author: GILBERTSON, Chief Justice (on reassignment). SABERS, Justice AMUNDSON, Retired Justice

text:
    2003 SD 18
    STATE of South Dakota, Plaintiff and Appellant, v. Edward DE LA ROSA, Defendant and Appellee. State of South Dakota, Plaintiff and Appellant, v. Lane Stocker, Defendant and Appellee.
    Nos. 22231, 22232.
    Supreme Court of South Dakota.
    Argued Oct. 9, 2002.
    Reassigned Dec. 16, 2002.
    Decided Feb. 12, 2003.
    Sabers, J., dissented and filed opinion in which Amundson, Retired Justice, joined.
    Amundson, Retired Justice, filed dissenting opinion.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellant.
    Candi L. Thomson of Morman Law Firm, Sturgis, South Dakota, Attorney for appellee De La Rosa.
    Robert A. Haivala, Sturgis, South Dakota, Attorney for appellee Stocker.
   GILBERTSON, Chief Justice (on reassignment).

[¶ 1.] Edward De La Rosa and Lane Stocker were arrested and charged with Possession of a Controlled Substance (SDCL 22-42-5) and Possession of Two Ounces or Less of Marijuana (SDCL 22-42-6). Both Defendants filed Motions to Suppress the drug evidence seized during a traffic stop on August 7, 2001. After an evidentiary hearing, the trial court entered its decision granting the motions to suppress. The State appeals claiming no constitutional violation occurs when a motorist is briefly detained for a few seconds beyond the conclusion of a traffic stop for a canine sniff of the vehicle’s exterior. We agree and reverse the trial court.

FACTS

[¶ 2.] During the Sturgis Motorcycle Rally, on August 7, 2001, De La Rosa was pulled over in Sturgis, South Dakota for failure to use his left turn signal. De La Rosa identified himself as being from Denver, Colorado. The arresting officer, Steve Marquardt, was an 18-year veteran of the South Dakota Highway Patrol on duty with his drug detection canine named Tess. After confirming that De La Rosa’s turn signal was in working order, Trooper Marquardt requested that De La Rosa accompany him to his patrol car. The trooper performed a radio check for warrants and a license check, which checks eventually came back clear, and he issued a warning citation for the signal violation.

[¶ 3.] Trooper Marquardt testified that once he returned De La Rosa’s documents and issued the warning citation, the traffic stop was completed but that he did not inform De La Rosa that he was free to go. Rather, he had De La Rosa stand in front of the patrol car while he used Tess to perform a sniff test on De La Rosa’s truck. Before beginning the sniff test, Officer Marquardt approached the passenger side of the truck and requested that the passenger, Defendant Lane Stocker, exit the vehicle. She did so, and Tess began her work. Tess indicated that there were drugs in the passenger compartment of the truck. A search of Stocker’s purse revealed marijuana. A further search of Stocker’s travel bag in the back of the pickup revealed some peyote and more marijuana. Both Stocker and De La Rosa were arrested.

[¶4.] The State has conceded that at the time the sniff test was performed, De La Rosa’s traffic stop was completed and that Trooper Marquardt had no particularized suspicion that illegal drugs were in the vehicle. Thus, the sole question on appeal is whether there is a violation of the Fourth Amendment of the United States Constitution and Article IV § 11 of the South Dakota Constitution (collectively Fourth Amendment) when a motorist’s detention at a valid traffic stop is briefly extended for a canine sniff of the vehicle’s exterior, when the officer has a drug canine at his immediate disposal. Based on a totality of the circumstances, we hold that the facts of this case result in no constitutional violation. We reverse the circuit court’s grant of the Defendants’ motions to suppress the evidence seized.

STANDARD OF REVIEW

[¶ 5.] In reviewing a motion to suppress based on an alleged violation of a constitutional right, we utilize the de novo standard. State v. Rechtenbach, 2002 SD 96, ¶ 6, 650 N.W.2d 290, 292 (citing State v. Hodges, 2001 SD 93, ¶8, 631 N.W.2d 206, 209). Findings of fact are reviewed under the clearly erroneous standard. Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d at 209. “Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo.” State v. Himing, 1999 SD 53, ¶ 8, 592 N.W.2d 600, 603 (citing Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N,W.2d 606, 610). The facts in this case are not disputed so our review is de novo.

[¶ 6.] DOES A CONSTITUTIONAL FOURTH AMENDMENT VIOLATION OCCUR WHEN A MOTORIST’S DETENTION AT A VALID TRAFFIC STOP IS BRIEFLY EXTENDED FOR A CANINE SNIFF OF THE VEHICLE’S EXTERIOR, WHERE THE OFFICER HAS THE DRUG CANINE AT HIS IMMEDIATE DISPOSAL.

[¶7.] The Fourth Amendment protects citizens from unreasonable searches and seizures by government officials. US Const, amend. IV. Police officers are generally required to have a warrant issued by a judicial officer based on probable cause in order to seize an individual of his or her property. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968) (additional citations omitted). However, in Terry, 392 U.S. at 23, 88 S.Ct. at 1881, 20 L.Ed.2d at 906-7, the United States Supreme Court has recognized the need to allow police officers to safely and effectively perform their functions. The Terry line of cases establishes that when a person is subject to an “investigative detention” rather than a full-blown custodial arrest, the officer need only have reasonable suspicion for the detention rather than the probable cause typically required. Id. at 30, 88 S.Ct. at 1884-85. An investigatory stop satisfies the Fourth Amendment if the officer’s action is supported by reasonable suspicion to believe that criminal activity “may be afoot.” Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.

[¶ 8.] There is no dispute that Trooper Marquardt was within constitutional bounds when he initially stopped De La Rosa. State v. Vento, 1999 SD 158, ¶ 8, 604 N.W.2d 468, 470 (citing State v. Cuny, 534 N.W.2d 52, 53 (S.D.1995)) (holding that an officer must have “specific and articulable suspicion of a violation” for a traffic stop to be permissible). The State concedes, however, that at the time the sniff test was conducted on the exterior of De La Rosa’s vehicle, the initial traffic stop was complete, and Trooper Marquardt had no particularized suspicion there were illegal drugs in the Defendant’s vehicle.

[¶ 9.] The Fourth Amendment to the constitution only prohibits unreasonable “search and seizures.” When this “constitutional standard” of reasonableness is measured by the totality of the circumstances, “we should not be governed by artificial distinctions.” Currency, 182 F.3d at 649. The touchstone of Fourth Amendment constitutional analysis is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331, 333 (1977) (quoting Terry, 392 U.S. at 19, 88 S.Ct. at 1878, 20 L.Ed.2d at 906); State v. Lamont, 2001 SD 92, ¶ 38, 631 N.W.2d 603, 616. Reasonableness depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Mimms, 434 U.S. at 109, 98 S.Ct. at 332, 54 L.Ed.2d at 333 (citations omitted). The public interest in the suppression of illegal drugs and their devastating effect on our citizens is obvious.

Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances ... [a]nd many drugs ... may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.

United States v. Mendenhall, 446 U.S. 544, 561-62, 100 S.Ct. 1870, 1881, 64 L.Ed.2d 497 (1980). (Powell, J., concurring.)

[¶ 10.] There is no question the initial stop of the Defendant’s vehicle was valid based upon the Trooper’s eyewitness observation that a traffic violation had occurred. SDCL ch 32-26 (motor vehicle rules of the road). For purposes of analysis of the issue before us, this also satisfied the constitutional standard of reasonable suspicion for that stop. Vento, 1999 SD 158, ¶ 8, 604 N.W.2d at 470. From that point, the Defendants invite this Court to dissect the facts into two distinct events, those involving the normal checks of a driver’s license and proof of insurance and second, the use of the drug dog to sniff

around the exterior of the Defendant’s vehicle. The Defendants argue the dog sniffing of the vehicle is constitutionally unreasonable based on an analysis of lack of reasonable suspicion.

[¶ 11.] The lack of reasonable suspicion, however, does not automatically equate with unconstitutional conduct on the part of the officer. Here, the officer had the dog at hand in his vehicle, and the Defendants concede the sniffing activity was of a short duration. Had there been no “hits,” the delay to the motorists would have been a matter of seconds. We cannot accept the premise that while the State’s interest in drug interdiction is compelling, a few seconds delay for non-entry sniffing the exterior of a vehicle by a dog already on the scene is constitutionally unreasonable.

[¶ 12.] Our analysis is guided by a twofold test: [1] “whether the officer’s action was justified at its inception” and [2] “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879, 20 L.Ed.2d at 906. Concerning the disputed second prong, it is hardly constitutionally consistent to hold that what the officer did in first checking the Defendant’s papers and then doing the sniff test to be constitutionally impermissible, yet conclude in the alternative that Trooper Marquardt would have been constitutionally justified in the sniff test had he done it before the traffic stop was finished. Constitutional rights should be based upon reasonableness of the totality of the government intrusion, rather than a mere bright-line rule based solely upon a timing sequence. Either both must be constitutionally impermissible or both constitutionally permissible.

[¶ 13.] We conclude that the analysis of the Eighth Circuit Court of Appeals in Currency, 182 F.3d at 648, to be constitutionally persuasive. Instead of improperly attempting to separate the trooper’s actions into two distinct sequences, as previously noted, the correct measure of constitutional reasonableness is totality of the circumstances. Currency, 182 F.3d at 646 (citing Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996)). See also State v. Kenyon, 2002 SD 111, ¶15, 651 N.W.2d 269, 274 (citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-5, 66 L.Ed.2d 621, 628-9 (1981)).

[¶ 14.] The Currency Court further focused on the nature of the inspection as

that of a short duration and lack of direct invasion of the citizen’s vehicle and concluded:

[A] canine sniff of the exterior of personal property in a public location “is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure” that it does not constitute a “search” within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)
When applied to the exterior of vehicles, the canine sniff is an investigative procedure uniquely suited to this purpose — it is so uninstrusive as not to be a search, it takes very little time, and it “discloses only the presence or absence of narcotics, a contraband item.” Place, 462 U.S. at 707, 103 S.Ct. at 2637. For these reasons, when a police officer makes a traffic stop and has at his immediate disposal the canine resources to employ this uniquely limited investigate procedure, it does not violate the Fourth Amendment to require that the offending motorist’s detention be momentarily extended for a canine sniff of the vehicle’s exterior.

Id. at 647-49. Moreover, the Eighth Circuit has continued to- follow this constitutional analysis and rationale. United States v. Linkous, 285 F.3d 716, 721 (8thCir.2002); United States v. Gregory, 302 F.3d 805, 810 (8thCir.2002) (“[w]e have held that a brief drug scan at the end of a traffic stop does not require reasonable suspicion.”). The basis is that “the officer did not need to have probable cause or even reasonable suspicion to support this scan because ‘a dog sniff of the exterior of a vehicle is not a search.’ ” Gregory, 302 F.3d at 810 (citations omitted).

[¶ 15.] Today’s opinion is consistent with our recent analysis in State v. Ballard, 2000 SD 134, 617 N.W.2d 837. As we specifically acknowledged in Ballard, “[w]hether a particular intrusion will fall into the Terry exception will be decided by balancing the ‘quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Ballard, 2000 SD 134, ¶ 10, 617 N.W.2d at 840 (citing Place, 462 U.S. at 703, 103 S.Ct. at 2642, 77 L.Ed.2d at 118; Terry, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905).

[¶ 16.] Unlike Ballard, however, the officer in this case did not complete the traffic stop and then objectively foreclose any further investigation by telling the motorists that they were free to leave. In Ballard we concluded:

This case presents a close question on when continued detention becomes unreasonable. However, we are concerned with the dubious message we send to law enforcement officers and the public if we validate a procedure allowing officers to falsely tell traffic offenders they are free to go, only for the purpose of eliciting their uncoerced agreement to search their automobiles.

2000 SD 134, ¶ 17, 617 N.W.2d at 842. Because our holding in Ballard was expressly limited to facts involving a detention which followed the completion of a traffic stop by the officer’s announcement to the motorists that he or she was free to leave, Ballard does not apply to a traffic stop like the one now before us.

[¶ 17.] The artificial bright-line test result advocated by the Defendants does not comport with constitutional principles of reasonableness based upon a totality of the circumstances. Instead, it would result in constitutional rights based upon an officer’s checklist or a mad dash by one officer and dog to the stopped vehicle while the other officer checks out the driver’s papers. Defendants, or any driver for that fact, would be no more inconvenienced or delayed by a dog sniff in this case than would they be by a roadblock check point for detecting illegal aliens (Martinez-Fuerte, 428 U.S. at 543, 96 S.Ct. at 3076, 49 L.Ed.2d at 1116), roadblock-type stops to verify driver’s licenses and vehicle registrations, (Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)) or a roadblock-type checkpoint for game during a hunting season (State v. Halverson, 277 N.W.2d 723, 725 (S.D.1979)).

[¶ 18.] For the above reasons, we reverse the circuit court and remand for further proceedings consistent with this opinion.

[¶ 19.] KONENKAMP, and ZINTER, Justices, concur.

[¶ 20.] SABERS, Justice, and AMUNDSON, Retired Justice, dissent.

[¶ 21.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

SABERS, Justice

(dissenting).

[¶ 22.] I dissent because Trooper Mar-quardt’s subsequent search of De La Rosa’s vehicle without reasonable suspicion violated the Fourth Amendment.

[¶ 23.] Once a traffic stop is complete, the police officer must allow the driver to proceed without further constraint. State v. Ballard, 2000 SD 134, ¶ 12, 617 N.W.2d 837, 841 (citing State v. Woolfolk, 3 S.W.3d 823, 828 (Mo.Ct.App.1999)). In order to detain the driver any further, the officer must have a “reasonable, articulable suspicion that [the] person is involved'in criminal activity unrelated to the traffic violation.” Ballard, 2000 SD 134, ¶12, 617 N.W.2d at 841 (quoting State v. Anderson, 258 Neb. 627, 605 N.W.2d 124, 132 (2000)) (citations omitted). Thus, we have held that when an officer tells the driver that he or she is free to leave, the “Fourth Amendment intercedes to limit a further detention or search.” Ballard, 2000 SD 134, ¶ 17, 617 N.W.2d at 842 (citing United States v. $404,905 in U.S. Currency, 182 F.3d 643, 648 (8thCir.1999)).

[¶ 24.] By accepting the assertion that an officer does not need reasonable, suspicion to detain a citizen after a traffic stop, the majority not only disregards constitutional principles inherent in the stop analysis, but unreasonably limits our decision in Ballard to encompass only those cases in which an officer actually tells the person they are free to leave. Such a limitation on Ballard eviscerates the protection it provides for motorists. It would mean that an officer would only need to refrain from saying the words to extend the stop unreasonably. Trooper Marquardt testified that his purpose for the initial stop was served, therefore, whether he actually said the words, “this stop is finished,” the stop was over for constitutional purposes before he chose to re-séize the Defendants for a canine drug sniff. As in Ballard, the Court should be sensitive to the “dubious message we send to law enforcement officers and the public,” 2002 SD 134 ¶ 18, 617 N.W.2d at 842, by saying that an officer need only withhold the fact that the citizen is free to end the encounter in order to justify a continued intrusion without independent justification. We should follow the well-established rule that the officer must have reasonable suspicion to detain a driver for any period longer than it takes to pursue a reasonable investigation based on the grounds for the initial stop. See e.g., State v. Kenyon, 2002 SD 111, 651 N.W.2d 269; State v. Durke, 1999 SD 39, ¶ 17, 593 N.W.2d 407, 410; State v. Ramirez, 535 N.W.2d 847, 849 (S.D.1995) (citing State v.. Watson, 165 Conn. 577, 345 A.2d 532, 537 (1973)).

[¶ 25.] The majority narrows the parameters of Fourth Amendment protections and disregards the rule of Terry by adopting the holding of the Eighth Circuit Court of Appeals in United States v. 404,905 in U.S. Currency, 182 F.3d 643 (8thCir.1999). In Currency, a police officer stopped a truck and U Haul trailer for speeding. Id. at 645. After the purposes of the underlying stop were accomplished, but before the officer returned the driver’s documents, the officer told the driver that there would be a sniff of the truck and trailer for drugs. Id. at 646. The Eighth Circuit held that when a police officer makes a traffic stop and has a canine unit at his or her immediate disposal, it does not violate the Fourth Amendment to detain the motorist after the initial stop is completed for a canine sniff of the vehicle’s exterior, whether or not the officer has reasonable suspicion to support the extended detention. Id. at 649.

[¶ 26.] The court in Currency relied largely on the fact that the amount of time taken to perform , a sniff test was minimal and that the level of intrusion on the individual -was likewise de minimis. Id. The problem with this reasoning is that it detracts from the real question in Fourth Amendment analysis and instead concentrates primarily on the amount of time necessary to conduct a sniff test. However, the threshold question, before we address the amount of time necessary to effectuate the second stop, is whether the officer had an appropriate basis upon which to detain the citizen at that time. See e.g., Terry, 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906 (stating, “[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence”) (additional citations omitted); Kenyon, 2002 SD 111, ¶20, 651 N.W.2d at 275 (stating, “[t]he investigating officer is not constrained by the time it would have taken to issue the warnings if, in the interim, articulable facts lead him to a reasonable suspicion that other criminal activity is afoot ”) (emphasis supplied). In any situation falling within the Fourth Amendment, the officer is required to at least have reasonable suspicion to detain a citizen. Lacking such suspicion, the detention infringes on the individuars right to be free from seizure of his or her person. When a traffic stop is completed, the officer’s remaining duty is to release the individual from detention. When he fails to release the defendant, he creates a new stop for which he is required to have reasonable suspicion, regardless of whether the intrusion was minimal or egregious, or lengthy or short. Any other rule is unconstitutional.

[¶ 27.] The State’s request that this Court look primarily to the length and intrusiveness of the stop is not supported by the reasoning underlying the requirements of the Fourth Amendment. The proper inquiry is two-fold. First, the Court is to determine “whether the officer’s action was justified at its inception” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. The analysis requires that the officer have a “specific and articulable” suspicion before a stop is permissible. Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. The intrusion must be temporary and last no longer than necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983). Furthermore, the methods used must be the least intrusive means available to the officer to either verify or dispel his or her reasonable suspicion. Id. These constitutional principles shatter the foundation of the State’s arguments.

[¶ 28.] Because Trooper Marquardt would have been constitutionally justified in the sniff test had he done it before the traffic stop was finished, the majority reasons that the requirement that an officer have reasonable suspicion to continue the detention after the stop is completed is an artificial distinction. The majority errs in its analysis. The primary inquiry in the stop analysis is whether the officer was independently justified in the second intrusion, not whether the officer told the citizen that he or she was free to go. Simply put, the majority’s holding is that this Court should disregard Terry analysis whenever an officer chooses to detain a citizen by simply refusing to inform him or her that the initial valid stop is complete. Furthermore, accepting the holding in Currency leaves courts speculating on the length of time after a stop is over that an officer would be justified in detaining the motorist anew. This is a can of worms best left unopened. Trooper Marquardt’s initial stop of the Defendants was both subjectively and objectively over. There is nothing in our Fourth Amendment jurisprudence which indicates that once a stop is objectively over, the officer may re-seize the individual for a different purpose without reasonable suspicion.

[¶ 29.] Fourth Amendment inquiries require the Court to look at the totality of the circumstances, but the presumption that no bright-line should be drawn lessens the constitutional protections and blurs the officer’s responsibilities when detaining a citizen. The cases upon which the majority relies for the proposition that a totality of the circumstances or balancing test applies to determine whether the second stop was constitutional are premised on the threshold finding that the officer had an articulable suspicion upon which to base the stop. For example, the majority cites United States v. Place for the proposition that a drug sniff is minimally intrusive and therefore not a “search” for purposes of the Fourth Amendment. 462 U.S. 696,103 S.Ct. 2687, 77 L.Ed.2d 110 (1983). This proposition is supported by Place but the level of intrusiveness of the sniff search is not the issue here, for the question revolves around whether the second detention, not the sniff search itself, was constitutionally permissible. The Court in Place was very pointed in its discussion of seizures, stating, “some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of the crime.” Place, 462 U.S. at 706, 103 5.Ct. at 2644, 77 L.Ed.2d at 120 (emphasis supplied). Thus, even in acknowledging that the drug sniff itself was not a “search,” the Court was very clear in pointing out that for the seizure itself to be constitutional, there must be reasonable suspicion. But the State argues that “when weighed against the compelling governmental interest in this case, any additional momentary delay for the canine sniff was a de minimis intrusion on Defendants’ personal liberty.” Both the Eighth Circuit Court and the State misapprehend the law on stops. Before any balancing takes place, it is necessary that the officer had an objective basis upon which to make the stop.

[¶ 30.] The Fourth Amendment exists to protect the innocent as well as the guilty. Although the State’s interest in drug interdiction is compelling, to allow the end to justify the means violates this Court’s duty to ensure that drug interdiction comports with constitutional limitations on the government’s ability to intrude on a citizen. We should affirm.

AMUNDSON, Retired Justice

(dissenting).

[¶ 31.] I join in Justice Sabers’ dissent for the reasons set forth in my dissents in State v. Kenyon, 2002 SD 111, 651 N.W.2d 269; State v. Hodges, 2001 SD 93, 631 N.W.2d 206; and State v. Vento, 1999 SD 158, 604 N.W.2d 468.

      . A Terry analysis may be of limited assistance in the resolution of the Fourth Amendment issue now before us. As the Eighth Circuit Court of Appeals reasoned in United States v. $404,905 in U.S. Currency, 182 F.3d 643 (8thCir.1999), Terry stops are properly done where the officers detain persons with only reasonable suspicion that criminal activity is afoot. However, the Court concluded that a traffic stop is not investigative; it is a form of arrest based upon probable cause that a penal law has been violated, generally by a violation committed in the presence of the arresting officer. Id. at 648. The Court concluded:
      Applying the reasoning of Berkemer v. McCarty, [468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)] and Knowles v. Iowa, [525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998)] to the issue of unreasonable detention during a traffic stop, we believe the Supreme Court would not closely examine the time it takes a traffic officer to complete the traffic stop itself, consistent with the discretion given arresting officers in other contexts. But once the officer decides to let a routine traffic offender depart with a ticket, a warning or an all clear — a point in time determined, like other Fourth Amendment inquiries, by objective indicia of an officer's intent — then the Fourth Amendment applies to limit any subsequent detention or search.

        Id. at 648.

      . Although the objective facts before Trooper Marquardt may not rise to Terry’s reasonable suspicion standard that illegal drugs were in the car, Marquardt’s decision to have Tess sniff the Defendant's vehicle was not based solely upon whim or caprice. Marquardt testified that as a veteran Trooper and based upon his prior experience, Denver Colorado was a major source for drugs at the Sturgis Motorcycle Rally." He was also aware there was an increased amount of drug usage at the Sturgis Rally.

      . Other cases have recognized and upheld similar intrusions made in the absence of a particularized suspicion. See Hodges, 2001 SD 93, ¶ 17, 631 N.W.2d at 211 (officer had right to order passenger to remain in vehicle stopped for traffic violation, even though no reasonable suspicion existed as to passenger at the time); Mimms, 434 U.S. at 111, 98 S.Ct. at 333, 54 L.Ed.2d at 333 (1977) (officer may order driver out of vehicle during traffic stop); United States v. Martinez-Fuerte, 428 U.S. 543, 562, 96 S.Ct. 3074, 3085, 49 L.Ed.2d 1116 (1976) (suspicion less Border Patrol checkpoint for detecting illegal aliens was valid). As the Court in Martinez-Fuerte noted, while some quantum of individualized suspicion is usually a prerequisite to a constitutional search and seizure, "the Fourth Amendment imposes no irreducible requirement of such suspicion.” 428 U.S. at 561, 96 S.Ct. at 3084. In that case, the United States Supreme Court determined the government’s interest in detecting illegal aliens outweighed the motorists' privacy interests. The Court relied, in part, on the fact that "one's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence." Id. (citations omitted). The Court held the stopping of vehicles and questioning of their occupants was minimally intrusive and could be done in the absence of individualized suspicion. Id.

      .At oral argument there was a lengthy discussion between the State and Justices of this Court as to whether the State would attempt to expand today's holding into a justification for unlimited stops of motorists to search for drugs. Clearly, the stop of a motorist and lengthy detention while a drug dog is brought in from a substantial distance is not constitutionally reasonable. We limit our decision of today to the facts of this case and leave for the future whether other "what ifs” are constitutionally permissible under a totality of circumstances standard of constitutional review. Bright-line rules instead of a totality of circumstances-reasonableness standard are generally disfavored in Fourth Amendment analysis. Lamont, 2001 SD 92, ¶40, 631 N.W.2d at 617 (citations omitted).

      . That reasonable investigation includes making a request for driver's license, registration, and proof of insurance. An officer may also have the driver accompany him or her to the patrol car and make a computer check on automobile registration and outstanding warrants. United States v. Bloomfield, 40 F.3d 910, 915 (8thCir.1994).

      . See e.g., United States v. Holt, 229 F.3d 931, 935 (10thCir.2000) (rejecting the proposition of Currency that Teiry analysis is not applicable in such cases and stating that the Eighth Circuit's opinion had "little support and questionable analysis").


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2003 SD 15
    Timothy James DURAN, Plaintiff and Appellant, v. Cheryl Kay DURAN, Defendant and Appellee.
    No. 22405.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 13, 2003.
    Decided Feb. 12, 2003.

      Elbe M. Vandenberg, VandenBerg Law, Volga, South Dakota, Attorney for plaintiff and appellant.
    Richard L. Johnson, Sioux Falls, South Dakota, Attorney for defendant and appel-lee.
   ZINTER, Justice.

[¶ 1.] On March 2, 2001, Cheryl Duran and Timothy Duran entered into a Stipulation and Agreement for a divorce. The Stipulation and Agreement divided the parties’ property and debt. Most of the marital estate subject to division was invested in Enron Corp. stock, which was held in Timothy’s employer’s stock and savings plans (the Plans). Under the Agreement, Cheryl was to receive her share of the marital property from the Plans. Timothy also wished to satisfy his liability for the marital debt from the Plans. However, Timothy could not withdraw the stock without a significant tax penalty. Consequently, the parties agreed that Cheryl would withdraw $38,000 from the Plans, and she would then apply that money to Timothy’s share of the marital debt. A Judgment and Decree of divorce and a Qualified Domestic Relations Order (QDRO) were entered incorporating these agreements. However, between the time Timothy’s employer segregated the Plans assets for Cheryl and the time Timothy’s employer permitted Cheryl to make the withdrawal, the Enron Corp. stock suffered a precipitous decline in value. Cheryl subsequently refused to use her separate assets to pay Timothy’s $38,000 share of the marital debt. Cheryl also moved the trial court to require Timothy to make up the loss she suffered in the value of her property award. At the same time, Timothy moved the court to require Cheryl to pay his full $38,000 share of the marital debt. The trial court denied both requests. Instead, it required Timothy and Cheryl to each bear the respective losses they incurred from the decline in the value of the stock. Timothy appeals contending that the Stipulation and Agreement, and the QDRO, required Cheryl to absorb any loss in value of the stock that was allocated to her by Timothy’s employer for satisfaction of his share of the marital debt. We disagree and affirm the trial court.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Timothy and Cheryl were divorced by judgment entered on March 14, 2001. A March 2, 2001 Stipulation and Agreement was incorporated into the Judgment and Decree. The Stipulation and Agreement provided for Cheryl’s property award and Timothy’s satisfaction of marital debt. It provided in relevant part:

[T]he term “qualified domestic relations order” means a domestic relations order— which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and ... the term "domestic relations order” means any judgment, decree, or order (including approval of a property settlement agreement) which — relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and is made pursuant to a State domestic relations law.
1. [Timothy] and [Cheryl] agree that [Cheryl] shall receive the sum of $206,280.17 from [Timothy’s] stock plans and savings plans. The parties agree that a Qualified Domestic Relations Order shall be entered by the Court which would require the transfer of said amount in to the ownership of [Cheryl].
The parties agree that [Cheryl] shall also withdraw an additional amount in the sum of $38,000 from [Timothy’s] stock plans and savings plans. The funds shall be applied to the following debts and is considered payment of said debts by [Timothy] for his share of said debts:
Savings loan with Enron
Ready Cash account at Wells Fargo
IRS tax bill
AVCO loan
Mellon Mortgage — second mortgage Loan on the 1987 Mercury Sable

(emphasis added.)

[¶ 3.] Pursuant to this Stipulation and Agreement, a Judgment and a QDRO were filed. The QDRO, dated March 26, 2001, followed the parties’ agreement, but it lumped together Cheryl’s property award ($206,280) and Timothy’s debt obligation ($38,000) for a total of $244,280. It then ordered a segregation of this amount (one-half from each of Timothy’s Plans) into a separate account in Cheryl’s name. The QDRO provided:

[Cheryl] is awarded the following interest as [her] sole and separate property:
The sum of One Hundred Twenty Two Thousand, One Hundred Forty Dollars ($122,140.00) of Enron Corp. Employee Savings Plan and the sum of One Hundred Twenty Two Thousand, One Hun-
dred Forty Dollars ($122,140.00) of the Enron Corp. Employee Stock Ownership Plan is hereby ordered assigned and transferred into and segregated into a separate account by the Plan Administrator of the Savings Plan and from ESOP solely in the name of [Cheryl] for [Cheryl’s] sole and exclusive benefit, together with all earnings thereon from the date the separate account is established for [Cheryl] to the valuation date preceding the date of distribution to [Cheryl].

(emphasis added.)

[¶4.] Thus, under the terms of the QDRO and the parties’ Stipulation, Cheryl was to receive a total of $244,280 in Plan assets ($206,280 for her property award, plus $38,000 to satisfy Timothy’s marital debt). However, for reasons not material to this case, Cheryl was not permitted to withdraw those assets from the Plans until May 24 or 25, 2001. In that two month delay, the Enron Corp stock suffered a precipitous decline in value, and Cheryl only received $186,987.82. Because of this $57,292 decline in value, Cheryl refused to pay Timothy’s $38,000 in marital debt.

[¶ 5.] Timothy responded by filing a Motion to Enforce Terms of Stipulation and Agreement. He argued that because the assets had been segregated in Cheryl’s name, she should pay Timothy’s full share of the $38,000 in marital debt that she had agreed to pay for him from the Plans. Cheryl was also displeased with her loss, and she filed a Motion to Set Aside Portions of Judgment and Decree of Divorce, and the Stipulation and Agreement, or to grant her alternative relief. She argued that she should not incur losses from the decline in value of her property award and the assets available for Timothy’s debt obligation. After several hearings, the trial court denied both parties’ motions. The trial court construed the Stipulation and Agreement to require each party to bear the risk of loss for the decline in value of the stock. Under this ruling, Cheryl was required to bear the loss from the decline in value of her property award, and Timothy was required to bear the loss from the decline in value of the assets allocated to satisfy his share of the marital debt.

[¶ 6.] Timothy appeals the trial court’s order requiring him to incur that loss and satisfy his full $38,000 share of the marital debt: The sole issue on appeal is:

Whether the trial court erred in its construction of the parties’ Stipulation and Agreement and the QDRO, which construction required each party to bear their respective risk of loss from the decline in value of the assets allocated to satisfy their shares of marital property and debt.

STANDARD OF REVIEW

[¶ 7.] “Contractual stipulations in divorce proceedings are governed by the law of contracts.” Pesicka v. Pesicka 2000 SD 137, ¶ 6, 618 N.W.2d 725, 726 (citing Houser v. Houser, 535 N.W.2d 882, 884 (S.D.1995)). Because the interpretation of a contract is a question of law, we review it de novo. Id. (citing Hayes v. Northern Hills General Hosp., 1999 SD 28, ¶ 62, 590 N.W.2d 243, 254).

DECISION

[¶ 8.] Timothy raises two arguments on appeal. He first argues that the trial court erred in interpreting the parties’ Stipulation and Agreement to require him to bear the risk of the loss in value of the $38,000 in stock that had been allocated for his share of the marital debt. Timothy also argues that under the terms of the QDRO, the risk of loss transferred to Cheryl as soon as the account was segregated by the employer. Timothy therefore concludes that the trial court had no authority to modify the QDRO. We disagree with both arguments.

Interpretation Of The Agreement

[¶ 9.] In interpreting the parties’ agreement, it is well-settled that we “must seek to ascertain and give effect to the intentions of the parties.” Pesicka, 2000 SD 137, ¶ 9, 618 N.W.2d at 727 (quoting Singpiel v. Morris, 1998 SD 86, ¶ 10, 582 N.W.2d 715, 718). The parties’ intentions are determined by “look[ing] to the language the parties used.” Id. “If that intention is clearly manifested by the language of the [Stipulation and Agreement], it is the duty of the court to enforce it.” Id. (citing In Re Estate of Stevenson, 2000 SD 24, ¶ 14, 605 N.W.2d 818, 821). However, if the agreement is ambiguous, the rules of construction apply. Pesicka. 2000 SD 137, ¶ 6, 618 N.W.2d at 726 (citing Alverson v. Northwestern Nat. Cas. Co., 1997 SD 9, ¶ 8, 559 N.W.2d 234, 235). Here, the Stipulation was silent on the allocation of gains or losses from market fluctuations.

[¶ 10.] Therefore, the trial court was required to interpret the parties’ agreement. It reasoned:

I think she bears that risk [for her property award] equally with him as to the stock market decline ... But as this $38,000, it looks to me like the spirit and intent of this, was that she was just going to withdraw $38,000 of his money to pay his share of the marital debts. Now, he bears the burden, also, for a decline in the stock market, just like she does. And I don’t see if she was doing this, and if the parties agreed to this just as a tool or a facility, to accomplish him paying his share of the marital debt without having to incur a penalty on his retirement withdrawal, and I don’t know if it is fair to burden her with a decline in the stock market as to that amount, because it was really his money.

We agree with the trial court’s reasoning.

[¶ 11.] The Stipulation and Agreement clearly stated that Cheryl was to receive two amounts: $206,280.17 for her share of the marital property; and $88,000 for Timothy’s share of the marital debts. This emphasized language of the agreement indicates that the parties intended that Timothy was responsible for a $38,000 share of marital debt. To facilitate that payment of that obligation, and to avoid adverse tax consequences for Timothy, the parties agreed that Cheryl would withdraw the $88,000 share by use of a QDRO. There is, however, no language in the agreement that suggests Timothy’s obligation for marital debt would be relieved or reduced if the marital assets declined in value before they could be withdrawn from the Plans. Therefore, Timothy remained responsible to ensure that his $38,000 obligation for marital debt was satisfied. We agree with the trial court that if the stock necessary to realize $38,000 for Timothy’s share of the marital debt declined in value before it could be withdrawn, Timothy bore the risk of that loss, just as Cheryl bore the risk of loss for the decline in value of her property award.

[¶ 12.] This conclusion is warranted because the value of marital property and debt is not absolutely fixed to a certain point in time. In divorce proceedings, the date of valuation of the marital estate is generally the date of the granting of the divorce. However, a different date may be used if special circumstances are present. Geraets v. Geraets, 1996 SD 119, ¶¶8-9, 554 N.W.2d 198, 200. See also Miller v. Miller, 83 S.D. 227, 232, 157 N.W.2d 537, 540 (1968). This case presents such special circumstances. The clear language of the parties’ Stipulation and Agreement required Timothy to satisfy $38,000 in marital debt. However, he chose to satisfy that obligation by use of Plan assets and a QDRO. When the value of the stock in the Plans declined during the two months necessary to distribute the stock, neither Timothy nor Cheryl received the full amount of money that they originally contemplated at the time of the granting of the divorce. Thus, the trial court acted within its discretion in essentially adjusting the valuations so that Cheryl would not incur sole responsibility for the risk of loss arising from a decline in value of the assets Timothy desired to use to satisfy his marital debt.

Qualified Domestic Relations Order

[¶ 13.] Timothy also argues that the language of the QDRO mandated that Cheryl should bear the risk of loss from the decline of the value of the stock allocated to marital debt. He further argues that the trial court was without power to interpret the QDRO differently. Timothy specifically contends that as soon as the stock was segregated by the employer, each separate account was subject to its own “earnings and losses.” We find no support for these arguments in the QDRO.

[¶ 14.] First, while the express language of the QDRO does contain language allocating “interest and earnings ” to each parties’ separate accounts, the QDRO does not contain language allocating any losses or decreases in the value of stock. Although a letter from the employer indicated that employer intended to allocate both gains and losses, that letter is not a part of the QDRO or the agreement of the parties. Therefore, it was not binding on the circuit court. We see nothing in the language of the QDRO that required Cheryl to bear the risk of loss of value in the assets Timothy allocated to satisfy his marital debt.

[¶ 15.] Furthermore, even if the original language of the QDRO suggested such a result, courts do have the power and authority to interpret and construe the terms of a QDRO or pension in accordance with the parties’ stipulations. Jackson v. Jackson, 2002 OK 25, ¶ 18, 45 P.3d 418, 427-28 (holding that the trial court had the authority to interpret the divorce decree and revise a QDRO even after two previous QDROs were entered). Moreover, in Washington v. Washington, 2000 WI 47, ¶ 4, 234 Wis.2d 689, 692, 611 N.W.2d 261, 263, the Wisconsin Supreme Court held that a “circuit court may construe the final division of property in a divorce judgment” and allocate pension appreciation and interest [that accrues between the divorce and the distribution] “when the divorce judgment is silent about the allocation of appreciation.” Timothy’s case is no different except for the fact that it involves an allocation of pre-distribution losses instead of gains. We conclude that the trial court was well within its power, authority and discretion in interpreting the provisions of the Stipulation and the QDRO such that both parties bore their respective risk of market losses.

[¶ 16.] Affirmed.

[¶ 17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

      . QDROs are a part of the Employment Retirement Income Security Act (ERISA). See 29 USC § 1001 et seq. They facilitate the distribution of pensions and employee benefits that are subject to its provisions. Under 29 USC § 1056(3)(B):

      . ''Interpretation” and "construction” are different than "modification” of the original stipulation and judgment awarding property. "It is the settled law of this state that the division of property pursuant to a divorce decree is not subject to modification.” Sjo-mettng v. Sjomeling, 472 N.W.2d 487, 489 (S.D.1991) (citations omitted). "Absent fraud or some other reason which would apply to any judgment, a divorce decree which incorporates a property settlement agreement is a final and conclusive adjudication and is not subject to later modification.” Beermann v. Beermann, 526 N.W.2d 127, 129 (S.D.1995) (citing Jeffries v. Jeffries, 434 N.W.2d 585, 588 (S.D.1989)) (citing Blare v. Blare, 302 N.W.2d 787, 790 (S.D.1981)).


author: FLEMMER, Circuit Judge.

text:
    2003 SD 16
    STATE of South Dakota, ex rel., Megan J. BENNETT, Plaintiff and Appellee, v. Thomas G. PETERSON, Defendant and Appellant.
    No. 22330.
    Supreme Court of South Dakota.
    Considered on Briefs on Oct. 8, 2002.
    Decided Feb. 12, 2003.

      Lawrence E. Long, Attorney General, Michelle K. Percy, Special Assistant Attorney General, Lead, South Dakota, Attorneys for plaintiff and appellee.
    Lee C. “Kit” McCahren, Olinger, Lo-vald, Robbennolt, McCahren & Reimers, Pierre, South Dakota, Attorneys for defendant and appellant.
   FLEMMER, Circuit Judge.

[¶ 1.] Thomas Peterson (Peterson) appeals a decision by the circuit court determining he must pay child support and arrearages to Megan Bennett (Bennett) pursuant to SDCL 25-8-5. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] In February 1987 Bennett and Peterson met at the Dark Horse Saloon in Belle Fourche, South Dakota and engaged in sexual relations. As a result' of this encounter, Bennett became pregnant and on November 7, 1987, gave birth to a boy, J.M.B.

[¶ 3.] At the time Bennett engaged in sexual relations with Peterson, she was dating another man, Paul Boucher. Bennett believed that Boucher was the father of J.M.B. In 1988 a blood test indicated that Boucher was not the father of J.M.B. At this point, Bennett believed J.M.B.’s father was Peterson.

[¶ 4.] In early 1992 Bennett retained an attorney to pursue the adoption of J.M.B. by her husband at the time, Tim Rosencranz. In March 1992 a meeting was held with Bennett, her attorney, and Peterson for the intended purpose of informing him that J.M.B. was his son and attempting to gain his consent to the stepparent adoption.

[¶ 5.] At the meeting, Bennett told Peterson J.M.B. was his son. After that meeting concluded, the two went to a restaurant and discussed J.M.B. At that time, Peterson acknowledged a resemblance between himself and J.M.B.

[¶ 6.] Shortly thereafter, Bennett began to have second thoughts about the adoption and decided to put the matter on hold. Nevertheless, Bennett’s attorney, Brad Schreiber, advised Peterson’s attorney that a blood test should be done in the event Bennett desired to pursue the adoption in the future. However, Peterson’s attorney, Randy Connelly, advised Bennett that Peterson “was not interested in taking a blood test anymore due to the fact that he does not want to know if he is the father or not,” and that Peterson would not challenge the adoption in any way.

[¶ 7.] The adoption never occurred and no documents were sent to Peterson concerning the adoption proceedings or asking him to consent to the adoption. Bennett had no further contact with Peterson until service of the summons and complaint in this action in February 2000. Bennett testified she did not attempt to contact Peterson after 1992 because the “ball was in his [Peterson’s] court” and she did not want to disrupt any personal relationships that Peterson may have been engaged in.

[¶ 8.] In her complaint for paternity Bennett requested child support and ar-rearages. Testing in November of 2000 established a 99.99 percent probability Peterson was the father of J.M.B. On October 4, 2001, the circuit court entered a judgment determining that Peterson was J.M.B’s father and ordering him to pay interim child support.

[¶ 9.] A subsequent hearing was set for December 3, 2001. It was scheduled for the purpose of establishing permanent monthly child support and determining the total amount of arrearages. Neither Peterson nor his counsel appeared. Nonetheless, the State proceeded and submitted a sworn statement indicating Peterson’s known earnings. Accordingly, the court entered judgment requiring Peterson to pay $478 in child support per month and $47,244 in arrearages.

That the Defendant be required to pay child support arrearages from January 1994 through September 30, 2001 in the amount of $44,454 which is computed at $478 per month. Additionally, the Defendant must pay interim support in the amount of $750 for the period of October 1, 2001 through December 31, 2001 which is computed at $250 per month. That as provided by SDCL 25-7-7.4, the above amounts are reduced to a Judgment in the amount of $45,204 plus interest, against Defendant. Judgment is also hereby awarded against Defendant for attorney fees in the amount of $1,700, service of process costs in the amount of $40 and paternity testing in the amount of $300. Defendant is ordered to make payments on said Judgment, the first payment being due and payable on January 1, 2002, with a like payment being due and payable each month thereafter until the total Judgment of $47,244 is paid in full.

[¶ 10.] Peterson filed a motion for reconsideration of that judgment, which the circuit court denied. However, Bennett agreed to reduce the monthly payments to $125 per month and the arrearages to $29,850. Peterson appeals.

ISSUE

[¶ 11.] Whether the trial court erred when it ruled Bennett was entitled to child support arrearages pursuant to SDCL 25-8-5 and that the request for arrearages was not barred based on laches, equitable estoppel, or waiver.

[¶ 12.] We hold the trial court did not err.

STANDARD OF REVIEW

[¶ 13.] Mixed questions of law and fact that require the reviewing court to apply a legal standard are reviewable de novo. Phipps Brothers, Inc. v. Nelson’s Oil & Gas, Inc., 508 N.W.2d 885, 888 (S.D. 1993); Crouse v. Crouse, 1996 SD 95, ¶ 6, 552 N.W.2d 413, 415. The question of whether laches is an available defense in a child support case is an issue of law. In re Loomis, 1998 SD 113, ¶ 7, 587 N.W.2d 427, 429; Fisco v. Department of Human Services, 659 A.2d 274, 275 (Me.1995). Whether equitable estoppel will deny Bennett the right to bring an action for past due child support is fully reviewable as a mixed question of law and fact. Crouse, 1996 SD 95, ¶ 14, 552 N.W.2d at 417.

ANALYSIS AND DECISION

[¶ 14.] Bennett claims she is entitled to child support arrearages for a period of six years. The statutory basis she uses to support her claim is contained in SDCL 250-8-5. That statute provides:

The mother may recover from the father a reasonable share of the necessary support of a child born out of wedlock. In the absence of a previous demand in writing served personally or by registered or certified letter addressed to the father at his last known residence, not more than six years support furnished before bringing an action may be recovered from the father.

[¶ 15.] This statute operates to limit the time when the father of a child born out of wedlock can be required to pay child support. In this case, based upon the above statute, Bennett is requesting support six years prior to March 20, 2000, the date Peterson was personally served with the order to show cause, summons and complaint for paternity.

[¶ 16.] Peterson mistakenly relies on this Court’s decision In re Loomis, 1998 SD 113, 587 N.W.2d 427, as support for his position on appeal. In that case, Loomis also had a brief sexual encounter with a woman that led to her pregnancy. Id. at ¶ 2. However, the woman intentionally hid the pregnancy and resulting birth from Loomis for the first fourteen years of the baby’s life, even though both lived in Gillette, Wyoming for approximately three years after the birth. Id. In that situation, we held that based on the unique facts presented the equitable defense of laches barred the recovery of retroactive child support. Id. at ¶¶ 17-18.

[¶ 17.] In order for laches to bar recovery in this case, Peterson must show that Bennett, “1) had full knowledge of the facts upon which the action was based, 2) regardless of this knowledge, she engaged in an unreasonable delay before commencing the suit, and 3) that allowing her to maintain the action would prejudice other parties.” Id. at ¶ 16, (citing Conway v. Conway, 487 N.W.2d 21, 24 (S.D.1992)). Arguably, the first two elements of this defense are satisfied. Since 1988, Bennett had knowledge that her child was probably Peterson’s son. She did not inform Peterson of this until 1992 and did not commence this action until eight years later. Although Bennett waited twelve years to bring this action, Peterson was aware of his potential paternity after only four years. Considering this fact, the trial court did not consider this to be an unreasonable delay before commencing suit, and neither do we. Thus, the doctrine of lach-es does not prevent recovery.

[¶ 18.] This case is more comparable to Bonde v. Boland, 2001 SD 98, 631 N.W.2d 924. Similarly, the father in Bonde was advised that he was the parent of the child born out of wedlock. Id. at ¶ 2. At that time, the father was prepared to terminate his parental rights so that his child could be adopted. Id. However, as in this case, the adoption was never completed. Id. at ¶ 3. The father in Bonde claimed that “he missed the first three years and nine months of his child’s life due to [mother’s] misrepresentations.” Id. at ¶ 20. He also claimed that he proceeded on with his life not knowing that he had a child to support. Id. We determined this distinguishable from Loomis as Bonde was informed of the pregnancy early on; he knew of the birth; he knew of the adoption attempt; he believed he was the father; and, the relevant time period was significantly shorter. Id. at ¶ 14. Accordingly, the equitable defense of laches did not apply to bar mother from receiving child support arrearages.

[¶ 19.] In addition, Peterson did not establish that he suffered any prejudice by Bennett’s actions. Consequently, no evidence exists in the record indicating any hardship created by the support arrearag-es. Unlike Loomis, there is no evidence Peterson has any other support obligations or has moved on to start a new family. If Peterson had wanted a relationship with his child he was provided that opportunity as early as 1992. Again, the record reflects no attempt on his behalf to stay in contact with his child. Therefore, maintaining this action does not prejudice any other parties nor does this consideration bar child support arrearages.

[¶ 20.] Peterson’s attempt to raise equitable estoppel as a defense is equally unpersuasive. At the time the child was born, Bennett believed that Boucher was actually the father. It was not until the 1988 blood test that Bennett realized this was not the case. From 1988 until 1992, Bennett knew Peterson was most likely the father of her child and did not convey that information to him. She also knew Peterson had no other way of obtaining this information and could not fulfill his role as a father without that information. Arguably, this could establish equitable estoppel but for the fact Peterson failed to demonstrate how his reliance on the misrepresentation or concealment created prejudice or injury. The concealment in this case ended in 1992. After that time Peterson’s course of action did not change. He made no attempts to contact the child or establish a relationship. The record is devoid of any evidence that Peterson moved on with his life by obligating himself to another family or evidence that imposing this obligation would create hardship. Thus, the defense of equitable estoppel has not been established and does not operate to bar support ar-rearages.

[¶21.] Other jurisdictions addressing these issues have recognized the difficulty of these situations. In the case of Rodgers v. Woodin, the Superior Court of Pennsylvania opined that:

There can be no laches involved as to the rights of children in such circumstances [paternity actions]. As with children born in wedlock, the right to support cannot be bargained away by the parents nor can the failure to ask for support at a given moment preclude that right at a subsequent time, no matter how much time has intervened.

448 Pa.Super. 598, 672 A.2d 814, 818 (1996)(emphasis added). The Supreme Judicial Court of Maine has ruled, based on a child support arrearage’s law much like ours, that: “We will not allow such a carefully crafted policy to be defeated by the invocation of equitable defenses in circumstances where the Department has not affirmatively misled the father to believe he would bear no responsibility.” Bell, 711 A.2d at 1295-1296.

[¶ 22.] Furthermore, at least one justice of this Court has articulated that “the right to support belongs to the children.” Loomis, 1998 SD 118, at ¶ 31, 587 N.W.2d at 432 (J. Konenkamp, dissenting) (citing Weegar v. Bakeberg, 527 N.W.2d 676, 679 (S.D.1995)). Additionally, “parents may not through misconduct or mistake prejudice their children’s right to support.” Id. at ¶ 32 (citing Stach v. Stack, 369 N.W.2d 132, 135-136 (S.D.1985)(holding father was required to make child support payments despite mother’s noncompliance with the court’s order to pay father his share of equity in marital home). These comments are constant reminders of what our statutes are designed to protect and epitomize the public policy contained in this area of law.

[¶23.] Although the initial reason for Bennett to contact Peterson in 1992 was to obtain consent for a step-parent adoption, that adoption was never completed and Peterson was never advised that his parental rights and obligations were terminated. He has also failed to establish that Bennett, at any time, specifically relinquished any right to collect support for their child. Peterson knew since 1992 that a possibility existed that he had a child he was obligated to support but chose to take no action.

[¶ 24.] Peterson has failed to establish any defense that would relieve him from his child support arrearages. As the facts in this case can clearly be distinguished from Loomis, the result here is governed by the decision in Bonde. The trial court did not err in ruling that Bennett was entitled to child support arrearages.

[¶ 25.] The decision of the trial court is affirmed.

[¶ 26.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, concur.

[¶ 27.] FLEMMER, Circuit Judge, for AMUNDSON, Retired Justice, disqualified.

[¶ 28.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . On December 7, 2001 the circuit court entered a judgment and order for support stating:

      . "Equitable estoppel is based on fair dealing, good faith and prejudice." D.G. v. D.M.K., 1996 SD 144, ¶ 37, 557 N.W.2d 235, 242. "Four factors must be met in order for equitable estoppel to bar recovery: (1) a false representation or a concealment of material facts; (2) the victim must have been without knowledge of the real facts; (3) the representation or concealment must have been made with the intent that it be acted on; and (4) the victim must have relied on the misrepresentation or concealment creating prejudice or injury.” Loomis, 1998 SD 113, ¶ 17, 587 N.W.2d at 430 (quoting Crouse, 1996 SD 95, ath 16, 552 N.W.2d at 417).

      . Peterson also raised the defense of waiver. "Waiver is the voluntary and knowing relinquishment of a right and may be shown by a course of conduct signifying a purpose not to stand on a right, and leading, by a reasonable inference, to the conclusion that the right in question will not be insisted upon.” Department of Human Services v. Bell, 711 A.2d 1292, 1294-95 (Me. 1998) (quoting Department of Human Services v. Brennick, 597 A.2d 933, 935 (Me.1991). "Mere delay in the bringing of an action until near the end of a limitations period does not support a reasonable inference that the party has voluntarily and knowingly relinquished the right to act.” Id. This language alone makes it clear that waiver is not a viable defense and we need not address it at length.


author: CARTER, Justice.

text:
    Willis M. HANSEN, Dennis B. Hansen, State Bank of Lawler, and Precision of New Hampton, Inc., Appellees, v. ANDERSON, WILMARTH & VAN DER MAATEN, a Partnership, Calvin R. Anderson, Lee E. Wilmarth, and Andrew F. Van Der Maaten, Appellants, v. Michael Kennedy, Third-Party Defendant.
    No. 01-1447.
    Supreme Court of Iowa.
    Jan. 28, 2003.
    Rehearing Denied March 14, 2003.
    Patrick M. Roby and Robert M. Hogg of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellants.
    Edward J. Gallagher, Jr. and Timothy C. Boiler of Gallagher, Langlas & Gallagher, Waterloo, for appellees.
   CARTER, Justice.

The law firm of Anderson, Wilmarth, and Van Der Maaten and Calvin R. Anderson, Lee E. Wilmarth, and Andrew F. Van Der Maaten, members thereof, appeal from a judgment for money damages against them in a legal malpractice action brought by plaintiffs, Willis M. Hansen, Dennis B. Hansen, State Bank of Lawler, and Precision of New Hampton, Inc. The Hansens have an ownership interest in Precision of New Hampton, Inc. and State Bank of Lawler, and for this reason, the plaintiffs will be referred to collectively herein as the Hansen interests. The Hansen interests alleged that the Anderson firm was negligent in handling a business-asset sale to the Hansen interests and was also negligent in the defense of a business tort action against the Hansen interests by the owners of the business whose assets were transferred in the asset sale.

Following a bench trial, the district court found that the Anderson firm was not negligent in its handling of the tort action against the Hansen interests but was negligent in its handling of the asset sale. The court found that the negligent handling of the asset sale was the precipitating cause of the subsequent tort action in which substantial judgments were rendered against the Hansen interests. Judgment was rendered against the Anderson firm and its members for the amount of the tort recovery exacted from the Hansen interests plus interest, costs, and attorney fees. On appeal the Anderson firm urges that its negligence, if any, in regard to the asset sale was not a cause in fact or a legal cause of the tort judgments against the Hansen interests. Because we agree with that contention, we reverse the judgment of the district court.

Many of the facts surrounding the current litigation are set forth in two prior opinions of this court, Hansen v. Anderson, Wilmarth & Van Der Maaten, 630 N.W.2d 818 (Iowa 2001), and Ezzone v. Riccardi, 525 N.W.2d 388 (Iowa 1994). As the evidence in the present case indicates, prior to April 21, 1987, the Hansen interests had arranged for Precision of New Hampton, Inc. to purchase the assets of a corporation known as Precision Torque Converters of Iowa. The Hansen interests were represented by the Anderson firm with respect to this transaction.

The preliminary sale documents (prepared by the Anderson firm) required the selling party to provide proof of corporate authority to make the sale. The person acting on the corporation’s behalf was Ronald Riccardi. The attorney representing the seller provided documents which showed that Riccardi was the sole member of the board of directors of the selling corporation, was both president and secretary-treasurer of the corporation, and was the person authorized to issue bills of sale and deeds. Riccardi’s election as an officer of the corporation was purportedly by his own action as the sole director of the corporation. The Anderson firm accepted this documentation as establishing Riccar-di’s authority to complete the sale on behalf of the selling corporation. As later litigation in Ezzone established, the documents the selling corporation’s attorney provided were false. In fact, Riccardi was never a director or shareholder of the selling corporation and had not been designated as a corporate officer by those persons who were.

The sale price for the assets of Precision Torque Converters of Iowa was $250,000. Because the buyer had advanced certain funds to satisfy creditors’ claims against the selling corporation, the settlement check was in the amount of $231,481.81. That check was made payable to Precision Torque Converters of Iowa. It was never negotiated. In lieu of negotiating the settlement check, Riccardi prevailed on the Hansen interests to transfer the amount of that check directly to him plus an additional $18,526.19 that was withdrawn from the account of Precision Torque Converters of Iowa at the State Bank of Lawler. The Anderson firm had no knowledge of these payments to Riccardi.

In the present litigation, the Hansen interests have alleged that the Anderson firm was negligent in accepting the documentation provided with respect to Riccar-di’s authority to act for the corporation and also for not requiring a showing of shareholder approval with respect to the transaction, which was required by Iowa Code section 496A.76(3) (1985). The district court found that the Anderson firm was negligent in both of those respects. It further found that, “but for the negligence of the Defendants, the asset sale would not have been completed and, but for the transfer of the assets based on Riccardi’s false assertion of authority to sell, the Plaintiffs would not have been sued and would not have suffered the damages claimed.” Other facts and circumstances that bear on the issues before us will be considered in connection with our discussion of the legal issues presented.

I. The Ezzone and LaRosa Litigation.

In prior litigation, Harold Ezzone was awarded $346,500 in actual and punitive damages against the Hansen interests. In the same litigation, Patricia LaRosa was awarded $447,000 in actual and punitive damages against the Hansen interests. The jury in that litigation expressly found in a special verdict that Ezzone and LaRo-sa each owned fifty percent of Precision Torque Converters of Iowa and that Ric-cardi had no ownership interest in the corporation.

Ezzone and LaRosa’s claims, as submitted to the jury, were based on three theories of recovery: tortious interference with a contract, conversion of assets, and breach of a confidential relationship. The tortious-interference claims against the Hansen interests were based on their own alleged actions. The conversion and breach-of-confidential-relationship claims were based on Riccardi’s acts as part of a conspiracy with the Hansen interests.

None of the claims submitted to the jury were based in whole or in part on the April 21, 1987 asset transfer. Harold Ezzone testified at the trial of the action against the Hansen interests that it was in the best interest of Precision Torque Converters of Iowa to sell its assets and that the asking price was properly fixed at $250,000. The problem from the standpoint of the selling corporation was not the asset sale but what was done with the purchase money that was supposed to have been paid to the corporation. Counsel for Ezzone and LaRosa expressly disclaimed on the record, prior to submission of the case to the jury, any damage claims based on the asset sale. The conversion claim that remained in the case was for conversion of the business entity, and the jury found that this conversion had occurred on January 30, 1987, more than two months prior to the asset sale.

The jury returned separate verdicts for actual and punitive damages on each of the three theories of recovery. On appeal this court in Ezzone, 525 N.W.2d at 392, found the damages awarded on the tortious-in-terference claim and the conversion claim duplicated the damages awarded on the conspiracy-to-breaeh-a-confidential-rela-tionship claim. Consequently, the only judgment entered against the Hansen interests was on the latter claim.

II. The Causation Issue.

The Anderson firm argues that their actions in permitting the asset sale to go forth were neither a cause in fact nor a legal cause of the judgments subsequently entered against the Hansen interests in the Ezzone and LaRosa litigation. We have recognized that,

under any definition of causation, this element has two components: (1) the defendant’s conduct must have in fact caused the plaintiffs damages (generally a factual inquiry) and (2) the policy of the law must require the defendant to be legally responsible for the injury (generally a legal question).

Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996).

The Anderson firm argues that, based on the theory on which recovery was allowed, the asset sale provided no basis for the judgments nor any of the damages included therein. The Hansen interests urge that the district court properly found the asset sale to be a legal cause of the judgments rendered in the Ezzone and LaRosa litigation because, they urge, this was a substantial factor in the injury to the corporation, and absent the asset sale, no litigation would have occurred.

In determining whether the asset sale was a legal cause of the judgments rendered against the Hansen interests in the prior litigation, we must be faithful to the legal theory on which the judgments were based. See North Iowa State Bank v. Allied Mut. Ins. Co., 471 N.W.2d 824, 828 (Iowa 1991) (legal consequences of judgment for purposes of subsequent litigation are tied to the legal theory on which the judgment was based). The recovery rendered against the Hansen interests was based on the theory that they aided and abetted Riccardi in a breach of confidential relationship involving Ezzone and LaRosa, including claims for injury allegedly sustained both prior to the asset sale and following the asset sale that were not related thereto. As a result, it is manifest that the asset sale was not a cause in fact of all of the damage claims that were submitted to the jury under this theory. This circumstance would require a reversal of the judgment even if some of the injury sustained by the Hansen interests was the result of the asset sale. Our inquiry convinces us, however, that there is no basis in fact to conclude that any portion of the judgments visited against the Hansen interests was brought about as the result of the Anderson firm’s handling of the asset sale.

The following pertinent rule of adequate causal relation is contained in the Restatement (Second) of Torts:

Relation of negligence problem to cause problem. The conditions which are necessary to make the act negligent in respect to the harm of which the other complains ... may be summarized as follows:
The actor’s conduct, to be negligent toward another, must involve an unreasonable risk of:
(1) causing harm to a class of persons of which the other is a member and
(2) subjecting the other to the hazard from which the harm results.

Restatement (Second) of Torts § 430 cmt. a, at 426-27 (1965). Comment c of this Restatement section provides:

Harm may be sustained as a consequence of conduct which is negligent only because, and in so far as, it subjects another to some particular hazard. But the harm may result in some other manner than through the other’s exposure to this hazard. If so, there can be no liability even though in all other respects the manner in which the harm is brought about is such as would make the actor liable. This follows from the rule stated in § 281, Comment e, which states that where the negligence of the act consists in its recognizable tendency to subject another to a particular hazard, the actor cannot be subject to liability for any harm occurring otherwise than by the other’s exposure to that hazard.

Restatement (Second) of Torts § 430 cmt. c, at 428 (1965).

We recognize the role of particular hazards in defining legal cause in Virden v. Betts & Beer Construction Co., 656 N.W.2d 805, 808 (Iowa 2003) (also decided this day). In that case, we hold that the improper installation of a structural member in a building by a contractor was not a legal cause of injury sustained by a maintenance worker for the building’s owner when he attempted to replace the member after it became dislocated. A similar application of the particular hazard limitation on legal cause was applied in Barnes v. Gulf Power Co., 517 So.2d 717, 723 (Fla. Dist.Ct.App.1987). The court in that case held that a power company’s negligent maintenance of its electrical lines was not a legal cause of a criminal assault sustained by a telephone company employee who was repairing damage to telephone lines caused by the downed power lines.

In applying the foregoing principles to the facts of the present litigation, we are convinced that an act which merely places persons in the position where they sustain injury from an unrelated event is not for that reason a legal cause of the injury. In the present case, the hazard to which the Hansen interests were exposed as a consequence of the Anderson firm’s failure to challenge Riccardi’s authority to complete the asset sale was not the hazard that produced the judgment against them in the Ezzone and LaRosa litigation. Based on the finding of the jury in that litigation, that hazard arose entirely from conduct of the Hansen interests’ own making.

Another Restatement rule clearly precludes recovery against the Anderson firm under the undisputed facts pertaining to the judgments in the Ezzone and LaRosa litigation. That rule provides:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

Restatement (Second) of Torts § 448, at 480 (1965). The judgments entered against the Hansen interests were based on their own intentional tortious conduct, beyond the expectations of the Anderson firm. Consequently, their efforts to recoup the damages that were paid for such conduct is precluded by the doctrine embodied in this provision of the Restatement. We have considered all issues presented and conclude that the judgment of the district court must be reversed. The case is remanded to that court for the entry of a judgment dismissing all of the plaintiffs’ claims and awarding costs to the Anderson firm.

REVERSED.


author: PER CURIAM.

text:
    Michael Joseph WARNKE and Jane Ann Weber, Appellees, v. IMT INSURANCE CO., Appellant.
    No. 01-0986.
    Supreme Court of Iowa.
    Feb. 26, 2003.
    Rehearing Denied March 14, 2003.

      John B. Grier and Merrill C. Swartz of Cartwright, Druker & Ryden, Marshall-town, for appellant.
    Gregory T. Racette and Marci B.H. Too-man of Hopkins & Huebner, P.C., Des Moines, for appellees.
   PER CURIAM.

This case involves a discovery dispute in an action for bad faith and breach of contract brought against an insurance company, IMT Insurance Co. (IMT), by the assignee of a judgment creditor denied coverage by IMT in prior litigation. At the time of the discovery orders that are being challenged, the prior litigation was still pending on appeal. Although that appeal has been decided and the case remanded to the district court, the litigation is still proceeding. IMT seeks an order staying all discovery until the disposition of the issues in the prior litigation. We grant that relief.

In prior litigation, the present plaintiff, Jane Ann Weber, recovered a substantial judgment for personal injuries against Michael Warnke. At the time of the collision causing Weber’s injuries, Warnke was driving an automobile for which ownership is still in dispute in the prior litigation. As the parties appear to agree, if it is determined that Glidden Body Shop was the owner of the vehicle that Warnke was operating, there would be coverage under IMT’s policy. However, if Glidden Body Shop is not the owner of the vehicle, or if the vehicle was not being driven with the owner’s consent, then Warnke is not an insured under the IMT policy.

Warnke’s claims against IMT based on its alleged denial of coverage have now been assigned to Weber, the plaintiff in the prior and still-pending litigation. Although we decline to determine the effect, if any, that the outcome of that litigation may have on the present litigation, we deem it prudent to delay further proceedings in the present action until the ownership of the vehicle has been determined in the other pending litigation. Consequently, we agree with IMT that all discovery efforts in the present case should be stayed until final disposition of the litigation involving Glidden Body Shop’s ownership of the vehicle.

We further conclude that as a result of a stay of discovery it is necessary to stay the trial of the present litigation. In complying with our order that this be done, the district court shall grant whatever continuances may be necessary to protect the case against dismissal pursuant to Iowa Rule of Civil Procedure 1.944.

Another issue upon which the parties disagree is whether the district court applied an improper standard with respect to its orders granting Weber’s discovery requests. We are unable to conclude from the record what standard the district court applied. We are convinced, however, that the standard that should have been applied is that contained in Iowa Rule of Civil Procedure 1.503(3).

Weber urges that, because IMT owed Warnke a defense as to her claims against him, this is a third-party insurance claim such as the one before this court in Henke v. Iowa Home Mutual Casualty Co., 249 Iowa 614, 618, 87 N.W.2d 920, 923 (1958). We disagree. To implicate the discovery principle recognized in Henke, the insurer must have accepted the responsibility for the defense. Weber’s claim (through Warnke) is that IMT did not accept responsibility for Warnke’s defense.

Because of our uncertainty as to the basis for the district court’s ruling, we vacate the discovery orders that have been challenged by the plaintiff and direct that, if discovery is resumed on the conclusion of the prior litigation, Weber’s requests shall be reconsidered by the district court. On such reconsideration, the district court shall view Weber’s discovery requests as those presented in a first-party claim against the insurer wherein the interests of the parties are adverse. As we recognized in Squealer Feeds v. Pickering, 530 N.W.2d 678, 686 (Iowa 1995), that status gives IMT a qualified immunity from the discovery of its investigative files. Pursuant to Iowa Rule of Civil Procedure 1.503(3), if the material sought was prepared in anticipation of litigation “or for trial by or for another party or by or for that other party’s representative (including the party’s attorney, consultant, surety, in-demnitor, insurer, or agent),” the material shall only be ordered produced upon a showing that the party seeking discovery has a substantial need of the materials in the preparation of the case and is unable without due hardship to obtain the equivalent by other means.

We have considered all issues presented and conclude that discovery in the present litigation shall be stayed until the conclusion of the litigation involving Glidden Body Shop’s ownership of the vehicle causing Weber’s injuries. The trial of this action shall be similarly stayed, and the court shall allow adequate time for discovery following the conclusion of the prior litigation. At that time Weber’s discovery requests shall be reconsidered by the district court and determined under the rules that apply in first-party litigation against an insurer.

VACATED AND REMANDED.

This opinion shall be published.


author: /s/Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST George M. KADINGER, a Minnesota Attorney, Registration No. 16799X.
    No. C7-03-354.
    Supreme Court of Minnesota.
    March 13, 2003.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent George M. Kadinger has committed professional misconduct warranting public discipline, namely, that respondent neglected client matters; failed to return client phone calls; failed to keep his clients adequately informed on the status of their cases; failed to obtain a written fee agreement and to deposit unearned fees into a client trust account; failed to return unearned fees to clients; practiced law while CLE restricted; failed to comply with a court’s instruction regarding the submission of a judgment and decree; failed to cooperate with the Director’s investigation; and failed to timely file an affidavit of compliance with Rule 26(e), Rules on Lawyers Professional Responsibility (RLPR), in violation of Minn. R. Prof. Conduct 1.3, 1.4, 1.5(a), 1.15(a), 3.2, 3.4(c), 5.5(a), 8.1(a)(3), and 8.4(d) and Rules 25 and 26, RLPR.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is indefinite suspension for a period of not less than nine months. The parties further recommend that the reinstatement procedure of Rule 18(a)-(d), RLPR, not be waived and that reinstatement be conditioned on: (1) compliance with Rule 26, RLPR; (2) successful completion of the professional responsibility examination under Rule 18(e), RLPR; (3) satisfaction of the continuing legal education requirements under Rule 18(e), RLPR; (4) respondent’s reimbursement of the Client Security Board (CSB) for all claims paid to respondent’s clients; and (5) payment of $900 in costs under Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent George M. Kadinger is indefinitely suspended from the practice of law for a minimum of nine months with reinstatement subject to the agreed-upon conditions set forth above. Respondent shall pay $900 under Rule 24, RLPR.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: /s/ Paul H. Anderson Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST David J. GHERITY, an Attorney at Law of the State of Minnesota.
    No. C5-87-1684.
    Supreme Court of Minnesota.
    March 13, 2003.
   ORDER

On January 7, 2003, this court appointed a referee to conduct a hearing on a petition for disciplinary action filed by the Director of the Office of Lawyers Professional Responsibility against respondent David G. Gherity.

On February 28, 2003, the referee filed with this court his Findings of Fact, Conclusions of Law and Recommendation for Discipline. The referee found that respondent engaged in a pattern of professional misconduct and recommended that respondent be disbarred. The referee also recommended that respondent be suspended from the practice of law under Rule 16(e), Rules on Lawyers Professional Responsibility (RLPR), pending final determination of the appropriate discipline by this court.

Rule 16(e), RLPR, provides that upon a recommendation of disbarment by a referee, “the lawyer’s authority to practice law shall be suspended pending final determination of the disciplinary proceeding, unless the referee directs otherwise or the court orders otherwise.”

We conclude that temporary suspension under Rule 16(e), RLPR, is appropriate pending a final determination in this matter.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent David J. Gherity is suspended from the practice of law in Minnesota pending final determination of the disciplinary proceedings under Rule 16, RLPR. Respondent shall notify his clients of this suspension as required under Rule 26, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice