Feb. 16, 2011 – Appellate lawyers in Wisconsin may soon learn whether an appeals court can impose sanctions against a lawyer without giving the lawyer an opportunity to be heard.

The Office of the State Public Defender (SPD) on Jan. 21 filed a petition with the Wisconsin Supreme Court to review an attorney sanctions issue that stems from a recent criminal appeals case. In that case, an appeals court judge imposed a monetary fine of $150 against the State Public Defender representing the appellant for failure to comply with Wis. Stat. section 809.19(2), which requires an appellant’s brief to include an appendix with certain information.

According to the petition filed by First Assistant State Public Defender Joseph Ehmann, there have been 23 known cases of a judge imposing sanctions for failure to comply with section 809.19(2)(a), including at least 17 in the past year. Those numbers, Ehmann notes in his petition, do not include cases that were resolved by summary order.

The State Bar of Wisconsin’s Appellate Practice Section supports the SPD’s petition and obtained approval from the State Bar Board of Governors Feb. 4 to file a petition supporting review of the case and an amicus brief should the court accept it for review.

Milwaukee criminal defense attorney Raymond Dall’Osto announced his support to authorize an amicus brief filing at the State Bar board meeting. A court of appeals judge recently imposed a monetary sanction against Dall'Osto.

“We always try to do our best in including all information that is necessary, but if we miss something, then hopefully the court would bounce that back to us to fix before imposing sanctions,” Dall’Osto said. “Right now, sanctions are the first step. A warning seems appropriate for those attorneys who in good faith try to complete the appendices correctly.”

Dall’Osto said he wasn’t sure why sanctions have increased seemingly “out of the blue.” But Gregory Peterson, deputy chief judge for the District III Wisconsin Court of Appeals, said there’s been an uptick in sanctions because judges are seeing more violations.

Peterson noted that judges in District II (where Chief Judge Richard Brown sits) began raising the issue of problematic appendices at judges’ meetings, which brought more attention to it among judges in other districts. Administration of justice is a primary concern, Peterson says.

“We rely on an accurate appendix when reading and evaluating the briefs since we don’t have the full record in front of us,” Peterson said. “It’s frustrating when it’s not complete.”

Through its petition, the State Public Defender asks the Wisconsin Supreme Court to decide whether the court of appeals’ practice of imposing monetary sanctions without notice for what it deems to be a violation of court rules violates due process.

The facts and argument

Section 809.19(2)(a)-(b) requires the appellate attorney to certify that his or her appellate brief includes 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, and a copy of any unpublished opinion.”

In 2009, a SPD filed a postconviction motion on behalf of his client Gregory Nielson, claiming the Racine County Circuit Court erred when it failed to explain its rationale for imposing the sentence. The SPD filed the required appendix, which included a three-page transcript excerpting the circuit court judge’s remarks at Nielson’s sentencing hearing.

Upon review, the appeals court concluded that failure to include the entire transcript of the sentencing court’s remarks placed an unwarranted burden on the court and amounted to a false certification under section 809.19(2)(b). The court imposed a $150 fine under section 809.83(2).

Ehmann, representing the SPD on the cause, says that section 809.83 “should not be read to authorize imposition of summary sanctions because doing so would render it unconstitutional.”

In his petition, he argues that to the extent that State v. Bons, 2007 WI App 127, 301 Wis. 2d 227, is interpreted to authorize imposition of summary sanctions, “that aspect of the case was wrongly decided and should be overturned.”

The petition states that the practice of imposing sanctions without first providing notice and an opportunity to be heard violates due process of law and asks the court to vacate the sanctions aspect of the opinion in the underlying case, State v. Nielson, 2010AP000387.

“The present case vividly illustrates why notice and opportunity to be heard are necessary,” Ehmann wrote in his petition. “Notice and opportunity to be heard would have allowed the agency or appointed attorney to explain exactly why the court was wrong in its allegation that the appendix content and certification rules were violated.”

The petition also asks the court to determine whether section 809.19(2) is unconstitutionally vague on its face or as applied to the case, and whether an appeals court circumvents the procedure for resolution of ethics issues when concluding that “false certifications” violate the ethical duty of candor to the tribunal under Supreme Court Rule 20:3.3.

The supreme court is expected to rule this spring on whether it will grant review of the case.

By Joe Forward, Legal Writer, State Bar of Wisconsin

Related:

State Bar Board of Governors authorizes amicus brief in lawyer sanction case, approves Keller reduction amount– Feb. 7, 2011

Appellate Practice Section requests permission to file amicus curiae brief– Jan. 31, 2010