author: PER CURIAM. DAVID T. PROSSER, J.

text:
    In the Matter of Disciplinary Proceedings Against Leslie J. Webster, Attorney at Law. Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Leslie J. Webster, Respondent.
    Supreme Court

      No. 98-0677-D.

      Submitted on briefs March 11, 2002. —
    Decided July 11, 2002.

    2002 WI 100
    (Also reported in 647 N.W.2d 831.)

      ATTORNEY reinstatement proceeding.
    For the respondent there were briefs by Daniel W. Hildebrand and DeWitt Ross & Stevens S.C., Madison.'
    For the complainant there was a brief by Frank M. Tuerkheimer and LaFollette Godfrey & Kahn, Madison.
   PER CURIAM.

¶ 1. Leslie J. Webster appealed from the referee's findings of fact, conclusions of law, and recommendation that the petition for reinstatement of his license to practice law in this state be denied. Webster's license was suspended on January 21, 1998, for two years following his felony conviction in federal court on the charge of aiding and abetting the fraudulent concealment of a debtor's property from a bankruptcy trustee. In re Disciplinary Proceedings Against Webster, 217 Wis. 2d 371, 577 N.W.2d 21 (1998). Webster was incarcerated as a result of that conviction from December 18, 1997, until January 15, 1999.

¶ 2. After a public hearing on Webster's reinstatement petition the referee issued a report making specific findings of fact and conclusions of law. First, the referee concluded that Webster had not complied with the requirements of SCR 22.26(l)(a) in that he failed to notify all clients whose funds he held in trust of his suspension; further, the referee determined that Webster had not complied with the requirements of SCR 22.26(2) in that he had practiced law during the term of his suspension. In addition, the referee concluded that Webster had not demonstrated by clear, satisfactory, and convincing evidence that he had the moral character to practice law in this state and that his resumption of the practice of law would not be detrimental to the administration of justice or subversive of the public interest; and finally, the referee concluded that Webster had not demonstrated that he had met the requirements for reinstatement. SCR 22.31(1). Accordingly, the referee recommended that Webster's petition for reinstatement of his license to practice law in this state be denied. The referee wrote:

Considered individually, some of petitioner's transgressions are relatively minor and would not lead to the recommendation I am making. However, when viewed as a whole, they evince the continuation of a longstanding pattern — a pattern demonstrating a lack of appreciation for and understanding of basic legal principles as well as the rules governing an attorney whose license has been suspended. Put another way, petitioner's conduct demonstrates his willingness to "play fast and loose" with the rules and to "cut corners" when petitioner deems it suitable to his purpose. Moreover, when confronted with claims of inappropriate conduct, petitioner's response has largely been to either blame that conduct on someone or something other than himself, or to denominate it as a mere, and minor, error of judgment that could be made by anyone.
If only one or even two of these transgressions was at issue, I, like the referee in Eisenberg and the District 5 Committee, could very well have a different recommendation to submit to the court. However, this is a case where the whole is greater than the sum of its parts, and given this whole, I am compelled to recommend that reinstatement he denied.

¶ 3. After a review of the record we conclude that the referee's factual findings are not clearly erroneous. In addition, we agree with the referee and conclude that Webster has not satisfied his burden under SCR 22.31 to demonstrate by clear, satisfactory, and convincing evidence that he has the moral character to practice law in this state, that his resumption of the practice of law would not be detrimental to the administration of justice or subversive of the public interest, and that he has complied fully with the terms of his suspension and the requirements of SCR 22.26. We believe that Webster's activities during his suspension demonstrate that he either failed to comprehend what was expected of him in order to obtain reinstatement or that he knew full well what was required but chose to, as the referee described it," 'play fast and loose' with the rules [and] to 'cut corners' when [he] deem[ed] it suitable to his purpose." The former raises serious question about Webster's competence to resume the practice of law in this state and the latter raises just as serious question about his fitness to practice law. In either case we conclude that Webster has not met his burden under SCR 22.31 and, accordingly, we deny his petition for reinstatement.

¶ 4. Because we find that the referee's findings are not clearly erroneous and that any one of the findings standing alone support our denial of Webster's petition for reinstatement, we need not discuss in detail all of the referee's extensive findings in this matter. We focus primarily on Webster's activities during the period of his suspension. First, based on the referee's findings, we conclude that Webster continued to practice law during his suspension when he filed and prosecuted in the circuit courts of this state three foreclosure actions as trustee of his parents' revocable inter vivos trust.

¶ 5. Second, we agree with the referee that the numerous occasions when Webster repeatedly deposited or withdrew monies from his IOLTA trust account, reflected an attitude that, despite his suspension, it was simply "business as usual." Although Webster's activities involving his IOLTA trust account may not, standing alone, constitute the practice of law, they do reveal a certain cynicism or "skating on the edge" style that is inconsistent with what is expected from a suspended lawyer who wants to be reinstated.

¶ 6. And third, we conclude that Webster's actions of listing himself as an attorney in a local phone directory published before his two-year suspension period had ended and before he had been reinstated, along with his continued use of his law office checks during his imprisonment and suspension, preclude any finding that he has the moral character to practice law and that his reinstatement would not be detrimental to the administration of justice or subversive of public interest. Again we note that although those actions standing alone may not constitute the practice of law, taken in combination they demonstrate Webster's failure to meet his burden to show that he is both competent and fit to resume the practice of law in this state. As the referee aptly observed, this is a case "where the whole is greater than the sum of its parts," and on the whole we are not convinced that Webster should be reinstated at this time.

f 7. Leslie J. Webster was licensed to practice law in Wisconsin in 1979 and has practiced in Ellsworth, Wisconsin, primarily as a sole practitioner under the firm name of Oltman & Webster, Ltd.; Oltman had not been actively engaged in the practice during the times material to these proceedings. Webster was publicly reprimanded in 1990 for undertaking the representation of a client in a matter in which Webster had a conflict of interest by virtue of his intimate relationship with the client's wife. In re Disciplinary Proceedings Against Webster, 154 Wis. 2d 110, 452 N.W.2d 374 (1990).

¶ 8. On January 21, 1998, this court suspended Webster's license to practice law for two years following his felony conviction and two-year prison sentence imposed in federal court. In re Disciplinary Proceedings Against Webster, 217 Wis. 2d 371, 577 N.W.2d 21 (1998).

¶ 9. Webster petitioned this court on December 16,1999, seeking reinstatement and as noted above, the matter was subsequently sent to a referee for a hearing and report. We will discuss certain findings made by the referee that support our conclusion that Webster's reinstatement petition must be denied.

FORECLOSURE ACTIONS

¶ 10. The referee found that between June 1998 and March 2000 Webster filed and prosecuted three foreclosure actions as a trustee of a revocable inter vivos trust of which his parents are lifetime beneficiaries and in which he and his sisters are residuary beneficiaries. These foreclosure actions were brought in Pierce County, Polk County, and Burnett County Circuit Courts. In all three actions Webster appeared in a fiduciary capacity representing the legal interest of the trust and/or the trust beneficiaries. The referee found that in those three foreclosure cases Webster subsequently sought and was awarded fees and costs for his services as trustee in prosecuting the foreclosure actions. Webster's fees totaled approximately $4600, and he was awarded costs in addition to those fees.

¶ 11. The referee further determined that although none of the circuit court judges in the foreclosure actions questioned whether Webster's appearance in a representative or fiduciary capacity as a trustee constituted the practice of law, the circuit court judge in the Polk County action questioned the fee Webster requested calling it ". .. nothing more than a thinly-veiled attempt to obtain fees at the rate normally charged by an attorney practicing this type of law in this area. To allow this would be a sham with regard to the order previously entered suspending Mr. Webster's right to practice law."

¶ 12. Subsequently the circuit court in the Polk County case, substantially reduced the fee awarded Webster in that foreclosure action. His fees in the other two foreclosure cases were awarded in the amount he requested.

¶ 13. The referee further found that prior to commencing these foreclosure actions Webster had not asked BAPR whether his conduct would constitute the practice of law. However, in September 1999 a defendant in one of those foreclosure actions contacted the United States attorney's office and Webster's federal supervised release officer questioning whether Webster's activities on behalf of the trust in that foreclosure action constituted practicing law. After that question was raised Webster contacted the district attorney's office in the county where that action was pending and secured an opinion from the district attorney that Webster's activities on behalf of the trust in the foreclosure action did not violate the proscriptions in Wis. Stat. § 757.30 (1999-2000) against practicing law without a license.

¶ 14. In addition, the referee determined that it was more than 15 months after Webster filed the first of the foreclosure actions, and then only after the question was raised by the United State's attorney's office, that Webster contacted the State Bar's Ethics Hotline seeking advice about whether his activities on behalf of the trust constituted practicing law; the Hotline declined to give advice about whether Webster's activities in the foreclosure cases constituted the practice of law.

¶ 15. According to the referee, Webster's activities as trustee on behalf of the trust in the foreclosure cases contravened the holding in Life Science Church v. Shawano County, 221 Wis. 2d 331, 585 N.W.2d 625 (Ct. App. 1998). The referee noted that the court of appeals in Life Science Church, citing Jadair Inc. v. United States Fire Insurance Co., 209 Wis. 2d 187, 562 N.W.2d 401 (1997), and cases from other jurisdictions, held that trustees may appear in Wisconsin courts without licensed legal counsel only to represent the trustee's own legal interest in his or her individual capacity; a trustee, who is not licensed to practice law, may not, however, represent the legal interests of the trust or trust beneficiaries in a representative fiduciary capacity as trustee. Life Science Church, 221 Wis. 2d at 334. Furthermore, according to the Life Science Church court, this court in Jadair recognized that non-lawyers who attempt to speak for the legal interests of others are engaged in the unauthorized practice of law. Id. at 333. The referee determined that despite the "crystal clear" holding in Life Science Church, Webster nevertheless prosecuted the three foreclosure actions on behalf of the trust and beneficiaries in his representative fiduciary capacity after his license to practice law had been suspended.

¶ 16. In testimony before the referee Webster acknowledged that he had not read the Life Science Church case until the spring of 2000 — after he had already commenced and prosecuted the foreclosure actions. Webster claimed that he was unaware of the Life Science Church decision when he filed the foreclosure actions because he had cancelled his subscription to the Wisconsin Reports after his license had been suspended and he did not have access to that case while in prison. According to Webster, the research he did on the subject of practicing law while under suspension only revealed two cases: In re Disciplinary Proceedings Against Eisenberg, 126 Wis. 2d 435, 446, 337 N.W.2d 160 (1985), and In re Disciplinary Proceedings Against Eisenberg, 96 Wis. 2d 342, 291 N.W.2d 565 (1980). Webster believed that both of those cases supported his understanding that although he could not represent a corporation while under suspension, there was nothing barring him from representing a trust in which he was the trustee and beneficiary. Webster noted that Wis. Stat. § 757.30 contains no specific reference or prohibition against a fiduciary trustee representing a trust.

¶ 17. In addition, in his testimony before the referee, Webster claimed that he had relied on the district attorney's opinion that filing the foreclosure cases in a representative capacity as a trustee, did not constitute the practice of law without a license. Webster also observed that none of the judges in the foreclosure actions questioned whether his appearance constituted the practice of law. And, finally, Webster explained that he had not contacted BAPR to obtain an opinion on whether his activities would constitute practicing law, because he did not think that BAPR would give him an opinion on the subject.

¶ 18. Webster's explanations did not persuade the referee that he had not been practicing law during his suspension. In the first place, according to the referee, Webster could have easily found the Life Science Church decision had he done basic legal research on the issue; the referee thought that his failure to do so cast doubt on Webster's competence as a lawyer.

¶ 19. Moreover, the referee found that Webster's reliance on the two Eisenberg disciplinary decisions was misplaced because those cases did not address the issue of whether a trustee, who does not have a law license, may appear in courts in this state on behalf of a trust.

¶ 20. Similarly, the referee said that while Webster may have taken some comfort from the district attorney's favorable opinion, if Webster had conducted his own research, he would have discovered that the district attorney's opinion was clearly wrong in light of Life Science Church. The referee also reasoned that Webster should draw little solace from the fact that none of the judges before whom he appeared in the foreclosure actions questioned whether he was practicing law; according to the referee, it was Webster's responsibility, not someone else's, to make certain that his conduct during the suspension conformed to the rules against practicing law.

¶ 21. The referee also found it significant that Webster's inquiries into whether his activities on behalf of the trust constituted the practice of law, occurred only after the United States attorney's office and Webster's federal supervised release officer questioned whether he was practicing law.

¶ 22. On appeal Webster reiterates his argument that by prosecuting the three foreclosure matters as a trustee, he was not practicing law as that term is used in Wis. Stat. § 757.30 and SCR 22.26(2). Webster points out that the words "trust, fiduciary, principal or any other reference to legal actions taken on behalf of a principal" are conspicuously absent from both Wis. Stat. § 757.30 and SCR 22.26(2). According to Webster, had the legislature intended to preclude a trustee from commencing and maintaining legal actions on behalf of a trust without enlisting the services of an attorney, the legislature could have easily so provided in the statute.

¶ 23. Furthermore, Webster maintains on appeal that despite the referee's description of the holding in Life Science Church as "crystal clear," Webster believed it was not — especially when applied to a trustee of an inter vivos trust. Webster contrasts his actions as trustee of the inter vivos trust with the actions of the trustees in the Life Science Church case. Here Webster notes that he actually held title to the property, was authorized by the trust to prosecute legal actions on behalf of the trust, and had been appointed by the settlers of the trust to safeguard their asserts and to hold, manage, and distribute them. According to Webster, in bringing the three foreclosure actions as trustee on behalf of the trust, he was simply fulfilling his duties as trustee; he was not practicing law.

¶ 24. We are not convinced. The distinction Webster attempts to draw between a trustee of a church, like that involved in Life Science Church case, and a trustee of an inter vivos trust, is not as persuasive as Webster would have it. In any event, had Webster simply read the Life Science Church case or this court's decision in Jadair — both of which were issued before Webster filed the first foreclosure action on behalf of the trust — he would have been put on notice that his activities on behalf of the trust could be construed as practicing law.

¶ 25. Recently in In re Disciplinary Proceedings Against Hyndman, 2002 WI 6, 249 Wis. 2d 650, 638 N.W.2d 293, this court discussed the prohibition in SCR 22.26(2) against a suspended or revoked attorney practicing law. Hyndman recognized that if certain acts would not constitute practicing law for a non-lawyer, then those same acts would not constitute practicing law for a person whose license to practice law had been revoked or suspended. In view of the holding in Life Science Church that a trustee must appear in Wisconsin courts with licensed legal counsel unless the trustee is acting solely in an individual capacity, it is apparent that Webster's activities as trustee on behalf of the trust in the three foreclosure actions could not have been performed by a non-lawyer. The trustee in Life Science Church could not file a notice of appeal on behalf of the trust; similarly, Webster as trustee of the inter vivos trust could not commence and prosecute the foreclosure actions on behalf of the trust and beneficiaries. When Webster acted on behalf of the trust by filing and prosecuting the foreclosure actions he was practicing law. We believe that the referee correctly determined that Webster's activities constituted the practice of law. At the very least, he should have checked with BAPR before he filed the foreclosure actions. The referee's determination that Webster was practicing law when he commenced and prosecuted the foreclosure actions is not clearly erroneous.

OFFICE CHECKS

¶ 26. The referee determined that prior to his suspension, Webster had maintained a business checking account at a local bank under the name of "Oltman & Webster, Ltd., Attorneys at Law." That account remained open after his suspension and between June of 1998 and May of 1999 more than 300 checks were drawn on that account.

¶ 27. In his testimony before the district professional responsibility committee, and again before the referee, Webster asserted that his legal assistant wrote all the office checks. He claimed that he was "surprised" that she continued to use that account after his suspension and imprisonment. Furthermore, he pointed out the "Attorneys at Law" designation on the checks was in small print. And, Webster noted that he had derived no benefit from the continued use of these checks while under suspension.

¶ 28. Again the referee was not persuaded by Webster's explanations. The referee said that Webster should not have held himself out as an attorney by using those checks even if he derived no legal business from their use; moreover, the referee found Webster's willingness to blame his legal assistant for this oversight to be unacceptable. According to the referee, it was Webster's responsibility to ensure that he complied with the rules governing one whose license had been suspended. The referee recognized that although this infraction, standing alone, would not be "terribly serious," it evinced a less than scrupulous attitude on Webster's part toward compliance with the rules governing reinstatement.

¶ 29. On appeal Webster emphasizes the referee's description of this infraction as not being "terribly serious." Furthermore, he disputes the referee's belief that he was blaming his assistant. According to Webster, he had instructed his assistant to remove all indicia of law practice including scraping the words "Law Office" off the window of his office. He suggests that his assistant might have continued to pay the bills with the office checks because it simply escaped her notice and did not occur to her to order new office checks. Webster insists that he was unaware that the checks were used during his suspension and again he points out that he derived no legal business from the use of those checks.

¶ 30. We too are not persuaded by Webster's arguments. We note that these checks were used not only while Webster was in prison, but also after he had been released from prison. At that point, if not earlier, he should have been overseeing the use of the checks in his office.

¶ 31. Moreover, Wis. Stat. § 757.30(3) provides that every person "... who in any other manner represents himself or herself either verbally or in writing, directly or indirectly, as authorized to practice law in this state, shall be deemed to be purporting to be licensed to practice law as an attorney within the meaning of this section." We think that using office checks with the designation "Attorneys at Law" imprinted on them — even if in small print — is a representation to the public that the drawer of the check is a lawyer or law office. The referee's findings in this respect are not clearly erroneous. These acts by Webster plus his placing the phone directory advertisement listing his law office before his suspension ended (discussed below) reflect a cynical attitude inconsistent with the high ethical standards we expect from those admitted to practice law in this state. Although these actions might not constitute practicing law, we conclude they refute any claim by Webster that he has met his burden under SCR 22.21 to obtain reinstatement.

YELLOW PAGES AD

¶ 32. The referee determined that in late 1999 Webster placed an advertisement for his law office in the Yellow Pages of the local telephone book. That ad appeared in the phonebook distributed early in January of 2000 which was several weeks before the two-year anniversary date of this court's January 21, 1998, suspension order.

¶ 33. At the hearing before the referee Webster claimed that he had assumed that the order suspending his license for a period of two years would expire at the end of that two-year period on January 21, 2000, and that he would then be "automatically reinstated" on that date. He also said that if a potential client had called in response to the ad prior to the time of his anticipated "automatic" reinstatement, he would have simply referred that person to another attorney.

¶ 34. The referee was critical of Webster's failure to undertake any research concerning the reinstatement rules. The referee said that by simply reading SCR 22.28(3), or by simply contacting BAPR, Webster would have discovered that his reinstatement would not be automatic. According to the referee, Webster's explanation that he assumed he would be automatically reinstated was either "wholly disingenuous" or, as Webster himself termed it, "incredibly stupid." The referee wrote:

One would think that a lawyer whose license has been suspended and who desires to practice law again would have at least a passing familiarity with the rules governing reinstatement. After all, one's livelihood as an attorney depends upon it. Even if one accepts petitioner's testimony that he truly thought his license would be automatically reinstated, his failure to make certain [of that] demonstrates a basic lack of competence which does not advance his claim that reinstatement would not be detrimental to future clients.
In addition, petitioner's willingness to place an ad that he knew would appear in print before January 21, 1998 [sic] is yet another example of his willingness to cut corners when it suits his purpose.

¶ 35. On appeal Webster concedes that placing the ad was "incredibly stupid"; he claims, however, that it resulted from his failure to understand the amount of time it would take to obtain reinstatement. Again, Webster notes that he derived no legal business from the ad and he accepts the referee's criticism that he should have read the reinstatement rules before placing the ad.

¶ 36. We believe, as OLR maintains, that there is nothing ambiguous about SCR 22.28(3). Neither the former version nor the current version of this reinstatement provision can be read to support a reasonable belief that an attorney whose license to practice law has been suspended for two years would be automatically reinstated at the end of that two-year period. Furthermore, as OLR points out in its brief, Webster's ad in the Yellow Pages identifying him as an attorney was distributed in the January 1, 2000, edition of the Yellow Pages; that was three weeks before Webster himself thought his suspension period would end and his license would be automatically reinstated.

¶ 37. As discussed above, Webster's check writing and placing the telephone ad reflect a cavalier attitude on his part toward the standards of behavior needed to gain reinstatement. These acts demonstrate that Webster has failed to meet his burden of proof under SCR 22.31(1) to obtain reinstatement of his license. Webster's repeated lapses in judgment reflected by these actions support our decision to deny his reinstatement petition.

TRUST ACCOUNT ACTIVITIES

¶ 38. The referee made specific findings with respect to the large number of deposits or withdrawals in Webster's trust account during his suspension. The referee noted that as of June 2000 Webster's IOLTA trust account remained open; furthermore, between the time of his suspension in January of 1998 and the end of 1998, eight deposits totaling $97,527.01 had been made into that account. In addition, the referee found that at least 30 checks had been written on that account from the time of Webster's suspension to the end of 1998; the balance in the account at the end of 1998 was $8751.32. The referee determined that although the deposits and disbursements into the account had been made by Webster's legal assistant, she had acted under Webster's supervision by telephone while he was in prison.

¶ 39. In addition, the referee found that after Webster was released from prison, he restated the Articles of Incorporation for Oltman & Webster to provide that the firm offered accounting services rather than legal services. However, according to the referee, Webster maintained his same IOLTA account after that corporate restatement. The referee determined that during 1999, deposits into that account totaled $222,549.47 and disbursements from the account totaled $214,957.44, leaving a balance in Webster's IOLTA account as of June 2000 of $7876.94.

¶ 40. In argument before the referee Webster asserted that his continued use of his IOLTA trust account during his suspension was permissible because there was no specific rule requiring an attorney to close his or her trust account during periods of suspension. In addition, Webster asserted that his fiduciary duty to his clients required him to maintain the trust account to safeguard his clients' funds.

¶ 41. Although the referee acknowledged that there was no rule mandating that a lawyer must close his or her trust account during a period of suspension, the referee noted that SCR 22.26(2) explicitly prohibited Webster from practicing law during the period of suspension. The referee wrote:

Logic, alone, would appear to dictate that depositing money into and disbursing monies from a trust account is the practice of law. After all, the money in a trust account are [sic] derived from the practice of law, and the "movement" of money into and from such an account is a necessary part of the practice of law.

¶ 42. It was even more significant, according to the referee, that the "spirit" of the rule against practicing law during a period of suspension, prohibited any activity during suspension that a person would have regularly engaged in as a licensed practicing attorney. The referee believed that Webster's maintaining and utilizing his trust account was just such an activity. The referee wrote:

This is not a situation in which petitioner disbursed or transferred all of the monies in his trust accounts after his suspension and simply left the accounts open with a balance of $0. Nor is it a situation where the monies in the trust accounts at the time of suspension simply remained there with no additions or subtractions. If one of these two situations existed herein, my conclusion might be different. In this case, however, petitioner or petitioner's legal assistant under petitioner's supervision, actively moved money into and out of these accounts. Such activity certainly violates the intent of the prohibition against practicing law during the term of suspension.

¶ 43. Nor was the referee persuaded by Webster's other proffered explanation for keeping his trust account open — i.e., the protection of his clients' funds. The referee pointed out that Webster could have transferred all of the funds in his trust account to another attorney's trust account where they would have been equally safe. Although the referee said that would have required the consent of the client and the other attorney, in view of the fact that Webster had been able to make arrangements to transfer his active client files to other attorneys, the referee thought Webster could have made a similar arrangement to transfer his trust account funds. And, even if he could not, again, the referee said that Webster should have contacted BAPR to ascertain what he should have done with the trust account funds.

¶ 44. On appeal Webster argues that there is nothing in the prohibition in SCR 22.26 against practicing law while under suspension that would require a suspended attorney to close his or her trust account, nor is there anything in the rule requiring the attorney to disburse all the funds held by the attorney as a trustee. Webster points out that there have been no allegations that he abused his trust account in any way; rather, the only allegation was that the considerable deposit and withdrawal activity in his trust account during his period of suspension violated the "spirit" of SCR 22.26. According to Webster, simply because an attorney has been suspended, that does not relieve that attorney of the fiduciary responsibility the attorney accepted when receiving funds for others for deposit into the attorney's trust accounts. In this respect, Webster notes that the District 5 Professional Responsibility Committee found that it was "appropriate" for him while under suspension to maintain his trust account with respect to monies that were in dispute on matters involving his former clients and third-party claimants. According to the committee, it would not be "realistic" to expect an attorney's trust account to be closed upon suspension.

¶ 45. Webster also asserts that although the referee acknowledged that there was no explicit requirement that a suspended attorney must close his or her trust account, the referee incorrectly reasoned that simply maintaining a trust account constitutes the practice of law. Webster complains that this "novel proposition" ignores the fact that numerous other individuals and entities such as real estate brokers, title companies, escrow agents, etc., also utilize trust accounts as a regular part of their businesses. According to Webster, a trust account is nothing more than a dedicated bank account into which funds belonging to others are deposited.

¶ 46. Although Webster concedes that some of the monies he held in his trust account at the time of his suspension had been derived from his practice of law, he maintains that if the mere movement of funds from such an account constituted the practice of law as the referee believed, then an attorney's trust account would always be frozen at the time of suspension; that would mean, Webster argues, that the suspended attorney would thereafter be unable to disburse any funds from that account without violating the rule against practicing law. Webster insists that SCR 22.26 was not intended to prohibit a suspended attorney from engaging in all activities he or she would have regularly engaged in as a licensed practicing attorney; rather, the rule is intended to prohibit a suspended attorney from engaging in activities which require a license to practice law. In this respect, he contends SCR 22.26(2) is not intended to prohibit a suspended attorney from working as an accountant, tax return preparer, real estate broker, title insurance agent, or in any other occupation where, as part of that occupation, the suspended attorney may do work which is also done by an attorney and which may require a trust account.

¶ 47. In response OLR argues that the deposits and withdrawals from Webster's IOLTA account— admittedly all done by ^Webster's legal assistant but under Webster's telephonic supervision from prison— were activities that only an attorney could engage in and therefore constituted the practice of law. Moreover, OLR points out that the referee did not, as Webster contends, find that Webster was required to close his account; rather, the referee viewed the numerous transactions in Webster's trust account as demonstrating his attitude that it was simply "business as usual" despite his suspension.

¶ 48. We agree with Webster that SCR 22.26(2) is not intended to prohibit a suspended attorney from engaging in any activity he or she could have engaged in as a licensed practicing attorney; rather, that rule is simply aimed at prohibiting a suspended attorney from engaging in activities which require a license to practice law or which are customarily done by law-related personnel such as law clerks, law students, or paralegals. As noted above, in Hyndman, this court said that if acts would not constitute practicing law for a non-lawyer, then those same acts would not constitute practicing law for a lawyer whose license to practice has been revoked or suspended. Webster's activities in transferring funds in and out of his trust accounts, while undoubtedly a component of practicing law, are not necessarily something that could only be done by a person who has a license to practice law. Transferring monies into and out of trust accounts would not normally constitute practicing law for a non-lawyer and therefore it would not constitute practicing law for a suspended lawyer like Webster.

¶ 49. However, in this case, Webster's transactions involved his IOLTA trust account. We believe IOLTA accounts are sui generis in that only attorneys who are required to participate in the program may have an IOLTA account. See SCR 20:1.15 and SCR 13.04.

¶ 50. Nonetheless, we find it unnecessary in this case to determine whether Webster's repeated deposits into and disbursals from his IOLTA trust account during his period of suspension constituted practicing law within the proscription in SCR 22.26(2) because Webster has in any event, not met the heavy burden placed on him by SCR 22.31 to obtain reinstatement. The referee's findings, which are not clearly erroneous, detailing Webster's activities during his suspension compel the conclusion that he has not met his burden to convince this court to grant his reinstatement petition.

f 51. When Webster filed his petition for reinstatement he submitted the required $200 advance deposit for costs of the reinstatement proceedings. See SCR 22.29(5). The OLR has now filed a Statement of Costs seeking a total of $9121.75 in costs beyond that $200 advance payment ($7224.10 for the costs incurred in the proceedings before the referee and an additional $1897.65 for costs incurred on this appeal). Webster has objected to OLR's request asserting that SCR 22.24 does not specifically provide for costs in reinstatement proceedings; in addition he claims that the imposition of costs in this matter would result in hardship and injustice to him.

¶ 52. Recently in In re Disciplinary Proceedings Against Penn, 2002 WI 5, 249 Wis. 2d 667, 638 N.W.2d 287, this court rejected the argument that there is no specific provision in SCR chapter 22 authorizing the imposition of costs in a reinstatement proceeding. In Penn we pointed out that SCR 22.29(5), as well as the general provision set out for disciplinary proceedings in SCR 22.11 through SCR 22.24, permit the imposition of costs against a petitioner in a reinstatement proceeding. Despite Webster's claim of inability to pay, under the circumstances of this case including the fact that during his suspension Webster collected significant fees for his representation of the trust in the foreclosure actions, we find it appropriate that Webster pay the full costs (with credit for his $200 advance deposit) of these reinstatement proceedings. See In re Disciplinary Proceedings Against Eisenberg, 122 Wis. 2d 627, 632, 363 N.W.2d 430 (1985).

¶ 53. IT IS ORDERED the petition of Leslie J. Webster seeking reinstatement of his license to practice law in this state is denied.

¶ 54. IT IS FURTHER ORDERED that within nine months of the date of this order, Leslie J. Webster pay to the Office of Lawyer Regulation the costs of this proceeding totaling $9121.75. If the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Leslie J. Webster to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 55. IT IS FURTHER ORDERED that pursuant to SCR 22.33(4) Leslie J. Webster may again file a petition for reinstatement nine months after the date of this order denying his petition for reinstatement.

¶ 56. JON E WILCOX, J., did not participate.

DAVID T. PROSSER, J.

¶ 57. (dissenting). Part of the mission of this court is to protect the public from unethical attorneys. We owe no sympathy to attorneys who steal or otherwise betray their clients. These bad apples hurt people who have every right to trust them, and they reflect adversely on the integrity and standing of the bar. I take very seriously this court's duty to promote high ethical standards in the legal profession.

¶ 58. If I thought this case involved injury to the public or the legal profession, I would eagerly join the court's opinion. However, I see the case differently. Never have the molehills of unauthorized practice been elevated to such heights.

1 59. Attorney Webster's license to practice law in Wisconsin was suspended for two years beginning January 21, 1998. Now, almost four-and-a-half years after the onset of his suspension, Webster is denied reinstatement. He is demonized in the court's opinion and assessed the whopping sum of $9121.75 in costs.

¶ 60. A careful reading of the court's opinion will reveal the emergence of some potentially troublesome principles of law. The court is largely concerned with Webster's unauthorized practice of law while he was under suspension. It points indignantly to the use of some old office checks carrying the name "Oltman & Webster, Ltd., Attorneys at Law" to pay salaries and other bills during Webster's suspension, as well as the purchase of an ad in the local telephone book in anticipation of Webster's reinstatement. The referee relied on these peccadilloes as examples of Webster's unauthorized practice. The court writes cautiously that "these actions might not constitute practicing law," majority op. at ¶ 31, yet it condemns them as unethical. What is the court saying? In the wake of these pronouncements, what rights do partners in a small law firm have when another partner is suspended? Do they have to remove the partner's name from the firm during the partner's period of suspension? Are they forbidden to advertise the name of a firm that includes the name of a suspended partner?

¶ 61. A comparison of the court's opinion with the material in the record will show that a lot of information favorable to Attorney Webster has been left out. A lot of information that puts his errors in context has been left out. For instance, during his suspension, Webster appeared in four foreclosure actions in behalf of members of his family, always in a capacity other than attorney. Three of these cases are correctly denominated as the unauthorized practice of law based on the Life Science decision. Life Science Church v. Shawano Co., 221 Wis. 2d 331, 585 N.W.2d 625 (Ct. App. 1998). One case involving his children is disregarded as being different. It happens to be the one case commenced before the decision in the Life Science case.

¶ 62. More than two years ago, 13 members of the District 5 Professional Responsibility Committee (Committee) met in La Crosse to review Webster's application for reinstatement. Certain problems were identified. The Committee followed up with a careful investigation and issued a 19-page report. Ultimately, the Committee found that, in several respects, Webster "technically engaged in the unauthorized practice of law during the term of his suspension.... He did not intentionally violate the terms of his suspension and merely appeared as trustee on behalf of a family trust without knowledge of the Life Science decision."

¶ 63. The Committee's recommendation states in part:

Based on the conclusion that Mr. Webster was engaged in the practice of law, he has not demonstrated by clear and convincing evidence full compliance with the terms of the suspension order and the requirements of SCR 22.26. Therefore, the Committee cannot recommend reinstatement under the standard of SCR 22.28(6). However, like Petition of Eisenberg, the recommendation for denial of reinstatement should be modified on the grounds that the denial may work an unjustifiably harsh result.
The Committee is satisfied that Mr. Webster has the moral character to practice law within the standards expected of the bar and the administration of justice....
Mr. Webster has paid what the Committee considers to be a most serious penalty for his misconduct, in light of suspensions ordered for misconduct in other cases. As of the present time he has been suspended from the practice of law for 30 months. He will remain suspended until the Board makes it[s] recommendations to the Supreme Court, and the Supreme Court ultimately decides the matter. By that time Mr. Webster's suspension could approach or exceed three years and if his petition is denied, he will be precluded from again filing a petition for reinstatement for at least nine months following the denial. See, SCR 22.28(8).
In Petition of Eisenberg, the referee felt compelled to recommend a denial of reinstatement because of the petitioner's unauthorized practice of law. However he recommended that the denial might work [an] "unjustifiably harsh" result by extending the term of the suspension for an inordinate period. The Supreme Court stated:
Eisenberg's failure to ascertain beforehand the legal effect of an appearance before the hearing examiner does not excuse his conduct. We feel, however, that a denial of reinstatement of his license to practice law... would be too severe.
The Committee recommends that the Board and Supreme Court adopt a similar rationale] in this case.... The Board and the court should consider the harshness of this sanction in concluding that the Petition for Reinstatement should be granted.

¶ 64. I agree with the recommendation of the District 5 Professional Responsibility Committee. In deference to the Committee's judgment, I respectfully dissent.

       On December 16, 1999, Webster petitioned for reinstatement and that petition, pursuant to the procedure then in effect under the Board of Attorneys Professional Responsibility, was referred to the District 5 Professional Responsibility Committee for a public hearing and report. On July 12, 2000, that committee filed its report concluding that although Webster had engaged in the practice of law during the period of his suspension and therefore had not demonstrated by clear and convincing evidence his full compliance with the terms of the suspension order, the committee nevertheless recommended his reinstatement because, in its view, to do otherwise would result in unjustifiable harshness. See In re Disciplinary Proceedings Against Eisenberg, 96 Wis. 2d 342, 291 N.W.2d 565 (1980).
      Effective October 1, 2000, Wisconsin's attorney disciplinary process was substantially restructured. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility (BAPR) to the Office of Lawyer Regulation (OLR) and the supreme court rules applicable to the lawyer regulation system were also revised in part. Although this case arose and was processed under the former BAPR procedures, and even though the District 5 Professional Responsibility Committee had made a favorable recommendation, on January 29, 2001, this court, at Webster's request, assigned the reinstatement petition to a referee noting that if Webster's petition for reinstatement had been filed under the new OLR procedural rules, a referee would have been appointed. SCR 22.30. This court further noted that even under the former BAPR procedures, reinstatement petitions could be referred to a referee. See [former] SCR 21.11 and In re Disciplinary Proceedings Against Eisenberg, 96 Wis. 2d 342, 291 N.W.2d 565 (1980). This court directed that the referee proceed under the new provisions applicable to reinstatement petitions, SCR 22.29 to 22.33. The referee held a public hearing and subsequently on August 27, 2001, filed her report recommending that Webster's petition for reinstatement be denied.

       SCR 22.26(l)(a) provides:
      (1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do all of the following:

        (a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation.

       SCR 22.26(2) provides:
      (2) An attorney whose license to practice law is suspended or revoked or who is suspended from the practice of law may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel, except that the attorney may engage in law related work in this state for a commercial employer itself not engaged in the practice of law.

       SCR 22.31(1) provides:
      (1) The petitioner has the burden of demonstrating by clear, satisfactory and convincing evidence that the petitioner has the moral character to practice law in Wisconsin, that the petitioner's resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that the petitioner has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26.

       There was an additional foreclosure action which Webster commenced as a guardian for his children. The OLR does not now contend that that constituted the practice of law; accordingly, this opinion does not discuss that action.

       Wisconsin Stat. § 757.30(2) provides:
      (2) Every person who appears as agent, representative or attorney, for or on behalf of any other person, or any firm, partnership, association or corporation in any action or proceeding in or before any court of record, court commissioner, or judicial tribunal of the United States, or of any state, or who otherwise, in or out of court, for compensation or pecuniary reward gives professional legal advice not incidental to his or her usual or ordinary business, or renders any legal services for any other person, or any firm, partnership, association or corporation, shall be deemed to be practicing law within the meaning of this section.
      All subsequent references to the Wisconsin Statutes are to the 1999-2000 version, unless otherwise indicated.

       Former SCR 22.28(3) provided, in part:
      (3) An attorney whose license is revoked, suspended for 6 months or more for misconduct, or suspended for medical incapacity shall not resume practice until the license is reinstated by order of the supreme court. A petition for reinstatement from a suspension for a definite term may he filed at any time commencing 3 months prior to the expiration of the suspension period.. ..
      Current SCR 22.28(3) provides that "(3) The license of an attorney that is revoked or suspended for misconduct for six months or more shall be reinstated pursuant to the procedures set forth in SCR 22.29 to 22.33 and only by order of the supreme court."

       SCR 20:1.15 provides, in pertinent part: "Safekeeping property, (a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third-persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity . . . ."
      SCR chapter 13 establishes the "Interest on Trust Accounts Program" (IOLTA) for lawyers. SCR 13.04 provides, in pertinent part: "Attorney participation in the program. (1) An attorney shall participate in the program as provided in SCR 20:1.15

       SCR 22.33(4) [formerly SCR 22.28(8)] provides that "(4) If the supreme court denies a petition for reinstatement, the petitioner may again file a petition for reinstatement commencing nine months after the denial."


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Jack U. Shlimovitz, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jack U. Shlimovitz, Respondent.
    Supreme Court

      No. 02-0876-D.

      Decided July 11, 2002.

    2002 WI 103
    (Also reported in 647 N.W.2d 241.)

      ATTORNEY disciplinary proceeding.
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Jack U. Shlimovitz and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12 setting forth findings of fact and conclusions of law regarding Attorney Shlimovitz's professional misconduct in connection with his representation of a debtor in a Chapter 7 bankruptcy proceeding. The parties stipulated that this misconduct constitutes commission of a criminal act that reflects adversely on Attorney Shlimovitz's honesty, trustworthiness or fitness as a lawyer in violation of SCR 20:8.4(b). The parties further stipulated to a two-year suspension of Attorney Shlimovitz's license to practice law.

¶ 2. We approve the stipulation and adopt the stipulated facts and conclusions of law. We agree that the seriousness of Attorney Shlimovitz's misconduct warrants the suspension of his license to practice law. We accept the parties' stipulation that two years is appropriate discipline for this offense, subject to the understanding that in the federal case giving rise to this disciplinary action, Attorney Shlimovitz agreed to surrender his license to practice law for a period of five years.

¶ 3. Attorney Shlimovitz was admitted to practice law in Wisconsin in 1955. He was publicly reprimanded in 1994 for permitting an associate to work on a bankruptcy matter that the associate had previously worked on while employed by the United States Trustee's Office, and for related misrepresentations in connection with billing these services. In re Disciplinary Proceedings Against Shlimovitz, 182 Wis. 2d 65, 512 N.W.2d 769 (1994).

¶ 4. The current disciplinary proceeding stems from Attorney Shlimovitz's violation of federal law in connection with his representation of a debtor in a Chapter 7 bankruptcy proceeding.

¶ 5. Attorney Shlimovitz filed the bankruptcy petition in federal district court on behalf of his client on January 18, 2000. One of the debtor's assets was a home. Attorney Shlimovitz indicated in the petition that the client resided in the home and he listed the value of the home as $70,000. The next day Attorney Shlimovitz filed a motion seeking to avoid a judgment lien against the home, asserting that the lien would interfere with the debtor's homestead exemption.

¶ 6. At the time he filed the motion Attorney Shlimovitz knew the home was valued well over $70,000. In 1999 he had ordered an appraisal of the home, which placed its value at $160,000. In addition, prior to filing the bankruptcy petition, Attorney Shli-movitz was aware that a potential purchaser of the home had obtained a $128,000 mortgage from a bank and that the tax assessed value of the home was $189,000. On November 11, 2000, the bankruptcy estate sold the home for $155,000.

¶ 7. On July 17, 2001, Attorney Shlimovitz was charged in U.S. District Court for the Eastern District of Wisconsin with one count of willfully disobeying a lawful rule of the U.S. Bankruptcy Court in violation of 18 U.S.C § 401(3). He entered into a plea agreement in July 2001 and on November 8, 2001, Attorney Shlimovitz pled guilty to the charge. He was convicted and sentenced to two years' probation on the same day. See United States v. Shlimovitz, No. 01-CR-138 (E.D. Wis. Nov. 9, 2001). Pursuant to the terms of the plea agreement he agreed to surrender his license to practice law for no less than five years. The relevant provision of the plea agreement reads as follows:

Prior to sentencing, defendant agrees to take all necessary steps to voluntarily surrender his license to practice law. Defendant further agrees not to petition any court or agency for reinstatement of his license until a period of five years following the later of his sentencing, or revocation of his license, has lapsed. Defendant further agrees not to practice law in the State of Wisconsin or elsewhere for a period of five years following his sentencing. The parties understand and agree that this paragraph is a material provision of this agreement and the defendant's failure to comply with the terms of this paragraph will render this agreement null and void.

f 8. On March 27, 2002, the OLR filed a complaint against Attorney Shlimovitz in connection with this matter. The parties promptly entered into a stipulation whereby they agreed that Attorney Shlimovitz committed the federal criminal offense of knowingly disobeying a lawful rule of the bankruptcy court, contrary to 18 U.S.C § 401(3) by his act of knowingly submitting false information to a bankruptcy court. The parties stipulated further that this constitutes commission of a criminal act that reflects adversely on Attorney Shlimovitz's honesty, trustworthiness or fitness as a lawyer in violation of SCR 20:8.4(b).

¶ 9. We adopt the findings of fact and conclusions of law set forth in the parties' stipulation. Providing false information to the court is a serious breach of professional conduct and warrants suspension of Attorney Shlimovitz's license to practice law. We accept the parties' conclusion that a two-year suspension of his license is appropriate discipline for his professional misconduct, subject to the understanding that Attorney Shlimovitz has ceased to practice law and that he remains subject to the terms of the federal plea agreement, which precludes him from seeking reinstatement of his license until a period of five years following his sentencing has lapsed.

¶ 10. IT IS ORDERED that the license of Jack U. Shlimovitz to practice law in Wisconsin is suspended for a period of two years, effective the date of this order. The OLR indicates it is not seeking imposition of costs in this matter.

¶ 11. IT IS FURTHER ORDERED that Jack U. Shlimovitz 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 20:8.4(b) provides that "[i]t is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

       18 U.S.C. § 401 is entitled "power of court" and provides:
      A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none others, as—
      (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
      (2) Misbehavior of any of its officers in their official transactions;
      (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

       On October 29, 2001, Attorney Shlimovitz petitioned this court for the voluntary surrender of his law license. However, because of the pendency of this OLR proceeding, the petition was denied.


author: DIANE S. SYKES, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    In re the Commitment of Dennis H., State of Wisconsin, Petitioner-Respondent, v. Dennis H., Respondent-Appellant.
    Supreme Court

      No. 01-0374.

      Oral argument May 1, 2002. —
    Decided July 12, 2002.

    2002 WI 104
    (Also reported in 647 N.W.2d 851.)

      For the respondent-appellant there were briefs by Ellen Henak, assistant state public defender, and Thomas K. Zander, Milwaukee, and oral argument by Ellen Henak.

    For the petitioner-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
    An amicus curiae brief was filed by Theresa M. Hottenroth and Whyte Hirschboeck Dudek S.C., Madison, on behalf of the Treatment Advocacy Center, and there was oral argument by Mary Zdanowicz.

    An amicus curiae brief was filed by Mary Dianne Greenley, Madison, on behalf of the Wisconsin Coalition for Advocacy, Inc.

      An amicus curiae brief was filed by Robert Theine Pledl and Schott, Bublitz & Engel, S.C., Brookfield, on behalf of the American Civil Liberties Union of Wisconsin Foundation.
    An amicus curiae brief was filed by Michael J. Bachhuber, Milwaukee, on behalf of the Grassroots Empowerment Project, Inc.
    An amicus curiae brief was filed by Richard G. Niess and Coyne, Niess, Schultz, Becker & Bauer, S.C., Madison, and Kenneth J. Kress, Iowa City, Iowa, on behalf of Kenneth J. Kress.
    An amicus curiae brief was filed by Herbert S. Bratt, Milwaukee, and Mark L. Adams and Melanie E. Cohen, Madison, on behalf of the Wisconsin Psychiatric Association, Inc., and the State Medical Society of Wisconsin.
    An amicus curiae brief was filed by Mary Dianne Greenley, Madison, on behalf of the Wisconsin Coalition for Advocacy, Inc., and the Judge David L. Bazelon Center for Mental Health Law.
   DIANE S. SYKES, J.

¶ 1. This case is before the court on certification from the court of appeals, which we accepted to resolve a single issue of law: whether the fifth standard of dangerousness in the involuntary civil commitment statute, Wis. Stat. § 51.20(l)(a)2.e. (1999-2000), is constitutional. We hold that it is.

¶ 2. Dennis H. is the subject of this mental health commitment, and he has schizophrenia. His father, his psychiatrist, and his case manager filed a three-party petition in Milwaukee County Circuit Court seeking to commit him pursuant to Wis. Stat. § 51.20(l)(a) (1999-2000), because he was exhibiting behavior that had previously led to his hospitalization in critical condition for kidney failure.

¶ 3. Dennis H. moved to dismiss, arguing that the fifth standard of dangerousness, Wis. Stat. § 51.20(l)(a)2.e., is unconstitutional. The circuit court denied the motion, a jury found Dennis H. dangerous under the fifth standard, and he was committed. He appealed, and the court of appeals certified the case to this court.

¶ 4. Dennis H. contends that the fifth standard is facially unconstitutional because it violates the due process and equal protection guarantees of the federal and state constitutions and is also vague and over-broad. More specifically, he argues that the statute is constitutionally infirm because it lacks a requirement of imminent dangerousness to self or others, and because it allows commitment upon a finding of a substantial probability of something less than physical harm, to wit, mental or emotional harm.

¶ 5. A facial constitutional challenge to a statute is an uphill endeavor. The state has a well-established, legitimate interest under its parens patriae power in providing care to persons unable to care for themselves, and also has authority under its police power to protect the community from mentally ill persons determined to be dangerous. Heller v. Doe, 509 U.S. 312, 332 (1993) (citing Addington v. Texas, 441 U.S. 418, 426 (1979)). The general rule, of course, is that any legislative enactment carries a presumption of constitutionality. State v. Carpenter, 197 Wis. 2d 252, 263-64, 541 N.W.2d 105 (1995).

¶ 6. Furthermore, "[w]e deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing." Heller, 509 U.S. at 333 (discussing mental health commitments) (quoting Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 855-856 (1977)). "In such a context, restraint is appropriate on the part of courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution." Id. We conclude that the fifth standard is not unconstitutionally vague or overbroad, and does - not violate due process or equal protection.

I

¶ 7. On June 23, 2000, Dennis H.'s father, psychiatrist, and case manager filed a petition in Milwaukee County Circuit Court to have him involuntarily committed for treatment under Wis. Stat. § 51.20(l)(a). Dennis H. suffers from schizophrenia and, due to medication noncompliance, had previously been hospitalized in acute renal failure and electrolyte imbalance brought on by extreme and rapid weight loss and dehydration.

¶ 8. Dennis H. sought to have the petition dismissed, arguing that the fifth standard of dangerousness as grounds for involuntary commitment, Wis. Stat. § 51.20(l)(a)2.e., violates the federal and state constitutions. The circuit court, the Honorable Michael J. Dwyer, rejected Dennis H.'s constitutional challenge and denied the motion to dismiss.

¶ 9. Noting that the state has a legitimate interest under its police and parens patriae powers in protecting society and the mentally ill, the circuit court concluded that the fifth standard constituted a "new description of dangerousness" sufficient to justify commitment. The circuit court viewed the fifth standard's new definition as encompassing a requirement of present dangerousness, albeit "in a little different vocabulary" than the other four. Because the fifth standard did not dispense with dangerousness as a precondition of commitment, but merely defined it in a different way, the circuit court found it "constitutionally appropriate."

¶ 10. A probable cause hearing was held. Following the testimony of two doctors, the first four standards of dangerousness were determined to be inapplicable, and the case proceeded to trial on the fifth standard only.

¶ 11. A jury trial was held on July 24-25, 2000, before the Honorable Victor Manian. The jury was instructed on the statutory elements of the fifth standard, and returned a verdict finding Dennis H. dangerous. The circuit court ordered Dennis H. committed for a period of six months. Pursuant to stipulation, this was later extended for another six months. Dennis H. appealed the order of commitment, and the court of appeals certified the case to this court.

II

f 12. The constitutionality of a statute is a question of law which this court reviews de novo. State v. Janssen, 219 Wis. 2d 362, 370, 580 N.W.2d 260 (1998). The party challenging a statute must establish its unconstitutionality beyond a reasonable doubt. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989). "Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment's constitutionality, it must he resolved in favor of constitutionality." Carpenter, 197 Wis. 2d at 263-64 (citing McManus, 152 Wis. 2d at 129 (citations and quotation marks omitted in original)). A court does not evaluate the merits of the legislature's economic, social, or political policy choices, but is limited to considering whether the statute violates some specific constitutional provision. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 46-47, 205 N.W.2d 784 (1973).

¶ 13. We have previously noted that the United States Supreme Court has declined to prescribe "strict boundaries for legislative determinations of what degree of dangerousness is necessary for involuntary commitment," because "[s]ubstantive as well as procedural limitations on a state's traditional power to commit the dangerously mentally ill vary widely from jurisdiction to jurisdiction." State v. Post, 197 Wis. 2d 279, 312, 541 N.W.2d 115 (1995), cert. denied, 521 U.S. 1118 (1997) (footnote omitted) (citing Jackson v. Indiana, 406 U.S. 715, 736-37 (1972)). Because of "the uncertainty endemic to the field of psychiatry ... particular deference must be shown to legislative decisions in that arena." Id. (citing Jones v. United States, 463 U.S. 354, 364 n.13 (1983)). Accordingly, courts generally proceed with restraint in this complex, delicate, and policy-sensitive area, deferring to the procedural scheme the legislature has chosen. See Heller, 509 U.S. at 332; Smith, 431 U.S. at 855-856; Post, 197 Wis. 2d at 312.

r — i hH hH

¶ 14. We start with the text of the statute at issue. Section 51.20 of the Wisconsin Statutes governs involuntary civil commitments for mental health treatment and contains five different definitions or standards of dangerousness for purposes of involuntary commitment. The so-called "fifth standard," Wis. Stat. § 51.20(l)(a)2.e., was enacted in 1995, see 1995 Wis. Act 292, and provides that "an individual, other than an individual who is alleged to be drug dependent or developmentally disabled," is considered "dangerous" if:

[A]fter the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to him or her and because of mental illness, evidences either incapability of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives, or substantial incapability of applying an understanding of the advantages, disadvantages, and alternatives to his or her mental illness in order to make an informed choice as to whether to accept or refuse medication or treatment; and evidences a substantial probability, as demonstrated by both the individual's treatment history and his or her recent acts or omissions, that the individual needs care or treatment to prevent further disability or deterioration and a substantial probability that he or she will, if left untreated, lack services necessary for his or her health or safety and suffer severe mental, emotional or physical harm that will result in the loss of the individual's ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions. The probability of suffering severe mental, emotional or physical harm is not substantial under this subd.2.e. if reasonable provision for the individual's care or treatment is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services or if the individual is appropriate for protective placement under § 55.06. Food, shelter or other care that is provided to an individual who is substantially incapable of obtaining food, shelter or other care for himself or herself by any person other than a treatment facility does not constitute reasonable provision for the individual's care or treatment in the community under this subd.2.e. The individual's status as a minor does not automatically establish a substantial probability of suffering severe mental, emotional, or physical harm under this subd.2.e.

Wis. Stat. § 51.20(l)(a)2.e.

¶ 15. Dennis H. argues that the fifth standard: (1) is unconstitutionally vague and overbroad; (2) violates his right to equal protection of the law by allowing for commitment under circumstances different than those existing under any of the four other standards; and (3) violates his right to substantive due process by allowing commitment without requiring evidence of a risk of imminent physical harm to himself or others. We disagree, and uphold the statute against his vagueness, overbreadth, equal protection, and due process challenges.

Vagueness

¶ 16. The statute is long and complex. Neither attribute makes it unconstitutional, however, for neither is the proper measure of a statute's constitutionality. We have previously explained that:

The principles underlying the void for vagueness doctrine. .. stem from concepts of procedural due process. Due process requires that the law set forth fair notice of the conduct prohibited or required and proper standards for enforcement of the law and adjudication. Based upon these concepts of due process, a statute is void for vagueness if it fails to give notice to those wishing to obey the law that their conduct falls within the proscribed area, or if it fails to provide those who must enforce and apply the law objective standards with which to do so.

In re Commitment of Curiel, 227 Wis. 2d 389, 414-15, 597 N.W.2d 697 (1999) (quoting State v. Popanz, 112 Wis. 2d 166, 172-73, 332 N.W.2d 750 (1983)) (citations and internal quotation marks omitted).

¶ 17. Our task, then, is to determine whether the statute provides objectively discernible standards by which commitment decisions can be made. In other words, "we must determine whether the statute fails to be sufficiently definite to allow judges, juries and expert witnesses to apply (its) terms ... objectively to the question before them in order to determine whether to commit the defendant without having to create or apply their own standards." Curiel, 227 Wis. 2d at 415 (citing Popanz, 112 Wis. 2d at 173); see also State v. Courtney, 74 Wis. 2d 705, 711, 247 N.W.2d 714 (1976).

¶ 18. The statute identifies five elements, each óf which must be satisfied before a person may be civilly committed. It precisely, though perhaps clumsily, identifies those to whom it applies. That the statute attempted to do all of this in one paragraph, rather than through separate, discrete subparts, does not make it constitutionally infirm. We measure the statute for its constitutionality, not its technique of draftsmanship.

¶ 19. First, a person who is the subject of a commitment petition must be mentally ill. See Wis. Stat. § 51.20(l)(a)l. and § 51.20(l)(a)2.e. Whether a person is mentally ill is a medical judgment, see Humphrey v. Cady, 405 U.S. 504, 509 (1972), made by applying the definition of mental illness in Wis. Stat. § 51.01(13)(b), which is applicable to all involuntary commitments under Wis. Stat. § 51.20. A determination of mental illness requires a finding of "a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life." Wis. Stat. § 51.01(13)(b).

¶ 20. Dennis H. argues that the fifth standard's definition of dangerousness is essentially no more than a reiteration of the definition of mental illness, although in slightly different terms, and therefore allows involuntary commitment upon a finding of mental illness alone. This is not true. The fifth standard's definition of dangerousness requires proof of a substantial probability of something more than impairment; section 51.20(l)(a)2.e. requires proof of a substantial probability of a "loss of the individual's ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions." In this regard, the fifth standard spells out a heightened standard of impairment — beyond the threshold definition of mental illness — for purposes of the dangerousness determination. Accordingly a finding of mental illness alone does not equate to a finding of dangerousness under the fifth standard.

¶ 21. Second, the person who is the subject of the commitment petition must be incompetent to make medication or treatment decisions, or, more specifically must be unable, "because of mental illness," to make "an informed choice as to whether to accept or refuse medication or treatment." Wis. Stat. § 51.20(l)(a)2.e. This must be evidenced either by an "incapability of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives," or by a "substantial incapability of applying an understanding of the advantages, disadvantages, and alternatives to his or her mental illness." Id. This must occur "after the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to him or her." Id.

¶ 22. Third, the person must show a "substantial probability" that he or she "needs care or treatment to prevent further disability or deterioration." Id. This must be "demonstrated by both the individual's treatment history and his or her recent acts or omissions." Id.

¶ 23. Fourth, the person must evidence a "substantial probability that he or she will, if left untreated, lack services necessary for his or her health or safety." Id.

¶ 24. Fifth, the person must evidence "a substantial probability that he or she will, if left untreated,... suffer severe mental, emotional, or physical harm that will result in the loss of the individual's ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions." Id.

¶ 25. Only after each of these elements is proven may the person be considered "dangerous" under the fifth standard. The statute also contains an explicit limitation on its reach: "if reasonable provision for the individual's care or treatment is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services," then a substantial probability of suffering severe mental, emotional, or physical harm does not exist. Id. However, the simple provision of food and shelter by a non-treatment facility does not satisfy the requirement of "reasonable provision for the individual's care or treatment." Id. The statute also specifies that an "individual's status as a minor does not automatically establish a substantial probability of suffering severe mental, emotional, or physical harm...Id.

¶ 26. It is important to note that the fifth standard requires that these conditions be evident to a "substantial probability." Id. The "substantial probability" degree of proof provides a proper standard of adjudication. See Curiel, 227 Wis. 2d at 414-15. The statute "is not so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability." Curiel, 227 Wis. 2d at 415 (citing Peissig v. Wisconsin Gas Co., 155 Wis. 2d 686, 699, 456 N.W.2d 348 (1990)). Accordingly, we reject Dennis H.'s contention that the fifth standard is unconstitutionally vague.

Overbreadth

¶ 27. Invalidation of a statute on overbreadth grounds is "strong medicine" that is "employed by the Court sparingly and only as a last resort." Janssen, 219 Wis. 2d at 373 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). "A statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate." Id. (quoting Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 (1987)). "A statute must be narrowly enough drawn that its terms can be given a reasonably precise content and those persons it encompasses can be identified with reasonable accuracy." Post, 197 Wis. 2d at 303 (citing O'Connor v. Donaldson, 422 U.S. 563, 575 (1975)).

¶ 28. When the legislature "undertakes to act in areas fraught with medical and scientific uncertainties," however, "legislative options must be especially broad." Post, 197 Wis. 2d at 304 (quoting Jones, 463 U.S. at 370, and Marshall v. United States, 414 U.S. 417, 427 (1974)). A mental commitment provision is overly broad only if by its terms it could reasonably be applied to commit mentally ill persons who are not in any way dangerous to themselves or others. See id. The fifth standard's focus is on dangerousness to self— dangerousness of a particularly insidious nature because it is chronic and cyclical (measured by treatment history and recent acts or omissions), and brought on by mental illness that produces an incapacity to make medication or treatment decisions as well as a substantial probability of an incapacity to care for oneself. The fifth standard does not apply to mentally ill people who are not dangerous to themselves. Accordingly, the statute is not unconstitutionally overbroad.

Equal Protection

¶ 29. Dennis H. also argues that the fifth standard violates equal protection by allowing for commitment and involuntary medication under circumstances different than those existing under any of the other four standards. See Wis. Stat. § 51.20(l)(a)2.a.-e. and (13)(dm). The focus of his argument is on the fifth standard's use of the phrase "mental, emotional, or physical harm," see Wis. Stat. § 51.20(l)(a)2.e., in contrast to the requirement in each of the first four standards of some form of "physical" harm. See Wis. Stat. § 51.20(l)(a)2.a.-d. Specifically, Dennis H. contends that the statute impermissibly dispenses with a requirement of physical harm, allowing involuntary commitment and forcible medication upon a finding of mere mental or emotional harm.

¶ 30. Dennis H. reads the statute too narrowly. The fifth standard requires proof of a substantial probability that "if left untreated," the individual will "lack services necessary for his or her health or safety and suffer severe mental, emotional or physical harm that will result in the loss of the individual's ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions." Wis. Stat. § 51.20(l)(a)2.e. (emphasis added). The legislature has thus defined dangerousness in the fifth standard by reference to a threat to the individual's fundamental health or safety and a loss of the ability to function independently or control thoughts or actions. Mere emotional or mental harm is insufficient for commitment.

¶ 31. In any event, to the extent that the differences between the fifth standard and the first four result in a classification for purposes of equal protection analysis, it is not a constitutionally impermissible one. Whether a legislative distinction between otherwise similarly situated persons violates equal protection depends upon whether there is a reasonable basis to support it. State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 733, 416 N.W.2d 883 (1987); see also Post, 197 Wis. 2d at 319-20 (noting that the Supreme Court has not explicitly required strict or intermediate scrutiny of involuntary commitment statutes challenged on equal protection grounds). "Where the classification does not involve a suspect class, equal protection is denied only if the legislature has made an irrational or arbitrary classification." Jones, 141 Wis. 2d at 733.

¶ 32. "[T]he state retains broad discretion to create classifications so long as the classifications have a reasonable basis." McManus, 152 Wis. 2d at 131 (citing Graham v. Richardson, 403 U.S. 365, 371 (1971)). Under the rational basis test, a statutory classification is presumed to be proper. State v. Hart, 89 Wis. 2d 58, 65, 277 N.W.2d 843 (1979). It will be sustained if the reviewing court can identify any reasonable basis to support it. Matter of Care and Maintenance of K.C., 142 Wis. 2d 906, 916, 420 N.W.2d 37 (1988). Any doubt must be resolved in favor of the reasonableness of the classification and the constitutionality of the statute in which it is made. Racine Steel Castings v. Hardy, 144 Wis. 2d 553, 560, 426 N.W.2d 33 (1988). A "legislative enactment must be sustained unless it is 'patently arbitrary' and bears no rational relationship to a legitimate government interest." McManus, 152 Wis. 2d at 131 (citing Frontiero v. Richardson, 411 U.S. 677, 683 (1973)).

f 33. The fifth standard applies to mentally ill persons whose mental illness renders them incapable of making informed medication decisions and makes it substantially probable that, without treatment, disability or deterioration will result, bringing on a loss of ability to provide self-care or control thoughts or actions. It allows the state to intervene with care and treatment before the deterioration reaches an acute stage, thereby preventing the otherwise substantially probable and harmful loss of ability to function independently or loss of cognitive or volitional control. There is a rational basis for distinguishing between a mentally ill person who retains the capacity to make an informed decision about medication or treatment and one who lacks such capacity. The latter is helpless, by virtue of an inability to choose medication or treatment, to avoid the harm associated with the deteriorating condition.

¶ 34. Mentally ill persons who meet the fifth standard's definition are clearly dangerous to themselves because their incapacity to make informed medication or treatment decisions makes them more vulnerable to severely harmful deterioration than those who are competent to make such decisions. The state has a strong interest in providing care and treatment before that incapacity results in a loss of ability to function. We conclude that any distinctions between the fifth standard and the first four are rationally-based. The fifth standard does not violate equal protection.

Substantive Due Process

¶ 35. Finally, Dennis H. argues that the fifth standard violates substantive due process by allowing involuntary commitment without evidence of a risk of imminent physical dangerousness to self or others.

¶ 36. "The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves." Addington v. Texas, 441 U.S. 418, 426 (1979). The state also has "authority under its police power to protect the community" from any dangerous mentally ill persons. Heller, 509 U.S. at 332 (citing Addington, 441 U.S. at 426). The state's legitimate interest ceases to exist, however, if those sought to be confined "are not mentally ill or if they do not pose some danger to themselves or others." Addington, 441 U.S. at 426 (emphasis added).

¶ 37. "[E]ven if there is no foreseeable risk of self-injury or suicide, a person is literally 'dangerous to himself if for physical or other reasons he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends." O'Connor v. Donaldson, 422 U.S. 563, 574, n.9 (1975) (emphasis added). Substantive due process has not been held to require proof of imminent physical dangerousness to self or others as a necessary prerequisite to involuntary commitment.

¶ 38. It is well-established that the state "cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." Id. at 576; see also Foucha v. Louisiana, 504 U.S. 71, 78 (1992) (involuntary mental health commitment is improper absent a determination of current mental illness and dangerousness). This does not mean, however, that substantive due process requires the state to restrict the scope of its mental health commitment statutes to only those individuals who are imminently physically dangerous. There is no "single definition that must be used as the mental condition sufficient for involuntary mental commitments." Post, 197 Wis. 2d at 304. In this complicated and difficult area, the Supreme Court "has wisely left the job of creating statutory definitions to the legislators who draft state laws." Id.

¶ 39. The fifth standard permits commitment only when a mentally ill person needs care or treatment to prevent deterioration but is unable to make an informed choice to accept it. This must be "demonstrated by both the individual's treatment history" and by the person's "recent acts or omissions." Wis. Stat. § 51.20(l)(a)2.e. It must also be substantially probable that if left untreated, the person "will suffer severe mental, emotional or physical harm" resulting in the loss of the "ability to function independently in the community" or in the loss of "cognitive or volitional control." Id. Only then may the individual be found "dangerous" under the fifth standard.

¶ 40. The fifth standard thus fits easily within the O'Connor formulation: even absent a requirement of obvious physical harm such as self-injury or suicide, a person may still be "dangerous to himself' if "he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends." O'Connor, 422 U.S. at 574, n.9.

¶ 41. Moreover, by requiring dangerousness to be evidenced by a person's treatment history along with his or her recent acts or omissions, the fifth standard focuses on those who have been in treatment before and yet remain at risk of severe harm, i.e., those who are chronically mentally ill and drop out of therapy or discontinue medication, giving rise to a substantial probability of a deterioration in condition to the point of inability to function independently or control thoughts or actions. See Darold A. Treffert, The MacArthur Coercion Studies: A Wisconsin Perspective, 82 Marq. L. Rev. 759, 780 (1999). The statute represents the fruition of the efforts of the Wisconsin State Medical Society and the Alliance for the Mentally Ill, professional organizations which recognized a need for a law that could be applied to those victims of mental illness who fell through the cracks under the old statutory scheme. See id.

¶ 42. "As with all enactments, we presume good faith on the part of the legislature." Post, 197 Wis. 2d at 308 (citing State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 652, 60 N.W.2d 416 (1953)). By permitting intervention before a mentally ill person's condition becomes critical, the legislature has enabled the mental health treatment community to break the cycle associated with incapacity to choose medication or treatment, restore the person to a relatively even keel, prevent serious and potentially catastrophic harm, and ultimately reduce the amount of time spent in an institutional setting. This type of "prophylactic intervention" does not violate substantive due process.

¶ 43. A number of amicus curiae briefs have been filed by professional and advocacy organizations, both in support of and opposition to the fifth standard, and they cite academic research on both sides of the policy choice that the statute embodies. "The fact that studies reaching opposite conclusions can be cited on both sides of this issue does not preclude the legislature from acting, nor does it compel a finding of unconstitutionality." Post, 197 Wis. 2d at 311.

¶ 44. The Supreme Court has cautioned against judicial second-guessing of legislative judgments in the area of mental health commitments:

We do not agree with the suggestion that Congress' power to legislate in this area depends on the research conducted by the psychiatric community. We have recognized repeatedly the "uncertainty of diagnosis in this field and the tentativeness of professional judgment. The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment.... " The lesson we have drawn is not that government may not act in the face of this uncertainty, but rather that courts should pay particular deference to reasonable legislative judgments.

Id. (citing Jones, 463 U.S. at 364 n.13 (citations omitted in original)). We defer, therefore, to the legislature's resolution of the conflicting positions of mental health advocates and psychiatric professionals.

¶ 45. In summary, the fifth standard does not allow involuntary commitment upon a finding of mental illness alone, and contains an ascertainable standard of commitment, and is therefore not unconstitutionally vague or overbroad. Furthermore, the fifth standard does not create a class of persons who can be involuntarily committed upon a finding of mere mental or emotional harm, and therefore does not violate equal protection. Finally, the fifth standard does not violate substantive due process, because the constitution does not require proof of imminent physical harm prior to commitment for treatment. Accordingly, the fifth standard of dangerousness for involuntary civil commitment, Wis. Stat. § 51.20(l)(a)2.e., is constitutional.

By the Court. — The order of the Milwaukee County Circuit Court is affirmed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 46. (concurring). Both mental illness and dangerousness are necessary to satisfy the requirements of substantive due process for involuntary civil commitment in Wisconsin.

¶ 47. The so-called fifth standard was enacted to allow for the hospitalization and treatment of individuals with a history of mental health treatment who become incapable of making rational treatment decisions and refuse treatment. For such individuals, refusing timely treatment could lead to substantial mental deterioration. For family members and friends, a loved one's refusal of timely treatment can result in an agonizing and helpless vigil as that individual's mental, emotional, and physical condition deteriorates.

¶ 48. A court must balance the desires of mental health professionals, friends, and family members who believe that care and treatment are in the best interests of a person who is mentally ill, and the constitutional liberty interests of individuals to be free from unwanted and unnecessary restraints. In recent decades, this balance has been struck by requiring proof of mental illness and imminent dangerousness to self or others before permitting involuntary civil commitment.

¶ 49. The fifth standard comes perilously close to upsetting this balance. It passes constitutional muster for me only so long as courts require significant evidence of the statutory elements, and treatment is in fact provided. For the reasons set forth, I write separately.

¶ 50. I am authorized to state that Justices WILLIAM A. BABLITCH and ANN WALSH BRADLEY join this opinion.

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

       It was determined at the probable cause hearing that none of the first four definitions of dangerousness sufficient for commitment under Wis. Stat. § 51.20(l)(a)2.a.-d. applied.

       The Fourteenth Amendment to the United States Constitution states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
      Article I, Section I of the Wisconsin Constitution states: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed."
      "[T]he due process and equal protection clauses of the Wisconsin Constitution are the substantial equivalents of their respective clauses in the federal constitution." State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654 (1989).

       Dennis H. asserts that Judge Dwyer recast the statute to require evidence of "imminent physical dangerousness." The Honorable Victor Manian presided at trial, however, and instructed the jury precisely according to the text of the statute.

       "The individual is mentally ill. . . drug dependent or developmentally disabled and is a proper subject for treatment." Wis. Stat. § 51.20(l)(a)l.

       The fifth standard removes those "alleged to be drug dependent or developmentally disabled" from its scope. Wis. Stat. § 51.20(l)(a)2.e.

         The first four standards define dangerousness as follows:
      Evidences a substantial probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm. Wis. Stat. § 51.20(l)(a)2.a.
      Evidences a substantial probability of physical harm to other individuals as manifested by evidence of recent homicidal or other violent behavior, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm ...." Wis. Stat. § 51.20(l)(a)2.b.
      Evidences such impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury to himself or herself. Wis. Stat. § 51.20(l)(a)2.c.
      Evidences behavior manifested by recent acts or omissions that, due to mental illness, he or she is unable to satisfy basic needs for nourishment, medical care, shelter or safety without prompt and adequate treatment so that a substantial probability exists that death, serious physical injury, serious physical debilitation or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment for this mental illness. Wis. Stat. § 51.20(l)(a)2.d.

        Accord Milner v. Apfel, 148 F.3d 812, 815-16 (7th Cir. 1998). The Seventh Circuit noted that "the uniform view of the courts of appeals" is that "rational basis is the proper standard for deciding equal protection cases" involving the mentally ill. The court also noted that several Supreme Court cases imply or suggest the same. See id. (citing Heller v. Doe by Doe, 509 U.S. 312, 321 (1993) ("We have applied rational-basis review in previous cases involving the mentally retarded and the mentally ill."); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 466 (1985); Jones v. United States, 463 U.S. 354, 363 (1983); Jackson v. Indiana, 406 U.S. 715, 736-37 (1972); Baxstrom v. Herold, 383 U.S. 107, 111-15 (1966)).

        Addington also held that due process requires that the middle "clear and convincing" burden of proof apply to involuntary commitment proceedings. Addington v. Texas, 441 U.S. 418, 433 (1979); see also Foucha v. Louisiana, 504 U.S. 71, 75-76 (1992).

        O'Connor held that "[a] finding of 'mental illness' alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement." O'Connor v. Donaldson, 422 U.S. 563, 575 (1975) (emphasis added). As we have noted, the fifth standard does not allow involuntary civil commitment upon a finding of mental illness alone. Nor does it place the mentally ill person in simple custodial confinement. See, e.g., Wis. Stat. § 51.20(10)(cm) (requiring the formulation of a treatment plan prior to commitment); Wis. Stat. § 51.20(13)(g)2d.a. (limiting the time a person committed under the fifth standard can spend in inpatient treatment to 30 days).

       As we have noted, those committed under the fifth standard are initially limited to 30 days of inpatient treatment. See supra, note 10.

        See O'Connor v. Donaldson, 422 U.S. 563, 573-76 (1975) (state cannot confine nondangerous person without more); Lessard v. Schmidt, 379 F.Supp. 1376, 1381 (E.D. Wis. 1974), vacated and remanded on other grounds, 421 U.S. 957 (1975), reinstated 413 F.Supp. 1318 (E.D. Wis. 1976) (mandating dangerousness as a constitutional prerequisite to involuntary hospitalization).