source: Caselaw Access Project

author: N. PATRICK CROOKS, J.

license: Public Domain

text:
    In re the Commitment of Shawn D. Schulpius: State of Wisconsin, Petitioner-Respondent, v. Shawn D. Schulpius, Respondent-Appellant-Petitioner.
    Supreme Court

      No. 2002AP1056.

      Oral argument October 28, 2004 and October 6, 2005.

    Decided January 10, 2006.

    2006 WI 1
    (Also reported in 707 N.W.2d 495.)

      For the respondent-appellant-petitioner there were briefs and orad argument by Ellen Henak, assistant state public defender.
    For the petitioner-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
    An amicus curiae brief was filed by William J. Domina and John Jorgensen, Milwaukee, on behalf of Milwaukee County Corporation Counsel.
    An amicus curiae brief was filed by Nicholas L. Chiarkas, Marla J. Stephens, and Kellie M. Krake, Madison, on behalf of the Office of the State Public Defender.
    An amicus curiae brief was filed by Andrew T. Phillips, Evan N Claditis and Prentice & Phillips LLP, Milwaukee, on behalf of Wisconsin Counties Association.
    An amicus curiae brief was filed by Neil Gebhart, Madison, on behalf of Wisconsin Department of Health and Family Services, and there was oral argument by Diane Welsh.

   N. PATRICK CROOKS, J.

¶ 1. Petitioner Shawn D. Schulpius (Schulpius) appeals from a published decision of the court of appeals, affirming a circuit court order which denied Schulpius's motion to enforce a previous circuit court order directing that he be placed on supervised release. We address three principal issues on appeal. First, is Schulpius entitled to outright release from his Wis. Stat. ch. 980 (2003-04) commitment because the Department of Health and Family Services (DHFS), in conjunction with Milwaukee County, was unable to place him in an appropriate location for the period between the initial supervised release determination and the circuit court's ultimate determination that Schulpius is too dangerous for such placement? Second, in light of our decision in State v. Sprosty, 227 Wis. 2d 316, 595 N.W.2d 692 (1999), should this court issue an order directing the DHFS to create an appropriate residential facility or dwelling in Milwaukee County for persons presently authorized for supervised release? Finally, is Schulpius or another individual committed under Chapter 980 (2003-04), who is authorized for supervised release but not yet expeditiously placed, entitled to seek a remedy such as monetary damages?

¶ 2. We affirm the decision of the court of appeals. We conclude that the November 2000 order granting the State of Wisconsin's (State's) motion for reconsideration, and finding Schulpius not appropriate for supervised release, was a valid, final, appealable order, and therefore, he is not entitled to outright release from his Chapter 980 commitment. Even though Schulpius's appeal is moot, we determine that the issues should be considered. We determine that State v. Morford, 2004 WI 5, 268 Wis. 2d 300, 674 N.W.2d 349, is inapplicable to this case, as Schulpius never appealed from, and therefore waived any objection to, the November 2000 order granting the State's Wis. Stat. § 806.07(l)(h) (1999-2000) motion to reconsider supervised release. We do conclude, however, that there was a procedural due process violation. We also conclude that our decision in Sprosty is still valid, and allows a circuit court to order the DHFS to create an appropriate residential facility or dwelling to accommodate a Chapter 980 order for supervised release. However, for two reasons, we conclude that issuing such an order is unnecessary in this case. Such a residential facility or dwelling for supervised release would be meaningless for Schulpius at this time, as he was determined to be inappropriate for supervised release in November 2000, and that determination has not been changed. Second, we are satisfied that the DHFS has made substantial attempts to establish a residential facility or dwelling that would enable individuals committed under Chapter 980 to be placed on supervised release in Milwaukee County. Finally, because the order of November 2000 declaring Schulpius inappropriate for supervised release remains valid, even though there was a procedural due process violation, we decline to determine what remedy, if any, Schulpius would be entitled to seek. We further decline to address what might be an appropriate remedy for another individual, committed under Chapter 980 who, under different circumstances, has been authorized for supervised release but not yet expeditiously placed.

I — I

¶ 3. Because this case is procedurally convoluted, we set forth an abbreviated version of the facts relevant to render a decision. A more complete discussion of the facts and procedural history can be found in the court of appeals' decision. See State v. Schulpius, 2004 WI App 39, ¶¶ 3-32, 270 Wis. 2d. 427, 678 N.W.2d 369.

¶ 4. In December 1991 Schulpius, one week shy of his 18th birthday, pled guilty to, and was convicted of, first-degree sexual assault of a four-year-old boy for whom he had been babysitting. He was sentenced as an adult to an indeterminate term of not more than five years in the Wisconsin prison system.

¶ 5. At the time of his conviction in 1991, Schulpius already had a long history of sexually assaulting minors. "Schulpius's 'first group of sex offenses' started when Schulpius was fourteen," when he began molesting his six-year-old step-sister. Id., ¶ 4. As a result of the assaults, "Schulpius was placed at a mental-health facility" for approximately three months, where he received individual therapy treatment. Id. However, six months later, "Schulpius 'began re-assaulting his stepsister. ...'" Id. During this period, Schulpius also assaulted his one-year-old half-brother. Id.

¶ 6. "When Schulpius was fifteen, he began assaulting girls in his neighborhood and, also, one of his biological sisters, who was then approximately eleven or twelve [years old]. He also resumed sexually assaulting his younger step-sister." Id., ¶ 6. He was sent to another treatment facility. At age 17, Schulpius left the treatment facility and entered a group home. Id. "When he lost one of his two part-time jobs, he 'offered to babysit for a woman friend's young son.' The child was the four-year-old boy whom Schulpius assaulted in the waiver-to-adult-court case that ultimately resulted in his imprisonment... ." Id.

¶ 7. In 1995 the State filed a Chapter 980 petition just prior to Schulpius's scheduled release from prison, and Schulpius was adjudicated a sexually violent person. Milwaukee County Circuit Court, Judge John Franke, committed Schulpius to a secure mental facility, unless the DHFS determined that there was an appropriate community facility to house him.

¶ 8. On July 15, 1997, Judge Franke entered an order, nunc pro tunc to July 31, 1996, directing that Schulpius be placed on supervised release pursuant to Wis. Stat. § 980.06(2)(c)-(d)(1995-96). However, the DHFS was unable to place Schulpius on supervised release due to the lack of appropriate facilities in Milwaukee County. Despite numerous court orders directing the DHFS, in conjunction with Milwaukee County, to prepare an appropriate plan for Schulpius's supervised release, and several unsuccessful attempts to place Schulpius in Milwaukee County, or in another Wisconsin county, such as Pepin, Schulpius remained in secure custody at the Wisconsin Resource Center.

¶ 9. On October 27, 1999, the circuit court entered an order declaring that Chapter 980 was being unconstitutionally applied to Schulpius. The order directed that Schulpius be released from secure custody and placed on supervised release. In response, the State filed a motion for reconsideration under Wis. Stat. § 806.07(l)(h). On November 29, 2000, Judge Franke granted the State's motion for reconsideration and determined that Schulpius was no longer appropriate for supervised release.

¶ 10. After the November 2000 decision to revoke the order for supervised release, Judge Franke "was succeeded by the Honorable John J. DiMotto, pursuant to the rotation-of-judges plan in Milwaukee County." Schulpius, 270 Wis. 2d 427, ¶ 29.

¶ 11. On November 26, 2001, Schulpius moved to enforce the circuit court's order of October 27, 1999, and for a final order releasing him from secure custody. On January 17, 2002, the circuit court denied Schulpius's motion to enforce its October 27, 1999 order. Schulpius appealed this decision to the court of appeals.

¶ 12. On appeal, Schulpius argued that he had been denied both procedural and substantive due process because the DHFS had failed to place him on supervised release when so ordered. Id., ¶ 33. The court of appeals, in a majority opinion authored by Judge Ralph Adam Fine, rejected Schulpius's substantive and procedural due process claims. Id., ¶¶ 34, 40. In rejecting Schulpius's substantive due process argument, the court of appeals reasoned that substantive due process is violated only in the most egregious and outrageous of circumstances, and that this case did not involve such circumstances. Id., ¶¶ 37-40. The court further concluded that the DHFS had acted in good faith in attempting to find an appropriate facility in the community in which to place Schulpius. Id., ¶ 38. Finally, the court of appeals determined that although Schulpius remained confined in violation of the circuit court's order for more than four years, such confinement was ultimately justified under a balancing test, where the potential harm to society that Schulpius's release might cause was weighed against the potential benefits that might flow from the cessation of Schulpius's confinement in a secure facility. Id., ¶ 42.

¶ 13. In his dissent, court of appeals Judge Charles B. Schudson concluded that Schulpius's substantive due process rights had indeed been violated by "more than four years of unlawful confinement. .. ." Id., ¶ 49 (Schudson, J., dissenting) (emphasis in original). As a remedy, Judge Schudson suggested that Schulpius be ordered to supervised release. Id., ¶ 63. He reasoned that the status quo was unacceptable, and that anything short of supervised release would create future disincentives for officials to comply with court orders and would create overcrowded institutions, which would eventually lead to the abandonment of Chapter 980 as a viable means to deal with sexual predators. Id., ¶ 64.

¶ 14. Schulpius appealed the decision of the court of appeals, and this court granted his petition for review on April 20, 2004.

h — i I — Í

¶ 15. Although we "generally decline to decide moot issues ..under certain circumstances we may choose to do so. Morford, 268 Wis. 2d 300, ¶ 7 (citing In re John Doe Proceeding, 2003 WI 30, ¶ 19, 260 Wis. 2d 653, 660 N.W.2d 260). This court has determined that it may decide otherwise moot issues if they meet at least one of four exceptions to the mootness rule, that is if the issue:

(1) is of great public importance; (2) occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) is likely to arise again and a decision of the court would alleviate uncertainty; or (4) will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties.

Id.

¶ 16. The issues before us satisfy at least two of the four exceptions to the mootness rule. First, this case is of great public importance, as it "implicates both the safety of the public and the rights of the detained individual." Id., ¶ 9. Second, the issues presented "recur[] with some frequency." Id., ¶ 10. As we noted in our November 9, 2004 order in this case, the DHFS has repeatedly failed to place individuals committed under Chapter 980 on supervised release in Milwaukee County when so ordered by a Milwaukee County Circuit Court. Because we determine that the issues raised in this appeal satisfy exceptions to the mootness rule, we will address them. Id., ¶ 12.

¶ 17. Schulpius's assertion that the state's inability to place him on supervised release deprived him of both substantive and procedural due process, presents issues of law that we analyze de novo. See State v. Post, 197 Wis. 2d 279, 301, 541 N.W.2d 115 (1995).

HH HH HH

¶ 18. The first issue we consider is whether Schulpius is entitled to outright release from his Chapter 980 commitment, because the DHFS, in conjunction with Milwaukee County, was unable to place him in an appropriate residential facility or dwelling for the period between the initial supervised release determination and the circuit court's ultimate determination that he was and is too dangerous for such placement. It is necessary, in order to resolve the issue of outright release, to address his claims of constitutional and statutory violations.

¶ 19. We agree with the court of appeals that Schulpius is not entitled to outright release. We also affirm the court of appeals' determination that Schulpius is not entitled to his alternate request for immediate release from secure custody. Moreover, we conclude that the November 2000 order, whereby the circuit court revoked its previous order for supervised release, was a valid, final, and appealable order.

¶ 20. The procedure surrounding the November 2000 order merits further explanation. As discussed above, on October 27, 1999, the circuit court held that Chapter 980 was being unconstitutionally applied to Schulpius, and it ordered that he be released from secure custody. Thereafter, the State filed a motion for reconsideration in the circuit court, and also "petitioned the court of appeals for permission to appeal a nonfinal order...." State v. Schulpius, 2001 WI 69, ¶ 4, 244 Wis. 2d 401, 628 N.W.2d 349 (citation omitted). The court of appeals granted the State's petition, after which Schulpius petitioned this court to bypass the court of appeals. Id. Schulpius's motion was granted, and oral argument was scheduled for December 1, 2000.

¶ 21. On November 29, 2000, the circuit court "granted the State's motion for reconsideration, determined that Schulpius was no longer suitable for supervised release, and ordered him committed to the Wisconsin Resource Center." Id., ¶ 5. In response, the "State filed a notice of voluntary dismissal in this court on November 30, 2000, and Schulpius responded with a motion for order rejecting notice of voluntary dismissal." Id.

¶ 22. This court held oral argument on December 1, 2000, and after receiving supplemental briefing, the court was equally divided on whether to accept the State's notice of voluntary dismissal. Id., ¶ 8. Therefore, this court denied both Schulpius's motion for an order rejecting the notice and the State's notice for voluntary dismissal. This court then vacated its decision to grant bypass, and remanded the cause back to the court of appeals for determination of further proceedings. Id., ¶ 9.

¶ 23. Schulpius never appealed the November 29, 2000 order based on the State's motion for reconsideration under Wis. Stat. § 807.06(l)(h). Rather, on November 26, 2001, Schulpius filed a motion to enforce the circuit court's decision and order of October 27, 1999, and for a final order to release Schulpius from the physical custody of the DHFS. Schulpius, 270 Wis. 2d 427, ¶ 32.

¶ 24. In February 2004 this court decided Mor ford which held that when an individual committed under Chapter 980 is awaiting supervised release, the appropriate mechanism to revoke that supervised release is Wis. Stat. § 980.08(6m), rather than Wis. Stat. § 806.07(l)(h). Morford, 268 Wis. 2d 300, ¶ 5.

¶ 25. Based on Morford, Schulpius now maintains that the November 2000 order revoking the earlier order for supervised release was invalid, as it was brought and decided under the wrong statute. It is Schulpius's position that because the order was invalid, he remains on supervised release. Further, Schulpius argues that the November 2000 order was not a final order and therefore not appealable. He maintains that he did appeal the only appropriate final order, that of November 2001.

¶ 26. We disagree with Schulpius's characterization of the November 2000 order. Even though the circuit court did not initially characterize it as a final order, it was clear that the November 2000 order was intended to resolve all litigation then pending between the parties, and the circuit court so indicated in a letter to the parties on December 1, 2000, stating that it would not enter any further order. As we explained in Harder v. Pfitzinger:

We conclude that when an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intended it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court.

Harder v. Pfitzinger, 2004 WI 102, ¶ 2, 274 Wis. 2d 324, 682 N.W.2d 398. Therefore, when Schulpius failed to appeal timely from the November 2000 order, he waived his right to challenge the validity of that order. We also agree with the court of appeals' majority that Morford is inapplicable in this case for another reason related to waiver. See Schulpius, 270 Wis. 2d 427, ¶ 33 n.8. In the court of appeals, Schulpius did not challenge Judge Franke's determination that he was not suitable for supervised release; thus that issue is also waived. See also Pub. Serv. Employees Union v. Wisconsin Employment Relations Bd., 246 Wis. 190, 199, 16 N.W.2d 823 (1944) (Under the well-established rule, questions not argued will not be considered or decided) (citing Fisher v. Herrmann, 118 Wis. 424, 95 N.W. 392 (1903); Kipp v. Laun, 146 Wis. 591, 131 N.W. 418 (1911)).

¶ 27. Schulpius additionally asks this court to decide whether or not Morford should be applied retroactively. Because we conclude that Schulpius waived his Morford objection by his failure to appeal from the November 2000 order, and also because, when before the court of appeals, he failed to challenge Judge Franke's November 2000 determination that on November 29 he was not suitable for supervised release, we need not address the issue of retroactivity.

¶ 28. As noted previously, because Schulpius continues to be considered a sexually violent person and inappropriate for supervised release, the issues he has raised are moot. Nevertheless, we feel it is appropriate to address Schulpius's claims of constitutional and statutory violations for the reasons previously stated.

¶ 29. Schulpius maintains that his continued detention in spite of a court order for supervised release violates both the substantive and procedural due process guarantees of the United States and Wisconsin Constitutions. Schulpius argues that his continued detention in secure custody, after numerous circuit court orders for supervised release, shocks the conscience. He claims that because the state failed to take reasonable steps to provide Schulpius with an appropriate supervised release placement, and did nothing about his confinement in a secure facility, his substantive due process rights were violated.

¶ 30. In addition, Schulpius argues that his continued detention violates procedural due process. Schulpius maintains that Wis. Stat. § 980.08(6m) creates an expectation of supervised release. Therefore, once a court grants a petition for supervised release under Chapter 980, the committed individual has a clear legal entitlement to the preparation of a plan concerning treatment and services and a timely placement on supervised release, despite inadequate state or local resources. Sprosty, 227 Wis. 2d 316. Schulpius's position is that confining him in a secure facility for more than four years, when he was entitled to such relief, violated the procedures that were due him under Chapter 980. In other words, he contends Chapter 980 was unconstitutionally applied to him.

¶ 31. The State maintains that Schulpius has failed to establish either a substantive or a procedural due process violation. It is the State's position that Schulpius's substantive due process claim fails because denying a "least restrictive" placement is not contrary to society's understanding of ordered liberty. Sacramento County v. Lewis, 523 U.S. 833, 840 (1998). In State v. Rachel, 2002 WI 81, ¶ 66, 254 Wis. 2d 215, 647 N.W.2d 762, this court recognized that the discussion in State v. Post, 197 Wis. 2d 279, 313, 541 N.W.2d 115 (1995), regarding the "least restrictive environment" did not make supervised release indispensable to the constitutionality of Chapter 980. Rather, this court determined in Rachel that the statute is constitutional because confinement is directly linked to an individual's dangerousness. Rachel, 254 Wis. 2d 215, ¶¶ 65-66.

¶ 32. We have consistently held that civil commitment under Chapter 980 "constitutes a deprivation of liberty that is subject to due process protection." Id., ¶ 61. We base this position on the well established tenet that "[f]reedom from physical restraint is a fundamental right protected by the due process clause from wrongful, arbitrary governmental action." Id. (citations omitted).

¶ 33. The due process clause of the United States Constitution creates a substantive protection from certain arbitrary, wrongful government actions. Zinermon v. Burch, 494 U.S. 113, 125 (1990). The test to determine if the state conduct complained of violates substantive due process is if the conduct" 'shocks the conscience ... or interferes with rights implicit in the concept of ordered liberty.'" State v. Joseph E.G., 2001 WI App 29, ¶ 13, 240 Wis. 2d 481, 623 N.W.2d 137. In addition, when analyzing a substantive due process violation claim, we also consider "whether the government officer's conduct was either a 'deliberate decision[]' to 'deprive' Schulpius of his liberty interest, or reflected the officer's 'deliberate indifference' to that liberty interest. . . ." Schulpius, 270 Wis. 2d 427, ¶ 37 (quoting Lewis, 523 U.S. at 849-50).

¶ 34. We agree with the court of appeals that there is nothing in the evidentiary record that would lead us to conclude that the failure to place Schulpius on supervised release, as ordered by the circuit court, "was the result of anything but good-faith efforts that did not succeed because of things beyond the control of those to whom the court orders were directed...." Id., ¶ 38.

¶ 35. We are satisfied that the DHFS made substantial attempts to ensure that Schulpius would be placed on supervised release. It followed court orders to draw up placement plans and contact other counties in search of an appropriate facility. The fact that the DHFS's efforts were ultimately unsuccessful cannot be characterized as either an intentional or conscious disregard of Schulpius's constitutional rights. When one considers "Schulpius's horrendous history of predatory sexual violence against children," the DHFS's inability to find an appropriate community placement for Schulpius clearly falls short of the level of a substantive due process violation. Id., ¶ 40.

¶ 36. We conclude that the failure to place Schulpius on supervised release, during the period between the initial supervised release determination and the circuit court's ultimate determination that Schulpius was too dangerous for such placement, does not shock the conscience. Therefore, Schulpius endured no substantive due process violation.

¶ 37. The State further maintains that Schulpius's procedural due process rights were not violated, as he was provided all the required procedures under Chapter 980. The fact that Schulpius did not receive supervised release is not the result of any procedural failing, according to the State, as all the procedural safeguards in Chapter 980 were rigorously applied in this case.

¶ 38. We disagree with the State and with the court of appeals that the state's failure to place Schulpius on supervised release after being so ordered by the circuit court did not constitute a procedural failing. In determining the nature and extent of the process due, we balance the private interest that will be affected, the government's interest, and "the risk of an erroneous deprivation of those interests through the procedures used." Mathews v. Eldridge, 424 U.S. 319, 334 (1976). Although the state has a compelling interest in protecting the public from sexually violent persons, the private interests at stake, freedom from physical restraint, is equally critical. The risk of erroneous deprivation of an individual's liberty is unacceptably heightened by the state's failure to abide by procedures established to ensure the preservation of fundamental rights.

¶ 39. We therefore conclude that Schulpius's continued placement in secure confinement for an extended period after the circuit court had repeatedly ordered he be placed on supervised release, violated his right to procedural due process. However, release, either outright or supervised, is not an appropriate remedy for Schulpius at this time, where his substantive due process rights were not violated, but where there was a violation of procedural due process. As we explained in State ex rel. Marberry v. Macht:

Release of a ch. 980 patient whose dangerousness or mental disorder has not abated serves neither to protect the public nor provide care and treatment for the patient. Accordingly, release is not only inappropriate, it is not justifiable under the dual purposes of the statute: protection of the public from sexually violent persons likely to reoffend and care and treatment of the patient.

State ex rel. Marberry v. Macht, 2003 WI 79, ¶ 30, 262 Wis. 2d 720, 665 N.W.2d 155 (internal citations and quotation marks omitted).

¶ 40. We agree with the court of appeals that outright release would certainly not appear to be an appropriate remedy for a violation of the procedural due process rights of an individual committed under Chapter 980 who has been deemed sexually violent and inappropriate for even supervised release. As the court of appeals noted in regard to Schulpius:

[A]ny judicial decision that puts the community at risk because of what agents of government may have done or not done must balance the "potential injury" to society's interests against the "potential benefits" that would flow from any rule designed to deter future conduct by those agents, even where . . . those agents might have violated rules designed to protect constitutional rights.

Schulpius, 270 Wis. 2d 427, ¶ 42 (citing United States v. Calandra, 414 U.S. 338, 348-49 (1974)). See also State v. Beyer, 2006 WI 2, ¶ 50, 287 Wis. 2d. 1, 707 N.W.2d 509, ("Discharge is not an appropriate remedy for a sexually violent person who is dangerous because he or she suffers from a mental disorder that makes it likely that he or she will engage in acts of sexual violence.").

IV

¶ 41. We turn next to the second principal issue on appeal. Should this court, in light of this court's decision in Sprosty, issue an order directing the DHFS to create an appropriate residential facility or dwelling in Milwaukee County for persons presently authorized for supervised release?

¶ 42. In Sprosty, this court determined that a circuit court has the authority under Wis. Stat. § 980.08(5) to order the DHFS to create appropriate services and facilities to accommodate an order for supervised release, and that the DHFS has the financial burden of paying for such programs and facilities in accord with Wis. Stat. § 980.12. Sprosty, 227 Wis. 2d 316 at 320, 336-37. In Sprosty, this court stated that "a circuit court has the authority under Wis. Stat. § 980.08(5) to order a county, through DHFS, to create whatever programs or facilities are necessary to accommodate an order for supervised release." Id. at 331. That language is not inconsistent with our holding here, as it is the county's responsibility to work with the DHFS to prepare a plan that identifies treatment and services that an individual on supervised release will receive in the community. See Wis. Stat. § 980.08(5).

¶ 43. We conclude that the Sprosty decision is still valid, and enables a circuit court to fashion a remedy in an appropriate situation. However, we determine that issuing such an order is inappropriate at this time, under these circumstances. Such a facility for supervised release would be meaningless for Schulpius at this time, as he was determined to he inappropriate for supervised release in November 2000, and that determination has not been changed. In addition, we are satisfied that the DHFS has made substantial attempts to establish a residential facility or dwelling that would enable individuals committed under Chapter 980, such as Schulpius, to be placed on supervised release in Milwaukee County.

¶ 44. As we stated in our order of November 9, 2004, in this case, "the repeated failure of the DHFS to place Chapter 980 committees on supervised release in Milwaukee County when so ordered raises serious constitutional and rule of law issues...." However, we find encouragement in the efforts undertaken by the DHFS to resolve this issue and, hopefully, prevent it from recurring.

¶ 45. The record includes examples of the DHFS attempting to address and correct the problem of placing individuals deemed appropriate for supervised release in appropriate community facilities. As we noted earlier, the DHFS's efforts have included the preparation of placement plans in conjunction with Milwaukee County, the search for appropriate facilities, and work with the Wisconsin Legislature and the committee established by it, to emphasize the very real need for a transitional facility in Southern Wisconsin for Chapter 980 supervised release. At oral argument, counsel for the DHFS indicated that the DHFS is continuing to seek both a site for a transitional facility in Milwaukee County, as well as engaging in ongoing efforts to find individual residential placements for individuals the court has identified as appropriate for supervised release.

¶ 46. The Wisconsin Legislature has also taken positive steps toward finding a solution. In 2003, the legislature passed Wisconsin Act 187, which concerned Milwaukee County and established a committee "to make recommendations regarding the location of a facility for the treatment of sexual predators." 2003 Wis. Act 187. The Sexually Violent Persons Transitional Facility Siting Advisory Committee (Committee) met weekly from October 19, 2004, until May 24, 2005, pursuing its mandate to locate a minimum of three locations in Milwaukee County for consideration by the state for the housing of individuals committed under Chapter 980 deemed appropriate for supervised release. Although the Committee was ultimately unable to fulfill its mandate, the Committee did report to the legislature with suggestions that it hoped would greatly enhance the possibilities of finding suitable locations within Milwaukee County.

¶ 47. The report of the Committee was submitted to the legislature, as well as to the DHFS and the Department of Corrections, on July 12, 2005. The Committee chair noted:

As a committee, we anguished over the fact that we could not meet our charge, yet we also understood the difficult charge that we were given. As stated in the beginning of this report, we do believe that locations to house sexually violent offenders under supervision within Milwaukee County can be found; however, unless an attempt is made to address the barriers faced by the committee, it is not likely that locations to house sexually violent offenders placed on supervision will ever be found within Milwaukee county.

It is certainly appropriate to give the State of Wisconsin the opportunity to act on the Committee report. Based on that report, there is a reasonable expectation that the legislature will take further action to address the barriers the Committee identified, in regard to the location of an appropriate site or sites for a residential facility or dwelling in Milwaukee County.

¶ 48. It is significant that the State Building Commission appropriated approximately $1.3 million toward the establishment of a residential facility or dwelling, in order to place individuals committed under Chapter 980 on supervised release in Milwaukee County. Counsel for the DHFS stated at oral argument that, if necessary, the DHFS will request more money in support of this project.

¶ 49. We conclude that, under an appropriate set of facts, a court may order the DHFS to create a residential facility or dwelling necessary to accommodate an order for supervised release, but for the reasons set forth, Schulpius's case is not an appropriate one for a Sprosty-type court order at this time.

V

¶ 50. Finally, we address the issue of whether Schulpius or another individual committed under Chapter 980, who is authorized for supervised release but not yet expeditiously placed, is entitled to seek a remedy such as monetary damages.

¶ 51. The Wisconsin Legislature made no provision for such a remedy in Chapter 980 for a violation of the statutory scheme. Because the November 2000 order denying supervised release remains valid, we decline to address what remedy, if any, Schulpius is entitled to seek. Further, we decline to address the issue of whether under different circumstances, another individual committed under Chapter 980, authorized for supervised release but not yet expeditiously placed, would be entitled to seek a remedy such as monetary damages.

VI

¶ 52. In sum, we conclude that the November 2000 order granting the State's motion for reconsideration, and finding Schulpius not appropriate for supervised release, was a valid, final, appealable order, and therefore, he is not entitled to outright release from his Chapter 980 commitment. Even though Schulpius's appeal is moot, we determine that the issues should be considered. We determine that Morford, is inapplicable to this case, as Schulpius never appealed, and therefore waived any objection to, the order granting the State's Wis. Stat. § 806.07(l)(h) motion to reconsider supervised release. We do conclude, however, that there was a procedural due process violation. We also conclude that the Sprosty decision is still valid, and allows a circuit court to order the DHFS to create an appropriate residential facility or dwelling to accommodate a Chapter 980 order for supervised release. However, for two reasons, we conclude that issuing such an order is unnecessary in this case. Such a residential facility or dwelling for supervised release would be meaningless for Schulpius at this time, as he was determined to be inappropriate for supervised release in November 2000 and that determination has not been changed. Second, we are satisfied that the DHFS has made substantial attempts to establish a residential facility or dwelling that would enable individuals committed under Chapter 980 to be placed on supervised release in Milwaukee County. Finally, because the order of November 2000 declaring Schulpius inappropriate for supervised release remains valid, even though there was a procedural due process violation, we decline to address what remedy, if any, Schulpius would be entitled to seek. We further decline to address what might be an appropriate remedy for another individual, committed under Chapter 980 who, under different circumstances, has been authorized for supervised release, but not yet expeditiously placed.

By the Court — The decision of the court of appeals is affirmed.

        State v. Schulpius, 2004 WI App 39, 270 Wis. 2d 427, 678 N.W.2d 369.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       On this matter, we disagree with the court of appeals. In a footnote, the court of appeals addressed several issues raised by the parties that it considered to be "peripheral," including whether the November 2000 order was a final order. Schulpius, 270 Wis. 2d 427, ¶ 33 n.8. The court of appeals concluded that the November order was not, on its face, a "final order" in that it contemplated entry of a reifying order when it was issued. Id. We address the issue more fully in our discussion at ¶¶ 23-26.

       The November 2000 order was somewhat confusing in the concluding paragraph, which stated:
      For the reasons set forth above, it is hereby ordered that the state's motion for reconsideration is granted and that the order for supervised release is vacated. It is farther ordered that Shawn Schulpius be committed to institutional care pursuant to section 980.06, still subject, however, to the decision and order requiring release entered in this case on October 27,1999. As required by SCR 70.15, a form order for such commitment will be separately entered.
      Therefore, although the order determined that Schulpius was no longer suitable for supervised release and ordered him committed to secure custody, someone could interpret the circuit court order as also reaffirming its earlier order that Schulpius he placed on supervised release. Schulpius, 270 Wis. 2d 427, ¶ 28.
      The two parts of the order seem somewhat inconsistent. However, we conclude that the purpose of the November 2000 order was unquestionably to vacate the earlier order for supervised release, and to commit Schulpius to institutional care, despite the reference to the earlier order. This position is confirmed in Judge Franke's letter to the parties of December 1, 2000, indicating that no further order was necessary because Schulpius was already in secure custody.

       Apparently, the circuit court contemplated the use of a form, but the court determined that form CR-263 was not appropriate to the case and could not be modified. Therefore, on December 1, 2000, the court contacted the parties indicating that the use of the form was not necessary.

       Schulpius urges this court to overrule its decision in Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757 (1979), and adopt the rule of Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993) on the retroactive application of a new rule of law. We decline to do so here. However, even if this court were to adopt the rule of Harper on retroactivity, we do not believe it would impact on this case. Harper held that when the United States Supreme Court:
      applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

        Id. at 97. Because Schulpius failed to appeal the November, 2000 order within 90 days of entry of the order, as per Wis. Stat. § 808.04(1), Schulpius's case was not open on direct review at the time of this court's decision in Morford.

       Because "[w]e have determined that the due process clauses of Article I, § 1 of the Wisconsin Constitution and the Fourteenth Amendment to the United States Constitution are substantially equivalent," we generally interpret the state and federal constitutional provisions consistently with each other. See In re Paternity of John R.B., 2005 WI 6, ¶ 18, 277 Wis. 2d 378, 690 N.W.2d 849 (footnotes omitted).

       Furthermore, we note that the United States Supreme Court has twice upheld the constitutionality of a civil commitment scheme for sexually violent individuals that did not include a provision for supervised release. Kansas v. Crane, 534 U.S. 407 (2002); Kansas v. Hendricks, 521 U.S. 346 (1997).

        State v. Post, 197 Wis. 2d 279, 330, 541 N.W.2d 115 (1995).

        See State v. Rachel, 2002 WI 81, ¶ 61, 254 Wis. 2d 215, 647 N.W.2d 762 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)).

       The current version of Wis. Stat. § 980.08(5) states, in relevant part:
      If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence, as determined by the department under s. 980.105. The department and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment.
      Wis. Stat. § 980.08(5)(2003-04).
      The current version of Wis. Stat. § 980.12 provides, in relevant part: "Except as provided in ss. 980.03(4) and 980.08(3), the department shall pay from the appropriations under s. 20.435(2) (a) and (bm) for all costs relating to the evaluation, treatment and care of persons evaluated or committed under this chapter." Wis. Stat. § 980.12(1) (2003-04).

        See Sexually Violent Persons Transitional Facility Siting Advisory Committee, Final Report, July 12, 2005. Available at http://dhfs.wisconsin.gov/aboutDHFS/svp/.

        Sexually Violent Persons Transitional Facility Siting Advisory Committee, Final Report, July 12, 2005. Available at http://dhfs.wisconsin.gov/aboutDHFS/svp/. The Committee identified four barriers to completing its charge: (1) lack of public support; (2) lack of political support; (3) lack of resources; and (4) the vagueness of 2003 Wisconsin Act 187.

       We note that the United States Supreme Court has limited the remedy available for a denial of procedural due process to "nominal damages without proof of actual injury." Carey v. Piphus, 435 U.S. 247, 266 (1978). In Farrar v. Hobby, the Court explained:
      The awarding of nominal damages for the 'absolute' right to procedural due process 'recognizes the importance to organized society that [this] righ[t] he scrupulously observed1 while 'remain-ting] true to the principle that substantial damages should he awarded only to compensate actual injury.1 Thus, Carey obligates a court to award nominal damages when a plaintiff establishes the violation of his right to procedural due process but cannot prove actual injury.

        Farrar v. Hobby, 506 U.S. 103, 112 (1992) (quoting Carey, 435 U.S. at 266).


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Mark E. Converse, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. Mark E. Converse, Respondent-Appellant.
    Supreme Court

      No. 2004AP2374-D.

      Submitted on briefs December 13, 2005.

      Decided January 12, 2006.

    2006 WI 4
    (Also reported in 707 N.W.2d 530.)

      For the respondent-appellant there was a brief by Mark E. Converse and Mark E. Converse Law Offices, Green Bay.
    For the complainant-respondent there was a brief by Richard P. Mozinski and Radosevich, Mozinski, Cashman & Olson, LLP, Manitowoc.
   PER CURIAM.

¶ 1. Attorney Mark E. Converse has appealed from a referee's report concluding that he engaged in professional misconduct and recommending that his license to practice law in Wisconsin be suspended for a period of one year.

¶ 2. We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We further determine that the seriousness of Attorney Converse's misconduct warrants the suspension of his license to practice law for a period of one year. We also agree with the referee that the costs of the proceeding, which are $4056.34, as of December 12, 2005, should be assessed against Attorney Converse.

¶ 3. Attorney Converse was admitted to practice law in Wisconsin in 1973 and practices in Green Bay. In 1985 he consented to the imposition of a public reprimand for neglect of a client matter and representation in a conflict of interest situation. In 1992 he was again publicly reprimanded for failing to diligently pursue a client's criminal appeal and failing to turn over the client's file to new counsel. He was also ordered to perform 200 hours of pro bono legal work. See In re Disciplinary Proceedings Against Converse, 168 Wis. 2d 8, 482 N.W.2d 911 (1992). In 1994 Attorney Converse's license was suspended for 60 days for failing to timely file federal and state income tax returns. See In re Disciplinary Proceedings Against Converse, 185 Wis. 2d 373, 517 N.W.2d 191 (1994). In 2004 his license was suspended for 90 days for failing to act with reasonable diligence and promptness in representing a client; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; failing to cooperate with the Office of Lawyer Regulation (OLR) in its investigation into grievances filed by his clients; and failing to reduce a contingent fee agreement to writing. See In re Disciplinary Proceedings Against Converse, 2004 WI 10, 268 Wis. 2d 562, 675 N.W.2d 238.

¶ 4. On September 9, 2004, the OLR filed a complaint alleging six counts of misconduct with respect to Attorney Converse's handling of two client matters. The first matter involved Attorney Converse's representation of R.K. and M.K. who had contracted to have renovations made to their home. A dispute arose between the K.s and the contractors regarding payment for the work performed and the quality of the work. The contractors sued the K.s for breach of contract. A different attorney represented the K.s through the first day of trial. The K.s then fired that attorney and retained Attorney Converse to represent them, agreeing to pay Attorney Converse $120 per hour, plus out-of-pocket costs. The K.s paid Attorney Converse an initial retainer fee of $2500. They were not asked to sign a fee agreement. At the conclusion of the tried on June 1, 2001, the court awarded judgment in favor of the contractors and against the K.s in the amount of $8104.52, plus 5 percent interest from July 5, 1999, to the date of judgment. The judgment was filed with the clerk of circuit court on June 29, 2001.

¶ 5. Immediately after the trial, the K.s told Attorney Converse they wanted to appeal, and Attorney Converse agreed to represent them. The K.s paid Attorney Converse an additional $3500. Attorney Converse asserts this payment was for work done through the trial, while the K.s assert the money was a retainer to pursue the appeal.

¶ 6. Attorney Converse filed the notice of appeal on August 30, 2001, and filed the docketing statement on September 12, 2001. He met with the K.s on September 22, 2001, to discuss their appeal and requested an additional retainer fee. The K.s asked for an itemized statement of fees and costs through the trial. Attorney Converse never provided an itemized statement. On December 3, 2001, Attorney Converse filed a motion requesting additional time to file his appellate brief. The motion was granted and he was given until December 21, 2001, to file the brief. He never filed it.

¶ 7. On January 8, 2002, the court of appeals issued an order dismissing the appeal because no brief had been filed. Attorney Converse received notice of the dismissal on January 10, 2002. On February 15, 2002, the court of appeals entered a remittitur to the circuit court confirming the dismissal of the appeal. Attorney Converse did not tell the K.s about the dismissal and did not mail them copies of either court of appeals order.

¶ 8. The K.s telephoned Attorney Converse several times between September 2001 and February 2002 to discuss the status of their appeal and scheduled several meetings with Attorney Converse, all of which were cancelled. Although the K.s had more than ten contacts with Attorney Converse after January 8, 2002, Attorney Converse never told them the appeal had been dismissed or that he never filed an appellate brief. On February 7, 2002, Attorney Converse met with the K.s to discuss the appeal. Even though the appeal had already been dismissed, Attorney Converse told the K.s he was still working on the brief. He asked for additional money to pursue the appeal, but the K.s did not pay him any additional money and again asked for an itemized statement of fees and costs, which was never provided.

¶ 9. On April 18, 2002, the K.s sent Attorney Converse a certified letter expressing surprise that they had not received copies of the appellate brief. They requested copies of the brief and information about the status of the appeal. Attorney Converse failed to reply to the letter. On May 9, 2002, R.K. telephoned Attorney Converse and talked with him about the status of the appeal. Attorney Converse did not tell R.K. that the appeal had been dismissed and represented he was still working on the brief. On June 30, 2002, the K.s again wrote to Attorney Converse asking for information about the status of the appeal. Attorney Converse failed to reply.

¶ 10. On August 8, 2002, R.K. was at the Shawano County courthouse and learned from the clerk of court that the appeal had been dismissed. R.K. telephoned Attorney Converse and expressed outrage over the dismissal. Attorney Converse said he would get the appeal reopened or file a new action.

¶ 11. R.K. reported Attorney Converse's conduct to the OLR on May 21, 2003. On July 7, 2003, the OLR sent Attorney Converse a letter asking for a written response. Attorney Converse failed to respond. The OLR sent a second request, by both regular and certified mail, on August 7, 2003, informing Attorney Converse that his response must be postmarked by August 18, 2003. On August 18, Attorney Converse telephoned the OLR and said he would send a response the next day. He sent the response on August 22, 2003. In the response, Attorney Converse admitted he had failed to complete the appeal and had failed to communicate with the K.s.

¶ 12. On August 27, 2003, the OLR sent Attorney Converse another letter asking him to provide additional information about the K. matter on or before September 10, 2003. On September 10, Attorney Converse telephoned the OLR and advised he would mail his response on September 15. The response was not sent. On September 30, 2003, the OLR sent Attorney Converse another letter, by both regular and certified mail, informing him that his response must be postmarked by October 10, 2003. Attorney Converse's employee signed the certified mail receipt on October 1, 2003, but Attorney Converse failed to reply. On October 22, 2003, Attorney Converse was personally served with a letter informing him that he had seven days to provide a written response to the OLR's request for additional information. Attorney Converse again failed to reply.

¶ 13. This court issued an order requiring Attorney Converse to show cause why his license should not he suspended for his failure to cooperate with the OLR's grievance investigation. Attorney Converse failed to file a response and on January 23, 2004, this court suspended his license. Attorney Converse finally sent a response to the OLR on January 27, 2004, and Attorney Converse's license was reinstated on January 30, 2004.

¶ 14. The second client matter detailed in the OLR's complaint involved Attorney Converse's representation of M.H., who was convicted of various criminal charges in 1985 and sentenced to 50 years in prison. M.H. appealed, but the appeal was dismissed. His post-conviction proceedings were reinstated in May 2000.

¶ 15. On September 21, 2000, the Brown County Circuit Court appointed Attorney Converse to represent M.H. in postconviction proceedings. M.H. wanted Attorney Converse to file a postconviction motion to modify his sentence. M.H., Attorney Converse and M.H.'s prior counsel exchanged correspondence from May to December 2000. M.H. sent Attorney Converse a summary of issues, a court decision and other information. On December 19, 2000, Attorney Converse wrote to M.H. and acknowledged receipt of the case file.

¶ 16. On February 22, 2001, Attorney Converse met with M.H. in prison. In May and June 2001 M.H. wrote to Attorney Converse inquiring about the status of the case. On June 19, 2001, Attorney Converse wrote to M.H. saying he would prepare a rough draft motion for M.H.'s review.

¶ 17. On July 19, 2001, M.H. wrote to Attorney Converse asking him to block M.H.'s transfer to an out-of-state prison so the postconviction proceedings would not be interrupted. Attorney Converse submitted a letter requesting a hold on M.H.'s transfer. On August 2, 2001, Attorney Converse wrote to M.H. informing him that the request to hold the transfer had been denied. On August 31, 2001, Attorney Converse wrote to M.H. inquiring about his placement status. During September 2001 Attorney Converse and M.H. exchanged correspondence in which M.H. gave Attorney Converse permission to discuss the case with his prior counsel and certain other persons.

¶ 18. On October 2, 2001, M.H. wrote to Attorney Converse enclosing a chronology of the postconviction case to date. M.H. said he was anxious to get the postconviction motion prepared and filed. He also told Attorney Converse he wanted to file a dual motion seeking both sentence modification and a new trial and that he would waive the new trial request if the sentence modification was granted. M.H. offered to perform research and prepare motions and other documents.

¶ 19. On October 15, 2001, Attorney Converse wrote to M.H. accepting his offer of assistance. Attorney Converse asked M.H. to send him a copy of any affidavits he received and to keep in regular contact so Attorney Converse could keep the court informed about the case and obtain a hearing date as soon as possible after the notice, motions, affidavits and supporting briefs were completed.

¶ 20. From mid-October to the end of December 2001 M.H. and an inmate named Richards, who was apparently providing assistance to M.H. in the case, exchanged correspondence with Attorney Converse in which M.H. authorized Attorney Converse to discuss the case with Richards and in which M.H. and Richards asked Attorney Converse to send them a copy of the case file. On December 25, 2001, Richards wrote to Attorney Converse and acknowledged receipt of the file. Richards asked Attorney Converse to order transcripts and exhibits. Attorney Converse wrote to M.H. on January 14, 2002, describing the exhibits that had been ordered. On January 30, 2002, the court issued an order for a copy of transcripts.

¶ 21. On January 30, 2002, Attorney Converse wrote to M.H. saying Attorney Converse had picked up the certified transcripts and had sent the only copies of them to M.H. Attorney Converse wrote to M.H. in February and March 2002 regarding M.H.'s receipt of the transcripts. On March 17, 2002, Richards wrote to Attorney Converse saying Richards was being transferred to another institution and would no longer be daily involved in M.H.'s case. On March 22, 2002, Attorney Converse wrote to M.H. acknowledging receipt of Richards's letter and expressing hope that Attorney Converse would be able to file the motion the next month. On March 25, 2002, Richards sent Attorney Converse and M.H. a draft motion and brief asking for a new trial or sentence modification, notes on transcripts and case law, and original affidavits and other documents. Richards told Attorney Converse he would still need to obtain testimony and statements, along with a supplemental pre-sentence investigation report.

¶ 22. On April 12, 2002, Attorney Converse wrote to M.H. and Richards acknowledging receipt of the documents Richards had sent. Attorney Converse said he would try to obtain any existing transcripts of the additional witnesses' testimony or would attempt to have them prepared. On May 17, 2002, Attorney Converse visited M.H. and picked up the transcripts. On May 20, 2002, Attorney Converse wrote to M.H. and returned two documents he had received from M.H. during their May 17 meeting. Attorney Converse said he would redraft an affidavit and send it to M.H. for his review and signing before a notary public. This letter was the last correspondence M.H. received from Attorney Converse.

¶ 23. On August 25, 2002, Richards wrote to Attorney Converse asking why he continued to delay in finishing and filing the documents. Richards said if the case did not begin to make some progress he would advise M.H. to contact the judge to make him aware of the delays. Attorney Converse never replied to Richards's letter. On October 3, 2002, M.H. wrote to the presiding judge concerning Attorney Converse's promises that he would soon be in a position to file a motion for sentence modification or postconviction relief, the fact that no motion had been filed, and the fact that the last correspondence M.H. had received from Attorney-Converse was dated May 20, 2002. M.H. requested the court's assistance in moving the case along.

¶ 24. M.H. filed a grievance with the OLR complaining about Attorney Converse's lack of diligence in representing him. Attorney Converse submitted a written response to the grievance on July 8, 2003, admitting he had not had contact with M.H. since May 2002 and saying he was extremely sorry. On July 9, 2003, the OLR wrote to Attorney Converse asking him to describe in detail why he had not had any contact with M.H. since May 2002. On July 24, 2003, Attorney Converse submitted his response but failed to provide a detailed answer to the OLR's question. Attorney Converse offered to continue to serve as M.H.'s attorney if M.H. wanted him to do so but also said he would be willing to contact the court if M.H. wanted new counsel.

¶ 25. Attorney Converse enclosed a copy of a letter from M.H. dated July 13, 2003, confirming M.H.'s desire to have Attorney Converse remain his counsel. M.H.'s letter said he had been transferred to Fox Lake Minimum Correctional Institution in April 2003 and that he had received work release privileges. M.H.'s letter also said he wanted Attorney Converse to proceed with the case since Attorney Converse was more familiar with it than a new attorney would be. In his letter to the OLR of July 24, 2003, Attorney Converse said he had completed a rough draft of the motion, would forward a copy of it to M.H. by July 29, would put it in final form and hoped to file it no later than August 10, 2003.

¶ 26. On August 14, 2003, the OLR telephoned Attorney Converse to inquire about the status of the motion. Attorney Converse said the motion was 90 percent done but was not all typed yet. He said he would send the motion to the OLR early the next week. On September 10, 2003, Attorney Converse telephoned the OLR and said the motion was not yet in final form but that he would send it shortly. When asked why it had taken a month to complete the motion, Attorney Converse said it was because of the volume of work he had to do.

¶ 27. On September 14, 2003, M.H. wrote to the OLR and said as of that date he had not received the motion or other documents Attorney Converse had promised to prepare. Attorney Converse never completed a postconviction motion to modify M.H.'s sentence, and the OLR never received any information to demonstrate that Attorney Converse sent a draft of the motion to M.H. On March 10, 2004, the circuit court appointed a different attorney to represent M.H.

¶ 28. John N. Schweitzer was appointed referee in the matter. A hearing was held on February 1, 2005. The referee issued his report on February 28, 2005. The referee concluded that by failing to file an appellate brief for the K.s after having been hired to do so, and by allowing the time for filing a brief to expire resulting in dismissal of the appeal, Attorney Converse violated SCR 20:1.3. The referee also found that by failing to respond to the K.s' requests for information, failing to return telephone calls and respond to letters concerning the status of their appeal, failing to respond to the K.s' request for an itemized statement of fees and costs, and failing to inform the K.s that their appeal had been dismissed, Attorney Converse violated SCR 20:1.4(a). The referee further found that by misrepresenting to the K.s that their appeal was still pending and that he was still working on the appellate brief when in fact he knew the appeal had already been dismissed, Attorney Converse violated SCR 20:8.4(c). In addition, the referee found that by failing to timely respond to the OLR's request for a written response in a grievance investigation and by failing to timely respond to the OLR's request for additional information, Attorney Converse violated SCR 22.03(2) and (6) and SCR 21.15(4).

¶ 29. With respect to the M.H. matter, the referee found that by failing to diligently complete and file a motion to modify M.H.'s sentence, Attorney Converse violated SCR 20:1.3. The referee also found that by failing to communicate with M.H. concerning his case from May 20, 2002, until approximately July 2003 Attorney Converse violated SCR 20:1.4(a).

¶ 30. In discussing the appropriate discipline to impose for this misconduct, the referee noted that Attorney Converse had been disciplined on four prior occasions. The referee also noted that counsel for the OLR enumerated a number of mitigating and aggravating factors present in the case. Aggravating factors included Attorney Converse's prior disciplinary offenses, a pattern of misconduct, intentionally failing to comply with rules or orders of the disciplinary agency, Attorney Converse's substantial experience as a legal practitioner, and harm to his clients. The referee noted the only mitigating factors identified by OLR counsel were the absence of a dishonest or selfish motive and Attorney Converse's remorse. The referee noted that the OLR's counsel said in his interactions with Attorney Converse he found Attorney Converse to be cooperative, decent, and a nice guy.

¶ 31. The referee noted that the OLR sought a one-year suspension of Attorney Converse's license, and he said that Attorney Converse offered no case law to rebut the OLR's position or to suggest that this court has departed from the general approach of progressive discipline. Instead, Attorney Converse argued that the primary objective of discipline is deterrence and he asserted that the conduct that formed the basis for this action all took place prior to October 2003, which was when the hearing was held for the discipline imposed in early 2004. Attorney Converse argued that the salutary effect of the earlier disciplinary proceeding was sufficient to deter him from any further misconduct and that he is now able to better exercise judgment regarding the number and types of cases he will take on. In lieu of a suspension, Attorney Converse proposed a mentoring program whereby a reserve judge would serve as a mentor for him. He also said to address the problems he had with time management he could seek counseling and he suggested the local OLR board could monitor his compliance. He also offered to perform uncompensated community service for agencies such as Wisconsin Judicare or Legal Services of Northeastern Wisconsin.

¶ 32. The referee stated that in rebuttal to Attorney Converse's proposal the OLR pointed out that even though the violations in this case occurred before October 2003, some of them were committed after Attorney Converse had received notice he was being investigated by the OLR for very similar violations and even during October 2003 Attorney Converse failed to cooperate with the OLR in its investigation of these grievances.

¶ 33. The referee said that Attorney Converse had taken no steps to flesh out his proposal for mentoring or counseling. The referee specifically noted that community service and a public reprimand were used as an alternative to suspension in 1992 but those were insufficient to cause Attorney Converse to conform his practice to the rules of professional responsibility and since that time Attorney Converse has caused additional harm to clients and the legal community. The referee concluded that a one-year suspension of Attorney Converse's license was reasonable and he also recommended that Attorney Converse pay the costs of the proceeding.

¶ 34. In his appeal, Attorney Converse does not contest the referee's findings of fact or conclusions of law with respect to the misconduct. The only issue he raises on appeal is the reasonableness of the one-year suspension. He notes that he was suspended from the practice of law for 90 days beginning March 31, 2004, and was reinstated effective July 1, 2004. He complains that after being back in practice for a little more than one month, he received a letter from counsel for the OLR saying that neither the charges to be brought, nor the sanction sought in this proceeding were subject to negotiation and informing him that the sanction sought by the OLR was a one-year suspension of his license. Attorney Converse argues that because he was serving a 90-day suspension at the same time the OLR made the determination to seek an additional one-year suspension, an additional suspension period is not appropriate.

¶ 35. The OLR argues that a one-year suspension is in fact appropriate. It says disciplinary sanctions for repeat attorney offenders are frequently predicated on offenses committed earlier in time than the most recent disciplinary action.

¶ 36. This court will adopt a referee's findings of fact unless they are clearly erroneous. Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may also impose whatever sanction it sees fit regardless of the referee's recommendation. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686. The referee's findings of fact in this case have not been shown to be clearly erroneous, and we adopt them. We also agree with the referee's conclusions of law. We further agree with the referee's recommendation for a one-year suspension of Attorney Converse's license to practice law in Wisconsin and a requirement that Attorney Converse pay the costs of this proceeding.

¶ 37. Over the past 20 years Attorney Converse has repeatedly been found to have engaged in misconduct with respect to his handling of various client matters. This is the fifth time that he is the subject of a disciplinary action. As the referee noted, Wisconsin has long adhered to a system of progressive discipline. The fact that the frequency of Attorney Converse's misconduct has resulted in multiple disciplinary proceedings should not be a basis for imposing a more lenient level of discipline.

¶ 38. The misconduct at issue here was serious, and Attorney Converse offers no excuse for failing to diligently represent the K.s and M.H., or for failing to provide them with information about their cases in spite of their numerous requests that he do so. The fact that he now expresses remorse for his conduct rings hollow, especially in light of his previous disciplinary history. Under the circumstances it is reasonable to impose a one-year suspension of his license to practice law and to require him to pay the costs of the proceeding.

¶ 39. IT IS ORDERED that the license of Mark E. Converse to practice law in Wisconsin is suspended for one year, effective February 23, 2006.

¶ 40. IT IS FURTHER ORDERED that within 60 days of the date of this order, Mark E. Converse pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Mark E. Converse to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 41. IT IS FURTHER ORDERED that Mark E. Converse comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 42.

N. PATRICK CROOKS, J., took no part.

       SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

       SCR 20:1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

       SCR 20:8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       SCR 22.03 provides in relevant part: Investigation.
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.
      (6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.

      SCR 21.15(4) provides that "[e]very attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney’s wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys."


text:
    In the Matter of Disciplinary Proceedings Against Jeffrey A. Kingsley, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jeffrey A. Kingsley, Respondent.
    Supreme Court

      No. 2005AP1298-D.

    Decided January 13, 2006.

    2006 WI 5
    (Also reported in 708 N.W.2d 321.)
    RESEARCH References
   PER CURIAM.

¶ 1. We review the referee's report and recommendation that the license of Attorney Jeffrey A. Kingsley to practice law in the state of Wisconsin be suspended for 60 days, that Attorney Kingsley be ordered to pay restitution in the amount of $2000, and that he be ordered to pay the costs of this disciplinary proceeding. Having conducted our independent review of the matter, we adopt the referee's findings of fact and conclusions of law. Based on those conclusions, we believe that a 60-day suspension is appropriate discipline, and agree to the imposition of restitution and costs.

¶ 2. On May 18, 2005, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Kings-ley regarding his representation of client D.H. The complaint alleged six violations of Wisconsin Supreme Court Rules of Professional Conduct. Count 1 alleged that by failing to prepare and file two lawsuits as promised, Attorney Kingsley failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. Count 2 alleged that by failing to respond to the client's telephone calls and correspondence, Attorney Kingsley failed to keep the client reasonably informed as to the status of the matter and to comply promptly with reasonable requests for information, contrary to SCR 20:1.4(a). Count 3 alleged that by failing to hold the client's retainer in a client trust account, separate from his own property, Attorney Kingsley violated former SCR 20:1.15(a). Count 4 alleged that by failing to return the unearned portion of the client's retainer upon termination of the representation, Attorney Kingsley violated SCR 20:1.16(d). Count 5 alleged that by failing to respond to multiple investigative letters from the OLR and to provide a written response to the client's grievance, Attorney Kingsley willfully failed to cooperate with the investigation of a grievance, in violation of SCR 21.15(4), SCR 22.03(2) and (6), thereby also violating a supreme court rule governing the conduct of lawyers, contrary to SCR 20:8.4(f). Finally, Count 6 alleged that by failing to notify the client of the temporary suspension of hi&- law license and by failing to advise the client to seek other counsel, Attorney Kingsley failed to comply with the requirements of SCR 22.26(l)(a) and (b), thereby also violating SCR 20:8.4(f).

¶ 3. Ultimately, Attorney Kingsley entered into a stipulation and plea agreement whereby he pled no contest to each of the counts in the OLR's complaint. Attorney Kingsley stipulated that the allegations of the complaint could be used by the referee appointed in this case, Konrad T. Tuchscherer, as an adequate factual basis for concluding as a matter of law that Attorney Kingsley had engaged in misconduct as set forth in each of the six counts of the OLR's complaint. The parties further jointly requested that the referee recommend the imposition of a 60-day suspension of Attorney Kingsley's law license, restitution in the amount of $2000 to the Wisconsin Fund for Client Protection (the Fund) and an order that Attorney Kingsley be responsible for paying the costs of the present proceeding, which were $486.10 as of August 25, 2005.

¶ 4. Pursuant to the parties' stipulation and Attorney Kingsley's no contest plea, the referee found that the factual allegations of the complaint had been proven and concluded as a matter of law that Attorney Kingsley had violated the supreme court rules as set forth in the complaint. The referee also adopted the parties' recommendation as to the appropriate discipline. Neither party has filed an appeal from the referee's report and recommendation. Consequently, the matter is submitted to the court for its review pursuant to SCR 22.17(2).

¶ 5. In reviewing a referee's report and recommendation, we affirm the referee's findings of fact unless they are clearly erroneous. See In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). The referee's conclusions of law, however, we review on a de novo basis. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718.

¶ 6. Attorney Kingsley was admitted to the practice of law in Wisconsin on July 20, 1993. He has been the subject of two recent disciplinary proceedings. On March 23, 2004, Attorney Kingsley's license was temporarily suspended due to his failure to cooperate with the OLR's grievance investigation in the present case. His license was also administratively suspended on June 7, 2004, for failing to comply with his reporting requirements for continuing legal education. Attorney Kingsley's license remains suspended.

¶ 7. According to the stipulated facts found by the referee, in January 2003 Attorney Kingsley's law firm was retained by D.H. regarding potential lawsuits against Kenosha County and several City of Kenosha police officers. The firm provided D.H. with the number of a bank account, into which D.H. deposited a $3000 retainer. The account, however, was not a client trust account, and D.H.'s retainer was never transferred to such a trust account.

¶ 8. On February 6, 2003, Attorney Kingsley filed a notice of claim on behalf of D.H. with the Kenosha County Clerk's Office. Attorney Kingsley also gave notice of D.H.'s potential claim to the Kenosha City Clerk.

¶ 9. D.H. subsequently requested and obtained a return of $1000 of her retainer. The remaining $2000 retainer balance continued to remain in the firm's business account.

¶ 10. On April 8, 2003, Attorney Kingsley met with D.H. Attorney Kingsley falsely indicated to her that he had already filed the federal lawsuit against Kenosha County, but had not yet filed suit against the individual police officers. Attorney Kingsley told D.H. that he would file the second lawsuit within one week after his receipt of the names and addresses of the police officers. D.H. immediately provided Attorney Kingsley with that information. At that same meeting, D.H. executed a written fee agreement with Attorney Kingsley's firm providing that Attorney Kingsley would receive $150 per hour for the legal services that he rendered.

¶ 11. Over the course of the next several months, D.H. left various messages at Attorney Kingsley's office regarding the status of her lawsuits, but Attorney Kingsley never responded. At one point, another attorney at the firm spoke with D.H. and informed her that Attorney Kingsley had "dropped the ball on all his clients" and left the state. The attorney attempted to check into the matter and subsequently informed D.H. that the complaints for her lawsuits had been prepared, but had not been filed.

¶ 12. Subsequently, on July 25, 2003, D.H. contacted the OLR concerning her situation. D.H. continued to leave numerous messages on Attorney Kingsley's answering machine inquiring as to the status of her cases, but Attorney Kingsley failed to return any of her calls.

¶ 13. Finally, on August 22, 2003, Attorney Kings-ley informed D.H. that he would file the complaints the following Monday. The OLR attempted to contact Attorney Kingsley three times over the course of the next week to inquire whether Attorney Kingsley had in fact filed D.H.'s complaints. On September 4, 2003, Attorney Kingsley told the OLR's intake staff that he could not file the lawsuits against the individual police officers because they were without merit. That same day, the OLR sent a letter to Attorney Kingsley requesting that he respond to D.H.'s grievance within the next two weeks. Attorney Kingsley failed to respond.

¶ 14. On September 9, 2003, D.H. wrote to Attorney Kingsley inquiring whether he would continue with her cases and requesting that he file the lawsuits by September 26, 2004. If Attorney Kingsley did not wish to proceed with the lawsuits, D.H. requested that he return her remaining $2000 retainer. Attorney Kingsley again failed to respond.

¶ 15. OLR staff wrote letters to Attorney Kingsley on October 21, November 20 and December 28, 2003, requesting that Attorney Kingsley submit a written response to D.H.'s grievance. Attorney Kingsley failed to respond to each of the letters.

¶ 16. On January 10, 2004, D.H. wrote to the OLR indicating that she had been forced to let her claims lapse because Attorney Kingsley had failed to file her complaints or return her $2000 retainer so she could retain other counsel. D.H. continued her attempts to contact Attorney Kingsley, but he did not respond to her calls. Ultimately, D.H. submitted a claim to the Fund, which approved a payment of $2000 to reimburse D.H. for the money she had lost due to Attorney Kingsley's failure to return her retainer. Attorney Kingsley was notified of this payment.

¶ 17. Because of Attorney Kingsley's ongoing failure to respond or cooperate with the OLR's investigation of D.H.'s grievance, this court temporarily suspended Attorney Kingsley's license to practice law in an order dated March 23, 2004. On March 25, 2004, the OLR sent notice to Attorney Kingsley of his responsibilities relating to the suspension of his practice pursuant to SCR 22.26. Those responsibilities include sending a notice by certified mail to each client in a pending matter informing the client that the attorney's license has been suspended and that the attorney will be unable to continue with the representation. Attorney Kingsley failed to provide such notice to D.H. and to advise her that she needed to seek legal representation with another lawyer.

¶ 18. As noted above, Attorney Kingsley ultimately did communicate with the OLR and entered into a stipulation admitting misconduct as alleged in the six counts of the OLR's complaint. Consequently, there was a sufficient basis for the factual findings of the referee, which we adopt. Moreover, the factual allegations of the complaint, as found by the referee, adequately support the referee's conclusions of law that Attorney Kingsley's conduct in the representation of D.H. and in response to the OLR's investigation of D.H.'s grievance violated SCR 20:1.3, SCR 20:1.4(a), former SCR 20:1.15(a), SCR 20:1.16(d), SCR 21.15(4), SCR 22.03(2) and (6), SCR 22.26(1)(a) and (b), and SCR 20:8.4(f).

¶ 19. With respect to the level of discipline, we believe that a 60-day suspension is warranted. Although Attorney Kingsley has not been the subject of disciplinary proceedings prior to the present case, his abandonment of D.H. caused substantial prejudice to her and constituted serious misconduct. Moreover, his failure to comply with his obligations after the temporary suspension of his license to practice law indicates a disregard for the profession's regulations.

¶ 20. IT IS ORDERED that the license of Attorney Jeffrey A. Kingsley to practice law in Wisconsin is suspended for a period of 60 days, effective as of the date of this order.

¶ 21. IT IS FURTHER ORDERED that within 30 days of the date of this order, Attorney Kingsley shall pay restitution to the Wisconsin Fund for Client Protection in the amount of $2000, plus interest at the legal rate of five percent (5%) per annum for the period from the date of the Fund's payment to D.H. until the date of Attorney Kingsley's payment to the Fund.

¶ 22. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Kingsley shall pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showing to this court of his inability to pay those costs within that time, the license of Attorney Kingsley to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 23. IT IS FURTHER ORDERED that if he has not already done so, Attorney Kingsley shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

       SCR 20:1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

       Former SCR 20:1.15 applies to misconduct committed prior to July 1, 2004. Former SCR 20:1.15(a) provides in relevant part that "[a] lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity."

       SCR 20:1.16(d) provides: Declining or terminating representation.

        (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       SCR 21.15(4) provides that "[e]very attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys."

       SCR 22.03 provides in relevant part: Investigation.
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.
      (6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.

       SCR 20:8.4(f) provides that it is professional misconduct for a lawyer to "violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       SCR 22.26(1) provides: Activities following suspension or revocation.
      (1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do all of the following:
      (a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation.
      (b) Advise the clients to seek legal advice of their choice elsewhere.

       SCR 22.17(2) provides: Review; appeal.
      (2) If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter.


text:
    In the Matter of Disciplinary Proceedings Against Eric Leighton Crandall, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Eric Leighton Crandall, Respondent.
    Supreme Court

      No. 2005AP2568-D.

    Decided January 20, 2006.

    2006 WI 6
    (Also reported in 708 N.W.2d 690.)
   The Court entered the following order on this date:

The Office of Lawyer Regulation (OLR) has filed a complaint asking this court, pursuant to SCR 22.22, to suspend Attorney Eric Leighton Crandall's license to practice law in Wisconsin for a period of 90 days as discipline reciprocal to that imposed upon Attorney Crandall in Minnesota.

Attorney Crandall was admitted to practice law in Wisconsin in 1991. He was admitted to practice law in Minnesota in 1988.

On July 28, 2005, the Minnesota Supreme Court ordered that Attorney Crandall be indefinitely suspended from the practice of law, with the right to seek reinstatement after three months, for professional misconduct consisting of neglecting client matters, failing to appear at his clients' court hearings, failing to comply with the rules of discovery, and failing to cooperate fully with the Director of the Office of Lawyers Professional Responsibility. The OLR's complaint alleges that by virtue of having received public discipline imposed by the Minnesota Supreme Court for his violation of the Minnesota Rules of Professional Conduct, Attorney Crandall is subject to reciprocal discipline in Wisconsin pursuant to SCR 22.22. The complaint also alleges that by failing to notify the OLR of the suspension of his Minnesota law license within 20 days of the effective date of that jurisdiction's imposition of a suspension for professional misconduct, Attorney Crandall violated SCR 22.22(1).

SCR 22.22(3) provides that this court shall impose the identical discipline or license suspension unless the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a due process violation; there was such an infirmity of proof establishing the misconduct that this court could not accept as final the misconduct finding; or the misconduct justifies substantially different discipline here.

Attorney Crandall filed a letter response to the OLR's complaint on November 29, 2005 stating two reasons why he believes reciprocal discipline to be inappropriate. First, he says the punishment imposed by the Minnesota Supreme Court exceeds the punishment that the court would impose under similar circumstances. He says, "Three months suspension for essentially missing three court appearances is excessive. Additionally two of the seven Minnesota Supreme Court Justices disagreed with the length of the suspension." (Two justices would have allowed Attorney Cran-dall to seek reinstatement after two months.) Second, Attorney Crandall says he does not believe it is appropriate for this court to impose discipline for acts or omissions outside the state's borders.

None of the three exceptions set forth in SCR 22.22(3) for imposing reciprocal discipline exists here. The documents relating to the Minnesota disciplinary action that are attached to the OLR's complaint indicate that Attorney Crandall had the opportunity to be heard in the Minnesota action. There is no showing that there was such an infirmity of proof establishing the misconduct that this court could not accept as final the misconduct findings made by the Minnesota Supreme court. While Attorney Crandall argues that the misconduct justifies substantially different discipline in Wisconsin, it appears that a 90-day suspension of an attorney's license is consistent with what would be imposed on Wisconsin lawyers for similar misconduct. We conclude that it is appropriate to impose reciprocal discipline to that imposed by the Minnesota Supreme Court.

IT IS ORDERED that the license of Attorney Eric Leighton Crandall to practice law in Wisconsin is suspended for three months, effective February 20, 2006, and until the further order of this court;

IT IS FURTHER ORDERED that Attorney Cran-dall shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.