author: N. PATRICK CROOKS, J. SHIRLEY S. ABRAHAMSON, C.J.

text:
    State of Wisconsin—Department of Corrections, Petitioner-Respondent-Petitioner, v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondent, James Dowell, Respondent-Appellant.
    Supreme Court

      No. 03-2001.

      Oral argument February 3, 2005.

    Decided March 24, 2005.

    2005 WI 34
    (Also reported in 693 N.W.2d 703.)

      For the petitioner-respondent-petitioner there were briefs by Robert G. Pultz, Madison, and oral argument by Robert G. Pultz.

    For the respondent-appellant there was a brief and oral argument by Michael K. Gould, assistant state public defender.
   N. PATRICK CROOKS, J.

¶ 1. The Department of Corrections (DOC) seeks review of a published decision of the court of appeals, DOC v. Schwarz, 2004 WI App 136, 275 Wis. 2d 225, 685 N.W.2d 585, which reversed an order of the Milwaukee County Circuit Court, Timothy G. Dugan, Judge. The circuit court had reversed a decision from the Division of Hearings and Appeals (DHA) that held the DOC did not have jurisdiction under Wis. Stat. § 304.072(3) (2001-02) to revoke the parole of Respondent James Dowell (Dowell). The issue presented on appeal is whether § 304.072(3) provides the DOC jurisdiction to revoke parole for any violation occurring between the offender's initial release on parole and the date of discharge on the underlying sentence, or whether its jurisdiction is limited to violations occurring during the offender's current period of parole.

¶ 2. We hold that the phrase "term of supervision" in Wis. Stat. § 304.072(3) is ambiguous, since it can reasonably be interpreted to apply to both the current term of supervision and any time prior to the final discharge from an underlying sentence. We rely upon extrinsic sources such as the legislative history and relevant case law behind § 304.072(3), and the interplay among parole statutes to determine that the phrase "term of supervision" was intended to apply to all parole violations that occur before the offender's date of discharge from his or her entire sentence. We conclude that the legislature intended to promote offender accountability and, therefore, the DOC had jurisdiction to revoke Dowell's parole for a violation that he committed during his first period of parole supervision.

I

¶ 3. The relevant facts of this case are not in dispute. On March 30, 1994, Dowell was convicted of two counts of armed robbery and one count of operating a vehicle without owner's consent in Milwaukee County Circuit Court. Judge Maxine A. White sentenced him to 90 months in Wisconsin State Prisons. After serving nearly three years of his sentence, Dowell was paroled in May 1997. However, the DOC revoked his parole in March 1998 and returned him to prison.

¶ 4. Dowell served three more years in prison and was paroled again on July, 17, 2001, due to Wisconsin's mandatory release law, Wis. Stat. § 302.11(1). Subsequently, while Dowell was on parole, the DOC became aware of evidence that Dowell's DNA matched semen found on the clothing of a victim of a sexual assault and armed robbery that had been committed on May 23, 1997, during Dowell's first of two periods of parole. The DOC was unaware of information linking Dowell to these crimes when it recommended a revocation of Dowell's first parole in March 1998. Based on the new allegations, the DOC sought to revoke Dowell's second parole and force him to serve the final two years, one month, and 14 days of his sentence in prison.

¶ 5. After a revocation hearing on June 18, 2002, an Administrative Law Judge (ALJ), Andrew Riedmaier, ruled that the DOC lacked jurisdiction to revoke parole based on conduct committed during an earlier parole term. He concluded that any subsequent parole is a new and distinct "term of supervision." The ALJ relied on Wis. Stat. § 304.072(3), which limits the DOC's jurisdiction to actions taken prior to the expiration of the parolee's "term of supervision." The ALJ determined that since the second revocation request was not during the same "term of supervision" as the alleged violation, the DOC did not have jurisdiction.

¶ 6. The DOC appealed this ruling to the Administrator of the DHA, David H. Schwarz (Schwarz). Schwarz affirmed the ALJ's decision and agreed with the interpretation of Wis. Stat. § 304.072(3), that the DOC's jurisdiction applies only to the current term of supervision, not a subsequent term of supervision. Moreover, Schwarz held that the ALJ's decision was consistent with the DOC's past practices, as the Department has never sought to revoke any person's parole supervision based on conduct that occurred during a previous term of parole.

¶ 7. The DOC petitioned for certiorari review in Milwaukee County Circuit Court. On May 2, 2003, the circuit court, Timothy G. Dugan, Judge, reversed the decision of the DHA. The court held that the phrase "term of supervision" in Wis. Stat. § 304.072(3) could reasonably be interpreted to mean a prisoner's entire sentence. The court concluded that the purpose of the statute was to codify State ex rel. Cox v. DHSS, 105 Wis. 2d 378, 314 N.W.2d 148 (Ct. App. 1981), by extending the DOC's jurisdiction beyond a parolee's final date of discharge, when revocation proceedings are commenced before the discharge date. Accordingly, the court held that the jurisdiction of the DOC exists until the parolee's final discharge from his or her entire sentence. The court read § 304.072(3) in conjunction with Wis. Stat. § 304.06(3) and other statutes governing parole supervision. The DHA appealed.

¶ 8. The court of appeals reversed the circuit court in a split decision. It concluded that Wis. Stat. § 304.072(3) unambiguously limits the DOC to pursuing parole revocation for violations committed during a parolee's current parole term of supervision. Judge Patricia S. Curley, writing for the majority, determined that the phrase "term of supervision" in § 304.072(3) means the current term of supervision. Unlike the circuit court, the court of appeals did not consider extrinsic sources when interpreting § 304.072(3), because it found the plain language unambiguous. Schwarz, 275 Wis. 2d 225, ¶ 11. The court also cited policy concerns to justify the Hmitation of the DOC's jurisdiction. It held that violations from prior periods of parole would be hard to prove and difficult to defend against, and that serious violations committed during an earlier parole period could be addressed through new criminal charges. Id., ¶ 16.

¶ 9. In dissent, Judge Charles B. Schudson found the phrase "term of supervision" in Wis. Stat. § 304.072(3) ambiguous, because reasonable, well-informed State officials could not agree on its meaning. Judge Schudson relied on extrinsic sources such as apparent legislative intent, case law, and the interplay of statutes, to determine that the phrase "term of supervision" encompasses an individual's entire sentence. He specifically noted that the apparent legislative intent behind § 304.072(3) and the provision's interplay with other parole statutes, specifically Wis. Stat. §§ 302.11(6) and (7)(d), make clear that the court of appeals erroneously interpreted the statute. Id., ¶¶ 19-20 (Schudson, J., dissenting).

¶ 10. The DOC petitioned for review of the decision of the court of appeals. We accepted review, and we now reverse.

I — I HH

¶ 11. This case turns on whether the phrase "term of supervision" within Wis. Stat. § 304.072(3) allows the DOC to retain jurisdiction over a prisoner's entire sentence. This issue of statutory interpretation presents a question of law, which we review de novo, independently of the reasoning of the circuit court and court of appeals, but benefiting from their analyses. See State v. Lombard, 2004 WI 95, ¶ 17, 273 Wis. 2d 538, 684 N.W.2d 103.

¶ 12. The purpose of statutory interpretation is to "determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110." We assume that the legislature's intent is expressed in the statutory language.'" Lombard, 273 Wis. 2d 538, ¶ 18 (quoting Kalal, 271 Wis. 2d 633, ¶ 44).

¶ 13. Accordingly, our analysis of Wis. Stat. § 304.072(3) should begin with its plain language. Kalal, 271 Wis. 2d 633, ¶ 45. If we determine that the language of the statute " 'yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.' " Id., ¶ 46 (quoting Bruno v. Milwaukee County, 2003 WI 28, ¶ 8, 260 Wis. 2d 633, 660 N.W.2d 656). Where such statutory language is unambiguous, we need not consider extrinsic sources of interpretation. See Meriter Hosp. Inc. v. Dane County, 2004 WI 145, ¶ 13, 277 Wis. 2d 1, 689 N.W.2d 627; see also Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 14. Conversely, if the statute "is capable of being understood by reasonably well-informed persons in two or more senses," then the statute is ambiguous. Kalal, 271 Wis. 2d 633, ¶ 47. Only when the statutory language is ambiguous may we consult extrinsic sources to ascertain legislative intent. Id., ¶ 51. "By 'extrinsic sources' we mean interpretive resources outside the statutory text — typically items of legislative history." Id., ¶ 50 (citation omitted). Additionally, in certain circumstances, "[a]mbiguity can be found in the words of the statutory provision itself, or by the words of the provision as they interact with and relate to other provisions in the statute and to other statutes." State v. Sweat, 208 Wis. 2d 409, 416, 561 N.W.2d 695 (1997) (citation omitted).

¶ 15. This case also requires us to review an administrative agency decision. We must decide whether the DHA properly interpreted Wis. Stat. § 304.072(3) as a matter of law, and we are not bound by its determination. See Dodgeland Educ. Ass'n v. WERC, 2002 WI 22, ¶ 22, 250 Wis. 2d 357, 639 N.W.2d 733. Frequently, we defer to an administrative agency's interpretation of a statute, "[i]f the agency's 'experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute. . . .'" Id. (citing West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1, 12, 357 N.W.2d 534 (1985)). To review an agency's statutory interpretation, this court generally applies one of three standards of review, with varying degrees of deference. See Keup v. DHFS, 2004 WI 16, ¶ 12, 269 Wis. 2d 59, 675 N.W.2d 755. The three standards of deference that we apply are great weight, due weight, or de novo: See id.

First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to "great weight." The second level of review provides that if the agency decision is "very nearly" one of first impression it is entitled to "due weight" or "great bearing." The lowest level of review, the de novo standard, is applied where it is clear from the lack of agency precedent that the case is one of first impression for the agency and the agency lacks special expertise and experience in determining that question presented.

Dodgeland, 250 Wis. 2d 357, ¶ 22 (quoting Jicha v. DILHR, 169 Wis. 2d 284, 290-91, 485 N.W.2d 256 (1992)). Because both parties agree that this case presents a question of first impression, we conclude that de novo review is applicable to the case before us.

I — I HH HH

¶ 16. With these principles in mind, we turn to the statute in question. Wisconsin Stat. § 304.072(3) provides:

Except as provided in s. 973.09(3)(b), the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer's, parolee's or person's term of supervision.

¶ 17. According to Dowell, the court of appeals correctly determined that Wis. Stat. § 304.072(3) was unambiguous. He contends that the phrase "term of supervision" plainly means the current period of time that a "probationer, parolee, or person on extended supervision" is being supervised. He argues that the DOC exceeded its jurisdiction by revoking his current term of parole for a violation that occurred during a previous term of parole.

¶ 18. The DOC, on the other hand, argues that the phrase "term of supervision" could mean one of two things. First, the phrase could mean a "final discharge from the underlying sentence." Second, the phrase could mean "that a period of supervision ends when revocation or some other event occurs." Although the DOC emphasizes that the more logical interpretation is that the phrase means final discharge from the entire sentence, because the statute relates to jurisdiction over the person, it also argues that either interpretation is reasonable, thereby making the statute ambiguous.

¶ 19. We agree with the DOC that both interpretations of Wis. Stat. § 304.072(3) are reasonable. As stated, if the statute "is capable of being understood by reasonably well-informed persons in two or more senses," then the statute is ambiguous. Kalal, 271 Wis. 2d 633, ¶ 47 (citations omitted). In this case, there is inconsistency in interpreting § 304.072(3) between state agencies, the circuit court, and the court of appeals: "Here, where even State officials are at odds over the interpretation of these seemingly simple words, one thing seems quite clear: 'term of supervision' is ambiguous." Schwarz, 275 Wis. 2d 225, ¶ 19 (Schud-son, J., dissenting).

¶ 20. Furthermore, if Wis. Stat. § 304.072(3) were not ambiguous, the court of appeals would not have needed to insert the word "current" into its interpretation of the statute. The court held that "[t]he only reasonable interpretation of the statute is that the DOC's jurisdiction to initiate parole revocation proceedings is limited to the current 'term of supervision.'" Id., ¶ 11. By adding the word "current" into its interpretation of § 304.072(3), the court of appeals attempted to make an ambiguous provision unambiguous. We will not "read into the statute language that the legislature did not put in." Brauneis v. State, 2000 WI 69, ¶ 27, 236 Wis. 2d 27, 612 N.W.2d 635 (citation omitted). "One of the maxims of statutory construction is that courts should not add words to a statute to give it a certain meaning." Fond du Lac County v. Town of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989) (citation omitted). Such an action is a clear sign that the statutory language, as written, is ambiguous. Upon determination of an ambiguous statute, we shift our focus to extrinsic sources for the ascertainment of legislative intent.

¶ 21. We agree with the DOC that the proper methodology is to examine the legislative history and case law behind Wis. Stat. § 304.072(3), and the interplay among several parole statutes. In doing so, it becomes clear to us that the legislature intended to provide the DOC with jurisdiction to enforce offender accountability throughout the term of parole, until the expiration of the entire underlying sentence.

¶ 22. We begin our analysis of extrinsic sources with the legislative history behind Wis. Stat. § 304.072(3). Subsection (3) of § 304.072 was added to the statute in 1983 Act 528, § 20. In enacting 1983 Act 528, the legislature made various changes relating to parole. Materials were incorporated in the drafting record that provide insight into legislative intent. In the drafting record, prepared by the Legislative Reference Bureau, we find evidence of the legislature's intent to preserve DOC jurisdiction and promote offender accountability. We have previously held that analysis by the Legislative Reference Bureau "is significant in determining legislative intent." See Milwaukee v. Kilgore, 193 Wis. 2d 168, 184, 532 N.W.2d 690 (1995) (citation omitted).

¶ 23. In the drafting record, under the heading, "Toll on Period of Probation or Parole," the Legislative Reference Bureau stated, "[t]he bill also provides a procedure for the department to preserve its probation or parole jurisdiction by taking certain action prior to the expiration of a term of supervision." From this statement, we are able to find support for the conclusion that the legislature intended to promote offender accountability for violations by providing a method to continue jurisdiction past the expiration date for parole supervision.

¶ 24. Evidence of the intent to provide for offender accountability is furnished by the legislature's decision to codify Cox, when enacting 1983 Act 528, § 20. While we have held that "when the legislature enacts a statute, it is presumed to do so with full knowledge of the existing law," Peters v. Menard, Inc., 224 Wis. 2d 174, 187, 589 N.W.2d 395 (1999) (citations omitted), this presumption is strengthened by direct evidence in the Drafting Record that the legislature considered the Cox decision when amending the statute. In Cox, the defendant claimed that the Department of Health and Social Services (DHSS) did not have jurisdiction to revoke his probation. The DHSS issued a warrant during the defendant's probationary term and did not order revocation until after his probation term was effectively over. The court of appeals held that the DHSS had jurisdiction. It further held that "[t]o require custody to toll the probation period would effectively deprive the Department of any control over a probationer during the last months of the probationary term." Cox, 105 Wis. 2d at 381 (citation omitted).

¶ 25. We next examine the interplay among several statutes relating to parole. The DOC cites Wis. Stat. § 302.11(6) and (7)(d) for the proposition that a parolee is responsible for parole violations until the expiration of his or her underlying sentence. Both statutes refer only to parole, not probation or extended supervision, and use the phrase "expiration of sentence" instead of "term of supervision." More important, both statutes were repealed and recreated in 1983 Act 28, the same bill that produced Wis. Stat. § 304.072(3).

¶ 26. Dowell argues, and the court of appeals' majority agreed, that harmonizing the statutes is neither necessary nor appropriate. Dowell argues that the DOC cannot incorporate the language of other parole statutes into Wis. Stat. § 304.072(3) and ignore the legislature's use of the phrase "term of supervision." The majority of the court of appeals held that because the legislature used the phrase "term of supervision," instead of the phrase "expiration of sentence," which is used in Wis. Stat. § 302.11(6) and (7)(d), it intended to limit the DOC's jurisdiction to commence parole revocation proceedings under § 304.072(3) to the current "term of supervision." Specifically, the court held: "Had the statute been worded to read that the DOC retained jurisdiction until the 'expiration of sentence' or until the 'date of the person's final discharge from parole, probation, or extended supervision,' it would yield the result desired by the DOC." Schwarz, 275 Wis. 2d 225, ¶ 16.

¶ 27. The DOC further argues that Wis. Stat. § 304.072(3) must be read together with and harmonized with other statutes relating to parole, particularly Wis. Stat. § 302.11(6) and (7)(d), in order to fully discern legislative intent. See State v. Leitner, 2002 WI 77, ¶ 30, 253 Wis. 2d 449, 646 N.W.2d 341 (footnote omitted) ("[a] general rule of statutory interpretation is that statutes dealing with the same subject matter should be read together and harmonized"). The DOC maintains that §§ 302.11(6) and (7)(d) clearly demonstrates that the DOC's jurisdiction is not divided into terms, but is rather one single term of continuous supervision.

¶ 28. We agree with the DOC that the interplay among statutes relating to parole is helpful in determining the legislature's apparent intent behind the phrase "term of supervision." It is our duty to attempt to harmonize statutes that are allegedly in conflict, if it is possible, "in a way which will give each full force and effect." Kilgore, 193 Wis. 2d at 184 (citation omitted). As stated, both Wis. Stat. § 302.11(6) and (7)(d) use the term "expiration of sentence" when referring to the DOC's jurisdiction of parole violations. This is important to emphasize, because the majority of the court of appeals denied jurisdiction, in part, on its holding that the legislature instead chose to use the phrase "term of supervision" when enacting Wis. Stat. § 304.072(3). We disagree with the reasoning of the court of appeals' majority. The legislature could not have used the phrase "expiration of sentence" in § 304.072(3), because that statute applies to parole, probation, and extended supervision, and probation is not a sentence. Judge Schudson, in his dissent, stated that this "all but defeats the majority's rationale." Schwarz, 275 Wis. 2d 225, ¶ 20 (Schudson, J., dissenting).

¶ 29. We also recognize that Wis. Stat. § 304.072(3) concerns the DOC's jurisdiction of a person, rather than the Department's jurisdiction, specifically, over a parole violation. The circuit court correctly made this distinction and we agree with its reasoning:

The hearing examiner and the Division relied entirely on § 304.072(3), however this statute is silent with respect to the department's jurisdiction over a parole violation. For this reason, the court must look to other statutes governing parole violation. Specifically, § 304.06(3) provides that every paroled prisoner remains in custody of the department until his or her discharge date, and the department may take physical custody of any prisoner for the investigation of alleged parole violations. Section 304.072(3), when read in conjunction with other statutes governing parole supervision, implicitly authorizes the department to hold offenders accountable for all behaviors in violation of the rules until final discharge from the entire sentence.

¶ 30. We agree with the DOC that the legislative history, codification of Cox, and the interplay among the statutes discussed are "instructive as to how and when an offender is suspected of violating supervision and the case is near discharge." This evidence of legislative intent surrounding the enactment of Wis. Stat. § 304.072(3) strengthens our conclusion that the legislature intended to preserve DOC jurisdiction until the offender's final date of discharge from his or her entire sentence.

¶ 31. Our interpretation of legislative intent, stated above, is also consistent with sound principles of public policy. By allowing the DOC to retain jurisdiction over a parolee until the parolee's date of discharge from the entire sentence, we are allowing it to hold an offender accountable for all violations committed during his or her entire sentence. In this case, our decision means that Dowell's parole will be revoked, and he will serve the final two years, one month, and 14 days of his original sentence in prison. Any other interpretation could, in effect, create amnesty for a parole offender who committed a violation during an earlier period of parole, and reward such offender for successfully concealing the violation.

¶ 32. Both Dowell and the majority of the court of appeals argue, however, that because Dowell was convicted criminally for his parole violation, he will be held sufficiently accountable. The court of appeals' majority held "[a]ny criminal act committed during an earlier parole is subject to a new criminal charge. Dowell can attest to this fact — his earlier parole violation resulted in an eighty-year sentence." Schwarz, 275 Wis. 2d 225, ¶ 17.

¶ 33. Although this may satisfy the accountability concern in this particular case, we recognize that in other cases it will not. For example, under the approach of the majority of the court of appeals, if Dowell, or an offender like him, had committed a noncriminal parole violation during his first period of parole, that was not uncovered during that initial parole period, there would be no accountability or liability for the violation. We recognize that because "parole may be revoked for conduct which does not violate the criminal law," State ex rel. Flowers v. H&SS, 81 Wis. 2d 376, 385, 260 N.W.2d 727 (1978) (citation omitted), a violation of parole, absent DOC jurisdiction, would go unpunished. This clearly violates public policy favoring accountability.

¶ 34. Additionally, our interpretation of Wis. Stat. § 304.072(3) results in the treatment of all parole violators with fairness and consistency. This point is illustrated with an example that the DOC provided in its brief:

Offender A is convicted of First Degree Sexual Assault and receives a 20-year sentence. Offender A is released to parole after 10 years, but is revoked for absconding and returned to prison for one year and subsequently released again to parole. After several months the agent discovers Offender A committed another sexual assault during the first term of parole and gets a no revoke ruling pursuant to the Division of Hearings and Appeals' position in this case. Compare this to Offender B with an identical sentence structure who is revoked after two years on parole for committing a sexual assault and is returned to prison for the entire ten years remaining on the sentence. Similar violations, but remarkably dissimilar results. Moreover, this disparity is unfair to both offenders and victims. Such a system does not promote consistency, fairness or public safety. (Footnote omitted.)

¶ 35. Although the court of appeals' majority based its decision, in part, on its view of public policy, its position is not persuasive. The majority stated: "Not only would stale violations be difficult to prove or defend against, but a truly rehabilitated person who earned the right to be paroled might be confronted with long-ago violations never pursued during the earlier 'term of supervision.'" Schwarz, 275 Wis. 2d 225, ¶ 16. While these policy concerns may be legitimate, they are trumped by the need for offender accountability, concern with rehabilitation, and the need for fairness and consistency within the parole system.

IV

¶ 36. In sum, we hold that the phrase "term of supervision" in Wis. Stat. § 304.072(3) is ambiguous, since it can reasonably be interpreted to apply to both the current term of supervision and any time prior to the final discharge from an underlying sentence. We rely upon extrinsic sources such as the legislative history and relevant case law behind § 304.072(3), and the interplay among parole statutes to determine that "term of supervision" was intended to apply to all parole violations that occur before the offender's date of discharge from his or her entire sentence. We conclude that the legislature intended to promote offender accountability and, therefore, the DOC had jurisdiction to revoke Dowell's parole for a violation that he committed during his first period of parole supervision.

By the Court. — The decision of the court of appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.

SHIRLEY S. ABRAHAMSON, C.J.

(.dissenting).

¶ 37. I would affirm the decision of the court of appeals.

¶ 38. The question presented is whether parole revocation proceedings authorized by Wis. Stat. § 304.072(3) can be initiated during a second term of parole based solely on the parolee's conduct during the parolee's first term of parole. To "answer" this question, the majority opinion examines case law, legislative history, and other statutes. None of these sources supports the majority opinion's holding. I therefore dissent.

¶ 39. The lone case-law authority, State ex rel. Cox v. DHSS, 105 Wis. 2d 378, 314 N.W.2d 148 (Ct. App. 1981), does not support the majority's holding. See majority op., ¶ 24. Cox stands for a simple proposition: When the department with jurisdiction over a probationer issues a probation violation warrant before the expiration of the probationary term, the running of that term is tolled. The execution of the warrant and the revocation proceedings need not occur within that probationary term, only the issuance of the warrant. As the court of appeals correctly noted in Cox, to require all revocation proceedings to occur within the probationary term would "effectively deprive the Department of any control over a probationer during the last months of the probationary term."

¶ 40. Cox's holding remains a simple proposition when applied to the instant case: If the Department wants to revoke parole before the expiration of the parole term, it must initiate revocation proceedings before the expiration of the parole term.

¶ 41. Cox brings us no closer to understanding what "term of supervision" might mean. Cox neither uses the phrase "term of supervision" nor deals with a situation in which the defendant was twice placed on parole or probation and the second parole or probation term was revoked based on conduct occurring during the first term.

¶ 42. Legislative history does not support the majority's holding. According to the majority opinion, the drafting records indicate that Wis. Stat. § 57.072 (the precursor to Wis. Stat. § 304.072) codified Cox. I agree, but without more, the legislative history is no more useful than is Cox in divining the meaning of the phrase "term of supervision."

¶ 43. The drafting records provide two tea leaves for the majority opinion to contemplate; neither resolves the issue presented in this case. One handwritten note cites Cox and posits, "Probation violation warrant issued during probation period preserved revocation jurisdiction even though not executed." Another note in the record succinctly states what the Legislature likely gleaned from Cox: "The bill also provides a procedure for the department to preserve its probation or parole jurisdiction by taking certain action prior to the expiration of a term of supervision." Neither Cox, nor the legislative history codifying Cox, provides the answer to the question presented.

¶ 44. The majority opinion, like the dissent in the court of appeals, then turns to other statutes, putting significant weight on language contained in Wis. Stat. §§ 302.1K6) and (7)(d). These two statutes state that a parolee is subject to all conditions and rules of parole until the "expiration of [the] sentence" or until he or she is "discharge[d] by the department." These two chapter 302 statutes use the phrases "expiration of [the] sentence" and "discharge [d] by the department" rather than the phrase "term of supervision."

¶ 45. The chapter 302 provisions do not provide a mechanism for revocation of parole, probation, or extended supervision. They certainly do not tell us what "term of supervision" means; they never use the phrase. They do not tell us whether Wis. Stat. § 304.072(3) allows action taken by the Department in a second term of parole to be based solely on conduct occurring during a parolee's first term of parole.

¶ 46. After reviewing the three sources upon which the majority hangs its hat, the question remains: What does "term of supervision" as used in Wis. Stat. § 304.072(3) mean, and can conduct during a term of parole lead to revocation of a second term of parole? None of the sources, separately or together, support any more than the simple proposition first stated in Cox: The Department tolls the running of a term of probation, parole, or extended supervision when it takes certain action before the expiration of that term.

¶ 47. I agree with the court of appeals that the statutory phrase "term of supervision" means exactly what it says. The text of the statute matters. When the legislature wanted to refer to "expiration of the sentence" and "discharged by the department," it used those words.

¶ 48. The Department of Corrections' jurisdiction in parole matters is limited to seeking revocation only for violations that occur during that term of supervision. This interpretation does not hinder the state in prosecuting crime and does not threaten public safety. The State can prosecute a parolee for criminal conduct committed during any period of parole, and the parolee may be subject to imprisonment. In the present case, for example, the defendant's parole violation during his first parole was prosecuted as a crime, resulting in an eighty-year sentence.

¶ 49. For the reasons set forth, I dissent.

¶ 50. I am authorized to state that Justices ANN WALSH BRADLEY and LOUIS B. BUTLER, JR. join this dissent.

       All other references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.

       Dowell was sentenced to 90 months for both counts of armed robbery, and two years for operating a vehicle without the owner's consent. However, Judge White ordered that Dowell serve the three sentences concurrently.

       Wisconsin Stat. § 302.11(1) states in relevant part: "The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. ... each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence."

       The DOC does not allege that Dowell committed any violations during his term of parole supervision after his mandatory release. It alleges that Dowell violated Rules 1 and 11 of his Parole Conditions during his first period of parole. Rule 1 states: 'You shall avoid all conduct which is in violation of federal or state statute, municipal or county ordinances or which is not in the best interest of the public welfare or your rehabilitation." Rule 11 states in relevant part: 'You shall not purchase, possess, own or carry any firearm or any weapon unless you get approval in advance from your agent."

       The court of appeals did not discuss the legislative history behind Wis. Stat. § 304.072(3). It held: "Inasmuch as we are satisfied that the statute is not ambiguous, we need not resort to extrinsic aids to ascertain the meaning of § 304.072(3)."

       When 1983 Act 528 was drafted, the statute in question was numbered Wis. Stat. § 57.072. It was not renumbered until 1989 Act 107, § 1704.

       The DOC makes another argument that seems to strengthen its position that the legislative intent behind 1983 Wis. Act 528 was to extend personal jurisdiction over offenders on parole. It cites a drafting note in the record by Senior Legislative Attorney Bruce Feustel. The note applies to Wis. Stat. § 53.11 (later renumbered as Wis. Stat. § 302.11), and states in relevant part:
      Note: This addition to the revised s. 53.11 is intended to clarify that the only time which actually vests, or cannot be taken away from a convicted offender is time spent in prison or in jail in connection with the underlying offense. Therefore, if a parolee serves a period of time under supervision prior to violation of parole and revocation, this period is automatically forfeited, and is added to the time to be served after the parolee is re-released....

       There is a page in the Drafting Record which states the following:
      "57.072 Jurisdiction of Prorlee [sic]

        State ex rel. Cox v. State DHSS, 105 Wis. 2d 378
      Probation violation warrant issued during probation period preserved revocation jurisdiction even though not executed."

        See Drafting Record to 1983 Act 528, § 20.

       Wisconsin Stat. §302.11(6) provides, in relevant part: "Any inmate released on parole under sub. (1) or (lg)(b) or s. 304.02 or 304.06(1) is subject to all conditions and rules of parole until the expiration of the sentence or until he or she is discharged by the department."

       Wisconsin Stat. § 302.11(7)(d) states: "A parolee who is subsequently released either after service of the period of time determined by the reviewing authority or by a grant of parole under par. (c) is subject to all conditions and rules of parole until expiration of sentence or discharge by the department."

       The circuit court correctly held that Wis. Stat. § 304.072(3) is a personal jurisdiction statute. It held: "Section 304.072(3) allows the department to retain jurisdiction over a person on supervision after the regularly scheduled maximum discharge date when the DOC takes one of three prescribed actions. ... [T]his statute is silent with respect to the department's jurisdiction over a parole violation."

       Wisconsin Stat. § 304.06(3) states, in relevant part:
      Every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department. If the department alleges that any condition or rule of parole has been violated by the prisoner, the department may take physical custody of the prisoner for the investigation of the alleged violation. If the department is satisfied that any condition or rule of parole has been violated it shall afford the prisoner such administrative hearings as are required by law:

        State ex rel. Cox v. DHSS, 105 Wis. 2d 378, 380, 314 N.W.2d 148 (Ct. App. 1981).

        Id. at 381.

         Id.

       Majority op., ¶ 24 (citing 1983 Act 528, § 20).

        Id., ¶ 24 n.8 (citing Drafting records for 1983 Act 528).

        Id., ¶ 23 (citing Drafting Records for 1983 Act 528).

       Wisconsin Stat. § 302.11(6) reads in relevant part as follows: "Any inmate released on parole... is subject to all conditions and rules of parole until the expiration of the sentence or until he or she is discharged by the department."

       Wisconsin Stat. § 302.11(7)(d) reads in relevant part as follows: "A parolee who is subsequently released either after service of the period of time determined by the reviewing authority or by a grant of parole ... is subject to all conditions and rules of parole until expiration of sentence or discharge by the department."


source: Caselaw Access Project

author: PER CURIAM. SHIRLEY S. ABRAHAMSON, C.J. DAVID T. PROSSER, J.

license: Public Domain

text:
    In the Matter of the Bar Admission of Samuel Mostkoff: Samuel Mostkoff, Petitioner, v. Board of Bar Examiners, Respondent.
    Supreme Court

      No. 03-2640-BA.

      Submitted on briefs September 22, 2004.

      Decided March 24, 2005.

    2005 WI 33
    (Also reported in 693 N.W.2d 748.)

      For the petitioner there were briefs by Samuel Mostkoff Sun Prairie.
    For the respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   PER CURIAM.

¶ 1. We review, pursuant to SCR 40.08(5) (2002), the Board of Bar Examiners' (Board) September 8, 2003 decision concluding that the petitioner, Samuel Mostkoff, has failed to satisfy the requirements for admission to the practice of law in Wisconsin based on "proof of practice elsewhere." SCR 40.05. We determine that the findings of fact the Board made in this matter were not clearly erroneous and that its conclusions based on those facts were proper. Accordingly, we affirm the Board's decision not to recommend that Mr. Mostkoff be admitted to the practice of law on the basis of proof of practice elsewhere.

¶ 2. Mr. Mostkoff has been a practicing lawyer for some 29 years. It is undisputed that he is an experienced lawyer. He was admitted to practice in Michigan in 1973, and has been a corporate attorney for more than 18 years.

¶ 3. On April 1,1997, Mr. Mostkoff s legal employment as corporate counsel in Michigan was terminated as a result of a corporate reorganization. Mr. Mostkoff was retained as a legal consultant for the company through December 1997.

¶ 4. On August 25, 1997, Mr. Mostkoff, who had moved to Ohio, became a legal consultant for Penda Corporation located in Wisconsin. For a time, he commuted to Penda Corporation from his Ohio residence. In January 1998, Mr. Mostkoff became in-house counsel for Penda Corporation. He continued to reside in Ohio.

¶ 5. Mr. Mostkoff became a Wisconsin resident in February 1999. In May 1999, he requested an application for admission to the Wisconsin State Bar, but he did not complete it. Indeed, more than four years elapsed before Mr. Mostkoff actually filed an application for admission to the Wisconsin State Bar on February 10, 2003.

¶ 6. Mr. Mostkoff sought admission to the Wisconsin bar pursuant to SCR 40.05(1), entitled: "Legal competence requirement: Proof of practice elsewhere."

¶ 7. On June 20, 2003, the Board issued a preliminary decision denying Mr. Mostkoffs application for admission under SCR 40.05. That decision stated:

. . . the Board [of Bar Examiners] has been unable to conclude you were engaged in the active practice of law ... for at least three of the five years immediately preceding the date on which your Wisconsin application affidavit was filed....

¶ 8. Mr. Mostkoff filed a supplement to his bar application, arguing that he had indeed been engaged in the active practice of law, and asking the Board to file a rules petition with the Wisconsin Supreme Court to change the eligibility requirements for admission under SCR 40.05.

¶ 9. On August 12, 2003, Mr. Mostkoff filed his own rules petition in this court, Rules Petition No. 03-07, asking the court to amend SCR 40.05 in a manner that would qualify him for admission under SCR 40.05. Mr. Mostkoffs petition was denied without a public hearing in October 2003, following an open administrative conference.

¶ 10. In the interim, on August 21, 2003, the Board formally denied Mr. Mostkoffs application for admission to the Wisconsin Bar. The Board's final decision stated:

The applicant did not demonstrate that he was primarily engaged in the active practice of law in a jurisdiction where he was licensed for three of the five years immediately preceding February 10, 2003, the date he filed his Wisconsin application for admission, as is required by SCR 40.05(l)(b).

¶ 11. Mr. Mostkoff filed a timely appeal from the Board's decision, followed by two motions to compel the Board to produce various internal documents. Both motions were denied.

¶ 12. The standard of review for decisions of the Board is well settled. The court adopts the Board's findings of fact if they are not clearly erroneous. In re Bar Admission of Crowe, 141 Wis. 2d 230, 232, 414 N.W.2d 41 (1987). The court reviews legal determinations de novo. In re Bar Admission of Rusch, 171 Wis. 2d 523, 492 N.W.2d 153 (1992). The burden of proof to establish compliance with bar requirements rests with the applicant. SCR 40.07.

¶ 13. This is first and foremost a case in which an attorney sat upon his rights. It is undisputed that had Mr. Mostkoff applied for admission to the Wisconsin bar promptly upon relocating to Wisconsin in 1999, he would have been eligible for admission under SCR 40.05 based upon his corporate legal practice in Michigan, a state in which he is licensed to practice law. The question before the court is whether, nearly four years later, Mr. Mostkoff should still be entitled to admission under SCR 40.05.

¶ 14. Mr. Mostkoff raises numerous issues in support of his assertion that he should be admitted to the Wisconsin bar. First, however, we must address Mr. Mostkoffs claim that the court cannot decide this matter because it does not have a complete record before it. Mr. Mostkoff contends that the court should order the Board "to include all the evidence in the Board's possession in the Record on Appeal." Specifically, he refers to documents he sought in his unsuccessful motions to compel, including internal legal memoranda prepared by the Board to evaluate aspects of Mr. Mostkoffs bar application.

¶ 15. We conclude that the Board was well within its discretion to decline to produce the internal legal memoranda sought by Mr. Mostkoff. We conclude further that other information sought by Mr. Mostkoff was simply not relevant to the question whether Mr. Most-koff met the requirements for reciprocity admission under existing supreme court rules. Therefore, we reject Mr. Mostkoffs assertion that the record before the court is inadequate to permit us to decide whether Mr. Mostkoff is entitled to admission under SCR 40.05.

¶ 16. To qualify for admission to the Wisconsin bar under SCR 40.05, Mr. Mostkoff is required to demonstrate that, as of the date of his bar application, he had been "primarily engaged in the active practice of law in the courts of the United States or another state or territory or the District of Columbia for 3 years within the last 5 years prior to filing application for admission." Thus, we consider Mr. Mostkoffs legal practice for the five years preceding the date of his bar application, February 10, 2003.

¶ 17. The record reflects that Mr. Mostkoff has worked as corporate counsel for Penda Corporation in Wisconsin, while residing in Ohio or Wisconsin, throughout the relevant period of time.

¶ 18. SCR 40.05(2) provides:

Legal service as corporate counsel or trust officer, if conducted in a state where the applicant was admitted to practice law, may be deemed to be the practice of law for the purposes of sub. (l)(b) and (c).

(Emphasis added.) The record is clear that between January 1998 and February 2003, Mr. Mostkoff s legal service as corporate counsel was conducted in Wisconsin, a jurisdiction where he was not admitted to practice law.

¶ 19. We recognize that Mr. Mostkoff was a busy corporate attorney during the relevant period of time. However, we must conclude that the plain language of SCR 40.05(2) precludes Mr. Mostkoffs legal service as corporate counsel from constituting the "practice of law" for purposes of admission to the Wisconsin bar under SCR 40.05. SCR 40.05(1)(b) and 40.05(2), read together, explicitly provide that for corporate counsel experience to be deemed the "active practice of law" under SCR 40.05(l)(b), that work must have been "conducted in a state where the applicant was admitted to practice law " (emphasis added). Mr. Mostkoff s corporate counsel work was conducted in Wisconsin or Ohio; he is admitted to practice in neither state.

¶ 20. In 1987, this court clarified and reaffirmed its policy with respect to corporate counsel seeking admission to the bar pursuant to SCR 40.05. We held that legal service as corporate counsel does not qualify as the "active practice of law" unless it is conducted in a state where the applicant is admitted to practice law, or the legal work was "the kind of work generally engaged in by attorneys 'primarily engaged in the active practice of law in the courts' of another jurisdiction." See Crowe, 141 Wis. 2d at 235 (quoting Application of Townsend, 126 Wis. 2d 128, 134, 375 N.W.2d 656 (1985)).

¶ 21. The Board has previously explained how this requirement serves to protect the public. In order to assess an applicant's qualifications for admission to practice law in Wisconsin based on proof of practice elsewhere, the Board must be able to rely on the regulatory authorities of the other jurisdictions where the applicant has practiced to have monitored the applicant's compliance with continuing legal education requirements designed to ensure professional competence, and to have observed and, where appropriate, investigated and disciplined the professional conduct of the applicant. See Crowe, 41 Wis. 2d at 235.

¶ 22. However, an applicant who has practiced in a jurisdiction without being admitted to practice is not subject to that jurisdiction's regulation of the professional competence and conduct of attorneys. Consequently, that information is not available to the Board for its assessment of the applicant's qualifications and fitness to practice law in Wisconsin.

¶ 23. Mr. Mostkoffs work as corporate counsel between 1998 and 2003 was not conducted in a state in which he was admitted to practice. However, Mr. Most-koff nonetheless urges us to recognize his legal work as the active practice of law. He cites case law, including Admission of Blue Dog, 126 Wis. 2d 136, 375 N.W.2d 660 (1985), for the proposition that his legal practice for Penda Corporation should nonetheless be considered the "active practice of law" for purposes of SCR 40.05. He provides several examples of lawsuits from around the country in which he was involved as counsel of record for Penda Corporation.

¶ 24. However, we must conclude that Mr. Most-koff has failed to demonstrate that this legal work was "the kind of work generally engaged in by attorneys 'primarily engaged in the active practice of law in the courts' of another jurisdiction." The record reflects that Penda Corporation was actually represented in these court proceedings by local counsel who were licensed to practice in the respective state in which the litigation occurred. This is not comparable to the situation in Blue Dog, 126 Wis. 2d 136. Attorney Blue Dog engaged in extensive advocacy litigation before federal and administrative courts and had obtained special permission from the courts to appear and practice before those federal courts and agencies.

¶ 25. We turn to Mr. Mostkoffs assertion that he is entitled to admission to the Wisconsin bar pursuant to SCR 40.05(l)(c). Supreme Court Rule 40.05(l)(c) provides that Mr. Mostkoff is subject to specific requirements of Michigan's reciprocity rule, Mich. R. 5(A)(6)(a).

¶ 26. The rationale for this provision has previously been articulated:

The underlying rationale of the reciprocity rules is to treat out-of-state lawyers seeking admission to Wisconsin without bar examination in the same manner as their home jurisdictions treat Wisconsin lawyers seeking admission without examination. Such treatment is designed to stimulate lawyers in other jurisdictions to encourage their home states to admit Wisconsin lawyers without examination.

In re Bar Admission of Wadsworth, 190 Wis. 2d 576, 583, 527 N.W.2d 311 (1995) (Abrahamson, C.J., dissenting).

¶ 27. We have observed that "SCR 40.05 provides identical treatment to resident and non-resident bar admission applicants." Crowe, 141 Wis. 2d at 237. The applicable Michigan bar admission rule permits the five-year practice period to be increased for "good cause." Mr. Mostkoff maintains that the Board erred by failing to give him the benefit of this Michigan "good cause" provision. Mr. Mostkoff has not persuaded us that the Board applied this provision any differently than the Michigan courts would have applied it to a Wisconsin attorney seeking admission in that state.

¶ 28. Moreover, Wisconsin has an even broader exception, which permits this court to waive any requirement under SCR 40.10 upon a showing of good cause. SCR 40.10 provides that:

Except for the requirements of SCR 40.03 [and 40.06], the board may waive any of the requirements of this chapter in exceptional cases and for good cause if failure to waive the requirement would be unjust.

¶ 29. The record reflects that the Board declined to recommend a waiver of the requirements of SCR 40.05 in this case. Mr. Mostkoff suggests this was error and requests this court exercise its discretion and waive the five-year practice requirement with respect to his application. He asserts that it is generally unfair to subject him to the requirements of SCR 40.05 in view of his extensive legal experience. He contends, further, that the Board wrongly issued its final decision while his supreme court rules petition was still pending. He also contends that a waiver is warranted on the grounds that the Board has failed to file a rules petition suggesting amendments to the reciprocity rule as directed by this court in In re Bar Admission of Croushore, 225 Wis. 2d 476, 481, 592 N.W.2d 236 (1999). And, he suggests that in addition to SCR 40.05's various alleged constitutional problems with the rule, the Board violated the open meeting law, Wis. Stat. § 19.81-19.98 (2003-04) by failing to give him notice of the closed session at which the Board considered and denied his bar application.

¶ 30. We consider de novo whether Mr. Mostkoff has established that this is an exceptional case warranting waiver of the requirements of SCR 40.05. See, e.g., In re Bar Admission of Wescoe, 165 Wis. 2d 738, 478 N.W.2d 841 (1992). Ultimately, we are not persuaded that this is the extraordinary situation warranting waiver of the requirements set forth in SCR 40.05.

¶ 31. We acknowledge Mr. Mostkoff s effort to seek admission to the bar pursuant to a rules petition seeking to change SCR 40.05. The court did not, however, formally direct the Board to hold Mr. Mostkoff s bar application in abeyance pending its consideration of that petition. Therefore, the Board's decision, rendered while the rules petition was pending, did not contravene any order of this court.

¶ 32. As we noted at the onset, had Mr. Mostkoff promptly petitioned for admission to the Wisconsin bar upon relocating to Wisconsin, he would have been eligible for admission under SCR 40.05 based on his corporate practice in Michigan, a state in which he is licensed to practice law. Mr. Mostkoff has provided no compelling explanation for his delay, other than the demands of his practice. We conclude that a decision to waive the requirements of SCR 40.05 here would excuse and endorse delay in seeking admission to the Wisconsin bar. Such a result would not serve the public's interest in ensuring that lawyers admitted to practice in this state have established their professional competence and their compliance with continuing legal education requirements.

¶ 33. Mr. Mostkoff has raised a litany of constitutional challenges to SCR 40.05. We decline to address these arguments as they are not supported by the facts of record. Mr. Mostkoff is barred from admission to practice law in Wisconsin under the terms of SCR 40.05 as a result of his own delay in failing to file a bar application within a reasonable period of time. Moreover, Mr. Mostkoff is not precluded from continuing his corporate practice in Wisconsin. Indeed, he is not precluded from seeking admission to the Wisconsin bar; he retains the option of taking the Wisconsin bar exam at any time.

¶ 34. We make one final comment with respect to Mr. Mostkoff s claim that the Board has failed to comply with the court's directive that it revise SCR 40.05. The Board was indeed directed to "consider and propose for adoption an amendment of the corporate practice bar admission rule that it deems sufficient to satisfy the interest of the court in ensuring the competent practice of those it admits to the practice of law in Wisconsin." Croushore, 225 Wis. 2d at 481. The Board responds that it had considered the matter and determined that no change was necessary. We invite the Board to revisit this matter and to present the court with a petition recommending changes to SCR 40.05, if it sees fit.

¶ 35. Having determined that the Board properly concluded that Mr. Mostkoff failed to establish his qualifications for admission to practice law in Wisconsin based on proof of practice elsewhere, we affirm the Board's decision.

¶ 36. IT IS ORDERED that the decision of the Board of Bar Examiners concluding that Mr. Mostkoff failed to satisfy the requirements of SCR 40.05 is affirmed.

SHIRLEY S. ABRAHAMSON, C.J.

(concur ring).

¶ 37. I reluctantly join the per curiam. I find myself disagreeing with the governing rules and disagreeing with the result I am compelled to reach under the rules.

¶ 38. The applicant missed the time limitations set forth in our rules for admitting lawyers licensed in other states without having to sit for the Wisconsin bar examination. The applicant in the instant case appears to be a competent lawyer. The people of the state of Wisconsin are not placed in jeopardy by granting admission to this applicant because he was late. He can engage in corporate practice in Wisconsin without being a member of the bar. It seems formalistic, and not necessarily relevant to the issue of the applicant's competence and public protection, to hold the applicant to the time limits, thereby denying him admission to the Wisconsin bar, at least without a Wisconsin bar examination. But that's what time limits are— formalistic, bright lines and not necessarily relevant to the merits of the issue.

¶ 39. If the court makes an exception for this applicant it must, to be fair, make an exception for all late applicants. There's nothing special about this late application that distinguishes it from all others. If it turns out that the court does not want to adhere to its own rules, it must, in my opinion, forthrightly repeal the rules, not surreptitiously avoid or undercut them by making exceptions for some people and not for others similarly situated. Without a repeal of the rules, and because an exception is not an option, I reluctantly join the per curiam.

¶ 40. I am authorized to state that Justice LOUIS B. BUTLER, JR. joins this opinion.

DAVID T. PROSSER, J.

{dissenting).

¶ 41. The petitioner is a qualified attorney who was admitted to practice in Michigan in 1973. If he had applied for admission in 1999 when he moved to Wisconsin, he would have been eligible for admission under SCR 40.05, based on his corporate practice in Michigan. Although he neglected to seek admission at that time, he nonetheless engaged in corporate practice in Wisconsin from 1999 to 2003, and the court indicates that he is not precluded from continuing such practice now. Majority op., ¶ 33.

¶ 42. Inasmuch as the petitioner could have been admitted without a problem in the past and may continue corporate practice without admission in the future, I see no sensible reason why we should not admit him to the bar and subject him to Wisconsin membership dues, Wisconsin continuing legal education requirements, and Wisconsin discipline. The court has the power to admit Mr. Mostkoff and I would do so. His admission could be conditioned on any reasonable requirement that reinforces the integrity of our rules on reciprocity and education.

       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 40.05 provides in relevant part: Legal competence requirement: Proof of practice elsewhere.
      (1) An applicant shall satisfy the legal competence requirement by presenting to the clerk certification of the board that the applicant has provided all of the following:
      (a) Proof of admission to practice law by a court of last resort in any other state or territory or the District of Columbia.
      (b) Proof that the applicant has been primarily engaged in the active practice of law in the courts of the United States or another state or territory or the District of Columbia for 3 years within the last 5 years prior to filing application for admission.
      (c) If any state, territory or the District of Columbia practice in which is proposed to satisfy the requirement of sub. (b) has, as of the date of the filing of the application, requirements for bar admission in that jurisdiction on the basis of practice in Wisconsin other than those set forth in subs, (a) and (b), proof that the applicant has satisfied those requirements of that state, territory or the District of Columbia.
      (lm) Eligibility for admission under this rule shall be limited as follows:
      (a) An applicant who proposes to satisfy sub. (l)(b) by practice in a jurisdiction that does not grant bar admission to attorneys licensed in Wisconsin on the basis of practice in Wisconsin shall not be eligible for admission on proof of practice elsewhere.
      (b) An applicant who proposes to satisfy sub. (l)(b) by practice in a jurisdiction that does not grant bar-admission on the basis of practice to attorneys licensed in Wisconsin under SCR 40.03 shall not be eligible for admission on proof of practice elsewhere.
      (2) Legal service as corporate counsel or trust officer, if conducted in a state where the applicant was admitted to practice law, may be deemed to be the practice of law for the purposes of sub. (l)(b) and (c).
      (3) The following activities, whether or not conducted in a state where the applicant was admitted to practice law, may be deemed to be the practice of law for the purposes of sub. (l)(b) and (c):
      (a) Service as a judge of a court of record of the United States, any state or territory or the District of Columbia.
      (b) Legal service with any local or state government or with the federal government.
      (c) Legal service in the armed forces of the United States.
      (d) Teaching in any law school approved by the American bar association.

       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 40.03 and 40.06 pertain to the diploma privilege and the character and fitness requirements, respectively.

       We note that obtaining redress for an alleged open meeting law violation requires the filing of a verified complaint with the District Attorney. See Wis. Stat. § 19.97(1) (2003-04). In any event, Mr. Mostkoff has not demonstrated how the Board's compliance with the open meeting law here would have changed the outcome of this matter. In the absence of some evidence that adherence to the requirements of the open meeting law would have altered the Board's final decision in this matter, we decline to explore Mr. Mostkoff s allegations with respect to the open meeting law.

         We appreciate that we may not have addressed each and every one of the arguments presented in Mr. Mostkoff s appeal. To the extent we have not, it is deemed denied. See Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 801, 546 N.W.2d 424 (1996) (appellate court need not discuss arguments unless they have "sufficient merit to warrant individual attention").


author:
      PER CURIAM. SHIRLEY S. ABRAHAMSON, C.J.
      DAVID T. PROSSER, J. LOUIS B. BUTLER, JR., J.

text:
    In the Matter of Disciplinary Proceedings Against Steve J. Polich, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Steve J. Polich, Respondent.
    Supreme Court

      No. 03-1071-D.

      Decided March 25, 2005.

    2005 WI 36
    (Also reported in 694 N.W.2d 367.)
   PER CURIAM.

¶ 1. We review the findings of fact, conclusions of law, and recommendations of Referee Cheryl Rosen Weston for sanctions, pursuant to SCR 22.17(2). Attorney Steve J. Polich was found to have engaged in unprofessional conduct in the course of his practice of law in violation of the Rules of Professional Conduct. The referee recommended a public reprimand and payment of an unspecified proration of the costs.

¶ 2. We approve the findings, conclusions and recommendations, and determine that Attorney Polich's misconduct warrants a public reprimand. However, we disagree with the recommendation for a pro-ration of costs and conclude that Attorney Polich should pay the entire amount.

¶ 3. Attorney Polich was licensed to practice law in Wisconsin in 1982. He has had prior administrative suspensions in 1991 and 1993, both followed by reinstatement, for noncompliance with Continuing Legal Education (CLE) requirements.

¶ 4. This court adopts the referee's findings of fact unless clearly erroneous. In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 498 N.W.2d 380 (1993). No deference is granted to the referee's conclusions of law and they are reviewed de novo. In re Disciplinary Proceedings Against Norlin, 104 Wis. 2d 117, 310 N.W.2d 789 (1981). The court may impose whatever sanction it deems appropriate regardless of the referee's recommendation. In re Disciplinary Pro ceedings Against Widule, 2003 WI 34, 261 Wis. 2d 45, 660 N.W.2d 686.

¶ 5. This case involves seven counts of alleged misconduct. Count one alleges a violation of SCR 20:1.3 (failure to act with reasonable diligence and promptness in representing a client). Counts two and three allege violations of SCR 20:3.3 (knowingly making a false statement of fact to a tribunal). Count four alleges a violation of SCR 20:7.5(a) and SCR 20:7.1(a) (making a false or misleading communication about the lawyer or the lawyer's services). Count five alleges a violation of SCR 31.10(1) and SCR 20:8.4 (engaging in the practice of law while State Bar membership is suspended for a CLE violation). Counts six and seven allege violations of SCR 22.03(6) (willfully failing to provide relevant information, to answer questions fully, or to furnish documents, or to misrepresent a disclosure, all during the course of an Office of Lawyer Regulation (OLR) investigation).

¶ 6. After several notices to report CLE compliance went unanswered, the Board of Bar Examiners (BBE) sent Attorney Polich a notice of noncompliance via certified mail on April 7,1997. This informed him he would be automatically suspended from the State Bar unless BBE received his completed compliance forms by June 3, 1997. Attorney Polich apparently had earned the necessary credits but had simply failed to report them. However, he never complied and on June 4,1997, BBE sent him a notice of suspension via certified mail effective on that day. To date, Attorney Polich has never complied with the requirements for reinstatement.

¶ 7. Someone from Attorney Polich's office apparently knew that he was suspended because on March 22,1999, one of his employees contacted BBE to inquire about the reinstatement process. That prompted another letter from BBE to Attorney Polich the next day reiterating that he had been suspended.

¶ 8. Despite being suspended, Attorney Polich appeared in Wisconsin courts in ten cases between 1998 and 2001. One of these involved representation of a defendant in a Forest County Circuit Court civil action and forms the basis for counts one and seven.

¶ 9. The defendant was served with the summons and complaint on June 15,1998. Attorney Polich maintains that he had an oral agreement with the plaintiffs' original counsel that an answer did not have to be filed until some unspecified date in the future. However, Attorney Polich and his client had a parting of ways, apparently as the result of losing a temporary injunction proceeding on July 16. Attorney Polich claims he told his client to get new counsel but admits he never received confirmation that she indeed had done so until early September. Attorney Polich did not formally withdraw until September 10.

¶ 10. In the meantime, contrary to his alleged understanding with plaintiffs' counsel, who had now been succeeded by new counsel with whom Attorney Polich had no understanding, the answer was actually due on July 30. Attorney Polich did not meet that deadline but claimed that within a few days thereafter it became apparent to him that the substitution of counsel had not formally occurred and he needed to file the answer, which he did on August 10.

¶ 11. This untimely answer was later struck and default judgment was taken against Attorney Polich's former client which she unsuccessfully tried to vacate. Attorney Polich gave the client and her new attorney an affidavit to support the effort to vacate the default judgment in which he asserted he was a Wisconsin licensed attorney. The client later sued Attorney Polich for malpractice and he paid $50,000 to settle. It was during the course of this malpractice action in 2001 that Attorney Polich claims he first became aware that he had been suspended from the practice of law in 1997.

¶ 12. The referee found in favor of Attorney Polich on both of these counts.

¶ 13. Count one alleged a lack of diligence by Attorney Polich for missing the deadline to answer. The referee concluded that he had reason to believe that the deadline was actually longer than what was the case. The referee further concluded that the circumstances regarding the date when the answer really was due was "muddied" by the client trying to obtain new counsel around the time the answer was due. The referee stated:

Polich had no reason to be confident in his status as [the client's] counsel.... His client was not communicating with him directly.... He had not been contacted by successor counsel. He believed he had an agreement regarding an extension, but it was oral.... He may have believed that [the client] had replaced him .... Clearly, it would have been better for him, and his client, if such an [extension] agreement had been reduced to writing,....

¶ 14. The referee was apparently influenced by the fact that Attorney Polich paid a substantial sum in settlement of the malpractice claim, which the referee concluded remedied any injury suffered by the client. Under these "ambiguous circumstances," the referee concluded there had been no violation of count one.

¶ 15. Count seven was a related allegation that Attorney Polich lied to the OLR concerning whether he represented this client as of July 30 when the answer was due. He had denied that he represented her at this time because it was his understanding that the client had obtained, or at least was trying to obtain, new counsel even though Attorney Polich never received a substitution of counsel.

¶ 16. The referee concluded that even though Attorney Polich had not yet formally withdrawn as the client's counsel at the time, he nonetheless could have legitimately believed that his services had been terminated. The referee concluded that Attorney Polich's statements to the OLR constituted "legitimate advocacy of an arguable legal position, to which reasonable persons could disagree" and could not be characterized as a misrepresentation.

¶ 17. Counts two, three and six relate to Attorney Polich's failure to file the necessary verification of his CLE credits.

¶ 18. Counts two and three, alleging intentional false statements, were resolved in favor of Attorney Polich. The referee accepted his defense that his office administrative assistant had some mental impairment including memory lapses and failure to timely complete tasks. The referee also accepted his claim that he was personally unaware that his license had been suspended in 1997 until the malpractice action brought it to light in 2001 because the various notices and letters sent by BBE to his office were never brought to his personal attention.

¶ 19. The referee conceded that she was initially "highly skeptical" of this defense, particularly given that early in 2001 Polich had removed the statement "licensed in Wisconsin" from his letterhead. But she accepted his explanation that this change was simply due to a lawyer leaving his office and his decision to stop practicing in Wisconsin, rather than an admission that his license had been suspended. The referee noted there was no evidence from the OLR that anyone had personally communicated the suspension to Attorney Polich or had ever heard him make any admission against interest. The referee further noted that the client's new counsel in this case considered Attorney Polich's 2001 claim that this was the first he heard of the suspension to be truthful. The referee added:

If Attorney Polich's only failure was to file a required form, and this fact came to his attention prior to the filing of the grievance, what possible incentive could he have for not correcting this error ... I can think of no convincing explanation of his failure to fill out and mail a simple form other than the one he gave — that he thought it had been done.

¶ 20. Count six alleged that Attorney Polich had misrepresented to the OLR that he was unaware of his 1997 suspension. As with counts two and three, the referee concluded that OLR had not proved that Attorney Polich knew about the suspension prior to 2001. Stating that the misrepresentation in SCR 22.03(6) requires deliberate behavior, the referee concluded there was no misconduct.

¶ 21. The only counts in which the OLR prevailed were four and five, both resolved by the referee on summary judgment prior to the hearing.

¶ 22. Count four alleged that Attorney Polich made a false and misleading communication about himself by using office letterhead in 1998 and thereafter that indicated that he was licensed to practice law in Wisconsin. The referee concluded that since Attorney Polich had clearly received notice of his suspension, even though he may not personally have been aware of it, the office letterhead was per se false and misleading.

¶ 23. Count five alleged that Attorney Polich improperly engaged in the practice of law during the period his license was suspended, which he conceded.

¶ 24. In support of the recommendation for a public reprimand for the violation of counts four and five, the referee referred to several cases in which either a private or public reprimand was given for a similar situation involving practice during a CLE suspension. The referee noted that the only case that apparently resulted in a suspension where practice during CLE noncompliance was present, In re Disciplinary Proceedings Against Ditter, 187 Wis. 2d 337, 523 N.W.2d 105 (1994), involved an attorney who intentionally refused to accept notices of suspension and who never had the requisite number of CLE credits. The referee further noted that there were other cases resulting in suspensions where practice during a CLE suspension was involved but all of those involved additional unrelated counts.

¶ 25. We adopt the findings of fact and conclusions of law of the referee with respect to all of these counts. Like the referee, we agree with the referee that portions of Attorney Polich's defense are susceptible to skepticism. However, the referee was best situated to judge his credibility and that of the other witnesses. There is no indication that the referee's findings of fact that support her conclusions of law are clearly erroneous.

¶ 26. We are troubled by Attorney Polich's repeated failures to comply with his CLE requirements. There is no excuse for an attorney to fail to comply with the simple reporting requirement, much less to do so three times. Further, his failure to assume personal responsibility for assuring that the most basic requirement for an attorney in this state is met — active State Bar membership — is inexcusable.

¶ 27. We are also concerned about Attorney Polich's representation of his client, which can be characterized as negligent, if not actually misconduct. The malpractice settlement he paid his client is ample warning of the cost of such negligence.

¶ 28. We conclude that the public reprimand recommended by the referee is appropriate discipline in this case.

¶ 29. However, we do not agree that the OLR's costs should be prorated to reflect that Attorney Polich prevailed on five of the seven counts against him. Although we have the discretion to apportion costs pursuant to SCR 22.24(1), we have traditionally not done so. See, e.g., In re Disciplinary Proceedings Against Pangman, 216 Wis. 2d 440, 574 N.W.2d 232 (1998); In re Disciplinary Proceedings Against Preloznik, 169 Wis. 2d 137, 485 N.W.2d 249 (1992).

¶ 30. There is no indication that the costs incurred by the OLR in this matter were unreasonable and unnecessary. Nor is there any indication that the five counts on which Attorney Polich prevailed could reasonably be deemed to have been without prosecuto-rial merit. Accordingly, the circumstances before us do not warrant departure from the practice of assessing full costs against an attorney found to have engaged in at least some of the alleged professional misconduct.

¶ 31. IT IS ORDERED that Attorney Steve J. Polich is publicly remanded for his misconduct.

¶ 32. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Steve J. Polich shall pay $17,498.87 to the OLR representing the costs of this proceeding. If these costs are not paid within the time specified, and absent a showing to this court of an inability to pay those costs within that time, the license of Attorney Polich to practice law in Wisconsin shall be suspended indefinitely until further order of the court.

SHIRLEY S. ABRAHAMSON, C.J.

(concurring).

¶ 33. My concurrence in OLR v. Konnor, 2005 WI 37, ¶¶ 37-92, 279 Wis. 2d 284, 694 N.W.2d 376, providing some context and perspective regarding costs in disciplinary proceedings, stands also as a concurrence in the present case.

DAVID T. PROSSER, J.

(concurring in part, dissenting in part).

¶ 34. My concerns about the costs imposed in attorney discipline cases are set out in OLR v. Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376, released today. Justice Butler has articulated his own concerns in this case. Although I do not fully subscribe to Justice Butler's methodology, I share many of his views and concur in his proposal to remand this case to the referee for an apportionment of costs.

LOUIS B. BUTLER, JR., J.

(concurring in part, dissenting in part).

¶ 35. I join the court's decision and order as to the discipline imposed in this action. While I may not have reached the same conclusion as the referee with respect to each of the violations alleged, the referee's determinations are not clearly erroneous. I write separately because I disagree with the court that full costs should be imposed in this case. I agree with the referee's recommendation that costs should be prorated, but would remand this matter to the referee to determine what costs would be appropriate.

¶ 36. Attorney Polich was charged with seven counts of attorney misconduct. We have concluded that there was sufficient evidence regarding two of those counts. Neither of those counts was litigated, as the finding in count four (making false and misleading communications) was established by summary judgment and Attorney Polich admitted the violation in count five (improperly practicing law while suspended). As far as the remaining five litigated claims are concerned, while the court agreed with the referee that portions of Attorney Polich's defenses are suspect (a viewpoint with which I concur), the court's per curiam opinion nevertheless adopted the referee's findings and conclusion that there was insufficient evidence to establish those counts. Thus, Attorney Polieh prevailed on all counts that were tried at the hearing before the referee. In recommending that the costs be prorated, the referee opined that "clearly issues of fundamental fairness exist if the respondent is required to bear all of the costs of proceedings in which he fundamentally prevails." Per curiam op., ¶ 2. The court rejects this recommendation. Id., ¶¶ 2, 29-30, 32.

¶ 37. While noting that we have the discretion to apportion costs pursuant to SCR 22.24(1), see per curiam op., ¶ 29, the court recognizes that we have traditionally not done so. See, e.g., In re Disciplinary Proceedings Against Pangman, 216 Wis. 2d 440, 460, 574 N.W.2d 232 (1998); In re Disciplinary Proceedings Against Preloznik, 169 Wis. 2d 137, 485 N.W.2d 249 (1992). See also, In re Disciplinary Proceedings Against Kalal, 2002 WI 45, ¶ 33, 252 Wis. 2d 261, 278, 643 N.W.2d 466; and In re Disciplinary Proceedings Against Johnson, 165 Wis. 2d 14, 20, 477 N.W.2d 54 (1991). The court reasons that there was no indication that the costs incurred by the OLR were unreasonable and unnecessary. Per curiam op., ¶ 30. The court also notes that the five counts on which Attorney Polieh prevailed had prosecutorial merit. Id. The per curiam opinion concludes that the circumstances in this case do not warrant departure from the practice of assessing full costs against an attorney found to have engaged in at least some of the alleged professional misconduct. Id. I respectfully disagree.

¶ 38. A review of the above cases suggests that the rule assessing full costs has been applied with little or no rationale. While this court certainly has the power to assess full costs even though an attorney has prevailed on some of the allegations, that does not mean that such a result is always right or just. I agree with the referee that issues of fundamental fairness exist if an attorney is always required to bear all of the costs of proceedings in which he or she prevails. Thus, I conclude that it is appropriate to develop standards to guide us in determining when costs should be prorated in a given case. Nevertheless, I disagree that costs should automatically be prorated based on the number of counts that have been established.

¶ 39. The Seventh Circuit Court of Appeals has held that on the issue of allocation of costs in criminal prosecutions, the general rule is that costs associated exclusively with the unsuccessful prosecution of a defendant on specific counts may not be assessed against that defendant. United States v. Pieper, 854 F.2d 1020, 1027-28 (7th Cir. 1988). On the other hand, where evidence is introduced that relates to multiple counts, it may be proper to assess costs associated with the prosecution of both the successful and the related unsuccessful counts. Id.

¶ 40. Although Pieper does not involve a disciplinary proceeding and is not binding precedent from our court, I note that we have not established standards to guide us in applying SCR 22.24 (1). Consequently, I find Pieper to be persuasive in this matter, and would apply its logic to the facts of this case.

¶ 41. Attorney Polich committed two violations of professional misconduct. Three additional allegations (counts two, three, and six) were substantially related to those violations, and the evidence overlapped as to those counts. I therefore concur with the court's per curiam opinion that Attorney Polich should pay all costs associated with the prosecution of counts two through six.

¶ 42. However, counts one and seven were unrelated to the other counts. Because there was insufficient evidence to support each of those counts, it is fundamentally unfair to assess costs associated with those counts against Attorney Polich. I would therefore remand this matter to the referee to apportion costs and assess them against Attorney Polich only with respect to counts two through six. Those costs should be apportioned based on the time and expenses reasonably necessary to prosecute each of those five counts by both OLR and the referee. Should it become impossible or impractical to calculate those costs, then the OLR costs and referee expenses should be mathematically prorated to reflect five out of seven counts; that is, five-sevenths of the OLR costs and referee expenses. In addition to those costs, though, I agree with the court that Attorney Polich must pay the entire court reporter fees.

¶ 43. Supreme Court Rule 22.24 (1) clearly establishes that this court has discretion to apportion costs in OLR proceedings. The fact that we have not established standards, guidelines, and procedures for when we exercise that discretion does not abdicate our responsibility to do so in cases like this where discretion is warranted. Accordingly, I would follow the rationale set forth in Pieper until we devise our own procedures.

¶ 44. I therefore respectfully dissent from that portion of the per curiam opinion that assesses full costs against the respondent. I concur with the remainder of the decision.

¶ 45. I am authorized to state that Justices DAVID T. PROSSER and PATIENCE DRAKE ROGGENSACK join this opinion.

       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.

       SCR 20:1.3 provides: Diligence.
      A lawyer shall act with reasonable diligence and promptness in representing a client.

       SCR 20:3.3 provides: Candor toward the tribunal.
      (a)A lawyer shall not knowingly:
      (1) make a false statement of fact or law to a tribunal;
      (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
      (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
      (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
      (b) The duties stated in paragraph (a) apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
      (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
      (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

       SCR 20:7.5(a) provides: Firm names and letterheads.

        (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

       SCR 20:7.1(a) provides: Communications concerning a lawyer's services.
      (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:
      (1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
      (2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;
      (3) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated; or
      (4) contains any paid testimonial about, or paid endorsement of, the lawyer without identifying the fact that payment has been made or, if the testimonial or endorsement is not made by an actual client, without identifying that fact.

       SCR 31.10(1) provides: Noncompliance.
      (1) If a lawyer fails to comply with the attendance requirement of SCR 31.02, fails to comply with the reporting requirement of SCR 31.03(1), or fails to pay the late fee under SCR 31.03(2), the board shall serve a notice of noncompliance on the lawyer. This notice shall advise the lawyer that the state bar membership of the lawyer shall be automatically suspended for fading to file evidence of compliance or to pay the late fee within 60 days after service of the notice. The board shall certify the names of ad lawyers so suspended under this rule to the clerk of the supreme court and to each judge of a court of record in this state. A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.

       SCR 20:8.4 provides: Misconduct.
      It is professional misconduct for a lawyer to:
      (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
      (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
      (d) state or imply an ability to influence improperly a government agency or official;
      (e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
      (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers; or
      (g) violate the attorney's oath.

       SCR 22.03(6) provides: Investigation.
      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 22.24(1) provides: Assessment of costs.

        (1) The supreme court may assess against the respondent all or a portion of the costs of a disciplinary proceeding in which misconduct is found, a medical incapacity proceeding in which it finds a medical incapacity, or a reinstatement proceeding and may enter a judgment for costs. The director may assess all or a portion of the costs of an investigation when discipline is imposed under SCR 22.09. Costs are payable to the office of lawyer regulation.

       I recognize that an argument could be made that Attorney Polich should be required to pay costs and fees only for the two counts which were substantiated, particularly in view of the fact that respondent prevailed on all counts which were actually tried. I nevertheless favor the "substantially related" approach in this instance because I do not want to discourage the OLR from prosecuting allegations that are meritorious and substantially related to violations that have already been established.