*1 Plaintiff-Appellant, Michael M.D., Seitzinger, v.
Community Health and Berlin Memorial Network
Hospital, Defendants-Respondents.
Supreme Court
4,
No.
argument
02-2002. Oral
November
Decided March
An Burnett, amicus curiae brief was filed Bay, Basting, Sr., Green Madison, and Thomas on behalf of the State Bar Wisconsin.
¶ 1. N. PATRICK CROOKS, J. This case before appeals pursuant us on certification from the court of (Rule) (2001-02).1 § Wis. Stat. 809.61 Seitz- Michael inger, (Seitzinger) appeals M.D. order of the circuit declaratory judg- court, which denied his motion for (Kadar) petition Kadar, ment and M.D., Nicholas J.D.'s pro appeals to be admitted hac vice. The court of certified two issues to this court. first certi- issue legal representation physician fied is whether the of a law, constitutes the thereby requiring representation by a licensed Wiscon- attorney. sin If we answer the affirmative to the first issue, the second issue is there whether should be exception to the statute, unauthorized of law § (2001-02),2 Wis. Stat. 757.30 to allow for unli- such representation.3 censed (Rule) by § Stat. Bypass "Wisconsin 809.61. certification appeals upon supreme
court of or motion of supreme court. The jurisdiction court appeal take of an or other proceeding in appeals upon court of appeals certification the court of upon supreme own court's motion...." indicated, Unless otherwise all references to Wisconsin Statutes to the are 2001-02 edition.
3 Seitzinger appeals, raised a third issue before court of which asked court whether Stat. determine Wis. 757.30(2) was applied unconstitutional fair hospital hearings. The court of appeals issue, stating did not address this *5 first certi- we do not answer the issue While hearings, case decide in this
fied as to all we "legal contract, of counsel" that, as matter the words a reasonably question in are in as used the contract attorney interpreted apply only to to to licensed Community practice in We that law Wisconsin. hold (CHN) interpretation of the words Health Network's "legal Procedures and counsel" the Corrective Action Hearing Plan Addendum to the Medical Staff Fair Bylaws (Bylaws) referring Hospital as to an
of the attorney was a licensed to law Wisconsin general hospital rule reasonable one. is that hospital its between a can constitute contract Seitzinger. such the reasonable staff members as Since require of that the contract would Seitzinger attorney person representing be an Wisconsin, and since the that it is reason- activities anticipate engaging in would be on behalf able Kadar legal very Seitzinger least, would, at the focus on properly issues, conclude that circuit court we Seitzinger's declaratory judgment for denied motion pro petition for Kadar's hac vice. admission likely on we find that activities 3. While Kadar's very Seitzinger would, least, on focus behalf of necessary issues, it is not that we determine prac- representation whether such would constitute interpretation law, tice of since the reasonable A resolves case. reasonable would contract this jurisdiction question because it did not have decide such Seitzinger give allegation failed to notice 806.04(11). § For the same general required as under Wis. Stat. reasons, the issue whether also decline to address we 757.30(2) fair hospital to a applied is unconstitutional hearing. analysis therefore limit our two abovemen- We tioned issues. "legal Bylaws
understand that the words counsel" in the mean an licensed to law in Wisconsin. *6 interpre- 4. We further decline to an construct § exception, tation, or create an to Wis. Stat. 757.30 permit Kadar, that would an in unlicensed this represent Seitzinger peer state, to at his review hear- ing. Seitzinger appears attorney, If with he must appear with an licensed to law interpreta- Wisconsin, consistent with the reasonable of tion the contract.
H-l Seitzinger ¶ 5. is a board certified obstetrician- licensed to medicine in Wisconsin. gynecologist not-for-profit corporation CHN is a Wisconsin operates Hospital (Hospital). and owns Berlin Seitz- inger employed was with CHN from October 1995 to July 2001. May indefinitely 14, On CHN sus-
pended Seitzinger's privileges of all clinical at the Hospital pursuant Bylaw to 1.4.4 CHN then sent Seitzinger request detailing right a letter his to his expedited hearing peer choice of or standard explaining generally. hearing process and the In the Seitzinger suspension letter, CHN informed that his 4 1.4 Suspension Privileges of (a) Any following: committee, president the executive the staff, officer, of the medical the chief of executive the chief practitioner privileges, service in which has the executive governing body governing body committee shall each authority have the whenever action must be taken in the best patient hospital, suspend any interests of care to all or portion privileges clinical of a staff medical member suspension immediately imposi- upon such shall become effective tion. he "demonstrated serious on cases which
was based postopera- preoperative, perioperative and in the errors (and including management surgical patients tive follow-up post-discharge) complications care with patients." potential harm the After for severe timely Seitzinger requested receiving letter, this hearing. insight provide In some into order necessary give explana- hearing process, it is a brief procedures In accordance with the tion of the involved. hearing Bylaws, committee, is held before a comprised members of of three five active which is hearing, Prior to the the affected the medical staff. practitioner given a who list of seven individuals *7 hearing practitio- The on the committee. affected serve During permitted two of the ner to strike the names. § parties may hearing, pursuant Bylaw 3.4, both exhibits, a witnesses, examine introduce and submit hearing.5 statement at the end of the written Rights Parties 3.4 Hearing purpose be for of this Fair Plan shall the "Parties" the body practitioner prompted and action the affected the whose hearing. request During hearing, for a each of the shall right have the to: (a) witnesses, including expert and examine witnesses. Call (b) present Introduce and relevant evidence. exhibits (c) Question any any matter relevant to the issues. witness on (d) Impeach any witness.
(e) any Rebut evidence.
(f) hearing. a at the close of the Submit written statement hearing by reporter mutually (g) or Record the of a court other use recording. acceptable means of Bylaw § representation ¶ 8. 3.3 addresses at the 3.3(a) peer Bylaw § hearing. explains review that the practitioner representation by affected is entitled to good standing.6 of the member active medical staff 3.3(b) Alternatively, Bylaw states that the affected practitioner may represented by be at the counsel hearing.7 review practitioner requested hearing
If testify the who does not in his behalf, practitioner may own Hearing called Com- party or mittee the other and examined as if under cross- examination. Representation 3.3 (a) By a Member the Medical Staff practitioner requested hearing who shall he entitled to he accompanied by represented hearing by at the member good standing. the active medical staff in The executive committee governing body, depending or the on whose or recommendation (1) prompted hearing, appoint action shall at least one of its choosing represent members another of its it at and/or hearing present support professional facts in action, review and to examine witnesses. Representation 3.3 (b) By Legal Counsel practitioner represented by If affected desires to be an attor- ney any any hearing appellate appearance pursuant or at Plan, request appellate his this for such must name, so Such must state. notice also include the address phone attorney. notify Hearing number of the Failure to *8 permit in Committee accord this with section shall the Committee preclude by participation legal adjourn to the counsel to the (20) hearing period twenty days. for a to not exceed The executive governing body may representa- committee or the also be allowed by attorney. legal tion While counsel attend and assist respective proceedings provided herein, in due to professional proceedings, nature of it these review is intended that judicial proceedings be will not in form but a for forum professional Accordingly, Hearing evaluation and 'discussion. Seitzinger him at hired Kadar to assist hearing.
peer certified Kadar is a board review subspecial- obstetrician-gynecologist, a board certified gynecologic oncology, and a member of the ist in Jersey New objected representation to Kadar's of
Bar. CHN hearing, stating peer Seitzinger that, review at the good standing not of Kadar a member since was staff, he to medical that needed be licensed CHN's represent Seitz- law in Wisconsin order to inger. declaratory Seitzinger complaint filed a for County seeking
judgment Court, Lake Circuit Green represent that Kadar a declaration court could hearing. peer alternative, In the him at the review pro petition for admission hac vice Kadar filed hospital for proceedings. hearing appellate Ka- review appear requested dar he allowed to with Seitz- that be inger peer that at the and stated Kadar review with a licensed Wisconsin would associate Seitzinger subsequently proceedings.8 amended those complaint claim. The claim his to add second second alleged contract, that committed a CHN breach body appellate right limit review retains Committee and/or participation hearing process.... active in the
the role counsel's alleges position Seitzinger originally that CHN took hearing, represent peer Kadar him at the that could provided that retained. did send a local counsel was CHN suggesting memorandum to Kadar that Wisconsin counsel correspondence this A involved. reasonable might anticipated Seitzinger that CHN that seek suggests while Kadar, from licensed in this state counsel that appear Seitzinger's at the required would be on behalf 3.3(b) hearing. referred of the Corrective memo Plan and Hearing Procedure and Fair stated: "This Action in the counsel is licensed State of Wiscon envisions sin."
which arose out of the Medical Executive Committee's Seitzinger's privileges recommendation that clinical be terminated.
¶ 11. Seitzinger's CHN filed a motion to dismiss upon first claim for failure to state a claim which relief granted. alleged can representa- CHN that Kadar's Seitzinger hearing tion of at the would violate Wis. Stat. § practice 757.30 because it would allow Kadar to law though by Wisconsin, even he is not licensed to do so respect Seitzinger's this state. With claim, second summary judgment CHN filed a motion for on the basis Seitzinger asserting that was time-barred from claim.
¶ 12. The circuit court concluded that Kadar's representation Seitzinger peer hearing at the would constitute the unauthorized of law un- 757.30(2). der Wis. Stat. The circuit court noted that at the Kadar would function as Seitzinger's legal only counsel, as that was the role the Bylaws permitted him to assume. The circuit court authority further stated that it did not have the 10.03(4) pro Supreme admit Kadar hac vice. Court Rule (2002)9 judge attorney appear- allows a to admit an for participate ances in "his or her court" and to "in asso- ciation with an active member of the state bar of Wisconsin. . .." The circuit court concluded that be- judge only cause' a could admit an for an appearance judge's in the court, own and because the contemplates rule the active involvement of an Seitzinger licensed to law in Wisconsin, failed 10.03(4). two conditions set forth SCR Thus, the indicated, Unless otherwise all Supreme references to Court Rules are to the 2002 edition. declaratory Seitzinger's court motion for
circuit denied *10 pro judgment petition hac for and Kadar's admission vice. Regarding Seitzinger's cir- claim, second the 13. genuine of there was no issue
cuit court noted that request hearing Seitzinger a fact, as failed to material hospital privileges regarding the termination of his 45-day by Bylaws. Thus, time limit the within set to circuit concluded that CHN was entitled court Seitzinger appealed judgment of a matter law. respect with first claim. circuit court's decision his previously, appeals ¶ 14. As stated court certi- certified two issues to this court. first issue legal representation physician at fied is whether the a hearing peer law, a constitutes thereby representation by requiring a Wiscon- attorney. the first sin If we answer the affirmative to there be an issue, the second issue is whether should exception statute, unauthorized of law repre- 757.30, to for such unlicensed Wis. Stat. allow sentation.
II brief, that, In Seitz- its CHN asserts because timely request hearing regarding inger failed hospital privileges, request for a termination of his his Seitzinger's hearing suspension if is is now moot. Even points privileges lifted, CHN out that his will still be terminated. Seitzinger this not moot asserts that case is underlying controversy is whether CHN's
because justified. hospital privileges suspension of Seitz- his was inger argues whether that this court's decision as to hearing represent him the Kadar directly right hearing. Seitzinger will affect his to a fair question *11 691, 700, 869, (1974). 2d 221 N.W.2d Nevertheless,
¶ 18.
this court has carved out ex
ceptions
respect
general
policy regarding
with
to its
case,
though moot,
moot
issues. We will decide a
even
great public importance,
when the issue is of
when the
constitutionality
issue,
of a statute
is at
when the
frequently
situation
occurs so
that a decision is neces
sary
guide
courts,
the circuit
when the issue will
likely
again
by
arise
and should be resolved
this court so
uncertainty,
likely
as to avoid
or when the issue will
repeated
yet
appellate
evade
review because
of the
length
appellate
process.
of the
review
State ex rel. La
Court,
220, 229,
Crosse Tribune v. Circuit
115 Wis. 2d
(1983).
ally everything attorneys do for their clients that not *13 practice proof present of constitutes the law.As that the law, situation does not constitute the Kadar Bylaws. points physician capable If a CHN's own is assuming the same role as an at these hear- Seitzinger ings, simply contends that because an attor- ney occupies hearing this role at the not does mean that engaging Seitzinger he or she is in the of law. representation asserts that he seeks Kadar's because ability upon knowledge his to draw his medical experience, legal not for the benefit of his services. advising
¶ 25. CHN asserts that Kadar would be Seitzinger rights obligations, of his and CHN's thus providing legal Seitzinger. advice and services to CHN simply hearing contends that because the does not take place setting change in a courtroom does not this fact. rejects Seitzinger's portrayal CHN non-disciplinary in Instead, nature. CHN asserts that a finding sup- the committee that there is evidence porting against practi- the adverse action the affected clearly part disciplinary tioner is unfavorable and of a process. Seitzinger While Kadar also assist with presents hearing, the scientific evidence he at the this negate rendering too not the fact does that Kadar is legal points advice. CHN also out that witnesses are examined, introduced, exhibits are and the affected practitioner may submit written statement at the hearing. according Thus, close of the Seitzinger clearly CHN, would benefit from Kadar's legal advice and assistance. argues although
¶ 26. that, CHN further Kadar physician, Seitzinger provide hired Kadar to him with keeping that, services. CHN contends with the Bylaws, attorney. Kadar's role was limited to that of Because Kadar is not a member of the medical active good standing, represent Seitzinger staff in he could not 3.3(a). Although subject Bylaw under *14 hearing may physician choose between a and an attorney representative, aas CHN asserts that this attorney's providing legal does not lessen the role in hearing fact, related to his or her client. In advice only practitioner contends, CHN reason affected hearing, would retain an to assist at the physician good standing, of an active in instead CHN attorney's legal would be to have the benefit of advice and services. interpreting conclude that 27. We words Bylaws
"legal Hospital's in counsel" to refer to an clearly practice licensed to in law Wisconsin is might permit To reasonable. construe otherwise it attorneys non-attorneys or unlicensed the state § violate 757.30.10 Wis. Stat. § person clear, 28. As Wis. Stat. 757.30 makes
may engage in the of law or out court. simply Thus, because the takes place outside the confines of a traditional courtroom person, acting representative mean that a in a does not capacity client, or her cannot deemed to for his be be practicing law. 757.30(2) § Wisconsin Stat. states: Every agent, attorney, appears representative who or for any any firm, person,, partnership, on other or or behalf of any corporation proceeding or action or in or before association record, commissioner, any supplemental court of circuit or court or States, any state,
judicial tribunal of the United or of or who otherwise, court, pecuniary compensation in or out of for or gives professional her reward advice hot incidental to his or any ordinary business, any legal for usual or or renders service firm, person, any partnership, corporation, association or other meaning practicing of this shall be deemed to law within section. Co., In Inc. v. U.S. Fire Ins. 209 Wis. Jadair (1997), that the 187, 204, 2d 562 N.W.2d401 we stated legislature's enacting intent in Wis. Stat. 757.30 was corporation's and, held that a notice of thus, clear appeal fatally to the fact was rendered defective due attorney. reaching signed In that it was not this primary purpose conclusion, we noted that the of stat- preventing the unauthorized of law is to utes against inadequate rep- protect public or unethical resentation. Id. at 201-02. ¶ 30. In State ex rel. Junior Ass'n Milwaukee (1940), noting Rice, 53,
Bar v. 236 Wis. N.W. difficulty generally defining the practice that courts have in determining law, this court concluded *15 person engaging practice a in the of whether law case-by-case Rice, a In must be conducted on basis. we rejected the defendant's contention that he could not practice unauthorized of have violated the state's law everything he did was "incidental to statute11 because ordinary adjusting of for his usual or business losses although companies." that, concluded a insurance We adjust may companies, layperson losses for insurance adjuster prohibited doing any- was from insurance thing practice court, that resembled the of law. This in including Rice, activities, a discussed number of render- ing legal compensation, advice for that amounted to the practice Rice, of 236 at 54-57.12 law. Wis. 11At the time State ex rel. Junior Ass'n Milwaukee Bar v. of
Rice, 38, 53, (1940), decided, 236 294 N.W 550 was Wis. § 256.30. Section 256.30 applicable statute was Wis. Stat. was 1978, amended, August 1, effective renumbered as Wis. Stat. 757.30. . 12 Rice, 53, adjuster engaged In 236 Wis. at the insurance activities, lawyer-like advising such as numerous other potential liability, company opinion insurance as to his of its Dinger, Reynolds v. 14 Wis. rel. In State ex (1961), created a this court 193, 2d 109 N.W.2d permitted fill in real estate broker to a rule that narrow conveyancing spaces forms, on standard the blank transferring estate, of á client's real the title when against layperson prohibition violating a without regulation practicing law. stated that We judicial power in the Wiscon- a vested of law is Supreme Nevertheless, noted we Court. Id. at 206. sin exercising legislature its aid the court that although lapse power. that, Id. at 203. We reasoned a violation attain not make alone does time using legality, for over these forms had been the brokers years Thus, con- Id. at 204. we incident. without any posed practice had not this that because cluded danger subjected expense, public, it to undue to the public against to halt this interest it would be long-standing require conveyancing method complete attorneys permitted only Id. at 205. forms. Keller, 21 2d Bar v. Wis. In ex rel. State State (1963), modified our we 102, 123 N.W.2d engag layperson injunction preventing from
earlier ing law,13 in order in the unauthorized represent permit the Inter others before autho Wisconsin, Commerce Commission state attempted person's Keller federal license. rized persuade contracts leases and that, court where *16 this by approved Commerce Commis- the Interstate were claim, or not to settle a company whether advising an insurance the insurance between negotiate settlements attempting entering dictating and into and injured persons* company and stipulations. Keller, 377, 114 2d v. 16 Wis. ex rel. State Bar See State (1962). N.W.2d by Commission, but
sion, an by Wisconsin, the State of should be able to unlicensed and contracts. noted: draft such leases We Although recognize, that he advise a we whether complies federal particular lease or contract with law regulations, and create leases contracts substantive rights obligations prepare and and to them concerning significance other than and advise their standing their under interstate commerce laws and regulations would constitute the of law outside scope of his before the interstate commerce commission. Thus, reasoned that Keller could not
Id. we engage general practice advising parties in the more rights obligations. Id. of their substantive We also enjoined acting that Keller from in concluded should be representative capacity for his clients before Id. at Wisconsin Public Service Commission. law, on 33. Based the abovementioned case we reasoning regarding
conclude that § Wis. Stat. applicable forth in is more 757.30 set Jadair Rice present exceptions to the recognized Dinger situation than the narrow Jadair, and Keller. As noted in we protecting people against are concerned with the inad- attorneys equate representation might that unlicensed provide practitio- Granted, to their clients. an affected appearing hearing may ner at a choose good physician standing. of an assistance active CHN aptly points However, out, as CHN if the affected practitioner legal physician, counsel, selects of a instead represen- it would in order to secure the benefit of capable giving tation who is accurate regarding rights advice under Wisconsin law. explained layperson ¶ 34. in Rice that a must We engaging any refrain from acts that resemble the *17 suggests assisting practice Kadar that he will be of law. by marshalling Seitzinger only the scientific and medi- hearing. presented Yet, at the as noted cal evidence 3.3(a) Bylaw prevents previously, Kadar from assist- Seitzinger physician, ing capacity in as a as Kadar is his good a member of the active medical staff of CHN not Bylaws standing. Thus, that the it is clear under the may only hearing that of role Kadar at the assume Allowing represent Seitzinger's legal Kadar to counsel. Seitzinger peer where, at the at such very expected legal issues, least, he could be to focus on acting Seitzinger's mean that he would be would legal counsel. Although Dinger present and Keller situa- attorneys and
tions where we have held unlicensed non-attorneys may engage lawyer-like in limited activi- holdings have concluded that the in those cases ties, we sufficiently scope, narrow, and limited in so as to were inapplicable proposed representation of to Kadar's Seitzinger. necessary
¶ 36.
It
is not
that we determine
Seitzinger
representation of
would
whether Kadar's
practice
purposes
of law for
constitute
interpretation of the con-
statute, since the reasonable
case. A reasonable
would
tract resolves this
Bylaws
"legal
that the words
counsel"
understand
mean an
licensed to
law Wisconsin.
Bylaws
Hospital's
which,
on the
un-
37. Based
general
application
rule,
form a contract
der
Seitzinger
CHN,
that,
if
we conclude
between
present
Seitzinger
counsel
at the
chooses to have
hearing,
he must choose an
who is
interpreta-
law in this state. CHN's
Further,
one.
of the relevant section is a reasonable
tion
anticipate
the activities it is reasonable to
that Kadar
*18
Seitzinger
engaging
would,
would be
on behalf
very
least,
focus on
issues. As we stated in
"Giving
legal rights
Rice,
IV absolutely necessary ¶ 38. While it is not to ad- issue, dress the second certified we conclude that it helpful Therefore, would be to do so. we next consider exception whether there should to the unautho- he § statute, 757.30, rized of law Stat. to Wis. representation hospital allow for at a such unlicensed peer hearing. previously, Supreme
¶ 39. As noted
the Wisconsin
exclusively
power
Court is
vested with the
to determine
Dinger,
what constitutes the
of law.
14
2dWis.
by
Nevertheless,
at 202.
we are aided in
this task
legislature.
only exception
legisla
Id. at 203. The
§
ture has made to Wis. Stat.
757.30 is Wis. Stat.
799.06(2),
permits non-lawyers
represent
which
Jadair,
themselves
small claims court.
209 Wis. 2d at
legislature clearly
excep
202. When the
enumerates
statute,
to a
tions
we
assume that it intended to
preclude any
exceptions
specifically
additional
unless
(citing
Angel
M.,
enumerated. Id.
In Interest
Lace
(1994)).
legisla
492, 512,
2d
Wis.
N.W.2d process her not due a defendant was denied cluded that attorney- permitted right have an not when she was appear in court. on her behalf in this state unlicensed Although distinguishable it case, from this Olexa appear could an unlicensed involved whether court, circuit a client in a Wisconsin on behalf of right process message due is still clear: there is no represented counsel unlicensed Wisconsin. Finally, Kadar cannot be conclude that we *19 10.03(4).14Supreme Court Rule admitted under SCR 10.03(4) judge permits counsel a to admit "nonresident appear- appear Because Kadar is in or her court." to his hearing, ing hospital peer the circuit court at a pro correctly hac could not admit Kadar noted that it 10.03(4) though that Rule states Moreover, even vice. may appear with an "in association counsel nonresident Wisconsin," this member of state bar active requirement wording linked to the is also judge permitting proceeding the nonresi- be before attorney represent in his or her court. the client dent Clearly, to pro hac vice under cannot be admitted
Kadar 10.03(4), interpre- construct an and we decline to SCR Membership SCR 10.03 (4) may practice individual Only law. No active members may practice the state bar an enrolled active member of other than any purport in manner to be authorized in this state or law judge qualified practice A in this state allow law. participate in appear her court and counsel to his or nonresident proceeding active particular in association with an action or appears participates who member of the state bar of Wisconsin proceeding. the action or exception, tation, or create an which would allow for his under these admission circumstances.15
V ¶ 42. While we do not answer the first issue hearings, certified as to all we decide in this "legal that, case as a contract, matter of the words interpreted apply only counsel" must be attor- ney licensed to law in In sum, Wisconsin. we "legal hold that CHN's of the words Bylaws referring counsel" in the licensed to law in Wisconsin was a reasonable general hospital bylaws one. The rule is that can hospital constitute a contract between a and its staff Seitzinger. members such as Since the reasonable inter- pretation require of the contract would that a representing Seitzinger anbe licensed Wis- consin, and since the activities that it is reasonable to anticipate engaging Kadar would be in on behalf of Seitzinger very legal would, at the least, issues, focus on properly we conclude that the circuit court denied Seitzinger's declaratory judgment motion for and his petition appearance pro for Kadar's hac vice. likely
¶ 43. While we find that Kadar's activities Seitzinger very on behalf of would, least, at the focus on necessary issues, it is not that we determine representation prac- *20 whether such would constitute the tice of statute, law under the since the reasonable interpretation of the contract resolves A this case. currently petition This court has before it a asking the court would, to establish a committee that among things, other review the of the practice yet issue unauthorized of law. This is another inappropriate, time, reason that it is at this for us to exception. establish an person that the words would understand
reasonable attorney Bylaws "legal mean an in the counsel" law Wisconsin. interpre- ¶ decline construct an further We § exception, 757.30 create an to Wis. Stat. tation, or permit Kadar, an unlicensed in this that would Seitzinger peer represent review hear- at his state, to attorney, Seitzinger appears ing. he must If with appear licensed to law with an interpreta- Wisconsin, consistent with the reasonable tion of the contract.
By order of the circuit court the Court.—The affirmed. (dissen- ABRAHAMSON, C.J. 45. SHIRLEY S.
ting). of a case involves the This right rep- hospital's bylaws pertaining to a doctor's peer to determine at a resentation suspended. privileges clinical whether his should governs § hospital bylaw, 3.3, 46. The relevant representation at the 3.3(a) charging § hearing. Bylaw provides that by entity represented one of its members shall be choosing." person The latter another of its "and/or explicitly phrase that the other does not state bylaw explicitly allows The also must be a staff doctor. by attorney. entity represented charging to be 3.3(a) Bylaw provides the affected accompanied by entitled to be doctor "shall be hearing by represented active a member at the standing." bylaw good allows also medical staff in attorney." represented "an affected doctor to be *21 bylaws specify ¶ 48. The do not whether an attor- ney representing charging entity either the or the affected doctor must be "licensed in Wisconsin."1
1Bylaw 3.3 provides in full as follows: Representation
(a) By a Member the Medical Staff practitioner requested hearing The who shall be entitled to be accompanied by represented hearing by at the a member of good standing. the active medical staff in The executive committee governing body, depending or the on whose recommendation or (1) prompted hearing, appoint action shall at least one of its choosing represent members another of its it at and/or hearing present support professional the facts in action, review and to examine witnesses. (b) By Legal Counsel practitioner represented by If the affected desires to be an attor- ney any hearing any appellate appearance pursuant or at Plan, request hearing appellate to this his for such review must name, so state. Such notice must also include the address and phone attorney. notify Hearing number of the Failure to permit Committee in accord with this section shall the Committee preclude participation legal adjourn counsel or to (20) period twenty days. for a of not to exceed The governing body may executive committee for the also be allowed representation by legal While counsel attend and respective parties proceedings provided herein, assist the due to professional proceedings, nature of these review it is intended proceedings judicial that the will not be in form but a forum for professional Accordingly, Hearing evaluation and discussion. appellate body right Committee retains the to limit and/or participation hearing process. the role of counsel's active in the
Any practitioner solely who incurs fees his behalf shall be responsible payment for thereof. bylaws The "attorney" sometimes use the word and some- phrase "legal times the counsel." These terms do not seem to meanings have different bylaws. in the majority opinion treats *22 Seitzinger hospital, Dr. contract between and the Com- (CHN), munity Health that will Network asserts it bylaws by interpret applying principles the of contract interpretation.2 majority opinion prin-
¶ 50. The recites several ciples interpretation3 apply of contract but fails to majority opinion adopts Rather, them. as reason- hospital's bylaws interpretation able the that Mr. (a attorney Kadar doctor who is also an licensed practice Jersey), Seitzinger in New whom Dr. wanted as representative peer hearing, his at the must be practice licensed to law in Wisconsin. The majority opinion concludes that because Mr. Kadar "assist[] Seitzinger capacity physi- cannot in his as a cian, as Kadar is not a of member the active medical good standing[,]... in staff of CHN it is clear ... only role Kadar assume at is that Seitzinger's legal counsel,"4 and that Mr. Kadar cannot assume that role because he is not majority opinion law this state. The con- might cludes that to construe the contract "otherwise permit attorneys unlicensed in the state or non- attorneys [which to violate Wis. Stat. 757.30 defines prohibits of law and the unauthorized law]."5 practice of 2 Ambrosias, v. 2,20, See Bass Majority op., 22. 185 Wis. ¶¶ (Ct. 1994) 879, 885, App. (treating hospital
2d 625 N.W.2d Keane v. bylaws physician as a contract hospital); between (Ct. Hosp., St. Francis 637, 651, 186 Wis. 2d N.W.2d 1994) (same). App. 3 Majority op., 22. ¶ 4 Id, 34. ¶ 5 Id., id., 27. See also 4. ¶ ¶ I that rules of contract agree interpretation however, fails to majority opinion, this case.
govern of contract principles well-worn apply of the contract. construing terms I rules of contract interpre- set forth seven tation relevant to the case and them present apply Each read rule, facts. and the rules undisputed to the conclusion that together, points hospital's mean that if an attor- should be interpreted hear- Dr. ney represents Seitzinger in the need not be licensed State ing, Wisconsin. 53. The seven rules are set forth order *23 from the rule to the increasing scope, pertaining
their objective of the text of contract to the interpretation the of rule court to consider reasonableness requiring I conclude that the competing interpretations. majority of bylaws the violates opinion's interpretation hospital or these rules and to reach a ignores ultimately fails bylaws. reasonable of the majority is based on the opinion's interpretation vague concept that at a would representation of "focus on issues"6 or "resemble the law"7 practice conclusion, it not to have its which upon purports reached, representation question that the constitutes of The majority opinion's interpreta- the law. internally contradictory, tion renders the unfair Dr. and fails to foster the Seitzinger, public policy the underlying licensing attorneys the prohibi- tion on the unauthorized of law. For these 6See, id., 2, e.g., ¶¶
7 See, id., 30, e.g., ¶¶
28 majority opinion's interpre- the reasons, I conclude that contrary tation is unreasonable and to the intentions of parties. the parties' inquiry
¶ 54. Rule 1. The into the subjective for intent is not a search intent but language parties rather focuses on the used.8 Words in a contract are to be read as a reasonable would under circumstances.9 It is the objective meaning contract, not sub- jective parties, intent of the that controls.10 The subjective parties entering intent into a presumes "[T]he contract is immaterial.11 law import understood their they contract and that had the intention which 8 Lord, § 11 Richard A. Williston on Contracts 31:4 at (4th 1999). 271-72 ed.
9
Co.,
Family
91,
10,
Danbeck v. Am.
Mut. Ins.
2001 WI
186,
245 Wis. 2d
10Williston, 8, 280-83, 405; supra § note 31:4 at 32:2 at Johnson, 482, 487, 21 State ex rel. Siciliano v. Wis. 2d 124 (1963). N.W.2d 624 124, 139-41, Corp., Kernz v. J.L. French 2dWis. (Ct. 2003) ("[T]he App. N.W.2d 751 creation of an enforceable agreement usually predicated language is on the used expressed parties."). contract and the intentions of the See 17A (1991) (It necessarily Am. Jur. Contracts is not 2d intent, intent, expressed apparent real but which *24 Indeed, sought. party's subjective, a intent im undisclosed interpretation material the a contract. The court not to will attempt processes parties to ascertain the actual mental contract; entering particular pre in into the rather the law parties import sumes that understood of their contract manifest.). they and that had the intention which its terms 29 meaning The common its terms manifest."12 language given of a con- will be to words tract.13 majority opinion recognizes, pri-
¶ As the 55. give mary goal effect to of contract is to parties' frequently intentions.14 Our cases have judicial interpretation of contract is not stated parties agree to, "intended to but determine what agree they to, what, sense, in a did as evidenced language they majority fit to use."15 The saw opinion repeatedly that "a recites this rule states person would understand that the words reasonable Bylaws 'legal mean an counsel' in the reasoning provides Wisconsin," no law but support this assertion.16 parties' intentions are set forth in the 56. language of the Here the contract uses the contract. "attorney." language word The contract's is not limited lawyer licensed to Wisconsin. easily hospital, have drafter, 57. The could limiting inserted words the state of licensure. It did not. Applying I conclude that the text does Rule because licensure, not not delineate the state of did attorneys provide representation intend to limit who at hearings to those licensed in Wisconsin. 12 Williston, supra note 8, § 31:4 at 275-77. 13 Id., Corbin on 408; Kniffen, Margaret § A. 32:3 5
Contracts, (rev.
1998).
ed.
24.6 at 27
14Majority op.,
15
Miller,
v.
Miller
435, 442,
67
2d
¶ 59. The does not mention this by adding rule but violates it the nonetheless words "licensed to law the state of Wisconsin" after "attorney." Flouting majority rule, word this opinion nevertheless claims to have made a reasonable
17Williston, 8, § supra ("Traditionally, note 31:6 at 313 general prohibits rewriting rule which a from parties' court agreement purporting precludes while to construe it also adding provisions court from terms or to the contract. Addi obligations undertakings imposed upon tional or not be a party guise authority to a contract under the of contractual construction.").
18
L.P.,
Co.,
Propane,
38,
Columbia
v. Wis. Gas
2003 WI
Danbeck,
12,
70,
261 Wis. 2d
interpretation. highly interpreta- It is dubious that language tion that rewrites the contract is reasonable. Applying ¶ I 2, 60. Rule would not add words bylaws bylaws. I as the would stick to the words of the that the intended the written conclude "attorney" any attorney regardless mean word attorney the is licensed. state which Rule 3. If a contract characterized as 61. is ¶ in more because it can be ambiguous interpreted than one reasonable extrinsic evidence way,19 to determine inten- may parties' be used tions.20 subject
¶ are on the of an 62. The silent attorney's viewed, of licensure and for state thus purposes susceptible case, at two of this as least (1) interpretations: needs to be licensed (2) Wisconsin, or need not be licensed argues bylaws require hospital that the Wisconsin. lawyer appear Wisconsin-licensed hearing; Seitzinger argues any lawyer Dr. appear can on his behalf. majority Although
¶
Rule 3 is recited
63.
application
present
opinion,21 this rule has no
to the
19
("Contract
Danbeck,
186,
language
245 Wis. 2d
10
is
¶
ambiguous
susceptible
if it
to more than one reasonable
45,
15,
Chrysler Corp.,
v.
2000
interpretation."); Dieter
WI
¶
670,
(same);
234
2d
610
832
Donaldson v. Urban
Wis.
N.W.2d
Interests, Inc.,
224, 230-31,
Land
Wis. 2d
case. No evidence was parties merely pre- sented in the circuit court. The argued sented briefs and the law before the circuit court. If 64. Rule 4. a contract is characterized it
ambiguous because can be in more interpreted than one reasonable way, contract is to be interpreted against drafter because the lan- was guage within presumptively control the party drafting agreement that party could have made it clear.22 "[A]mbiguous agree- ments are to be construed most strongly against the maker or drafter."23 This rule is especially *27 when the drafter applicable wants to interpret the in ambiguous its favor.24 language
22Williston, supra 8, § ("Ambiguity— note 32:12 at 471-72 the possibility phrase that a word or in might a contract be reasonably plausibly subject and meaning— to more than one frequently language parties occurs in the the express used meaning. their Since language presumptively is within the party drafting agreement, control of the it generally is a accepted principle any ambiguity language that in that will be drafter."). interpreted against the
23
Shern,
(1973).
49,
39,
Moran v.
60
2dWis.
agreement" against drafter articulated is well .(Second) Contracts, Comment Restatement power contract A: The drafter had the to make the contract had the clear and the drafter of a standardized stronger bargaining position. A reads as Comment follows: contract, he party one chooses the terms of a is
Where likely carefully protection more for the of his provide party. He own interests than for those of other is reason to likely party also more than the other to have Indeed, may meaning. of uncertainties of he leave know obscure, meaning deliberately intending to decide at a doubt, In meaning later date to assert. cases of what decisive, therefore, long are not so as other factors preferring meaning there is reason for substantial rule is invoked in cases of party. of the other The often drafting and in standardized contracts cases where it not party stronger bargaining position, has the but limited to such cases. hospital's bylaws appear to constitute
the kind of standardized contract between two
justifies
unequal bargaining power
particularly
Seitzinger,
interpretation against
the drafter. Dr.
*28
probability,
language
all
had no control over the
bylaws
position
bargain
for more
and was
no
language
employment.
when he obtained his
favorable
technique
known
'contra
party who chose
words. This
is
Interests, Inc.,
See Donaldson v. Urban Land
proferentem.'").
(1997)
224, 230-31,
(applying rule
211 Wis. 2d
25 Majority op., ¶
34 Assuming "ambiguous" ¶ 68. that this contract is applying bylaws and Rule 4,1 conclude that the should interpreted against hospital and that Dr. Seitz- inger, appear who wishes to at the with state, another should be allowed to do so. Interpretation
¶ 69. Rule 5: of a contract is a question of law for the if the court is contract unambiguous ambiguous or if the contract is hut presented.26 no extrinsic evidence has been "Con- application struction of disputed and their to un- present question facts a of law that we give review de novo."27 The court need not defer- interpretation.28 ence to the drafter's majority opinion not does recite Rule 5. majority opinion ignores Instead, this rule and by asserting "[applications hospital violates it of bylaws are reviewed under deferential standard
26Williston,
8,
supra
92-93; Corbin,
note
supra
30:7 at
13, §
note
24.30 at 338.
27
649,
v.
Hosp.,
637,
Keane
St. Francis
186
2dWis.
522
(Ct.
1994).
App.
N.W.2d 517
28
("The
Danbeck,
186,
245 Wis. 2d
10
of an
question
subject
insurance contact
is a
of law
to de novo
Dieter,
('We
review.");
234 Wis. 2d
15
inter
review the
pretation
warranty
any
novo,
of a
other contract de
doing so,
primary
our
is
purpose
give
to ascertain
effect to
("Con
parties.");
Tempelis,
intent of the
Wis.
2d at 9
tracts of
insurance are controlled
principles
same
law
that are
applicable
other contracts .... The
construction
question
insurance contract
which
of law
we review de
novo.")
Co.,
(quoting Cardinal v. Leader
Ins.
2d
Nat'l
166 Wis.
375, 382,
(1992));
N.W2d 1
Randolph
Katze v.
&
Mut.
Scott
Co.,
(1984)
206, 212,
Fire
Ins.
Wis. 2d
30 Majority op.,
"courts
do
management
concerning
interfere with
reasonable
decision
rules,
adopt
regulations, and
privileges
hospitals
staff
...
must
bylaws concerning procedures for
to staff member
admission
ship,
they may
arbitrarily prevent
qualified
otherwise
not
exercising
Cipolla,
from
staff
Belmar v.
privileges."
doctors
(N.J. 1984) (citation omitted).
533,
A.2d
Ass'n, Inc.,
276,
Hosp.
2d
Stoughton
Hale v.
126 Wis.
(Ct.
1985).
App.
¶ 73. Rule 5 and the interpretation, adding standard of not words to the bylaws, interpreting language against the I drafter, parties conclude as a of that matter law the did not bylaws provide intend the to that an must be appear licensed in to Wisconsin with an affected doctor peer hearing. at a 74. Rule 6: "The contract be as must read a
¶ whole and will with every part be read reference to the whole."34 "The con- general rule as to the struction contracts that meaning is the particular in the provisions contract is to be ascertained with reference to the as contract whole."35 32 649, Hosp., Keane v. St. Francis 186 2d 522 Wis. (Ct. 1994).
N.W.2d App. 517 33Majority op., 34 Williston, ("A supra note 8, § 32:5 at 420-21 will contract every part be read whole and will with as be read reference to If possible, interpreted will whole. contract be so as to give general purpose effect to its as within four revealed its ("A entirety."), § corners or its at 464 contract he 32:11 must parties as a and the construed whole intention of the be instrument...."). from the collected entire 35 v. 9; Tempelis, McCullough see also Wis. 2d at Brandt, (1967) ("In 102, 106, 34 Wis. 2d N.W.2d contract, of a the contract must considered as majority opinion rule fails recite this 75. The ascertaining meaning bylaw aof
and violates it bylaws considering case, In this a whole. without bylaws scope representation hospital's limit the hearing it is that the so that evident at parties that an must be licensed did not intend in order to assist at law Wisconsin hearing. peer review aas non- refer to the
judicial hospital which the is free limit forum participation. Specifically, attorney's active role of 3.3(b) provides "[w]hile Bylaw counsel proceedings respective and assist the attend *31 provided professional of nature these herein, due to the proceedings proceedings, that the it is intended review professional judicial but a forum for will not be in form Accordingly, Hearing the evaluation and discussion. body appellate review retains Committee and/or participation right role of counsel's active to limit the hearing process." 3.3(b), governs scope Bylaw 77. While which hearing, attorney's peer participation at a of an acting capacities, prohibits in certain from ways representative explain not in what a of the it does charging representative affected doctor and a entity hearing. scope participate The of at a (and party's of therefore those each each activities by Bylaw Bylaw representatives) governed are 3.4. their party right explains call and that each has the 3.4 give meaning provisions a each its whole order Corbin, 13, § note 24.21 at 204 parties."); supra intended interpreted and their a contract are be C'[T]he terms of whole."). a determined as effects question witnesses, evidence, rebut a submit writ- Bylaw hearing. ten at the statement close of the 3.4 provides as follows:
Each of right have shall to: (a) witnesses, Call and including expert examine wit- nesses.
(b) present Introduce exhibits and relevant evidence. (c) Question any any on witness matter relevant issues.
(d) any Impeach witness.
(e) any Rebut evidence.
(f) Submit a written statement at the close hearing. (g) the hearing by Record use of court reporter or mutually other acceptable means of recording. hearing ordinarily
¶ 78. The committee is com- posed of 3 staff, to members of the medical with the being presiding chairman officer.36Under certain hearing may preside circumstances officer over the hearing. may, not, officer but need be an "attorney-at-law," experienced but must conduct- ing hearings.37 *32 § Bylaw procedure
¶ 79. 3.8 sets forth the rules of govern hearing. According and evidence that § the "hearing strictly 3.8, the need not be conducted ac- cording relating of rules law to the of examination presentation Any witnesses or of evidence. relevant judgment evidence shall be if, admissible in the of the 36Bylaw 2.9, §§ 3.2. 37Bylaw § 9.2.
presiding on which officer, it is the sort of evidence rely responsible persons in the are accustomed to Bylaw provides The further conduct of serious affairs." power presiding to rule "the officer shall have that admissibility pieces of evidence." on the of procedures common 80. These are enumerated by many hearings. types Some are conducted attorneys in law with Wisconsin. are not. Some bylaws, expecta- from the 81. As is evident may totally peer hearings is review be
tion that bylaws by not and with medical The do conducted staff. hearings require persons knowl- will envision that hearings procedure. edgeable or in Wisconsin law any specialized in on knowl- are not conducted reliance say edge nothing law, to law or Wisconsin peer particularly given procedure, hear- that the being "judicial ing explicitly not forum." as described routinely perform laypersons fact, In in for the activities set forth hearings governmental contexts, such ad- in other hearings. non-attorneys instance, For ministrative capacity compen- representative in in worker's serve § Code 80.06 sation cases. Wisconsin Admin. DWD controversy. may ap- provides "parties . that to the . by agent." pear The licens- an or § ing procedure De- 80.20 established DWD Development require partment does not of Workforce Department appearing individual before attorney.38 102.17(l)(c) licensing governs Stat. Wisconsin hearings. appear compensation non-attorneys who worker's provides: It *33 83. The rules governing procedure a
worker's compensation are hearing simi- substantially lar to those of the hospital peer review hearing. Wis- § consin Admin. Code 80.12 provides "[t]he rules of practice before the department shall be such as to secure the facts in as direct and simple manner as possible."39 Furthermore, in a worker's examiner compensation hearing "may limit testimony only those which matters are and disputed"40 not "may allow record, into the either on direct or cross-examination, redundant, irrelevant or repetitive testimony."41 In words, other at a worker's compensation hearing, laypersons are authorized to and present rebut evidence, cross-examine and witnesses; impeach are proceedings recorded.42 There seems to be little if any difference between the in a procedures worker's compensation peer review hearing. Any party right present any hearing, shall have the to he person by attorney any agent, or present or other and to such testimony pertinent controversy as to the before the department. person, firm, corporation, No or other than an state, may at law who is licensed to law in the appear any party department on behalf of in interest before the or any employee department assigned member or to conduct any hearing, investigation, inquiry or relative to a claim for compensation chapter, or benefits under this unless the years age older, 18 not does have an arrest or conviction record, subject 111.321, 111.335, to ss. 111.322 and is otherwise qualified, department and has obtained from the a license with appear proceedings authorization to in matters or before the (cm) department. Except provided (cr), pars, under by department promulgated license shall he issued under rules department. 39 (Nov. 80.12(l)(a) 2002). § Wis. Admin. Code DWD (Nov. 80.12(l)(b) 2002). § Wis. Admin. Code DWD 80.12(l)(c) (Nov. 2002). § Wis. Admin. Code DWD 80.14(1) (Nov. 2002). See Wis. Admin. Code DWD *34 Similarly, person a a who is not Wisconsin licensed may person unemployment attorney represent in an a proceeding43 perform compensation and activities simi- by performed representative peer in a lar a to those hearing.44 considering parties In the intended whether attorney person a that a who is not Wiscon- representative may appear a for an affected sin as bylaws apply as a whole and doctor, I Rule 6.1 read the give bylaws' effect to the characterization venue non-judicial bylaws' preclusion of an as a attorney forum the acting attorney peer an the
from bylaws' give hearing. I effect to the statement of the also rights parties procedure. In and the rules of discerning parties' I a intent, look at whether lawyer a can who is not licensed Wisconsin governmental appear perform similar functions hearings. all of On the basis of these administrative 43Unemployment appeals require do not insurance also § attorney representation. Admin. Code 140.02 Wisconsin 2000) (Sept. provides that: any hearing Any party appear party's on the own behalf at chapter appear by representative. a this or with or The under authority representative presumed full to have act on shall including authority party, to file or an behalf of withdraw authority representative appeal. shall act on behalf of The have party representative party until terminates department representative's authorization and notifies the representation such has ended. Department Development's Workforce website further attorney. representative http: that a need not be an See clarifies //www.dwd.state.wi.us/uibola/BOLA/FAQs/Representation2.htm. 2000) 140.15(1) (Sept. See Wis. Admin. Code DWD ("Each given opportunity shall be to examine and party 2000) 140.16(1) witnesses."); § (Sept. cross-examine DWD not (statutory apply). and common law rules of evidence do factors, I conclude that the did not intend the representation to limit of an affected doctor before review board anto licensed Wisconsin. interpretation "[A]n 7: Rule which
gives meaning reasonable, lawful, and effective preferred to all the terms is to an part which unreasonable, unlawful, leaves or of "[W]here no effect."45 one construction would extraordinary make a contract unusual [construction] equally while another consistent language with the used would make the contract *35 just, pre- reasonable, fair, the latter must vail."46 Although majority opinion
¶ 87. the asserts that interpretation bylaws its of reasonable, the I con- following majority clude, reasons, for the that the opinion adopted has an unreasonable of the and therefore one that the violates intent of parties. the majority
A. opinion's The determination that its interpretation is reasonable rests on its conclu- a representative sion that of an affected doctor peer expected at a review could be to legal on engage focus issues or activities that practice resemble the of law and that therefore parties bylaws require the intended that the lawyer. legal [ing] Wisconsin-licensed "Focus on "resembl[ing] practice of issues" law" are (Second) 203(a) (1981). Contracts, § Restatement of See Williston, 8, 32:11, Corbin, supra 453-64; § also note supra at 13, 24.22, note at 232-48. Invs., Capital 193 (quoting Wis. 2d at Bank of Cashton Co., County
v. LaCrosse
Scandinavian Town Mut. Ins.
216 Wis.
(1934)).
513,
B. on its conclu- reasonable rests interpretation is an affected doctor representative that a sion practice hearing engages peer at a intended therefore the and that of law a Wisconsin-licensed bylaws require that it repeated protestations lawyer. Despite its rep- determine whether and does not need not hearing constitutes resentation law, majority opinion con- practice constitute representation does that such cludes of law. by- interpretation of majority opinion's C. bylaws contradic- provisions renders laws rewriting in a results tory and therefore Such consistent. provisions bylaws make and cannot not reasonable interpretation is According to the the parties. intent of be the attorney must be majority opinion, an repre- in order law Wisconsin *36 hearing. peer doctor at a review an affected sent represent to bylaws a staff doctor But the allow any person of the entity and allow charging charging en- choosing represent entity's attorney repre- tity. bylaws The also allow A not charging entity. doctor sent attorney not than an any more practice law Therefore, majority in Wisconsin. licensed bylaws either interpretation opinion's contradictory or re- internally them renders only a Wisconsin- them to read that writes can represent a doctor or the charging entity peer at a hearing. review D. majority The opinion's interpretation by-
laws is unreasonable because it is unfair. It denies Seitzinger Dr. access to the attorney of his choice. Yet the proceeding very signifi- has consequences him, cant bylaws and the allow the charging entity represented by to be anyone it chooses. Such an interpretation is unreason- able and cannot be said to be the intent of the parties, many no matter how times the majority opinion flatly insists that a reasonable way. would view them that majority E. The opinion's interpretation is unrea- sonable it because does not public foster the policy underlying licensing lawyers prohibition on the unlawful of law. justification licensing lawyers for and the public policy underlying prohibition on the unauthorized protect of law is to con- legal sumers policy services. This impli- is not cated in the hospital bylaws and peer review hearings. Accordingly majority opinion's in- terpretation is unreasonable and cannot be said to he the parties. intent of the
A majority opinion's 88. The conclusion that the mean that a non-Wisconsin licensed represent Seitzinger peer cannot Dr. at the hearing majority opinion's rests on the characterization representation at a "at the very expected least... could be on focus is-
sues."47 Such cannot reasonable parties. concept intent of The that an and the legal activity issues" or "resembles the that "focuses on only by practice performed of law" can be Wisconsin- lawyer foreign jurisprudence to our and licensed is of law. creates an unworkable rule majority opinion ¶ 89. The states several times closely likely "focus that Mr. Kadar's activities would on practice legal or of law"49 issues"48 "resemble layperson engaging any refrain from that "a must practice of In a similar acts that resemble the law."50 majority opinion vein, the reasons that because Mr. might provide legal peer hearing Kadar advice at the bylaws' any attorney despite the limitations on who interpreta- represents doctor, affected reasonable that a tion of non-Wisconsin licensed represent cannot an affected doctor.51 does not the activities a 90. record disclose representative majority performs, doctor's justification, provides explanation, opinion or cita- no authority drawing a line tion of for between activities performed by that can or cannot be non-Wisconsin attorneys their resemblance to the "Focus[ing] "resemble[ing] of law. on issues" vague, broad, of law" are and undefined phrases many profes- encompass activities attorneys. are an inter- sionals who not licensed Such pretation only problems can cause in the future.
47Majority op., 34. Majority op., ¶¶ 49 Majority op., 30, 34 ¶¶ 50Majority op., 51Majority op., 27-37. ¶¶ *38 majority opinion Although relies on ¶ the 91. Rice, Bar v. 236 Ass'n Milwaukee State ex rel. Junior of (1940), for the notion that an 38, 294 N.W.550 Wis. person's the not "resemble activities unlicensed practice that or the Rice decision never uses law,"52 of (and cases) any phrase. our other The Rice case similar practice speak law, not of of activities that constitute merely legal or focus on issues resemble those that practice of law.53 majority opinion inter-
¶
claims that its
92. The
required
pretation
because another
is
attorneys
"might permit
interpretation
unlicensed in
non-attorneys
Stat.
to violate Wis.
or
the state
per-
"might" permit
unlicensed
does
757.30."54What
Why
engage
practice
it
of
mean?
is
in the
law
sons to
person
that a
that the
reasonable to conclude
possibility
legal
might engage
providing
he or she
services while
non-legal
providing
a sufficient basis to
services is
is
*
barring
hospital bylaws
interpret
a non-
appearing at a
from
licensed
Wisconsin
Many
hearing?
professionals
not
who are
explain
attorneys engage,
later,
Ias
Wisconsin-licensed
legal
myriad
issues,
focus on
in a
of diverse acts that
put
professional
practice
law,
resemble
"might" engage
position
in the
he or
in which
she
approach
practice
cases do not take the
of law. Our
resembling
practice
activity's merely
law or
focusing
a non-Wisconsin
on
issues bars
analyze
engaging
lawyer
Rather, our cases
from
in it.
52
34.
Majority op., ¶
Donohue,
See,
230, 248,
Lathrop v.
2d
e.g.,
10 Wis.
(1961).
(1960); aff'd,
N.W.2d 54Majority op., activity challenged whether that each and determine activity of law.55 does or does not constitute majority I therefore conclude that contrary opinion's is to the intent under- and that no reasonable would Bylaws "legal in the mean the words counsel" stand licensed to law Wisconsin. B internally majority opinion contradic- 94. The tory. Despite repeated protestations that *39 need not its it representation and does not determine whether "such hearing] practice [at peer a would constitute the review only reading possible opinion of the is that law,"56 of representation peer hearing at the review constitutes practice of law. explicitly majority opinion 95. states that bylaws construe the to refer to a non-Wisconsin licensed attorney "might permit attorneys unlicensed in the engage practice state" to in the unauthorized of law.57 mean if it doesn't mean that an What does this sentence peer practice appearance at a is the any meaning If there is doubt about the of the law? only sentence, we need examine the section of the majority opinion discussing interpreta- devoted to bylaws.58 tion of the
55See, e.g., ex rel. Junior Milwaukee Bar v. State Ass'n of (1940). Rice, 53 294 Wis. N.W.550 56 Majority 3, 36, 39, 41, op., ¶¶ 57Majority op., 58Majority op., 27-41. ¶¶ Eight paragraphs majority ¶ 96. of the 15 of the opinion,59 approximately is, two-thirds of the "total majority opinion spills ink" the on the substantive analysis bylaws, defining address cases the un- practice majority opinion authorized If the law. does appearance prac- not conclude that Mr. Kadar's is the requiring why tice of license, law Wisconsin does the majority opinion engage lengthy in this If discussion? majority opinion does not conclude that Mr. Kadar's appearance practice requiring is the of law a Wisconsin majority opinion's license, what is the basis for the that the were intended to bar appearing out-of-state from at the hearing? sympathetic majority's
¶ 97. I am with the at- tempt deciding practice to avoid what constitutes the practice Defining law and the unauthorized of law. generated great these terms has deal of discussion among lawyers, judges, non-lawyers many for years. year In so, the last both American Bar Association and the Bar State of Wisconsin have inde- pendently respective attempts abandoned their to reach acceptable approach defining definition or of law or the unauthorized of law. majority opinion points
¶ 98. out, As the the State *40 petitioned appoint Bar of has Wisconsin our court to a study committee to this area of the law.60 Numerous lawyers, representatives groups, of consumer non- lawyers, representatives ap- and trade association peared hearing this before court at its on the Bar's (and petition. persons carefully explained gave These many examples) professionals engage how in activities
59Majority op., 28-35. ¶¶ 60Majority op., 41 n.15. legal daily focus basis that sometimes have and on practice of law. To name a such resemble the professionals: few advisers, advisers,
financial investment bankers, mediators, arbitrators, trust of- accountants, engineers, geologists, paralegals, ficers, realtors, many engage planners. professionals in ac- land That or resemble the tivities that practice focus on issues key presents in of law one of difficulties trying practice to define the of law and the unautho- practice rized of law. majority opinion contradicts 99. Because the addressing, by addressing I
itself an issue it denies majority opinion's interpretation of conclude that the bylaws contrary to the intent of the is that the that no reasonable would understand Bylaws "legal in mean an words counsel" law Wisconsin. C majority opinion's interpretation ¶ 100. The ren- internally contradictory. bylaws an ders the Such inter- pretation cannot be reasonable and intended parties. Why by- interpret it reasonable allowing repre-
laws as not
an out-of-state
sent an affected doctor when the
allow a staff
represent
doctor to
an affected doctor at the
any person
choosing
represent
and allow
of its
charging entity? non-lawyer,
A
as well as
out-of-state
engage
lawyer,
cannot
law Wiscon-
logical
majority opin-
conclusion,
sin. Carried to its
any person
ion bars
who is not a Wisconsin-licensed
representing
attorney from
or the
affected doctor
charging entity
hearing.
at a
Indeed,
*41
majority
states that
opinion
interpreting
a
licensed
to
allowing
non-Wisconsin
appear
in
non-attorneys"
.
to
the un-
"might permit..
engage
authorized
of law.61
If
it is reasonable to interpret
representa-
of an
at
tion
affected doctor
a
as an
in which
cannot
as the
activity
laypersons
engage,
does,
then it is
for the
majority opinion
reasonable
majority
to render the
authorization
opinion
hospital's
of its staff doctors to
at these
provide representation
hearings to either
affected doctor or to the charging
entity an
authorization
of the staff doctors and
illegal
other
to
A
non-lawyers
engage
of law.62
reasonable
would not think that
the same ac-
tivities that can
a doctor
an
performed
require
the State of Wisconsin.
is it
Why
61Majority op.,
62
interpretation
An
a
produce
contract that could
un
(Second)
lawful results is not reasonable. Restatement
of Con
203(a)(1981) ("[A]n
tracts, §
interpretation
gives
which
a rea
sonable, lawful,
meaning
and effective
to all the terms is
an
preferred
interpretation
part
which leaves a
unreason
effect.").
Williston,
able, unlawful,
supra
or of no
See also
note
("Consonant
8, §
all
principle
parts
32:11
453
with the
given
possible,
a contract be
effect where
an
a
preferred
which renders
contract lawful is
to those which
unlawful.").
render it
City
See also Glendale
'l Policemen's Ass'n v.
Glen
Prof
(1978) ("[A]
dale,
90, 102,
83 Wis. 2d
D majority opinion's interpretation ¶ 103. The un- reasonably Seitzinger right Dr. denies to to a representative of his choice under the of circumstances right representation, yet the case. It limits his allows charging entity represented by anyone to be it very important Seitzinger. chooses. This case is to Dr. professional reputation jeop- His livelihood and are in ardy hearing. at the His choice of Mr. Kadar bylaws falls within the text of the and within the interpretation. Accordingly, well-worn rules of contract majority opinion's interpretation hospital bylaws contrary is to the intent of the and no reasonable would understand that the words "legal Bylaws counsel" in the mean an practice law in Wisconsin.
E majority opinion's interpretation ¶ 104. The public it unreasonable because does not foster the policy underlying licensing lawyers and the prohibition policy on the unlawful of law. The underlying prohibition consideration licensure and the protection on unauthorized is the of consumers might upon services from harm that be visited by persons presumably incompe- them untrained and provide inadequate tent in the law who will or unethical representation.63 implicated public policy is not in in- 105. This Seitzinger.
terpreting hospital favor of Dr. representative hearings Here, the activities of a at the non-judicial bylaws: are limited the forum is representative's and the activities are restricted to non-attorney According bylaws, functions. to the hospital engaging will restrain an from in the practice of law. *43 interpreting
¶
circumstances,
106. Under these
bylaws
require
lawyer
to
a licensed Wisconsin
does
protect
Seitzinger
not
Dr.
as a
consumer
advice.
licensing
lawyers
prohibition
The
and the
on the
practice
protect
of law not exist to
unauthorized
do
lawyers. Accordingly,
economic livelihood of
I conclude
majority
opinion's interpretation of
that the
contrary
to the intent of the
and that no
reasonable
would understand that
the words
Bylaws
"legal
counsel"
mean
practice
law in Wisconsin.64
citing Jadair Inc. v.
Fire Ins.
29,
See
U.S.
majority op.,
¶
(1997)
Co.,
187, 201-02,
(primary
2d
WALSH and DAVID T. PROSSER this dissent. lawyers, including
hac vice admissions of out-of-state those court, appearing appear- before this but cannot authorize the lawyer ance of an out-of-state at a hearing. If the problem, changed. rule is the then the rule should be Further- more, jurisdiction recognized lawyer least one has that a can pro be admitted hac if expected appear vice even not in court. Practice, Tribune, See Permission Connecticut Law Feb. 2004, at 8. further notes before this court has already involving recurred in a case another Wisconsin obstetrician-gynecologist privileges whose were re- hospital. physician voked This has also hired Kadar, stayed and the in that matter has been pending present our decision in the case. Appellate generally ¶ 17. courts will decline decide moot issues. State ex rel. Wis. Envtl. Decade v. JCRAR, 234, 236, 73 Wis. 2d 243 N.W.2d (1976). sought An issue is moot when a determination practical existing legal that will have no effect on an controversy. Am., Inc., Racine v. J-T Enters. of 64 Wis.