author: HARTEN, Judge. MINGE, Judge,

text:
    BANK MIDWEST, MINNESOTA, IOWA, N.A., Appellant, v. Jerome LIPETZKY, et al., Respondents, James Lipetzky, et al., Respondents.
    No. C1-02-1747.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Michael S. Dove, Peter D. Favorite, Gis-lason & Hunter LLP, New Ulm, for appellant.
    John H. Schnobrich, Jennifer L.J. Gilk, Estebo, Schnobrich, Frank & Gilk, Ltd., Redwood Falls, for respondents Jerome Lipetzky, et al.
    Thomas W. Van Hon, Fairfax, for respondents James Lipetzky, et al.
    Considered and decided by HARTEN, Presiding Judge, SCHUMACHER, Judge, and MINGE, Judge.
   OPINION

HARTEN, Judge.

The district court granted summary judgment canceling a contract for deed between respondents, vendors and vendees of farmland, after determining that the contract for deed provisions voided both the assignment of the contract for deed and the mortgage on the farmland securing the vendees’ debts to appellant, a bank. The district court also determined that appellant bank was not entitled to an equitable mortgage on the property. Because we conclude that the assignment of the contract for deed is precluded, we affirm on that issue; because we conclude that mortgage is not precluded, we reverse and remand that issue for proceedings not inconsistent with this opinion.

FACTS

In 1993, respondents Jerome and Marion Lipetzky, owners of farmland, entered into a contract for deed with their son, James Lipetzky, and his wife, Tamara Li-petzky, by which they conveyed farmland for $72,000, a sum less than its market value. Jerome Lipetzky added to the contract for deed a clause providing, “Buyer agrees they [sic] cannot sell, transfer or assign this property without written permission or consent of the seller.”

In 1997 and 1998, James and Tamara Lipetzky secured their indebtedness to appellant Bank Midwest, Minnesota, Iowa, N.A., by mortgaging their contract vend-ees’ interest in the property, first for $110,000, then for $215,000 (collectively, the mortgage). In 1998, they also executed an assignment of the contract for deed to appellant. Jerome and Marion Lipetz-ky were not initially aware of the mortgages or the assignment, but learned of those transactions in March 2001, when appellant commenced a mortgage foreclosure action. They then served James and Tamara Lipetzky and appellant with a notice of cancellation of contract for deed. Appellant obtained a temporary injunction to halt the cancellation proceedings. In April 2001, James and Tamara Lipetzky filed for bankruptcy.

Appellant brought the instant action against Jerome, Marion, James, and Tamara Lipetzky, seeking an injunction to halt the cancellation of the contract for deed and a declaratory judgment that the mortgage and the assignment of the contract for deed were valid and enforceable, or, in the alternative, that appellant had an equitable mortgage on the property. Appellant moved for summary judgment; Jerome and Marion Lipetzky filed a cross-motion for summary judgment.

Following a hearing, the district court denied appellant’s motion and granted Jerome and Marion Lipetzky’s motion. Appellant challenges the summary judgment.

ISSUES

1. Is a contract for deed provision that a vendee cannot sell, transfer, or assign the property without the written permission or consent of the vendor ambiguous?

2. Does a contract for deed provision that a vendee cannot sell, transfer, or assign the property without the written permission or consent of the vendor void the vendee’s assignment of the contract for deed absent the written permission or consent of the vendor?

3. Does a contract for deed provision that a vendee cannot sell, transfer, or assign the property without the written permission or consent of the vendor void the vendee’s mortgage of the property absent the written permission or consent of the vendor?

ANALYSIS

1. Ambiguity

We first address whether the contract for deed clause providing that “Buyer agrees they cannot sell, transfer or assign this property without written permission or consent of the seller” is ambiguous. Whether contract language is ambiguous (reasonably susceptible to more than one construction) presents a question of law, on which the reviewing court owes no deference to the district court’s determination. Blackburn, Nickels & Smith, Inc. v. Erickson, 366 N.W.2d 640, 643-44 (Minn.App.1985), review denied (Minn. 24 June 1985).

We conclude that the phrase at issue here, “sell, transfer, or assign,” is not ambiguous. “The sense of a word depends on how it is being used; only if more than one meaning applies within that context does ambiguity arise.” Bd. of Regents v. Royal Ins. Co. of Am., 517 N.W.2d 888, 892 (Minn.1994). In the context of real property, “sell,” “transfer,” and “assign” have clear and distinct meanings. We agree with the district court that the phrase is unambiguous and turn to the narrow issues presented to us: whether the phrase precluded assigning and whether it precluded mortgaging.

2. Assignment

We conclude that the contract for deed phrase, “cannot sell, transfer or assign,” precludes assignment and that James and Tamara Lipetzky breached the contract for deed by assigning it to appellant. Appellant argues that, because the assignment was “for security purposes,” it was not precluded. But the contract for deed did not exempt assignments made for security purposes; it provided only that “Buyer * * * cannot sell, transfer, or assign this property * * Appellant relies on Midtaune v. Burns, 484 N.W.2d 474, 476-77 (Minn.App.1989) (holding that, when contract for deed vendees make an assignment for security purposes, they are entitled to reassignment if they satisfy the obligation secured by the contract, and that the assignee does not assume the vendee’s debt), review denied (Minn. 29 Mar. 1989). But Midtaune is distinguishable: there is no evidence that the contract for deed in that case prohibited the vendee from assigning. We agree with the district court that the assignment to appellant is precluded and unenforceable.

3. Mortgage

We disagree with the district court’s determination that “sell, transfer, or assign” also means “mortgage.” The district court found that, because the mortgage documents read “Grantor mortgages and conveys to Lender” and “‘convey’ is synonymous with ‘transfer’ [Black’s Law Dictionary 334 (7th ed.1999)],” the prohibition against transferring is actually a prohibition against mortgaging. But this finding ignores Minn.Stat. § 559.17, subd. 1 (2002), providing that:

A mortgage of real property is not to be deemed a conveyance, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure * * *.

Boilerplate language on a mortgage document cannot override an explicit statutory provision. “Conveyance,” within the meaning of this statute, would encompass a sale, a transfer, or an assignment: neither a buyer, nor a transferee, nor an assignee undertakes a foreclosure sale to acquire possession of the property. A mortgage, however, does require a foreclosure sale for the mortgagee to take possession. Mortgaging is thus distinct from selling, transferring or assigning.

Moreover, the expression of a series of items is generally construed to be the exclusion of other items. Expressing “sell, transfer, or assign” implies an intent to exclude “mortgage,” not to include it. The phrase “cannot sell, transfer, or assign” is not ambiguous and does not mean “cannot mortgage.” Accordingly, appellant’s mortgage is not invalidated by the language of the contract for deed.

James and Tamara Lipetzky secured their debt to appellant by giving appellant a valid mortgage on their interests as contract for deed vendees. The mortgage did not breach and is not voided by the contract for deed.

DECISION

We affirm the district court’s findings that the contract for deed was not ambiguous and that its language precluded the vendees from assigning the property at issue. We reverse, however, the district court’s finding that the mortgage was voided by the contract for deed and its judgment canceling the contract for deed and remand for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part and remanded.

MINGE, Judge,

dissenting.

I respectfully dissent.

The issue in this ease is the application of the following clause to a mortgage:

Buyers * * * cannot sell, transfer or assign this property without written permission or consent of the seller.

Appellant bank asserts this does not apply to the mortgage; respondent sellers assert it does.

Minnesota law defines the word “transfer” as follows:

“Transfer” means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.

Minn.Stat. § 513.41(12) (2002) (emphasis added). Although this definition is provided in the context of fraudulent transfers, it is consistent with the dictionary definition, makes sense and, in the absence of any other statutory definition, should be used in this context. The Black’s Law Dictionary defines the word “transfer” as follows:

Any mode of disposing of or parting with an asset or an interest in an asset, including the payment of money, release, lease, or creation of a lien or other encumbrance. * * * The term embraces every method — direct or indirect, absolute or conditional, voluntary or involuntary — of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor’s equity of redemption.

Black’s Law Dictionary, 1503 (7th ed.1999) (emphasis added.)

This definition squares with logic. The ownership of real estate includes a bundle of rights. An instrument need not give all of these rights or even possession to be a “transfer.” Given the powerful and extensive property interest that is inherent in a mortgage, it is certainly a transfer of an interest in property. To be sure, it has a conditional character. However, upon default and foreclosure, the mortgagee can terminate the mortgagor’s right to possession. The very existence of the mortgage prevents conveyance of clear title.

It is noteworthy that a mortgage is functionally almost indistinguishable from the conditional assignment that was also executed by the purchasers. Assignments are precluded by the restriction in the contract for deed and the conditional assignment in this case has been set aside by the majority. This is indeed a fine line between an assignment for security and a mortgage.

This case illustrates a further dimension of the problem. The appellant is not merely holding a tentative or speculative interest in the land. The mortgage is in default and the appellant mortgagee has initiated foreclosure. This is a step towards obtaining all the mortgagor’s right, title and interest, which in this case includes the right to possession. We should not ignore the fact that a sheriffs foreclosure sale is the logical outcome of this process. The sheriffs certificate of sale would certainly be a “transfer” within the meaning of the restriction in the contract for deed in this case. That being the case, the mortgage, which is the basis for the foreclosure, is part and parcel of a transfer. We only postpone the inevitable.

I submit the majority’s reliance on Minn.Stat. § 559.17 (2002) is misplaced. First the language in the document in question does not use the word “convey” or “conveyance.” It uses the word “transfer.” Second, although § 559.17 contains the language quoted by the majority, it only establishes that for mortgage purposes Minnesota is a lien state. The statute reads:

a mortgage of real property is not to be deemed a conveyance, so as to enable the owner of the mortgage to recover possession * * * without a foreclosure

Id. (emphasis added). It does not say that a mortgage is not otherwise a conveyance or that no interest is transferred or conveyed. Id. This statute would be relevant if the dispute were over the bank’s effort to obtain possession without foreclosure. However, no one is contending that there is any dispute over the right of possession in this appeal. It is ironic that a statute, that was designed to protect debtor’s rights, in this case saves the lien on the creditor’s mortgage.

This narrow view of § 559.17 is confirmed by the fact that neither the parties nor the district court cited or discussed the section. Rarely does this court consider a legal argument much less decide a case on a legal argument the parties did not raise either with the district court or on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988).

I would affirm the district court’s decision. However, given the difference between the district court and the outcome on this appeal, one is forced to consider the question of ambiguity. Before reversing, I would remand this case for a trial on the question of how the parties’ intentions affect the meaning of the contract for deed restriction that the purchasers (son and daughter-in-law) not “sell, transfer or assign” without the written consent of the sellers (parents). The record indicates that the price being paid for the land under the contract for deed was substantially less than its market value. The parents clearly wished to keep the family farm in the family. Mortgaging the property to a lender for a pre-existing debt appears to be as inconsistent with this intent as selling the property to a neighbor.

      . Because we determine that the mortgage is not void, the equitable mortgage issue is moot and we do not address it.

      . Although the trustees of various revocable trusts are also listed as respondents, they took no part in the events giving rise to this action.

      . Other cases involving vendees' assignments of contract for deed are similarly distinguishable. See, e.g., Borgerding Inv. Co. v. Larson, 284 Minn. 371, 170 N.W.2d 322 (1969); Cohler v. Smith, 280 Minn. 181, 158 N.W.2d 574 (1968); Proulx v. Hirsch Bros. Inc., 279 Minn. 157, 155 N.W.2d 907 (1968).

      . Appellant does not cite the modern statute but relies instead on a case construing the same language: Gardner v. W.M. Prindle & Co., 185 Minn. 147, 148-49, 240 N.W. 351, 352 (1932) (construing section 9572, Mason’s Minn. St. 1927, "providing that ‘a mortgage of real property is not to be deemed a conveyance, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure.' ”).

      . "[EJxpressio unius est exclusio alterius ⅜ * ⅜. A canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative.'' Black’s Law Dictionary 602 (7th ed.1999).

      . Were the case not in a summary judgment context, the evidence would likely lead to the same result. "The interpretation of a contract is a question of law if no ambiguity exists, but if ambiguous, it is a question of fact and extrinsic evidence may be considered.” City of Virginia v. Northland Office Prop. Ltd. P'ship, 465 N.W.2d 424, 427 (Minn.App.1991), review denied (Minn. 18 Apr. 1991). The role of judicial interpretation of a contract is to ascertain and give effect to the parties' intention. Karim v. Werner, 333 N.W.2d 877, 879 (Minn.1983). The district court implicitly ascertained that the parties to the contract for deed intended that James and Tamara Lipetzky would be unable to mortgage the property without the consent of Jerome and Marion Lipetzky. But the extrinsic evidence, in the form of the parties' deposition testimony, does not support that view of the parties' intent. James Lipetzky testified that he did not recall any language that would prevent him from mortgaging the property without Jerome and Marion Lipetzky’s consent; Tamara Lipetzky testified that she was not aware that she and James Lipetzky were not free to mortgage the property without the consent of Jerome and Marion Lipetzky, and Marion Lipetzky testified that James and Tamara Lipetzky "probably didn’t realize” they needed permission before mortgaging the property. Only Jerome Lipetzky, at whose direction the clause was drafted, testified that he intended the clause to prohibit mortgaging the property, and his testimony is not convincing: he failed to explain why a clause intended to preclude mortgaging did not include the word "mortgage.” Moreover, contract language is construed against the drafter. Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 917 (Minn.1990). Jerome Li-petzky’s view that the clause precluded the mortgaging of the property without his consent is not dispositive.

      . We decide only that the assignment of the contract for deed is invalid and unenforceable and that the mortgage was not precluded by the contract for deed language at issue. We express no opinion on the prudence of the parties, or any of them, in undertaking this transaction in the manner indicated by the evidence, and we do not speculate on the parties’ future positions that may or may not result from our holding.


source: Caselaw Access Project

author: ROBERT H. SCHUMACHER, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Juan Alexander COLEMAN, Appellant.
    No. C0-02-797.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Mike Hatch, Attorney General, St. Paul, MN; and Manual Cervantes, St. Paul City Attorney,' Kyle A. Lundgren, Assistant City Attorney, St. Paul, MN, for respondent.

      John M. Stuart, State Public Defender, Shannon M. Heim, Rachael T. Krueger, Special Assistant State Public Defenders, Dorsey & Whitney LP, Minneapolis, MN, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, SCHUMACHER, Judge, and WILLIS, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Juan Alexander Coleman challenges his conviction of first-degree driving while impaired, arguing that Minn.Stat. § 169A.03, subd. 21(3) (2000), does not permit use of the 1994 revocation of his driving privileges as an aggravating factor and that use of a 1999 revocation, of which he did not seek judicial review, violated his due-process rights. We affirm.

FACTS

Coleman was stopped for speeding in July 2001. The state trooper who stopped Coleman noticed that he smelled of alcohol and his speech was slurred. An Intoxilyzer test showed that Coleman’s alcohol concentration was .19%.

Before the July 2001 stop, Coleman’s driving privileges had twice been revoked under Minnesota’s implied-consent statute. In January 1994, Coleman’s driving privileges were revoked when he refused to submit to an alcohol-content test. In June 1999, Coleman was again stopped, this time submitting to a test, which showed an alcohol concentration of more than .10%. In connection with the June 1999 incident, Coleman’s driving privileges were revoked in September 1999. The criminal charges related to both the January 1994 and June 1999 incidents were dismissed.

After the July 2001 stop, Coleman was convicted of first-degree driving while impaired under Minn.Stat. § 169A.25 (2000). This appeal follows.

ISSUES

1. Under Minn.Stat. § 169A.03, subd. 21(3) (2000), may a pre-1998 prior impaired-driving-related loss of license be used as an aggravating factor?

2. If a driver does not seek judicial review of a revocation of driving privileges, does subsequent use of the revocation as an aggravating factor under Minn.Stat. § 169A.03, subd. 21(3), violate the driver’s due-process rights?

ANALYSIS

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). In a constitutional challenge, the interpretation of a statute is a question of law subject to de novo review. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993).

1. Coleman argues that Minn.Stat. § 169A.03, subd. 21(3) (2000), does not permit the use of the 1994 revocation of his driving privileges as an aggravating factor. Under Minn.Stat. § 169A.25 (2000),

a person who violates section 169A.20 (driving while impaired) is guilty of first-degree driving while impaired if two or more aggravating factors were present when the violation was committed.

Minn.Stat. § 169A.03, subd. 3(1) (2000), provides that “aggravating factor” includes “a qualified prior impaired driving incident within the ten years immediately preceding the current offense.” A “qualified pri- or impaired driving incident” includes “prior impaired driving-related losses of license,” id., subd. 22, which are defined as, inter alia, revocations of driving privileges under “Minnesota Statutes 1998, section 169.121 (driver under influence of alcohol or controlled substance) * * * or 169.128 (chemical tests for intoxication) * * id., subd. 21(3).

As a preliminary matter, we address respondent’s argument that Coleman’s challenge of the use of the 1994 revocation is not properly before this court because Coleman failed to raise the issue in the district court. This court will generally not consider matters not raised in the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988).

An exception arises if the issue is dispos-itive of the entire controversy, and there is no advantage or disadvantage to the parties in not having a prior decision by the trial court.

Freundschuh v. Freundschuh, 559 N.W.2d 706, 709 (Minn.App.1997). Here, the parties stipulated in the district court that Coleman “challenges the use of the prior implied consent revocations as an enhancement to the DWI charges.” Although Coleman argued in the district court only that due process barred use of the prior revocations of his driving privileges, nothing in the record suggests that respondent is disadvantaged. And the correct reading of subdivision 21(3) is clearly dispositive of the entire controversy. We therefore examine Coleman’s arguments regarding the interpretation of subdivision 21(3).

The objective of statutory interpretation is to ascertain and effectuate the legislature’s intent. Minn.Stat. § 645.16 (2002). If the statutory language is unambiguous, an appellate court relies on its plain meaning, which manifests legislative intent. In Re Estate of Nordlund, 602 N.W.2d 910, 913 (Minn.App.1999), review denied (Minn. Feb. 15, 2000). “A statute is ambiguous if it is reasonably susceptible to more than one interpretation.” State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996).

Coleman argues that subdivision 21(3) is unambiguous and that the statute’s plain language provides that only a revocation under the 1998 statute, and not a revocation under previous versions, may be considered as an aggravating factor. We disagree. Although subdivision 21(3) refers to the 1998 statute, subdivision 3(1), in defining “aggravating factor,” provides a ten-year look-back period. Further, subdivision 21(4) also includes in the definition of “prior impaired driving-related loss of license” any revocation of snowmobile, all-terrain-vehicle, or boat-operating privileges “that occurred on or after August 1, 1994.” We conclude, therefore, that the language of subdivision 21 is ambiguous.

Because we conclude that the statute is ambiguous, we look to the following statutory presumptions to determine the legislature’s intent:

(1) the legislature does not intend a result that is absurd, impossible of execution, or unreasonable;
(2) the legislature intends the entire statute to be effective and certain;
(3) the legislature does not intend to violate the constitution of the United States or of this state;
(4) when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language; and
(5) the legislature intends to favor the public interest as against any private interest.

Minn.Stat. § 645.17 (2002).

Coleman’s suggested interpretation yields an absurd and unreasonable result. Under Coleman’s reading of subdivision 21(3), only revocations occurring under the 1998 statute could be used as aggravating factors. Because subdivision 21 goes back to 1994 for any revocation of snowmobile, all-terrain-vehicle, or boat-operating privileges, Coleman’s suggested interpretation would treat these revocations more severely than any revocation of driving privileges that occurred before 1998. Given the strong public policy in favor of preventing drunk driving, see State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn.1981), it is unlikely that the legislature intended such a result.

Coleman argues that the reference in subdivision 21(3) to “Minnesota Statutes 1998” is rendered superfluous if a revocation under a prior statute is considered as an aggravating factor. “Every law shall be construed, if possible, to give effect to all its provisions.” MinmStat. § 645.16. But “Minnesota Statutes 1998” is only a statutory reference, not a substantive provision. Coleman’s reading of subdivision 21 renders superfluous the entire ten-year look-back period described in subdivision 3(1). If the legislature intended for all of section 169A to be effective and certain as Minn.Stat. § 645.17(2) requires this court to presume, it could not have intended the reference to “Minnesota Statutes 1998” as a limitation of the ten-year look-back period in subdivision 3(1).

Coleman also contends that the rule of lenity demands interpretation of subdivision 21(3) in his favor. “Penal statutes are to be strictly construed with all reasonable doubts concerning legislative intent to be resolved in favor of the defendant.” State v. Wagner, 555 N.W.2d 752, 754 (Minn.App.1996). But the court is not required to give a statute the narrowest possible interpretation. Id. And we presume that “[t]he legislature intends to favor the public interest as against any private interest.” Minn.Stat. § 645.17(5). Interpreting subdivision 21 to allow the use of a pre-1998 revocation as an aggravating factor favors the public interest over any private interest. Cf. Juncewski, 308 N.W.2d at 319 (holding that drunk-driving laws are remedial statutes and are to be “liberally interpreted in favor of the public interest and against the private interests of the drivers involved”).

Finally, Coleman argues he had no notice that his 1994 revocation could be used as an aggravating factor for a subsequent drunk-driving offense. He contends that prior to 1998, a revocation of driving privileges could not be used as an aggravating factor for a drunk-driving offense. But beginning in 1993, Minnesota law provided that a person was guilty of a gross misdemeanor if, inter alia, the person was driving under the influence “within five years of a prior license revocation, or within ten years of the first of two or more prior license revocations.” 1992 Minn. Laws ch. 570, art. 1, § 7; see also id., § 32 (providing effective date of January 1, 1993, for provision allowing consideration of prior revocation of driving privileges). When Coleman’s driving privileges were revoked in 1994, therefore, Minnesota law provided that the revocation could be considered as an aggravating factor for any subsequent drunk-driving offense with which Coleman might be charged.

2. Coleman next argues that the use of the 1999 revocation of his driving privileges as an aggravating factor violated his due-process rights because the 1999 revocation was not subject to “meaningful judicial review.” The United States Supreme Court has stated that

where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively the element of a criminal offense.

United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 2155, 95 L.Ed.2d 772 (1987) (citations omitted).

Revocation of driving privileges under Minnesota’s implied-eonsent statute is subject to both administrative review, Minn.Stat. 169A.53, subd. 1 (2002), and judicial review, id., subd. 2 (2002). The two proceedings are separate and unrelated. Rancour v. Comm’r of Pub. Safety, 355 N.W.2d 462, 464 (Minn.App.1984).

Coleman sought administrative review of his 1999 revocation, but he did not seek judicial review. He argues that he failed to seek judicial review because the result of the administrative review was unknown until after the deadline for seeking judicial review had passed. Coleman acknowledges the separate and unrelated nature of the proceedings, but he fails to reconcile his argument that waiting for the result of the administrative review somehow precluded him from seeking judicial review. Further, the availability of judicial review, though unexercised by Coleman, satisfies the Mendoza-Lopez requirement that “an alternative means of obtaining judicial review must be made available.” 481 U.S. at 838, 107 S.Ct. at 2155 (emphasis added); of. Eleven v. Comm’r of Pub. Safety, 399 N.W.2d 153, 156 (Minn.App.1987) (holding that due process does not require further judicial review of administrative review and that there was no due-process violation when appellant had opportunity to seek judicial review of revocation under implied-eonsent statute but instead sought only administrative review).

Because Coleman had the opportunity for meaningful judicial review of the 1999 revocation of his driving privileges, use of the revocation as an aggravating factor did not violate his due-process rights.

DECISION

Under Minn.Stat. § 169A.03, subd. 21(3) (2000), the 1994 revocation of Coleman’s driving privileges could be used as an aggravating factor. Use as an aggravating factor of the 1999 revocation, which could have been but was not subjected to judicial review, did not violate Coleman’s due-process rights.

Affirmed.


author: WRIGHT, Judge.

text:
    Juan Antonio Lojano MUNOZ, Appellant, v. August Leroy KIHLGREN, et al., Respondents.
    No. CX-02-1908.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Steven J. Terry, Terry <& Slane, P.L.L.C., Bloomington, MN; and Paul J. Phelps, Sawicki & Phelps, P.A., Woodbury, MN, for appellant.
    Paul W. Godfrey, Votel, Anderson & McEachron, St. Paul, MN, for respondents.
    Paul D. Peterson, Harper & Peterson, P.L.L.C., Woodbury, MN, for amicus curiae Minnesota Trial Lawyers Association.
    Considered and decided by SHUMAKER, Presiding Judge, RANDALL, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

After an automobile collision, appellant Juan Munoz, an uninsured driver, sought to recover economic-loss damages from respondents, who were insured. The district court granted respondents’ motion for dismissal and dismissed the case with prejudice. Munoz appeals, contending that, under the Minnesota No-Fault Automobile Insurance Act, an uninsured driver may recover economic-loss damages from an insured tortfeasor. We reverse and remand.

FACTS

Appellant Juan Munoz, the owner and driver of his vehicle, was involved in a collision with August Kihlgren, who was driving a vehicle owned by Schaefer Hardwood Floors. The parties do not dispute Kihlgren’s liability.

Munoz’s vehicle was not insured on the day of the accident; the vehicle driven by Kihlgren was insured. Munoz sued Kihl-gren and Schaefer Hardwood Floors (respondents collectively) for his injuries, and the parties settled noneconomic-damage claims. The parties also stipulated to the amount of Munoz’s medical bills, but disputed whether Munoz could recover such economic damages from respondents. Respondents moved to dismiss the case. The district court granted respondents’ motion, concluding that under two cases interpreting the Minnesota No-Fault Automobile Insurance Act, Banks v. Grant, 549 N.W.2d 89 (Minn.1996), and Ramsamooj v. Olson, 574 N.W.2d 751 (Minn.App.1998), review denied (Minn. June 17, 1998), Munoz could not maintain a negligence action seeking economic-loss damages against respondents. Munoz now appeals.

ISSUE

May an uninsured motorist recover economic-loss damages from an insured tortfeasor?

ANALYSIS

In reviewing cases that were dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997).

Munoz argues that the district court erred when it ruled that, as an uninsured plaintiff, he is precluded from maintaining a negligence action against an insured tort-feasor for economic-loss damages. Under the Minnesota No-Fault Automobile Insurance Act (the Act), every owner of a motor vehicle must have insurance that provides for basic economic-loss benefits. Minn.Stat. § 65B.48, subd. 1 (2002). Economic loss includes benefits for medical expenses, disability, and income loss. Minn.Stat. § 65B.44 (2002); Loven v. City of Minneapolis, 639 N.W.2d 869, 870-71 (Minn.2002). Economic loss may be contrasted with noneconomic loss, which includes “pain and suffering, loss of consortium, and inconvenience.” Minn.Stat. § 65B.43, subd. 8 (2002).

In reaching its determination, the district court analyzed Minn.Stat. § 65B.51, subd. 2 (2000), which states:

A person may bring a negligence action for economic loss not paid or payable by a reparation obligor or through the assigned claims plan because of any lack of insurance coverage for the economic loss described in section 65B.44, daily or weekly dollar limitations of section 65B.44, the seven-day services exclusion of section 65B.44, the limitations of benefits contained in section 65B.44, subdivision 1, or an exclusion from coverage by sections 65B.58 to 65B.60.

(Emphasis added).

Munoz argues that the words of the statute are clear and unambiguous and that they permit his case against respondents to proceed. He asserts that the language “any lack of insurance coverage” permits him, a person without no-fault insurance, to sue a tortfeasor for economic loss. Specifically, he maintains that the clear and unambiguous language regarding the right to recover makes no distinction based on the insured status of the injured party. Munoz also argues that, although the statute is unambiguous, the legislative history of Minn.Stat. § 65B.51, subd. 2, if considered, provides guidance as to the meaning of the statute. Respondents counter that prior interpretations of Minn. Stat. § 65B.51, subd. 2, preclude Munoz’s suit against them.

We begin our analysis by examining the language of the statute. When interpreting a statute, we first look at whether the statute’s language, on its face, is clear and unambiguous. Minn.Stat. § 645.16 (2002) (stating that “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”); Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). A statute is only ambiguous when its language is subject to more than one reasonable interpretation. Id. Words and phrases in the statute are to be construed according to their plain and ordinary meaning. Id. Section 65B.51, subdivision 2, contemplates, in explicit language, “a negligence action for economic loss * * * because of any lack of insurance coverage.” Minn.Stat. § 65B.51, subd. 2 (emphasis added). “Any” means “[o]ne, some, every, or all without specification.” The American Heritage College Dictionary 61 (3d ed.2000). “Lack” means “[a] deficiency or an absence.” Id. at 757. In terms of insurance coverage, “any lack” means something less than coverage that compensates an individual for all economic losses incurred. Thus, our analysis focuses on whether “lack” of insurance means a deficiency in coverage, a complete absence of coverage, or both.

“Any lack of insurance” can be interpreted to apply to an injured person who has no-fault insurance, but, because of limits imposed by the Act, was not compensated for the entirety of the injured person’s loss. See Theodore J. Smetak, et al., Minnesota Motor Vehicle Insurance Manual, 221-22 (3d ed.2000) (explaining that Minn.Stat. § 65B.51, subd. 2, permits individuals to sue to recover difference between loss incurred and benefit paid). In such an instance, the injured person would have a deficiency in coverage. “Any lack of insurance” also can be interpreted to apply to an absence of coverage, where the injured person simply does not have no-fault insurance. The use of the word “any” to modify “lack” shows that the more expansive reading, one which includes both a deficiency in insurance coverage and an absence of it, is the appropriate manner of interpreting the statute. Accordingly, a plain reading of the statute permits a person without no-fault insurance to sue for economic loss.

We conclude that the language of Minn.Stat. § 65B.51, subd. 2, is unambiguous, and we construe it to permit an injured person to commence an action for economic damages, even though the person is not covered by no-fault insurance. But even if we were to consider the statute’s language ambiguous, the legislative history of Minn.Stat. § 65B.51, subd. 2, evinces an intent to permit a person in Munoz’s position to sue for economic loss. If the language of a statute is ambiguous, we “determine the probable legislative intent and give the statute a construction that is consistent with that intent.” Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986) (citations omitted); see also Minn.Stat. § 645.16 (stating that “[w]hen the words of a law are not explicit, the intention of the legislature may be ascertained.”). Minn.Stat. § 645.16 fists methods to determine legislative intent and includes considering the circumstances under which the law was enacted and examining any former law that preceded the statute in question. Minn.Stat. § 645.16(2), (5).

Before the 1989 amendment that created the statute’s current form, Minn.Stat. § 65B.51, subd. 2, lacked the clause referring to “any lack of insurance coverage.” The earlier version of the statute read:

A person may bring a negligence action for economic loss not paid or payable by a reparation obligor because of daily or weekly dollar limitations of section 65B.44, the seven-day services exclusion of section 65B.44, the limitations of benefits contained in section 65B.44, subdivision 1, or an exclusion from coverage by sections 65B.58 to 65B.60.

Minn.Stat. § 65B.51, subd. 2 (1984).

This earlier version of the statute was interpreted by the Minnesota Supreme Court in Rehnelt v. Stuebe, 397 N.W.2d 563, 565 (Minn.1986). Although that case involved two separate lawsuits, the parties were similarly situated to the parties in the instant case, and in one of the cases, the parties were identically situated. Reh-nelt was an uninsured motorist who was involved in an accident with Stuebe, whose vehicle was insured. Id. at 563-64. The supreme court held that, because Rehnelt was uninsured, his negligence action for economic loss was barred. Id. at 566. In reaching its conclusion, the supreme court reasoned that, because the Act’s purpose is to reduce the amount of tort litigation in relation to auto accidents, permitting suits by uninsured plaintiffs would undermine the purpose and “shake the underpinnings of the Minnesota No-Fault Automobile Insurance Act.” Id. at 565-66.

In 1989, the Minnesota Legislature amended the statute to its current form. 1989 Minn. Laws ch. 58, § 1. Secondary authorities argue that the amended statute effectively overrules Rehnelt. See Smetak, supra, at 222 (stating that “the statute was amended to specifically provide that a right to recover economic loss in a tort action would not be prohibited for individuals * * * lacking no-fault insurance.”); Michael K. Steenson, Minnesota No-Fault Automobile Insurance § 15.10 (3d ed.2002) (stating that “there is no doubt that the new words placed in the statute say [that] a negligence action for economic losses can be brought by a person who has not been paid for economic loss due to ‘lack of insurance.’ ”). Our review of the change in the statutory language and the circumstances preceding it leads us to conclude that the legislature intended to, and indeed did, expand the scope of Minn.Stat. § 65B.51, subd. 2, to include individuals who do not have no-fault insurance.

The thrust of respondents’ argument is that two cases that peripherally examined Minn.Stat. § 65B.51, subd. 2, Banks v. Grant, 549 N.W.2d 89 (Minn.1996), and Ramsamooj v. Olson, 574 N.W.2d 751 (Minn.App.1998), review denied (Minn. June 17, 1998), should control here. In Banks, the plaintiff was a passenger in an uninsured vehicle involved in an accident with an insured vehicle owned by Grant. Banks, 549 N.W.2d. at 90. Banks applied to the assigned-claims plan for no-fault benefits, and his claim was assigned to American Family. Banks sued the driver and owner of the other vehicle and the jury returned a verdict in favor of Banks. Id. The defendants then moved for a setoff paid or payable by American Family, arguing that the Grants were obligated to pay Banks. Id. at 90. The Minnesota Supreme Court reversed the district court’s denial of the Grants’ motion, ruling that Minn. Stat. § 65B.51, subd. 2, only permitted Banks to sue the owner/operator of the vehicle in which he was riding. Id. at 91.

Although the Banks court examined Minn.Stat. § 65B.51, subd. 2, in order to reach its conclusion, Banks is distinguishable from the instant case, because it relied on an analysis of the subrogation rights of an assigned-claims-plan insurer, under Minn.Stat. § 65B.51, subd. 1, not the rights of an injured, uninsured driver to recover for his losses under Minn.Stat. § 65B.51, subd. 2. See Steenson, supra, § 16.02(l)(d) (stating that Banks “did not directly involve the right of an uninsured person to recover for uncompensated economic loss against an uninsured defendant.”). Further, Banks did not examine Rehnelt or the impact of the 1989 amendment. Because we consider Banks distinguishable, we conclude that it is not controlling here.

In our decision in Ramsamooj v. Olson, 574 N.W.2d 751, 752-53 (Minn.App.1998), Ramsamooj, an uninsured plaintiff, was involved in an auto accident with Olson, who was driving an insured vehicle. Id. at 752. In Ramsamooj, the parties disputed a claim for noneconomic loss, not economic loss. Id. Ramsamooj sued Olson in a negligence action for noneconomic loss, and Olson moved to dismiss the noneconomic-loss claims. Id. The district court dismissed the noneconomic-loss claims, and Ramsamooj appealed. Id. Reaching beyond the analysis necessary to address the disputed noneconomic-loss claim at issue in the case, the Ramsamooj decision, in dictum, also noted the manner in which the Act addresses economic loss, stating that, as an uninsured plaintiff, Ramsamooj could not bring a negligence action for economic loss against Olson. Id.

Ramsamooj ’s holding does not address the precise issues raised here, however, because only the noneconomic-loss claim was at issue there. The parties did not even raise the economic-loss claim before this court. Also, the Ramsamooj court considered neither the Rehnelt decision nor the 1989 amendment. Ramsamooj ⅛ discussion of economic loss is not disposi-tive, and we do not consider it controlling here. See Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 808 (Minn.App.2000) (dicta not controlling), review denied (Minn. Sept. 26, 2000).

In addition to the plain language of the statute and the distinguishable facts of this case, we conclude that preventing Munoz from maintaining a negligence action for economic loss against respondents would result in an unjustifiable windfall for the negligent tortfeasor and a penalty that is inconsistent with the Act. Other sanctions exist to penalize drivers who fail to obtain no-fault insurance coverage. See, e.g., Minn.Stat. § 169.797, subd. 2 (2002) (stating that vehicle owner who fails to obtain no-fault insurance guilty of crime); Minn. Stat. § 65B.49, subd. 3a(7) (2002); Minn. Stat. § 65B.64, subd. 3 (denying economic-loss benefits through no-fault assigned-elaims plan to uninsured individuals). In the absence of explicit statutory authority to impose this sanction, we decline to infer it.

DECISION

Minn.Stat. § 65B.51, subd. 2, permits Munoz, an uninsured motorist, to maintain a negligence action for economic-loss damages against respondents. We, therefore, reverse the district court’s order dismissing Munoz’s claim and remand for proceedings not inconsistent with this opinion.

Reversed and remanded.

      . The "assigned-claims plan” is a component of Minnesota’s no-fault insurance scheme, which
      was created by the legislature as a gap-closing device designed to ensure that individuals who are not covered under a plan of reparation security will be entitled to coverage for their economic loss, if they satisfy the conditions for coverage.

        State Farm Mut. Auto. Ins. Co. v. Thunder, 605 N.W.2d 750, 755 (Minn.App.2000) (citation and quotation omitted); see also Minn. Stat § 65B.63 (2002) (describing assigned-claims plan); Minn. Stat § 65B.64 (explaining eligibility for assigned-claims plan).


author: GILBERTSON, Chief Justice.

text:
    2003 SD 40
    In the Matter of the DISCIPLINE OF Benjamin J. EICHER, as an Attorney at Law.
    No. 22523.
    Supreme Court of South Dakota.
    Argued March 26, 2003.
    Decided April 16, 2003.

      Robert B. Frieberg, Beresford, South Dakota, for Disciplinary Board.
    Ronald W. Banks of Banks, Johnson, Colbath & Kerr, Rapid City, for Eicher.
   ORIGINAL PROCEEDING

GILBERTSON, Chief Justice.

[¶ 1.] This is a disciplinary proceeding against Benjamin J. Eicher, a member of the State Bar of South Dakota. The Disciplinary Board of the State Bar of South Dakota has recommended public censure. The Referee has recommended a public censure on some issues and a private reprimand on another. Eicher urges the Court to hold that he “committed no violations of the Rules of Professional conduct for which reprimand of any kind is appropriate.”

GENERAL BACKGROUND

[¶ 2.] Eicher is not married and has no children. He sponsors a baseball team, writes for a Los Angeles music newsletter, and is on the community advisory board of an Indian radio station. Eicher has a strong interest in theology.

[¶ 3.] Eicher is a 1985 graduate of the University of Nebraska School of Law. After passing the bar examination he was admitted to practice law in South Dakota. He practiced law in Rapid City with Franklin J. Wallahan until Wallahan’s death in 1994. Eicher has been a sole practitioner since that time. He specializes in litigation and insurance defense.

[¶4.] Eicher has been the subject of four previous disciplinary complaints. The first, in 1992, was dismissed. The second, in 1997, was dismissed with a caution. The third, in 1998, was dismissed and expunged. Eicher received an admonition for the fourth in 2001. An admonition is a finding that a lawyer violated one or more of the Rules of Professional Conduct, but did not warrant a private reprimand. Three additional complaints are pending in this disciplinary proceeding.

KOCH COMPLAINT

[¶ 5.] On April 16, 2002 Spearfish attorney Dedrich R. Koch filed a complaint with the Disciplinary Board concerning Eicher’s conduct in a civil action, Thomas v. Thomas. See Thomas v. Thomas, 2003 SD 39, 661 N.W.2d 1. In the course of the lawsuit, Koch, who represented Gail Thomas, and Eicher, who represented Shirley M. Thomas, filed various motions and pretrial briefs and memorandums for Circuit Judge Kern’s consideration. Koch attached these to his complaint and told the Board:

Although I personally find Mr. Eicher’s repeated threats and claims for sanctions to be unsupported, meritless and unprofessional, it is the personal attacks and insults hurled by Mr. Eicher at my client and me that I can not ignore. Vigorously attacking the allegations or criticizing the tactics of an opponent does not necessitate or allow the use of such blatantly offensive comments and I hope the disciplinary board will take the necessary steps to inform Mr. Eicher of the same.

[¶ 6.] In a document titled “Shirley Thomas’ Reply to Gail Thomas’ Brief in Support of Motion for Waste and Property Taxes” Eicher wrote, in part:

• Gail’s attempt to avoid any burden at all from her great bounty (it is assumed that no one would even try to argue that receiving title to $100,000 in unencumbered property without paying the giver a penny for it constitutes a “great bounty”), is shockingly greedy, to put it bluntly.
• Gail continues to not only want her pound of flesh from Shirley, but wants all of the blood associated with it.
• Gail’s greed is stunningly bold.
• Then, to make certain that her fangs are fully bared for all to see, Gail hurls yet another dose of acidic bile at Shirley. Gail accuses Shirley of criminal misconduct ... Perhaps Gail plans to have Shirley arrested, and hauled from the courtroom on March 27 in shackles, too.
• Gail’s arguments on these matters are so utterly fallacious, groundless, and frivolous, that they constitute plain violations of Rule 11.
• Gail’s despicable greed should not be rewarded.
• Gail’s ... adamant persistence in trying to make Shirley accountable, belies an active, rancid animosity against Shirley which not only defies logic but apparently knows no bounds.

[¶ 7.] Following Judge Kern’s oral bench decision which was adverse to Eicher’s client, Eicher filed a “Memorandum of Law for Reconsideration.” In it he chastised Judge Kern:

The Court attempted to issue its oral bench decision on March 27 in the scant moments left on the Court’s clock at that specific time. It is presumed that had the Court sufficient additional time available, a more fully described and reasonably in-depth discussion would have been made by the Court of its findings of fact and its conclusions of law. Instead, the parties were only given an extremely brief set of conclusory statements of the ultimate result. However, the “bottom line” approach presented by the Court offers little if any guidance as to the Court’s (as opposed to Gail Thomas’ counsel’s when the Findings and Conclusions are drafted) reasoning behind the specific rulings found within the penumbra of that “bottom line.” Moreover, the Court gave no reasons at all for denial of Shirley’s request for sanctions under Rule 11 of the Rules of Civil Procedure, even though the statutory provisions mandate entry of specific findings and conclusions whether such sanctions are granted or denied.

In this document Eicher also lectured the trial court about his view of Koch’s legal ability:

Our present system is clogged with specious claims brought by novice lawyers. It is clogged with positions which have no basis in fact or law, as if “lawyering” means to disagree with whatever the other side says. The circuit court judges see enough of this. But, the Court should be well aware that for every example played out before it in open court, are hundreds of instances “behind the scenes” which never see the inside of a court file or the courtroom. Formerly, there was a greater amount of mentoring by older, experienced lawyers to guide novice attorneys. When the undersigned thinks of what his mentor, the late (and great) Franklin J. Wallahan would have said had the undersigned taken the positions adopted here in this case by Gail and her counsel, it is not an exaggeration to say that a long lecture in “good lawyering” would have occurred as a result. However, without mentoring and without an eye toward quality practicing, Gail and her counsel simply fire away with a blunderbuss as much buckshot as possible— even if it is improper, unmerited, groundless or just plain wrong — with the comfort of knowing that all the Court will do is reject the position. In other words, there is no real downside. But this is where Rule 11 especially was geared to not only protect the innocent opponent, but to punish the wrongdoers. Just like a child who grows up undisciplined because the parents failed to provide appropriately strict guidance, when lawyers dump their half-baked or completely uninvestigated contentions on the courtroom floor without any correction, then it’s no wonder that they never learn to do things differently (i.e., correctly) next time.

[¶ 8.] On April 23, 2002 Eicher received notice of Koch’s disciplinary complaint against him. Eicher immediately faxed a letter to Koch suggesting that he withdraw the disciplinary complaint against Eicher or face an appeal in the Thomas matter. The letter also implied that Eicher would file a disciplinary complaint against Koch. This letter stated, in part:

Dear Deach:

I am confirming the terms of our discussion on the Bar Association matter in this case. My suggestion is that instead of having your client face an appeal from the above action if we proceed with the Bar Association contentions (i.e., mutual complaints), which will occur if I have to obtain the transcript to defend myself against your contentions and to put the matter wholly in context, we jointly approach the Bar Association as follows.
I would think a letter signed by both you and me, to the Bar Association, saying something as follows would suffice:
This is a joint letter by Dedrich Koch and Benjamin Eicher regarding a disciplinary complaint submitted by Attorney Koch against Attorney Eicher. We jointly agree that the disciplinary complaint is hereby withdrawn. On April 22, 2002 a hearing was held before Judge Kern wherein she denied relief to Attorney Koch based upon similar allegations against Attorney Eicher as those in the disciplinary complaint, as well as denying Rule 11 sanctions against Attorney Koch. Attorney Koch and Attorney Eicher have resolved their differences, personal and professional, and do not wish to involve the disciplinary board further. It is assumed that this letter will suffice to close the matter, unless different instructions are given to us.

Koch refused to accept Eicher’s proposal.

[¶ 9.] On April 23, 2002 Eicher also wrote letters to Judge Kern and court reporter Jean A. Kappedal regarding the Thomas case. His letter to Judge Kern begins, “Certain conduct by Mr. Koch has led to the necessity of an appeal in this action. It is unfortunate but it remains a reality.” His letter to Ms. Kappedal begins, “Because Mr. Koch could not leave well enough alone, we are going to have an appeal from this case after the parties submit their respective Findings of Fact, Conclusions of Law, and Judgments[.]”

CLAYBORNE COMPLAINT

[¶ 10.] On April 22, 2002 Rapid City attorney Courtney R. Clayborne filed a complaint with the Disciplinary Board concerning Eicher’s conduct in a criminal court trial held February 8, 2002.

[¶ 11.] Eicher represented Shawna Martin who was accused of stealing money from her employer. Clayborne represented her employer and was the first witness called during Martin’s criminal trial. Clayborne testified that he had spoken with Martin who admitted to him that she had taken money from her employer on two or three occasions. He also testified that he had watched two videotapes supplied by Martin’s employer which showed Martin stealing money.

[¶ 12.] Eicher, in open court and “as an officer of the court” moved to dismiss the charges because the State no longer had the videotapes of Martin in its possession. Eicher told the trial court that he had watched the videotapes and they showed Martin “didn’t take anything.” He claimed that the videotapes were “Defendant’s best evidence” “because of what it shows and what it doesn’t show. It’s our best evidence because the other testimony would be that people are in and out of that [money] bag all the time.” He argued, “It’s manifest that when the State loses evidence, that is significant it is grossly prejudicial to the defendant[.]” It deprived him of evidence necessary to cross examine witnesses.

[¶ 13.] Eicher did not tell the trial court that he possessed copies of the videotapes. He received them from one of the employer’s attorneys seven months earlier in a civil proceeding Martin initiated. During a break in the criminal trial Clayborne confronted Eicher and told him that it was unethical and misleading to fail to tell the court that he had copies of the videotape. Following the recess, Eicher told the court of Clayborne’s accusation. He admitted that he had copies of the videotapes but did not bring them. He told the court that “I haven’t misled the court about anything. The official tapes that are in evidence are not here.” He also told the court, “[b]ut for [Clayborne] to accuse me of unethical conduct is about how low we’ve got to this thing.”

BOARD GENERATED COMPLAINT

[¶ 14.] On July 18, 2001 Eicher filed a complaint with the Disciplinary Board against Attorney M for his conduct in the Bernardo case. The Board dismissed the complaint with a caution. A dismissal with a caution is a determination that while there was no violation of the Rules of Professional Conduct there was an advisory to improve the respondent lawyer’s office practice or relations with other lawyers or clients.

[¶ 15.] In the course of investigating Eicher’s complaint against Attorney M the Board discovered a series of fourteen letters Eicher wrote to Attorney M and a member of his firm in the course of a year regarding the Bernardo case and the Bird Hat case. In each case, Eicher warned Attorney M that he would seek Rule 11 sanctions and allege barratry and a frivolous action counterclaim if Attorney M did not take the actions Eicher requested. He advised Attorney M that if he took the action Eicher suggested there would be “no need to report the problem to the bar association.” If Attorney M did not take the action Eicher “will be filing a complaint with the Bar Association’s disciplinary board. So be it.”

EICHER GENERATED COMPLAINTS

[¶ 16.] On May 2, 2002 the Disciplinary Board hand delivered a letter to Eicher informing him of correspondence discovered in the course of investigating his July 18, 2001 complaint against Attorney M concerning the Bernardo case. Eicher responded that day by hand delivering a second Disciplinary Board complaint against Attorney M concerning the Bird Hat case. The Board investigated and dismissed the complaint with a caution.

[¶ 17.] On May 15, 2002 Eicher filed separate complaints against Koch and Clayborne. On May 15, 2002 and May 20, 2002 Eicher filed separate complaints against two members of Clayborne’s law firm. The Board investigated the four complaints and then dismissed and expunged all of them.

[¶ 18.] The Secretary-Treasurer of the State Bar filed an affidavit advising that he examined all of the Disciplinary Board records since 1989. No person, lawyer or non-lawyer, has filed as many complaints against lawyers as has Eicher, who has filed seven. Three were dismissed with a caution, four were dismissed and expunged.

DISCIPLINARY BOARD

[¶ 19.] Following a hearing the Disciplinary Board entered findings of fact and conclusions of law. Included in its findings were:

20. [Eicher’s] responses to the Disciplinary Board were not forthright and lacked candor. He refused to answer questions directly. [Eicher] claimed ignorance or misapprehension of the applicable rules. [Eicher] claimed that the Disciplinary Board had required him to assert the meritless complaints mentioned in findings 11 and 21, above, which claim was false.
21. [Eicher’s] conduct demonstrates a persistent practice prejudicial to the administration of justice of directing exceptionally harsh, vindictive and insulting communication to opposing counsel that serve no purpose, but aim to harass opposing counsel and their clients and result in burdening the justice system with unnecessary expense and acrimony.

[¶ 20.] The Disciplinary Board concluded:

A. [Eicher] has violated S.D.C.L. 16-18-14 concerning respect for parties and witnesses.
B. [Eicher] has violated S.D.C.L. 16-18-16 concerning the commencement or continuance of an action or proceeding for any motive of passion or interest.
C. [Eicher] has violated S.D.C.L. 16-18-19 concerning an attorney’s duty to use such means only as are consistent with the truth, and never seek to mislead the judges by any artifice or false statement of fact or law.
D. [Eicher] has violated the following Rules of Professional Conduct:
(1) Rule 3.1 concerning frivolous claims;
(2) Rule 3.3 concerning candor toward the tribunal;
(3) Rule 3.4 concerning fairness to opposing parties and counsel;
(4) Rule 4.1 concerning truthfulness in statements to others;
(5) Rule 4.4 concerning respect for rights of third persons;
(6) Rule 8.3 concerning the obligation to report misconduct; and
(7) Rule 8.4(a)(c) & (d) concerning professional misconduct.

[¶ 21.] The Board recommended that Eicher be publicly censured for his violations of the Rules of Professional Conduct and that he pay the costs and expenses of this disciplinary proceeding.

REFEREE

[¶22.] The Honorable Eugene Martin, a retired judge of the circuit court, was appointed by this Court to act as Referee in this matter. The Referee agreed that Eicher violated the statutes and Rules of Professional Conduct cited by the Disciplinary Board. The Referee did not believe, however, that Eicher’s conduct toward Attorney M violated any rule of professional conduct. The Referee recommended that Eicher receive a private reprimand for his conduct in the Clay-borne complaint and a public censure for the remaining violations of Rules of Professional Conduct. The Referee noted:

[Eicher] is an intelligent and articulate attorney with a resume replete with accomplishments, civil, legal, and religious. All of this notwithstanding, it appears to me that [Eicher] does not know, or refuses to acknowledge, the distinction between retaliation and appropriate response; between offensive personality and fair and reasoned comment; between vigorous representation and professional conduct. It is his obligation to know and follow.

STANDARD OF REVIEW

[¶ 23.] The Disciplinary Board and the Referee conducted detailed hearings in this matter. Each made findings, conclusions, and recommendations regarding the appropriate discipline in Eicher’s case. This Court gives careful consideration to their findings because they had the advantage of seeing and hearing Eicher, the only witness in each hearing. In re Discipline of Mattson, 2002 SD 112, 651 N.W.2d 278. This Court, however, gives no particular deference to the Referee’s recommended sanction. In re Discipline of Dorothy, 2000 SD 23, 605 N.W.2d 493. “The final determination for the appropriate discipline of a member of the State Bar rests firmly with the wisdom of this Court.” Matter of Discipline of Wehde, 517 N.W.2d 132, 133 (S.D.1994).

LEGAL ANALYSIS

[¶ 24.] In this case, “[w]e must thoroughly examine the merits of this case, as well as the overall propriety of what our decision would mean to the South Dakota Bar and the public at large.” Dorothy, 2000 SD 23 at ¶ 19, 605 N.W.2d at 498. “[W]e first reaffirm the purpose of the disciplinary process — to protect the public, not to punish the lawyer.” Petition of Pier, 1997 SD 23, ¶ 8, 561 N.W.2d 297, 299. A further purpose of the disciplinary process is the deterrence of like conduct by other attorneys. Matter of Discipline of Tidball, 503 N.W.2d 850 (S.D.1993).

1. The Koch Complaint

A.

[¶ 25.] When Eicher became a member of the State Bar of South Dakota he took an oath to “abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged[.]” SDCL 16-16-18. “Note that this is a continual and on-going obligation. Each day of an attorney’s life demands that these requirements be met anew.” In re Ogilvie, 2001 SD 29, ¶ 56, 623 N.W.2d 55, 67 (Gilbertson, J., dissenting). This constitutes a lawyer’s duty, SDCL 16-18-14, and a lawyer’s responsibility to “use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” Preamble, South Dakota Rules of Professional Responsibility. SDCL 16-18 Appx.

[¶ 26.] “[T]he legal profession has seen an increasing number of attorneys engaging in conduct that is personally and professionally offensive. State-bar disciplinary action results because of findings that an attorney has engaged in flagrant disrespect toward a court, opposing counsel, an adverse party, or the attorney’s own client[.]” Janelle A. McEachern, Annotation, Engaging in Offensive Personality as Ground for Disciplinary Action Against Attorney, 58 A.L.R.5th 429 (1998).

[¶27.] The Nebraska Supreme Court has observed:

We explained in In re Appeal of Lane, 249 Neb. at 511, 544 N.W.2d at 375, that the “requisite restraint in dealing with others is obligatory conduct for attorneys because ‘[t]he efficient and orderly administration of justice cannot be successfully carried on if we allow attorneys to engage in unwarranted attacks on the court [or] opposing counsel.... Such tactics seriously lower the public respect for ... the Bar.’ ” (emphasis supplied.) (Quoting Application of Feingold, 296 A.2d 492 (Me.1972)). Furthermore, “ ‘[a]n attorney who exhibits [a] lack of civility, good manners and common courtesy ... tarnishes the ... image of ... the bar....’” Id. (Quoting In re McAlevy, 69 N.J. 349, 354 A.2d 289 (1976)).

In re Converse, 258 Neb. 159, 602 N.W.2d 500, 508 (1999).

[¶ 28.] This Court quoted Converse in Dorothy, 2000 SD 23 at ¶ 48, 605 N.W.2d at 507-508 and expanded its analysis:

The Nebraska Supreme Court has recently stated:
“Care with words and respect for courts and one’s adversaries is a necessity, not because lawyers and judges are without fault, but because trial by combat long ago proved unsatisfactory.
“The profession’s insistence that counsel show restraint, self-discipline and a sense of reality in dealing with courts, other counsel, witnesses and adversaries is more than insistence on good manners. It is based on the knowledge that civilized, rational behavior is essential if a judicial system is to perform its function. Absent this, any judicial proceeding is likely to degenerate into [a] verbal free-for-all.... [Hjabitual unreasonable reaction to adverse rulings ... is conduct of a type not to be permitted of a lawyer when acting as a lawyer.”

In re Converse, 258 Neb. 159, 602 N.W.2d 500, 508 (1999) (citing Appeal of Lane, 249 Neb. 499, 544 N.W.2d 367, 376 (1996)). Distinguishing between reasoned comment protected by the First Amendment and unprotected, unprofessional statements goes back nearly to the establishment of an organized bar in this State.

[Tjhere can be such an abuse of the freedom of speech and liberty of the press as to show that a party is not possessed “of good moral character,” as required for admission to the bar of this state ... and therefore to require that such person be excluded from the bar of this state; and to our mind the evidence submitted here shows such an instance ... “Nor can the respondent be justified on the ground of guaranteed liberty of speech. When a man enters upon a campaign of villifi-cation [sic], he takes his'fate into his own hands, and must expect to be held to answer for the abuse of the privilege extended to him by the Constitution .... ”
In re Egan, 24 S.D. 301, 326-27, 123 N.W. 478, 488 (1909). See also In re Gorsuch, 76 S.D. 191, 75 N.W.2d 644, 648-49 (1956); Converse, 602 N.W.2d at 509.

[¶ 29.] Eicher’s written comments to the trial court in the Thomas matter concerning Koch, Koch’s client, and the trial court, went far beyond fair and reasoned comment protected by the First Amendment. Instead they constitute unprotected, unprofessional statements. As we said in Dorothy, 2000 SD 23 at ¶47, 605 N.W.2d at 507:

This clearly was not an isolated incident where emotions of the moment in the heat of litigation overcame better judgment. In re Snyder, 472 U.S. 634, 647, 105 S.Ct. 2874, 2882, 86 L.Ed.2d 504, 514 (1985). The worst of it was prepared or written out in advance with sufficient time to reflect on the inflammatory contents of the statements before they were delivered.

“Moreover, these acts were not an isolated ‘foolish and negligent’ incident, id., they were intentional and numerous in number.” Mattson, 2002 SD 112 at ¶ 55, 651 N.W.2d at 289.

B.

[¶ 30.] When Eicher received notice of the disciplinary complaint that Koch filed against him, he promptly faxed Koch a letter. In it, Eicher proposed that he would not appeal the Thomas decision if Koch would agree to withdraw the disciplinary complaint.

[¶ 31.] By doing so, Eicher attempted to utilize Koch’s client’s interest in avoiding an appeal to compromise Koch’s obligations to report professional misconduct. Rule 8.3(a) provides:

A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority. (emphasis supplied).

“Rule 8.3(a) is a mandatory rule of discipline.” 2 Geoffrey C. Hazard Jr. and W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 8.3:201 (2d ed. 1996). The duty to report disciplinary violations also embraces a responsibility not to frustrate the reporting by others or dissuading others from cooperating in disciplinary investigations. See Sup.Ct. Bd. of Prof. Ethics v. Furlong, 625 N.W.2d 711 (Iowa 2001). Attempting to bargain away a disciplinary complaint also constitutes “conduct that is prejudicial to the administration of justice[.]” Rule 8.4(d); The Florida Bar v. Frederick, 756 So.2d 79 (Fla.2000). See also SDCL 16-18-26(2) which states, “[e]very attorney at law who: ... intentionally delays his client’s suit with a view to his own gain; ... is guilty of a Class 2 misdemeanor.”

[¶ 32.] Additionally, Eicher’s deliberate conduct created a conflict with his own client which he did not report to the client. “The attorney is in effect a special agent limited in duty to the vigilant prosecution and defense of the rights of the client and not to bargain or contract them away.” Northwest Realty Co. v. Perez, 80 S.D. 62, 65, 119 N.W.2d 114, 116 (1963). “The foundation of an attorney’s relationship with clients and the legal system is trust.” Tidball, 503 N.W.2d at 856 (citations omitted). Eicher violated this duty.

2. The Clayborne Complaint

[¶ 33.] During a criminal trial Eicher moved to dismiss the proceeding because the State failed to produce the original videotapes purporting to show his client taking money. Eicher claimed that the tapes provided exculpatory evidence and his ability to cross examine witnesses was impaired by the loss of the tapes. Eicher did not tell the court that he had a copy of the videotapes until Clayborne confronted him with this fact.

[¶ 34.] While Eicher did not directly lie to the trial court, he intentionally misled the court concerning the availability of what he claimed was essential evidence. “Clearly, the requirement of candor towards the tribunal goes beyond simply telling a portion of the truth.” In re Discipline of Wilka, 2001 SD 148, ¶ 15, 638 N.W.2d 245, 249.

It requires every attorney to be fully honest and forthright.
We cannot overemphasize the importance of attorneys in this state being absolutely fair with the court. Every court ... has the right to rely upon an attorney to assist it in ascertaining the truth of the case before it. Therefore, candor and fairness should characterize the conduct of an attorney at the beginning, during, and at the close of litigation.
[Matter of Discipline of] Schmidt, 491 N.W.2d [754] at 755 (citing H. Drinker, Legal Ethics 74 (1953)). There is no allowance for interpretation.

Id.

[¶ 35.] Eicher’s professional obligation to represent his client does not exonerate him in this situation. “[T]here is a line that even the zealous advocate cannot cross.” Wilka, 2001 SD 148 at ¶ 16, 638 N.W.2d at 249.

It is absolutely necessary that each member of the bar comprehends the great responsibility that every person who has the privilege to practice law must strive for: to be a person of unquestionable integrity as he or she deals with the rights of people before the bar. A practitioner of the legal profession does not have the liberty to flirt with the idea that the end justifies the means, or any other rationalization that would excuse less than complete honesty in the practice of the profession. Certainly, our Rules of Professional Conduct allow no such flirtation.

Matter of Discipline of Mines, 523 N.W.2d 424, 427 (S.D.1994). See also SDCL 16-18-19:

It is the duty of an attorney and counselor at law to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and never to seek to mislead the judges by any artifice or false statement of fact or law.

Eicher intentionally misled the court and “crosse[d] the line into improper and unprofessional conduct.” Wilka, 2001 SD 148 at ¶ 16, 638 N.W.2d at 249.

3. Board Generated Complaint

[¶ 36.] While investigating Eicher’s meritorious complaint against Attorney M, the Board discovered a series of letters Eicher wrote. Throughout the correspondence, Eicher maintains that he will seek Rule 11 sanctions, allege barratry, and file disciplinary actions if Attorney M does not take the action Eicher seeks.

[¶ 37.] The Disciplinary Board and the Referee disagreed about Eicher’s course of conduct in this matter. The Disciplinary Board found that Eicher’s acts served no legitimate purpose, particularly when repeated several times in unrelated actions. The Board believed the letters demonstrated a pattern aimed to intimidate and threaten Attorney M so as to interfere with his professional obligation to his clients. The Referee found:

If, after investigation, an attorney justifiably believes, as does his employer (including a[sic] insurance agency), that a particular personal injury case is in some respects fraudulent, frivolous, or of highly questionable legal merit, then I believe he (they) should have right to so state, along with perceived legal ramifications. Attorney “M’s” conduct was unacceptable and contributed to the suspicion and disbelief regarding the merit of these claims. There was a basic professional disrespect shown by Attorney “M” towards [Eicher], Further, it appears that the attorneys involved have had a history of “frankness” with each other.
Based on my review of the letters, including Exhibit 2 [Eicher’s] reply letter, as well as the testimony in this matter, [Eicher] and his respective employers had a reasonable basis to advise Attorney “M” of the consequences of proceeding with a perceived frivolous, and perhaps fraudulent, claim. I am not satisfied that the specific contents of the letters were intended to threaten, intimidate, or coerce Attorney “M” into agreeing with [Eicher] about how the cases ought to proceed.

The Referee concluded that Eicher’s conduct did not violate any Rules of Professional Conduct.

[¶ 38.] We note that the current Federal version of Rule 11 requires a letter from counsel to opposing counsel before a motion for Rule 11 sanctions may be brought before the court. However, that is a far cry from the numerous letters written by Eicher to Attorney M which went well beyond a notice of a possible Rule 11 hearing and included threats of barratry and filing of disciplinary actions.

[¶ 39.] Threats by counsel to file disciplinary charges against an opponent may, depending on the circumstances violate one or more of Rules 8.4(b), 3.1, 4.1, 4.4 and 8.4(b). ABA Com. on Ethics and Professional Responsibility, Use of Threatened Disciplinary Complaint Again Opposing Counsel, Formal Op. 94r-383. This opinion explains, in part,

A lawyer’s use of the threat of filing a disciplinary complaint or report against opposing counsel, to obtain an advantage in a civil case, is constrained by the Model Rules, despite the absence of an express prohibition on the subject. Such a threat may not be used as a bargaining point when the subject misconduct raises a substantial question as to opposing counsel’s honesty, trustworthiness, or fitness as a lawyer, because in these circumstances, the lawyer is ethically required to report such misconduct. Such a threat would also be improper if the professional misconduct is unrelated to the civil claim, if the disciplinary charges are not well founded in fact and in law, or if the threat has no substantial purpose or effect other than embarrassing, delaying or burdening the opposing counsel or his client, or prejudicing the administration of justice.

[¶ 40.] Eicher repeatedly told Attorney M that he would file disciplinary actions in the Bird Hat and Bernardo cases. He also repeatedly maintained that he would seek Rule 11 sanctions and allege barratry.

[¶ 41.] SDCL 15-6-ll(a):

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion and exhibits or attachments thereto, or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, embarrass another party or person, or to cause unnecessary delay or needless increase in the cost of litigation.

Appropriate sanctions are provided for a violation of this rule. SDCL 15—6—11(b). However, Rule 11 motions must never be used as a mere tactic to bolster a response—whether meritorious or not—to a motion or pleading. Caribbean Wholesales and Service Corp. v. U.S. JVC Corporation, 101 FSupp2d 236 (S.D.N.Y.2000). The same is true of threatened Rule 11 sanctions and barratry claims, especially in the Bird Hat matter which was merely at a claim stage. See SDCL 16-18-16: “[i]t is the duty of an attorney and counselor at law not to encourage either the commencement or continuance of an action or proceeding from any motive of passion or interest.”

[¶ 42.] Eicher’s conduct, at a minimum, violated Rule 3.4, dealing with fairness to opposing counsel, Rule 8.3, dealing with the reporting of professional misconduct, and Rule 8.4, dealing with professional misconduct and engaging in conduct prejudicial to the administration of justice. Therefore we uphold the Board’s conclusions of law on this complaint.

4. Eicher Generated Complaint

[¶ 43.] While the three complaints against Eicher were pending, Eicher, within a five day period, filed four disciplinary complaints. Two were filed against Koch and Clayborne, the attorneys who had filed complaints against Eicher. Two were filed against Clayborne’s law partners All were investigated, found meritless, and expunged.

[¶ 44.] Rule 8.3(a), which mandates the reporting of a fellow lawyer’s misconduct,

[L]imits the rule to cases of known violations that directly implicate the integrity of the legal profession. The duty to report accordingly applies only to cases raising a “substantial question” about another lawyer’s very fitness to practice law. This formula puts a burden on the reporting lawyer to make a preliminary judgment whether a violation rises to that level.

2 Geoffrey C. Hazard Jr., et al, The Law of Lawyering at § 8.3:102. Eicher’s complaints against Clayborne and Koch did not rise to that level. The Disciplinary Board and the Referee correctly found that these were retaliatory in nature.

[¶ 45.] SDCL 16-19-30 provides:

Complaints submitted to the board or testimony with respect thereto shall be absolutely privileged and no civil action predicated thereon may be instituted. Members of the board, the board’s counsel, board staff and any personnel or legal counsel appointed pursuant to § 16-19-29(2) shall be immune from suit for any conduct in the course of their official duties.

Eicher claims that the immunity provided by this statute means no attorney may be the subject of a disciplinary action because the attorney filed a complaint ultimately rejected by the Board. Eicher misreads this court rule. SDCL 16-19-30 precludes a civil action predicated on complaints submitted to the Board. Article V § 12 of the South Dakota Constitution vests the ultimate authority for regulation of attorneys with this Court. It is hardly consistent with this mandate that this Court would enact a court rule that would preclude it from imposing discipline upon attorneys who violate the ethical rules by filing unwarranted complaints with the Disciplinary Board under the premise that such improper conduct is privileged. SDCL 16-19-30 does not preclude accountability for a violation of the Rules of Professional Conduct.

[¶ 46.] The Referee and the Disciplinary Board concluded that Eicher’s filing of retaliatory and meritless complaints violated Rules 3.1, 3.3, 3.4, 4.1, 4.4 and 8.4. Our review of the complaints against Clayborne and Koch establishes no error.

APPROPRIATE DISCIPLINE

[¶47.] The appropriate discipline in a particular case is determined by considering the seriousness of the misconduct and the likelihood that it or similar misconduct will be repeated. In re Discipline of Light, 2000 SD 100, 615 N.W.2d 164. We also consider the prior record of the attorney. Matter of Bihlmeyer, 515 N.W.2d 236 (S.D.1994). Eicher’s conduct in this case leads us to conclude that the Disciplinary Board’s recommendation of public censure and the Referee’s recommendation of public censure and private reprimand are too lenient.

[¶48.] Eicher is a familiar participant in the disciplinary process. His acts of disparaging others, threatening sanctions and disciplinary complaints against opposing counsel, attempting to bargain away a disciplinary complaint against himself by offering to give up his client’s civil appeal rights, and filing retaliatory disciplinary complaints are prejudicial to the administration of justice and violative of the Rules of Professional Conduct. Nearly a century ago, this Court had cause to condemn as unprofessional conduct, those attorneys who abused the judicial process for improper means.

Attorneys should never forget that they are officers of the court; that justice under the law is all that their clients are entitled to and all that they have a right to seek for them; that theirs is an honorable profession who true votaries never try to justify their acts on the old saw, “The end justifies the means.”

In re Swihart, 42 S.D. 628, 635, 177 N.W. 364, 366 (1920) (six months suspension ordered).

[¶ 49.] Eicher attempts to avoid responsibility for his acts by pointing to the judges who presided over the legal proceedings that produced these complaints. He argues that since none of the complaints were generated by the judge presiding at those proceedings but rather by disgruntled opposing attorneys, he is absolved of any finding of wrong doing. However, Canon 3(D)(2) of the South Dakota Code of Judicial Conduct provides, in part:

A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Code of Professional Responsibility should take appropriate action.. A judge having knowledge that a lawyer has committed a violation of the Code of Professional Responsibility that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority.

SDCL 16-2, Appx. This Canon clearly provides that a trial judge may take “appropriate action” in its court without reporting it to the Disciplinary Board. It is only when a violation raises a “substantial question” as to the “lawyer’s honesty, trustworthiness or fitness as a lawyer” that a mandatory obligation to report to the Disciplinary Board is invoked. Thus, these trial judges may have considered the issue and taken what they deemed to be “appropriate action.” Simple communication with the lawyer satisfies the judge’s ethical duty. Our record does not inform us on that issue. Moreover, each of those judges only had one incident before them. We have the benefit of an extensive record with multiple complaints all showing similar inappropriate conduct.

[¶ 50.] In addition, judges do have authority to deal with misconduct committed before them by contempt, Rule 11 sanctions and other inherent authority. Article V § 12 of the South Dakota Constitution vests this Court with disciplinary authority of members of the bar concerning their right to practice law in this state. While Rule 11 sanctions may also flow from the attorney’s ethical violations, it is a separate legal consequence of the misconduct. A trial court has no more authority to disbar, suspend or publicly censure an attorney for an infraction committed before it in a legal proceeding than it does to absolve that attorney of a charge of an ethical violation in the same proceeding.

[¶ 51.] Eicher further defends his actions by arguing that his conduct is no worse than that of some other attorneys in his area of practice. “Arguments that [Eicher] is no worse than the supposed bottom of the barrel that have been admitted [to the bar], all fail to pass muster.” Ogilvie, 2001 SD 29 at ¶ 70, 623 N.W.2d at 70 (Gilbertson, J. dissenting).

[¶ 52.] Eicher refuses to acknowledge the impropriety of his actions. This, coupled with his penchant for blaming others and the repeated unprofessional attacks that have continued throughout this appeal underscore the need for discipline. Here, Eicher attempts to absolve himself by blaming the conduct of opposing counsel and parties for his situation. He has also cast unwarranted aspersion on the impartiality of the Disciplinary Board and unjustly attacked the Court’s Referee for failing to follow what he perceives to be the correct disciplinary procedures. He is totally unrepentant.

To gain [and maintain] admission to the bar, [a person] does not have to fit into any preconceived stereotype. Membership in the Bar should be [as] diverse as is the public it is charged with serving. However, for the legal system to properly function, certain common denominators are mandatory. One of these is that members and applicants for membership, exhibit good moral character. In South Dakota a three piece suit and leather briefcase is not a prerequisite to be a lawyer-good moral character is.

Mattson, 2002 SD 112 at ¶ 53, 651 N.W.2d at 289 (citations omitted).

[¶ 53.] Eicher further attempts to justify his conduct by wrapping himself in the protection of the First Amendment. This record is replete with his misdeeds, not free speech. Under such circumstances, rather than attempting to assure this Court his misdeeds will not be repeated, his objections to the Referee’s report as well as his presentation to this Court at oral argument and his post oral argument submission lead us to conclude his unwarranted view of the cause of his present situation will result in his continuing to practice law in the same inappropriate manner. See Dorothy, 2000 SD 23 at ¶ 41-2, 605 N.W.2d at 505. The manner of the practice of law Eicher has engaged in and continues to pursue has never been allowed in this State and will not be allowed in the future.

[¶ 54.] The disciplinary options at this Court’s disposal include private remand, public censure, placement on probationary status, suspension for up to three years and disbarment. Mattson, 2002 SD 112 at ¶ 51, 651 N.W.2d at 288; SDCL 16-19-35. SDCL 16-19-31 states in part: “[t]he license to practice law in this state 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.” Upon such a record as this, we cannot conclude Eicher is meeting or will meet this standard. Eicher’s egregious conduct involved in this case combined with his disciplinary history, lack of respect for the legal system, and complete lack of remorse is of such serious professional nature that it warrants a one hundred (100) day suspension from the practice of law. SDCL 16-19-35(2). We feel that this adequately protects the public while allowing Eicher sufficient time to educate himself on the proper conduct of an attorney and moreover, justify to this Court that the public would be benefited by his re-admission to being a full-time practitioner. See SDCL 16-19-83.

History is replete with those who have overcome a weakness or character flaw and risen to what Attorney at Law Abraham Lincoln declared to be the “better angels of our nature.” Perfection is not required-good moral character is.

Ogilvie, 2001 SD 29 at ¶ 72, 623 N.W.2d at 71 (Gilbertson, J., dissenting). See also Application of Widdison, 539 N.W.2d 671, 679 (S.D.1995).

[¶ 55.] In addition, Eicher is required to submit an affidavit to this Court stating under oath that:

1) he has reviewed the Rules of Professional Conduct;
2) upon reinstatement, he will maintain professional malpractice insurance along with proof thereof;
3) he recognizes fully that his conduct violated the Rules of Professional Conduct by which he is bound;
4) he pledges he will devote every effort in his future practice to fully abide by the South Dakota Rules of Professional Conduct;
5) he will be taxed and required to pay, allowable costs and expenses as provided in SDCL 16-19-70.2; and
6) he is to fully comply with the requirements of a suspended attorney found in SDCL 16-19-78 and 79.

See Wilka, 2001 SD 148 at ¶ 19, 638 N.W.2d at 250. He must also take and successfully pass the Multistate Professional Responsibility Examination either prior to reinstatement or within six months thereafter. Matter of Discipline of Johnson, 488 N.W.2d 682 (S.D.1992).

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

[¶ 57.] KONENKAMP, Justice, disqualified.

      . Under Rule VIII(A) of the Rules of Procedure of the Disciplinary Board may dismiss a complaint if frivolous or clearly unfounded in fact. It may expunge a frivolous or clearly unfounded complaint by a separate and unanimous vote. Rule VIII(D), SDCL 16-19, Appx.

      . Other than extensive background regarding Eicher’s complaints against Koch and Clay-borne, the record before us does not contain the specifics of the remaining complaints filed by Eicher since they were expunged and dismissed by the Disciplinary Board. As there is no basis for our review of the contents of the others, we express no opinion on their propriety.

      . At oral argument Eicher claimed that the Disciplinary Board denied his request to present witnesses on his behalf. We find no basis for this in the record. He was advised of the Board’s rules which include the accused attorney’s "right to be heard, to offer witnesses, to be represented by Counsel and to have a record kept[J” See Rule IX(D), Rules of Procedure of the South Dakota Disciplinary Board of the State Bar of South Dakota, SDCL 16-19, Appx.
      Eicher also claimed that the confidentiality of disciplinary proceedings precluded him from telling his client about the proceedings concerning his conduct and calling her as a witness. Eicher, however, could have waived that confidentiality. SDCL 16-19-99 provides, in part
      All proceedings involving allegations of misconduct by or the disability of an attorney shall be kept confidential until a formal complaint asking for disciplinary action is filed with the Supreme Court by the board or the attorney general, or the respondent-attorney requests that the matter be public, or the investigation is predicated upon a conviction of the respondent-attorney for a crime or, in matters involving alleged disability, the Supreme Court enters an order transferring the respondent-attorney to disability inactive status pursuant to § 16 — 19— 88 or 16-19-92.
      (emphasis added).

      . See generally SDCL 16-19-46 which provides that in disciplinary proceedings "[n]either unwillingness nor neglect of the complainant to sign a complaint or to prosecute a charge, nor settlement or compromise between the complainant and the attorney or restitution by the attorney, shall, in itself, justify abatement of the processing of any complaint.”

      . In Mattson, we examined the nature of this attorney-client relationship:
      "The nature of the relationship between attorney and client is highly fiduciary. It consists of a very delicate, exacting and confidential character. It requires the highest degree of fidelity and good faith. It is a purely personal relationship, involving the highest personal trust and confidence.” "By virtue of his fiduciary duties to his client, an attorney is forbidden from using his official position for private gain.” While representing a client an attorney must not do anything knowingly that is inconsistent with the terms of his employment or contrary to the best interests of his client. This is "fundamental law.”
      2002 SD 112 at ¶ 44, 651 N.W.2d at 286-287. (citations omitted).

      . This was not the end of this type of conduct. A great portion of Eicher’s objections to referee's report filed with this Court is nothing more than an attack on the integrity of board member Greg Eiesland. In that pleading Eicher castigates Eiesland for not recusing himself at the April board meeting where a complaint was filed against Eicher. What Eicher fails to tell this Court is that Eiesland did not sit on the board when the complaint was actually heard before the board in June of that year. "Selective omission of relevant information ... 'exceeds the bounds of zealous advocacy and is wholly inappropriate.' ” Dorothy, 2000 SD 23 at ¶ 51, 605 N.W.2d at 509.

      . Federal Rule 11(c)(1)(A) adopted in 1993 contains a twenty-one day “safe harbor.” If a lawyer intends to file a Rule 11 motion against an opposing lawyer, the first must give the other twenty-one days notice of the Rule 11 motion, thus allowing the "offending” lawyer the option of withdrawing the purported frivolous pleading during the twenty-one day period. If the pleading is not withdrawn, then the Rule 11 motion may proceed to be heard by the Court.
      South Dakota’s version of Rule 11 (SDCL 15-6-11) is the 1983 version of the Federal Rule. It does not contain the twenty-one day notice provision.

      . SDCL 16-18-19 states:
      It is the duty of an attorney and counselor at law to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judges by any artifice or false statement of face or law.

      . We express no opinion on the propriety of these complaints. See fn. 2.

      . Eicher’s own pleadings filed with this Court unmistakably reveal his inability to understand his ethical breaches. His pleadings also reveal the substantial likelihood his wrongful activity will continue in the future. For example, with respect to an appropriate sanction, Eicher suggests that to "draw to a close the litany of impermissible errors prejudice and personal animus of certain Board members [Eicher] is reminded that if the findings and recommendations of the Referee and the Board are followed, a warranted public rejoinder by [Eicher] would certainly be permissible.” Eicher then asks rhetorically "[i]n what other way could the public be informed that the complaints are irrelevant to the conduct owed by attorneys to their clients. How else would the public — which is to be protected from the wrongful conduct some lawyers [sic] — be protected, as well as fully informed.”