State v. Roggensack

• Decision Date: 05 February 1963
• Citation: 119 N.W.2d 412,19 Wis.2d 38
• Parties: STATE of Wisconsin, Plaintiff, v. Rolland R. ROGGENSACK, Defendant.
• Court: Wisconsin Supreme Court

Page 412

119 N.W.2d 412

19 Wis.2d 38

STATE of Wisconsin, Plaintiff, v. Rolland R. ROGGENSACK, Defendant.

Supreme Court of Wisconsin.

Feb. 5, 1963.

Rudolph P. Regez, Monroe, for Bd. of State Bar Commissioners.

E. J. Morse, Jr., Lancaster, for defendant.

PER CURIAM.

Rolland R. Roggensack was born September 1, 1927, and is presently thirty-five years old. He is a graduate of the University of Wisconsin Law School, and was admitted to the bar in September, 1953. He is married and the father of three small children. Since July, 1954, he has practiced law at Lancaster, Wisconsin, where he now resides. He served as district attorney of Grant county from January 1, 1957, through April, 1961, when he was suspended by the governor because a criminal prosecution was pending against him in the Dane county circuit court for failure to file state income tax returns for the years 1957 and 1959. Defendant waived a jury trial. He was convicted of the offense charged, viz., violation of sec. 71.11(42), Stats., ¹ on October 12, 1961, and sentenced to pay a fine of $500.

The facts regarding defendant's failure to file his 1958 and 1959 state income tax returns which prompted the Wisconsin department of taxation (hereinafter the 'department') to institute a criminal prosecution are these: November 6, 1959, the department mailed written notice to defendant to file a 1958 return. December 9, 1959, the department mailed notice to defendant of proposed default assessment based on an estimate of his 1958 income. January 8, 1960, notice of default assessment for 1958 was sent to defendant. November 9, 1960, defendant notified by mail of hearing (at which his attendance was not compulsory) to be held at the courthouse in Lancaster to discuss possibility of his paying delinquent 1958 tax. November 14, 1960, letter was sent requesting defendant to file 1959 return and warning him of severe penalties for failure to file. This communication also commented on his failure to file 1958 return resulting in the default assessment for that year. December 28, 1960, notice mailed defendant requesting defendant to fill out his 1959 return and file it by January 13, 1961. Defendant made no reply to any of these communications.

Defendant testified with respect to the communications he received from the tax department as follows: In the fall of 1959 he received a form letter from the department requesting him to file his 1958 return. He laid it on his desk, which was piled high with papers, expecting to comply by filing the requested return. Shortly thereafter he received notice of a proposed doomage assessment of $400 if he did not file within ten days. He figured that his tax was around that figure and decided he would let the department have a tax lien for that amount. In the fall of 1960 he received a letter requesting a 1959 return and asking him to pay the $400 assessed for 1958. He was not as concerned about this as he should have been--perhaps in the vain hope that the department would again levy a doomage assessment as it had done in 1958.

In January or February, 1961, an auditor from Internal Revenue began an audit of defendant's records in which he cooperated fully. In March, while this audit was going on, defendant learned that the department had brought a criminal complaint against him. He completed his 1958 and 1959 returns and carried them to Madison and asked the department to compute the total due for tax, interest and penalties. Not receiving a compliance with this request, he then paid the principal of the tax for the two years with interest thereon at 12 percent per annum. Thereafter, the department notified him of a one hundred percent penalty.

In his testimony at the hearing before the referee, defendant told of the pressures exerted upon him and the demands made upon his time during the period of 1958-1960. In 1958 'everything happened at once.' From early that year until his suspension as district attorney in April, 1961, he was 'engaged in a giant rat-race.' The office of district attorney in Grant county is a part time position; Roggensack also had a growing private practice to attend to. In 1958 he commenced the probate of 21 estates--10 for the county welfare department and 11 for private clients. Several of the latter estates were sizable with respect to both amounts involved and problems presented. All of the estates handled for the welfare department involved sales of land which required that defendant clear titles to facilitate these sales.

In April, 1958, he tried an important criminal case, involving many separate counts, and also prepared a multitude of resolutions and other papers for the April meeting of the county board. The juvenile court records disclose that during these years he conducted an average of 75 hearings per year in that court. His presence was required in prosecution of traffic cases which were held in justice court in late afternoons, evenings, and Saturdays. He was driven to distraction by the constant ringing of his home phone by calls from the sheriff's office, the justice of the peace, the case workers in the welfare department, and lawyers whose clients had been arrested. A steady procession made its way to his office consisting of unmarried pregnant girls; village, city, county and state police; inspectors and agents of the state government; irate businessmen waiving bad checks and demanding instant action; and numerous town chairmen seeking legal advice with respect to town problems.

Civic and church activities also made demands on his time. He was president of the local Jaycee chapter and a member of the board of directors of the Community Chest. He taught a Sunday School class at his church and sang in the church choir which practiced Wednesday evenings. Furthermore, he accepted all speaking engagements extended to him. On top of everything else, he began construction of a new home in the fall of 1958 and did all the painting and varnishing himself.

Defendant summed up the effect of all these pressures and demands upon his time by stating: 'I concentrated on the things requiring immediate attention and trusted to a Merciful Providence that all other matters would wait until I got to them.' About May, 1958, defendant's accounting system failed him. All of his gross receipts were deposited in the bank; his only records were the deposit slips. In many cases the checks deposited included reimbursement for expenses as well as fees which rendered his task of determining net income more difficult. At the time, defendant did not become concerned because he figured that toward the end of the year he would take a week off and 'reconstruct what had happened.' Nevertheless, when it came time to do this he was worn out and sick in the hospital with pneumonia. When strong enough to return to work, he had to busy himself with making out the income tax returns of his clients. Things had piled up during his sickness, and he never did find the time to straighten out his own financial records so as to file a 1958 return.

The referee's report makes reference to a pronouncement made by Judge EDWIN WILKIE at the time he found defendant guilty in the criminal action. In this pronouncement Judge WILKIE found that defendant failed to file returns for 1958 and 1959 with intent to get out of paying the taxes due and, in effect, to cheat the government. In commenting thereon in his report the referee states:

'From a careful review of all the proceedings had in the Dane County Circuit Court, I have been unable to find the slightest bit of evidence to the effect that the defendant actually had any criminal intent, or that any fraud or moral turpitude was involved, as that term is defined by the courts. I gather from Judge Wilkie's opinion he was of the same belief, but felt, however, that the inferences to be drawn from the defendant's neglect to respond to the reasonable requests of the Department were strong enough to convict the defendant under said Section 71.11(42).'

On the basis of the evidence produced at the hearing before the referee, which is carefully and fully summarized in his report, the referee made this finding:

'There is no evidence whatsoever of moral turpitude as defined by the McCarthy case cited [State v. McCarthy (1949), 255 Wis. 234, 38 N.W.2d 679]. I am convinced that his delinquencies were due to his own belief that having been delinquent previously, which resulted only in fines and assessments, he could repeat at a time when he was having financial difficulties by building a home, etc., without incurring more than fines and assessments to be paid when he recovered from his financial obligation. Moreover, the Department makes no claim of deception, concealment, or other fraud.'

Clearly on the basis of the evidence presented before the referee this finding is not against the great weight and clear preponderance of such evidence, and we adopt same. Although the referee's finding conflicts with that made by Judge WILKIE in the criminal prosecution, the latter finding is not res judicata in this disciplinary proceeding but merely prima facie evidence of moral turpitude. State v. O'Leary (1932), 207 Wis. 297, 241 N.W. 621, 81 A.L.R. 1193. Its effect as such prima facie evidence disappears by reason of our approval of this finding of the referee.

Nevertheless, the fact that defendant was not guilty of moral turpitude, in the sense of an intention to evade payment of taxes, does not relieve him from discipline. This is because defendant's failure to file income tax returns, after being repeatedly notified by the department to do so, was intentional on his part even though he did not expect thereby to escape payment of any taxes. Canon 32 of the Canons of Professional Ethics of the American Bar Association describes the duty of the lawyer in part as follows:

'He must also observe and advise his client to observe the statute law, though until a statute shall have been...