SHIRLEY S. ABRAHAMSON, C.J.
¶ 1 This is a review of an unpublished
¶ 2 The Office of the State Public Defender seeks review of part of an order
¶ 3 Today's dispute centering on footnote 2 arose in the midst of Nielsen's challenge to the sentence the circuit court imposed on him. Nielsen's argument in the court of appeals was that the circuit court's rationale for the sentence did not satisfy the requirements of State v. Gallion, 2004 WI 42, 270 Wis.2d 535, 678 N.W.2d 197.
¶ 4 The possibility of sanctions for violations of the rules governing the content of an appendix is not limited to criminal cases or to the Public Defender. This issue affects civil cases as well as criminal cases, and prosecutors as well as defense counsel.
¶ 5 Considering the interests of the court of appeals, the interests of counsel, the interests of litigants, and the effective
¶ 6 We put this suggestion in context by setting forth the rules governing the content and certification of an appellant's appendix and then by discussing the interests of the parties and how they relate to the effective administration of the judicial system.
¶ 7 Wisconsin Stat. (Rule) § 809.19(2)(a) and (b) are the focus of this review. Subsection (2)(a) governs the contents of the appellant's appendix. Subsection (2)(b) governs the appellant attorney's certification:
¶ 8 The rules governing the contents of appendices have changed over the years.
¶ 9 These words apply with equal force to the court of appeals today. We fully
¶ 10 Wisconsin Stat. § (Rule) 809.19(2)(a) was proposed by the Judicial Council and was adopted by the supreme court in 1978 upon the establishment of the court of appeals. This provision governing the contents of appellant's appendix in the court of appeals remains the same to this date.
¶ 11 As the Judicial Council Committee's Note explains, subsection (2)(a) adopted the system for appendices used by the United States Court of Appeals for the Seventh Circuit and replaced the former rule, which had required attorneys to provide a narrative explanation of trial testimony. The Judicial Council Committee's Note explains that under these new rules the appendix becomes "a very abbreviated document with only those items absolutely essential to an understanding of the case," "a useful tool to the members of the court."
¶ 12 Then Judge (now Chief Judge) Richard Brown of the court of appeals aptly expressed the purpose of the appellant's appendix as an important tool for appellate decision making as follows in a 2007 court of appeals decision:
¶ 13 The court of appeals rests its practice of imposing a sanction for failure of appellant's counsel to comply with Wis. Stat. § (Rule) 809.19(2)(a) on the simple— and correct—assertion that an appendix that complies with the rule is an invaluable resource. Even when working in chambers, it is tremendously helpful for an appellate judge to rely, at least initially, on an appendix to understand a case. A record may consist of boxes upon boxes of transcript pages and exhibits. Consulting a record is not a trivial task.
¶ 14 Wisconsin Stat. § (Rule) 809.19(2)(a) presents a contextually dependent standard for appendices, not a bright-line rule. The court of appeals is very capable, and has been very capable, of enforcing the standard in Wis. Stat. § (Rule) 809.19(2)(a) consistently and predictably. The words "short," "limited," and "essential" do not apply exactly the same way from case to case, but applying a standard to a set of facts is a central
¶ 15 Because of the value of an appendix that comports with Wis. Stat. § 809.19(2)(a), the large number of appeals filed in the court of appeals, and the need for increased compliance with the rule governing the contents of an appendix, in 2004 the chief judge of the court of appeals filed a petition with the supreme court to require certification of compliance with Wis. Stat. § (Rule) 809.19(2)(a), in the belief that "a certification requirement, similar to the form and length certification required by Wis. Stat. § (Rule) 809.19(8)(d) will result in increased compliance with renumbered Wis. Stat. § (Rule) 809.19(2)(a) and improve the quality of appendices that are filed with the court."
¶ 16 In 2005 the supreme court adopted Wis. Stat. § (Rule) 809.19(2)(b) requiring appellant's counsel to certify that the appendix complies with Wis. Stat. § (Rule) 809.19(2)(a). As the court of appeals explains in its brief before this court: "The certification rule functions as a `double-check' so that the signing lawyer will satisfy him- or herself that the appendix is complete, and not merely rely on colleagues or staff to make that assessment. The court of appeals is entitled to, and does, rely on that certification."
¶ 17 With that summary of the background of Wis. Stat. § (Rule) 809.19(2)(a) and (b), we explain what matters we do not address. We do not address the validity of Wis. Stat. § (Rule) 809.19(2). We do not address the correctness of the court of appeals' findings in footnote 2 or the imposition of the sanction. We do not address the obligations of a respondent to file a supplemental appendix when the appellant's appendix has failed to conform to Wis. Stat. § (Rule) 809.19(2)(a).
¶ 18 We do address the Public Defender's objection to the summary procedure used by the court of appeals in finding a violation of Wis. Stat. § (Rule) 809.19(2)(a), in declaring the certification false, and in imposing a monetary penalty, without giving notice to counsel and without giving counsel an opportunity to be heard in writing.
¶ 19 Counsel in the Office of the State Public Defender and other counsel contend they have serious interests at stake when the court of appeals declares a violation of the rules governing the contents of the appellant's brief and declares that a false certification has been filed. Although the monetary sanctions are modest, they are not trivial. And perhaps more importantly, publicly announcing that an attorney has violated Wis. Stat. § (Rule) 809.19(2)(a) and has filed a "false" certification could have damaging reputational effects for the individual attorney involved. The Public Defender asserts that it is unfair to call a certification "false," branding the attorney a liar, without notice to the attorney and giving the attorney an opportunity to be heard in writing.
¶ 21 According to the Public Defender, the present case provides a good example of the "subjective" and elastic nature of the rule. To comply with Wis. Stat. § (Rule) 809.19(2)(a), the Assistant State Public Defender had to provide a "short" appendix with only "limited," "essential" portions of the record. The attorney in the present case decided to provide three pages of the sentencing hearing transcript, which were arguably the most essential three pages, but it is certainly also arguable that another five pages of the circuit court's remarks were required by the standards embodied in Wis. Stat. § (Rule) 809.19(2)(a).
¶ 22 The Public Defender claims that its attorneys diligently and honestly attempt to comply with the rule governing the contents of appendices and that an attorney has now been labeled a liar (without an opportunity to be heard) because the court of appeals determined that the attorney filed a "false" certification.
¶ 23 In contrast, the court of appeals correctly stresses its heavy work load and its reliance on appendices to do its important work. It points out that most lawyers comply with the rules governing the content of appendices and that the court is very careful in imposing sanctions. In the vast majority of cases, attorneys provide appendices that the court of appeals finds satisfactory. On only very few occasions has the court of appeals sanctioned lawyers for violation of Wis. Stat. § (Rule) 809.19(2)(a). The court of appeals' best approximation is that annually since 2005, such costs have been imposed in less than 1% of the appeals where appendices are filed.
¶ 24 The court of appeals asserts that its current process is adequate protection for counsel and serves the needs of the court. The court of appeals correctly notes that its current practice of imposing a sanction allows counsel to seek review of the sanction. The imposition of a monetary sanction
¶ 25 The Public Defender counters that the attorney has not had an opportunity to be heard before the court of appeals finds a violation and imposes a sanction. The Public Defender further contends that neither a motion for reconsideration nor a petition for review in the supreme court is tailored for review of the court of appeals' opinion and order. We agree that the attorney is currently allowed only an after-the-fact opportunity to be heard, which, to some, may not appear to be meaningful.
¶ 26 A motion for reconsideration and a petition for review are problematic because litigation about the content of the appendix and the sanctions imposed on counsel in the opinion and order remains attached to the merits of the case. As we noted at the outset, this case no longer involves Gregory K. Nielsen. It has morphed into an altogether different dispute. The two disputes—Nielsen's and counsel's—should be untethered from one another to avoid any risk of confusion or conflict. If the court of appeals had granted Mr. Nielsen a new sentencing, the defense attorney would want to appeal the monetary sanction to this court, but the client would be expecting the litigation to move back to the circuit court.
¶ 27 Although our synopses of some of the arguments might indicate that the Public Defender and the court of appeals appear to have adopted adversarial stances, they are not truly adversaries. The Public Defender and the court of appeals agree about the importance of appendices. The Public Defender asserts that its attorneys make sincere efforts to comply with Wis. Stat. § (Rule) 809.19(2)(a).
¶ 28 The court of appeals and counsel share the common goal that justice be administered fairly and efficiently in the State of Wisconsin. They agree that counsel should be treated fairly and that the time and energy of the court of appeals must be conserved.
¶ 29 The Public Defender and the court of appeals agree that fair rules regarding the appendix and compliance of counsel with the rules aid in achieving a just result in each case and in attaining the fair and efficient administration of the court system. Counsel and the court of appeals are thus united in interest, yet both have reasonable concerns regarding the contents of the appendix and sanctions for violations of Wis. Stat. § (Rule) 809.19(2)(a).
¶ 30 Both the court of appeals and the Public Defender recognize that a procedure other than the one used by the court of appeals in the present case exists in other jurisdictions for addressing violations of rules governing appendices. The court of appeals diplomatically states that it is "prepared to assist this Court in assuring not only that Wisconsin courts continue to afford reasonable process, but also that adequate enforcement mechanisms remain."
¶ 31 We appreciate the court of appeals' working with counsel and this court to reach a resolution that respects the concerns that counsel and the court of appeals share and the interests of all involved.
¶ 33 We suggest that hereafter when the court of appeals is considering imposing a sanction on an attorney for filing a brief with a deficient appendix, an order to show cause should be issued directing counsel to explain why a violation of Wis. Stat. § (Rule) 809.19(2)(a) and (b) should not be found and why the attorney should not pay a stated amount of money to the clerk of the court of appeals as a sanction for failing to include in the appendix portions of the record that may have been essential to an understanding of the issue in the case and for filing a false certification.
¶ 34 An order to show cause procedure has several benefits. An order to show cause would give attorneys the opportunity to explain their conduct before the court of appeals reaches a final decision about any violation of the rules governing the content of an appendix. An understanding of the attorney's position will better enable the court of appeals to gauge whether a violation has occurred and whether a sanction should be imposed.
¶ 35 An order to show cause separate from the opinion on the merits of the underlying case allows attorneys to pursue and argue the dispute about the appendix without distracting from, delaying, or undermining the client's cause.
¶ 36 Finally, and most importantly, this procedure will not interfere with the court of appeals' ability to effectively manage its high volume of cases. Currently, aggrieved attorneys have the opportunity to file a motion for reconsideration with the court of appeals. As best we can determine from the briefs and the oral argument, the time the court of appeals takes to issue and decide an order to show cause is no longer than the time it now takes the court of appeals to find a violation, order a sanction, and then address a motion for reconsideration.
¶ 37 In sum, the order to show cause procedure seems sensible from all vantage points.
¶ 38 No more work is required for the court of appeals to issue an order to show cause than to find a violation and impose a sanction. The order to show cause will probably save the court of appeals from addressing motions for reconsideration.
¶ 39 Attorneys are given a meaningful opportunity to protect their professional
¶ 40 By issuing an order to show cause separately from the opinion on the merits of the case, the court of appeals prevents the complication and confusion that could arise if two independent disputes that may be moving in opposite directions in the court system are connected to one another.
¶ 41 The use of an order to show cause has support from other courts and in analogous contexts, although we acknowledge that historically we did not always see the value in the order to show cause procedure that we do today.
¶ 42 We cite these examples to demonstrate that an order to show cause is an oft-used procedure, well known to both the court of appeals and counsel.
¶ 43 We remand for the court of appeals to modify footnote 2, which, as modified, might read as follows:
¶ 44 Upon receiving a written response to the order to show cause, the court of appeals will be better able to assess whether Wis. Stat. § (Rule) 809.19(2)(a) was violated, and if so, whether the violation warrants a monetary sanction.
¶ 45 For the reasons set forth, we remand the cause to the court of appeals for proceedings consistent with this opinion.
The cause is remanded to the court of appeals with directions.
The defendant, Gregory K. Nielsen, the appellant in the court of appeals, does not seek review of that part of the opinion and order of the court of appeals affirming the judgment of his conviction and the order denying his post-conviction motion for resentencing.
We note that the court of appeals may have created a risk of confusion when it wrote: "By omission of the entirety of [the] sentencing court's remarks, the certification is false." Nielsen, No. 2010AP387-CR, ¶ 4 n. 2 (emphasis added). Wisconsin Stat. § (Rule) 809.19(2)(a) does not require the entirety of the sentencing court's remarks, unless, in a particular case, the entirety is "essential."
With regard to enforcement of a prior rule, Justice Marvin Rosenberry wrote that the rule
Marvin B. Rosenberry, Briefs on Appeal in Wisconsin, 1943 Wis. L.Rev. 5, 8-9.
The rules governing the content of appendices have been revised since 1943, but Justice Rosenberry's words apply to the current version as well as to the version he was discussing.
The appendix did not include the first five pages of the circuit court's eight pages of remarks. In these five pages, the circuit court briefly addressed the circumstances of the crime and observed that the defendant was not honest with police about whether he had been drinking on the night of the crime. The circuit court also noted that the defendant had historically been untruthful to agents while on probation. Additionally, the circuit court briefly discussed the defendant's bipolar disorder and relationship with his parents.
The appendix to Nielsen's court of appeals' brief included three pages of the circuit court's remarks. These pages contained the circuit court's explicit discussion of the "factors that the Court is required to consider," including "protection of the community," "[p]unishment," "[r]ehabilitation," and "deterrence." The pages also included the circuit court's pronouncement of a sentence.