author: JON P. WILCOX, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE WILLIAM A. BABLITCH, J.

text:
    State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Philip M. Canon, Defendant-Respondent.
    Supreme Court

      No. 98-3519-CR.

      Oral argument September 7, 2000.

    Decided February 21, 2001.

    2001 WI 11
    (Also reported in 622 N.W.2d 270.)

      For the plaintiff-appellant-petitioner the cause was argued by William L. Gansner, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the defendant-respondent there was a brief by Alan D. Eisenberg and Law Offices of Alan D. Eisen-berg, Milwaukee, and oral argument by Alan D. Eisenberg.

   JON P. WILCOX, J.

¶ 1. The question presented in this case is whether the doctrine of issue preclusion bars the State from prosecuting a defendant under Wis. Stat. § 946.31(l)(a) (1997-98) for allegedly committing perjury at a criminal trial where the defendant was tried and acquitted on a single issue, but where the State claims to have discovered new evidence suggesting that the defendant falsely testified regarding that issue. We conclude that it does not.

¶ 2. The State charged the defendant, Philip M. Canon (Canon), with perjury under Wis. Stat. § 946.31(l)(a) for lying at his criminal traffic trial on the issue of whether he was driving his pickup truck immediately prior to being arrested for drunk driving. Canon moved to dismiss the complaint on the grounds of "collateral estoppel," or issue preclusion, and the Circuit Court for Taylor County, Judge Douglas T. Fox, presiding, granted Canon's motion. The court of appeals, in a split decision, affirmed the order of the circuit court.

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¶ 3. The facts are undisputed for the purposes of this review. The State charged Canon with intentionally making a false statement under oath at his criminal traffic trial for operating a vehicle while intoxicated. That criminal traffic trial in March of 1998 arose from an incident on July 4, 1996, when Canon and his companion, Cary S. Pergande, were travelling through Taylor County in Canon's pickup truck and they stopped to urinate alongside the road. A Taylor County police officer approached the two men to inquire whether they were having difficulty with Canon's truck. After talking with them, the officer concluded that Canon had been drinking and driving. As a result, the State charged Canon with operating a vehicle while intoxicated, operating after revocation, and driving with a prohibited blood alcohol level. At the subsequent criminal traffic trial, the sole issue was whether Canon had been the driver of the truck. Canon testified that he had not been driving his pickup truck, implicating Pergande instead. The jury acquitted Canon of all charges.

¶ 4. One month after the trial, a man named Antonio Que Sada sent a letter to the Taylor County authorities alleging that Canon had "boast[ed] about their recent trip up north" and that Canon told him that he, not Pergande, had been driving his truck at the time. The State then filed the present complaint charging Canon with perjury. Canon countered with a motion to dismiss, contending that the charge was barred by issue preclusion. The circuit court reasoned that because the sole contested issue at the criminal traffic trial was whether Canon had been driving and the acquittal by the jury established beyond a reasonable doubt that Canon had not been driving, the State was barred by Ashe v. Swenson, 397 U.S. 436 (1970), from charging Canon with lying about whether he had been driving his truck. The circuit court acknowledged that in Ashe, the United States Supreme Court recognized the doctrine of issue preclusion as one of the protections in the Double Jeopardy Clause, which prevents the State from trying a defendant twice for the same offense. Id. at 443. Therefore, the circuit court granted Canon's motion to dismiss the criminal complaint on the grounds of issue preclusion. The State appealed the circuit court's dismissal.

¶ 5. In a published opinion, the court of appeals concluded that because who was driving on July 4, 1996, had "necessarily and actually been determined in a previous litigation," the doctrine of issue preclusion applied; to allow the State to proceed would violate the double jeopardy clauses of the federal and Wisconsin constitutions. State v. Canon, 230 Wis. 2d 512, 522, 602 N.W.2d 316 (Ct. App. 1999). The State's argument that a fraudulently obtained judgment "does not carry its full preclusive weight" was rejected by the court of appeals as incongruous with Ashe. Id. at 520. Consequently, the court of appeals affirmed the circuit court's order dismissing the State's complaint. Id. at 523.

¶ 6. This court subsequently granted the State's petition for review.

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¶ 7. The application of issue preclusion to a set of facts is a question of law, which this court reviews without deference to the lower courts. Lindas v. Cady, 183 Wis. 2d 547, 552, 515 N.W.2d 458 (1994). This case involves competing policies, which must be balanced in order to preserve the central principle that undergirds the Double Jeopardy Clause on one hand and the integrity of our judicial system on the other hand. Therefore, before applying the law to the facts in the present case, it is appropriate to examine these competing policies.

¶ 8. The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that no "person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const, amend. V. This clause prevents a prosecutor from harassing a criminal defendant with multiple prosecutions. The United States Supreme Court recognized this central principle when it wrote that:

The underlying idea [of the double jeopardy prohibition], one that is deéply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88 (1957). Based on the above principle, this court has recognized three constitutional protections provided by the Double Jeopardy Clause: (1) protection against a subsequent prosecution for the same offense after acquittal; (2) protection against a subsequent prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. State v. Vassos, 218 Wis. 2d 330, 341, 579 N.W.2d 35 (1998). Consequently, each double jeopardy claim necessitates a fact-specific analysis to determine if any of these protections are implicated.

¶ 9. On the other hand, the crime of perjury erodes the integrity of our judicial system. As the United States Supreme Court declared in United States v. Mandujano, 425 U.S. 564, 576 (1976), "[pjerjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative." Because perjury is an egregious offense, the Wisconsin legislature enacted Wis. Stat. § 946.31(l)(a) to punish lying in court, making it a Class D felony. Criminal defendants must not be allowed to stretch the Double Jeopardy Clause in order to shelter themselves from perjury prosecutions. Such a result would undermine the intent of the legislature and engender more untruthful testimony in court. See ABF Freight Sys. v. NLRB, 510 U.S. 317, 323 (1994) ("False testimony in a formal proceeding is intolerable. We must neither reward nor condone such a 'flagrant affront' to the truth-seeking function of adversary proceedings."). To allow the crime of perjury to go unchecked would diminish the truth-seeking function of our judicial system. As the United States Supreme Court noted, "[a]ll perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. . . ,[I]t cannot be denied that it tends to defeat the sole ultimate objective of a trial." In re Michael, 326 U.S. 224, 227 (1945).

¶ 10. Echoing the United States Supreme Court, we previously have declared:

[i]t is fundamental to the American system of jurisprudence that a witness testify truthfully. Without truthful testimony, it is nigh onto impossible to achieve the primary goal of our judicial system, justice. It is because the search for the truth is central to our legal proceedings that we require each witness to take an oath of truthfulness prior to testifying.

State v. Rivest, 106 Wis. 2d 406, 416-17, 316 N.W.2d 395 (1982). The oath that each witness is required to take prior to testifying in court is set forth in Wis. Stat. § 906.03. We have observed that the purpose of this oath "is to impress the person who takes the oath with a due sense of obligation, so as to secure the purity and truth of his or her words under the influence of the oath's sanctity." Kellner v. Christian, 197 Wis. 2d 183, 192, 539 N.W.2d 685 (1995). Perjury, by definition, violates this solemn oath. Consequently, we need to balance the State's efforts to eradicate perjury from our judicial system with the fundamental principle that underlies the Double Jeopardy Clause.

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¶ 11. Canon urges this court to protect him from the consequences of his alleged offense by ruling that Ashe bars the State from prosecuting him for any perjury he may have committed at his criminal traffic trial. In Ashe, three or four masked men broke into a dwelling and robbed six poker players. 397 U.S. at 437. After the robbery, three men were arrested nearby and a fourth man, Ashe, was arrested some distance away. Id. Ashe was charged with robbing one of the six poker players, but he was acquitted when some of the witnesses were unclear whether there was a fourth man, and those witnesses that thought there was a fourth man were unsure that he was Ashe. Id. at 438. Six weeks after his acquittal, Ashe was brought to trial again, this time for robbing a second player. Id. at 439. At the second trial, the same witnesses gave much stronger testimony and the state "refined its case.. .by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative." Id. at 440. This time, the jury found Ashe guilty and he was sentenced to 35 years in the state penitentiary. Id.

¶ 12. In reviewing Ashe's conviction, the United States Supreme Court discussed the doctrine of issue preclusion. Id. at 443-47. The Court recognized the doctrine as part of the Fifth Amendment's guarantee against double jeopardy, explaining that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 442-43. The Court recounted that it previously had not recognized issue preclusion because under common law, "offense categories were relatively few and distinct" and "[a] single course of criminal conduct was likely to yield but a single offense." Id. at 445 n.10. But, the Court noted, "with the advent of specificity in draftsmanship and the extraordinary proliferation of overlapping and related statutory offenses, it became possible for prosecutors to spin out a startlingly numerous series of offenses from a single alleged criminal transaction." Id. Hence, the Court determined that the civil doctrine of issue preclusion could be applied to combat the consequences of the manifold increase in statutory offenses. Id. at 443-44.

¶ 13. Before analyzing the particular facts in Ashe, the Court cautioned that issue preclusion "is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." Id. at 444. The Court then rejected the state's attempt to prosecute Ashe for the same robbery because the issue to be determined was whether Ashe was one of the robbers, which already had been decided at his previous criminal trial. Id. at 446. Moreover, the Court concluded that the state "ha[d] frankly conceded that following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution." Id. at 447. Thus, issue preclusion, as explained by the United States Supreme Court, is a doctrine to prevent prosecutorial misconduct and give finality to judicial determinations made in one criminal transaction; it is not a technicality that allows a criminal defendant to escape the consequences of false testimony. That is, issue preclusion prevents prosecutors from throwing a smorgasbord of charges at a criminal defendant, all stemming from a single criminal transaction, and hoping something will stick after several test runs. See Bolden v. Warden, West Tenn. High Sec. Fac., 194 F.3d 579, 585 n.20 (5th Cir. 1999) (noting that "[a] primary concern of the Supreme Court in Ashe was the prosecution's use of the first trial as a 'dry run' for the second prosecution").

¶ 14. Turning to the case at hand, we find it clearly distinguishable from Ashe. In Ashe, the defendant was being tried again based on the testimony of the same witnesses for the same criminal transaction. By contrast, in the present case, Canon is not being charged for anything that he allegedly did on July 4, 1996, on a Taylor County highway. Instead, he is being charged with what he may have done in March of 1998 in a Taylor County courtroom: he allegedly lied under oath about a material fact. The perjury charge stems from a criminal transaction distinct from the operating while intoxicated, operating after revocation, and driving with a prohibited blood alcohol level charges. See Ashe 397 U.S. at 453-54 (Brennan, J. concurring) (asserting that "same offence" is best defined by whether the crime arose from "a single criminal act, occurrence, episode, or transaction"). Furthermore, new evidence — the letter from Que Sada — has come to light in the present case, which was allegedly not available prior to Canon's criminal traffic trial. This case does not raise the specter of a wayward prosecutor charging a criminal defendant with a startling number of offenses for the same criminal transaction, a scenario the Ashe Court emphatically condemned. See id. at 445 n.10.

¶ 15. Canon urges this court to affirm the decision of the court of appeals because the same issue for which he was acquitted in his criminal traffic trial — who was driving the pickup truck on July 4, 1996 — necessarily will be determined at his perjury trial. We do not read Ashe so broadly to give criminal defendants an unfettered prerogative to perjure themselves at a criminal trial where there is a single issue. Such a ruling would materially weaken our judicial system's primary truth-finding purpose. See Brogan v. United States, 522 U.S. 398, 402 (1998) (expressing that "[w]e cannot imagine how it could be true that falsely denying guilt in a Government investigation does not pervert a governmental function"). As Chief Judge R. Thomas Cane noted in his court of appeals dissent, "[t]o accept Canon's argument would be to allow the concept of [issue preclusion], which is designed to protect an accused from prosecutorial harassment, to be used as a shield to insulate a defendant from his own wrongdoing in fraudulently obtaining a favorable result in a criminal case." State v. Canon, 230 Wis. 2d at 527. We agree. Analyzing the facts in this case with realism and rationality leads us to conclude that the State may proceed with its complaint in order to address the problem of perjury in our judicial system. Thus, we reject Canon's argument.

¶ 16. Other courts likewise have observed that Ashe does not give defendants a license to perjure themselves. In State v. Redinger, 312 A.2d 129 (N.J. 1973), the New Jersey Supreme Court reached a similar result. There, two defendants were tried separately for the same reckless driving offense. Id. at 130. The first defendant, whose license previously had been revoked for traffic offenses, was acquitted on the charge of reckless driving based on his defense that he was not driving at the time of the offense. Id. at 130-31. The second defendant, who did not have a record, subsequently was charged with reckless driving and he pled guilty to the offense. Id. at 131. The trial judge "stated that he wanted the story under oath" and the second defendant testified — in accordance with the testimony of the first defendant — that he was driving at the time of the incident. Id. The state, however, had two witnesses who contradicted the testimony of the two defendants. Id. The two witnesses stated that the first defendant, not the second defendant, was driving at the time of the incident. Id. Consequently, the state charged the second defendant with perjury. Id.

¶ 17. In its reasoning, the New Jersey Supreme Court scrutinized Ashe and asserted that there, "the criminal episode was single and since. [Ashe] had been adjudicated not a party to [the criminal episode] at the first trial, he could not be subjected to a contrary verdict at another trial." Id. at 134. The court concluded:

[t]he Fifth Amendment prohibition against twice putting a person in jeopardy "for the same offense" does not apply where the "offenses" involved are as different as a substantive crime on the one hand, and perjury (or other related charge) committed at the trial of the charge of commission of that crime, on the other.

Id. Therefore, the New Jersey Supreme Court found that Ashe would not bar the perjury prosecution.

¶ 18. The Louisiana Supreme Court followed this reasoning in State v. Bolden, 639 So. 2d 721, 726 (La. 1994), and adopted a newly discovered evidence exception for such situations. There,' the court ruled that the state may proceed with a perjury prosecution on an issue adjudicated at a previous trial if the prosecutor presents newly discovered evidence. Id. The Fifth Circuit approved of this exception in Bolden's subsequent federal habeas proceeding because it balances "the concern that the prosecution will get a 'second shot' at the defendant with the concern that the defendant will have an 'uncontrollable license' to testify falsely at the first trial, without fear of repercussions." Bolden, 194 F.3d at 585 n.20.

¶ 19. Finally, the Minnesota Supreme Court noted this newly discovered evidence exception in a perjury case where the defendant was acquitted of a speeding charge but subsequently convicted of committing perjury at his speeding trial. The court observed that the newly discovered evidence exception was one of five different possibilities for resolving the difficult question of "when acquittal of a crime will bar the defendant's subsequent prosecution for perjury for testimony given in his own behalf at trial." State v. DeSchepper, 231 N.W.2d 294, 297 (Minn. 1975). The DeSchepper court further recognized that there is a:

respectable body of authority which concludes that the concepts of res judicata and collateral estoppel do not apply to a judgment procured by fraud or perjury. Some suggest that Ashe does not require a state to give collateral-estoppel effect to a verdict of acquittal if the defendant committed perjury to obtain it.

Id. at 299. The court, however, did not have to rule on whether the newly discovered evidence exception applied in the case before it because the jury could have found the defendant's testimony unbelievable and still acquitted him of the speeding charge. Id. at 303. As a result, the court upheld the perjury conviction. Id.

¶ 20. Although there are no relevant Wisconsin cases, Canon presses this court to look to federal case law where Ashe has been invoked to bar a second prosecution. See United States v. Stoddard, 111 F.3d 1450 (9th Cir. 1997); United States v. Hernandez, 572 F.2d 218 (9th Cir. 1978); United States v. Brown, 547 F.2d 438 (8th Cir. 1977); United States v. Nash, 447 F.2d 1382 (4th Cir. 1971); United States v. Robinson, 418 F. Supp. 121 (Md. 1976); United States v. Barnes, 386 F. Supp. 162 (E.D. Tenn. 1973); United States v. Drevetzki, 338 F. Supp. 403 (N.D. Ill. 1972). However, in none of the federal cases upon which Canon relies did the government assert it had uncovered new evidence that would support a perjury complaint.

¶ 21. The only federal case cited by Canon that is somewhat analogous to the present facts is United States v. Nash, 447 F.2d 1382. In Nash, the government alleged that the defendant lied at her trial for stealing from a mailbox. Id. at 1383. The defendant appealed her conviction of perjury. Id. Because a jury acquitted the defendant at the mail theft trial, the Fourth Circuit Court of Appeals reasoned that the jury necessarily decided that the defendant was credible. Id. at 1385. Therefore, under Ashe, the court held that the subsequent prosecution was barred because the jury in the perjury case determined that the defendant was not credible on the same issue. Id.

¶ 22. The majority's opinion in Nash did not indicate that the government presented new evidence at the perjury trial and Judge Winter, in a concurrence, asserted that his comparison of the mail theft trial transcript with the perjury trial transcript "discloses that, at the trial for perjury, the evidence was a mere rehash of the evidence adduced at the first trial." Id. at 1387. But while accepting the holding, the concurrence rejected the notion implicit in the majority's opinion that every time a jury finds a defendant credible, the "government is forever foreclosed from prosecuting her for perjury." Id. Judge Winter then observed: "In almost every criminal prosecution resulting in acquittal where the defendant has testified, it may be said that the jury passed on the defendant's credibility and found him truthful. Yet we should not encourage prevarication by saying that necessarily such a defendant is immune from prosecution for perjury." Id. Judge Winter further advocated the rule that if "the government produces new and additional evidence that defendant lied under oath at his first trial sufficient to permit the trier of fact to conclude beyond a reasonable doubt that perjury had been committed," the government should be able to try the defendant for perjury. Id. Such an exception, which balances the need to preserve the statutory offense of perjury with double jeopardy protections, is what we adopt today.

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¶ 23. A narrow newly discovered evidence exception to issue preclusion comports with the competing policy interests at stake in the present case. See Bolden, 639 So. 2d at 726; Bolden, 194 F.3d at 585 n.20; DeSchepper, 231 N.W.2d at 299; Note, Perjury by Defendants: The Uses of Double Jeopardy and Collateral Estoppel, 74 Harv. L. Rev. 752, 763 (1961) (recommending that courts balance the policy considerations embedded in the Double Jeopardy Clause with concern about perjury by employing a newly discovered evidence exception). We are convinced that the appropriate balance between the competing policy interests can be struck with the following narrow newly discovered evidence exception. The State must establish by clear and convincing evidence that: (1) the evidence came to the State's attention after a trial; (2) the State was not negligent in failing to discover the new evidence; (3) the new evidence must be material to the issue; and (4) the evidence must not be merely cumulative to the evidence which was introduced at trial. These requirements are based on the longstanding rule governing the granting of a new trial because of newly discovered evidence in a criminal case. See Lock v. State, 31 Wis. 2d 110, 117, 142 N.W.2d 183 (1966). This court, in Birdsall v. Fraenzel, 154 Wis. 48, 52, 142 N.W. 274 (1913), outlined this exception for a new trial and rejected its application where the appellant sought to introduce new evidence that allegedly impeached the other party's testimony. In doing so, this court noted that evidence "only impeaching in character" is not ordinarily "ground[s] for a new trial," but "[i]t may well be that newly discovered evidence impeaching in character might be produced so strong as to constitute ground[s] for a new trial; as for example where it is shown that the verdict is based upon perjured testimony." Id.

¶ 24. Today, we rule only that newly discovered evidence may allow the State, after meeting the test set out above, to proceed with a charge of perjury. Such a narrowly tailored exception will enable the State to pursue some of the perjury in our judicial system without running afoul of a criminal defendant's Double Jeopardy Clause protections. As the United States Supreme Court recognized in Harris v. New York, 401 U.S. 222, 226 (1971), constitutional protections cannot be misused to the benefit of a perjurer. There, the Supreme Court ruled that a defendant's statements — made without a Miranda warning — could be used for impeachment purposes. Id. The Court asserted that "[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense." Id. We similarly hold that issue preclusion cannot be perverted into a license to perpetrate perjury in our courts. However, the newly discovered evidence exception preserves the protections of the Double Jeopardy Clause by preventing a prosecutor from trying an individual twice for the same offense. This exception will alleviate some of the discomfort other courts have had in mechanically applying Ashe to preclude perjury prosecutions. See United States v. Robinson, 418 F. Supp. at 126 ("This Court is concerned that allowing an acquittal to afford any sort of insulation for perjury will be giving defendants an uncontrollable license to testify falsely.").

¶ 25. We stress that this holding does not determine whether the "new evidence" alleged in the State's perjury complaint against Canon meets the newly discovered evidence test set forth above. We determine only that the doctrine of issue preclusion does not constitutionally bar the State from pursuing perjury charges against Canon. The State still has the burden to prove by clear and convincing evidence that its alleged newly discovered evidence passes muster under each of the four prongs to the newly discovered evidence test. For this reason, Canon is entitled on remand to a separate hearing at which he can put the State to its proof.

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¶ 26. In conclusion, we hold that the State can proceed with the charge of perjury against Canon if the circuit judge finds that the new evidence proffered by the State satisfies the requirements set forth above. We therefore reverse the decision of the court of appeals.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 27. (dissenting). I agree with the result reached by the circuit court and court of appeals, not the result reached in the majority opinion. I dissent from the majority opinion because it does not adequately assist litigants or the courts in resolving this troublesome issue: when does acquittal of a crime bar the State from prosecuting a defendant for perjury for testimony the defendant gave at trial on his own behalf?

¶ 28. Courts and commentators take different approaches to a defendant's suspected perjured testimony because of the difficulty of balancing the competing legal policies of truth seeking and protection against prosecutorial harassment. The majority opinion attempts to balance the competing interests by adopting a "narrow newly discovered evidence exception to issue preclusion." The majority opinion concludes that the State "can proceed with the charge of perjury. . .if the circuit judge finds that the new evidence proffered by the State satisfies" the newly created narrow newly discovered evidence rule "based on the longstanding rule governing the granting of a new trial because of newly discovered evidence in a criminal case." The majority opinion would require the State to establish before the circuit court the elements of the narrow newly discovered evidence rule before proceeding with the perjury charge.

¶ 29. Although I agree with the majority opinion that resolving the double jeopardy and truthful testimony interests in the present case and similar perjury-after-acquittal cases is difficult, I cannot join the majority opinion because it does not adequately assist litigants or the courts in resolving this troublesome issue and does not reach the correct result in the present case.

¶ 30. First, the majority opinion does not tell us when its narrow newly discovered evidence rule comes into play. Although the majority opinion characterizes its narrow newly discovered evidence rule as an exception to issue preclusion, the majority opinion does not discuss issue preclusion in the context of the present case. Does the narrow newly discovered evidence rule come into play in all cases in which an acquitted defendant is charged with perjury, or only in those cases in which issue preclusion exists? The State proposes the newly discovered evidence rule to "only apply after the court has determined that collateral estoppel would normally bar a subsequent perjury prosecution." For purposes of applying the newly created narrow newly discovered evidence exception to issue preclusion in the present case, the State assumes that the "perjury prosecution would require relitigation of a factual issue decided in his first trial; namely whether he was the driver of his pickup truck... ."

¶ 31. The majority opinion is silent about this question of issue preclusion, even though both parties have identified it as a central question for this court. The majority opinion does not identify the issues involved in the perjury prosecution or address whether these issues were litigated and determined by the fact finder in rendering the acquittal in the initial trial. The doctrine of issue preclusion in perjury-after-acquittal cases may often be difficult for lower courts to apply, especially since the majority opinion offers no guidance on this score.

¶ 32. Second, the narrow newly discovered evidence exception needs to be explained more fully. It appears that the majority's "narrow" new evidence test means that the test will be applied "narrowly" to protect acquitted defendants from subsequent perjury prosecutions. The majority opinion expressly says that the State should only be able to try a defendant for perjury in very limited circumstances.

. ¶ 33. Less clear is what the majority opinion means when it states, as a prong of the narrow newly discovered evidence exception, that "the new evidence must be material to the issue." Material to what issue? An issue at the first trial for the substantive offense? That the false testimony necessarily constituted a material basis for the acquittal? An issue at the second trial for perjury? How does this prong in the narrow newly discovered evidence exception to issue preclusion fit with the fifth element of the substantive offense of perjury that requires that the false statement be material?

¶ 34. The majority opinion also does not explain why it has omitted the fifth and last prong of the narrow newly discovered evidence rule applicable to a defendant's motion for a new trial. The fifth prong requires that the new evidence would probably change the result of the first trial. In advocating this new evidence test, the State's brief asserts, without explanation, that this fifth prong is not applicable. Instead the State seems to substitute for the fifth prong a probable cause standard. The State's brief contends that "in order for the perjury complaint to state probable cause, the new and pre-existing evidence stated in the perjury complaint must provide probable cause to believe that the defendant committed perjury at his or her prior trial." However, the majority opinion is silent about both the omitted fifth prong and the probable cause prong suggested by the State.

¶ 35. I would not permit the perjury charge to proceed in the present case even if I were to apply the "narrow newly discovered evidence rule" the majority opinion adopts, as best I understand it. The State's perjury complaint sets forth the defendant's testimony at trial that he was not the driver. It also has as an attachment an unsworn statement by a witness asserting that before the defendant's trial the defendant admitted at a local tavern that he was driving the vehicle.

¶ 36. At trial the State attempted to introduce an unsworn statement by the other occupant of the vehicle (who did not appear at trial) that the defendant was driving the vehicle. When the trial court ruled this evidence inadmissible, the State opted to go forward with its prosecution despite being left with almost no evidence of the defendant's guilt.

¶ 37. Now it appears that the prosecution is trying to recover from its initial failure to convince the trier of fact at the first trial of the falsity of the defendant's testimony by relying on evidence similar to evidence it was unable to introduce at trial. The new unsworn statement is cumulative evidence; it is the same type of evidence the State attempted to introduce at trial. This rehashing of the evidence on an issue that was apparently decided in the first trial is, I think, prohibited by issue preclusion and does not fall within the narrow newly discovered evidence exception.

¶ 38. In cases such as this one involving the constitutional issue of double jeopardy, I would, adhering to the majority opinion's repeated expression of its narrow exception to issue preclusion and the view expressed in Justice Bablitch's dissent, impose a heavy burden on the State at this initial stage of the proceeding to justify its right to proceed with the perjury prosecution. Under the circumstances of this case I would conclude, as a matter of law, that the written complaint, resting on yet another unsworn statement, does not provide probable cause to believe that the defendant committed perjury at the prior trial. Probable cause in a perjury prosecution after acquittal should be a high hurdle for the State. As we all know, probable cause is not a single defined standard; there are degrees of probable cause.

¶ 39. For the reasons set forth, I dissent.

¶ 40. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

WILLIAM A. BABLITCH, J.

¶ 41. (dissenting). The majority adopts a rule that allows the State to try an acquitted defendant for perjury if the State produces "newly discovered evidence" consisting of nothing more than some third person saying, in essence, "The acquitted defendant told me that he lied under oath." This type of evidence does not contain a sufficient degree of reliability to overcome the interest of finality that underlies issue preclusion and double jeopardy. I would allow the trial of an acquitted defendant for perjury in cases where the issue of fact central to the prosecution was necessarily determined in the former trial, but only when the "newly discovered evidence" contains a high indicia of reliability. This evidence does not.

¶ 42. In Ashe v. Swenson, 397 U.S. 436, 443 (1970), the United States Supreme Court recognized the doctrine of issue preclusion as an "extremely important principle in our adversary system of justice." This doctrine provides that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. However, "[i]n the context of a perjury indictment relating to testimony given at a former trial on a substantive charge, the doctrine of [issue preclusion] does not bar the perjury prosecution unless the issues of fact central to that prosecution were necessarily determined in the former trial." United States v. Haines, 485 F.2d 564, 565 (7th Cir. 1973) (citing United States v. Williams, 341 U.S. 58 (1951); United States v. Nash, 447 F.2d 1382 (4th Cir. 1971); Adams v. United States, 287 F.2d 701 (5th Cir. 1961)). Thus, in some cases, the doctrine serves as a limit on the State's ability to take a "second shot" at a defendant. See Nash, 447 F.2d at 1385-86. In this respect, the doctrine of issue preclusion serves the same purpose as the Double Jeopardy Clause of the Fifth Amendment. See United States v. DiFrancesco, 449 U.S. 117, 127-28 (1980) (noting that the underlying idea of a constitutional prohibition against double jeopardy is that " 'the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.-'") (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)).

¶ 43. The doctrine of issue preclusion serves an important function in limiting subsequent prosecutions of acquitted defendants in some cases. The importance of this doctrine is demonstrated in cases where it may serve to limit a subsequent prosecution brought in bad faith by a prosecutor. Equally significant, the doctrine may also limit subsequent prosecutions brought about by meritless "newly discovered evidence" submitted by a disgruntled victim or another person seeking revenge against the acquitted defendant for any number of motives. Certainly, the majority opinion recognizes that harassment may, to a certain extent, exist. However, my concern is that the majority's "newly discovered evidence" exception does not adequately protect an acquitted defendant's interest in finality recognized in the principles of issue preclusion and double jeopardy, particularly in cases involving the type of evidence presented here.

¶ 44. Despite the importance of the doctrine of issue preclusion, I also acknowledge that perjury is detrimental to the truth-seeking function of our system of justice and should not be tolerated in our pursuit of reliable verdicts. As a result, I would not conclude, as some courts have, that a person acquitted of an offense may not be prosecuted for perjury based on testimony that he provided in his own defense, even though a conviction of perjury would necessarily'implicate the issue tried at the first trial. See Nash, 447 F.2d at 1385-86; United States v. Plaster, 16 F. Supp. 2d 667, 672 (W.D. Vir. 1998). Instead, I conclude, as the majority has, that a "newly discovered evidence" exception to the doctrine of issue preclusion is necessary to- serve these competing policy interests.

¶ 45. However, the majority adopts a "newly discovered evidence" test that is similar to cases where a defendant, subsequent to his conviction, may seek a new trial based on his discovery of new evidence calling his conviction into doubt. See State v. McCallum, 208 Wis. 2d 463, 473-74, 561 N.W.2d 707 (1997); State v. Carnemolla, 229 Wis. 2d 648, 656, 600 N.W.2d 236 (Ct. App. 1999). Certainly, this test provides adequate parameters for allowing defendants to challenge their own convictions. This test, however, is inadequate to protect a defendant who has been acquitted of a crime from being prosecuted again based on an issue that was already determined at the first trial. The State should only be able to retry a defendant in very limited circumstances, and therefore, a test should be adopted with more stringent requirements than the test that is used by the majority.

¶ 46. Under the majority's test, a prosecutor may be able to pursue a perjury claim in instances where the "newly discovered evidence" amounts to nothing more than testimony from a disgruntled party or an ill-motivated person whose testimony merely contradicts the defendant's testimony at his first trial. Unless there is something more, and the State here does not suggest that there is anything more, any subsequent perjury prosecution will amount to nothing more than a swearing contest between the State's witness and the defendant, which requires another determination of credibility by the jury. As a result, defendants are not secure with an acquittal; they have no sense of finality. Under this test, anyone can make a damning statement against an acquitted defendant, and the acquitted defendant is once again subjected to prosecution. As a result, an acquitted defendant who has testified at his own trial will live in daily fear of further prosecution.

¶ 47. In short, I conclude that the "newly discovered evidence" presented here does not present a high enough degree of reliability to offset the competing policy concern of finality.

¶ 48. The majority primarily relies on State v. Bolden, 639 So. 2d 721 (La. 1994), in concluding that a new evidence exception should be adopted. In Bolden, the defendant was prosecuted and acquitted in a Louisiana state court of second degree murder in March of 1987. Bolden, 639 So. 2d at 721-22. Approximately five years later, the defendant confessed to the murder during prosecutorial questioning on another matter in New Jersey. Id. at 722. As a result of this statement, the defendant was charged in Louisiana for perjury based on his statements denying guilt in the 1987 murder trial. Id. at 722—23. The Bolden court concluded:

[TJhe state in good faith has obtained new and additional evidence that was not previously available to it indicating that defendant testified falsely under oath during the former trial. Under these circumstances, applying the doctrine of [issue preclusion] with 'realism and rationality1 as required by Ashe, we believe that the state should not be barred from prosecuting defendant for perjury.

Id. at 726. The Bolden court adopted this new evidence exception based on dicta from other courts and did not provide any further detail or guidance on how to determine whether evidence was "new or additional evidence." Id. at 725-26.

¶ 49. The "new and additional evidence" at issue in Bolden is much different than the "newly discovered evidence" at issue in Canon's case. Such a direct admission of guilt by the defendant in Bolden is highly reliable. Here, however, the evidence presented involves hearsay testimony that is being presented to once again impeach the defendant's testimony from his first trial. The State should not be allowed to proceed with a perjury trial based on such testimony when the issue was adjudicated in a former trial. Instead, the majority's test for "newly discovered evidence" should specifically exclude such evidence. Only highly reliable evidence, such as recorded admissions of guilt from a defendant or, alternatively, reliable tangible evidence that was not available at trial should allow the State to proceed with a perjury prosecution. Such tangible evidence may include items such as a document or weapon that provides clear evidence to show that the defendant committed perjury. The evidence may also include tangible evidence brought about by a recent technological advance, such as DNA evidence that directly contradicts a defendant's denial of guilt. Limiting our "newly discovered evidence" exception in this respect will protect a defendant's interest in finality, while at the same time permitting a prosecution for perjury oii a previously determined issue.

¶ 50. Thus, under any "newly discovered evidence" exception that I would adopt, the testimony from Que Sada would not qualify as "newly discovered evidence." Testimony alone would never qualify because it would lead to nothing more than a swearing contest between the defendant and the witness on the same issue decided at the first trial. In this case, the State has not presented any other evidence in support of the perjury complaint. As a result, under such an exception, this court could conclude as a matter of law that Que Sada's testimony would not qualify as "newly discovered evidence." Remand to the circuit court would be futile because the exception would specifically exclude such testimony. Dismissal of the complaint would then be appropriate if issue preclusion applied.

¶ 51. In this case, I believe that the circuit court may have been correct in concluding that the issue was decided at the first trial, but I am troubled by the circuit court's failure to review the entire trial transcript in making its decision. Such a difficult decision must be made in view of the entire transcript. Unfortunately, the majority opinion neglected to provide any guidance to future courts to aid in their determination of whether an issue, which forms the basis for a criminal perjury complaint, was previously determined at trial. In her dissent, Chief Justice Abrahamson appropriately addressed this as a real problem with the majority's opinion. I share her concern.

¶ 52. In the end, however, I agree with the result reached by Chief Justice Abrahamson in her dissent. In short, the perjury complaint against Canon lacks probable cause because it is based on the unsworn testimony of Que Sada. Therefore, the complaint should be dismissed, and the court of appeals' decision should be affirmed. Accordingly, I respectfully dissent.

¶ 53. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissenting opinion.

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

       In Wisconsin, the term "collateral estoppel" has been replaced by the less confusing term "issue preclusion." Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995).

       This was Canon's sixth charge for operating a vehicle while intoxicated and third charge for operating after revocation.

       For a thorough analysis of issues raised by these competing policies, see James A. Shellenberger, Perjury Prosecutions After Acquittals: The Evils of False Testimony Balanced Against the Sanctity of Determinations of Innocence, 71 Marq. L. Rev. 703 (1988).
      The legislature has expressed the importance of guarding the integrity of our judicial system through several criminal law provisions. See Wis. Stat. § 946.61 (Bribery of witnesses); Wis. Stat. § 946.64 (Communicating with jurors); Wis. Stat. § 946.65 (Obstructing justice); Wis. Stat. § 940.201 (Battery or threat to witnesses); Wis. Stat. § 940.203 (Battery or threat to judge). Such laws bolster the principles of honesty and fair play in our judicial system.

         See Benton v. Maryland, 395 U.S. 784, 787 (1969) (holding that the Double Jeopardy Clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment).

         See George C. Thomas III, Double Jeopardy: The History, The Law (New York University Press 1998) (tracing the history of double jeopardy and noting the difficulty the United States Supreme Court has had in fashioning a clear interpretation of the seemingly unambiguous language of the clause).

         See, e.g., Mark Curriden, The Lies Have It, 81-May A.B.A. J. 68, 69-71 (1995) (noting that "[j]udges, lawyers and experts on the court system worry that perjury is being committed with greater frequency and impunity than ever before"); Comment, Perjury: The Forgotten Offense, 65 J. Crim. L. & Criminology 361 (1974) (asserting that "[i]t is undenied that perjury is both a frequent and substantial threat to the effective administration of justice"); Cate Gillen et al., Perjury, 28 Am. Crim. L. Rev. 619 (1991) (discussing the role of the federal offense of perjury in preserving the integrity of the federal judicial system).

        But cf. Harris v. Washington, 404 U.S. 55 (1971) (overturning state court ruling that defendant could be retried because the judge erroneously excluded evidence of identity). Harris is distinguishable from the present case because there the prosecutor sought to retry the defendant for the same criminal transaction. Id. at 56-57. Here, the State seeks to charge Canon with a new crime committed at a different time and place with new evidence that allegedly came to light after his criminal traffic trial.

       The New Jersey Supreme Court did not require the evidence of perjury to be "newly discovered." In fact, the state had the statements of the two witnesses prior to the second defendant's testimony. State v. Redinger, 312 A.2d 129, 131 (N.J. 1973). The trial judge probably knew of the statements of the witnesses for "[h]e did not accept [the second defendant's] plea of guilty without first putting [him] under oath and having him testify that he was driving the car. He also reminded [him] of the perjury laws of [New Jersey]." Id.

       Although the Fifth Circuit recognized that it was not required to review the "Louisiana Supreme Court's alternative adoption of the 'new and additional evidence' exception to later perjury prosecutions," the court decided "to address this issue for the sake of completeness." Bolden v. Warden, West Tenn. High Sec. Fac., 194 F.3d 579, 585 n.20 (5th Cir. 1999). In reviewing the exception, the Fifth Circuit concluded that "[w]ere we to decide this issue, we would find that this exception is not 'contrary to' federal law as established by the Supreme Court." Id.

       The-deep roots of the newly discovered evidence exception in perjury prosecutions are evinced by two federal cases asserting that the government can proceed on a pexjury charge where the defendant committed the alleged offense at a prior criminal trial. See Kuskulis v. United States, 37 F.2d 241, 242 (10th Cir. 1929); Allen v. United States, 194 F. 664, 667 (4th Cir. 1912) (dicta).

       The clear and convincing standard is the same burden that a criminal defendant must meet in order to obtain a new trial based on newly discovered evidence. See State v. Carnemolla, 229 Wis. 2d 648, 656, 600 N.W.2d 236 (Ct. App. 1999). Furthermore, it is the same standard that a criminal defendant must meet in order to withdraw a plea following sentencing when his or her motion was supported with new evidence. See

        State v. McCallum, 208 Wis. 2d 463, 473-74, 561 N.W.2d 707 (1997).

       The newly discovered evidence requirement is at the core of this limited exception for it is this factor which protects criminal defendants from having to run the gauntlet of a criminal trial a second time. See United States v. Sarno, 596 F.2d 404, 407 (9th Cir. 1979) (stating that "unless the subsequent perjury indictment is based upon evidence which was not available at the first trial. . .the government would be merely trying to recover from its initial failure to convince the trier of fact of the falsity of defendant's testimony at the first trial").

       We fully agree with Justice Bablitch's dissent insofar as it provides that under certain circumstances, a newly discovered evidence exception to the doctrine of issue preclusion is necessary to best balance the competing interests of finality of previously litigated issues and the truth-seeking function of our justice system. We further agree that "[t]he State should only be able to retry a defendant in very limited circumstances. . . ." However, unlike Justice Bablitch, we do not believe that the record is sufficiently developed for us to determine whether the State can meet the test set forth above.

        See, e.g., State v. DeSchepper, 231 N.W.2d 294, 297 (Minn. 1975), in which the Minnesota Supreme Court summarized the following five approaches proposed by courts and commentators concerning perjury-after-acquittal prosecutions:
      1. A person acquitted of an offense is wholly immunized from subsequent prosecution for perjury based upon testimony given in his own behalf at the first trial.
      2. A person acquitted of an offense may always be prosecuted for perjury based upon testimony given in his own defense, without regard to the nature of the testimony even though the two verdicts are logically inconsistent.
      3. A person acquitted of an offense may not be prosecuted for perjury based upon testimony given in his own defense if a conviction of perjury would necessarily import a contradiction of the acquittal.
      4. A person acquitted of an offense may not be prosecuted for perjury based upon testimony given in his own defense if it appears from the record that the fact finder probably passed upon the credibility of the testimony in question in order to reach its verdict of acquittal.
      5. A person acquitted of an offense may not be prosecuted for perjury based upon testimony given in his own defense unless the state introduces evidence at the perjury trial which was not available to the fact finder at the first trial and which independently tends to establish that defendant committed perjury while testifying in his own behalf.

      Majority op. at ¶ 23. See Wis. Stat. § 805.15 (1999-2000) governing motions for new trial based on newly discovered evidence.

       Majority op. at ¶ 26.

      Majority op. at ¶ 23. These requirements are set forth in Lock v. State, 31 Wis. 2d 110, 117, 142 N.W.2d 183 (1966), as follows:
      (1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at the trial[;] and (5) it must be reasonably probable that a different result would be reached on a new trial.

       State's Brief at 12.

       The State also argues in the alternative that the circuit court in this case should review the entire record of the prior criminal traffic prosecution to determine whether the perjury claim is barred by issue preclusion. The State argues that the jury did not necessarily find that the defendant was telling the truth when he testified. The jury could have disbelieved the defendant but found that the State did not prove beyond a reasonable doubt that the defendant was driving the vehicle. The State concludes: "Since the issue to be litigated at the perjury trial is whether [the defendant] told the truth at his drunk driving trial, his perjury prosecution should not be barred by collateral estoppel [that is, issue preclusion]." State's Brief at 39.

       Majority op. at n.14.

       Majority op. at ¶ 23. Material facts are those that are of consequence to the merits of the litigation. See Wis. Stat. § 904.01 (1999-2000); Johnson v. Kokemoor, 199 Wis. 2d 615, 635, 545 N.W.2d 495 (1996).

       Wis. Stat. § 946.31 (1999-2000); see also Wis JI — Criminal 1750: Perjury (1995) ("A material statement is one which tends to prove or disprove any fact that is of consequence to the determination of the proceeding in which the statement was made.").

        For a discussion of the issue of materiality in peijury prosecutions, see James A. Schellenberger, Perjury Prosecutions After Acquittals, The Evils of False Testimony Balanced Against the Sanctity of Determinations of Innocence, 71 Marq. L. Rev. 703, 744-45 (1988).

       State's Brief at 34.

       See United States v. DiFrancesco, 449 U.S. 117, 128 (1980) (stating that one of the express purposes of double jeopardy protection is to prevent the prosecution from having "another opportunity to supply evidence which it failed to muster in the first proceeding") (quoting Burks v. United States, 437 U.S. 1, 11 (1977)).

       See County of Jefferson v. Renz, 231 Wis. 2d 293, 321, 603 N.W.2d 541 (1999) (Abrahamson, C.J., concurring) (diagram showing different degrees of probable cause).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against John V. Asher: Board of Attorneys Professional Responsibility, n/k/a Office of Lawyer Regulation, Complainant, v. John V. Asher, Respondent.
    Supreme Court

      No. 00-2661-D.

      Filed February 27, 2001.

    2001 WI 12
    (Also reported in 622 N.W.2d 746.)
   PER CURIAM.

¶ 1. We review the findings of fact, conclusions of law, and recommendation for discipline of the referee, Charles J. Herró pursuant to SCR 21.09(5). Attorney Asher was found to have engaged in numerous instances of unprofessional conduct in the course of his practice of law in violation of the rules of professional conduct. The referee has recommended that Attorney Asher's license to practice law be revoked, that restitution be paid to several clients, and that the costs of these proceedings be paid.

¶ 2. We approve the findings, conclusions and recommendations of the referee and determine that the seriousness of Attorney Asher's misconduct warrants the imposition of these sanctions.

¶ 3. Attorney Asher was admitted to the practice of law in Wisconsin in 1984 and had his office in Dous-man. He has no prior attorney disciplinary history.

¶ 4. On October 2, 2000, the Board issued a complaint against Attorney Asher ordering him to answer within 20 days. He responded that he would not be filing any formal response and would not participate in the disciplinary proceedings. On October 24, 2000, the Board moved the referee for an order determining that he was in default for failing to answer the complaint and for an order requesting that the referee accept as true and correct and uncontested the allegations found within the Board's complaint. The referee conducted a telephone hearing on the motion on November 14, 2000, and granted the motion on November 20, 2000. The referee then issued his findings, conclusions and recommendation for discipline on November 22, 2000.

¶ 5. A general description of the facts and circumstances leading to these disciplinary proceedings is necessary. In 1984, Attorney Asher incorporated a law firm which he named the Christian Law Center ("CLC"). This was solely his firm, although he may have employed one or more associates or others at various times. In general, the CLC advertised extensively and handled a high volume of relatively low-asset personal bankruptcies. At the same time, Attorney Asher was also the minister of a church he had founded and also operated other business enterprises.

¶ 6. During the late summer of 1999, it was widely reported in the media that Attorney Asher had extremely serious problems, both financially and regarding appropriate legal representation of his clients. Around that time, he twice relocated his offices, and notified his clients by letter dated August 27,1999, that he was forced to close the CLC due to financial problems. Up to that time, however, he continued to accept retainer and filing fee payments from clients for work to be performed, much of which went unperformed.

¶ 7. From that time on, until mid-2000, the Board received numerous grievances from clients alleging that they had paid funds to Attorney Asher for bankruptcy filing fees and retainers in cases which ultimately were never filed by him. The Board's complaint alleged 233 violations of the rules of professional conduct relating to 58 clients.

¶ 8. The first set of these allegations, 51 counts each, involve simultaneous violations of SCR 20:1.15(a), failure to deposit client funds into a trust account and, SCR 20:8.4(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation arising out of converting funds of the client to the attorney's own use. Attorney Asher's trust account, entitled "Christian Law Center of WI, S.C., IOLTA," was essentially inactive throughout its existence in 1998-99. His account at another bank, entitled "Christian Law Center of Wisconsin, S.C., Filing Fee Account," was apparently opened in early 1998. Bank records show this second account to be active during its six-month existence. For the first two months it existed, the second account was used for the deposit and payment of bankruptcy filing fees but was not used exclusively for this purpose. A number of checks from this account were made payable to Attorney Asher and his employees. Seven checks written in February and March of 1999 were returned for reason of insufficient funds in the account. Thereafter, checks totaling in the tens of thousands of dollars were written to employees and to pay office expenses. After early April of 1998, none of the checks drawn on the filing fee account were payable to the United States Bankruptcy Clerk. The account was again occasionally overdrawn and account activity began to taper off. The filing fee account was closed in July of 1998. Attorney Asher declared on August 27, 1999, that he did not have on deposit, in trust, any filing fees paid to him by clients. After that date, he never reimbursed any client for filing fees he received but had not paid to the bankruptcy clerk.

¶ 9. We find that Attorney Asher has committed 51 violations of SCR 20:1.15(a) and 51 violations of SCR 20:8.4(c). We further adopt the referee's finding that the amount converted by Attorney Asher, based on the statements and proofs of payment provided by only those clients who filed grievances against him, was $8900.

¶ 10. The second set of allegations concern 53 violations of SCR 20:1.16(d), unearned fees that attorney failed to return to clients. These violations arise out of the above-described circumstances in which clients paid retainers to Attorney Asher who did not then file bankruptcies on their behalf. Although he or his staff may have spent some time with some clients or even partially completed documents, the clients involved received no value from Attorney Asher or the bankruptcy was never actually filed by him.

¶ 11. We find that Attorney Asher has therefore committed 53 violations of SCR 20:1.16(d). We further adopt the referee's finding that these unearned fees were $33,811.50.

¶ 12. The third set of allegations concern 18 violations of SCR 20:1.3, failing to act with reasonable diligence and promptness in representing a client. These violations concern the above-described instances where clients had paid the attorney fees in full but Attorney Asher did not timely file the bankruptcy action. The Board has not alleged possible violations of this nature when the fees were paid very shortly before the closing of Attorney Asher's law office.

¶ 13. We find that Attorney Asher has committed 18 violations of SCR 20:1.3.

¶ 14. The fourth set of allegations concern three violations of SCR 20:1.4(a), failure to keep a client reasonably informed about the status of a matter and to comply with a client's reasonable requests for information. These instances concern those clients who complained that Attorney Asher's staff repeatedly put them off when they called to make inquiries or simply received no response whatsoever to their telephone messages.

¶ 15. We find that Attorney Asher has committed three violations of SCR 20:1.4(a).

¶ 16. The fifth set of allegations concern one violation of SCR 20:1.16(a)(3), representing a client after discharge. This concerns the one instance in which Attorney Asher filed a bankruptcy action after he was discharged by his client.

¶ 17. We find that Attorney Asher has committed one violation of SCR 20:1.16(a)(3).

¶ 18. The sixth set of allegations concern 56 violations of SCR 22.07(3), failure to cooperate with the Board's investigation. Of the 58 client matters referenced within its complaint Attorney Asher cooperated with only one Board investigation. In another matter, an inquiry was sent to him but the Board did not request a response. As to the remaining 56 client matters in which the Board conducted an investigation, Attorney Asher made no response to the initial inquiries from the Board. Some inquiries did not generate a response whatsoever. Other inquiries were returned to the Board marked "Refused-Return to Sender." Finally, some inquiries were returned by the United States Post Office with the indication that Attorney Asher had moved and left no forwarding address.

¶ 19. We find that Attorney Asher has committed 56 violations of SCR 22.07(3).

¶ 20. We further adopt the referee's recommendation for discipline which, in turn, adopted the Board's request in its complaint. The referee's overall recommendation is appropriate discipline for the professional misconduct demonstrated in this case. Attorney Asher's misconduct with his clients and with respect to his Board obligations were serious, multiple failings warranting severe sanction.

¶ 21. Accordingly, it is appropriate that: (1) the license of Attorney Asher to practice law in this state be revoked; (2) that within 60 days Attorney Asher make restitution for the $8900 that he converted and for the $33,811.50 unearned fees he failed to return to clients, as generally described above and as more specifically alleged in the individual client matters described in Board's complaint; and, (3) Attorney Asher pay the $1361.25 costs of these proceedings.

¶ 22. It Is Ordered that the September 13,1999, order of this court accepting the resignation of Attorney John V. Asher from the State Bar of Wisconsin is vacated.

¶ 23. It Is Further Ordered that the license of Attorney John V. Asher to practice law in the state of Wisconsin be revoked, effective the date of this order.

¶ 24. It Is Further Ordered that John V. Asher comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been revoked.

¶ 25. It Is Further Ordered that within 60 days of the date of this order John V. Asher shall pay to his former clients, pursuant to paragraphs 5-12, 15-40, 43-60, 63-114, and 119-122 of the Board's complaint, $8900 and $33,811.50 with interest at 5% from July 1, 2000.

¶ 26. It Is Further Ordered that within 60 days of the date of this order John V. Asher shall pay $1361.25 to the Office of Lawyer Regulation representing the costs of this proceeding.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility (Board) to the Office of Lawyer Regulation, and the Supreme Court rules applicable to the lawyer regulation system were also revised. Since the conduct underlying this case arose prior to October 1, 2000, all references will be to the Board and to the Supreme Court rules in effect prior to October 1, 2000.

      Former SCR 21.09(5) provided, in pertinent part:
      (5) The referee shall, within 30 days of the conclusion of the hearing, file with the clerk of the supreme court a report stating his or her findings and disposition of the complaint or petition by recommendation of dismissal or imposition of discipline as provided in SCR 21.06 or suspension or conditions upon the continued practice of law for medical incapacity. The board or the attorney may file an appeal of the referee's report with the supreme court within 20 days of the filing of the report. If no appeal is timely filed, the supreme court shall review the referee's report and determine appropriate discipline in cases of misconduct and appropriate action in cases of medical incapacity and may, on its own motion, within 30 days of the expiration of the time for appeal, order the parties to file briefs in the matter or extend the time in which it may order briefs. (Emphasis added.)

       On September 2,1999, prior to the receipt by the Board of many of the client grievances that formed the basis for this proceeding, Attorney Asher submitted his resignation from the State Bar of Wisconsin to this court which it accepted on September 13, 1999. However, the Board subsequently moved to vacate the order because it had commenced its investigation into these matters. This court determined on October 27, 1999, to hold the motion in abeyance pending notification that the Board had completed its investigation.

       SCR 20:1.15(a) provides:
      (a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall be maintained in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The trust account shall be clearly designated as "Client's Account” or "Trust Account" or words of similar import. No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay or avoid imposition of account service charges, may be deposited in such an account. Unless the client otherwise directs in writing, securities in bearer form shall be kept by the attorney in a safe deposit box in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The safe deposit box shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. Other property of a client or third person shall be identified as such and appropriately safeguarded. If a lawyer also licensed in another state is entrusted with funds or property in connection with an out-of-state representation, this provision shall not supersede the trust account rules of the other state.

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

       SCR 20:1.16(d) provides:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

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

       SCR 20:1.4(a) provides:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

       SCR 20:1.16(a)(3) provides:
      (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
      (3) the lawyer is discharged.

       Former SCR 22.07(3) provided:
      (3) The administrator or committee may compel the respondent to answer questions, furnish documents and present any information deemed relevant to the investigation. Failure of the respondent to answer questions, furnish documents or present relevant information is misconduct. The administrator or a committee may compel any other person to produce pertinent books, papers and documents under SCR 22.22.


author: FINE, J.

text:
    Clara M. Rolland, Plaintiff-Respondent, Milwaukee County Dept. of Human Services, Plaintiff, v. County of Milwaukee, Milwaukee Transport Services, Inc. and John Doe, Defendants-Appellants, Donna Shalala, Defendant.
    Court of Appeals

      No. 99-1913.

      Submitted on briefs May 9, 2000.

    Decided December 5, 2000.

    2001 WI App 53
    (Also reported in 625 N.W.2d 590.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Thomas A. Cabush of Kasdorf Lewis & Swietlik, S.C. of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Daniel J. Finerty and David J. Bischmann of Hausmann-McNally, S.C. of Milwaukee.
    Before Fine, Schudson and Curley, JJ.
   FINE, J.

¶ 1. Milwaukee County and Milwaukee Transport Services, Inc., appeal from the trial court's denial of their motion for summary judgment, which asserted that they were immune from liability as a result of WlS. STAT. § 893.80(4). We granted their petition to appeal from a non-final order. We affirm.

I.

¶ 2. Milwaukee Transport Services operates public transit bus services for Milwaukee County, as the County's agent. Clara M. Rolland claims that she was injured when she was a passenger on one of Milwaukee Transport's buses. She was on the bus in her motorized handicapped scooter when, as alleged in her complaint, the bus turned, causing her scooter to suddenly roll and tip over. She claims that the bus driver negligently secured her scooter, in violation of guidelines for drivers issued by Milwaukee Transport. The guidelines applicable to this case were in a series of bulletins, the material parts of which we quote.

¶ 3. One bulletin, headed "wheelchair securement" (uppercasing, bolding, and underlining omitted), directed:

The use of restraining straps is mandatory for all wheelchairs on [Milwaukee Transport] buses. Customer refusal to have their wheelchair strapped to the floor of the bus will result in transportation denial.
Operators should explain that this is being done for their safety and is according to company procedure. If problems exist, contact the Dispatcher for further instructions.

Another bulletin emphasized that passengers in motorized wheelchairs had the same right to use public transportation as others, and that the use of straps was mandatory. It advised bus drivers to "explain that the use of restraining strips is to be enforced for their safety." The bulletin also instructed how the wheelchairs were to be secured:

SECURING A WHEELCHAIR
Whenever possible, attach restraints to the frame of a wheelchair instead of through spokes in the wheels. In some instances, damage has been reported to the surrounding spokes of restraining belts that were attached to wheels.
The frame on most wheelchairs can be found on the metal bars that are found closes [sic] to the wheels. As a general rule, attach restraining belts towards the lower portions of wheelchairs, and as close to the wheels as possible. Three wheel "scooters", for example, have little support on the extension directly under the seat. Again, THINK "LOW" AND "CLOSE TO THE WHEELS" before beginning securement.

(All emphasis in the original.) It also noted that after unsecuring the wheelchair, the driver should "[r]eturn all movable belts to their designated compartments."

¶ 4. In support of their motion for summary judgment, Milwaukee Transport and the County submitted an affidavit executed by the driver of Rolland's bus. In that affidavit, he averred that he tried to secure Rolland's scooter with more than one strap:

I then attempted to place one of the safety straps around Ms. Rolland's body which is my normal practice. However, her body was too big for the strap to go around her. I then took several moments to think about how to secure her on the bus. I decided to place one strap through the left arm of the scooter and a second available strap through the right arm of the scooter. I then tightened the straps and secured the strap ends into the proper fasteners. In my judgment, this was the best means available to secure Ms. Rolland and her scooter on the bus.

The driver's affidavit indicated that it took him "approximately five to ten minutes to get Ms. Rolland on the bus and to secure the scooter."

¶ 5. Rolland had a different recollection of the attempted securing of her scooter. In her affidavit, she averred that the driver was wholly uncooperative, used only one strap, and told her that he "did not really know how to secure the scooter." When, according to her affidavit, she attempted to tell him that he had to use two straps — "that he had to fasten the front of the scooter with another belt, like the other bus drivers had done on my prior bus rides[,]... he was not interested in listening to my suggestion[,]" but, rather, told her " 'you ain't going nowhere,' and went back to his seat." She also denied that the driver tried to place a belt around her body.

¶ 6. The trial court rejected the defendants' contention that Wis. Stat. § 893.80(4) was a bar of immunity between them and Rolland's claim, holding that Milwaukee Transport had a ministerial duty to make certain that passengers in scooters could safely ride the buses, and that, in its view, "the act of securing [Rolland's scooter] on the bus is a ministerial act and therefore there is liability for not doing it safely." Although we affirm the trial court's denial of the defendants' motion for summary judgment, we do so for a different reason. See State v. Holt, 128 Wis. 2d 110, 124-125, 382 N.W.2d 679, 687 (Ct. App. 1985) (an appellate court may affirm a trial court's correct ruling irrespective of the trial court's rationale).

II.

¶ 7. Summary judgment is used to determine whether there are any disputed facts that require a trial, and, if not, whether a party is entitled to judgment as a matter of law. See Wis. Stat. Rule 802.08(2); U.S. Oil Co. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 86, 440 N.W.2d 825, 827 (Ct. App. 1989). Of course, "summary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear." Lecus v. American Mut. Ins. Co. of Boston, 81 Wis. 2d 183, 189, 260 N.W.2d 241, 243 (1977). Our review of a trial court's grant of summary judgment is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987).

¶ 8. Wisconsin Stat. § 893.80(4), as material here, provides:

No suit may be brought against any . . . political corporation, governmental subdivision or any agency thereof... or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

Under this provision, "[plublic officers or employees" as well as their employing entities "enjoy immunity from liability for injuries resulting from the performance of any discretionary act within the scope of their governmental employment." Kierstyn v. Racine Unified School Dist., 228 Wis. 2d 81, 88, 596 N.W.2d 417, 421 (1999). Immunity does not apply if the act or omission on which a claim for liability is predicated is ministerial rather than discretionary. See Ottinger v. Pinel, 215 Wis. 2d 266, 273, 572 N.W.2d 519, 521 (Ct. App. 1997). Additionally, "it is the nature of the specific act upon which liability is based, as opposed to the categorization of the general duties of a public officer, which is determinative of whether an officer is immune from liability." C.L. v. Olson, 143 Wis. 2d 701, 716, 422 N.W.2d 614, 619 (1988).

¶ 9. A governmental employee's duty must have certain attributes before that duty will be considered to be ministerial rather than discretionary:

"A public officer's duty is ministerial only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion."

Kierstyn, 228 Wis. 2d at 91, 596 N.W.2d at 422 (quoted source omitted). Stated another way, "[a] discretionary act involves the exercise of judgment in the application of a rule to specific facts." Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶ 25, 235 Wis. 2d 409, 425, 611 N.W.2d 693, 700.

¶ 10. Rolland argues that there are three reasons why Milwaukee Transport's obligations to ensure her safety were ministerial and not discretionary. She claims that drivers had a non-discretionary duty to use more than one belt; that drivers had a non-discretionary duty to know how to properly and safely secure motorized wheelchairs or scooters; and that if there was a problem with properly securing a wheelchair or scooter, drivers had a non-discretionary duty to call their dispatcher for help. We disagree.

¶ 11. Each of the bases on which Rolland relies requires "the exercise of judgment or discretion rather than the mere performance of a prescribed task." See Spencer v. County of Brown, 215 Wis. 2d 641, 652, 573 N.W.2d 222, 226-227 (Ct. App. 1997) (how to comply with mandatory duty to keep premises safe imposed by the safe-place statute is discretionary, WlS. Stat. § 101.11); see also Kierstyn, 228 Wis. 2d at 93, 596 N.W.2d at 423 (act is ministerial if circumscribed by specific obligations); Kimps v. Hill, 200 Wis. 2d 1, 14-15, 546 N.W.2d 151, 157-158 (1996) (professor's duty to provide safe equipment, and safety officer's duty to investigate accidents did not impose ministerial duty on either in the way to carry out their responsibilities); Ottinger, 215 Wis. 2d at 276, 572 N.W.2d at 522 (guards have duty to prevent escape by prisoners; method of prevention is discretionary: "Despite the general duty to prevent an escape, correctional officers are given wide latitude in determining how to handle an escape, how much force, if permitted, is necessary to prevent an escape and at what point to stop the pursuit."). Indeed, the Milwaukee Transport bulletins that Rolland argues impose a ministerial duty recognize, by use of such terms as "whenever possible" and "[a]s a general rule," that it is not possible to distill the method of ensuring the safety of wheelchair passengers into a series of recipe-like steps — nothing in the bulletins attempts to mandate specific steps so that "nothing remains for judgment or discretion." See Kimps, 200 Wis. 2d at 15, 546 N.W.2d at 158. The mere fact that the driver might have been negligent in the way he secured Rolland and her scooter does not abrogate the governmental immunity conferred on Milwaukee Transport and the County by Wis. Stat. § 893.80(4). See id., 200 Wis. 2d at 11, 546 N.W.2d at 156 ("Just because a jury can find that certain conduct was negligent does not transform that conduct into a breach of a ministerial duty.").

¶ 12. Our conclusion that how a driver secures a passenger, or when the driver should seek assistance from a dispatcher, is discretionary and not ministerial — requiring, as those decisions do, the exercise of judgment — does not end the matter. Rather, giving Rolland the benefit of the doubt, as we must where summary judgment is sought, see Lecus, 81 Wis. 2d at 189-190, 260 N.W.2d at 243-244, her version of the incident raises an issue of material fact: namely whether the driver ignored his mandatory duty not to drive the bus with a wheelchair or scooter passenger aboard unless the passenger was secured. See Cavanaugh v. Andrade, 202 Wis. 2d 290, 301-305, 550 N.W.2d 103, 108-110 (1996) (city violated ministerial duty by not drafting written policy governing police pursuit of fleeing suspects that contained all the elements required by statute, even though the weight to be given to each element in the overall policy would be discretionary). By "ignored," we do not mean to imply that a total disregard must be shown; proving a cavalier, mere lip-service payment or perfunctory nod to a mandatory duty that the law either imposes or recognizes would be sufficient to show that the duty was ignored. Stated another way, the driver had a mandatory, ministerial duty to ensure, to the best of his ability and judgment, that Rolland was safely secured on his bus; how he fulfilled that duty required the exercise of his judgment and was therefore discretionary. See C.L., 143 Wis. 2d at 716, 422 N.W.2d at 619 ("[I]t is the nature of the specific act upon which liability is based, as opposed to the categorization of the general duties of a public officer, which is determinative of whether an officer is immune from liability.").

¶ 13. We affirm the trial court's denial of the defendants' motion for summary judgment, and remand the matter for trial. At the trial, the factfinder should determine whether the driver ignored his duty to assure, to the best of his ability and judgment, that Rolland was secured before he drove his bus. As we have seen, however, the mere fact that the driver might have been negligent in carrying out that duty is not material to the issue of whether he ignored it.

By the Court. — Order affirmed and cause remanded.

       There are three other, closely related exceptions to governmental immunity: 1) when there is a danger that is so " 'compelling and known to the officer and is of such force that the public officer has no discretion not to act.'" Kierstyn v. Racine Unified School Dist., 228 Wis. 2d 81, 95-96, 596 N.W.2d 417, 425 (1999) (quoted source omitted); 2) where, in a "medical context," the act or omission by the governmental employee is " 'professional' in nature" rather than "governmental." Id., 228 Wis. 2d at 97, 596 N.W.2d at 425; and 3) where "a public officer engages in negligent conduct that is 'malicious, willful and intentional.'" Id., 228 Wis. 2d 90 n.8, 596 N.W.2d at 422 n.8 (quoted source omitted). None of the parties asserts that any of these exceptions is material here.