author: GILBERTSON, Chief Justice.

text:
    2007 SD 71
    In the Matter of the Petition for REINSTATEMENT OF Richard J. HOPEWELL, as an Attorney at Law.
    No. 23366.
    Supreme Court of South Dakota.
    Argued Nov. 30, 2006.
    Decided July 18, 2007.

      Ron J. Yolesky of Volesky Law Firm, Huron, South Dakota, Attorney for applicant.
    Robert B. Frieberg, Beresford, South Dakota, Attorney for State Bar Disciplinary Board.
   GILBERTSON, Chief Justice.

[¶ 1.] This Court suspended Richard James Hopewell (Hopewell) from the practice of law on November 3, 1993. Matter of Discipline of Hopewell, 507 N.W.2d 911 (S.D.1993) (Hopewell I). We denied his petition for reinstatement of his license to practice law on March 8, 1995. Matter of Hopewell, 529 N.W.2d 578 (S.D.1995) (Hopewell II). On May 27, 1997, we granted Hopewell’s motion to dismiss his petition for reinstatement to practice law. Petition of Hopewell, # 19720 (Hopewell III). On January 13, 1999, we granted Hopewell conditional reinstatement to the practice of law for a five-year probationary period. In re Reinstatement of Hopewell, 1999 SD 6, 587 N.W.2d 733 (Hopewell IV).

[¶ 2.] On March 30, 2004, Hopewell petitioned the Disciplinary Board of the State Bar of South Dakota (Board) for unconditional reinstatement to practice law. Following a hearing, the Board, on August 24, 2004, entered findings of fact, determined that Hopewell “substantially complied” with the terms of his probation, and recommended his unconditional reinstatement.

[¶ 3.] During its review of the Board’s proceedings this Court received and reviewed a transcript of Naatjes v. Naatjes, # 02-1339 (Minnehaha County), in which Hopewell appeared as the attorney for the plaintiff. We remanded this matter to the Board “to consider the Naatjes record along with all other facts which are relevant to a full and complete adjudication of the petition of Hopewell for an unconditional reinstatement.”

[¶ 4.] The Board held a hearing and, on August 23, 2006, filed supplemental findings of fact, determined that Hopewell’s professional conduct in Naatjes was “intended only to serve his client’s best interest,” and again recommended his full reinstatement.

[¶ 5.] During oral argument before this Court on November 30, 2006, questions were raised about Hopewell’s malpractice coverage during the probationary period as well as his ability to procure coverage should he be fully reinstated. The Board, in response to this Court’s inquiry, issued a report and supplemental recommendation on February 5, 2007. It amended its 2004 and 2006 recommendations by adding:

That as a condition to full reinstatement, [Hopewell] be required to maintain professional liability insurance with limits of not less than $100,000/$300,000 in a company authorized to do business in South Dakota.

Hopewell agreed to this condition.

[¶ 6.] For all the reasons set forth herein, we deny full reinstatement.

FACTS

Hopewell I

[¶ 7.] Hopewell was admitted to practice law in South Dakota on August 16, 1962. In 1990 when he was a sole practitioner in Sioux Falls, South Dakota, he entered a judicial election against an incumbent circuit court judge.

[¶ 8.] A disciplinary proceeding was initiated as a result of Hopewell’s unprofessional conduct during the judicial campaign as well as his pre-meditated and unprofessional attacks against his opponent and the judicial system. In the course of the disciplinary proceeding, Hopewell’s statements were more extreme and irresponsible than his original public statements. At oral argument before this Court, this Court was justifiably concerned over the state of Hopewell’s health based upon his prior conduct, the record in the case, and his appearance before the Court.

[¶ 9.] This Court rejected the Board’s and Referee’s recommendation of a public censure. Hopewell was suspended from the practice of law in all of the courts of the State of South Dakota for an indefinite period of time beginning December 3, 1993. The judgment of suspension ordered Hopewell to comply with eight conditions during the period of suspension and as a condition precedent to any petition for reinstatement. These conditions included passing the Multistate Professional Responsibility Examination, obtaining a favorable psychiatric examination concerning his mental health and fitness to practice law, and paying State Bar and referee expenses.

Hopewell II

[¶ 10.] On August 6,1994, Hopewell petitioned for reinstatement of his license to practice law. The Board recommended that reinstatement be denied. We denied reinstatement for three reasons.

[¶ 11.] First, Hopewell demonstrated a pattern of passive refusal to comply with this Court’s unambiguous, explicit order to pay costs as a condition precedent to his petition for reinstatement. Second, there was considerable doubt as to his legal competence due to his rambling, incoherent responses at the Board’s hearing and his obsession with and exaggeration of the complexity of his pro se legal work. Third, he continued to be unable to admit culpability for the failures and consequences of his misconduct and provided no reassurance or support for the integrity of the Bar, the administration of justice and the public interest.

Pro se Litigation

[¶ 12.] Shortly before the 1990 judicial election, the Sioux Falls Argus Leader published an article that included a statement by Hopewell admitting that he was found nude at a drug store and alleging the incident occurred because he was surreptitiously drugged by a secret agent of a political adversary. Hopewell I, 507 N.W.2d at 913. Three days later KELO-TV ran two news stories on the incident and subsequent events. As a result, Hopewell, while suspended from the practice of law, acted pro se and brought a libel action against KELO and its reporters. Hopewell v. Midcontinent Broadcasting, 538 N.W.2d 780 (S.D.1995).

[¶ 13.] The circuit court granted summary judgment. Hopewell appealed. This Court affirmed, holding that a qualified privilege protects confidential news sources from disclosure under certain circumstances, the open courts provision of the state constitution does not guarantee successful litigation, and Hopewell received due process.

[¶ 14.] In its opinion, the Court noted that:

The record in this case is voluminous. There are 738 pages in the two separate volumes of the file plus another volume of miscellaneous filings and briefs. There are four amended indexes. There are seven separate transcripts. Hearings were held before Judge Srstka on December 18, 1991 (on a motion to dismiss for failure to prosecute by Hopewell), and before Judge Konenkamp on July 23, August 17, and October 15, 1993 and January 4,1994.
Judge Konenkamp was patient and polite in difficult circumstances and bent over backwards to ensure that Hopewell was afforded due process. Hopewell was given every opportunity to be heard. Summary judgment was only granted when Hopewell made no showing of actual malice to generate a genuine issue of material fact to support a trial on his libel claims. Janklow v. Viking Press, 459 N.W.2d [415] at 419 [S.D.1990]; Wilson v. Great Northern Railway Company, 83 S.D. 207, 157 N.W.2d 19 (1968).

Midcontinent, 538 N.W.2d at 783 (emphasis in original). On appeal Hopewell raised thirty issues in his docketing statement and twelve in his pro se brief. The appeal, however, boiled down to two issues.

[¶ 15.] The United States Supreme Court denied Hopewell’s petition for writ of certiorari to the Supreme Court of South Dakota. Hopewell v. Midcontinent Broadcasting Corporation, 519 U.S. 817, 117 S.Ct. 69, 136 L.Ed.2d 30 (1996).

[¶ 16.] Hopewell also brought a 42 USC § 1983 action against media defendants and City of Sioux Falls employees. The Eighth Circuit affirmed the district court’s grant of summary judgment to the defendants. Hopewell v. Dunker, 56 F.3d 68 (1995).

Hopewell III

[¶ 17.] On June 6, 1996, Hopewell petitioned the Board for reinstatement. The Board held a lengthy hearing on June 10, 1996. A month later Hopewell and the Board agreed to extend the time for the Board to file findings and recommendations so that Hopewell could file a motion with this Court to recuse Board members and strike Board questions and Hopewell’s answers. Hopewell and his attorney stipulated to his attorney’s withdrawal from the case. This Court approved the stipulation. It also denied Hopewell’s pro se motion for an ex parte hearing before this Court on his petition for reinstatement.

[¶ 18.] The Board entered extensive findings on December 9, 1996. It found that during the course of the reinstatement proceeding Hopewell began “an unrelenting and unmitigated and groundless attack upon the character, impartiality, and integrity” of one Board member. It found that this conduct was similar to his verbal attacks on judges in Hopewell I.

[¶ 19.] The Board found that Hopewell’s current mental condition “appears to be associated with the episode he suffered in 1978, a bipolar mood disorder, for which he was prescribed medication,” but which he made an independent decision to discontinue.

[¶ 20.] The Board found that Hopewell’s answers to Board questions were “rambling, verbose, disjointed and unresponsive ... often in obtuse and incoherent statements.” Although Hopewell did not attend CLE’s, read appellate court opinions, or update his code, he challenged Board members to question him on legal issues and became angry and defensive when they did. He continued to minimize the conduct that resulted in his suspension. He declared that he would not carry legal malpractice coverage because of his substantial net worth and yet he was unable to cover the expenses of prior proceedings.

[¶ 21.] The Board concluded:

A. Hopewell has failed to establish by clear and convincing evidence the competency and learning in law required for admission to practice law in this state or that his resumption ■ of the practice of law within the state will not be detrimental to the integrity and standing of the bar or the administration of justice or subversive of the public interest.
B. Hopewell continues to suffer from a mental condition which causes him to attack those whom he sees as adversarial to his position and to do so without confirmation of the allegations he makes, and there is justifiable concern over Hopewell’s state of mental health both for protection of the public and Hopewell as an individual.
C. If Hopewell is not suffering from a mental impairment, then he has willfully, maliciously, and intentionally attacked the integrity of a Member of the Disciplinary Board based solely upon a “mental note” he made in 1993 with no effort to verify his allegations, which allegations have been shown to be false.
D. If Hopewell is not suffering from a mental impairment, his actions and conduct during these proceedings would constitute serious violations of the Code of Professional Responsibility which would be the basis for disciplinary action and demonstrates a lack of the qualities of honesty, candor, trust-worthiness, diligence, reliability, and respect for the rights of others and for the judicial process required of an attorney to practice in this state.
E. Hopewell has not maintained a current working knowledge of the law and an objective testing of his knowledge of substantive and procedural law would be required before his reinstatement to the practice of law.

[¶ 22.] It recommended:

The Disciplinary Board recommends that the Petition for Reinstatement of Richard Hopewell be denied and further recommends that the Supreme Court specifically require that any further application by Hopewell be conditioned upon his submission to a complete psychological evaluation by psychiatric and physchological [sic] experts as the Court deems necessary, that any readmission be subject to the passing of the substantive and ethics bar exam required for admission of lawyers to the Bar of this State and providing proof of insurance coverage for legal malpractice.

[¶ 23.] Hopewell filed a motion with this Court to stay further proceedings so he could “file a petition for writ of certiora-ri with the United States Supreme Court for its review of this Court’s November 8, 1996, Order Denying [Hopewell]’s October 17, 1996, Motion for Court Order Striking Hostile Prosecutorial Examination of [Hopewell] and Adverse Examination of [Hopewell]” by the Board. This Court denied the motion for stay and set the matter for oral argument on April 1, 1997.

[¶ 24.] Hopewell sought and received a continuance of his hearing before this Court. His motions to purge the record of the Board’s findings, strike certain evidence, and reinstate him to practice law were denied. On May 27, 1997, Hopewell filed a motion asking this Court to allow him to withdraw his petition for reinstatement and dismiss the scheduled June 4, 1997 hearing. The Court granted the motion.

Hopewell IV

[¶ 25.] Only six months after we granted Hopewell’s motion to withdraw his petition for reinstatement, Hopewell, on November 16, 1997, filed a third petition for reinstatement. He appeared before the Board at its hearing on June 15, 1998.

[¶ 26.] At the hearing Dr. Anthony Vaca, a board certified adult psychiatrist who reviewed Hopewell’s history and examined Hopewell, testified that Hopewell did not presently suffer from any mental disorder or illness or clinical syndrome and he did not need therapy or psychotropic medication. While Hopewell exhibited “obsessional conversational style” and “exaggerated defense of personal self’ which led to his past conduct, Dr. Vaca found that Hopewell now recognized and controlled those traits. He recommended that a mentoring program would provide assurance of this control.

[¶ 27.] The Board found that Hopewell’s appearance, conduct, demeanor and testimony before it demonstrated his genuine recognition of the impropriety of his past conduct and his capacity and ability to control the behavioral traits which caused his past problems. It found that he had passed the MPRE and recommended that he be required to attend CLE seminars to maintain competency in substantive and procedural law.

[¶ 28.] The Board concluded:

A. Hopewell has established his competency and learning in law required for readmission to practice law in this state and that his resumption of the practice of law within the state will not be detrimental to the integrity and standing of the bar or the administration of justice or subversive of the public interest under the conditions set in recommendations.
B. Hopewell has established compliance with the conditions required by the Supreme Court in its opinion and order of November 3,1993.
C. Although Hopewell exhibits behavioral characteristics and traits which must and can be controlled, he does not suffer from a mental condition which requires therapy or medication and the imposition of recommended conditions upon his readmission to the practice of law will prevent any reoccurrence of the past conduct.

The Board recommended that conditional reinstatement be granted.

[¶ 29.] Hopewell appeared personally before this Court. We considered “all the materials before us in this matter,” Hopewell IV, 1999 SD 6 at ¶ 6, 587 N.W.2d at 735, including the favorable examination of Hopewell by a licensed, approved psychiatrist, his competency and learning in the law, and the Board’s recommendation for conditional reinstatement. We found that Hopewell had proven by clear and convincing evidence that he complied with the requirements for reinstatement set forth in Hopewell I. On January 13, 1999, we granted limited reinstatement with the following conditions:

1. Hopewell shall be on probation under the provisions of SDCL 16 — 19— 35(3) for a period of five years.
2. Hopewell shall be under the supervision of Sioux Falls attorney, Richard L. Johnson, for a period of five years. Hopewell will not file a complaint, petition, pleading, brief, motion, or affidavit or commence any proceeding in any court or with any administrative agency without the approval of his supervising attorney.
3. Hopewell shall be required, during the five-year probationary period, to attend continuing legal education programs, obtaining a minimum of 15 OLE hours annually, and certify his attendance at these programs to the Board.
4. Hopewell shall be required, during the five-year probationary period, to file quarterly reports with the Board providing information on the cases he is handling, to include the status of each case, progress in each case, the likely completion date for filing of pleadings, discovery schedules, hearing or trial dates, appeals, and other appropriate information in each case. These reports shall be verified and signed by Hopewell and his supervising attorney.
5. Hopewell shall abide by all directions given by the supervising attorney as it relates to the management of his office and client matters.
6. Hopewell shall be required, for such time as he is actively practicing law in this state, to provide proof of malpractice insurance annually by submitting certifícate of coverage from his insurance carrier to the Board.
7.Hopewell and Richard L. Johnson are jointly and severally responsible to advise the Court and Disciplinary Board if at any time during the five-year period of supervision, Richard L. Johnson is unable or unwilling to continue as supervising attorney to Hopewell.

Hopewell IV, 1999 SD 6 at ¶ 6, 587 N.W.2d at 735. We cautioned that:

Upon completion of this five-year period, unconditional reinstatement to practice law in this state shall not be automatic, but will be considered by this Court upon petition by Hopewell following a hearing before the Disciplinary Board to determine compliance with the above named conditions.

Id.

Hopewell V

[¶ 30.] The order conditionally reinstating Hopewell was filed on January 13, 1999. On March 30, 2004, Hopewell filed a petition for unconditional reinstatement to practice with the Board. Hopewell, his supervising attorney Richard L. Johnson, and his counsel Ron J. Volesky, appeared at the Board hearing on June 16, 2004.

[¶ 31.] The testimony at the hearing revealed that for the first four years of his conditional reinstatement Hopewell was unable to obtain malpractice insurance, failed to attend 15 hours of CLE annually and had a practice limited to representing himself. In February 2003 he was able to obtain malpractice insurance but only limited to matters handled through the Vole-sky Law Firm. On June 12 and 13, 2003, he represented Dawn Naatjes in a custody case before Judge Kathleen Caldwell. According to Johnson, Hopewell was zealously representing his client; however, during the course of the trial, Judge Caldwell contacted Johnson and expressed her concern that Hopewell was objecting too much. Johnson stepped in and concluded the case. On June 18, 2003, Hopewell attended his first CLE.

[¶ 32.] Johnson testified that Hopewell substantially complied with this Court’s order of conditional admission. He and Volesky recommended Hopewell’s full reinstatement.

[¶ 33.] The Board found:

1. [Hopewell] is a 1962 graduate of the University of South Dakota Law School. He was suspended from the practice of law for an indefinite period on November 3, 1993, and was conditionally reinstated to practice on January 13, 1999. The Order of Conditional Reinstatement was modified on January 26, 2000.
2. The Order of Conditional Reinstatement required that [Hopewell] comply with certain conditions, and [Hopewell] was placed on probation under the provisions of SDCL 16-19-35(3) for a period of five years.
3. [Hopewell] has been under the supervision of his supervising attorney, Richard L. Johnson, at all times since the entry of the Order of Conditional Reinstatement.
4. [Hopewell] is required to secure the approval of his supervising attorney prior to filing a complaint, petition, pleading, brief, motion, or affidavit, or commencing any proceeding in any court or with any administrative agency, with which requirement [Hopewell] has substantially complied.
5. [Hopewell] has attended seven Continuing Legal Education programs since June 2003, constituting at least 15 CLE hours in 2003 and in 2004.
6. [Hopewell] did not attend Continuing Legal Education programs in the earlier years following the entry of the Order of Conditional Reinstatement for the reason that the [Hopewell] was not engaged in the practice of law and then held a present intention not to return to active practice.
7. [Hopewell] has filed quarterly reports with the Board during each calendar quarter since the entry of the Order of Conditional Reinstatement, including the first quarter of 2004. The reports have been verified and signed by [Hopewell] and his supervising attorney.
8. [Hopewell] has followed and abided by directions given by the supervising attorney relating to the management of [Hopewell’s] office and handling of client matters.
9. [Hopewell] is now associated with his counsel, Ron J. Volesky, as “of counsel”.
10. [Hopewell] is currently a named insured in the professional liability insurance policy issued to Volesky Law Office, which coverage is restricted to the extent that [Hopewell] is a named insured “... only in rendering or failing to render legal services on behalf of the named insured [Volesky Law Office].”
11. [Hopewell’s] supervising attorney is of the opinion that [Hopewell] should be fully reinstated.

Although Johnson made the Board aware of Hopewell’s conduct in the Naatjes case and Judge Caldwell’s concerns, the Board made no findings regarding the Naatjes case.

[¶ 34.] The Board determined that Hopewell substantially complied with the terms of his probationary period and recommended his full reinstatement to the practice of law.

[¶ 35.] After the Board filed its findings with this Court, Judge Caldwell, pursuant to SDCL 16-19-40, informed this Court of the Naatjes case. This Court received and reviewed a transcript of Naatjes v. Naatjes. On October 29, 2004, we remanded the matter to the Board to consider the Naatjes record and all other facts “relevant to a full and complete adjudication” of Hopewell’s petition for unconditional reinstatement. See SDCL 16 — 19— 41.

[¶ 36.] Three days before the Disciplinary Board’s June 19, 2006, hearing on the remand, Hopewell’s attorney wrote to Judge Caldwell and asked her to withdraw her objection to the Disciplinary Board’s recommendation that Hopewell receive full reinstatement to the practice of law. One of the reasons for the request was:

For yet another reason for you to consider in withdrawing your objection to the Disciplinary Board’s Recommendation that Hopewell “be fully reinstated to the practice of law,” may I call your attention to the fact that, due to disabling back surgery in May of 2005 and a respiratory problem with which he is now afflicted, Hopewell has been closing down his practice of law in that he has not been taking on any new cases for more than a year now and finds it difficult, if not impossible, to attend CLE seminars as required by the Supreme Court’s Order of Conditional Reinstatement.

[¶ 37.] Following the Board hearing, it entered findings of fact which included:

7. The Naatjes proceedings involved questions of witness credibility, allegations of drug abuse, claims of perjury and recanted testimony, and dispute over admissibility of certain medical records, among other things. The proceedings were somewhat emotional and highly contested.
8. [Hopewell] prepared thoroughly for the Naatjes hearing.
9. [Hopewell] was zealous in his advocacy, persistent in making objections, sometimes asked disjointed or convoluted questions, confused witnesses by questions, interrupted the flow of proceedings with objections, and aggravated Judge Caldwell because of his objections and sometimes audible response to witnesses in the course of their testimony. [Hopewell] was patient, apologetic, and courteous.
10. [Hopewell] did not know how to get a certain affidavit into the record, and Mr. Kading, his adversary, assisted [Hopewell] in laying proper foundation for its admission.
11. Judge Caldwell felt nervous toward [Hopewell], and felt as if she had no control in the hearing. Following the second day of hearing in the Naatjes matter, Judge Caldwell contacted [Hopewell]’s supervising attorney, Richard L. Johnson, and asked why Mr. Johnson was not in the courtroom if he was supposed to be supervising [Hopewell]. Judge Caldwell told the Board that she was “wild” and “extremely upset” when she called. Judge Caldwell told Mr. Johnson that she did not want [Hopewell] to continue in the Naatjes matter. Mr. Johnson then represented Ms. Mancil-Naatjes in the third and final day of hearing conducted some weeks later.
12. After Mr. Johnson completed the case, Judge Caldwell ruled against Ms. Mancil-Naatjes. Her decision was based upon the facts presented and the factors set forth in the Fuerstenberg [v. Fuerstenberg] case (1999 SD 35[, 591 N.W.2d 798 (1999) ]), and was not influenced by [Hopewell’s] conduct.
13. [Hopewell’s] client was satisfied with [Hopewell’s] representation, notwithstanding the unfavorable result.
14. Naatjes was the first contested hearing in which [Hopewell] had participated following his conditional reinstatement in 1999.
15. [Hopewell] is competent, is sometimes unorthodox or eccentric in his style, and has a long held professional interest in representing minorities, women, and the poor, often pro bono or at reduced rates of charge.
16. [Hopewell] is passionate in representing his clients’ interests.
17. [Hopewell] has a limited practice, with only three active cases reported as pending at the time of his March 31, 2006, quarterly report.
18. [Hopewell] suffered from a bipolar disorder in the 1970s, was last treated for the disorder in 1982, and has since been free from any mental illness.
19. [Hopewell] now suffers from osteoporosis and incipient emphysema, and is able to maintain office hours only 14 or 15 hours per week, at his downtown Sioux Falls office.
20. [Hopewell] is genuinely contrite for the conduct that led to his suspension from the practice of law nearly 20 years ago.
21. Naatjes was the first and only case which Judge Caldwell heard as a circuit court judge in which [Hopewell] was involved, and was also the only case which Scott Kading had in which [Hopewell] was involved.
22. Scott Kading is of the opinion that [Hopewell] should be supervised in the courtroom.
23. Judge Caldwell is of the opinion that [Hopewell] should not be allowed to practice without conditions. Judge Caldwell is of the further opinion that it would be detrimental to the profession to permit [Hopewell] to practice without conditions.
24. Bradley Bonynge, an experienced Sioux Falls attorney, acquainted with [Hopewell] for about 40 years, is of the opinion that [Hopewell] provided competent representation to [Hopewell’s] client in the Naatjes matter, based on Bo-nynge’s review of the transcript. Bonynge said he would refer clients to [Hopewell].
25. Richard L. Johnson, [Hopewell’s] supervising attorney, also is of the opinion that [Hopewell] provided competent representation in the Naatjes matter. Mr. Johnson continues to believe unconditional reinstatement is appropriate, and that [Hopewell’s] goal is to do “what’s right for his clients and the public.”
26. Judge Caldwell and Messrs. Kad-ing, Bonynge and Johnson were all aware of [Hopewell’s] history of prior misconduct in forming their opinions.

[¶ 38.] The Board determined that Hopewell’s “professional conduct in the Naatjes matter was in the bounds of zealous and passionate advocacy, and, although upsetting to the trial court, was intended only to serve his client’s best interest.” It recommended Hopewell’s full reinstatement.

[¶ 39.] Following oral argument before this Court, the Board investigated Hopewell’s malpractice insurance coverage during the probationary period and his current ability to obtain coverage. It amended its recommendation for full admission by adding a condition that Hopewell maintain professional liability insurance with limits of not less than $100,000/ $300,000 in a company authorized to do business in South Dakota.

DECISION

[¶ 40.] A license to practice law in South Dakota “is a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the court.” SDCL 16-19-31. Every recipient of a license to practice law has the duty to “conduct himself [or herself] at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.” Id

[¶ 41.] In considering whether to fully reinstate Hopewell, it is our duty “to put aside, so far as possible, that natural feeling of sympathy for one who has manifestly suffered, and to determine in so far as we can from the entire record, without fear, favor, or partiality, the question, and the sole question, presented for our judicial determination, namely, the present fitness of the petitioner to be admitted to practice law[.]” In re Egan, 52 S.D. 394, 403, 218 N.W. 1, 5 (1928). (emphasis added). The Board and this Court are “free to examine the entire record of the attorney’s conduct[.]” In re Reutter, 500 N.W.2d 900, 902 (S.D.1993)(quoting, with approval, In re Reinstatement of Reutter, 474 N.W.2d 343, 345-46 (Minn.1991)). This includes consideration of “the prior record of the attorney.” In re Discipline of Eicher, 2003 SD 40, ¶47, 661 N.W.2d 354, 369. It is also our duty in reinstatement cases “to seek, not merely through hearings in court, but through every legitimate channel open to it, such information as it may obtain touching upon the then moral fitness of the petitioner to be admitted to practice his chosen profession.” In re Petition of Morrison, 45 S.D. 123, 126, 186 N.W. 556, 557 (1922).

[¶ 42.] In fulfilling these duties, we must determine whether the petitioner can “ ‘be held out to the public as a person morally fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and officer of the court[.]’ ” In re Reutter, 500 N.W.2d 900, 901 (S.D.1993) (quoting In re Reinstatement of Trygstad, 435 N.W.2d 723, 724 (S.D.1989)).

Hopewell IV, 1999 SD 6 at ¶ 5, 587 N.W.2d at 735.

[¶ 43.] “The burden of proof in a petition for reinstatement is on the petitioner.” Hopewell II, 529 N.W.2d at 581. Compliance with the conditions of reinstatement does not guarantee automatic reinstatement:

Not only must a petitioner demonstrate compliance with the conditions of reinstatement, but “the petitioner shall have the burden of demonstrating by clear and convincing evidence that he has the moral qualifications, competency and learning in law required for admission to practice law in this state and that his resumption of the practice of law within the state will not be detrimental to the integrity and standing of the bar or the administration of justice, or subversive of the public interest.” SDCL 16 — 19— 84. The moral qualifications required for admission include, but are not limited to, the qualities of honesty, candor, trustworthiness, diligence, reliability, observance of fiduciary and financial responsibility, and respect for the rights of others and for the judicial process. SDCL 16-16-2.1.

Hopewell II, 529 N.W.2d at 581-82.

[¶ 44.] Hopewell has been conditionally admitted since January 13, 1999. The Board has recommended his full reinstatement with the caveat that he maintain professional liability insurance. While we carefully consider the Board’s recommendation, we are not bound to accept it. Hopewell IV, 1999 SD at ¶ 5, 587 N.W.2d at 735.

A.

[¶ 45.] On January 13, 1999, when we granted Hopewell conditional reinstatement we required him to attend continuing legal education programs (CLE’s) for a minimum of fifteen hours annually during the five-year probationary period.

[¶ 46.] When Hopewell petitioned for full reinstatement five years after he was conditionally reinstated, he had only attended CLE’s for the one year immediately preceding his petition. For the first four years of his probationary period Hopewell failed to attend any CLE’s. Despite this, the Board determined that Hopewell substantially complied with this Court’s order, finding that Hopewell did not attend CLE’s because he was not engaged in the practice of law and did not intend to return to the active practice of law.

[¶ 47.] This Court’s order regarding CLE attendance was unambiguous, clear, and explicit. CLE attendance was mandatory whether or not Hopewell was actually practicing law. This Court has long been concerned with Hopewell’s “pattern of passive refusal to comply” with this Court’s orders, Hopewell II, 529 N.W.2d at 588, and his compliance only when he is seeking a benefit. His refusal to attend CLE’s continues his pattern of seeking to comply with this Court’s orders on his own terms rather than the Court’s terms. This is of immediate concern because he is seeking unconditional reinstatement and yet represented to Judge Caldwell that his ill health makes “it difficult, if not impossible, to attend CLE seminars as requiredf.]”

B.

[¶ 48.] Throughout the years on the numerous occasions that Hopewell has been before the Board and this Court, both entities have been justifiably concerned with his competence. While we were satisfied that he had established his competency when we granted conditional reinstatement in 1999, we sought to assure his continued competency and learning in law by imposing the CLE requirement. Hopewell only began to comply with the requirement in June 2003 after he represented Dawn Naatjes in his first and only contested hearing prior to seeking full reinstatement.

[¶ 49.] Perhaps, in part, because of his failure to attend CLE’s, Hopewell’s advocacy in Naatjes was characterized by persistent and rambling objections, constant interruptions, disjointed and convoluted questioning. He confused witnesses and interrupted the proceedings. He repeatedly accused his opposing counsel of manufacturing evidence and, with no apparent basis to do so, accused him of attempting to suborn perjury. He did not know how to get exhibits into the record and was only able to do so with the guidance of his adversary. While the case was emotional, it was not complex. The transcript of the case, however, is voluminous.

[¶ 50.] Hopewell’s advocacy in the Naatjes case so disturbed Judge Caldwell, who presided over the case, that she in effect removed Hopewell during the course of the proceedings and called Johnson, Hopewell’s supervising attorney, to complete the case. Judge Caldwell told the Board that Hopewell should not be allowed to practice law without conditions:

I don’t think that he is competent to practice law. I don’t think that he should be allowed to practice law without conditions. Even when he was practicing with Dick Johnson supervising him, which was the case in this case, I don’t think that he does his clients any good.
I don’t think he understands the Rules of Evidence. He doesn’t listen to the Court. His objections are constant. It was like we could never move anywhere with the trial because every time somebody would say something, he would be jumping up with an objection and it was-it was just frustrating and I don’t think that he should be representing people.
Well, I don’t think it would be in the public interest to have Mr. Hopewell representing people in court because I don’t think that he can do a good job for them. I think that he is-he would end up prejudicing their cases in front of judges and doesn’t present the case properly and I think that his name and his case is public enough that people in the state, at least in this area, know of Mr. Hopewell and know of the problems he has had in the past and all the things that went on in the Kean campaign and the other cases that he has been involved in.
I think that if he gets his license back unrestrictedly that it would be a detriment to the legal profession. I think it would make the legal profession look like we absolutely do not police our own people.
I also think of the fact that if you think would you want your mother, your dad, your sister, your daughter, your brother to be represented by him? I don’t think any — I don’t think people would. I don’t think that he should be representing people.

[¶ 51.] In recommending Hopewell’s unconditional reinstatement, the Board failed to give sufficient evidentiary weight to Judge Caldwell’s concerns about Hopewell’s courtroom demeanor and knowledge of the law as well as her recommendation. Its conclusion conflicts with the only judge who dealt with Hopewell in a contested hearing while he was under supervised conditional reinstatement.

[¶ 52.] We recently examined the importance of a judicial perspective in attorney disciplinary cases. In re Discipline of Laprath, 2003 SD 114, 670 N.W.2d 41. We noted that judges routinely make determinations as to attorney competence. Trial judges have the unique “ ‘opportunity to observe and evaluate the character, competence, industry and fidelity of lawyers who regularly appear before him [or her] day in and day out.’ ” Id., 2003 SD 114 at ¶ 73, 670 N.W.2d at 63 (quoting State ex rel Lawrence v. Henderson, 1 Tenn.Crim.App. 199, 433 S.W.2d 96 (1968)). In addition, each trial judge has the disciplinary responsibility to take appropriate action if there is a substantial likelihood of a violation of the code of professional responsibility or to inform the appropriate authority of attorney conduct that raises a question as to a lawyer’s honesty, trustworthiness or fitness. Canon 3(D)(2), South Dakota Code of Judicial Conduct, SDCL 16-2 Appx; Laprath, 2003 SD 114 at ¶ 73, 670 N.W.2d at 63; Eicher, 2003 SD 40 at ¶ 49, 661 N.W.2d at 369-70.

[¶ 53.] Here Judge Caldwell performed her duties by contacting Hopewell’s supervising attorney regarding his courtroom behavior, informing this Court of the Naatjes case, and testifying before the Board. We give substantial weight to Judge Caldwell and opposing counsel Scott Kading’s opinion that Hopewell continues to need supervision since they were the only judge and lawyer to observe Hopewell’s performance first-hand in a contested case.

C.

[¶ 54.] Hopewell was conditionally reinstated on January 13, 1999. For the next four years his practice was limited to representing himself. There were, however, a couple of instances where he started to represent clients, but his supervising attorney advised him to cease because of his lack of malpractice insurance. He was only able to obtain malpractice insurance in February 2003 and then limited only to matters handled through the Volesky Law Firm.

[¶ 55.] One year later, on March 30, 2004, Hopewell petitioned the Board for unconditional reinstatement. He had practiced law on an extremely limited basis for one year. He only had malpractice insurance for one year and had attended CLE’s during the last year of his five year probationary period. His performance on his sole contested case so concerned the trial court, that the trial court in essence removed him and had his supervising attorney complete the case. Despite these circumstances the Board found that Hopewell substantially complied with the conditions of his probation and recommended his unconditional reinstatement on August 24, 2004. The Board reaffirmed its recommendation on August 22, 2006, after we remanded the matter for consideration of the Naatjes case, which is a portion of “all other facts which are relevant to a full and complete adjudication of the petition of Hopewell for an unconditional reinstatement.” At that time, Hopewell had three active cases, and ill health allowed him to practice for fourteen to fifteen hours a week. He told the Board, “I really just want to fade in the sunset with my respect and dignity intact.”

[¶ 56.] For over fifteen years the Board and this Court have been called upon numerous times to assess Hopewell’s fitness to practice law. During this period of time the composition of the Board has regularly changed while the majority of the members of this constituted Court have, for the most part, been regularly involved with this series of lengthy proceedings. The Board and this Court, in fulfilling our duties, have had the benefit of the record in this entire case, the rules guiding reinstatement proceedings, this Court’s case law in disciplinary proceedings, and the extensive case law specific to Hopewell. All of these make it clear that compliance with the conditions this Court imposed for Hopewell’s five year probationary period is merely one factor to be considered in determining whether Hopewell is fit to be entrusted with professional and judicial matters.

[¶ 57.] Although we have applied it in a different setting, the following rationale is appropriate guidance to us in this matter:

We “will not compare counsel’s performance to that of some idealized ‘superlaw-yer’ and will respect the integrity of counsel’s decision in choosing a particular strategy, these considerations must be balanced with the need to insure that counsel’s performance was within the realm of competence required of members of the profession.”

Owens v. Russell, 2007 SD 3, ¶ 7, 726 N.W.2d 610, 615 (citations omitted).

[¶ 58.] We conclude that Hopewell has not proven by clear and convincing evidence that he has “the moral qualifications, competency and learning in law” required for unconditional readmission. His failure to attend CLE’s for the majority of his probationary period is not substantial compliance with this Court’s order. His attempt to represent clients when not covered by malpractice insurance and his handling of the Naatjes case while under supervision, convince us that supervision is vitally needed. This is especially true due to his limited practice and his desire to represent those in society who are the most vulnerable and in need of competent, stable legal representation. Hopewell’s history and performance during the probationary period indicate that he has not met his burden of proof that he is entitled to unconditional reinstatement. We, therefore, deny the petition.

[¶ 59.] SABERS, ZINTER and MEIERHENRY, Justices, and MILLER, Retired Justice, concur.

[¶ 60.] MILLER, Retired Justice, for KONENKAMP, Justice, disqualified.

      . The letter was copied to Richard L. Johnson, Hopewell's supervising attorney, and Robert Frieberg, the Board’s attorney.


source: Caselaw Access Project

license: Public Domain

text:
    2007 SD 74
    Darrell JOHNSON, Plaintiff and Appellant, v. LEBERT CONSTRUCTION, INC., Defendant and Appellee.
    No. 24312.
    Supreme Court of South Dakota.
    Argued May 23, 2007.
    Decided July 18, 2007.

      Mitchell Peterson of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Kent R. Cutler and Kimberly R. Was-sink of Cutler & Donahoe, LLP Attorneys for defendant Sioux Falls, South Dakota and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Darrell Johnson attempts to appeal from the denial of a motion for new trial and judgment notwithstanding the verdict following a jury trial. We dismiss the appeal for lack of jurisdiction.

PROCEDURAL HISTORY

[¶2.] On August 11, 2006, following a jury trial, notice of entry of judgment was served and motions for a judgment notwithstanding the verdict and new trial were filed. On August 18, 2006, the trial court filed a memorandum opinion denying the motions for judgment notwithstanding the verdict and new trial. The court requested counsel for Lebert Construction, Inc. (Lebert) to prepare and serve a conforming order denying the motions. That order was circulated via electronic mail and an order was signed, attested and filed on August 23, 2006. A notice of entry of that order was served on October 2, 2006. On November 1, 2006, Johnson filed a notice of appeal indicating the appeal was made “from the Order Denying Plaintiffs Motion for Judgment Notwithstanding the Verdict and Motion for New Trial.” No notice of appeal was filed from the underlying judgment.

[¶ 3.] On November 8, 2006, Lebert filed a motion to dismiss the appeal for lack of timeliness. Johnson filed a response to the motion to dismiss and a supporting affidavit from counsel indicating he was not provided a copy of the order after it was entered until service of the notice of entry over a month later. This Court ordered full briefing on the jurisdictional issue. Following briefing and oral argument, we dismiss the appeal.

STANDARD OF REVIEW

[¶ 4.] “We are required to take notice of jurisdictional questions, whether presented by the parties or not. The appellate jurisdiction of this Court will not be presumed but must affirmatively appear from the record.” Double Diamond v. Farmers Co-op. Elevator, 2003 SD 9, ¶ 6, 656 N.W.2d 744, 746. “To determine whether the statutory grant of appellate jurisdiction has been met, the rules of statutory interpretation apply.” Id. ¶ 7.

DISCUSSION

[¶ 5.] Johnson argues that even conceding no appeal was taken from the judgment and thus it becomes untimely, the appeal from the denial of the post-trial motions was timely because that date is calculated from the service of notice of entry of the denial of the post-trial motions. In support of this argument, Johnson relies primarily upon two cases, Dean v. Seeman, 42 S.D. 577, 176 N.W. 649 (1920) and McLean v. Merriman, 42 S.D. 394, 175 N.W. 878 (1920). This argument, as well as this precedent, fails when applied to the current statutory scheme.

[¶ 6.] SDCL 15-26A-6 governs the timeliness of an appeal following a motion for new trial or judgment notwithstanding the verdict. During the time period relevant here, that statute provided:

Except as provided in § 15-26A-6.1, an appeal from a judgment or order must be taken within sixty days after the judgment or order shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party.
A written notice of appeal filed before the attestation and filing of such signed judgment or order shall be deemed as filed on the date of the attestation and filing of the judgment or order.
The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the circuit court by any party pursuant to § 15-6-59 or § 15 — 6—50(b), or both, and the full time for appeal fixed by this section commences to run and is to be computed from the attestation and filing of an order made pursuant to such motion or if the circuit court fails to take action on such motion or fails to enter an order extending the time for taking action on such motion within the time prescribed, then the date shall be computed from the date on which the time for action by the circuit court expires.

SDCL 15-26A-6 (2006) (emphasis added). Compare SDCL 15-26A-6 (amended March 17, 2006, by Rule 06-59, with effective date of July 1, 2006) (changing the time limit from sixty days to thirty days to perfect an appeal). The notice of entry requirement provided in the first part of the rule relates to a judgment or an independently appealable order. Perfecting an appeal following motions for new trial or judgment notwithstanding the verdict is governed by the third part of the rule. Accordingly, as expressly provided in the rule, the appeal time following such motions begins to run from the attestation and filing of the order denying the post-judgment motions.

[¶ 7.] In this case, the relevant time to perfect the appeal from the judgment was sixty days following the attestation and filing of the order denying the post-trial motions. Attestation and filing of the order was effectuated on August 23, 2006. From that day, notice of appeal was required to be perfected by October 22, 2006, which was a Sunday; therefore, Johnson had until the following Monday, October 23, 2006, to timely file the appeal. Notice of appeal was not filed until November 1, 2006. Even then, the notice of appeal only related to the post-judgment orders.

[¶ 8.] Nevertheless, Johnson seeks to calculate the appeal time from the notice of entry of the denial of the post-judgment motions despite the specific statutory provision triggering the appeal deadline from attestation and filing of the order. To support that calculation, Johnson cites earlier cases indicating the denial of a motion for new trial is independently appealable even when the appeal from the judgment is untimely. See McLean, 42 S.D. at 395, 175 N.W. at 879; Dean, 42 S.D. at 577, 176 N.W. at 649; Brown v. Brown, 49 S.D. 167, 206 N.W. 688 (1925); Keyes v. Baskerville, 41 S.D. 214, 170 N.W. 143 (1918) (recognizing that an appeal from an order denying a motion for new trial and the appeal from the judgment are “separable and independent”). As such, Johnson argues a notice of entry of the denial of the motion, as an appealable order, was required, therefore, rendering the appeal timely from that event. These decisions interpreted the Code of 1919.

[¶ 9.] However, although overlooked by both parties in their discussion of timeliness, there is a separate, more modern line of cases, holding that an appeal may not be taken from an order denying a new trial as such order is only reviewable upon appeal from the underlying judgment in the matter. See Oahe Enterprises Inc. v. Golden, 88 S.D. 296, 218 N.W.2d 485 (1974); State Highway Comm. v. Madsen, 80 S.D. 120, 119 N.W.2d 924, 927 (1963); Meyer v. Meyer, 76 S.D. 268, 77 N.W.2d 559 (1956); Wilge v. Cropp, 74 S.D. 511, 54 N.W.2d 568 (1952) (dismissing appeals taken from orders denying new trial). Instructively, those cases recognized:

Several basic changes in our rules of appellate procedure were made with the enactment of the South Dakota Code of 1939. One of these was to remove an order denying a new trial from the list of appealable orders. Prior to this change an appeal was authorized from either an order granting or denying a new trial. 3168(3) RC 1919. However, SDC 33.0701 permitted appeals only from orders granting a new trial. That is the situation now. SDCL 15-26-1(3). Complementing this change it was provided in the 1939 Code that an order denying a new trial could be assigned as error and reviewed on an appeal from a judgment. SDC 33.0710. This is still our rule. SDCL 15-26-19. There was no need for this when an appeal could be taken from an order denying a new trial. The review permitted is of all matters properly and timely presented to the court by the application. SDCL 15-26-21. Since the order here involved is one denying a new trial we must hold that an appeal from it does not lie.
It has been intimated that the order in ' question is appealable under SDCL 15-26-1(4). So far as here pertinent an appeal under it may be taken from:
“(4) Any final order affecting a substantial right, made ... upon a summary application in an action after judgment;”
In Wilge v. Cropp, 74 S.D. 511, 54 N.W.2d 568, it was held that the design of this provision was to secure to an aggrieved party a review of such final orders, affecting substantial rights, as could not be considered on an appeal from the judgment entered in such matter. In other words, if the order is reviewable on an appeal from the judgment it is not an appealable order within the purview of this section. [88 S.D. at 302, 218 N.W.2d 485]
Other orders entered after judgment, besides those denying a new trial, were also made reviewable on an appeal from the judgment by SDC 33.0710. This now appears as SDCL 15-26-19. To be reviewable on such appeal the order must be one “involving the merits and necessarily affecting the judgment.” An order satisfies that requirement if its affirmance, modification or reversal would in any manner affect the judgment appealed from. Williams v. Williams, 6 S.D. 284, 61 N.W. 38; Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533. Since this order is of that kind it is reviewable in an appeal from the judgment. Consequently it is not appealable under SDCL 15-26-K4).

Oahe Enterprises, Inc., 88 S.D. at 296, 218 N.W.2d at 487-88. There was no attempt here to appeal the judgment, most likely because of the timeliness issue, however, a separate appellate avenue is not created by the denial of the motion for new trial or judgment notwithstanding the verdict to resurrect an appeal. In the absence of a properly perfected appeal from the judgment, the denial of the post-judgment motions is not reviewable.

[¶ 10.] In summary, the party wishing to appeal now has thirty days from the notice of entry to perfect an appeal from the judgment or an independently appeal-able order. In contrast, the appeal time following post-judgment motions, such as a motion for a new trial or a judgment notwithstanding the verdict, does not start to run upon a notice of entry, but rather starts to run from the attestation and filing of the order denying those motions. Furthermore, a party wishing to appeal the merits of the case cannot rely on a motion for judgment notwithstanding the verdict or a motion for a new trial. An appeal of these post-trial and post-judgment motions only examines whether the motion should have been granted. It does not reopen or resurrect an appeal of the judgment.

[¶ 11.] Appeal dismissed.

[¶ 12.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . The current version of SDCL 15 — 6—5(b) does not allow for service by electronic mail.

      . The current language that "the full time for appeal fixed by this section commences to run and is to be computed from the attestation and filing of an order made pursuant to such motion” first appeared with Supreme Court Rule 79-1 and has carried through other revisions to this section. See Rule 79-1; Rule 80-3; Rule 82-33; Rule 97-8; Rule 06-59.

      . Those cases interpreted the following provision:
      An appeal to the supreme court must be taken within sixty days after written notice of the filing of the order shall have been given to the party appealing; every other appeal allowed must be taken within one year after the judgment shall be signed, attested and filed.
      SDC 1919, § 3147.

      . See also Waln v. Putnam, 86 S.D. 385, 196 N.W.2d 579 (1972); Fales v. Kaupp, 83 S.D. 487, 161 N.W.2d 855 (1968) (stating order denying new trial is not appealable but reviewable on appeal from the judgment).

      . As stated in Wilge, 74 S.D. at 511, 54 N.W.2d at 568:
      Changes in the rules of appellate procedure made with the enactment of the 1939 code liberalized appeals by extending the scope of review in an appeal from a judgment. Such changes also accelerated the judicial process by preventing appeals from intermediate orders. The purposes of the changes can be achieved only by reasonably close adherence to the rules.
      This structure substantially carries through in the current rules of appellate procedure. See SDCL 15-26A-3(3) (appeal may be taken from an order granting new trial); SDCL 15-26A-7 ("On appeal from judgment the Supreme Court may review any order, ruling or determination of the trial court, including an order denying a new trial."); SDCL 15-26A-9 ("When reviewing an order denying a new trial, the Supreme Court may review all matters properly and timely presented to the court by the application for new trial.”).

      . In his brief and at oral argument counsel for Johnson indicated Lebert should be faulted for not making sure notice of the filing and attestation of the order was given to him and formerly serving the proposed order. As discussed above, there is no notice of entry requirement related to the denial of the post-trial motion. Even though the trial court indicated that a proposed order should be served, which was only accomplished informally through email, this is without consequence as the service of a proposed order is irrelevant in calculating appeal timeframes. Further, as one commentator has indicated:
      A prospective appellant has an obligation to follow the progress of its case and to monitor the docket or otherwise affirmatively check with the court or the clerk's office, and a failure to do so does not constitute excusable neglect justifying an extension of the time to appeal under [Federal Rule of Appellate Procedure 4].
      Federal Procedure, Lawyers Edition, Appeal, Certiorari and Review, § 3:600 (West 2003 and 2006 Supp).


author: MACY, Circuit Judge. MEIERHENRY, Justice GILBERTSON, Chief Justice

text:
    2007 SD 72
    STATE of South Dakota, Plaintiff and Appellant, v. Jeffrey J. HOLSING, Defendant and Appellee.
    Nos. 24334, 24367.
    Supreme Court of South Dakota.
    Argued April 25, 2007.
    Decided July 18, 2007.

      William J. Janklow, Brandon, South Dakota, Clyde R. Calhoon, Brookings County State’s Attorney, WM. Mark Kratchovil, Brookings County Deputy State’s Attorney, Brookings, South Dakota, Attorneys for plaintiff and appellant.
    Melissa E. Neville and Richard A. Som-mers of Bantz, Gosch & Cremer, Aberdeen, South Dakota, Attorneys for defendant and appellee.
   MACY, Circuit Judge.

[¶ 1.] The trial court concluded it did not have jurisdiction to order Jeffrey J. Holsing (Holsing) to pay additional restitution. Accordingly, it dismissed the State’s motion for an order to show cause why Holsing should not be held in contempt for failure to pay restitution. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On May 26, 1998, Holsing pleaded nolo contendere to three counts of sexual contact with a minor. One of the three victims was R.S. On August 12, 1998, the trial court sentenced Holsing to three concurrent 7-1/2 year terms in the South Dakota State Penitentiary. The trial court suspended three years of each sentence on certain conditions, one of which was Hols-ing make restitution to the victims for the costs of counseling. The trial court further ordered that restitution be paid according to a schedule to be determined by the Board of Pardons and Paroles (Board), should Holsing make parole.

[¶ 3.] On December 13, 2002, the Board held a restitution hearing. The victims were given notice of the hearing. The amount of restitution for R.S. was set at $5,709.25. R.S. did not object to the Board’s plan of restitution. Holsing paid restitution of $5,709.25 to R.S. while on parole. A certificate of discharge from parole was issued on July 25, 2004. On August 12, 2004, Holsing’s citizenship rights were restored.

[¶ 4.] On July 8, 2005, the State filed an application for order to show cause against Holsing seeking to have the trial court order Holsing to pay an additional $190,768.83 in restitution to R.S. The trial court dismissed the State’s application concluding that it no longer had jurisdiction to order Holsing to pay additional restitution.

ISSUE

[¶ 5.] Whether the trial court had jurisdiction to order Holsing to pay additional restitution.

STANDARD OF REVIEW

[¶ 6.] Questions of jurisdiction are reviewed by this Court de novo. State v. Neitge, 2000 SD 37, ¶ 10, 607 N.W.2d 258, 260.

DECISION

[¶ 7.] At the time Holsing was sentenced he was advised that restitution would be a part of his sentence. SDCL 22-6-1 and 22-6-2 authorize trial courts, as part of the sentence, to order a felony or misdemeanor defendant to pay restitution to a victim. In imposing sentence the courts shall enter an order of restitution in accordance with SDCL 23A-27-1 and SDCL ch. 23A-28. Defendants have due process rights concerning restitution. See State v. Tuttle, 460 N.W.2d 157 (S.D.1990). Imposition of restitution requires similar procedural protections as those employed in criminal sentencing. Id. at 158; see also State v. Ruttman, 1999 SD 112, ¶ 3, 598 N.W.2d 910, 911.

[¶ 8.] The trial court advised Holsing that restitution would be a part of his sentence. As part of the sentence it ordered Holsing to pay restitution to the victims for the costs of counseling. It sentenced Holsing to the penitentiary and ordered the Board to determine the schedule of payment of restitution. The trial court’s order complied with SDCL 23A-28-3, which in 1998 provided in relevant part:

If the sentencing court orders the defendant to the state penitentiary and does not suspend the sentence, the Board of Pardons and Paroles shall require as a condition of parole that the defendant, in cooperation with the executive director of the Board of Pardons and Paroles, prepare the plan of restitution as described in this section.

[¶ 9.] Pursuant to SDCL 23A-28-6 the Board gave notice to the victims of the restitution hearing, and following the hearing, set forth the amount of restitution owed to R.S. and determined the schedule of payments. “If the victim is not satisfied with ... the plan of restitution, the victim’s exclusive remedy is a civil action against the defendant, which if successful, may include attorney’s fees.” SDCL 23A-28-6.

[¶ 10.] The State does not allege the Board violated SDCL 23A-28-3 when it set Holsing’s schedule of payment for restitution. Rather, the State claims that when the trial court sentenced Holsing, it intended Holsing to pay past and future costs of counseling for the victims. The State argues the trial court has continuing jurisdiction to establish additional restitution. Holsing argues, however, that he complied with the restitution order while on parole and under the jurisdiction of the executive branch of government. As a result, Holsing contends the trial court does not have jurisdiction to order him to pay additional restitution.

[¶ 11.] This Court must review Hols-ing’s sentence to determine if Holsing complied with the trial court’s order of restitution. Holsing was sentenced on August 12, 1998. At the sentencing the trial judge orally ordered:

You will pay for the costs of counseling for the victims. And at least one of these victims has had to have counseling, the fact you utterly disregard.

[¶ 12.] The State contends the oral sentence includes past and future counseling costs. Holsing contends, and this Court agrees, the oral sentence is open to more than one interpretation. An oral sentence is ambiguous if “the extent of the sentence cannot be ascertained from the language used.” State v. Thayer, 2006 SD 40, ¶10, 713 N.W.2d 608 (quoting United States v. Villano, 816 F.2d 1448, 1453 (10th Cir.1987)). The trial court’s oral sentence that “[y]ou will pay the costs of counseling for victims” does not adequately set forth the extent of the restitution. As a result, we find that the trial court’s oral sentence is ambiguous. “[I]f the [trial court’s] oral sentence is ambiguous, the written judgment may be relied on to clarify the ambiguity.” State v. Munk, 453 N.W.2d 124, 125 (S.D.1990). Further, the “written sentence must conform to the court’s oral pronouncement.” State v. Ford, 328 N.W.2d 263, 267 (S.D.1982).

[¶ 13.] The trial court’s written sentence was entered on the same day as the court’s oral sentence. The written sentence provides:

5. That said Defendant shall make restitution in full to the victims for the costs of any counseling that said victims may have incurred as a result of said offenses, (emphasis added.)

The phrase “may have incurred” implies past tense. The suffix “ed” added to incur is used to form the past tense of regular weak verbs. Webster’s Ninth New Collegiate Dictionary, 296 (1986 ed). When using the plain ordinary meaning of the words of the written sentence, which we are required to do, we conclude that counseling costs were limited to those incurred and not future costs. See SDCL 2-14-1. The written sentence clarifies the oral sentence. Any other interpretation would require us to insert words into the oral and written sentence that the defendant was not advised of at the time of sentencing.

[¶ 14.] Further, when ordering restitution, the court “shall set forth in the judgment the names and specific amounts of restitution owed to each victim.” SDCL 23A-28-3; see also Thayer, 2006 SD 40, at ¶ 16, 713 N.W.2d 608. By interpreting the trial court’s restitution order as requiring Holsing to pay counseling costs incurred, the trial court’s sentence complied with SDCL 23A-28-3. The victim’s initials are set forth in the sentence and the amount of restitution was ascertainable.

[¶ 15.] As part of the written sentence the trial court ordered the Board set up a schedule for payment of costs and restitution. When Holsing became eligible for parole, the Board gave notice to the victims of the restitution hearing. Following the hearing, the plan of restitution set forth the amount owed to R.S. and established the schedule of payment. Holsing paid the costs and restitution ordered by the trial court pursuant to the schedule established by the Board. The trial court’s order and the Board’s setting the restitution payments were all in compliance with the law. SDCL 23A-28-3; 23A-28-5; 23A-28-6. The State never objected to nor asked for clarification of the trial court’s oral or written sentence. The State did not object to the amount or schedule of payments of restitution set by the Board. Our statutes on restitution would be rendered meaningless if the State could seek additional restitution after a defendant has complied with the terms and conditions of his sentence.

[¶ 16.] The State relies on State v. Gullickson, 2003 SD 32, 659 N.W.2d 388 for the proposition that circuit courts have inherent jurisdiction to enforce restitution orders. The State seeks to overextend the holding in Gullickson. In Gullickson, we held that a trial court has broad latitude in fashioning a method of dealing with the issue of unpaid restitution and has jurisdiction over an ex-prisoner to compel him to pay court-ordered restitution where the ex-prisoner is no longer under the supervision of the Board. Id. In Gullickson, the defendant agreed, pursuant to a plea agreement, to make full restitution in the amount of $101,930.38 to his victims. Approximately seven months after release from prison, the defendant stopped making payments. This Court held that the trial court had jurisdiction over the defendant to compel him to pay the court-ordered restitution. The holding in Gullickson applies where a defendant fails to pay court-ordered restitution after he is released from parole or probation. Unlike Gullick-son, however, Holsing complied with his sentence and paid the amount ordered while he was under the jurisdiction of the Board.

[¶ 17.] This Court is sympathetic to the victims’ injuries and by this holding we do not excuse Holsing’s criminal behavior. South Dakota law and due process, however, require that as part of the sentence, defendants be advised of the names of victims and specific amounts of restitution owing. SDCL 23A-28-3. The State argues Holsing’s due process rights are protected because the State is requesting a hearing to set further restitution. However, due process rights attach at the time of sentencing, when restitution is set, not seven years after sentencing. In setting restitution, “[d]ue process safeguards, however, include the need for finality.” Commonwealth v. Wozniakowski, 860 A.2d 539, 545 (Pa.Super.2004). The trial court’s sentence must comply with due process protection “by informing the defendant of the restitution he faced at the time of sentencing.” State v. Wolff, 438 N.W.2d 199, 202 (S.D.1989). Allowing the State to bring Holsing back into court for the purpose of increasing restitution seven years after he was sentenced would unlawfully increase his punishment and violate due process protections. Id., see also Thayer, 2006 SD 40, 713 N.W.2d 608.

[¶ 18.] The trial court’s jurisdiction over Holsing ended when he complied with the schedule of payments of restitution and he was discharged from parole. This is consistent with the principle of separation of powers enunciated in State v. Oban, 372 N.W.2d 125, 129 (S.D.1985); see also State v. Hurst, 507 N.W.2d 918, 923 (S.D.1993)(“[o]nce an offender is within the jurisdiction of the executive branch of government, the judicial branch — the circuit court — -loses jurisdiction and control”). Our holding gives full effect to the trial court’s sentence and order of restitution. The trial court does not have jurisdiction to increase the amount of Holsing’s restitution.

[¶ 19.] Affirmed.

[¶ 20.] SABERS, Justice, concurs.

[¶ 21.] KONENKAMPand MEIERHENRY, Justices, concur specially.

[¶22.] GILBERTSON, Chief Justice, dissents.

[¶ 23.] MACY, Circuit Judge, for ZINTER, Justice, disqualified.

MEIERHENRY, Justice

(concurring specially).

[¶ 24.] I concur because I agree that the trial court no longer had jurisdiction to set a restitution amount. This case points out the need for the State to request specific amounts of restitution in the sentencing phase and for the trial courts to include exact amounts as part of the sentence. We need look no further than the judge’s pronouncement at sentencing. There, the judge merely ordered the defendant to “pay for the costs of counseling for the victims.” It is apparent from the judge’s further comments that he had not been presented with evidence of how many victims would actually need counseling or the projected cost of the counseling.

[¶ 25.] The judge left the cost of counseling and how it was to be paid for the Board of Pardons and Paroles to determine. Perhaps, it was set too low; but as the majority opinion points out, those affected had notice and could have appeared at the Board’s hearing to request a more appropriate amount. See supra ¶ 9.

[¶ 26.] The law contemplates that full restitution may not be ordered in all cases. The law defines restitution as “full or partial payment of pecuniary damages to a victim.” SDCL 23A-28-2(4) (emphasis added). The defendant’s situation is also part of the equation, and the law required the court or Board to take into consideration the following factors:

the physical and mental health and condition of the defendant, the defendant’s age, the defendant’s education, the defendant’s employment circumstances, the defendant’s potential for employment and vocational training, the defendant’s family circumstances, the defendant’s financial condition, the number of victims, the pecuniary damages of each victim, what plan of restitution will most effectively aid the rehabilitation of the defendant, and each victim, and such other factors as may be appropriate.

SDCL 23A-28-5.

[¶ 27.] There were several opportunities here for the State on behalf of the victims or the victims, themselves, to seek a higher amount of restitution. Additionally, SDCL 23A-28-6 provides that “[i]f the victim is not satisfied with the approved or modified plan of restitution, the victim’s exclusive remedy is a civil action against the defendant, which, if successful, may include attorney’s fees.” (Emphasis added). For the State to wait until after the defendant had served his time, paid the set restitution and been restored his citizenship rights is too late and contrary to the law.

[¶ 28.] KONENKAMP, Justice, joins this special writing.

GILBERTSON, Chief Justice

(dissenting).

[¶ 29.] SDCL 23A-28-12 provides: Anyone convicted under ... [SDCL] 22-22-7 ... shall be required as part of the sentence imposed by the court to pay all or part of the cost of any necessary medical, psychological, or psychiatric treatment, or foster care of the minor resulting from the act or acts for which the defendant is convicted.

Id. (emphasis added). The trial court in its sentence complied with 23A-28-12 in imposing its sentence from the bench upon Holsing when it unequivocally and without qualification declared: “You will pay for the costs of counseling for the victims. And at least one of these victims has had to have counseling, the fact you utterly disregard.” (emphasis added).

[¶ 30.] I disagree with the Court’s analysis of the jurisdictional issue in this case. The Court’s fundamental error is its determination that the sentencing court’s oral pronouncement was ambiguous with respect to restitution.

[¶ 31.] The Court also errs when it references State v. Ford, 328 N.W.2d 263 (S.D.1982), to place emphasis on a sentencing court’s written judgment over its oral sentence. Actually, in Ford, we declared the opposite.

[¶ 32.] In Ford, the trial court orally imposed a three-year prison sentence upon the defendant. 328 N.W.2d at 264. Subsequently, and without legal authority after the defendant had begun serving his sentence, the trial court had the defendant delivered back to the court and increased his sentence to ten years imprisonment. Id. at 267. Thereafter the trial court signed and entered its written judgment, reflective of the second oral pronouncement. Defending the trial court’s written sentence on appeal, the State argued that the ten-year sentence should stand because the first oral sentence was not signed as required by statute. However, in reversing the trial court on its imposition of the ten-year sentence, we recognized that our rules of criminal procedure were patterned after the Federal Rules of Criminal Procedure and we adopted the position taken by federal courts, holding that “the oral sentence is the only sentence.” Id. at 267-268. Thereafter we subordinated the written sentence to the oral sentence by further holding that the written sentence must conform to the oral and that the original oral sentence must stand despite the trial court’s failure to make the written pronouncement comport with the oral. Id. at 268.

[¶ 33.] Relating this holding to the instant case, the sentencing court’s unambiguous oral pronouncement, that Holsing pay the costs of counseling, controls over any perceived inconsistency with the written sentence. An unambiguous oral sentence cannot be converted to an ambiguous one by reference to the subsequent written sentence of the court. The oral sentence stands alone; either it is ambiguous or it is not. Since the sentencing court suspended a portion of Holsing’s sentence on the condition that he pay these costs without qualification as to when they were incurred, the Board of Pardons and Paroles (the “Board”), retained jurisdiction over this matter, as we observed in State v. Gullickson, 2003 SD 32, 659 N.W.2d 388. In Gullickson, we noted that SDCL 23A-27-19, which applies when a sentence is conditionally suspended under SDCL 23A-27-18, provides in pertinent part:

Any person whose sentence is suspended pursuant to this section is under the supervision of the [B]oard of [PJardons and [P]aroles, ... The board is charged with the responsibility for enforcing the conditions imposed by the sentencing judge and the board retains jurisdiction to revoke the suspended portion of the sentence for violation of the terms of the suspension.

Id. at ¶ 17, n. 3, 659 N.W.2d at 392, n. 3 (quoting SDCL 23A-27-19) (emphasis added).

[¶ 34.] Based on the foregoing analysis I would reverse the trial court’s dismissal of the State’s application for an order requiring Holsing to pay additional restitution to R.S. and remand with instructions for the trial court to transfer the State’s application to the Board for further consideration.

      . In 1999 the legislature revised SDCL 23A-28-3. 1999 S.D.Sess.L. ch. 124 § 1.

      . The trial court said in its memorandum decision dismissing this action for lack of jurisdiction that it did intend for Holsing to pay past and future counseling costs of the victims. However, the trial court's memorandum decision is dated October 18, 2006, eight years after Holsing was sentenced.

      . See also SDCL 23A-28-1 which provides in pertinent part, "It is the policy of this state that restitution shall be made by each violator of the criminal laws to the victims of the violator’s criminal activities to the extent that the violator is reasonably able to do so.”
      To date Holsing has paid $5,709.25 in restitution. There remains outstanding $190,768.83 in counseling bills incurred by R.S. Interestingly, Holsing in his brief does not challenge the fact the bills were incurred by R.S. or the reasonableness of the charges.

      . In making the determination that the trial court was without legal authority to increase the defendant's sentence in this manner, we relied on SDCL 23A-31-1, the only provision in our criminal code that authorized a court to modify a sentence after its initial pronouncement. Ford, 328 N.W.2d at 267. While making provision for a reduction of an illegally imposed sentence, we observed that SDCL 23A-31-1 included no provision for increasing a sentence. Id. We also cited State v. Jackson, 272 N.W.2d 102 (S.D.1978); Ex parte Watt, 73 S.D. 436, 44 N.W.2d 119 (1950); and, State v. Hughes, 62 S.D. 579, 584, 255 N.W. 800, 802 (1934) for the proposition that “a valid prison sentence cannot be increased in severity after the defendant has commenced serving it.” Id.

      . In Ford, we noted that SDCL 23A-27-4 provided, in pertinent part:
      [J]udgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence.... A judgment shall be signed by the judge and entered by the clerk. 328 N.W.2d at 267 (quoting SDCL 23A-27-4) (emphasis added).

        . SDCL 23A-27-18, provides in pertinent part:
      Upon conviction, the court having jurisdiction- to try the offense may suspend the execution of any sentence imposed during good behavior, subject to such conditions or restitution as the court may impose.