source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Elizabeth A. Cavendish-Sosinski, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Elizabeth A. Cavendish-Sosinski, Respondent.
    Supreme Court

      No. 03-1697-D.

      Decided March 26, 2004.

    2004 WI 30
    (Also reported in 676 N.W.2d 887.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that the license of Elizabeth A. Cavendish-Sosinski to practice law in Wisconsin be suspended for nine months as discipline for professional misconduct. That misconduct as alleged in the Office of Lawyer Regulation (OLR) complaint involved 25 alleged violations of the Rules of Professional Conduct involving 9 separate client matters. The misconduct allegations include Cavendish-Sosinski's pattern of inattention to and failure to act with respect to client matters and to respond in a timely and sufficient manner to the OLR inquiries regarding her alleged misconduct. The pattern consisted of Cavendish-Sosinski's repeated violation of the attorney's duty to: (1) act with reasonable diligence as required by SCR 20:1.3; (2) keep a client reasonably informed about the status of a matter and to properly reply to reasonable requests for information as required by SCR 20:1.4(a); (3) comply with investigations of misconduct by the OLR as required under SCR 22.03(2), as well as the district investigative committee's inquiries as required under SCR 22.04(1); (4) failure to act to protect a client's interest as required by SCR 20:1.16(d); and (5) willful failure to provide information relevant to an OLR investigation as required by SCR 22.03(6).

¶ 2. In addition to recommending that Cavendish-Sosinski's license to practice law be suspended for nine months, the referee further recommended that prior to any reinstatement, Cavendish-Sosinski must demonstrate that her depression or mental health problems that might impair her ability to practice law are under sufficient control to permit her to practice law in accordance with accepted professional standards; also, that Cavendish-Sosinski pay the costs of these disciplinary proceedings now totaling $1373.77.

¶ 3. We determine that the misconduct as established in this proceeding warrants a suspension of Cavendish-Sosinski's license for nine months. We also determine that prior to any reinstatement, Cavendish-Sosinski shall demonstrate that her depression or mental health problems that might impair her ability to practice law are sufficiently controlled to permit her to practice law in accordance with accepted professional standards; and finally, we determine that Cavendish-Sosinski shall pay the costs of these disciplinary proceedings in the amount specified.

¶ 4. The respondent, Elizabeth A. Cavendish-Sosinski, was admitted to practice law in this state on January 18, 1994, and has practiced in Pewaukee. She has never previously been the subject of a disciplinary proceeding except, as noted in footnote one, her license has been temporarily suspended for her failure to cooperate in the OLR's investigation of these alleged disciplinary infractions. Her license remains temporarily suspended pursuant to this court's December 16, 2003, order.

¶ 5. The OLR filed a complaint in this court on June 26, 2003, alleging 25 violations by the respondent of the Rules of Professional Conduct involving 9 separate client matters. After the complaint was filed, Attorney Richard M. Esenberg was appointed to act as referee in this matter. Referee Esenberg subsequently filed his referee's report detailing the OLR's attempts and repeated failures to contact and serve Cavendish-Sosinski who had informed the OLR that she was abandoning her practice and moving to Louisiana. Although many of the attempts to serve Cavendish-Sosinski with the various documents related to this disciplinary proceeding proved futile, ultimately service of the OLR complaint and order to answer was completed on July 29, 2003.

¶ 6. After Cavendish-Sosinski failed to answer the complaint or otherwise appear within 20 days as required by SCR 22.14(1), the OLR filed a motion for default judgment which was served by mail on Cavendish-Sosinski at her last known address. Again, she did not respond to that motion, nor did she then answer the complaint or appear in the action. Because of the numerous futile attempts to engage Cavendish-Sosinski in this disciplinary proceeding, the referee recommended that she be found in default and that the allegations of the OLR complaint be deemed to be established.

¶ 7. Neither the OLR nor the respondent has appealed from the referee's report.

¶ 8. We agree that Cavendish-Sosinski is in default and accordingly, we deem the referee's findings to be established and supported by the allegations in the OLR complaint. See In re Disciplinary Proceedings Against Jackson, 221 Wis. 2d 616, 585 N.W.2d 151 (1998). The complaint's allegation of 25 violations of the Rules of Professional Conduct and the rules concerning lawyer regulation will be briefly discussed.

CLIENT J.VE — COUNTS 1-2

¶ 9. Cavendish-Sosinski was appointed in July 2000 in federal court to represent J.VE in a habeas corpus matter. Respondent and J.VE subsequently disagreed about the representation and the respondent's failure to communicate with him. J.VE's initial complaints to the OLR concerning these problems were dismissed but that investigation was subsequently reopened focusing on Cavendish-Sosinski's alleged failures to communicate with J.VE after March 2001.

¶ 10. J.VE wrote to Cavendish-Sosinski on April 11, 2001, asking her questions about his case, but she did not respond. Then, on April 30, 2001, a staff member at the Wisconsin Department of Corrections (DOC) attempted to set up a telephone conference between Cavendish-Sosinski and J.VE; although the DOC staff member left a message and number for Cavendish-Sosinski to call, she did not return his call. On May 2, 2001, the staff person again tried calling her, but Cavendish-Sosinski's voice mailbox was full.

¶ 11. On May 21, 2001, on June 19, 2001, and again on June 26, 2001, an OLR staff member wrote to Cavendish-Sosinski regarding her failure to respond to J.VE's request for information. Cavendish-Sosinski failed to respond to the OLR investigative letters.

¶ 12. On July 26, 2001, a fourth OLR investigative letter was sent to Cavendish-Sosinski. This time she responded in a letter dated August 7, 2001, stating that she had not answered J.VE's April 11, 2001, letter because "I was trying to professionally deal with his blatant accusation that I had lied to him in this office."

¶ 13. The OLR subsequently referred this matter to the district committee for investigation. On May 23, 2002, and again on June 5, 2002, the district committee investigator wrote to Cavendish-Sosinski requesting that she contact him; on May 29, 2002, the investigator attempted to contact her by telephone. Cavendish-Sosinski did not respond to these letters or return the phone call; she did not cooperate with the district committee's investigation until after she had personally been served with a notice to appear.

¶ 14. Based on this course of conduct, the referee concluded that the respondent had committed the violations asserted in Counts 1 and 2 of the complaint. Specifically, the referee concluded that Cavendish-Sosinski's conduct constituted a failure to respond to reasonable requests by a client for information, in violation of SCR 20:1.4(a) and failure to cooperate with an OLR investigation and with a district committee, in violation of SCR 22.03(2) and 22.04(1).

CLIENT J.A.E. — COUNTS 3-5

¶ 15. The OLR complaint alleged that Cavendish-Sosinski represented J.A.E. in a matter in Waukesha Municipal Court. Cavendish-Sosinski informed J.A.E. on August 9, 2000, that J.A.E. need not appear at a pretrial conference then set for August 21, 2000. That pretrial was subsequently rescheduled for August 23, 2000, but Cavendish-Sosinski was not notified of the new date.

¶ 16. When neither J.A.E. or Cavendish-Sosinski appeared at the rescheduled pretrial conference, a default judgment was entered against J.A.E. in the Waukesha Municipal Court. On September 6, 2000, Cavendish-Sosinski asked the court to reopen the default judgment asserting lack of notice. That request was granted and a new pretrial was scheduled for October 10, 2000.

¶ 17. On September 20, 2000, Cavendish-Sosinski wrote to J.A.E. informing her of that new date, but telling J.A.E. that she need not appear. Cavendish-Sosinski also informed J.A.E. that informal negotiations were ongoing with the city attorney.

¶ 18. Neither Cavendish-Sosinski nor her client J.A.E. appeared at that October 10, 2000, pretrial; as a result, a default judgment was again entered against J.A.E. who had not appeared based on the respondent's information. Cavendish-Sosinski did not inform J.A.E. of that default judgment.

¶ 19. The OLR complaint further alleged that during her representation of J.A.E. Cavendish-Sosinski failed to respond to various requests for information about the status of the case. Cavendish-Sosinski later explained her failure on the ground that she had no legal assistant and her office systems were in disarray at the time.

¶ 20. In April of 2001 J.A.E. filed a grievance with the OLR against Cavendish-Sosinski. The OLR staff on April 24, 2001, wrote a letter to Cavendish-Sosinski requesting her written response to the J.A.E. grievance. Cavendish-Sosinski did not respond nor did she respond to a second OLR request sent to her on May 24, 2001. After personal service of the OLR's third request requiring a response by June 14, 2001, Cavendish-Sosinski finally responded on June 22, 2001. Thereafter, however, she failed to respond to two additional letters from OLR staff seeking supplemental information.

¶ 21. After the matter was referred to the OLR's district committee, the district committee's investigator on May 23, 2002, and June 5, 2002, wrote to Cavendish-Sosinski requesting that she contact him; on May 29, 2002, the investigator also attempted to contact her by telephone. Cavendish-Sosinski did not respond to the investigator's letters or to his phone call; she did not cooperate with the district committee's investigation until after she had been personally served with a notice to appear.

¶ 22. Based on this course of conduct, the referee concluded that respondent had committed the violations alleged in Counts 3, 4, and 5 of the OLR complaint. Specifically, the referee concluded that Cavendish-Sosinski's conduct violated the attorney's duty to act with reasonable diligence as prescribed by SCR 20:1.3; constituted a failure to keep a client informed as required by SCR 20:1.4(a); and was a failure to cooperate with an OLR investigation and with a district committee as required by SCR 22.03(2), SCR 22.03(6) and SCR 22.04(1).

CLIENT E.B. — COUNTS 6-8

¶ 23. The OLR complaint alleged that in March 1998 Cavendish-Sosinski was appointed by the state public defender (SPD) to represent E.B. in a postcon-viction criminal matter. Between April 1998 and January 1999 the respondent failed to meet with E.B. even though she had repeatedly promised she would do so once she had obtained his court file and other information and documents. Cavendish-Sosinski later scheduled a personal meeting with E.B. for January 1999 but then cancelled it, citing the need for more information.

¶ 24. Although Cavendish-Sosinski had written to E.B. 11 times after her appointment in March 1998 to April 27, 2000, most of those letters were in direct response to the state public defender's demands that she write to E.B. On May 10, 2000, in response to one of those SPD demands, Cavendish-Sosinski had an hour-long telephone conference with E.B. That was the first and only time she ever talked with E.B.

¶ 25. Between January 2001 and August 2001 the SPD's office wrote several messages to and left several telephone messages for Cavendish-Sosinski; however, she called back only once and then only left a message. In August 2001 the SPD's office wrote to Cavendish-Sosinski informing her that she was being replaced in the E.B. matter, that steps were being taken to decertify her from further SPD appellate appointments and that the matter would be referred to the OLR. E.B. had, however, in June 2001 already filed his own grievance with the OLR concerning Cavendish-Sosinski. After E.B.'s grievance, the OLR wrote to Cavendish-Sosinski three times asking her to respond and supply information about the situation. She did not respond until she had been personally served with the OLR's fourth letter requesting information. In her response to that fourth request, Cavendish-Sosinski admitted that her representation in the E.B. matter had been "lax"; she explained that she had been suffering from depression.

¶ 26. E.B.'s grievance was subsequently referred to the OLR's district committee for investigation. The district's investigator wrote to Cavendish-Sosinski on May 23, 2002, and again on June 5, 2002, requesting that she contact him. In addition, on May 29, 2002, the investigator attempted to contact her by telephone. Again, Cavendish-Sosinski did not respond to the letters or phone call, and did not cooperate with the district committee's investigation until after she had been personally served with a notice to appear.

¶ 27. Based on this course of conduct, the referee concluded that the respondent had committed the violations as alleged in Counts 6, 7, and 8 of the OLR complaint. Specifically, the referee concluded that Cavendish-Sosinski's conduct constituted a failure to act with reasonable diligence and promptness, in violation of SCR 20:1.3; a failure to promptly respond to reasonable requests for information, in violation of SCR 20:1.4(a); and a failure to cooperate with an OLR investigation and a district committee's request for information, in violation of SCR 22.03(2) and 22.04(1).

CLIENT R.G. — COUNT 9

¶ 28. The OLR complaint alleged that on July 25, 2000, R.G. retained Cavendish-Sosinski to represent him in a criminal matter. Approximately two months later, however, R.G. retained successor counsel. Then, on August 22,2001, R.G. filed a grievance with the OLR against Cavendish-Sosinski alleging professional misconduct. The OLR staff, on two separate occasions, requested that Cavendish-Sosinski supply information regarding the R.G. matter but she failed to do so. On November 14, 2001, she finally responded to the R.G. grievance as requested by the OLR.

¶ 29. Thereafter, the R.G. matter was referred to the district committee for investigation. Again, Cavendish-Sosinski did not respond to the first two letters and telephone call from the district's investigator; and again she did not cooperate with the district committee until she had been personally served with a notice to appear.

¶ 30. Based on this course of conduct, the referee concluded that the respondent had committed the violations as alleged in Count 9 of the OLR complaint. Specifically, the referee found that Cavendish-Sosinski's conduct violated the attorney's duty to cooperate with an OLR and district committee investigation as required by SCR 22.03(2) and 22.04(1).

CLIENT R.T. — COUNTS 10-13

¶ 31. The OLR complaint alleged that in April 2001 Cavendish-Sosinski was appointed by the SPD to represent R.T. on his appeal from a felony conviction. Cavendish-Sosinski initially made several contacts with R.T. promising to visit him to personally discuss his case. R.T., who was incarcerated, then made several attempts to contact Cavendish-Sosinski including several telephone calls. He also sent nine or ten letters to her to which she did not respond. Although R.T. could only place collect calls from prison, Cavendish-Sosinski instructed her legal assistant not to accept any collect telephone calls.

¶ 32. Beginning on July 10, 2001, R.T. made several requests to Cavendish-Sosinski for his transcripts; however, she never provided the transcripts to him. Although Cavendish-Sosinski claimed that she had ordered the transcripts, she never followed up with the court reporter to obtain the transcripts in a timely manner. As a result of her failure to file the transcripts with the court of appeals in a timely manner, R.T.'s right to appeal was thwarted.

¶ 33. R.T. filed a grievance with the OLR. The OLR staff subsequently sent Cavendish-Sosinski three requests that she respond to the R.T. grievance; she did not respond to any of the OLR's requests. After a fourth request was personally served on her, she finally submitted a response to R.T.'s grievance.

¶ 34. Subsequently, the R.T. matter was referred to the OLR's district committee for investigation. The district's investigator wrote two letters to Cavendish-Sosinski requesting that she contact him and he also made one attempt to contact her by telephone. Cavendish-Sosinski did not respond to the letters or the telephone call; she only cooperated with the district committee's investigation after she had been personally served with a notice to appear.

¶ 35. The referee, describing the R.T. grievance as "the most serious matter" in the OLR complaint, concluded that Cavendish-Sosinski had committed the violations as alleged in Counts 10, 11, 12, and 13 of the OLR complaint. Specifically, the referee found that Cavendish-Sosinski’s conduct constituted a failure to act with reasonable diligence and promptness in a client matter as required by SCR 20:1.3; a failure to respond to reasonable requests for information as required by SCR 20:1.4(a); a failure to protect a client's interest as required by SCR 20:1.16(d); and a failure to cooperate with an OLR investigation and with the district committee as required under SCR 22.03(2) and 22.04(1).

CLIENT L.C. — COUNTS 14-16

¶ 36. The OLR complaint alleged that in late summer of 2000 L.C. hired Cavendish-Sosinski to represent him after a bench warrant for L.C.'s arrest had been issued. Cavendish-Sosinski thereafter sent L.C. a retainer agreement and obtained from him payment of an additional $750 fee telling L.C. that she would attempt to quash the warrant. However, Cavendish-Sosinski thereafter took no action in the L.C. matter.

¶ 37. L.C. attempted to contact her on several occasions to learn the status of his case but was unsuccessful. Cavendish-Sosinski did not speak with L.C. until March of 2001. L.C. wrote to her in April and June 2001 informing her that the continued existence of the bench warrant was interfering with his livelihood as an over-the-road trucker, and with his plans to marry and have his new wife join him in the trucking business.

¶ 38. L.C. subsequently filed a grievance against Cavendish-Sosinski with the OLR in January of 2002; he later submitted written materials substantiating his allegations against Cavendish-Sosinski.

¶ 39. Thereafter, Cavendish-Sosinski failed to respond to two OLR requests for information concerning L.C.'s grievance. Finally, she acknowledged that she had done no work on the L.C. matter and attributed that failure to her depression. The respondent thereafter refunded L.C. the $750 fee he had paid her.

¶ 40. Based on this course of conduct, the referee concluded that the respondent had committed the violations as alleged in Counts 14, 15, and 16 of the OLR complaint. Specifically, the referee concluded that Cavendish-Sosinski had failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3; had failed to promptly respond to reasonable requests for information and to keep her client informed about the status of the matter, in violation of SCR 20:1.4(a); and had failed to cooperate with an OLR investigation, in violation of SCR 22.03(2).

CLIENT A.J. — COUNTS 17-19

¶ 41. The OLR complaint alleged that on November 8, 2001, A.J. retained Cavendish-Sosinski to represent him after he had been charged with a Town of Brookfield ordinance violation and two Waukesha County misdemeanor criminal counts. A.J.'s mother paid $500 to Cavendish-Sosinski as an initial retainer to represent him. Cavendish-Sosinski sent notices of the retainer to each court and filed discovery requests.

¶ 42. On December 17, 2001, Cavendish-Sosinski told A.J.'s mother that A.J. did not have to be present for a hearing in the Town of Brookfield Municipal Court scheduled for December 20, 2001; as a result, A.J. did not attend that hearing nor did Cavendish-Sosinski. On December 22, 2001, A.J. received notice that a default judgment had been entered against him for his failure to appear at the December 20 hearing.

¶ 43. The OLR complaint further alleged that on December 27, 2001, a hearing was scheduled in the Waukesha County cases. When A.J.'s mother called Cavendish-Sosinski for the location for that hearing, Cavendish-Sosinski told her that an adjournment had been requested and granted. Because of the experience with the prior default judgment in the municipal court matter, A.J. called the Waukesha Court to confirm that the hearing had been adjourned. A. J. was informed that the matter was still on the court's calendar and that no adjournment had been requested or granted. A.J. appeared at the hearing pro se and was then told that had he not appeared, a bench warrant for his arrest would have been issued. The court rescheduled that hearing to January 8, 2002.

¶ 44. On December 27, 2001, the day of the Waukesha County hearing, the court's calendar clerk called Cavendish-Sosinski. Cavendish-Sosinski told the clerk that she believed that that hearing had been adjourned. Cavendish-Sosinski thereafter left on a trip to Louisiana but did not check the court file in order to confirm whether or not A.J.'s hearing had been adjourned.

¶ 45. On January 7, 2002, A.J. retained new counsel. By certified letter, A.J. requested a refund of his retainer from Cavendish-Sosinski and she thereafter withdrew as his counsel.

¶ 46. On January 14, 2002, A.J. and his mother filed a grievance with the OLR, and subsequently provided further written materials to substantiate their allegations against Cavendish-Sosinski. On April 3, 2002, the OLR staff requested Cavendish-Sosinski's written response to A.J.'s grievance; she failed to respond. Then on April 29, 2002, the OLR staff, via first-class, certified mail, sent Cavendish-Sosinski a second request for a response noting that she had failed to respond to the OLR's initial letter. Cavendish-Sosinski's secretary signed the certified receipt on May 7, 2002; however, again Cavendish-Sosinski did not respond to the OLR's request.

¶ 47. Subsequently, on May 13, 2002, the OLR staff, via certified letter and personal service, requested that Cavendish-Sosinski submit her written response, in person, at the OLR offices on May 20, 2002. Instead, Cavendish-Sosinski submitted a response via fax on that date. She also sent A.J. a copy of her response along with a $500 fee refund check. That refund was not made until May 21, 2002. Because Cavendish-Sosinski had not refunded A.J.'s fee immediately upon termination of the representation, A.J. had difficulty paying successor counsel.

¶ 48. Based on this course of conduct, the referee concluded that the respondent had committed the violations as alleged in Counts 17, 18, and 19 of the OLR complaint. Specifically, the referee concluded that Cavendish-Sosinski had failed to act with reasonable promptness and diligence, in violation of SCR 20:1.3; had failed to protect a client's interest, in violation of SCR 20:1.16(d); and had failed to cooperate with an OLR investigation, in violation of SCR 22.03(2).

CLIENT S.H. — COUNTS 20-21

¶ 49. The OLR complaint alleged that in December of 2001 S.H. retained Cavendish-Sosinski to represent her on a Town of Lisbon municipal charge, and that on December 20, 2001, S.H. paid Cavendish-Sosinski a retainer of $750.

¶ 50. Subsequently, Cavendish-Sosinski appeared in court on behalf of S.H. on two occasions and forwarded to S.H. copies of relevant police reports. S.H. also met with Cavendish-Sosinski several times including a meeting at Cavendish-Sosinski's office on March 11, 2002.

¶ 51. In April 2002, S.H. received a letter from the municipal court stating that a default judgment had been entered against her for her failure to appear at a scheduled March 15, 2002, hearing. Thereafter, S.H. and her husband repeatedly tried to contact Cavendish-Sosinski about the default judgment; Cavendish-Sosinski never returned their calls.

¶ 52. On May 24, 2002, S.H. sent a certified letter asking Cavendish-Sosinski why she had not appeared on S.H.'s behalf at the March 15, 2002, hearing. In that letter, S.H. stated that she had tried to call Cavendish-Sosinski several times regarding the status of the case including its disposition, but that Cavendish-Sosinski failed to return any of the calls. S.H. also noted that Cavendish-Sosinski had told her that she (Cavendish-Sosinski) had sent a letter to the court regarding resolution of S.H.'s case; however, according to S.H., her court file contained no such a letter. In addition, in her certified letter, S.H. pointed out she and Cavendish-Sosinski had discussed favorable factors that could be pointed out to the court in S.H.'s case. S.H. wrote that Cavendish-Sosinski had not followed through on those items.

¶ 53. The OLR complaint further alleged that Cavendish-Sosinski was aware that S.H.'s husband had attempted to contact her several times about the case. Cavendish-Sosinski told him, however, that confidentiality rules prevented her from speaking to him about S.H.'s case; she also asserted that she had been unable to speak with S.H. directly. Cavendish-Sosinski also claimed that she thought S.H. had agreed to a resolution and sentence in her case at the March 11, 2002, meeting in Cavendish-Sosinski's office. Consequently, Cavendish-Sosinski considered S.H.'s file closed and had not associated S.H.'s May 24, 2002, certified letter with any necessity to act on S.H.'s case.

¶ 54. S.H. thereafter filed a grievance with the OLR. Again, the OLR requested a written response from Cavendish-Sosinski, and again Cavendish-Sosinski did not respond. Then by certified letter on September 17, 2002, the OLR again requested Cavendish-Sosinski to provide information regarding S.H.'s grievance. The certified mail receipt was returned showing that that second letter had been received and signed for by Cavendish-Sosinski's secretary on September 25, 2002.

¶ 55. Even though the OLR's certified letter directed Cavendish-Sosinski to file her written response to S.H.'s grievance no later than September 27, 2002, it wasn't until October 18, 2002, that Cavendish-Sosinski faxed a request to the OLR for an extension of time to respond to S.H.'s grievance. The OLR granted that request giving the respondent until November 8, 2002, to respond. Cavendish-Sosinski, however, did not respond by that deadline.

¶ 56. The OLR complaint further alleged that on November 22, 2002, Cavendish-Sosinski was personally served with another OLR request for a response; on November 29, 2002, she faxed the OLR acknowledging that she had received the requests and she again asked for an extension of time to respond. She was granted another extension and finally, on December 12, 2002, Cavendish-Sosinski faxed her formal response to the OLR.

¶ 57. In that December 12, 2002, response Cavendish-Sosinski explained that during the time S.H. had attempted to contact her by certified letter, Cavendish-Sosinski was recovering from a year long clinical depression. She further reported that she had taken S.H.'s file home so she could work on it because she considered S.H.'s case, along with others, as one that needed to be dealt with "delicately" because the problems had been created or exacerbated by Cavendish-Sosinski's depressed state. According to Cavendish-Sosinski's response, those cases involved clients who were persistent or involved issues that had caused Cavendish-Sosinski to have panic attacks. This response further reported that there had been a fire at Cavendish-Sosinski's home in June of 2002 and that S.H.'s file had been destroyed in that fire, including the unopened May 24, 2002, certified letter from S.H. According to Cavendish-Sosinski, when S.H.'s husband began contacting her, her depression then manifested itself into an "ignore the situation as the case is closed" attitude.

¶ 58. Based on this course of conduct, the referee concluded that the respondent had committed the violations as alleged in Counts 20 and 21 of the OLR complaint. Specifically, the referee concluded that Cavendish-Sosinski had failed to respond promptly to a client's request for information, in violation of SCR 20:1.4(a) and had failed to cooperate with an OLR investigation, in violation of SCR 22.03(2).

CLIENT J.K. — COUNTS 22-24

¶ 59. The OLR complaint alleged that in June 2001 Cavendish-Sosinski was appointed by the state public defender to represent J.K. in two postconviction appeal matters. Later J.K. complained to the SPD office that Cavendish-Sosinski had failed to respond to his repeated inquiries regarding the status of his cases and that she had had no contact with him for almost a year. J.K. also contacted the court of appeals reporting his concerns about Cavendish-Sosinski's representation.

¶ 60. On May 9, 2002, and again on June 13, 2002, the SPD's office wrote to Cavendish-Sosinski about her lack of contact with J.K. Cavendish-Sosinski failed to respond to either letter. She also failed to respond to telephone calls from the SPD's office on August 6, 2002, and September 5, 2002.

¶ 61. The court of appeals subsequently ordered the SPD to file a report with the court addressing J.K's eligibility for appointment of substitute counsel in his two cases. In its response, the SPD's office advised the court that it believed J.K. was entitled to new postcon-viction counsel and that the SPD would appoint new counsel for him. In addition, the SPD asked the court to order Cavendish-Sosinski to immediately forward copies of J.K's court records and transcript to the SPD's appellate division so that that material could then be provided to his new counsel.

¶ 62. On September 9, 2002, and again on September 10, 2002, the court of appeals issued orders granting the SPD's request and ordering Cavendish-Sosinski to file affidavits of service with the court no later than September 20, 2002, proving that she had forwarded the requested items in both of J.K.'s cases. In these orders, the court of appeals warned that if she failed to provide the requested items, sanctions would be imposed. Cavendish-Sosinski mailed the requested items to the SPD on October 18, 2002.

¶ 63. After the SPD's office forwarded to the OLR a copy of the SPD's report filed in the court of appeals regarding Cavendish-Sosinski, the OLR commenced an informal inquiry into the matter and requested that Cavendish-Sosinski provide a written response on or before October 16, 2002. She did not respond.

¶ 64. Thereafter, by certified letter on October 18, 2002, the OLR again requested that Cavendish-Sosinski provide information regarding her conduct in the J.K. matter. That certified letter was signed for by Cavendish-Sosinski's secretary on October 21,2002, but Cavendish-Sosinski did not respond to that request.

¶ 65. On November 22, 2002, Cavendish-Sosinski was personally served with the OLR's third request for a response in the J.K. matter. On November 29, 2002, Cavendish-Sosinski contacted OLR by fax acknowledging that she had received the requests and she asked for an extension of time to respond. The OLR granted her an extension until December 13, 2002.

¶ 66. On that date, Cavendish-Sosinski faxed her formal response to the OLR's investigation of the J.K. matter. In that response, Cavendish-Sosinski asserted that when she accepted the appointment to represent J.K., she was overworked and exhausted and suffering from clinical depression. She also acknowledged that she should not have accepted new clients during that period; she claimed that during the time other appointment in the J.K. matter, she had relied too heavily on a new assistant to log in and file documents as they were received in the mail. According to Cavendish-Sosinski's response, had she been operating at her normal mental capacity during that time, she would have been "on top" of the situation and would have ensured that all time limits were recorded and met; however, because she was so overextended with other cases and scheduled court hearings, she said she had not paid proper attention to cases — like J.K.'s — that she thought did not require immediate attention.

¶ 67. Based on this course of conduct, the referee concluded that the respondent had committed the violations as alleged in Counts 22, 23, and 24 of the OLR's complaint. Specifically, the referee concluded that Cavendish-Sosinski had failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3; also, she had failed to promptly respond to reasonable requests for information and to keep her client informed about the status of a matter, in violation of SCR 20:1.4(a); and finally she had failed to cooperate with an OLR investigation, in violation of SCR 22.03(2).

NONCOOPERATION WITH OLR INQUIRY-COUNT 25

¶ 68. The OLR complaint noted that based on information concerning Cavendish-Sosinski's personal situation that potentially impaired her ability to practice law — including her depression, and events like her secretary quitting, her spouse filing for divorce, her house being destroyed by fire, and her need for medical treatment — the OLR had opened an investigative file regarding Cavendish-Sosinski's situation. The OLR staff sent her its initial investigative letter on November 15, 2001, but Cavendish-Sosinski did not respond within the 20 days as directed. The OLR then sent her a second request on December 17, 2001, and again, she failed to respond. The OLR's third investigative request was served on Cavendish-Sosinski on January 7, 2002. On January 13, 2002, Cavendish-Sosinski responded stating that she would provide the requested information addressing the issue of her depression and its effect on her ability to practice law; however, she never submitted such a written response. According to the OLR, the matter was then referred to the district committee for investigation.

¶ 69. The district investigator, as had occurred in the other matters, attempted to contact Cavendish-Sosinski three times including one attempt to contact her by phone. Again, she did not respond to the letters or the phone call; she only responded after being personally served with a notice to appear.

¶ 70. Based on this course of conduct, the referee concluded that the respondent had committed the violation as alleged in Count 25 of the OLR complaint. Specifically, the referee concluded that Cavendish-Sosinski had failed to cooperate with an OLR investigation and with a district committee, in violation of SCR 22.03(2) and 22.04(1).

¶ 71. Finally, the OLR complaint noted that on February 5, 2003, the OLR received a letter from Cavendish-Sosinski stating that due to her depression, she was abandoning the practice of law and moving to Louisiana to pursue an alternate graduate degree. In this letter, Cavendish-Sosinski claimed that she had, in effect, closed her law practice; however, she reported that she still employed a staff person to forward legal mail and messages and to retrieve items from her files to permit Cavendish-Sosinski to respond to other requests for information. In addition, Cavendish-Sosinski informed the OLR that as of January 2003, her practice was limited to six clients with active files, and that four of those files would be resolved by March 2003. The remaining two, Cavendish-Sosinski claimed, were proceeding through the criminal postconviction system. Cavendish-Sosinski also asserted that she did not intend to apply for a license to practice law in Louisiana.

¶ 72. With respect to Cavendish-Sosinski's claim that her conduct was attributable to her chronic clinical depression, the referee wrote:

Her failure to participate in this matter makes it impossible to place much, if any, weight on this as a mitigating factor. There is no way to determine what role such depression may have played in her misconduct. However, claimed depression, combined with, not only neglect of clients' interest, but of her own interest in cooperating with the OLR to avoid exacerbation of her situation, suggests an inability to conform her conduct to that required of her. In this light, protection of the public dictates that she be required to address any mental health issues she might have prior to resuming the practice of law. I recommend, therefore, that the OLR's request that she demonstrate, as a condition of reinstatement, that any mental health problems that might impair her ability to practice law in accordance with accepted professional standards are appropriately controlled, be granted.

¶ 73. We adopt the findings of fact and conclusions of law set forth in the referee's report and we determine that the seriousness of Cavendish-Sosinski's misconduct as established in this proceeding warrants the suspension of her license to practice law in this state for a period of nine months. We also determine that prior to any reinstatement of her license, Cavendish-Sosinski must demonstrate that her depression or mental health problems that might impair her ability to practice law are under sufficient control so that she would be able to practice law in accordance with accepted professional standards. Finally, we direct that Cavendish-Sosinski be ordered to pay the costs of these disciplinary proceedings now totaling $1373.77.

¶ 74. IT IS ORDERED that the license of Elizabeth A. Cavendish-Sosinski to practice law in Wisconsin is suspended for a period of nine months commencing as of the date of this opinion.

¶ 75. IT IS FURTHER ORDERED that as a condition of reinstatement of her license to practice law following the period of suspension, Elizabeth A. Cavendish-Sosinski be required to submit a report from a psychiatrist approved by the Office of Lawyer Regulation concerning her mental condition and demonstrating that her depression or mental health problems that might impair her ability to practice law are sufficiently controlled so that she would be able to practice law in accordance with accepted professional standards.

¶ 76. IT IS FURTHER ORDERED that within 60 days of the date of this order Elizabeth A. Cavendish-Sosinski pay to the Office of Lawyer Regulation the costs of this proceeding totaling $1373.77, provided that if the costs are not paid within the time specified and absent a showing to this court of her inability to pay the costs within that time, the license of Elizabeth A. Cavendish-Sosinski to practice law in Wisconsin shall remain suspended until further order of this court.

¶ 77. IT IS FURTHER ORDERED that if she has not already done so, Elizabeth A. Cavendish-Sosinski must comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       On December 16, 2003, this court granted the Office of Lawyer Regulation's (OLR) motion to temporarily suspend the license of Elizabeth A. Cavendish-Sosinski to practice law in this state pursuant to SCR 22.03(4), for her willful failure to respond or cooperate with the OLR's investigation into allegations of her misconduct. Cavendish-Sosinski filed no response to the motion or to this court's order requiring her to show cause, in writing, why the OLR's motion should not be granted. Accordingly, Cavendish-Sosinski's license to practice law was ordered temporarily suspended as of December 16, 2003, and until further order of the court. Her license remains under suspension.


text:
    In the Matter of Disciplinary Proceedings Against Ty Christopher Willihnganz, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Ty Christopher Willihnganz, Respondent.
    Supreme Court

      No. 03-2161-D.

      Decided March 26, 2004.

    2004 WI 31
    (Also reported in 676 N.W.2d 473.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Ty Christopher Will-ihnganz be publicly reprimanded for professional misconduct. That misconduct consisted of failing to abide by a client's decision concerning the objectives of representation, failing to consult with the client as to means by which such objectives are to be pursued, and failing to abide by the client's decision, after consultation, as to a plea to be entered, in violation of SCR 20:1.2(a). Also, the misconduct consisted of Willihngaiiz's willful failure to provide relevant information, to answer questions fully, or to furnish documents to the Office of Lawyer Regulation (OLR) during the course of an investigation into misconduct allegations, in violation of SCR 21.15(4), SCR 22.03(2), SCR 22.03(6), and SCR 22.04(1). Neither Attorney Willih-nganz nor the OLR has appealed from the referee's findings of fact, conclusions of law, and recommended discipline.

¶ 2. We conclude that Ty Christopher Willihnganz's professional misconduct warrants a public reprimand for his violation of various supreme court rules. We also agree with the referee's recommendation that Willihnganz be required to pay the costs of this disciplinary proceeding totaling $1207.92.

¶ 3. Ty Christopher Willihnganz was admitted to practice law in Wisconsin on April 11, 1996. His license to practice law was suspended on June 6, 2001, for noncompliance with Continuing Legal Education (CLE) reporting requirements. His license remains suspended.

¶ 4. On August 15, 2003, the OLR filed a complaint in this court alleging two counts of violation of the rules of professional responsibility by Willihnganz. Willihnganz subsequently filed an untimely answer to the complaint and Attorney John A. Fiorenza was appointed as referee in this matter. Subsequently, Referee Fiorenza granted the OLR's motion for a default judgment based on Willihnganz's failure to respond to the referee's request for a pretrial conference and Willihnganz's failure to appear at the scheduled pretrial conference. Referee Fiorenza noted that the correspondence to Willihnganz had been returned indicating that he has moved and left no forwarding address. Referee Fiorenza, on December 19, 2003, filed his report and recommendation in this disciplinary action.

¶ 5. The two counts of professional misconduct alleged in the OLR complaint briefly summarized are these:

CLIENT G.H.B.

¶ 6. G.H.B. retained Attorney Charles J. Hertel, a partner in the law firm in which Willihnganz was then an associate. G.H.B. retained Attorney Hertel to represent him on an August 20, 1998, municipal ordinance citation for trespassing. Attorney Hertel entered a plea of not guilty on G.H.B.'s behalf.

¶ 7. On September 15, 1998, G.H.B. executed an authorization form which allowed the law firm to appear on G.H.B.'s behalf in the trespass matter without G.H.B. being present. Attorney Hertel informed G.H.B., in correspondence dated September 11, 1998, which enclosed the "Written Authorization to Appear" as follows: "You should be advised that we will take no action unless it is first authorized by you."

¶ 8. Trial in the trespass matter was scheduled for October 29, 1998; however, because Attorney Hertel was unavailable on that date, the case was assigned to Willihnganz. G.H.B. was not given written notice of the October 29, 1998, trial date.

¶ 9. Subsequently, Attorney Hertel instructed Willihnganz to contact G.H.B. to prepare for trial and to contest the trespass charges. On October 28, 1998, Hertel again instructed Willihnganz to contest the charges pending against G.H.B. On October 29, 1998, the scheduled trial date, Willihnganz appeared in court on G.H.B.'s behalf; G.H.B. was not present. Willihnganz entered a no contest plea on G.H.B.'s behalf; G.H.B. was found guilty and a forfeiture of $147.50 was assessed against him in the trespass matter.

¶ 10. Subsequently, Attorney Hertel asked Willih-nganz about what had occurred at that court hearing. Willihnganz informed Attorney Hertel that G.H.B. had not appeared and as a consequence, he had been found guilty.

¶ 11. Attorney Hertel asked Willihnganz whether he had been in contact with G.H.B. Willihnganz responded that he had left a number of telephone messages for G.H.B., but the client had not returned the calls. G.H.B. was not given written notice by Willih-nganz of the disposition in his trespass matter.

¶ 12. G.H.B. remained unaware of the forfeiture and subsequently, his driver's license was suspended for nonpayment of it. G.H.B. thereafter paid the forfeiture, plus a fee, to get his driver's license reinstated.

¶ 13. Willihnganz left the Hertel firm and accepted employment with a law firm in Brookfield, Wisconsin. Willihnganz's employment with the Brook-field firm, however, ended after his license to practice law in this state was suspended on June 6, 2001, for his failure to comply with mandatory CLE requirements.

¶ 14. By letter dated February 13, 2002, the OLR staff informed Willihnganz of a grievance inquiry concerning the G.H.B. matter. The OLR requested his written response by March 8, 2002, but Willihnganz failed to respond by that date. On March 11, 2002, the OLR staff sent a follow-up letter to Willihnganz by certified and first-class mail requesting a response by March 21, 2002. Willihnganz signed the certified mail receipt on March 12, 2002, but failed to respond as requested by March 21, 2002.

¶ 15. Subsequently, on May 14, 2002, the OLR staff forwarded Willihnganz's file to OLR's district committee for investigation. On June 25, 2002, the OLR staff received a response from Willihnganz dated June 10, 2002, which was forwarded to the district committee. In that correspondence Willihnganz stated that he had no relevant information to add to the matter and he had no recollection at all of the representation he had provided for G.H.B.

¶ 16. The OLR district committee investigator, despite writing to Willihnganz and leaving a phone message, and, later conducting an internet search in an attempt to locate Willihnganz, never heard from Will-ihnganz regarding this matter.

COUNT ONE

¶ 17. The OLR complaint alleged and the referee determined that by changing his client's plea from not guilty to no contest without the client's knowledge or consent, which resulted in the client being found guilty of trespass, Willihnganz had failed to abide by a client's decision concerning the objectives of representation, had failed to consult with a client as to means by which the objectives were to be pursued, and had failed to abide by the client's decision, after consultation with the lawyer, as to the plea to be entered, in violation of SCR 20:1.2(a).

COUNT TWO

¶ 18. The OLR complaint further alleged and the referee also determined that by failing to provide a timely response to the OLR staff concerning the G.H.B. grievance and by failing to respond to requests for information from the OLR's district committee investigator, Willihnganz had willfully failed to provide relevant information, to answer questions fully, or to furnish documents to the OLR during the course of the investigation, in violation of SCR 21.15(4), SCR 22.03(2), SCR 22.03(6), and SCR 22.04(1).

¶ 19. After concluding that Willihnganz had engaged in the misconduct as alleged in the complaint, the referee recommended that Willihnganz be publicly reprimanded for his misconduct.

¶ 20. We adopt the referee's findings of fact and conclusions of law and determine that Willihnganz's misconduct as established in this proceeding warrants a public reprimand.

¶ 21. IT IS ORDERED that Attorney Ty Christopher Willihnganz is publicly reprimanded for his professional misconduct.

¶ 22. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Ty Christopher Willihnganz pay to the Office of Lawyer Regulation the costs and fees incurred in this proceeding totaling $1207.92.


author: ANN WALSH BRADLEY, J. SHIRLEY S. ABRAHAMSON, C.J. DIANE S. SYKES, J.

text:
    State of Wisconsin ex rel. Peter D. Griffin, Petitioner-Appellant, v. Judy P. Smith, Warden, Respondent-Respondent. State of Wisconsin ex rel. Micah E. Glenn, Petitioner-Appellant, v. Jon E. Litscher, Secretary, Department of Corrections, Judy Smith, Warden, Oshkosh Correctional Institution, and David Schwarz, Administrator, Division of Hearings and Appeals, Respondents-Respondents.
    Supreme Court

      Nos. 01-2345, 02-1320.

      Oral argument October 13, 2003.

      Decided March 30, 2004.

    2004 WI 36
    (Also reported in 677 N.W.2d 259.)

      For the petitioners-appellants there were joint briefs by Nathaniel Cade, Jr., and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Nathaniel Cade, Jr.

    For the respondent-respondent and respondents-respondents the cause was argued by James M Fre-imuth, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   ANN WALSH BRADLEY, J.

¶ 1. These cases are before the court on certification from the court of appeals. The petitioners, Micah E. Glenn and Peter D. Griffin, assert that they were denied effective assistance of counsel when their attorneys failed to timely file a petition for writ of certiorari seeking judicial review of an administrative appeal.

¶ 2. In its certification, the court of appeals states the issue as follows:

Whether a [parolee] has a right to the effective assistance of counsel from a [parole] revocation decision when counsel promised to file a certiorari petition.

¶ 3. While parolees have a right to counsel at the parole revocation hearing, we conclude that there is no administrative or statutory right to counsel to timely file for certiorari in the circuit court. However, we determine that the petitioners here are entitled to relief on equitable grounds because they timely requested counsel to file for certiorari review, counsel promised to do so, and as a result of counsel's failure to timely file, they were denied certiorari review. Accordingly, we reverse the orders of the circuit courts dismissing the petitions for writ of habeas corpus, and remand with instructions to allow reinstatement of the petitioners' right to file for certiorari review.

r — H

¶ 4. Glenn and Griffin were represented by counsel at their respective parole revocation hearings. Following an adverse decision in each case, counsel timely filed an administrative appeal. The Division of Hearings and Appeals rejected both appeals. The petitioners allege that their counsel promised to file for certiorari review in the circuit court but failed to do so.

¶ 5. In Glenn's case, counsel failed to file the petition for writ of certiorari altogether. In Griffin's case, counsel filed the petition, but it was dismissed as being outside the 45-day time limit established by Wis. Stat. § 893.735(2) (2001-02). Both petitioners subsequently sought habeas corpus relief in the circuit court, alleging ineffective assistance of counsel for failure to timely file their petitions for certiorari review. The circuit courts denied their petitions for writ of habeas corpus.

¶ 6. Both petitioners appealed, and the court of appeals consolidated the cases. It then certified the consolidated appeals to this court. The specific facts in each case are set forth below.

A. State ex rel. Glenn v. Litscher

¶ 7. Glenn was convicted of second-degree intentional homicide on October 17, 1995, and sentenced to seven years in prison. He was paroled from that sentence on December 15, 1997.

¶ 8. On February 14, 2000, Glenn was involved in an altercation and subsequently charged with battery and criminal damage to property. His parole agent initiated revocation proceedings and the administrative law judge revoked his parole on June 5, 2000. On administrative appeal, Glenn claimed that an additional allegation, that he threatened to kill his girlfriend, was wrongly used as a ground for revocation because he did not receive notice of the allegation before the hearing. The assistant administrator of the Division of Hearings and Appeals disagreed with Glenn, and affirmed his revocation on July 3, 2000.

¶ 9. The decision upholding Glenn's revocation informed him that judicial review may be obtained by filing a petition for a writ of certiorari within 45 days of the decision to be reviewed. Around July 1, 2000, Glenn initially requested that his attorney file a petition for a writ of certiorari.

¶ 10. On July 6, 2000, Glenn met with his attorney and again asked him to file for certiorari review. Glenn's attorney requested a letter of facts and issues together with information regarding the additional allegation that Glenn had threatened to kill his girlfriend. Glenn sent that letter on July 20, 2000. On July 27, 2000, Glenn's attorney assured him that he would file for certiorari review contesting the failure to give notice of the additional allegation of threatening to kill his girlfriend as grounds for revocation. Glenn's petition for writ of certiorari was due on August 17, 2000. His attorney never filed it.

¶ 11. On December 26, 2001, Glenn submitted a pro se petition for writ of habeas corpus to this court. He alleged that his attorney provided negligent and incompetent representation by failing to file a petition for certiorari review of the parole revocation decision despite promising to do so. This court referred the petition to the Milwaukee County circuit court on February 19, 2002. Glenn filed a motion with the circuit court for a Machner hearing on his petition for writ of habeas corpus.

¶ 12. The assistant district attorney filed a motion to dismiss Glenn's petition, and the circuit court granted it. The court determined that Glenn was not entitled to relief based upon ineffective assistance of counsel because no constitutional or statutory right to counsel exists for certiorari review of revocation decisions. It further concluded that Glenn failed to demonstrate that his attorney's alleged deficiencies unduly prejudiced his case. Glenn now appeals.

B. State ex rel. Griffin v. Smith

¶ 13. The other petitioner, Peter D. Griffin, was convicted for possession with intent to deliver cocaine base and possession with intent to deliver cocaine on December 10, 1991. He was paroled on October 14, 1997.

¶ 14. In August 2000, Griffin's parole agent found three bags of cocaine and a pager in Griffin's car. The terms of Griffin's parole prohibited possession of these items. At the revocation hearing on November 1, 2000, the administrative law judge revoked Griffin's parole. Griffin appealed and the administrator of the Division of Hearings and Appeals affirmed the revocation. That decision contained a notice that judicial review may be obtained by filing a petition for writ of certiorari within 45 days of the date of the decision to be reviewed.

¶ 15. Griffin's counsel filed a petition for writ of certiorari but missed the January 15, 2001, deadline by ten days. The attorney stated that his legal assistant had suddenly become ill, causing him to miss the deadline. He then filed a motion for extension of the 45-day filing deadline, but it was denied because the court received that motion outside the 45-day limit.

¶ 16. On May 19, 2001, Griffin filed a petition for writ of habeas corpus, alleging he had been deprived of effective assistance of counsel during the appeal of his parole revocation decision. Griffin argued that his attorney failed to timely file for certiorari review despite promising to do so.

¶ 17. The circuit court dismissed Griffin's petition. It concluded that parolees do not have a constitutional or common law right to counsel for certiorari review of an administrative appeal. Griffin filed a motion to reconsider the order dismissing his petition. The judge dismissed that motion and Griffin now appeals.

M I — I

¶ 18. Resolution of the issue set forth in the certification by the court of appeals requires us to interpret portions of the administrative code, along with a statute. The interpretation of an administrative rule or statute presents a question of law subject to independent appellate review. State ex rel. L'Minggio v. Gamble, 2003 WI 82, ¶ 11, 263 Wis. 2d 55, 667 N.W.2d 1; State v. Byers, 2003 WI 86, ¶ 12, 263 Wis. 2d 113, 665 N.W.2d 729.

¶ 19. When interpreting an administrative regulation, we generally use the same rule of interpretation as applicable to statutes. State v. Busch, 217 Wis. 2d 429, 441, 576 N.W.2d 905 (1998). Our goal in statutory or administrative rule interpretation is to discern the intent of the legislature or the rule maker. See State ex rel. Staples v. Young, 142 Wis. 2d 348, 353, 418 N.W.2d 333 (Ct. App. 1987). Our duty to fulfill this intent requires that we uphold the separation of powers by not substituting judicial policy views for the views of the legislature or rule making authority. State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 18, 236 Wis. 2d 473, 613 N.W.2d 591.

I — I HH l-H

¶ 20. We begin with the question certified by the court of appeals:

Whether a [parolee] has a right to the effective assistance of counsel from a [parole] revocation decision when counsel has promised to file a certiorari petition.

¶ 21. The habeas petitions here are predicated on the existence of a right to effective representation by counsel on certiorari review of an adverse administrative appeal. In addressing the certified question, we note that this court has generally held that where a right to counsel exists, counsel must be effective. See State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 253, 548 N.W.2d 45 (1996). Thus, the relevant inquiry becomes whether there is a right to counsel to timely file for certiorari review of a parole revocation administrative decision.

¶ 22. In this case, the petitioners do not contend that there is a constitutional right to counsel to file their petitions for certiorari review. We agree. The Supreme Court has not extended a per se Sixth Amendment right to counsel at revocation hearings or certio-rari review of revocation decisions in part because probationers and parolees have a more limited due process right than those who have not yet been convicted of a crime. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). ("Probation revocation, like parole revocation, is not a stage of a criminal prosecution ....") A parole revocation is the product of an administrative proceeding and the mechanism for challenging the revocation is a writ of certiorari asking the court to review the administrative decision. See Cramer, 236 Wis. 2d 473, ¶ 28.

¶ 23. Instead, the petitioners rely upon administrative and statutory authority to advance their position. In their briefs to this court, they argue, "the Wisconsin Administrative Code plainly grants defendants a statutory right to counsel to pursue certiorari review of probation or parole revocation decisions." At oral argument, they further asserted that Wis. Stat. § 977.05(6)(h) provides a statutory basis for the right to counsel throughout the revocation proceedings, including certiorari review in the circuit court. We examine each of these arguments.

¶ 24. Under Wis. Admin. Code § HA 2.05(3) (Sept. 2001), every parolee or probationer facing revocation has certain enumerated rights:

(3) CLIENT'S RIGHTS. The client's rights at the hearing include:
(a) The right to be present;
(b) The right to deny the allegation;
(c) The right to be heard and to present witnesses;
(d) The right to present documentary evidence;
(e) The right to question witnesses;
(f) The right to assistance of counsel;
(g) The right to waive the hearing;
(h) The right to receive a written decision stating the reasons for it based upon the evidence presented; and
(i) The right to appeal the decision in accordance with sub. (8)

Wis. Admin. Code § HA 2.05(3) (emphasis added).

¶ 25. Subsection (8), in turn, provides for an administrative appeal of a revocation decision to the administrator of the Division of Hearings and Appeals. It states:

The client, the client's attorney, if any, or the department representative may appeal the administrative law judge's decision by filing a written appeal with arguments and supporting materials, if any, with the administrator within 10 days of the date of the administrative law judge's written decision.

Wis. Admin. Code § HA 2.05(8) (Sept., 2001).

¶ 26. The petitioners assert that when "[r]ead conjunctively, § HA 2.05(3) and § HA 2.05(8) demonstrate that a parolee has the right to an attorney during the entire parole revocation process." We disagree.

¶ 27. Wisconsin Administrative Code § HA 2.05(8) outlines the appeals process for revocation proceedings. Significantly, only one appeal is specified in its text: the initial ten-day administrative appeal. We cannot find authority in the code to extend the right to assistance of counsel to the filing of a petition for certiorari review. Indeed, the 45-day time limit for certiorari review is specified in a different statute altogether. See Wis. Stat. § 893.735(2). As a result, we reject the petitioners' assertion that the Wisconsin Administrative Code "plainly grants" them a right to counsel to file a petition for certiorari review.

¶ 28. We next turn to the petitioners' argument that Wis. Stat. § 977.05(6)(h) provides a statutory basis for the right to counsel throughout revocation proceedings, including certiorari review. The statute provides:

(h) The state public defender may not provide legal services or assign counsel in parole or extended supervision revocation proceedings unless all of the following apply:
1. The parolee or person on extended supervision is contesting the revocation of parole or extended supervision.
2. The department of corrections seeks to have the parolee or person on extended supervision imprisoned upon the revocation of parole or extended supervision.

Wis. Stat. § 977.05(h). At oral argument, the petitioners relied upon this statute, in conjunction with Schmelzer, 201 Wis. 2d at 253, to advance their position that they are entitled to an attorney at all stages of the revocation proceedings, including certiorari review.

¶ 29. In Schmelzer, the defendant's attorney failed to file a timely petition for review of the court of appeals' decision affirming his conviction for second-degree sexual assault. Id. at 249. The issue was whether there is a statutory right to counsel in the preparation of a petition for review to this court. Id. Read together, we concluded that "Wis. Stat. §§ 809.32(4) and 977.05(4)(j) create a right to counsel in petitions for review and cases before any court, provided that the counsel does not determine the appeal to be without merit." Id. at 253. The petitioners interpret the phrase "cases before any court" to mean that they are entitled to counsel beyond the administrative appeal so long as their petitions for certiorari are not frivolous.

¶ 30. The problem with the petitioners' reliance on Schmelzer begins with the statutory authority they cite. As noted above, Schmelzer established a right to counsel from the reading together of two statutes: Wis. Stat. §§ 809.32(4) and 977.05(4)(j). Here, the petitioners rely solely on one statute, § 977.05(6)(h), to advance this argument. Unlike Wis. Stat. § 977.05(4)(j), Wis. Stat. § 977.05(6)(h) is not a statutory duty for public defenders to pursue the case of an indigent person; rather, it is a statutory restriction on when public defenders may not provide legal services. Although we recognize that public defenders may be permitted to provide representation when the conditions of Wis. Stat. § 977.05(6)(h) are met, we fail to see how the statute requires them to do so. Indeed, when examining other statutes providing for the right to counsel, we note that the legislature has used affirmative and explicit language. Accordingly, we reject the petitioners' argument that by negative implication the language of § 977.05(6)(h) mandates a per se right to assistance of counsel for filing a petition for certiorari review of an administrative appeal.

¶ 31. In sum, although the petitioners' argument to extend the right to counsel may appeal to common sense, we can find no administrative or statutory authority granting a right to assistance of counsel in their petition for a writ of certiorari. It may be good policy, but we cannot substitute judicial policy views for the policy views of the legislature or rule making authority. As a result, we conclude that there is no per se right to counsel to timely file for certiorari review.

IV

¶ 32. Having determined that the petitioners are not entitled to a per se right to counsel to timely file for certiorari review, our inquiry does not end there. We must next examine if equity requires the granting of relief.

¶ 33. We begin by noting that in some cases, a factual question may exist as to whether a revoked parolee timely asked counsel to file a petition for certiorari review, whether counsel promised to do so, and whether as a result of counsel's failure to timely file, the revoked parolee was denied certiorari review. This may require an evidentiary hearing by the circuit court.

¶ 34. In the present case, however, such a hearing is unnecessary. The petitioners' attorneys have accepted responsibility for missing the filing deadline for the certiorari petitions. Moreover, the State has conceded that, "[u]nder these circumstances, Griffin and Glenn probably are entitled to reinstatement of the right to certiorari review of their parole revocations based on equitable grounds."

¶ 35. The 45-day time limit for filing the petitioners' certiorari review is set forth in Wis. Stat. § 893.735. According to the statute, a prisoner's cer-tiorari action is "barred" unless timely commenced. Wis. Stat. § 893.735. The 45-day period begins on the date of the decision or disposition. Id. However, the court may adjust the commencement of the time limit so that it does not start running until the prisoner receives actual notice of the administrative decision. Id. This suggests that the legislature recognized, at least in one instance, that it would be inequitable to give less than the full 45 days provided for in the statute.

¶ 36. When applying Wis. Stat. § 893.735(2), the court of appeals has also recognized equitable considerations. Specifically, the court of appeals has tolled the 45-day period when a prisoner submitted a letter to the prison mail custodian for mailing. State ex rel. Shimkus v. Sondalle, 2000 WI App 238, 13-14, 239 Wis. 2d 327, 620 N.W.2d 409. It has tolled the 45-day period from the date on which a prisoner seeking to waive filing fees asks the department of corrections for the required trust account statement. State ex rel. Walker v. McCaughtry, 2001 WI App 110, 16, 244 Wis. 2d 177, 629 N.W.2d 17. Moreover, it has tolled the 45-day period while it waited for the department of corrections to provide certification of the number of litigation dismissals the prisoner has accumulated. State ex rel. Locklear v. Schwarz, 2001 WI App 74, 26, 242 Wis. 2d 327, 629 N.W.2d 30.

¶ 37. Likewise, this court has required equitable tolling in other contexts where the failure to timely file an appeal was beyond the prisoners' control. See State ex rel. Nichols v. Litscher, 2001 WI 199, 247 Wis. 2d 1013, 635 N.W.2d 292; State ex. rel. Brown v. Bradley, 2003 WI 14, 259 Wis. 2d 630, 658 N.W.2d 427. In Nichols, this court applied equitable tolling in a case where an inmate left his notice of appeal with the corrections officer in the mailroom at the prison, and missed the 30-day filing deadline because the notice was not mailed immediately. 247 Wis. 2d 1013, 4. In Brown, we granted the same relief because we determined thát the inmate was "similarly situated." 259 Wis. 2d 630, 37.

¶ 38. We are mindful that in the above cases, the factual question of the proper tolling date generally could be resolved by the use of court records, department of correction records, or prison records. Determining whether and when an attorney promised to file a certiorari petition may prove a more difficult task. Nevertheless, we are unable to discern any reason why prisoners who retain counsel should be placed at a disadvantage simply because they relied on counsel's promise. Accordingly, we conclude that petitioners are entitled to equitable relief when they timely ask counsel to file for certiorari, counsel promises to do so, and as a result of counsel's failure to timely file they were denied certiorari review. Provided that the petitioners timely pursue relief, the 45-day time limit for the filing of a writ of certiorari is equitably tolled as of the date that counsel promises to file for certiorari review.

V

¶ 39. The final question we consider is whether the tolling rule we adopt today should receive prospective or retroactive application. In its brief, the State argues that to the extent this court grants relief, such a holding should not apply retroactively. Rather, it urges that our holding should be limited to cases for which certiorari review is still available, but also encompassing Glenn and Griffin. We agree.

¶ 40. The State advances that we should employ the retroactive analysis used in Brown, 259 Wis. 2d 630. There, we applied the three-pronged test of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) to the new tolling rule. Id., ¶ 15. The test asks:

(1) Does the rule 'establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed?'
(2) Will retroactive operation further or retard the operation of the rule in question?
(3) Will retroactive application produce substantial inequitable results?

Id., ¶ 15 (citing.Chevron, 404 U.S. at 106).

¶ 41. The first factor "inquires whether the new rule overruled past precedent or decided an issue of first impression whose resolution was not clearly foreshadowed." Id., ¶ 18. We determine that this factor favors prospective application as our rule does not overrule past precedent, but rather decides an issue whose resolution was uncertain.

¶ 42. The second factor examines whether retro-activity "would further or retard the operation of' the new rule or holding. Id., ¶ 21. This too favors prospective application. We agree with the State that in many cases, a challenge to revocation will have become moot because the period of reincarceration has been served. Moreover, due to the passage of time, it would likely be difficult for courts to make such a fact-specific determination.

¶ 43. The third factor involves consideration of "the equities of retroactivity." Id., ¶ 25. We determine that this also favors prospective application. Here, we consider the interests that the State, crime victims, and the public have in the finality of the decision. "Full retroactive application could produce inequitable results because it opens up cases that have long been thought by everyone, including crime victims, to have been final." Id. Additionally, as noted above, due to the passage of time, the parties may have difficulty in addressing whether and when an attorney has promised to file a certiorari petition.

¶ 44. In the end, we agree with the State that our tolling rule should not apply retroactively, but rather "be limited to cases for which certiorari review is still available, but also encompassing Griffin and Glenn." This limited application is consistent with our holdings in Schmelzer and Brown. Schmelzer, 201 Wis. 2d at 258-59; Brown, 259 Wis. 2d 630, ¶ 26. "Such an approach permits some pro se prisoners to benefit from the new rule without the accompanying difficult proof problems which frustrate the operation of the rule." Brown, 259 Wis. 2d 630, ¶ 26. Moreover, such a limited reapplication "recognizes the finality of case and the inequities that result from reopening cases thought to be long since closed." Id.

VI

¶ 45. In sum, we conclude that although parolees have a right to counsel at the parole revocation hearing, they have no administrative or statutory right to counsel to timely file for certiorari in the circuit court. However, we determine that the petitioners here are entitled to relief on equitable grounds because they timely asked counsel to file for certiorari, counsel promised to do so, and the failure to timely file led to dismissal of their petitions. Accordingly, we reverse the orders dismissing the petitions for writ of habeas corpus, and remand with instructions to allow reinstatement of the petitioners' right to certiorari review.

By the Court. — The orders of the circuit courts are reversed and the causes remanded.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 46. (concurring). I write separately not to criticize the majority opinion for what it does say, but rather to point out what it does not say. For the second time in three years, a majority of this court avoids addressing an issue of importance, namely, whether a parolee has a right to the assistance of counsel, when filing an administrative appeal to the Division of Hearings and Appeals from a parole revocation decision.

¶ 47. Because this important issue affects many hearings and will arise again, and because the parties have briefed the issue, I conclude that the court should address it and hold that a right to counsel exists when filing an administrative appeal.

H-<

¶ 48. I would address the issue of the right to the assistance of counsel when filing an administrative appeal even though it is not dispositive. To determine whether to address issues that are raised, argued, and briefed by the parties but are not necessary to the disposition of a case, I would apply the rationale for addressing the merits of a moot issue. The court should decide an issue if it "(1) is of great public importance; (2) occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) is likely to arise again and a decision of the court would alleviate uncertainty; or (4) will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties."

¶ 49. A number of these factors militate in favor of deciding in the present case whether a parolee has a right to the assistance of counsel when filing an administrative appeal of a parole revocation decision. The decision to revoke parole implicates the safety of the public and the fairness of the procedures and is of great importance to both the petitioner and the public. Furthermore, parole revocation proceedings, and subsequent appeals, are a daily administrative matter.

¶ 50. In addition, both petitioners and the State briefed the issue with sufficient thoroughness for this court to render a decision. I cannot agree with the majority opinion that we should save this question for yet another day.

I — I

¶ 51. Having concluded that the court should address the question of the right to counsel to file an administrative appeal, I now turn to answering the question. A brief history of the litigation on this issue is informative.

¶ 52. The right to counsel for filing an administrative appeal was first addressed by the court of appeals in State ex rel. Mentek v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 748 (Mentek I). In that case, counsel represented Mentek at his probation revocation hearing, but following an adverse decision, counsel wrote Mentek a letter stating that an appeal would have no merit. Mentek then filed a petition for writ of certiorari in the circuit court.

¶ 53. The State moved to dismiss the petition, arguing that Mentek had failed to exhaust his administrative remedies. The circuit court granted the State's motion. In a split decision, the court of appeals concluded that Wis. Admin. Code § HA 2.05(3)(f) does not grant a petitioner the right to counsel beyond the probation revocation hearing. The dissenting opinion construed the Code as providing the right to counsel to file an administrative appeal.

¶ 54. On review of Mentek I, this court reversed the court of appeals' decision on narrow grounds. State ex rel. Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150 (Mentek II). Instead of addressing Mentek's claim to counsel, this court focused on whether the doctrine of exhaustion of administrative remedies should be applied to Mentek's certiorari action. This court held that although Mentek failed to exhaust his administrative remedies, the circuit court could still exercise jurisdiction over his petition for writ of certiorari.

¶ 55. I concurred in Mentek II, addressing the right-to-counsel question left open by the majority opinion. In doing so, I adopted the reasoning of Judge Brown's dissent in Mentek 7.

¶ 56. Both Judge Brown and I concluded that the most reasonable interpretation of Wis. Admin. Code § HA 2.05(3) and § HA 2.05(8) is that a parolee has the right to the assistance of counsel in filing an administrative appeal. I will not repeat our reasoning here. It is available in both published opinions.

¶ 57. On my review of Mentek I and Mentek II, I am persuaded that Judge Brown and I were correct. I am pleased to report that the State is now also persuaded of the correctness of these opinions and has adopted their reasoning and conclusions.

¶ 58. After analyzing the Code and statutes, the State's brief concludes that "[a]lthough the State argued in Mentek that there is no right to counsel for filing an administrative appeal, the State now respectfully withdraws from that position." The State's brief asserts that "read together, Wis. Admin. Code § HA 2.05(3) and (8) and Wis. Stat. § 977.05(6)(h) and (i) reasonably support the proposition that the statutory right to the assistance of counsel at a final revocation hearing extends to the assistance of counsel for timely filing an administrative appeal."

¶ 59. The State's brief points out three questions that may arise in the future if the court recognizes a statutory right to counsel to timely file an administrative appeal from a revocation. The three questions the State's brief poses are as follows:

If there is a statutory right to counsel to timely file an administrative appeal from a revocation, is there a companion right to effective assistance of counsel in the presentation of the substantive arguments and supporting materials on administrative appeal? Moreover, must counsel always file an administrative appeal upon the parolee's request, even if counsel believes an administrative appeal would be meritless? If the answers are yes, what standards of review apply, especially with respect to the question of prejudice from counsel's alleged deficient performance?

¶ 60. The State's brief carefully explains, however, that this court need not now decide the foregoing questions in the present cases. The defendants in the present cases had, according to the State's brief, timely filed administrative appeals with the assistance of counsel, and neither parolee is alleging ineffective assistance of counsel in the handling of an administrative appeal.

¶ 61. I agree with the State that answering the question about the right to counsel at an administrative appeal will doubtless produce further questions. But experience shows that ignoring a question does not ordinarily make it go away. Delay in answering the issue presented here and in Mentek I and Mentek II, only means uncertainty and additional expense and delay for the State and defendants.

¶ 62. For the reasons set forth, I conclude that the majority opinion should have reached the issue of whether a parolee has a right to the assistance of counsel when filing an administrative appeal of a revocation decision, and it should have concluded, as the State has, that such a right exists.

¶ 63. For the reasons set forth, I concur.

DIANE S. SYKES, J.

¶ 64. (concurring). I agree with the majority's analysis of the right to counsel in this context, and also with its formulation of an equitable tolling remedy in the circumstances of the cases before the court. On the issue of retroactivity, I agree with the majority's result but disagree with its analysis. Retroactivity in the context of a collateral attack by habeas petition of a judgment already final is governed by Teague v. Lane, 489 U.S. 288, 310 (1989), and State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 258-59, 548 N.W.2d 45 (1996). See State ex rel. Brown v. Bradley, 2003 WI 14, ¶¶ 38-52, 259 Wis. 2d 630, 658 N.W.2d 427 (Sykes, J., dissenting). The majority applies the retro-activity analysis of Chevron Oil Co. v. Huson, 404 U.S. 97,106 (1971), which the United States Supreme Court abandoned in Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 90 (1993), and which, in any event, does not govern collateral attack retroactivity analysis.

¶ 65. Here, as in Brown, the parties did not brief the issue of Wisconsin's continued reliance on Chevron Oil in light of Harper. For that reason, and because the precise retroactivity question in this case (retroactivity in the context of habeas collateral attack) is governed by Teague/Schmelzer, we need not address here whether to conform our law to Harper. It is also true that the parties did not brief Teague/Schmelzer retro-activity analysis. In any event, because the majority has reached the same result that a Teague/Schmelzer analysis would yield, I respectfully concur.

¶ 66. I am authorized to state that Justices JON E WILCOX, and N. PATRICK CROOKS join this concurrence.

       Micah E. Glenn appeals an order of the circuit court for Milwaukee County, William Haese, Judge, denying his writ of habeas corpus.
      Peter D. Griffin appeals an order of the circuit court for Milwaukee County, Michael Sullivan, Judge, denying his writ of habeas corpus.

       Although the court of appeals refers to the underlying matters as "probation" revocations, they are actually parole revocations. For the issues presented herein, however, our analysis applies to both.

       By "right to counsel," we mean assistance of counsel at state expense. Probationers and parolees remain free to retain private counsel at the revocation hearing and all subsequent stages of appeal.

       Certiorari review of a revocation decision consists of four inquiries: (1) whether the division kept within its jurisdiction; (2) whether it acted according to law; (3) whether its actions were arbitrary, oppressive, or unreasonable; and (4) whether the evidence permitted the division to reasonably make the order or determination in question. State v. Horn, 226 Wis. 2d 637, 652, 594 N.W.2d 772 (1999) (citing State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (1997)).

       All references are to the 2001-02 version of the Wisconsin Statutes unless otherwise noted.

       Under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979), a hearing may be held when a criminal defendant's trial counsel is challenged for allegedly providing ineffective assistance. At the hearing, trial counsel testifies as to his or her reasoning on the challenged action or inaction.

       Although the petitioners principally rely on Wis. Stat. § 977.05(6)(h) as the statutory basis for their argument, they make reference in one paragraph in their reply brief to Chapter 227. Specifically, they cite language in Wis. Stat. § 227.53 referring to "the party's attorney of record" as evidence that "the legislature seem[ed] to have contemplated an attorney's continued involvement when administrative proceedings are reviewed in circuit court." This undeveloped reference sheds little light on the issue. Further, we note that probation and parole revocation proceedings are not subject to the review provisions of Chapter 227. State ex. rel. Hanson v. Department of Health and Human Services, 64 Wis. 2d 367, 377, 219 N.W.2d 267 (1974).

       Wisconsin Stat. § 977.05(i) is the companion statute for prisoners on probation. It states:
      The public defender may not provide legal services or assign counsel in probation revocation proceedings unless all of the following apply:
      1. The probationer is contesting the revocation of probation.

        2. The department of corrections seeks to have the probationer imprisoned upon the revocation of probation or a stayed sentence of imprisonment will he imposed on the probationer upon the revocation of probation.

       Wisconsin Stat. § (Rule) 809.32(4) (1993-94) provides in part:
      If a fully briefed appeal is taken to the court of appeals and the attorney is of the opinion that a petition for review in the supreme court under s. 809.62 would be frivolous and without any arguable merit, the attorney shall advise the defendant of the reasons for this opinion and that the defendant has the right to file a petition for review....

       Wisconsin Stat. § 977.05(4)(j) (1993-94) provides in part:
      [A]t the request of any person determined by the state public defender to be indigent or upon referral of any court, prosecute a ■writ of error, appeal, action or proceeding for habeas corpus or other postconviction or post-commitment remedy on behalf of the person before any court, if the state public defender determines the case should be pursued....

       Wisconsin Stat. § 977.05(4) provides in part:
      (4) DUTIES. The state public defender shall:
      (i) Provide legal services in:
      1. Cases involving persons charged with a crime against life under ss. 940.01 to 940.12.
      2. Cases involving persons charged with a felony not specified under subd. 1.
      3. Cases involving persons charged with a misdemeanor that is punishable by imprisonment but is not specified under subd. 1.
      4. Cases involving persons subject to emergency detention or involuntary civil commitment under ch. 51.

        5. Cases involving children who are entitled to counsel or are provided counsel at the discretion of the court under s. 48.23 or 938.23.
      7. Cases involving paternity determinations, as specified under s. 767.52, in which the state is the petitioner under s. 767.45(l)(g) or in which the action is commenced on behalf of the child by an attorney appointed under s. 767.045(l)(c).
      (j) Subject to sub. 6(e) and (f), at the request of any person determined by the state public defender to be indigent or upon referral of any court, prosecute a writ of error, appeal, action or proceeding for habeas corpus or other postconviction or post-commitment remedy on behalf of the person before any court, if the state public defender determines the case should be pursued. The state public defender must pursue the case of any indigent person entitled to counsel under s. 971.17(7)(b)l, or 980.03(2)(a).
      (jm) At the request of an inmate determined by the state public defender to be indigent or upon referral of a court under s. 302.113(9g)(j), represent the inmate in proceedings for modification of a bifurcated sentence under s. 302.113(9g) before a program review committee and the sentencing court, if the state public defender determines the case should be pursued.
      (k) Represent members of the staff of the office of the state public defender who are named as defendants in lawsuits arising from their duties within the office. The attorney general may also, if appropriate, represent such staff members in such litigation. In cases where a member could be represented by either the public defender or the attorney general, the public defender shall determine who shall represent the member.

       Wisconsin Stat. § 893.735 provides in part:
      "An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition.. .
      We have previously held that a person seeking relief from probation revocation by a writ of certiorari is a "prisoner" who must satisfy the timely filing requirements of § 893.735. See State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 35, 236 Wis. 2d 473, 613 N.W.2d 591.

       The concurrence of Justice Sykes asserts that this case should be governed by the retroactivity analysis of Teague v. Lane, 489 U.S. 288 (1989) and State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 258-59, 548 N.W.2d 45 (1996). Justice Sykes's concurrence at ¶ 64. The parties' briefs neither cite to Teague nor discuss the application of its retroactivity analysis here. Likewise, the parties do not cite Schmelzer for the application of its retroactivity analysis. Any reference to Schmelzer in the parties' brief is for an entirely different argument — what constitutes ineffective assistance of counsel. Because the parties do not raise the issue addressed by the concurrence of Justice Sykes, and thus did not brief or argue the issue, we do not address it here.

       In Glenn's case, the court should toll the running of the 45-day time limit as of the date that the attorney promised to file the petition for certiorari review, July 27, 2000. In Griffin's case, the court shall accept as timely filed the petition it previously rejected for certiorari review.

        State v. Morford, 2004 WI 5, ¶ 7, 268 Wis. 2d 300, 674 N.W.2d 349.

       The petitioners argued for this right, relying on the dissenting and concurring opinions in State ex rel. Mentek v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746 (Mentek I), and State ex rel. Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150 (Mentek II), as well as on public policy grounds of the desirability of a bright line rule. See Petitioners-Appellants' Brief at 23-47.
      The State also argued at length for the right to counsel at the final revocation hearing. See Respondent's Brief at 18-22.

        Mentek I, 235 Wis. 2d 143, ¶ 4.

        Mentek I, 235 Wis. 2d 143, ¶ 5.

         Mentek I, 235 Wis. 2d 143, ¶ 6.

        Mentek I, 235 Wis. 2d 143, ¶ 8.

         Mentek I, 235 Wis. 2d 143, ¶ 8.

       Wisconsin Admin. Code § HA 2.05 (3) (Sept. 2001) enumerates a parolee's rights as follows:
      (3) CLIENT'S RIGHTS. The client's rights at the hearing include:
      (a) The right to be present;
      (b) The right to deny the allegation;
      (c) The right to be heard and to present witnesses;
      (d) The right to present documentary evidence;
      (e) The right to question witnesses;
      (f) The right to the assistance of counsel;
      (g) The right to waive the hearing;
      (h) The right to receive a written decision stating the reasons for it based upon the evidence presented; and
      (i) The right to appeal the decision in accordance with sub.(8).

        Mentek I, 235 Wis. 2d 143, ¶ 17.

        Mentek I, 235 Wis. 2d 143, ¶ 25 (Brown, EJ., dissenting).

        Mentek II, 242 Wis. 2d 94, ¶ 2.

        Mentek II, 242 Wis. 2d 94, ¶ 17.

        Mentek II, 242 Wis. 2d 94, ¶ 19 (Abrahamson, C.J., concurring).

       Wisconsin Admin. Code § HA 2.05(8)(a) and (b) (Sept. 2001) provide as follows:
      (8) Appeal, (a) The client, the client's attorney, if any, or the department representative may appeal the administrative law judge's decision by filing a written appeal with arguments and supporting materials, if any, with the administrator within 10 days of the date of the administrative law judge's written decision.
      Oí) The appellant shall submit a copy of the appeal to the other party who has 7 days to respond.

       Respondent's Brief at 25.

       Id

        Id.

       Respondent's Brief at 26.


text:
    State of Wisconsin, Plaintiff-Respondent, v. William H. Thornton, Jr., Defendant-Appellant-Petitioner.
    Supreme Court

      No. 01-1402.

      Oral argument March 12, 2004.

      Decided March 30, 2004.

    2004 WI 35
    (Also reported in 677 N.W.2d 274.)
    For the defendant-appellant-petitioner there were briefs by Robert R. Henak and Henak Law Office, S.C., Milwaukee, and oral argument by Robert R. Henak.

      For the plaintiff-respondent the cause was argued by William L. Gansner, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   PER CURIAM.

¶ 1. The court is equally divided on the question of whether the decision of the court of appeals, State v. Thornton, No. 01-1402, unpublished slip op. (Wis. Ct. App. March 5, 2002), should be affirmed or reversed.

Justice JON E WILCOX, Justice DAVID T. PROSSER and Justice PATIENCE D. ROGGENSACK would affirm; Chief Justice SHIRLEY S. ABRAHAMSON, Justice ANN WALSH BRADLEY, and Justice N. PATRICK CROOKS would reverse. Justice DIANE S. SYKES did not participate.

¶ 2. Accordingly, the decision of the court of appeals is affirmed.


text:
    Dairyland Greyhound Park, Inc., Plaintiff-Appellant, v. James E. Doyle, in his official capacity as Governor of the State of Wisconsin, and Marc J. Marotta, in his official capacity as Secretary of the Wisconsin Department of Administration, Defendants-Respondents.
    Supreme Court

      No. 03-0421.

      Oral argument January 27, 2004.

      Decided March 30, 2004.

    2004 WI 34
    (Also reported in 677 N.W.2d 275.)

      For the plaintiff-appellant there were briefs by Ronald R. Ragatz, Peter A. Peshek, Mindy Rowland Buenger and DeWitt, Ross & Stevens, S.C., Madison, and oral argument by Ronald R. Ragatz.

    For the defendants-respondents the cause was argued by John S. Greene, Maura FJ Whelan, Charles D. Hoornstra, Thomas C. Bellavia, assistant attorneys general, with whom on the brief was Peggy A. Lauten-schlager, attorney general.
    An amicus curiae brief was filed by Douglas B.L. Endreson, William R. Perry and Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C.; Howard Bichler, Hertel; Carol Brown and Brown & LaCounte, LLP, Madison; Jennifer L. Nutt Carleton and Oneida Law Office, Oneida; Douglas William Huck, Bowler; Rebecca R. Weise, Black River Falls; Kevin L. Osterbauer, Odanah; Larry Leventhal and Larry Lev-enthal & Associates, Minneapolis, MN; Kris M. Goodwill and Lac Courte Oreilles Legal Department, Hayward; Jeffrey A. Crawford, Milwaukee; Eric N. Dahlstrom and Rothstein, Donatelli, Hughes, Dahl-strom, Schoenburg & Frye, LLP, Tempe, AZ; David M.

      Ujke, Bayfield, on behalf of the St. Croix Chippewa Indians of Wisconsin, Lac du Flambeau Band of Lake Superior Chippewa Indians, Oneida Tribe of Indians of Wisconsin, Forest County Potawatomi Community of Wisconsin, Ho-Chunk Nation, Stockbridge-Munsee Community, Bad River Band of the Lake Superior Tribe of Chippewa Indians, Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin, and Red Cliff Band of Lake Superior Chippewa Indians, and oral argument by Douglas B.L. Endreson.

    An amicus brief was filed by Brady C. Williamson, James A. Friedman and LaFollette, Godfrey & Kahn, Madison, on behalf of Teamsters Local Union No. 344, Teamsters Local Union No. 200, Milwaukee Building & Construction Trades Council, Professional Firefighters of Wisconsin, Inc., COA Youth and Family Centers, Hispanic Chamber of Commerce, St. Ann Center for Intergenerational Care, Inc., Lutheran Special School, AIDS Resource Center of Wisconsin, Inc., Milwaukee Urban League, and Legal Aid Society of Milwaukee.
    An amicus curiae brief was filed by Raymond P. Taffora, Roisin H. Bell, Brian J. Ryharik and Michael Best & Friedrich, LLP, Madison, on behalf of Metropolitan Milwaukee Association of Commerce and Associated General Contractors-Greater Milwaukee.
   PER CURIAM.

¶ 1. This case comes before the court on certification from the Wisconsin Court of Appeals District IV

¶ 2. The court is equally divided on whether to affirm the judgment of the circuit court. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks would affirm. Justice David T. Prosser, Jr., Justice Diane S. Sykes, and Justice Patience D. Roggensack would reverse. Justice Jon P Wilcox did not participate.

¶ 3. When a certification or bypass results in a tie vote by this court, the better course of action is to vacate our decision to accept certification or bypass and remand the cause to the court of appeals. State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995) (remanding to court of appeals on a tie vote on certification); State v. Elam, 195 Wis. 2d 683, 684-85, 538 N.W.2d 249 (1995) (restating rule but declining to remand to court of appeals on a tie vote on bypass because court of appeals had previously decided issue).

¶ 4. Accordingly, we vacate our order granting certification and remand to the court of appeals.

By the Court. — The Order granting certification is vacated and the cause is remanded to the court of appeals.