author: ANDERSON, EJ.

text:
    Trida L. Cefalu, Plaintiff, v. Continental Western Insurance Company and Carl M. Wojnowski, Defendants-Third-Party Plaintiffs-Appellants, v. William F. Theys, Star Line Trucking Corporation and Continental Casualty Company, Third-Party Defendants-Respondents.
    Court of Appeals

      No. 2004AP2369.

      Submitted on briefs May 25, 2005.

      Decided July 6, 2005.

    2005 WI App 187
    (Also reported in 703 N.W.2d 743.)

      On behalf of the defendants-third-party plaintiffs-appellants, the cause was submitted on the briefs of Emile H. Banks, Jr. and Vicki L. Arrowood of Emile Banks & Associates, LLC, Milwaukee.
    On behalf of the third-party defendants-respondents, the cause was submitted on the brief of
      Kim M. Peterson of Eiche & Frakes, S.C., Milwaukee, and Geri A. Wilkinson oí Law Offices of Mark H. Miller, Brookfield.
    Before Anderson, EJ., Brown and Nettesheim, JJ.

       Petition to review denied 10-3-05.

   ANDERSON, EJ.

¶ 1. The sole issue in this case is whether William E Theys, who overturned his truck while driving on a highway in the city of Muskego, should be held liable for injuries Tricia L. Cefalu sustained as a result of her subsequent collision with Carl M. Wojnowski at a nearby intersection. Wojnowski and Continental Western Insurance Company submit that the circuit court erred in determining, as a matter of law, that Theys' rollover accident was not a cause-in-fact of Cefalu's injuries and that public policy considerations militate against imposing liability on Theys.

¶ 2. We conclude that Theys' rollover accident was not a substantial factor in bringing about, and therefore not a cause-in-fact of, Cefalu's injuries. We reach this conclusion because there does not exist an unbroken sequence of events connecting the two accidents. We further determine that public policy considerations preclude the imposition of liability on Theys: Cefalu's injuries are simply too remote from Theys' alleged negligence and allowance of recovery in this case would know no just or sensible stopping point. Accordingly, we affirm the circuit court's grant of summary judgment in favor of the third-party defendants.

Background

¶ 3. On July 12, 1999, Theys was operating a truck loaded with limestone near the controlled intersection of Highways 36 and 45 in the City of Muskego. As Theys was headed westbound on Highway 36, he attempted to negotiate a left turn onto southbound Highway 45 but his truck overturned and spilled its load of limestone. The truck and its contents were located south of the intersection with Highway 36.

¶ 4. The police and other emergency personnel arrived at the scene immediately after the truck overturned. The officers took precautions to control the intersection. The officers put up flares, closed the left-turn lane from westbound Highway 36 to southbound Highway 45, closed southbound Highway 45 near the accident scene to traffic, positioned emergency vehicles so as to prevent any additional collision with the overturned truck, placed a uniformed officer to direct traffic at the intersection of Highways 36 and 45, and called for additional assistance. By approximately 4:00 p.m., there were an estimated four uniformed officers and between ten and twenty fire department personnel present at the scene.

¶ 5. Wojnowski, the fire chief for the Tess Corners Volunteer Fire Department, was notified of the rollover accident. He proceeded in a fire truck southbound on Highway 45 to assist in cleaning up the spill at the scene. At around 4:00 p.m., approximately thirty minutes after the rollover accident, Wojnowski approached the intersection of Highways 36 and 45 with the truck's sirens and rotating lights activated. As he reached the intersection, he noticed a uniformed officer directing traffic at the intersection and deactivated his sirens, slowed his vehicle and waited for the officer to wave him into the intersection. The traffic light at that time for southbound Highway 45, the direction Wojnowski was headed, was red. The traffic light for eastbound and westbound Highway 36 was green.

¶ 6. The traffic control officer directed traffic on Highway 36 to stop. After the officer thought traffic had stopped, he motioned Wojnowski to proceed into the intersection. As Wojnowski entered the intersection, Cefalu, who was headed eastbound on Highway 36, entered the intersection as well. The line of vision between the two vehicles was apparently blocked by a garbage truck stopped in the left-hand eastbound lane of Highway 36. Although Cefalu had already traveled through the intersection once and was aware of the accident and the presence of emergency personnel and equipment, she did not know that the vehicles were still at the scene. In any event, as the two proceeded through the intersection, Wojnowski's vehicle struck the driver's side of Cefalu's vehicle.

¶ 7. In October 2001, Cefalu filed a complaint sounding in negligence against Wojnowski and Continental Western — the insurer of Tess Corners Volunteer Fire Department. Subsequently, Wojnowski and Continental Western (collectively, "Wojnowski") filed a third-party complaint against Theys, Star Line Trucking Corporation (Theys' employer) and Continental Casualty Company (Star Line Trucking's insurer). Wojnowski alleged that Theys' negligence in overturning his vehicle and spilling its load of limestone caused the accident leading to Cefalu's injuries. Thus, Wojnowski sought contribution or indemnification from Theys, Star Line Trucking and Continental Casualty (collectively, "Theys").

¶ 8. Theys filed a motion for summary judgment. He argued that his negligence was not a cause-in-fact of Cefalu's injuries because "the sequence of events following the Theys accident and leading to the Cefalu accident were not unbroken" and therefore his alleged negligence was not "actively operating" at the time of the accident. He further maintained that two public policy factors prevented the imposition of liability on him: (1) Cefalu's injuries were too remote from his alleged negligence and (2) allowance of recovery would "enter a field that has no sensible or just stopping point." See Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 737, 275 N.W.2d 660 (1979). The circuit court agreed with Theys and granted summary judgment in his favor.

Standard of Review

¶ 9. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M & I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995). Whether negligence was a cause-in-fact of an injury is a factual question for the jury if reasonable people could differ on the issue, and the question only becomes one of law for judicial decision if reasonable people could not disagree. Morgan, 87 Wis. 2d at 735-36. Whether public policy precludes the imposition of liability is a question of law solely for judicial determination. Fandrey v. American Family Mut. Ins. Co., 2004 WI 62, ¶ 6, 272 Wis. 2d 46, 680 N.W.2d 345. Before determining whether public policy considerations preclude liability, it is usually a better practice to submit the case to the jury. Gritzner v. Michael R., 2000 WI 68, ¶ 26, 235 Wis. 2d 781, 611 N.W.2d 906. However, when the facts are not complex and the relevant public policy questions have been fully presented, this court may determine whether public policy precludes liability before trial. Id.

Discussion

¶ 10. Wojnowski contends the circuit court erred in holding that, as a matter of law, Theys' rollover accident was not a substantial factor in producing, and therefore not a cause-in-fact of, Cefalu's injuries. Wojnowski submits that reasonable people could reach different conclusions as to whether there was an "unbroken sequence of events," see Fondell v. Lucky Stores, Inc., 85 Wis. 2d 220, 227, 270 N.W.2d 205 (1978), between Theys' rollover accident and the collision and therefore the matter should have been submitted to the jury. Wojnowski also claims the circuit court erred in holding that public policy considerations militated against imposing liability on Theys because the injury was too remote from his alleged negligence and allowance of recovery would enter a field that has no sensible or just stopping point.

¶ 11. The test of cause-in-fact is whether the negligence was a "substantial factor" in producing the injury. Fandrey, 272 Wis. 2d 46, ¶ 12 (citation omitted). "The phrase, 'substantial factor,' denotes that the conduct has such an effect in producing the injury as to lead a reasonable person to regard it as a cause, using that word in the popular sense. There may be several substantial factors in any given case." Toeller v. Mutual Serv. Cas. Ins. Co., 115 Wis. 2d 631, 637, 340 N.W.2d 923 (Ct. App. 1983) (citation omitted). To prove that a tortfeasor's negligence was a substantial factor in producing a plaintiffs injuries, it must be shown that there was an "unbroken sequence of events" where the negligence of the tortfeasor was actively operating at the time of the accident which produced the plaintiffs injury. Fondell, 85 Wis. 2d at 227.

¶ 12. After the determination of the cause-in-fact of an injury, a court still may deny recovery after addressing public policy considerations. Morden v. Continental AG, 2000 WI 51, ¶ 60, 235 Wis. 2d 325, 611 N.W.2d 659. The public policy considerations that a court applies to decide if it should preclude liability are: (1) the injury is too remote from the negligence, (2) the injury is too wholly out of proportion to the tortfeasor's culpability, (3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm, (4) allowing recovery would place too unreasonable a burden on the tortfeasor, (5) allowing recovery would be too likely to open the way for fraudulent claims, or (6) allowing recovery would enter a field that has no sensible or just stopping point. Mohr v. St. Paul Fire & Marine Ins. Co., 2004 WI App 5, ¶ 46, 269 Wis. 2d 302, 674 N.W.2d 576, review denied, 2004 WI 50, 271 Wis. 2d 109, 679 N.W.2d 544 (No. 02-1782). These considerations are addressed on a case-by-case basis.

¶ 13. Wojnowski favorably compares this case to the companion cases Johnson v. Heintz, 61 Wis. 2d 585, 213 N.W.2d 85 (1973) [hereinafter Johnson 7], and Johnson v. Heintz, 73 Wis. 2d 286, 243 N.W.2d 815 (1976) [hereinafter Johnson II], and to Voigt v. Riesterer, 187 Wis. 2d 459, 523 N.W.2d 133 (Ct. App. 1994), which are the leading authorities in the area of continuing negligence in multi-vehicle collisions. In Johnson I and Johnson II, the first collision occurred when a westbound vehicle was struck from the rear. Johnson II, 73 Wis. 2d at 289. This first car crossed the center-line of the highway and lodged into the embankment of a ditch. Id. The second car remained on the shoulder of the westbound lane. Id. A second collision occurred shortly thereafter when another westbound car was rear-ended. Id. A third collision occurred several minutes later when yet another westbound car, driven by Heintz, collided with a vehicle from the second collision. Id. at 289-90. A passenger in the third collision, Johnson, refused to leave the car due to her injuries. Id. at 290. A fourth collision occurred when an eastbound car struck a car from the second collision, pushing it into the Heintz automobile. Id. at 291. One of the issues was whether Heintz could be found negligent in both the third and the fourth collisions. Id. at 303-04; Johnson I, 61 Wis. 2d at 600-02.

¶ 14. In Voigt, Brockman's vehicle collided with Voight's vehicle in a head-on collision. Voigt, 187 Wis. 2d at 462. Almost immediately thereafter, Haase came upon the accident scene, stopped his car on the opposite side of the road and came over to assist. Id. Less than five minutes after this first collision, Riesterer's vehicle collided with Brockman's vehicle, causing a chain reaction collision resulting in damages to Voigt's and Haase's vehicles. Id. The issue was whether Brockman's initial negligence constituted continuing negligence into the second impact. See id. at 471.

¶ 15. As Wojnowski points out, in each of the multi-vehicle cases, the court concluded that the defendant's negligence in causing the initial impact at issue was still substantially operative at the time of the subsequent impact and therefore the defendant was causally negligent in the later impact. See Johnson I, 61 Wis. 2d at 601; Johnson II, 73 Wis. 2d at 304-05; Voigt, 187 Wis. 2d at 469-71. Thus, these cases teach us that the negligence of persons in an initial accident may expose them to liability for damages resulting from subsequent impacts. See Johnson I, 61 Wis. 2d at 600-02; Johnson II, 73 Wis. 2d at 302; Voigt, 187 Wis. 2d at 469-470. However, these cases further instruct that there may be situations where the subsequent impacts occur without the negligence of the original actors being a substantial factor or where the original actors' negligence may be excused by the intervention of later participants or other considerations. See Johnson I, 61 Wis. 2d at 600-01; Johnson II, 73 Wis. 2d at 302; Voigt, 187 Wis. 2d at 469. This case presents one such situation.

¶ 16. Our substantial factor analysis is best conducted by highlighting the factual distinctions between the circumstances surrounding the two accidents in this case and the circumstances surrounding the accidents in Johnson I, Johnson II and Voigt. First, in all three of the multi-vehicle collision cases, the subsequent accident occurred when another vehicle physically collided with the scene of the earlier accident. Here, there was a physical separation between the two accidents. The Cefalu-Wojnowski accident took place at the intersection of Highways 36 and 45. The overturned truck and its spilled load, while visible from the intersection, were not in the intersection. Second, in Johnson I, Johnson II and Voigt, the initial and subsequent collisions were slightly closer in time than the two accidents in this case. The Cefalu-Wojnowski accident took place nearly thirty minutes after Theys' rollover accident.

¶ 17. Third, in the three previous cases, the subsequent accident occurred before the accident scene had been secured by emergency personnel. Here, during the thirty minutes between accidents, emergency personnel from various departments arrived at the accident scene. The officers secured the scene with flares and squad cars, closed Highway 45 to traffic and placed a police officer to direct traffic at the intersection of Highways 36 and 45. These steps taken to secure the area substantially decreased the likelihood of another collision with the overturned truck. Thus, despite Wojnowski's protestations that emergency personnel and their equipment created commotion and chaos, their presence actually made the scene safer than it was immediately following the accident.

¶ 18. Finally, in the other chain reaction accident cases, the drivers involved in the subsequent accidents were not aware of the other accident until moments before impact. Here, Cefalu had already traveled through the intersection of Highways 36 and 45. She was aware that an accident had taken place and emergency personnel were previously at the scene, but apparently did not slow down sufficiently or see the officer directing traffic. Wojnowski observed the traffic control officer, slowed down, deactivated his sirens and proceeded into the intersection only after being directed to do so by the officer.

¶ 19. These factors that are present in this case, but which were not present in the other multi-vehicle cases, clearly break the sequence of events connecting Theys' rollover accident to the Cefalu-Wojnowski collision. Thus, unlike the drivers in Johnson I, Johnson II and Voigt, Theys' negligence was not actively operating by the time of the Cefalu-Wojnowski collision and was not a substantial factor in producing the damages Cefalu sustained as a result of the collision. This is the only reasonable conclusion that can be drawn from the facts presented. Accordingly, we conclude the circuit court properly ruled, as a matter of law, that Theys' rollover accident was not a cause-in-fact of the Cefalu-Wojnowski collision and Cefalu's resulting injuries.

¶ 20. Even were Theys' negligence a cause-in-fact of the Cefalu-Wojnowski accident, we would still refuse to impose liability on Theys on grounds of public policy because Cefalu's injuries were too remote from Theys' alleged negligence and allowance of recovery would enter into a field that has no sensible or just stopping point. The public policy factor, "whether the injury is too remote from the negligence," is a restatement of the old chain of causation test. Kendall W. Harrison, Wisconsin's Approach to Proximate Cause, 73 Wisconsin Lawyer 20, 55 (Feb. 2000); see also Fandrey, 272 Wis. 2d 46, ¶ 15 n.12 (citing the Harrison article). It is not much different than the substantial factor test used to determine cause-in-fact. Harrison, supra, at 55. Thus, there will be few cases in which it makes sense to say that a defendant's negligence has been a substantial factor in the plaintiffs injury but is too removed from that injury to allow recovery. Id.

¶ 21. The remoteness factor revives the intervening or superseding cause doctrine, which had passed away with the adoption of the substantial factor test of cause-in-fact. Id.; see also Fandrey, 272 Wis. 2d 46, ¶ 15 n.12. A finding that a defendant's negligence is too remote from the injury is essentially just a determination that a superseding cause should relieve the defendant of liability. Harrison, supra, at 55; see also Fan-drey, 272 Wis. 2d 46, ¶ 15 n.12. An intervening act is not superseding if it is a normal consequence of the situation and is not done in a manner that is extraordinarily negligent. Voigt, 187 Wis. 2d at 470.

¶ 22. Wojnowski argues that it was foreseeable that "Theys' act of overturning and spilling his truck would have necessitated the assistance of emergency vehicles and personnel, which congested the intersection .... When traffic is being directed in a traffic-light controlled intersection filled with this type of commotion, it is reasonably foreseeable that a collision could occur." While it may have been foreseeable that Theys' act of overturning his truck and spilling his load of limestone would have necessitated the assistance of emergency vehicles and personnel, we cannot agree that it was a normal consequence of the intervention of emergency personnel for other drivers to then become involved in an accident at a nearby intersection.

¶ 23. As we have explained, the actions of the police and other emergency personnel made the accident scene safer and more secure: a police officer was directing traffic at the nearby intersection and squad cars and flares prevented traffic from entering Highway-45 south where the truck and its load were located. These efforts minimized any hazard that may have existed as a result of Theys' rollover accident. Indeed, the traffic control officer testified that nothing further could have been done to control the intersection. Thus, it was not a normal consequence of the emergency response for (1) another driver who was aware of the accident and the presence of emergency personnel to allegedly fail to slow down sufficiently as she approached the controlled intersection and to fail to yield to both the traffic control officer and the emergency vehicle, which had its lights activated; (2) the driver of the emergency vehicle that was proceeding into that intersection to fail to yield to another vehicle; and (3) a police officer directing traffic to motion an emergency vehicle into the intersection without making certain the intersection was clear. The emergency response to the situation and the conduct relating to that response therefore acted as superseding causes breaking the chain of causation from Theys1 rollover accident to the Cefalu-Wojnowski collision.

¶ 24. Furthermore, as the list of public policy factors reflects, "we trace the consequences of one's negligent acts, not indefinitely, but to a certain point." See Conroy v. Marquette Univ., 220 Wis. 2d 81, 90, 582 N.W.2d 126 (Ct. App. 1998) (citation omitted). We have reached that point here. Emergency personnel are called to most accident scenes. If we accept Wojnowski's position, then every tortfeasor who causes an initial accident is liable for damages resulting from a second accident even after emergency personnel respond and secure the area. This becomes apparent when we consider the hypotheticals Wojnowski and the insurers set forth in their briefs: Would a "rubbernecker" who collides with a vehicle in front of him or her while viewing the original accident have a claim against the tortfeasor who caused the original accident? Would a pedestrian who crosses the street on a "don't walk" sign because he or she is watching emergency personnel and is hit by a car have a claim against the tortfeasor who caused the original accident? As these hypotheticals demonstrate, if liability attaches in this case, we would have no clear or obvious guideposts for the cessation of liability. We would inappropriately enter a field that has no just or sensible stopping point.

Conclusion

¶ 25. In sum, Theys' rollover accident was not a substantial factor in producing, and therefore not a cause-in-fact of, Cefalu's injuries. Furthermore, public policy considerations preclude the imposition of liability on Theys: Cefalu's injuries were too remote from Theys' alleged negligence and allowance of recovery would enter a field that knows no just or sensible stopping point.

By the Court. — Judgment affirmed.

       The complaint also named the police officer directing traffic at the intersection, the police department's insurer, and the State of Wisconsin, Department of Health and Social Services. These parties, however, were later dismissed.

       Wojnowski also points us to Morgan v. Pennsylvania General Insurance Co., 87 Wis. 2d 723, 275 N.W.2d 660 (1979), and Toeller v. Mutual Service Casualty Insurance Co., 115 Wis. 2d 631, 340 N.W.2d 923 (Ct. App. 1983). In both cases, the courts refused to hold, as a matter of law, that a tortfeasor's conduct was not a substantial factor in producing the plaintiffs injuries. See Morgan, 87 Wis. 2d at 736; Toeller, 115 Wis. 2d at 637. These cases, however, are readily distinguished from the matter at hand. First, unlike this case, neither of the cases are successive car accident cases. As a result, Wojnowski's conclu-sory factual comparisons are strained at best. Further, both Morgan and Toeller generally stand for the legal proposition that where reasonable people could come to different conclusions in answering the cause-in-fact inquiry, the issue must be submitted to the jury. See Morgan, 87 Wis. 2d at 735-36; Toeller, 15 Wis. 2d at 636-37. We do not quarrel with this principle; however, as explained above, it simply does not apply to this case.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. Kevin D. James, Defendant-Respondent.

    Court of Appeals

      No. 2004AP2391-CR.

      Submitted on briefs May 16, 2005.

      Decided July 6, 2005.

    2005 WI App 188
    (Also reported in 703 N.W.2d 727.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Terry W. Rose of Rose & Rose of Kenosha.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 10-3-05.

   BROWN, J.

¶ 1. This case arose when the State, pursuant to Wis. Stat. § 908.08 (2003-04), sought to introduce the videotaped statements of two child witnesses in a sexual assault trial in lieu of full-blown live direct examination and to subsequently make the children available for questioning at the defendant's request. The trial court sustained the defendant's objection to this mode of testimonial presentation, observing that in its past experience, child witnesses sometimes refused to submit to cross-examination, thereby necessitating a mistrial in order to avert a violation of the defendant's Sixth Amendment right to confront adverse witnesses, now called a Crawford violation. Invoking Wis. Stat. §§ 904.03, 906.11 and 908.08(3), the court concluded that "the efficient operation of the court" and protecting the defendant's "legitimate expectation" of a single trial demanded that it preempt that possibility by requiring any live testimony to occur first. Although we understand and respect the trial court's concerns with applying fair and efficient procedures, we conclude that what is really at issue is the separation of legislative and judicial powers in the realm of admissibility and presentation of evidence. We hold that § 908.08 represents a proper exercise of legislative power and that the statute is not trumped by §§ 904.03 and 906.11. Thus, the trial court may not dictate alternative procedures based on the mere specter of a possible Crawford violation in the future.

¶ 2. From December 2001 to August 2002, Christina Q. and Natasha H. lived with their mother and grandmother in the grandmother's mobile home in the village of Pleasant Prairie in Kenosha county. At that time, Kevin D. James, the grandmother's boyfriend, also lived with them. Nearly two years later, Christina informed their mother that while they had lived at the mobile home, James had touched her sexually. The Child Advocacy Center arranged an interview with Christina shortly after this revelation. The interview took place on April 13, 2004. The CAC interviewed Natasha the same week. Natasha disclosed at her interview that James had made improper advances to her as well. The CAC videotaped both interviews. At the time of the interviews, Christina was ten years old, and Natasha was eight.

¶ 3. The State charged James with one count of sexual contact with a child under the age of thirteen, in violation of Wis. Stat. § 948.02(1) and one count of attempted sexual contact with a child under the age of thirteen, contrary to Wis. Stat. §§ 948.02(1) and 939.32. Prior to trial, the State gave notice of its intent to introduce the videotapes at trial, pursuant to Wis. Stat. § 908.08. It would play the videotapes, perhaps conduct an abbreviated direct examination, and then produce the children for cross-examination at James' request. James moved to exclude this evidence on the basis that introducing it would violate his constitutional rights as defined in Crawford v. Washington, 541 U.S. 36 (2004).

¶ 4. The trial court held a motion hearing on July 2, which it continued on July 12. The court ultimately ruled the State could not present the videotapes according to the statutory process; any live testimony on direct or cross-examination would have to come first. The trial court acknowledged that Wis. Stat. § 908.08(5) required presentation of videotapes prior to all in-court testimony. It also took as a given that no Crawford violation would occur so long as the girls submitted to cross-examination after the State introduced the videotapes. However, the court observed that the statutorily prescribed evidentiary sequence made it impossible for the court to avert the potential of a Crawford violation in the event that either child should later "clam up" on the witness stand. Moreover, the trial court stated that in such a case, "only a mistrial would ordinarily suffice to afford the protections guaranteed by the Confrontation Clause," the risk of which the court deemed "grossly unfair to impose... on the defendant." The trial court further stated:

If... one [of] the children when called to the witness stand should refuse to say anything — which has happened more than once with child witnesses— that child is not subject to cross-examination in truth and in fact, and the only — the only option left then to the Court — the only options would be to strike the tape, which has already been played, which is not an efficient or fair way to deal with the problem, or to declare a mistrial because it's an uncross-examined ... testimonial statement at that point. So there has to be some curative action taken, and neither of them is a desired one. We don't have enough time to be trying cases in here that are going to end up in mistrial.

¶ 5. The trial court invoked three statutes in support of its decision to depart from the Wis. Stat. § 908.08 procedures. First, it pointed out that § 908.08(3)(e) imposed a prerequisite to the court's admission of videotaped statements: it charged the court to determine that the statements, if admitted, would not "deprive any party of a fair opportunity to meet the allegations made in the statements." The court concluded that it could not make such a determination prior to live testimony because it would not know whether a Crawford violation would occur until meaningful cross-examination had taken place.

¶ 6. It also invoked Wis. Stat. §§ 904.03 and 906.11, which allow trial judges to control the receipt of evidence. In its initial oral pronouncement, the court expressed some doubt about whether these statutes allowed it to override the statutory procedures.

I have some personal reservations about the authority of the legislature to prescribe the method in which evidence is to be taken in the courts in this particular fashion. I don't question that they do have authority in this area, but... I don't understand how the collision between Section 904.03 and this statute [Wis. Stat. § 908.08] are to be resolved, which gives the trial judge ultimate authority to exclude evidence when it's redundant and when the jury has a situation where they've got the preferred method of testimony, which is in-court testimony by the witness, and then ... a less desired form, which would be hearsay except for the statute. I guess I don't know how that collision is to be resolved.
The statute ... appears to be mandatory in nature, but I sure wish I knew the answer as to whether or not the Court has remaining authority left under 904.03 to supervise the reception of evidence and whether there's a constitutional issue there ....

¶ 7. The trial court resolved those doubts in favor of the courts, however, in its written decision. It first cited what it saw as the purpose of the statute: "I must admit that I can make sense of the statutory requirement for prior showing of the videotape only by assuming that it was deliberately designed to [ejnsure that in the event that the witness failed to deliver on the stand, the horse would already be out of the barn." It stated:

The bottom line is that the efficient operation of the court in avoiding needless mistrials, and the defendant's legitimate expectation of a trial free of the purposeless risk of mistrial, demand that the court be, at a minimum, at least reasonably certain that the declarant has been or will actually be subject to cross-examination before showing the videotape to the jury. This cannot be accomplished under the mandatory protocol demanded by the legislature.
If there were some legitimate legal purpose to the order prescribed in the law, it would be fine. But lacking any, it is a dangerous hindrance to the efficient and fair operation of the court, and is overridden by the provisions of §§ 904.03 and 906.11(1), Stats., and the requirements of the Confrontation Clause.

¶ 8. The State argues that the trial court exceeded its discretion when it refused to admit the videotapes pursuant to the process prescribed by Wxs. Stat. § 908.08. The State correctly identifies our standard of review. Trial courts have broad discretion to admit or exclude evidence and to control the order and presentation of evidence at trial; we will upset their decisions only where they have erroneously exercised that discretion. State v. Smith, 2002 WI App 118, ¶¶ 7, 14, 15, 254 Wis. 2d 654, 648 N.W.2d 15; Wis. Stat. §§ 904.03 and 906.11. The trial court acts erroneously when its discretionary ruling contravenes nondiscretionary statutes or is based on an incorrect interpretation of the law. See Smith, 254 Wis. 2d 654, ¶ 15; State v. Sveum, 220 Wis. 2d 396, 405, 584 N.W.2d 137 (Ct. App. 1998). Whether the trial court properly interpreted the law presents a question of law that we review independently. See Cook v. Cook, 208 Wis. 2d 166, 172, 560 N.W.2d 246 (1997). In particular, we review de novo the constitutionality of a statute. State v. Horn, 226 Wis. 2d 637, 642, 594 N.W.2d 772 (1999).

¶ 9. We begin with the language of Wis. Stat. § 908.08. As the trial court acknowledged, § 908.08(5) is couched in mandatory terms and unambiguously requires the videotape to precede direct and cross-examination.

If the court... admits a videotape statement.. . the party who has offered the statement into evidence may nonetheless call the child to testify immediately after the videotape statement is shown to the trier of fact.... [I]f that party does not call the child, the court... upon request by any other party, shall order that the child be produced immediately following the showing of the videotape statement to the trier of fact for cross-examination.

Sec. 908.08(5)(a) (emphasis added).

¶ 10. The trial court further acknowledged that following the mandatory protocol would not per se violate James' confrontation rights. In that respect, we agree with the court's analysis. In Crawford, the United States Supreme Court unequivocally reaffirmed its holding in California v. Green, 399 U.S. 149 (1970):

[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements .... The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

Crawford, 541 U.S. at 59 n.9 (citations omitted). The Green Court recognized three purposes of the Confrontation Clause: (1) assuring that a witness will give statements under oath and penalty of perjury, (2) affording the defendant an opportunity to cross-examine; and (3) allowing the jury to observe the witness' demeanor. Green, 399 U.S. at 158. "It is, of course, true that the out-of-court statement may have been made under circumstances subject to none of these protections. But if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections." Id. "[T]he inability to cross-examine the witness at the time he [or she] made his [or her] prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial." Id. at 159.

¶ 11. This language describes exactly the situation before us. The State has promised to produce the children for cross-examination upon James' request. As long as both children testify, the videotape-direct testimony-cross-examination sequence conforms both to Wis. Stat. § 908.08(5)(a) and Crawford. Cf. also State v. Tarantino, 157 Wis. 2d 199, 458 N.W.2d 582 (Ct. App. 1990) (a pre-Crawford case upholding § 908.08 against a Confrontation Clause challenge).

¶ 12. Despite the trial court's recognition that the statutory order of presentation would not by itself violate Crawford, it deviated from the nondiscretionary statutory procedures based on Wis. Stat. §§ 908.08(3), 904.03, and 906.11 in order to avert possible Crawford violations in the event the girls would "clam up" and refuse to cooperate with cross-examination. These three statutes read, in pertinent part, as follows:

(3) The court or hearing examiner shall admit the videotape statement upon finding all of the following:
(e) That admission of the statement will not unfairly surprise any party or deprive any party of a fair opportunity to meet allegations made in the statement.

Sec. 908.08(3)(e).

Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Sec. 904.03.

Mode and order of interrogation and presentation. (1) Control by judge. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to do all of the following:
(a) Make the interrogation and presentation effective for the ascertainment of the truth.
(b) Avoid needless consumption of time.
(c) Protect witnesses from harassment or undue embarrassment.

Sec. 906.11(1).

¶ 13. The trial court read Wis. Stat. § 908.08(3)(e) as imposing a duty to make the Crawford determination prior to admitting the girls' statements, supposing that unless it could be "reasonably certain" that meaningful cross-examination would occur, it could not ensure that the evidence would not "deprive any party of a fair opportunity to meet allegations made in the statement." See § 908.08(3)(e). Given its perception of a conflict between this duty and the procedures prescribed in § 908.08(5)(a), the court invoked its usual authority pursuant to Wis. Stat. §§ 904.03 and 906.11 to control the admission, mode, and presentation of evidence as a means of carrying out that duty. It sought to avoid the potential Crawford problem — and the ensuing waste of judicial resources and unfairness to the defendant resulting from a mistrial — by excluding what it considered an inferior form of evidence until the preferred mode of presentation, live testimony, had taken place.

¶ 14. We appreciate the trial court's concern with administering justice in a fair and efficient manner and its desire to do so proactively without waiting until it is too late to avert prejudice. However, it is apparent to us that underlying the court's decision was the premise that this statute had no legitimate purpose and was not a proper exercise of authority. At the motion hearing, the court expressed some "personal reservations about the authority of the legislature to prescribe the method in which evidence is to be taken in the courts in this particular fashion" and pondered "whether there's a constitutional issue." Moreover, it characterized Wis. Stat. § 908.08(5)(a) as "a dangerous hindrance to the efficient and fair operation of the court." We conclude that the court's rationale was motivated by the belief that the legislature had improperly usurped the court's authority, in violation of the constitutional separation of powers doctrine.

¶ 15. Accordingly, we turn to whether Wis. Stat. § 908.08 violates the separation of powers doctrine by dictating the admissibility and order in which the court receives the videotape evidence and in-court testimony. First we ascertain whether the subject matter of the challenged statute falls within the zone of power granted to the legislative branch. Horn, 226 Wis. 2d at 644. Then we ask whether the subject matter falls within powers constitutionally granted to the judiciary. Id. If we answer both inquiries in the affirmative, then the statute does not fall within the "exclusive core constitutional powers" of the judiciary. Id. at 643, 645. Rather, it lies within the realm of shared powers, those " 'great borderlands of power'... not exclusive to any one branch." Id. at 643 (citation omitted). The legislature may constitutionally act within these vast regions of shared power as long as it does not unduly burden or substantially interfere with the exercise of judicial power. Id. at 645.

¶ 16. We conclude that the legislature had power over the subject matter of Wis. Stat. § 908.08. Legislative power includes the authority to adopt laws for the public welfare. See State v. Mitchell, 144 Wis. 2d 596, 618, 424 N.W.2d 698 (1988). In doing so, the legislature may provide reasonable rules limiting the admission of evidence. See Smith v. Rural Mut. Ins. Co., 20 Wis. 2d 592, 600, 123 N.W.2d 496 (1963). Social policy objectives involving the protection of children and crime victims from undue emotional trauma qualify as legitimate purposes for legislation that affects evidentiary rules. In Mitchell, our supreme court upheld against a separation of powers challenge a rape shield statute that barred the admission of the complaining witness' sexual history. It held that the statute had the proper purpose of facilitating the prosecution of sexual assaults by attempting to overcome victims' reluctance to come forward and report those crimes. Mitchell, 144 Wis. 2d at 618.

¶ 17. Similarly, in disposing of a defendant's Confrontation Clause argument in Tarantino, we remarked that the policy behind Wis. Stat. § 908.08 "rationally relates to a legitimate end of government." Tarantino, 157 Wis. 2d at 215. We recognized in that case that the legislature enacted the statute for the purpose of minimizing the mental and emotional strain that child witnesses in criminal proceedings experience as a result of having to testify. Id. at 214-15 (quoting 1985 Wis. Act 262, § 1); cf. also Rural Mut. Ins. Co., 20 Wis. 2d at 599-600 (citing the "strong social policy to protect the child" as justification for a statute that prohibited courts from admitting evidence of juvenile proceedings in subsequent court proceedings).

¶ 18. We reaffirm our understanding, as stated in Tarantino, of the legislative intent behind Wis. Stat. § 908.08 and categorically reject the trial court's suggestion that the legislature's objective was to "[e]nsure that in the event that the witness failed to deliver on the stand, the horse would already be out of the barn." Obviously, if the court admits a child's videotaped statement first, the sheer amount of time the child must spend on the witness stand is lessened, and the allegations are already before the fact finder. This diminished exposure may eliminate a great deal of emotional strain on the child. Thus, the order of evidence prescribed in the statute furthers the protective purpose of the statute and therefore legitimately qualifies as an exercise of legislative power to regulate for the welfare of the public.

¶ 19. As to the second inquiry, no one questions that the judiciary may legitimately rule on the admissibility of evidence at trial and control the order and presentation of evidence. See Mitchell, 144 Wis. 2d at 618; Smith, 254 Wis. 2d 654, ¶¶ 7, 14, 15; Wis. Stat. §§ 904.03 and 906.11. Courts have inherent authority over their internal operations and to ensure the fair and efficient administration of justice. City of Sun Prairie v. Davis, 226 Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999). Admissibility, presentation, and order of evidence fall within that realm. The substance of Wis. Stat. § 908.08 therefore falls within the vast region of shared power between the judiciary and the legislature.

¶ 20. We hold that Wis. Stat. § 908.08 does not impermissibly interfere with the functioning of the judiciary and constitutes an appropriate exercise of shared judicial and legislative power. First, the essential function of the courts involves deciding controversies on their merits. Mitchell, 144 Wis. 2d at 618. Although the statute requires the court to admit the videotapes once the court has satisfied itself that certain prerequisites have been met and deprives the court of the right to control the order in which this evidence is to be taken, it in no way fetters the fact finder's consideration of the evidence presented. The statute does not determine the result of any case before the court and therefore leaves the judiciary's authority fully intact with respect to its most important function.

¶ 21. Moreover, in Mitchell and Rural Mutual Insurance Co., the laws at issue categorically excluded relevant evidence. We do not see how a law directing the court to admit videotape evidence upon certain conditions, see Wis. Stat. § 908.08(3), is necessarily more intrusive than a nondiscretionary exclusion of evidence. Moreover, if the legislature may remove the determination of admissibility from the courts' discretion without unduly trespassing upon judicial territory, we fail to see how a lesser regulation over the order and presentation of admitted evidence would constitute such an intrusion. We conclude the legislature has not unduly infringed upon the authority of the judiciary.

¶ 22. Finally, we observe that the mere hypothetical possibility that one or both children will "clam up" on the stand does not operate to void an otherwise constitutional exercise of legislative power. Speculation cannot overcome the presumption in favor of a statute's constitutional validity. See Horn, 226 Wis. 2d at 643 (burden on challenging party to show statute is unconstitutional beyond a reasonable doubt). The State has promised to produce the children for cross-examination upon James' request. Nothing in the record demonstrates that either girl is disinclined to testify or that the State has in bad faith made an empty promise. The notion that James cannot expect a full and exacting cross-examination lacks any factual basis.

¶ 23. Without the assumption that the legislature exceeded its constitutional authority, we can discern no basis for the trial court's invocation of Wis. Stat. §§ 908.08(3), 904.03, and 906.11. The State correctly observes that a specific statute controls when it conflicts with a more general statute. See Smith, 254 Wis. 2d 654, ¶ 15. Thus, § 908.08, which deals specifically with the admissibility and presentation of videotaped statements by child witnesses, controls over §§ 904.03 and 906.11, more general statutes regarding the court's authority to control the admission, order, and presentation of evidence.

¶ 24. Moreover, we discern no conflict between paragraphs (3)(e) and (5)(a) of Wis. Stat. § 908.08. When interpreting provisions within the same statute, we favor constructions that harmonize them and that do not lead to absurd results. See Wisconsin Citizens Concerned for Cranes and Doves v. DNR, 2004 WI 40, ¶ 6, 270 Wis. 2d 318, 677 N.W.2d 612 ("The language of a statute is read in the context in which it appears in relation to the entire statute so as to avoid an absurd result."); cf. R.W.S. v. State, 162 Wis. 2d 862, 871, 471 N.W.2d 16 (1991) (courts to read multiple statutes in same chapter in pari materia and attempt to harmonize them). The trial court's interpretation of § 908.08(3)(e) requires a trial court to either gaze into the future to discern whether a Crawford violation may take place or, where this is not possible, to deviate from the prescribed, nondiscretionary sequence of evidence in § 908.08(5)(a). This interpretation is unreasonable. We conclude that § 908.08(3)(e) merely asks the trial court to discern whether, given what it knows at the time it assesses admissibility, allowing a videotaped statement into evidence would "deprive any party of a fair opportunity to meet allegations made in the statement."

¶ 25. The trial court was understandably concerned with its duty to ensure the disposition of cases in a just and expeditious manner. However, the social policy of protecting children from unnecessary trauma brings Wis. Stat. § 908.08 within the realm of public welfare legislation, which falls squarely within the legislature's law-making powers. While the statute does place some limitations on a trial court's authority to administer its proceedings, the statute does not in any way determine the outcome of any case. Rather, how to weigh the evidence presented remains up to the fact finder. Moreover, the record does not demonstrate that following the statute will burden the court with a mistrial. Thus, the law does not impermissibly invade judicial territory. Having found no constitutional infirmity in this statute, the trial court exceeded its discretion in refusing to obey it. We reverse and remand with directions to admit the videotape evidence pursuant to the statutorily prescribed procedures.

By the Court. — Order reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

        See Crawford v. Washington, 541 U.S. 36 (2004) (examining the admissibility of out-of-court testimonial statements under the Confrontation Clause of the Sixth Amendment and concluding that admissibility depended on a defendant's opportunity to cross-examine the declarant).

       We note that James did not address how the order of the evidence prescribed in Wis. Stat. § 908.08(5)(a) might affect his confrontation rights. Rather, he opines that Crawford forbids presentation of the videotaped statements at any point during the trial. He believes that Crawford and California v. Green, 399 U.S. 149 (1970), prohibit the introduction of any testimonial statement that the defendant did not hear and have the opportunity to cross-examine at the moment the accuser made the accusation. We disagree with this reading. The language quoted above clearly demonstrates that these cases require no such thing. Moreover, we consider the following language in
        Crawford. "[T]he Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S. at 53-54 (emphasis added). Put another way, the "right... to be confronted with the witnesses against [the defendant]... is most naturally read as a reference to the right of confrontation at common law," which "conditioned admissibility of an absent witness's examination on unavailability and a prior opportunity to cross-examine." Id. at 54 (citation omitted). This language demonstrates that the right of confrontation simply means the right to confront in the sense that a defendant must at some point be allowed to face his or her accuser and force that person to answer for the accusation. It does not require that in order for the courts to admit an out-of-court accusation, the accuser must have confronted the accused at the time he or she made the accusation.

       Moreover, children can potentially "clam up" any time they are asked to submit to cross-examination. We see no reason why this risk is necessarily greater when the State produces testimony in the form of videotapes than when it does so by standard direct examination. Despite the theoretical possibility that a child witness might refuse to testify, courts do not require cross-examination to precede direct examination to avert potential mistrials, even in the wake of Crawford.


author: PER CURIUM.

text:
    In the Matter of Disciplinary Proceedings Against Clay F. Teasdale, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Clay F. Teasdale, Respondent.
    Supreme Court

      No. 2005AP203-D.

      Decided September 13, 2005.

    2005 WI 137
    (Also reported in 703 N.W.2d 372.)
   PER CURIUM.

¶ 1. We review a referee's recommendation that the license of Clay F. Teasdale to practice law in Wisconsin should be revoked as discipline for his professional misconduct. We agree that the egregious nature of Attorney Teasdale's professional misconduct warrants revocation. This is the third time the court has had occasion to discipline Attorney Teasdale for professional misconduct and the extensive misconduct considered in this proceeding establishes his unfitness to be licensed to represent others in the Wisconsin legal system. In addition, restitution to certain former clients is appropriate as set forth herein, and we further order Attorney Teasdale to pay the costs of this proceeding.

¶ 2. Attorney Teasdale was admitted to practice law in Wisconsin in 1983. He has been under temporary suspension since January 23, 2004, for willful failure to cooperate with an Office of Lawyer Regulation (OLR) grievance investigation concerning his conduct. He has received two public reprimands. In 1995, Attorney Teasdale consented to the (former) Board of Attorneys Professional Responsibility (BAPR)'s imposition of a public reprimand for failing to file a timely notice of appeal, failing to comply with a client's reasonable requests for information regarding the appeal, failing to inform his client of a magistrate's recommendation for a denial of disability benefits and of the court's dismissal, and for failing to cooperate with BAPR's investigation.

¶ 3. In February 2005, Attorney Teasdale was publicly reprimanded for failing to respond to a deposition notice in violation of SCR 20:3.4(d), and for failing to notify his client of the deposition, in violation of SCR 20:1.4(a). He was ordered to pay restitution to the client. See In re Disciplinary Proceedings Against Teasdale, 2005 WI 12, 278 Wis. 2d 76, 692 N.W.2d 244.

¶ 4. The complaint filed by the OLR in the matter now before the court consisted of some 293 separately numbered paragraphs describing 75 counts of misconduct involving 21 separate client matters, as well as one count stemming from an inquiry made by a circuit court judge regarding Teasdale's conduct. Teasdale repeatedly failed to participate in the disciplinary proceeding, despite efforts to engage him in the process. Eventually, the OLR moved for a default judgment. That motion was granted on March 17, 2005. Teasdale did not appeal from the ensuing report and recommendation filed by the referee, Timothy Vocke.

¶ 5. Because this matter comes before us in the context of a default judgment, the extensive allegations against Attorney Teasdale will be only briefly summarized here. It is noteworthy that all 75 of the allegations of misconduct involved matters in which Attorney Teasdale: (1) continued to practice law despite being under suspension; (2) failed to inform his clients of this fact; and then (3) subsequently refused to cooperate when the OLR attempted to investigate the matter.

¶ 6. Other allegations made with respect to specific clients demonstrate that Attorney Teasdale failed to do any work on a matter, repeatedly failed to prepare written contingency fee agreements, repeatedly failed to keep clients informed as to the status of their cases, repeatedly failed to return client files or property or keep such property in trust, and repeatedly faded to act with reasonable ddigence and promptness in matters. Consequently, the referee concluded, and we agree, that Attorney Teasdale violated numerous disciplinary rules.

¶ 7. More specifically, the referee concluded, and we agree, that Attorney Teasdale failed to act with reasonable diligence and promptness in representing a client in violation of SCR 20:1.3 in the following three matters: J.W. (Count 1), J.C. (Count 29), and A.C. (Count 49).

¶ 8. The referee also concluded, and we agree, that Attorney Teasdale failed to keep a client reasonably informed about the status of the matter and promptly comply with reasonable requests for information in violation of SCR 20:1.4(a) in the following matters: J.W. (Count 2), D.B. (Count 24), J.C. (Count 30), M.S. (Count 32), R.K. (Count 36), D.J. (Count 38), H.B. (Count 41), A.C. (Count 50), C.B. (Count 55), M.L.T. (Count 59), and YW. (Count 67).

¶ 9. The referee concluded, and we agree, that Attorney Teasdale failed to prepare a written contingency fee agreement in violation of SCR 20:1.5(c) in each of the following matters: C.L. (Count 17), D.B. (Count 23), J.C. (Count 28), R.K. (Count 35), and A.C. (Count 48).

¶ 10. In addition, the referee concluded, and we agree, that Attorney Teasdale failed to hold in trust, separate from his own property, his client's property that was in his possession in connection with a representation in violation of SCR 20:1.15(a) in the following matters: E.C. (Count 5), A.C. (Count 51), and M.L.T. (Count 60).

¶ 11. The referee concluded, and we agree, that Attorney Teasdale failed, upon termination of representation, to surrender property and papers to which his client was entitled contrary to SCR 20:1.16(d) in the following matters: J.W (Count 3), E.C. (Count 6), D.B. (Count 25), H.B. (Count 42), R.L. (Count 45), A.C. (Count 52), C.B. (Count 56), M.L.T. (Count 61), N.W (Count 64), and VW (Count 68).

¶ 12. The referee also concluded, and we agree, that Teasdale failed to cooperate with the OLR's investigation contrary to SCR 21.15(4) and SCR 22.03(6) in violation of SCR 20:8.4(f) in the following matters: J.W (Count 4), Judge Miron (Count 10), D.M. (Count 12), B.D. (Count 14), N.K. (Count 16), C.L. (Count 19), C.S. (Count 22), D.B. (Count 27), J.C. (Count 31), M.S. (Count 34), R.K. (Count 37), D.J. (Count 40), H.B. (Count 44), R.L. (Count 47), A.C. (Count 54), C.B. (Count 58), M.L.T. (Count 63), N.W (Count 66), YW. (Count 70), K.R. (Count 73), and C.J. (Count 75).

¶ 13. The referee concluded, and we agree, that Attorney Teasdale failed to comply with the requirements of a suspended attorney as outlined in SCR 22.26(l)(a) — (c) violating a supreme court rule regulating the conduct of lawyers, contrary to SCR 20:8.4(f) in the following matters: E.C. (Count 7), Judge Miron inquiry (Count 8), B.D. (Count 13), N.K. (Count 15), C.L. (Count 18), C.S. (Count 21), D.B. (Count 26), M.S. (Count 33), D.J. (Count 39), H.B. (Count 43), R.L. (Count 46), A.C. (Count 53), C.B. (Count 57), M.L.T. (Count 62), N.W. (Count 65), VW (Count 69), and K.R. (Count 72).

¶ 14. The referee also concluded, and we agree, that Teasdale failed to comply with the requirements of a suspended or revoked attorney as outlined in SCR 22.26(2), thus violating SCR 20.8.4(f) in the matter of Judge Miron (Count 9), D.M. (Count 11), C.S. (Count 20), K.R. (Count 71), and C.J. (Count 74).

¶ 15. Therefore, we adopt the referee's findings of fact, as they have not been shown to be clearly erroneous, and we adopt the conclusions of law based on those findings. We note that the referee commented on several aggravating circumstances here, including Attorney Teasdale's prior discipline, the sheer number of disciplinary violations, and the fact that he left many clients "abandoned." It is clear that revocation is warranted here and, as the referee noted, "Teasdale apparently does not care what happens to his license to practice law." We agree with the referee that Attorney Teasdale, by his extensive misconduct in this proceeding, has established that he is unfit to be licensed to practice law.

¶ 16. The referee also recommended that we require Attorney Teasdale to pay restitution. This court issued an order to show cause regarding the appropriate restitution for certain clients. Attorney Teasdale did not respond to the court's order. Based on the record evidence before us and the response received from the OLR, we direct Attorney Teasdale to pay restitution to client J.W. in the amount of $300, to client A.C. in the amount of $100, and to client K.R. in the amount of $200.

¶ 17. In addition, the Wisconsin Lawyers' Fund for Client Security (WLF), f/k/a the "Client Security Fund" approved reimbursement of unearned fees owed to three of Teasdale's clients. See Complaint at ¶ 28 (noting CSF approved reimbursement of $950 for E.C.); ¶ 243 (approving reimbursement of $925 for M.L.T.); ¶ 291 (approving reimbursement of $500 for C.J.). We therefore direct Attorney Teasdale to compensate the WLF in the amount of $2,375. Finally, we adopt the referee's recommendation that Attorney Teasdale be required to pay the costs of this proceeding, which total $1,446.51 as of the Statement of Costs filed in April 2005.

¶ 18. IT IS ORDERED that the license of Clay F. Teasdale to practice law in Wisconsin is revoked, effective the date of this order.

¶ 19. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Teasdale shall pay full restitution to J.W, A.C., and K.R., and shall reimburse the Wisconsin Lawyers' Fund for Client Security, as set forth herein.

¶ 20. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Teasdale shall pay to the Office of Lawyer Regulation the costs of this disciplinary proceeding.

¶ 21. IT IS FURTHER ORDERED that Attorney Teasdale comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been revoked.

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

       SCR 22.03(6) provides: Investigation. "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

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

       SCR 22.26(1) provides in pertinent part: Activities following suspension or revocation.
      (1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do . .. the following:
      (a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation.
      (b) Advise the clients to seek legal advice of their choice elsewhere.
      (c) Promptly provide written notification to the court of administrative agency and the attorney for each party in a matter pending before a court or administrative agency 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. The notice shall identify the successor attorney of the attorney's client or, if there is none at the time notice is given, shall state the client's place of residence.

       SCR 22.26(2) provides: Activities following suspension or revocation:
      (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.

       As we held in In re Disciplinary Proceedings Against Gilbert, 2002 WI102, ¶ 11, 255 Wis. 2d 311, 647 N.W2d 845, in such circumstances the clients should be reimbursed first.


author: PER CURIAM.

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

      No. 2003AP2131-D.

      Decided October 14, 2005.

    2005 WI 138
    (Also reported in 704 N.W.2d 575.)
   PER CURIAM.

¶ 1. We review, pursuant to SCR 22.17(2), a report and recommendation filed by referee Judith Sperling-Newton in this disciplinary proceeding involving Attorney Ralph A. Kalal ("Kalal"). Kalal entered pleas of "no contest" to the charges against him. The matter was submitted to the referee, who issued a report incorporating the stipulation and adopting the recommended six-month suspension.

¶ 2. The referee's findings of fact are to be affirmed unless they are clearly erroneous. In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). We review the referee's conclusions of law de novo. In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718. After our review of the record in this matter, we conclude that the referee's findings of fact are not clearly erroneous; accordingly we affirm and adopt them. We also agree with the referee's legal conclusion that Kalal's conduct violated the rules of professional conduct for lawyers, as set forth herein. Therefore, we adopt the referee's conclusions of law. We agree that a six-month suspension of Kalal's license to practice law is an appropriate sanction for his misconduct, and we further hold that Kalal should be required to pay the costs of these disciplinary proceedings, which totaled $10,884.10 as of April 19, 2005.

¶ 3. Kalal was admitted to practice law in Wisconsin in 1973. In 2002 he was publicly reprimanded for making a misrepresentation of fact in an oral argument to the supreme court in violation of SCR 20:3.3. In re Disciplinary Proceedings Against Kalal, 2002 WI 45, 252 Wis. 2d 261, 643 N.W.2d 466.

¶ 4. Kalal is the owner of Kalal & Associates, a sole proprietorship engaged in the practice of law. This disciplinary matter derives from a grievance filed by a former associate in Kalal's law firm who charged that Kalal had failed to properly manage contributions to the firm's 401(k) plan. As noted, Kalal eventually executed a stipulation and no-contest plea to the charges and, on March 29, 2005, the referee filed a report and recommendation concluding that Kalal had committed professional misconduct in his handling of the employee 401(k) retirement plan and client trust accounts.

¶ 5. The complaint filed by the Office of Lawyer Regulation (OLR) alleged, and the referee found, that from approximately October 15, 1997 to August 15, 2001, Michele Tjader was employed as an associate attorney in Kalal's firm. From September 29, 1997 to August 15, 2001, Sarah Schmeiser was employed as a receptionist, and subsequently as a paralegal, at the firm. Jackie Bennett, Kalal's wife, worked as the firm's office manager during the time of Tjader's and Schmeiser's employment. Among other tasks, Bennett did the firm's bookkeeping work. Bennett is not a lawyer and was under Kalal's direct supervisory authority.

¶ 6. In January 1998, the firm implemented a 401(k) retirement plan, which permitted employees to designate up to 10% of their salary to be contributed to the plan from pre-tax dollars. The plan provided that the firm would match 50% of the employees' contributions of up to 6% of their earnings.

¶ 7. Employees were required to work for the firm for one year before they became eligible to participate in the 401(k) plan. Tjader and Schmeiser became eligible to participate in the retirement plan in January 1999. Both completed an enrollment form and provided it to Bennett, indicating they wished to contribute 6% of their earnings to the plan. The firm was therefore obligated to make matching contributions of 50% of each employee's personal contributions.

¶ 8. Bennett never forwarded Tjader's or Schmeiser's forms to the plan administrator, Firstar Bank. Beginning in January 1999 however, 6% of Tjader's and Schmeiser's earnings were withheld from each of their paychecks. The firm kept the withheld earnings and did not turn them over to Firstar Bank. The firm also failed to pay the employer's matching 50% contributions to the plan.

¶ 9. Despite the fact that none of Tjader's contributions had been paid into the 401(k) plan for 1999, Tjader's 1999 W-2 tax form from the firm reported that $4225 of Tjader's wages had been paid into the plan. Similarly, although none of Schmeiser's contributions had been paid into the 401(k) plan for 1999, Schmeiser's 1999 W-2 tax form from the firm reported that $1765 had been paid into the plan.

¶ 10. Similarly, for the year 2000, none of Tjader's or Schmeiser's withheld earnings were paid into the plan, but Tjader's 2000 W-2 tax form reflected a $4875 contribution and Schmeiser's 2000 W-2 tax form reflected a $2175 contribution.

¶ 11. Kalal was permitted to deduct, as a business expense, salary amounts and employee expenses actually paid on his 1999 and 2000 personal income tax returns. Kalal deducted the full amount of the salaries that were reported to the IRS on Tjader's and Schmeiser's W-2 tax forms, although 6% of those salaries had not been paid. Kalal also deducted payments in purported employer contributions to pension and profit-sharing plans on his 1999 personal income tax return, although no such contributions were made in 1999.

¶ 12. In 2000, Schmeiser worked part-time for another law firm and contributed to that firm's 401(k) plan. She contacted Bennett requesting information needed to complete a transfer form, but received no response. The transfer was never completed and Schmeiser was required to take a cash distribution on which she was taxed.

¶ 13. After receiving that cash distribution in the summer of 2001, Schmeiser and Tjader realized that neither of them had received a report for the previous year regarding their retirement accounts. They contacted Firstar Bank and were informed that the bank had no retirement accounts for them.

¶ 14. Tjader and Schmeiser met with Kalal, who acknowledged that the firm had been unable to make employer contributions for some time due to financial concerns.

¶ 15. The referee found that Firstar Bank made numerous telephone calls to Kalal at both his office and at his home for a period of approximately two weeks in an effort to discuss the discrepancy with him. Kalal did not return these telephone calls until he was advised that the matter was being referred to Firstar Bank's legal department and to appropriate federal authorities.

¶ 16. On or about August 9, 2001, Kalal sent various required documents and funds totaling $26,448.75 to Firstar Bank.

¶ 17. During the OLR's investigation of this matter it was also determined, and the referee subsequently found, that during late 1998 and 1999, the firm failed to timely file several employment tax returns which require employers to report and pay the taxes they withhold from employees' paychecks, as well as the employer's share of social security and Medicare taxes.

¶ 18. Kalal acknowledged that these returns were not filed for the quarterly tax periods ending September 30, 1998, March 31, 1999, June 30, 1999, and September 30, 1999, although tax payments were withheld from the employees' paychecks for those periods. Kalal explained that the tax returns were not filed because funds were not available to pay the taxes due.

¶ 19. In addition, the referee determined that Kalal had continued to hold money in his client trust account for certain clients where the legal representation had concluded. Kalal acknowledged that, upon reviewing his trust account records, he had identified approximately 75 clients whose files were closed but who still had funds on deposit in his trust account. In addition, the firm's client trust account contained some $3425.57 more than the sum of the individual client ledgers; ownership of these funds could not be immediately identified.

¶ 20. Kalal then began submitting to the OLR monthly lists of clients who had funds on deposit in his trust account, beginning in January 2001. Of the 148 clients shown on the January 2001 list, 97 were clients whose files had been closed and who were owed refunds. Of those 97 clients, 74 were clients for whom the office had active client ledgers and 23 were clients for whom the office had no ledgers. The 23 clients without ledgers had files that dated back to 1997 or earlier. The amounts owing to these individual clients ranged from less than $1 to amounts in excess of $500. The referee found that 31 clients were owed funds in excess of $100. Because the firm did not prepare a monthly schedule of subsidiary client ledgers, it was not possible to reconcile the bank statement balance with the total funds that should have been available for clients.

¶ 21. As noted, Kalal executed a stipulation and a no-contest plea in response to the OLR's charges regarding these matters. The matter was submitted to the referee, who found that the OLR had met its burden of proof to establish Kalal's violation of the supreme court rules by clear, satisfactory and convincing evidence.

¶ 22. Supreme Court Rule 20:8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." The referee concluded that:

By failing to deposit funds that had been deducted from employees' paychecks as contributions for a 401(k) plan into the plan and instead putting the withheld funds to personal use, by failing to pay matching employer contributions to the 401(k) plan as required under the plan, by falsely reporting on employees' W-2 tax forms that contributions had been paid in to the 401(k) plan when they had not, and by claiming deductions on his personal income tax returns for payments that were not made, Respondent engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation, contrary to SCR 20:8.4(c).

¶ 23. Supreme Court Rule 20:5.3(b) provides that with respect to a nonlawyer employed or retained by or associated with a lawyer, "[a] lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." The referee found that by failing to implement measures designed to monitor bookkeeping and related work performed by Bennett, a nonlawyer, Kalal violated SCR 20:5.3(b).

¶ 24. The referee also concluded that by failing to file timely employer tax returns for the quarterly tax periods ending September 30, 1998, March 31, 1999, June 30, 1999, and September 30, 1999, Kalal violated a standard of conduct for attorneys as set forth in State v. Roggensack, 19 Wis. 2d 38, 199 N.W2d 412 (1963), in which this court deemed professional misconduct the "intentional violation of tax laws, even though without intent to defraud the government," in violation of SCR 20:8.4(f). Id. at 46.

¶ 25. The referee found that by failing to timely pay refunds to some 97 clients who still had funds on deposit in his trust account at the conclusion of their representation, Kalal failed to deliver promptly to the client any trust account funds or other property which the client is entitled to receive, in violation of former SCR 20:1.15(b).

¶ 26. In addition, by failing to maintain subsidiary ledgers for all clients for whom funds were held in his firm's client trust account, and by failing to prepare a monthly schedule of the subsidiary ledgers which could then be reconciled with the balances actually on hand in the account, Kalal failed to maintain all trust account records required under former SCR 20:1.15(e), which governs operational requirements for trust funds.

¶ 27. After our review of the record in this matter, we adopt the referee's findings of fact and conclusions of law as stipulated to by the parties.21

¶ 28. Turning to the question of the appropriate discipline, the referee considered several factors in assessing the appropriate discipline for Kalal's misconduct, including the seriousness of the misconduct, the need to impress upon him the seriousness of the misconduct, the need to protect the public, the courts, and the legal system from a repetition of the misconduct, and the need to deter other attorneys from similar misconduct. See, e.g., In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 40, 248 Wis. 2d 662, 636 N.W2d 718. The referee specifically noted that she considered Kalal's prior discipline as an aggravating factor. She considered Kalal's commitment to making restitution to be a mitigating factor, and, indeed, the court has been advised that full restitution to both employees' 401 (k) accounts has been made, and that all clients that Kalal could identify and locate have received complete refunds. Based on our own review we agree that a suspension of six months is appropriate discipline for Kalal's professional misconduct.

¶ 29. This brings us to a related question on which Kalal has requested the court's guidance. As noted, Kalal's trust account contains funds belonging to clients that he has been unable to identify. It is not entirely clear from the record precisely how much money remains at issue. Initially, estimates indicated an amount of approximately $3425.57.

¶ 30. On July 15, 2005, this court issued an order to the parties regarding the appropriate resolution of these unidentified client funds. The OLR responded on July 20, 2005, as supplemented on August 5, 2005. We agree with the OLR that pursuant to SCR 22.26, Kalal has a duty to timely disburse all remaining funds from his trust account and to close the same. Based on the OLR's response, we direct Attorney Kalal to seek direction from the OLR as to the appropriate course of conduct for resolving the issue of the unidentified client funds. Attorney Kalal shall notify this court within 30 days of the date of this decision as to how the remaining unidentified funds will be managed. The OLR shall timely advise this court whether it considers the proposed resolution satisfactory under the circumstances of this matter.

¶ 31. Finally, we turn to Kalal's request that this court postpone his suspension so that it will commence on or after November 1, 2005. As his counsel has explained in a letter to the court, filed May 3, 2005:

Understanding that he will lose his license to practice for a period of time, Mr. Kalal has ceased taking in new clients. He does have seven criminal cases that will get resolved during the course of the Summer and into the early Fall. He believes that the last will be resolved in October of this year. Mr. Kalal has put substantial work into these matters and would like to see them through to completion, rather than refer them to new counsel who will have to start from scratch. We ask that any suspension ordered by the Court not start until November 1, 2005.

The OLR does not support the request.

¶ 32. Although such requests are not generally favored, in recognition of Kalal's efforts to make restitution to the injured employees and clients in this matter, his cooperation with the OLR in this proceeding, and in reliance on the representation of his counsel, Attorney Waring Fincke, that Kalal has ceased taking new clients, we will delay Kalal's suspension until November 1, 2005, solely to permit him to complete the seven client matters he specifically identified. Representation of any other client or undertaking representation of the remaining clients on any new matter will be grounds for additional discipline and may adversely affect future reinstatement proceedings.

¶ 33. IT IS ORDERED that the license of Attorney Ralph A. Kalal to practice law in Wisconsin is suspended for a period of six months, effective November 1, 2005, on the terms set forth in this decision.

¶ 34. IT IS FURTHER ORDERED that within 30 days of the date of this order Attorney Ralph A. Kalal shall seek direction from the Office of Lawyer Regulation regarding the appropriate course of conduct for resolving the issue of unidentified client funds remaining in his custody and control, and shall submit a written statement to the court explaining how the remaining unidentified funds will be managed. Upon receipt of this statement, the OLR shall timely advise this court whether it considers the resolution satisfactory under the circumstances of this matter.

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

¶ 36. IT IS FURTHER ORDERED that Attorney Kalal comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended.

       One of the grievants, Attorney Tjader also independently pursued an action based on these facts in Dane County Circuit Court, see State v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W2d 110.

       SCR 20:8.4(1) provides that it is professional misconduct to "violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       Former SCR 20:1.15 applies to misconduct committed prior to July 1, 2004. Former SCR 20:1.15(b) provides:
      Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.

       Former SCR 20:1.15(e) provides:
      Complete records of trust account funds and other trust property shall be kept by the lawyer and shall be preserved for a period of at least six years after termination of the representation. Complete records shall include: (i) a cash receipts journal, listing the sources and date of each receipt, (ii) a disbursements journal, listing the date and payee of each disbursement, with all disbursements being paid by check, (iii) a subsidiary ledger containing a separate page for each person or company for whom funds have been received in trust, showing the date and amount of each receipt, the date and amount of each disbursement, and any unexpended balance, (iv) a monthly schedule of the subsidiary ledger, indicating the balance of each client's account at the end of each month, (v) a determination of the cash balance (checkbook balance) at the end of each month, taken from the cash receipts and cash disbursement journals and a reconciliation of the cash balance (checkbook balance) with the balance indicated in the bank statement, and (vi) monthly statements, including canceled checks, vouchers or share drafts, and duplicate deposit slips.... All trust account records shall be deemed to have public aspects as related to the lawyer's fitness to practice.


text:
    In the Matter of Disciplinary Proceedings Against Jolie M. Semancik, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jolie M. Semancik, Respondent.
    Supreme Court

      No. 2004AP1885-D.

      Decided October 14, 2005.

    2005 WI 139
    (Also reported in 704 N.W.2d 581.)
   PER CURIAM.

¶ 1. We review a report and recommendation filed by referee Rose Marie Baron recommending that Attorney Jolie M. Semancik's license to practice law in Wisconsin be suspended for a period of six months for professional misconduct committed in connection with her failure to pay for professional investigative services, that she be directed to pay a small claims judgment entered against her in the amount of $1855.92, plus interest, and that she be directed to pay the costs of this disciplinary proceeding which total $3613.14 as of April 20, 2005. We adopt the referee's findings of fact and conclusions of law and agree with the referee's recommendations in all respects.

¶ 2. Attorney Semancik was admitted to the practice of law in Wisconsin in 1994. Her license to practice law has been temporarily suspended since April 6, 2005, for her failure to cooperate in this disciplinary investigation. She has not previously been subjected to formal discipline.

¶ 3. The misconduct alleged in this proceeding relates to Attorney Semancik's failure to pay for services she received from private investigator Scott Bretl, whom she retained in connection with criminal law matters she received through appointments with the Office of the State Public Defender.

¶ 4. The complaint filed by the Office of Lawyer Regulation (OLR) on July 16, 2004, alleged that Attorney Semancik retained Bretl to investigate a case involving her client, M.W On March 13, 2002, Bretl submitted an invoice to Attorney Semancik in the amount of $473.92, reflecting his fees in the M.W. matter. On April 19, 2002, Attorney Semancik in turn, sent an invoice to the Office of the State Public Defender that included both her attorney fees and Bretl's investigative fees relating to the M.W. matter. On May 24, 2002, the Office of the State Public Defender issued a check to Attorney Semancik in the amount of $1549.92, reflecting payment for the claimed attorney fees and investigative fees. Bretl was entitled to receive $473.92 of that amount.

¶ 5. Attorney Semancik neither deposited the funds into her trust account nor notified Bretl that she had received funds to which he was entitled. When she endorsed and cashed the check on May 28, 2002, Attorney Semancik did not pay Bretl for his work.

¶ 6. Attorney Semancik also retained Bretl to investigate the case of her client, WA., and, on August 13, 2002, Bretl submitted an invoice in the amount of $242.64 reflecting his fees in the W.A. matter.

¶ 7. On August 15, 2002, Attorney Semancik submitted an invoice to the Office of the State Public Defender seeking payment for her attorney fees and for Bretl's investigative fees. On August 26, 2002, the Office of the State Public Defender issued Attorney Semancik a check in the amount of $508.64 reflecting payment of both Attorney Semancik's fee and Bretl's fee of $242.64. Again, Attorney Semancik failed to notify Bretl that she had received the funds and failed to pay Bretl for his services.

¶ 8. Attorney Semancik also retained Bretl to investigate the case of her client, I.M., and, on November 2,2002, Bretl submitted an invoice in the amount of $231.04 reflecting his fees in the I.M. matter. On November 8, 2002, Attorney Semancik submitted an invoice to the Office of the State Public Defender seeking payment for her attorney fees and Bretl's investigative fees. On November 22, 2002, the Office of the State Public Defender issued Attorney Semancik a check in the amount of $823.44 as payment in the I.M. matter and another client matter. The check included payment of $231.04 reflecting Bretl's fee. Again, Attorney Semancik neither deposited the funds into her trust account nor notified Bretl that she had received funds to which he was entitled. When she endorsed and cashed the check on November 25, 2002, Attorney Semancik did not pay Bretl.

¶ 9. Attorney Semancik also retained Bretl to investigate client, D.G.'s case, and, on August 13, 2002, Bretl submitted to Attorney Semancik an invoice for the D.G. matter in the amount of $214.24. Attorney Semancik also retained Bretl to investigate client, R.T.'s case, and, on November 2, 2002, Bretl sent Attorney Semancik an invoice for the R.T. matter in the amount of $526.08.

¶ 10. On November 13, 2002, Attorney Semancik submitted to the Office of the State Public Defender an invoice seeking payment for her attorney fees and Bretl's investigative fees in the R.T. matter. On November 15, 2002, Attorney Semancik submitted an invoice to the Office of the State Public Defender seeking payment for her attorney fees and Bretl's investigative fees in the D.G. matter.

¶ 11. On November 22, 2002, the Office of the State Public Defender issued Attorney Semancik a check in the amount of $1558.32 reflecting payments for the D.G. matter, the R.T. matter, and another client matter. The check also included payments for Bretl's fees submitted in the D.G. matter and the R.T. matter. Again, Attorney Semancik neither deposited the funds in her trust account nor notified Bretl that she had received funds to which he was entitled. When she endorsed and cashed the check on November 25, 2002, she did not pay Bretl for his work on either the D.G. or the R.T. matter.

¶ 12. Indeed, Bretl only learned that the Office of the State Public Defender had made payments for his services to Attorney Semancik when he telephoned them to inquire about his fees. When Bretl asked Attorney Semancik about her receipt of these payments, Attorney Semancik's response was "I guess I spent it."

¶ 13. On February 21, 2003, Bretl filed a small claims action against Attorney Semancik in an attempt to collect his earned fees. On March 20, 2003, the Milwaukee County Circuit Court entered a judgment in the small claims action in the amount of $1855.92 in favor of Bretl and against Semancik. See North Shore Investigations v. Semancik, Milwaukee County Case No. 2003SC005090.

¶ 14. On August 27, 2003, Attorney Semancik stated to OLR staff that she believed she had only received one check from the Office of the State Public Defender that had contained funds belonging to Bretl, and that those funds were deposited into her business account. She stated further that she might not have known that she had received the check since the secretary at her former law firm might have deposited the check without her knowledge. She also claimed that her failure to pay Bretl was due to an accounting error, and that once she learned of the error, she tried to make payment arrangements with Bretl, but that Bretl refused to accept payments.

¶ 15. On September 19, 2003, the OLR sent correspondence to Attorney Semancik questioning her statement that she had been unaware that her firm had received the four checks from the Office of the State Public Defender, even though Attorney Semancik had personally endorsed three of the checks. Attorney Se-mancik explained that, at the time of her prior conversation with OLR intake staff, she did not have her file.

¶ 16. The complaint in this matter was filed on July 16, 2004. No timely answer was filed and the OLR moved for default judgment. Attorney Semancik then filed a tardy answer and the matter proceeded. However, Attorney Semancik failed to appear for her own deposition and the OLR filed a motion for sanctions and default judgment. The motion was ultimately granted.

¶ 17. The referee noted that Attorney Semancik had denied some of the findings of fact and counts alleged against her and that these disputed matters were intended to be the subject of a hearing scheduled for February 4, 2005. However, that hearing was can-celled because Attorney Semancik claimed that she had retained counsel to represent her at the hearing and that additional time was required for the attorney to properly prepare the case. The legal representation was never formalized, however, and after many delays, a final telephonic status conference was scheduled on March 3, 2005. Attorney Semancik failed to appear at that conference. She neither contacted the referee nor made herself available for a second conference scheduled for March 4, 2005. Only counsel for the OLR appeared at that conference.

¶ 18. Following that conference the OLR submitted a pre-report submission on judgment and sanctions to the referee. A copy was provided to Attorney Seman-cik.

¶ 19. On March 11, 2005, the referee sent a letter to Attorney Semancik informing her that unless she responded to the OLR arguments regarding her failure to cooperate, as well as to the allegations in the disciplinary complaint by March 23, 2005, the referee would proceed to prepare the report for the supreme court. Attorney Semancik did not respond.

¶ 20. The referee also noted that Attorney Se-mancik had failed to meet various other deadlines including the late filing of her answer, failure to appear at her own deposition, failing to provide a witness list, and failing to appear at scheduled conferences and hearings. The referee described Attorney Semancik's conduct as "egregious." Indeed, the referee concluded that the sanctions sought by the OLR were authorized under Wis. Stat. §§ 802.10 and 805.03 and were warranted for Attorney Semancik's conduct in this proceeding. Accordingly, the referee struck Attorney Semancik's answer and the matter was handled as a default proceeding.

¶ 21. The referee then found that Attorney Se-mancik did not, in fact, make any offer to reimburse Bretl. While she once indicated to Bretl's attorney that she would do so, the referee found that no action was taken on that comment.

¶ 22. The referee concluded further that by failing to deposit into her trust account four checks from the State Public Defender's office that contained funds belonging to Bretl, Attorney Semancik failed to hold in trust, separate from her own property, that property of a third person that was in her possession in connection with a representation, in violation of former SCR 20:1.15(a).

¶ 23. The referee concluded further that by failing to notify Bretl of the receipt of funds in which Bretl had an interest, and by failing to deliver those funds to Bretl, Attorney Semancik failed to notify Bretl promptly in writing of her receipt of the funds and failed to promptly deliver to Bretl funds to which he was entitled, in violation of former SCR 20:1.15(b).

¶ 24. In addition, the referee found that by converting to her own use, funds received from the Office of the State Public Defender as payment for Bretl's work, Attorney Semancik engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

¶ 25. The referee agreed with the OLR's recommendation regarding discipline, concluding that a six-month suspension was appropriate discipline for Attorney Semancik's misconduct in this matter. The referee also recommended this court direct Attorney Semancik to satisfy Bretl's small claims judgment in the amount of $1855.92, plus interest, and also assess costs in this matter.

¶ 26. We agree that the referee's decision to strike Attorney Semancik's answer was an appropriate sanction for the egregious procedural violations and delays occasioned by Attorney Semancik. See, e.g., In re Disciplinary Proceedings Against Haberman, 128 Wis. 2d 390, 382 N.W.2d 439 (1986) (holding it was not an abuse of discretion to strike answer and proceed on default in response to procedural violations).

¶ 27. Based on our independent review of this matter, we adopt the referee's findings of fact and conclusions of law. We also approve the referee's recommendation for a six-month suspension, the recommendation that we direct Attorney Semancik to satisfy the small claims judgment entered against her, and that we require Attorney Semancik to pay the costs of this proceeding.

¶ 28. IT IS ORDERED that the license of Jolie M. Semancik to practice law in Wisconsin is suspended for a period of six months, effective the date of this order.

¶ 29. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Jolie M. Seman-cik shall satisfy the judgment entered against her in favor of Scott Bretl, in the amount of $1855.92, plus post-judgment interest, in the matter of North Shore Investigations v. Semancik, Milwaukee County Case No. 2003SC005090 (judgment entered March 20, 2003). If the judgment is not satisfied within the time specified and absent a showing to this court of her inability to make the restitution within that time, the license of Jolie M. Semancik to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 30. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Jolie M. Seman-cik shall pay to the Office of Lawyer Regulation the costs of this proceeding. If those costs are not paid within the time specified, and absent a showing to this court of an inability to pay those costs within that time, the license of Attorney Semancik to practice law shall remain suspended until further order of the court.

¶ 31. IT IS FURTHER ORDERED that if she has not already done so, Attorney Jolie M. Semancik comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended.

       On February 4, 2005, this court issued an order directing Attorney Semancik to show cause why her license to practice law should not be temporarily suspended for failure to cooperate with this OLR proceeding. Attorney Semancik failed to respond to that directive and, by order dated April 6, 2005, Attorney Semancik's license to practice law was temporarily suspended for failure to cooperate with this disciplinary proceeding.

       Former SCR 20:1.15(a) applies to misconduct committed prior to July 1, 2004. It provides in pertinent part:
      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. . .. All funds of clients and third persons paid to a lawyer or law firm shall he deposited in one or more identifiable trust accounts.

       Former SCR 20:1.15(b) provides:

        Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.

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