author: PATIENCE DRAKE ROGGENSACK, J.

text:
    Patrick G. Schilling, Petitioner-Respondent, v. State of Wisconsin Crime Victims Rights Board, Respondent-Appellant.
    Supreme Court

      No. 03-1855.

      Oral argument November 9, 2004.

    Decided February 23, 2005.

    2005 WI 17
    (Also reported in 692 N.W.2d 623.)

      For the respondent-appellant the cause was argued by Bruce A. Olsen, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
    For the petitioner-respondent there was a brief by Thomas M. Pyper, Cynthia L. Buchko and Whyte Hir-schboeck Dudek S.C., Madison, and oral argument by Thomas M. Pyper.

    A joint amicus curiae brief was filed (in the court of appeals) by Eva L. Shiffrin, Madison, on behalf of the Wisconsin Coaltion Against Sexual Assault, Inc.; Joanna Tucker Davis and Douglas E. Beloof, Portland, OR, on behalf of the National Crime Victim Law Institute; and the Wisconsin Coalition Against Domestic Violence, Madison.
   PATIENCE DRAKE ROGGENSACK, J.

¶ 1. The first sentence of Article I, Section 9m of the Wisconsin Constitution states: "This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy." We recognize that according crime victims fairness, dignity and respect is very important to a just enforcement of the criminal code of the State of Wisconsin. The legislature has recognized the importance of victims' rights as well, by enacting Wis. Stat. § 950.04. However, because we conclude that this constitutional provision is a statement of purpose that describes the policies to be promoted by the State and does not provide an enforceable, self-executing right, we affirm the circuit court decision reversing the private reprimand of District Attorney Patrick Schilling issued by the Crime Victims Rights Board under Wis. Stat. § 950.09(2)(a) (1999-2000).

I. BACKGROUND

¶ 2. Jennifer Hansen Marinko (Hansen) was murdered in Price County in October 1999. She was survived by her two children, her mother and nine siblings. Patrick Schilling, District Attorney for Price County, prosecuted Daniel Marinko (Marinko) in connection with her death, and on March 8, 2001, Marinko was convicted of both first-degree intentional homicide and armed burglary with a dangerous weapon.

¶ 3. At the sentencing hearing held on April 12, 2001, Schilling played part of the tape of the 911 telephone call that Hansen's son had made to the police after discovering his mother dead. While Schilling made sure that Hansen's children would not be present at the sentencing hearing, he did not inform other family members that he was going to play the tape or otherwise give them an opportunity to leave the courtroom before he played it. Schilling turned off the tape before it had finished playing because he recognized that it was having a dramatic effect on the family members.

¶ 4. In July 2001, five of Hansen's survivors (collectively "complainants") filed a complaint against Schilling with the Crime Victims Rights Board (Board). After determining that there was probable cause to believe that Schilling had violated the complainants' crime victims' rights, the Board held an evidentiary hearing on May 30 and 31, 2002.

¶ 5. In a written decision, the Board found that the tape of the 911 call was "highly upsetting" and that "Schilling knew of the tape's powerful emotional content ... [which] was the reason for its presentation at the sentencing hearing." The Board further found that "Schilling intended to create an emotional event at the sentencing hearing for the purpose of influencing the sentencing decision, which, unfortunately, was at the expense of [Hansen's] family."

¶ 6. Citing Article I, Section 9m of the Wisconsin Constitution and Wis. Stat. § 950.01 for the principle that "[v]ictims of crime are entitled to be treated with fairness, dignity, respect, courtesy and sensitivity," the Board found that the complainants had "met their burden to prove by clear and convincing evidence that [] Schilling failed to treat them with fairness, dignity, respect, courtesy and sensitivity on April 12, 2001, when he played the 911 tape made on the day of [Hansen's] death at the sentencing hearing." Citing its authority under Wis. Stat. § 950.09(2)(a), the Board ordered a private reprimand of Schilling "for violating the complainants' rights to be treated with fairness, dignity, respect and sensitivity in the playing of the 911 tape at the April 12, 2001, sentencing hearing."

¶ 7. Schilling sought judicial review of the Board's decision pursuant to Wis. Stat. §§ 227.52, 227.53 and 227.57 in the circuit court for Dane County. The circuit court, the Honorable Michael N. Nowakowski presiding, reversed the Board's decision. The Board then appealed to the court of appeals, and we granted the court of appeals' certification.

II. DISCUSSION

¶ 8. Pursuant to Wis. Stat. § 950.09(2)(a), the Board may "[i]ssue private and public reprimands of public officials, employees or agencies that violate the rights of crime victims provided under this chapter, ch. 938, and article I, section 9m, of the Wisconsin constitution." At issue in this case is whether the first sentence of Article I, Section 9m of the Wisconsin Constitution, which reads, "This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy," creates a "right" that the Board may enforce under § 950.09(2)(a), or whether it is descriptive of policies to be furthered by the State.

¶ 9. The Board argues that the first sentence of Article I, Section 9m of the Wisconsin Constitution is self-executing and thereby provides crime victims an enforceable right to be treated with fairness, dignity and respect for their privacy. Schilling counters that the language in question instead serves to articulate general policies and does not create enforceable rights. We conclude that the constitutional language in question is a statement of purpose that describes the policies to be promoted by the State and does not create an enforceable, self-executing right.

A. Standard of Review

¶ 10. This is an appeal following a decision by the Board, which is an administrative agency. We review the Board's decision, not the circuit court's. See Beecher v. LIRC, 2004 WI 88, ¶ 22, 273 Wis. 2d 136, 682 N.W.2d 29.

¶ 11. Both parties state that our review in the present case is de novo, relying on the court of appeals decision in Zip Sort, Inc. v. Wisconsin Dep't of Revenue, 2001 WI App 185, 247 Wis. 2d 295, 634 N.W.2d 99. While we agree that our review of the Board's decision is de novo, we disagree with the parties' reliance on Zip Sort.

¶ 12. The Zip Sort decision addressed the standard of review of an administrative agency's interpretation of a statute, explaining that there are three possible levels of deference in a review of an agency's statutory interpretation and describing the circumstances under which each level of deference is appropriate. Zip Sort, 247 Wis. 2d 295, ¶ 11-14. However, the instant case presents a question of constitutional, not statutory, construction. While the Board interpreted Article I, Section 9m of the Wisconsin Constitution pursuant to its duties conferred by Wis. Stat. § 950.09, it does not follow that we analyze the Board's decision in this case as we would an agency interpretation of a statute. See Beecher, 273 Wis. 2d 136, ¶ 26. Instead, because construing the constitution is a task ultimately for the courts, we give no deference to the Board's interpretation of Article I, Section 9m of the Wisconsin Constitution. Knights of Columbus v. State, 151 Wis. 2d 404, 409, 444 N.W.2d 447 (Ct. App. 1989). Our review, therefore, is de novo.

B. Interpreting Article I, Section 9m of the Wisconsin Constitution

¶ 13. The Wisconsin Constitution was amended in 1993 to include Article I, Section 9m. We have explained that the purpose of construing a constitutional amendment is "to give effect to the intent of the framers and of the people who adopted it." State v. Cole, 2003 WI 112, ¶ 10, 264 Wis. 2d 520, 665 N.W.2d 328 (quoting Kayden Indus., Inc. v. Murphy, 34 Wis. 2d 718, 729-30, 150 N.W.2d 447 (1967)). The question presented in the present case is whether the first sentence of Article I, Section 9m of the Wisconsin Constitution was intended as a statement of purpose that articulates the importance of recognizing crime victim rights, or whether it was intended to provide crime victims with an enforceable right that is self-executing.

¶ 14. Like statutes, constitutional provisions may include statements of purpose that use broad language. See State ex rel. Columbia Corp. v. Pacific Town Bd., 92 Wis. 2d 767, 772, 286 N.W.2d 130 (Ct. App. 1979). As with a statute's statement of purpose, a constitutional section's statement of purpose does not provide for an independent, enforceable claim, as it is not in itself substantive. See id. at 779 (citing Smith v. Brookfield, 272 Wis. 1, 7, 74 N.W.2d 770 (1956)). Such a statement of purpose is instead instructive of intent and guides implementation. See id. (citing Wisconsin's Envtl. Decade v. PSC, 69 Wis. 2d 1, 18, 230 N.W.2d 243 (1975)).

¶ 15. We have also explained that "[a] constitutional provision is self-executing if no legislation is necessary to give effect to it, and if there is nothing to be done by the legislature to put it in operation." Kay den, 34 Wis. 2d at 731 (citation omitted). However, a statement of purpose, policy or principle is not self-executing. 16 Am. Jur. 2d Constitutional Law § 102 (1998) (explaining that a constitutional provision is "not self-executing when it merely lays down general principles or a line of policy without supplying the means by which such policy or principles are to be effectuated").

¶ 16. To ascertain whether the first sentence of Article I, Section 9m of the Wisconsin Constitution was intended to serve as a statement of purpose or was intended to provide an enforceable, self-executing right requires constitutional interpretation. We examine three sources in interpreting a constitutional provision: "the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption." Wisconsin Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶ 44, 270 Wis. 2d 318, 677 N.W.2d 612 (citations omitted); accord, e.g., Cole, 264 Wis. 2d 520, ¶ 10. We have broadly understood the second of these sources, the constitutional debates and practices in existence contemporaneous to the writing, to include the general history relating to a constitutional amendment, see State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶¶ 27, 30-36, 260 Wis. 2d 653, 660 N.W.2d 260, as well as the legislative history of the amendment, see Cole, 264 Wis. 2d 520, ¶¶ 10, 36-41.

¶ 17. Applying this analysis, we note first that the plain meaning of the first sentence of Article I, Section 9m of the Wisconsin Constitution in context indicates that it serves as a statement of purpose and does not create enforceable, self-executing rights. Article I, Section 9m of the Wisconsin Constitution provides:

This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law.

The provision in question, "This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy," opens the section. See id. It uses very broad terms to describe how the State must treat crime victims. See id. The subsequent sentence requires the State to "ensure" that crime victims have a number of "privileges and protections," which are articulated in detail. See id. This structure, opening the section with broad indications of how crime victims should be treated, followed by a detailed list of privileges and protections to which victims are entitled, shows that the first sentence was intended to serve as a general guide or statement of policy regarding victims' rights, whereas the second sentence was intended to provide an outline of the specific rights that the State shall afford crime victims. See id.

¶ 18. Next, we examine the constitutional amendment's history. In an early attempt to secure the initial legislative approval needed to adopt a state constitutional victims' rights amendment, Senator Barbara Ulichny introduced 1989 Senate Joint Resolution 94. With her drafting request to the Legislative Reference Bureau (LRB), Senator Ulichny attached two articles written by other states' attorneys general as background material for the drafter that provide some evidence of the legislature's intent. See Don Siegelman & Courtney W. Tarver, Victims' Rights in State Constitutions, 1 Emerging Issues in St. Const. L. 163 (1988); Ken Eikenberry, Victims of Crime/Victims of Justice, 34 Wayne L. Rev. 29 (1987); Legislative Reference Bureau Drafting Record for 1989 S.J.R. 94.

¶ 19. From this background material, we learn that 1989 Senate Joint Resolution 94 was introduced in the midst of a larger, nationwide movement to recognize the rights of crime victims, particularly through the amendment of state constitutions. Siegelman & Tarver, supra, at 163-64, 170-71. The materials note that crime victims were being treated insensitively and with a lack of consideration, even by well-meaning public agencies. See Siegelman & Tarver, supra, at 169; Eikenberry, supra, at 31-32. Moreover, it was believed that rights of crime victims needed to be addressed both out of a sense of fundamental fairness and justice to victims, see Siegelman & Tarver, supra, at 172; Eiken-berry, supra, at 30, 32-33, as well as to enhance the effectiveness of the criminal justice system, because the cooperation of crime victims and witnesses was understood to be central to law enforcement, see Siegelman & Tarver, supra, at 169; Eikenberry, supra, at 31-32. Lois Haight Herrington, who chaired a presidential task force on victims of crime, explained that her task force concluded that:

the treatment of crime victims in America was a national disgrace. Ignored, mistreated, or blamed, the innocent victims had been handled like photographs or fingerprints — mere evidence to be manipulated at the criminal justice system's convenience. By the end of the ordeal, many victims vowed that they would never again become embroiled in the system, and that they would tell their friends and loved ones to stay away from the courts. Just as a pebble dropped in a pool causes rippling all across the water, the mistreatment of victims spread resentment and distrust of the justice system throughout entire communities. We saw that this insensitivity toward victims was not only unjust, it was unwise. The criminal justice system is absolutely dependent upon the cooperation of crime victims to report and testify. Without their help, the system cannot hold criminals accountable and stem the tide of future crime.

Eikenberry, supra, at 30 (emphasis added).

¶ 20. With this background established, we turn to the history of the actual language adopted. The legislature considered and rejected identical language for Article I, Section 9m of the Wisconsin Constitution in 1991 Assembly Joint Resolution 4 and 1989 Assembly Joint Resolution 138, both of which included a right to fairness and respect in a list of specifically enumerated rights:

The rights of victims of crime shall be defined and protected by law and shall include: the right to he treated with fairness and respect for their dignity and privacy throughout the criminal justice process; the right to timely disposition of the case following arrest of the accused; the right to be reasonably protected from the accused throughout the criminal justice process; the right to notification of court proceedings; the right to attend trial and all other court proceedings that the accused has the right to attend; the right to confer with the prosecution; the right to make a statement to the court at sentencing; the right to restitution and compensation; and the right to information about the disposition of the cáse, including the conviction, sentence, imprisonment and release of the accused.

1991 A.J.R. 4 (emphasis added); 1989 A.J.R. 138 (emphasis added). The legislature rejected this language, deciding to remove the reference to fairness, dignity and respect from the list of enumerated rights and move it to a separate sentence. See Wis. Const, art. I, § 9m. We infer from that decision that the broad language of fairness, dignity and respect in the amendment's first sentence was intended to have a different significance than the language specifically articulating rights in the second sentence.

¶ 21. The statutory structure that was in place prior to the adoption of Article I, Section 9m of the Wisconsin Constitution provides evidence of the manner in which the amendment's first and second sentences were intended to differ in significance. The legislature had created Chapter 950, "Rights of victims and witnesses of crimes," in 1980. Section 4, ch. 219, Laws of 1979. On its face, Article I, Section 9m of the Wisconsin Constitution appears to have adopted the structure of the pre-amendment codification of victims' rights. See 16 Am. Jur. 2d Constitutional Law § 90 (1998) ("A constitutional provision must be presumed to have been framed and adopted in the light and understanding of... existing laws and with reference to them."); 16 C.J.S. Constitutional Law § 34 (1984) ("Where a constitutional provision similar or identical to that contained in a. .. statute ... is adopted, it is presumed that such provision was adopted with the construction previously placed on it."). Wisconsin Stat. § 950.01 (1991-92), entitled "Legislative intent," read in language very similar to the first sentence of Article I, Section 9m of the Wisconsin Constitution: "[T]he legislature declares its intent, in this chapter, to ensure that all victims ... of crime are treated with dignity, respect, courtesy and sensitivity." Then, at Wis. Stat. § 950.04 (1991-92), entitled "Basic bill of rights for victims and witnesses," specific rights of victims and witnesses were enumerated in detail, as they are in the second sentence of Article I, Section 9m of the Wisconsin Constitution.

¶ 22. Not only is the structure of the constitutional amendment on its face parallel to the preexisting codification, the Legislative Reference Bureau (LRB) has explained that the constitutional amendment was adopted with the Chapter 950 provisions in mind. See Wisconsin Briefs, Constitutional Amendments and Advisory Referenda To Be Considered by Wisconsin Voters April 6, 1993, LRB-93-WB-4, at 3-4 (March 1993). A LRB publication regarding the amendment explained that advocates of the amendment believed it was "necessary to give weight to the statutory language," id. at 3, and included a rationale for the amendment given by Eau Claire County Supervisor Gerald L. Wilkie in 1990 that refers to the pre-existing codification of victim rights:

Though we have a comprehensive set of victim rights, the real problem is that these laws carry little weight.... A constitutional amendment is important because it would permanently ensure the rights will be honored and it will give our courts a constitutional basis for recognizing the victim's interest.

Id. at 4 (citation omitted). As Article I, Section 9m of the Wisconsin Constitution was adopted to give weight to Chapter 950 and parallels that statutory scheme's structure, our conclusion that the opening sentence of Article I, Section 9m of the Wisconsin Constitution was meant to be a statement of purpose, set apart from and then followed by the enumeration of the specific enforceable rights crime victims are afforded in the second sentence, is further reinforced.

¶ 23. We turn next to the legislature's earliest interpretation of Article I, Section 9m of the Wisconsin Constitution, as manifested in 1997 Wis. Act 181, the first significant law passed regarding the rights of crime victims following the amendment's adoption. With 1997 Wis. Act 181, the legislature retained the pre-amendment statutory structure of providing for rights in detail in a provision entitled "Basic bill of rights for victims and witnesses." Wis. Stat. § 950.04. Further, 1997 Wis. Act 181 created a subsection at § 950.04(lv) entitled "Rights of victims," which enumerated crime victim rights, none of which make reference to fairness, dignity or respect for privacy. See 1997 Wis. Act 181, § 65. Instead, the legislature retained the broad language referring to fairness and dignity in the provision entitled "Legislative intent" at Wis. Stat. § 950.01.

¶ 24. Moreover, subsequent to the adoption of 1997 Wis. Act 181, the LRB explained that Article I, Section 9m of the Wisconsin Constitution "recognizes specified privileges and protections for crime victims and directs the legislature to provide remedies for violations of those rights." Legislative Briefs, Rights of Crime Victims and Witnesses, LB-98-3, at 1 (May 1998). Thus, the amendment apparently was intended to require remedies, such as the private reprimand at issue in this case, only for violations of the "privileges and protections" enumerated in the second sentence of Article I, Section 9m of the Wisconsin Constitution. See id. The LRB further noted that 1997 Wis. Act 181 lists "the rights of crime victims as protected by the Wisconsin Constitution and statutory law" in Wis. Stat. § 950.04(lv), id., which, because § 950.04(lv) does not list rights of fairness, dignity or respect for privacy, further supports our conclusion.

¶ 25. The LRB's analysis of Engrossed 1997 Assembly Bill 342, which created 1997 Wis. Act 181, also suggests that the legislature did not interpret Article I, Section 9m of the Wisconsin Constitution to provide a separate enforceable right to fairness, dignity and respect for privacy. The LRB's analysis lists the rights that the state constitution provides to crime victims, without including the right to fairness, dignity and respect for privacy in the list. See Legislative Reference Bureau Analysis of Engrossed 1997 A.B. 342.

¶ 26. In sum, based on our examination of the plain meaning of Article I, Section 9m of the Wisconsin Constitution, which is affirmed by the history of and the legislature's earliest interpretation of that amendment, we conclude that the first sentence of Article I, Section 9m of the Wisconsin Constitution does not provide a self-executing right that the Board is empowered to enforce via private reprimand pursuant to Wis. Stat. § 950.09(2)(a). However, we recognize that crime victims, by virtue of the crimes they suffer, experience profound tragedy before they encounter the criminal justice system. While every act of insensitivity towards a crime victim may not constitute a violation of a right enforceable under § 950.09(2)(a), we believe that justice requires that all who are engaged in the prosecution of crimes make every effort to minimize further suffering by crime victims. Accordingly, we encourage officials within the criminal justice system, including prosecuting attorneys and their staffs, to establish effective lines of communication and good rapport with crime victims to the furthest extent possible.

¶ 27. Moreover, this holding is not to be construed as rendering the first sentence of Article I, Section 9m of the Wisconsin Constitution without meaning or to minimize the importance of the rights of crime victims in this state. Rather, the first sentence of Article I, Section 9m of the Wisconsin Constitution is a constitutional mandate. It articulates this State's policy regarding the treatment of crime victims. It also functions to guide Wisconsin courts' interpretations of the state's constitutional and statutory provisions concerning the rights of crime victims.

III. CONCLUSION

¶ 28. The first sentence of Article I, Section 9m of the Wisconsin Constitution states: "This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy." We recognize that according crime victims fairness, dignity and respect is very important to a just enforcement of the criminal code of the State of Wisconsin. The legislature has recognized the importance of victims' rights as well, by enacting Wis. Stat. § 950.04. However, because we conclude that this constitutional provision is a statement of purpose that describes the policies to be promoted by the State and does not provide an enforceable, self-executing right, we affirm the circuit court decision reversing the private reprimand of District Attorney Patrick Schilling issued by the Crime Victims Rights Board under Wis. Stat. § 950.09(2)(a).

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

       All further statutory references are to the 1999-2000 statutes, unless otherwise noted.

       The complaint was also filed against the Price County Victim/Witness Coordinator. The Board determined that probable cause did not exist to believe that the Victim/Witness Coordinator violated the complainants' rights.

       Due to this conclusion, we do not reach the parties' arguments as to whether the Board's authority to issue private reprimands invades prosecutorial discretion or whether the first sentence of Article I, Section 9m of the Wisconsin Constitution is unconstitutionally vague.

       Article XII, Section 1 of the Wisconsin Constitution provides for amending the constitution. For an amendment to the Constitution to become effective, it must be adopted by two successive legislatures and then ratified by voters. Wis. Const, art. XII, § 1; see generally Wisconsin Briefs, Constitutional Amendments and Advisory Referenda To Be Considered by Wisconsin Voters April 6, 1993, LRB-93-WB-4, at 1 (March 1993) [hereinafter Wisconsin Briefs, Constitutional Amendments.]. To create Article I, Section 9m of the Wisconsin Constitution, the legislature adopted 1991 Senate Joint Resolution 41 and 1993 Senate Joint Resolution 3, and the amendment proposal was submitted to voters on April 6, 1993. See Wisconsin Briefs, Constitutional Amendments, supra, at 1.

       Wisconsin Stat. § 950.01 (1991-92) provided in whole:
      In recognition of the civic and moral duty of victims and witnesses of crime to fully and voluntarily cooperate with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of such citizen cooperation to state and local law enforcement efforts and the general effectiveness and well-being of the criminal justice system of this state, the legislature declares its intent, in this chapter, to ensure that all victims and witnesses of crime are treated with dignity, respect, courtesy and sensitivity; and that the rights extended in this chapter to victims and witnesses of crime are honored and protected by law enforcement agencies, prosecutors and judges in a manner no less vigorous than the protections afforded criminal defendants.

       Wisconsin Stat. § 950.04 (1991-92) provided for such specific rights as: to be informed of a case's final disposition; to be notified under specified circumstances if a defendant is released from custody; to be notified of pardon applications; to be notified under specified circumstances if a court proceeding is canceled; to have the court consider a crime's impact on the victim; to be protected from harm or threats arising out of cooperation with law enforcement or prosecutor efforts; to be informed of financial and other assistance available to crime victims; when a witness fee is available, to be informed of the procedure to apply for and receive such fee; when possible, to be provided a secure waiting area during court proceedings; to have stolen or other personal property expeditiously returned by law enforcement agencies; to be provided with appropriate employer intercession services; and to be entitled to speedy disposition of the case.

       Legislative Reference Bureau (LRB) statements carry some weight because the agency "is deeply involved in the legislative drafting process, as LRB attorneys draft all hills and resolutions that are introduced into the legislature." State v.

        Cole, 2003 WI 112, ¶ 36 n.12, 264 Wis. 2d 520, 665 N.W.2d 328. Further, the LRB's analyses are entitled to consideration because of its legal expertise. Id.

       Our precedent supports consideration of a statement made contemporaneous to the time of drafting to ascertain the intent behind a constitutional provision. See Wagner v. Milwaukee County Election Comm'n, 2003 WI 103, ¶ 62, 263 Wis. 2d 709, 666 N.W.2d 816.

       The LRB's "analysis of a bill is printed with and displayed on the bill when it is introduced in the legislature." State v. Douangmala, 2002 WI 62, ¶ 30, 253 Wis. 2d 173, 646 N.W.2d 1 (citing Wis. Stat. § 13.92(1) (b)2; see Badger State Bank v. Taylor, 2004 WI 128, ¶ 42 n. 39, 276 Wis. 2d 312, 688 N.W.2d 439 (citing Wis. Stat. § 13.92(l)(b)2). As such, the LRB's analysis indicates legislative intent. See Cole, 264 Wis. 2d 520, ¶ 36 n.12; State v. Gribble, 2001 WI App 227, ¶ 72, 248 Wis. 2d 409, 636 N.W.2d 488.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against David C. Williams, Attorney at Law: Lawyer Regulation System of the State of Wisconsin, by Ronald R. Smith, Special Investigator, Complainant-Respondent, v. David C. Williams, Respondent-Appellant.
    Supreme Court

      No. 02-3327-D.

      Decided February 23, 2005.

    2005 WI 15
    (Also reported in 692 N.W.2d 633.)
   PER CURIAM.

¶ 1. Attorney David C. Williams appealed from the revised report of the referee, Eugene A. Gasiorkiewicz, concluding that attorney Williams violated SCR 20:8.4(g) and the attorney's oath, SCR 40.15. Specifically, the referee concluded that publishing four letters in a local newspaper constituted "offensive personality" in violation of the attorney's oath. While we agree with the referee that certain statements contained in the four letters were intemperate and inappropriate, we conclude that the statements do not meet the legal standard of "offensive personality" and thus do not constitute a violation of the attorney's oath. Consequently, we dismiss the proceeding.

¶ 2. Attorney Williams was admitted to practice law in Wisconsin in 1973, practices in Lake Geneva and has not previously been disciplined. Attorney Williams was formerly a member of the District I Office of Lawyer Regulation (OLR) Committee.

¶ 3. In May, 1999 a committee of the Lake Geneva City Council recommended approval of a proposed transfer of a Class B liquor license from D'Agostino's On The Lake to Su Wings Corporation. The proposed transfer involved D'Agostino's surrendering the liquor license to the city, conditioned on the city issuing the license to Su Wings. In June, 1999 the Lake Geneva City Council denied the transfer of the liquor license to Su Wings. Su Wings then retained Attorney Williams' law firm to represent it relative to the city's denial of the proposed liquor license transfer.

¶ 4. D'Agostino's did not apply for renewal of the liquor license, so the license lapsed. Under Wisconsin law, a limited number of liquor licenses are available for issuance in each municipality. As a result of the lapse of the liquor license issued to D'Agostino's, Lake Geneva city officials believed that only one Class B liquor license was available for issuance in the city. In September, 1999, the city awarded a Class B liquor license to an establishment owned and operated by then Lake Geneva Mayor Spyro Condos and his wife.

¶ 5. On January 7, 2000, Williams filed a claim on behalf of Su Wings with the City of Lake Geneva, pursuant to Wis. Stat. § 893.80, alleging that the city had unlawfully denied the liquor license transfer to Su Wings and had unlawfully issued the liquor license to Mayor Condos. Attorney Williams' claim demanded that Su Wings be awarded the liquor license along with $2 million damages. The text of the claim was published in a front-page article in the January 13, 2000 edition of the Lake Geneva Regional News, a local weekly newspaper with a circulation of about 5,500.

¶ 6. In response to the publication of the claim in the Regional News and other publicity about the matter, at a committee meeting held on February 14, 2000, Lake Geneva alderperson Cathleen Ahlgren read a prepared statement in which she disputed certain of the allegations made by Williams in the claim filed with the city. Ahlgren's prepared statement was published in a front-page article in the February 17, 2000 edition of the Regional News. The committee meeting at which Ahlgren made the statement was later televised on the public access channel of the local cable television.

¶ 7. Williams provided the Regional News with a copy of a letter addressed to Ahlgren, which was published in the paper's February 24, 2000 edition. Ahlgren did not receive the letter until after it had already been published in the newspaper. In the letter, Williams described Ahlgren as being "confused" and stated Ahl-gren should visit the city clerk's office to "avoid further embarrassment." The letter said:

Again, it would be my preference to try legal actions in court where they belong, and where all witness statements must be given under oath. However, we are prepared to try this case in the media if that's what the city prefers. One advantage of doing so is that the city officials make public statements, apparently with no advice from legal counsel. This makes my job much easier.

The letter also contained a list of nine rhetorical questions to Ahlgren.

¶ 8. On March 2, 2000 the Regional News published a two-paragraph letter to the editor authored by Lake Geneva Alderperson Richard Peterson. The letter said Peterson did not want to get into a debate with Attorney Williams hut offered the suggestions that the letter was too long and that Attorney Williams should direct his "criticism and smart remarks toward the council" rather than the city clerk's office.

¶ 9. On March 9, 2000 the Regional News published, in the form of a letter to the editor, a letter addressed to Alderperson Peterson. The letter contained the following statements:

• I will number each paragraph so you don't lose your train of thought.
• It is you and your cronies on the city council who cheated my client of his rights in order to assist one of your own.
• I don't wish to tax your attention span.
• It is not a legal defense for someone to plead that they were "just following orders." Both the actor and one who ordered him/her are liable.

¶ 10. In late March, 2000 the Lake Geneva City Council voted unanimously to deny the claim that had been filed by Attorney Williams on behalf of Su Wings. In late April the Regional News published, in a front-page article, the text of a letter from Attorney Williams to the Walworth County District Attorney and the Wisconsin Department of Revenue requesting enforcement action under ch. 125, Wis. Stat., relative to alleged illegal liquor sales by Mayor Condos under the license that Attorney Williams contended had been unlawfully issued to Mayor Condos instead of to Su Wings. In May, 2000 Williams, as counsel for Su Wings, commenced a civil rights action against the City of Lake Geneva, Alderperson Ahlgren and Mayor Condos in Walworth County Circuit Court. The complaint demanded a jury trial on all issues. The defendants removed the case to the United States District Court for the Eastern District of Wisconsin, pursuant to 28 U.S.C. § 1441.

¶ 11. On June 12, 2000 the Lake Geneva City Council renewed the liquor license that had been issued to Mayor Condos. On June 22, 2000 the Regional News published another letter to the editor authored by Attorney Williams. In this letter, referring to an apparent gaffe in videotaping a public meeting and in reference to the city clerk Williams said, "Perhaps the ghost of Rosemary Woods is now roaming city hall at night!" Attorney Williams also called Mayor Condos "Chairman Condos," comparing him to Chairman Mao of China, and said that erecting a statue or posters of Mayor Condos in public parks "might cause Su Wing to freak out and run back to China."

¶ 12. In early July, 2000 the Regional News published a letter from Attorney Williams demanding the city conduct a hearing on a verified complaint which Attorney Williams had filed in his capacity as a city resident, pursuant to Wis. Stat. § 125.12(2), seeking revocation or suspension of the liquor license issued to Mayor Condos. The city's finance committee held á hearing on the complaint and recommended that the city council reject it. The city council dismissed the complaint in September, 2000. In November Attorney Williams filed a civil action seeking judicial review of the city's decision.

¶ 13. In January, 2001 the Federal District Court remanded Su Wing's civil action to the Walworth County Circuit Court. On January 31, 2001 the Regional News published a letter to the editor authored by Attorney Williams in which he compared Lake Geneva to Chicago, "reputed to be the most corrupt city in the country" and said even in Chicago "Mayor Daley could not violate state statutes and have his cronies award him a liquor license to the detriment of others not so connected without being denounced."

¶ 14. In June of 2001 the City of Lake Geneva granted a liquor license to Su Wings after it was determined that additional liquor licenses were available due to an increase in the city's population. That same month Attorney Williams' appeal of the dismissal of the Wis. Stat. § 125.12(2) action was dismissed by the Walworth County Circuit Court. The court of appeals subsequently reversed and remanded, concluding that the liquor license issued to Mayor Condos and his wife was void. See Williams v. City of Lake Geneva, 2002 WI App 95, 253 Wis. 2d 618, 643 N.W.2d 864.

¶ 15. In April, 2001 the director of the OLR sent Attorney Williams a letter notifying him that a grievance had been filed against him. Because Attorney Williams was a member of the District I OLR Committee, the investigation proceeded under SCR 22.25, which governs misconduct and malfeasance allegations against Lawyer Regulation System (LRS) participants. Attorney Williams subsequently resigned from the District I OLR Committee.

¶ 16. In December, 2002 the LRS filed an order to answer and complaint alleging that various letters written by Attorney Williams and published in the Regional News violated SCR 20:3.6. The complaint also alleged that publishing the letters constituted "offensive personality" in violation of the attorney's oath.

¶ 17. An evidentiary hearing was conducted in January, 2004. The referee issued a report in April, 2004, which was amended on May 4, 2004. The referee concluded that the letters written by Attorney Williams and published in the Regional News did not violate SCR 20:3.6. The referee did conclude, however, that the letters published on February 24, 2000, March 9, 2000, June 22, 2000 and January 31, 2001 violated SCR 20:8.4(g) and the attorney's oath, SCR 40.15. The referee noted that in State v. Eisenberg, 48 Wis. 2d 364, 380-81, 180 N.W.2d 529 (1970) this court said:

License to practice law in this state is granted on implied understanding that an attorney shall at all times demean himself in proper manner and refrain from such practices which bring disrepute upon himself, the profession and the courts. This implied understanding is also affirmed by the Oath taken by the attorney on admission to practice.

¶ 18. The referee also noted that in State v. Postorino, 53 Wis. 2d 412, 419, 193 N.W.2d 1 (1972) this court said, "[a] lawyer is a professional man twenty-four hours a day, not eight hours, five days a week." The referee concluded:

SCR chapter 10 contains a preamble of a lawyer's responsibilities. The initial paragraph of that preamble reads in part as follows: "A lawyer is ... an officer of the legal system and a public citizen having special responsibility for the quality of justice." The preamble further states that "A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials." Regardless of his personal feelings toward Mayor Condos and Cathleen Ahlgren they were "public officials" who did not deserve to be belittled by Respondent. He cannot hide behind his duties to Su Wing to justify his sarcastic and critical tone toward adverse parties in the above-referenced letters.

¶ 19. The referee recommended that Attorney Williams be privately reprimanded.

¶ 20. A referee's findings of fact are to be affirmed unless they are clearly erroneous. In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). Conclusions of law are reviewed de novo. In re Disciplinary Proceedings Against Carroll, 2000 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718. Although the referee's findings of fact have not been shown to be clearly erroneous and we therefore affirm them, we disagree with the referee's legal conclusion that Attorney Williams violated the offensive personality component of the attorney's oath by virtue of the letters published in the Regional News.

¶ 21. This court has previously held that the "offensive personality" component of the attorney's oath may be violated by conduct that occurs out of court as well as by in-court conduct. For example, this court found a violation of the attorney's oath in In re Disciplinary Proceedings Against Johann, 216 Wis. 2d 118, 574 N.W.2d 218 (1998). In that case the attorney distributed a printed handout strongly critical of the man who was her child's father and the man's wife. The handout included a picture of the father containing a caption with his name and the term "Accused Serial Rapist." The handout urged a boycott of the law firm where the man's wife practiced and accused her of having cooperated with the man in depriving Attorney Johann of thousands of dollars in income by their allegedly benefiting from books Attorney Johann asserted she had written.

¶ 22. In In re Disciplinary Proceedings Against Blask, 216 Wis. 2d 129, 573 N.W.2d 835 (1998), while serving as Lincoln County District Attorney, Blask engaged in a loud confrontation with a 67-year-old man leaving the register in probate's office, physically placed his hands on the man, attempted to search him, and pushed him backwards with a clenched fist, bending the frames of the eye glasses that were in the man's pocket. Blask also pinned the man's arms to a table, grabbed his jacket collar and released him only when a sheriffs deputy appeared in response to a call for assistance. In a separate incident, following a high school basketball game he attended in Merrill, Blask approached one of the game's referees and expressed significant displeasure with his officiating, then shoved or pushed the referee into a wall. The referee in that case concluded, and this court agreed, that by his physical altercations Blask engaged in offensive personality in violation of the attorney's oath, SCR 40.15 and SCR 20:8.4(g).

¶ 23. In In re Disciplinary Proceedings Against Ray, 2002 WI 116, 256 Wis. 2d 19, 651 N.W.2d 727, while representing a father seeking to reestablish joint custody of his children, Attorney Ray began yelling at the sister of her client's former wife about hiding the children while they had been in the state. Attorney Ray threatened the woman that she would go to jail for interference with a child custody order or for conspiracy to kidnap, and she made similar threats against a friend of the sister. On several other occasions Attorney Ray engaged in similarly abusive telephone conversations with the sister and the children's grandmother. Again, the referee concluded, and this court agreed, that this conduct violated SCR 40.15 and SCR 20:8.4(g).

¶ 24. The conduct at issue in the instant case was not as egregious as the conduct found to have violated the "offensive personality" component of the attorney's oath in Johann, Blask or Ray, nor did it bring disrepute on Attorney Williams, the legal profession or the courts, as did the conduct in Eisenberg. The conduct at issue here consisted entirely of letters written by Attorney Williams and published in the Lake Geneva Regional News. We agree with the referee that some of the statements in the letters written by Attorney Williams were acidic, argumentative, arrogant and condescending. While we do not condone either the tone or the content of the letters, we do not find that the letters constituted "offensive personality" in violation of the attorney's oath. In reaching this conclusion we find the referee's finding of fact 87 to carry particular weight:

Respondent's primary intent in writing the letters complained of in this matter was to protect the personal and business reputation of his client.

Although Attorney Williams perhaps used more oratorical flourish than was prudent, the record supports the referee's finding that his conduct was motivated by the desire to protect his client. Under the circumstances we cannot conclude, as a matter of law, that the letters constituted "offensive personality" in violation of the attorney's oath.

¶ 25. Attorney Williams also argued in his briefs that the referee was incorrect in interpreting the Supreme Court Rules to mean that participants in the LRS do not have the same rights as non-LRS participants to receive a copy of the investigative report and submit a written response thereto. In the alternative Attorney Williams argued that if the referee was correct in this interpretation of the Supreme Court Rules, then the rules violate equal protection under both the Wisconsin and Federal Constitutions. In light of our conclusion that Attorney Williams did not violate any Supreme Court Rules, we decline to reach these issues.

¶ 26. IT IS ORDERED that the disciplinary proceeding is dismissed without costs.

¶ 27. PATIENCE D. ROGGENSACK, J., did not participate.

       SCR 20:8.4(g) provides: "It is professional misconduct for a lawyer to: (g) violate the attorney's oath."

       SCR 40.15 provides:
      The oath or affirmation to be taken to qualify for admission to the practice of law shall be in substantially the following form:
      I will support the constitution of the United States and the constitution of the state of Wisconsin;
      I will maintain the respect due to courts of justice and judicial officers;
      I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, or any defense, except such as I believe to be honestly debatable under the law of the land;
      I will employ, for the purpose of maintaining the causes confided to me, such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;

        I will maintain the confidence and preserve inviolate the secrets of my client and will accept no compensation in connection with my client's business except from my client or with my client's knowledge and approval;
      I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;
      I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any person's cause for lucre or malice. So help me God.

       SCR 20:3.6 provides:
      (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
      (b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in deprivation of liberty, and the statement relates to:
      (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
      (2) in a criminal case or proceeding that could result in deprivation of liberty, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;
      (3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
      (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in deprivation of liberty;
      (5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or

        (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
      (c) Notwithstanding paragraphs (a) and (b)(l-5), a lawyer may state all of the following:
      (1) the claim; offense or defense involved and, except when prohibited by law, the identity of the persons involved;
      (2) the information contained in a public record;
      (3) that an investigation of the matter is in progress;
      (4) the scheduling or result of any step in litigation;
      (5) a request for assistance in obtaining evidence and information necessary thereto;
      (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
      (7) in a criminal case, in addition to subparagraphs (1) through (6):
      (i) the identity, residence, occupation and family status of the accused;
      (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
      (iii) the fact, time and place of arrest; and
      (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
      (d) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial likelihood of undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to information that is necessary to mitigate the recent adverse publicity.

        (e) A lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall not make a statement that is prohibited by paragraph (a).

       In his brief Attorney Williams raised a First Amendment argument but failed to develop it. We therefore decline to reach the question of whether, or to what extent, the letters at issue might be entitled to First Amendment protection.