author: VERGERONT, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joseph Steffes, Defendant-Appellant.

    Court of Appeals

      No. 02-1300-CR.

      Submitted on briefs November 11, 2002.

      Decided February 13, 2003.

    2003 WI App 55
    (Also reported in 659 N.W.2d 445.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel P. Ryan of Flottmeyer, Burgos, Ryan & Sayner, La Crosse.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sarah K. Larson, asst, attorney general, and James D. Doyle, attorney general.
    Before Vergeront, PJ., Roggensack and Deininger, JJ.

       Petition to review denied 4-22-03.

   VERGERONT, P.J.

¶ 1. Joseph Steffes, an inmate at Fox Lake Correctional Institution, appeals the judgment of conviction for solicitation to deliver marijuana to a prisoner within a prison as a repeat offender. Steffes contends the trial court erred in denying his motion to suppress marijuana found in mail addressed to him. Steffes's position is that opening the envelope outside his presence, when the envelope was marked "legal papers," violated Wis. Admin. Code § DOC 309.04(3)(a), his Sixth Amendment right to counsel and his Fourteenth Amendment right not to be deprived of liberty without due process of law.

¶ 2. We conclude that the opening of the envelope outside Steffes's presence did not violate Steffes's Sixth Amendment right to counsel because there is no evidence that the documents in the envelope were communications with Steffes's attorney or somehow related to an attorney's representation of Steffes in a criminal matter. We also conclude there was no violation of his Fourteenth Amendment right not to be deprived of liberty without due process of law because Wis. Admin. Code § DOC 309.04(3)(a) does not create a liberty interest under Sandin v. Conner, 515 U.S. 472 (1995). Therefore, even if there were a violation of § DOC 309.04(3)(a), an issue we do not decide, the trial court properly ruled that Steffes was not entitled to suppression of the marijuana found in the envelope. Accordingly, we affirm.

BACKGROUND

¶ 3. Lieutenant Clyde Maxwell, an officer at Fox Lake Correctional Institution, testified at the preliminary hearing and at the motion hearing as follows. He had received anonymous notes stating that Steffes was dealing drugs in the institution and therefore he monitored a phone call Steffes made to his brother Michael on December 13, 1999. Steffes asked Michael whether he had received Steffes's letter and Michael said he had; Steffes asked if the letter had been tampered with and Michael said no. According to Lieutenant Maxwell, Steffes told Michael to "follow his instructions and send it back to me" and "[t]here's a white envelope and some stamps."

¶ 4. As a result of this phone conversation, Lieutenant Maxwell requested that a mail monitor be placed on Steffes's incoming mail — meaning that, once approved by the security director, Steffes's mail would be sent to Lieutenant Maxwell for inspection for contraband.

¶ 5. On December 17, 1999, Lieutenant Maxwell monitored a second phone call, this time from Steffes to his brother Danny. During the conversation Steffes asked Danny if he had spoken with Michael about the letter that Steffes had sent to Michael, and Danny answered yes. Steffes asked Danny to lend Michael money so that he could buy a "dime bag," which, Lieutenant Maxwell testified, is a $10 package of marijuana. Steffes told Danny to return the dime bag to the prison in the envelope that Steffes had sent Michael.

¶ 6. On December 25, 1999, Lieutenant Maxwell monitored another phone call from Steffes to Danny. In this conversation, Steffes, in Lieutenant Maxwell's words, asked Danny if he "could just take care of it for him, instructing him [Danny] to go across the street to Rudy and purchase his dime bag."

¶ 7. On December 29, 1999, Lieutenant Maxwell was notified by the mailroom that there was a suspicious envelope addressed to Steffes. The envelope was white, approximately 8-1/2 inches by 11 inches, with the return address of "Milwaukee State Public Defender's office, Milwaukee, Wisconsin" typewritten on a white piece of paper taped to the front of the envelope; there was no letterhead or seal on the return address. The words "legal papers" were handwritten with a magic marker on the front and back of the envelope. Lieutenant Maxwell was suspicious of the envelope because, according to the mail sergeant, legal mail is usually metered rather than bearing stamps as did this envelope; legal mail is usually stamped "attorney-client"; and the return address usually is an embossed stamp rather than being taped on. Lieutenant Maxwell opened the envelope outside Steffes's presence. In the envelope were approximately five to ten pages of paper and, flattened between them, a green, leafy substance that tested positive for marijuana. Lieutenant Maxwell answered as follows to questions on the contents of the envelope.

Q: Now I think you testified earlier that when you opened this particular envelope, you found a substance which you believed to be marijuana; correct?
A: That's correct.
Q: You also indicated that you found other paperwork in there?
A: Right.
Q: Now that other paperwork appeared to be legal mail; didn't it?
A: I don't really remember what was written on there. I guess it would appear - would have appeared to be legal mail, but I wasn't really focused on the content on what was on the papers.

¶ 8. Steffes filed a motion to suppress the marijuana as evidence. He contended that Lieutenant Maxwell violated Wis. Admin. Code § DOC 309.04(3)(a), which provides that institution staff may open mail received by an inmate that is "clearly identifiable" as being from an attorney only in the presence of the inmate. The violation of the rule, he argued, was a violation of his constitutional rights, and the remedy was suppression of the marijuana. The trial court denied the motion, concluding that the issue was controlled by State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 601 N.W.2d 287 (Ct. App. 1999). Steffes filed a petition for leave to appeal the nonfinal order, which this court denied. He subsequently pleaded no contest to the charge of solicitation to deliver marijuana to a prisoner within a prison.

DISCUSSION

¶ 9. On appeal Steffes renews his argument that the State obtained.the marijuana illegally because Lieutenant Maxwell opened Steffes's mail outside his presence in violation of Wis. Admin. Code § DOC 309.04(3)(a), and this, Steffes contends, constitutes a violation of his Sixth Amendment right to counsel and his Fourteenth Amendment right against the deprivation of liberty without due process of law. He acknowledges that, since there is no statutory or regulatory provision that evidence obtained in violation of the code is to be excluded in a criminal proceeding, he is not entitled to suppression of the marijuana unless it was obtained in violation of a constitutional right. State v. Mieritz, 193 Wis. 2d 571 574, 534 N.W.2d 632 (Ct. App. 1995).

¶ 10. On a motion to suppress evidence, a defendant generally bears the burden of producing evidence to support a constitutional violation, and the State then bears the burden of showing a constitutionally valid procedure by a preponderance of the evidence. State v. Noble, 2002 WI 64, ¶ 19, 253 Wis. 2d 206, 646 N.W.2d 38. When we review a trial court's decision on a motion to suppress evidence, we affirm the court's findings of fact unless they are clearly erroneous, and we review de novo the application of constitutional principles to those facts. State v. Vorburger, 2002 WI 105, ¶ 32, 255 Wis. 2d 537, 648 N.W.2d 829.

Sixth Amendment Right to Counsel

¶ 11. Steffes argues that his Sixth Amendment right to counsel entitles him to be present when mail to him from his attorney is opened. He argues that Lieutenant Maxwell violated this right because the envelope he opened had a return address from the public defender's office, was marked "legal papers," and Lieutenant Maxwell testified that the papers in the envelope "would have appeared to be legal mail." Alternatively, Steffes argues that even if the envelope did not actually contain a communication from his attorney, he was still entitled under the Sixth Amendment to be present when it was opened. The State responds that Steffes's Sixth Amendment right to counsel was not violated because there is no evidence that his right to confidential communication with his attorney was interfered with. Since both parties find support for their positions in Peckham, 229 Wis. 2d 778, on which the trial court relied, we discuss this case in some detail.

¶ 12. In Peckham, an inmate appealed from a prison disciplinary decision on the ground that mail she had addressed to "Attorney-K Leslie" had been opened outside her presence in violation of Wis. Admin. Code § DOC 309.05(4)(a) (which has since been renumbered to Wis. Admin. Code § DOC 309.04(3)(a), with the relevant language essentially unchanged). The inmate asserted that the evidence obtained from that mailing could not therefore be used against her in the disciplinary action. The inmate had sent the mail out of the prison, but it was returned to the prison due to an insufficient address and opened by prison staff outside her presence. Inside was correspondence between the inmate and a publishing company concerning a refund and replacement for some volumes she had received. Id. at 780.

¶ 13. We concluded in Peckham that, even though the mail did not actually contain correspondence to an attorney, opening and examining it outside the inmate's presence was a violation of the rule because the envelope was addressed to "Attorney-K Leslie." Id. at 785. However, we also concluded that suppression of the evidence obtained was not warranted because there was no statute specifically requiring suppression, and the evidence had not been obtained in violation of the inmate's constitutional rights. Id. at 794.

¶ 14. In reaching the conclusion that no constitutional right was violated, we surveyed decisions from other jurisdictions addressing the opening of incoming "legal mail," observing that they rested in part on the Sixth Amendment right to counsel and in part on the right of access to the courts guaranteed by the due process clause of the Fourteenth Amendment. Id. at 790-791 n.8. We concluded that the jurisdictions were split over whether opening and inspecting incoming "legal mail" outside the presence of an inmate did violate the inmate's constitutional right. In those cases holding it did, we stated, there was an alleged pattern and practice of opening and inspecting legal mail outside the inmate's presence, and the mail opened and inspected actually was from the inmate's attorney, from a judge on a case in which the inmate was involved, or something similar. Id. at 790. Because the record before us in Peckham contained no evidence of such a pattern and practice and the communication was not between the inmate and her attorney, we concluded there was no violation of her constitutional rights. Id. at 791.

¶ 15. Steffes contends that, unlike the facts in Peckham, here the envelope opened outside the inmate's presence did contain "legal mail." Although it is not entirely clear whether the trial court here found there was "legal mail" in the envelope, we will assume for purposes of our discussion that it did. However, we reject Steffes's assumption that documents that may be described as "legal mail" or "legal papers" are necessarily entitled to confidentiality under the Sixth Amendment right to counsel. The Sixth Amendment protects the attorney-client relationship from intrusion in a criminal matter. Wolff v. McDonnell, 418 U.S. 539, 576 (1974). The need for an inmate to be able to communicate privately .with his or her counsel is vital to the effective assistance of counsel. See Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974). There are many documents that could be described as "legal mail" or "legal papers" that do not have any bearing on an inmate's relationship with his or her counsel in a criminal setting. One example that comes readily to mind is a document relating to a court proceeding when an inmate is proceeding pro se. In order for the Sixth Amendment right to counsel to have an arguable application in this case, there must, as á threshold matter, be some evidence that the documents in the envelope were communications with Steffes's attorney or somehow related to an attorney's representation of Steffes in a criminal matter. However, there is no evidence in the record that the envelope contained any such documents.

¶ 16. Steffes's alternative argument in his reply brief — that his Sixth Amendment right to counsel was violated even if the documents in the envelope were not a communication from his attorney — has no merit. Steffes relies on Peckham for this argument, but Peck-ham stands for just the opposite: opening a letter outside of an inmate's presence may violate the administrative regulation, but it does not for that reason violate the Sixth Amendment right to counsel. Therefore, even if the opening of the envelope outside Steffes's presence violated Wis. Admin. Code § DOC 309.04(3)(a), it is not for that reason a violation of his Sixth Amendment right to counsel.

¶ 17. We conclude that Steffes's Sixth Amendment right to counsel was not violated by the opening of the envelope outside his presence.

Fourteenth Amendment Due Process Right — Liberty Interest

¶ 18. The Fourteenth Amendment protects against the deprivation of liberty without due process of law. Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989). The first step in the analysis examines whether there exists a liberty or property interest that has been interfered with by the State; the second step examines whether the procedures attendant upon the deprivation were constitutionally sufficient. Id. at 460. The dispute in this case concerns the first step. Steffes contends that Wis. Admin. Code § DOC 309.04(3)(a) creates a liberty interest in not having mail identifiable as being from an attorney opened outside his presence, and that he was arbitrarily deprived of this liberty interest when Lieutenant Maxewell opened the envelope outside his presence in violation of this regulation. He relies on Hewitt v. Helms, 459 U.S. 460, 471-72 (1983), for the proposition that a prison regulation that uses mandatory language may create a protected liberty interest, even though in the absence of the regulation there would not be a liberty interest protected by the Fourteenth Amendment.

¶ 19. However, the approach in Hewitt to identifying a liberty interest was abandoned in Sandin, 515 U.S. at 483-84 (1995), and we have already recognized this. See, e.g., Kirsch v. Endicott, 201 Wis. 2d 705, 715, 549 N.W.2d 761 (Ct. App. 1996); Santiago v. Ware, 205 Wis. 2d 295, 316-17, 556 N.W.2d 356 (Ct. App. 1996). The Court in Sandin stated:

In light of the above discussion [on the limitations of the Hewitt approach] we believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns under girding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established and applied in Wolff [v. McDonnell, 418 U.S. 539 (1974)] and Meachum [v. Fano, 427 U.S. 215 (1976)]. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. [Citation omitted.] But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force [citations omitted], nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Sandin, 515 U.S. at 483-84. The Court in Sandin went on to conclude that the disciplinary segregation the inmate there was subject to did not "present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest." Id. at 486.

¶ 20. Steffes acknowledges Sandin, but contends that it did not overrule Hewitt but simply refined the analysis in Hewitt. Steffes refers to the footnote in Sandin accompanying the above cited passage:

Such abandonment of Herwitt's methodology does not technically require us to overrule any holding of this court ..... Although it did locate a liberty interest in Hewitt, it concluded that due process required no additional procedural guarantees for the inmate. As such, its answer to the anterior question of whether the inmate possessed a liberty interest at all was unnecessary to the disposition of the case. Our decision today only abandons an approach that in practice is difficult to administer and which produces anomalous results.

Sandin, 515 U.S. at 484 n.5.

¶ 21. Although the Court in Sandin did not find it necessary to overrule the holding in Hewitt — because the Court in Hewitt concluded there was no due process violation — it unmistakably abandoned the analysis in Hewitt that focuses on whether the language of a regulation is mandatory, and returned to the focus on the nature of the deprivation. Sandin, 515 U.S. at 481. Accordingly, the issue properly framed in this case is whether Wis. Admin. Code § DOC 309.04(3)(a) "provide^] freedom from a restraint that 'imposes atypical and significant hardship on [Steffes] in relation to the ordinary incidents of prison life.'" Thielman v. Leean, 282 F.3d 478, 482 (7th Cir. 2002), citing Sandin, 515 U.S. at 484.

¶ 22. Steffes argues that the regulation does meet this test because the right to be present during the opening of an inmate's legal mail is vital to the protection of an inmate's right to effective assistance of counsel, citing Bach, 504 F.2d at 1102. However, we have already concluded there is no evidence that the envelope contained documents that implicate this right. Moreover, Steffes's reliance on a Sixth Amendment analysis in this context is misplaced. The inquiry under the Fourteenth Amendment is whether the regulation created a protectible liberty interest, thus entitling the holder of the interest to the minimum procedures that are appropriate under the circumstances and necessary to insure the interest is not arbitrarily abrogated. Wolff, 418 U.S. at 556. If Steffes had the right under the Sixth Amendment to be present when Lieutenant Maxwell opened the envelope, he had that right regardless of the existence of the regulation. Stated another way, if his Sixth Amendment right to counsel were violated, it would not be because of the lack of procedure before the envelope was opened outside his presence, but because the envelope could not be opened outside his presence consistent with the Sixth Amendment, regardless of what procedure preceded it.

¶ 23. In the context of our Fourteenth Amendment analysis, the question is whether, in providing protection that is not required by the Constitution against intrusion into Steffes's receipt of mail, the regulation provides freedom from a restraint that imposes atypical and significant hardship on him in relation to the ordinary incidents of prison life. We have no hesitancy in concluding the regulation does not do this. Even if we assume that having mail addressed to an inmate opened outside the inmate's presence is a "restraint on freedom," restrictions and intrusions on the receipt of mail, other than that which is constitutionally proscribed, are typical of prison life. See Wolff at 575-77; Turner v. Safley, 482 U.S. 78, 86-91 (1987). In addition, it is not a significant hardship in relation to the ordinary incidents of prison life to have mail opened outside an inmate's presence when the mail purports to be from an attorney but is not. See Pacheco v. Comisse, 897 E Supp. 671, 681 (N.D. N.Y. 1995) (variation from prison directive that sets standard for proving a letter is privileged does not involve freedom from restraint or impose atypical hardship).

¶ 24. Accordingly, we conclude that Wis. Admin. Code § DOC 309.04(3)(a) does not create a liberty interest protected by the due process clause of the Fourteenth Amendment.

CONCLUSION

¶ 25. Even if Lieutenant Maxwell violated Wis. Admin. Code § DOC 309.04(3)(a) by opening the envelope outside Steffes's presence, that did not violate Steffes's Sixth Amendment right to counsel, nor his Fourteenth Amendment right not to be deprived of liberty without due process of law. The trial court therefore properly ruled that he was not entitled to suppression of the marijuana found in the envelope.

By the Court. — Judgment affirmed.

       Wisconsin Stat. §§ 961.41(l)(h)l, 939.30(1), 961.465(2), 961.49, and 939.62(2) (2001-02). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Admin. Code § DOC 309.04 provides in part:
      Inmate mail. (1) The department may allow inmates to communicate with their families, friends, government officials, courts, and other people concerned with the welfare of inmates consistent with the need to protect the public.
      (2) (a) Incoming mail addressed to inmates may be opened, examined, censored, and delivered under this section only if the inmate consents in writing to receive mail through institution mail services.
      (b) If an inmate does not consent under par. (a), the institution shall return incoming mail addressed to the inmate to the post office unopened marked, "refused."
      (c) The department shall permit an inmate to correspond with anyone.
      (d) All outgoing inmate mail shall be stamped. The stamp shall identify the mail as coming from the Wisconsin state prison system.
      (3) Institution staff may not open or read for inspection mail sent by an inmate to any of the parties listed in pars, (a) to (j), unless the security director has reason to believe that the mail contains contraband. Institution staff may open mail received by an inmate from any of these parties in the presence of the inmate. Staff may inspect the document but only to the extent necessary to determine if the mail contains contraband, or if the purpose is misrepresented. Staff may read the mail if staff has reason to believe it is other than a legal document. The department shall process contraband in accordance with sub. (4) (e) (intro.) and 1., (f) and (g). This subsection applies to mail clearly identifiable as being from one or more of the following parties:
      (a) An attorney.

      (b) The governor of Wisconsin.
      (c) Members of the Wisconsin legislature.
      (d) Members of the United States congress.
      (e) The secretary of the department.
      (f) The administrator of the division.
      (g) The attorney general or an assistant attorney general of Wisconsin.
      (h) An investigative agency of the federal government.
      (i) The clerk or judge of any state or federal court.
      (j) The President of the United States.
      (Emphasis added.)

       In 1997 Steffes had signed a written consent form consenting to the monitoring and recording of his phone calls by institution staff. Whenever inmates arrive at the institution, they are advised that the phone system monitors and records calls placed by inmates, and if they do not sign a consent form, the inmate's I.D. number is not logged into the system and they cannot use the phone with their I.D. number. Before every phone call begins, the inmate hears a warning that the call will be monitored and recorded. Lieutenant Maxwell testified that the phone system monitors and records every inmate's phone call going out of the institution.

       We base this description of the envelope on the trial court's description.

       Steffes refers to a violation of the First Amendment, but does not develop an argument that is distinct from his argument on the Sixth Amendment. Therefore, we do not address the First Amendment.

       We first observed that the United States Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 575-76 (1974), had not decided which, if any, of the constitutional rights there asserted —First Amendment, Sixth Amendment right to counsel, and the right of access to the courts guaranteed by the due process clause of the Fourteenth Amendment — were operative in the context of opening mail from an inmate's attorney; instead the
        Wolff court had assumed that some constitutional right was implicated and decided none was violated if mail from an attorney was opened in the inmate's presence. Peckham, 229 Wis. 2d at 788-89.

       In reaching this conclusion in Peckham, we did not distinguish between the Sixth Amendment right to counsel and the Fourteenth Amendment due process right of access to the courts. Since Steffes does not present an argument based on the Fourteenth Amendment due process right of access to the courts, we address only the Sixth Amendment right to counsel.

       The trial court in its decision stated that the envelope in this case "did perhaps contain some legal mail," accepting Lieutenant Maxwell's testimony, but acknowledging his lack of certainty. The court then stated that although in this case, as in Peckham, there was no evidence of a pattern and practice, the other factor present in Peckham — that the envelope did not contain any legal mail, "cannot be used in this case." The trial court nevertheless concluded that Steffes's constitutional right as framed by Peckham had not been violated because Lieutenant Maxwell was not sure the envelope contained legal mail, and the evidence sought to be used against Steffes was not legal mail but contraband drugs.
      The State argues that Steffes's brother sent the envelope to Steffes and there was no legal mail of any kind in the envelope. Although this may be a reasonable inference from the record of the preliminary examination and the motion hearing, we cannot conclude it is the only reasonable inference, and the trial court did not make these findings. Since this court may not make findings of fact, we do not rest our decision on this ground urged by the State. We also observe that the State cites to allegations of the complaint to persuade us that Steffes's brother sent the envelope, but those allegations are not evidence on which the trial court may rely in deciding the motion to suppress evidence.

       We do not suggest such documents may not implicate other constitutional rights of an inmate, such as the Fourteenth Amendment due process right of access to the courts, nor do we suggest that such documents may not come within other subsections of Wis. Admin. Code § DOC 309.04(3); our analysis at this point concerns only the Sixth Amendment right to counsel.

       Steffes also cites Wolff in support of his alternative argument, contending that the officials were required to ascertain whether a suspicious letter purporting to be from an attorney actually was and also were required to employ other methods to detect contraband. However, he cites to the portion of Wolff summarizing the decision of the court of appeals. 418 U.S. at 575. The Supreme Court concluded that the approach of the court of appeals "was unworkable." Id. at 576. The Supreme Court held that no constitutional right was infringed by the procedure of opening mail from an attorney in the inmate's presence, requiring that any communication from an attorney be specially marked as originating from an attorney with his or her name and address, and requiring that an attorney who desired to correspond with a prisoner identify himself or herself and the client to the prison officials "to assure that the letters marked privileged are actually from members of the bar." Id. at 576-77.

       We will assume for purposes of our discussion that the opening of the envelope outside Steffes's presence did violate Wis. Admin. Code § DOC 309.04(3)(a). We do not agree with Steffes's assumption that there is no dispute there was a violation. It is arguable that an envelope with a taped on, typed return address of the State Public Defender's Office that does not contain a street address is not "clearly identifiable as being from... an attorney."

       Wisconsin cases applying the Sandin standard have addressed challenges to various degrees and conditions of physical confinement, and we have found none of the following to constitute a restraint on freedom that is an atypical and significant hardship in relation to the ordinary incidents of prison life: placement in segregation under the Management Continuum program, Kirsch, 201 Wis. 2d at 711-14, 716-17; termination of assignment to a Community Residential Confinement program and return to Waupun Correctional Institution, Santiago, 205 Wis. 2d at 318; retention'in adjustment segregation beyond the permitted maximum, Chaney v. Renteria, 203 Wis. 2d 310, 321, 554 N.W.2d 503 (Ct. App. 1996); transfer to an out-of-state facility, Evers v. Sullivan, 237 Wis. 2d 759, 615 N.W.2d 680 (Ct. App. 2000). In Chaney, the basis for our conclusion was that under Sandin we were to "focus on the physical characteristics of the confinement," and therefore "an inmate's confidence in the maximum time he or she will be specially segregated does not signal whether a protected liberty interest is involved." Chaney, 203 Wis. 2d at 320.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jose Carlos Navarro, Defendant-Appellant.

    Court of Appeals

      No. 02-0850-CR.

      Submitted on briefs January 9, 2003.

      Decided February 19, 2003.

    2003 WI App 50
    (Also reported in 659 N.W.2d 487.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael S. Holzman of Rosen and Holzman Ltd. of Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Maura FJ Whelan, assistant attorney general.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review denied 4-22-03.

   BROWN, J.

¶ 1. This case presents an issue of first impression in Wisconsin. Jose Carlos Navarro contends that Article 36 of the Vienna Convention bestows a judicially enforceable individual right upon foreign nationals who have been detained by police to consult with the consular officials of their country. He argues that because the police failed to notify him of this right at the time he was arrested, the police violated his right to consular notification and his potentially incriminating post-arrest statements should have been suppressed. We conclude that the Vienna Convention does not create a private right that a foreign national can enforce in a state criminal proceeding and therefore Navarro has no standing to assert any remedy pursuant to the Vienna Convention. We therefore affirm the judgment of conviction and sentence entered.

¶ 2. The facts of this case are undisputed. In March 2001, Navarro was arrested after a drug-related undercover police investigation. At the police station, Navarro was booked and interrogated after acknowledging and waiving his Miranda rights. At the booking, the police learned that Navarro was born in Mexico and confiscated his wallet, which contained his resident alien card. During the interrogation, Navarro made a potentially incriminating statement to the police. At no time did the police advise Navarro that he had the right to contact the Mexican consulate for assistance. Navarro was later charged with various felony drug offenses.

¶ 3. In June, Navarro's attorney spoke with an employee of the Legal Affairs and Human Rights Office of the Mexican Consulate in Chicago. The employee informed Navarro's attorney that if he had been given the opportunity to speak to Navarro, he would have advised him not to make or sign any statements whatsoever until the assistance of legal counsel had been obtained.

¶ 4. Navarro then moved to suppress the statement he had made to the police on the grounds that the police had violated Navarro's right to consular assistance pursuant to Article 36 of the Vienna Convention. In its response to the motion to suppress, the State countered that the Vienna Convention created no individual rights and that, in any event, suppression was not the appropriate remedy for a violation of the treaty.

¶ 5. Prior to the hearing on the motion to suppress, in an evidentiary deposition, Professor Douglass Cassel, an expert on international law and Mexican consular operations and procedures, testified that any statement made by Navarro without first notifying the Mexican consulate violated the Vienna Convention and should not be admitted into evidence. Then, at the hearing, the State stipulated that Article 36 of the Vienna Convention required the police to notify Navarro of his right to consular notification and that although the officers were aware that Navarro was a foreign national at the time of his booking, they did not notify him of his right. The State further stipulated that Navarro would have availed himself of consular assistance as guaranteed by the treaty had he known about it.

¶ 6. The trial court ultimately determined that suppression was not the appropriate remedy for a violation of the Vienna Convention's right of consular notification and denied Navarro's motion to suppress. Navarro subsequently pled guilty to one felony drug count. Navarro appeals the judgment of conviction and sentence entered.

¶ 7. In reviewing a trial court's ruling on a motion to suppress, the trial court's findings of fact will be upheld unless they are clearly erroneous. State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996). However, the interpretation of a treaty is a question of law, which we review de novo. State v. King, 212 Wis. 2d 498, 504, 571 N.W.2d 680 (Ct. App. 1997).

¶ 8. The threshold question we must address is whether an individual foreign national has standing to assert a violation of Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (hereinafter "Vienna Convention"), in a domestic criminal case. The Vienna Convention is a seventy-nine article multilateral treaty signed by more than 100 nations, including the United States and Mexico. State v. Martinez-Rodriguez, 33 P.3d 267, 271 (N.M. 2001), cert. denied, Martinez-Rodriguez v. New Mexico, 535 U.S. 937 (US. Mar. 18,2002) (No. 01-7656). It was drafted in 1963 and ratified by the United States in 1969. Id. The treaty governs the rights and functions of consular officers and also the privileges and immunities associated with their positions. Id. Navarro asserts that the treaty unambiguously confers judicially enforceable rights on criminal defendants who are foreign nationals. His argument originates in the language appearing throughout Article 36, which protects the ability of the consular officials of a sending state to communicate with a detained national in a receiving state. Article 36 is entitled "Communication and contact with nationals of the sending State" and provides:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

Vienna Convention, 21 U.S.T. 77, at Art. 36.

¶ 9. In general, when confronted in recent years with numerous claims based upon Article 36 of the Vienna Convention, federal courts, without the benefit of a definitive statement from the United States Supreme Court, have sidestepped the question of whether the treaty creates individual rights whenever possible —typically by concluding that remedies such as suppression of evidence or dismissal of an indictment are not available. See United States v. Emuegbunam, 268 F.3d 377, 391 (6th Cir. 2001), cert. denied, Emuegbunam v. United States, 535 U.S. 977 (U.S. Apr. 1, 2002) (No. 01-8531); see, e.g., United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000); United States v. Li, 206 F.3d 56, 66 (1st Cir. 2000). As Navarro points out, some federal courts, and at least one commentator, who have considered the issue, have impliedly or explicitly held that the Vienna Convention does confer an individual enforceable right that vests an injured party with standing to seek redress. See, e.g., United States v. Torres-Del Muro, 58 F. Supp. 2d 931, 933 (C.D. Ill. 1999); Standt v. City of New York, 153 F. Supp. 2d 417, 427 (S.D.N.Y. 2001); United States v. Hongla-Yamche, 55 F. Supp. 2d 74, 77-78 (D. Mass. 1999). See also Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int'l L. 565, 602 (1997). However, the court of appeals for the fifth and sixth circuits and one state supreme court have held that the Vienna Convention does not establish any judicially enforceable right of consultation between a detained foreign national and the consular representatives of his or her nation. United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001); Martinez-Rodriguez, 33 F.3d at 274; Emuegbunam, 268 F.3d at 394. While we acknowledge this split in opinion, in light of the well-established principles of international law that guide judicial construction of a treaty, we are convinced that the Vienna Convention does not confer standing on an individual foreign national to assert a violation of the treaty in a domestic criminal case.

¶ 10. Upon ratification, a treaty becomes the law of the land and on equal footing with federal statutes. U.S. Const, art. VI, § 2. As a general rule, however, international treaties do not create personal rights that an individual may enforce in the courts of its signatory nations. Emuegbunam, 268 F.3d at 389; Restatement (Third) of Foreign Relations Law of the United States § 907 cmt. a (1987) ("International agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts ...."). In fact, courts apply a presumption that the rights created by an international treaty belong to a state and that a private individual cannot enforce them. Emuegbunam, 268 F.3d at 389. As the United States Supreme Court explained over one hundred years ago:

A treaty is primarily a compact between independent nations.- It depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured parties choose to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.

Edye v. Robertson ("Head Money Cases"), 112 U.S. 580, 598 (1884). Generally, for courts to find that a treaty provides a private right of action, the document must explicitly provide for such a right. Martinez-Rodriguez, 33 P.3d at 272. Thus, if a treaty is ambiguous, the presumption against implying private rights into the treaty comes into play. Jimenez-Nava, 243 F.3d at 197.

¶ 11. Applying these general principles, the Vienna Convention appears to be a customary international treaty whose purpose is to facilitate the establishment of consular relations between the sending and receiving states and define the functions of the consulate. Nowhere in the text of the treaty can we find a statement or even a suggestion that the signatory-nations intended to provide for a private right of enforcement of the provisions in the courts of the receiving states in criminal cases. The Preamble unambiguously renounces the creation of any individual rights:'

Believing that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems, [and] [idealizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.

Vienna Convention, 21 U.S.T. 77, at Preamble (emphasis added). Similarly, Article 36, which is the cornerstone of Navarro's argument, concerns the privileges and immunities of consular officers, not detained foreign nationals. See Emuegbunam, 268 F.3d at 392. The introductory sentence to Article 36 clearly states the purpose of the section is to encourage consular activity and the requirement that the receiving state notify arrested foreign nationals that they may confer with their nation's consulate merely advances this expressed purpose. See Vienna Convention, 21 U.S.T. 77, at Art. 36(1). Manifestly, the notification requirement informs the sending state that it has a foreign national in custody of a foreign government so that the consulate can then provide assistance to the national and ensure that he or she is afforded the same protections and courtesies as the citizens of the receiving state. However, a determination that the treaty confers benefits upon arrested foreign nationals is clearly not equivalent, as Navarro appears to allege, to a determination that Article 36 was intended to vest the foreign national with standing to seek redress for treaty violations in domestic criminal cases. Martinez-Rodriguez, 33 P.3d at 273. Further, while Article 36 does speak in terms of "rights," this also does not translate, as Navarro would have us believe, to a conclusion that the language was intended to create a private right of action for criminal defendants. As was observed in the concurrence in Li:

Of course, there are references in the [treaty] to a "right" of [consular] access, but these references are easily explainable. The contracting States are granting each other rights, and telling future detainees that they have a "right" to communicate with their consul is a means of implementing the treaty obligations as between States. Any other way of phrasing the promise as to what will be said to detainees would be both artificial and awkward.

Li, 206 F.3d at 66 (Selya & Boudin, JJ., concurring).

¶ 12. The treaty then is not ambiguous as to whether it creates a private right. Regardless, even if the language in the Preamble and Article 36 does admit of an ambiguity, the presumption against implying private rights comes into play and militates against our construing the treaty in a manner that would permit Navarro to enforce its provisions in a state criminal proceeding.

¶ 13. Further, we cannot ignore the fact that the treaty is dealing with sensitive matters of international relations, not domestic criminal law. When foreign affairs are involved, the national interest must be expressed through a single authoritative voice. Martinez-Rodriguez, 33 P.3d at 273 (citing Li, 206 F.3d at 67 (Selya & Boudin, JJ., concurring)). While courts interpret treaties for themselves, the meaning given them by the government department particularly charged with their negotiation and enforcement is given great weight. Id. at 273-74.

¶ 14. With regard to the Vienna Convention, the State Department has consistently taken the position that although implementation of the treaty may benefit foreign nationals, it does not create judicially enforceable individual rights that can be remedied in the criminal justice systems of the member states. Id. at 274. According to the State Department, "[t]he [only] remedies for failures of consular notification under the [Vienna Convention] are diplomatic, political or exist between states under international law." Id.

¶ 15. The State Department's position appears to be in accord with customary practices, as the parties to the convention have attempted to ensure enforcement and remedy violations of Article 36 through diplomatic channels. The State Department has indicated that it has historically enforced the Vienna Convention itself, investigating reports of violations and apologizing to foreign governments and working with domestic law enforcement to prevent future violations when necessary. Emuegbunam, 268 F.3d at 392-93. In turn, "[m]any, if hot most, of the countries with which the United States raises concerns that consular notification obligations have been violated with respect to U.S. citizens will undertake to investigate the alleged violation and, if it is confirmed, to apologize for it and undertake to prevent future recurrences." Id. at 393. Apparently, no country remedies violations of the Vienna Convention through its criminal justice system. Id. These practices evidence a belief among Vienna Convention signatory nations that the treaty can be enforced, violations remedied, and future infractions prevented without invading the province of a sovereign nation's criminal courts.

¶ 16. Navarro and his expert, Cassel, rely primarily on the LaGrand Case (Germany v. United States of America), 2001 I.C.J. 104 (June 27), to support their argument that Navarro may enforce the Vienna Convention in a domestic criminal case. They contend that in LaGrand, the International Court of Justice (ICJ) required judicial intervention and a judicial remedy where the Convention is violated in serious criminal cases.

¶ 17. In LaGrand, the German government had gone before the ICJ claiming that the United States had violated the consular rights of the German government itself and of the LaGrands, two German nationals who were not informed of their consular rights until many years after their arrest for murder in Arizona. Id. at ¶¶ 10, 14, 75. The ICJ took jurisdiction in the case based on "Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes, which accompanies the Vienna Convention," which reflects the signatory nations' agreement that the ICJ would be the primary forum for the settlement of disputes arising under the Vienna Convention. Id. at ¶ 1; see also Martinez-Rodriguez, 33 P.3d at 273. Based on the Optional Protocol, the ICJ concluded "Article 36, paragraph 1, creates individual rights, which. .. may be invoked in [the ICJ] by the national State of the detained person." LaGrand, 2001 I.C.J. 104 at ¶ 77. However, the ICJ went no further than that. Contrary to Navarro's assertion, the ICJ did not hold that Article 36 of the Vienna Convention creates legally enforceable individual rights that a defendant may assert in a domestic criminal proceeding to reverse a conviction.

¶ 18. Navarro also seems to assert that in Breard v. Greene, 523 U.S. 371 (1998), the United States Supreme Court held that individuals have enforceable rights under the Vienna Convention. While the Court did acknowledge that the Vienna Convention "arguably confers on an individual the right to consular assistance following arrest," it ultimately concluded that the defendant's claim under the Vienna Convention had been procedurally defaulted and thus the Court left the question of standing unresolved. Id. at 375-76; see also Martinez-Rodriguez, 33 P.3d at 274. Further, in the same case, the Court indicated that the Vienna Convention does not provide a signatory nation a private right of action in the federal courts to seek a remedy for a violation of the consular notification provisions. Breard, 523 U.S. at 377. With the Supreme Court having expressed doubt that a foreign sovereignty to whose benefit the Vienna Convention inures would have a private right of action in domestic courts, it seems highly unlikely that an individual foreign national could pursue an action. Martinez-Rodriguez, 33 R3d at 274; Emuegbunam, 268 F.3d at 394.

¶ 19. In the absence of explicit language in the treaty granting individual foreign nationals a right of enforcement and a definitive directive from the United States Supreme Court, we can see no reason to depart from the well-established general principles of. international law, the expressed position of the State Department, and the apparent long-standing practices of the international community to find that Navarro has a private right of action he can enforce in a state criminal proceeding. Further, such a conclusion would risk our interfering in the nation's foreign affairs and it is beyond question that "[incalculable mischief can be wrought by gratuitously introducing into this often delicate process court enforcement at the instigation of private parties." See Li, 206 F.3d at 68 (Selya & Boudin, JJ., concurring).

¶ 20. We therefore construe the Vienna Convention to confer no substantive rights in a state court proceeding. The Vienna Convention simply represents a notice accommodation to a foreign national, which does not extend into dictating substantive procedures or dispositions in a state proceeding. Accordingly, we hold that Navarro does not have standing to enforce the provisions of the Vienna Convention and the trial court properly denied his motion to suppress.

By the Court. — Judgment affirmed.

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

       The sending state is the nation of the arrested individual. State v. Martinez-Rodriguez, 33 P.3d 267, 271 n.2 (N.M 2001), cert. denied, Martinez-Rodriguez v. New Mexico, 535 U.S. 937 (U.S. Mar. 18, 2002) (No. 01-7656). The receiving state is the arresting nation. Id.


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bruce A. Kassube, Defendant-Appellant.
    Court of Appeals

      No. 02-2334-CR.

      Submitted on briefs January 28, 2003.—

      Decided February 19, 2003.

    2003 WI App 64
    (Also reported in 659 N.W.2d 499.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Len Kachinsky of Kachinsky, Petit & Parker, LLC, Neenah.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Bruce Kassube appeals a judgment convicting him of possession of cocaine and possession of THC. He argues that the trial court erred by denying his suppression motion because evidence was obtained after an illegal stop. We disagree and affirm the judgment.

BACKGROUND

¶ 2. On November 24, 2000, officer Lowell James of the Black Creek Police Department stopped Kassube because he believed Kassube did not have a driver's license. Kassube was in possession of a metal pipe with marijuana residue on it, as well as marijuana and cocaine. As a result, Kassube was charged with possession of THC and possession of cocaine.

¶ 3. Kassube filed a motion to suppress the evidence obtained during the traffic stop. He argued the stop was unlawful because it was not based on reasonable suspicion that he had committed a crime. At the hearing, James testified that he had known Kassube for nine to twelve years and had never known Kassube to have a driver's license. He had last spoken to Kassube sometime during 2000 and Kassube did not have a license at that time. The court denied Kassube's motion. Kassube later entered no contest pleas and was found guilty. He now appeals.

STANDARD OF REVIEW

¶ 4. In reviewing a circuit court's order denying a motion to suppress evidence, the court's findings of evidentiary or historical fact will be upheld unless they are clearly erroneous. State v. Matejka, 2001 WI 5, ¶ 16, 241 Wis. 2d 52, 621 N.W.2d 891. However, whether the court's findings of fact pass statutory or constitutional muster is a question of law that this court reviews independently. Id.

DISCUSSION

¶ 5. The Fourth Amendment to the United States Constitution protects "[t]he right of the people ... against unreasonable searches and seizures." While an investigative stop is technically a "seizure" under the Fourth Amendment, a police officer may, under the appropriate circumstances, detain a person for purposes of investigating possible criminal behavior even though there is no probable cause for arrest. See Terry v. Ohio, 392 U.S. 1, 22 (1968). Wisconsin has adopted the Terry rule, see State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377 (1972), and Wis. Stat. § 968.24. Kassube argues that a lawful temporary stop under § 968.24 requires that the officer reasonably suspect that a person is committing, is about to commit or has committed a crime, and claims that no such suspicion existed here.

¶ 6. Kassube notes that no Wisconsin cases have addressed whether an officer's personal knowledge of the status of a person's driver's license at some previous time is sufficient to justify a stop. He relies on a Mississipi case, Boyd v. State, 758 So.2d 1032, 1033 (Miss. 2000), where an officer had knowledge that the driver had his license suspended eight years before. The court determined that this information was too stale to justify a stop. Id. at 1035. In making its determination, the court looked at similar cases in other states that held that information only a few weeks old was too stale to justify a stop. Id. Kassube urges us to follow the Mississippi court's decision and determine that James's information was anywhere up to eleven months old and therefore stale.

¶ 7. We conclude, however, that the totality of the circumstances supports a reasonable basis for James's suspicion. James had known Kassube between nine and twelve years and had never known Kassube to have a driver's license at any time during that period. Further, within eleven months of the stop, Kassube informed James that he still did not have a license.

¶ 8. This is different from Boyd and the cases it cites because those cases all dealt with temporary suspensions of drivers' licenses. In such a situation, a driver may have regained his or her license at any time without the officer's knowledge. Here, Kassube did not simply have his privileges temporarily suspended, but had never had a license at all during the nine to twelve years James knew him. It was reasonable for James to believe that if Kassube had not obtained a license in nine to twelve years, he did not do so in the last eleven months and was likely to be driving without a license.

By the Court. — Judgment affirmed.


author: CURLEY, J. SCHUDSON, J.

text:
    Steven Van Erden and Cherie Van Erden, Plaintiffs-Appellants, v. Joseph A. Sobczak, Defendant, American Family Mutual Insurance Company and City of Milwaukee, Defendants-Respondents, Badger Mutual Insurance, Intervenor.
    Court of Appeals

      No. 02-1595.

      Submitted on briefs January 7, 2003.

    Decided February 25, 2003.

    2003 WI App 57
    (Also reported in 659 N.W.2d 896.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Jonathan Cermele and Laurie Eggert of Eggert & Cermele, S.C., of Milwaukee.
    On behalf of the defendant-respondent American Family Mutual Insurance Company, the cause was submitted on the brief of Beth A. Boyer-Ryan oí American Family Insurance Group of Milwaukee.
    On behalf of the defendant-respondent City of Milwaukee, the cause was submitted on the brief of Nick G. Kotsonis of Crivello, Carlson & Mentkowski, S.C., of Milwaukee.
    A nonparty amicus curiae brief was filed by John F. Fuchs of Fuchs, DeStefanis & Boyle, S.C., of Milwaukee, on behalf of the Milwaukee Police Association and Milwaukee Police Supervisors Organization.
    Before Fine, Schudson and Curley, JJ.

       Petition to review filed.

   CURLEY, J.

¶ 1. Steven and Cherie Van Erden appeal from the trial court's order granting summary judgment and dismissing their declaratory judgment action against the City of Milwaukee, in which the Van Erdens sought a declaration that the City had a duty to offer underinsured motorist (UIM) coverage to Steven Van Erden, as a City employee, in accordance with Wis. Stat. § 632.32(4m)(a)l (1999-2000). The Van Erdens also appeal from the trial court's order granting summary judgment dismissing their declaratory judgment action against American Family Mutual Insurance Company, their automobile insurance carrier, in which they sought full UIM coverage under two policies, despite reducing and anti-stacking clauses in their insurance policies.

¶ 2. With respect to the City, the Van Erdens contend that, as a result of its obligation to provide uninsured motorist (UM) coverage pursuant to Wis. Stat. § 62.67, the City should be classified as "[a]n insurer writing .policies" under Wis. Stat. § 632.32(4m)(a) 1, and therefore, should be required to offer underinsured motorist coverage to its employees. With respect to American Family, the Van Erdens contend that the reducing clauses contained in both policies issued separately to Steven and Cherie Van Erden were ambiguous. The Van Erdens also claim that the UIM policy issued to Steven was illusory because, as a result of an anti-stacking provision, they would never receive any UIM benefits under Steven's policy. We disagree with each contention.

¶ 3. Because the City is self-insured, it is not "[a]n insurer writing policies" in accordance with Wis. Stat. § 632.32(4m)(a)l. Moreover, Wis. Stat. § 62.67, which applies specifically to cities that are self-insured, such as the City of Milwaukee, only applies to UM coverage. We assume that if the legislature had intended to require that the City offer UIM coverage to its employees, it would have either expressly stated so in § 62.67, amended § 62.67 to include UIM coverage when it amended § 632.32 to include subsection (4m), or passed a new statute requiring UIM coverage for City employees. We cannot usurp the legislature's function.

¶ 4. Additionally, because the reducing clauses comply with Wis. Stat. § 632.32(5)(i) and clearly set forth the limits under both policies, we conclude that they are not ambiguous. Finally, because the anti-stacking clause complies with Wis. Stat. § 632.32(5) (f) and clearly sets forth the limits for similar coverage suffered by a person in any one accident, we conclude that the coverage is not illusory. Accordingly, the trial court is affirmed.

I. Background.

¶ 5. On November 22, 1998, while operating a Milwaukee Police Department squad car, Steven Van Erden, a Milwaukee Police Department officer, was struck broadside by a vehicle driven by Joseph Sobczak. Officer Van Erden suffered serious injuries. Through Badger Mutual Insurance Company, Sobczak carried an automobile liability insurance policy with liability limits of $25,000. Badger paid the full limits of the policy to Officer Van Erden and his wife, Cherie. The Van Erdens were also paid $159,496.33 in worker's compensation coverage by the City.

¶ 6. The Van Erdens then filed a claim for UIM coverage with their own insurance carrier, American Family. American Family had issued separate policies of insurance to Steven and Cherie. Both policies contained identical reducing and anti-stacking provisions. Based on the terms of the policies, American Family paid the Van Erdens $65,503.67 - the difference between the largest amount of UIM coverage under either policy ($250,000) and the aggregate payments made by Badger on behalf of Sobczak and the City as Officer Van Erden's worker's compensation carrier ($184,496.33).

¶ 7. On November 16, 2001, the Van Erdens filed a declaratory judgment action against the City and American Family. All parties moved for summary judgment. The trial court granted summary judgment in favor of the City and American Family.

II. Analysis.

¶ 8. This appeal involves issues decided pursuant to summary judgment. We apply the same summary judgment methodology as the trial court. Preloznik v. City of Madison, 113 Wis. 2d 112, 115-16, 334 N.W.2d 580 (Ct. App. 1983). Thus, our review of the circuit court's decision to grant summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-16, 401 N.W.2d 816 (1987).

¶ 9. Summary judgment must be granted if the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. Rule 802.08(2). We must first determine whether the complaint states a claim. Green Spring Farms, 136 Wis. 2d at 315. If the plaintiff has stated a claim and the pleadings show the existence of factual issues, then we must examine whether the moving party has presented a defense that would defeat the claim. Preloznik, 113 Wis. 2d at 116. If the defendant has made a prima facie case for summary judgment, the court examines the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to determine whether a genuine issue exists as to any material fact, or whether reasonable conflicting inferences may be drawn from undisputed facts, therefore requiring a trial. Green Spring Farms, 136 Wis. 2d at 315.

¶ 10. We first confine our analysis within the summary judgment analysis to one issue: whether the City, which is a self-insured entity, is "[a]n insurer writing policies" under Wis. Stat. § 632.32(4m)(a)l, and, therefore, required to offer UIM coverage to its employees. Resolution of this issue involves the interpretation of both § 632.32(4m)(a)l and Wis. Stat. § 62.67.

¶ 11. "The interpretation and application of a statute present questions of law which we review de novo." State v. Volk, 2002 WI App 274, ¶ 34, 258 Wis. 2d 584, 654 N.W.2d 24. Thus, our interpretation of a statute begins with the language of the statute, and if the language is plain and unambiguous, we will apply it without further inquiry into extrinsic interpretive aids, see State v. T.J. Int'l, Inc., 2001 WI 76, ¶ 20, 244 Wis. 2d 481, 628 N.W.2d 774, because if the language employed is clear and unambiguous, it is conclusive of legislative intent, see Cemetery Servs., Inc. v. Dep't of Regulation & Licensing, 221 Wis. 2d 817, 825, 586 N.W.2d 191 (Ct. App. 1998). However, "[i]f statutory language is ambiguous, that is, 'if reasonable minds could differ as to its meaning,' we look to the scope, history, context, subject matter, and purpose of the statute to help establish its proper interpretation." T.J., 2001 WI 76 at ¶ 20 (citations omitted).

¶ 12. Wisconsin Stat. § 632.32(4m)(a)l provides:

An insurer writing policies that insure with respect to a motor vehicle registered or principally garaged in this state against loss resulting from liability imposed by law for bodily injury or death suffered by a person arising out of the ownership, maintenance or use of a motor vehicle shall provide to one insured under each such insurance policy that goes into effect after October 1,1995, that is written by the insurer and that does not include underinsured motorist coverage written notice of the availability of underinsured motorist coverage, including a brief description of the coverage. An insurer is required to provide the notice required under this subdivision only one time and in conjunction with the delivery of the policy.

(Emphasis added.) Wisconsin Stat. § 62.67 states:

A 1st class city shall provide uninsured motorist motor vehicle liability insurance coverage for motor vehicles owned by the city and operated by city employees in the course of employment. The coverage required by this section shall have at least the limits prescribed for uninsured motorist coverage under s. 632.32 (4) (a).

(Emphasis added.)

¶ 13. Despite the fact that Wis. Stat. § 62.67 deals exclusively with UM coverage, the Van Erdens argue that, as a result of its obligation to provide UM liability coverage under § 62.67, the City should be considered "[a]n insurer writing policies" under Wis. Stat. § 632.32(4m)(a)l, and, therefore, has an obligation to offer UIM to its employees pursuant to § 632.32(4m)(a)l. However, the argument as to whether a self-insured entity is "[a]n insurer writing policies" under § 632.32 has already been settled by this court in Classified Insurance Co. v. Budget Rent-A-Car of Wisconsin, Inc., 186 Wis. 2d 478, 521 N.W.2d 177 (Ct. App. 1994). In Classified, an employee of Budget Rent-A-Car was driving a Budget car when she was involved in a collision with an uninsured motorist. See id. at 480. Budget was self-insured under Wis. Stat. § 344.16. See id. The employee's insurer sued Budget for indemnification/contribution, but the trial court granted summary judgment to Budget, concluding that Budget, as a self-insured entity, was not required to provide uninsured motorist coverage for occupants of its cars:

We conclude that § 632.32(4)(a), Stats., is inapplicable to Budget as a self-insured entity under § 344.16, Stats. We reach this conclusion based on our determination that § 632.32(4)(a) applies only to policies of insurance issued or delivered in Wisconsin. Budget is not an insurance company and has not issued a policy of insurance. See § 600.03(25), Stats, (defining insurance), § 600.03(27), Stats. (defining insurer), and § 600.03(35), Stats, (defining insurance policy). By merely obtaining a certificate of self-insurance pursuant to ch. 344, Budget did not transform itself into an insurance entity capable of issuing an insurance policy on behalf of the operators of its vehicles.

Id. at 483-84.

¶ 14. We also note that language in our recent decision of Prophet v. Enterprise Rent-A-Car Co., 2000 WI App 171, 238 Wis. 2d 150, 617 N.W.2d 225, applied the same logic to a similar situation involving UIM coverage. We concluded: "Classified still is persuasive authority for the proposition that, absent a specific statutory duty, self-insurers are not required to provide [uninsured motorist] or [underinsured motorist] coverage." Id. at ¶ 17 (emphasis and brackets in original) (citation omitted).

¶ 15. Thus, Wis. Stat. § 632.32(4)(a) and (4m)(a) are "inapplicable to ... a self-insured entity." See Classified, 186 Wis. 2d at 483. Accordingly, we conclude that although Wis. Stat. § 62.67 requires the City to provide UM coverage to its employees, § 62.67 does not transmute the City into "[a]n insurer writing policies" under § 632.32(4m)(a)l. Rather, because the City is a self-insured entity, § 632.32(4m)(a) 1 is inapplicable.

¶ 16. Moreover, if the legislature had intended to open the door wider and require the City to offer UIM coverage, it undoubtedly would have so provided by either amending Wis. Stat. § 62.67 or adopting a similar statute dealing with UIM coverage. In the absence of such action on behalf of the legislature, it is clear that neither Wis. Stat. §§ 632.32(4m)(a) 1 nor 62.67 require the City to offer UIM coverage to its employees.

¶ 17. Next, we must determine whether the reducing clause contained in each of the separate policies issued to Cherie and Steven Van Erden is ambiguous. The Van Erdens claim the clause is ambiguous because it does not clearly indicate that Steven's total UIM coverage ($250,000) would be reduced by his worker's compensation benefits ($159,496.33) and the amount paid by Sobczak's liability insurance carrier ($25,000). The clause at issue was contained in the two policies issued to the Van Erdens and states:

The limits of this coverage will be reduced by:

1. A payment made or amount payable by or on behalf of any person or organization which may be legally liable, or under any collectible auto liability insurance, for loss caused by an accident with an underinsured motor vehicle.
2. A payment under the Liability coverage of this policy.
3. A payment made or any amount payable because of bodily injury under any worker's compensation or disability benefits law or any similar law.

(Emphasis in original.)

¶ 18. "The construction or interpretation of an insurance policy presents a question of law to which we apply de novo review." Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, ¶ 50, 255 Wis. 2d 61, 647 N.W.2d 223.

We first must determine whether the insurance contract is ambiguous. Words or phrases of an insurance contract are ambiguous if they are susceptible to more than one reasonable construction. Unambiguous language in an insurance contract must not be rewritten by construction. However if the policy is ambiguous, we construe such ambiguities against the insurer. To construe ambiguous language in an insurance policy, we attempt to determine what a reasonable person in the position of the insured would have understood the words of the policy to mean. We are conscious that our interpretation of ambiguous language in an insurance policy should advance the insured's reasonable expectations of coverage.

Id. at ¶ 51 (citations omitted).

¶ 19. We conclude that the reducing clause contained in both of the Van Erdens' policies complies with the explicit requirements for such clauses contained in Wis. Stat. § 632.32(5)(i), which states:

A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
2. Amounts paid or payable under any worker's compensation law.
3. Amounts paid or payable under any disability benefits laws.

In fact, the reducing clause in question directly mirrors the language of § 632.32(5)(i).

¶ 20. Furthermore, the reducing clause used by American Family complies with the public policy of the legislature expressed in adopting Wis. Stat. § 632.32(5)(i). See State v. Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991) ("While legislative history cannot be used to demonstrate that a statute unambiguous on its face is ambiguous, there is no converse rule that statutory history cannot be used to reinforce and demonstrate that a statute plain on its face, when viewed historically, is indeed unambiguous."). Legislative Memorandum 96-25 to 1995 Act 21, which amended § 632.32 to add subsections (4m) and (5)(f) through (5)0), states that § 632.32(5)0):

permits motor vehicle insurance policies to reduce the limit that is payable for uninsured or underinsured motorist coverage for bodily injury or death by payments received from other sources, such as the amounts paid by a person who is legally responsible for the bodily injury or death . .. [or] the amounts paid or payable under the worker's compensation law.

¶ 21. The Van Erdens' policies clearly set forth that their UIM coverage would be fixed at a level of recovery that would be arrived at by combining payments made from the listed sources. Thus, under Badger Mutual and the declared public policy of the legislature, because we have concluded that the reducing clause is unambiguous in the context of the whole policy, our inquiry is at an end. See Badger Mutual, 2002 WI 98 at ¶¶ 41-46.

¶ 22. Finally, the Van Erdens claim that their UIM coverage is illusory. They allege that they would never use the UIM coverage under Steven's policy because while both policies were in effect, under the anti-stacking provision contained in each policy, they would always exhaust the higher UIM coverage limit contained in Cherie's policy. Thus, they conclude that the UIM coverage purchased under Steven's policy is illusory because no benefits would ever be paid.

¶ 23. The anti-stacking provision contained in each of the Van Erdens' policies states:

Two or More Cars Insured. The total limit of our liability under all policies issued to you by us shall not exceed the highest limit of liability under one policy.

(Emphasis in original.) This provision is unambiguous and complies with Wis. Stat. § 632.32(5)(f), which states:

A policy may provide that regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid the limits for any coverage under the policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limit of insurance coverage available for bodily injury or death suffered by a person in any one accident.

¶ 24. The anti-stacking provision in question also comports with the legislative policy behind Wis. Stat. § 632.32(5) (f) contained in the Legislative Memorandum 96-25 to 1995 Act 21: "Section 632.32 (5) (f), Stats., as created by the Act, permits motor vehicle insurance policies to prohibit 'stacking' of uninsured or underinsured motorist coverage ... ." (Emphasis in original.) Therefore, because the anti-stacking provision contained in the Van Erdens' policies traces the language of § 632.32(5)(f), the UIM coverage under Steven's policy is not illusory. See Gragg v. American Family Mut. Ins. Co., 2001 WI App 272, ¶ 11, 248 Wis. 2d 735, 637 N.W.2d 477 (stating that a policy that tracks the language of the anti-stacking statute is unambiguous, and thus, we need not inquire whether the policy is illusory).

¶ 25. Based upon the foregoing reasons, the trial court's orders are affirmed.

By the Court. — Orders affirmed.

SCHUDSON, J.

¶ 26. (concurring in part; dissenting in part). I join in the majority's analysis and conclusion affirming the dismissal of the Van Erdens' action against American Family Insurance. I depart, however, from the majority's decision affirming the dismissal of their action against the City of Milwaukee.

¶ 27. The pivot point is certain. The parties agree that if the City was "[a]n insurer writing policies," see Wis. Stat. § 632.32(4m)(a)l, then the City was required to offer underinsured motorist coverage; if not, the City was not required to do so. Clearly, Wisconsin case law, statutes, and common sense establish that the City was acting as "[a]n insurer writing policies" and, therefore, was required to offer underinsured motorist coverage to Officer Van Erden.

¶ 28. In Millers National Insurance Co. v. City of Milwaukee, 184 Wis. 2d 155, 435 N.W.2d 473 (1994), the supreme court, determining whether the City of Milwaukee was required to provide uninsured motorist coverage to one of its police officers, used a sound, common sense approach: "The City may purchase third-party insurance, it may form a municipal insurance mutual. .., it may rely upon self-insurance, or any other lawful means to provide the UM insurance coverage. However, regardless of which means the City chooses to provide insurance, the obligation is the same." Id. at 166 (emphasis added). The supreme court concluded that, "[b]y electing to self insure," the City had "effectively placed itself in the insurance business" and, therefore, was "responsible for the same liabilities that would attach to third-party insurers covering that same risk." Id. at 167.

¶ 29. Quite reasonably, therefore, the Van Erdens argue that the City, by creating what it calls an "Uninsured Motorist Self-Insurance Plan" as its means of regulating payment of UM benefits, has become an "[i]nsurer writing policies." After all, they contend, while not denominated a "policy," the City's "Plan" carries the attributes of an insurance policy:

The "Plan"... regulates how, when and to whom the City will pay damages; defines who is covered, an uninsured vehicle and motor vehicle accident; sets the City's limits of liability; regulates the effect of other insurance on the City's obligation to pay; sets forth the City's right to maintain a [Wis. Stat. § 102.29 third party liability claim]; regulates when and how disputes over payments would be arbitrated; provides the City a right of subrogation; [and] provides the applicable law, forum and severability of the "Plan's" provisions in the event of dispute.

(Citations omitted.) Thus, the Van Erdens maintain, the City should not be allowed to escape its obligation to its employees simply by mere artifice. I agree.

¶ 30. Millers Nat'l and common sense provide more than enough to sustain the Van Erdens' claim. But our statutes provide considerably more support. Among others, the Van Erdens invoke: (1) Wis. Stat. § 600.03(4), defining a" 'blanket insurance policy'" as "a group policy covering unscheduled classes of persons, with the persons insured to be determined by definition of the class with or without designation of the persons covered but without any individual underwriting"; and (2) Wis. Stat. § 600.03(23), defining "[a] 'group insurance policy'" as "a policy covering a group of persons, and issued to a policyholder in behalf of the group for the benefit of group members who are selected under procedures defined in the policy or agreements collateral thereto, with or without members of their families or dependents." The City's "Plan," the Van Erdens contend, may constitute a "policy" under either or both of these provisions. Significantly, the City offers no response to their arguments based on these statutes. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments deemed admitted).

¶ 31. And perhaps most critically, Wis. Stat. § 600.03(35) defines an insurance " '[p]olicy'" as "any document other than a group certificate used to prescribe in writing the terms of an insurance contract, including endorsements and riders and service contracts issued by motor clubs." The City, however, contends that its "Plan" is not a "policy" under the statute because it was not created through offer and acceptance, and with consideration. In their amicus curiae brief, however, the Milwaukee Police Association (MPA) and the Milwaukee Police Supervisors Organization (MPSO) correctly counter:

The contractual elements of offer, acceptance, and consideration are all present. The City offers the UM Plan to MPA and MPSO members because it is part of the package of benefits for City employees who drive city-owned vehicles in the course of their employment. Potential City employees accept this offer when they accept employment with the City. Employees give the City consideration for the insurance contract by working for the City. Also, if the City did not provide this benefit, City employees' unions might bargain for increases in other types of compensation, such as salary. By providing these insurance benefits, consideration flows from the City to the employees.

Thus, the City's "Plan" is indeed a " 'policy'" — a "document . . . used to prescribe in writing the terms of an insurance contract." See Wis. Stat. § 600.03(35).

¶ 32. Failing to even mention the supreme court's decision in Millers Nat'l, the majority primarily relies on this court's decisions in Classified Insurance Co. v. Budget Rent-A-Car of Wisconsin, Inc., 186 Wis. 2d 478, 521 N.W.2d 177 (Ct. App. 1994), and Prophet v. Enterprise Rent-A-Car Co., 2000 WI App 171, 238 Wis. 2d 150, 617 N.W.2d 225. Neither case, however, offers much guidance here and, certainly, neither case controls. Evolving from significantly different circumstances, both cases addressed whether Wisconsin's statutes required that out-of-state rental car agencies, holding certificates of self-insurance, provide uninsured motorist coverage. See. Classified, 186 Wis. 2d at 483-84; Prophet, 2000 WI App 171 at ¶ 18. Here, however, we are considering a completely different issue: whether a self-insured in-state party's "Plan" constitutes a "policy" triggering its statutory obligation to offer UIM coverage to its employees.

¶ 33. As the supreme court declared: "The fact that the City is self-insured does not diminish its obligation .... In this context, self-insurance is considered another form of insurance.... [T]he City has effectively placed itself in the insurance business." Millers Nat'l, 184 Wis. 2d at 167. The City's "Plan" walks and squawks like a "policy" duck. Swimming in the insurance pond, the City is "[a]n insurer writing policies." Thus, the City wás required to meet its corresponding obligation to offer UIM coverage to Officer Van Erden under Wis. Stat. § 632.32(4m)(a) 1. Accordingly, on this aspect of the appeal, I respectfully dissent.

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

       The position of the concurring opinion is ironic in light of the fact that Prophet v. Enterprise Rent-A-Car Co., 2000 WI App 171, 238 Wis. 2d 150, 617 N.W.2d 225, was authored by Judge Schudson with the above-quoted language.

       After a legislative change authorized reducing clauses, case law regarding the validity of reducing clauses has gradually been developed. In Sukala v. Heritage Mutual Insurance Co., 2000 WI App 266, ¶¶ 16-19, 240 Wis. 2d 65, 622 N.W.2d 457, we held that a reducing clause that complied with Wis. Stat. § 632.32(5)(i) was valid and unambiguous. The supreme court, in Dowhower v. West Bend Mutual Insurance Co., 2000 WI 73, 236 Wis. 2d 113, 613 N.W.2d 557 (Dowhower I), decided that it was not enough for a reducing clause to comply with Wis. Stat. § 632.32(5)(i). The Dowhower I court held that reducing clauses in an UIM policy are valid so long as "the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources." Id. at ¶ 33.
      Next, our supreme court applied the Dowhower test in Taylor v. Greatway Insurance Co., 2001 WI 93, 245 Wis. 2d 134, 628 N.W.2d 916. In doing so, our supreme court interpreted what appear to be reducing clauses identical to the reducing clauses at issue in the instant case. Further, the American Family insurance policies in question in Taylor appear to be indistinguishable from the instant policies (all appear to be standard American Family automobile insurance policies). After carefully examining the total policies, including the declarations pages, the coverage limits, the UIM coverage limits, the instructions, and the UIM endorsements in Taylor, our supreme court stated: "We conclude that the language in each of American Family's policies at issue satisfies the requirements of Dowhower [I]. Each policy clearly sets forth that Taylor purchased a fixed level of UIM recovery that is arrived at by combining payments from all sources .. .." Id. at ¶ 25.
      In Badger Mutual Insurance Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223, the supreme court reaffirmed the Dowhower I requirement that a reducing clause's effect must be "crystal clear in the context of the whole policy." Id. at ¶ 46. In Dowhower v. West Bend Mutual Insurance Co., 2003 WI App 23, 260 Wis. 2d 192, 659 N.W.2d 57 (Dowhower ID, this court ultimately found the policy language in that case to be ambiguous. Finally, in Gohde v. MSI Insurance Co., 2003 WI App 69, 261 Wis. 2d 710, 661 N.W.2d 470, this court found the Gohdes' policies' provisions inconsistent and ambiguous, thus resulting in a finding that the reducing clauses were unenforceable.
      Although the Van Erdens correctly assert that the determination of the potential ambiguity of an UIM reducing clause requires consideration of the entire policy, they fail to demonstrate how the American Family policies in question here are any different from the American Family policies approved in Taylor. Thus, they fail to satisfy the second part of the analysis; i.e., whether the reducing clause is ambiguous in light of the entire policy, see Badger, 2002 WI 98 at ¶¶ 46 and 61. Therefore, we conclude, as we must, that like the reducing clauses in Taylor, the reducing clauses contained in the Van Erdens' policies are unambiguous within the context of the whole policy.

       Cherie Van Erden’s policy contained UIM limits of $250,000 per person and $500,000 per accident, while Steven's limits were $100,000 per person and $300,000 per accident.


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

      No. 03-0587-D.

      Decided May 5, 2003.

    2003 WI 35
    (Also reported in 660 N.W.2d 665.)
   The Court entered the following order on this date:

Attorney Robert L. Taylor has filed a petition for consensual license revocation under SCR 22.19(3). He was admitted to practice law in Wisconsin in 1979 but his license was revoked in 1987 and has not been reinstated.

The Office of Lawyer Regulation (OLR) is currently investigating Attorney Taylor in four matters, all involving his pre-1987 revocation conduct. One of the matters involves a 1990 federal criminal conviction of conspiracy to defraud by misapplying funds and embezzlement from a federal credit union. The other three matters involve Attorney Taylor's representation of three clients during a 1985 period during which his license had been suspended for failure to comply with continuing legal education requirements. In addition, OLR is investigating Attorney Taylor in these three matters for allegations involving charging an illegal or clearly excessive fee, neglect of a legal matter, failure to promptly pay or deliver to the client funds in the attorney's possession to which the client was entitled, and failure to return unearned fees. In his petition, Attorney Taylor acknowledges that he cannot successfully defend himself against these allegations.

OLR has responded and recommends that the petition be granted. Both OLR and Attorney Taylor request that the revocation be made retroactive to December 14, 1992, the date on which Attorney Taylor could have first sought reinstatement from the 1987 revocation. They submit that it would be unfair to prospectively revoke Attorney Taylor's license for conduct that occurred over 15 years ago and prior to the 1987 revocation.

IT IS ORDERED that the petition for consensual license revocation of Attorney Robert L. Taylor is granted. Retroactive revocations are not a typical sanction but it is appropriate under these unusual circumstances. The revocation of his license to practice law in Wisconsin shall be effective December 14, 1992. To the extent he has not already done so, Attorney Taylor must comply with SCR 22.26 relating to activities following license revocation.