source: Caselaw Access Project

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

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. Edward Terrell Jennings, Defendant-Respondent.
    Supreme Court

      No. 00-1680-CR.

      Oral argument October 3, 2001.

    Decided May 1, 2002.

    2002 WI 44
    (Also reported in 647 N.W.2d 142.)

      For the plaintiff-appellant the cause was argued by Gregory M. Weber, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the defendant-respondent there was a brief and oral argument by Margaret A. Maroney, assistant state public defender.
   DIANE S. SYKES, J.

¶ 1. This is an interlocutory appeal of a circuit court order suppressing the defendant's custodial statement in which he implicated himself in a homicide. The circuit court concluded that the defendant's statement was made after he invoked his right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966). The court's order was based primarily on Wentela v. State, 95 Wis. 2d 283, 290 N.W.2d 313 (1980), a decision of this court that the State asserts has been effectively overruled by the United States Supreme Court's decision in Davis v. United States, 512 U.S. 452 (1994).

¶ 2. The court of appeals certified the case to us on the question of "whether the court of appeals may, must, or must not follow a decision of the Wisconsin Supreme Court which is directly on point, but which appears to conflict with subsequent precedent from the United States Supreme Court."

¶ 3. We conclude that when confronted with a direct conflict between a decision of this court and a later decision of the United States Supreme Court on a matter of federal law, the court of appeals may, but is not required to, certify the case to us pursuant to Wis. Stat. § 809.61. If it does not, or if this court declines to accept certification, the Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court.

¶ 4. The underlying substantive issue in the case concerns the sufficiency of the defendant's request for counsel during his custodial interrogation — more specifically, whether his statement, "I think maybe I need to talk to a lawyer," unequivocally invoked his right to counsel such that any subsequent statements must be suppressed. In Wentela, 95 Wis. 2d at 292, we held that the statement, " I think I need an attorney,' or 'I think I should see an attorney,'" constituted a sufficient request for counsel. In State v. Walkowiak, 183 Wis. 2d 478, 486-87, 515 N.W.2d 863 (1994), we further held that when a suspect makes an equivocal reference to counsel — there, it was the question "Do you think I need an attorney?" — then "[t]he police must cease all interrogation, except they may attempt to clarify the suspect's desire for counsel."

¶ 5. The validity of both holdings — what constitutes a sufficient request for counsel and the obligations of the police when an ambiguous or equivocal request is made — was called into question by the Supreme Court's decision in Davis. There, the Supreme Court concluded that the statement "Maybe I should talk to a lawyer" was equivocal and therefore not sufficient to invoke the right to counsel under the Fifth Amendment. Davis, 512 U.S. at 459-62. The Court further held that when a suspect makes an ambiguous or equivocal reference to counsel, the police need neither cease questioning nor clarify the suspect's desire for counsel, although the Court did say that the latter "will often be good police practice." Id. at 461.

¶ 6. The Supreme Court's decision in Davis means that Wentela and Walkowiak are no longer valid as a matter of Fifth Amendment law, and we therefore overrule them. We also decline, in this instance, to interpret the Wisconsin Constitution's right against self-incrimination more broadly than the federal constitutional right. Accordingly, we reverse the circuit court's suppression order.

I

¶ 7. On June 25, 1999, defendant Edward Jennings was arrested in Loves Park, Illinois, in connection with a Rock County, Wisconsin, homicide investigation. After Jennings' arrest, two officers from the City of Beloit Police Department, Detectives Kreitzmann and Anderson, went to Loves Park to interview Jennings.

¶ 8. Detective Kreitzmann advised Jennings of his constitutional rights pursuant to Miranda and obtained a valid waiver of those rights. Detective Kre-itzmann, interviewing Jennings alone, began questioning him about the Rock County homicide. Jennings, who is blind, initially denied any knowledge or involvement. After further questioning, Jennings admitted that he was present at the scene when the homicide occurred and that he had heard three gunshots.

¶ 9. When Detective Kreitzmann asked Jennings if he would put the statement in writing, Jennings replied, "I think maybe I need to talk to a lawyer." Detective Kreitzmann immediately asked Jennings, "Are you telling me you want a lawyer?" Jennings responded with the same statement: "I think maybe I need to talk to a lawyer." Detective Kreitzmann testified that at that point, because he was unable to clarify whether Jennings was specifically asking for an attorney, and "to be on the safe side," he stopped questioning Jennings and left the interrogation room.

¶ 10. Approximately 15 minutes later, Detective Anderson entered the room and began to question Jennings. Detective Anderson first asked Jennings if he remembered his Miranda warnings. Jennings replied that he did. Detective Anderson also asked Jennings if he would be willing to speak with him. Jennings said that he would. During the questioning by Detective Anderson, Jennings again placed himself at the scene of the crime, and implicated himself in the homicide by describing a confrontation between himself, the victim, and several other people that immediately preceded the shooting. Jennings did not ask for a lawyer at any time during Detective Anderson's questioning.

¶ 11. Jennings was charged with being party to the crime of first-degree intentional homicide in violation of Wis. Stat. §§ 940.01(1) and 939.05 (1999-2000) Jennings moved to suppress the statement he made to Detective Anderson, claiming that it was given after he had invoked his right to counsel. The Rock County Circuit Court, John W Roethe, Judge, granted the motion, concluding that Jennings had unambiguously invoked his right to counsel, and citing Davis, Wentela, and State v. Long, 190 Wis. 2d 386, 526 N.W.2d 826 (Ct. App. 1994). The State appealed pursuant to Wis. Stat. § 974.05(1)(d)2 and 3, and the court of appeals certified the case to us.

II

¶ 12. In its certification order, the court of appeals has essentially asked for guidance in resolving the problem of a direct conflict between a controlling decision of this court and a subsequent decision of the United States Supreme Court. The State and the defendant suggest a procedural solution: a rule requiring the court of appeals to certify to this court, pursuant to Wis. Stat. § 809.61, any case that presents a conflict between our precedent and a subsequent decision of the United States Supreme Court.

¶ 13. We clearly have the power to impose such a rule. Article VII, Section 3 of the Wisconsin Constitution expressly confers upon this court superintending and administrative authority over the lower state courts. The constitutional grant of superintending and administrative authority "is a grant of power. It is unlimited in extent. It is indefinite in character." State ex rel. Fourth National Bank of Philadelphia v. Johnson, 103 Wis. 591, 611, 79 N.W. 1081 (1899).

¶ 14. Article VII, Section 3 has been described as establishing "a duty of the supreme court to exercise . . . administrative authority to promote the efficient and effective operation of the state's court system." In re Grady, 118 Wis. 2d 762, 783, 348 N.W.2d 559 (1984). Accordingly, within this administrative power and duty, is "the inherent power to adopt those statewide measures which are absolutely essential to the due administration of justice in the state." In re Fading, 70 Wis. 2d 508, 518, 235 N.W.2d 409 (1975).

¶ 15. Although unquestionably broad and flexible, our superintending authority will not be invoked lightly. In re Phelan, 225 Wis. 314, 321, 274 N.W. 411 (1937); see also Arneson v. Jezwinski, 206 Wis. 2d 217, 226, 556 N.W.2d 721 (1996); State v. Kendall, 94 Wis. 2d 63, 66, 287 N.W.2d 758 (1980); McEwen v. Pierce County, 90 Wis. 2d 256, 269-70, 279 N.W.2d 469 (1979). Whether this court in a given situation will exercise its superintending authority is a matter of "judicial policy rather than one relating to the power of this court." Phelan, 225 Wis. at 320.

¶ 16. We decline to exercise our superintending authority to interpose a rule requiring certification of all cases that present a conflict between our precedent and subsequent United States Supreme Court precedent. Requiring certification would interfere with the discretion of the court of appeals in its power to decide cases before it, including the decision whether or not to certify a case to this court. See Phelan, 225 Wis. at 320 (superintending authority generally will not be exercised to interfere with the discretion of another court).

¶ 17. While we decline to establish a rule requiring it, certification will certainly be highly appropriate in a case such as this, in which a controlling decision of this court has arguably been overruled by a subsequent decision of the United States Supreme Court. Only this court may "overrrule, modify or withdraw language from a previous [state] supreme court case." In re Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997); see also State v. Grawien, 123 Wis. 2d 428, 432, 367 N.W.2d 816 (Ct. App. 1985).

¶ 18. But certification need not be mandatory, because the Supremacy Clause of the United States Constitution governs the outcome of any direct conflict between state and federal supreme court precedent on a matter of federal law, regardless of whether the conflict is resolved in the court of appeals or here. All state courts, of course, are bound by the decisions of the United States Supreme Court on matters of federal law. See State v. Mechtel, 176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993); see also United Sates ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970).

¶ 19. Accordingly, the court of appeals may, in its discretion, and pursuant to Wis. Stat. § 809.61, certify to this court a case that presents a conflict between a decision of this court and a subsequent decision of the United States Supreme Court on a matter of federal law. If it declines to do so, or if this court declines to accept certification of such a case, the court of appeals must necessarily adhere to the subsequent United States Supreme Court decision, although it means deviating from the conflicting earlier decision of this court. The court of appeals must not follow a decision of this court on a matter of federal law if it conflicts with a subsequent controlling decision of the United States Supreme Court. See e.g., Long, 190 Wis. 2d at 396; State v. Whitaker, 167 Wis. 2d 247, 261, 481 N.W.2d 649 (Ct. App. 1992).

I — I 1 — I ) — 4

¶ 20. The substantive issue in this case concerns the sufficiency of the defendant's invocation of his right to counsel mid-way through his custodial interrogation. This is a question of constitutional fact that we review under a two-part standard. State v. Henderson, 2001 WI 97, ¶ 16, 245 Wis. 2d 345, 629 N.W.2d 613. We uphold the circuit court's findings of historical or evidentiary fact unless they are clearly erroneous. Id. We review independently the lower court's application of constitutional principles to those evidentiary facts. Id.

¶ 21. In State v. McMorris, 213 Wis. 2d 156, 570 N.W.2d 384 (1997), a Sixth Amendment right to counsel case, we discussed the rationale for the two-part standard of review applicable to questions of constitutional fact:

Questions of constitutional fact are sometimes referred to as mixed questions of fact and law, requiring the court to determine what happened and whether the facts found fulfill a particular legal standard. Ordinarily, when reviewing a mixed question of fact and law, appellate courts engage in a two-part inquiry. The first inquiry relates to the circuit court's findings of fact. Neither the court of appeals nor this court will reverse a circuit court's findings of historical or evidentiary fact unless they are clearly erroneous. The second inquiry relates to the question whether the historical or eviden-tiary facts satisfy the relevant constitutional standard. Such an inquiry is made by this court independent of the circuit court and court of appeals. However, in deciding whether the facts satisfy the constitutional standard this court may benefit from and draw upon the reasoning of the circuit court and court of appeals and may draw upon the circuit court's observational advantage. Nevertheless, this court independently measures the facts against a uniform constitutional standard.
The principal reason for independent appellate review of matters of constitutional fact is to provide uniformity in constitutional decision making. In applying the skeletal constitutional rule, appellate courts flesh out the rule and provide guidance to litigants, lawyers, and trial and appellate courts.

Id. at 165-66 (footnotes omitted).

¶ 22. There is no dispute in this case that Jennings was properly advised of his rights under Miranda and that he voluntarily waived his right to remain silent and agreed to be questioned by Beloit Police Detectives Kreitzmann and Anderson without an attorney present. The central evidentiary findings relevant to the suppression motion concern the circumstances surrounding Jennings' mid-interrogation statement to Detective Kreitzmann, "I think maybe I need to talk to a lawyer."

¶ 23. According to the circuit court's written factual findings, Jennings made the reference to a lawyer after Detective Kreitzmann asked if he would be willing to put his verbal statement in writing. When Jennings said, "I think maybe I need to talk to a lawyer," Detective Kreitzmann "tried to clarify if the defendant was asking for an attorney, and could never get the defendant to give a definitive yes or no answer as to whether he wanted an attorney." Detective Kreitzmann then terminated the interrogation "because he decided to take the safe route." Finally, "about fifteen minutes later, Detective Anderson began questioning the defendant." These findings of historical fact are not clearly erroneous (no one argues that they are), and we therefore uphold them.

¶ 24. The real dispute here is whether these historical facts are sufficient to establish an unequivocal request for counsel such that Jennings' subsequent statements to Detective Anderson must be suppressed. Applying Davis, Wentela and Long, the circuit court concluded that Jennings' statement, "I think maybe I need to talk to a lawyer," was sufficient to constitute an unambiguous request for counsel.

¶ 25. Jennings characterizes this as a finding of evidentiary or historical fact entitled to deference. It is not. The legal sufficiency of a defendant's invocation of the right to counsel during a custodial interrogation is determined by the application of a constitutional standard to historical facts. As noted above, an appellate court independently measures the historical facts against a uniform constitutional standard, benefiting from, but not deferring to, the circuit court's decision. See e.g., Long, 190 Wis. 2d at 393-97; State v. Esser, 166 Wis. 2d 897, 904, 480 N.W.2d 541 (Ct. App. 1992).

¶ 26. The constitutional standards applicable here derive from Miranda, Edwards v. Arizona, 451 U.S. 477 (1981), and Davis. In Miranda, the United States Supreme Court recognized the right to have counsel present during custodial interrogation to safeguard the right against compulsory self-incrimination under the Fifth and Fourteenth Amendments. Miranda, 384 U.S. at 467-74. In Edwards, the Supreme Court held that the police must immediately cease questioning a suspect who clearly invokes the Miranda right to counsel at any point during custodial interrogation. Edwards, 451 U.S. at 484-85. The Court in Edwards concluded that "it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." Id. at 485.

¶ 27. While the Supreme Court in Edwards established a bright-line, no-further-questioning rule applicable to clear and unequivocal requests for counsel during custodial interrogation, it did not address the subject of requests for counsel that were not so clear and unequivocal. Thirteen years later it did so, in Davis.

¶ 28. The case arose in the context of a Navy court martial. Robert Davis was under investigation by the Naval Investigative Service (NIS) for the beating death of another sailor. Davis, 512 U.S. at 454. He was interviewed by NIS agents and, after being advised of his rights consistent with Miranda and the Uniform Code of Military Justice, waived his right to remain silent and his right to counsel. Id. at 454-55. After about an hour and a half of questioning he said, "Maybe I should talk to a lawyer." Id. at 455. The NIS investigators attempted to clarify Davis's statement, and Davis responded, "No, I'm not asking for a lawyer." Id. Davis then continued to answer questions for about another hour. Id. He then said, "I think I want a lawyer before I say anything else." Id. The NIS agents then stopped all questioning. Id.

¶ 29. Davis moved to suppress his statement. The military judge denied the motion, Davis was convicted, and both the Navy-Marine Corps Court of Military Review and the Court of Military Appeals affirmed. Id. at 455-56. The Supreme Court granted certiorari and held that a suspect must clearly and unambiguously request counsel in order for the Edwards rule to apply. Id. at 458-59. "If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Id. at 459.

¶ 30. The Supreme Court emphasized that the inquiry is an objective one. Id. "Although a suspect need not 'speak with the discrimination of an Oxford don,' post, at 476 (Souter, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. Any lower standard " 'would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity.'" Id. at 460 (citing Michigan v. Mosley, 423 U.S. 96, 102 (1975)).

¶ 31. The Supreme Court declined to extend Edwards to require officers to stop an interrogation when a suspect makes any reference to an attorney. Davis, 512 U.S. at 459-60. In addition, the Supreme Court refused to adopt a requirement that officers must ask clarifying questions to resolve an ambiguous reference to counsel. Id. at 461. "[W]hen a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney." Id. But the Court was "unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue." Id. Davis's statement, "Maybe I should talk to a lawyer," was not a clear and unequivocal request for counsel, and his conviction was affirmed. Id. at 462.

¶ 32. The two holdings of Davis — that officers need neither stop an interrogation nor ask clarifying questions when a suspect makes an equivocal request for counsel — effectively overrule two prior decisions of this court, at least as a matter of federal constitutional law. In Wentela, a post -Miranda, pr e-Edwards case, we held that the defendant's statement "I think I need an attorney" or "I think I should see an attorney" constituted a sufficient request for counsel. Wentela, 95 Wis. 2d at 292. We declined, however, to adopt a per se rule requiring the police to cease questioning a suspect who invokes his right to counsel, borrowing instead from the more flexible approach of Michigan v. Mosley, 423 U.S. 96, a "right to remain silent" case. Wentela, 95 Wis. 2d at 293-95; see also Leach v. State, 83 Wis. 2d 199, 265 N.W.2d (1978).

¶ 33. A year after Wentela was decided, Edwards established the bright-line rule requiring cessation of questioning when a suspect clearly requests counsel, effectively supplanting the latter holding of Wentela. Similarly, the former holding of Wentela — that the statement "I think I need an attorney" or "I think I should see an attorney" is sufficient to invoke the right to counsel — has been overruled by the conclusion in Davis that the nearly identical statement, "Maybe I should talk to a lawyer" is equivocal and therefore insufficient for purposes of the Edwards rule. Accordingly, based upon Edwards and Davis, we hereby expressly overrule Wentela in its entirety.

¶ 34. Davis also undermines our decision in Walkowiak. There, we held ¿hat, tfce defendant's statement, "Do you think I need an attorney?" was equivocal and therefore insufficient to invoke the right to counsel. Walkowiak, 183 Wis. 2d at 479. We then adopted a rule that when a suspect makes an equivocal or ambiguous reference to counsel, "[t]he police must cease all interrogation, except they may attémpt to clarify the suspect's desire for counsel. Interrogation may not begin anew until the ambiguity is resolved." Id. at 486-87.

¶ 35. Our decision in Walkowiak was tethered to the Fifth and Fourteenth Amendments and •Miranda/Edwards jurisprudence up to that point. Davis was decided a month later. The following year, we acknowledged the conflict between Walkowiak and Davis, but did not explicitly overrule Walkowiak. See State v. Jones, 192 Wis. 2d 78, 95 n.4, 532 N.W.2d 79 (1995). We now do so.

¶ 36. Applying Davis, we conclude that Jennings' statement to Detective Kreitzmann, "I think maybe I need to talk to a lawyer," was substantially equivalent to Davis's statement, "Maybe I should talk to a lawyer." As such, it was "ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel." Davis, 512 U.S. at 459. Therefore, Jennings' statement was insufficient to invoke his right to counsel under the Fifth and Fourteenth Amendments, and the officers were not required to cease questioning him. Nor were they required to clarify his statement. Accordingly, there is no federal constitutional impediment to the admission of Jennings' statement to Detective Anderson.

IV

¶ 37. Finally, we are invited to interpret the Wisconsin Constitution's right against self-incrimination more broadly than the federal right, and establish a state constitutional rule requiring the police to clarify ambiguous references to counsel during custodial interrogations. This implicates "[i]ssues of federalism and sovereignty," since "[t]he holdings of the United States Supreme Court do 'not affect the State's power to impose higher standards . .. than required by the Federal Constitution if it chooses to do so.'" State v. Ward, 2000 WI 3, ¶ 54, 231 Wis. 2d 723, 604 N.W.2d 517 (quoting Cooper v. California, 386 U.S. 58, 62 (1967)).

¶ 38. We have said that "[t]his court. . . will not be bound by the minimums which are imposed by the Supreme Court of the United States if it is the judgment of this court that the Constitution of Wisconsin and the laws of this state require that greater protection of citizens' liberties ought to be afforded." State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977). We have further recognized that it is "our responsibility to examine the State Constitution independently. This duty exists even though our conclusions in a given case may not differ from those reached by the [United States] Supreme Court when it interprets" the federal constitution. Ward, 2000 Wl 3, ¶ 59.

¶ 39. However, we have also noted that any decision to engage in an upward departure from the federal constitutional standards adopted by the United States Supreme Court for purposes of our own state constitutional law must itself be grounded in requirements found in the state constitution or laws. State v. Agnello, 226 Wis. 2d 164, 180-81, 593 N.W.2d 427 (1999). "Where . . . the language of the provision in the state constitution is 'virtually identical' to that of the federal provision or where no difference in intent is discernible, Wisconsin courts have normally construed the state constitution consistent with the United States Supreme Court's construction of the federal constitution." Id. (citing State v. Tompkins, 144 Wis. 2d 116, 133, 423 N.W.2d 823 (1988)).

¶ 40. The state constitutional right against compulsory self-incrimination is textually almost identical to its federal counterpart. In Agnello, we concluded that because the two provisions were "nearly identical," the state constitution did not require that the volun-tariness of a confession be proven beyond a reasonable doubt when the United States Supreme Court had required only the lower preponderance standard for determining compliance with Miranda. Id. at 181-82.

¶ 41. Similarly, in State v. Sorenson, 143 Wis. 2d 226, 259-60, 421 N.W.2d 77 (1988), we declined to expand our state constitutional jurisprudence beyond the requirements of the federal constitution on the issue of a prosecutor's cross-examination and closing argument comment on a defendant's post-arrest silence when a defendant testifies in his own defense:

The defendant further argues that art. I, sec. 8 of the Wisconsin Constitution, which protects against self-incrimination, might be interpreted more liberally than federal fifth amendment provisions to shield his silence. In the past, our cases interpreting the right to remain silent have paralleled federal analysis used for the United States Constitution and Amendments.. .. Further, in comparing the language of the federal self-incrimination provision with that of the Wisconsin section, we note the federal amendment uses the word "shall," while the Wisconsin Constitution uses the word, "may." While both protect against self-incrimination there can be no logical argument that the state constitutional provision creates a broader right since the language of the Wisconsin Constitution is certainly no stronger than that used in the United States Constitution. As a result, we find no basis for interpreting state constitutional language beyond the articulated scope of federal constitutional guarantees in this case.

Id. at 259-60 (citations and footnotes omitted).

¶ 42. The same analysis applies here. We cannot discover any meaningful difference between the state and federal constitutional protections against compulsory self-incrimination that would justify or require a "third layer of prophylaxis" that the United States Supreme Court has found unnecessary. We agree with Justice O'Connor's observation in Davis that the police are well-advised to clarify a suspect's ambiguous reference to counsel, in order to "protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and . . . minimize the chance of a confession being suppressed due to subsequent judicial second-guessing. ..." Davis, 512 U.S. at 461. We decline, however, to impose a clarification requirement as a matter of state constitutional law.

V

¶ 43. Accordingly, we conclude that the court of appeals may, but need not necessarily, certify to this court a case that presents a direct conflict between a decision of this court and a subsequent decision of the United States Supreme Court on a matter of federal law. The Supremacy Clause of the United States Constitution requires all state courts to adhere to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court. We overrule both Wentela and Walkowiak in light of Davis, and decline to adopt a state constitutional rule requiring the police to cease an interrogation and clarify a suspect's equivocal or ambiguous reference to counsel, but note that it is better practice for the police to do so.

¶ 44. Because Jennings' statement to Detective Kreitzmann, "I think maybe I need to talk to a lawyer," was equivocal under Davis and therefore insufficient to invoke his right to counsel under Edwards and Miranda, the officers were not constitutionally required to stop questioning him, nor were they required to clarify his intentions regarding counsel. We reverse the circuit court's order granting Jennings' suppression motion, and remand for further proceedings.

By the Court. — The order of the Rock County Circuit Court is reversed and the cause is remanded.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 45. (dissenting). Relying on a five-justice opinion in Davis v. United States, 512 U.S. 452 (1994), this court's majority opinion disregards Wisconsin jurisprudence dating back to 1859, and overrules two Wisconsin cases.

¶ 46. The majority opinion holds that when a suspect makes an equivocal request for an attorney during custodial questioning, law enforcement officers can continue the questioning as if the suspect had said nothing about an attorney.

¶ 47. I dissent for three reasons: The majority opinion contravenes concepts of federalism and state sovereignty; Wisconsin's rule requiring law enforcement officers to clarify a suspect's equivocal request for an attorney is the prudent rule; and Wisconsin constitutional jurisprudence supports interpreting the Wisconsin Constitution as requiring law enforcement officers to clarify a suspect's equivocal request for an attorney. I cannot join an opinion that undermines the interests of law enforcement to safeguard confessions from suppression by a court. I cannot join an opinion that jeopardizes the right of a suspect to an attorney and a full and fair trial. And I cannot join an opinion that ignores more than 140 years of Wisconsin law.

HH

¶ 48. The U.S. Supreme Court has made it clear that the Miranda safeguards were not intended to create a constitutional straitjacket hindering state efforts at reform. Rather, the Court encouraged states to "continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws."

¶ 49. Under our system of federalism and state sovereignty, the U.S. Supreme Court has tossed the ball back to each state court to determine whether the state should require, as a matter of state constitutional law or as a matter of a state supreme court's superintending authority, that law enforcement officers clarify a suspect's equivocal request for an attorney. This court has, in my opinion, now fumbled that ball.

II

¶ 50. The Wisconsin rule requiring law enforcement officers to clarify a suspect's equivocal request for an attorney is generally accepted as the prudent rule to protect suspects who do not have a confident command of the English language or do not assert themselves.

¶ 51. In Davis, during custodial interrogation the suspect said "Maybe I should talk to a lawyer." The federal officers in Davis questioned the suspect to clarify whether he wanted an attorney. The suspect then unequivocally stated that he was not asking for an attorney. The questioning continued. The suspect argued before the U.S. Supreme Court that questioning should have stopped at his equivocal request for an attorney. The U.S. Supreme Court rejected the suspect's argument and held that questioning did not have to cease at the equivocal request.

¶ 52. The five-justice majority in Davis declared, in what would probably ordinarily be labeled dicta, that they were not willing to impose a federal constitutional requirement that a law enforcement officer must clarify a suspect's equivocal request for an attorney before continuing the questioning. The four-justice opinion concurring in the judgment concluded that to ensure constitutional rights clarification by a law enforcement officer should be required.

¶ 53. In further dicta, the five-justice majority strongly advocated that law enforcement officers clarify a suspect's equivocal request for an attorney, stating that "it will often be good police practice for the interviewing officers to clarify whether or not [a suspect] actually wants an attorney." The majority opinion in the present case similarly opines. See majority opinion at ¶ 42.

¶ 54. The majority opinion cites no authority for the proposition that it is unwise for law enforcement officers to ask clarifying questions. Indeed, the authors of the seminal work on law enforcement interrogation procedure stated that in light of Davis, the "prudent course" for an interrogator to follow after receiving a suspect's equivocal request for an attorney is to clarify the suspect's desires by simply asking whether the suspect wants an attorney.

¶ 55. I conclude that it is prudent, as a matter of our superintending authority, for this court to require this good practice for the admission of evidence obtained at the custodial interrogation. As the U.S. Supreme Court explained in Davis, the practice of clarifying the suspect's equivocal request for an attorney protects the suspect's constitutional rights encompassed in a full and fair trial, assists law enforcement, and ensures the fair administration of justice.

¶ 56. The practice of clarifying the suspect's equivocal request for an attorney will "help protect the rights of the suspect by ensuring that he gets an attorney if he wants one," declared the Davis court.

¶ 57. Clarifying the suspect's equivocal request for an attorney, declared the Davis court, also "will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement regarding counsel." Abandoning the rule regarding clarification simply increases the chances that a court will later suppress a confession.

¶ 58. Thus the rule adopted by the majority opinion today puts law enforcement officers at their peril when a suspect has made what might appear to be an equivocal request for an attorney. Continuing questioning without clarifying the suspect's request jeopardizes the admission of a confession or other evidence.

¶ 59. Because the Davis rule places law enforcement officers in this predicament and endangers a suspect's constitutional rights, courts have greeted the Davis decision "with less than total enthusiasm," according to a leading text in criminal procedure that is often cited by this court. Indeed some state courts, including the supreme court of our neighboring state of Minnesota, have rejected the Davis rule.

¶ 60. Since 1994, Wisconsin law has required that law enforcement officers clarify an equivocal request for an attorney if questioning is to continue. This rule of law has apparently worked well in Wisconsin. The State does not claim that the rule has created any problems for law enforcement officers or that the rule has interfered with criminal investigations. We ought not to abandon our prudent rule in favor of a problematic rule such as the one adopted by the majority opinion.

Ill

¶ 61. Finally, more than 140 years of Wisconsin constitutional jurisprudence supports interpreting the Wisconsin constitutional privilege against self-incrimination, Article I, Section 8, to require law enforcement officers to clarify a suspect's equivocal request for an attorney during custodial interrogation. Bounded only by the federal Supremacy Clause, the Wisconsin Constitution stands as our state's primary source of law. This court is the final interpreter of the Wisconsin Constitution. We perform this role with an understanding of the unique experience of Wisconsin law.

¶ 62. The majority opinion ignores Wisconsin jurisprudence by ignoring the state constitutional rights to a full and fair trial which rest, according to the Carpenter case, on the right to an attorney and the interaction of that right with the constitutional privilege against self-incrimination.

¶ 63. The majority opinion reaches its conclusion by reasoning as follows:

1. The majority opinion states, that the privilege against compulsory self-incrimination is almost identical in the texts of the federal and Wisconsin constitutions. I agree.

2. The majority opinion states that the Wisconsin Supreme Court has ordinarily, but not always, construed the Wisconsin Constitution consistent with the U.S. Supreme Court's construction of the U.S. Constitution. I agree.

3. The majority opinion states that no basis exists to interpret the language of the Wisconsin Constitution on the privilege against self-incrimination as creating guarantees beyond the guarantees under the U.S. Constitution. I disagree.

¶ 64. The majority opinion errs because it ignores our own state's constitutional history that provides a basis to interpret the Wisconsin constitutional provision on the privilege against self-incrimination beyond the scope of the U.S. Constitution. The majority opinion fails to examine Wisconsin's history of protecting the state constitutional right to an attorney as the means of ensuring a full and fair trial and the nexus between the right to an attorney at trial and the state constitutional privilege against self-incrimination. The majority opinion has forgotten the admonition of Justice Smith in 1855 urging this court to construe its own state constitution to ascertain its true intent and meaning. "The people then made this constitution, and adopted it as their primary law. The people of other states made for themselves respectively, constitutions which are construed by their own appropriate functionaries. Let them construe theirs — let us construe, and stand by ours."

¶ 65. Wisconsin has a long and cherished history of protecting an accused's right to an attorney under the Wisconsin Constitution. In 1859, eleven years after statehood, this court declared in Carpenter v. Dane County that an accused has a fundamental right to an attorney under the Wisconsin Constitution and required counties to appoint an attorney for indigent felons at government expense. Our court reached this conclusion one hundred and four years before the U.S. Supreme Court recognized a similar federal constitutional right to an attorney in Gideon v. Wainwright, 372 U.S. 335 (1963).

¶ 66. Our court in Carpenter reasoned that Wisconsin constitutional rights to a full and fair trial such as "to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf, etc." were meaningless when an accused did not have the ability to exercise those rights by employing an attorney. The court stated:

And would it not be a little like mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial of the matters with which he was charged, and yet say to him when on trial, that he must employ his own counsel, who could alone render these guaranties of any real permanent value to him.
But surely the citizens of a county are vitally more interested in saving an innocent man from unmerited punishment than in conviction of a guilty one.
Why this great solicitude to secure him a fair trial if he cannot have the benefit of counsel?

¶ 67. Similar reasoning applies in the present case. According to Carpenter, to protect an accused's state constitutional guarantees for a full and fair trial, a suspect is given an attorney at trial at government expense. Following the reasoning in Carpenter, the state constitutional guarantees for a fair and full trial and an attorney at trial would be hollow rights if a conviction at trial is already assured because the suspect incriminates himself or herself during custodial questioning. Thus a suspect is given the right to an attorney during custodial questioning to help ensure that an accused gets the benefit of the constitutional guarantee against self-incrimination. A suspect's right to an attorney at custodial questioning to protect the privilege against self-incrimination is thus intricately intertwined with an accused's state constitutional right to a full and fair trial and a meaningful state constitutional right to an attorney at trial.

¶ 68. The state constitutional history protecting a full and fair trial by granting a meaningful right to an attorney is over 140 years old. In keeping with this history, the Wisconsin Constitution guarantee against self-incrimination should therefore be interpreted to require a clarifying question when a suspect makes an equivocal request for an attorney during custodial questioning. A clarifying question ensures that a suspect who wants an attorney gets an attorney at custodial questioning and thus protects a meaningful right to an attorney at trial and a meaningful fair and full trial. In interpreting the Wisconsin Constitution in this way, this court would appropriately heed Wisconsin's longstanding state constitutional history of guaranteeing an accused the constitutional rights guaranteed by the Wisconsin Constitution.

¶ 69. The gamesmanship of ignoring a suspect's statements regarding an attorney during custodial questioning merely invites the public to view the behavior of law enforcement officers as marked by trickery and deceit and to view Wisconsin constitutional guarantees to the criminally accused with cynicism. The result is a loss of public trust and confidence in law enforcement, the rule of law, and the courts, thereby undermining the credibility of the legal system itself.

¶ 70. In order for law enforcement and the courts to be successful in carrying out their responsibilities, they must have the cooperation, trust, and confidence of the public. The majority opinion undermines that trust and confidence, ignores Wisconsin jurisprudence, and betrays Wisconsin's constitutional guarantees. Therefore, I dissent.

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

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

       Article VII, Section 3, subsection 1 of the Wisconsin Constitution states: "The supreme court shall have superintending and administrative authority over all courts."

       Article VI, Clause 2 of the United States Constitution states: "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."

       The court of appeals, like this court, independently determines state constitutional claims. See infra ¶¶ 37-42.

       The United States Supreme Court has recently reaffirmed that Miranda v. Arizona, 384 U.S. 436 (1966), established a federal constitutional rule governing the admissibility of custodial statements in both state and federal courts under the Fifth and Fourteenth Amendments. See, Dickerson v. United States, 530 U.S. 428, 431 (2000).

       The dissent notes several times that Davis v. United States, 512 U.S. 452 (1994) was decided by a 5-4 vote, as if to suggest that the margin by which a divided high court decides a case has some legal significance. The dissent apparently concedes that Davis is binding as a matter of federal constitutional law, but seems to suggest that the one-vote margin lends support for interpreting the Wisconsin Constitution to require greater protection for suspects in custodial interrogations. Dissent at ¶¶ 52-53. While the Wisconsin Constitution may indeed in particular instances provide greater protection for individual rights than its federal counterpart (see infra Part IV), the margin by which the United States Supreme Court decides the corresponding federal constitutional issue is irrelevant to our analysis of whether the state constitution requires more.

        See State v. Jones, 192 Wis. 2d 78, 111, 532 N.W.2d 79 (1995) (Abrahamson, J., dissenting) ("The Supremacy Clause dictates that the Davis interpretation of the federal constitution is binding on all courts of this state. Thus, although the majority neglects to acknowledge it, Walkowiak has been superseded by Davis.").

       Article I, Section 8, subsection (1) provides: "No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself." The Fifth Amendment to the United States Constitution provides, in relevant part, "No person... shall be compelled in any criminal case to he a witness against himself, nor be deprived of life, liberty, or property, without due process of law."

       The dissent would invoke our superintending authority to impose a requirement that law enforcement officers ask clarifying questions when a suspect makes an equivocal reference to counsel. Dissent at ¶ 55. We have superintending authority over the lower courts, not over law enforcement. See, Wis. Const. art. VII, § 3(1), supra, at n.2. On the substantive state constitutional question, the dissent relies entirely on Carpenter v. Dane Co., 9 Wis. 249 (1859), which interpreted the state constitutional right to counsel to include the right to counsel at public expense for indigent criminal defendants. Dissent at ¶ 62. The dissent suggests that this state constitutional right to counsel at trial would be rendered meaningless if law enforcement officers are not required to clarify a suspect's equivocal reference to counsel during custodial interrogation. Dissent at ¶ 67. The premise seems to be that a confession assures conviction and therefore eviscerates the right to counsel at trial. This analysis is a little indirect, and takes the focus off the constitutional right at issue here, the right against self-incrimination.

        Carpenter v. Dane County, 9 Wis. 249 (1859).

        Wentala v. State, 95 Wis. 2d 283, 290 N.W.2d 313 (1980); State v. Walkowiak, 183 Wis. 2d 478, 515 N.W.2d 863 (1994).

        Miranda v. Arizona, 384 U.S. 436, 467 (1966).

        Davis v. United States, 512 U.S. 452, 469-470, 470 n.4 (1994) (Souter, J., concurring in the judgment).

         Davis v. United States, 512 U.S. 452, 466 (1994) (Souter, Blackmun, Stevens and Ginsburg, J.J., concurring in the judgment).

        Davis v. United States, 512 U.S. 452, 461 (1994).

       Fred E. Imbau, John E. Reid, Joseph E Buckley, and Brian C. Jayne, Criminal Interrogation and Confessions 499 (4th ed. 2001).

        This text has been described as "written for the purpose of explaining to law enforcement officers the strategies of interrogation and the applicable law." Grace F. Ashikawa, R. v. Brydges: The Inadequacy of Miranda and A Proposal to Adopt Canada's Rule Calling for the Right for Immediate Free Counsel, 3 Sw. J.L. & Trade Am. 245 (1996).

       See Wis.Const. art. VII, § 3(1); State v. Anderson, 2002 WI 7, ¶ 29, n.12, 249 Wis. 2d 586, 638 N.W.2d 301 (discussing superintending authority).

        Davis v. United States, 512 U.S. 452, 461 (1994). Clarifying questions are not difficult to administer. See State v. Walkowiak, 183 Wis. 2d 478, 494-495, 515 N.W.2d 863 (1994) (Abrahamson, J., concurring and dissenting).

        Davis v. United States, 512 U.S. 452, 461 (1994).

        Davis v. United States, 512 U.S. 452, 461 (1994).

       Wayne R. LaFave, Jerold H. Israel, & Nancy J. King, Criminal Procedure § 6.9(g) at 615, n.170 (2d ed. 1999).
      Another commentator stated that "[a]lready several states' highest courts have chosen to circumvent Davis and retain their old rules. The confusion and the split among lower courts that existed before Davis has returned, albeit to a somewhat lesser degree." Susan L. Ross, Davis v. United States: The Ambiguous Request for Counsel, 30 New Eng. L. Rev. 941, 990 (1996).

        See, e.g., State v. Hannon, 636 N.W.2d 796, 804 (Minn. 2001) (holding Minnesota constitution requires that when an accused makes an ambiguous or equivocal statement that can reasonably be interpreted as a request for an attorney, questioning must stop except for narrow questions to clarify the suspect’s intentions); State v. Risk, 598 N.W.2d 642, 649 (Minn. 1999) (same); Hawaii v. Hoey, 881 P.2d 504 (Haw. 1994) (adopting Justice Souter's reasoning in the concurring opinion in
        Davis; Hawaii's constitution requires that law enforcement officers either cease all questioning or seek non-substantive clarification when a suspect makes an equivocal request for an attorney during custodial interrogation).

        State v. Walkowiak, 183 Wis. 2d 478, 486-87, 515 N.W.2d 863 (1994).

        Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567, 785 (1855).

       9 Wis. 249 (1859).

        Carpenter v. Dane County, 9 Wis. 249, 251-52 (1859).

        Escobedo v. Illinois, 378 U.S. 478, 487 (1964).

        Fare v. Michael C., 442 U.S. 707, 719 (1979); Miranda v. Arizona, 384 U.S. 436, 466 (1966); Escobedo v. Illinois, 378 U.S. 478, 487-88 (1964).


author: PER CURIAM. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE WILLIAM A. BABLITCH, J. DAVID T. PROSSER, J.

text:
    In the Matter of Disciplinary Proceedings Against Ralph A. Kalal, Attorney at Law: Board of Attorneys Professional Responsibility, Complainant-Respondent, v. Ralph A. Kalal, Respondent-Appellant.
    Supreme Court

      No. 00-1070-D.

      Submitted on briefs November 9, 2001.

      Decided May 2, 2002.

    2002 WI 45
    (Also reported in 643 N.W.2d 466.)

      For the respondent-appellant there were briefs by Steven M. Glynn and Glynn, Fitzgerald & Albee, S.C., Milwaukee, and Ralph A. Kalal and Kalal & Associates, Madison.
    For the complainant-respondent there was a brief by Robert G. Krohn and Roethe, Krohn, Pope, McCarthy & Haas, LLP, Edgerton.
   PER CURIAM.

¶ 1. This attorney disciplinary matter involves an attorney's misrepresentation of fact during oral argument to this court, in violation of SCR 20:3.3, which imposes upon attorneys the obligation of candor toward the tribunal. We emphasize at the outset that an attorney's duty of candor toward the tribunal is central to the truth-seeking function of any court, including, obviously, this one. Oral argument is not an opportunity for deception. This court makes its decisions, albeit tentatively, immediately following oral argument, relying in part on information supplied by counsel in response to the court's questions. This is a critical part of the court's decision-making process. Attorney Ralph Kalal knowingly made false statements to this court during oral argument, in response to questions from members of the court. Under these circumstances, only a strong, unmistakable and public sanction will reinforce the attorney's obligation of truthfulness and candor in court and deter the sort of gamesmanship that Attorney Kalal's conduct represents. We conclude that the gravity of this misconduct requires at least a public reprimand.

¶ 2. Attorney Kalal appealed from the report of the referee, Cheryl Rosen Weston, finding that Attorney Kalal knowingly made a false statement of fact to this court during oral argument and recommending the issuance of a private reprimand. Attorney Kalal argues that the Board of Attorneys Professional Responsibility (Board) has failed to prove by evidence that is clear, satisfactory, and convincing that he knowingly made a false statement of fact to this court. We conclude that the referee's findings in this regard are supported by clear, satisfactory, and convincing evidence, and we adopt them. As noted above, however, we determine that the seriousness of Attorney Ratal's misconduct warrants the imposition of a public, rather than a private, reprimand.

¶ 3. Attorney Kalal was admitted to practice law in Wisconsin in 1973 and practices in Madison. He has not previously been the subject of a disciplinary proceeding. Between 1996 and 1998 he had between one and three associates working for him, including Attorneys Tracey Wood and Stephen Mays.

¶ 4. Attorney Kalal represented Ralph D. Smythe in Sauk County Circuit Court on a charge of operating a motor vehicle while intoxicated. Smythe's operating privileges were revoked in a refusal proceeding brought under Wisconsin's implied consent law. Attorney Kalal appealed the final order of revocation to District IV of the Court of Appeals. The opening brief in the case was due on December 29, 1997. On that day Attorney Kalal filed a motion requesting an extension of five working days from that date within which to file the brief. The motion stated that the attorney assigned responsibility for preparation of the brief, Michelle Tjader, was on a previously planned vacation and had been able to complete only a draft of the brief prior to the vacation.

¶ 5. By order dated January 2, 1998, the court of appeals denied the motion and dismissed the appeal as a sanction for failure to file the brief. On January 6, 1998, the date requested in Attorney Ratal's motion to extend the time to file the brief, the brief was filed. On the same day Attorney Kalal filed a renewed motion to extend the time to file the brief. By order of January 9, 1998, the court of appeals denied the motion, refused to accept the brief for filing, and confirmed its earlier order of dismissal.

¶ 6. Attorney Kalal appealed the dismissal in Smythe to this court. Oral argument was held on November 11, 1998. During oral argument, the following colloquy took place:

JUSTICE CROOKS: I have a question, however. During the two years preceding the action that was taken in the Smythe case, had either you or your firm in any way been sanctioned by the court of appeals, by District IX for the filing of briefs on a rather regular late basis?
ATTORNEY KALAL: No. There was one case and I believe it is referred to in Judge Dykman's second order in which they declined to allow us to file a reply brief and decided the case without the benefit of that brief.
CHIEF JUSTICE ABRAHAMSON: Is that the 1996 case?
ATTORNEY KALAL: Mosel.
CHIEF JUSTICE ABRAHAMSON: Pardon me? ATTORNEY KALAL: That
CHIEF JUSTICE ABRAHAMSON: It's referenced here, Mosel.
ATTORNEY KALAL: Yes.
CHIEF JUSTICE ABRAHAMSON: In an order dated the 18th of September.
ATTORNEY KALAL: Correct.
JUSTICE CROOKS: Was there some warning when that action was taken?
ATTORNEY KALAL: No.
JUSTICE BABLITCH: Just to follow that up, if I may, Justice. On page, appendix 6, in Judge Dykman's first order, he states, "We have advised counsel," which I presume is you, "that extension motions based on counsel's heavy workload fail to make the showing of good cause when they become routine" and then on page 19 of this, which is Judge Dykman's second order, he states: "We have made it clear that we have concluded our normal procedures are inadequate to address appellate counsel's," which I assume is you, "excessive extension motions." I was led to believe by those somehow that they have gotten the word to you or your firm that, "hey, you've pushed the envelope too far."
ATTORNEY KALAL: I think that it would be fair to say that in a couple of their orders they indicated that good cause is shown, but have indicated essentially that they were reluctant because they viewed that there had been more requests than they would like. I will not dispute that. I would not say that they have, with the clarity that is suggested by Judge Dykman's orders said "you do this again, you're going to be wasted."

¶ 7. This court concluded that the court of appeals improperly based its decision to dismiss the Smythe appeal, in part, on past, unrelated extension practices by Attorney Kalal in other cases not involving Smythe. It reversed the order of dismissal and remanded the case for reconsideration.

¶ 8. On April 19, 2000, the Board filed a complaint against Attorney Kalal alleging that he knowingly made a false statement of fact to this court during oral argument, thus violating SCR 20:3.3. The complaint also alleged that Attorney Kalal's failure to file the Smythe brief when due in the court of appeals, rather than filing a motion for an extension of time on the briefs due date, violated SCR 20:1.3.

¶ 9. The Board notes that during the two years preceding the Smythe case, the court of appeals penalized or strongly cautioned Attorney Kalal or his firm for excessive extension motions in orders issued in the following cases:

1. State v. Lesavage, No. 95-3364-CR. Counsel of record in the case was Kalal's associate, Tracey Wood. On February 14, 1996, the court of appeals granted Wood's motion for an extension of time to file a brief but said,
[t]he motion does not show a workload ... sufficient to justify an extension. Nor does it show good cause for an extension of the length requested.... Counsel should not assume' extension motions will be granted, or that short extensions will be granted even when the motion does not show good cause. Failure to file the brief timely may result in a sanction against counsel.
2. County of Dane v. Chamberlain, No. 95-2706. The defendant was represented by Kalal. On February 21, 1996, the court of appeals granted Kalal's motion for a one-week extension of time to file a reply brief. The order explained,
[a]n extension motion on the ground of counsel's heavy workload makes a less satisfactory showing of good cause when the workload appears so perpetually heavy that extension motions are routine. ... Counsel should not assume extensions will be granted or, if granted, that they will be for the length requested. ... As for the present motion, we reluctantly conclude good cause is shown.
3. State v. Gaulrapp, No. 96-1094-CR. Defendant was represented by Kalal. By order dated July 23,1996, the court of appeals granted a motion for extension of time to file a brief but imposed a $100 monetary penalty on Kalal. The order said,
[i]t is not clear why counsel waited until the date the brief was due to file the motion for a stay of proceedings. We caution appellant's counsel not to assume that motions filed on the due date will be granted, or that additional time to complete the brief will be provided if the motion is denied. We also caution counsel not to assume that a financial sanction is the only penalty the court is prepared to impose for failure to file a brief timely. Dismissal is also a sanction available under Rule 809.83(2), Stats.
4. Village of Oregon v. Mark Feiler, No. 96-1202. Defendant was represented by Kalal's associate, Tracey Wood. By order dated July 23, 1996, the court of appeals granted a repeated motion for an extension of time to file a brief but imposed a $100 monetary penalty on Attorney Wood. The order stated,
[w]e caution appellant's counsel not to assume that motions filed on the due date will be granted, or that additional time to complete the brief will be provided if the motion is denied. We also caution counsel not to assume that a financial sanction is the only penalty the court is prepared to impose for failure to file a brief timely. Dismissal is also a sanction available under Rule 809.83(2), Stats.
5. State v. Timothy Kuklinski, No. 96-1266. Defendant was represented by Kalal's associate, Tracey Wood. By order dated August 14,1996, the court of appeals granted a motion for extension of time filed the day a brief was due. The order stated,
[extension motions on the ground of counsel's heavy workload make a less convincing showing of good cause when the workload at counsel's firm is so perpetually heavy that such motions are routine. We so advised another member of counsel's firm as long ago as February 1996. Since then, we have imposed financial penalties several times against counsel at the firm for failure to file a brief timely.... In view of our previously expressed concern, counsel's firm had ample opportunity to arrange for the timely filing of brief....
6. State v. Mosel, No. 96-1432-CR. Defendant was represented by Kalal. On September 18, 1996, the court of appeals denied a motion for a one-day extension of time to file a brief. The order stated,
[i]n February 1996, in an unrelated appeal, we advised Mosel's attorney that an extension motion on the ground of counsel's heavy workload makes a less satisfactory showing of good cause when the workload appears so perpetually heavy that extension motions are routine. We stated that counsel should not assume extensions will be granted. In the months following that order, we imposed a monetary penalty against counsel several times for failure to file a brief timely.
In July 1996, in another unrelated appeal, we again advised counsel not to assume that extension motions will be granted, or to assume that additional time to complete the brief will be provided if the motion is denied. We further cautioned counsel not to assume that a financial sanction is the only penalty the court is prepared to impose. We noted that dismissal is also a sanction available under Rule 809.83(2), Stats.
We have reviewed the files of appeals by appellant's counsel. We have received briefs in 26 such appeals in 1996. In 19 of those 26 appeals appellant's counsel sought an extension of the time to file his brief.
Counsel's proclivity for extension motions wastes the resources of this court and causes unnecessary delays. We have advised counsel of our dissatisfaction, and warned him that an appeal may be dismissed. Counsel has had ample time to adjust his practice so that such motions are not routine. We conclude the present motion does not show good cause, and therefore we deny it.
7. State v. Size, No. 96-2070-CR. Defendant was represented by Kalal associates Stephen Mays and Tracey Wood. On October 15, 1996, the court of appeals granted a motion to extend the time to file a brief. After citing the occasions in which attorneys in Kalal's firm were advised that they should not assume extension motions would routinely be granted, the court said, "[u]ntil now, first requests for short extensions have usually been handled by the clerk of this court without review by the court. As a result of counsel's abusive extension motions, all such motions by members of appellant's law firm will now be reviewed by the court."

¶ 10. The referee found that Attorney Kalal's responses at oral argument were false, in violation of SCR: 20:3.3 in three respects.

¶ 11. First, the referee pointed to the following exchange:

JUSTICE CROOKS: During the two years preceding the action that was taken in the Smythe case, had either you or your firm in any way been sanctioned by the Court of appeals, by District iy for the filing of briefs on a rather regular late basis?
ATTORNEY KALAL: No. There was one case.

The "one case" referred to was Mosel, in which the court of appeals refused to accept a late-filed brief as a sanction for a late-filed extension motion. The referee concluded that Attorney Kalal's answer was false because it ignored the $100 monetary penalties imposed in Gaulrapp and Feiler.

¶ 12. The second statement identified by the referee as false arose out of the following exchange:

JUSTICE CROOKS: Was there some warning when that action [the court of appeals' refusal to allow an extension of time to file a reply brief in Mosel] was given?
ATTORNEY KALAL: No.

The referee concluded that the answer "no" was clearly false because the Mosel order attached the court of appeals' previous orders in Gaulrapp and Chamberlain which cautioned Attorney Kalal that he should not assume extension motions would be granted, particularly when they were filed on the date the brief was due, nor should he assume additional time to complete the brief would be provided if the motion was denied.

¶ 13. The third statement identified by the referee as false arose out of the following exchange:

JUSTICE BABLITCH: Just to follow that up if I may, Justice. On page, appendix 6, in Judge Dykman's first order, he states: "We have advised counsel," which I presume is you, "that extension motions based, on counsel's heavy workload fail to make the showing of good cause when they become routine" and then on page 19 of this, which is Judge Dykman's second order, he states: "We have made it clear that we have concluded our normal procedures are inadequate to address appellate counsel's" which I presume is you, "excessive extension motions." I was led to believe by those that somehow they have gotten the word to you or your firm that "hey, you've pushed the envelope too far."
ATTORNEY KALAL: I think it would be fair to say that in a couple of their orders they have indicated that good cause is shown, but have indicated essentially that they were reluctant because they viewed that there had been more requests than they would like. I will not dispute that. I would not say that they have, with the clarity that is suggested by Judge Dykman's orders said "you do this again, you're going to be wasted."

While the referee said Attorney Kalal's remark might be an accurate characterization of the order in Chamberlain, where the court of appeals reluctantly concluded good cause for an extension was shown, the remark was inconsistent with the fact that monetary sanctions had been imposed prior to Smythe, in Gaulrapp and Feiler, and it also ignored the fact that the court of appeals refused to allow the late filing of a brief in Mosel.

¶ 14. Attorney Kalal justified the statements he made during the Smythe oral argument in two ways.

¶ 15. With respect to orders directed at other members of his firm, he claimed to be unaware of such orders. The referee found this position not to be credible given the small size of Attorney Kalal's law office and the fact that he and Attorney Wood were sanctioned by the same court, in the same way, for the same reason, on the same day.

¶ 16. With respect to cases in which Attorney Kalal admitted personal knowledge, he said that at the time of the Smythe oral argument hearing, he forgot what had happened in those other cases. The referee said this assertion was also difficult to believe since Attorney Kalal did remember being sanctioned by the court of appeals in Mosel, and the sanction in Mosel was based on the court's recitation of previous incidents. Thus, the referee concluded that Attorney Kalal violated SCR 20:3.3.

¶ 17. The referee found that the Board had failed to prove a violation of SCR 20:1.3.

¶ 18. The Board sought a private reprimand based on the absence of any prior discipline and the fact that Attorney Kalal's misleading statements were not central to the facts needed to resolve the Smythe case. The referee recommended the imposition of a private reprimand as discipline for Attorney Kalal's misconduct. The referee also recommended that, having prevailed in one of the two counts alleged in the Board's complaint, Attorney Kalal be required to pay one-half the costs of the proceeding.

¶ 19. Attorney Kalal asserts that he gave an accurate and truthful answer to this court's question whether he or his firm had in any way been sanctioned by the court of appeals for filing briefs on a rather regularly late basis. He contends that the truthful answer to that question was, "no." He says that rather than filing briefs late, he sought extensions precisely for the purpose of assuring that the briefs would not be late. He also says that because the court of appeals granted most of his extension requests, the briefs filed were in fact not late. Attorney Kalal also argues that the $100 penalties imposed in the Feiler and Gaulrapp cases were not penalties for "rather regularly filing briefs late," and even if they were, the vintage of those penalties (two and one-half years before the Smythe oral argument) hardly suggests that those cases should have come instantly to Attorney Kalal's mind when faced with a question from the bench addressing matters outside the record in the Smythe case.

¶ 20. Attorney Kalal asserts that the referee's repeated emphasis on the small size of the Kalal law firm betrays the referee's ignorance of practice in a small firm, as well as an ignorance of the norms of oral argument before an appellate court. Attorney Kalal argues that this court took the Smythe case to decide the power of the court of appeals to dismiss cases as a sanction for the late filing of briefs. He asserts that given the issue and the record, there is no reason why he should have sought out the record of past orders issued by the court of appeals concerning extension motions filed in other cases.

¶ 21. The Board asserts that a review of the court of appeals' orders discussed above reveals that Attorney Kalal's responses during oral argument were both incomplete and untrue. The Board contends that the referee fairly inferred from the evidence presented that in a small office such as Attorney Kalal's, he must have been aware of the sanction to his associate issued in the same way, for the same reason, and on the same day Attorney Kalal himself received an identical sanction.

¶ 22. The Board argues that this court was entitled to receive full and fair responses to its inquiries relating to sanctions and warnings issued to Attorney Kalal and his firm by the court of appeals prior to the Smythe argument. The Board asserts Attorney Kalal's responses to this court were incomplete and designed to minimize the extent to which measures had been taken to deter Attorney Kalal and his firm from making tardy filings. The Board asserts the regularity with which Attorney Kalal and his firm had been sanctioned and warned by the court of appeals for untimely filings prior to Smythe indicates that Attorney Kalal was not merely mistaken in describing his history with the court of appeals; he was in fact intentionally trying to obscure that history both by what he offered to this court at oral argument and by what he did not offer.

¶ 23. A referee's findings of fact on a disciplinary matter will not be set aside unless clearly erroneous. Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). Conclusions of law are reviewed de novo. Disciplinary Proceedings Against Carroll, 2000 WI 130, 248 Wis. 2d 662, 675, 636 N.W.2d 718.

¶ 24. The referee's finding that Attorney Kalal's response to Justice Crooks' questions were false is not clearly erroneous. The "one case" referred to by Attorney Kalal in the first exchange with Justice Crooks was Mosel, in which the court of appeals denied a motion for a one-day extension of time to file a brief and refused to accept the brief for filing. In addition to Mosel, the court of appeals also imposed a $100 monetary penalty on Attorney Kalal in Gaulrapp, and on the same day it imposed a $100 monetary penalty on Attorney Kalal's associate, Tracey Wood, in Feiler. Thus, Attorney Kalal's statement during the Smythe oral argument that there had only been one occasion in which he or his firm had been sanctioned by the court of appeals was patently false.

¶ 25. Attorney Kalal's response to Justice Crooks' second question regarding whether there was some warning prior to the court of appeals refusing to extend the time to file a reply brief in Mosel was also false since the court of appeals did provide warning, in all of the previous cases listed above, that Attorney Kalal should not assume extensions would be granted or that a financial sanction was the only penalty the court was prepared to impose for failure to file a brief in a timely manner.

¶ 26. The referee's finding that Attorney Kalal's false statement of fact in response to Justice Crooks' questions during the Smythe oral argument was knowingly made is also not clearly erroneous. The notion that Attorney Kalal would have remembered the court of appeals' refusal to grant him a briefing extension in Mosel yet would not have remembered the $100 monetary penalty imposed in Gaulrapp is incredible on its face. The referee's finding that under the circumstances presented here in a small law firm consisting of no more than three associates, it is not credible for Attorney Kalal to claim that he was unaware of the $100 monetary penalty imposed on Attorney Tracey Wood in the Feiler case the same day the $100 penalty was imposed against Attorney Kalal in Gaulrapp, is also not clearly erroneous.

¶ 27. In addition, Attorney Kalal's colloquy with Justice Bablitch during the Smythe oral argument was, if not patently false, at least knowingly misleading.

¶ 28. In Lesavage, Chamberlain, Kuklinski, and Size, the court of appeals cautioned Attorney Kalal and his firm that extension motions would not be routinely granted, that failure to file briefs on time might result in a sanction against counsel, and that all extension motions filed by the Kalal firm would be reviewed by the court. The only reasonable reading of the orders issued in Lesavage, Chamberlain, Kuklinski, and Size is that the court of appeals was warning Attorney Kalal that he and his law firm had in fact "pushed the envelope too far" with respect to its filing of extension motions, that close scrutiny would be applied to future motions, and that sanctions were possible. Attorney Kalal's response to Justice Bablitch during the Smythe oral argument thus appears to be at least deliberately misleading, if not actually false. Even though this statement, standing alone, would perhaps not support a finding that SCR 20:3.3 was violated, it reinforces the conclusion that Attorney Kalal's answers to Justice Crooks' questions were false and knowingly made.

¶ 29. Since the referee's findings that Attorney Kalal knowingly made false statements of fact to this court during the Smythe oral argument have not been shown to be clearly erroneous, we adopt them.

¶ 30. The Board sought, and the referee recommended, that a private reprimand be issued as discipline for Attorney Kalal's misconduct. We conclude that the seriousness of Attorney Kalal's misconduct warrants the imposition of a public, rather than a private, reprimand.

¶ 31. The referee also recommended that Attorney Kalal be required to pay one-half of the costs and fees associated with this proceeding. Attorney Kalal has filed an objection to the bill of costs filed by the Board and has also filed a motion seeking the imposition of costs and sanctions against the Board and its counsel personally.

¶ 32. Current SCR 21.19 states, in part, that "the director, staff,. . . [and] retained counsel,. . . shall be immune from suit for any conduct in the course of their official duties." In addition, this court has previously declined to award attorneys defense costs in disciplinary proceedings, whether the attorney prevails on some or all counts. See Disciplinary Proceedings Against Marcus & Tepper, 107 Wis. 2d 560, 320 N.W.2d 806 (1982). Consequently, we deny Attorney Kalal's motion for costs and sanctions.

¶ 33. Although the referee recommended that Attorney Kalal be required to pay one-half of the costs and fees associated with the proceeding because the referee concluded that the Board had proved only one of the two counts alleged in its complaint, this court has previously rejected objections to full assessments of costs based on an apportionment of the number of misconduct allegations established. See, e.g., Disciplinary Proceedings Against Pangman, 216 Wis. 2d 440, 460, 574 N.W.2d 232 (1998); Disciplinary Proceedings Against Johnson, 165 Wis. 2d 14, 20, 477 N.W.2d 54 (1991). We follow that past practice here and conclude that Attorney Kalal should be required to pay the full costs and fees associated with this proceeding.

¶ 34. IT IS ORDERED that Ralph Kalal is publicly reprimanded for his professional misconduct.

¶ 35. IT IS FURTHER ORDERED that Ralph Kalal's motion for costs and sanctions against the Board and its counsel is denied.

¶ 36. IT IS FURTHER ORDERED that Ralph Kalal be required to pay the costs and expenses of this disciplinary proceeding. If the costs are not paid within 90 days of the date of this order, and absent a showing to this court of his inability to pay the costs, the license of Ralph Kalal to practice law in Wisconsin shall be suspended until further order of this court.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 37. (concurring). It seems to me that there's more to this case — and less to this case — than meets the eye. As I studied the case, three texts kept coming to mind.

¶ 38. First, I recalled a decision by my wise former law partner, Federal District Court Judge James E. Doyle, sentencing Ben Masel for spitting in the face of U.S. Senator Henry M. Jackson at the Dane County Regional Airport in Madison, Wisconsin, on March 30, 1976. Masel was demonstrating his disapproval of the Senator's alleged relationship with the armament industry. Judge Doyle wrote that he pondered whether to treat the crime as a minor, petty offense or as an important case. Judge Doyle decided to sentence Masel to 15 days in jail, concluding that Masel deserved "a pinch of deserved condemnation for an ignoble, small performance."

¶ 39. The other two texts were cartoons about lying and honesty. The cartoon about lying is cynical: A father, while driving the family car, says to his young son, "Everyone lies, son, but there are different pay scales."

¶ 40. The cartoon about honesty is more philosophical: A father, sitting in his easy chair in the living room, says to his young son, "Honesty is a fine quality, Max, but it isn't the whole story."

¶ 41. This case, which raises issues addressed in the three texts, bothers me.

‡ ‡ ‡

¶ 42. Old hands on appellate courts look into each other's eyes, knowingly nod, and wisely say, "garbage in, garbage out." This short-hand phrase means that judges rely on lawyers to keep us informed about a case. Sure, judges (and law clerks) do research and read the record, but the better the briefs and the better the oral argument, then the better the chances are for a good, sound decision. That is why lawyer competence and candor are so important to the proper working of the legal system.

¶ 43. The per curiam opinion in the present case puts it more grandly: "[Cjandor toward the tribunal is central to the truth-seeking function of any court. . . . This court makes its decisions, albeit tentatively, immediately following oral argument, relying in part on information supplied by counsel in response to the court's questions."

¶ 44. Whether cast in colloquial or grand terms, this case touches on the importance of providing accurate information to the courts.

¶ 45. Kalal's comments, which are the subject of this disciplinary proceeding, were uttered when he was arguing the Smythe case before this court on November 11, 1998. The questions asked at oral argument in Smythe were about sanctions and warnings in prior cases. These questions and Kalal's subsequent responses, quoted in the per curiam opinion, were not material, to the decision in Smythe.

¶ 46. The issue before the supreme court in Smythe was whether Judge Dykman could penalize Smythe on the basis of Kalal's conduct in other cases. When Kalal requested a five-day extension from the court of appeals to file his appellate brief in Smythe (the first request for an extension in that case), Judge Dykman (sitting as a single judge) dismissed the Smythe appeal on the ground that Kalal had repeatedly requested time extensions in other prior cases not involving the Smythe case. This court held that Kalal's conduct in other cases was not relevant to whether Smythe should be dismissed and that the court of appeals had erred in dismissing Smythe.

¶ 47. As Kalal's brief in this disciplinary matter puts it, "This Court took the Smythe case to decide that issue [about using Kalal's motions in other cases as grounds to dismiss Smythe]. It didn't take the case to express an opinion about the conduct of either [the] lawyer or appeals court judge."

¶ 48. Supreme Court Rule 20:3.3 appears to allow zero tolerance for false statements of fact or law regardless of their materiality. But shouldn't materiality play a role in determining the discipline to be imposed?

¶ 49. So what is the false statement of fact in the present case? According to the per curiam opinion, Kalal misstated two facts: (1) His statement that his firm had been sanctioned in only one case was false. See per curiam op. at ¶ 11. (2) His statement that his firm had not been warned in the Mosel case was false. See per curiam op. at ¶ 12.

¶ 50. This is the entire case against Kalal.

¶ 51. Kalal claims that he gave an accurate response to Justice Crooks' question, which was about late filings. Justice Crooks' question did not, according to Kalal, relate to motions to extend the time for filing a brief. See per curiam op. at ¶ 19. Lame excuse? Or plausible' explanation?

¶ 52. The per curiam opinion shies away from the referee's finding that Kalal's response to Justice Bablitch was false, but uses Kalal's response to Justice Bablitch to reinforce the referee's findings regarding the two falsehoods to Justice Crooks. The per curiam opinion declares that while Kalal's response to Justice Bablitch "standing alone, would perhaps not support a finding that former SCR 20:3.3 was violated, it reinforces the conclusion that Attorney Kalal's answers to Justice Crooks' questions were false and knowingly made."

¶ 53. So the disciplinary decision in the present case rests on Kalal's misstating two facts that were not central to the oral argument in Smythe. There are fine lines here: Forgetfulness is okay. Spin is okay. False statements of facts, material or not, are not okay.

¶ 54. Another referee might have been persuaded that Justice Crooks' question was not clear enough or could have been interpreted in a different way or that Kalal had forgotten at the Smythe oral argument that two and one-half years earlier $100 sanctions were imposed in two cases. However, a different view of the facts is not important because this referee's finding is determinative. Applying a standard of review that gives deference to the referee's findings, I must conclude that the statements were knowingly false. But don't the nature and frequency of the false statements play a role in determining the discipline to be imposed?

¶ 55. Courts also have an obligation to state the facts accurately. In an August 14, 1996, order and in a September 18, 1996, order, the court of appeals concluded that after February 1996, it "imposed a monetary penalty against [Kalal] several times for failure to file a brief timely." (Emphasis added.)

¶ 56. However, the record before this court shows that only two — not several — monetary penalties were imposed from February 1996 to September 18, 1996. It is possible that the full record of Kalal's 1996 motions and sanctions was not introduced into evidence and that the court of appeals' assertion of several monetary sanctions may be correct. Trivial observation? Irrelevant? Perhaps. But my point is simple: Courts as well as lawyers must use care to state the facts accurately. And we all err.

¶ 57. What is to be done in the future? Apparently the court of appeals concluded that Kalal had asked for too many extensions of time to file appellate briefs. The court of appeals therefore announced that it would examine Kalal's requests differently from the way it examined other attorneys' requests. It will be interesting to see whether the practice of singling out an attorney for special, personal treatment for his or her motions continues. Perhaps Smythe puts an end to the court of appeals using special rules to deal with the motions presented by a particular attorney, rather than deciding each motion in each case on its merits.

¶ 58. But let's look at the bigger picture. Smythe is but one case and Kalal is but one lawyer in a vast sea of motions seeking an extension of the time allowed for filing briefs. These motions are a growing cottage industry. Approximately 3500 new appeals are filed in the court of appeals each year. In 1996, 1,960 motions for extension of time were filed in the court of appeals, and in 1997, 2,056 such motions were filed. Although these motions were not exclusively motions to extend the time for filing briefs, a random sampling of 11% of the 1996 motions by the office of the clerk of the court of appeals indicates that 95% were requests for extensions of time for filing briefs. A similar sampling of 9% of the 1997 motions indicates that 85% were requests for extensions of time for filing briefs.

¶ 59. A conservative estimate that 80% of the motions for extension filed in the court of appeals are requests to extend the time for filing briefs means that the court of appeals receives approximately 1600 such motions a year, over 130 a month, to extend the time for filing briefs. Only an insignificant number and percentage of these are attributable to Kalal or his firm!

¶ 60. That's a lot of paper in and out of the office of the clerk of the court of appeals. And that's a substantial amount of staff time devoted to motions to extend the time for filing briefs. Does extending the time for filing briefs delay or interfere with decision-making in the court of appeals?

¶ 61. Perhaps the court of appeals should consider a change in its procedures to reduce staff time used for this purpose and to reduce conflicts with attorneys about these motions. The court of appeals might publish its procedures for granting and denying these motions so that its procedures are clear to all attorneys. And this court, with a much smaller motion practice, should consider doing the same.

¶ 62. Back to the present and this case. So what to do about this case? Is it petty or important? Lying at different pay scales? Honesty not the full story? No discipline? Private reprimand? Public reprimand? Suspension?

¶ 63. I am going along with the court's imposition of a public reprimand rather than a private reprimand in this matter, but not without some misgivings. This case makes me very uncomfortable.

WILLIAM A. BABLITCH, J.

¶ 64. {concurring). In nearly 19 years on this bench, I have been privileged to hear many outstanding attorneys argue forcibly and well for their clients. Perhaps I am naive, but I have never felt, until this case, that an attorney has deliberately misled or lied to our court.

¶ 65. I would have opted for a harsher penalty, but my colleagues did not agree. I bend to their wisdom.

¶ 66. I am concerned that Mr. Kalal still doesn't get it. At various times throughout his briefs, Kalal repeatedly points accusing fingers at the appeals court judge and at the referee. Mr. Kalal would be well advised to reconsider and take a long look at himself. His defense, technical to the extreme, amounts to no defense at all. He is obviously a bright, intelligent, articulate attorney, capable of representing his clients ably. He does himself, this court, and the bar a disservice by this conduct.

¶ 67. I am authorized to state that Justice N. PATRICK CROOKS joins this opinion.

DAVID T. PROSSER, J.

¶ 68. (concurring). I join the per curiam opinion without reservation. I write separately to address a gap in this court's analysis that ought to be explained.

¶ 69. On January 2, 1998, the court of appeals denied Attorney Kalal's motion to extend the time for filing a brief and dismissed the appeal of Kalal's client, Ralph Smythe, because his brief was not timely filed. See State v. Smythe, 225 Wis. 2d 456, 460, 592 N.W.2d 628 (1999). In a second order dated January 9,1998, the court of appeals denied a renewed motion to extend time. Id. at 461. This court later granted a petition for review, and we heard oral argument in the Smythe case on November 11, 1998. Id. at 456. Attorney Kalal's representations to the court in that oral argument are the source of this disciplinary proceeding. Per curiam op. at ¶ 6.

¶ 70. The per curiam opinion states that "[D]ur-ing the two years preceding the Smythe case, the court of appeals penalized or strongly cautioned Attorney Kalal or his firm for excessive extension motions in orders issued in the following cases[.]" The opinion then describes seven cases dating from February 14, 1996, to October 15, 1996. Id. at ¶ 9. However, the opinion lists no cases between October 15, 1996, and Kalal's December 29, 1997, motion in the Smythe case, a gap of 14 months.

¶ 71. The opinion cites no cases from this 14-month period because no case was disclosed in the record presented to this court. However, no inference should be drawn that Attorney Kalal made no extension requests during this period or that he was not admonished by the court of appeals during this period.

¶ 72. In its January 2, 1998, order in the Smythe case, the court of appeals said:

Appellant's counsel's firm has a long history of extension motions in this court, and we have in the past issued stern warnings and taken other actions to attempt to reduce their number. We have noted the toll these motions take on this court's time and resources. We have advised counsel that extension motions based on counsel's heavy workload fail to make the showing of good cause required by Rule 809.82(2), Stats., when they become routine. In the past, such motions were routine. For much of this past year, counsel's firm has been reasonable in its requests for extensions. However, we have again noted an increase in such motions. That increase, combined with this motion's complete absence of any showing of why the brief could not be completed during the five weeks before counsel's vacation, leads us to conclude that good cause has not been shown. Therefore, we deny the motion.

See Smythe, 225 Wis. 2d at 460 (emphasis added).

¶ 73. In his renewed motion for extension in early 1998, Kalal acknowledged that he had filed 15 motions for extension in 1997. See id. at 461.

¶ 74. At my request, this court independently examined public records of Kalal's 1997 extension motions to determine the basis for the court of appeals' stated concern. We discovered that Kalal filed an extension motion in December 1997 in State of Wisconsin ex rel. Ronald E. Patten v. David H. Schwartz, No. 97-2927. This motion resulted in a December 26, 1997, order allowing an extension but imposing a financial penalty of $100 on Kalal because good cause for delay had not been shown. On or about December 29, 1997, Kalal filed a motion to extend time in In re Refusal of James P Sullivan: Dane County v. James P Sullivan, No. 97-2143. This motion was denied in an order dated January 2, 1998.

¶ 75. These two cases were fresh in the mind of the court of appeals when it issued its Smythe orders in January 1998. The Patten case was clearly covered by Justice Crooks's question later in the year.

¶ 76. The two cases found outside the record have had no bearing whatever on the discipline imposed here. They are included in this concurring opinion solely to explain the apparent gap in this court's analysis. It would not be fair for this court to place the court of appeals in a false light by failing to explain what actually transpired during the 14-month period.

       SCR 20:3.3(a)(1) provides: "(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal."

       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. Since the conduct giving rise to the complaint occurred prior to October 1, 2000, the investigative body will be referred to as "the Board." Unless otherwise stated, references to supreme court rules will be to those in effect prior to October 1, 2000.

        State v. Smythe, 225 Wis. 2d 456, 460, 592 N.W.2d 628 (1999).

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

        United States v. Masel, 563 F.2d 322 (7th Cir. 1977).

        A Pinch of Deserved Condemnation, Capital Times, Jan. 5, 1977 (a complete text of Judge Doyle's sentencing statement).

       Donald Reilly, The New Yorker, Feb. 18 & 25, 2002, at 160.

       Robert Weber, The New Yorker, March 18, 2002, at 124.

       Per curiam op. at ¶ 1.

        State v. Smythe, 225 Wis. 2d 456, 592 N.W.2d 628 (1999).

       "[A] court of appeals decision to dismiss an appeal may be reversed when there is compelling evidence that that court based its decision, in part, on the past practices of counsel in unrelated matters." Smythe, 225 Wis. 2d at 459.

       Kalal's Brief at 23.

       Per curiam op. at ¶ 28. The per curiam opinion further states: "Kalal's colloquy with Justice Bablitch during the
        Smythe oral argument was, if not patently false, at least knowingly misleading." See per curiam op. at ¶ 27.

       Wis. Stat. §809.82 (1999-2000). See also Smythe, 225 Wis. 2d at 466.