Monday, December 12, 2011

Are sanctions cheaper in Wisconsin or do sanction amounts vary by content?

On Thursday I posted about Rebekah Nett. Ms. Nett is a Minnesota attorney who has made the news lately because she is facing a sanction of up to $10,000 as a result of some motion papers she filed that contained anti-Catholic language. More accurately, the motion papers contained anti-Catholic language but did not provide any evidentiary support for the anti-Catholic allegations. It turns out that this is not Ms. Nett's first experience with filing court documents that don't have evidentiary support. It is also not her first experience with sanctions.

On February 8, 2011, the Wisconsin Court of Appeals, issued a decision in City of Shawano v. Darlene Sense. Ms. Sense appealed her conviction of a Shawano ordinance prohibiting refusal to permit inspection of premises that are subject to a liquor license. Ms. Sense is the former the manager of the Shawano Best Western Hotel. When Shawano police officers attempted to determine whether the hotel was operating in accordance with its liquor license. Ms. Sense, depending on whom one believes, either actively prevented the officers from making the determination or failed to help the officers. In any event, Ms. Nett represented Ms. Sense.

The appeal is notable for a couple of reasons. First, it appears that the same group that owns the hotel also owns the bankrupt company in the case that has Ms. Nett in hot water in bankruptcy court. Similar to the Minnesota case I posted about, the brief supporting the appeal:

contains several brazen assertions that are completely unsupported by the record. For instance, Sense states that the Best Western hotel’s parent company “has been targeted repeatedly with numerous complaints and false accusations and negative publicity because the president is from India.” Sense contends, “Local officials and specifically, [the] mayor of Shawano, … have positioned themselves against [the parent company’s president] time after time and seek every opportunity to cause harm to any businesses in Shawano connected with [the parent company].” Sense also alleges the police’s routine compliance check was “a tactic to get into the facility during a private party to scare and intimidate guests who value their privacy … so that they might cancel their contract with the hotel …. Cancellation of their contract would have delighted City officials[.]” Sense does not provide record citations for any of these allegations, presumably because they are completely unsupported by the record.

Because she didn't support the assertions mentioned above with evidence, and also because her brief and appendix didn't comply with four procedural/stylistic rules for the appeal, Ms. Nett was sanctioned $200.

What conclusions can we draw from this? One could be that the cost of making allegations without evidentiary support is cheaper in Wisconsin. Ms. Nett faces a fine of $1,000 per unsupported allegation in Minnesota but only paid $50 per unsupported allegation in Wisconsin (assuming that the formatting errors weren't worthy of a sanction). Another conclusion might be that the cost of unsupported allegations has risen nationwide since February. Or perhaps the Minnesota sanctions are higher because of the bigoted nature of the unsupported allegations. If that is the case, then maybe the question raised by UCLA law professor Stephen Bainbridge should be considered. When he blogged about Ms. Nett's possible sanction in Minnesota, Professor Bainbridge asked, why would Judges be able so sanction parties for offensive speech without running afoul of the First Amendment. Any thoughts, Mr. Torvik?


  1. Couple thoughts:

    1) I thought Mr. Mike Brady, apparently a devout reader of The Blog, had a great comment over there at Prof. Bainbridge's blog.

    2) I don't pretend to know much about the First Amendment. Or, at least, I'm not going to pretend to know much about the First Amendment right now. But it seems to me that the following content distinction may justify a harsher fine: In the Shawano case, Nett made unsubstantiated assertions about the case (arguably); In the Minnesota case, Nett made unsubstantiated assertions about the Court. She basically made baseless charges of judicial corruption. I'd be surprised if sanctioning such statements is illegitimate under the First Amendment. (Unless, of course, the speaker is a corporation.)

  2. You make a fair point about the different targets of the unsubstantiated allegations. I suppose if the mayor of Shawano or the Shawano police department had been able to sanction the brief, the amount might have been higher.


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