J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
July 13, 2009 OAG—3—09
Ms. Susan Churchill
Deputy Secretary
Office of the Secretary of State
30 West Mifflin Street, 10th Floor
Madison, WI 53703
Dear Ms. Churchill:
¶ 1.
You have requested my opinion on three questions related to section 137.01(2) of the Wisconsin Statutes, concerning notary public commissions issued to attorneys licensed to practice law in Wisconsin.¶ 2.
In general, any United States resident licensed to practice law in Wisconsin may obtain a permanent commission as a notary public pursuant to section 137.01(2)(a). If an attorney has had his or her license to practice law in Wisconsin suspended or revoked, however, upon reinstatement of his or her license the attorney may obtain a 4-year commission as a notary public and may be reappointed thereafter for 4-year increments. Sec. 137.01(2)(am), Wis. Stats.¶ 3.
As you note, section 137.01(2)(c) provides that “[t]he supreme court shall file with the secretary of state notice of the surrender, suspension or revocation of the license to practice law of any attorney who holds a permanent commission as a notary public[]” and that such notice is deemed to constitute revocation of the attorney’s notary public commission. You indicate that the Office of Lawyer Regulation (“OLR”), acting as an agent of the supreme court, regularly sends your office notice of attorney licenses suspended or revoked for disciplinary reasons. You further indicate that these notices are checked against your office’s database of permanent notaries public and that permanent notary commissions held by the disciplined attorneys are revoked.¶ 4.
You also indicate that you learned recently of other routine “law license suspensions” which previously have not been reported to your office:1.
Suspensions issued by the Board of Bar Examiners (BBE) for attorney failure to comply with CLE reporting and attendance requirements. This is an administrative suspension and can be imposed by BBE without additional action by the court itself. There are 200-300 of these suspensions per year; perhaps 25% - 40% of these will eventually reinstate. BBE generates a notice of these suspensions once a year, usually in late May.2.
Suspensions issued by the State Bar of Wisconsin for attorney failure to pay dues or to provide attorney trust account information. This is an administrative suspension that does not require action by the court. There are approximately 300 of these suspensions per year; about 75% usually reinstate. The state bar generates a notice of these suspensions once a year in late October.QUESTIONS PRESENTED AND BRIEF ANSWERS
¶ 5.
As you review how this recent information about additional types of attorney license suspensions and revocations affects your office’s administration of the section 137.01 notary public provisions, you have asked my opinion on three related legal questions. Those questions, and my brief answers, are as follows:3.
What is the legal definition of “suspended or revoked” as relates to a law license according to Wis. Stat. s. 137.01? Are all attorney suspensions (including those described in items # 1 and 2 above) included in that definition with the result that those attorneys would therefore be ineligible for a permanent notary commission (but potentially eligible for a 4-year notary commission)?Brief Answer: The plain language of sections 137.01(2)(am) and (c) does not distinguish among the various types of attorney license suspensions and revocations. The phrase “suspended or revoked,” as used in section 137.01(2)(am) therefore includes all suspensions and revocations of licenses to practice law in Wisconsin. Similarly, the phrase “suspension or revocation” in related section 137.01(2)(c) includes all suspensions and revocations of licenses to practice law in Wisconsin.
4.
Would this apply both to attorneys (with law license suspensions) applying for the first time for a notary commission and as well as to those who have existing permanent notary commission[s]?Brief Answer: Yes. An attorney applying for the first time for a notary public commission may be appointed to a 4-year commission if that attorney’s license to practice law in Wisconsin has been reinstated after previous suspension or revocation of that license. An attorney who previously held a permanent notary public commission that had been deemed revoked by notice filed with your office by the supreme court that the attorney’s license to practice law in Wisconsin had been suspended or revoked may be appointed to a 4-year notary public commission upon reinstatement of that attorney’s Wisconsin law license. And, by operation of statute, the existing permanent notary public commission of an attorney is deemed revoked by notice filed with your office by the supreme court that the attorney’s license to practice law in Wisconsin has been suspended or revoked.
5.
If the answer to [1] above is yes, what would be the effective date for commission revocation (given that the Office of the Secretary of State only just recently learned of these suspensions). In other words, would attorneys with permanent notary commissions who had been suspended in the past (and reinstated or not) have their permanent commissions revoked retroactively?Brief Answer: An attorney’s permanent notary public commission is revoked only upon filing of notice with your office by the supreme court pursuant to section 137.01(2)(c). Therefore, the date that notice is filed with your office by the supreme court pursuant to section 137.01(2)(c) that an attorney’s Wisconsin law license has been suspended or revoked is the date that the attorney’s permanent notary public commission is deemed revoked by operation of statute. If notice now is filed with your office that an attorney’s Wisconsin law license had been suspended or revoked at some time in the past, that attorney’s permanent notary commission is deemed revoked as of the date when the notice is filed with your office—not retroactively as of the date that the attorney’s Wisconsin law license was suspended or revoked. Similarly, because section 137.01(2)(c) provides the only authorized mechanism for revoking permanent notary commissions, your office may not revoke permanent notary commissions upon receipt of information about law license suspensions and revocations received from sources other than notice filed by the supreme court.
ANALYSIS
¶ 6.
All statutory interpretation begins with the language of the statute. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. My analysis of your first question therefore begins with the language of section 137.01(2)(am), which applies to “a United States resident [who] has his or her license to practice law in this state suspended or revoked.” Upon subsequent reinstatement of their Wisconsin law licenses, these attorneys may obtain renewable 4-year notary public commissions. Sec. 137.01(2)(am), Wis. Stats.¶ 7.
The Legislature is presumed to deliberately choose the language it uses in a statute, State v. Briggs, 214 Wis. 2d 281, 288, 571 N.W.2d 881 (Ct. App. 1997), and to choose statutory language carefully and precisely to convey its intended meaning. State v. Smits, 2001 WI App 45, ¶ 15, 241 Wis. 2d 374, 626 N.W.2d 42. Statutory language must be given its common, ordinary, and accepted meaning; technical or specially-defined words are given their technical or specially defined meanings. Sec. 990.01(1), Wis. Stats.; Kalal, 271 Wis. 2d 633, ¶ 45. Common and accepted meaning of statutory terms may be ascertained by reference to dictionary definitions. Kalal, 271 Wis. 2d 633, ¶¶ 53-54. ¶ 8.
In my opinion, the language of section 137.01(2)(am) is not ambiguous. Statutory language is ambiguous if it can be understood by reasonably well-informed persons in two or more senses. Kalal, 271 Wis. 2d 633, ¶ 47. Or, in other words, that there exist “different but plausible interpretations of the statute.” Kroeplin v. Wisconsin Dep’t of Natural Res., 2006 WI App 227, ¶ 19, 297 Wis. 2d 254, 725 N.W.2d 286. There is only one plausible interpretation of the relevant section 137.01(2)(am) language, however.¶ 9.
The 4-year notary public provisions of section 137.01(2)(am) apply to “a United States resident [who] has his or her license to practice law in this state suspended or revoked.” Both “suspend” and “revoke” have easily ascertained plain meanings. “Suspend” means “to debar or cause to withdraw temporarily from any privilege, office, or function;” “to cause (as an action, process, practice, use) to cease for a time;” or “to hold in an undetermined or undecided state awaiting fuller information.” Webster’s Third New International Dictionary 2303 (1986) (“Webster’s”). “Revoke” means “to bring or call back,” “to annul by recalling or taking back (as something granted by a special act),” or “WITHDRAW.” Webster’s at 1944.¶ 10.
The common and accepted meanings of “suspend” and “revoke,” ascertained by reference to their respective dictionary definitions, do not in themselves create distinctions between different types of license suspensions or different types of license revocations. Nor do any such categorical distinctions appear in the actual language of section 137.01(2)(am).¶ 11.
Consideration of section 137.01(2)(c) reinforces my conclusion that the section 137.01(2)(am) “suspended or revoked” language unambiguously refers to any suspension or revocation of an attorney’s license to practice law in Wisconsin. Statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Kalal, 271 Wis. 2d 633, ¶ 46. When the same word is used in neighboring subsections, it generally should be given same meaning in each subsection. State v. White, 2004 WI App 237, ¶ 10, 277 Wis. 2d 580, 690 N.W.2d 880.¶ 12.
Section 137.01(2)(c) provides for the supreme court to file with your office “notice of the surrender, suspension or revocation of the license to practice law of any attorney who holds a permanent commission as a notary public.” The section then provides that such notice is deemed a revocation of the attorney’s notary public commission. Like section 137.01(2)(am), the language of section 137.01(2)(c) does not explicitly or implicitly distinguish between types of suspensions or revocations.¶ 13.
Procedurally, sections 137.01(2)(c) and (am) are intimately connected. Section 137.01(2)(c) provides the process for revoking the permanent notary public commission of an attorney whose Wisconsin law license has been suspended or revoked. Section 137.01(2)(am) provides the process by which an attorney whose Wisconsin law license has been suspended or revoked may, upon reinstatement of his or her law license, obtain a 4-year notary public commission. Absence from either of these closely related statutes of any distinction among different reasons for suspension of revocation of an attorney’s Wisconsin law license therefore reinforces my conclusion that the provisions of both statutes apply to all law license suspensions and revocations.¶ 14.
In Wisconsin, lawyer regulation is the purview of the Wisconsin Supreme Court. SCR 10.01(1) and (2). Examination of relevant supreme court rules further reinforces my conclusion that the section 137.01(2)(am) “suspended or revoked” language, and its section 137.01(2)(c) counterpart, unambiguously refer to any suspension or revocation of an attorney’s license to practice law in Wisconsin.¶ 15.
The supreme court may revoke or suspend the license of an attorney as discipline for professional misconduct. SCR 21.16(1m)(a) and (b). Attorneys who do not pay their state bar dues or fail to file a trust account certificate are subject to suspension of their state bar membership, following notice and a grace period. SCR 10.03(6m) and SCR 10, Appendix, sec. 3(a). Similarly, the state bar membership of an attorney who fails to comply with CLE attendance and reporting requirements is subject to suspension and “shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.” SCR 31.10(1).¶ 16.
Suspension of state bar membership constitutes suspension of an attorney’s license to practice law in Wisconsin. The same supreme court rule, “License reinstatement,” addresses reinstatement of those attorneys “suspended from the practice of law for nonpayment of state bar membership dues or failure to comply with the trust account certification requirement or continuing legal education requirements,” SCR 22.28(1), and attorneys whose licenses have been revoked or suspended for misconduct, SCR 22.28(2) and (3). See also SCR 31.11.¶ 17.
The court’s published decisions in attorney discipline cases confirm that suspension from the state bar constitutes suspension of an attorney’s license to practice law in Wisconsin. See, e.g., In the Matter of Disciplinary Proceedings Against Michael F. Swensen, 2008 WI 113, ¶ 3, 314 Wis. 2d 29, 754 N.W.2d 499 (“Attorney Swensen’s Wisconsin law license is currently under suspension for failure to comply with mandatory continuing legal education requirements and failure to pay State Bar of Wisconsin dues”); In the Matter of Disciplinary Proceedings Against James R. Lucius, 2008 WI 12, ¶ 3, 307 Wis. 2d 255, 744 N.W.2d 605 (“Attorney Lucius’s license to practice law in Wisconsin was suspended for his failure to comply with continuing legal education (CLE) reporting requirements”). In Wisconsin, membership in the class of “active members” of the State Bar of Wisconsin is a condition precedent to the practice of law. SCR 10.01; SCR 10.03(4). Moreover, the payment of annual bar dues and assessments is a requirement of membership in the state bar. The failure to pay annual bar dues and assessments may result in the suspension of the attorney’s license to practice law in this state. ¶ 18.
Suspension of an attorney’s state bar membership therefore constitutes suspension of the attorney’s license to practice law. ¶ 19.
For all these reasons, therefore, it is my opinion that attorney suspensions for failure to pay state bar dues, file trust account reports, or comply with CLE requirements constitute suspension of the attorney’s license for purposes of the notary public provisions of section 137.01(2). As discussed below, your further questions involve practical application of these statutory provisions. ¶ 20.
Your second question is whether the same definitions of “suspended or revoked” law licenses apply both to attorneys applying for Wisconsin notary public commissions for the first time, and to attorneys who have existing permanent Wisconsin notary public commissions. In my opinion, the same definitions apply to both groups of attorneys whose Wisconsin law licenses have been suspended or revoked.¶ 21.
On its face, the plain language of section 137.01(2)(am) does not distinguish between attorneys applying for their first Wisconsin notary public commissions and attorneys who previously held permanent notary public commissions.
