author: ¶ 1. N. PATRICK CROOKS, J.

text:
    Mary Ann Jones, Plaintiff-Appellant, v. The Estate of Robert G. Jones, Defendant, Lane Jones and Robert Jones, Individually and in their capacity as Co-Personal Representatives of the Estate of Robert G. Jones, deceased, Defendants-Respondents.
    Supreme Court

      No. 01-1025.

      Oral argument April 9, 2002.

    Decided June 18, 2002.

    2002 WI 61
    (Also reported in 646 N.W.2d 280.)

      For the plaintiff-appellant there were briefs by Dennis H. Milbrath, Robert J. Asti and Levy & Levy, S.C., Cedarburg, and oral argument by Dennis H. Milbrath.

    For the defendants-respondents there was a brief (in the court of appeals) by Robert H. Halvorsen and Halvorsen Law Offices, S.C., Sheboygan, and oral argument by Robert H. Halvorsen.

   ¶ 1. N. PATRICK CROOKS, J.

This case is before the court on certification from the Court of Appeals, District II, pursuant to Wis. Stat. § 809.61 (1999-2000). The parties dispute whether a spouse can waive the homestead protection in a premarital agreement. Mary Ann Jones (hereinafter Mary Ann) and Robert G. Jones (hereinafter Robert), in contemplation of marriage, signed a prenuptial agreement stating, among other things, that each party shall hold his or her solely owned property "free from all rights or claims therein by the other." During their marriage, Robert owned the home where they resided as individual property. In 1998, Robert deeded the home to Mary Ann, and on the same day, Mary Ann subsequently deeded the home to Robert's sons, her stepsons. Robert passed away, and Mary Ann now seeks to declare the second warranty deed invalid. Mary Ann claims that the home is homestead property, and Robert's failure to sign the second warranty deed makes it invalid under the statute of frauds, Wis. Stat. § 706.02 (1997-1998).

¶ 2. We first conclude that the property is homestead property. However, we also conclude that pursuant to the premarital agreement, Mary Ann and Robert waived the homestead protection. Mary Ann, therefore, could transfer the property to Robert's sons without needing Robert's signature. Accordingly, we affirm the circuit court's order denying Mary Ann's motion seeking to declare the deed of transfer between Mary Ann and Robert's sons invalid.

I

¶ 3. The relevant facts are not in dispute. On August 3, 1978, before they were married, Mary Ann and Robert signed a premarital agreement. Among other things, the agreement specifically stated:

During their marriage each party shall hold all of his or her solely owned property, including real estate, whether now owned or hereafter acquired, free from all rights or claims therein by the other, with full power to sell, mortgage, transfer, assign, give or otherwise dispose of any interest in such property without the consent of the other.

During the course of their marriage, the agreement was modified on several occasions; however, none of the modifications affected this provision or the issues in this case.

¶ 4. Mary Ann and Robert were married later in 1978 and lived in a home that Robert had owned before the marriage. Robert later sold the home and purchased a new home located in the Village of Kohler, Wisconsin (hereinafter "the Woodlake home"). Robert and Mary Ann then lived in the Woodlake home.

¶ 5. On September 16, 1998, Robert transferred the Woodlake home to Mary Ann by Warranty Deed. The deed specifically identified the home as Robert's individual property, and as homestead property. On that same day, Mary Ann conveyed the Woodlake home by Warranty Deed to Robert's two sons, her stepsons, Robert A. Jones and Lance B. Jones (hereinafter "Robert's sons"). In the deed, Mary Ann reserved "the right to reside in the residence for the life of Robert G. Jones plus one year from the date of his death." Again, the deed identified the property as homestead property. Robert did not sign the deed by which Mary Ann transferred the Woodlake home to his sons. Furthermore, the two deeds were simultaneously recorded in the office of the Register of Deeds for Sheboygan County on October 27,1998, as documents 1522214 and 1522215, respectively.

¶ 6. Robert died on March 13, 1999.

¶ 7. On June 29, 1999, Mary. Ann filed suit in Sheboygan County Circuit Court, against the Estate of Robert G. Jones, and Lance B. Jones and Robert A. Jones, both individually and in their capacity as co-personal representatives of their deceased father. Among other things, Mary Ann sought a declaration of interest in the Woodlake home, as the homestead of Robert and herself. Mary Ann subsequently filed a motion for summary judgment, asking the court to find that the deed transferring the Woodlake home to Robert's sons was invalid as a matter of law under the statute of frauds. Specifically, Mary Ann claimed that the deed conveyed homestead property, which requires the signature of both spouses under Wis. Stat. § 706.02(l)(f). Mary Ann argued that since Robert did not sign the deed, the transfer was invalid. The circuit court, the Honorable John E Murphy, denied the motion. Relying on language in the premarital agreement, the court concluded that the Woodlake home had never been classified as homestead property; therefore, the transfer to Robert's sons was valid.

¶ 8. Mary Ann appealed the circuit court's decision, and the Court of Appeals, District II, certified the case to this court.

II

¶ 9. Whether spouses can waive the homestead protection in a premarital agreement is an issue of first impression in Wisconsin. It poses a question of statutory interpretation and contract interpretation, which we review de novo, but benefiting from the circuit court's analysis. Weber v. Weber, 176 Wis. 2d 1085, 1090, 501 N.W.2d 413 (1993).

¶ 10. Before we can answer the first certified question, we must determine whether the Woodlake home is homestead property. Wisconsin Stat. § 706.01(7) defines "homestead" as "the dwelling, and so much of the land surrounding it as is reasonably necessary for use of the dwelling as a home, but not less than one-fourth acre (if available) and not exceeding 40 acres." All of the parties in this casé, before this court, concede that the Woodlake home was homestead property. The circuit court, however, relying on the language of the premarital agreement, concluded that the Woodlake home was not homestead property. We disagree with the circuit court's conclusion. The warranty deed conveying the property from Robert to Mary Ann, and the warranty deed conveying the property from Mary Ann to Robert's sons, both on their face state that the property is homestead property. Both deeds specifically state, "This is homestead property." Further, the Woodlake home is "the dwelling" that Robert and Mary Ann used as their home. Based on the facts, the parties' positions that the Woodlake home is homestead property, and the plain language in both deeds, we, therefore, conclude that the property in question is homestead property.

¶ 11. We now turn to the issue of first impression — whether spouses can waive the homestead protection in a premarital agreement. Wisconsin Stat. § 706.02(1), otherwise referred to as the statute of frauds, provides that a conveyance of real property is not valid unless it complies with the statutory requirements. Section 706.02(1)(f) specifically addresses the conveyance of homestead property and requires that the conveyance "[i]s signed, or joined in by separate conveyance, by or on behalf of each spouse, if the conveyance alienates any interest of a married person in a homestead under s. 706.01(7) except conveyances between spouses . . . ."

¶ 12. Mary Ann argues that because Robert did not sign the warranty deed conveying the Woodlake home to the sons, the deed is invalid for not conforming with the requirements of Wis. Stat. § 706.02(l)(f). Mary Ann contends that the Marital Property Act, Chapter 766, relates only to ownership and classification and that the statute of frauds relates only to conveyances of property. She claims that even though a premarital agreement conveys sole ownership of a homestead to one spouse, this does not eliminate the need to comply with the statute of frauds, which requires both spouses to sign a subsequent conveyance of the property. Mary Ann argues that the Marital Property Act, or a premarital agreement, cannot trump the statute of frauds requirements, nor can the parties use a premarital agreement to opt out of the statute of frauds. According to Mary Ann, § 706.02 creates an "absolute veto" for one spouse upon the other spouse's power to alienate or transfer the homestead. See Wangen v. Leum, 46 Wis. 2d 60, 63, 174 N.W.2d 266 (1970) (citing Cumps v. Kiyo, 104 Wis. 656, 661, 80 N.W. 937 (1899)). Finally, Mary Ann appeals to public policy, arguing that strict compliance with the statute of frauds protects "the roof over the family's heads" as well as innocent third parties.

¶ 13. We first acknowledge that Mary Ann and Robert's premarital agreement predated the Marital Property Act, so the Act does not directly govern the outcome in this case. Wisconsin Stat. § 766.58(12)(a), however, recognizes that a premarital agreement predating the Act, "is enforceable ... without reference to this chapter .. .." Mary Ann's reliance on various provisions of the Marital Property Act is therefore questionable, since the Act does not directly apply. Nonetheless, we discuss the Act because this decision will undoubtedly influence future decisions regarding a premarital agreement governed by the Act.

¶ 14. As noted earlier, whether spouses can waive the homestead protection in a premarital agreement is a question of first impression in Wisconsin. While we have addressed issues involving the homestead protection on several occasions, we have addressed issues related to this case only twice, in Jones v. First National Bank & Trust Co. of Racine, 254 Wis. 258, 36 N.W.2d 95 (1949), and Weber v. Weber, 176 Wis. 2d 1085, 501 N.W.2d 413 (1993). Although both cases provide guidance, we note that neither is directly on point.

¶ 15. In First National Bank we addressed the homestead protection in the context of a premarital agreement where the spouses each gave up any claims he or she might have had against the estate of the other. 254 Wis. at 259. The issue before the court, however, was whether the wife could take the statutory allowance or if she was bound by the premarital agreement. Relying on the language of the premarital agreement, this court concluded, "It is evident that the widow expressly gave up any right to the statutory allowance," id. at 260, and held that she was bound by the terms of the premarital agreement. Id. at 261.

¶ 16. In Weber we addressed the relationship between the homestead protection in the statute of frauds, Wis. Stat. § 706.02(1)(f), and the rule of civil procedure, § 802.02(3), which requires a party to plead affirmatively the statute of frauds as a defense. 176 Wis. 2d at 1092. Specifically, the court addressed whether the homestead protection in the statute of frauds, § 706.02(1)(f), could be waived by a party's failure to plead it affirmatively. After reviewing the history of the homestead protection as derived in the statutes and the case law, the court held that the homestead protection was "unique" and therefore the lower court "was wrong to subject sec. 706.02(1)(f) to the same affirmative pleading rules governing the statute of frauds generally." Id. at 1097. The court specifically stated, "the homestead signature requirement must be waived affirmatively by the spouse through the actual signing of the mortgage." Id.

¶ 17. We thus conclude that spouses may affirmatively waive the homestead .protection in Wis. Stat. § 706.02(1)(f) in a premarital agreement. First National Bank establishes that a premarital agreement can affirmatively waive a statutory presumption. Furthermore, although Weber related to the rules of civil procedure, the court's holding leads us to conclude that a spouse can waive the statute of frauds homestead protection when the waiver is an affirmative act. In Wisconsin, premarital agreements "are regarded with favor rather than disfavor" and "there is nothing inherently suspicious or bad about such agreements." Estate of Koeffler, 215 Wis. 115, 123, 254 N.W 363 (1934). Parties entering into a premarital agreement use the document for several reasons, including establishing how property is titled or held, and as demonstrated by the premarital agreement at issue here, to establish each spouse's ability to convey property to others. A premarital agreement is a binding contract, in writing, and as such, it is an affirmative act where the parties are intentionally relinquishing a known right. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Individuals are able to waive statutory protections; see e.g., State v. Davis, 2001 WI 136, 248 Wis. 2d 986, 637 N.W.2d 62 (statutory right to prompt disposition); In re Estate of Reist, 91 Wis. 2d 209, 281 N.W.2d 86 (1979) (reliance on dead man's statute), and constitutional rights; see e.g., State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301 (right to a jury trial); State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997) (right to counsel); State v. Wolverton, 193 Wis. 2d 234, 533 N.W.2d 167 (1995) (right to postconviction appellate review); State v. Gove, 148 Wis. 2d 936, 437 N.W.2d 218 (1989) (right to confrontation). We, therefore, conclude that spouses can validly waive the homestead protection by affirmatively entering into a premarital agreement.

¶ 18. We further conclude that this decision is consistent with the purpose of the homestead protection. As this court has recognized for over one hundred years, the purpose of the homestead protection in Wis. Stat. § 706.02(1)(f) is to protect the homestead and the family from unilateral action by one spouse to the detriment of the other. See State Bank of Drummond v. Christophersen, 93 Wis. 2d 148, 157, 286 N.W.2d 547 (1980); Wangen, 46 Wis. 2d at 65; Rosenthal v. Pleck, 166 Wis. 598, 600, 166 N.W. 445 (1918); Cumps, 104 Wis. at 662. Where both spouses act affirmatively by entering into a premarital agreement, however, we are not faced with one spouse unilaterally acting to the detriment of the other. Rather, both spouses are acting together, in agreement, and making collaborative decisions regarding their possession and conveyance of property. Our holding that the homestead protection can be waived by a premarital agreement, therefore, is indeed consistent with the purpose of § 706.02(1)(f).

¶ 19. Turning to the premarital agreement at issue here, we conclude that Mary Ann cannot assert the homestead protection in Wis. Stat. § 706.02(1)(f) to invalidate the deed because she and Robert affirmatively waived the homestead protection in the premarital agreement. Mary Ann and Robert, by using the premarital agreement, agreed to distinct terms of property ownership and conveyance. Specifically, they agreed that each would own his or her property, "free from all rights or claims therein by the other, with full power to sell, mortgage, transfer, assign, give or otherwise dispose of any interest in such property without the consent of the other." (Emphasis added.) These terms demonstrate that Mary Ann and Robert contemplated the rights and obligations that would result from entering into marriage with each other. Furthermore, they chose all-inclusive terms to waive those rights, especially those rights relating to each spouse's individual ability to convey property. It would be difficult to find terms that enunciate waiver in a more simple or comprehensive manner than "all rights or claims," "full power" and "without the consent of the other." While the better practice would be to include explicit language indicating that the parties are waiving their homestead rights, we conclude that consistent with the meaning of "all rights or claims", the parties here intended to, and did, waive the statute of frauds homestead protection. The Woodlake home became Mary Ann's individual property upon transfer from Robert to Mary Ann, and Mary Ann's signature was not needed because it was a conveyance between spouses under § 706.02(l)(f). Since she had already waived the homestead protection in § 706.02(l)(f) in the premarital agreement, Mary Ann had full authority to convey the Woodlake home to Robert's sons without Robert's signature. Both warranty deeds are valid; therefore, we affirm the circuit court's order.

1 — I H-1 HH

¶ 20. In summary, we have concluded that spouses can waive the homestead protection by affirmative language in a premarital agreement. By examining the language in the premarital agreement between Mary Ann and Robert, we further have concluded that Mary Ann and Robert waived the homestead protection. Consequently, Robert's signature was not required to transfer the Woodlake home from Mary Ann to Robert's sons, and the warranty deed at issue here, is therefore, valid. Since we answer the first certified question affirmatively, we do not reach the remaining questions certified by the court of appeals.

By the Court. — The order of the circuit court is affirmed.

       All references to the Wisconsin Statutes are to the 1997-1998 version unless otherwise noted.

       We note that the court of appeals certified three questions to this court.
      1. Can a spouse waive the homestead protection in a premarital agreement?
      2. May a spouse who has conveyed homestead property to a third party later invoke the statute of frauds, Wis. Stat. § 706.02(l)(f)(1999-2000), as a sword to undo the conveyance because the other spouse did not join in the conveyance?
      3. Does the ban against equitable reformation of a homestead conveyance by a spouse as stated in State Bank of Drummond v. Christophersen, 93 Wis. 2d 148, 286 N.W.2d 547 (1979), apply where the conveyance is not the product of fraud, overreaching or an unscrupulous attempt by one spouse to divest the other of the homestead interest?
      We only reach the first issue, however, because we answer it affirmatively and therefore, we do not need to address the remaining certified issues. Mary Ann has affirmatively waived the homestead protection; therefore, we do not need to decide whether Mary Ann can invoke the statute of frauds as a sword. Similarly, we do not reach the issue of equitable reformation.

       Although the Estate of Robert G. Jones, Lance B. Jones, and Robert A. Jones, argued in their brief that the Woodlake property is not homestead property, the estate and the sons conceded at oral argument that it was homestead property and relied solely on the argument that Mary Ann waived the homestead protection. In response to a clarifying question from the court, counsel conceded that he was not arguing that this is not homestead property. Rather, counsel indicated his position to be that this is homestead property, the rights in which Mary Ann waived by the premarital property agreement.

       We note that the warranty deed conveying the Woodlake home from Robert to Mary Ann falls within the exception listed in Wis. Stat. § 706.02(1)(f) because it is a conveyance between spouses. Accordingly, with regard to the homestead protection in § 706.02(1)(f), we are concerned with the warranty deed conveying the Woodlake home from Mary Ann to Robert's sons.

        State Bank of Drummond v. Christophersen, 93 Wis. 2d 148, 286 N.W.2d 547 (1980) (holding that the mortgage on the homestead was void because the husband's signature was forged; therefore, there was no compliance with the statute of frauds); Glinksi v. Sheldon, 88 Wis. 2d 509, 276 N.W.2d 815 (1979) (holding that the statute of frauds bars the enforcement of a real estate contract, but finding that a separate tort cause of action may exist against the spouse misrepresenting the non-signing spouse's acquiescence); Wangen v. Leum, 46 Wis. 2d 60, 174 N.W.2d 266 (1970) (holding that the agency relationship, either apparent or actual authority, is insufficient to transfer the homestead without the signature of a spouse); Rosenthal v. Fleck, 166 Wis. 598, 166 N.W 445 (1918) (holding that the contract to convey the homestead is void because the wife refused to sign the conveyance); Cumps v. Kiyo, 104 Wis. 656, 80 N.W 937 (1899) (holding that a spouse has an "absolute veto" upon the other spouse's power to alienate the homestead).

       We note that our decision here is consistent with decisions from other jurisdictions. See In re Howe's Estate, 183 P.2d 329 (Cal. Dist. Ct. App. 1947) (holding that the premarital agreement declaring that neither spouse should at "any time" claim "any interest" in the separate property of the other waived the homestead protection); Hartwell v. Blasingame, 584 So.2d 6 (Fla. 1991) (affirming the court of appeals' decision holding that the spouse waived the homestead rights in the prenuptial agreement); In re Estate of Arbeitman v. Rabin, 886 S.W.2d 644 (Mo. Ct. App. 1994) (holding that the language of a prenuptial agreement waived the statutory allowances, including the homestead allowance); In re Estate of Lula M. Moore v. Schermerhorn, 307 P.2d 483 (Or. 1957) (concluding that the prenuptial agreement can waive the homestead exemption, at least where no minor children are involved).

       We limit our decision to the facts presented because it would be inappropriate to speculate on issues or facts not before the court. Accordingly, we decline to address whether or how any changed circumstances — for example, the presence of minor children — would affect the holding in this case. Rather, we limit the scope of this decision to the facts presented here— where both spouses are acting together, through a premarital agreement, and their decisions regarding homestead property do not affect minor children. See Schermerhorn, 307 P.2d at 491 (declining to address whether a minor's rights could be affected by a prenuptial agreement of his or her parents waiving the homestead exemption because the present case did not involve minor children).

       There is no claim here that the premarital agreement is invalid. Accordingly, we conclude that the premarital agreement is valid, and that, as a binding contract, the spouses waived the statute of frauds homestead protection.


source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Sisakhone S. Douangmala, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 00-3292-CR.

      Oral argument April 10, 2002.

    Decided June 19, 2002.

    2002 WI 62
    (Also reported in 646 N.W.2d 1.)

      For the defendant-appellant-petitioner there were briefs by Robert R. Flatley and Will & Flatley, Green Bay, and oral argument by Robert R. Flatley.

    For the plaintiff-respondent the cause was argued by Shunette T. Campbell, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   ¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of an unpublished decision of the court of appeals. The court of appeals affirmed an order of the Circuit Court for Brown County, Donald R. Zuidmulder, Judge, denying the motion of Sisakhone S. Douangmala, the defendant, to withdraw his plea of no contest.

¶ 2. Wisconsin Stat. § 971.08(1)(c) (1999-2000) requires a circuit court to address a defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."

¶ 3. This case presents the following question: If a circuit court fails to give the deportation warning required by § 971.08(1)(c), when accepting a guilty or no-contest plea, is a defendant entitled to withdraw the plea later upon a showing that the plea is likely to result in the defendant's deportation, regardless of whether the defendant was aware of the deportation consequences of the plea at the time the defendant entered the plea?

¶ 4. We answer the question presented in the affirmative. We conclude that Wis. Stat. § 971.08(2) expressly sets forth the remedy to be granted upon a defendant's motion if a circuit court fails to advise a defendant about deportation consequences as required by § 971.08(1)(c) and if the defendant shows that the plea is likely to result in deportation. Section 971.08(2) states that under these circumstances the circuit court "shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea." The defendant in the present case fulfilled the conditions set forth in § 971.08(2), and accordingly we reverse the decision of the court of appeals affirming the order of the circuit court that denied the defendant's motion to withdraw his no-contest plea. We remand the cause to the circuit court to vacate the judgment of conviction and permit the defendant to withdraw his plea and enter another plea.

HH

¶ 5. For the purposes of this review, the facts are not in dispute.

¶ 6. The defendant, Sisakhone S. Douangmala, is a native of Laos and is not a U.S. citizen. On March 12, 1998, a criminal complaint was filed against the defendant. A preliminary hearing was scheduled for March 18, 1998, at which time defense counsel requested that an interpreter be appointed for the defendant. Defense counsel stated that "[although [the defendant] is English-speaking, he was born in Laos, [and] has been in the United States about ten years. The Laotian language is his primary language. He has not completed middle school.... We can converse on most levels, but the legal process, legal word terminology, I'm not so sure." No interpreter was found and none was involved in the present case.

¶ 7. On March 30,1998, the defendant waived his right to a preliminary hearing and an Information was filed. At that time, the circuit court queried the defendant as to whether he was having any difficulty understanding his attorney or understanding what was going on in the hearing. The defendant replied, "A little bit, yeah. . . . The language. I don't understand. Like I learned my language from the street; I don't learn it from the school. So basically if you come up with me with a big word, then I don't understand it."

¶ 8. On September 21, 1998, an Amended Information was filed, the defendant filed a Request to Enter Plea and Waiver of Rights form, and the defendant entered a plea of no contest. Question 17 of the Request to Enter Plea and Waiver of Rights form states:

I understand that if I am not a citizen of the United States of America, a plea of guilty or no contest to the offense(s) for which I am charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.

¶ 9. The defendant initialed the blank in the margin to indicate that he understood the statement. The form also noted that he had completed the ninth grade in school, and the attorney wrote that the defendant could read, write, and understand the English language "20% and with help."

¶ 10. Prior to accepting the plea of no contest, the circuit court questioned the defendant in detail, including asking if he was confident that he could understand what was going on in the proceeding, to which the defendant replied, "A little bit, not much." However, at no time during the questioning did the circuit court ask the defendant whether he understood what the word "deportation" meant. Moreover, the circuit court failed to comply with Wis. Stat. § 971.08(l)(c), which requires that before a court accepts á plea of guilty or no contest, it shall give the advice set forth in § 971.08(1)(c) that deportation may result from the plea.

¶ 11. On January 6, 1999, the defendant was sentenced to consecutive sentences totaling 25 years in prison, including ten years for being a party to the crime of burglary, ten years for being a party to the crime of robbery, and five years for false imprisonment.

¶ 12. Following his conviction, the defendant received a written notice from the federal government ordering him to appear at a deportation hearing. The defendant appeared and was subsequently ordered deported because of the conviction resulting from his no-contest plea.

¶ 13. The defendant filed a post-conviction motion seeking to withdraw his plea of no contest on several grounds, including the claim that he entered the plea without understanding the deportation consequences of the plea. The circuit court denied the motion. The court of appeals reversed the circuit court and remanded the cause for a hearing and findings of fact regarding the defendant's understanding of the possibility of deportation at the time he entered his no-contest plea.

¶ 14. On remand, the circuit court held an eviden-tiary hearing, at which the defendant testified that his first knowledge regarding deportation occurred when he was notified in prison about the deportation hearing. When asked whether he would have pled no contest if he understood that he could be deported to Laos, the defendant replied, "Oh, no, no, no." The defendant testified that he could not read the Request to Enter Plea and Waiver of Rights form and that he relied on his attorney to read it to him. He further testified to having no recall of a discussion with his attorney regarding Question 17 on the form, which discusses the potential for deportation if a defendant pleads guilty or no contest.

¶ 15. Defense counsel also testified at the eviden-tiary hearing. She stated that she had no independent recollection of discussing deportation or Question 17 with the defendant, but that it was her practice to go carefully through the form and to discuss with her clients the consequences of a plea, which could include deportation.

¶ 16. The circuit court denied the defendant's motion to withdraw his no-contest plea. The court of appeals affirmed the circuit court's denial, concluding that the State presented sufficient evidence to support the circuit court's finding that the defendant knew of the deportation consequences at the time he entered his plea.

¶ 17. We have stated the facts fully as they relate to whether the defendant knew of the deportation consequences of his plea at the time of his plea. The parties briefed and argued this issue. They disagree whether the State has failed to show by clear and convincing evidence that the defendant knowingly, voluntarily, and intelligently entered a plea of no contest. We do not address this issue because we conclude that it is not determinative of the question whether the circuit court must permit the defendant to withdraw his plea. Accordingly we asked the parties for supplemental letter briefs, asking them in effect to address the following issue, which we conclude is determinative: If a circuit court fails to give the deportation warning required by Wis. Stat. § 971.08(l)(c) when accepting a guilty or no-contest plea, is a defendant entitled to withdraw the plea later upon a showing that the plea is likely to result in deportation, regardless of whether the defendant was aware of the deportation consequences of the plea at the time the defendant entered the plea?

HH I — I

¶ 18. Three Wisconsin statutes come into play in resolving the issue presented: § 971.08(1)(c) (circuit court must give deportation advice); § 971.08(2) (a remedy for the failure of the circuit court to give advice); and § 971.26 (harmless error).

¶ 19. We begin our analysis with Wis. Stat. § 971.08(1)(c), which requires the circuit court to give a defendant advice about deportation before accepting a plea of guilty or no contest. Wisconsin Stat. § 971.08(1)(c) states:

(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
(c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."

¶ 20. The circuit court failed to comply with this statutory mandate when it did not address the defendant personally to advise him in the words set forth in Wis. Stat. § 971.08(1)(c) of the deportation consequences of the plea. Indeed, the circuit court failed to discuss with the defendant the issue of deportation at all prior to or during the plea hearing.

¶ 21. We agree with the court of appeals that Wis. Stat. § 971.08(1)(c) is a clear directive to the circuit courts and that it "not only commands what the court must personally say to the defendant, but the language is bracketed by quotation marks, an unusual and significant legislative signal that the statute should he followed to the letter."

¶ 22. The State argues that when a circuit court fails to comply with Wis. Stat. § 971.08(1)(c), the State must prove by clear and convincing evidence that the defendant knew of the deportation consequences of the plea at the time of the plea. The State argues that if it meets this burden, then the circuit court's failure to comply with § 971.08(1)(c) is harmless error and the defendant should not be permitted to withdraw the no-contest plea.

¶ 23. To evaluate the State's position about the effect of a violation of Wis. Stat. § 971.08(1)(c), we turn to § 971.08(2). Section 971.08(2) requires a circuit court to "vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea" when a defendant meets the following three conditions: (1) the defendant makes a motion; (2) the circuit court has failed to advise the defendant under § 971.08(1)(c) regarding the deportation consequences of a no-contest plea; and (3) the defendant shows that the plea is likely to result in his being deported.

¶ 24. Section 971.08(2) provides as follows:

If a court fails to advise a defendant as required by sub. (l)(c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.

¶ 25. The defendant in the present case has met all three conditions set forth in Wis. Stat. § 971.08(2). First, the defendant made the appropriate motion. Second, the circuit court failed to advise the defendant under § 971.08(1)(c) regarding the deportation consequences of a no-contest plea. Third, both the State and the defendant agree that the defendant has shown, pursuant to § 971.08(2), "that the plea is likely to result in the defendant's deportation." The precise words of § 971.08(2) lead inexorably to one conclusion in the present case: the circuit court must permit the defendant to withdraw his plea.

¶ 26. The State argues that this literal reading of Wis. Stat. § 971.08(2) is contrary to the legislative intent. The State submits that § 971.08(2) is ambiguous because neither it nor § 971.08(1)(c) refers to the possibility that a defendant might be independently aware of the deportation consequences at the time of entering the plea.

¶ 27. The State contends that the legislative history of 1985 Wis. Act 252, which created Wis. Stat. § 971.08(1)(c) and (2), reveals that the legislature's intent was to protect only those who unwittingly enter a guilty or no-contest plea. The State's position is that before a circuit court is required to grant a defendant's motion to withdraw a no-contest plea under § 971.08(2), the circuit court must determine whether the defendant understood the deportation consequences of the plea despite the circuit court's failure to advise the defendant personally pursuant to § 971.08(1)(c).

¶ 28. The State relies on materials submitted to the Legislative Reference Bureau by the legislators who requested the draft bill. One comment in the materials describes statutes similar to Wis. Stat. § 971.08 as going "a long way to alleviate the hardship and unfairness involved when an alien unwittingly pleads guilty or nolo contendere to a charge without being informed of the immigration consequences of such a plea."

¶ 29. In contrast to these materials in the bill drafting file, the Legislative Reference Bureau's analysis of 1985 Senate Bill 541 states: "The bill also describes the procedure for withdrawing a plea on the basis of the failure to give this advice [set forth in Wis. Stat. § 971.08(1)(c)]." Nothing in the Legislative Reference Bureau's analysis of the bill states that the defendant is granted relief under § 971.08(2) only if the defendant had unwittingly pled to the charge when the circuit court failed to inform the defendant of the deportation consequences of such a plea. Senate Bill 541 was adopted verbatim as § 971.08(1)(c) and (2).

¶ 30. The Legislative Reference Bureau's analysis of a bill is printed with and displayed on the bill when it is introduced in the legislature. All the legislators thus had the opportunity to read the Legislative Reference Bureau's analysis of the bill at issue here, but they did not necessarily know what was in the original drafting records.

¶ 31. The legislative history therefore persuades us that the legislature intended what the statute explicitly states. Section 971.08(2) states that if the conditions set forth therein are met (and they were in the present case), the circuit court "shall" vacate the judgment and shall permit the defendant to withdraw the plea. The word "shall" in a statute is presumed to be mandatory unless a different construction is necessary to carry out the legislature's clear intent. Nothing in Wis. Stat. § 971.08 points to a different interpretation of the word "shall" than an interpretation that the word signifies a mandatory act.

¶ 32. The third statute is Wis. Stat. § 971.26, a harmless-error statute providing that no proceeding shall be affected by reason of any defect or imperfection in matters of form that do not prejudice the defendant. Section 971.26 provides as follows:

Formal Defects. No indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant.

¶ 33. The State argues that the harmless-error rule applies to Wis. Stat. § 971.08(1)(c) and (2) and urges us to adhere to State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993), in which the court of appeals applied the harmless-error test.

¶ 34. In Chavez, a Paraguayan alien pled guilty to first-degree reckless homicide. The circuit court failed to advise him pursuant to Wis. Stat. § 971.08(1)(c) of the deportation consequences of his plea. After Chavez was convicted, he filed a motion to withdraw his plea, arguing that § 971.08(2) entitled him to withdraw his plea even though he was aware of the likelihood of deportation when he entered his plea. The circuit court denied the motion.

¶ 35. On appeal, Chavez argued that because Wis. Stat. § 971.08(2) states that a defendant "shall" have the right to withdraw a plea, the statute mandates that the circuit court allow Chavez to withdraw his plea regardless of his knowledge of the deportation consequences at the time of the plea. Chavez argued that his knowledge about deportation at the time of his plea was irrelevant under the statute.

¶ 36. The court of appeals concluded in Chavez that while Wis. Stat. § 971.08(2) could be read literally to mean what it says, an ambiguity was created by the interaction between § 971.08(2) and § 971.26, the harmless-error statute. The court of appeals further concluded that when Wis. Stat. § 971.08(2) is read in conjunction with § 971.26, the appropriate interpretation of § 971.08(2) is that the judgment of conviction may stand if the circuit court's failure to advise Chavez about the deportation consequences of the plea did not prejudice him. Chavez was not prejudiced, wrote the court of appeals, because he conceded he knew about the deportation consequences of the plea at the time of his plea without any advice from the court. It is not clear from the opinion whether Chavez showed that his plea was likely to result in his deportation.

¶ 37. The Chavez harmless-error rule has been followed in State v. Issa, 186 Wis. 2d 199, 209, 519 N.W.2d 741 (Ct. App. 1994); State v. Lopez, 196 Wis. 2d 725, 732, 539 N.W.2d 700 (Ct. App. 1995); and State v. Garcia, 2000 WI App 81, ¶ 1, 234 Wis. 2d 304, 610 N.W.2d 180. In Issa, Lopez, and Garcia, each defendant satisfied all three conditions of Wis. Stat. § 971.08(2).

¶ 38. In Issa, the defendant was not given Wis. Stat. § 971.08(1)(c) advice, and he was detained for deportation. Relying on the Chavez harmless-error rule, the court of appeals remanded the cause for an eviden-tiary hearing to determine whether in fact the defendant knew at the time of his plea that he was subject to deportation upon his conviction. If he knew, then no withdrawal of his plea would be allowed.

¶ 39. In Lopez, the defendant was not given Wis. Stat. § 971.08(1)(c) advice. The defendant was conclusively presumed deportable. An evidentiary hearing showed that the defendant knew at the time of the plea that he was subject to deportation upon his conviction. The failure to give the § 971.08(1)(c) advice was therefore harmless error.

¶ 40. In Garcia, the circuit court advised the defendant of the deportation consequences of his plea but not in the words of Wis. Stat. § 971.08(1)(c). The Immigration and Naturalization Service began deportation proceedings and then deported the defendant. The court of appeals concluded that the circuit court's failure to strictly follow the statute was harmless error because the defendant understood the deportation consequences at the time of the plea.

¶ 41. The State urges us to apply principles of stare decisis to affirm Chavez and its progeny in interpreting Wis. Stat. § 971.08(2). The State argues that Chavez was decided in 1993, that several court of appeals cases have applied the Chavez holding in cases falling within § 971.08(2), and that the legislature has not amended § 971.08(2) to overturn the Chavez holding. The State further urges that the harmless-error rule applied to § 971.08(2) has been a fair and workable rule; that the circuit court is the best arbiter of whether a defendant knew or understood the deportation consequences of the plea; and that the evidentiary hearing required under Chavez has not presented difficulties. The State argues that no compelling reason exists to justify overruling Chavez.

¶ 42. The principle of stare decisis is applicable to the decisions of the court of appeals. Stare decisis requires us to abide by precedent established by the court of appeals unless a compelling reason exists to overrule the precedent. The principle of stare decisis does not, however, require us to adhere to interpretations of statutes that are objectively wrong. That the legislature has not taken action with respect to a statute that a court has construed is entitled to some weight in determining legislative intent, but it is not conclusive. As we have explained, we conclude that the Chavez harmless-error interpretation of Wis. Stat. § 971.08(2) is objectively wrong under the language of the statute. Accordingly, we overrule Chavez, Issa, Lopez, and Garcia to the extent that these cases hold that harmless-error principles apply to a defendant who satisfies the conditions set forth in § 971.08(2).

r-H HH hH

¶ 43. Once again, we see the difficulties that persons who cannot hear, speak, or, as in the present case, understand the English language encounter in our legal system. The defendant in the present case stated several times that he was unable to understand much of the language being used during the legal proceedings at hand. In the Request to Enter Plea and Waiver of Rights form, the defendant's attorney wrote that the defendant's ability to read, write, and understand the English language was "20% and with help." The attorney testified that what she meant was "that he can read 20 percent and write 20 percent. In other words that's . .. his skill level, and beyond that he needs help in terms of reading, writing, and understanding the English language. In other words, that's his capacity, and he operates at about 20 percent of comprehension." Although an attempt was made to locate an interpreter, none was found. So no interpreter was provided.

¶ 44. This court has stated that fairness requires that those who speak and understand only languages other than English and who become defendants in Wisconsin's criminal courts should have the assistance of interpreters when needed. If a criminal defendant is personally unable to pay for the services of an interpreter, one will be provided at public expense.

¶ 45. As Wisconsin's immigrant population grows, obtaining qualified interpreters for an ever-growing, diverse, and multi-language population remains a high priority. The present case again illustrates the necessity of the legislative, executive, and judicial branches of government of this state working together to provide qualified interpreters for persons who cannot hear, speak, or understand English to preserve their meaningful access to the legal system.

IV

¶ 46. In summary, we conclude that Wis. Stat. § 971.08(1)(c) sets forth the language a circuit court must use to inform a defendant of the deportation consequences of entering a plea of guilty or no contest. In the present case, the circuit court did not advise the defendant in any manner regarding the deportation consequences of entering a plea of no contest. If a circuit court fails to give the statutorily mandated advice and if a defendant moves the court and demonstrates that the plea is likely to result in the defendant's deportation, then § 971.08(2) requires the circuit court to vacate the conviction and to permit the defendant to withdraw the guilty or no-contest plea. Applying § 971.08(2) in the present case, we reverse the decision of the court of appeals affirming the order of the circuit court that denied the defendant's motion to withdraw his no-contest plea. We remand the cause to the circuit court with direction to vacate the judgment of conviction and permit the defendant to withdraw his plea and enter another plea.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded.

        State v. Douangmala, No. 00-3292-CR, unpublished slip op. (Wis. Ct. App. July 31, 2001).

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

       We use the word "deportation" to mean deportation, exclusion from admission to this country, or denial of naturalization as described in Wis. Stat. § 971.08(1)(c) and (2).

       Wisconsin Stat. § 971.08(2) states, in relevant part: "If a court fails to advise a defendant as required by sub.(1)(c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea."

       In State v. Issa, 186 Wis. 2d 199, 202, 519 N.W.2d 741 (Ct. App. 1994), the court of appeals concluded that if the circuit court does not personally advise the defendant regarding deportation, the mere reference to the guilty plea questionnaire does not satisfy Wis. Stat. § 971.08(1)(c).

        See State v. Douangmala, No. 99-2403-CR, unpublished slip op. (Wis. Ct. App. June 20, 2000).

        State v. Garcia, 2000 WI App 81, ¶ 16, 234 Wis. 2d 304, 610 N.W.2d 180.

         See 1985 S.B. 541 Drafting Request LRB 4665 with attachment.

       Wis. Stat. § 13.92(1)(b)2.

       The court of appeals examined the original drafting records and concluded that "the legislature did not intend a windfall to a defendant who was aware of the deportation consequences of his plea." State v. Chavez, 175 Wis. 2d 366, 371, 498 N.W.2d 887 (Ct. App. 1993).
      The original drafting records indicate that several states had adopted a statute similar to the one the Wisconsin legislature was considering. The California court of appeals has interpreted the California statute similarly to how the Wisconsin court of appeals has interpreted the Wisconsin statute. See People v. Murillo, 39 Cal. App. 4th 1298, 1305-06 (Cal. Ct. App. 1995) (to withdraw a guilty plea, the defendant must establish that the trial court failed to advise of deportation consequences as required by statute and also that the defendant was unaware of deportation consequences when entering the plea and would not have entered the plea had the defendant been aware of the consequences).

        State v. Koopmanns, 210 Wis. 2d 670, 677, 563 N.W.2d 528 (1997); In Interest of C.A.K., 154 Wis. 2d 612, 621, 453 N.W.2d 897 (1990).

       Furthermore, Wis. Stat. § 805.18 directs courts to disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party. It also provides that no judgment shall be reversed unless the error affected the substantial rights of the party seeking to reverse or set aside the judgment. Section 805.18 governs criminal prosecutions by virtue of Wis. Stat. § 972.11. State v. Dyess, 124 Wis. 2d 525, 547, 370 N.W.2d 222 (1985).

       Two other cases related to Chavez are of interest. In State v. Baeza, 174 Wis. 2d 118, 125, 130, 496 N.W.2d 233 (Ct. App. 1993), the defendant was not given the § 971.08(1)(c) advice, and he was conclusively presumed to be deportable. The court of appeals ruled that the circuit court must allow Baeza to withdraw his plea. The Baeza case has been interpreted by the court of appeals as not involving the harmless-error test because Baeza did not know of the deportation consequences of his plea at the time of the plea. See State v. Issa, 186 Wis. 2d 199, 207 n.2, 519 N.W.2d 741 (Ct. App. 1994); Chavez, 175 Wis. 2d at 369.

        In State v. Rodriguez, 221 Wis. 2d 487, 494-95, 585 N.W.2d 701 (Ct. App. 1998), the circuit court gave the Wis. Stat. § 971.08(l)(c) advice, but the defendant thought he was a citizen. He was not a citizen, and the Immigration and Naturalization Service filed a notice of detainer. The court of appeals held that his misunderstanding of his citizenship did not render his plea constitutionally infirm as not voluntarily, knowingly, and intelligently entered.

        Cook v. Cook, 208 Wis. 2d 166, 186, 560 N.W.2d 246 (1997).

        Reiter v. Dyken, 95 Wis. 2d 461, 470-71, 290 N.W.2d 510 (1980).

       175 Wis. 2d 366.

       186 Wis. 2d 199.

       196 Wis. 2d 725.

       234 Wis. 2d 304.

       Wisconsin Stat. § 885.37 provides that if a person is charged with a crime and is unable to speak or understand English, "the court shall make a factual determination of whether the language difficulty... is sufficient to prevent the individual from communicating with his or her attorney, reasonably understanding the English testimony or reasonably being understood in English. If the court determines that an interpreter is necessary, the court shall advise the person that he or she has a right to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided for him or her at the public's expense. Any waiver of the right to an interpreter is effective only if made voluntarily in person, in open court and on the record." This procedure was not explicitly followed in the present case.

        State v. Piddington, 2001 WI 24, ¶ 43 n.23, ¶¶ 56-58, 241 Wis. 2d 754, 623 N.W.2d 528; State v. Naeve, 117 Wis. 2d 359, 365-66, 344 N.W.2d 181 (1984), overruled on other grounds by State v. Koch, 175 Wis. 2d 684, 693-94, 499 N.W.2d 152, cert. denied, 510 U.S. 880 (1993).

        Naeve, 117 Wis. 2d at 366.
      The Wisconsin state legislature recently adopted Wis. Stat. § 885.38 (published 2/15/02) governing interpreters in circuit and appellate courts.

       The 2000 U.S. census shows Hispanic and Asian populations in Wisconsin doubled in one decade. Larry Sandler and Greg Borowski, Madison, Dane County lead growth; Fox Valley grows twice as fast as state's southeastern region, Milwaukee Journal Sentinel, March 9, 2001, at 1A.

       For a discussion of issues regarding interpreters, see Committee to Improve Interpreting and Translation in the Wisconsin Courts, Report to the Director of State Courts, Improving Interpretation in Wisconsin Courts: And Justice for All (Oct. 2000).

        Piddington, 241 Wis. 2d 754, ¶ 58 (Abrahamson, C.J., concurring).


author: ¶ 1. PER CURIAM.

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

      No. 02-0877-D.

      Decided June 20, 2002.

    2002 WI 63
    (Also reported in 645 N.W.2d 612.)
   ¶ 1. PER CURIAM.

We review the stipulation filed by Attorney Robert J. Urban and the Office of Lawyer Regulation (OLR) incorporating by reference the allegations of a disciplinary complaint filed against Attorney Urban by OLR. The parties ask this court to adopt the factual findings and conclusions of law of misconduct as recited in that complaint and impose a 15-month suspension of Attorney Urban's license to practice law in this state.

¶ 2. The acts of misconduct as charged in the OLR complaint and now admitted by Attorney Urban in the stipulation, involve handling of an estate after a malpractice claim on behalf of the estate's beneficiary arose against him. The OLR complaint also charged Urban with knowingly making misrepresentations to the probate court and misleading the court as to the status of tax refund negotiations on behalf of an estate; failing to withdraw from the representation of an estate when the conflict of interest arose; failing to include the estate in a list provided to the OLR in connection with a previously imposed disciplinary order directing OLR to monitor Attorney Urban's compliance with certain conditions; failing to respond to OLR's investigative inquiry in connection with another estate; and, failing to disclose to OLR that he was handling estate assets in two different probate cases.

¶ 3. We approve the stipulation and determine that the seriousness of Attorney Urban's misconduct warrants the suspension of his license to practice law for 15 months. We further condition any future reinstatement of his license upon him demonstrating that he has completed his payment obligations under a settlement agreement he has entered into with the beneficiary in one of the estates.

¶ 4. Attorney Urban was licensed to practice law in Wisconsin in 1958 and practices in Milwaukee. He has previously been disciplined for misconduct: In 1984 he was publicly reprimanded for his lack of diligence in the probate of an estate and his failure to respond to the Board of Attorneys Professional Responsibility (BAPR), OLR's predecessor, during its investigation. Disciplinary Proceedings Against Urban, 119 Wis. 2d 889, 350 N.W.2d 138 (1984). In 1987 BAPR privately reprimanded him, with his consent, for his failure to forward files to a client despite numerous requests for them, failure to notify the client of the receipt of funds belonging to the client, and failure to respond promptly to BAPR's inquiries into the matter. Then, effective April 27, 1998, this court suspended Urban's license for six months for his misconduct consisting of his failure to act with reasonable diligence and promptness in handling four probate estates, his numerous misrepresentations to the probate court of the causes for his continued failure to complete one of those estates in a timely fashion, and his failure to cooperate with BAPR during its investigation of his conduct. In addition to the six-month suspension, this court ordered that following reinstatement of his license, Urban must periodically for two years file with BAPR a list of probate matters that he had pending in any court, along with pertinent information concerning those matters. Disciplinary Proceedings Against Urban, 216 Wis. 2d 462, 574 N.W.2d 651 (1998).

¶ 5. One of the four probate matters involved in that 1998 disciplinary suspension was the Estate of Carolyn Flicek; that estate is again one of the focuses of the current disciplinary complaint against Urban. Urban was appointed personal representative of that estate on March 8, 1990, and has also served as attorney of record for that estate. The sole heir of the Flicek Estate is the deceased's daughter, Carol Ann Stratmeyer (Stratmeyer).

¶ 6. When BAPR completed its 1996 investigation concerning Urban's misconduct in the Flicek Estate, that estate remained open; it was still open when this court issued its 1998 disciplinary order suspending Urban's license for six months. Urban's misconduct regarding the Flicek matter that led to the six-month suspension of his license consisted of his failure to timely file the inventory until approximately five months after the statutory deadline even though he had the necessary documentations to file it in a timely manner; in addition, on 11 occasions between December 13, 1990, and February 8, 1996, he misrepresented to the probate court that there were ongoing disputes with the federal and state taxing authorities and, on one occasion, he told the court that there was a tax refund pending despite the fact that Urban had never communicated with the Wisconsin Department of Revenue regarding the Flicek Estate.

¶ 7. In the instant disciplinary complaint filed by OLR against Urban it is alleged that after Urban's license to practice law was reinstated following his six-month suspension, this court conditioned that reinstatement upon his continuing compliance with certain requirements including: that every 90 days for a period of two years he must file with BAPR (now OLR) a list of all probate matters he had pending in any court, listing also the dates on which they were opened and listing all probate matters closed during the preceding 90-day period; he was also required to file a satisfactory explanation as to why any estate remained open for more than 18 months, and an estimate of when that estate would be closed; in addition, he was required to submit to BAPR on a quarterly basis, his trust account records.

¶ 8. The OLR's current complaint, to which Urban has stipulated, alleges that on September 28,1990, Urban remitted a federal estate tax tender of $210,000 to the Internal Revenue Service on behalf of the Flicek Estate. Over six years later, on November 1, 1996, Urban filed a federal estate tax return indicating that a refund of $84,007.94 was owed to the estate. However, when the IRS issued the closing letter for the Flicek Estate on June 3, 1997, that letter reflected that the federal estate tax totaled only $109,767.06 which was $100,232.94 less than the $210,000 Urban had tendered on behalf of the estate in September 1990. Urban did not inquire about a refund after he received the IRS estate closing letter.

¶ 9. During the subsequent ten months between June 1997 and April 1998, while Urban continued as the attorney for the Flicek Estate, he did not seek a refund of the overpayment of the federal estate tax. After his license was suspended for six months on April 27, 1998, Urban continued to act as personal representative for the Flicek Estate appearing at order to show cause hearings regarding that estate until October 8, 1998, when a stipulation and order was filed substituting Attorney Gregory Hays for Urban as the attorney of record for the Flicek Estate.

¶ 10. Attorney Hays wrote to the IRS that Urban, as personal representative of the estate, had retained him regarding the $84,007.94 refund Urban claimed was owed to the estate. The IRS responded that no refund could now be made because the tax code limits refunds to those amounts paid within three years preceding a refund request. The IRS noted that the estate tax return by Urban for the Flicek Estate in November of 1996 requested a tax refund; however, because the tax for that estate had been tendered to and received by the IRS in 1990 — over six years before the claim for a refund was made — the IRS wrote that no refund could now be made in either the $84,007.94 amount Urban first requested, or for $100,232.94, which was the amount identified as the overpayment in the IRS's estate tax closing letter in June 1997.

¶ 11. The current OLR complaint also alleges, and Urban has now stipulated, that as a result of his handling of the federal estate taxes for the Flicek Estate, the estate lost a tax refund in either the amount of $84,007.94 or $100,232.94.

¶ 12. Urban subsequently retained another attorney to assist him in obtaining the estate tax refund from the IRS for the Flicek Estate; however, that attorney, after investigation, advised Urban that it was not likely that a claim for a refund could be successfully pursued.

¶ 13. The OLR complaint alleges, and Urban now stipulates, that for the next 15 months until November of 2001, Urban took no steps to pursue the refund nor did he disclose to Ms. Stratmeyer, the Flicek Estate's sole heir, or the probate court, that the IRS had refused to make a refund.

¶ 14. The OLR complaint alleges, and Urban now stipulates, that in November of 2001, OLR staff asked Urban if he had notified Ms. Stratmeyer of the estate's potential malpractice claim against Urban for his mishandling of the estate tax refund matter. Urban then contacted Ms. Stratmeyer and told her for the first time that there was a potential malpractice claim against him for his handling of the tax refund matter for the estate. Urban also told Ms. Stratmeyer that she could consult another attorney about the issue but that he preferred to resolve the issue between them and that to do so he would give her a promissory note. Urban did not tell Ms. Stratmeyer that he had no malpractice insurance coverage.

¶ 15. The OLR complaint also alleges, and Urban stipulates, that during that same period, Urban attended various hearings in the probate court regarding the Flicek Estate and repeatedly advised the court: that the tax refund claim was the only asset that needed to be resolved in the estate; that he had obtained counsel to process the refund claim; and, that he believed a settlement with the IRS had been worked out and a final receipt and judgment in the estate would be forthcoming shortly. Urban repeated similar statements to the probate court over the next several months culminating in the probate court on November 28, 2001, issuing an order requiring Urban to show cause why he should not be removed as a personal representative of the Flicek Estate. Ultimately, Urban was not removed as personal representative but he was ordered to produce a supplemental final account for the estate updating the information contained in the final account he had filed on behalf of the estate in 1992.

¶ 16. While these matters were developing, in early 2000, BAPR staff sent Urban a letter reminding him that he was required to comply with the various conditions that had been imposed when the court reinstated his license to practice law after the six-month suspension. As noted, those conditions required Urban to periodically file information with BAPR including a list of all probate matters pending, the dates those matters were opened and all matters that had been closed, and an explanation as to why any estate Urban was handling had remained open for more than 18 months.

¶ 17. In February 2000 Urban responded to the letter from BAPR staff asserting that since his reinstatement in April 1999 he had only opened one probate matter, the Estate of Orville Stewart. In his letter to BAPR Urban did not disclose that he was still handling the Flicek Estate; consequently, Urban provided no explanation to BAPR regarding why the Flicek Estate had remained open for approximately ten years by that point.

¶ 18. The OLR complaint alleges, and Urban now stipulates, that in the six reports he submitted to BAPR/OLR between February 2000 and August 2001 he never disclosed that he was still handling the Flicek Estate and that it remained open.

¶ 19. On August 31, 2001, OLR staff discovered that Urban remained the attorney of record in the Flicek Estate. The OLR staff then contacted Urban asking for an explanation as to why he had not disclosed to OLR that he was still handling the Flicek Estate; he was also asked to provide a detailed report on the current status of that estate. The OLR also requested that Urban explain why he had not disclosed to the OLR that in December 2000 the probate court had issued an order requiring him to show cause relating to the Stewart Estate he was then handling.

¶ 20. Urban responded that he did not believe the reporting requirement imposed on him as a condition of license reinstatement applied to the Flicek Estate because he thought the condition was prospective only. Although he acknowledged that the probate court had issued an order to show cause in the Stewart Estate in December 2000 Urban did not explain why he had not disclosed that information to BAPR/OLR in any of the six reports he had filed.

¶ 21. The OLR complaint further alleges, and Urban now stipulates, that in his quarterly reports to BAPR/OLR submitted to comply with the conditions imposed for reinstatement, Urban had asserted that he was not handling funds relating to probate matters and that any funds he had received had been deposited into estate accounts and handled by the respective personal representatives directly. Urban did not report that as the personal representative in both the Flicek and Stewart Estates, he controlled the respective checking accounts for those estates.

¶ 22. The OLR complaint asserts six specific professional misconduct counts against Urban including:

COUNT ONE

By representing the Flicek Estate while the estate had a potential malpractice claim against him, Urban represented a client when that representation was materially limited by his responsibilities to another client or a third person, or by his own interests, in violation of SCR 20:1.7(b).

COUNT TWO

By failing to withdraw as the attorney for the Flicek estate after a conflict of interest arose, Urban failed to withdraw from representation of a client in a situation where the continued representation resulted in a continuing violation of the Rules of Professional Conduct, in violation of SCR 20:1.16(a)(1).

COUNT THREE

By misrepresenting to the probate court on multiple occasions that he was expecting a tax refund from the IRS, and by repeatedly misleading the court regarding the status of negotiations with the IRS, Urban knowingly made false statements of fact to a tribunal, in violation of SCR 20:3.3(b), and Urban engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

COUNT FOUR

By failing to list the Estate of Carolyn Flicek as a probate matter he was handling in response to BAPR's request for a "list of all probate matters that [he had] pending in any court," Urban failed to disclose a fact necessary to correct a misrepresentation known by Urban to have arisen in the matter, or knowingly failed to respond to a lawful demand for information from a disciplinary authority, in violation of SCR 20:8.1(b), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

COUNT FIVE

By failing to respond to OLR's inquiry as to whether an order to show cause had been issued in the Stewart Estate, Urban failed to disclose the fact necessary to correct misapprehension known by Urban to have arisen in the matter, or knowingly failed to respond to a lawful demand for information from a disciplinary authority, in violation of SCR 20:8.1(b), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of SCR 20:8.4(c).

COUNT SIX

By advising BAPR/OLR, while he was subject to its supervision, that estate funds were being handled by the personal representatives of the estate that he was probating, yet failing to disclose that he was the personal representative for those two estates, Urban failed to disclose a fact necessary to correct a misapprehension known by Urban to have arisen in the matter, or knowingly failed to respond to a lawful demand for information from a disciplinary authority, in violation of SCR 20:8.1(b), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of SCR 20:8.4(c).

¶ 23. The stipulation between Attorney Urban and OLR reports that Urban's misconduct has been somewhat mitigated in that the Flicek Estate's claim for the tax refund was assigned to the sole heir, Ms. Stratmeyer, who then retained independent counsel. That counsel has verified that Ms. Stratmeyer's claim has been satisfied pursuant to a settlement agreement between Urban and Ms. Stratmeyer under which Attorney Urban made an $88,000 payment to Ms. Stratm-eyer in February of 2002 and has given her a $12,000 personal promissory note to be paid by him by December 31, 2003.

¶ 24. We adopt the findings of fact and conclusions of law set forth in the parties' stipulation. Attorney Urban has engaged in serious misconduct warranting suspension of his license to practice law. We believe that Attorney Urban's pattern of misconduct relating to probate matters, especially his pattern of continued misrepresentations to the probate court in the Flicek Estate even though he had previously been disciplined for making similar misrepresentations to the probate court regarding the very same estate, warrants a substantial period of suspension of his license to practice law in this state. Accordingly,

¶ 25. IT IS ORDERED that the license of Robert J. Urban to practice law in Wisconsin is suspended for 15 months effective July 25, 2002.

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

¶ 27. IT IS FURTHER ORDERED that any subsequent reinstatement of Robert J. Urban's license to practice law in this state is conditioned upon a showing that he has complied with and completed his obligations under the settlement agreement he has reached with the heir in the Flicek Estate.

¶ 28. IT IS FURTHER ORDERED that Robert J. Urban comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation (OLR) and the supreme court rules applicable to the lawyer regulation system were also revised. Although some of the conduct giving rise to this case occurred prior to October 1, 2000, the OLR was the investigative body that filed this disciplinary complaint. References to supreme court rules in this opinion will be to those currently in effect unless specifically noted.