                                                            2020 WI 39

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2018AP1781-D


COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Robert B. Moodie, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant-Respondent,
                            v.
                       Robert B. Moodie,
                                 Respondent-Appellant.

                           DISCIPLINARY PROCEEDINGS AGAINST MOODIE

OPINION FILED:         April 22, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 13, 2020

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
ZIEGLER, J. dissents, joined by ROGGENSACK, C. J.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J. did not participate.

ATTORNEYS:



      For the respondent-petitioner, there were briefs filed by
Terry E. Johnson and von Briesen & Roper, S.C., Milwaukee.           Oral
argument by Terry E. Johnson.


      For the complainant-respondent, there was a brief filed by
Thomas Laitsch and Office of Lawyer Regulation, Madison.             Oral
argument by Thomas Laitsch.
                                                                  2020 WI 39
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.    2018AP1781-D


STATE OF WISCONSIN                      :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Robert B. Moodie, Attorney at Law:

Office of Lawyer Regulation,                                    FILED
             Complainant-Respondent,                       APR 22, 2020
      v.                                                       Sheila T. Reiff
                                                           Clerk of Supreme Court
Robert B. Moodie,

             Respondent-Appellant.




      ATTORNEY    disciplinary   proceeding.       Attorney's         license

suspended.


      ¶1   PER CURIAM.    This disciplinary matter comes to the

court on Attorney Robert B. Moodie's appeal of a report and

recommendation of Referee James W. Mohr, Jr.           The referee based

his report in part on Attorney Moodie's stipulation to the two

counts of misconduct alleged in the Office of Lawyer Regulation's

(OLR) complaint involving his conversion of fees belonging to his

law firm to his personal use.    Attorney Moodie reserved his right

to be heard on the matter of sanctions.       After holding a hearing
on sanctions and receiving post-hearing briefs, the referee issued
                                                         No.   2018AP1781-D



a report recommending that the court suspend Attorney Moodie's law

license for a period of six months, and order Attorney Moodie to

pay the full costs of this proceeding, which total $6,081.63 as of

January 15, 2020.

      ¶2    When we review a referee's report and recommendation in

an attorney disciplinary case, we affirm the referee's findings of

fact unless they are found to be clearly erroneous, but we review

the referee's conclusions of law on a de novo basis.                In re

Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305

Wis. 2d 71, 740 N.W.2d 125.   We determine the appropriate level of

discipline to impose given the particular facts of each case,

independent of the referee's recommendation, but benefiting from

it.   In re Disciplinary Proceedings Against Widule, 2003 WI 34,

¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

      ¶3    After reviewing this matter and considering Attorney

Moodie's appeal, we accept the referee's factual findings and legal

conclusions based on the parties' stipulation.         We agree with the

referee's    recommendation   that     a   six-month     suspension     is
appropriate, despite Attorney Moodie's arguments to the contrary.

We order Attorney Moodie to pay the full costs of this disciplinary

hearing.

      ¶4    The OLR initiated this disciplinary proceeding with the

filing of a two-count complaint.       Attorney Moodie filed an answer

in which he generally admitted the factual allegations of the

complaint, as well as the two counts of alleged misconduct.

Attorney Moodie later entered into a stipulation in which he pled
no contest to the misconduct alleged in the complaint, and agreed
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that the referee could use the allegations of the complaint as an

adequate factual basis for a determination of misconduct.

      ¶5   The referee's report accepted the parties' stipulation

and   determined   that    the   stipulated       facts     supported     legal

conclusions that Attorney Moodie had engaged in the two counts of

misconduct alleged by the OLR.         The referee's factual findings and

conclusions of law are described in the following paragraphs.

      ¶6   Attorney    Moodie    was       admitted   to   practice     law    in

Wisconsin in 1982.        He practiced at a law firm in Waukesha,

Wisconsin for over 30 years.      He has no disciplinary history.

      ¶7   In September 2016, Attorney Moodie suffered a serious

health event resulting in a lengthy hospitalization.                     During

Attorney Moodie's absence, other members of the firm assumed

responsibility for his client files, including the management of

his billing.   While handling Attorney Moodie's files and billing,

the firm discovered that over an 18-month period, Attorney Moodie

had converted fees in five client matters for his personal use.

It is undisputed that in some matters, he received billed fees
directly from the client and failed to tender them to the firm; in

others, he collected money directly from the client and then wrote-

off his billable time.      The converted fees totaled $8,665.                Had

Attorney Moodie not converted these fees, he would have ultimately

received 55-60 percent of them under the terms of the firm's

compensation system.

      ¶8   In November 2016, after the firm discovered Attorney

Moodie's   misappropriations,     Attorney       Moodie    consented    to    the
redemption of his shares in the firm, ending his employment there.
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As part of the redemption, any claims by the firm against Attorney

Moodie were settled.

      ¶9       The firm reported Attorney Moodie's conduct to the OLR,

and the OLR commenced this disciplinary matter.                                As noted earlier,

Attorney Moodie stipulated to the two counts of misconduct alleged

by the OLR:

              Count 1: By converting at least $8,665 in fees belonging

               to his law firm for his own personal use, Attorney Moodie

               violated SCR 20:8.4(c).                     That rule provides:            "It is

               professional       misconduct           for     a    lawyer       to   engage    in

               conduct        involving          dishonesty,             fraud,       deceit    or

               misrepresentation."

              Count 2:       By failing to tender and report to his law

               firm    fees    that    he    received,             and    by    misrepresenting

               write-offs of billable time to his firm, Attorney Moodie

               breached his fiduciary duty to his firm, and his duty of

               honesty in his professional dealings with the firm, in

               violation of the standard of conduct set forth in In re
               Disciplinary Proceedings Against Shea, 190 Wis. 2d 560,

               527 N.W.2d 314 (1995).                  See SCR 20:8.4(f) (providing

               that "[i]t is professional misconduct for a lawyer to

               violate a statute, supreme court rule, supreme court

               order or supreme court decision regulating the conduct

               of lawyers.")

      ¶10      Referee Mohr held a sanctions hearing.                           Attorney Moodie

testified, and was at a loss to explain his actions.                              His household
was   not      short   of     money.        He       and    his     law    partners      had   had
                                                 4
                                                   No.   2018AP1781-D



professional disagreements, but he declined to categorize his

misappropriations as a form of retribution.   He had health issues

and gambling issues during the period of his misconduct, but he

did not cite them as a reason for his misconduct, and he has not

raised a medical defense in these proceedings.     Attorney Moodie

also confirmed that, under his firm's compensation system, he would

have ultimately collected between 55-60 percent of the $8,665 in

fees that he misappropriated, making his actions, in his words,

"just wrong and dumb."

     ¶11   In post-hearing briefing, the OLR asserted that a one-

year suspension was appropriate, whereas Attorney Moodie argued

that no more than a 60-day suspension was appropriate.

     ¶12   In his report, the referee recommended that the court

suspend Attorney Moodie's law license for six months.     In making

this recommendation, the referee discussed various mitigating and

aggravating circumstances.   On the mitigating side, the referee

noted that Attorney Moodie had been a member of his law firm for

over 30 years, without any past disciplinary issues.     The amount
of the misappropriation was relatively small, and Attorney Moodie

has repaid it.   He has admitted his misconduct, cooperated with

the OLR, and expressed sincere remorse.   On the aggravating side,

the referee noted that Attorney Moodie converted fees over a period

of 18 months, without any obvious motive.        Considering these

circumstances together with the range of discipline imposed in

previous cases involving the misappropriation of firm funds, the

referee concluded that a six-month suspension was in order.


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     ¶13   On appeal, Attorney Moodie argues that the referee's

recommended six-month suspension is excessive.       He claims that

this case is most analogous to In Re Disciplinary Proceedings

Against Casey, 174 Wis. 2d 341, 496 N.W.2d 94 (1993), where the

court imposed a stipulated 60-day suspension on a lawyer who

misappropriated three client retainers totaling $2,300.      Attorney

Moodie argues that his case involves a similar amount of clients

and money, and that he, like the respondent-lawyer in Casey,

stipulated to the misconduct in question.      Thus, he reasons that

a 60-day suspension is as appropriate here as it was in Casey.

Attorney Moodie also argues that his conduct is mitigated by a

variety of factors, including that it was an inexplicable departure

from his normal character and from common sense.           This is an

"unusual and baffling" case, he says, because "there was no cause,

basis[,] or motivation for the conversions."    Attorney Moodie also

notes that a six-month suspension will require him to go through

the reinstatement process, see SCR 22.28(3), which can add as much

as 18 months on to a suspension period.      Attorney Moodie claims
that an "effective suspension" of two years "may well be the

equivalent of revocation" given his age and health issues.

     ¶14   The OLR responds that the facts and the law support the

recommended six-month suspension.    The OLR argues that Attorney

Moodie engaged in an 18-month period of deceit and dishonesty, and

he presents no excuse for his behavior.    His reliance on Casey is

misplaced, the OLR says, because the respondent-lawyer in Casey

was an inexperienced first-year associate, not a shareholder and
trusted 30-year member of the firm.       Moreover, the Casey court
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                                                                      No.        2018AP1781-D



announced     that,       going    forward,       the   court      would    sanction        a

misappropriation of firm funds as severely as a misappropriation

of client funds.           Casey, 174 Wis. 2d at 341-43.                  The court has

held true to its word, the OLR says, as evidenced by such cases as

In re Disciplinary Proceedings Against Olson, 216 Wis. 2d 483, 574

N.W.2d 245     (1998)      (one-year        suspension     for     lawyer        who    wrote

himself unauthorized law firm checks totaling $11,250 from the

firm's bank account, and then deleted some of them from the firm's

check   register),        and     In   re    Disciplinary       Proceedings         Against

Schaller, 2006 WI 40, 290 Wis. 2d 65, 713 N.W.2d 105 (two-year

suspension for lawyer who retained about $4,300 in client funds

for his own use, failed to report that money on his tax returns,

and practiced law for three-and-a-half months while his license

was administratively suspended).                  Finally, the OLR acknowledges

that a six-month suspension would require Attorney Moodie to go

through the formal reinstatement process——a positive consequence,

the   OLR    says,    given       that      Attorney    Moodie      has     no     rational

justification for his behavior.               His inability to explain his own
actions     makes    it    prudent     to    require    him   to    prove        his    moral

character and fitness for re-licensure.

      ¶15    As we view the matter, the OLR has the better of the two

arguments.     We agree with the OLR that Attorney Moodie's reliance

on    Casey——where        we      imposed     a   60-day      suspension          for    the

misappropriation of three client retainers totaling $2,300——is

misplaced.     Our modest 60-day suspension imposed in Casey came

with an explicit disclaimer:                  we issued it "on the basis of
discipline previously imposed for similar misconduct."                           Casey, 174
                                              7
                                                         No.   2018AP1781-D



Wis. 2d at 341 (emphasis added).       "[L]est attorneys rely on our

disposition of this proceeding or prior proceedings involving

similar attorney misconduct," we explicitly directed the State Bar

to "bring to the attention of its members" the fact that "in the

future the court will treat an attorney's misappropriation of funds

belonging to another lawyer, associate or firm in practice with

that lawyer no differently than it treats misappropriation of funds

belonging to a lawyer's client," and this behavior "will be

disciplined severely."    Id. at 341-43.     In other words, we warned

in Casey that when it comes to modest 60-day suspensions for

misappropriation of firm funds, that was then, this is now, and

things have changed.     And so they have:        since Casey, we have

consistently   imposed   suspensions   of   at   least   six   months   for

misappropriations of firm funds.1 The six-month suspension imposed

here fits comfortably within this caselaw.

     1 See In Re Disciplinary Proceedings Against Curran, 180
Wis. 2d 540, 509 N.W.2d 429 (1994) (imposing two-year suspension);
In Re Disciplinary Proceedings Against Shea, 190 Wis. 2d 560, 527
N.W.2d 314 (1995) (imposing six-month suspension);          In Re
Disciplinary Proceedings Against Olson, 216 Wis. 2d 483, 574
N.W.2d 245   (1998)   (imposing  one-year   suspension);   In   Re
Disciplinary Proceedings Against Brown, 2005 WI 49, 280
Wis. 2d 44, 695 N.W.2d 295 (imposing 18-month suspension); In Re
Disciplinary Proceedings Against Peterson, 2006 WI 41, 290
Wis. 2d 74, 713 N.W.2d 101 (imposing two-year suspension); In Re
Disciplinary Proceedings Against Schaller, 2006 WI 40, 290
Wis. 2d 65, 713 N.W.2d 105 (imposing two-year suspension); In Re
Disciplinary Proceedings Against Siderits, 2013 WI 2, 345
Wis. 2d 89, 824 N.W.2d 812 (imposing one-year suspension); In Re
Disciplinary Proceedings Against Koenig, 2015 WI 16, 361
Wis. 2d 16, 859 N.W.2d 105 (imposing two-year suspension); In Re
Disciplinary Proceedings Against Hotvedt, 2016 WI 93, 372
Wis. 2d 68, 888 N.W.2d 393 (imposing 18-month suspension); In Re
Disciplinary Proceedings Against Trupke, 2018 WI 43, 381
Wis. 2d 136, 911 N.W.2d 361 (imposing one-year suspension).
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     ¶16   We also hold that the fact that we only know what

Attorney Moodie did (misappropriate firm funds) and how he did it

(billing improprieties), and have no idea why he did do so, cuts

against an argument of mitigation.    When it comes to evaluating

the discipline owed for a lawyer's misconduct, the "why" is often

as important as the "what" and the "how."    We decline to establish

a precedent whereby the lack of a rational explanation for a

lawyer's misconduct serves to mitigate the sanction owed for it.

A shrug of the shoulders is not a defense.

     ¶17   If anything, Attorney Moodie's inability to explain his

behavior weighs in favor of a six-month suspension, which will

require him to successfully complete the formal reinstatement

process in order to regain his Wisconsin law license.       See SCRs

22.29–22.33.   This process will require Attorney Moodie to fully

account for his moral lapses and explain how they have been

addressed to ensure they will not happen again.      See SCR 22.31;

see also In re Disciplinary Proceedings Against Arthur, 2005 WI

40, ¶78, 279 Wis. 2d 583, 694 N.W.2d 910 (lawyer disciplinary
system aims to prevent unethical lawyers from repeating their

misconduct).   As for Attorney Moodie's claim that the length of

the reinstatement process may preclude him from practicing again

given his age and health, we have made clear that we will not

"countenance a rule that would soft-pedal the discipline owed to

attorneys" who commit misconduct "so long as they do so in the

twilight of their careers." In re Disciplinary Proceedings Against

Carter, 2014 WI 126, ¶26, 359 Wis. 2d 70, 856 N.W.2d 595.


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     ¶18   We    do    not,   however,          impose     the    condition      of

reinstatement recommended by the referee:

     that in the       event Attorney Moodie's law license is
     restored and     he resumes practice, it be on the condition
     that for a         period of three years following such
     restoration,     he practice only as a sole proprietor or as
     an employee,      and not as a partner or shareholder in a
     law firm.
Neither party has voiced support for this condition.                          It is

unclear how requiring Attorney Moodie to practice as a sole
proprietor, with no collegial oversight, or as an employee would

deter   future   misconduct       of    the     type     that    occurred     here.

Consequently, we decline to impose this recommended condition of

reinstatement.

     ¶19   Because     Attorney        Moodie     has     already      made    full

restitution to his former firm, no restitution award is sought,

and none is ordered.

     ¶20   Finally, as is our general practice, we impose full costs

on Attorney Moodie, which total $6,081.63 as of January 15, 2020.

Neither the OLR nor Attorney Moodie challenges the imposition of

full costs.

     ¶21   IT IS ORDERED that the license of Robert B. Moodie to

practice law in Wisconsin is suspended for a period of six months,

effective June 3, 2020.

     ¶22   IT IS FURTHER ORDERED that within 60 days of the date of

this order, Robert B. Moodie shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $6,081.63 as of

January 15, 2020.



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                                                     No.    2018AP1781-D



    ¶23   IT IS FURTHER ORDERED that, to the extent that he has

not already done so, Robert B. Moodie shall comply with the

provisions of SCR 22.26 concerning the duties of a person whose

license to practice law in Wisconsin has been suspended.

    ¶24   IT   IS   FURTHER   ORDERED   that   compliance   with    all

conditions with this order is required for reinstatement.           See

SCR 22.29(4)(c).

    ¶25   ANN WALSH BRADLEY, J., did not participate.




                                 11
                                                        No.   2018AP1781-D.akz


     ¶26    ANNETTE    KINGSLAND    ZIEGLER,     J.    (dissenting).         I

respectfully dissent because I believe that when it comes to lawyer

discipline, courts should say what they mean and mean what they

say, and here the discipline imposed will far exceed that which is

stated.    While we have consistently said there is no fixed formula

for determining the "right" amount of lawyer discipline, that

amounts to lip service because here we abdicate the responsibility

we have to individualize our determinations when it comes to lawyer

discipline and should not instead default to a mandatory minimum

set in another case based upon other facts.             See, e.g., In re

Disciplinary Proceedings Against Siderits, 2013 WI 2, ¶33, 345

Wis. 2d 89, 824 N.W.2d 812, (acknowledging that the imposition of

discipline    in    attorney   disciplinary    cases   "is    not   an   exact

science").    Each case is different, we say, and discipline must be

tailored to each case's unique facts.           See id., ¶¶31-32.        Here,

the court imposes what it views as a mandatory minimum six-month

suspension of Attorney Moodie's license even though, in reality,

a six-month suspension may very well be three or four times that
amount because of the required reinstatement process.               See SCRs

22.29-22.33.       In other words, for Attorney Moodie, a six-month

suspension could be two years and perhaps the equivalent of

revocation.    Here, that is excessive.        We should decide each case

independently.

     ¶27    The referee concluded that here any suspension must be

for a minimum period of six months because a previous case stated

as much and the cases in its wake have gone no lower.               See In re
Disciplinary Proceedings Against Casey, 174 Wis. 2d 341, 341-42,

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                                                                No.    2018AP1781-D.akz


496 N.W.2d 94 (1993); see, e.g., In re Disciplinary Proceedings

Against Shea, 190 Wis. 2d 560, 572, 527 N.W.2d 314 (1995).                           I

disagree      that    this    court,      when   essentially      acting      as   the

"sentencing" decision maker in a lawyer discipline case, is forever

hamstrung from exercising any discretion.                 I disagree that we are

bound to a mandatory minimum six-month penalty because of other

fact-dependent cases.           I disagree that we should have judicially

imposed automatic mandatory minimum penalties for all such cases

going    forward     no    matter   the    evidence.       If    we    so    constrain

ourselves, there is little room for judicial decision making or

case-specific determinations, and we abdicate our responsibility

to weigh and consider what is appropriate discipline in each

individual case.          We should not be so robotically confined.

     ¶28      The record below demonstrates that absent this perceived

constraint, the referee's recommendation would likely have been

less than six months and definitely not for up to two years.                       The

record    makes      clear   that   Attorney     Moodie's       case    was   notably

different than the cases relied upon by the OLR.                        For example,
Attorney Moodie's conduct is less severe than that in Shea.                         In

fact,    as    the    referee    noted,     there   are    numerous         mitigating

circumstances present in this case:

     [Attorney Moodie] was the senior partner in a well-
     established and well-respected firm, having been a
     member of the firm for over 30 years, he has no prior
     disciplinary record, the amount taken by [Attorney
     Moodie] which should have gone to his partners
     (approximately $3,000 to $3,500) was relatively small
     and has been fully repaid, he and his firm have resolved
     all issues between them[.]



                                           2
                                                  No.   2018AP1781-D.akz


     ¶29    The referee's findings further reflect that Attorney

Moodie was forthright and sincere.    The referee noted:

     [Attorney Moodie] has admitted his misconduct, is
     extremely and sincerely remorseful for it, and has fully
     cooperated in the OLR investigation, stipulating to all
     of the relevant facts.
     ¶30    In addition, Attorney Moodie apparently had a heart

attack and resultant health issues that will affect his practice

of law, may have played a role in the violation at issue, and ought

to be considered to some degree.   From the record, it appears that

his conduct is completely out of character and will not occur

again.     There is virtually no chance Attorney Moodie will work

with other lawyers in a law firm setting again.     He is not then a

threat to taking other lawyers' money.     The record also reflects

that the amounts he converted may have ultimately been due to him.

The evidence here reveals that unlike some, Attorney Moodie is not

a threat to the legal profession, clients, or others as his

practice will be significantly limited because of his health.         A

suspension less than six months is appropriate in this case, and

therefore I would suspend Attorney Moodie's license for five months
and 28 days, which really is six months.

     ¶31    This court ties its hands when it claims that Wisconsin

precedent establishes a six-month suspension floor.       In fact, in

Casey, this court imposed a 60-day suspension for an attorney who

misappropriated three client retainers rather than those funds

going to his partners.      174 Wis. 2d at 342.     Like this case,

Attorney Casey stipulated to his wrongful conduct and the court
agreed and suspended him for 60 days.      Id.   The referee in this

case, however, felt constrained by the fact that this court has
                               3
                                                           No.    2018AP1781-D.akz


not imposed discipline shorter than six months since Casey.                        The

referee explained how Shea was distinguishable because the amount

converted in Shea far exceeded that in the case at issue; unlike

Attorney Moodie, Attorney Shea engaged in misconduct for years;

and unlike Attorney Moodie, Attorney Shea justified and concealed

the conversions by misrepresenting facts to the partners of his

firm.    See, e.g., Shea, 190 Wis. 2d at 561-62, 572.

      ¶32    We should not shirk our duty to carefully consider each

matter independently, taking into account the gravity of Attorney

Moodie's      offense,     its    nature,    implications        on        the   legal

profession, and the need to protect the public.                  Reasonable and

appropriate discipline should be determined on a case-specific

basis.      What is necessary to protect the public from a part-time,

limited solo practitioner who works primarily for friends and long-

time clients?     Does Attorney Moodie understand the gravity of his

behavior and misconduct?            Has he admitted to the wrongdoing,

stipulated to the facts, cooperated fully, and has since seemingly

done everything the right way?          The answers to these questions and
the   evidence    in     this    case   should   impact   what        is    fair   and

appropriate.     The six-month suspension imposed by this court could

very well be the equivalent of two years and/or a revocation, given

Attorney Moodie's age and health issues.            Six months is too much;

I would impose the equivalent of what the court says it is imposing

as discipline, or five months and 28 days.

      ¶33    Just as I recently stated in my dissent to this court's

order denying Rule Petition 19-10, In the Matter of Amending
Supreme Court Rules Pertaining to Permanent Revocation of a License

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                                                      No.   2018AP1781-D.akz


to Practice Law in Attorney Disciplinary Proceedings, we should

say what we mean and mean what we say.           See S. Ct. Order 19-10

(issued Dec. 18, 2019) (Ziegler, J., dissenting).           We should not

be creating false perceptions to both the public and to the lawyer

seeking to practice law again.      When this court ties its own hands

by   instead   of   providing   individualized    consideration     for   a

disciplinary    matter,   setting    a   mandatory   minimum     six-month

suspension (which amounts to far more, perhaps four times that

length), the court abdicates its responsibility.

      ¶34   For the foregoing reasons, I dissent.

      ¶35   I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK joins this dissent.




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    No.   2018AP1781-D.akz




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