author: LOUIS B. BUTLER, JR., J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. John R. Maloney, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 2003AP2180.

      Oral argument April 12, 2005 and November 9, 2005.

    Decided June 10, 2005 and

      February 10, 2006.

    2006 WI 15
    (Also reported in 709 N.W.2d 436.)

      For the defendant-appellant-petitioner there were briefs by Lew A. Wasserman and Kies & Wasserman, Milwaukee, and oral argument by Lew A. Wasserman.

    For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
   LOUIS B. BUTLER, JR., J.

¶ 1. John Maloney ("Maloney"), the petitioner, originally sought review of a decision by the court of appeals affirming a circuit court order denying his motion for postconviction relief. In his postconviction appeal and initial review before this court, he contended that he was afforded ineffective assistance of trial counsel. We rejected Maloney's claim of ineffective assistance of counsel, but retained jurisdiction to determine `[w]hether this court has authority to remand to the circuit court for a motion for post-conviction relief based upon the interest of justice," and, "[i]f so, whether this court should act upon that authority and remand" this case for that purpose. State v. Maloney, 2005 WI 74, ¶ 91 2-3, 45-46, 281 Wis. 2d 595, 398 N.W.2d 583 ("Maloney I").

¶ 2. We conclude that this court has the authority to use its power of discretionary reversal to remand to the circuit court for a motion for postconviction relief in the interest of justice, notwithstanding the fact that the argument was raised by this court sua sponte. However, because Maloney's brief and oral argument failed to allege sufficient material facts, and no such facts currently exist within the record, to warrant a remand for an evidentiary hearing in the interest of justice, we conclude that Maloney is not entitled to relief on the basis of this record.

I

¶ 3. We discussed the facts of Maloney's case in Maloney I, 281 Wis. 2d 595, ¶91 4-13. We summarize only the facts that are relevant to this review.

¶ 4. John Maloney, the defendant, and Sandra Maloney ("Sandra") were married in 1978. In 1997, John moved out of the family's home and filed for divorce. Sandra's body was found on her living room couch on February 11, 1998. According to the Green Bay medical examiner, her death was caused by the combination of blunt force trauma to the back of her head, strangulation, and suffocation. The couch, along with Sandra's body, had been set on fire. Preliminary reports from the Green Bay Fire Department and the Brown County Arson Task Force labeled the fire an accident, although the fire was ultimately deemed arson. The investigators concluded that Sandra's death was a homicide. John Maloney became a suspect.

¶ 5. Because Maloney was a police officer with the Green Bay Police Department, Brown County District Attorney John E Zakowski recused himself from the investigation. Joseph Paulus, then-District Attorney for Winnebago County, and Vincent Biskupic, then-District Attorney for Outagamie County, were appointed as Special Prosecutors.

¶ 6. Throughout the course of the investigation, Tracy Hellenbrand, who was dating Maloney at the time of Sandra's death, cooperated with the authorities by recording conversations with Maloney. Conversations that took place in Las Vegas between Maloney and Hellenbrand were videotaped, under supervision of Wisconsin authorities, with Hellenbrand's consent and cooperation. These recordings contained inculpatory statements by Maloney regarding the death of Sandra.

¶ 7. Based on the videotaped conversations in Las Vegas, Maloney was arrested and charged with first-degree intentional homicide, arson, and mutilation of a corpse, all in connection with Sandra's homicide.

¶ 8. At trial, the State relied heavily on the recordings of the conversations between Maloney and Hellenbrand in Las Vegas to demonstrate Maloney's guilt. Maloney attempted to challenge the admissibility of the videotapes but was unsuccessful.

¶ 9. Maloney maintained his innocence throughout the trial and asserted that Hellenbrand was responsible for the murder. The jury convicted Maloney of all three charges. Maloney appealed, renewing his challenge to the admissibility of the videotapes. The court of

appeals affirmed. State v. Maloney, No. 1999AP3069-CR, unpublished slip op. (Wis. Ct. App. Sept. 6, 2000).

¶ 10. Maloney then filed a motion for postconviction relief under Wis. Stat. § 974.06 (1997-98). In his postconviction motion, Maloney claimed he was denied effective assistance of counsel. The circuit court denied Maloney's motion. The court of appeals affirmed. State v. Maloney, 2004 WI App 141, 275 Wis. 2d 557, 685 N.W.2d 620. We accepted review.

¶ 11. Shortly before we heard oral arguments for Maloney I, the Wisconsin Department of Justice informed this court that the CBS news program "48 Hours" devoted a segment of its March 26, 2005, show to the investigation and prosecution of Maloney by Joseph Paulus, and attached a transcript of the program. Maloney did not object to the court receiving the transcripts. The transcripts of this television show discussed that in 2004, Joseph Paulus, the former District Attorney of Winnebago County and Special Prosecutor in Maloney's case, had been convicted of misconduct while in office.

¶ 12. In Maloney I, 281 Wis. 2d 595, ¶ 45, we concluded that Maloney had failed to carry the burden of demonstrating ineffective assistance of counsel. Despite this conclusion, two questions were raised sua sponte by this court following oral argument: 1) "[wjhether this court has authority to remand to the circuit court for a motion for post-conviction relief based upon the interest of justice" even though no party had raised or made this argument; and 2) "whether this court should act upon that authority and remand" for that purpose. Id., ¶¶ 3, 46. We retained jurisdiction to address these two questions. We now affirm the decision of the court of appeals.

I — I I — I

¶ 13. We begin by examining whether this court has the authority to remand the case to the trial court for a motion for postconviction relief based upon the interest of justice, and, if so, whether the court's authority is adversely affected because this court, not the parties, raised the argument sua sponte.

¶ 14. There is no question that this court has both inherent power and explicit statutory authority to reverse a conviction in the interest of justice "if it appears from the record that the real controversy has not been fully tried," or if there has been a miscarriage of justice. Wis. Stat. § 751.06. See also State v. Armstrong, 2005 WI 119, ¶ 113, 283 Wis. 2d 639, 700 N.W.2d 98; State v. Hicks, 202 Wis. 2d 150, 159-60, 549 N.W.2d 435 (1996); Vollmer v. Luety, 156 Wis. 2d 1, 17-20, 456 N.W.2d 797 (1990). This court has recently reaffirmed that our inherent power to reverse in the interest of justice is not limited to a direct appeal. Armstrong, 283 Wis. 2d 639, ¶ 110.

¶ 15. The State acknowledges that this court has the authority, in aid of its jurisdiction, to remand cases to the circuit court for fact-finding hearings. See, e.g., State v. Klessig, 211 Wis. 2d 194, 213-14, 564 N.W.2d 716 (1997); State v. Rewolinski, 159 Wis. 2d 1, 31-32, 464 N.W.2d 401 (1990). See also Wurtz v. Fleischman, 97 Wis. 2d 100, 108, 293 N.W.2d 155 (1980) ("When an appellate court is confronted with inadequate findings and the evidence respecting material facts is in dispute, the only appropriate course for the court is to remand the cause to the trial court for the necessary findings.") (citation omitted). The State thus concedes that it appears that this court has the authority to retain jurisdiction and remand this matter to the circuit court, even in a collateral proceeding, for a motion for postconviction relief based upon the interest of justice, should Maloney file such a motion. We agree with the State that we possess the authority to remand this matter to the circuit court for a motion for postconviction relief based upon the interest of justice.

t4, 5]

¶ 16. We also conclude that a defendant's failure to assert that the court should exercise its authority to remand the case is not a procedural bar to the defendant if the defendant is entitled to relief. Wisconsin law expressly allows this court to reverse a conviction "regardless of whether the proper motion or objection appears in the record." Wis. Stat. § 751.06. In evaluating whether a case should be retried in the interest of justice, this court "consider[s] the totality of the circumstances" to "determine whether a new trial is required to accomplish the ends of justice." Hicks, 202 Wis. 2d at 160 (citing State v. Wyss, 124 Wis. 2d 681, 735-36, 370 N.W.2d 745 (1985)). Because we have the authority to reverse a conviction and order a new trial even when the defendant fails to request this action, we conclude that we similarly have the authority to use our power of discretionary reversal to remand to the circuit court for a motion for postconviction relief in the interest of justice, notwithstanding the fact that the argument was raised by this court sua sponte.

I — I HH l-H

¶ 17. Concluding that we have the authority to remand a case to the circuit court for a postconviction motion in the interest of justice, we examine whether we should do so in this case.

¶ 18. We are reluctant "to grant a new trial in the interest of justice upon our own motion." Hicks, 202 Wis. 2d at 161 (citing Garcia v. State, 73 Wis. 2d 651, 655, 245 N.W.2d 654 (1976)). See also Armstrong, 283 Wis. 2d 639, ¶ 114 (citing Morden v. Continental AG, 2000 WI 51, ¶ 87, 235 Wis. 2d 325, 611 N.W.2d 659). We exercise our discretionary authority only in exceptional cases. Id. In order for this court to remand a case, an appellant must allege sufficient material facts that, if true, would entitle him or her to relief. See, e.g., State v. Love, 2005 WI 116, ¶¶ 2, 42, 56, 284 Wis. 2d 111, 700 N.W.2d 62; State v. Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996). "[I]f the defendant fails to allege sufficient facts [] to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief," then the circuit court may deny the motion without a hearing, thereby rendering a remand unnecessary. See Bentley, 201 Wis. 2d at 309-10 (quoting Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972)) (other citations omitted).

¶ 19. We note that Maloney's postconviction motion did not allege that he was entitled to a new trial in the interest of justice. This court raised the issue because of materials that had been submitted to it prior to the first oral argument in the case. Thus, he has failed to allege any, much less sufficient, facts to raise a question of fact implicating the interest of justice before either the trial court or this court.

¶ 20. Nevertheless, issues raised prior to and during the first oral argument in Maloney I prompted this court to ask the parties to brief:

(1) Whether this court has authority to remand to the circuit court for a motion for post-conviction relief based upon the interest of justice.
(2) If so, whether this court should act upon that authority and remand as described above.

Maloney I, 281 Wis. 2d 595, ¶¶ 3, 46.

¶ 21. In his response to our request, Maloney suggests that he is entitled to relief in the interest of justice because the jury was precluded from evaluating critical evidence: former Winnebago County District Attorney Joseph Paulus, who was the Special Prosecutor in this case, accepted bribes in 22 cases in exchange for giving defendants more favorable treatment. As noted above, Paulus was convicted of misconduct in his capacity as District Attorney in 2004. United States v. Paulus, 331 F. Supp. 2d 727 (E.D. Wis. 2004). Paulus admitted accepting bribes in cases involving misdemeanor and traffic charges, and one felony charge. Id. at 729-30. According to the federal district court, "[a]ll of the bribes were received from a single attorney who had agreed to pay one-half of his retainer to Paulus in return for the favorable treatment of his clients." Id. at 730. His behavior was characterized by the federal court as "systematic or pervasive corruption . .. striking at the heart of the system of justice we have in this country." Id. at 735.

¶ 22. What Maloney has failed to establish, however, is how Paulus's misconduct had any impact on his trial. Paulus's corruption is only relevant if it affected the presentation of evidence, or lack thereof, during Maloney's trial.

A

¶ 23. Maloney alleges that Paulus was not only accepting bribes in the 22 cases for which he was convicted, he alleges that Paulus also unlawfully tampered with evidence during his prosecution of Maloney. Maloney asserts that his attorney's strategic decision to argue that Tracy Hellenbrand was the actual perpetrator of the crimes against Sandra, and the decision not to argue that Sandra's death was an accident, was driven by Paulus's manipulation of the evidence. Maloney contends that Paulus's actions prejudiced the defense in preparation for trial by manipulating the reporting of the cause of death and by tampering with other evidence, and that Paulus's actions now raise significant questions regarding: 1) the reliability of the Las Vegas videotapes shown to the jury; 2) the reliability of the experts' conclusions that Sandra's death was a homicide and that the fire was caused by arson; and 3) the reliability of the medical examiner's conclusions as to the cause of Sandra Maloney's death.

¶ 24. First, Maloney implies that Paulus strategically edited the videotapes of Maloney and Hellenbrand's conversations in Las Vegas, altering the tapes to implicate Maloney in the death of Sandra. Maloney relies on affidavits of Jeanne Anthony Brant, a news reporter for WHBY radio in Appleton who, in March 2004, examined numerous records relating to Maloney's case. In her affidavits, Brant alleges that the State and Forensic Video disagree with regard to the editing of the videotapes. Brant's affidavits note that Bryan Del Monte, the employee of Forensic Video who was paid to assist in the editing of the Las Vegas tapes, informed her that Paulus had significantly edited the videos. In her affidavit, Brant also contends that the original bill for Del Monte's editing was $27,645.99, but that the final bill was only $5,500.99. According to Brant's affidavit, Special Prosecutor Biskupic told her the earlier bill was a draft of a bill and the $5,500.99 was the corrected bill for work actually completed. Yet, Brant asserts in her affidavit that Del Monte informed her that the $27,645.99 was not a draft, that the original bill reflected services actually rendered, but that they reduced the charges because they were informed the prosecution would not be using much of their work.

¶ 25. In addition, Maloney provided this court with two evaluations from individuals who reviewed the original tapes and the enhanced tapes. These evaluations concluded that the "enhanced" tapes, which were shown to the jury, were of a significantly reduced quality as compared to the original tapes. The evaluations also alleged that portions of the transcripts were not accurate when compared to the original tapes.

¶ 26. Second, Maloney implies that Paulus withheld information that initial reports from the Green Bay Fire Department and the Brown County Arson Task Force actually labeled the fire an accident. Mal-oney asserts that withholding this evidence regarding investigators' preliminary beliefs caused the defense to make the strategic decision against arguing that Sandra's death was an accident.

¶ 27. Maloney further alleges that Paulus withheld this information from Dr. Gregory Schmunk, a Brown County Medical Examiner, and other investigators. Maloney implies that withholding this evidence impacted the medical examiner's autopsy.

¶ 28. Maloney notes that this court recognized in Maloney I that Dr. Schmunk had indicated that the evidence that initial reports labeled the fire an accident was withheld from him, which may have affected his ruling. Maloney I, 281 Wis. 2d 595, ¶ 5 n.3. Maloney also provided this court with a review of the autopsy. The review was conducted by Dr. James D. Dibdin and completed on January 21, 2002. Dr. Dibdin concluded that "the conclusion that Ms. Maloney's death was caused by strangulation cannot be sustained."

¶ 29. In addition, Maloney suggests that a preliminary report by investigators, dated February 12, 1998, indicated that investigators believed the fire was caused by careless use of smoking materials, and that this was withheld from the investigating team. Maloney implies that the conclusions by the State's fire expert were erroneous. Maloney provides this court with a July 4, 2002, report evaluating the fire evidence by Dr. James G. Munger, Ph.D., MIFireE, CFPS. Dr. Munger's evaluation alleges that the State's investigation did not follow the systematic approach of the scientific method, asserts that the State's hypothesis regarding the cause of the fire constitutes "junk science," and concludes that the fire was caused by the misuse of smoking materials.

¶ 30. Third, Maloney contends that Paulus asked the medical examiner to delay issuing a death certificate for Sandra until the criminal investigation was completed. Maloney draws this court's attention to a letter from Paulus to Dr. Schmunk. In this letter, Paulus requests that Dr. Schmunk refrain from issuing a death certificate because, according to Paulus, issuing a death certificate might compromise the integrity of the investigation into Sandra Maloney's death. Mal-oney concludes that Paulus must have believed that Dr. Schmunk was not "on board" with Paulus's theory of the cause of Sandra's death.

B

¶ 31. Upon review of the record, we find that Maloney has not alleged sufficient material facts to justify remanding the case for an evidentiary hearing.

¶ 32. Maloney and his counsel viewed the videotapes in preparation for and during trial. The defense raised no objections about the editing of the tapes or the transcripts of the edited tapes provided to the jurors. At trial, Maloney's attorney stated that he had no objection to allowing the jurors to read the transcripts while they viewed the edited video because they were "pretty good" and "right on."

¶ 33. Furthermore, Maloney was a party to the recorded Las Vegas conversations. Had the editing significantly altered the exchange between Maloney and Hellenbrand, Maloney could have objected at trial. He did not.

¶ 34. Maloney now suggests that Paulus's editing of the tapes was unlawful manipulation of evidence. Maloney apparently bases this suggestion on the fact that Paulus has been convicted of accepting bribes in other cases. However, Maloney fails to allege sufficient material facts that link Paulus's misconduct in other cases to the handling of evidence in this case. Absent any such link, we conclude that Maloney's allegations, his reliance on the affidavits, and the recent evaluations of the tapes, fail to justify remand on the basis of this record.

¶ 35. In addition, a review of the record demonstrates that the preliminary conclusion by the investigators that the fire was an accident was actually addressed at trial. Among other evidence, the jury evaluated testimony by Daniel G. Hughes, a private fire investigator hired as an expert by the State, regarding his conclusions as to the cause of the fire. Hughes was asked about and dismissed the preliminary conclusions that the fire was an accident. Maloney's attorney made a strategic decision and argued that Hughes's conclusions were in error because Hellenbrand was the actual perpetrator and that the evidence demonstrated that a novice set the fire, not someone like Maloney who had extensive experience with arson investigations. The jury ultimately convicted Maloney.

¶ 36. These allegations regarding the preliminary conclusions as to the cause of the fire are an attempt by Maloney to reargue his case using a different theory of defense. Maloney has failed to present sufficient material facts that would lead this court to conclude that Paulus's behavior amounted to misconduct that caused his attorney to choose one theory of defense over another.

¶ 37. In Maloney I, we concluded that Maloney had "failed to demonstrate deficient performance." Maloney I, 281 Wis. 2d 595, ¶ 45. Maloney's trial counsel decided to argue that Tracy Hellebrand, and not John Maloney, had murdered Sandra Maloney. Maloney's trial counsel decided against arguing that Sandra had died an accidental death. Because we concluded that Maloney failed to prove his trial counsel's decisions were deficient, we conclude that, without more, he is not entitled to relief. This court's power of discretionary reversal does not allow a defendant to obtain a new trial in an attempt to present a different defense theory years after the one presented by competent counsel failed to persuade the jury. See Buel v. La Crosse Transit Co., 77 Wis. 2d 480, 496, 253 N.W.2d 232 (1977) ("When there are alternative causes of action and one makes a choice, there is little room for arguing the real issue has not been tried"). See also State v. Hubanks, 173 Wis. 2d 1, 29, 469 N.W.2d 96 (Ct. App. 1992).

¶ 38. Finally, in his briefing and oral argument in this case, Maloney does not allege sufficient material facts that support his conclusion that Paulus believed Dr. Schmunk was not "on board," and fails to assert how Dr. Schmunk would change his conclusions regarding his professional opinion as to what caused Sandra Maloney's death. As this court said in Bentley and Nelson, conclusory allegations do not entitle a defendant to relief in the interest of justice. Bentley, 201 Wis. 2d at 309, 313; Nelson, 54 Wis. 2d at 496-98.

¶ 39. We recognize that during Maloney's initial trial, the jury did not have the opportunity to review evidence of Paulus's misconduct because it did not yet exist; Paulus was charged and convicted subsequent to Maloney's trial. Maloney asserts that the interest of justice mandates a retrial so that the jury has the opportunity to hear and evaluate information regarding Paulus's misconduct in this case. Yet, because Maloney fails to present facts that Paulus's conduct in this case was unlawful, or that there exists any connection between Paulus's misconduct in the 22 particular cases to which Paulus admitted accepting bribes and Paulus's actions in prosecuting Maloney's homicide case, no basis exists that would support a remand in this matter.

¶ 40. This case is distinguishable from Hicks' and Armstrong. In those cases, this court reversed the defendants' convictions because newly discovered DNA evidence discredited physical evidence that the State had relied on in its prosecution. Hicks, 202 Wis. 2d at 159; Armstrong, 283 Wis. 2d 639, ¶¶ 2, 139, 146, 155-56. As in Hicks and Armstrong, new information has come to light in this case: the prosecutor in Maloney's case unlawfully accepted bribes in 22 other cases in which Paulus served as the prosecutor. However, unlike Hicks and Armstrong, where the newly discovered evidence compromised evidence on which the prosecution relied, Maloney has alleged no facts that would substantiate allegations that evidence on which the prosecution relied was compromised. Mal-oney has not presented this court with any objective factual assertions that, if true, would lead to the conclusion that Paulus unlawfully altered the tapes or manipulated any evidence to Maloney's detriment. We cannot conclude that Paulus's misconduct in other cases, without more, demonstrates Paulus's misconduct in this case. Consequently, we conclude that Maloney has not asserted facts to justify a remand for a motion for an evidentiary hearing.

¶ 41. We recognize that this case raises concerns regarding the integrity of Wisconsin's system of administration of criminal justice. Maloney raises serious allegations in contending that a prosecutor may have acted unlawfully in his prosecution of a homicide case. Indeed, concerns that Paulus may have mishandled the Maloney investigation led the Wisconsin Department of Justice to open an independent investigation into the death of Sandra Maloney. Though Maloney has failed to allege sufficient material facts to support allegations that Paulus acted unlawfully in his prosecution of Maloney, if any current or future investigations uncover evidence that Paulus's actions in prosecuting Maloney constituted misconduct, Maloney may file his motion to the trial court raising such misconduct at that time.

IV

¶ 42. We conclude that this court has the authority to use its power of discretionary reversal to remand to the circuit court a motion for postconviction relief in the interest of justice, even though the issue was first raised by this court, sua sponte. We further conclude, however, that Maloney failed to allege sufficient material facts, and no such facts currently exist within the record, to warrant a remand for an evidentiary hearing in the interest of justice. We therefore conclude that Maloney is not entitled to relief on the basis of this record.

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

        State v. Maloney, 2004 WI App 141, 275 Wis. 2d 557, 685 N.W.2d 620 (affirming an order of the circuit court for Brown County, Peter J. Naze, Judge).

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       According to the written Factual Basis For Plea, Paulus accepted bribes totaling more than $48,000 over the course of two years, from June 1998 to June 2000, in connection with 22 cases that he prosecuted as district attorney. See United States v. Paulus, 331 F. Supp. 2d 727, 729 (E.D. Wis. 2004).

       This court has concluded that the two prongs are distinctive. Vollmer v. Luety, 156 Wis. 2d 1, 16, 456 N.W.2d 797 (1990). "[A] new trial may be ordered on either of two grounds: (1) whenever the real controversy has not been fully tried or (2) whenever it is probable that justice has for any reason been miscarried." Id. (citation omitted).
      Under the first prong of the "interest of justice" analysis, the real controversy has not been tried if the jury was not given the opportunity to hear and examine evidence that bears on a significant issue in the case, even if this occurred because the evidence or testimony did not exist at the time of trial. State v. Hicks, 202 Wis. 2d 150, 160-61, 549 N.W.2d 435 (1996) (citations omitted).

        In order to grant a discretionary reversal because "it is probable that justice has for any reason miscarried," the second prong, there must be a substantial probability of a different result on retrial. State v. Schumacher, 144 Wis. 2d 388, 401, 424 N.W.2d 672 (1988) (citing State v. Wyss, 124 Wis. 2d 681, 741, 370 N.W.2d 745 (1985)). See also State v. D'Acquisto, 124 Wis. 2d 758, 765, 370 N.W.2d 781 (1985) (quoting Lock v. State, 31 Wis. 2d 110, 118, 142 N.W.2d 183 (1966)). As such, the defendant must meet a higher threshold in order for this court to grant a new trial under the second prong.

       The statute reads, in full:
      In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
      Wis. Stat. § 751.06.

       The parties dispute the extent of Special Prosecutor Paulus's involvement in the editing of these tapes.

       The affidavits were not raised before the circuit court as part of Maloney's postconviction motion.

       The evaluations were provided by Michael Syverson, Owner, Kolb Syverson Communications, Appleton, Wisconsin (July 8, 2005) and Loraine Henes, Henes & Henes Court Reporting Service, Appleton, Wisconsin (July 6, 2005). These were also not raised in the circuit court.

       In State v. Maloney, 2005 WI 74, ¶ 5 n.3, 281 Wis. 2d 595, 398 N.W.2d 583 ("Maloney I"), we stated:
      Initial reports from the Green Bay Fire Department and the Brown County Arson Task Force actually labeled the fire an accident. Dr. Gregory Schmunk, the medical examiner in the case, has since indicated that this evidence was withheld from him, which may have affected his ruling.

       We note that Maloney does not allege that any Wisconsin statute would preclude a medical examiner from postponing the issuance of a death certificate.

       We note that, at trial, the defense recognized that Mal-oney had attempted to hire Hughes, but that the prosecution had already retained him as their expert.

       During the State's direct examination of Hughes, Special Prosecutor Biskupic questioned Hughes about the February 12, 1998, report. Hughes explained to the jury that, in his professional opinion, the preliminary conclusion that the fire was an accident was fully inconsistent with the evidence. Hughes based his opinion on the fact that the evidence demonstrated that there may have been more than one point of origin of the fire, that there had been "trailers" between the sources of the fire and the couch, and that someone had placed other smoking materials around the house to make it look like a careless use of smoking materials fire.

       On direct and cross-examination of Hughes, Maloney's defense attorney raised concerns with the conclusions drawn by Hughes and attempted to demonstrate that an amateur, Hellen-brand, had set the fire, as opposed to Maloney, who had significant experience working with fires as an arson investigator.

       "This court has long held that the facts supporting plea withdrawal must be alleged in the petition and the defendant cannot rely on conclusory allegations, hoping to supplement them at a hearing." State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996).

       In Nelson, this court stated that
      if a motion to withdraw a guilty plea after judgment and sentence alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing. However, if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing.

        Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972) (emphasis added).

       In State v. Hicks, this court ordered a new trial because the jury had not been made aware of DNA evidence which arguably excluded the defendant as the assailant in a sexual assault case where the identity of the assailant was a central issue. Hicks, 202 Wis. 2d at 163-72. Hicks was convicted of burglary, robbery, and two counts of sexual assault. Id. at 152. Postconviction DNA testing of hairs found at the scene and on defendant Hicks revealed inconclusive results with regard to the source of some of the hairs, and conclusively excluded Hicks as the source of one of the pubic hairs. Id. at 156. Hicks appealed, asserting ineffective assistance of counsel. Id. at 157. The trial court denied Hicks' appeal, concluding that it was not reasonably probable that testimony regarding the new DNA evidence would result in a different verdict. Id. The court of appeals reversed, finding ineffective assistance of counsel. Id. at 152. This court affirmed on other grounds, using its discretionary reversal powers because it concluded that the real controversy had not been fully tried. Id. at 152-53.

       The defendant in Armstrong sought review of a court of appeals decision that affirmed the circuit court's orders denying Armstrong's motions to vacate his judgment of conviction and for reconsideration. State v. Armstrong, 2005 WI 119, ¶ 1, 283 Wis. 2d 639, 700 N.W.2d 98. We reversed the court of appeals, concluding that because the jury had not been given DNA evidence found at the scene of the murder that excluded Armstrong, and because the State had relied upon physical evidence as affirmative proof of Armstrong's guilt, the real controversy had not been tried. Id., ¶ 2. We vacated the judgment of conviction and ordered a new trial in the interests of justice. Id.

       The Wisconsin Department of Justice has conducted an independent investigation into the possibility of other criminal conduct committed by Paulus while he was the Winnebago County District Attorney. Maloney's case was one of the cases under review. Maloney I, 281 Wis. 2d 595, ¶ 10 n.6; Paulus, 331 F. Supp. 2d at 736. It appears from comments at oral argument that there may be one or more additional investigations pending.


source: Caselaw Access Project

license: Public Domain

text:
    Village of Cross Plains, Plaintiff-Appellant, v. Kristin J. Haanstad, Defendant-Respondent-Petitioner.
    Supreme Court

      No. 2004AP2232.

      Oral argument January 11, 2006.

      —Decided February 14, 2006.

    2006 WI 16
    (Also reported in 709 N.W.2d 447.)

      For the defendant-respondent-petitioner, there were briefs by John M. Gerlach and Larowe, Gerlach & Roy, LLP, Madison, and oral argument by John M. Gerlach.

    For the plaintiff-appellant, there was a brief by Kenneth B. Axe, Paul A. Johnson, Frank C. Sutherland, and Lathrop & Clark, LLP, Village of Cross Plains, and oral argument by Kenneth B. Axe.

   LOUIS B. BUTLER, JR., J.

¶ 1. Kristin J. Haan-stad seeks review of a decision by the court of appeals reversing the decision of the Dane County Circuit Court, the Honorable Diane M. Nicks, that concluded that Haanstad was not operating a motor vehicle while either under the influence of an intoxicant under Wis. Stat. § 346.63(l)(a) or with a prohibited alcohol concentration under Wis. Stat. § 346.63(1)(b)(2003-04). The circuit court, following a court trial, concluded that sitting in the driver's seat of a running, parked motor vehicle, without more, was not operating a motor vehicle under § 346.63, and found Haanstad not guilty. The court of appeals reversed, concluding that Haan-stad was operating a motor vehicle pursuant to § 346.63 when she was found sitting behind the wheel of a running vehicle. Village of Cross Plains v. Haanstad, No. 2004AP2232, unpublished slip op. (Wis. Ct. App. May 12, 2005).

¶ 2. Haanstad asks this court to reverse the court of appeals decision because no evidence was presented that she physically activated or manipulated the controls of the car, as required by Wis. Stat. § 346.63(3)(b). We agree and conclude that Haanstad was not operating a motor vehicle as defined under that section. We therefore reverse the court of appeals.

r — H

¶ 3. The following facts are undisputed. On May 25, 2003, Kristin Haanstad met Timothy Satterthwaite at a bar around 7 p.m. While at the bar, Haanstad consumed alcoholic beverages. Sometime between 11:30 p.m. and 12:00 a.m., Haanstad gave Satterth-waite the keys to her Cavalier and Satterthwaite drove her and Justin Cushman to Baer Park in the Village of Cross Plains where Satterthwaite had left his Blazer. Haanstad sat in the passenger seat and Cushman sat in the back seat.

¶ 4. Satterthwaite parked the Cavalier on the left side of the Blazer. Leaving the vehicle running and the headlights on, Satterthwaite left the Cavalier and helped Cushman into his Blazer. While Satterthwaite was between the two vehicles, Haanstad slid over from the passenger's seat into the driver's seat, with her body and her feet facing the passenger seat, allowing Satter-thwaite to enter her car at the front passenger door so they could discuss their relationship. Satterthwaite entered the car through the passenger-side door and sat in the passenger seat with Haanstad's feet and body pointing towards him.

¶ 5. At approximately 12:30 a.m. on May 26, 2003, Village of Cross Plains Police Officer Gregory Kosharek, while on duty, approached the two vehicles parked in the parking lot of Baer Park. Officer Kosharek approached the Cavalier on the driver's side, and observed Haanstad sitting in the driver's seat of the Cavalier. Satterthwaite was observed sitting in the passenger's seat. Satterthwaite and Haanstad had been talking for less than ten minutes before Officer Kosharek approached the Cavalier.

¶ 6. Satterthwaite exited the vehicle and met Officer Kosharek at the rear end of the Cavalier. When Kosharek returned to the driver's side to speak with Haanstad, he observed that her eyes were bloodshot and watery, her face was flushed, and a distinct odor of intoxicants emanated when she spoke. Haanstad admitted she had been drinking at a bar and that her last drink was about 30 minutes earlier.

¶ 7. Kosharek returned to the rear of the Cavalier to speak further with Satterthwaite, who stated that he and Haanstad had been discussing their relationship in the car. Satterthwaite then told Kosharek that a male passenger, Cushman, was in the Blazer parked next to the Cavalier.

¶ 8. Officer Kosharek walked over to the Blazer to speak with Cushman. Cushman told Kosharek that Satterthwaite was going to drive him home after speaking with Haanstad. Kosharek then returned to Haan-stad and asked her to perform field sobriety tests. Although Haanstad informed Officer Kosharek that she had not been driving the vehicle, Kosharek placed Haanstad under arrest for operating while under the influence of an intoxicant and operating with a prohibited alcohol concentration.

II

¶ 9. Whether Haanstad was operating a motor vehicle while under the influence of an intoxicant under Wis. Stat. § 346.63(l)(a), or with a prohibited alcohol concentration under Wis. Stat. § 346.63(l)(b), involves an application of these statutes to undisputed facts. Statutory interpretation is a question of law reviewed de novo. State v. Stenklyft, 2005 WI 71, ¶ 7, 281 Wis. 2d 484, 697 N.W.2d 769. The purpose of statutory interpretation is to give the statute its "full, proper, and intended effect." State ex. rel Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. We begin with the statute's language because it is assumed that the legislature's intent is expressed in the words it used. Id., ¶ 45. When statutory language includes technical or specially-defined words or phrases [they] are given their technical or special definitional meaning." Id. (citation omitted). If the meaning of the statute is plain, the court ordinarily stops its inquiry. Id. (citation omitted). "The presence of different 'plain meaning' interpretations by lawyers or judges does not authorize the court to skip this process, assume ambiguity, and begin searching for extrinsic sources of legislative intent." Bruno v. Milwaukee County, 2003 WI 28, ¶ 21, 260 Wis. 2d 633, 660 N.W.2d 656. Instead, the court examines the language of the statute or ordinance "to determine whether 'well-informed persons' should have become confused." Id. (emphasis in original, citation and quotations omitted).

1 — 1 1 — 1 I — 1

¶ 10. Haanstad was charged with operating a motor vehicle while under the influence of an intoxicant under Wis. Stat. § 346.63(l)(a) and with a prohibited blood alcohol concentration under Wis. Stat. § 346.63(l)(b). At trial, Haanstad testified that she did nothing more than sit in the driver's seat with her feet and body facing the passenger seat, never touching or manipulating the gas pedal, steering wheel, or the keys which were in the ignition, or any of the other controls of the car. The Village of Cross Plains ("Village") presented no testimony to the contrary. That evidence was uncon-troverted.

¶ 11. Nonetheless, the Village asserted that the mere fact that Haanstad positioned her body in the driver's seat behind the wheel meant that she was restraining the vehicle which, the Village contends, falls within the definition of "operate" under County of Milwaukee v. Proegler, 95 Wis. 2d 614, 291 N.W.2d 608 (Ct. App. 1980).

¶ 12. The circuit court disagreed with the Village. The court reasoned that "operate" as defined requires some affirmative act of control on the part of the defendant. The court concluded that the words "the physical manipulation or activation of the controls" could not be read out of Wis. Stat. § 346.63(3)(b). The court therefore found Haanstad not guilty of the violations.

¶ 13. The court of appeals reversed. The court concluded that although Haanstad "did not physically manipulate or activate any of the controls necessary to put the vehicle in motion," she was operating the motor vehicle within the meaning of the statute as interpreted by Proegler. Haanstad, No. 2004AP2232, unpublished slip op., ¶ 20.

A

¶ 14. We begin by examining the plain meaning of the statute. Haanstad was charged with operating a motor vehicle while intoxicated and operating with a prohibited alcohol concentration. The statutes state, in relevant part:

(1) No person may drive or operate a motor vehicle while:
(a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or
(b) The person has a prohibited alcohol concentration.

Wis. Stat. § 346.63(l)(a) & (b).

¶ 15. The term "operate" is defined in § 346.63(3) (b), which reads: " 'Operate'" means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion."

¶ 16. The court of appeals' conclusion directly contradicts the plain meaning of the statute. According to the explicit words of the statute, in order to "operate" a motor vehicle, the statute requires that the person physically manipulate or activate any of the controls of the motor vehicle necessary to put it in motion. The Village does not dispute, and the court of appeals concluded, that Haanstad never physically manipulated or activated any of the vehicle's controls. She did not turn on or turn off the ignition of the car. She did not touch the ignition key, the gas pedal, the brake, or any other controls of the vehicle. Haanstad simply sat in the driver's seat with her feet and body pointed towards the passenger seat. Haanstad did not "operate" a motor vehicle under the statute's plain meaning.

B

¶ 17. In addition to drawing a conclusion that directly contradicts the plain meaning of the statute, the court of appeals' reliance on Proegler is misplaced. In Proegler, officers found the defendant sleeping alone behind the wheel of his pickup truck, which was parked partially on the right emergency ramp of 1-43. Proegler, 95 Wis. 2d at 618. "The keys were in the ignition; the motor was running; the lights and heater were on." Id. The transmission gear was in the "park" position. Id. "The defendant testified that he had driven to the spot where the officers found his truck, stopped there without completely pulling off the highway, left the motor running and the lights on, and then fell asleep." Id. at 628.

¶ 18. The Village relies on language in Proegler that the prohibition against "activation" "applies either to turning on the ignition or leaving the motor running while the vehicle is in 'park.'" Id. at 626. That language is taken out of context, however, and must be viewed in light of the sentences that immediately follow:

The prohibition against the "activation of any of the controls of a motor vehicle necessary to put it in motion" applies either to turning on the ignition or leaving the motor running while the vehicle is in "park." One who enters a vehicle while intoxicated, and does nothing more than start the engine is as much of a threat to himself and the public as one who actually drives while intoxicated. The hazard always exists that the car may be caused to move accidentally, or that the one who starts the car may decide to drive it. . ..

Id.

¶ 19. In other words, the Proegler court dealt with facts where there was no question that the defendant had started the engine, thereby "activating" the controls necessary to put the vehicle in motion. The real issue in Proegler was whether the statute should be interpreted to penalize one who, having already started the engine, has the "brains to get off the road." Id. at 626-27.

¶ 20. The court of appeals in Proegler also relied on the fact that there existed circumstantial evidence sufficient to substantiate that the defendant "operated" his truck within the meaning of the statute: the defendant was alone in his vehicle and he admitted to driving the vehicle to its parking spot and leaving it running. Id. Relying on cases from other jurisdictions, the court of appeals stated that, although at the time of apprehension the defendant exercised "no conscious volition with regard to the vehicle, still there is a legitimate inference to be drawn that the defendant had of his choice placed himself behind the wheel thereof, and had either started the motor or permitted it to run." Id. at 627 (quoting State v. Webb, 274 P.2d 338, 340 (Ariz. 1954) (which involved a statute that prohibited the actual physical control of a car while under the influence of intoxicating liquor)). The court of appeals upheld the trial court's determination that the defendant had "operated" the vehicle within the meaning of the statute, finding that the defendant had "actual physical control" of the vehicle, even though the vehicle remained motionless. Id. at 628. The court ultimately concluded that " '[ojperation' of a vehicle occurs either when a defendant starts the motor and/or leaves it running." Id. at 628-29.

¶ 21. In contrast, the evidence here is undisputed that Haanstad did not drive the car to the point where the officer found her behind the wheel. Further, there is no evidence that the defendant "activated" or "manipulated" any control in the vehicle that is necessary to put the vehicle in motion. The Village offered no circumstantial evidence to prove that Haanstad had operated the vehicle. The Village does not contest that Satterthwaite was the individual who "operated" the vehicle by driving it, placing it in park, and leaving the motor running. The Village does not claim that Haanstad drove or even touched the controls of the vehicle at any time while she was intoxicated. There is no dispute: Haanstad never touched the controls of the vehicle. As the circuit court judge so aptly stated, "if she is guilty, she is guilty of sitting while intoxicated."

¶ 22. In Burg v. Cincinnati Cas. Ins. Co., 2002 WI 76, 254 Wis. 2d 36, 645 N.W.2d 880, this court examined the meaning of the term "operate" in Wis. Stat. § 350.09(9r) for purposes of the head and tail lamp illumination requirement of § 350.09(1). Section 350.01(9r), like Wis. Stat. § 346.63(3)(b), defines "operate" in part as "physical manipulation or activation of any of the controls of a snowmobile necessary to put it in motion." § 350.01(9r) (emphasis added). Compare Wis. Stat. § 346.63 (3)(b). This court concluded that at the time of the accident, the defendant in Burg was not "operating" his snowmobile. Burg, 254 Wis. 2d 36, ¶¶ 22, 29. The court reasoned that operating under § 350.09 does not include the act of sitting on a parked snowmobile with the engine off. Id. While physical manipulation or activation of the controls necessary to put a snowmobile in motion does not necessarily require the snowmobile to actually be in motion, it does plainly require some affirmative physical act of manipulation or activation of the controls necessary to put it in motion. Id., ¶ 22. "Sitting on a parked snowmobile with its engine off is not, without more, the 'manipulation or activation' [] necessary to put it in motion." Id.

¶ 23. In the present case, Haanstad was merely sitting in the driver's seat of a parked vehicle. Although the engine was running, the uncontested evidence shows that Haanstad was not the person who left the engine running. She never physically manipulated or activated the controls necessary to put the vehicle in motion. In addition, the present case is distinguishable from Proegler, as there is no circumstantial evidence that Haanstad "recently" operated the vehicle. In contrast, there is uncontested evidence demonstrating that Haanstad never touched the driving controls while sitting in the driver's seat, and that Satterthwaite was the individual who recently operated the vehicle.

¶ 24. We therefore conclude that because there exists no evidence, direct or circumstantial, that Haan-stad touched any controls of the vehicle necessary to put it in motion while she was intoxicated, neither Proegler nor Burg supports a conclusion that Haanstad was "operating" the motor vehicle as defined in Wis. Stat. § 346.63(3)(b).

IV

¶ 25. We conclude that Haanstad did not "operate" the motor vehicle as defined in Wis. Stat. § 346.63(3)(b). We also find that this conclusion is consistent with prior Wisconsin cases. We therefore reverse the court of appeals and reinstate the circuit court's finding of not guilty.

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

¶ 26. JON E WILCOX, J., took no part.

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

       Haanstad was not charged with driving, so that Wis. Stat. § 346.63(3) (a) is not implicated in this case.

       The relevant statutory language remains unchanged from the 1980 version of Wis. Stat. § 346.63(3).

       "Operate" is also defined in Wis. Stat. § 350.01(9r) as the exercise of physical control over the speed or direction of a snowmobile. That portion of the definition is not contained in the OWI and refusal statutes, which define drive or operate separately, and is therefore not pertinent to this case. See Burg v. Cincinnati Cas. Ins. Co., 2002 WI 76, ¶ 20 n.6, 254 Wis. 2d 36, 645 N.W.2d 880.

        See also State v. Modory, 204 Wis. 2d 538, 544, 555 N.W.2d 399 (Ct. App. 1996) (where the court of appeals interpreting Wis. Stat. § 346.63(3) held that the immobility of the vehicle was immaterial, because the physical manipulation or activation of the controls for purposes of the definition of "operate" did not necessarily require that the vehicle be moving).


author: PER CURIAM. SHIRLEY S. ABRAHAMSON, C.J. DAVID T. PROSSER, J.

text:
    In the Matter of Disciplinary Proceedings Against Richard J. Krueger, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. Richard J. Krueger, Respondent-Appellant.
    Supreme Court

      No. 2003AP2558-D.

      Submitted on briefs October 12, 2005.

      —Decided February 22, 2006.

    2006 WI 17
    (Also reported in 709 N.W.2d 857.)

      For the respondent-appellant there were briefs by Robert N. Duimstra and Menn, Teetaert & Beisenstein, Ltd., Appleton.
    For the complainant-respondent there was a brief by Richard P. Mozinski, Donald J. Chewning and Ra-dosevich, Mozinski, Cashman & Olson, LLP, Manito-woc.
   PER CURIAM.

¶ 1. Attorney Richard J. Krue-ger has appealed from a referee's report concluding that he engaged in professional misconduct and recommending that his license to practice law in Wisconsin be suspended for a period of 60 days.

¶ 2. We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We further determine that the seriousness of Attorney Krueger's misconduct warrants the suspension of his license to practice law for a period of 60 days. We also agree with the referee that the costs of the proceeding, which are $20,489.37, should be assessed against Attorney Krueger.

¶ 3. Attorney Krueger was admitted to practice law in Wisconsin in 1956 and now practices part-time in Oconto. He has not previously been the subject of a disciplinary action.

¶ 4. In September 2003 the Office of Lawyer Regulation (OLR) filed a complaint alleging that Attorney Krueger engaged in misconduct with respect to his representation of F.S. Attorney Krueger had represented F.S. in various legal matters beginning in 1960. In 1999, when the pertinent conduct occurred, F.S. was 82 years old.

¶ 5. In June 1999 F.S. experienced financial problems and asked Attorney Krueger to file a Chapter 7 bankruptcy petition on his behalf. Attorney Krueger filed a Chapter 7 petition for F.S. on June 14, 1999. As of that date Attorney Krueger's records indicated that F.S. owed him $7384.15.

¶ 6. The bankruptcy schedules prepared for F.S. by Attorney Krueger showed that F.S. had $70,961 in assets and $372,390 in debts, of which $220,232 constituted secured claims. F.S.'s debt to Attorney Krueger for attorney's fees in the amount of $7384.15 was not disclosed anywhere in the bankruptcy petition or the related schedules of creditors. The schedules to the bankruptcy petition did indicate that Attorney Krueger received $1000 for the bankruptcy work and debt counseling and that he would receive an additional $800 for bankruptcy representation prior to filing the required disclosure of attorney compensation which is a requirement under bankruptcy law. Prior to filing F.S.'s bankruptcy petition, Attorney Krueger estimated he had handled about 100 other Chapter 7 bankruptcy petitions.

¶ 7. Prior to filing F.S.'s bankruptcy petition, Attorney Krueger and F.S. discussed the $7384 debt owed to Attorney Krueger. Attorney Krueger said he told F.S., "[m]aybe it's better you get yourself another lawyer to do this because of this apparent possibility of a conflict." Attorney Krueger said F.S. insisted that Attorney Krue-ger continue to represent him. Attorney Krueger admits that F.S. did not sign a written consent waiving the conflict.

¶ 8. After the bankruptcy petition was filed, F.S. and Attorney Krueger attended a first meeting of creditors. At the hearing, the bankruptcy trustee, in Attorney Krueger's presence, asked F.S. if he had listed all of his debts on the bankruptcy schedules. F.S. said he had. Attorney Krueger did not say anything to the bankruptcy trustee with respect to the money F.S. owed him. F.S. received a discharge from the bankruptcy court in October 1999. At the time of the discharge, three adversary proceedings had been filed by secured creditors, and Attorney Krueger represented F.S. in those proceedings. As of February 16, 2000, F.S. owed Attorney Krueger about $12,000, of which $7384.15 was for the pre-bankruptcy legal work and the rest was for post-bankruptcy work relating to the three adversary proceedings.

¶ 9. On February 16, 2000, Attorney Krueger received $40,000 from F.S. At that time, Attorney Krueger was negotiating with counsel for two secured creditors of F.S. and offered to settle those cases for 60 percent of the amount owed to each creditor. Attorney Krueger told counsel for those creditors that there was no additional money available for settlement. Attorney Krueger deposited $28,000 of the $40,000 into his client trust account and applied the remaining $12,000 to his own fees, which included the pre-bankruptcy charges of $7384.15.

¶ 10. In the process of settling the claims with the secured creditors, Attorney Krueger paid the creditors from his trust account. In making the disbursements, Attorney Krueger made a math error, leading him to believe the trust account was $500 short. He deposited $500 of his own money into the trust account and added $500 to the F.S. ledger. Attorney Krueger later discovered the math error, withdrew the $500 from his trust account, but continued to bill F.S. for the $500. In December 2000 Attorney Krueger's records showed that F.S. owed Attorney Krueger $6856, which included the $500 math error.

¶ 11. In April 2001 F.S.'s daughter, M.F., contacted Attorney Krueger to discuss the homestead exemption F.S. had claimed in his bankruptcy petition. M.F. informed Attorney Krueger that she was now acting for her father under a power of attorney. During a phone conversation with M.F., Attorney Krueger told her that F.S. owed Attorney Krueger over $6000 and he demanded payment. M.F. requested her father's files. Attorney Krueger refused to turn over the files unless he was paid. M.F. filed a grievance against Attorney Krueger with the OLR in May 2001.

¶ 12. In July 2001 after Attorney Krueger had been informed that M.F. had filed a grievance, Attorney Krueger filed a small claims action against F.S. for $5000. A default judgment was entered in November 2001. Attorney Krueger filed a transcript of the judgment in Marinette County in an attempt to place a judgment lien on real estate F.S. had claimed as exempt as his homestead in the bankruptcy proceeding. In September 2002 Attorney Krueger filed an action to require a sheriffs sale to collect on the judgment lien. M.F. and F.S.'s son, J.S., both of whom claimed an interest in the Marinette County property, were named as defendants in the action.

¶ 13. In October 2002 Attorney Lawrence Vesely, while representing M.F. and J.S., entered into a settlement agreement with Attorney Krueger which stopped the pending sheriffs sale. There was a discussion about the defendant's paying Attorney Krueger $2500 in return for which M.F. would withdraw her grievance. M.F. subsequently informed the OLR that she wanted to withdraw the grievance she had filed against Attorney Krueger. The OLR refused to do so and told Attorney Krueger it would continue with its investigation.

¶ 14. As part of the OLR's investigation, Attorney Krueger was requested to tell the OLR what amount of money was owed to him by F.S. before the bankruptcy action was filed. On August 13, 2001, Attorney Krueger wrote to the OLR and advised him that the amount was less than $500. When OLR staff asked about the apparent discrepancy between this statement and the figures shown on Attorney Krueger's ledger for F.S., Attorney Krueger acknowledged that at the time the bankruptcy petition was filed F.S. actually owed him over $7300.

¶ 15. The OLR's complaint alleged the following counts of misconduct:

(1) By representing a client in a Chapter 7 bankruptcy action while the client was indebted to the attorney for over $7,000 in unpaid legal fees, and thereafter negotiating for the client regarding the compromise of non-discharged debts at the same time as funds acquired by the client after the bankruptcy were used to pay respondent's own fees in full, without obtaining written consent from his client to the potential conflict of interest, respondent violated SCR 20:1.7(b).
(2) By preparing bankruptcy schedules for a client that intentionally omitted respondent's own attorney fee debt, by failing to disclose to the bankruptcy trustee the client's payment of respondent's own fees in preference to the client's debts to other creditors, and by collecting on the debt after it would have been discharged in bankruptcy, respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, contrary to SCR 20:8.4(c).
(3) By making misrepresentations to OLR staff about the amount of a client's indebtedness to respondent at the time of the client's bankruptcy action, and by misrepresenting to OLR that the debt had never been satisfied, respondent violated SCR 22.03(6).

¶ 16. Konrad Tuchscherer was appointed referee in the matter. A two-day hearing was held in July 2004. The parties submitted a stipulation as to certain findings of fact in which Attorney Krueger admitted the vast majority of the allegations in the OLR's complaint. The referee issued a report on September 30, 2004, finding that the OLR had met its burden of proof with respect to the three counts of misconduct alleged in the complaint.

¶ 17. The referee found that Attorney Krueger's representation of F.S. in the Chapter 7 bankruptcy action at a time when F.S. owed Attorney Krueger in excess of $7000 in unpaid legal fees constituted a conflict of interest in that F.S.'s representation by Attorney Krueger was materially limited by Attorney Krueger's responsibilities to other creditors as well as by Attorney Krueger's own interest in being paid a discharged debt. The referee also found that Attorney Krueger failed to obtain F.S.'s consent to the conflict in writing as required by SCR 20:1.7(b).

¶ 18. The referee also concluded that failing to disclose the pre-bankruptcy debt F.S. owed to Attorney Krueger in the bankruptcy petition, failing to advise the bankruptcy trustee that F.S.'s testimony was not accurate in that the pre-bankruptcy debt owed by F.S. to Attorney Krueger was not included, and depositing $12,000 of the $40,000 received from F.S. in Attorney Krueger's account constituted dishonesty, fraud, deceit and misrepresentation in violation of SCR 20:8.4(c).

¶ 19. The referee noted that 11 U.S.C. § 521(1) and Federal Bankruptcy Rule 1007 impose a duty on a debtor for full disclosure of all creditors, and bankruptcy law requires the debtor to sign the bankruptcy petition under penalty of perjury. The referee also noted that the attorney preparing the bankruptcy petition is required to sign the petition, although without such sanction. The referee concluded that by signing F.S.'s bankruptcy petition Attorney Krueger verified to the bankruptcy court that the allegations or other factual contentions in the petition had evidentiary support. The referee also concluded that by applying over $7000 of the $40,000 check received from F.S. in payment of pre-bankruptcy attorney's fees, Attorney Krueger collected a discharged debt in violation of 11 U.S.C. § 524(a)(2). The referee also concluded that Attorney Krueger's collection of pre-bankruptcy debt was not part of a voluntary repayment by F.S. of a discharged debt since the debt collection was part of an arrangement Attorney Krueger had with F.S. before filing the bankruptcy petition. Finally, the referee concluded that Attorney Krueger's letter to the OLR saying F.S. had owed him less than $500 at the time the bankruptcy was filed was a misrepresentation in violation of SCR 22.03(6).

¶ 20. In discussing the appropriate discipline to be imposed for the three counts of misconduct, the referee noted that the OLR's complaint was heavily contested at trial by Attorney Krueger and central to the case was Attorney Krueger's state of mind and whether he perceived his pre-bankruptcy claim against F.S. as a conflict of interest; whether he intentionally omitted the debt on the bankruptcy schedules; whether he attempted to collect a discharged debt post-bankruptcy; and whether he intended to mislead the OLR into believing there was very little pre-bankruptcy debt and that it was never paid.

¶ 21. The referee noted that F.S. was "[conspicuously absent from the cast of witnesses at the hearing." The referee noted there was testimony that F.S. had been found incompetent for purposes of a criminal proceeding that had been brought against him. The referee said F.S.'s testimony, if competent, would have been helpful in determining whether the payment of the pre-bankruptcy debt was voluntary. Even though F.S. was not present at the hearing, the referee noted that Attorney Krueger admitted he had an outstanding arrangement with F.S. which provided that when F.S. came into possession of funds after the bankruptcy discharge, those funds would be paid to Attorney Krue-ger to cover the pre-bankruptcy debt. The referee further noted that after being paid for the pre-bankruptcy debt, Attorney Krueger pursued a small claims action against F.S. for additional post-bankruptcy services, which illustrated his propensity to enforce all debts, discharged or otherwise.

¶ 22. The referee noted that this court has held that under SCR 20:1.7(b):

[I]t is mandatory to proceed with consultation and a written conflict waiver even when the lawyer believes the representation may be adversely affected. It is not the state of mind of the Respondent that should be examined, it is the likelihood of adverse affects, there being no particular degree of likelihood necessary. See, In Re: Disciplinary Proceedings Against Michael Trewin, 2004 WI 116, [275 Wis. 2d 116,] 684 N.W.2d 121 (2004).

¶ 23. The referee noted that the OLR had recommended a six-month suspension of Attorney Krueger's license, and that Attorney Krueger sought dismissal of the complaint, claiming no violations of supreme court rules occurred. The referee also noted that at the time of the hearing Attorney Krueger was 72 years old and occupied emeritus status with the state bar and that his practice had been winding down for a number of years and was non-existent in the winter when he and his wife reside in Arizona. In addition, the referee noted that in his 48 years of practice, Attorney Krueger had a clean record with the OLR and its predecessor, the Board of Attorneys Professional Responsibility (BAPR) and he had served for many years on a district committee of the BAPR. The referee also noted that Attorney Krueger had been involved in the community and his church and a local circuit court judge, who was subpoenaed to testify at the hearing, spoke highly of his past practices.

¶ 24. The referee concluded that a six-month suspension of Attorney Krueger's license would work an undue hardship and instead recommended that Attorney Krueger's license be suspended for 60 days and that he pay the costs of the proceeding.

¶ 25. Attorney Krueger appealed, arguing that the OLR failed to demonstrate by clear, satisfactory and convincing evidence that any misconduct occurred. Attorney Krueger argues that the OLR failed to call its most critical witness, F.S., and he asserts that his conduct in representing F.S. cannot be judged fairly without testimony directly from F.S. In addition, Attorney Krue-ger argues there was no conflict of interest with respect to his representation of F.S. in the bankruptcy case. He asserts that a bankruptcy is not true litigation and he further contends that his duty of loyalty to F.S., built over 40 years, was not affected simply because F.S. owed him money. He also asserts that because he allowed a discharge of his bill without participating as an unsecured creditor in the bankruptcy proceeding, there was less debt to be paid and more assets available to settle other creditors' claims and if anyone should have been prejudiced by the representation, it was Attorney Krue-ger, because his fees were discharged and he had no further right to a recovery.

¶ 26. Attorney Krueger says that unlike the situation in Trewin, he did discuss the unpaid fees with F.S. before F.S. insisted that Attorney Krueger continue to represent him. He also asserts that, unlike the Trewin case, Attorney Krueger's representation of F.S. was not materially limited by his own adverse interest, but rather benefited his client and involved no possible prejudice to his client's interests.

¶ 27. Attorney Krueger argues that failing to list the debt for his attorney's fees on the bankruptcy schedules was not an act of fraud, deceit, dishonesty or misrepresentation, and he contends it was F.S.'s decision not to list the debt on the bankruptcy schedules. He also argues that the OLR failed to prove that F.S.'s payment after the bankruptcy was anything but voluntary. Finally, Attorney Krueger asserts that he made no misrepresentation to the OLR. Although he admits that the information he provided to the OLR regarding the amount of fees owed by F.S. at the time of the bankruptcy filing "was not totally free from error," he contends that his inadvertent mistakes did not rise to the level of constituting a misrepresentation intended to deceive or mislead the OLR. Attorney Krueger asks that the case against him be dismissed and that he be allowed to conclude his legal career with an untarnished record.

¶ 28. The OLR argues that the referee correctly concluded that the OLR met its burden of proof with respect to the three counts of misconduct alleged in its complaint. The OLR argues that by colluding with his client to conceal the debt during the bankruptcy and then unlawfully collecting it thereafter, Attorney Krue-ger ran afoul of bankruptcy law and committed an ethical violation. The OLR asserts the responsibility for accurately listing F.S.'s debt to Attorney Krueger on the bankruptcy schedules was both F.S.'s and Attorney Krueger's and Attorney Krueger cannot, under the guise of claiming it was his client's idea, permit a client to submit false schedules to the bankruptcy court because to do so made Attorney Krueger a party to the client's misrepresentation.

¶ 29. The OLR asserts that Attorney Krueger compounded his misrepresentation on ES.'s bankruptcy schedules by permitting F.S. to testify falsely at the first meeting of creditors. It also argues that Attorney Krueger's misconduct includes his improper collection of the discharged debt for attorney's fees, and it says the record is replete with evidence that Attorney Krueger intended on enforcing an otherwise unenforceable arrangement for F.S. to repay the discharged attorney's fees. The OLR says a pre-bankruptcy obligation may only be binding through a reaffirmation agreement, and there was no such agreement here.

¶ 30. The OLR notes while Attorney Krueger claims he did discuss the conflict issue with F.S. on one occasion, he admits he did not obtain a written consent from F.S. When pressed at the hearing, Attorney Krue-ger agreed that obtaining a written consent would have been "a good idea." The OLR says a written consent was more than just a good idea, it was an absolute requirement of SCR 20:1.7(b), and the OLR says it is no defense to a violation of the rule that the client was ultimately not adversely affected by the representation.

¶ 31. The OLR argues that testimony from F.S. was not necessary to prove the rule violations in this case, and it notes that Attorney Krueger himself made no effort to call F.S. as a witness.

¶ 32. This court will adopt a referee's findings of fact unless they are clearly erroneous. Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may also impose whatever sanction it sees fit regardless of the referee's recommendation. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686. The referee's findings of fact in this case have not been shown to be clearly erroneous, and we adopt them. We also agree with the referee's conclusions of law. We further agree with the referee's recommendation for a 60-day suspension of Attorney Krueger's license to practice law in Wisconsin and a requirement that Attorney Krueger pay the costs of the proceeding.

¶ 33. Attorney Krueger admits that he was aware, as a creditor of F.S., of a potential conflict of interest situation at the time F.S. asked Attorney Krueger to file the Chapter 7 bankruptcy petition. As Trewin made clear:

If the lawyer believes there will be an actual adverse effect on the representation, the lawyer may not represent the client, even if the client would be willing to agree to the representation. It is only where the lawyer believes the representation will not be adversely affected and the client consents in writing that the representation can continue.

Trewin, 275 Wis. 2d 116, ¶ 45.

¶ 34. It is undisputed that Attorney Krueger failed to obtain F.S.'s consent to the conflict in writing as required by SCR 2:1.7(b). It is also undisputed that Attorney Krueger failed to disclose the pre-bankruptcy debt F.S. owed him on the bankruptcy petition, and he did not advise the bankruptcy trustee that F.S.'s testimony was not accurate. In addition, the evidence supports the referee's conclusion that by applying $7384 of the $40,000 check received from F.S. after the bankruptcy in payment of pre-bankruptcy attorney's fees, Attorney Krueger collected a discharged debt in violation of bankruptcy law. The evidence further supports the referee's conclusion that payment of the pre-bankruptcy debt was not a voluntary repayment by F.S. of a discharged debt but rather was part of an arrangement Attorney Krueger had with F.S. prior to filing the bankruptcy. Finally, the evidence supports the referee's conclusion that Attorney Krueger's letter to the OLR saying there was less than $500 owed to him by F.S. at the time the bankruptcy was filed was a knowing misrepresentation, in violation of SCR 22.03(6).

¶ 35. We also agree with the referee that a 60-day suspension of Attorney Krueger's license to practice law in Wisconsin is an appropriate sanction for these violations. While the fact that Attorney Krueger has practiced law for almost 50 years without any previous disciplinary problems is certainly commendable, his age and emeritus status do not immunize him from being disciplined for his misconduct. A 60-day suspension of his license is commensurate with the seriousness of the misconduct and will serve to deter other attorneys from committing similar misconduct. We also find it appropriate for Attorney Krueger to pay the costs of the proceeding.

¶ 36. IT IS ORDERED that the license of Richard J. Krueger to practice law in Wisconsin is suspended for a period of 60 days, effective March 8, 2006.

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

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

¶ 39. N. PATRICK CROOKS, J., took no part.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 40. (concurring). Attorney Krueger objected to certain duplica-tive charges (which were corrected) and also asserted that the fees charged by counsel representing the Office of Lawyer Regulation (OLR) were excessive in light of the issues involved in the matter. Attorney Krueger failed to suggest a reasonable fee.

¶ 41. I join the per curiam opinion assessing Attorney Krueger with the full costs of the disciplinary proceeding.

¶ 42. I write separately once again, as I did in my concurrence in OLR v. Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376, on the issue of imposition of costs in disciplinary proceedings in which an attorney is disciplined.

¶ 43. As I explained in Konnor, the issue of imposition of costs has recently divided this court in a few cases, with Justice Prosser vehemently opposing our present method of generally imposing the costs of the discipline proceedings on the disciplined lawyer. Justice Butler has proposed apportioning fees on the basis of the charges proved. This method is not applicable in the present case.

¶ 44. Because the court was concerned about its internal debate about imposition of costs, the court asked the Office of Lawyer Regulation (OLR), the Board of Administrative Oversight, and the State Bar of Wisconsin to consider the issue of the imposition of costs and make recommendations to the court. As a result, Keith Sellen, director of OLR, in effect petitioned the court for a modification of SCR 22.24(1) (2004) and 22.001(3) (2004), relating to imposition of costs in OLR proceedings.

¶ 45. Mr. Sellen proposed that OLR-incurred attorney fees be paid by OLR through increased assessments to members of the bar and that other costs incurred by OLR in prosecuting a discipline case be assessed by the Supreme Court in its discretion against the disciplined lawyer. This proposal was one of the several possible proposals I outlined in my Konnor concurrence. See also OLR v. Backes, 2005 WI 59, 281 Wis. 2d 1, 697 N.W.2d 49 (Bradley, J., concurring, joined by Abrahamson, C.J., Wilcox, J., & Crooks, J.) (examining the advantages and pitfalls of alternatives to the present system of apportioning costs).

¶ 46. The Court held a hearing on Mr. Sellen's petition on November 14, 2005.

¶ 47. Several persons appeared at the hearing or wrote letters discussing Mr. Sellen's proposal. Their suggestions ranged from retaining the court's current practice of imposing full costs on a disciplined attorney (except in exceptional circumstances described in each particular case) to adopting one of several methods of apportioning costs.

¶ 48. In anticipation of the hearing, the State Bar conducted a poll, posing the following question relating to imposition of costs in discipline proceedings:

Currently, the Wisconsin Supreme Court generally charges full costs of disciplinary proceedings, including legal fees, against an attorney who is found to have violated one or more of the Rules of Professional Responsibility. The Court generally imposes full costs even if some OLR charges against the attorney are dismissed or the discipline is less than OLR requested. Should the Supreme Court (select one):
_Continue the current assessment policy of generally imposing full costs against the disciplined attorney.
_Revise its policy to permit apportionment of costs. This might require an increase in the annual OLR assessments to lawyers.
_Adopt the "American Rule" in which each litigant pays its own attorney fees? Under this option, a disciplined attorney would not be responsible for the fees incurred by OLR in proving a violation. This would require an increase in annual OLR assessments to lawyers.
_Adopt the "English Rule" in which the losing party pays the prevailing party's attorney fees? This option is essentially the same as current policy, except that OLR would be required to pay attorney fees when an attorney prevails on all counts. This option would also require an increase in the annual OLR assessments to lawyers.

¶ 49. The poll results were not known at the time of the hearing. The Bar recently reported an early draft of the poll results to the court. The attorneys and judges polled were significantly divided on how costs should be imposed on disciplined attorneys. Following is the Bar's summary of the results of the Bar poll:

Most respondents split between continuing the current assessment policy (37%) and permitting apportionment of costs (36%) for how the Wisconsin Supreme Court should handle costs of disciplinary proceedings. Another 17% feel the Court should adopt the "English Rule," 9% feel it should adopt the "American Rule," and a handful of respondents checked a combination of methods.
Continue current assessment policy 37%
Revise policy to permit apportion- 36% ment of costs
Adopt "English Rule" - losing party 17% pays the prevailing party's attorney fees
Adopt "American Rule" - each litigant 9% pays its own attorney fees
Nearly one-half (47%) of judges feel the Supreme Court should continue its current assessment policy, while lawyers split between permit apportionment of costs (37%) and continue the current policy (33%). Another 33% of judges chose permit apportionment of costs.

¶ 50. The court has made no decision on Mr. Sellen's petition as of the date of the release of this opinion.

¶ 51. I agree with Justice Bradley's concurring opinion in OLR v. Backes, joined by three other justices, that until the court acts on Mr. Sellen's petition, we should follow our present practice of imposing full costs on a disciplined attorney except in exceptional circumstances (as described in the particular case in which we deviate from this general practice). Charging full costs to the disciplined lawyer is based on our decision to place the onus of the costs of the disciplinary proceeding on the disciplined attorney who created the need for the disciplinary proceeding, rather than placing the onus of the costs of the disciplinary proceeding on the "innocent" members of the bar. As I wrote in Konnor, we should, in exercising our discretion to deviate from the full cost approach, hold ourselves to the same high standards we demand of circuit courts when exercising their discretion.

¶ 52. For the reasons set forth I join the per curiam and write separately.

DAVID T. PROSSER, J.

¶ 53. (concurring in part, dissenting in part). I agree with the referee's recommendation, affirmed by this court, to suspend Attorney Krueger's license to practice law for a period of 60 days. But I disagree with this court's determination to impose full costs of more than $20,000 for the disciplinary proceeding.

¶ 54. This case is reminiscent of OLR v. Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376, in that the OLR sought much more stringent discipline than it obtained. The attorney who successfully fought the severity of the discipline is nonetheless required to pay full costs.

¶ 55. Supreme Court Rule 22.24(1) provides in part that "The Supreme Court may assess against the respondent all or a portion of the costs of a disciplinary proceeding in which misconduct is found...." This is a reasonable rule, but it implies the exercise of discretion. As Justice Butler noted in OLR v. Polich, 2005 WI 36, ¶ 38, 279 Wis. 2d 266, 694 N.W.2d 367 (Butler, J., concurring in part, dissenting in part), our cases show a pattern of assigning full costs to disciplined attorneys "with little or no rationale," irrespective of the factual circumstances. Although the failure to exercise discretion is tantamount to an erroneous exercise of discre tion, our court consistently proceeds as though this principle is inapplicable to the imposition of costs in attorney discipline cases.

¶ 56. Here, OLR issued a three-count complaint and it subsequently proved the three counts to the satisfaction of the referee. However, it also asked that Attorney Krueger be suspended for six months. Attorney Krueger resisted. After an evidentiary hearing, the referee noted that Attorney Krueger had no previous discipline and that "[a] six-month suspension . . . would work an undue hardship given the fact that under SCR 22.28, an attorney's license does not automatically get reinstated but requires an additional hearing before a referee pursuant to SCR 22.29 . . . ." The investigation, hearing, and supreme court review of a reinstatement motion may take a year, so that a six-month suspension may end up as an 18-month suspension, or more. Under current practice, the disciplined attorney is expected to pay the full cost of the reinstatement process as well as the cost of initial discipline.

¶ 57. Under these circumstances, an attorney has a real incentive to fight any proposed suspension of six months or more if that proposed suspension is not certain to be adopted. But the attorney will be forced to pay OLR's prosecution costs so long as any discipline is imposed.

¶ 58. This court should not enforce such a rule without explaining or justifying what it is doing. Rather, the court should ask referees to recommend costs, full or partial, based on the particular circumstances in each case, and to explain each recommendation as part of the Referee's Report. This regimen would permit the court to react to a recommendation and develop criteria for the equitable assessment of costs.

       SCR 20:1.7(b) provides: Conflict of interest: general rule.
      (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
      (1) the lawyer reasonably believes the representation will not be adversely affected; and
      (2) the client consents in writing after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

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

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

       Supreme Court Rule 22.24(1) (2004) provides as follows:
      (1) The supreme court may assess against the respondent all or a portion of the costs of a disciplinary proceeding in which misconduct is found, a medical incapacity proceeding in which it finds a medical incapacity, or a reinstatement proceeding and may enter a judgment for costs. The director [of OLR] may assess all or a portion of the costs of an investigation when discipline is imposed under SCR 22.09. Costs are payable to the office of lawyer regulation.

       Costs are defined in SCR 22.001(3) (2004) as follows:
      "Costs" means the compensation and necessary expenses of referees, fees and expenses of counsel for the office of lawyer regulation, a reasonable disbursement for the service of process or other papers, amounts actually paid out for certified copies of records in any public office, postage, telephoning, adverse examinations and depositions and copies, expert witness fees, witness fees and expenses, compensation and reasonable expenses of experts and investigators employed on a contractual basis, and any other costs and fees authorized by chapter 814 of the statutes.

       Rule 05-01, In the Matter of the Petition for Amendment to Supreme Court Rule 22.001(3) Relating to Cost Assessments in the Lawyer Regulation System.

      The petition requested that the costs be defined to eliminate counsel fees of OLR. The petition requested that costs be defined as follows:
      "Costs" means the compensation and necessary expenses of referees, litigation expenses other than counsel fees of the office of lawyer regulation, a reasonable disbursement for the service of process or other papers, amounts actually paid out for certified copies of records in any public office, postage, telephoning, adverse examinations and depositions and copies, expert witness fees, witness fees and expenses, compensation and reasonable expenses of experts and investigators employed on a contractual basis, and any other costs and fees authorized by chapter 814 of the statutes (emphasis added).

        OLR v. Backes, 2005 WI 59, ¶¶ 64, 66, 69, 70, 281 Wis. 2d 1, 697 N.W.2d 49 (Bradley, J., concurring, joined by Abrahamson, C.J., Wilcox, J., & Crooks, J.).