Charles A. Nichols v. Board of Bar Examiners

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2017 WI 55 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2016AP1776-BA In the Matter of the Bar Admission of Charles A. Nichols. Charles A. Nichols, Petitioner, v. Board of Bar Examiners, Respondent. BAR ADMISSION OF NICHOLS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: June 2, 2017 February 20, 2017 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: ABRAHAMSON, J. concurs, joined by A.W. Bradley, J. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the petitioner, there were briefs filed by Tamara B. Packard, A.J. Grund and Pines Bach LLP, Madison. For the Board of Bar Examiners, there was a brief filed by Jacquelynn B. Rothstein, Director & Legal Counsel. 2017 WI 55 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2016AP1776-BA STATE OF WISCONSIN : IN SUPREME COURT In the Matter of the Bar Admission of Charles A. Nichols: FILED Charles A. Nichols, Petitioner, JUN 2, 2017 v. Diane M. Fremgen Clerk of Supreme Court Board of Bar Examiners, Respondent. REVIEW of Board of Bar Examiners' decision. Decision reversed and remanded. ¶1 PER CURIAM. This is a review, pursuant to Supreme Court Rule (SCR) 40.08(7), of the final decision of the Board of Bar Examiners (Board) declining to certify that the petitioner, Charles A. Nichols, satisfied the character and fitness requirements for admission to the Wisconsin bar set forth in SCR 40.06(1). The Board's refusal to certify that Mr. Nichols satisfied the character and fitness requirements for admission to the Wisconsin bar was based primarily on Mr. Nichols' No. 2016AP1776-BA academic misconduct during his third year in law school and his failure to disclose certain matters on his bar application. After careful review, we reverse and remand the matter to the Board for further proceedings. ¶2 We applicant. appreciate the Board's concern regarding this We appreciate the thorough investigation the Board conducted into Mr. Nichols' background and past conduct. Mr. Nichols' application raised significant questions about his fitness to practice law. The duty to examine an applicant's qualifications for bar admission rests initially on the Board, and this court relies heavily on the Board's investigation and evaluation. In the final analysis, however, this court retains supervisory authority and has the ultimate responsibility for regulating Admission admission of Rippl, to the 2002 Wisconsin WI 15, ¶3, bar. See 250 Wis. 2d In re Bar 519, 639 N.W.2d 553, and In re Bar Admission of Vanderperren, 2003 WI 37, ¶2, 261 Wis. 2d 150, 661 N.W.2d 27. ¶3 While we understand the Board's decision, we conclude that the incidents the Board relied upon, while troubling, are sufficiently offset by positive character evidence to warrant our conclusion that Mr. Nichols may be admitted to the practice of law in Wisconsin, albeit with conditions. Accordingly, we reverse. ¶4 Wisconsin Mr. Nichols in the began fall of law school 2012. In at the the University summer of of 2014, Mr. Nichols obtained a summer internship with the Office of the Lieutenant Governor. This internship was unpaid, so Mr. Nichols 2 No. 2016AP1776-BA also worked nights and weekends at a restaurant, 35 to 40 hours per week. The Lieutenant Governor's office offered him a paid position at the end of the summer of 2014. ¶5 During the fall of 2014, his third year in law school, Mr. Nichols struggled to manage his work, volunteer service, and academic coursework. He began to neglect his academic work, including a Law of Democracy course. The grade for the course was almost solely based on a thirty-page research paper due at the end of the semester. The syllabus for the course stated that plagiarism would result in a failing grade. ¶6 used Mr. Nichols submitted a final paper. an anti-plagiarism papers. The report software revealed that program to The professor check Mr. Nichols' student final paper contained extensive language copied verbatim or nearly verbatim from four published law review articles, without citations. repetition conclude and that nature this of the could matches not led have the been professor The to coincidental. Mr. Nichols did not credit, in any form, the four law review articles from which he obtained the passages. The professor concluded that large portions of Mr. Nichols' final paper were plagiarized. ¶7 with On January 15, 2015, the professor convened a meeting Mr. Nichols, associate dean. Mr. Nichols "told the director of student affairs, and an When confronted with the apparent plagiarism, them immediately how he had developed the paper [with extensive cutting and pasting], and with complete 3 No. candor." 2016AP1776-BA Mr. Nichols admitted that his paper was "a mess" but said that he did not intentionally commit plagiarism. ¶8 The law school determined that Mr. Nichols had engaged in academic misconduct by submitting a paper that was copied in substantial part from several existing legal publications with no attribution in violation of UWS 14.03(1)(a).1 is reflected in a letter from the professor This conclusion to Mr. Nichols, dated January 23, 2015: During our meeting, you confirmed that you drew material from these sources—in particular, the [law review] article. You further explained that your research and note-taking process involved cutting and pasting passages from [the law review article] and other sources, and you acknowledged that, in your rush to finish the paper, you may have (perhaps unintentionally) reproduced some of those passages without quotation marks, citations, or other attribution. As a sanction, Mr. Nichols received a failing grade on the paper and in the course. The UW-Madison Dean of Students' Office also reviewed the matter requiring Mr. Nichols and to imposed take an integrity and research methods. an additional on-line course on sanction, academic Mr. Nichols did so, and passed the exam. ¶9 In the spring of 2015, his final year, Mr. Nichols failed his required Professional Responsibility course because 1 UWS 14.03(1)(a) provides: "Academic misconduct is an act in which a student [s]eeks to claim credit for the work or efforts of another without authorization or citation." 4 No. 2016AP1776-BA he failed to comply with the attendance policy; a student who received more than three unexcused absences would fail the course. Mr. Nichols retook the course and graduated from law school in December 2015. ¶10 On application SCR 40.03. March to He the 23, 2015, Board disclosed Mr. Nichols pursuant the to academic the submitted his bar diploma privilege, misconduct. However, during the ensuing standard character and fitness review, the Board identified a number of discrepancies and omissions in his bar application, including: Mr. Nichols had failed to report three underage drinking citations on his law school application. He did report them on his bar application. Mr. Nichols later explained that he did not "intend to purposely mislead." He subsequently amended his law school application, and was informed the information would not have affected his admission. Mr. Nichols failed to include on his bar application information regarding a 2007 eviction case in which he was named as a party. He had no actual involvement in the case. A former roommate owed rent and all roommates were listed as parties to the action. The matter was resolved without Mr. Nichols' involvement. Mr. Nichols failed to disclose on his bar application that in 2008, he sought and obtained a restraining order against a former girlfriend, for her harassment of him. Mr. Nichols failed to include information on his bar application regarding a citation he received on March 18, 2009 for an alleged absolute sobriety violation. Mr. Nichols explained that the citation was dismissed because testing revealed no detectible level of alcohol. 5 No. 2016AP1776-BA Mr. Nichols amended his bar application on January 27, 2016 in response to the Board's inquiries. He said these omissions were accidental. ¶11 On April 11, 2016, the Board informed Mr. Nichols that his bar application was at risk of being denied for failing to establish meaning his of good moral SCR 40.06(1) character and Bar and fitness Admission within Rule (BA) the 6.01. Mr. Nichols requested a hearing. ¶12 which The Board conducted a hearing on June 10, 2016, at Mr. Nichols appeared character witnesses supervisor Attorney and testified. including Daniel Suhr, integrity, community convinced diligence, well Professor as and an Robert Mr. Nichols' that academic and former of judgment to in the misconduct, Staff and Legal Attorney Suhr stated he is [Nichols] attorney Yablon, offered Chief Counsel to the Lieutenant Governor. "absolutely also colleague his He the has serve State professor also the his requisite clients and of Wisconsin." who identified supported Mr. Nichols' admission to the bar, stating that he feels Mr. Nichols has been punished enough. ¶13 On August 4, 2016, the Board issued an adverse decision concluding that Mr. Nichols failed to establish good moral character and fitness to practice law in Wisconsin under SCR 40.06(1) and (3). The Board's decision stated, inter alia: In short, Mr. Nichols engaged in a blatant display of plagiarism. By submitting a paper in connection with his Law of Democracy course in which he failed to include four separate sources from which he quoted 6 No. 2016AP1776-BA extensively, and which accounted for over half of the paper, Mr. Nichols was both dishonest and deceptive. His conduct demonstrates that he is not honest, diligent, or reliable. The very next semester, Mr. Nichols took Professional Responsibility, a required law school course, for which he received a failing grade. In the course syllabus, the attendance policy was outlined. According to Mr. Nichols, the policy stated that students who missed more than three (3) classes would receive a failing grade. Mr. Nichols readily conceded that he was aware of that professor's attendance policy but that he missed several classes because of "workload and stuff." Despite having been sanctioned for plagiarism the prior semester, Mr. Nichols still thought that the attendance policy was somehow "subject to change" and would therefore not be applicable to him. His attitude evinces a disregard for rules and authority, and is especially concerning given its close proximity to his plagiarism incident. It suggests a pattern of problematic behavior in which Mr. Nichols does not believe that certain rules and requirements apply to him. Additionally, Mr. Nichols failed to disclose three underage drinking citations to the University of Wisconsin Law School which he reported on his bar application. In an amendment to his bar application, Mr. Nichols explained that because the citations no longer appeared on file in the county in which they were issued, he did not believe that he was required to report them. He went on to explain that "not having gone to law school and not knowing any attorneys" he "just missed" some things on his law school application. The Board did not find Mr. Nichols' explanation for failing to disclose the underage drinking citations to be persuasive. Mr. Nichols also failed to disclose a citation for an absolute sobriety violation, and two civil actions. The first civil matter involved him filing a restraining order against a former girlfriend. The second involved an eviction matter. Mr. Nichols claimed that it was a "misunderstanding" on his part as to why he had not included them in his application to the bar. However, the Board did not find Mr. Nichols' explanations for failing to include these 7 No. items in his convincing. bar application to be 2016AP1776-BA credible or It appears as if Mr. Nichols has engaged in a pattern of behavior in which he disregards certain rules and authority to suit his needs. Mr. Nichols' explanations about his academic misconduct in addition to his omissions on his bar application and his law school application were neither plausible nor believable. Thus, the Board did not find him to be a credible witness. Other than his employment, which Mr. Nichols seemed strongly focused upon—much to the detriment of his academic work, there does not appear to have been any other rehabilitative efforts on his part which would bolster or establish his required character or fitness for admission to the Wisconsin bar. Mr. Nichols' employment is not a sufficient demonstration of rehabilitation to offset his troubling conduct. Moreover, his academic misconduct occurred during his third year of law school, at which point he unquestionably should have known and understood the wrongfulness of committing plagiarism. When his omissions are coupled with his plagiarism, a clear picture emerges wherein disclosures which are not to Mr. Nichols' advantage are necessarily withheld. Such conduct is of grave concern to the Board causing it to wonder how Mr. Nichols would prevent such behavior in the course of dealing with clients in a future legal practice. **** Mr. Nichols' various explanations for engaging in conduct of this type are neither convincing nor persuasive. Mr. Nichols has minimized his behavior, providing excuses at every turn for his actions. He engaged in intentional and wrongful conduct which demonstrates a lack of character and fitness on his part. (Record citations omitted). Mr. Nichols seeks this court's review. ¶14 Mr. Nichols first contends that several of the Board's findings are clearly erroneous and should be rejected by this 8 No. court. 2016AP1776-BA See In re Bar Admission of Rusch, 171 Wis. 2d 523, 528- 29, 492 N.W.2d 153 (1992). He also contends that the Board's legal conclusions are not supported by the record evidence, and that this court must, after Board's conclusions of law. its de novo review, reject the See Rippl, 250 Wis. 2d 519, ¶16; In re Bar Admission of Crowe, 141 Wis. 2d 230, 232, 414 N.W.2d 41 (1987). He maintains that he has met his burden of producing information sufficient to affirmatively demonstrate his present character and fitness. He asks this court to reverse the Board's adverse decision. ¶15 the Board When this court reviews an adverse determination of pursuant to SCR 40.08(7), we adopt the findings of fact if they are not clearly erroneous. Board's In re Bar Admission of Vanderperren, 2003 WI 37, ¶20, 261 Wis. 2d 150, 661 N.W.2d 27. We then determine if the Board's conclusions of law based on those facts are proper. Id. This court retains the ultimate authority to determine who should be admitted to the bar in Wisconsin. While the Board's experience in administering the bar admission rules is appreciated, this court is obligated to make its legal determinations de novo. Rippl, 250 Wis. 2d 519, ¶¶13, 16. ¶16 We reject Mr. Nichols' assertion that the challenged Board findings are clearly erroneous. Mr. Nichols challenges the Board's factual finding that "[b]y submitting a plagiarized paper in connection with his Law of Democracy Mr. Nichols was both dishonest and deceptive." course, Mr. Nichols says that the record does not support the finding that he was ever 9 No. "dishonest" or "deceptive." 2016AP1776-BA He says that "nothing in the record supports the Board's contention that Mr. Nichols' conduct was intended to deceive or serves as evidence of dishonesty." also disputes the Board's finding that he "minimized He the significance of the misconduct in which he had engaged." ¶17 The Board stands by its findings. It found that Mr. Nichols was not credible when explaining his conduct and the omissions Board. on his bar application at the hearing before the The Board maintains that Mr. Nichols has consistently minimized the seriousness of his behavior and contends that this "record clearly reveals that Mr. Nichols has a serious credibility problem." ¶18 The Board's factual findings essentially derive from the facts of the undisputed underlying academic misconduct and omissions on his bar application, coupled with its credibility determinations made at the Board hearing. own We are disinclined to second guess credibility determinations made by factfinders. Nothing in this record suggests that it was "clearly erroneous" for the Board not to accept Mr. Nichols' explanations for his plagiarism or his certain matters on his bar application. failures to disclose The Board's factual findings, particularly those based on the Board's credibility determinations, have sufficient support and are not clearly erroneous. ¶19 We Mr. Nichols next failed evaluate to the satisfy Board's the character requirements for admission to the Wisconsin bar. 10 conclusion and that fitness No. ¶20 to the 2016AP1776-BA The standards for evaluating an applicant's admission Wisconsin bar are well settled. Supreme Court Rule 40.06(1) requires that applicants for bar admission establish good moral character and fitness to practice law. The burden rests with the applicant to establish character and fitness to the satisfaction of the Board. The Appendix to SCR Ch. 40 See SCRs 40.06(3) and 40.07. contains the Board's rules that provide additional guidance to the Board and to applicants. ¶21 Bar Admission 6.01 provides that "[a] lawyer should be one whose record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them." manifesting a That same section notes that "[a] record deficiency in the honesty, diligence or reliability of an applicant may constitute a basis for denial of admission." ¶22 whether Bar an Admission applicant 6.02 provides possesses the that necessary in determining character and fitness to practice law, 12 factors "should be treated as cause for further inquiry." BA 6.02 (Relevant Conduct or Condition). As relevant, these factors include a person's unlawful conduct, academic misconduct, false including concealment or statements nondisclosure, dishonesty or misrepresentation. ¶23 by the and applicant, acts involving See id. Bar Admission 6.03 provides that in assigning weight and significance to the applicant's prior conduct, the following factors are to be considered: (a) the applicant's age at the time of the conduct 11 No. 2016AP1776-BA (b) the recency of the conduct (c) the reliability of the information concerning the conduct (d) the seriousness of the conduct (e) the mitigating or aggravating circumstances (f) the evidence of rehabilitation (g) the applicant's candor in the admissions process (h) the materiality of any omissions or misrepresentations (i) the number of incidents revealing deficiencies See SCR 40 app., BA 6.03. ¶24 When conducting our de novo review, we, like the Board, use the guidelines established in BA 6.02 and BA 6.03. ¶25 Although both parties address each of these factors, the crux of Mr. Nichols' argument is that he committed a "single instance of academic misconduct carelessness, not intent." that developed from He concedes this was serious but contends that it is not substantial enough to warrant denial of his admission to the bar. He claims that the Board "ignored" other relevant evidence that reflects his good character, such as his positive character references from employers. ¶26 The Board maintains that it considered all facets of Mr. Nichols' application. It observes that most of Mr. Nichols' positive conduct is linked to his recent employment. The Board determined that his negative conduct, coupled with his lack of candor and credibility, substantially outweighed his positive conduct. the Board Contrary to certain assertions in Mr. Nichols' brief, does not seek to 12 forever bar Mr. Nichols from No. admission to the practice of law in 2016AP1776-BA Wisconsin. The Board suggests he could reapply pursuant to SCR 40.04 after a year. The court has used this or a similar mechanism in the past, typically when applicant's Gaylord, the court admission. 155 Wis. 2d deemed See, 816, it appropriate 456 defer an In e.g., to Admission of N.W.2d re 590 Bar (1990); In re Bar Admission of Saganski, 226 Wis. 2d 678, 78-80, 595 N.W.2d 631 (1999). ¶27 Mr. Nichols argues that the Board's adverse determination is inconsistent with this court's resolution of other bar admission cases, most notably and recently, In re Bar Admission of N.W.2d 116. 57, ¶26, Jarrett, 2016 WI 39, 368 Wis. 2d 567, 879 See also, In re Bar Admission of Anderson, 2006 WI 290 Wis. 2d 722, 715 N.W.2d 586; Vanderperren, 261 Wis. 2d 150, ¶65; Rippl, 250 Wis. 2d 519. ¶28 The most factually decision in Jarrett. analogous case is our recent Mr. Jarrett committed academic misconduct after his first year in law school. He sent a resume and unofficial transcript to a potential employer, containing false information and inflated grades. Jarrett, 2016 WI 39, ¶6. Mr. Jarrett also failed to disclose in his bar application that he had received several traffic violations. This court ultimately opted to admit Mr. Jarrett, with conditions. ¶29 Here, as in Jarrett, we emphasize that the Board acted reasonably in questioning Mr. Nichols' and in conducted standards. its Bar review Admission character and fitness, accordance 6.02 13 provides with that the established both academic No. misconduct and false statements (including nondisclosure) "should be treated as cause for further inquiry." added.) The record reflects that the Board 2016AP1776-BA (Emphasis considered the factors set forth in BA 6.03; particularly the recency of the conduct, which occurred during his final year of law school, (6.03(b)), its seriousness (6.03(d)), and the applicant's candor in the admissions process (6.03(g)). (a)-(i). pattern See SCR 40 app, BA 6.03 The Board expressed very reasonable concern about a "wherein disclosures which advantage are necessarily withheld." are not to Mr. Nichols' The Board explicitly found that "Nichols' employment is not a sufficient demonstration of rehabilitation to offset his troubling conduct." ¶30 The Board serves the critically important role as a gatekeeper to admission to the bar. The Board was right to be deeply concerned by Mr. Nichols' record. Still, as in Jarrett, this court has reviewed this record and has opted to afford this applicant the benefit of the doubt. We conclude that Mr. Nichols can be admitted to the practice of law, subject to the imposition of certain conditions.2 In reaching this conclusion we are influenced by the fact that employers who work closely with Mr. Nichols speak highly of him as an individual, and of his work ethic. The omissions on his bar application were careless, but the items omitted do not, themselves, reflect 2 We accept the Board's determination that conditional admission pursuant to SCR 40.075(1) was not appropriate here. This does not preclude this court from imposing its own conditions on Mr. Nichols' license to practice law. 14 No. poorly on Mr. Nichols' character. fact that the professor of 2016AP1776-BA We are also influenced by the the class in which Mr. Nichols committed academic misconduct supports his admission to the bar. The professor noted that Mr. Nichols had been "forthright in acknowledging his errors and accepting responsibility," and that he seems genuinely contrite. The professor noted further that Mr. Nichols "has paid a real price for his actions, with an F on his transcript and his misconduct made the admission process vastly more time consuming, expensive, and stressful." ¶31 Accordingly, Mr. Nichols' we admission direct to the practice Board law in to certify Wisconsin. Mr. Nichols' admission to the practice of law in Wisconsin is contingent on his compliance with certain requirements set forth in this decision as well as certain conditions on his license to practice law. ¶32 We direct the Office of Lawyer Regulation (OLR) to identify and appoint a practice monitor to serve as a mentor to Mr. Nichols and to supervise and oversee Mr. Nichols' practice of law and related professional activities for a period of two years following the practice monitor's appointment. The practice monitor shall be licensed to practice law in Wisconsin and be located in the region of Mr. Nichols' place of employment or residence. ¶33 Upon Mr. Nichols' admission to the practice of law in Wisconsin and his enrollment with the State Bar of Wisconsin pursuant to SCR 10.03(2), Mr. Nichols is directed to initially elect inactive membership status. 15 See SCR 10.03(3)(a). This No. 2016AP1776-BA will afford the OLR time to identify a practice monitor and will obviate the need for Mr. Nichols to bear the costs and obligations of monitoring before he assumes the active practice of law. ¶34 When the OLR advises Mr. Nichols that a practice monitor has been identified, Mr. Nichols shall execute a written monitoring agreement setting forth the terms of Mr. Nichols' monitoring as determined by the practice monitor. Mr. Nichols may change then, with classification written to SCR 10.03(3)(b)1. notice the status active to OLR, by complying his with The formal appointment date of the monitor will be the date Mr. Nichols elects active membership in the State Bar pursuant to SCR 10.03(3)(b)1. ¶35 We cooperate direct with requirements monitoring. Mr. Nichols his imposed Mr. practice upon Nichols to cooperate monitor, him by shall the comply with the and comply OLR relating with all with to OLR, all his reasonable requests of his practice monitor and shall bear the reasonable costs of monitoring.3 ¶36 Upon appointment, the monitor shall report to the OLR, in writing, on a quarterly basis. 3 Within thirty days prior to Lawyer monitoring often requires a lawyer to undergo an AODA (alcohol and other drug abuse) assessment and/or psychological evaluation. The record in this case does not appear to warrant such conditions and they should not be imposed here. In the event such conditions appear necessary, the OLR shall provide Mr. Nichols with notice and an opportunity to be heard. 16 No. 2016AP1776-BA the expiration of the two-year monitoring period, the OLR shall file a report in this court in which it shall recommend to the court that the conditions on Mr. Nichols' admission be allowed to terminate or be extended. ¶37 Should Mr. Nichols fail to make a good faith effort to satisfy these conditions, or should he commit misconduct during the monitoring period, his license to practice law may be suspended or revoked and he may be subject to other discipline pursuant to the Rules of Professional Conduct for Attorneys. ¶38 IT IS ORDERED that the decision of the Board of Bar Examiners declining to certify that Charles A. Nichols has satisfied the requirements for admission to the practice of law in Wisconsin is reversed and the matter is remanded to the Board for further action consistent with this decision. ¶39 IT IS FURTHER ORDERED that Charles A. Nichols shall comply with the directives set forth in this decision and shall, promptly upon receipt of this decision, provide the Office of Lawyer Regulation matter and with authorize a the copy of the entire OLR to share the record record in this with the practice monitor. ¶40 IT IS FURTHER ORDERED that subject to the required disclosures to the Office of Lawyer Regulation and practice monitor as set forth herein, the documents submitted under seal are deemed confidential, and will be maintained under seal until further order of the court. 17 No. ¶41 SHIRLEY S. ABRAHAMSON, J. separately to provide some context which may be confusing for (concurring). for those conversant with our court rules. 2016AP1776-BA.ssa I write ¶40 of this opinion, who are not thoroughly The paragraph provides that, "subject to the required disclosures to the Office of Lawyer Regulation and practice monitor as set forth herein, the documents submitted under seal are deemed confidential, and will be maintained under seal until further order of the court." ¶42 Persons seeking admission to practice law in Wisconsin must file an application with the Board of Bar Examiners (BBE). See SCR 40.14. The information an applicant must disclose to the BBE is extensive and some of it is highly personal. For this reason, SCR 40.12 provides that the "application files of an applicant and all examination materials are confidential. The supreme court or the board may authorize the release of confidential information to other persons or agencies." ¶43 When an applicant asks this court to review an adverse determination from the BBE, SCR 40.08(7), the record submitted to this court typically contains the applicant's bar application and related documents, which comprise the "application file." Consistent with our rule, material from the application file is confidential and is not available to the public, absent a court order. In this matter, the applicant, himself, voluntarily opted to include in the appendix to his appellate brief some items from his bar application, including certain amendments to his bar application. When an 1 applicant does not file No. 2016AP1776-BA.ssa confidential material under seal with this court, a question may arise whether confidentiality is waived. ¶44 I am authorized to state BRADLEY joins this concurrence. 2 that Justice ANN WALSH No. 1 2016AP1776-BA.ssa

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