                                                              2019 WI 51

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2018AP1033-J
COMPLETE TITLE:         In the Matter of Judicial Disciplinary
                        Proceedings
                        Against the Honorable Michael J. Piontek:

                        Wisconsin Judicial Commission,
                                  Complainant,
                             v.
                        the Honorable Michael J. Piontek,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST PIONTEK

OPINION FILED:          May 21, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                       2019 WI 51
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.       2018AP1033-J


STATE OF WISCONSIN                          :             IN SUPREME COURT

In the Matter of Judicial Disciplinary
Proceedings Against the Honorable
Michael J. Piontek:

Wisconsin Judicial Commission,
                                                                    FILED
              Complainant,                                     MAY 21, 2019

      v.                                                          Sheila T. Reiff
                                                               Clerk of Supreme Court

The Honorable Michael J. Piontek,

              Respondent.




      Judicial     disciplinary   proceeding.        Judge      suspended       from
office.


      ¶1     PER   CURIAM.   We   review,       pursuant      to     Wis.     Stat.
§ 757.91 (2015-2016),1 a Judicial Conduct Panel's findings of


      1All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated. Wisconsin Stat.
§ 757.91 provides:

           The supreme court shall review the findings of
      fact, conclusions of law and recommendations under s.
      757.89 and determine appropriate discipline in cases
      of misconduct and appropriate action in cases of
      permanent disability. The rules of the supreme court
                                                     (continued)
                                                                        No.     2018AP1033-J



fact, conclusions of law, and recommendation for discipline for
Racine    County    Circuit    Court       Judge    Michael        J.    Piontek.         We
conclude    that     a     five-day        suspension       is      the       appropriate
discipline for Judge Piontek's judicial misconduct.
     ¶2     At the time of the events in question, Judge Piontek
had been a circuit court judge for Racine County for about two
years.      Before       assuming     the       bench,     Judge        Piontek     was    a
practicing lawyer for about 38 years, including time as a county
prosecutor.       Until this disciplinary matter, he had never been
the subject of a complaint or grievance as an attorney or judge.
     ¶3     The    Judicial        Commission      filed    a    complaint         against
Judge Piontek on June 5, 2018, alleging that he had engaged in

judicial    misconduct        by     his    actions,       described          below,      in
presiding over two different criminal matters.
     ¶4     Judge Piontek filed a response to the complaint in
which he generally admitted the allegations but alleged various
mitigating circumstances.
     ¶5     Consistent      with      an    order    issued        by     the     Judicial

Conduct Panel, the parties filed briefs on the issue of the
appropriate discipline to be imposed.                      After receiving these
briefs, the panel made findings of fact and conclusions of law
and recommended that this court suspend Judge Piontek between
five and 15 days.        This recommendation exceeded the disciplinary
sanction that Judge Piontek suggested in his brief to the panel:

     applicable to civil cases in the supreme court govern
     the review proceedings under this section.


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a public reprimand.         The panel's recommendation more closely
followed the sanction proposed by the Judicial Commission, which
suggested     discipline    ranging   from    a   reprimand       to     a    short
suspension.
     ¶6     The facts involved in this matter are as follows.
     The S.S. Criminal Case

     ¶7     Between August 2014 and February 2015, Judge Piontek
presided over a criminal case involving defendant S.S.                        Judge
Piontek set the matter for a March 4, 2015 trial.                        Sometime
before December 3, 2014, Judge Piontek received at his chambers
an informal visit from the prosecutor assigned to the S.S. case;
the prosecutor was seeking an adjournment of the trial.

     ¶8     On   December   3,   2014,    Judge   Piontek   telephoned          the
prosecutor, without including defense counsel in the call or
giving defense counsel notice that he planned to make the call.
During     the   three-minute-and-seven-second       phone        call,       Judge
Piontek told the prosecutor that he wanted S.S.'s trial to go
forward on the scheduled trial date; that any plea negotiation
should involve S.S. being convicted of a felony; and that people
like S.S. who involve themselves "in scams like this" need to be
stopped.
     ¶9     Judge   Piontek   never   disclosed    his   December        3,    2014
conversation with the prosecutor to S.S. or S.S.'s attorney.
     ¶10    On or about January 29, 2015, the prosecutor sent a

letter to defense counsel in which he summarized his account of
the judge's December 3, 2014 phone call.              Shortly thereafter,
the prosecutor submitted a copy of the letter to Judge Piontek.
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     ¶11    Only after receiving the prosecutor's letter did Judge
Piontek recuse himself from handling the S.S. case.
     ¶12    During       the   pendency       of   the   Judicial       Commission's
investigation into the S.S. matter, Judge Piontek at least twice
denied the assertions made in the prosecutor's January 29, 2015
letter.     In a September 18, 2015 response letter to the Judicial
Commission, Judge Piontek denied that he initiated the December
3, 2014 phone call to the prosecutor, and denied making the
statements attributed to him by the prosecutor.                   In a September
14, 2017 Response to Notice of Formal Proceedings, Judge Piontek
denied     that    his   ex    parte    conversation       with   the     prosecutor
involved discussions of plea negotiations.                  Only later, when he

filed his response to the Judicial Commission's complaint, did
Judge Piontek admit that he initiated the December 3, 2014 phone
call.     He further admitted making "off-handed comments about the
manner in which he believed the case should be resolved."
     ¶13    The Judicial Commission's complaint alleged, and the
Judicial Conduct Panel concluded, that Judge Piontek's contact

with the prosecutor on December 3, 2014, constituted a willful
violation     of    Supreme     Court     Rule     (SCR)    60.04(1)(g),2       which


     2   SCR 60.04(1)(g) provides:

          A judge may not initiate, permit, engage in or
     consider ex parte communications concerning a pending
     or impending action or proceeding except that:

          1. A judge may initiate, permit, engage in or
     consider ex parte communications for scheduling,
     administrative purposes or emergencies that do not
                                                  (continued)
                                          4
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prohibits     ex    parte   communications        concerning   pending    matters
unless an exception exists under the law.
      ¶14     The Judicial Commission's complaint also alleged, and
the   Judicial      Conduct   Panel    concluded,      that    Judge    Piontek's
contact violated his obligations:
          •   pursuant to SCR 60.02,3 to participate in establishing,
              maintaining, and enforcing high standards of conduct
              and to personally observe those standards;
          •   pursuant to SCR 60.03(1),4 to comply with the law and
              act   at all times      in       a manner that   promotes    public




      deal with substantive matters or issues on the merits
      if all of the following conditions are met:

           a. The judge reasonably believes that no party
      will gain a procedural or tactical advantage as a
      result of the ex parte communication.

           b. When the ex parte communication may affect the
      substance of the action or proceeding, the judge
      promptly notifies all of the other parties of the
      substance of the ex parte communication and allows
      each party an opportunity to respond.
      3   SCR 60.02 provides:

           An   independent   and  honorable    judiciary   is
      indispensable to justice in our society. A judge
      should participate in establishing, maintaining and
      enforcing   high   standards  of   conduct   and   shall
      personally observe those standards so that the
      integrity and independence of the judiciary will be
      preserved. This chapter applies to every aspect of
      judicial behavior except purely legal decisions. Legal
      decisions made in the course of judicial duty on the
      record are subject solely to judicial review.


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            confidence in the integrity and impartiality of the
            judiciary;
        •   pursuant     to   SCR   60.04(1)(e),5     to   perform     judicial
            duties without bias or prejudice; and
        •   pursuant   to     SCR   60.04(4),6   to   recuse   himself      from
            handling S.S.'s case earlier than he did because a
            reasonable, well-informed person, knowledgeable about
            judicial ethics, would reasonably question his ability
            to be impartial.

    4  SCR 60.03(1) provides: "A judge shall respect and comply
with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of
the judiciary."
    5   SCR 60.04(1)(e) provides:

         A judge shall perform judicial duties without
    bias or prejudice. A judge may not, in the performance
    of judicial duties, by words or conduct, manifest bias
    or prejudice, including bias or prejudice based upon
    race, gender, religion, national origin, disability,
    age, sexual orientation or socioeconomic status, and
    may not knowingly permit staff, court officials and
    others subject to the judge's direction and control to
    do so.
    6   SCR 60.04(4) provides:

         Except as provided in sub. (6) for waiver, a
    judge shall recuse himself or herself in a proceeding
    when the facts and circumstances the judge knows or
    reasonably should know establish one of the following
    or     when    reasonable,     well-informed     persons
    knowledgeable about judicial ethics standards and the
    justice   system   and   aware   of    the   facts   and
    circumstances the judge knows or reasonably should
    know would reasonably question the judge's ability to
    be impartial.


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       The P.E. Criminal Case

       ¶15    Between     August        2014    and    August    2015,     Judge    Piontek
presided over a criminal case involving defendant P.E.                              P.E., a
former nurse, pled guilty in June 2014 before another judicial
official to two counts of delivery of non-narcotic controlled
substances.        A presentence investigation (PSI) was ordered, and
the matter was scheduled for sentencing before Judge Piontek on
October 6, 2014.
       ¶16    On    October        3,     2014,       Judge    Piontek       conducted    an
independent        internet        investigation        concerning        P.E.'s    nursing
licenses and related matters in several states.                             Judge Piontek
did    so    because    he    believed         that    P.E.    was   untruthful     in    her

comments      to    the      PSI     writer.          Judge     Piontek's       independent
internet investigation led him to discover what he believed to
be    incriminating       information           from    the     states     of    Texas    and
Illinois.       Judge Piontek incorrectly deduced from his research
that P.E. had never been licensed as a nurse in Illinois.
       ¶17    Prior to sentencing, Judge Piontek did not provide the
parties or their attorneys with either notice of his intent to
conduct his investigation or the nature of his investigation and
its results.
       ¶18    At   P.E.'s      sentencing           hearing,    Judge     Piontek    waited
until after the parties' arguments were completed and after P.E.
exercised her right of allocution to discuss the results of his

independent investigation.                    P.E. and her attorney did not have
an    opportunity      to view          the    documents that        Judge      Piontek   had
apparently      printed       from      his    internet       research.    Judge    Piontek
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stated that, according to his independent research, P.E. never
had an Illinois nursing license.                When P.E. attempted to provide
information about her Illinois nursing license, Judge Piontek
told her that her "lies are getting [her] in trouble," suggested
that she "close [her] mouth," stated that her "license in the
State of Illinois does not exist," and said that he did not want
any   further    comment      from    her.7      When      sentencing    P.E.,   Judge
Piontek relied on the incorrect information he had obtained from
the internet regarding P.E.'s Illinois nursing license.
      ¶19   P.E.      filed      a     postconviction          motion      requesting
resentencing     because      Judge    Piontek,       at   sentencing,     relied    on
inaccurate information resulting from his internet research.                        At

a hearing on that motion, Judge Piontek implicitly acknowledged
conducting      an   independent       investigation,          asserting     that    he
simply sought out the truth and relied on public records.                        Judge
Piontek denied P.E.'s resentencing request, essentially taking
the position that he did not rely on the inaccurate information.
He claimed that "whether she had an Illinois license or didn't

have an Illinois license, that wasn't a big deal to me."
      ¶20   P.E.     appealed.        The     court   of    appeals     reversed    her
judgment of conviction and the order denying resentencing, and
remanded the matter for resentencing before a different judge.
The court of appeals concluded that the record was inconsistent


      7We take these quotes from the decision on P.E.'s appeal,
described below, which quoted extensively from the sentencing
hearing.


                                            8
                                                                           No.     2018AP1033-J



with    Judge      Piontek's    assertion           that   he    did     not     rely    on   the
misinformation          obtained      from      his     independent            investigation.
Therefore, the court of appeals concluded, Judge Piontek denied
P.E. her right to be sentenced upon accurate information.
       ¶21    In    his    brief    to    the       Judicial      Conduct       Panel,    Judge
Piontek       implicitly       conceded         that       his     independent          factual
investigation was not an isolated instance of this conduct.                                    He
stated    that      "[l]ong    before      his       formal      appearance       before      the
Judicial      Commission,          Judge       Piontek        ceased      conducting          any
independent factual research in cases before him."                               The Judicial
Conduct Panel construed the plain meaning of this statement to
be     that     Judge      Piontek       had        conducted      independent          factual

investigations in other "cases," but that he had stopped this
practice.
       ¶22    The Judicial Commission's complaint alleged, and the
Judicial        Conduct       Panel      concluded,           that       Judge      Piontek's
investigation         of      P.E.'s       background            prior     to      sentencing
constituted a willful violation of SCR 60.04(1)(g), the comment

to which states, "[a] judge must not independently investigate
facts in a case and must consider only the evidence presented."
       ¶23    The Judicial Commission's complaint also alleged, and
the    Judicial      Conduct       Panel       concluded,        that     Judge     Piontek's
conduct violated his obligations:
          •   pursuant to SCR 60.02, to participate in establishing,
              maintaining, and enforcing high standards of conduct
              and to personally observe those standards; and


                                                9
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          •   pursuant to SCR 60.03(1), to comply with the law and
              act   at all times        in   a manner that        promotes         public
              confidence in the integrity and impartiality of the
              judiciary.
      ¶24     The   Judicial     Conduct       Panel    concluded      that      each   of
these     violations    was     willful      and   thus    constituted           judicial
misconduct under Wis. Stat. § 757.81(4)(a).8
        ¶25   We    adopt      the     panel's     undisputed          findings         and
conclusions of law.           We therefore turn to the question of the
appropriate discipline for the misconduct.
        ¶26   In    imposing        discipline——which       may     be     reprimand,
censure, suspension, or removal——we must bear in mind that the

goal of judicial discipline is not to punish the erring judge,
but to protect the public from unacceptable judicial behavior,
considering both the seriousness of the judge's misconduct and
the     likelihood     that    it    would     recur.      See    In      re     Judicial

Disciplinary Proceedings Against Crawford, 2001 WI 96, ¶38, 245
Wis. 2d 373, 629 N.W.2d 1.               The sanction that we impose must
also "convey to the public the gravity with which this court
views judicial misconduct."             Id., ¶39.       We impose discipline on
a de novo basis, benefitting from but not bound by the panel's
recommendation.       See id., ¶38.




      8Wisconsin Stat. § 757.81(4)(a) states that misconduct
includes "[w]illful violation of a rule of the code of judicial
ethics."


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         ¶27    In recommending a suspension between five and 15 days,
the Judicial Conduct Panel found both mitigating and aggravating
factors.         On the mitigating side, the panel noted that Judge
Piontek        has a long history           of community          involvement;          has    no
history of prior ethics complaints; and did not act to satisfy
personal desires or receive any personal benefit.                               In addition,
the panel gave "some" weight, but not significant weight, to the
fact that Judge Piontek had served only about two years on the
bench     when    he    engaged     in    the     conduct    at    issue.         The    panel
declined to assign additional weight to this factor on the basis
that Judge Piontek's 38 years of practice experience, including
as   a    county       prosecutor,       should    have     made    him    aware     of       the

prohibitions on ex parte communications, judicial involvement in
plea bargaining, and independent factual research specific to
parties.
         ¶28    Also    on   the    mitigating       side,    the    Judicial        Conduct
Panel noted that Judge Piontek now appears to understand that he
may not engage in the type of conduct underlying his violations

and, thus, has indicated an effort to modify his conduct.                                     The
panel also gave "some" weight, but not significant weight, to
the fact that Judge Piontek's misconduct was somewhat isolated,
though the panel noted that Judge Piontek implicitly conceded
that     he    had     engaged     in   independent       factual    investigation             in
other cases.           The panel further noted that Judge Piontek did not
attempt to conceal his misconduct, and, as to the P.E. case, did
not seem aware that his behavior was improper.


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       ¶29      The   Judicial      Conduct          Panel    went     on    to     discuss    a
variety of factors on the aggravating side of the scale.                                      The
panel noted that Judge Piontek's misconduct occurred while he
was representing the judicial system within the courtroom.                                   The
nature of his misconduct was serious; it showed bias and had the
potential to unfairly affect the outcomes of the cases at issue,
and therefore was of the sort that damages public confidence in
judicial integrity, judicial impartiality, and fairness in the
decision-making process.              The panel also determined that, as to
the S.S. case, Judge Piontek was not credible in asserting he
was unaware of the impropriety of his ex parte communication
with the prosecutor in which he commented on the defendant's

culpability and the need for any plea agreement to include a
felony conviction.
       ¶30      Also weighing on the aggravating side of the scale,
according to the Judicial Conduct Panel, was Judge Piontek's
delay      in   admitting     some    of    his       conduct    and    his       attempts    to
minimize        the   impropriety          of    his     conduct.             For     example,

concerning the S.S. case, Judge Piontek at first falsely denied
to the Judicial Commission that he had made the phone call to
the     prosecutor       or   the    statements          in     question.            While     he
eventually admitted his actions, he chalked his initial denial
up    to   a    faulty   memory      and    downplayed        his    statements        to     the
prosecutor as "off-handed."                In so doing, the panel wrote, Judge
Piontek appeared to have only admitted his wrongdoing when he
was caught, in the apparent hope that it would mitigate any
punishment.
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      ¶31   Judge Piontek's failure to acknowledge the seriousness
of his misconduct was also apparent in his handling of the P.E.
case, according to the Judicial Conduct Panel.                           The panel noted
that the court of appeals' decision in the P.E. case quoted
extensively from a postconviction hearing in which Judge Piontek
did   not     acknowledge         the     impropriety          of    his        independent
investigation,       but   instead       explained       that       he    conducted       his
investigation because he was dissatisfied with the information
in the PSI——an assertion that Judge Piontek largely repeated in
his brief to the panel.                 Also at the postconviction hearing,
Judge Piontek dismissed any notion that he did not give P.E.
sufficient    time    to     respond      to    his   internet           research    as   an

example of blame-shifting by P.E.                Judge Piontek also claimed at
the postconviction hearing that he did not rely on the erroneous
results of his independent research at sentencing——a claim that
the court of appeals rejected as inconsistent with the record.
      ¶32   The Judicial Conduct Panel declined to accept Judge
Piontek's    other    attempts      to    downplay       the    seriousness         of    his

misconduct.     For example, Judge Piontek attributed all of his
misconduct to a newcomer's misunderstanding of the judge's role
in felony court versus more collaborative settings; e.g., the
veterans treatment court.                The panel was unpersuaded, noting
that Judge Piontek, from his long experience as a lawyer, was
surely   familiar     with    a    judge's      normal    role.           The    panel    was
similarly unpersuaded by Judge Piontek's claim that his heavy
criminal caseload helped explain his behavior.                           The panel found


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this explanation implausible given that Judge Piontek's behavior
involved devoting extra time to the cases in question.
       ¶33    The      Judicial    Conduct          Panel    cited     three         cases      as
particularly          analogous     to     this       matter:         In       re     Judicial

Disciplinary Proceedings Against Carver,                        192    Wis. 2d 136, 531
N.W.2d 62       (1995);     In     re     Judicial          Disciplinary        Proceedings
Against Calvert, 2018 WI 68, 382 Wis. 2d 354, 914 N.W.2d 765;
and In re Judicial Disciplinary Proceedings Against Aulik, 146
Wis. 2d 57, 77, 429 N.W.2d 759 (1988).                       In Carver, we imposed a
15-day suspension after a judge failed to promptly disqualify
himself from a criminal case pending against a friend.                                The case
arose    from     a    gambling    investigation.               The   judge         failed      to

truthfully disclose his communications with the defendant, and
made on-the-record comments that minimized the seriousness of
the     offense        charged,      questioned           the    legitimacy              of     the
investigation and prosecution of the defendant's case and others
like it, and suggested that minimum sentences should be imposed
for    such   crimes.        See     Carver,        192     Wis. 2d    at    137-46.            We
concluded       that      the      judge's          aggravated        failure            to    act
impartially,          objectively,       and    truthfully       warranted           a    15-day
suspension.         Id. at 154-55.
       ¶34    In Calvert, we imposed a 15-day suspension as a result
of a circuit court commissioner's independent investigation of
the facts of a case before him, which included engaging in ex
parte communication, and his false statements to the parties
that    any   further      calls     to   police       about     their      dispute           would
result in disorderly conduct tickets that would be sustained
                                               14
                                                                                     No.   2018AP1033-J



throughout the judicial system.                            We held that the commissioner's
conduct was "undeniably serious" because "a judge's objectivity
and impartiality are critical to the proper functioning of the
judicial system."                 Calvert, 382 Wis. 2d 354, ¶26.

        ¶35    In Aulik, we imposed a 90-day suspension as a result
of a circuit court judge's ex parte communications with counsel
on    the     merits         of    a    contested          matter,    and       failure       to    fully
disclose the communications to counsel for the other party after
the communications were discovered.                               Aulik, 146 Wis. 2d at 58-
59, 73-79.
        ¶36    Analogizing              these       cases    to    the    facts       at   hand,        the
Judicial Conduct Panel reasoned that Judge Piontek's misconduct

deserved more than the sanction he requested:                                   a reprimand.            The
Judicial       Conduct            Panel       also    concluded          that    Judge        Piontek's
statements during the course of these proceedings showed that he
did   not     appreciate the                  serious nature         of his violations and
their    impact         on    the       integrity       of    the    judicial         system.           The
Judicial       Conduct            Panel       therefore      recommended         that      the      court
impose a suspension ranging from five to 15 days.
        ¶37    We       agree       with       the    Judicial       Conduct          Panel    that       a
suspension,          rather            than     a    reprimand,          is     in    order.            The
misconduct         in     this         case    is     concerning.             Regardless        of      his
newness       to    the      bench        or    the    weight       of    his    caseload,          Judge
Piontek's       ex      parte          communication         with    the      prosecutor           on   the
merits      of a        criminal         case was obviously               unethical; even the
newest and busiest judge must know as much.                                   In addition, Judge
Piontek's       independent              investigation            concerning         P.E.'s    nursing
                                                      15
                                                                            No.    2018AP1033-J



licenses plainly violated his duty of neutrality; it is clearly
improper      for        a      judge     to     both       conduct      an       independent
investigation and to fail to give a party a chance to respond to
the judge's misinformed allegations based on that investigation.
We also share the Judicial Conduct Panel's concern that Judge
Piontek's     initial         denials     and    later      defenses     of       his    conduct
suggest that, for much of these proceedings, he failed to fully
appreciate the seriousness of his misconduct and its impact on
the judicial system.                  Simply put, this was not a close case
under the undisputed facts, and a reprimand, as Judge Piontek
requests, would be an insufficient response.
      ¶38    Finding          that    suspension      is     warranted,       the       question

becomes what length of suspension is appropriate.                                     As stated
above,      the    Judicial          Conduct    Panel      recommended        a    suspension
ranging from five to 15 days.                   We conclude that a suspension at
the bottom end of this range is warranted.                            Acknowledging that
the imposition of discipline is not an exact science, we find
that Judge Piontek's conduct was not as egregious as that which

resulted     in        15-day    suspensions         in    Carver     and     Calvert,        and
thereby warrants a lesser sanction.                        In Carver, we noted, among
other things, that the respondent-judge used his judicial office
in   order    to       make     an    on-the-record         criticism       of    a     gambling
investigation.           Carver, 192 Wis. 2d at 139, 154.                   In Calvert, we
noted, among other things, that the respondent-judge gave the
impression        to    the     litigants       before      him   that      the       judge   had
essentially       rigged        the    judicial      and    criminal     justice         systems
against them.            Calvert, 382 Wis. 2d 354, ¶¶19, 21, 26.                           Judge
                                                16
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Piontek's actions, while misguided and serious, do not rise to
the same level of impropriety.                As we previously noted, the goal
of judicial discipline is not to punish the erring judge, but to
protect the public from unacceptable judicial behavior.                            Id.,

¶22.      We    believe        this   goal    will   be    adequately     served    by
suspending Judge Piontek for five days.
       ¶39     IT IS ORDERED that Michael J. Piontek is suspended
from   the     office     of    circuit      judge   without   compensation,       and
prohibited from exercising any of the powers or the duties of a
circuit      judge   in        Wisconsin,     for    a    period   of    five   days,
commencing June 24, 2019.




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