be labeled a liar. In an age of instantaneous transmission of information, reputational damage may be inflicted the moment an opinion and order is released that contains an announcement that an attorney has filed a ‘false’ certification.”
The order to show cause procedure is preferable, the court reasoned, because it would give attorneys the opportunity to explain before the appellate court reaches a final decision.
Also, the procedure allows attorneys to argue disputes about appendices without distracting from, delaying or undermining the clients’ causes.
And finally, the court stated, this procedure will not interfere with the Court of Appeals’ ability to effectively manage its high volume of cases, because the time the Court of Appeals takes to issue and decide an order to show cause is no longer then the time it now takes the appellate court to find a violation, order a sanction and then address a motion for reconsideration.
“Attorneys are given a meaningful opportunity to protect their professional reputation and avoid monetary sanctions,” Abrahamson concluded. “Attorneys who truly deserve censure and sanction will still get their just deserts.”
The Court of Appeals was represented by Beth Ermatinger Hanan of Gass Weber Mullins LLC in Milwaukee. Hanan responded to Tuesday’s decision by saying, “We’re glad the Wisconsin Supreme Court recognized there is no constitutional flaw in the existing procedure and anticipate that the attention this case brought to the appendix rule will enhance the already high compliance rate.”
Joseph Ehmann, assistant state public defender in Madison, could not immediately be reached for comment.
Marla Stephens, appellate division director for the SPD, said, “The fact that the Appellate Section of the State Bar weighed in as an amicus and participated in argument is an indication that this is an important case for all appellate practitioners. It’s a rule that we strive to comply with, and sometimes it is fuzzy around the edges.”
Stephens said it is a good idea to give people a chance to explain before putting something in a document that says they filed a false certification or didn’t follow a rule.
“We absolutely understand the frustrations the court has,” she said, “and in reading an opponent’s brief. We’re not saying they don’t have the right to demand an appendix that’s helpful to them. All we’re saying is, sometimes we might not be able to figure out what that is. And if we didn’t get it right, give us a chance to explain.”
Thomas Hruz of Meissner Tierney Fisher & Nichols SC in Milwaukee was one of four co-authors of the amicus brief filed by the Appellate Practice Section.
“We’re happy with the outcome,” he said, “and the court’s acknowledgement of the need for litigants to have the opportunity to show cause to explain their conduct before sanctions are issued. We think it’s a fair result for the courts and parties who practice before them.”
CASE: No. 2011 WI 94, In the matter of sanctions imposed in State v. Nielsen