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  • Appellate Practice Section requests permission to file amicus curiae brief

    Adam Korbitz

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    (State ex rel. Office of the State Public Defender v. Wisconsin Court of Appeals, Appeal No. 2010AP387)

    Jan. 31, 2011 – Pursuant to Article VII, Section 2(a) of the State Bar of Wisconsin Bylaws, the Appellate Practice Section (APS) of the State Bar of Wisconsin has submitted a request to the Board of Governors for authorization to file an amicus curiae brief in the pending Wisconsin Supreme Court case of State ex rel. Office of the State Public Defender v. Wisconsin Court of Appeals, Appeal No. 2010AP387.

    The section’s request sets forth the following statement facts: 

    This appeal arises out of the postconviction motion filed by the State Public Defender (SPD) on behalf of Gregory K. Nielsen in State v. Gregory K. Nielsen, Racine County Case No. 08-CF-982.  The motion argued that the circuit court erred when it failed to explain the rationale for the sentence it imposed, when it failed to explain why it rejected the sentence recommended in the pre-sentence investigation report and by imposing a sentence that was excessive.  The court denied the motion.

    Mr. Nielsen took an appeal from the judgment of conviction and from the order denying the postconviction motion.  The appellant’s brief contains the parties’ arguments to the trial court as well as the points mentioned by the court before imposing sentence, with appropriate citations to the appellate record.  In the appendix to the brief, Mr. Nielson’s attorney provided, among other things, photocopies of the three transcript pages in which the court announced what it was considering in pronouncing sentence.

    The court of appeals ultimately affirmed the conviction.  The opinion went on, however, to impose a $150 “penalty” upon the SPD because, in its view, the three pages of the transcript included by the SPD in its appendix failed to contain material “essential to an understanding of the issues” raised in the appeal as required by Wis. Stat. section 809.19(2)(a).  Because of the failure to include additional portions of the transcript, the court of appeals ruled that the SPD had filed a “false” certification.  The court stated:

    Notably, the appellant’s appendix includes only a select portion of the sentencing court’s pronouncement and excludes that portion where the court discussed these aspects of Nielsen’s character.  The appellant’s brief contains the required certification by staff counsel from the Office of the State Public Defender that the appendix contains the “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.”  See Wis. Stat. Rule 809.19(2)(a).  By omission of the entirety of the sentencing court’s remarks, the certification is false.  The false certification and omission of essential record documents in the appendix places an unwarranted burden on the court and is grounds for imposition of a penalty.  State v. Bons, 2007 WI App 124 301 Wis. 2d 227, 731 N.W.2d 376; see also Rule 809.83(2).  Accordingly, we sanction the Office of the State Public Defender and direct the payment of $150 to the clerk of this court within thirty days of the release of this opinion.

    The APS believes that the Wisconsin Supreme Court should consider the matter on the merits in order to provide clear and fair standards for the imposition of sanctions on litigants and counsel in the appellate courts, including the process by which counsel may be heard on the proposed sanction prior to its imposition.

    The section’s request also sets forth the following principles of law to be resolved on appeal:

    1. Does the court of appeals’ practice of imposing monetary sanctions, summarily in its written decisions, for what the court deems to be violation of court rules regarding appendices in appellants’ briefs, violate due process? 
    2. Does the court of appeals’ practice of imposing monetary sanctions for what it characterizes as ethics violations for filing a “false certification” when the court’s subjective view of what should have been included in an appendix does not match an appellant’s attorney’s subjective view, violate due process and impermissibly circumvent or supplant the procedure for resolving ethics issues established by this court by its creation of the Office of Lawyer Regulation? 
    3. Is Wis. Stat. Rule 809.19(2) Appendix, unconstitutionally vague on its face or as applied for purposes of imposing monetary sanctions?

    The proposed APS amicus brief supporting the petition for review will argue that the appeal meets the criteria for review under Wis. Stat. § 809.62(1r).  If the petition is granted, the APS amicus brief will address the points raised above and will argue that a litigant or its counsel should be given notice and an opportunity to respond, prior to the imposition of a sanction, when a court concludes procedural or substantive rules have been violated on appeal. The APS believes that its position is consistent with Howell v. Denomie and Wis. Stat. section 809.83(2), as well as other state and federal authority.

    Rationale for section involvement: 

    The purposes of the State Bar are, among other things, “to aid the courts in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence, and public service and high standards of conduct . . .”  SCR 10.02(2).  One purpose of the Appellate Practice Section is “to further develop the appellate process in state and federal courts.”  Appellate Practice Section Bylaws, Art. I, § 2.  The APS Board of Directors believes that the proposed amicus brief would be consistent with these State Bar and the Appellate Practice Section objectives.

    If you have any questions or comments please send them to: pubaffairs@wisbar.org by noon on Thursday, Feb. 3, 2011. Or contact Adam Korbitz, Government Relations Coordinator at (608) 250-6140 or org akorbitz wisbar wisbar akorbitz org .


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