State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: ¶8 n. 4:
The State moves to strike Williams’ appendix to his brief. It asserts that the inclusion of excerpts from the BNA Criminal Practice Guide and copies of articles pertaining to drug analysis and crime labs are outside the scope of what is permissible in an appendix. Wisconsin Stat. § (Rule) 809.19(2) indicates that an appellant’s brief “shall include a short appendix providing” certain enumerated items.The State’s position assumes that these enumerated items are to the exclusion of all others. We decline to give the rule such a restrictive interpretation. The Judicial Council Committee’s Note to § (Rule) 809.19 provides that an appendix “is designed to be nothing more than a useful tool to the members of the court.” Members of the court on occasion find materials such as those at issue here to be of some assistance. We note that Williams’ appendix contains “portions of the record essential to an understanding of the issues raised” as required by the rule. Accordingly, we deny the motion to strike.
Nonetheless, we take this opportunity to remind litigants that the rule calls for a “short” appendix. It is the rare case where a lengthy appendix is more boon than bane.
“Nothing more than a useful tool ….” But isn’t it better to give the court a useful tool than to make the court go out and look for it? Moreover, § 809.19(2) explicitly requires certain items, most prominently the lower court’s ruling. The 7th Circuit, finding omission of similarly required material extremely disconcerting, explains why this material is required, A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004):
… We have repeatedly emphasized the importance of compliance with Circuit Rule 30. In United States v. Rogers, 270 F.3d 1076 (7th Cir. 2001), we said:
Compliance with Circuit Rule 30 is essential to proper performance of the appellate task, especially by those members of this court whose chambers are outside Chicago and who lack instant access to the record. Even judges with chambers in Chicago often prepare for oral argument at home or elsewhere and need the district judge’s reasons ready to hand.
270 F.3d at 1085.
It is certainly wise to keep in mind the reason for the court’s ire, explicitly articulated above: omitting the materials required by the rules makes the judges’ work unnecessarily difficult. Why irritate an appellate judge for no good reason? Turns out you’ve got an economic interest at stake, too, see, e.g., State v. Devin Brown, 2005AP2450-CR, Dist. I, 12/19/06 (unpublished opinion, imposing $150 sanction against counsel for failing to include Appendix materials required by rule, and criticizing counsel for signing a false certification); and U.S. v. White, 7th Cir No. 06-1769, 12/19/06 (order to show cause why counsel should not be fined $1000 for same sort of violation; accompanied by strong language re: need to ensure “meticulous” compliance with briefing rules).
UPDATE: See also Petition No. 04-11 (“As the number of appeals has increased, the court’s reliance on appendices during the decision-making process has increased. The Court of Appeals requests that WIS. STAT. RULE 809.19(2)(a) be created to require that appellant’s counsel certify compliance with WIS. STAT. RULE 809.19(2) that requires an appellant’s brief include an appendix and sets forth the contents of the appendix.”). The petition was subsequently granted, and § 809.19(2)(b) now requires certification by counsel.
