author: PER CURIAM.

text:
    In the Matter of the Bar Admission of Heather A. Rippl: Heather A. Rippl, Petitioner, v. Board of Bar Examiners, Respondent.
    Supreme Court

      No. 00-2706-BA.

      Oral argument October 3, 2001.

    Decided February 22, 2002.

    2002 WI 15
    (Also reported in 639 N.W.2d 553.)

      For the petitioner there were briefs by Michael B. Van Sicklen and Foley & Lardner, Madison, and oral argument by Michael B. Van Sicklen.

    For the respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   PER CURIAM.

¶ 1. This is a review, pursuant to SCR 40.08(5), of the final decision of the Board of Bar Examiners (Board) declining to certify that the petitioner, Heather A. Rippl, satisfied the character and fitness requirement for admission to the Wisconsin bat-set forth in SCR 40.06(1). We reverse and remand the matter to the Board for further proceedings.

¶ 2. We preface our analysis by stating that we appreciate the Board's concern regarding this candidate. The Board conducts a character and fitness inquiry for every applicant who seeks admission to the State Bar of Wisconsin. See SCR 40.06(1). In Ms. Rippl's case, that inquiry revealed some troubling incidents in Ms. Rippl's past that raised substantial questions about her fitness to practice law. The fact that most of these incidents occurred when Ms. Rippl was younger, and before she sought and obtained psychiatric treatment, does not divest them of relevance. Our task here is to determine whether these incidents are sufficiently serious that the candidate should be permanently excluded from admission to the bar.

¶ 3. We also recognize that the Board is in a delicate position when a bar applicant's character certification presents a’"close call." The duty to examine applicants' qualifications for bar admission rests with the Board. Matter of Bar Admission of Childs, 101 Wis. 2d 159, 303 N.W.2d 663 (1981). However, it is this court that retains supervisory authority over bar admissions. See SCR 30.02. If the Board admits a questionable candidate, that admission effectively deprives this court of the opportunity to review the Board's decision because, obviously, a successful applicant will not seek review of the Board's decision. For that reason, we perceive the Board's unwillingness to approve the candidate in a close case such as this as a tacit recognition of this court's ultimate responsibility for regulating admission to the Wisconsin bar.

¶ 4. However, while we appreciate that the Board may have felt constrained to find that Ms. Rippl's various infractions precluded certifying her character and fitness for purposes of bar admission, we are of the opinion that incidents the Board relied upon, while certainly troubling, are not of sufficient gravity to warrant a conclusion that Ms. Rippl should be forever barred from admission to the practice of law in this state.

¶ 5. In so holding we are influenced by Ms. Rippl's strong academic record, which she achieved while working several jobs and performing extensive community service. We are also influenced by Ms. Rippl's evidence of rehabilitation as reflected in the glowing testimonials provided by numerous employers" for whom Ms. Rippl worked. We also note that it does not appear that Ms. Rippl willfully failed to disclose any relevant information on her bar application. See SCR 22.46(2). Finally, we consider that the negative effect of her earlier conduct is diluted by the questionable reliability of some of the information concerning that conduct.

¶ 6. We therefore conclude that Ms. Rippl's record, while troubling in certain of its particulars, is not sufficient, when reviewed in the context of this proceeding, to warrant the conclusion that she has failed to establish the requisite character and fitness to be admitted to the practice of law in Wisconsin.

¶ 7. With that preface, we turn to the specifics of this case. Ms. Rippl had a difficult childhood. In her early teens she left home and lived in foster care homes, group homes and youth centers. She enrolled at the UW-Madison in the fall of 1989. Prior to the start of fall semester classes she withdrew from school and moved to California. She returned to school in January 1990 and resided in a campus residence hall for her freshman year. During this semester Ms. Rippl's college roommates accused her of stealing personal items from them. Ms. Rippl denied the charges but was convicted, following a jury trial, of misdemeanor theft. That fall a neighbor for whom she babysat also accused Ms. Rippl of taking property from her. She was not formally charged in connection with the matter although she later admitted she "had the items."

¶ 8. In 1994 Ms. Rippl received her undergraduate degree in Psychology from the UW-Madison, graduating in five years, with honors. She supported herself through college by working several jobs and performed extensive community service.

¶ 9. In 1995 Ms. Rippl enrolled in law school at the UW-Madison. She maintained a good grade point average, earned a Law Merit Scholarship and was selected as a managing editor of the Wisconsin Law Review. She worked multiple jobs and performed extensive community service. Her employers uniformly spoke highly of her work ethic and character. During law school she also sought psychiatric counseling from Dr. Julie Nielsen, a Board certified psychiatrist with the University of Wisconsin Student Health Service.

¶ 10. In November 1997, during her last year of law school, Ms. Rippl sought admission to the bar pursuant to SCR 40.03 (the "diploma privilege"). In connection with her application, Ms. Rippl disclosed that she had received treatment for mild depression while in law school and that she had been prescribed Prozac. She also disclosed the misdemeanor theft conviction from her freshman year in college. In June 1998 she voluntarily supplemented her bar application, disclosing a municipal ordinance citation for disorderly conduct that occurred during her third year of law school. The citation stemmed from an argument with a police officer outside her residence when Ms. Rippl "lost her temper" because the officer declined to move his unmarked vehicle, which was blocking her own car.

¶ 11. Ms. Rippl graduated from the University of Wisconsin Law School in 1998. However, the disclosures in her bar application prompted the Board to require that Ms. Rippl submit to an independent psychological evaluation by a Board approved psychologist. Dr. Michael Speirer, a forensic psychologist, conducted the evaluation and issued his initial report in February 1999. At the Board's request he submitted a supplemental report dated May 12, 1999.

¶ 12. On July 15,1999, the Board issued an initial ruling denying Ms. Rippl's application on the grounds that she had failed to demonstrate that she satisfied the character and fitness requirement for bar admission set forth in SCR 40.06(1). Ms. Rippl timely objected to the Board's initial ruling and requested and received a hearing. At the hearing on March 21, 2000, Ms. Rippl submitted numerous affidavits in support of her application from several former and current employers, including two circuit court judges. She submitted her own affidavit addressing the incidents that formed the factual basis for the Board's initial adverse decision. She offered testimony from several witnesses including several previous and current employers. She responded to questions from the Board and provided the sworn medical opinion of her own psychiatrist.

¶ 13. On September 6, 2000, the Board issued its final decision declining to certify that Ms. Rippl had satisfied the requirements for admission to practice. The final decision was the same, in all material respects, as the initial decision. Ms. Rippl sought review of the Board's final decision in this court pursuant to SCR 40.08(5).

¶ 14. Ms. Rippl contends that the Board's decision reflects an erroneous exercise of discretion because the Board's findings do not reflect consideration of any of the evidence she submitted at the evidentiary hearing. She contends further that the record evidence does not support several of the Board's factual findings and maintains that she did satisfy the criteria for admission to the bar set forth in SCR 40.06(1).

¶ 15. We first address the relevant legal standards and applicable standard of review. A candidate for admission to the bar bears the burden of proof to establish the qualifications for bar admission set forth in SCR 40.02 including the character and fitness requirement set forth in SCR 40.06. See SCR 40.07. Pursuant to SCR 40.06(3), the applicant must establish character and fitness to the satisfaction of the Board, whose duty it is to certify to this court the character and fitness of qualifying applicants. Matter of Bar Admission of Martin, 181 Wis. 2d 27, 29, 510 N.W.2d 687 (1994).

¶ 16. In a review pursuant to SCR 40.08(5) of an adverse determination of the Board, the court adopts the Board's findings of fact if they are not clearly erroneous. Matter of Bar Admission of Crowe, 141 Wis. 2d 230, 232, 414 N.W.2d 41 (1987). The court then determines whether the Board's conclusions of law based on those facts are proper. In making that determination, the court is appreciative of the Board's experience in administering the court's bar admission rules, but the court is obligated to make its legal determinations de novo. Matter of Bar Admission of Rusch, 171 Wis. 2d 523, 492 N.W.2d, 153 (1992). Like the Board, we consider whether the applicant possesses the character and fitness to practice law using the guidelines established in BA 6.02 and BA 6.03.

¶ 17. We now turn to the Board's factual findings as set forth in its final decision, which are as follows:

A. The applicant was discharged from employment in 1988 [while a high school car hop at A & W] for a cash drawer discrepancy, which she blamed on her probation officer;
B. the applicant was arrested in 1990, and later tried and convicted for theft from her college roommate, denied and continues to deny the truth of the facts, blaming her roommate;
C. the applicant was accused of theft in 1991, while on probation for the above-described conviction, by a neighbor whose children she was hired to care for, giving a false name to the police at the time, later denying she did so;
D. the applicant was dropped from the Deferred Prosecution Program while on probation for the conviction described in (A) above for the reason that she did not cooperate, though the applicant blamed being so dropped on her financial status;
E. the applicant left her first law school without paying tuition, subsequently agreed to pay it, but failed to do so pursuant to that agreement;
F. the applicant acquired — and paid — enough parking tickets to, in her words, "wallpaper a room" evincing a continuing disregard for the law;
G. the applicant was involved in an altercation with a police officer in 1998 while in law school, blamed her car for causing the problem for which she was ultimately cited, received — and paid — a citation for disorderly conduct;
H. the applicant admitted the excessive use of alcohol while in college, but refused to discuss her use of other drugs with the evaluator.. . thereby concealing and not disclosing relevant facts;
I. on several instances, sufficient to suggest a pattern, the applicant took action to avoid stress, including dropping out of undergraduate school in her freshman year, dropping out of law school in her first year, flying to Rome then flying to Amsterdam on short notice because of a "sense of increasing stress at work" (returning on the eve of a scheduled evaluation appointment), both in 1998 while her application for admission to the practice of law was pending and while active inquiries to her remained open.
J. The applicant stated that her medication makes her "not suicidal for the most part."

Additional factual findings regarding Ms. Rippl's personality profile were derived from the psychological reports submitted by Dr. Speirer.

¶ 18. Record evidence supports many of the Board's factual findings. We have already noted that Ms. Rippl was convicted of misdemeanor theft for taking a bracelet from her roommate during her freshman year in college. Ms. Rippl also admits that the same year she also took items from a neighbor whose children she was hired to care for and that she initially refused to cooperate with the investigating police officer, although she was not formally charged in connection with the incident. It is also undisputed that in 1998 Ms. Rippl was cited for disorderly conduct stemming from the aforementioned altercation with a police officer. And, Ms. Rippl admits to having received numerous parking tickets while in law school.

¶ 19. These factual findings depict a candidate who certainly merits the Board's concern. And, like the Board, we find the degree of prevarication that accompanies Ms. Rippl's explanations for various incidents a point of concern. However, we are compelled to conclude that the record does not support a number of the Board's factual findings or the adverse inferences drawn from them. Our own review of the record also suggests that there is more to Ms. Rippl than the Board's factual findings, taken alone, would suggest.

¶ 20. For example, the Board found that when Ms. Rippl was still in high school, in 1988, she was "discharged" from her employment as an A & W "carhop" "for a cash drawer discrepancy, which she blamed on her probation officer." However, the record does not support the finding that Ms. Rippl was under the supervision of a probation officer at that time or that she was discharged in connection with that incident or, indeed, that the "cash drawer discrepancy" was anything more than an accident. In her sworn affidavit, Ms. Rippl explains that on one occasion she apparently lost a $50 bill during a shift. She says that she told her manager of the cash shortfall and that they jointly concluded that the bill may have blown away or otherwise been lost. She acknowledges that she was "scolded for being sloppy and inattentive" but denies that she was discharged or otherwise charged in connection with this incident and there is no record evidence to the contrary.

¶ 21. The Board also found that Ms. Rippl was dropped from the deferred prosecution program for "failure to cooperate." Ms. Rippl acknowledges that she failed to complete the program. However, she avers that it was because she was unable to comply with the financial requirements associated with participation in the program and notes that her failure to complete the program did not affect her successful completion of probation. The record evidence before this court simply does not support the finding that willful lack of cooperation was the reason for Ms. Rippl's failure to complete the program.

¶ 22. In a similar vein, the Board initially found that Ms. Rippl left her first law school without paying $525.83 owed for tuition and "subsequently failed to follow through on an agreement to pay the tuition." But, by the time of the evidentiary hearing, it is undisputed that Ms. Rippl had paid the outstanding tuition bill in full. However, the Board's final decision makes the same factual finding regarding the unpaid tuition and does not reflect that the tuition bill was paid.

¶ 23. We also conclude that the fact that Ms. Rippl admitted that she received enough parking tickets in her words, to "wallpaper a room" does not support the Board's inference that Ms. Rippl thus evinces a "continuing disregard for the law." In her sworn affidavit, Ms. Rippl explains that she intended that comment as a "sarcastic, off-the-cuff remark . . . meant for comic effect." It is also undisputed that she promptly paid each of the tickets. Her comment may have been ill advised in the context of this proceeding, but we cannot agree that numerous paid parking tickets, without more, necessarily evince a "continuing disregard for the law."

¶ 24. The Board made the further finding that Ms. Rippl had admitted the excessive use of alcohol while in college and that she refused to discuss her use of illegal drugs with Dr. Speirer. In her sworn affidavit, Ms. Rippl admits that she occasionally drank to excess when she was a college student at the University of Wisconsin-Madison. She emphatically denies any use of illegal drugs. She maintains that she does not have a drinking problem and that no one has ever suggested that she has a problem with alcohol.

¶ 25. The record supports her assertion. Dr. Speirer's report explicitly notes that "adult drinking has never been a problem .. . and no one has identified it as a problem." Therefore, while the Board's factual finding may have some support in the record, there appears to be no record evidence to support the Board's apparent inference that Ms. Rippl currently suffers from chemical dependency issues that might affect her ability to practice law.

¶ 26. Similarly, the Board found Ms. Rippl's medication makes her "not suicidal for the most part." Ms. Rippl admits to occasional suicidal tendencies prior to November 1996 and that, prior to December 1997, Prozac was prescribed for her depression. She maintains that she has now been "free of any symptom of depression for over a year and a half." She avers further that she "is not suicidal." Therefore, the significance of the Board's finding is unclear, particularly in light of Dr. Nielsen's sworn statement opining that Ms. Rippl's psychological condition "warrants pharmacological treatment ONLY if it recurs" and that it "will NOT impair her ability to practice law independently and unsupervised." (Emphasis in original).

¶ 27. We briefly address the Board's findings regarding Ms. Rippl's personality profile. In each of its initial and final decisions the Board relies heavily on the two psychological reports submitted by Dr. Speirer. Ms. Rippl does not challenge Dr. Speirer's conclusions. Rather, Ms. Rippl argues that the Board's findings with respect to her psychological profile take the negative aspects of Dr. Speirer's reports out of context.

¶ 28. Dr. Speirer stated that Ms. Rippl's background and behavior raised concerns about her honesty, trustworthiness, and integrity. However, he acknowledged positive character traits as well, stating that "[Ms. Rippl] is capable of working independently and is likely to function and be seen as a reliable employee."

¶ 29. We decline to conclude that the Board's factual findings regarding Ms. Rippl's psychological profile are clearly erroneous. However, we note that in making its findings of fact, the Board appears to have completely discounted the sworn opinion of Ms. Rippl's treating psychiatrist during law school, Dr. Julie Nielsen, a Board certified psychiatrist.

¶ 30. The Board contends that it is entitled to "choose the more negative evaluation of Dr. Speirer" over the conclusions of Dr. Nielsen, who opined that Ms. Rippl is psychologically fit to practice law. The Board explains further that "[e]vidence showing that Rippl did well in law school, works hard, is self-reliant and performed community service does not answer the Board's concerns." The Board thus discounted the professional recommendations Ms. Rippl produced, asserting that these lawyers and judges:

. . . were not in a good position to address these questions either. They observed her working under close supervision as a law clerk or its equivalent where she neither personally handled other people's property nor got individually involved in the heat of legal advocacy and where she was likely to be on her best behavior in any event.

¶ 31. Thus, the Board explains that it did not ignore the evidence introduced at the hearing; rather, it deemed that evidence "essentially irrelevant" to the question whether Ms. Rippl has the necessary character and fitness to practice law. The Board maintains that, in any event, it is not required to specify the evidence it declined to rely on.

¶ 32. We agree that it is enough if the findings of fact and conclusions of law are sufficiently specific to indicate that the Board undertook a reasonable examination of the facts and the law. See, e.g., State v. Jeske, 197 Wis. 2d 905, 912, 541 N.W.2d 225 (Ct. App. 1995). Unfortunately, in this case, the Board's final decision is virtually identical to its initial decision. As such, the final decision does not reflect the Board's consideration of the extensive documentary and testimonial evidence offered at the hearing, thereby hindering our review.

¶ 33. However, we need not review or adopt every finding of fact of the Board. We are of the opinion that the incidents the Board relied upon, while troubling, are not of sufficient gravity to warrant a conclusion that Ms. Rippl failed to meet her burden to establish character and fitness to practice law.

¶ 34. As we noted previously, in reaching this conclusion we are influenced by evidence of Ms. Rippl's rehabilitation, as demonstrated by the positive testimonials provided by numerous employers for whom Ms. Rippl worked, describing Ms. Rippl as "diligent, trustworthy and hardworking" and who aver she "demonstrated honesty and integrity, and at all times acted in an ethical and responsible manner". We find these recommendations highly relevant to the question of whether Ms. Rippl can maintain appropriate professional behavior and demeanor. We also note that both Dr. Nielsen and Dr. Speirer agreed that:

Heather Rippl is a bright and capable individual with a well-developed intellect. She is an analytical thinker, can reason well and manifests strong determination and zeal. She has the ability to pursue both personal and intellectual interests that reflect a high level of tenacity.

¶ 35. In addition, Dr. Nielsen offered the following sworn opinion of Ms. Rippl's disturbing behavior in college:

The behaviors by Heather ... are not extraordinarily unusual nor indications of a character pathology for a young adult like Heather coping with uncertain and challenging personal relationships while trying to do well in a rigorous academic program. In Heather's case it is important to note that she affirmatively and voluntarily sought out appropriate assistance when she felt she needed it. She did so while holding down part-time jobs concomitant to performing at a very high level at both undergraduate and law school levels. Heather was not forced to see me or to request medication; rather, she proceeded in a very mature fashion to seek assistance when and as she needed it.

¶ 36. We also considered Ms. Rippl's strong academic record, particularly in light of the fact that she achieved this academic record while working several jobs and performing extensive community service.

¶ 37. The court takes seriously its responsibility for matters of bar admission and we do not make this decision lightly. We contemplated admitting this candidate subject to some sort of monitoring requirements as we have done in disciplinary cases involving attorneys with a history of chemical dependency. See, e.g., Reinstatement of License of Burke, 211 Wis. 2d 166, 564 N.W.2d 340 (1997). Ultimately, we deemed such an option impractical here. We also considered upholding the Board's refusal to certify the applicant's character but indicating that she could reapply for admission to the bar after some period of time, as we have done in other cases. See, e.g., Matter of Bar Admission of Radtke, 230 Wis. 2d 254, 601 N.W.2d 642 (1999). However, more than four years have passed since Ms. Rippl first sought admission to the bar in November 1997. We conclude that no purpose would be served by requiring additional delay.

¶ 38. Ultimately, we are of the opinion that the incidents from Ms. Rippl's past, while certainly troubling, are not of sufficient gravity for us to conclude that Ms. Rippl should be forever barred from admission to the practice of law in this state. Indeed, we hold that the record evidence, taken as a whole, does not support the conclusion that she has failed to establish the requisite character and fitness to be admitted to the practice of law in Wisconsin.

¶ 39. Because we reverse the decision of the Board declining to certify Ms. Rippl's character and fitness for bar admission for the reasons stated, it is unnecessary to address the constitutional arguments set out in her brief.

¶ 40. IT IS ORDERED that the decision of the Board of Bar Examiners' declining to certify that Heather A. Rippl has satisfied the requirements for admission to the practice of law in Wisconsin is reversed and the matter is remanded to the Board for further action consistent with this opinion.

       References to supreme court rules will be to those in effect after October 1, 2000.
      SCR 40.08(5) provides that "[a] petition to the supreme court for review of an adverse determination of the board under this rule shall be filed with the clerk within 30 days of the date on which written notice thereof was mailed to the applicant."

       SCR 40.06(1) provides:
      (1) An applicant for bar admission shall establish good moral character and fitness to practice law. The purpose of this requirement is to limit admission to those applicants found to have the qualities of character and fitness needed to assure to a reasonable degree of certainty the integrity and the competence of services performed for clients and the maintenance of high standards in the administration of justice.

       SCR 30.02 provides: Official duties
      Board members, board staff and board counsel acting in the course of their official duties under the statutes and SCR chapters 30, 31 and 40 and supreme court orders are acting on behalf of the supreme court.

       SCR 22.46(2) provides:
      (2) In the investigation, the applicant shall make a full and fair disclosure of all facts and circumstances pertaining to questions involving the applicant's character and fitness. Failure to provide information or misrepresentation in a disclosure constitutes grounds for denial of admission.

       Ms. Rippl was convicted of taking a silver bracelet valued . at approximately $7 from her college roommate. The conviction was formally expunged from Ms. Rippl's record upon her satisfactory completion of her two-year probationary sentence.

       We take this opportunity to remind the judiciary to review SCR 60.03(2). See also Judicial Disciplinary Proceedings Against Waddick, 2000 WI 11, 232 Wis. 2d 733, 605 N.W.2d 861.

       SCR 40.02 provides: Qualifications generally
      A person who meets all of the following qualifications shall be admitted to practice law in this state by order of the supreme court:
      (1) Has attained the age of majority under the law of this state.
      (2) Satisfies the legal competence requirements by diploma privilege (SCR 40.03), bar examination (SCR 40.04) or proof of practice elsewhere (SCR 40.05).
      (3) Satisfies the character and fitness requirements set forth in SCR 40.06.
      (4) Takes the oath or affirmation prescribed in SCR 40.15 in open court before the supreme court or a justice thereof or before a member of the highest court of another jurisdiction or a person authorized by that jurisdiction to administer the attorney's oath for bar admission there or before a judge of the U.S. District Court or Court of Appeals or a justice of the U.S. Supreme Court.
      (5) Subscribes the roll of attorneys maintained by the clerk of the supreme court or has his or her name entered thereon by the clerk.

       SCR 40.07 provides that "[t]he burden of proof shall be on the applicant to establish qualifications under SCR 40.02. Refusal of an applicant to furnish available information or to answer questions relating to the applicant's qualifications shall be deemed a sufficient basis for denial of the certification for admission."

       SCR 40.06(3) provides:
      An applicant shall establish to the satisfaction of the board that the applicant satisfies the requirement set forth in sub. (1). The board shall certify to the supreme court the character and fitness of qualifying applicants. The board shall decline to certify the character and fitness of an applicant who knowingly makes a materially false statement of material fact or who fails to disclose a fact necessary to correct a misapprehension known by the applicant to have arisen in connection with his or her application.

       BA 6.02 provides: Relevant conduct
      The revelation or discovery of any of the following should be treated as cause for further inquiry before the Board decides whether the applicant possesses the character and fitness to practice law:
      (a) unlawful conduct
      (b) academic misconduct
      (c) false statements by the applicant, including concealment or nondisclosure

        (d) acts involving dishonestly or misrepresentation
      (e) abuse of legal process
      (f) neglect of financial responsibilities
      (g) neglect of professional obligations
      (h) violation of an order of a court
      (i) evidence of mental or emotional impairments
      (j) evidence of drug or alcohol dependency
      (k) denial of admission to the bar in another jurisdiction on character and fitness grounds
      (l) disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction

       BA 6.03 provides that the Board shall consider:
      (a) the applicant's age at the time of the conduct
      (b) the recency of the conduct
      (c) the reliability of the information concerning the conduct
      (d) the seriousness of the conduct
      (e) the mitigating or aggravating circumstances
      (f) the evidence of rehabilitation
      (g) the applicant's candor in the admissions process
      (h) the materiality of any omissions or misrepresentations
      (i) the number of incidents revealing deficiencies

       One troubling procedural irregularity in this case involves the fact that Ms. Rippl was told she would be entitled to a copy of Dr. Speirer's report, for which she paid. Ms. Rippl did receive a copy of the initial report. However, the Board requested that Dr. Speirer prepare a supplemental report. Neither Ms. Rippl nor her counsel learned of or received a copy of the supplemental report until the very end of the evidentiary hearing the following year. As we have previously cautioned the Board in a case involving a similar evidentiary issue, it would have been the "better practice" for the Board to have notified Ms. Rippl of the supplemental report and of the Board's intent to rely on that report in reaching a determination on the question of her character and fitness for bar admission. See Matter of Bar Admission of Radtke, 230 Wis. 2d 254, 267, 601 N.W.2d 642 (1999).

       Specifically, the Board explains that it was concerned about Ms. Rippl's "history of theft and other financial difficulties." In the Board's judgment, Ms. Rippl's "passive aggressive personality... raises questions about her ability to maintain appropriate professional behavior in her relationships with judges, opposing attorneys, and others involved in the stressful environment of adversarial litigation."


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Thomas D. Baehr, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Thomas D. Baehr, Respondent.
    Supreme Court

      No. 01-1959-D.

      Decided February 26, 2002.

    2002 WI 17
    (Also reported in 639 N.W.2d 708.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Thomas D. Baehr and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12 setting forth findings of fact and conclusions of law regarding Attorney Baehr's professional misconduct in failing to keep a client reasonably informed about the status of a matter; willfully failing to cooperate with OLR grievance investigations; failing, upon termination of the representation, to take steps to the extent reasonably practicable to protect a client's interest; and failing to act with reasonable diligence and promptness in representing a client. The parties also stipulated to a six-month suspension of Attorney Baehr's license to practice law and the requirement that he make restitution of $500 to one client as discipline for his misconduct. We also review the report and recommendation of the referee, Cheryl Rosen Weston, approving the stipulation and recommending that the discipline proposed by the parties be accepted by the court.

¶ 2. We approve the stipulation and adopt the stipulated facts and conclusions of law. We also conclude that the seriousness of Attorney Baehr's misconduct warrants the suspension of his license to practice law for six months, and we order that he make restitution of $500 to one client.

¶ 3. Attorney Baehr was admitted to practice law in Wisconsin in 1985 and resides in Stevens Point. On February 9, 2000, this court ordered a 90-day suspension of Attorney Baehr's law license effective March 20, 2000, as discipline for misconduct consisting of failing to take any action on behalf of an incarcerated client he was appointed by the state public defender to represent on appeal and on a claim of ineffective assistance of previous counsel, failing to communicate in any way with that client, and failing to respond to numerous requests for information from the former Board of Attorneys Professional Responsibility and the Board's district investigative committee concerning his conduct in the client's matter. See Disciplinary Proceedings Against Baehr, 2000 WI 8, 232 Wis. 2d 606, 605 N.W.2d 523.

¶ 4. On February 22, 2001, this court temporarily suspended Attorney Baehr's license to practice law after he failed to respond to the court's order to show cause for his non-cooperation with OLR's grievance investigations. Attorney Baehr has not sought reinstatement from either of the suspensions.

¶ 5. The current disciplinary proceedings against Attorney Baehr involve three separate legal matters. The first involves a couple who hired Attorney Baehr in the spring of 1999 to represent them in a bankruptcy. The couple paid Attorney Baehr $1125, which was to cover the filing fee as well as the handling of the bankruptcy case to conclusion, including drafting and filing documents relating to redemption and reaffirmation of both a first and second mortgage. Attorney Baehr completed reaffirmation of only the second mortgage.

¶ 6. As noted above, on February 9, 2000, Attorney Baehr's license to practice law was suspended for 90 days effective March 20, 2000, for professional misconduct in an unrelated matter. During the month of May 2000 the couple left five or six messages for Attorney Baehr in which they requested his assistance in resolving the reaffirmation of their first mortgage. Attorney Baehr failed to return any of those calls. On June 2, 2000, the couple sent a letter by certified mail to Attorney Baehr in which they described their disappointment in his failure to return their calls. The letter said the legal matter was urgent in that it involved the couple being able to keep their home. The couple stated if they did not hear from Attorney Baehr by June 9, 2000, they would obtain a new attorney and request that the filing fee of $175 be returned to them. Although Attorney Baehr personally signed the return receipt for the certified letter on June 5, 2000, he never responded.

¶ 7. The couple hired new counsel and incurred additional legal expenses that they would not have been charged if Attorney Baehr had resolved the matter for them. The couple was unable to finalize the payment plan without a completed reaffirmation and as a result the property went into foreclosure.

¶ 8. On August 25, 2000, an OLR staff investigator sent the couple's grievance to Attorney Baehr and requested him to provide a written response within 20 days. When he failed to respond, the OLR staff investigator sent a follow-up letter to Attorney Baehr on September 22, 2000, via certified mail with a request that he submit a written response to the couple's grievance no later than October 2, 2000. The letter also advised Attorney Baehr of his duty to cooperate and the consequences he could expect if he failed to comply. Although Attorney Baehr personally signed the return receipt for the certified letter on October 11, 2000, he failed to submit a response or otherwise contact OLR staff.

¶ 9. On November 14, 2000, the OLR staff investigator sent Attorney Baehr a notice to appear via certified and first-class mail, informing him that he was required to appear at OLR's office in Madison on November 29, 2000, with his file. Attorney Baehr personally signed the return receipt for the notice to appear but failed to appear at the appointed time.

¶ 10. The second claim of misconduct involves Attorney Baehr's representation of a man whose ex-wife sued him in Wood county small claims court alleging that her employer was garnishing her wages for a past debt that her ex-husband had been ordered to pay in their divorce case. The small claims case requested a money judgment against Attorney Baehr's client in excess of $3400. The return date in the case was February 7, 2000. The client, who had been represented by Attorney Baehr in a past, unrelated matter, hired Attorney Baehr to represent him at the February 7, 2000, appearance. The client said he also expected Attorney Baehr to represent him for the remainder of the case. Attorney Baehr contended he was only hired for the February 7 court appearance.

¶ 11. Attorney Baehr appeared in court on February 7, 2000, and asked the court to dismiss the lawsuit. The court denied the request. On February 15, 2000, the court issued a notice of hearing scheduling the small claims case for a court trial on March 21, 2000. The original notice was filed with the court and copies were sent to Attorney Baehr and to the plaintiff.

¶ 12. Attorney Baehr did not inform his client of the trial date. No one appeared on the client's behalf at the trial, and the court issued a default judgment against the client in the amount of $3511.18. On March 23, 2000, the court issued a notice of entry of judgment in favor of the plaintiff and against Attorney Baehr's client. The original notice was filed with the court and copies were mailed to Attorney Baehr and the plaintiff. Attorney Baehr did not forward either the notice of hearing or the notice of entry of judgment to his client, nor did he inform the client of the trial date or of the entry of judgment in the matter. The client learned the judgment had been entered against him when his employer began garnishing his wages.

¶ 13. The client filed a grievance against Attorney Baehr, and Attorney Baehr provided an initial response. By letter dated August 28, 2000, the OLR staff investigator asked Attorney Baehr to provide additional information. Attorney Baehr was asked to reply by September 11,2000, but failed to do so. On October 9, 2000, the OLR staff investigator sent Attorney Baehr a follow-up letter by certified mail requesting his written response no later than October 30, 2000. In the letter, the investigator reminded Attorney Baehr of his duty to cooperate and informed him of the consequences if he did not reply. Although Attorney Baehr personally signed the certified mail return receipt on October 11, 2000, he did not respond or otherwise contact the OLR.

¶ 14. On November 14, 2000, the OLR staff investigator sent Attorney Baehr a notice to appear via certified and first-class mail, informing him that he was required to appear at OLR's office on November 29, 2000, with his file regarding this grievance. Attorney Baehr personally signed the return receipt for the notice to appear hut did not appear at the appointed time.

¶ 15. The third claim of misconduct involved Attorney Baehr's representation of a Green Bay resident who was arrested in Portage county for operating his vehicle after revocation of suspension as a second offense. The man's initial appearance was scheduled for December 7, 1999, in Portage County Circuit Court in Stevens Point. The man did not appear, and the court found probable cause and issued a bench warrant for his arrest.

¶ 16. On December 10, 1999, the man contacted Attorney Baehr to represent him in the case. Attorney Baehr told the man that a retainer of $500 was required. The man mailed a $500 check to Attorney Baehr that same day. Attorney Baehr cashed the check.

¶ 17. Attorney Baehr was to contact the district attorney's office to discuss the ticket and was to make a court appearance for the man. Attorney Baehr told the man he would be notified by mail of the result. Attorney Baehr had the man's address and telephone numbers for both his residence in Green Bay and his home and work location in St. Cloud, Minnesota.

¶ 18. On July 7, 2000, the man was detained by Green Bay police, who informed him there was a warrant for his arrest in Portage county. The man was transported to Portage county and spent the weekend in jail.

¶ 19. On July 10, 2000, the man learned that Attorney Baehr no longer practiced law, that he never appeared in court for the man, and that he never contacted the district attorney's office in the matter. The criminal case against the man was eventually resolved, without Attorney Baehr's participation, by means of a plea bargain whereby the man paid a fine.

¶ 20. On August 25, 2000, an OLR staff investigator sent the man's grievance to Attorney Baehr and requested that he provide a written response within 20 days. No response was received from Attorney Baehr. On September 22, 2000, the OLR investigator sent a follow-up letter to Attorney Baehr via certified mail with a request that he submit a written response to the grievance no later than October 2, 2000. The letter also advised Attorney Baehr of his duty to cooperate and the consequences he could expect if he failed to comply. Although Attorney Baehr personally signed the return receipt for the certified letter on October 11, 2000, he did not submit a response or otherwise contact the OLR.

¶ 21. On November 14, 2000, the OLR investigator sent Attorney Baehr a notice to appear via certified and first-class mail, informing him that he was required to appear at OLR's office on November 29, 2000, with his file regarding the grievance. Attorney Baehr personally signed the return receipt for the notice to appear on November 24, 2000, but failed to appear at OLR's office on November 29, 2000.

¶ 22. The parties stipulated, and the referee agreed, that Attorney Baehr's actions in the foregoing matters constituted the following professional misconduct:

(a) His failure to respond to telephone messages left by the first clients regarding the bankruptcy matter and his failure to reply after receiving a certified letter from them violated SCR 20:1.4(a).
(b) His failure to forward the circuit court's notice of hearing and notice of entry of judgment to the second client and his failure to return the $500 retainer to the third client despite his failure to perform any legal services violated SCR 20:1.16(d).
(c) His failure to take any action on the third client's behalf after being paid a $500 retainer violated SCR 20:1.3.
(d) His failure to respond to requests from OLR staff to provide written responses to the clients' grievances and his failure to appear or otherwise contact staff after he received a notice to appear violated SCR 21.15(4), 22:001(9)(b), and 22:03(6).

¶ 23. We adopt the findings of fact and conclusions of law set forth in the parties' stipulation, as approved by the referee. Attorney Baehr's actions are serious matters warranting a suspension of his license to practice law. A six-month suspension of his license is appropriate discipline for his professional misconduct.

¶ 24. IT IS ORDERED that the license of Thomas D. Baehr to practice law in Wisconsin is suspended for a period of six months, effective April 2, 2002.

¶ 25. IT IS FURTHER ORDERED that within 60 days of the date of this order Thomas D. Baehr make restitution of $500 to the client he was retained to represent on the operating a vehicle after revocation or suspension charge. In the event restitution is not paid within the time specified and absent a showing to this court in writing of his inability to pay restitution within that time, the license of Thomas D. Baehr to practice law in Wisconsin shall remain suspended until further order of the court.

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

¶ 27. IT IS FURTHER ORDERED that Thomas D. Baehr 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 22.12 provides: Stipulation
      (1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
      (2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.
      (3) If the supreme court rejects the stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.
      (4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.

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

       SCR 22:1.16(d) provides:
      (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 20:1.3 provides: "Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client."

       SCR 21.15(4) provides:
      (4) Every 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 22.001(9) provides:
      "Misconduct" means any of the following:
      (b) Failure to cooperate in the investigation of a grievance.
      SCR 22.03(6) provides that "[i]n 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."


text:
    In the Matter of Disciplinary Proceedings Against Mark R. Prichard, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Mark R. Prichard, Respondent.
    Supreme Court

      No. 02-0266-D.

      Decided February 26, 2002.

    2002 WI 16
    (Also reported in 639 N.W.2d 714.)
   The Court entered the following order on this date:

Upon consideration of the petition for consensual license revocation filed by Attorney Mark R. Prichard pursuant to current SCR 22.19 in which he acknowledges that he cannot successfully defend against 77 counts of misconduct in 20 separate client matters as alleged against him in a disciplinary complaint prepared by the Office of Lawyer Regulation and upon consideration of his additional assertion that he now knowingly and voluntarily waives his right to a formal hearing on the misconduct allegations which include:

• failure to cooperate with all 20 Board of Attorneys Professional Responsibility/Office of Lawyer Regulation grievance investigations in violation of SCR 21.03(4), 22.07(2) and 22.07(3) [all in effect prior to October 1, 2000];
• not acting with reasonable diligence and promptness in representing a client in 16 of those matters in violation of SCR 20:1.3;
• failing to keep his clients informed and comply with reasonable requests for information in 11 of those matters in violation of SCR 20:1.4(a);
• failing to explain a matter in one case to the extent reasonably necessary to permit the client to make informed decisions regarding the representation contrary to SCR 20:1.4(b);
• failing to maintain funds in his client trust account in connection with a representation in eight matters contrary to SCR 20:1.15(a);
• failing, in 19 matters, upon termination of representation, to take steps to the extent reasonably practicable to protect a client's interest, including failing to return papers, property, or unearned fees contrary to SCR 20:1.16(d); and
• in 2 matters engaging in dishonesty, fraud, deceit, or misrepresentation contrary to SCR 20:8.4(c).

And further upon consideration of the Office of Lawyer Regulation recommendation that Mark R. Prichard's petition for consensual license revocation be granted,

IT IS ORDERED that the license of Mark R. Pri-chard to practice law in the state is revoked as of the date of this order.

IT IS FURTHER ORDERED that Mark R. Prichard comply with the provision of SCR 22.26 concerning the duties of a person whose license to practice law has been revoked.

ANN WALSH BRADLEY, J., did not participate.


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael J. Carlson, Defendant-Appellant.

    Court of Appeals

      No. 01-1088.

      Submitted on briefs October 15, 2001.

    Decided December 19, 2001.

    2002 WI App 44
    (Also reported in 641 N.W.2d 451.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher A. Mutschler of Anderegg & Mutschler, LLP, Fond du Lac.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael E. O'Rourke of Green Lake District Attorney's Office, Green Lake.

      Before Nettesheim, EJ., Anderson and Snyder, JJ.

       Petition to review denied 4-22-02.

   ANDERSON, J.

¶ 1. Michael J. Carlson appeals a circuit court order finding "unreasonable" his refusal to submit to a chemical test requested pursuant to Wis. Stat. § 343.305 (1999-2000). Carlson seeks dismissal of his refusal conviction based on claims of procedural error. First, he argues that the court lacked the authority to appoint, or to accept the appointment of, a special prosecutor in this case because the statute authorizing the use of special prosecutors is limited to cases that are not civil. Second, he argues that the refusal charge should be dismissed with prejudice because he was sanctioned for the refusal before his hearing was granted.

¶ 2. The facts are undisputed. Carlson was charged in Green Lake County for operating a motor vehicle while under the influence of an intoxicant contrary to Wis. Stat. § 346.63(l)(a). Subsequent to his arrest, Carlson allegedly refused a request by the arresting officer to provide a blood sample for chemical analysis pursuant to Wisconsin's implied consent law, Wis. Stat. § 343.305. Carlson then timely requested a hearing on whether his alleged refusal to submit to an implied consent test was improper. The trial court, however, denied the request as untimely on the grounds that it believed weekends and holidays were counted when determining whether a request for a hearing had been received within the statutorily allotted ten-day period. The trial court ordered revocation of Carlson's license to begin thirty days after the date of his refusal pursuant to § 343.05(10). Carlson's attorney filed a letter memorandum regarding the method for counting days under § 343.305(9), urging the court to reconsider its position. The court did not reverse itself.

¶ 3. Shortly thereafter, the clerk of courts attended a seminar at which she learned that the method for counting elapsed days under the implied consent law previously suggested by Carlson's attorney was correct. The trial court then issued an order reversing its revocation order; at this point, Carlson's license had been revoked for a significantly brief period of time, nineteen days.

¶ 4. A hearing was held on November 27, 2000, regarding whether Carlson's alleged refusal to submit to chemical testing was improper. At the hearing, the State was represented by a special prosecutor, the City of Markesan City Attorney appointed by the trial court. Carlson objected to the court's assignment of a city attorney as a special prosecutor for the State of Wisconsin on the ground that the statute that permits the court to assign special prosecutors does not permit assignment in cases that are purely civil. Carlson objected to the assignment as a procedural issue, and as a remedy requested that the refusal charge be dismissed and that evidence of the refusal be suppressed at trial. The court denied Carlson's objection to the appointment stating that it was the "court['s] policy" to appoint the city attorney. Carlson raised a second procedural objection claiming that his due process rights were violated because he had been prejudiced by the court's erroneous decision to deny him a refusal hearing prior to his driver's license being revoked. As a remedy, he asked for dismissal of the refusal charge as well as suppression at trial. After considering both grounds for objection, the refusal hearing proceeded and the court found Carlson's refusal to be improper and resolved all other issues adversely to Carlson. Carlson appeals.

¶ 5. At the outset, we note that on appeal Carlson does not challenge the trial court's finding that his refusal was improper. Rather, Carlson renews the two procedural challenges he made at the refusal hearing. First, he argues that the court lacked the authority to appoint a special prosecutor in this case because the statute authorizing the use of special prosecutors is limited to cases that are not civil. Carlson is incorrect. He calls to our attention only a part of the statute and, in so doing, he ignores that a complete reading gives the court almost unfettered authority to appoint a special prosecutor to perform "the duties of the district attorney." Wis. Stat. § 978.045(lr).

¶ 6. The construction of a statute and its application to undisputed facts are questions of law which we determine de novo. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 233, 568 N.W.2d 31 (Ct. App. 1997). The guiding principle in statutory construction is to discern legislative intent. State v. Irish, 210 Wis. 2d 107, 110, 565 N.W.2d 161 (Ct. App. 1997). We first look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986).

¶ 7. The authority to appoint a special prosecutor is derived from Wis. Stat. § 978.045, which provides in pertinent part:

(lg) A court on its own motion may appoint a special prosecutor under sub. (lr) or a district attorney may request a court to appoint a special prosecutor under that subsection. . . .
(lr) Any judge of a court of record, by an order entered in the record stating the cause therefor, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney. The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury or John Doe proceedings or in investigations.... (Emphasis added.)

¶ 8. The plain language of Wis. Stat. § 978.045 authorizes two distinct ways in which a court may appoint a special prosecutor. This is signified by the use of the word "or." Subsection (lg) states that a court may appoint a special prosecutor either on its own motion "or" when a district attorney makes a request that the court do so. Carlson directs us to the sentence in the statute that authorizes the court's appointment of a special prosecutor when it is at the request of a district attorney; this is but one of two authorized ways a court may appoint a special prosecutor. See § 978.045(lr). Carlson ignores the preceding sentence that authorizes the court to appoint a special prosecutor on its own motion. See id. We agree with Carlson that the part of the statute that he relies upon for his argument lists, and arguably restricts, the circumstances in which a court may appoint a special prosecutor. However, any restriction, if one exists, is triggered only when the appointment is made at the request of a district attorney, not when the appointment is made by a court on its own motion.

¶ 9. In the case at bar, the appointment was made by the court on its own motion. A plain reading of the statute tells us that when a court makes this appointment on its own motion, all that is required of the court is that it enter an order in the record "stating the cause therefor." Wis. Stat. § 978.045(lr). Then, the appointed special prosecutor may "perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney." Id. In short, if a court makes a special prosecutor appointment on its own motion, it is constrained only in that it must enter an order in the record stating the cause for the appointment. Here, the court fulfilled its duty by stating on the record that it was appointing a special prosecutor and giving its reasons why:

The refusal hearing would normally be conducted by the district attorney. And we have run into problems in this county where that essentially vests the defense with two kicks at the same cat. And so as a matter of maintaining a fair playing field, we have simply requested ... a special appointment so that the district attorney doesn't have to learn the whole case in order to go through a refusal hearing, only to turn the case back, if that's what the outcome is. So that's the court policy or practice.. ..

Thus, the court acted within its discretion when it appointed a special prosecutor to handle Carlson's refusal hearing.

¶ 10. Carlson's second argument is that the refusal charge should have been dismissed with prejudice because he was sanctioned for the refusal by having his license revoked for nineteen days before his hearing was granted. Carlson claims that we must reverse his conviction because the trial court made a "fundamental" error when it failed to grant him a predeprivation refusal hearing based upon its erroneous belief that his request for a hearing was untimely. In the alternative, Carlson argues that if we find that the trial court error was not fundamental but technical in nature, we should nonetheless reverse because he was prejudiced by the error and therefore a sanction is in order for the technical error committed by the court. For the reasons set forth below, we do not dismiss.

¶ 11. At the threshold, Carlson is correct when he asserts that, once issued, a driver's license is considered a property interest under the protection of the Due Process Clause. Bell v. Burson, 402 U.S. 535, 539 (1971). As a general rule, due process requires that an individual be given notice and an opportunity to be heard before he or she may he deprived of his or her property. United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993).

¶ 12. The analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), has long guided courts in their efforts to define appropriate due process protections. In Eldridge, the Supreme Court held that due process did not require that a hearing be held prior to the termination of Eldridge's disability benefits under the Social Security Act. Id. at 349. In its holding, the Court stated that there are three factors for consideration in determining when a prior hearing is required to afford due process:

[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would • entail.

Id. at 335.

¶ 13. The Eldridge Court specifically stressed the truism that " 'due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Id. at 334 (citation omitted). Rather, explained the Court, "(d)ue process is flexible and calls for such procedural protections as the particular situation demands." Id. (citation omitted).

¶ 14. In two subsequent decisions, the Supreme Court applied the Eldridge factors in upholding the termination of driving privileges prior to a hearing. The first, Dixon v. Love, 431 U.S. 105 (1977), involved an Illinois truck driver, Dennis N. Love. Id. at 110. Love was initially suspended because of three traffic convictions within a twelve-month period. Id. He was suspended a second time for driving while his license was suspended and he was suspended a third time for three speeding convictions in a twelve-month period. Id. Upon the third suspension, his license was revoked under the Illinois Vehicle Code's provisions for having been suspended three times within a ten-year period. Id. at 111. Love did not request a postrevocation hearing; instead, he immediately filed suit claiming that he had a right to a prerevocation hearing. Id.

¶ 15. Especially relevant to our decision is the Supreme Court's holding in Love (after examining the three Eldridge factors) that a driver's license, though important, was "not so great as to require" a prerevo-cation evidentiary hearing. Love, 431 U.S. at 113. The Court held that the governmental interest for such a procedure of revocation was great. Id. at 115. Most important was the public interest in removing from the road drivers who were public hazards. Id.

¶ 16. The second decision in which the Supreme Court applied the Eldridge factors, Mackey v. Montrym, 443 U.S. 1 (1979), involved a Massachusetts resident, Donald E. Montrym, whose driver's license was suspended for refusing to submit to a breath-analysis test. Id. at 5. In considering the first factor, the Court noted that the property interest (the driver's license) was the same as the interest involved in Love, and though there were some factual differences, they did not mandate a presuspension hearing. Id. at 11-12. Similarly, the governmental interest (the third factor) of highway safety was held to be at least the same as in Love. Montrym, 443 U.S. at 19.

¶ 17. Indeed, it would appear that the governmental interest in Montrym was even greater than in Love. In Montrym, as in our case, the suspension involved an especially dangerous subgroup of unsafe drivers, drunken drivers. See Montrym, 443 U.S. at 4-5. The Montrym Court cited drunk driving fatality statistics for Massachusetts and stated: "States surely have at least as much interest in removing drunken drivers from their highways as in summarily seizing mislabeled drugs or destroying spoiled foodstuffs." Id. at 17 (other situations justifying State action against property interests prior to a hearing).

¶ 18. In its consideration of the second factor, the risk of erroneous deprivation, the Montrym Court went beyond the holding of Love. Whereas the risk of an erroneous deprivation was considered minimal in Love because the basis of the revocation was the presence of three suspensions on the licensee's record, the basis of the action in Montrym was the report of a police officer's observations. Montrym, 443 U.S. at 4-5. The evidence that was required for a licensee's suspension, the Court stated, was that "the driver has been arrested for driving while under the influence of an intoxicant, probable cause exists for arrest, and the driver refuses to take a breath-analysis test." Id. at 13-14. In regard to the risk of error in the officer's determination, the Court said:

The officer whose report of refusal triggers a driver's suspension is a trained observer and investigator. He is, by reason of his training and experience, well suited for the role the statute accords him in the presuspension process. And, as he is personally subject to civil liability for an unlawful arrest and to criminal penalties for willful misrepresentation of the facts, he has every incentive to ascertain accurately and truthfully report the facts.

Id. at 14. The Court concluded that the risk of error in the presuspension procedures was not so substantial as to deny the licensee due process of law. Id. at 15.

¶ 19. With these Supreme Court cases in mind, we turn to Carlson's second argument: that the refusal charge should be dismissed with prejudice because he was sanctioned for the refusal before his hearing was granted. The question presented is whether, after weighing the Eldridge factors and taking into account the trial court error, should Carlson's refusal charge be dismissed with prejudice.

¶ 20. We first consider the Eldridge factors. The initial step in the balancing process mandated by Eld-ridge is identification of the nature and weight of the private interest affected by the official action challenged. Here, as in Love and Montrym, the private interest affected is the granted license to operate a motor vehicle. The Supreme Court recognized in Love and reiterated in Montrym that the driver's interest in the continued possession and use of his or her license is a substantial one, and a licensee is not made entirely whole if his or her suspension or revocation is later vacated. Love, 431 U.S. at 113; Montrym, 443 U.S. at 11. Nonetheless, the Court concluded that the nature of the private interest is not so great as to require an eviden-tiary hearing prior to revocation or suspension. Love, 431 U.S. at 113.

¶ 21. Here, the official action challenged is the trial court's prehearing revocation of Carlson's license, which was based on the trial court's erroneous belief that Carlson had failed to timely request a hearing. Carlson served a brief nineteen-day revocation of his driver's license before the trial court recognized its error and immediately acted to vacate its revocation order and grant Carlson a hearing. Although Carlson cannot be made entirely whole, having been erroneously deprived of his property interest for nineteen days, we do not believe under these facts that the nature or the weight of the private interest involved compels us to reach a different result than the Supreme Court did in Love and Montrym.

¶ 22. The second stage of the Eldridge inquiry requires consideration of the likelihood of an erroneous deprivation of the private interests involved as a consequence of the procedures used. The Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible property interest be so comprehensive as to preclude any possibility of error. Montrym, 443 U.S. at 13. We recognize that Carlson was briefly erroneously deprived of his driver's license; however, we nonetheless believe that there is in general a low possibility of an erroneous deprivation of the private interests involved as a consequence of the procedures used. The procedure that requires a defendant to request a hearing within ten days or be revoked is reasonable and we hold that the risk that a court will improperly calculate the ten days and thus deprive a defendant of private interests as a consequence of the procedures used is not significant, even though it happened here.

¶ 23. The third leg of the Eldridge balancing test requires us to weigh the governmental interest with the procedures used. The governmental interest, as in Love and Montrym, is highway safety. More specifically, as in Montrym, the safety hazard is drunk drivers. The Wisconsin Supreme Court has stated on many occasions that the purpose behind Wis. Stat. § 343.305 is "to facilitate the identification of drunken drivers and their removal from the highways." State v. McMaster, 206 Wis. 2d 30, 46, 556 N.W.2d 673 (1996). It is clear that a serious threat to human life and well-being is posed by drunk drivers. Drunk driving and its consequences represent one of our society's gravest problems. "[T]he general purpose behind laws relating to operating while under the influence of intoxicants is 'to get drunk drivers off the road as expeditiously as possible and with as little possible disruption of the court's calendar.' " Id. (citation omitted). A summary revocation of driving privileges if a hearing is not timely requested, even with the risk of procedural error in determining the timeliness of a request, serves the purpose of deterring drunk driving and removing drunk drivers from public roads. Therefore, the application of the statute to Carlson was not contrary to the governmental interests.

¶ 24. We now address the fact that the trial court erred in its original order to deny Carlson a hearing and revoke his license. In this case, we first determine whether the error was a "fundamental error" or merely a "technical error." See State v. Gautschi, 2000 WI App 274, ¶ 9, 240 Wis. 2d 83, 622 N.W.2d 24, review denied, 2001 WI 15, 241 Wis. 2d 211, 626 N.W.2d 808 (Wis. Feb. 7, 2001) (No. 99-3065). Whether a defect is fundamental or technical is a question of law that we review de novo. Id. If the error is merely technical, we look to see whether the party was prejudiced by the error. Id. If the defect is fundamental, however, whether the party was prejudiced is irrelevant. Id.

¶ 25. To determine whether an error is technical or fundamental, we look to the purpose of the statute, not just its wording. Id. at ¶ 11. If the purpose of the rule was fulfilled, the defect was not fundamental but technical. Id. The statute at issue is Wis. Stat. § 343.305. Again, we emphasize that the Wisconsin Supreme Court has stated on many occasions that the purpose behind § 343.305 is "to facilitate the identification of drunken drivers and their removal from the highways." McMaster, 206 Wis. 2d at 46. "[T]he general purpose behind laws relating to operating while under the influence of intoxicants is 'to get drunk drivers off the road as expeditiously as possible and with as little possible disruption of the court's calendar.'" Id. (citation omitted).

¶ 26. The general purpose of the statute was fulfilled; the court's action went to the purpose of the statute and sought to remove a potential drunk driver from the road as expeditiously as possible and with as little possible disruption of the court's calendar. The court determined that Carlson had not made a timely request for a prerevocation hearing and ordered that his license be revoked. See Wis. Stat. § 343.305(10). In fact, Carlson had made a timely request. Carlson's license was revoked for nineteen days before the trial court recognized its error.

¶ 27. We conclude that even though Carlson was improperly revoked for nineteen days, this revocation was due to a technical error on the trial court's part which, when recognized, was immediately addressed by the trial court. Further, after Carlson was afforded a prerevocation hearing, the court found that he refused to submit to the chemical test as the law mandates, and based on the improper refusal, the court revoked Carlson's operating privileges for one year. The trial court made every effort to give Carlson the process due him when it vacated its initial revocation and granted Carlson "an opportunity to be heard at a meaningful time and in a meaningful manner." See State v. Moline, 170 Wis. 2d 531, 541, 489 N.W.2d 667 (Ct. App. 1992). Keeping in mind the dictate that due process is "flexible and calls for such procedural protections as the particular situation demands," we hold that in this particular situation, the error was technical and nonprejudicial. See Eldridge, 424 U.S. at 334.

By the Court. — Order affirmed.

       The test for a refusal under the implied consent law used to be "reasonableness." Wis. Stat. § 343.305(2) (b)5 (1975). However, the reasonableness test was eliminated in the late 1970's. Thereafter, the test has been whether the person has shown that the refusal was due to a physical inability to submit to the test. Wis. Stat. § 343.305(8)(b)2 (1977). That remains the test today. Wis. Stat. § 343.305(9)(a)5c (1999-2000). Despite this change, many lawyers and judges still harken back to the "reasonableness" language in implied consent cases. Most of the implied consent cases now use the words "proper" or "improper" when addressing a refusal instead of "reasonable" or "unreasonable"; we do so here.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
      Wisconsin Stat. § 343.305 provides in relevant part:
      (2) Implied consent. Any person who . .. drives or operates a motor vehicle upon the public highways of this state ... is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol.. ..
      (9) Refusals; notice and court hearing, (a) If a person refuses to take a test... the law enforcement officer shall immediately take possession of the person's license and prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege... .
      (10) Refusals; court-ordered revocation, (a) If the court determines under sub. (9)(d) that a person improperly refused to take a test or if the person does not request a hearing within 10 days after the person has been served with the notice of intent to revoke the person's operating privilege, the court shall proceed under this subsection. If no hearing was requested, the revocation period shall begin 30 days after the date of the refusal....

       In State v. Bollig, 222 Wis. 2d 558, 570-71, 587 N.W.2d 908 (Ct. App. 1998), we stated that the purpose behind the different ways in which a special prosecutor may be appointed is targeted at controlling the Department of Administration (DOA) expenditures. We explained the significance of the two ways in which a special prosecutor can be appointed and specifically concluded that "the central purpose of appointments under § 978.045(lr) is to assure that the State will not have to pay for the services of a special prosecutor under circumstances not anticipated in the statute." Bollig, 222 Wis. 2d at 571.

       The part of the statute that Carlson relies upon states: "The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury or John Doe proceedings or in investigations." Wis. Stat. § 978.045(lr).

       Because we find authority for the court's appointment elsewhere in the statute, we need not reach whether the listed circumstances, which relate back to the appointments made at the request of the district attorney, are meant to restrict the type of cases in which a court may appoint a special prosecutor when the appointment is made at the request of a district attorney.

       The district attorney is authorized to appear in all refusal hearings. Wis. Stat. § 978.05(6).

       Because the central purpose of Wis. Stat. § 978.045 is to control the DOA's expenditures, an error in the appointment of a special prosecutor that does not impose unwarranted expenses upon the DOA results in no prejudice to the defendant and the trial court does not lose its competency to proceed. See Bollig, 222 Wis. 2d at 560.

       We couch our discussion in terms of "fundamental error" and "technical error" to correspond with Carlson's argument that the trial court made a "fundamental error" when it failed to grant him a predeprivation hearing. In so doing, we recognize that in the context of whether a court has acquired personal jurisdiction over a party, there is an important distinction between a "fundamental error" and a "technical error" — "where a defect prevents the purpose of the statute from being served" it is a "fundamental error." State v. Gautschi, 2000 WI App 274, ¶ 11, 240 Wis. 2d 83, 622 N.W.2d 24. In the context of our discussion, we use "fundamental" to describe a basic or elementary error and "technical" to describe an insignificant or trifling error. We do not imply that the failure of the circuit court to give Carlson a predeprivation héaring divested the court of personal jurisdiction over Carlson.
      We also point out that neither the State nor Carlson adequately discussed the remedy available when a party is denied a predeprivation hearing. Contrary to Carlson's argument that he is entitled to a reversal of the order finding his refusal to be unreasonable, all he is entitled to is a postdepri-vation hearing, which he received in this case. Procedural due process requires nothing more than the opportunity to he heard at a meaningful time in a meaningful manner. State v. Nordness, 128 Wis. 2d 15, 32-34, 381 N.W.2d 300 (1986).