text:
    2006 ND 19
    In the Interest of M.B. and N.B., Children. Marlene Sorum, L.S.W., Petitioner and Appellee v. Director, Cass County Social Services, K.S. (f/k/a K.B.), I.B., M.B., N.B., and Monty Mertz, Guardian ad Litem, Respondents. I.B., Respondent and Appellant.
    No. 20050206.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Constance L. Cleveland, Assistant State’s Attorney, Fargo, N.D., for petitioner and appellee.
    David A. Garaas, Garaas Law Firm, Fargo, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] I.B., the father of two children, appeals the juvenile court orders terminating his parental rights and denying his motion for continued visitation. Holding that I.B. was provided with sufficient notice of the proceedings against him and that the evidence supports the order terminating his parental rights, we affirm.

I

[¶ 2] I.B. and K.S., formerly know as K.B., had two children. They married in 2000, after the children were born, and divorced roughly four years later. The children have been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder. They have witnessed episodes of domestic violence between their parents. Their mother testified the children were abused by I.B. K.S. and Cathy Hjelle, the children’s therapist, testified the children were exposed to pornographic and horror movies and sexual activities. In April 2002, the juvenile court found the children were deprived and placed them in social services’ care. They were reunified with their parents in the summer of 2002, after some family counseling. Marlene Sorum, the petitioner and a social worker with Cass County Social Services, testified at the trial that any involvement in therapy ceased after reunification. The parents separated again in 2003, and custody of the children was given to the mother. In July and October 2003, the juvenile court found the children were deprived and placed them in social services’ care.

[¶ 3] In July 2004, Sorum petitioned to terminate the parents’ rights. After receiving notice by publication, the father appeared to defend against the petition, declaring that he wanted to provide for the children. The mother submitted an affidavit consenting to her termination. The children’s guardian ad litem recommended a reunification plan for the father and the termination of the mother’s rights.

[¶ 4] A three-day trial was held in October 2004. In December 2004, the judicial referee, by letter, announced her decision that the children were deprived, and she ordered Sorum to prepare proposed findings of fact, conclusions of law, and order for termination. According to I.B., Sorum’s findings of fact, conclusions of law, and order were adopted without change. The father requested district judge review of the termination and moved the referee for continued visitation. When his motion for visitation was denied, he requested district judge review of the visitation motion. The district judge adopted the referee’s order terminating the father’s parental rights and adopted the referee’s order denying visitation. On appeal, I.B. argues he did not have proper notice of the facts used to terminate his rights; the referee improperly delegated drafting of the findings of fact, conclusions of law, and order for termination to Sorum; there is insufficient evidence to terminate his rights or to conclude any deprivation will continue, and he should be afforded an opportunity for reunification.

[¶ 5] The juvenile court had jurisdiction under N.D.C.C. §§ 27-05-06 and 27-20-03(l)(b). The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. §§ 27-20-56(1) and 28-27-01.

II

[¶ 6] I.B. argues Sorum’s petition did not give him proper notice of the facts used to terminate his rights. The petition to terminate parental rights must comply with the requirements of N.D.C.C. § 27-20-21. N.D.C.C. § 27-20-45(1). Section 27-20-21, N.D.C.C-, provides, in part:

The petition must be verified and may be on information and belief. It must set forth plainly:
1. The facts which bring the child within the jurisdiction of the court, with a statement that it is in the best interest of the child and the public that the proceeding be brought and, if delinquency or unruly conduct is alleged, that the child is in need of treatment or rehabilitation!.]

[¶ 7] “Given the nature of the parental rights at stake, procedural due process requires that, in addition to the legal standards involved, [the petitioner] apprise [the parent] of the factual circumstances behind the proposed termination.” Thompson v. King, 393 N.W.2d 733, 738 (N.D.1986). Thus, to comply with due process and the statute, the petition must do more than merely state the statutory language justifying termination of parental rights provided in N.D.C.C. § 27-20-44 or the definition of a deprived child provided in N.D.C.C. § 27-20-02(8). Interest of T.M.M., 267 N.W.2d 807, 813 (N.D.1978). The petitioner must provide specific facts the petitioner will rely on to terminate the parental rights so that the respondent parent has notice and is able to meaningfully prepare a defense against the petition. Id.; see also Thompson, at 738-39 (notice of facts needed to defend against the petition may come through discovery if the petition did not contain facts).

[¶ 8] The petition for termination and the supporting affidavit, incorporated into the petition by reference, contain many factual assertions concerning I.B.’s conduct as a parent. The documents allege that the father and mother have been involved in numerous domestic violence disputes. They allege that I.B. has a history of abusive behavior. The petition and affidavit also allege that although I.B. has provided financial support for the children, he told Sorum he is concerned that he will not be able to provide for the children and that his parental rights may be terminated. Finally, the documents allege the parents have not followed up on treatment for themselves or the children. I.B. appeared for trial and did not seem prejudiced by the petition or unable to defend against the charges. Counsel for I.B. conceded at oral argument trial counsel failed to object that evidence presented at trial did not conform with the petition. Although the facts in the petition were not necessarily the same as the facts relied on by the referee in reaching the court’s final decision, I.B. had notice of the facts Sorum would use to support terminating the father’s parental rights. The contents of the petition complied with the statutory requirements, and I.B. had notice of the facts that would be used to terminate his parental rights. His due process rights have not been violated.

Ill

[¶ 9] I.B. argues the referee’s findings of fact are improper because procedures followed by the referee in developing the findings of fact were an improper delegation of judicial authority. According to him, Sorum developed the proposed findings of fact by copying a great deal from a post-trial letter her attorney sent to the referee outlining her view of the case, and then the referee adopted verbatim the proposed findings of Sorum.

[¶ 10] Rule 7.1, N.D.R.Ct., provides that preparation of proposed findings of fact and conclusions of law required by N.D.R.Civ.P. 52(a) may be assigned to one or more parties by the court. N.D.R.Ct. 7.1(b)(1). The rule provides the party opposing the proposed findings of fact an opportunity to object. N.D.R.Ct. 7.1(b)(1). Rule 52(a), N.D.R.Civ.P., provides, in part:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.... The findings of a master or juvenile referee, to the extent that the court adopts them, shall be considered as the findings of the court. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court.

[¶ 11] We discourage a trial court’s verbatim adoption of only one party’s proposed findings of fact and encourage the trial court to prepare its own. Smith Enters., Inc. v. In-Touch Phone Cards, Inc., 2004 ND 169, ¶ 11, 685 N.W.2d 741; Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D.1995). When the trial court signs the proposed findings of fact, however, they become the court’s findings and will not be overturned unless they are clearly erroneous. Foster v. Foster, 2004 ND 226, ¶10, 690 N.W.2d 197; N.D.R.Civ.P. 52(a). “Although we prefer that trial courts prepare their own findings of fact, we reject [the appellant’s] argument that the court’s wholesale adoption of [the appellee’s] proposed findings of fact, by itself, is reason to reverse the court’s decision.” Smith Enters., Inc., at ¶ 11. This is true even when the trial court sends only a letter to the parties, announcing its decision and asking the prevailing party to prepare the proposed findings of fact. See Foster, at ¶¶ 7, 10 (this Court affirmed the trial court’s findings of fact that were prepared by counsel per the trial court’s request by letter).

[¶ 12] In November 2004, the attorney for Sorum mailed the juvenile referee a post-trial letter discussing what she believed was proven at the trial and what the outcome of the case should be. In December 2004, the referee announced by letter her decision to terminate I.B.’s parental rights and directed the attorney for Sorum to prepare the findings of fact, conclusions of law, and order for the referee. The findings of fact adopted by the referee were substantially similar to the letter from Sorum’s attorney to the referee. Counsel for Sorum conceded at oral argument the findings of fact she submitted were adopted verbatim by the referee. The findings, conclusions, and order were signed by the referee, however, making Sorum’s proposed findings the referee’s findings. Therefore, the findings are still those of the court and will not be overturned unless clearly erroneous. N.D.R.CivJP. 52(a).

rv

' [¶ 13] I.B. argues there is insufficient evidence to terminate his parental rights and insufficient evidence that the children’s deprivation is likely to continue. To terminate parental rights, N.D.C.C. § 27-20-44(l)(b) requires the petitioner to prove three elements by clear and convincing evidence: (1) “The child is a deprived child,” (2) “The conditions and causes of the deprivation are likely to continue or will not be remedied,” and (8) “that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27 — 20—44(l)(b)(l); Interest of 449 N.W.2d 574, 577 (N.D.1989). “Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true.” Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913. A lower court’s decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous. N.D.R.Civ.P. 52(a); see also S.R.F., at ¶ 7 (the de novo standard of review from past caselaw was superseded by N.D.R.Civ.P. 52(a), and we overruled those cases relying on it). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” S.R.F., at ¶ 8.

A

[¶ 14] A “deprived child” is a child who:

Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian[.]

N.D.C.C. § 27-20-02(8)(a). “Proper parental care” means “ ‘minimum standards of care which the community will tolerate.’ ” Interest of D.Q., 2002 ND 188, ¶ 12, 653 N.W.2d 713 (quoting Interest of J.R., 2002 ND 78, ¶ 9, 643 N.W.2d 699).

[¶ 15] A review of the record and trial transcript shows sufficient evidence to support the court’s finding that the children were deprived. The two children were adjudicated deprived on several occasions, once in April 2002, once in July 2003, and again in October 2003. Ginny Leon, a parent aide with Cass County Social Services, testified the children’s home was very unkempt, as were the parents and children. The children’s mother testified that she and I.B. were abusive toward each other in the children’s presence and that I.B. was also abusive toward the children. She also testified I.B. would threaten to burn one of the children with a lighter if they did not recite the alphabet. The children’s mother claimed that one of the boys was sexually assaulted byl.B.’s brother. She further testified the children were exposed to horror and pornographic films and were obsessed with sexual matters. Cathy Hjelle, the children’s therapist, testified one of the boys told her that they had watched pornographic films and watched their father engage in' sexual intercourse in front of them. K.S. testified I.B. moved out of a trailer home so K.S. and the children would have someplace to live after she was evicted from her apartment. When the mother and the children first moved in, the trailer had no electricity. Hjelle also testified the children told her there was often a shortage of food and they were hungry. This conduct falls well below the minimum standards of care for a parent and meets the circumstances necessary to find a child is deprived. The referee’s finding that the children were deprived is supported by the evidence and is not clearly erroneous.

B

[¶ 16] Before parental rights may be terminated, the State must prove that the deprivation is “likely to continue or will not be remedied.” N.D.C.C. § 27-20 — 44(l)(b)(l). To show this, the State cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue. Interest of T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38. A parent’s lack of cooperation is probative. Id. The juvenile court may also examine the parent’s background. Interest of A.S., 1998 ND 181, ¶19, 584 N.W.2d 853. “Prognostic evidence, including reports and opinions of the professionals involved, that forms the basis for a reasonable prediction as to future behavior must be evaluated in determining if a child’s deprivation is likely to continue.” Interest of D.Q., 2002 ND 188, ¶21, 653 N.W.2d 713 (citing Interest of D.F.G., 1999 ND 216, ¶ 20, 602 N.W.2d 697).

[¶ 17] A review of the transcript shows sufficient evidence for the court to conclude the children’s deprivation will continue and will not be remedied. Leon testified I.B. saw himself only as the financial provider. She testified he expressed no desire to change the nature of their home. The children’s mother testified that I.B. did not think the children needed therapy and that, despite the children’s “special needs,” he did not help maintain their therapy. She testified I.B. expressed no interest in having the boys around when the parents were together or when they were separated. Georgia Holt, a therapist with Lutheran Social Services who worked with the family starting in 2003, testified I.B. had no involvement with their aid sessions before or after the parents separated. Sorum testified that between September 2003 and June 2004, I.B. stated he wished to terminate his parental rights. She testified that when the boys were being placed in foster care in 2002 and 2003, I.B. did not want to take custody and thought they should be placed with someone who could provide and care for them because he could not. Sorum testified that in August 2004, after the petition to terminate rights was filed, I.B. expressed an interest in being a parent to the children. She believed after meeting with him, however, that I.B. did not understand the children’s needs or the effort required to provide for the children. Although I.B. was dating someone who appeared willing to be the children’s mother, I.B. believed, according to Sorum’s testimony, he would always be able to find another mother for the boys if his current girlfriend was no longer with him. Finally, Hjelle testified that the children were afraid of I.B. She testified that when the boys were first placed in foster care, they were often violent and angry. Since being in foster care, their behavior has improved, and a more normal caregiver-child relationship has evolved with their foster parents. She testified a continued positive environment is needed to ensure their progress. Hjelle testified that the boys “would act up after visitation” with their parents. Her conclusion about I.B., based on the information available to her, was that I.B. would not take responsibility for what has happened and that he may revert to acting as he did when the children’s mother and he were together if the boys were returned to him. The conclusions of a social worker, a parent aide, two therapists, and the children’s mother provided clear and convincing evidence to the referee that the children would continue to be deprived if returned to their father. The referee’s finding is supported by the evidence and is not clearly erroneous.

C

[¶ 18] The final element of the three-part test is “the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27-2(M4(l)(b)(l). The risk of harm may also be shown by prognostic evidence. AS., 1998 ND 181, ¶31, 584 N.W.2d 853.

[¶ 19] The children’s mother testified that when the children were in the care of their parents, they were exposed to mental and physical abuse, possibly exposed to sexual abuse, and viewed violent and pornographic films. Hjelle testified the boys were diagnosed with ADHD and ODD, and she believed they suffered from post-traumatic stress disorder. She testified that when the parents first visited the children, they “would act up.... ” Given this evidence, the referee could conclude, by clear and convincing evidence, that the children continue to suffer from some harm and could suffer additional harm if returned to I.B. The referee’s conclusion was not clearly erroneous. The record supports the juvenile court’s conclusion that I.B.’s parental rights should be terminated.

V

[¶ 20] I.B. argues the court erred by terminating his parental rights without a showing from Cass County Social Services that it used “reasonable efforts” to reunify him with his children as required by N.D.C.C. § 27-20-32.2. Section 27-20-32.2, N.D.C.C., provides, in part:

1. As used in this section, “reasonable efforts” means the exercise of due diligence, by the agency granted authority over the child under this chapter, to use appropriate and available services to meet the needs of the child and the child’s family in order to prevent removal of the child from the child’s family or, after removal, to use appropriate and available services to eliminate the need for removal and to reunite the child and the child’s family. In determining reasonable efforts to be made with respect to a child under this section, and in making reasonable efforts, the child’s health and safety must be the paramount concern.
2. Except as provided in subsection 4, reasonable efforts must be made to preserve and reunify families:
a. Prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home; and
b. To make it possible for a child to return safely to the child’s home.
3. If the court or the child’s custodian determined that continuation of reasonable efforts, as described in subsection 2, is inconsistent with the permanency plan for the child, reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.

[¶ 21] There was testimony at trial that allowed the referee to conclude reasonable efforts had been made. Beginning in 2002 after the children’s first placement in foster care, Cass County Social Services provided parenting aid to the parents. Leon testified I.B. took little interest in the parenting sessions. He was either not home or was sleeping during the day because he worked at night. Although their household was in need of improvement, Leon testified I.B. expressed no interest in changing it. The children’s mother testified I.B. did not believe the children needed therapy or medication and did not help in the children’s treatment. Sorum testified that soon after the children were returned to the parents in 2002, any involvement in therapy ceased. She testified I.B.’s involvement in the family therapy was poor despite efforts to include him. Sorum also testified that although I.B. loves his children and now wants to be a father for them, he did not understand the efforts it would take to support the children and their needs. Holt testified that when she began her family counseling in 2003, the family unit was still intact, but I.B. had no involvement in the therapy. Shortly after these therapy sessions began, the parents separated. I.B. had not participated before or after the separation. Sorum also testified that after the children were placed in foster care in 2003, I.B. made it clear that he was not a resource for the children and his parental rights should be terminated. Finally, Hjelle testified I.B. visited the children, but when he did, they “would act up.... ” “[T]he child’s health and safety must be the paramount concern.” N.D.C.C. § 27-20-32.2(1). The evidence before the referee was sufficient to conclude Cass County Social Services made reasonable efforts to keep this family intact, but the father chose not to participate in them. Therefore, the juvenile court’s finding is not clearly erroneous.

VI

[¶ 22] Finally, I.B. argues his motion requesting visitation was improperly denied. His motion requested visitation with the children while the termination of his parental rights was reviewed by the district judge and this Court. In light of our holding that sufficient evidence was presented to terminate his parental rights, this issue is moot and need not be addressed. Interest of L.B.B., 2005 ND 220, ¶ 9, 707 N.W.2d 469; Wanner v. N.D. Workers Comp. Bureau, 2002 ND 201, ¶ 31, 654 N.W.2d 760.

VII

[¶ 23] The orders of the juvenile court are affirmed.

[¶ 24] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. ZINTER, Justice

license: Public Domain

text:
    2005 SD 127
    J.K. DEAN, INC., d/b/a Roosevelt Inn, Plaintiff and Appellant, v. KSD, INC., Rushmore Helicopters, Inc., and Bruce Schiltz, in his individual and corporate capacity, d/b/a Rushmore Helicopter Tours, Defendants and Appellees, and Town of Keystone, Acting by and Through its Board of Trustees, Defendant.
    Nos. 23534, 23559.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 3, 2005.
    Decided Dec. 28, 2005.

      Marty J. Jackley of Gunderson Palmer Goodsell & Nelson, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Jess M. Pekarski of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for appellees KSD Inc. & Bruce Schiltz/Rush-more Helicopter Tours.
   GILBERTSON, Chief Justice.

[¶ 1.] J.K. Dean, Inc., (Dean), brought an action to abate an alleged nuisance created by KSD, Inc.’s, (KSD), obstruction of a shoulder of Cemetery Road adjoining KSD’s property. Dean commenced the suit against KSD, and then attempted to join the Town of Keystone. The matter was tried to the court, which found the road was dedicated to the public but only within the paved boundaries of the road. The trial court denied Dean’s application for permanent injunctive relief against KSD. The trial court also dismissed the Town of Keystone from, the action after a lack of proper initial service was later corrected, finding that the Town was not a necessary party to the action. Dean appeals the trial court’s denial of his request for injunctive relief. By notice of review, KSD appeals the trial court’s dismissal of the Town of Keystone. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] Dean owns and operates a commercial hotel in the Town of Keystone, in Pennington County, South Dakota. Dean acquired the property in 1996. KSD owns and operates a commercial helicopter tour business also located in Keystone. KSD has owned its property since 1961. Dean’s and KSD’s properties are separated by Old Cemetery Road, formerly known as Mine Roadway.

[¶ 3.] The history of Old Cemetery Road dates back to 1883. Old Cemetery Road is the only means of public access to Keystone Cemetery. It also serves as a connecting route to Greyhound Gulch Road, and as a connecting route between the southerly end of Keystone and Alternate Highway 16 for both residential and commercial traffic. It provides the only means of public access for Dean’s restaurant and hotel customers.

[¶ 4.] The road was originally maintained by Pennington County until approximately 1961, and was paved at some point by the County. The Town of Keystone assumed responsibility for maintaining the road following the Town’s incorporation in 1973. The maintenance by the Town of Keystone was performed primarily on the paved portion of the road to ensure safe travel. Maintenance included fixing potholes, snow removal, pavement improvements, line painting, bridge repairs, bridge inspections and other routine road maintenance. The Town also moved speed limit signs, provided weed and mosquito control spraying, and mowing along the road.

[¶ 5.] Town Board Minutes indicate some shoulder improvements were made to Old Cemetery Road in 1984 when five loads of gravel were delivered and leveling was performed. However, the minutes are silent as to which shoulder areas were affected. There is no indication in the minutes that improvements were made at Town expense to the specific road shoulder of Cemetery Road that adjoins KSD’s property.

[¶ 6.] In 1991 the Town, apparently believing the disputed ditch to be owned by KSD, formally requested that KSD dedicate the land in question to public use. KSD’s vice president, Bruce Schiltz, declined to sign the dedication document mailed to him by the Town. Instead, Schiltz granted the Town permission to use the edge of the road shoulder to access sewer lines. Schiltz also informed the Town that if it had problems with snow removal, he would not object to the Town placing extra snow on the shoulder if there was a need.

[¶ 7.] A strong rainstorm in 1999 or 2000 washed out part of the road shoulder in question. Schiltz asked the Town to gravel and level the shoulder. Schiltz testified at the hearing that the washout occurred when the bridge to the south of the shoulder would not allow the flow of water to pass through. The runoff came down the east side of the road and onto the shoulder area in question, creating a twelve to eighteen inch drop-off running approximately seventy-five feet along the edge of the roadway. Schiltz asked the Town to gravel and level the area as it presented a danger to the public traveling the road. The Town brought in several loads of gravel and did a minor rebuild of the area. The Town informed KSD that any additional work would be the responsibility of KSD. KSD performed additional work to finish the repairs to the road shoulder adjoining its property.

[¶ 8.] Sometime between 2001 and 2003, KSD erected signs, staking and ropes on the shoulder of Old Cemetery Road that adjoins its property. The signs indicated that parking along the shoulder was for helicopter tour customers only. Apparently previous to this, Dean’s hotel customers had used this ditch area to park their cars. KSD also asked the Pennington County Sheriff to ask hotel customers to remove their vehicles from the posted area. Dean objected to the limitations imposed by KSD upon the shoulder that precluded his customers from parking in the disputed ditch area, and brought suit for a permanent injunction barring KSD from cordoning off the area and preventing all but helicopter tour customers from utilizing the area for parking. Dean’s complaint alleged Cemetery Road was dedicated to the public, and that the dedication included the shoulder area in question.

[¶ 9.] Dean commenced the action against KSD by summons and complaint on July 7, 2004, but neglected to join the Town. Dean attempted to bring in the Town, but failed to make proper service when the original summons and complaint were delivered to the Town’s attorney. Despite the failure, the Town’s attorney attended a deposition taken August 12, 2004, and the trial on August 13, 2004, but did not enter an appearance. The trial court announced its decision on August 23, 2004, and proposed findings of fact and conclusions of law were forwarded to all three parties. The Town entered objections to proposed findings of fact and conclusions of law on September 7, 2004, raising for the first time an objection that the Town had not been served with process and demanded the Town be stricken as a named Defendant. Thereafter, Dean obtained proper service on the president of the Keystone Board of Trustees on October 13, 2004.

[¶ 10.] On November 10, 2004, at the motion hearing on the matter, the trial court found that the Town was never personally served with the summons and was not subject to the jurisdiction of the trial court. The trial court dismissed the Town in its judgment dated December 11, 2004, finding that it was not a necessary party to the action. In its findings of fact and conclusions of law, the trial court specifically found that Cemetery Road had been dedicated to the public prior to 1985, but that the dedication included only those portions of the roadway that had been paved by Pennington County and maintained by the Town of Keystone.

[¶ 11.] Dean appeals one issue:

Whether the trial court erred when it found Dean possessed no legal basis upon which his hotel customers could park their vehicles in the disputed road shoulder area.

[¶ 12.] By notice of review, KSD appeals one issue:

Whether the trial court erred when it dismissed the Town of Keystone.

[¶ 13.] KSD’s issue concerning the dismissal of the Town must be addressed first, as it pertains to the Town’s role as an indispensable party to the underlying litigation. ■

STANDARD OF REVIEW

[¶ 14.] The determination of whether a party is indispensable is a conclusion of law and is reviewed by this Court de novo. Titus v. Chapman, 2004 SD 106, ¶ 15, 687 N.W.2d 918, 923 (citing Thieman v. Bohman, 2002 SD 52, ¶ 14, 645 N.W.2d 260, 262). “As such, a trial judge has no discretion whether to join an indispensable party, as the language of SDCL 15-6-19(a) is mandatory.” Id. (citing Smith v. Albrecht, 361 N.W.2d 626, 628 (S.D.1998) (citing Kapp v. Hansen, 79 S.D. 279, 286, 111 N.W.2d 333, 337 (1961))).

ANALYSIS AND DECISION

[¶ 15.] Whether the trial, court erred when it dismissed the Town of Keystone.

[¶ 16.] KSD contends that it was error for the trial court to dismiss the Town of Keystone as it was a necessary party to the litigation. KSD further argues that because Dean was subsequently able to obtain proper service of process, the lack of initial proper services was timely cured.

[¶ 17.] As this Court has previously noted,

There are three classes of parties to an action by equity: “Formal parties,” who may be omitted at the option of the complainant; “necessary parties,” who have an interest in the controversy, and should ordinarily be joined unless their interests are separable so that the court can, without injustice, proceed in their absence; and “indispensable parties,” whose interest is such that a final decree cannot be entered without affecting them, or that termination of controversy in their absence would be inconsistent with equity.

Kapp, 79 S.D. at 284, 111 N.W.2d at 336 (quoting Weitzel v. Felker, 76 S.D. 216, 218, 76 N.W.2d 225, 226 (1956)). The inclusion of a necessary party is within the trial court’s discretiqn. Thieman, 2002 SD 52, ¶ 13, 645. N.W.2d at 262-63 (quoting Smith, 361 N.W.2d at 628 (citing Kapp, 79 S.D. 279, 111 N.W.2d 333)). However, there is no discretion as to the inclusion of an indispensable party. Id.

[¶ 18.] When an action is brought seeking or having the effect of declaring a road as dedicated to the public, the public entity that will be forced to maintain the dedicated road is an indispensable party to the action. Smith, 361 N.W.2d at 628 (citing Henle v. Bodin, 54 S.D. 46, 222 N.W. 492 (1928)). A municipality may not waive its indispensable role as the representative of its taxpayers, although it is possible for a municipality to waive its role as an indispensable party when it purports to act in its own interest. Id.

[¶ 19.] In the instant case, Dean sought a permanent injunction barring KSD from creating a nuisance by placing signs, stakes and ropes on the shoulder of the road adjoining KSD’s property. In its complaint, Dean claimed the shoulder area had previously been dedicated to the public as part of Cemetery Road, and therefore KSD had no legal right to keep the general public from freely accessing the land in question. In his prayer for relief, Dean sought a permanent injunction barring KSD from using the shoulder area in a manner that benefited KSD’s business interests and harmed Dean’s.

[¶ 20.] Despite the fact that Dean did not seek to have the shoulder area dedicated to the public, the effect of Dean’s complaint and requested relief would have been such a dedication. The resulting dedication would have obligated the Town to maintain the shoulder area at taxpayer expense. Although Dean did not prevail on its claim that the shoulder area had been dedicated to the public, the trial court’s holding declared that Cemetery Road was dedicated to the public at some point in the past. As a consequence, the trial court’s holding obligates the Town to maintain Cemetery Road, except for the shoulder area that the trial court found had not been dedicated to the public by KSD.

[¶ 21.] However, the Town was not a party to the litigation as the trial court had dismissed it in its judgment and order, after finding the Town was not a necessary party. Under our holding in Thieman, the Town of Keystone was an indispensable party to the action, as the trial court’s holding subjects it to an obligation for the upkeep of Cemetery Road. The trial court erred when it dismissed the Town of Keystone from the action, as it was an indispensable party to the litigation.

[¶ 22.] Because the trial court erred when it dismissed the Town, we do not reach Issue 2. We reverse and remand and require the Town be joined as an indispensable party.

[¶ 23.] SABERS and MEIERHENRY, Justices, concur.

[¶ 24.] KONENKAMP and ZINTER, Justices, concur specially.

ZINTER, Justice

(concurring specially).

[¶ 25.] I concur that under established jurisprudence, the Town of Keystone was an indispensable party, and therefore, this case must be reversed. However, on retrial, the trial court should reconsider and reconcile an inconsistency in the record (and in its decision) concerning the width of the public road.

[¶ 26.] The parties do not dispute that this road has been impliedly dedicated and accepted as a public roadway since 1883. Moreover, there is no dispute that it is not a simple dirt path or trail with no supporting shoulders or ditches. Rather, Pennington County and the Town improved and paved a modern road. Moreover, they maintained it throughout its lengthy history. The question is whether the improvements and maintenance, the public’s use, and the nature of the road itself are sufficient to constitute an implied dedication and acceptance of the shoulders and ditches.

[¶ 27.] The trial court ultimately concluded that the shoulders and ditches were not impliedly dedicated and accepted, and therefore, only the pavement was public. However, inconsistently, the trial court acknowledged in a handwritten finding that maintenance over these many years “was done to the shoulder by the city [Town] and county, incidental to the road usage.” This finding of incidental maintenance, and the record evidence supporting it, suggests that the shoulders and ditches were dedicated and accepted by the public along with the pavement.

[¶ 28.] The finding of incidental maintenance, the undisputed evidence' of public improvements, and the nature of the roadway suggest a dedication and acceptance because “[generally, no particular formality is essential to an implied dedication or acceptance of land for a public use.” Smith v. Sponheim, 399 N.W.2d 899, 901 (S.D.1987) (citation omitted). Rather, “[e]onduet on the part of the owner that is clearly expressive of an intention to dedicate usually amounts to dedication, if acted upon by the public in a manner which clearly justifies the inference of an acceptance.” Township of Centerville v. Jenter, 25 S.D. 314, 317, 126 N.W. 575, 576 (1910) (quoting Larson v. Chicago, M. & St. P. Ry. Co., 19 S.D. 284, 289-90, 103 N.W. 35, 37 (1905)); Roche Realty & Inv. Co. v. Highlands Co., 29 S.D. 169, 177, 135 N.W. 684, 685 (1912) (citations omitted). Therefore, a public entity’s similar improvements have been found to be sufficient to constitute an implied dedication and acceptance. Sponheim, 399 N.W.2d at 903 (grading, graveling, and installation of culverts and a drainage ditch). Maintenance by a public entity may also constitute acceptance. Id. at 903-04 (maintaining, repairing, and removing snow). And, the maintenance need not-be regular. Id. at 904-05 (stating that “evidence of the County’s treatment of the road as a public highway is demonstrated by its continual maintenance of the road, even though such maintenance was not always done on a regular basis”). Moreover, KSD, Inc.’s private maintenance does not necessarily destroy the public dedication and acceptance. This Court has recognized that landowners and governmental entities may, to some extent,- jointly maintain an impliedly dedicated and accepted roadway. Id. at 903-05. Finally, and apart from the County and Town’s improvement and maintenance, the trial court must consider the nature of the public’s use.

[Dedication may be accepted merely by long-continued public use[ ], without any formal act of acceptance, even to the extent of charging the public authorities with liability for failure to keep in repair. This is declared by some courts to be the very highest kind of evidence of acceptance.... There is no established standard by which the use necessary to determine an acceptance by the public may be measured and declared to be sufficient, but the authorities are in agreement to the effect that a use which would naturally follow from the character of the place and the settlement of the community is sufficient.

Miller v. Southard, 38 S.D. 477, 487, 162 N.W. 146, 149 (1917) (citation omitted).

[¶ 29.] In applying these principles it must be reiterated that this is not a simple dirt path or trail: it is a modern road that was graded, improved, and paved. Obviously, a paved road of this character in this location may not exist without supporting shoulders and ditches. The photographs and maps confirm that these ditches and shoulders are naturally and, in fact, necessarily required to physically support the pavement. It is also common knowledge that ditches and shoulders would have been created in the process necessary to construct the grade upon which the pavement has been placed. These matters should be considered on retrial because this Court has long noted “the situation of the land over which a way is claimed should exert an important influence upon the question of dedication.” Roche Realty, 29 S.D. at 177, 135 N.W. at 686 (noting in that dispute, the same acts that would warrant the inference of dedication in cities and towns could be insufficient in agricultural areas) (citing 1 Elliott, Roads and Streets § 182 (3d ed.1911)). Consequently, if the shoulders and ditches are necessary to support the pavement, they must be a part of the implied dedication and acceptance.

[¶ 30.] An implied dedication and acceptance is also supported by other record evidence reflecting that the ditches and shoulders are necessary to accommodate the public’s use; i. e., road maintenance, drainage, snow removal, and traffic control signage. An implied dedication and acceptance is finally supported by the fact that the Town has maintained the shoulders and ditches at various times, including: 1) road shoulder improvements, such as graveling and leveling; 2) a partial road shoulder repair following a flood; 3) weed clearing and mosquito control on Grizzly Bear Creek; 4) construction of road ditch drainage; 5) posting of signs, including speed limit signs; 6) plowing the snow and use of the shoulder and ditches for snow removal; and 7) cleaning of drainage culverts.

[¶ 31.] On retrial, the trial court should consider the Town and the County’s maintenance of the shoulders and ditches together with the nature of this improved road and the character of the public’s use. Considering these facts, it appears likely that the shoulders and ditches are necessarily a part of the road. If they are a necessary part of the road, the undisputed public dedication and acceptance would not be limited to the pavement.

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

      . It is only the shoulder adjacent to KSD Inc.’s property that started this dispute. However, other than one specific Town repair caused by flooding, we have not been directed to evidence reflecting that this portion of the road's shoulder was created or maintained differently than the rest of the shoulders or ditches.

      . Although there is a suggestion in the briefs that some of the Town’s acts of maintenance are not relevant because they occurred within the twenty-year prescriptive period, the suggestion is misplaced. ‘'[Pjroof of use[]for a period much shorter than that required to show title by prescription may be sufficient to prove [the more limited question of] intent and dedication.” Mason v. City of Sioux Falls, 2 S.D. 640, 648, 51 N.W. 770, 773 (1892). Moreover, there is no dispute that before the Town began maintenance, the County was performing that duty. Consequently, there has been public maintenance of this roadway since its inception.


author: SEVERSON, Presiding Circuit Judge. RUSCH, Circuit Judge

text:
    2006 SD 3
    In the Matter of the DISCIPLINE OF William J. JANKLOW as an Attorney at Law.
    No. 23724.
    Supreme Court of South Dakota.
    Argued Oct. 14, 2005.
    Decided Jan. 4, 2006.

      Robert B. Frieberg, Beresford, South Dakota, Attorney for the Disciplinary Board.
    Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for William J. Janklow.
   SEVERSON, Presiding Circuit Judge.

[¶ 1.] This is a disciplinary proceeding against William J. Janklow (Janklow), a member of the State Bar of South Dakota. The Disciplinary Board of the State Bar of South Dakota (Disciplinary Board) has recommended that Janklow be suspended from the practice of law for a total of twenty-six months from December 15, 2003, and that he be reinstated without further proceedings on February 15, 2006, subject to conditions.

[¶ 2.] We find that a twenty-six month suspension of Janklow’s license to practice law, together with the recommended conditions upon reinstatement, is appropriate.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 3.] Janklow graduated from the University of South Dakota School of Law in 1966 and was admitted to the practice of law. He began his legal career as director of the legal aid program at Mission, South Dakota where he worked for approximately six years representing indigent clients. He then practiced in Pierre, South Dakota for approximately two years. Janklow served as Attorney General of South Dakota from 1975 to 1979 and served as Governor of South Dakota from 1979 to 1987 and from 1995 to 2003. Between his terms as Governor, Janklow spent approximately eight years in private practice in Sioux Falls, South Dakota. Janklow was elected to the United States House of Representatives in November 2002 and was serving in that capacity at the time of the events leading to this disciplinary action.

[¶ 4.] On December 8, 2003, a Moody County jury convicted Janklow of failure to stop at a stop sign, speeding, reckless driving and second degree manslaughter. The charges arose from an August 16, 2003, collision which killed Randolph Scott. A detailed statement of the criminal case can be found in State v. Janklow, 2005 SD 25, 693 N.W.2d 685. Trial evidence documented numerous speeding incidents and other traffic violations. On December 9, 2003, Janklow reported the felony conviction to this Court. As provided by SDCL 16-19-37, Janklow’s license to practice law was suspended on December 15, 2003, pending formal disciplinary proceedings pursuant to SDCL 16-19-39.

[¶ 5.] The trial court sentenced Jank-low on January 22, 2004. Pursuant to SDCL 23A-27-13, the trial court granted a suspended imposition of sentence on the second degree manslaughter charge. Under the terms of the suspended imposition of sentence, Janklow was placed on probation for a period of three years under certain conditions, including that he serve one hundred days in the Minnehaha County Jail, that he pay a fine of $5,000, and that he not drive a motor vehicle during the period of his probation. Janklow appealed and his convictions were affirmed in Janklow, 2005 SD 25, 693 N.W.2d 685.

[¶ 6.] The Disciplinary Board held a hearing on this matter on June 13, 2005, and filed its findings of fact, conclusions of law and recommendation with this Court on August 1, 2005. Janklow did not object and a referee was not appointed. The Disciplinary Board recommended that Janklow be suspended from the practice of law for a total of twenty-six months commencing December 15, 2003, with reinstatement without further proceedings on February 15, 2006, subject to the following conditions:

(a)That he fully comply with all terms and conditions of his probation.
(b)That he promptly advise the Secretary of the Disciplinary Board of any violation of his probation, and the Disciplinary Board make a determination of whether to recommend [Janklow’s] license be again suspended or other discipline imposed.
(e)That for a period of two years after his probation is complete, [Jank-low] promptly report to the Secretary of the Disciplinary Board any moving violations of traffic laws, and the Disciplinary Board make a determination of whether to recommend [Janklow’s] license be again suspended or other discipline imposed.

STANDARD OF REVIEW

[¶ 7.] “This Court gives careful, due consideration to the Disciplinary Board’s findings of fact because it had the advantage of encountering the witness first hand.” In re Discipline of Ortner, 2005 SD 83, ¶ 26, 699 N.W.2d 865, 874 (citing In re Arendt, 2004 SD 83, ¶ 12, 684 N.W.2d 79, 81). However, this Court does not defer to a recommended sanction. Discipline of Ortner, 2005 SD 83, ¶ 26, 699 N.W.2d at 874 (citing In re Discipline of Laprath, 2003 SD 114, ¶41, 670 N.W.2d 41, 55). “ ‘The final determination for the appropriate discipline of a member of the State Bar rests firmly with the wisdom of this Court.’ ” Discipline of Ortner, 2005 SD 83, ¶ 26, 699 N.W.2d at 874 (quoting Matter of Discipline of Wehde, 517 N.W.2d 132, 133 (S.D.1994)).

LEGAL ANALYSIS

[¶ 8.] Article V, Section 12 of the South Dakota Constitution places an affirmative duty on this Court to “govern terms of courts, admission to the bar, and discipline of members of the bar.” SDCL 16-19-31 further defines this Court’s constitutional regulatory relationship with the State Bar:

The 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. It is the duty of every recipient of that privilege to conduct himself at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.

SDCL 16-19-37 provides, in pertinent part:

If any attorney has been convicted of a serious crime as defined in § 16-19-36, the Supreme Court shall enter an order immediately suspending the attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of an appeal, pending final disposition of a disciplinary proceeding to be commenced upon such conviction.

[¶ 9.] A “serious crime” is defined as:

any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a serious crime.

SDCL 16-19-36. Janklow was convicted of second degree manslaughter, a Class 4 felony which is a “serious crime” under SDCL 16-19-36. Under the provisions of SDCL 16-19-39, the sole issue to be determined is the extent of the final discipline to be imposed.

[¶ 10.] The disciplinary options available to this Court include private reprimand, public censure, placement on probationary status, suspension for up to three years and disbarment. SDCL 16-19-35. “The appropriate discipline in a particular case is determined by considering the seriousness of the misconduct, the likelihood that it or similar misconduct will be repeated, and the attorney’s prior record.” Discipline of Ortner, 2005 SD 83, ¶ 36, 699 N.W.2d at 877 (citing In re Discipline of Eicher, 2003 SD 40, ¶ 47, 661 N.W.2d 354, 369).

Goals of Disciplinary Proceeding

[¶ 11.] The two goals of disciplinary proceedings are: “1) the protection of the public from further fraudulent, unethical or incompetent activities involving this attorney; and 2) the preservation of the image and integrity of the attorneys, the bar association and the legal profession as a whole.” Matter of Discipline of Simpson, 467 N.W.2d 921, 921-22 (S.D.1991). “The real and vital issue to be determined is whether or not the accused, from the whole evidence as submitted, is a fit and proper person to be permitted to continue in the practice of law.” Id. at 922.

I. Protection of Public

[¶ 12.] The first and primary goal of attorney discipline is to protect the public from further fraudulent, unethical or incompetent activities. This Court does not look only at the conviction, but must consider the circumstances surrounding the conviction. Janklow was convicted of second degree manslaughter which is defined as “[a]ny reckless killing of one human being, including an unborn child, by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homieide[.]” SDCL 22-16-20. The jury found that Janklow acted recklessly when it convicted him of second degree manslaughter. He was not charged with or convicted of a felony involving an intentional act. The distinction is significant. “Reckless is a lesser degree of culpability or mental state than intentional.” State v. Giroux, 2004 SD 24, ¶ 14, 676 N.W.2d 139, 144. This Court has previously identified several categories of attorney conduct which warrant disbarment. Discipline of Jeffries, 500 N.W.2d at 223. “The first and historically the most important, is “when it is clear that the protection of society requires such action[.]’ ” Id. (citation omitted) (alteration in original). Generally, it is appropriate to disbar attorneys who are convicted of a serious crime as defined by SDCL which results in harm to clients or others. Id. Often these felony convictions are for crimes involving moral turpitude. Id. “To summarize, attorney conduct involving moral turpitude and/or dishonesty, fraud, deceit or misrepresentation, which harms, or is likely to harm the public, usually warrants disbarring the attorney involved.” Id. at 224.

[¶ 13.] ' This case is distinguishable from those attorney discipline cases involving fraud, dishonesty, deceit or misrepresentation and those cases involving harm to clients. It is also distinguishable from cases involving the use of drugs and alcohol. Janklow’s felony conviction is unrelated to the practice of law. While there are public' concerns regarding Janklow’s driving, there was no evidence presented to suggest that the public needs protection from Janklow’s conduct as an attorney. Janklow has a long and distinguished career as an attorney. He is widely regarded as a skilled lawyer. There is no evidence to suggest that he would be a threat to his clients or to the public if allowed to return to the practice of law.

II. Integrity of Attorneys, Bar Association and Legal Profession as a Whole

[¶ 14.] This Court must also consider the second goal of attorney discipline, the preservation of the image and integrity of attorneys, the bar association and the legal profession. Janklow’s actions resulted in the death of another human being. We must consider a lawyer’s responsibility as an officer of the Court to obey laws. In return for their license to practice law, lawyers hold positions of special responsibility to their clients and the public. They must take an oath to support the Constitution of the United States and the Constitution of the State of South Dakota. Violations of the law by lawyers undermine public trust and confidence in the rule of law. This must be a component of our evaluation as we consider the appropriate discipline.

[¶ 15.] Janklow’s criminal case received extensive media coverage and led to his resignation from the United States House of Representatives. Janklow has expressed remorse and while the conviction has had personal and professional consequences, “[publicity and personal grief are not factors in deciding appropriate discipline.” Discipline of Ortner, 2005 SD 83, ¶ 39, 699 N.W.2d at 877. “Under art. V, § 12 of our Constitution, this Court, and not the media nor any third party, is solely charged with the responsibility for determining what is appropriate discipline in any attorney misconduct case.” Id. (citations omitted). Appropriate discipline is also not a partisan issue to be influenced by political supporters or opponents.

[¶ 16.] “The purpose of a criminal prosecution is to punish a crime against the State.” In re Discipline of Wilka, 2001 SD 148, ¶ 17, 638 N.W.2d 245, 250. “Punishment for any criminal activity is handled in sentencing[.]” Discipline of Simpson, 467 N.W.2d at 922. “The purpose of attorney disciplinary proceedings is not to punish the attorney anew, but rather to take sufficient measures for the protection of the public and its legal system from a repetition of these types of incidents.” Discipline of Wilka, 2001 SD 148, ¶ 17, 638 N.W.2d at 250 (citing Matter of Discipline of Hopewell, 507 N.W.2d 911, 916 (S.D.1993)). “[A]n attorney is and should be held to a higher standard than the general public and the profession is entitled to know that there is a consequence when that standard is not met.” Discipline of Simpson, 467 N.W.2d at 923.

Appropriate Discipline

[¶ 17.] In this case, conviction of a serious crime warrants sanctions as it reflects on the public trust placed on attorneys. However, we must also consider that Janklov/s conviction did not involve an intentional act and was unrelated to the practice of law. A lawyer must be held accountable for his or her acts, even if the results were unintended, but we must not be unfair to the lawyer.

[¶ 18.] In determining the appropriate level of discipline, we have applied South Dakota law and reviewed South Dakota cases which have addressed similar legal principles. We have also considered disciplinary actions involving manslaughter convictions from other states as there is no similar case in South Dakota. Although not adopted in South Dakota, we also have reviewed for guidance the potential aggravating and mitigating factors of the ABA Standards for Imposing Lawyer Sanctions. See Discipline of Laprath, 2003 SD 114, ¶ 86 n. 4, 670 N.W.2d at 66 n. 4. The facts and circumstances of this attorney disciplinary action warrant suspension for twenty-six months. This sanction is consistent with South Dakota cases addressing the issue of conduct reflecting a disregard for the rule of law which undermines public confidence in the law. It is also consistent with sanctions in other states where misconduct resulted in manslaughter or vehicular homicide convictions.

[¶ 19.] Therefore, this Court will accept the recommendations of the Disciplinary Board of the State Bar and Janklow will be suspended from the practice of law retroactive to December 15, 2003, and he will be reinstated on February 15, 2006, without further proceedings, subject to the conditions recommended by the Disciplinary Board. Further, Janklow must also reimburse the State Bar of South Dakota and the Unified Judicial System for expenses allowed under SDCL 16-19-70.2.

[¶ 20.] CALDWELL, BASTIAN and VON WALD, Circuit Judges, concur.

[¶ 21.] RUSCH, Circuit Judge, dissents.

[¶ 22.] SEVERSON, Presiding Circuit Judge, and CALDWELL, BASTIAN, RUSCH and VON WALD, Circuit Judges, sitting for GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, disqualified.

RUSCH, Circuit Judge

(dissenting).

[¶ 23.] I respectfully dissent. Jank-low’s license to practice law should not be returned until he has satisfactorily completed the three-year period of probation ordered by the circuit court in Moody County for the criminal offenses of failure to stop at a stop sign, speeding, reckless driving, and second degree manslaughter.

[¶ 24.] It is important to recognize that these disciplinary proceedings are not part of Janklow’s punishment for those convictions. The trial court in Moody County had the right and obligation to impose an appropriate punishment for Janklow’s criminal offenses which resulted in the death of Randolph Scott. “The purpose of this [disciplinary] action is not to give a punishment. Punishment for any criminal activity is handled in sentencing [.] ” Discipline of Simpson, 467 N.W.2d at 922. See also Petition of Pier, 1997 SD 23, ¶ 8, 561 N.W.2d 297, 299 (citing Discipline of Simpson, supra; Matter of Discipline of Stanton, 446 N.W.2d 33, 42 (S.D.1989); Matter of Discipline of Strange, 366 N.W.2d 495, 497 (S.D.1985)).

The purpose of a criminal prosecution is to punish a crime against the State, The purpose of civil contempt is to punish the wrongdoer. The purpose of attorney disciplinary proceedings is not to punish the attorney anew, but rather to take sufficient measures for the protection of the public and its legal system from a repetition of these types of incidents.

Discipline of Wilka, 2001 SD 148, ¶ 17, 638 N.W.2d at 250 (citing Discipline of Hopewell, 507 N.W.2d at 917). As pointed out by the majority in footnote one, some states require automatic disbarment of a lawyer convicted of a felony, but South Dakota has not adopted such a rule.

[¶ 25.] The majority opinion correctly states the standard of review and the purposes of disciplinary proceedings. The goals of a lawyer’s disciplinary proceeding should be: 1) the protection of the public from further fraudulent, unethical, or incompetent activities involving the attorney; and 2) the preservation of the image and integrity of attorneys, the bar association and the legal profession as a whole. While I agree with the majority’s consideration of the first goal, the Court should reach a different result when it considers the second goal.

Protection of the public

[¶ 26.] The Court is correct in finding that Janklow does not present a risk of harm to the public from fraudulent, unethical, or incompetent activities. Janklow’s case is clearly different from those attorney discipline cases involving fraud, dishonesty, deceit, or misrepresentation and from those cases involving harm to clients. His criminal convictions were unrelated to the practice of law. While the public may be concerned about Janklow’s driving, there is no reason to believe that the public needs protection from his conduct as an attorney. Janklow has had a long and distinguished career as an attorney. The record before this court was full of examples of people he has helped and the good he has done as an attorney. There is no evidence to suggest that Janklow is a threat to the public if he is allowed to return to the practice of law.

Preservation of the image and, integrity of the legal profession

[¶ 27.] I disagree with the result reached by the majority because of the second goal, i.e. the need to preserve the image and integrity of attorneys, the bar association, and the legal profession as a whole. “Lawyers must guard against conduct that diminishes public confidence in the legal system.” Discipline of Ortner, 2005 SD 83, ¶ 48, 699 N.W.2d at 879. “If an attorney knowingly and repeatedly violates the law, he places his license to practice in jeopardy and his actions result in a loss of respect for the profession from the public.” Matter of Discipline of Johnson, 488 N.W.2d 682, 684 (S.D.1992), vacated on rehearing, 500 N.W.2d 215 (S.D.1993).

As officers of this court, attorneys are charged with obedience of the laws of this state and the United States. The intentional violation of those laws by those who are specially trained and knowledgeable of them is particularly unwarranted and constitutes a breach of the attorney’s oath of office. Because of his position in society, even minor violations of law by a lawyer tend to lessen public confidence in the legal profession. Obedience of the law exemplifies respect for the law. To lawyers especially, respect for the law must be more than a platitude.

Discipline of Jeffries, 500 N.W.2d at 222 (quoting Discipline of Parker, 269 N.W.2d at 780).

[¶ 28.] There are no South Dakota cases dealing with the appropriate discipline for an attorney convicted of manslaughter or a similar offense. However, as pointed out by the Court in footnote three, there are similar cases in other states. Most of those cases involved DWI convictions. A DWI is an aggravating circumstance which was not present in this case as Janklow had not been drinking. In those cases, Colorado only imposed a public censure (there was a DWI); California imposed a six-month suspension (no DWI but twenty previous traffic violations); Ohio imposed an eighteen month suspension (a DWI); Washington imposed a twenty-four month suspension (a DWI and two deaths); Delaware imposed a three-year suspension (a DWI); Pennsylvania imposed a four-year suspension (two deaths as a result of a hit and run); New Mexico imposed an indefinite suspension (a DWI); and Oklahoma disbarred the attorney (a DWI). A review of South Dakota attorney discipline cases over the past fifteen years shows very few cases involved suspensions for as long as three years. The cases which resulted in disbarment generally involved fraudulent or unethical conduct which seriously harmed clients.

[¶ 29.] Janklow’s case is different because he is the most well-known attorney in the State of South Dakota as a result of his service as Attorney General from 1975 to 1979, as Governor from 1979 to 1987 and from 1995 to 2003, and as a member of the United States House of Representatives from 2004 until his resignation following the events leading to this disciplinary action. Because of his prominence, his arrest and convictions have caused more harm to the public image and view of the integrity of attorneys, the bar association, and the legal profession than similar conduct by a lawyer of lesser renown. The Supreme Court has considered an attorney’s public position as indicating the need for more severe sanctions. See Discipline of Johnson, 488 N.W.2d 682, vacated on rehearing, 500 N.W.2d 215; Discipline of Jeffries, 488 N.W.2d 674 (S.D.1992), vacated on rehearing, 500 N.W.2d 220. Jank-low’s acknowledged violations of the traffic laws and these convictions, while he was an elected public official, have tarnished the image and integrity of the legal profession as a whole.

[¶ 30.] A delay in the return of Jank-low’s license to practice law until he has completed his probation may result in the loss of his license for a period of time longer than similarly situated lawyers. As pointed out above, very few South Dakota cases have involved suspensions for as long as three years. However, none of the lawyers involved in those disciplinary cases were as prominent as Janklow. Because of his public positions, Janklow’s violations of the law did more to lessen respect for the law and public confidence in the legal profession. This justifies dealing with him more harshly than others were dealt with. Janklow’s license to practice law should not be returned until he has completed his period of probation.

      . While some states make a felony conviction grounds for automatic disbarment, this approach to attorney discipline has not been adopted in South Dakota. In re Discipline of Parker, 269 N.W.2d 779, 780 (S.D.1978).
      To determine whether discipline other than disbarment would be appropriate, the circumstances surrounding the conviction will be considered, i.e., whether the conduct involved dishonesty, fraud, deceit, or misrepresentation; whether the conduct is prejudicial to the administration of justice; whether the conduct adversely reflects upon the attorney’s integrity, competency or fitness to practice law.

        Id.

      As officers of this court, attorneys are charged with obedience of the laws of this state and the United States. The intentional violation of those laws by those who are specially trained and knowledgeable of them is particularly unwarranted and constitutes a breach of the attorney's oath of office. Because of his position in society, even minor violations of law by a lawyer tend to lessen public confidence in the legal profession. Obedience of the law exemplifies respect for the law. To lawyers especially, respect for the law must be more than a platitude.

        Matter of Discipline of Jeffries, 500 N.W.2d 220, 222 (S.D.1993) (quoting In re Discipline of Parker, 269 N.W.2d at 780) (emphasis added).

      . See Discipline of Simpson, 467 N.W.2d at 923 (attorney received a suspended imposition of sentence for failing to file federal income tax return and South Dakota sales tax returns from 1965 through 1988 and was suspended from the practice of law for two years); Discipline of Jeffries, 500 N.W.2d at 226-27 (prosecutor’s commission of felony and misdemeanor drug offenses warranted three year suspension from the practice of law).

      . See In re Alkow, 64 Cal.2d 838, 51 Cal.Rptr. 912, 415 P.2d 800 (1966) (imposing a six month suspension for a manslaughter conviction which occurred after twenty traffic violations, at least eleven of which were for driving without a license); People v. Fahselt, 807 P.2d 586 (Colo.1991) (holding that convictions for felony vehicular assault, misdemeanor driving under the influence of alcohol, failure to maintain liability insurance and reckless driving warranted public censure); In re Steiner, 817 A.2d 793 (Del.2003) (holding that three year suspension was appropriate for conviction for two counts of misdemeanor second-degree vehicular assault and one count of misdemeanor driving while under the influence); In re Morris, 74 N.M. 679, 397 P.2d 475 (1965) (ordering indefinite suspension based on conviction of involuntary manslaughter resulting from driving while under the influence of alcohol); Office of Disciplinary Counsel v. Michaels, 38 Ohio St.3d 248, 527 N.E.2d 299 (1988) (holding that convictions for involuntary manslaughter, driving while intoxicated, reckless operation and operating a motor vehicle without reasonable control warranted an eighteen month suspension); State ex rel. Oklahoma Bar Ass'n v. Wyatt, 32 P.3d 858 (Okla 2001) (holding that disbarment was appropriate for conviction of first degree manslaughter involving driving while intoxicated); Office of Disciplinary

        Counsel v. Patchel, 539 Pa. 497, 653 A.2d 625 (1995) (holding that a four year suspension was appropriate for conviction of two counts of homicide by vehicle and two counts of accident involving death or personal injury hit and run); In re Disciplinary Proceeding Against Curran, 115 Wash.2d 747, 801 P.2d 962 (1990) (imposing a six month suspension in addition to an eighteen month interim suspension period for driving while intoxicated resulting in two vehicular homicide warrants).

      . See Discipline of Ortner, supra (nine month suspension); Discipline of Arendt, supra (one hundred twenty day suspension); In re Reciprocal Discipline of Rokahr, 2004 SD 66, 681 N.W.2d 100 (public admonishment); Discipline of Laprath, supra (disbarment); Discipline of Eicher, supra (one hundred day suspension); In re Discipline of Mattson, 2002 SD 112, 651 N.W.2d 278 (two year suspension); Discipline of Wilka, supra (public censure); In re Discipline of Light, 2000 SD 100, 615 N.W.2d 164 (public censure); In re Discipline of Mines, 2000 SD 89, 612 N.W.2d 619 (disbarment); In re Discipline of Dorothy, 2000 SD 23, 605 N.W.2d 493 (public censure); Matter of Claggett, 1996 SD 21, 544 N.W.2d 878 (public censure); Matter of Discipline of Olson, 537 N.W.2d 370 (S.D.1995) (three year suspension); Matter of Discipline of Mines, 523 N.W.2d 424 (S.D.1994) (public censure); Discipline of Wehde, supra (two year suspension); Matter of Bihlmeyer, 515 N.W.2d 236 (S.D.1994) (public censure); Discipline of Hopewell, supra (indefinite suspension); Matter of Discipline of Martin, 506 N.W.2d 101 (S.D.1993) (two year suspension); Matter of Discipline of Tidball, 503 N.W.2d 850 (S.D. 1993) (three year suspension); Matter of Discipline of Johnson, 500 N.W.2d 215 (S.D.1993) (two year suspension); Discipline of Jeffries, supra (three year suspension); Matter of Discipline of Taylor, 498 N.W.2d 200 (S.D.1993) (public censure); Matter of Discipline of Russell, 493 N.W.2d 715 (S.D.1992) (one year suspension); Matter of Discipline of Kallenberger, 493 N.W.2d 709 (S.D.1992) (public censure); Matter of Discipline of Schmidt, 491 N.W.2d 754 (S.D.1992) (public censure); Petition of Pier, supra (disbarment); Discipline of Simpson, supra (two year suspension); Matter of Discipline of Bleeker, 466 N.W.2d 858 (S.D.1991) (six month suspension); Matter of Discipline of Hendrickson, 456 N.W.2d 140 (S.D.1990)(disbarment); Matter of Discipline of Bergren, 455 N.W.2d 856 (S.D.1990)(one year suspension).


author: JENSEN, Circuit Judge.

text:
    2006 SD 5
    Daniel HORN, Claimant and Appellant, v. DAKOTA PORK and Wausau Insurance Companies, Employer, Insurer and Appellees and Riverside Manufacturing and AIG Claims Services, Employer, Insurer and Appellees.
    No. 23528.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 30, 2005.
    Decided Jan. 11, 2006.

      A. Russell Janklow and Ronald A. Parsons, Jr. of Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux Falls, South Dakota, Attorneys for claimant and appellant Daniel Horn.
    R. Alan Peterson and Steven S. Siegel of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, South Dakota, Attorneys for employer, insurer and appellee Dakota Pork and Wausau Insurance Companies.
    J.G. Shultz, Jennifer L. Wollman of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for employer, insurer and appellee Riverside Manufacturing and AIG Claims Service.
   JENSEN, Circuit Judge.

[¶ 1.] Daniel Horn (Horn) appeals a circuit court decision affirming the South Dakota Department of Labor’s (Department) determination that he sustained a short term compensable injury, but was not entitled to permanent disability benefits under the workers’ compensation law. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Horn was employed as a welder at Riverside Manufacturing (Riverside). On Friday, July 7, 2000, during the workday, Horn bent over and experienced severe back pain when he attempted to straighten up. Horn reported the injury to his supervisor and completed his workday. He saw Jackie Siver (Siver), a physician’s assistant, the following Monday. Horn reported “increasing pain in his lower back especially with movement such as bending over.” Siver advised Horn that he should avoid twisting, lifting and bending motions and imposed a twenty pound lifting restriction.

[¶ 3.] Horn was subsequently referred to Dr. Gail Benson (Dr. Benson), an orthopedic surgeon, for examination and treatment. Horn reported experiencing back pain over the two to three weeks since injuring his back on July 7. Dr. Benson ordered an MRI and continued the light duty restrictions. On September 27, 2002, Dr. Benson, advised Riverside’s workers’ compensation carrier that Horn’s complaints and symptoms at that time were related to the July 7, 2000, injury.

[¶ 4.] Horn continued to have back problems and pain, but did not receive further medical treatment for the condition. Horn did not return to work at Riverside after the July 7, 2000, injury because Riverside had no positions available to accommodate his lifting and bending restrictions. Horn began working part-time delivering newspapers in late 2000 and continued to work in that position at the time of the hearing before Department. Horn applied for several full-time positions, but each involved repetitive lifting and bending duties that he did not believe his back could tolerate.

[¶ 5.] For most of his adult life, Horn was engaged in heavy physical labor involving repetitive lifting, bending and stooping. For twenty years he worked in the loading dock and icehouse at Armour and Co. (Armour) lifting boxes of frozen meat. He strained muscles in his back on three occasions and, after each injury, he was given muscle relaxants and returned to work within a few days. After Armour closed in 1982, Horn drove a feed truck and loaded and unloaded sacks of feed for approximately two years.

[¶ 6.] Horn began working in the casing department for Dakota Pork in 1984. In 1997 Horn injured his back lifting a sixty pound bag of salt at Dakota Pork. Horn initially saw Siver for the back injury. An MRI scan showed degenerative disc changes in Horn’s low back. Horn also consulted with Dr. Joseph Cass (Dr. Cass), an orthopedic surgeon, concerning the low back injury. Dr. Cass diagnosed Horn with mechanical low back pain and issued him a five percent whole body impairment rating. Horn received a workers’ compensation settlement from Dakota Pork based upon the five percent impairment rating. Horn returned to work approximately two months after the injury and continued to work in a meat cutting position until Dakota Pork closed later in 1997.

[¶ 7.] Horn attended welding school after Dakota Pork closed and began working as a welder at Yale Manufacturing in early 1998. Yale closed shortly thereafter and Horn began his employment at Riverside in April 1998. Horn worked at Riverside until his injury in July 2000.

[¶ 8.] On January 17, 2001, following his injury at Riverside, Horn saw Dr. R. Farnham (Dr. Farnham), an Occupational Medical Specialist, for an independent medical examination ordered by Dakota Pork. Dr. Farnham diagnosed Horn with mechanical low back pain due to degenerative changes of the lumbosacral spine compatible with age rather than trauma. Dr. Farnham opined that Horn’s current complaints were unrelated to the 1997 injury. He further determined that the July 7, 2000, injury temporarily exacerbated the mechanical low back pain, but was not the cause of his current impairment or disability. Dr. Farnham gave Horn a whole body impairment rating of five percent.

[¶ 9.] Riverside referred Horn to Dr. Benson for an independent medical examination on November 26, 2002. Dr. Benson diagnosed Horn with ankylosing spondyli-tis and chronic low back pain. Dr. Benson opined in his written report that Horn’s “current complaints are related to a condition called ankylosing spondylitis.” Dr. Benson further wrote that the July 2000 injury was not a major contributing cause of Horn’s impairment or disability, but did cause a short term need for treatment.

[¶ 10.] Horn filed a workers’ compensation petition with Department on May 21, 2002, alleging that he suffered a compensa-ble back injury arising from his employment at Riverside and Dakota Pork. At the hearing before Department, the parties stipulated to the admission of medical records, Independent Medical Examination Reports (IME Reports), correspondence and the depositions of Horn and Dr. Benson. Department determined that Horn sustained a compensable injury causing a short term need for medical treatment; but that the work injury was not a major contributing cause of his current disability.

[¶ 11:] Horn appealed Department’s decision to the circuit court which affirmed Department. Horn appeals to this Court arguing that Department and the circuit court erred in determining that his workplace injury was not a major contributing cause of his disability. Horn also argues that Riverside is responsible for his com-pensable workplace injury. This latter issue was not addressed below because it was determined that Horn did not have a compensable workplace injury.

STANDARD OF REVIEW

[¶ 12.] The standard of review of an agency’s decision is governed by SDCL 1-26-36 and ordinarily requires de novo review of questions of law and clearly erroneous review of findings of fact. Brown v. Douglas School Dist., 2002 SD 92, ¶ 9, 650 N.W.2d 264, 267. “When factual determinations are made on the basis of documentary evidence, however, we review the matter de novo, unhampered by the clearly erroneous rule.” Id. Since the record consists solely of documentary evidence and depositions, we give no deference to the decision of Department or the circuit court. Haynes v. McKie Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661; Granel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶7, 619 N.W.2d 260, 262; Kurtz v. SCI, 1998 SD 37, ¶ 10, 576 N.W.2d 878, 882.

ANALYSIS AND DECISION

ISSUE

[¶ 13.] Whether Department erred in determining that Horn’s employment or work related injury was not a major contributing cause of his disability.

[¶ 14.] Horn had the burden to prove by a preponderance of the evidence “all the facts essential to compensation.” Grauel, 2000 SD 145, ¶ 11, 619 N.W.2d at 263(quoting Westergren v. Baptist Hosp., 1996 SD 69, ¶ 10, 549 N.W.2d 390, 393). “Our law requires a claimant to establish that his injury arose out of his employment by showing a causal connection between his employment and the injury sustained.” Id. (citations omitted). The employment need not be the direct nor proximate cause of the injury in order to establish this causal connection, but rather must be shown to be a contributing factor to the injury. Id.; Gilchrist v. Trail King Industries, Inc., 2000 SD 68, ¶ 18, 612 N.W.2d 1, 5-6. The claimant also must prove by a preponderance of medical evidence, that the employment or employment related injury was a major contributing cause of the impairment or disability. Arends v. Dacotah Cement, 2002 SD 57, ¶ 15, 645 N.W.2d 583, 588; Granel, 2000 SD 145, ¶ 19, 619 N.W.2d at 265. The evidence necessary to support an award must not be speculative, but rather must be “precise and well supported.” Byrum v. Dakota Wellness Foundation, 2002 SD 141, ¶ 16, 654 N.W.2d 215, 219; Brady Memorial Home v. Hantke, 1999 SD 77, ¶ 16, 597 N.W.2d 677, 681.

[¶ 15.] Department correctly determined, and Horn does not contest Department’s ruling, that the July 7, 2000, injury temporarily caused a short term need for treatment, but was not a major contributing cause of Horn’s current disability. Dr. Benson’s IME Report stated that both the 1997 and 2000 injuries were unrelated to his current complaints which Dr. Benson reaffirmed in his deposition testimony. Dr. Benson’s opinions were consistent with the opinions of Dr. Farnham in his report that the July 7, 2000, injury caused a temporary exacerbation of Horn’s low back pain, but did not independently contribute to his current impairment or disability relative to his low back.

[¶16.] Horn argues that the July 7, 2000, injury was only one of a number of cumulative injuries he sustained at Dakota Pork and Riverside from his years of repetitive bending and lifting; ultimately leading to the degeneration of his disc. This Court has approved an award of “compensation to claimants, even though they cannot prove any specific trauma, if they prove a history of injury to the body that occurs in the normal course of employment.” St. Luke’s Midland Regional Medical Center v. Kennedy, 2002 SD 137, ¶ 11, 653 N.W.2d 880, 884.

[¶ 17.] Horn asserts that Dr. Benson’s testimony established the compensability of this claim. Dr. Benson diagnosed Horn with ankylosing spondylitis and degeneration of the spinal disc. Dr. Benson attributed the former to a pre-existing genetic condition unrelated to Horn’s work and the latter to long term spinal changes from repetitive lifting and bending over his lifetime. Horn points to the following specific portion of Dr. Benson’s testimony in support of the compensability of his degenerative disc condition:

Q: The second disorder, the degenerative disc problem, is that problem, how did that come about from a pathologic standpoint, is that something that was contributed to over the years by his bending, lifting and stooping work activities?
A: That’s very likely and probable but how to pin that down to a certain event is very difficult. You can look at x-rays as you go along and see if it’s been preexisting. That’s the only other way I know.
Q: And just so that I keep that straight, this man worked at one place from 1990 to 1997, seven years, and I can represent to you that he worked, this was at Dakota Pork where he did a significant amount of twisting, bending and stooping, although the lifting that he did wasn’t all that heavy but it was continuous. Then after that he worked for a three-year period from about 1997 or 1998, about a two year period, from 1997 to '98 where he was doing a welding job that I don’t believe there was a lot of heavy lifting there either but there was a lot of lifting, bending and stooping. Are you going to be able to tell us which one of those two positions, the first seven years at Dakota Pork or the last two years at Riverside Manufacturing, which one of those two working positions or the work activities, would you be able to tell us which one of those places the work activities were a major contributing cause of the progression of the degenerative disc disease, Doctor?
A: I cannot be specific on that issue.
Q: Would it be your opinion that both of those previous employments then contributed on an equal basis to the progression of the disease, Doctor?
A: I believe all of these repetitive jobs are contributory, but I would place that over a lifetime rather than just over a ten-year period.
Q: ... the part that I’m struggling with, Doctor, is this gentleman was able to work and then at some point got into a situation where he was no longer able to continue to work, and I guess the question we have for you is whether the cumulative work activities over the last ten years, were those activities, it doesn’t have to be ‘the’ major contributing factor but simply “a” major contributing factor in his resultant disability and the reason he’s not working today? A: Oh, I believe it is a contributing factor.
Q: And I know this gets a little difficult and I know it’s not an exact science, but is it fair for me to state that you’re not able to quantify from a percentage standpoint if we were trying to apportion it how much of this problem is related to his first seven years at Dakota Pork and the following two, two and a half years , at Riverside Manufacturing? Are you able to apportion that for us, Doctor?
A: I don’t believe so.

[¶ 18.] This testimony suggested that Horn’s employment history involving repetitive lifting, bending and stooping contributed to his degenerative disc. However, Dr. Benson was unable to state that Horn’s degenerative disc or his employment was a major contributing cause of his current disability. When Dr. Benson was specifically asked by Horn’s counsel whether the repetitive twisting, bending, stooping and lifting at either Dakota Pork or Riverside was a major contributing cause of his condition, Dr. Benson stated, “I cannot be specific on that issue.” When asked again if the work activities at Dakota Pork or Riverside were a major contributing cause of his disability and the reason he is not working today, Dr. Benson could only state, “Oh, I believe it is a contributing factor.”

[¶ 19.] This testimony failed to prove that Horn’s degenerative disc injury was a major contributing cause of his existing disability. See Haynes, 2004 SD 99, ¶ 17, 686 N.W.2d at 661; Granel, 2000 SD 145, ¶ 17, 619 N.W.2d at 265. As this Court has previously stated: “[t]he mere occurrence of an injury at work does not mean it is ipso facto work-related” and the employee has the burden to establish that the work injury was a major contributing cause of the disability. Granel, 2000 SD 145, ¶ 19, 619 N.W.2d at 265.

[¶ 20.] Horn also argues that Department erred in determining that he did not have a compensable injury under subsection (b) or (c) of SDCL 62-1-1(7). “While both subsection (b) and subsection (c) deal with preexisting injuries, the distinction turns on what factors set the preexisting injury into motion; if a preexisting condition is the result of an occupational injury then subsection (c) controls, if the preexisting condition developed outside of the occupational setting then subsection (b) controls” Byrum, 2002 SD 141, ¶ 15, 654 N.W.2d at 218.

[¶ 21.] In support of the showing under subsection (b), Horn dtes the following portion of Dr. Benson’s testimony:

Q: Is it a combination of the degenerative disc and the ankylosing spondylitis that is the combination of the two of them that are keeping this gentleman from being able to work and function today, Doctor?
A: I believe so.
Q: And just so the Department keeps this clear, the ankylosing spondylitis is not contributed to by the work activities but the degenerative disc disease and multilevel changes that he had in his lumbar spine, that is contributed to more likely than not by the work activities over the years. Is that a fair statement, Doctor?
A: Yes.
Q: Would you agree with me that it would be the combination of both of these conditions together then that would be a major contributing factor for his pain symptoms?
A: Very likely.

[¶ 22.] It is undisputed from Dr. Benson’s testimony that the ankylosing spon-dylitis was unrelated to Horn’s employment. Dr. Benson testified that the combination of the non-occupational an-kylosing spondylitis and the work related degenerative disc condition was a major contributing factor for Horn’s pain symptoms. However, SDCL 62 — 1—1 (7)(b) requires a showing that “the employment or employment related injury is and remains a major contributing cause” of Horn’s disability or impairment. Dr. Benson’s testimony failed to establish that either the degenerative disc or Horn’s employment, itself, was a major contributing cause of Horn’s current disability or impairment.

[¶ 23.] Horn cites Arends, 2002 SD 57, 645 N.W.2d 583 in support of his claim that the degeneration of his disc is a com-pensable work injury. In Arends, the claimant was employed for over thirty years in a job involving repetitive stooping and kneeling on concrete. The claimant injured his knee in a non-work accident requiring arthroscopic surgery. The arthroscopic surgery revealed both an acute injury involving torn cartilage and a chronic injury involving degeneration of the cartilage and patella. The surgeon opined that the degeneration was abnormally advanced for a forty-eight year old and was caused by the accumulation of trauma from the claimant’s years of work activities. The treating physician testified that the work activity was a major contributing cause of this knee injury. Department awarded the claimant permanent total disability benefits. This Court affirmed stating:

The condition, or loss produced by the injury, is the physical impairment caused by Arends’ degenerative osteoarthritis. Findings taken from MRI, arthroscopic surgery, and the examinations of both doctors demonstrate to a reasonable medical probability that Arends’ chronic condition was not caused by one acute injury; rather, it was caused by the cumulative trauma from years of bending, stooping and kneeling on concrete. Therefore, unlike the claimant in Granel, Arends has met his burden of demonstrating that the repetitive work at Dacotah caused him injuries which, in turn, were a major contributing cause of his disability. Given this evidence, we are not firmly convinced that a mistake has been made and we will not overturn the Department’s ruling.

Arends, 2002 SD 57, ¶ 16, 645 N.W.2d at 588 (citations omitted).

[¶ 24.] In Arends the opinion testimony as to the employment related causation of the claimant’s degenerative condition and his resulting disability was well supported. In contrast Dr. Benson did not provide a medical opinion that Horn’s degenerative disc was a major contributing cause of his disability. Moreover, Dr. Benson testified that more than 80 percent of the general population has degenerative disc changes over time. Horn was sixty-one at the time of Dr. Benson’s last examination and the medical testimony did not establish that the extent of his degeneration was abnormal for his age. Rather, Dr. Farnham opined that the degeneration was consistent with age. Further, Dr. Benson’s IME Report stated that Horn’s current back pain was due to ankylosing spondilitis and the doctor reaffirmed in his deposition that the ankylosing spondilitis was causing Horn more problems than the spinal degeneration.

[¶ 25.] The evidentiary basis to support a compensable claim under subsection (c) of SDCL 62-1-1(7) was also lacking. Horn argues that his degenerative disc was work related and pre-existed his employment at Dakota Pork and/or Riverside and was subsequently aggravated by this employment. However, the threshold showing for a claim under subsection (c) of SDCL 62-1-1(7) required Horn to show a “preexisting work related compensable injury, disability, or impairment^]” While there was evidence suggesting that Horn had spinal degeneration at least prior to his employment at Riverside, there was no evidence or claim that this degeneration was a “preexisting work related compensa-ble injury” at any time.

[¶26.] Horn failed to prove the com-pensability of his disability claim and Horn is not entitled to additional benefits. Therefore, it is unnecessary to discuss the responsibility for payment of the claim.

[¶ 27.] Affirmed.

[¶ 28.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 29.] JENSEN, Circuit Judge, for SABERS, Justice, disqualified.

      . For reasons which are unclear an MRI scan was never taken of Horn after Dr. Benson's examination.

      . Horn's duties in the casing department involved pulling casings, as well as twisting and bending. Horn was transferred to a salting job after he developed problems with his hands from pulling casings.

      . Dr. Benson testified during his deposition that "ankylosing spondylitis” is a genetic arthritic condition which may affect the entire spine. The condition is progressive as a person ages and may eventually cause the spine to fuse together.

      . SDCL 62-1-1(7) sets forth the showing necessary to establish a compensable work injury and provides in pertinent part:
      "Injury” or “personal injury,” only injury arising out of and in the course of the employment, and does not include a disease in any form except as it results from the injury. An injury is compensable only if it is established by medical evidence, subject to the following conditions:
      (a) No injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of; or
      (b) If the injury combines with a preexisting disease or condition to cause or prolong disability, impairment, or need for treatment, the condition complained of is com-pensable if the employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment;
      (c) If the injury combines with a preexisting work related compensable injury, disability, or impairment, the subsequent injury is compensable if the subsequent employment or subsequent employment related activities contributed independently to the disability, impairment, or need for treatment.

      . Horn did sustain a compensable back injury at Dakota Pork in 1997. However, the medical evidence showed that Horn's current complaints and condition were unrelated to the 1997 injury.