*1 3) flood; repair following road a paved. and Obvi- shoulder improved, graded, was and control on clearing mosquito in this weed of this character ously, paved a road 4) Creek; Grizzly Bear construction may supporting not exist without location 5) drainage; posting signs, road photographs ditch ditches. and shoulders 6) signs; the speed plowing limit including that these ditches and maps confirm and and, fact, the and naturally neces- snow and use of shoulder ditches are shoulders 7) removal; cleaning and physically support the snow sarily required to knowledge drainage common is also culverts. pavement. It have and shoulders would that ditches retrial, the trial court should [¶ On 31.] necessary to process in the been created County’s and main- consider the Town pave- grade upon which the construct the to- tenance of the shoulders and ditches placed. has These matters ment been nature gether improved with the of this on retrial because should be considered public’s road the character of the use. and long noted “the this Court has situation facts, likely Considering appears these it way land which a claimed over is and that the shoulders ditches are neces- important upon should exert an influence sarily they of the If are a part a road. Realty, Roche question of dedication.” road, necessary undisputed of the part at (noting N.W. 29 S.D. acceptance and would not dedication acts dispute, the same that would that pavement. be limited of dedication in cit- the inference warrant agri- ies and towns could be insufficient KONENKAMP, Justice, joins areas) Elliott, cultural Roads and writing. special this ed.1911)). (3d Consequently, § 182 Streets necessary ditches if the shoulders and are they be a support pavement, must accep- dedication
part implied and
tance.
implied
An
acceptance supported is also other rec In the Matter DISCIPLINE reflecting that ord evidence the ditches OF William J. JANKLOW as necessary to and shoulders are accommo Attorney at Law. e., use; public’s i. mainte date the road No. 23724. removal, nance, drainage, snow and traffic implied An signage. control dedication Supreme Court South Dakota. acceptance finally supported by is Argued Oct. 2005. fact that Town2 has maintained the Decided Jan. 2006. times, shoulders ditches at various 1) including: improvements, shoulder road 2) graveling leveling; partial
such as a Although suggestion City Sioux there is in the briefs dedication.” Mason v. that Falls, some of the Town’s acts of maintenance 2 S.D. 51 N.W. they are not relevant because occurred within Moreover, (1892). dispute there is no that twenty-year prescriptive period, sug- maintenance, began Town before the ‘'[Pjroof gestion misplaced. use[]for County performing duty. Conse- that period required that much shorter than quently, has been maintenance of there may by prescription show title sufficient roadway inception. its since prove question [the more limited intent of] *2 from
twenty-six months December 2003, and that reinstated he be without February 15, 2006, proceedings further on *3 subject to conditions. twenty-six that a month 2.] We find
[¶ practice license to law, together with the recommended con- reinstatement, upon appropriate. ditions FACTUAL AND PROCEDURAL
BACKGROUND from the graduated 3.] Janklow Uni- [¶ versity of South Dakota School Law in practice and was to the admitted began career as legal law. He his director Mission, program of the aid South approximate- Dakota where for he worked ly years representing indigent six clients. Pierre, practiced He then in South Dakota approximately years. for two Janklow Attorney of South Da- served General kota from to 1979 served as Dakota from to Governor South and from to 2003. Between Governor, spent terms as approxi- Janklow years mately eight private practice Falls, Sioux South Dakota. Janklow House Rep- elected United States resentatives November and was in that time serving capacity at the leading disciplinary events to this action. Beresford, South Frieberg, Robert B. 2003, a Moody On December Dakota, Attorney Disciplinary County jury Janklow failure convicted Board. stop stop sign, speeding, at a reckless Adam, May, Brent A. Wilbur Gerdes driving degree manslaughter. and second Pierre, Dakota, Attor- & Thompson, South charges August The from an arose neys for J. Janklow. William Randolph collision which killed Scott. A detailed statement criminal case SEVERSON, Presiding Judge. Circuit Janklow, found in can be State v. 25, 693 Trial evidence disciplinary proceeding This is a N.W.2d 685. docu- (Janklow), against speeding a mented William J. Janklow numerous incidents Dakota. other traffic violations. On member of the State Bar December felony Bar of convic- Disciplinary reported Board of the State Board) provided by to this As (Disciplinary South Dakota has tion Court. SDCL 16-19-37, law suspended recommended that Janklow be Janklow’s license suspended from the for a total of was on December law disciplinary proceedings formal make a determination of pending wheth- 16-19-39. pursuant to SDCL er to recommend li- [Janklow’s] cense again suspended or court Jank- The trial sentenced other discipline imposed. January low on Pursuant 23A-27-13, granted the trial court SDCL suspended imposition sentence on STANDARD OF REVIEW degree manslaughter charge. Un- careful, gives [¶ 7.] “This Court suspended the terms of the imposition der due consideration to the Disciplinary sentence, placed Janklow was on proba- *4 findings Board’s of fact it because had the a of under period years
tion for
three
advantage of
the
encountering
witness
conditions,
serve
including
certain
that he
Ortner,
first
In
hand.”
re
of
days
hundred
in the
Coun-
one
Minnehaha
¶
83, 26,
865,
2005 SD
699 N.W.2d
Jail,
$5,000,
ty
that he
a fine of
and
pay
¶
Arendt,
83, 12,
re
(citing In
2004 SD
during
that he not drive motor vehicle
81).
79,
However,
this Court does
period
ap-
the
of
probation.
his
Janklow
not
to a
defer
recommended sanction.
in
pealed and his convictions were affirmed
¶
Ortner,
83, 26,
SD
Janklow,
693 N.W.2d
N.W.2d at 874
In re Discipline of
Disciplinary
[¶ 6.] The
Board held a
114, ¶41,
Laprath, 2003 SD
“
hearing
on
on
this matter
June
55).
‘The final
for
determination
the
fact,
and filed its
findings
conclusions
discipline
appropriate
of a member of the
law and recommendation with
Court
State
rests firmly
Bar
with the wisdom of
August
object
”
on
2005. Janklow did not
this Court.’
and a
not
The
appointed.
referee was
¶83, 26,
SD
(a)That duty on “govern this Court to terms of fully comply he with all terms bar, courts, discipline and admission
and probation. conditions his of the bar.” members SDCL 16-19-31 (b)That promptly he advise the Secre- further defines this Court’s constitutional tary the Disciplinary Board regulatory relationship with the State Bar: any of his probation, violation Disciplinary and the Board The license to law this state make a determination of wheth- continuing proclamation is a the Su- li- er to [Janklow’s] recommend fit preme Court that the holder is to be again suspended or cense be judicial professional with entrusted discipline imposed. other matters, and to aid in the administration (e)That justice for a of two after an an period years attorney as offi- duty court. probation complete, every cer of the It is the [Jank- promptly report recipient privilege to the Sec- of that to conduct
low] times, retary Disciplinary professionally Board at all himself both any moving conformity with personally, violations of traffic laws, imposed Board members of Disciplinary upon standards crime” under is a “serious felony which privilege for the as conditions bar provisions 16-19-36. Under SDCL practice law. 16-19-39, issue to be deter- the sole SDCL pertinent provides, 16-19-37 SDCL discipline final extent of the mined is the part: imposed. to be convicted of attorney has any been If disciplinary options 16-19-36, §in defined crime as serious rep private include to this Court available an order enter Court shall Supreme censure, pro on rimand, placement attorney, immediately suspending status, up bationary from a resulted the conviction whether 16- SDCL years and disbarment. three fromor or nolo contendere plea guilty in a discipline appropriate 19-35. “The otherwise, trial or after a verdict by consider is determined case particular appeal, pendency regardless of misconduct, the ing seriousness disciplinary of a disposition final pending misconduct will that it or similar likelihood upon such to be commenced proceeding rec attorney’s prior repeated, and conviction. *5 2005 SD Discipline ord.” defined as: A crime” is “serious [¶ 9.] ¶ 36, at In re Disci N.W.2d 877 crime a neces- felony any lesser any ¶ 47, Eicher, pline of which, by as determined sary element of 369).1 N.W.2d common law definition statutory or the Proceeding Disciplinary crime, conduct Goals improper of such involves with the attorney, interference as an goals of disci The two [¶ 11.] justice, swearing, false administration “1) protection the proceedings are: plinary fraud, failure willful misrepresentation, fraudulent, un from further public deceit, returns, brib- income tax to file involving activities incompetent or ethical theft, extortion, ery, misappropriation, 2) preservation the attorney; and this or solicita- conspiracy or a attempt or an attorneys, integrity image a serious tion of another to commit legal profession the bar association crime. Discipline a whole.” Matter as (S.D. 921-22 Simpson, was convicted SDCL 16-19-36. 1991). issue to be “The real and vital manslaughter, a Class degree of second intention- United States. The felony state and the conviction 1. While some states make disbarment, ap- by grounds this laws those who are automatic al violation of those attorney discipline not been proach knowledgeable has to specially trained and adopted In re in South Dakota. and con- particularly unwarranted them is (S.D.1978). Parker, attorney's oath a breach of stitutes discipline other than whether To determine society, position in Because of his office. appropriate, cir- be disbarment would lawyer by a of law even minor violations surrounding the conviction will cumstances public confidence in the to lessen tend i.e., considered, the conduct be whether fraud, deceit, exempli- of the law profession. Obedience dishonesty, or mis- involved lawyers espe- respect for the law. To fies conduct is representation; whether be more cially, respect for the law must justice; prejudicial to the administration platitude. than adversely reflects whether the conduct Jeffries, 500 N.W.2d Matter of competency attorney’s integrity, upon the 1993) (S.D. (quoting In re practice or to law. fitness 780) Parker, (emphasis add Id. ed). court, attorneys are As officers of of this charged of the laws with obedience accused, determined is whether or not the public, usually warrants disbarring the at- submitted, from whole evidence as is a torney involved.” Id. at 224. ' person
fit proper permitted This distinguishable case is from practice continue of law.” Id. at those attorney discipline cases involving fraud, dishonesty, deceit misrepresenta- or tion and those involving cases harm to I. Protection Public clients. It is also distinguishable from The first and primary goal cases involving the use of drugs and alco- attorney discipline protect pub is to hol. Janklow’s felony conviction is unre- fraudulent, lic from further unethical or lated to the of law. While there incompetent activities. This Court does public' are concerns regarding conviction, only not look at the but must driving, there was no presented evidence consider the circumstances surrounding suggest that the protection needs the conviction. Janklow was convicted of from Janklow’s conduct as an attorney. degree manslaughter which is de long Janklow has a distinguished ca- “[a]ny fined killing reckless of one hu reer attorney. as an widely He is regard- child, man being, including an unborn lawyer. ed as a skilled There is no evi- which, the act or procurement of another suggest dence to that he would abe threat provisions under the chapter, of this to his clients or to the if allowed to neither murder nor manslaughter return to of law. degree, justifiable first nor excusable nor II. Integrity Attorneys, SDCL 22-16-20. The jury homieide[.]” *6 Bar Association Legal and found that recklessly Janklow acted when as a Whole it convicted him of degree man Profession slaughter. He not charged was with or This [¶ 14.] Court must also consider felony convicted of a involving an inten goal the second attorney discipline, tional act. The distinction significant. is preservation image and integrity of degree “Reckless is lesser of culpability attorneys, the bar legal association and the or mental state than intentional.” v. State profession. Janklow’s actions resulted in ¶ Giroux, 24, 14, 2004 SD 676 N.W.2d being. death another human We 144. previously This Court has identified lawyer’s must consider a responsibility as categories several of attorney conduct an obey officer of the Court to laws. In which warrant Discipline disbarment. law, return for their license to Jeffries, 500 N.W.2d 223. “The first lawyers positions special hold responsi- historically important, the most is bility to their public. They clients and the “when it is clear protection that support must take an oath to the Constitu- ” (cita society requires such Id. action[.]’ tion of the United States and the Constitu- omitted) (alteration tion in original). Gen tion of the State of South Dakota. Viola- erally, appropriate it is attorneys to disbar by lawyers tions of the law undermine who are convicted of a serious crime as public trust and confidence in the rule defined SDCL which results in harm to law. component This must be a of our clients or others. felony Id. Often these evaluation appropriate as we consider the involving convictions are for crimes moral discipline. turpitude. summarize, Id. “To attorney involving conduct turpitude moral Janklow’s criminal [¶ 15.] case and/or dishonesty, fraud, misrepresenta deceit or coverage received extensive media and led tion, harms, or likely which is to harm the to his resignation from the United States ¶ at 250 Janklow has 638 N.W.2d Representatives.
House
Hopewell,
while the convic-
507 N.W.2d
Discipline
remorse
expressed
(S.D.1993)).
attorney
con-
is and
professional
personal
“[A]n
had
tion has
personal grief
than
“[publicity
higher
be held to a
standard
should
sequences,
deciding appropriate
dis-
general public
profession
and the
is
not factors
are
2005 SD
entitled to know that
there is
conse-
cipline.”
V,
¶
art.
at 877. “Under
not met.”
quence
N.W.2d
when that standard is
Court,
Constitution, this
Simpson,
§
our
at 923.
12 of
solely
any
party,
nor
third
is
media
not the
Appropriate Discipline
for deter-
responsibility
charged with
discipline in
appropriate
is
mining what
case,
In this
conviction of
[¶ 17.]
(cita-
case.” Id.
any attorney misconduct
sanctions as it
a serious crime warrants
omitted). Appropriate discipline is
tions
placed on attor
reflects on the
trust
issue to be influenced
partisan
not a
also
However,
consider
neys.
we must also
opponents.
or
by political supporters
that Janklov/s conviction did not involve
act and
unrelated to the
intentional
of a
purpose
“The
A
held
lawyer
of law.
must be
a crime
punish
is to
prosecution
criminal
acts,
if the
accountable for his or her
even
In re
against the State.”
unintended,
were
but
must not
results
we
¶ 17,
Wilka,
lawyer.
unfair to the
any criminal
“Punishment for
activi
sentencing[.]” Discipline
determining
appropriate
In
ty
is handled
discipline,
applied
at 922. “The
level of
we have
South
Simpson,
disciplinary proceed Dakota law and reviewed
Dakota
attorney
purpose
anew,
punish
attorney
cases which have addressed similar
ings
not to
principles.2
have also considered disci-
to take sufficient measures for
We
but rather
legal plinary
involving manslaughter
and its
actions
protection
types
of these
convictions from other states as there is no
system
repetition
from a
*7
Wilka,
Although
2001
similar case in
Dakota.3
Discipline
SD
South
incidents.”
of
Steiner,
censure);
ing
Discipline
Simpson,
467 N.W.2d at
warranted
In re
See
of
(Del.2003) (holding
suspended imposi-
sitting for Chief Discipline of Wilka, 2001 SD 638 SABERS, KONENKAMP, (citing Discipline Hope ZINTER at N.W.2d 250 917). MEIERHENRY, well, Justices, pointed 507 at As out disqualified. N.W.2d Patchel, Curran, Against Counsel v. 539 Pa. A.2d 625 115 Wash.2d 801 P.2d (1995) (1990) (holding suspension year (imposing that a four a six month eighteen appropriate counts for conviction of two in addition to an month interim sus- by driving pension period vehicle counts of while homicide and two intoxicated involving injury resulting personal accident death or two vehicular homicide war- in run); rants). Disciplinary Proceeding In hit and re a association, legal profession as one, and the some in footnote majority
by the
con-
“Lawyers
guard against
a
must
automatic disbarment
whole.
require
states
felony, but
confidence
public
a
diminishes
duct that
convicted
lawyer
a rule.
adopted
system.” Discipline
such
legal
not
Dakota has
¶83, 48,
“If
at 879.
N.W.2d
correctly
majority opinion
The
repeatedly vio-
attorney knowingly and
an
pur-
and the
of review
states the standard
law,
prac-
license to
places
he
his
lates the
The
proceedings.
disciplinary
poses
in a
and his actions result
jeopardy
tice in
disciplinary proceeding
lawyer’s
of a
goals
profession
for the
from
respect
loss
1)
public
of the
protection
should be:
Johnson,
unethical,
public.”
fraudulent,
in-
or
further
from
(S.D.1992),
on
vacated
attorney;
involving activities
competent
(S.D.1993).
Protection of of office. Because of attorney’s oath finding correct The Court is society, even minor viola- position a risk of present does not that Janklow by lawyer a tend lessen tions of law fraudulent, unethi- from harm to the legal profession. confidence in the cal, activities. incompetent or exemplifies respect of the law Obedience from those attor- clearly different case is lawyers especially, To re- for the law. fraud, involving dis- cases ney discipline than the law must be more spect for deceit, misrepresentation honesty, or platitude. involving harm to clients. from those cases unrelated to Jeffries, convictions were at criminal His public may Parker, law. While (quoting driving, 780). about Janklow’s be concerned pub- that the no reason believe there is Dakota There are no South his conduct as an from protection lic needs appropriate disci- dealing with the cases long has had attorney. man- attorney convicted of pline for an attorney. The as an career distinguished However, a similar offense. slaughter or full of exam- this court was record before in footnote out the Court pointed helped good and the ples people he has three, in other are similar cases there is no attorney. There he has done as of those cases involved DWI states. Most that Janklow is a suggest evidence cir- aggravating A DWI is an convictions. allowed to public if he is threat present in this which was not cumstance law. return to the *9 drinking. not had been case as Janklow and, image integrity Preservation cases, a only imposed of In those Colorado legal profession (there DWI); of was a Califor- censure public (no suspension nia a six-month imposed result disagree I with the traffic viola- twenty previous DWI but by majority reached because tions); eighteen an month imposed Ohio preserve need to goal, i.e. the (a DWI); Washington imposed suspension attorneys, the bar image integrity of
37
(a
twenty-four
a
suspension
month
legal
DWI
and the
profession than similar con-
deaths);
imposed
two
Delaware
a
lawyer
duct
of lesser renown. The
(a DWI);
three-year suspension
Pennsyl- Supreme Court has considered an attor-
(two
imposed four-year suspension
vania
ney’s public position
indicating
as
the need
run);
deaths
aas
result of a hit and
New for more severe sanctions. See Discipline
(a
imposed
Johnson,
Mexico
an
indefinite
682,
488 N.W.2d
vacated on
of
DWI); and Oklahoma disbarred the attor-
rehearing,
215;
500 N.W.2d
Discipline of
(a DWI).
ney
A review of
Jeffries,
South Dakota
(S.D.1992),
[¶
Janklow’s case is
29.]
different be-
delay
A
the return of Jank-
cause he is the
attorney
most well-known
low’s
license to
law until he has
in the State of South Dakota as a result
completed
of
probation
his
may result in the
Attorney
his service as
General from 1975 loss of his license for a period of time
1979,
as Governor from 1979 to
longer
1987
than similarly
lawyers.
situated
As
2003,
and from 1995 to
and as a
pointed
above,
member of
very
out
few
Dakota
the United States House of Representa-
cases have involved suspensions for
long
tives from 2004 until his resignation follow-
years. However,
as three
none of the
ing
leading
the events
disciplinary
lawyers involved in those disciplinary cases
action.
prominence,
Because of his
prominent
his were as
as Janklow. Because
arrest and convictions have caused
of
public positions,
more
Janklow’s violations
harm to the
image and view of the
of the law did more to
respect
lessen
integrity of attorneys,
association,
the bar
law and
confidence
(nine
Discipline
supra
(indefinite
See
cipline
month
Hopewell, supra
suspen
of
of
Arendt,
suspension);
(one
sion);
Discipline
supra
Martin,
Discipline
Matter
of
of
of
twenty day suspension);
(S.D.1993) (two
hundred
Recip
In re
year suspension);
N.W.2d 101
Rokahr,
Discipline
Tidball,
rocal
2004 SD
Discipline
681 Matter
503 N.W.2d
of
of
of
admonishment);
(public
(S.D.1993) (three
N.W.2d 100
year
Disci
suspension); Mat
pline
(disbarment);
Laprath, supra
Johnson,
Discipline
Disci
ter
profession. than were dealt with. harshly others
more law should license completed until he has
not be returned
period probation.
Daniel Claimant
v. Insur- PORK and Wausau
DAKOTA Employer, Companies, In-
ance Appellees
surer Manufacturing and AIG
Riverside Services, Employer,
Claims Appellees.
Insurer
No. 23528. Court of South Dakota.
Supreme Aug. on Briefs 2005.
Considered
Decided Jan.