author:
TUCKER, Circuit Judge.
      AMUNDSON, Justice

text:
    2001 SD 55
    CITY OF ABERDEEN, Plaintiff and Appellant, v. Timothy RICH, Thomas Tobin, Roger Huff, Huff Development Corporation, a South Dakota Corporation, and Sea Corporation, a South Dakota Corporation, Defendants and Appellees.
    Nos. 21385, 21397, 21413.
    Supreme Court of South Dakota.
    Argued Oct. 23, 2000.
    Decided May 2, 2001.

      Mark V. Meierhenry and Robin Jacobson Houwman of Danforth, Meierhenry & Meierhenry, Sioux Falls, SD, Attorneys for plaintiff and appellant City of Aberdeen.
    Rollyn Samp of Samp Law Offices, Sioux Falls, SD, .Attorneys for defendant and appellee Timothy Rich.
    Thomas Tobin of Tonner, Tobin <& King, Aberdeen, SD, Pro se for defendant and appellee Huff Development, Inc.
    Mark Barnett, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, SD, Attorneys for State of South Dakota as amicus curiae.
   TUCKER, Circuit Judge.

[¶ 1.] The City of Aberdeen (City) brought this declaratory judgement action against defendants to determine if two separate land transactions with City should be declared null and void due to an interest in the transactions by the city mayor in violation of SDCL 6-1-1. SDCL 6-1-1 provides in pertinent part:

It shall be unlawful for any officer of a county, municipality, township or school district who has been elected or appointed, to be interested, ... in any contract entered into by said county, municipality, township or school district ... in the purchase of any real or personal property belonging to the county, municipality, township or school district.... Such contract shall be null and void from the beginning.

The circuit court found no statutory violation in the first transaction and a violation of the statute in the second transaction. Both sides appeal.

FACTS

[¶ 2.] This case involves two land transactions between City and Mayor Tim Rich, City Attorney Tom Tobin, Roger Huff, Huff Development, Inc., and SEA, Inc. During all times relevant to this action, Rich was the mayor of Aberdeen and To-bin was the city, attorney of Aberdeen.

[¶ 3.] The first transaction involved land in the Mel-Ros addition of the City of Aberdeen. On June 28, 1991, the property was officially offered for sale by City. The required notices were published. On February 3, 1992, city council approved the sale of the city land to Huff Construction. Mayor Rich abstained from that vote. At the city council meeting the Mayor said:

I have been talked to about investing in it. I am not invested in it at this time, but I will abstain because I do not want any conflict of interest at this particular time. So at this time with that knowledge, I would like the Secretary to take roll.

Huff delivered a check to City on February 3, 1992, on the account of Huff Construction. The check was not deposited by the City finance department until March 10,1992.

[¶ 4.] On February 4, 1992, Huff and Mayor Rich called City Attorney Tobin to form a corporation involved in financing spec homes and they wanted to sign it that day. Tobin testified that sometime later he was informed that they were going to transfer the land from Huff to the corporation. Huff and Rich were equal owners of Huff Development. On February 5, 1992, Mayor Rich also signed a plat for the land in question. Mayor Rich signed the plat as a Secretary of the owner, Huff Development, Inc.

[¶ 5.] On March 9, 1992, Mayor Rich signed a warranty deed transferring the city-owned real estate to Huff. City Attorney Tobin prepared the deed. Huff, however, had already executed a warranty deed which transferred any interest he had in the same land to Huff Development, Inc., on March 5, 1992, four days prior to receiving the deed for the property from City. City Attorney Tobin knew at the time he drafted the deed from Huff to Huff Development that the Mayor was a 50% owner of the entity to which the land was being transferred.

[¶ 6.] The second transaction involved a trade and sale of land between SEA, Inc. and City. SEA proposed a sale/trade of land between City and SEA. Prior to the transfer, two appraisals were made of the properties in question. Wallace E. Nelson completed the first appraisal on November 11, 1994. Nelson valued City’s property at $17,160 and the property owned by SEA at $8,200, a difference of $8,960. City paid for Nelson’s appraisal. The value for both parcels was based on comparable sales. Mayor Rich was unhappy with the first appraisal and ordered the city planning and zoning director to obtain a second appraisal because the first appraisal was too high. The city finance director confirmed that the Mayor felt the appraisal was quite high and wanted another appraisal.' D.L. Mohr completed a second appraisal on February 15, 1995. Mohr’s appraisal found that there was a difference of only $2,060 between the values of the land.

[¶ 7.] In March 1995, Mayor Rich attended the Site Planning Board meeting to discuss the proposed sale/trade of land. The Mayor testified that he was at the meeting as Mayor and as a representative of SEA. He felt that, based on his knowledge of the transaction, that the sale/trade made sense for City and all parties to it. Only the Mohr appraisal was shown to the Site Planning Board. The Board was not informed of the other appraisal.

[¶ 8.] On May 30, 1995, City approved the trade of land with an additional payment of $817 by SEA to City. The Mayor said at the city council meeting, “I must disclose that I am involved in these transactions as is the City Attorney.” City Council approved this transaction on May 30, 1995, with Mayor Rich abstaining. On May 30, 1995, Mayor Rich, in his capacity of mayor, quitclaimed the City land to SEA. On May 30, 1995, SEA quitclaimed its property to City in addition to a payment of $817. At the time of the transfer, SEA had four equal stockholders, Mayor Rich, City Attorney Tobin, Huff, and City Engineer Francis Brink.

[¶ 9.] On that same date, SEA sold seven lots of the newly purchased/traded land for $77,000. City Attorney Tobin drew all the deeds involved in this case relevant to both transactions.

[¶ 10.] On May 28, 1998, the South Dakota Department of Legislative Audit prepared a special report questioning the propriety of these land transactions. City commenced this action against Mayor Rich, City Attorney Tobin, Huff, Huff Development Corporation, and SEA in July 1998 seeking to void both transactions and, if the transactions are voided, requesting “that the Court take evidence and make its determination as to what remedies, if any, the City of Aberdeen has available and to determine the rights of other persons and the title in the real estate involved in the questioned land transactions.”

ANALYSIS AND DECISION

First Transaction

ISSUE ONE

[¶ 11.] Did City commence this action within the applicable statute of limitations?

[¶ 12.] The trial court found that at the time of the vote to accept the bid in the first transaction, Mayor Rich did not have an interest in the contract. The trial court also found that the relevant statute of limitations had expired by the time City brought the action regarding the first transaction. The city council vote approving the purchase occurred on February 3, 1992, and the deed was delivered on March 9, 1992. This action was filed on July 30, 1998. The trial judge held that the six year statute of limitations found in SDCL 15-2-13 applied to this transaction. The court ruled that the statute of limitations had expired and that City had failed to establish that fraud was present to toll the statute of limitations.

[¶ 13.] City argues first that SDCL 15-3-6 provides the statute of limitations relevant to this action. SDCL 15-3-6 states:

When grants of real property shall have been issued or made by the state, and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, an action for the recovery of the premises so conveyed may be brought either by the state or by any subsequent grantee of the same premises, his heirs or assigns, within twenty years after such determination was made, but not after that period.

[¶ 14.] This statute provides a twenty year period in which to recover real property granted by the State where the transaction has been declared void. However, in this case City, not the State of South Dakota, is pursuing this action. There is no grant from the State of South Dakota being contested here. Therefore, the twenty year statute of limitations in SDCL 15-3-6 is not applicable.

[¶ 15.] Next, City asserts that SDCL 6-1-4 contains an appropriate statute of limitations. SDCL 6-1-4 states:

Any civil action to recover the amounts paid by a county, municipality, township or school district under any of the conditions of §§ 6-1-1 to 6-1-3, inclusive, must not withstanding any other law or statute of limitations, be commenced within six months from the date of publication of the minutes recording the approval of the voucher in payment thereof or within six months from the filing of any audit report covering the expenditure therefor, whichever of the two events occurs the later; but, this limitation for commencement of civil actions shall not apply where any fraud or deceit was used in securing or performing such contract.

[¶ 16.] SDCL 6-1-4 allows six months from the date of the filing of any audit report. In this case, the special audit report was filed on May 28, 1998. City’s action was commenced within six months of the audit. However, SDCL 6-1-4 applies only to “any civil action to recover the amounts paid by a county, municipality.” In this case in the first transaction City did not pay any amounts. Since this action is not an action to recover amounts paid by the municipality, SDCL 6-1-4 does not apply.

[¶ 17.] The trial court applied the statute of limitations found in SDCL 15-2-13. That statute provides: “Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within six years after the cause of action shall have accrued: (1) an action upon a contract.”

[¶ 18.] SDCL 15-2-13 provides the relevant statute of limitations in this case. The trial court found that City had failed to show any fraud or deceit that would toll the six year statute of limitations. Therefore, the statute of limitations had run at the time that City commenced this action. The trial court’s ruling in favor of the defendants on the first transaction is affirmed. Given the ruling on the statute of limitations issue, this Court need not address the issue of whether the trial court correctly determined that Mayor Rich did not have an interest in the purchase of the property in the first transaction in violation of SDCL 6-1-1.

Second Transaction

ISSUE TWO

[¶ 19.] Was the trial court correct in finding fraud and deceit by Tobin and Rich in transaction two?

[¶ 20.] Tobin and Rich do not appeal the trial court’s holding that the second transaction is void due to Rich’s and Tobin’s interest in the transaction under SDCL 6-1-1. However, Rich and To-bin claim that the trial court erred in finding that their conduct in the second transaction constitutes fraud and deceit. Findings of fact are reviewed on appeal under the clearly erroneous standard. Northwestern Bell Tel. Co. v. Stofferahn, 461 N.W.2d 129 (S.D.1990). Fraud and deceit include not only affirmative acts, but also acts of omission. Himrich v. Carpenter, 1997 SD 116, 569 N.W.2d 568; Brevet Int’l., Inc. v. Great Plains Luggage Co., 2000 SD 5, 604 N.W.2d 268.

[¶ 21.] At the time Mayor Rich was considering acquiring a personal interest in City’s land, he ordered, in his capacity as mayor, a second appraisal of the land in hopes that it would be lower. Furthermore, Mayor Rich did not inform either the Site Planning Board or the City Commission of the first appraisal. Mayor Rich argues that he took no action to conceal the first appraisal from the various boards. Regardless of any affirmative acts to conceal the appraisal, Mayor Rich had a fiduciary duty to City to make sure all appraisals and information regarding those appraisals was supplied. His failure to make sure both appraisals were provided constitutes fraud and deceit.

[¶ 22.] As public officers, Mayor Rich and Attorney Tobin put themselves in a position where their personal interests conflicted with their duty to the public. Both men used their professional positions for private gain. Their actions indicated corruption and favoritism in public office. SEA’s immediate sale of seven lots for $77,000 displays city officials obtaining personal profit at the expense of City.

[¶23.] The trial court’s ruling finding fraud and deceit on the part of Mayor Rich and City Attorney Tobin is affirmed.

ISSUE THREE

[¶ 24.] Did the trial court properly deny City’s motion to amend its complaint after trial?

[¶ 25.] After the trial, City attempted to amend its complaint to request a hearing to determine damages and liability both to City and to subsequent purchasers. The trial court denied the motion to amend, ruling that persons who were not parties to this action had interests which could not be fully protected by the parties to this action and that the court had already made a determination on liability on the merits on this case.

[¶ 26.] The trial court then determined that the only remedy that could be imposed in the second transaction was to declare the contract void. Further, the trial court ordered that the exchanged property be returned to the party owning the property prior to the transaction and that City return $817 paid in cash by SEA. This ruling did not consider the plight of the people who purchased land from SEA that was now to be returned to City.

[¶ 27.] The original complaint in this action was brought as a declaratory judgment action to determine the legality of the two transactions. In its prayer for relief City asked “that if the court should find that either one or both of the land transactions between the City of Aberdeen and others is void, that the court take evidence and make its determination as to what remedies, if any, the City of Aberdeen has available and determine the rights of other persons and the title in the real estate involved in the questioned land transactions.”

[¶ 28.] In this action, the amended complaint should have been granted. “A trial court may permit the amendment of pleadings before, during, and after trial without the adverse party’s consent.” Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D.1987). Further, SDCL 15-6-17A allows City to sue on behalf of the subsequent purchasers in this action. It provides that: “[a] party authorized by statute may sue in its name without joining the party for whose benefit the action is brought.” SDCL 15-6-17A. Prior case law of this Court supports the action taken by City and the form of the complaint. See e.g. Hoiten v. City of Canistota, 1998 SD 44, 579 N.W.2d 12; Carr v. City of Sioux Falls, 416 N.W.2d 602 (S.D.1987).

[¶ 29.] Additionally, defendants are unable to show any prejudice resulting from the granting of the motion to amend. In the initial complaint defendants were given notice that if City’s action was successful, City would seek a subsequent hearing to determine liability. The amended complaint seeks to ensure that the citizens of Aberdeen who were subsequent purchasers in the underlying transactions have some remedy due to the wrongful actions of defendants. In this case further relief is necessary and proper. The trial court’s denial of the motion to amend is reversed.

[¶ 30.] This case is remanded for further proceedings to determine the liability of defendants to City and to subsequent purchasers.

[¶ 31.] Affirmed in part, reversed in part and remanded.

[¶ 32.] MILLER, Chief Justice, and KONENKAMP, Justice, and WILBUR, Circuit Judge, concur.

[¶ 33.] AMUNDSON, Justice, concurs in result.

[¶ 34.] TUCKER, Circuit Judge, for GILBERTSON, Justice, disqualified.

[¶ 35.] WILBUR, Circuit Judge, for SABERS, Justice, disqualified.

AMUNDSON, Justice

(concurring in result).

[¶ 36.] I agree with the majority that the trial court must determine the rights of all parties, now that this second land sale contract is held void. The effect of voiding this contract is to place the parties back in their original position. Cf. Wolken v. Wade, 406 N.W.2d 720 (S.D.1987). Once a court declares a contract void, it is treated as if it is rescinded.

The right to rescind must be exercised in toto, allowing the contract to stand or fall as a whole.... [T]he effect of rescission of a contract is to put the parties back in the same position they were in prior to the making of the contract. Rescission requires restoration of the status quo. There can be thus no partial rescission of a contract. It is either valid or void in toto.

Holden v. DuBois, 665 P.2d 1175, 1177 (Okla.1983) (internal citations omitted). “[T]he law abhors a forfeiture.” BankWest v. Groseclose, 535 N.W.2d 860, 864 (S.D.1995) (citing Ford v. Hofer, 79 S.D. 257, 111 N.W.2d 214, 216 (S.D.1961)). To avoid forfeiture, it is only fair that all parties are placed in the same position each occupied prior to the voidance of the contract. This would require the trial court to order City to return the property it received from SEA, and SEA to return the property or monies received from the lot sales to City. Also, both City and SEA should be required to execute all deeds or documents necessary to insure that good title remains in the hands of the subsequent purchasers now part of this action.

       In determining what relief is necessary and proper, the trial court should give due consideration to this Court's ruling in Carlson v. Donnenwirth, 75 S.D. 432, 67 N.W.2d 149 (1954); Speckels v. Baldwin, 512 N.W.2d 171 (S.D.1994); and Himrich v. Carpenter, 1997 SD 116, 569 N.W.2d 568.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Michael K. MULFORD, Respondent.
    No. 01-0015.
    Supreme Court of Iowa.
    April 25, 2001.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Michael K. Mulford, Kellogg, pro se.
   TERNUS, Justice.

The Grievance Commission of the Supreme Court of Iowa reported to the court that the respondent, Michael Mulford, had violated Disciplinary Rule 1-102(A)(5) and (6) of the Iowa Code of Professional Responsibility for Lawyers based on his willful avoidance of prosecution on a federal indictment for almost ten years. The Commission recommended a public reprimand. Upon our de novo review, the court agrees that Mulford has committed an ethical violation. The court believes, however, that Mulford’s misconduct, aggravated by his actions during the course of the disciplinary process and his continued refusal to acknowledge the seriousness of his actions, warrants a suspension.

I. Background Facts and Proceedings.

Mulford was admitted to practice law in the States of Iowa and Florida in 1980. He established a law firm in Florida shortly after passing the bar.

On April 30, 1987, a federal grand jury in the Northern District of Texas indicted Mulford and twenty-one other defendants on various conspiracy and tax-fraud charges. The indictment charged that from 1981 through 1985 Mulford and his alleged co-conspirators engaged in schemes to promote and sell false and fraudulent tax deductions to be claimed on United States income tax returns. Contemporaneously with the filing of the indictment, the United States District Court for the Northern District of Texas issued a warrant for Mulford’s arrest.

Mulford was living in the Cayman Islands at the time the indictment was filed and the arrest warrant was issued. He did not return to the United States. For the next ten years, Mulford lived in various places around the world, including Panama, Europe, and Africa.

On March 19, 1997, Mulford came back to the United States and surrendered to federal authorities in Texas. He then negotiated a plea agreement with the federal prosecutor. Under the terms of this agreement, Mulford agreed to plead guilty to criminal contempt in violation of 18 U.S.C. § 401(3). The information charging Mulford with this crime stated in pertinent part that

[f]rom in or about late April-May 1987, continuing to in or about March 1997, [Mulford] did willfully, knowingly and unlawfully, disobey and resist a lawful writ, process, order, rule[,] decree and command of the United States District Court for the Northern District of Texas [in that an] [a]rrest warrant [was] issued for ... Mulford [and] [s]hortly after the warrant was issued, continuing up to the date he surrendered in Dallas, Texas, on or about March 19, 1997, Mulford remained outside the United States and willfully disobeyed and resisted the lawful process of the Court and did not surrender to the Court in United, States v. Bryan et al.

In addition to pleading guilty to contempt, Mulford promised to “cooperate with the government by giving truthful and complete information and/or testimony concerning his knowledge of criminal activities.” In exchange, the federal prosecutor agreed “not [to] bring any additional charges against Mulford for any offenses presently ... known to the government [and] agree[d] to dismiss ... the pending Indictment against [Mulford].” The written plea agreement signed by Mulford also stated that the factual resume prepared by the federal prosecutor was “true and correct.”

Because the factual resume is crucial to the credibility of Mulford in the current disciplinary proceedings, we set it out in full:

Had this case proceeded to trial, the United States would have proved the following beyond a reasonable doubt:
1. Defendant, Michael K. Mulford, was indicted on or about April 30, 1987, along with 21 other defendants in a 25-count Indictment by the Federal Grand Jury sitting in the Northern District of Texas, Dallas Division: U.S. v. Bryan, et ah 3:87-CR-0116-T.
2. Mulford was charged in Counts 1, 8, 20, 21, 22, and 23.
3. An arrest warrant was issued for Mulford’s arrest on or about April 30, 1987.
4. Shortly after the warrant was issued, Mulford became aware of the Indictment and his requirement to make himself available to the jurisdiction of the Court.
5. Mulford remained outside the United States and did not surrender himself to the jurisdiction of the United States District Court for the Northern District of Texas, Dallas Division, until on or about March 19,1997.
6. Mulford thereby willfully disobeyed and resisted a lawful writ, process, order and command of the Court.

(Emphasis added.) Mulford and his attorney signed this document on June 5, 1997, indicating that they had “[s]een [it] and [a]greed” with it.

A hearing on Mulford’s plea was held on June 5, 1997, in the United States District Court for the Northern District of Texas. Mulford stated that he wished to plead guilty. At the court’s request, the factual resume that Mulford had signed was read aloud. The judge then asked Mulford: “Do you agree that those are the facts of this case as they apply to you?” Mulford replied that he did. The court ruled that the factual resume provided a factual basis for Mulford’s guilty plea to the charge of criminal contempt in violation of 18 U.S.C. § 401(3).

At sentencing, Mulford’s attorney suggested that Mulford had remained out of the country because threats had been made against his life due to his alleged cooperation with the United States government and Cayman authorities in investigating the illegal drug trade. The prosecutor’s attempt to introduce evidence that Mulford had not provided any substantial assistance to the drug investigation was rejected by the court on the basis that Mulford’s assertions were irrelevant to the court’s sentencing decision. More important to the present matter, however, is the fact that Mulford acknowledged during the course of this discussion that he was aware of the indictment from the beginning: “While it is true that I learned about the indictment, I did not return because I did [not] feel it was safe to do so.”

The court sentenced Mulford to a six-month prison term on the contempt charge, and dismissed the counts against Mulford in the original indictment. Mul-ford served his sentence at the Fort Des Moines Residential Halfway House in Des Moines.

During the period of time involved in the indictment, Mulford practiced law and maintained an active Iowa license. He went to inactive status in Florida and Iowa when he fled to Europe. After Mulford had completed his sentence, his request to return his Iowa license to active status was granted. Mulford did not inform the Iowa licensing officials of his criminal record. Since reactivating his license Mulford has served as counsel for the Iowa legislature and has been active in the Iowa State Bar Association.

II. Disciplinary Proceedings.

The Board of Professional Ethics and Conduct became aware of Mulford’s criminal contempt conviction when it received a copy of the contempt citation from an anonymous source. The Board filed a complaint against Mulford in September 2000 alleging that the conduct that formed the basis for the contempt conviction was a violation of the Iowa Code of Professional Responsibility, specifically DR 1 — 102(A)(5) (conduct prejudicial to the administration of justice) and DR 1-102(A)(6) (conduct reflecting adversely on fitness to practice law).

At the hearing before the Grievance Commission, the Board asserted that the contempt conviction itself established Mul-ford’s ethical misconduct under the doctrine of issue preclusion. Alternatively, the Board contended that the misconduct was established by Mulford’s own admissions in the criminal contempt proceeding.

Mulford vehemently argued that his contempt conviction provided no basis for a finding of any ethical violation. Initially, he asserted that the Board had no jurisdiction because he was not acting as an attorney nor did he have an active Iowa license at the time of the alleged misconduct. He further contended that the doctrines of laches and estoppel supported dismissal of the disciplinary charges.

With respect to the contempt conviction, Mulford argued that the elements of issue preclusion were not established. He also launched a collateral attack on the contempt conviction. Mulford asserted that the contempt citation itself violated his federal constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as state constitutional guarantees. He attacked the drafting of the criminal information filed against him and asserted a lack of correct procedural notice relating to the contempt proceeding.

Mulford additionally contended that a contempt conviction pursuant to 18 U.S.C. § 401(3) did not constitute a crime and the Board should not be allowed to rely upon a “petty indirect contempt [citation] for failure to appear for [an] indictment, which lacked any factual or legal basis, and [which] was dismissed in all respects relating to the Respondent.” He also asserted that the elements of the contempt charge were not proved because he had no notice of the underlying indictment and therefore could not have been in willful disobedience to any lawful writ, order, decree, or command.

Finally, Mulford denied that his contempt conviction established a violation of DR 1~102(A)(5) or DR 1-102(A)(6). He argued with respect to the prejudicial-to-the-administration-of-justice charge:

It is quite obvious that the Respondent did not engage in any activity that was prejudicial to the administration of justice by voluntarily surrendering to [the] court after discovering the dismissed indictment. The Respondent had received no summons, warrant or notification that would have required his appearance.
Respondent did not take any actions prejudicial to the administration of justice. If anything, the Respondent has been extremely cooperative by voluntarily surrendering and accepting the legally questionable contempt citation, for failure to appear for an indictment without any factual or legal basis, that was dismissed.

Mulford made similar arguments with respect to the fitness-to-practice-law charge. He claimed that his alleged contempt “was not conduct that adversely reflected] on his fitness to practice law” and “did not relate to [his] being a lawyer nor acting as a lawyer.”

As evidence of his fitness to practice law, Mulford relied on his appointment to the Iowa Supreme Court Commission on the Unauthorized Practice of Law. He also pointed out that he has had no other ethical accusations made against him and that no client suffered a legal detriment as a result of his “being cited for the petty offense of contempt of court.” Additionally, Mulford argued that the purpose of the ethical canons is not “to mete out abstract justice to wayward attorneys, but [is] chiefly intended to provide protection to the public.” He contended that “beyond any doubt,” “the public [did] not need to be protected from [him].”

After holding a hearing at which Mul-ford testified, the Commission issued its report. Based on the signed factual resume, the signed plea agreement, and Mul-ford’s testimony at the plea proceeding, the Commission found that Mulford was aware of the twenty-five-count indictment shortly after the indictment was filed and the arrest warrant issued. The Commission concluded that Mulford’s guilty plea to the contempt charge established his violation of DR 1-102(A)(5) and (6), regardless of whether the contempt was criminal in nature. In recommending that Mulford be given a public reprimand, the Commission stated:

After careful and thoughtful consideration, it is the recommendation of the Commission that Mr. Mulford receive a public reprimand for his conduct. The Commission believes that the plea of guilty to the contempt violation is a relatively minor matter but that such a plea does “adversely reflect on the fitness to practice law.” The Commission also believes Mr. Mulford intentionally remained outside the United States, in part, to avoid the arrest warrant in the indictment and thus was “engaged in conduct that is prejudicial to the administration of justice.” Mr. Mulford, however, has made a concerted and serious attempt to become a very active and productive member of the Iowa Bar. Under the circumstances, therefore, we believe that a public reprimand is appropriate and should be so ordered.

The Commission filed its report with this court. The matter is now before us pursuant to Court Rule 118.10, which provides for Supreme Court review of the Commission’s report.

III. Scope and Standard of Review.

This court reviews an attorney disciplinary proceeding de novo. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stefani, 616 N.W.2d 550, 551 (Iowa 2000); Ct. R. 118.10. Although we are not bound by the Commission’s findings, we give them weight, particularly when considering the credibility of witnesses. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 546 N.W.2d 215, 217 (Iowa 1996). We also respectfully consider the discipline recommended by the Commission, but we are not bound by such recommendations. See Comm. on Prof'l Ethics & Conduct v. Humphrey, 529 N.W.2d 255, 258 (Iowa 1995). The burden rests on the Board to prove the alleged disciplinary violations by a “convincing preponderance of the evidence.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 601 (Iowa 1999).

IV. Preliminary Issues.

A. Board’s power. Mulford argues that the Board had no authority to prosecute him for a violation of the disciplinary rules because he was not acting as an attorney nor was his Iowa license active during the period of time he was alleged to have disobeyed the process of the federal court. These arguments have no merit.

This court’s authority to discipline a lawyer admitted to practice in this state is not suspended merely because the attorney does not hold an active license and is not actively engaged in the practice of law. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 599 N.W.2d 453, 454, 456 (Iowa 1999) (holding that lawyer whose license to practice was under suspension for failing to comply with continuing legal education requirements at the time of the alleged ethical violation was subject to discipline by the court); accord Attorney Grievance Comm’n v. Shaw, 354 Md. 636, 646, 732 A.2d 876, 881 (1999) (holding that attorney was subject to discipline even though she was on inactive status at the time of the alleged misconduct). In addition, we have held that it is not necessary to prove the “respondent was acting as a lawyer at the time of the alleged misconduct [because] lawyers do not shed their professional responsibility in their personal lives.” Comm. on Prof'l Ethics & Conduct v. Hall, 463 N.W.2d 30, 35 (Iowa 1990). In fact, this court has imposed discipline for criminal conduct “not even remotely related to the practice of law.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lyzenga, 619 N.W.2d 327, 332 (Iowa 2000) (disbarring attorney for multiple criminal convictions including theft, forgery and prostitution, noting that “it makes no difference that these convictions may have occurred after Lyzenga ceased practicing law and were outside the context of a professional relationship between an attorney and client”); accord Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Palmer, 563 N.W.2d 634, 635 (Iowa 1997) (noting power of the court to sanction attorney for criminal actions not associated with the practice of law); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 882-83 (Iowa 1996) (holding that an attorney may be subject to disciplinary action for criminal conduct involving activities outside the lawyer’s professional role that did not adversely affect the lawyer’s clients). Clearly, the Board had the power to bring the present charges of ethical violations against the respondent.

B. Laches and estoppel. The Board filed its complaint against Mulford slightly more than three years after Mul-ford was convicted of criminal contempt. Mulford claims “there has been an unduly prejudicial delay in bringing this disciplinary action.” To establish the affirmative defense of laches, the respondent must prove prejudice by clear and convincing evidence. See Comm. on Prof'l Ethics & Conduct v. Wunschel, 461 N.W.2d 840, 846 (Iowa 1990). Mulford argues in his brief that “numerous character witnesses have died, numerous factual witnesses have died, exculpatory evidence has been destroyed and the [Respondent’s own memory has faded as he has advanced in years.” He does not identify which witnesses have died, what exculpatory evidence has been destroyed, or the specific matters upon which his memory is now hazy. Additionally, we find nothing in our review of the record to support these allegations of prejudice. Accordingly, prejudice has not been proved by the requisite degree of proof. Mulford’s defense of laches has no merit.

Mulford’s estoppel claim is apparently based on the fact that his Iowa license was restored to active status. A fundamental element of an estoppel claim is a false representation or concealment of a material fact. See Fend v. City of Harpers Ferry, 620 N.W.2d 808, 815 (Iowa 2000). That element is lacking here. As noted in our recitation of the facts, Mul-ford did not inform the licensing officials that he had been convicted of criminal contempt, nor is there any evidence in the record that these officials were aware of this fact. Consequently, Mulford cannot claim that the reactivation of his license constituted a representation that his criminal conviction was not a barrier to licen-sure, or that the licensing authorities concealed the fact that his criminal conduct might subject him to disciplinary action. Therefore, the defense of estoppel also lacks merit.

V. Ethical Violations.

A. Factual findings. Having concluded there is no legal impediment to the Board’s prosecution of the pending disciplinary charges and that Mulford’s affirmative defenses are of no consequence, we turn to an examination of the evidence to determine whether the Board proved the alleged ethical violations. The Board contends that Mulford’s commission of criminal contempt constitutes a violation of the Iowa Code of Professional Responsibility in that his conduct was prejudicial to the administration of justice and reflects adversely on his fitness to practice law. See Iowa Code of Profl Responsibility for Lawyers DR 1-102(A)(5), (6). Relying on the doctrine of issue preclusion, the Board asserted that Mulford’s conviction of contempt established that he committed the elements of the crime. Mulford contends that the prerequisites for application of the doctrine were not shown. We do not resolve this dispute because we think the evidence introduced by the Board independently establishes Mulford’s misconduct. See generally Hall, 463 N.W.2d at 35 (“A criminal conviction is not a condition precedent to a disciplin[ary] proceeding when the facts themselves warrant discipline.”).

Mulford was charged with violating 18 U.S.C. § 401(3) by willfully disobeying and resisting the lawful process of the United States District Court for the Northern District of Texas. We think the record in this disciplinary action proves by a convincing preponderance of the evidence that Mulford committed this crime. Mulford admitted on numerous occasions in 1997 that “[s]hortly after the warrant was issued, [he] became aware of the [i]ndictment and [the] requirement to make himself available to the jurisdiction of the [federal] [c]ourt.” He also admitted on numerous occasions in 1997 that he “willfully disobeyed and resisted a lawful writ, process, order and command of the [federal] [c]ourt.”

Mulford initially testified at the disciplinary hearing that he was unaware of the indictment until he spoke with his attorney in December 1996, shortly before he turned himself in to federal authorities. When pressed by further questioning, his answers were evasive and he claimed that although he “was aware [he] was a target” of a federal investigation, he “had no confirmation that [he] had been indicted” because he received no summons, arrest warrant or other notification. (Emphasis added.) Mulford also testified at the disciplinary hearing that his absence from the United States was for his own safety and not to avoid the process of the court.

This testimony is directly contradictory to Mulford’s admissions during the federal proceedings on the contempt charge. Mulford signed a factual resume agreeing to statements in the resume that he was aware of the indictment and the requirement that he submit to the jurisdiction of the court shortly after the indictment was filed, and that he willfully disobeyed the lawful process of the court. Mulford signed a written plea agreement stating that the factual resume was “true and correct.” At the plea hearing, the factual resume was read aloud and Mulford confirmed to the court that the factual resume set forth the facts of the case. At the sentencing hearing, Mulford again acknowledged that he knew about the indictment during his absence.

Mulford attempts to explain the inconsistency between his prior admissions and his testimony at the disciplinary hearing. He argues that at the time of the contempt proceedings, he interpreted the statement in the factual resume — that he became aware of the indictment “shortly after the warrant was issued” — as referring to his conversation with his attorney in December of 1996. (Emphasis added.) Given the fact that the arrest warrant was issued in May of 1987, nearly ten years earlier, no reasonable person would characterize this conversation as having occurred shortly after the warrant was issued. Mulford’s explanation for the discrepancy in his testimony is simply not believable.

In summary, we do not find Mulford’s testimony before the Commission to be credible. Not only does his recent testimony conflict with his prior statements, his testimony before the Commission was consistently evasive. Mulford routinely avoided giving direct answers to the questions asked of him at the disciplinary hearing. Our conclusion with respect to Mulford’s credibility is consistent with the assessment made by the Commission. The Commission implicitly found Mulford’s testimony at the disciplinary hearing unbelievable when the Commission found that Mulford “was in fact aware of the [i]ndictment and [a]rrest [w]arrant and remained outside the United States in part to avoid possible prosecution on the charges stemming from the [i]ndictment.”

We find, as did the Commission, that (1) Mulford knew, during his almost ten-year absence from the United States, that he was under indictment and that a warrant had been issued for his arrest, and that (2) by his absence, he willfully avoided and resisted the lawful process of the federal court. Because we find these facts to be established in the record independently of the criminal contempt citation and conviction, we need not address Mulford’s claims that the contempt citation violated his constitutional rights and that the criminal information was defective.

B. Conduct 'prejudicial to the administration of justice. We now consider whether Mulford’s conduct violated our Code of Professional Responsibility. Indisputably, it did.

It is well established that an attorney has a duty to comply with a court’s orders.

We begin with the basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but absent a stay, to comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect. The orderly and expeditious administration of justice by the courts requires that “an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.... ”

Comm. on Prof'l Ethics & Conduct v. McCullough, 465 N.W.2d 878, 885 (Iowa 1991) (quoting Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574, 583 (1975)). Mulford apparently does not understand the scope of this duty as he justifies his ten-year absence by asserting that the indictment was “without any factual or legal basis.” This allegation, even if true, had no impact on his duty to submit himself to the jurisdiction of the court.

This court has concluded on prior occasions that when an attorney willfully disobeys an order or command of a court or the processes of a court, the administration of justice is prejudiced. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Poison, 569 N.W.2d 612, 614 (Iowa 1997) (holding respondent’s multiple convictions of contempt for disobeying no-contact orders violated DR 1-102(A)(5) “because the respondent’s contumacious conduct in defying the court’s orders prejudiced the administration of justice”); Comm. on Prof'l Ethics & Conduct v. Kaufman, 515 N.W.2d 28, 31 (Iowa 1994) (holding attorney who had been granted immunity had ethical obligation to testify and his contemptuous refusal to do so prejudiced the administration of justice); cf. Lyzenga, 619 N.W.2d at 330 (“Any time a lawyer violates essential criminal laws, such conduct prejudices the administration of justice.... ”). It is easy to understand why an attorney’s failure to comply with an order or process of the court prejudices the administration of justice. The attorney’s conduct prevents the court from proceeding on the pending matter and thereby impedes the efficient operation of the courts in their effort to administer justice.

This case is a prime example. Mulford willfully absented himself from the country and from the jurisdiction of the federal court for nearly ten years. During this time, the court was unable to act upon the indictment filed against him. The passage of ten years certainly had an adverse effect on the ability of the government to pursue its case against Mulford and the related defendants. The effectiveness of our justice system could not have been more blatantly hampered. That Mul-ford’s actions were prejudicial to the administration of justice is readily apparent. We hold, therefore, that he violated DR 1-102(A)(5).

B. Reflection on fitness to 'practice law. The Board has also alleged that Mulford’s conduct reflects adversely on his fitness to practice law. Mulford argues that his conduct does not reflect adversely on his fitness to practice law in that his conduct had nothing to do with his being a lawyer or practicing law. One’s fitness to practice law, however, is determined by more than one’s competency in legal matters. See Marcucci, 543 N.W.2d at 882 (“The term ‘fitness’ as used in DR 1-102(A) (6) ... embraces more than legal competence.”). It includes one’s character and one’s suitability to act as an officer of the court. See Comm. on Prof'l Ethics & Conduct v. Hurd, 360 N.W.2d 96, 105 (Iowa 1984) (considering evidence bearing on attorney’s character in determining attorney’s fitness to practice law). See generally Charles W. Wolfram, Modem Legal Ethics § 15.3.2, at 860 (1986) (noting that inquiry into bar applicant’s moral character “is to ascertain whether the applicant is suited to the practice of law”).

In an analogous situation involving actions of a criminal nature, an attorney, Thompson, was convicted of two simple misdemeanors — assault and criminal trespass — stemming from an incident involving a young man who had allegedly violated a no-contact order concerning Thompson’s daughter. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 133 (Iowa 1999). Thompson argued that his actions did not adversely reflect on his fitness to practice law, but rather should be seen as the actions of a concerned father. In rejecting this argument the court stated: “As lawyers we take an oath to uphold the law. When, as lawyers, we violate criminal statutes, we violate that oath.” Id. at 134; accord Poison, 569 N.W.2d at 614 (holding contumacious conduct in defying court’s orders prejudiced the administration of justice which in turn reflects adversely on attorney’s fitness to practice law).

Mulford thwarted the authority of the federal court, and in doing so violated his lawyer’s oath to “maintain the respect due to courts of justice and judicial officers.” Iowa Code § 602.10112(1) (1999). Mul-ford’s willful violation of his oath reflects adversely on his fitness to practice law. We agree with the Commission that Mul-ford violated DR 1-102(A)(6).

VI. Appropriate Discipline. Having determined that Mulford’s willful disobedience of the process of the federal court violated DR 1-102(A)(5) and (6), the court must determine the appropriate sanction. We consider “ ‘the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent’s fitness to continue in the practice of law.’ ” Freeman, 603 N.W.2d at 603 (quoting Comm. on Prof'l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989)). Although Mulford argues that the disciplinary process is chiefly intended to provide protection to the public, the purpose of our disciplinary system is much broader:

Attorney disciplinary proceedings are not designed to punish, but rather to determine the fitness of an officer of [the] court to continue in that capacity, to insulate the courts and the public from those persons unfit to practice law, to protect the integrity of and the public confidence in our system of justice, and to deter other lawyers from engaging in similar acts or practices.

Comm, on Profl Ethics & Conduct v. Ve-sole, 400 N.W.2d 591, 593 (Iowa 1987); accord Comm, on Profl Ethics & Conduct v. Tompkins, 415 N.W.2d 620, 623 (Iowa 1987). Sanctions must be tailored to the facts of each case. See Tompkins, 415 N.W.2d at 623. In this process, the court considers both aggravating and mitigating circumstances. See Freeman, 603 N.W.2d at 603.

Turning first to the nature of Mulford’s ethical violations, we consider Mulford’s claim that his conduct did not constitute a criminal offense. We think Mulford violated a contempt statute that was clearly criminal in nature. Criminal intent is an essential element of contempt under § 401(3). See United States v. Marx, 553 F.2d 874, 876 (4th Cir.1977) (defining criminal intent as “a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful”). In addition, § 401 “plainly authorizes a criminal sanction.” United States ex rel. Shell Oil Co. v. Barco Corp., 430 F.2d 998, 1000 (8th Cir.1970) (noting that “[t]itle 18 of the United States Code, in which 401 is to be found, is exclusively concerned with defining Federal crimes and Federal criminal procedure”). In fact, Mulford received a six-month prison sentence for violation of this statute. As the Eighth Circuit Comí; of Appeals noted in Shell Oil, “it is well established by the case law that 401 serves as the general statutory authority for punishment of criminal contempt.” Id. (emphasis added); accord United States v. Hilburn, 625 F.2d 1177, 1179 (5th Cir.1980) (holding that § 401 contempt based on defendant’s failure to respond to subpoenas was criminal because “the purpose of [the] contempt proceeding was to vindicate the authority of the court by punishing the alleged wrongdoer”). Mulford’s contention that his contempt of court was not a criminal act has no merit. Mulford’s related argument that criminal contempt does not really constitute a crime is equally without legal basis.

Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both....
... [C]onvictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same....
... [C]riminal contempt is a crime in every fundamental respect....

Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481-82, 20 L.Ed.2d 522, 528 (1968).

We think the nature of Mulford’s conduct is serious. See United States v. Mottweiler, 82 F.3d 769, 770 (7th Cir.1996) (“Criminal contempt of court is a dark stain on an attorney’s record, even when it does not lead to imprisonment or a substantial fine.”). Granted, in relation to other criminal offenses, criminal contempt may be considered a relatively minor matter. Nonetheless, Mulford’s misconduct cannot be considered minor under the circumstances of this case. He purposely impeded, for almost ten years, the administration of justice with respect to the charges pending against him. This long-term evasion of the court’s lawful authority is a serious matter. See Tompkins, 415 N.W.2d at 623 (finding that the “serious nature” of the respondent’s conduct was indicated by the fact that it was persistent).

We have considered Mulford’s claim that he remained outside the United States for ten years to avoid assassination by the “Medellin Cartel” who, according to Mulford, were after him because of his participation in the federal government’s investigation of narcotics smuggling. The only support in the record for this claim is the respondent’s own testimony. Given our assessment of the respondent’s credibility, the court seriously questions the genuineness of this explanation for his absence. Our doubt is supported by Mul-ford’s own testimony concerning his activities while abroad. It is clear that he was not in hiding and, in fact, he argues in his brief that the United States government could have easily located him had it wanted to serve him with notice of the indictment and the arrest warrant. In any event, Mulford’s alleged concerns for his personal safety are not an excuse for avoiding the jurisdiction of the federal court for ten years. Cf. Stefani, 616 N.W.2d at 552 (holding that fears for personal safety did not justify respondent’s flight without notifying the court, his probation officer, and the Commission of his whereabouts, his reason for leaving, and his expected time of return).

Turning to the other factors relevant to deciding the appropriate discipline, we think there is also a need to deter similar conduct by lawyers in the future. We cannot overstress that lawyers, of all people, are not at liberty to ignore the processes of our legal system. See McCullough, 465 N.W.2d at 886 (“a lawyer has a duty to obey a court order”). In addition, the reputation of the bar as a whole is compromised when lawyers determine for themselves which court orders or processes they see fit to obey. See Comm. on Prof'l Ethics & Conduct v. Patterson, 369 N.W.2d 798, 801 (Iowa 1985) (“when those licensed to operate the law’s machinery knowingly violate essential criminal statutes, there inexorably follows an intensified loss of lay persons’ respect for the law”). As we stated in a prior disciplinary case, “[w]e might ask ourselves how the public can have confidence in our system of justice if we overlook or minimize knowing and willful criminal conduct....” Tompkins, 415 N.W.2d at 624.

In the past, this court has imposed sanctions ranging from a public reprimand to a two-year suspension for ethical infractions resulting from a lawyer’s contemptuous acts or criminal conduct. E.g., Stefani, 616 N.W.2d at 552-53 (criminal conduct in possessing and/or using cocaine violated DR 1-102(A)(5) and (6), and along with respondent’s failure to respond to legal notices from Board, warranted six-month suspension); Thompson, 595 N.W.2d at 135-36 (two misdemeanors, coupled with neglect and two previous reprimands, warranted two-month suspension); Poison, 569 N.W.2d at 613 (attorney conviction for domestic abuse in conjunction with his persistent conduct in defying court’s no-contact orders violated DR 1-102(A)(5) and (6), and warranted suspension of license for two years); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hughes, 557 N.W.2d 890, 895 (Iowa 1996) (where lawyer advised client to ignore court order to obtain a substance abuse evaluation, he violated DR 7-106(A) (lawyer has a duty to obey a court order and not to advise a client to ignore it), but only a public reprimand was warranted, in part due to the attorney’s unblemished record and respectful and candid manner in dealing with the court); Marcucci, 543 N.W.2d at 882-83 (felony conviction for OWI, third offense, which reflected adversely on the attorney’s fitness to practice law, garnered six-month suspension); McCullough, 465 N.W.2d at 886 (where counsel egregiously and flagrantly counseled client to violate court order, in violation of DR 7~106(A), court suspended license for one year). In the present case, we think there are aggravating circumstances that warrant a sanction more severe than a public reprimand or a short suspension.

Mulford’s testimony at the hearing before the Commission was evasive at best and untruthful at worst. Such deception is clearly an aggravating factor and reflects poorly on Mulford’s fitness to practice law. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hoffman, 572 N.W.2d 904, 909 (Iowa 1997) (“Respondent’s ethical violation in attempting to collect an excessive fee is compounded by his attempt to mislead the grievance commission and this court with untenable excuses for seeking such a fee.”); Plumb, 546 N.W.2d at 218 (stating that false testimony to Commission “would be a proper consideration in determining the severity of any sanction”); Comm. on Prof'l Ethics & Conduct v. Randall, 285 N.W.2d 161, 165 (Iowa 1979) (in determining appropriate sanction, court said: “Although Randall had a clear right to defend against the charges he did not have a right to do so in a manner that was less than forthright.”).

In addition, Mulford has continued to minimize his misconduct. As noted in our review of the proceedings before the Commission, he characterizes his action in returning to the United States and pleading guilty to a “questionable contempt citation” as an indication that he was “extremely cooperative.” Having avoided prosecution for ten years, Mulford was anything but cooperative. His position merely illustrates that he still does not recognize that he did anything wrong by absenting himself from the reach of the federal court for ten years. See Hall, 463 N.W.2d at 36 (determining lawyer’s refusal to admit he did anything wrong greater than “technical violations” was an indication that the respondent did not understand his wrongdoing; court considered this attitude an aggravating factor in imposing sanction).

Finally, the court takes as an affront Mulford’s argument before the Commission and in his brief that he is fit to practice law because, as legislative counsel, he has worked on the judicial branch budget and has been instrumental in obtaining funds for the court. The respondent’s argument suggests a belief that the court would be favorably influenced or intimidated by the power respondent claims to hold. The court gives no consideration to the role played by the respondent in the budgeting process. We do, however, consider Mulford’s inappropriate suggestion to be an aggravating factor in determining the appropriate sanction. See Iowa Code of Profl Responsibility EC 7-36 (“A lawyer should avoid undue solicitude for the comfort or convenience of judge or jury and should avoid any other conduct calculated to gain special consideration.”).

We do not ignore that Mulford has had no prior disciplinary problems and has endeavored to be active in the profession since his return to active status. But these efforts cannot support a finding that he has rehabilitated himself in the face of his evasive and untruthful testimony at the disciplinary hearing, and his blatant attempts to improperly influence and intimidate this court. His conduct during these proceedings gives greater insight, we think, into respondent’s fitness to practice law than does his bar involvement.

We conclude that a lengthy suspension of Mulford’s license is warranted. Based on his prolonged defiance of the authority of the federal court, his lack of candor before the Commission, and his inability to appreciate the seriousness of his misconduct, we suspend the respondent’s license to practice law in Iowa indefinitely with no possibility of reinstatement for one year. This suspension applies to all facets of the practice of law. See Ct. R. 118.12. Upon any application for reinstatement, Mulford must establish that he has not practiced law during the suspension period and that he has in all other ways complied with the requirements of Court Rule 118.18. Costs of this action shall be taxed to the respondent pursuant to Court Rule 118.22.

LICENSE SUSPENDED.

      . By written waiver in open court, Mulford explicitly waived his right to prosecution by indictment and consented to the federal criminal contempt charge proceeding by information.

      . This statute provides that "[a] court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as ... [<fiisobedien.ee or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401(3).

      . Mullord’s contention that he could not have violated the contempt statute because he was never served with any official document is unavailing. Mulford knew he had been indicted and a warrant had been issued for his arrest. His ten-year effort to avoid service of the warrant is a contempt of court. See United States v. Allen, 73 F.3d 64, 66 (6th Cir.1995) (holding that the "defendant’s efforts to avoid being served with the trial subpoena ... constituted] contempt in violation of [18] U.S.C. § 401(3) because it was a willful attempt to avoid compliance with [an] immunity order issued by [the judge]”). The [act that Mulford was successful in evading service certainly does not justify the evasion.

      . The respondent's lack of respect for the court was also evidenced at the hearing when he objected to the admission of the dismissed indictment. Mulford argued that the Board's desire to have this document made part of the record was
      [q]uite obviously ... an attempt by the petitioner [Board] to bias this particular commission. The petitioner has appeared before the Iowa Supreme Court probably more than any other counsel and he does not necessarily need to rely upon such procedural nuances to bias the particular body.
      Mulford’s suggestion of bias to support his opposition to the admission of evidence is inappropriate. See Iowa Code of Profl Responsibility EC 8-6 (“Criticisms [of judges] motivated by reasons other than a desire to improve the legal system are not justified.”).


author: LARSON, Justice.

text:
    LEWIS CENTRAL EDUCATION ASSOCIATION, Appellant, v. IOWA BOARD OF EDUCATIONAL EXAMINERS, Appellee, Sharon Collins, Intervenor-Appellee.
    No. 98-2272.
    Supreme Court of Iowa.
    April 25, 2001.

      William R. Unger, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Heather Adams, Assistant Attorney General, for appellee Iowa Board of Educational Examiners.
    Brett S. Nitzschke and Brian L. Gruhn of Gruhn Law Firm, Cedar Rapids, for intervenor-appellee Sharon Collins.
   LARSON, Justice.

This is an action by the Lewis Central Education Association (association) against the Iowa Board of Educational Examiners (board) concerning a complaint filed by the association against a principal in the Lewis Central School District. The board found no probable cause to support the complaint, and the association sought judicial review. The district court ruled that the board’s no-probable-cause finding was not subject to judicial review and dismissed the petition. We reverse and remand.

I. Facts and Prior Proceedings.

On May 4, 1998, the association, which is the recognized professional teachers organization representing nonsupervisory, licensed employees of the Lewis Central Community School District, filed a written complaint with the board against Sharon Collins, a principal in the Lewis Central district. The board, which is charged with the licensing and disciplining of teachers and administrators under Iowa Code chapter 272 (1997), appointed an investigator to report to the board. Following the investigation, the board issued an order, dated August 20,1998, stating:

The Complaint was filed with the Board of Educational Examiners on May 4, 1998. Subsequently, an investigation was completed. Having reviewed this matter in its entirety, including the complaint and the investigative report, it appears to the Board there is insufficient evidence supporting the charges to constitute the probable cause necessary to set the matter for hearing.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the Complaint in this matter is hereby rejected pursuant to 282 IAC 11.6(l)(a).

On September 17, 1998, the association filed a petition for judicial review in Polk County District Court, claiming the no-probable-cause finding was the result of legal error and an abuse of discretion. Specifically, the association complained that the board’s decision denied the association an opportunity to “rebut, meet with the Board, respond to, or confront the Respondent’s defense prior to making its no probable cause determination” and did not even inform the association how the board defined or applied the probable-cause standard. The board filed a motion to dismiss the petition, and the court did so, ruling that the board’s decision not to initiate a contested-case proceeding for lack of probable cause was a decision that is not subject to judicial review. That presents the sole issue on the association’s appeal to this court.

II. Principles of Review.

Our review of a ruling on a motion to dismiss is for correction of errors at law. Haupt v. Miller, 514 N.W.2d 905, 907 (Iowa 1994). The association contends the court’s dismissal of its judicial review petition was an error of law because the board’s no-probable-cause finding was reviewable under the judicial review provisions of Iowa Code chapter 17A.

III. Discussion.

The district court rested its ruling largely on the case of Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), which held an agency’s decision not to prosecute a complaint was not reviewable by the courts, based on federal precedent and the federal administrative procedure act, 5 U.S.C. § 701. Chaney is an interesting case involving a challenge by death-row inmates to the Food and Drug Administration’s (FDA’s) refusal to take action on the inmates’ complaint that prescription drugs were not “safe and effective” when used for lethal injections in human executions. The plaintiffs demanded the FDA (1) investigate to determine whether the drugs were safe and effective for lethal injections, (2) require the manufacturers to label the drugs to warn against their use for lethal injections, and (3) take enforcement actions to eliminate such unapproved use of the drugs. Chaney, 470 U.S. at 823-24, 105 S.Ct. at 1652, 84 L.Ed.2d at 719.

The FDA refused to take any of these requested actions, citing federal case law and public policy considerations. The plaintiffs sought judicial review, and a federal district court affirmed. The federal court of appeals reversed, holding the FDA’s inaction was reviewable as arbitrary and capricious. Chaney v. Heckler, 718 F.2d 1174, 1188 (D.C.Cir.1983).

The Supreme Court reversed the court of appeals decision, holding the FDA’s refusal to act was not judicially reviewable. In doing so, the Court analyzed the federal administrative procedure act under which review of federal agency action is available unless a statute precludes judicial review or the agency’s action is committed to its discretion by law. 5 U.S.C. § 701(a). The Court construed § 701(a)(2) as creating an exception to judicial review-ability for decisions committed to absolute agency discretion. The Court held this absolute, unreviewable discretion under § 701(a)(2) exists when Congress has drawn a statute so broadly “a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Chaney, 470 U.S. at 830, 105 S.Ct. at 1655, 84 L.Ed.2d at 723. Because agency decisions not to prosecute or enforce presumptively do not have meaningful standards against which to review them, such decisions are not judicially reviewable under the federal administrative procedure act unless Congress has set forth a clear standard for the agency that would allow a court to review the agency’s refusal to act. Id. at 832-34, 105 S.Ct. at 1656-57, 84 L.Ed.2d at 724-26. The Court said that

[tjhis Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion. This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.

Id. at 831, 105 S.Ct. at 1655, 84 L.Ed.2d at 723 (citations omitted).

A. The impact of Chaney. The Court in Chaney gave these reasons for denying review of agency decisions not to enforce: (1) These decisions involve “a complicated balancing” of factors such as allocation of agency resources and a realization that “[a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing,” (2) courts generally defer to an agency’s construction of the statute it enforces, and (3) an agency’s refusal to enforce is akin to a prosecutor’s discretion not to indict. Id. at 831-32, 105 S.Ct. at 1655-56, 84 L.Ed.2d at 723-24.

The Court, however, concluded that an agency decision not to enforce is only presumptively unreviewable; “the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 832-33, 105 S Ct. at 1656, 84 L.Ed.2d at 724. The Court cited Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), a case that we discuss later, as a case involving adequate statutory guidelines to give courts a sufficient basis to review agency inaction. Chaney, 470 U.S. at 833, 105 S.Ct. at 1656-57, 84 L.Ed.2d at 725. Another federal case, Center for Auto Safety v. Dole, 828 F.2d 799 (D.C.Cir.1997), illustrates the type of “judicially manageable” standards that would allow judicial review of agency inaction. The court said

[the agency] is bound by its own regulation requiring that it grant a citizen petition if there is a “reasonable possibility” that a safety-related defect exists. This “reasonable possibility” standard provides the court with a judicially manageable standard for reviewing [agency] petition decisions, thereby rebutting the presumption against judicial review of nonenforcement decisions, established in Chaney.

Dole, 828 F.2d at 815.

In the present case, despite the reliance on Chaney by the board and the district court, we believe it is inapposite for four reasons. First, our administrative procedure act is significantly different from the federal act. Second, aside from the statutory differences, the board’s rules require a statement of reasons for rejecting enforcement that may be examined by a court and used as guidance on judicial review. See Iowa Admin. Code r. 282— 11.6(1). Third, the statute creating the board provides, without limitation, that “[b]oard action is final agency action for purposes of chapter 17A.” Iowa Code § 272.2(8). Fourth, Iowa Code section 272.2(15) and the rules of the board, see Iowa Administrative Code rule 282— 11.6(1), anticipate the agency action would be based on probable cause, a “judicially manageable” standard that is a familiar concept to courts.

B. The federal and state statutes compared. Under the federal administrative procedure act, judicial review of agency action is available “except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a).

As the Court said in Chaney, unre-viewable discretion under § 701(a)(2) exists when Congress has drawn a statute so broadly that courts have no meaningful standard against which to judge the agency’s exercise of discretion. Chaney, 470 U.S. at 830, 105 S.Ct. at 1655, 84 L.Ed.2d at 723. In Iowa’s administrative procedure act, however, there is no equivalent to federal § 701(a)(2). The Iowa act provides the act “shall be construed to apply to all covered agency proceedings and all agency action not expressly exempted by this chapter or by another statute specifically referring to this chapter by name.” Iowa Code § 17A.23 (1997). Thus, our act, like the federal act, recognizes the legislature may, by statute, make agency action unreviewable. However, our act requires that such a statute expressly exempt an agency decision from review and requires a reference in the statute to the Iowa Administrative Procedure Act. See Iowa Code § 17A.23. Under the Iowa act, there is clearly no room for a presumption of unreviewabihty; any exception under our act must be express and specifically name the act. We have said:

Respondents’ common-sense arguments and prior statutory interpretations cannot overcome the mandatory language of section 17A.23.... [Unless] the judicial review provisions of the IAPA [are] specifically exempted from application to decisions ... we follow the dictates of the legislature and hold the decisions ... are subject to judicial review pursuant to section 17A.19.

Polk County v. Iowa State Appeal Bd., 330 N.W.2d 267, 276 (Iowa 1983).

The definition of agency action under the Iowa act supports the view that no-probable-cause decisions are reviewable:

“Agency action” includes the whole or a part of an agency rule or other statement of law or policy, order, decision, license, proceeding, investigation, sanction, relief, or the equivalent or a denial thereof, or a failure to act, or any other exercise of agency discretion or failure to do so, or the performance of any agency duty or the failure to do so.

Iowa Code § 17A.2(2) (emphasis added). Indeed, this definition makes clear that the board’s exercise of discretion in rejecting the complaint and also in failing to order a contested hearing in its order of August 20, 1998, is agency action. Under Iowa Code section 17A.23, all agency action is subject to the Iowa Administrative Procedure Act, and thus to the judicial-review provisions of section 17A.19. Our act’s broad definition of agency action in section 17A.2(2) is very similar to section 1-102(2) of the Model State Administrative Procedure Act. The commentary to section 1-102(2) states:

The term “agency action” defined in paragraph (2) expressly includes a “rule” and an “order” ... and an agency’s failure to issue a “rule” or an “order.” It goes much further, however.... “[A]gency action” includes everything and anything else that an agency does or does not do, whether its action or inaction is discretionary or otherwise. There are no exclusions from that all encompassing definition .... The principal effect of the very broad definition of “agency action” is that everything an agency does or does not do is subject to judicial review. Success on the merits in such cases, however, is another thing.... Iowa Act, Section 17A.2( [2]) contains a definition of “agency action” that is similar in scope to paragraph (2).

Model State Admin. Procedure Act § 1-102(2) cmt. (1981) (emphasis added). We hold the board’s refusal to act is judicially reviewable.

IV. Judicial Relief to be Granted.

In the present case, the association’s petition for judicial review asked the district court to

review the record of the agency, take whatever additional evidence it deems appropriate, and thereafter hold that there was probable cause to hold a hearing and issue an Order commanding that the [board] correct its probable cause determination and hold a hearing on the complaint [and grant further appropriate relief].

On appeal, however, the association’s request is more restricted; it requests that the board be ordered

as a part of its probable cause determination process, [to] provide a statement of reasons that defines probable cause, that lists the facts that the Agency relied upon when making its determination, and otherwise provide an explanation of its decision so that the parties coming before the Agency under its complaint procedure understand the legal and factual basis for the Agency’s probable cause decision. The Agency’s decision should contain sufficient information so that parties and, if necessary, the courts can evaluate the decision of the Agency in light of the grounds for appeal contained in [Iowa Code section 17A.19]....

We believe the board should have furnished a statement of reasons for its refusal to act that was more specific than its mere declaration that no probable cause was established. Specificity in the no-probable-cause decision is anticipated by the board’s rules, which provide: “If a determination is made by the board to reject the case, the complaint shall be returned to the complainant along with a statement specifying the reasons for rejection.” Iowa Admin. Code r. 282 — 11.6(1) (emphasis added). We believe this requires more information than the board furnished here.

A statement of reasons for the board’s declination to act not only satisfies the rule’s requirement that the board provide reasons for its refusal to act, but it should also provide the necessary guidelines for a reviewing court as suggested by Bachowski. See Bachowski, 421 U.S. at 571, 95 S.Ct. at 1860, 44 L.Ed.2d at 388-89. Ba-chowski, like the present case, involved a judicial challenge to an agency’s refusal to act on a complaint involving a union election. In Bachowski the agency’s determination not to sue was based on the agency’s investigation mandated by 29 U.S.C. § 482(a)(2):

The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this sub-chapter has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States....

Bachowski, 421 U.S. at 563-64, 95 S.Ct. at 1856, 44 L.Ed.2d at 385. In Bachowski, the agency advised the complainant of its refusal to act in a letter to the complainant, which stated in a conclusory manner (similar to the statement in the present case) that,

based on the investigative findings, it has been determined that civil action to set aside the [union] election [as requested by the complainant] is not warranted.

Id. at 563, 95 S.Ct. at 1856, 44 L.Ed.2d at 384 (alterations in original omitted). The agency gave no rationale for its decision (until later ordered to do so by the court of appeals).

The complainant in Bachoiuski reacted to the agency’s refusal to act by filing an action to challenge the secretary’s decision as arbitrary and capricious, asking the court to force a new election. The district court ruled it had no “authority” to do so. The Supreme Court ultimately held that the agency’s order refusing to take action was reviewable under the federal administrative procedure act. It approved the holding of the court of appeals that

the scope of judicial review — ... to insure that the Secretary’s actions are not arbitrary, capricious, or an abuse of discretion — entitled [complainant], who sought to challenge the factual basis for the Secretary’s conclusion either that no violations occurred or that they did not affect the outcome of the election, to a sufficiently specific statement of the factors upon which the Secretary relied in reaching his decision so that [complainant] may have information concerning the allegations contained in his complaint.

Bachowski, 421 U.S. at 564-65, 95 S.Ct. at 1857, 44 L.Ed.2d at 385 (emphasis added) (citations omitted). The Court held, however, that judicial review does not “authorize a trial-type inquiry into the factual bases of the Secretary’s conclusion that no violations occurred affecting the outcome of the election.” Id. at 566, 95 S.Ct. at 1857, 44 L.Ed.2d at 385. The Court then noted that,

to enable the reviewing court intelligently to review the Secretary’s determination, the Secretary must provide the Court and the complaining witness with copies of a statement of reasons supporting his determination. “[W]hen action is taken by [the Secretary] it must be such as to enable a reviewing Court to determine with some measure of confidence whether or not the discretion, which still remains in the Secretary, has been exercised in a manner that is neither arbitrary nor capricious.... [I]t is necessary for [him] to delineate and make explicit the basis upon which discretionary action is taken, particularly in a case such as this where the decision taken consists of a failure to act....”

Bachowski, 421 U.S. at 571, 95 S.Ct. at 1860, 44 L.Ed.2d at 389 (alterations in original) (first omission in original) (quoting DeVito v. Shultz, 300 F.Supp. 381, 383 (D.C.1969)).

Under chapter 272, the board should be free to exercise its discretion and expertise without interference from the courts. These powers must, however, be exercised in a manner that is not arbitrary or capricious, and a court must be satisfied that is the case. The court can only make that determination if the board’s statement of reasons provides the necessary information as to how the agency power was exercised. That is the function of the statement of reasons to be provided by the agency. See Bachowski, 421 U.S. at 571, 95 S.Ct. at 1860, 44 L.Ed.2d at 389.

We hold the board’s conclusory statement, that the evidence is insufficient to constitute probable cause, is inadequate to allow a court to discern the board’s interpretation of probable cause or whether, in applying that test, the board acted arbitrarily or capriciously. We therefore reverse and remand to the district court for an order directing the board to furnish a statement of reasons sufficient to explain the board’s interpretation of the probable-cause requirement and its application to the facts as determined by its investigation. If the court then determines the board did not act arbitrarily or capriciously, that will be the end of the matter— subject, of course, to the right of appeal. If, based on this statement of reasons the court finds the board acted arbitrarily or capriciously, it shall reverse and remand to the agency for further proceedings.

REVERSED AND REMANDED.

      . "Iowa’s APA [was] drafted by Professor Arthur Bonfield, the reporter for the 1981 Model State Administrative Procedure Act.” Jim Rossi, The 1996 Revised Florida Administrative Procedure Act: A Rulemaking Revolution or Counter-revolution?, 49 Admin. L.Rev. 345, 355 (1997).

      . The agency gave an expanded statement of reasons for its decision to take no action, on order of the court of appeals, and that statement with specific details is attached to the Bachowsld opinion as an appendix. See Bachowski, 421 U.S. at 578-88, 95 S.Ct. at 1863-68, 44 L.Ed.2d at 392-98.