Wisconsin Supreme Court hears oral argument in attorney sanctions case

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 7, 2011 – The Wisconsin Supreme Court heard oral arguments yesterday (Oct. 6) on whether an appeals court sanction against an attorney violated due process of law. The underlying issue pits lawyers against the state’s appeals court judges.

The State Public Defender’s Office (SPD) appealed to the supreme court in State v. Nielson, 2010AP000387, after the District II Wisconsin Court of Appeals imposed a fine of $150 (through summary disposition) against an assistant SPD for a violation of Wis. Stat. section 809.19(2)

Section 809.19(2) states, in pertinent part, that an appellant's brief “shall 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.”

The assistant SPD in the case filed a post-conviction motion for his client, along with an appendix that included a three-page excerpt of the circuit court’s sentencing pronouncement. The attorney certified the sufficiency of the appendix as required by section 809.19(2)(b).

The appeals court ruled, in a footnote to its summary disposition order, that the excerpted portion of the pronouncement provided to the appeals court was insufficient under section 809.19(2), and thus the attorney filed a false certification of sufficiency.

On review to the state supreme court, SPD attorney Joseph Ehmann argued that imposing a sanction against an attorney without giving notice or an opportunity to be heard violates the attorney’s right to due process before depriving the attorney of liberty or property.

Oral argument

The SPD primarily challenges the imposition of monetary sanctions in formal written opinions based on summary conclusions that a rule of appellate procedure has been violated.

In his brief, Ehmann noted 23 instances of attorney sanctions under 809.19(2), including at least 17 in the past year. He said sanctions are growing exponentially. The State Bar’s Appellate Practice Section filed an amicus brief in support of the SPD’s position.

At oral argument, Ehmann asked the supreme court justices to acknowledge the due process rights of attorneys by requiring a show cause hearing before the imposition of sanctions are announced publicly through orders or opinions.

“What’s critical is that you get an opportunity to challenge before the judge makes a conclusion that the attorney made an error,” Ehmann argued.

He noted that attorneys are making a professional judgment call about the limited portions of the record essential to an understanding of the issues raised. “I can’t certify what [the court] wants,” said Ehmann, explaining that attorneys certify what they believe is sufficient.

Noting the “miniscule” amount of sanctions imposed and the thousands of appeals filed per year, Justice Patience Roggensack suggested the rule is working without confusion.

“I have a hard time understanding that the rule is not understandable to the practicing bar,” said Justice Roggensack, who also wondered why a motion for reconsideration is not enough to give attorneys an opportunity to contest a sanction.

“I have some concern about adding another procedure that the court of appeals [would be] required to do, rather than keeping the burden on the attorney which is where the statute currently places it,” Justice Roggensack said.

Ehmann argued motions for reconsideration are not adequate to protect a lawyer’s predeprivation rights because a client may resist such a motion, and the lawyer must do what the client wants. “If the client didn’t want me to do it, I can’t do it,” Ehmann said.

Thomas Hruz, appearing on behalf of the State Bar’s Appellate Practice Section, reiterated Ehmann’s concerns and said the issue is of great importance to civil lawyers too. He said members just want a process that is fair before monetary sanctions are imposed.

Beth Hanan, of Gass Weber Mullins, represented the appeals court. She argued that the current rule works, and attorneys already have a process to challenge sanctions.

“It’s the court of appeals position that what the public defender and perhaps the appellate practice section requests is something that already exists,” said Hanan, who argued that reconsideration motions are sufficient to meet due process requirements.

Related

Court sanctions against attorneys: Wisconsin Supreme Court asked to rule on due process rights of lawyers – WisBar InsideTrack, Feb. 16, 2011