State Bar of Wisconsin

Message From the Chair – Goodbye Susan

By Anne Berleman Kearney, Appellate Consulting Group

Happy summer all,

The arrival of July means that I write this column as the new chair of the Appellate Practice Section. I welcome the opportunity to roll up my sleeves and move ahead with all of you. I look forward to a year filled with interesting and informative programs of the live and webinar variety; a continued upgrading of our web-based means of sending you news on rule changes, issues, and other programs that affect our appellate practice; and work on an initiative to gather information resources for the better provision of appellate pro bono services. I hope that you will join with us this year in these efforts.

But I wish primarily here to thank our outgoing chair, Susan Tyndall, for her leadership this past year. Susan is a hard act to follow. Susan has had a great effect on the Section in so many ways, but particularly in the excellent programs that she has organized and the warm relationships that she has fostered within our Section and with other sections. Susan has the gifts of intelligence and wit that make it a real pleasure to work with her.

Not surprisingly, many others in our Section feel the same way. As past chair, Barbara Janaszek put it, “Susan is a delight to work with – always well-prepared, in good spirits, and willing to take the initiative.”

Colleen Ball, also a past chair of the Section, recalls that Susan has been with the Appellate Practice Section from its beginnings. Colleen writes:

“Susan helped bring the Appellate Practice Section to life about 11 years ago. Although she had also just given birth to her third child, she proceeded to speak at the first multi-hour State Bar convention program devoted exclusively to appellate practice. Afterwards, she took her newborn son to the Capitol for the Supreme Court’s open house and tour of chambers. When Justice Ann Walsh Bradley saw Susan’s infant, she asked: ‘Is that your first?’Sue answered: ‘No, the third.’ To which Justice Bradley replied: ‘Once you have 3 you might as well have 10 because it really isn’t any more work.’

“Susan took the words to heart by delivering and nurturing 7 additional and very demanding offspring – just not the human variety. Their names are: (1) the 2005 Appellate Advocacy workshop; (2) Chairmanship of the program committee, 2006-2008; (3) the 2006 Supreme Court Practice convention program; (4) the 2007 District IV Appellate Practice in Your District seminar; (5) the 2008 Practical Aspects of an Appeal convention program; (6) Chairmanship of the nominating committee, 2007-2008; and (7) Chairmanship of the Appellate Practice Section, 2008-2009.

“Susan has managed her large brood superbly and, most appreciated by all, with a terrific sense of humor.”

Finally, Salud Garcia, Program Coordinator for the State Bar of Wisconsin, who does incomparable work for our Section and many others, also had a few words to share:

“Every APS chair I’ve worked with has had a very focused attention to detail, strong work ethic, and sense of humor. Some chairs have a more pronounced leaning toward one of the three, of course. When I think of the year with Susan, my first thought is of the different things she’s said or done that made me laugh. During her year as chair, the Section has hummed along, she’s dealt with difficult situations, and the Section has improved, as it always does. What a talent Susan has to do very good work and leave a lasting impression of productivity and glee.”

We all join in thanking you, Susan, for a wonderful year. Best of luck with all your new projects!

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Supreme Court Approves Citation of Unpublished Opinions

By Theresa Owens, Executive assistant to Chief Justice Shirley S. Abrahamson

The Wisconsin Supreme Court has authorized the citation of unpublished Court of Appeals opinions authored by a member of a three-judge panel or by a single judge for its persuasive value. The new citation rule, Wis. Stat. § (Rule) 809.23(3), became effective July 1. The rule excludes from citation per curiam opinions, memorandum opinions, summary disposition orders and other orders. The rule also limits citation to unpublished opinions issued on or after July 1, 2009. The court’s order issued Jan. 6, 2009, is available at the court’s website.

The Supreme Court ordered that a committee be convened to gather information on the impact of the rule amendment. Over a three-year period the committee will compile statistics and analyze trends of filings and dispositions as they relate to unpublished opinions. The committee members are: Justice David T. Prosser Jr., Supreme Court; Judge Edward R. Brunner, Court of Appeals, District 3; Jean Bousquet, chief information officer (CCAP); Peg Carlson, chief staff attorney, Court of Appeals; Jane Colwin, State Law Librarian; Joseph Ehmann, first assistant state public defender; Michael Heffernan, Foley & Lardner; Gregg Herman, Loeb & Herman; Theresa Owens, executive assistant to the chief justice; David Schanker, clerk of the Supreme Court and Court of Appeals; April Southwick, attorney, Judicial Council; Christopher Wren, assistant attorney general, Criminal Appeals Division; and David Ziemer, Wisconsin Law Journal.

In May, the committee submitted its interim report to the Supreme Court. The interim report details the statistics that the committee will compile and review in preparing its final analysis for the court. The committee will review the number of per curiam and three-judge opinions filed, petitions for review filed and granted on unpublished opinions, and motions to publish filed before and after the effective date of the rule amendment. The committee determined that guidance on the new citation rule would be beneficial. Appendix A of the interim report provides a recommended citation format and instructs attorneys and parties to list unpublished opinions in the table of cases and include a copy of the opinion in the appendix to the brief or petition for review or attached to the motion in which the unpublished opinion is cited. It is anticipated that rule petitions will be filed seeking to require a party citing an unpublished opinion to list the opinion in the table of cases of the brief and include a copy in the appendix. The committee will report its findings on the operation of the rule to the Supreme Court in the fall of 2011.

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Notes from the Clerk's Office

By David R. Schanker, Clerk, Supreme Court/Court of Appeals

July 1 of this year brought two important changes for appellate practitioners – the advent of appellate e-filing and the citation of unpublished opinions.

Appellate E-filing. By now, Wisconsin attorneys should be aware that the e-filing of appellate briefs, no-merit reports, and petitions for review is mandatory under the amended Rules of Appellate Procedure. The courts’ website contains a wealth of information about the practicalities of e-filing and the requirements of the new rules. Just go to www.wicourts.gov and click on the button on the right side of the screen labeled “Appellate court eFiling.” There you will find two online presentations – one on registering for the system and one on using the system – as well as links to the new rules and to frequently asked questions. The e-filing system can also be accessed from this page.

Text Search of E-Filed Briefs. E-filed briefs will now be available to the public through the Wisconsin Supreme Court and Court of Appeals Case Access (WSCCA) case search. In the past, users were able to view the opinions in disposed-of cases on WSCCA, but users will now be able to view briefs as they are filed. In addition, the new “Document Search” feature (on the right side of the banner at the top of the screen) allows users to enter a word or phrase and search the entire database of e-filed briefs. The search will retrieve a list of all briefs containing the word or phrase, and each brief can be viewed and searched.

Unpublished Opinions. The citation of unpublished opinions, now permitted under Wis. Stat. § 809.23(3), presents a number of practical challenges for appellate practitioners. Here are a few tips on applying the new rules:

1. Appellate briefs and petitions for review. In the Table of Cases in appellate briefs and petitions for review, unpublished opinions cited to the court should be listed alphabetically under a separate heading (e.g., “Unpublished Opinions” or “Unpublished Cases Cited”).

2. Citation format. When citing an unpublished opinion in a pleading before any court, a party should include the case caption, docket number, unpublished designation, paragraph number, court, and date. For example: Leonard v. Johnson, No. 2008AP3730, unpublished slip op., ¶5 (Wis. Ct. App. July 23, 2009). In the alternative, a party may use an electronic citation indicating where the opinion may be readily accessed online. See The Bluebook, A Uniform System of Citation R. 18.1.1, at 151-52 (Columbia Law Review Ass’n et al. eds., 18^th ed. 2005). Please note: Because the Public Domain Citation (PDC) for an unpublished opinion refers to a table, and not to the individual opinion, PDC numbers should not be used when citing to an unpublished opinion.

3. Copy of opinion for the court. The copy of cited unpublished opinions required under § 809.23(3)(c) should be placed in the appendix to any brief or petition for review or attached to a motion in which the unpublished opinion is cited.

4. Electronic briefs, petitions for review, and appendices. In electronic documents filed with the appellate courts beginning July 1, 2009, pursuant to §§ 809.19(8)(a)4. and 809.62(4)(b), (c), and (d), a copy of any unpublished opinions cited to the court should be included in the electronic appendix. Hyperlinks to unpublished opinions may be included in the electronic brief or petition, but if an electronic version of the appendix is provided, a hard copy of the unpublished opinion must be scanned in as part of the appendix along with the other appendix documents.

5. Availability of unpublished opinions. Access to unpublished opinions is available through the web sites of the Wisconsin courts (www.wicourts.gov) and the State Bar of Wisconsin (www.wisbar.org/fastcase), Westlaw (www.westlaw.com), LexisNexis (www.lexisnexis.com), the State Law Library (http://wilawlibrary.gov), Loislaw (www.loislaw.com). The Wisconsin Law Journal and the State Bar’s free weekly Caselaw Express service also make available summaries of unpublished opinions with links to full text.

Keep in mind that only unpublished opinions issued after July 1, 2009, may be cited.

Please do not hesitate to contact the Clerk’s Office at (608) 266-1880 with any questions regarding the new rules.

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Pro Bono Plaudits

By Colleen D. Ball, Wisconsin State Public Defender

In April 1989, the New York Times spotlighted a new form of bait dangled by large law firms to lure the nation’s top law students. In addition to “hedonistic junkets to rock concerts, fancy dinners, and stadiums,” big firms were offering summer clerks the opportunity to work for the indigent.¹ Fast forward 20 years. Pro bono work is all the rage. The ABA Journal reports that, due to the economic meltdown, some large firms are shifting idle lawyers to public interest work as an alternative to layoffs.² Indeed, some lawyers have chosen to take substantial pay cuts to work for non-profit organizations.

Needless to say, pro bono opportunities abound in Wisconsin too. The Appellate Section’s Pro Bono Appeals Program offers a variety of ways for lawyers to help the indigent and sharpen their appellate skills. Just ask the lawyers listed below. When called upon to take a pro bono appeal, they did not say: “I’m swamped,” “I don’t know that area of law,” or “We don’t represent prisoners.” They said: “yes,” and represented their clients admirably.

Daniel J. La Fave and Cheri L. Baden, Quarles & Brady LLP

Dan is a perennial volunteer for the pro bono appeal program. For this year’s venture he and his associate, Cheri, represented The Benedict Center, Disability Rights Wisconsin, and the Milwaukee Branch of the NAACP as amicus parties in Christensen v. Sullivan, Appeal No. 2006AP803. At issue is the circuit court’s authority to award remedial sanctions in a case where the Milwaukee County Sheriff intentionally committed over 16,000 violations of a consent decree provision forbidding it from holding inmates in the county jail for longer than thirty hours without being assigned to a bed. The Sheriff’s Department also forced inmates to sleep next to urinals and sit on floors where bodily fluids had been spilled. As this article is being written, Dan and Cheri are still waiting on the supreme court’s decision. But either way, Cheri says “the case provided a great opportunity to work with a number of local civil rights organizations on an issue of significant public importance.”

John B. Rhode, Sommer, Olk, Schroeder & Payant, LLP

John agreed to help a totally and permanently-disabled man appeal a divorce judgment and, specifically, the trial court’s unfair maintenance award. Gaffney v. Gaffney, Appeal No. 2008AP2297. Why did he take the case? John says: “It felt good to help someone who had no other options and to advocate a position that felt so right.” Although the court of appeals ultimately ruled against his client, John remains keen for another pro bono appointment.

David E. Frank, Reinhart Boerner Van Deuren SC

David accepted a Seventh Circuit Court of Appeals appointment to represent an inmate on a habeas corpus appeal. David argued that his client was denied effective assistance of counsel when his attorney, among other things, gave him inaccurate advice in connection with the State’s plea offer. Watson v. Anglin, 560 F.3d 687 (7^th Cir. 2009). The Seventh Circuit held that it was objectively unreasonable for trial counsel to underestimate the possible sentence that his client was facing. However, it affirmed the district court decision on the grounds that the inmate was not prejudiced by the inaccurate advice.

Eric G. Barber, Perkins Coie LLP

In Eric’s case, the petitioner persuaded the circuit court to reopen and vacate an order of placement and support due to lack of personal jurisdiction, and the State appealed. State v. Ralph D., Appeal No. 2008AP1790. The petitioner, who by then was indigent, unrepresented, and living in Rhode Island, did not respond to the State’s brief or the court of appeals’ order for compliance within 5 days. So the court of appeals summarily reversed the circuit court’s order without addressing the absence of personal jurisdiction. That’s when Eric stepped in. He filed a reconsideration motion offering to brief the merits and due process implications of the appeal for the petitioner, but the court of appeals denied it. Undaunted, Eric filed a petition for review, which was also denied.

Pro bono appointments are not guaranteed winners, but they are vitally important – both to the indigent litigant and to the courts. As Richard Brown, Chief Judge of the Court of Appeals, explains: “Not infrequently, we encounter a case where we see an issue or issues that may be of publishable value, but a party in the case is pro se and the brief of the party is wanting. Most of the time – but not always – these are civil cases where it is apparent that the person just cannot afford an attorney. The pro bono appeals program provides us a way to arrange representation for that person so that the very real, arguable merit of the party's position can be advanced in its most persuasive and informative light.”

Thank you to all of the attorneys and firms participating in the Appellate Section’s Pro Bono Appeals program during the past year. And if you or your law firm would like to put idle hands to public interest work, call or email the Appellate Practice Section’s pro bono appeals coordinator: Colleen D. Ball, Wisconsin State Public Defender, (414) 227-3110.

Endnotes

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Court Jesters: The Lighter Side of Appellate Practice

By Nancy A. Kopp, Wisconsin Supreme Court Commissioner

While judicial opinions are usually rather staid, some fact situations virtually cry out for a lighter touch, and occasionally judges respond by waxing poetical. Witness these three examples.

In Fisher v. Lowe, 122 Mich. App. 418 (1983), the plaintiff appealed the entry of summary judgment in favor of the defendant. The plaintiff had sued in tort for damage to his “beautiful oak tree” caused when the tree was struck by the defendant’s car. In an opinion authored by Judge Gillis, the Michigan court of appeals affirmed by saying:

We thought that we would never see
A suit to compensate a tree.

A suit whose claim in tort is prest
Upon a mangled tree’s behest;

A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;

A tree that faces each new day
With bark and limb in disarray;

A tree that may forever bear
A lasting need for tender care.

Flora lovers though we three,
We must uphold the court’s decree.

In Anderson Greenwood and Company v. National Labor Relations Board, 604 F.2d 322 (5^th Cir. 1979), the appellate court reversed the trial court’s decision holding that the NLRB was required to provide an employer with certain witness statements taken during the NLRB’s investigation of a challenged representation election. The lower court’s decision was consistent with Robbins Tire and Rubber Co. v. N.L.R.B., 563 F2d 724 (5^th Cir. 1977), but the U.S. Supreme Court subsequently reversed Robbins Tire. Before Anderson Greenwood reached the 5^th Circuit, that court decided another case raising the same issue, Clements Wire & Mfg. Co., Inc. v. NLRB, 589 F.2d 894 (5^th Cir. 1979), and Clements Wire resolved the issue consistent with Robbins Tire. Presented with party names like “Tire” and “Wire,” Judge Goldberg wrote:

Our decision in Robbins Tire;
Interpreting Congresses’ reported desires,
Exposed workers to their bosses’ ire.
The High Court, avoiding this sticky quagmire,
And fearing employers would threaten to fire,
Sent our holding to the funeral pyre.

Then along came Clements Wire,
Soon after its venerable sire.
To elections, Wire extended Tire,
Leaving app’llees arguments higher and drier.
Now to colors our focus must shift,
To Green wood and stores that are Red.
We hope this attempt at a rhyme, perhaps two,
Has not left this audience feeling too blue.
Since Clements Wire directly controls our decision
here, we reverse.

Finally, in United States v. Batson, 782 F.2d 1307 (5^th Cir. 1986), the government sought repayments under the cotton set-aside program. Judge Goldberg again took to verse at the beginning and end of the court’s opinion affirming a judgment in favor of the government but reversing the trial court’s ruling regarding the government’s entitlement to interest:

Some farmers from Gaines had a plan.
It amounted to quite a big scam.
But the payments for cotton
began to smell rotten.
Twas a mugging of poor Uncle Sam.
The ASCS and its crew
uncovered this fraudulent stew.
After quite a few hearings,
the end is now nearing –
It awaits our judicial review.

. . .   

With thought and comment most candid,
affirmance shall now be commanded. But the court below missed
the prejudgment interest:
The cases are therefore remanded.

There has been no word whether Wisconsin appellate courts intend to try out their rhyming skills.

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Thank You, CLE Books Authors

The State Bar of Wisconsin CLE Books Division thanks the following Appellate Law Section members for their contributions of time and expertise over the last six months:

• Kenneth B. Axe (Wisconsin Business Advisor Series: Business Organizations)
• Paul Bargren (Annual Survey of Wisconsin Law 2009)
• William M. Conley (Attorney’s Guide to the Seventh Circuit Court of Appeals)
• Cynthia J. Franecki (Annual Survey of Wisconsin Law 2009)
• Thomas L. Frenn (Wisconsin Business Advisor Series: Business Organizations)
• Scott W. Hansen (Civil Procedure Before Trial)
• Michael S. Heffernan (Wisconsin Attorney’s Desk Reference)
• Dean P. Laing (Annual Survey of Wisconsin Law 2009)
• David M. Lucey (Wisconsin Employment Law)
• Barbara A. Neider (The Law of Damages in Wisconsin, V. 2)
• Richard K. Nordeng (Annual Survey of Wisconsin Law 2009)
• Angela Raye Olson (Wisconsin Attorney’s Desk Reference)
• Katherine D. Spitz (Annual Survey of Wisconsin Law 2009)
• Donald J. Wall (Attorney’s Guide to the Seventh Circuit Court of Appeals)

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