Wisconsin Supreme Court hears oral argument in attorney sanctions
Petitioners want a show cause hearing before an appeals court judge can
make summary conclusions that a rule of appellate procedure has been
By org jforward wisbar 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) 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.
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
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
sanctions against attorneys: Wisconsin Supreme Court asked to rule on
due process rights of lawyers – WisBar InsideTrack,
Feb. 16, 2011