If a plaintiff suborns perjury, trial judge can dismiss case, award fees.

• Author: Ziemer, David

Byline: David Ziemer

A court may dismiss an action and award attorney fees to the defendant as a sanction for a plaintiffs attempt to suborn perjury, the Wisconsin Court of Appeals held last week.

Facts and procedure

Cynthia Schultz is the president of The Animal Lobby, Inc. (ALI), an animal advocacy organization. In 1998, Schultz and ALI sued Charles Sykes (a WTMJ-AM talk show host); Sykes employer, Journal Broadcast Group; and Journal Sentinel Inc., publisher of The Milwaukee Journal Sentinel. Both companies are owned by Journal Communications Inc.

Schultz alleged defamation, based on statements implicating her and ALI in the theft of two Gordon Setter dogs in 1996, and accusations that she paid to have another dog killed for political purposes.

The defendants moved to dismiss the complaint, alleging that Schultz had committed perjury and attempted to suborn the perjury of a witness.

Specifically, the defendants claimed that Schultz had offered to pay Clary Engel to provide her with a false alibi for the day of the dognapping, and to testify falsely that he heard Sykes defamatory statements and, as a result, had a lower opinion of Schultz.

Milwaukee County Circuit Court Judge Francis T. Wasielewski held an evidentiary hearing and concluded that there was clear and convincing evidence that Schultz had attempted to suborn perjury.

As a sanction, Wasielewski dismissed the suit. After the defendants moved for attorney fees, Wasielewski held another hearing. He declined to award fees in their entirety, because he concluded that the lawsuit was not frivolous.

However, Wasielewski awarded fees incurred by the defendants in prosecuting the motion to dismiss.

In total, Wasielewski awarded fees of $168,944.97, for which he held Schultz and ALI jointly and severally liable. Schultz and ALI appealed, and the case was transferred to the District IV (Madison) Court of Appeals.

The Court of Appeals affirmed the judgment as to all of Schultz claims, and as to ALIs claims against Journal Sentinel, Inc., but reversed the dismissal of ALIs claims against Sykes and his employer.

The courts reasoning

The Court of Appeals acknowledged that in those Wisconsin cases in which dismissal as a sanction for litigation misconduct has been upheld, a statute authorized the sanction, and no statute specifically authorizes dismissal for attempted subornation of perjury.

Nevertheless, the court found that a judges power to sanction does not derive from statutes alone, but...