Netzer v. Office of Lawyer Regulation (In re Netzer)

545 B.R. 254
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedFebruary 3, 2016
DocketCase Number: 14-13531-7; Adversary Number: 15-130
StatusPublished
Cited by4 cases

This text of 545 B.R. 254 (Netzer v. Office of Lawyer Regulation (In re Netzer)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Netzer v. Office of Lawyer Regulation (In re Netzer), 545 B.R. 254 (Wis. 2016).

Opinion

MEMORANDUM DECISION

Hon. Catherine J. Furay, U.S. Bankruptcy Judge

This adversary proceeding involves a lawyer, Randy Joseph Netzer (“Netzer”), who was disciplined by the Wisconsin Office of Lawyer Regulation (“OLR”). The discipline resulted in the imposition of costs against Netzer. The Wisconsin Supreme Court imposed costs in the amount of $9,222.21 against him on January 29, 2014. (Dkt.# 38) Netzer seeks a determination that the costs assessed are dis-chargeable. OLR argues the costs are nondischargeable as fines or penalties imposed by a governmental agency.

For the reasons stated below, the Court concludes that the costs imposed by OLR are fines and penalties within the meaning of 11 U.S.C. § 523(a)(7), and thus the debt is nondischargeable. Therefore, dismissal of this case is required.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1334 and the Western District of Wisconsin’s order of reference entered under 28 U.S.C. § 157(a). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (I), and thus the Court may enter final judgment. 28 U.S.C. § 157(b)(1).

PROCEDURAL BACKGROUND

Debtor Randy Joseph Netzer filed bankruptcy on August 14, 2014. He filed a document he captioned “Notice of Motion and Motion for Declaration of Discharge-ability” on December 15, 2014, asserting that under 11 U.S.C. § 523(a)(7), the debt to OLR should be declared dischargeable (the “Motion”). On December 18, 2014, Netzer received a discharge. On December 19, 2014, an objection to the Motion was filed. On January 8, 2015, an Order was entered denying the Motion on the ground that a proceeding to determine dischargeability of a debt must be conducted by adversary proceeding. See Fed. R. Bankr.P. 7001. A Final Decree was entered on January 9, 2015, and the bankruptcy case was closed.

After the bankruptcy case was closed, there were apparently communications between Netzer and OLR. OLR sought payment of the costs imposed and advised Netzer that if he could not pay in full immediately, he should contact OLR to discuss payments. Netzer responded stating his position that the costs had been discharged. OLR communicated its disagreement with that position.

On August 10, 2015, Netzer filed a motion to reopen the bankruptcy case so that he could file this adversary proceeding. The case was reopened on August 26,2015. The adversary proceeding was filed on September 21, 2015. It seeks a declaration that the costs assessed against him by OLR in connection with the investigation and disciplinary proceedings are dis-chargeable. In addition to OLR, Netzer names the Wisconsin Department of Revenue and asks that an order be entered providing that no third party, including DOR and Matthew Anich, be permitted “to collect on said debt.” The Defendants filed an answer on September 29, 2015. [257]*257The parties filed cross-motions for summary judgment.

FACTUAL BACKGROUND

To the extent factual findings are necessary to reach the conclusions set forth in this decision, the following description of background facts constitutes such findings of fact. See Fed. R. Bankr.P. 7052.

Netzer was in a relationship that ended. Netzer undertook actions related to the former girlfriend and her family that ultimately led to a disciplinary investigation and to a finding of probable cause that there had been a violation of Wisconsin Supreme Court Rules governing the legal profession. At the time of the OLR investigation, there were also criminal charges pending related to the same conduct that was the subject of the OLR complaint. Suffice it to say, the disciplinary matter arose from a relationship gone wrong and Netzer’s actions thereafter. The details of the actions.are not relevant to the matter before this Court.

Netzer availed himself of the right to challenge the investigation and to challenge the disciplinary recommendation in the Wisconsin Supreme Court. Although he stated the Wisconsin Supreme Court could decide the matter on briefs without oral argument, argument was scheduled and conducted. The Wisconsin Supreme Court disciplined Netzer as a result of his conduct, including imposing costs on him in the amount of $9,222.21.

Although Netzer argues to this Court that his conduct was protected speech under the First Amendment, that argument was raised (and rejected) in the Wisconsin Supreme Court disciplinary action. Any such claims should have been addressed in that proceeding or an appeal thereof. Whether the conduct regarding a former girlfriend was appropriate or was a violation of either the Wisconsin Rules of Professional Conduct or any criminal statutes is also not relevant to this adversary proceeding.

DISCUSSION

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (applied through Fed. R. Bankr.P. 7056). The Court’s role is to determine whether there is a genuine issue for trial, not to weigh the evidence to determine the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242-43, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

As a procedural matter, on summary judgment “the burden is on the moving party to establish that there is no genuine issue about any material fact, or that there is an absence of evidence to support the nonmoving party’s case, and that the moving party is entitled to judgment as a matter of law.” 20 Charles Alan Wright, Arthur R. Miller & Edward Cooper, Federal Practice and Procedure § 105 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). There are no genuine issues of material fact and summary judgment is appropriate.

In general, a discharge enjoins action to collect any discharged pre-petition debts. It does not enjoin attempts to collect debts that were not discharged in the bankruptcy case. See, e.g., In re McMullen, 189 B.R. 402 (Bankr.E.D.Mich.1995).

If, as in this case, the debtor receives a general discharge, specific types of debts may, nevertheless, be deemed nondischargeable. Those debts are specifically enumerated in the Code. An objection to dischargeability of a claim or a declaration of dischargeability, as applica[258]*258ble, must be brought by adversary proceeding. Fed. R. Bankr.P.

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Cite This Page — Counsel Stack

Bluebook (online)
545 B.R. 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/netzer-v-office-of-lawyer-regulation-in-re-netzer-wiwb-2016.