author: GILBERTSON, Chief Justice. ZINTER, Justice

text:
    2003 SD 127
    Kelly O’BRIEN, Diann L. Delaney, Teresa A. Rostad, Sally Anne Rail, Jo-Ann S. Elseman, Nancy Stephenson, Ann E. Krutzfeldt-Murano, Nicole Ducheneaux, Sharon D. Eckholm, Angela Burton, Joan E. Hoffman, and Karen Mechaley, Plaintiffs and Appellants, v. WESTERN DAKOTA TECHNICAL INSTITUTE and Rapid City Area School District 51/4, Defendants and Appellees.
    No. 22714.
    Supreme Court of South Dakota.
    Argued Aug. 26, 2003.
    Decided Oct. 15, 2003.
    Rehearing Denied Nov. 19, 2003.

      Veronica L. Duffy, Patrick K. Duffy, Attorneys for plaintiffs and appellants.
    Karla L. Engle, Thomas H. Harmon of Tieszen Law Office, Pierre, South Dakota, Attorneys for defendants and appellees.
   GILBERTSON, Chief Justice.

[¶ 1.] Twelve female teachers (Teachers) at Western Dakota Technical Institute (WDTI) brought a claim against WDTI and the Rapid City Area School District (School District) under the Equal Pay Act (EPA) and the Equal Protection Clause of the Fourteenth Amendment. The Teachers brought the claims pursuant to an appeal per SDCL ch 13-46 and, in the alternative, as a direct action in circuit court. The Teachers allege that they had been discriminated against on the basis of their sex when they received lower wages than male employees. The School District moved for dismissal under SDCL 15-6-12(b)(5), which the circuit court granted. The Teachers appeal and we reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] WDTI is a technical college located in Pennington County, South Dakota. The School District is responsible for the final-decision making authority as to the compensation paid to WDTI employees. In the Spring of 2000, a female teacher at WDTI, Plaintiff Kelly O’Brien (O’Brien), met with WDTI Director Dr. Kenneth Gif-ford (Gifford) to discuss her concerns, as well as concerns that other female teachers had, about the compensation they were receiving as compared to male employees at the school. O’Brien informed Gifford that she wished to file a grievance. However, O’Brien alleges she was told by Dr. Jim Utesch, Administrative Services Coordinator at WDTI, that WDTI did not have a grievance procedure and that she should just follow the “chain of command.” Therefore, O’Brien sent a letter to Gifford which outlined her concerns.

[¶ 3.] Soon thereafter, WDTI conducted a wage study. The consultant hired by the school evaluated the compensation paid to 57 employees at WDTI. Other similar institutions, as well as job descriptions, experience, education and years in service of the various employees were compared. The final conclusions of the consultant were that 26 out of the 57 employees at WDTI were being underpaid, with women comprising 15 out of the 26 underpaid employees.

[¶ 4.] O’Brien then met with Dr. Peter Wharton, Superintendent of the School District, to address the results of the wage survey. O’Brien alleges that Wharton informed her that the Teachers’ collective bargaining unit at WDTI, the ‘WDTI Teacher’s Association” could negotiate for changes in compensation. Therefore, the Teacher’s Association made a proposal to WDTI, which was rejected. Instead, a three-percent across the board pay increase was imposed for all qualifying employees.

[¶ 5.] After O’Brien was allegedly informed that she had exhausted her administrative remedies, the Teachers filed a Complaint in circuit court. They asserted claims under the EPA, and the Equal Protection Clause of the Fourteenth Amendment. The claims were brought as a direct action in circuit court and, in the alternative, as an appeal pursuant to SDCL ch 13-46. The record indicates that the summons and complaint were personally served upon a member of the Rapid City School District on October 1, 2002, and on the Interim Director of Western Dakota Technical Institute on October 3, 2002.

[¶ 6.] The School District filed motions to dismiss for failure to state a claim, arguing that the Teachers were required to and did not exhaust their administrative remedies before filing under the EPA; the Teachers were required to personally serve their notice of appeal per SDCL ch 13-46 upon at least one member of the School Board prior to filing an appeal under SDCL ch 13-46; and the Teachers were required to and failed to exhaust administrative remedies prior to filing an appeal under SDCL ch 13-46. The trial court granted the School District’s Motions to Dismiss on these grounds. The Teachers appeal the trial court’s ruling. They raise three issues for our review:

1. Whether the Teachers were required to exhaust their administrative remedies before filing under the Equal Pay Act.
2. Whether the Teachers were required to personally serve at least one member of the School Board.
3. Whether the Teachers were required to exhaust their administrative remedies before filing an appeal under SDCL ch 13-46.

STANDARD OF REVIEW

[¶ 7.] Pursuant to SDCL 15-6-12(b)(5), the trial court dismissed the Teachers’ claims because it found that the Teachers failed to state a claim upon which relief can be granted. It is well settled that [a] motion to dismiss under Rule 12(b)(5) tests the law of a plaintiff’s claim, not the facts which support it. Barnaud v. Belle Fourche Irrigation Dist., 2000 SD 57, ¶ 18, 609 N.W.2d 779, 783 (quoting Thompson v. Summers, 1997 SD 103, 5, 567 N.W.2d 387, 390 (citing Stumes v. Bloomberg, 1996 SD 93, ¶ 6, 551 N.W.2d 590, 592; Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993))). Accordingly, this appeal focuses on the proper law to apply and therefore, our review is de novo. Barnaud, 2000 SD 57, ¶ 18, 609 N.W.2d at 784.

ANALYSIS AND DECISION

[¶ 8.] 1. Whether the Teachers were required to exhaust their administrative remedies before filing under the Equal Pay Act.

[¶ 9.] The trial court dismissed the Teachers’ Equal Pay claims, finding that they must exhaust their administrative remedies before filing an action in circuit court. The trial court found that the Teachers were required to file a charge of discrimination with the Division of Human Rights pursuant to the South Dakota Human Rights Act, SDCL ch 20-13. The Teachers assert that according to federal law, there is no exhaustion requirement before an Equal Pay claim may be filed in state court.

[¶ 10.] The EPA, which was enacted in 1963, prohibits discrimination on the basis of sex. Specifically, 29 USC § 206(d) provides:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

[¶ 11.] Whether a claimant must exhaust administrative remedies before filing a claim under the EPA is a question of first impression for this Court. Teachers rely on County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) for the proposition that although Title VII of the Civil Rights Act of 1964 requires administrative exhaustion, the Equal Pay Act does not. In Gunther, the plaintiffs, who were female guards in a county jail, filed suit under Title VII. Id. at 164, 101 S.Ct. at 2245. In helpful dictum in this decision, the Court discussed the differences between the Equal Pay Act and Title VII:

[T]he procedural characteristics of the Equal Pay Act also remain significant. For example, the statute of limitations for back pay relief is more generous under the Equal Pay Act than under Title VII, and the Equal Pay Act, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts. Given these advantages, many plaintiffs will prefer to sue under the Equal Pay Act rather than Title VII.

(Emphasis added). Id. at 175, n. 14, 101 S.Ct. at 2250 (citing B. Babcock, A. Freedman, E. Norton, & S. Ross, Sex Discrimination and the Law 507 (1975)).

[¶ 12.] For added support, Teachers point to EEOC v. Home of Economy, Inc., 712 F.2d 356 (8thCir.1983). In that case, the Eighth Circuit Court of Appeals held that Title VII’s requirement of administrative exhaustion does not apply to Equal Pay Act claims. Id. at 357. The court based their holding on five grounds:

1. The EPA does not contain express language that requires administrative exhaustion as a precondition for filing suit (citing 29 USC §§ 201-219);
2. Legislation such as Title VII and the Age Discrimination in Employment do contain express language that administrative remedies must be exhausted (citing 42 USC § 2000e-5(b) and 29 USC § 626(b));
8. The legislative history shows that Congress considered and consequently rejected a version of the EPA which would have contained such language;
4. The transfer of EPA enforcement functions from the Department of Labor to the Equal Employment Opportunity Commission (EEOC) did not add a conciliation requirement to the process of handling EPA cases;
5. The United States Supreme Court case of County of Washington, see supra, discussed the lack of conciliation requirement in EPA eases: the EPA, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts.

Home of Economy, 712 F.2d at 357-58.

[¶ 13.] The School District argues that SDCL 20-13-29 imposes an administrative exhaustion requirement in discrimination cases. This statute, enacted in 1972 as part of the South Dakota Human Rights Act, provides:

Any person claiming to be aggrieved by a discriminatory or unfair practice may file with the Division of Human Rights a verified, written charge which shall state the name and address of the person or agency alleged to have committed the discriminatory or unfair practice. The charge shall set forth the facts upon which it is based, and shall contain any other information required by the division. The Commission of Human Rights, a commissioner, a state’s attorney or the attorney general may file a charge.

[¶ 14.] In the past, we have interpreted the word “may” in this statute to mean that administrative exhaustion with the Division is required with all claims that fall within its jurisdiction. Montgomery v. Big Thunder Gold Mine, Inc., 531 N.W.2d 577, 579 (S.D.1995).

[¶ 15.] The South Dakota Legislature, however, did not enact the Human Rights Act, SDCL ch 20-13, until 1972. Thus, the Equal Pay Act had already been in effect as a federal law for nine years at that point. The School District cites to no Congressional amendments in the Equal Pay Act after 1972 which would somehow impose a requirement of state exhaustion where none existed before.

[¶ 16.] To the extent that SDCL 20-13-29 applies to claims under the EPA, it is in direct conflict with the above-cited federal authority. While the School District argues that this state statute is dispositive of the issue, the Supremacy Clause of the United State Constitution prohibits such a result. See U.S. Const Art VI, cl.2. In Wolff v. Secretary of the South Dakota Game, Fish and Parks Dept., 1996 SD 23, ¶ 23, 544 N.W.2d 531, 535, we recognized:

[A] state court may not decline to hear an otherwise properly presented federal claim because that claim would be barred under a state law requiring timely filing of notice. State courts simply are not free to vindicate the substantive interests underlying a state rule of decision at the expense of the federal right.

(quoting Felder v. Casey, 487 U.S. 131, 152, 108 S.Ct. 2302, 2314, 101 L.Ed.2d 123, 147 (1988)). Although that case dealt with plaintiffs federal 42 USC 1983 claim and his failure to comply with a South Dakota state notice of claim provision, the above-quoted language is applicable in the present case.

[¶ 17.] In SD Bd. of Regents v. Heege, 428 N.W.2d 535, 539 (SD 1988), we listed the five exceptions to the requirement of administrative exhaustion in this state. The exception which is applicable here is that “[ejxhaustion is not required where the agency does not have jurisdiction over the subject matter....” Herein, based on the above-cited federal authority, it is clear exhaustion is not required for a claim under the Equal Pay Act. We thereby hold that imposition of the administrative exhaustion requirement to EPA claims violates the Supremacy Clause.

[¶ 18.] It is important to note that if we were to require administrative exhaustion, it would circumvent the EPAs protections. The Act provides payment of unpaid wages but limits this award to either a two-year period (in cases of ordinary violations of the Act) or a three-year period (in cases of “willful” violations of the Act) immediately preceding the filing of suit in court. See 29 USC § 255(a); see also Equal Employment Oppurtunity Commission v. Hernando Bank, Inc., 724 F.2d 1188, 1194 (5thCir.1984). Therefore, if claimants were required to exhaust their administrative remedies before filing a claim in court, this could take years and their damages could cease to exist. See Id.

[¶ 19.] Unlike the EPA, Title VII allows for back pay for the two-year period immediately prior to the commencement of administrative proceedings. See 42 USC § 2000e-5(g). Therefore, the administrative exhaustion requirement under Title VII has no adverse effects on claimants. Further, unlike Title VII, the statute of limitations under the EPA is not tolled by the filing of an administrative claim.

[¶ 20.] 2. Whether the Teachers were required to personally serve at least one member of the School Board, and

[¶ 21.] 3. Whether the Teachers were required to exhaust their administrative remedies before filing an appeal under SDCL ch 13-46.

[¶22.] Since we hold under the Supremacy Clause that the teachers are authorized to maintain a direct action in circuit court for both their Equal Protection and Equal Pay claims, these issues are rendered moot. The only personal service required was that of the summons and complaint, which was properly done.

[¶ 23.] We reverse and remand for further proceedings consistent with this opinion.

[¶ 24.] SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

[¶ 25.] ZINTER, Justice, concurs in result.

ZINTER, Justice

(concurring in result).

[¶ 26.] I join all of the Court’s opinion except for that portion that, sua sponte, determines the merits of the exhaustion and Supremacy Clause issues on Teachers’ equal protection claim. See supra note 2 and ¶ 22. The issue is whether a requirement of state exhaustion violates the Supremacy Clause because exhaustion would “ ‘impose unnecessary burdens upon rights of recovery authorized by federal laws.’ ” Felder v. Casey, 487 U.S. 131, 150, 108 S.Ct. 2302, 2313, 101 L.Ed.2d 123, 146 (1988) (quoting Brown v. Western Ry. of Ala., 338 U.S. 294, 298-99, 70 S.Ct. 105, 108, 94 L.Ed. 100, 104 (1949); see also Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 336, 108 S.Ct. 1837, 1842, 100 L.Ed.2d 349, 358 (1988)). However, the question of an unnecessary burden on Teachers’ equal protection claim was not briefed or argued by the parties in this appeal. We should not, therefore, entertain that substantive issue.

[¶ 27.] I concur, however, that the trial court’s dismissal of the equal protection claim must be reversed and remanded because it was dismissed, sua sponte, absent a motion to dismiss. Because it appears that the equal protection claim may have simply been grouped with the other dismissed claims, and because we are reversing those other claims, I would reverse the trial court’s dismissal, and remand the equal protection claim for further proceedings.

      . The five exceptions are:
      (1) Exhaustion is not required where a person, through no fault of his own, does not discover the purported wrong until after the time for application of administrative relief. Lick v. Dahl, 285 N.W.2d 594 (S.D.1979).
      (2) Exhaustion is not required where the agency fails to act. Weltz v. Board of Education of Scotland, 329 N.W.2d 131 (S.D.1983) (footnote 1).
      (3) Exhaustion is not required where the agency does not have jurisdiction over the subject matter or parties. Johnson v. Kolman, 412 N.W.2d 109, 112 (S.D.1987).
      (4) Exhaustion is not required where the board having appropriate jurisdiction has improperly made a decision prior to a hearing or is so biased that a fair and impartial hearing cannot be had. Mordhorst v. Egert, 88 S.D. 527, 223 N.W.2d 501 (1974).
      (5)Exhaustion is not required in extraordinary circumstances where a party faces impending irreparable harm of a protected right and the agency cannot grant adequate or timely relief. Mordhorst, supra; Johnson, supra.

      . To avoid a second needless appeal, we also reverse on the Equal Protection claim for the same reasons discussed in this opinion.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    Brian WILIMEK, Appellant, v. William DANKER, John Danker, and David Danker, Individually and d/b/a Danker Farms; Bob Johnson d/b/a Johnstown Welding; Unknown X and Funks-Ciba Geigy, Inc., a New York Corporation f/k/a Funk Seed International, Appellees.
    No. 02-0271.
    Supreme Court of Iowa.
    Sept. 4, 2003.
    R. Eugene Knopf of Walker, Knopf & Billingsley, Newton for appellant.
    John B. Grier of Cartwright, Druker & Ryden, Marshalltown, and Timothy W. Hamann of Clark, Butler, Walsh & Ham-ann, Waterloo, for appellees William Danker, John Danker, David Danker and Bob Johnson.
    Richard J. Sapp, John B. Tuffnell, and John T. Clendenin of Nyemaster, Goode, Voigts, West, Hansell & O’Brien, P.C., Des Moines, for appellee Funks-Ciba Geigy, Inc.
   CARTER, Justice.

Plaintiff, Brian W. Wilimek, was injured while unloading a truck for defendants, William Danker, John Danker, David Danker, and Danker Farms. He brought a tort action against his employers and other defendants seeking to recover for his injuries. He simultaneously pursued a workers’ compensation claim against his employers. After the tort action was set for trial, plaintiff requested a continuance and a stay of the action until certain issues in the workers’ compensation proceeding were resolved. That stay was granted on May 7, 1993. Prior to the stay, the case had been removed from the automatic-dismissal sanctions of Iowa Rule of Civil Procedure 1.944 (formerly rule 215.1) in September of 1992, and this continued to be done by court order in each calendar year thereafter through calendar year 1999. No action was taken in calendar year 2000 to bring the case to trial or to remove it from the operation of the automatic-dismissal provisions contained in the last court order continuing the case through December 31, 2000.

On December 27, 2001, plaintiff filed a motion seeking removal of the case from the operation of rule 1.944. This resulted in a ruling that, because the case was not brought to trial during the calendar year 2000, it was automatically dismissed under the terms of the court order continuing it for trial on or before December 31, 2000. Plaintiff appealed this result, and his claims were rejected by the court of appeals. After reviewing the record and considering the arguments presented, we affirm the decision of the court of appeals and the judgment of the district court.

On May 7,1993, the plaintiff obtained an order staying further proceedings in this litigation until resolution of a proceeding pending before the Industrial Commissioner. At this time the tort action had already become subject to the try-or-dismiss provisions of rule 1.944. Application of that rule was triggered by a notice from the clerk on August 7, 1992. On September 24, 1992, the case was removed from the operation of that rule if tried during the following calendar year.

After the stay order was entered in May of 1993, motions to remove the case from the try-or-dismiss provisions of rule 1.944 were filed in September 1993, August 1994, September 1995, October 1996, December 1997, December 1998, and December 1999. All of these requests contained language indicating that “this case is subject to dismissal under rule 215.1 of the Rules of Civil Procedure.”

Each of these requests was granted by a court order continuing the case for trial during the next calendar year. In response to the application filed on December 29,1999, the court ordered:

The above-entitled case is removed from the operation of Iowa Rule of Civil Procedure 215.1 and continued into the calendar year 2000, to be tried on or before December 31, 2000, or said cause will stand dismissed.

(Emphasis added.)

The action was not tried on or before December 31, 2000, and no action was taken in the calendar year 2000 to extend the time for the try-or-dismiss sanctions provided in the last court order. On December 21, 2001, plaintiff filed a motion stating that the workers’ compensation case was concluded and requested that issues in the tort action not involved in the workers’ compensation claim be set for trial. In response to this request, an ex parte order was granted again purporting to remove the case from the try-or-dismiss sanctions of the prior order. That order was later set aside as improvidently granted on motion of the defendant Funks-Ciba Geigy, Inc. The district court ruled in response to the latter motion that the case had been automatically dismissed on January 1, 2001, as a result of the failure to bring the action to trial during the calendar year 2000.

In seeking reinstatement of his action, plaintiff makes two arguments. First, he urges that the stay order entered on May 7, 1993, prevented automatic dismissal of the case pursuant to rule 1.944. Second, he urges that the dismissal was improper because the clerk did not send out a try- or-dismiss order with respect to the case in August of 2000. We reject both of these contentions.

With regard to the legal effect of the stay order, we agree that, if the action had been stayed and nothing further had transpired, it would be incorrect to automatically dismiss the case for failure to try it within a prescribed time. In Allied Gas & Chemical Co. v. Federated Mutual Insurance Co., 365 N.W.2d 26, 30 (Iowa 1985), we held that, because the granting of an interlocutory appeal “shall stay further proceedings below,” the case was not subject to dismissal under then-rule 215.1. When a stay is granted by a higher court or when state court proceedings are stayed by a federal court, the duration of the stay is beyond the determination of the court whose actions have been stayed. On the other hand, when a district court orders a stay of its own proceedings it is free to operate within that stay order as circumstances dictate. Any action by the court that is inconsistent with the stay is an informal modification of the order creating the stay.

In the present case, the several orders following the stay that required plaintiff to try his case within a prescribed period of time subject to penalty of dismissal were clearly orders the court had authority to enter. They were all entered at plaintiffs specific request. They were specific orders governing the status of plaintiffs action, and to the extent they contemplated trial of the case within a prescribed period, the orders constituted a modification of the stay order.

With respect to plaintiffs contention that his case is not subject to dismissal because no try-or-dismiss order was sent by the clerk in the calendar year 2000, we have held that, if a continuance is granted on certain terms and those terms are not met, a case subject to rule 1.944 will be dismissed by operation of law whether or not a subsequent try-or-dismiss notice has been sent by the clerk. Allied Gas, 365 N.W.2d at 31; Rhiner v. Arends, 292 N.W.2d 399, 401 (Iowa 1980); Brown v. Iowa Dist. Ct., 272 N.W.2d 457, 458 (Iowa 1978). We have stated the reason for this automatic dismissal as follows:

[T]he effect of the continuance was merely to hold the dismissal in suspension on certain conditions. When those conditions are not met the dismissal is automatic.

Allied Gas, 365 N.W.2d at 31.

Plaintiff urges that automatic dismissal under these circumstances is a denial of due process of law as guaranteed by article I, section 9 of the Iowa Constitution. We perceive no violation of due process when the clearly stated provisions of an order issued at plaintiffs request are carried out.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Bruce Wayne DAVIS, Appellant.
    No. 01-1822.
    Supreme Court of Iowa.
    Oct. 8, 2003.
    As Amended on Denial of Rehearing Nov. 14, 2003.
    Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Drew Bockenstedt, Assistant County Attorney, for appellee.
   LARSON, Justice.

Bruce Wayne Davis was convicted of first-degree burglary under Iowa Code sections 713.1 (2001) (defining burglary in general) and 713.2 (defining first-degree burglary). He appealed, alleging errors of the trial court and several instances of ineffective assistance of counsel. We affirm.

I. Facts and Prior Proceedings.

This case began as a case of road rage on a Sioux City street between the defendant and a Quenten Junck. The confrontation ended when Davis left his vehicle, stuck his arm through the open window of Junck’s vehicle, and stabbed him. It is undisputed that Davis struck Junck several times on the neck and back, although Davis denied stabbing him. In fact, Davis did not even have his “pigsticker” with him that day, according to him. The “blood,” he claims, must have been red paint. Junck followed Davis’s vehicle, got his license number, and reported it to the police.

Davis was charged with numerous crimes, but through dismissal of one and the merger of two others, the only charge involved in this appeal is first-degree burglary. Iowa Code section 713.1 defines burglary:

Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person’s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.

(Emphasis added.) First-degree burglary is defined in a separate section:

713.3 Burglary in the first degree.
1. A person commits burglary in the first degree if, while perpetrating a burglary in or upon an occupied structure in which one or more persons are present, any of the following circumstances apply:
c. The person intentionally or recklessly inflicts bodily injury on any person.

Iowa Code § 713.3.

Iowa Code section 702.12, in turn, defines “occupied structure.”

An “occupied structure” is any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value. Such a structure is an “occupied structure” whether or not a person is actually present.

(Emphasis added.) Davis’s trial counsel did not challenge the State’s claim that the victim’s car was an “occupied structure” under the statute. His appellate counsel now claims this oversight constitutes ineffective assistance of counsel and that the unchallenged errors of the district court now entitle him to a new trial. Davis argues that his trial counsel should have moved for a summary judgment of acquittal and should have objected to the court’s instructions defining an occupied structure.

The crime of burglary requires an entry of an occupied structure. Here, the defendant did not actually get into the vehicle; he merely put his arm into it. However, on appeal he concedes, for purposes of applying the statute, that he “entered” the vehicle. The only fighting issue is whether it was an occupied structure.

Prior to the trial of this case, we decided the case of State v. Buss, 325 N.W.2d 384 (Iowa 1982). Buss involved the burglary of a pickup truck and, specifically, the issue of whether the legislature intended to include the cab portion of a pickup truck as an occupied structure. 325 N.W.2d at 385. In Buss we rejected the defendant’s argument that the vehicle must be used primarily for storage or safekeeping to be an occupied structure, reasoning that the language of the statute did not include such restrictions. Id. at 386. We concluded that the cab was an occupied structure for purposes of the statute. Id.

We reached the same decision in subsequent cases, including State v. Sylvester, 331 N.W.2d 130, 131-32 (Iowa 1983) (delivery truck as occupied structure), and State v. Williams, 409 N.W.2d 187, 188-89 (Iowa 1987) (topper-enclosed pickup as an occupied structure on the ground that “[t]he definition of an occupied structure still includes a land vehicle, ... and we find no reason to depart from our decisions in Buss and Sylvester*’).

This line of cases sets the parameters of the burglary statute as it pertained to occupied structures at the time Davis was tried. In fact, the Buss line of cases remained intact until our recent decision in State v. Keopasaeuth, 645 N.W.2d 637 (Iowa 2002). In Keopasaeuth, which was decided after Davis’s trial, this court affirmed by operation of law a burglary conviction involving a motor vehicle. The court was equally divided on the issue of whether a vehicle was an occupied structure. We said:

There is agreement among the members of the court that defendant in attempting to hit Morris did so with the intent to commit an assault. Three justices also conclude that in so doing defendant perpetrated an entry of an occupied structure. Three justices conclude that the evidence failed to establish the entry of an occupied structure. One justice takes no part in the decision. Consequently, defendant’s conviction of burglary in the second degree is affirmed by operation of law by an equally divided court.

Keopasaeuth, 645 N.W.2d at 641.

We said in an analogous case that [trial counsel’s] understanding was consistent with the existing state of our case law. [A subsequent case] was not decided until three years later. Counsel need not be a crystal gazer; it is not necessary to know what the law will become in the future to provide assistance of counsel.

Snethen v. State, 308 N.W.2d 11, 16 (Iowa 1981) (citing Boyer v. Patton, 579 F.2d 284, 288 (3d Cir.1978)).

In this case, Davis’s trial counsel cannot be faulted for failing to urge a view that had been universally rejected for almost twenty years. A federal court has observed:

Although we believe that a conscientious attorney would have been aware of the gestating law in this area, we agree that [one authority’s] prescription of “knowledge which normally prevails at the time and place” does not necessarily place upon an attorney practicing in Pennsylvania in 1973 a strict duty to know what that law would become in its fruition.

Boyer, 579 F.2d at 288.

While it might be argued that, after our split decision in Keopasaeuth, our interpretation of occupied structure has been in a stage of gestation, that was clearly not the case prior to Keopasaeuth when Davis was tried. In fact, prior to Keopasaeuth, our interpretation of occupied structure was clearly and uniformly contrary to the position Davis now urges his attorney should have advocated. We find no breach of duty on the part of Davis’s trial attorney and therefore reject his claim of ineffective assistance of counsel as to that issue.

Davis has also raised other instances of alleged ineffective assistance of counsel, including (1) failing to cross-examine the emergency room doctor, (2) failing to question witnesses regarding blood evidence, (3) failing to impeach certain witnesses regarding their prior statements, and (4) failing to introduce videotapes of police interviews of Davis, Elizabeth Sorenson, Quinten Junck, and Beau Wilshire. The record is inadequate to resolve these issues, and we therefore preserve them for possible postconviction proceedings. All other claims of ineffective assistance of counsel are rejected.

AFFIRMED.


author: MAHAN, P.J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Eddie James WALKER, Jr., Defendant-Appellant.
    No. 02-0817.
    Court of Appeals of Iowa.
    Sept. 24, 2003.

      ' Clemens Erdahl of Nidey, Peterson, Er-dahl & Tindal, P.L.C., Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, J. Patrick White, County Attorney, and Victoria Dominguez, Assistant County Attorney, for appellee.
    Heard by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
   MAHAN, P.J.

Eddie Walker Jr. appeals his conviction following a jury verdict for robbery in the first degree. Walker argues there is insufficient evidence to support the jury verdict and his trial counsel was ineffective. We affirm.

Background Facts and Proceedings. On October 30, 2001, Brandon Ousley was working the night shift at the Suburban Amoco convenience store in Iowa City, Iowa. Ousley’s friend, Clint Reginnetter, was at the convenience store visiting with him. At approximately 1:20 a.m., Ousley and Reginnetter heard a loud thud. Two men entered the convenience store. The first man, referred to as Suspect # 1 at trial, was dressed in black and carried a knife. The second man, later identified as Walker, was dressed in blue. Suspect # 1 jumped over the store counter and ordered Ousley to open the safe. Walker pulled Reginnetter away from the counter by the back of his shirt and told him to lie down on the ground. Walker stood over Regin-netter while Suspect # 1 took $1058 in cash. Once Suspect # 1 had taken the money, the two men left the store and drove away.

Officer Stephen Kivi was in the area and heard the dispatch about the robbery. He saw a vehicle matching the description of the suspects’ vehicle and attempted to stop it. A high speed chase ensued. Eventually, the vehicle came to a stop when it crashed into a utility pole. Suspect # 1 jumped out of the car and fled. Walker surrendered to the police and made no attempt to escape.

Walker was charged by trial information with robbery in the first degree, aiding and abetting, in violation of Iowa Code sections 711.1, 711.2, 702.11, 703.1, and 902.12(5) (2001) (Count I); eluding or attempting to elude a pursuing law enforcement vehicle in violation of section 321.279(3)(a) (Count II); driving while barred in violation of section 321.561 (Count III); and driving while revoked in violation of section 321J.21(1) (Count IV).

At trial Walker’s defense was that he had been compelled to commit the robbery by Suspect # 1. He testified Suspect # 1 was under the mistaken impression that he was in possession of a large amount of drugs. Suspect # 1 was affiliated with a gang in Davenport, Iowa, and told Walker he was responsible for determining what happened to the drugs. Walker testified Suspect # 1 told him on October 20, 2001, this was a life or death situation. Suspect # 1 informed Walker he and his associates knew where his family lived, and knew that his son was a star football player at West High School. Walker stated he understood this to be a direct threat against his family if he did not account for the drugs or the money.

On October 30, 2001, Walker stated he was at Gabe’s bar in Iowa City. Suspect # 1 walked in and approached him. He told Walker they were going to drive to Davenport to speak with other gang members about the missing drugs. On their way to Davenport, Suspect # 1 suddenly turned the vehicle around and headed back toward Iowa City. Then he told Walker to drive and directed him to the Suburban Amoco convenience store. Next Suspect # 1 instructed Walker to accompany him into the store and leave the car running. As they were approaching the door to the store, Suspect # 1 told Walker to “keep the second guy off my back.” Walker testified it was at this time he realized Suspect # 1 intended to rob the store. Later on cross-examination, Walker admitted that no threats were made on that night and any threats Suspect # 1 had made regarding his family had occurred ten days earlier.

On January 30, 2002, a jury returned guilty verdicts on all four counts. Walker was sentenced to concurrent twenty-five, five, two and one-year terms of imprisonment. Walker appeals his robbery conviction.

Sufficiency of the Evidence. We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). We will uphold a verdict if substantial evidence supports it. Id. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id.

Walker alleges he was compelled by Suspect # 1 to commit the robbery offense. He relies heavily upon his own testimony, the testimony of Officer Kivi, and the testimony of Clint Reginnetter as follows:

Q. What impression did you get from the individual that was straddling you? A. It wasn’t like — I think this might have been a first time, he wasn’t real experienced. He kind of like he almost didn’t really want to be there, his voice was kind of quavering and he was really nervous, kept like — he was real jumpy.
Q. What was your gut feeling? What impression did you get from this individual? A. He — I thought that he like was in a bad' — -he was like in between a rock and a hard place, like if he didn’t do this, something was going to happen. Maybe he owed money to someone or he owed a favor or something and this was pretty much his only way out.

Walker, therefore, alleges the evidence presented by the State was insufficient to overcome his defense of compulsion because he clearly generated a fact question on said defense. The defendant has the burden of generating a fact question on the defense of compulsion. State v. Reese, 272 N.W.2d 863, 867 (Iowa 1978); State v. Hibdon, 505 N.W.2d 502, 505 (Iowa Ct. App.1993). Thereafter, Iowa law is clear the State has the burden of disproving the defense of compulsion beyond a reasonable doubt.

The State argues Walker did not generate a fact question. In addition, the State alleges it met its burden and relies on the following language of our supreme court:

This requirement that the threat must be immediate and not future has been invoked in related defenses. In a case of compulsion, or duress, State v. Clay, 220 Iowa 1191, 1202-03, 264 N.W. 77, 83 (1935), we approved the following language, which we gleaned from several sources:
Fears of future injuries do not excuse an offense.... The necessity which will excuse a man for breach of law must be instant and imminent....
... The compulsion which will excuse a criminal act, however, must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough. Such compulsion must have arisen without the negligence or fault of the person who insists upon it as a defense.
See also [United States v] Campbell, 609 F.2d 922, 924 [ (8th Cir.1979) ] (“a defense of duress or coercion requires that there be an immediate threat of death or serious bodily harm ... and it must be in a situation in which there was no opportunity to avoid the danger”); [R.JPerkins, [Criminal Law] supra, at 954 [ (2d ed.1969) ] (“It is not sufficient (for the defense of compulsion) ... that a threat is now made relating only to the future.... ”). Cf. 704.10, The Code (compulsion specifically requires a reasonable belief that the menace of serious injury be imminent).

State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981) (quoting State v. Clay, 220 Iowa 1191, 1202-03, 264 N.W. 77, 83 (1935)).

Walker, on the other hand, argues these cases predate the Code revision and are outdated. Iowa Code section 704.10, which was adopted in 1979, reads as follows:

No act, other than an act by which one intentionally or recklessly causes physical injury to another, is a public offense if the person so acting is compelled to do so by another’s threat or menace of serious injury provided that the person reasonably believes that such injury is imminent and can be averted only by the person doing such act.

Walker contends this section uses the word “imminent” and has no requirement of “immediacy” as argued by the State.

The Iowa courts have been silent on the defense of compulsion since the criminal code revision in 1979. However, federal precedent is instructive. In United States v. Jankowski, 194 F.3d 878, 882-83 (8th Cir.1999), the Eighth Circuit Court of Appeals observed that in order to generate a fact question and establish a prima facie case, the defense of compulsion requires proof by the defendant of the following four elements:

1) defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury;
2) that defendant had not recklessly or negligently placed himself in a situation in which it was probable ■ that he would be forced to commit a criminal act;
3) that the defendant had no reasonable, legal alternative to violating the law; and
4) that a direct causal relationship may be reasonably anticipated between the commission of the criminal act and the avoidance of the threatened harm.

We also recognize other state courts have had an opportunity to address the issue of compulsion. We will now analyze Walker’s allegation of compulsion in light of Iowa Code section 704.10, the federal precedent as set forth in Jankowski and Lomax, and the judicial pronouncements of other state courts.

A. Element No. 1. Walker alleges that the threat against him was imminent although it may not have been immediate. It is not necessary for us to specifically define the two terms under the facts of the instant case. The alleged threats occurred on October 20, 2001, whereas the robbery occurred on October 30, 2001. The threats were general in nature and not specific. We therefore hold Walker was not under a reasonable belief that the threatened harm was imminent where a period of ten days elapsed between the impending general threat and the commission of the criminal act. See State v. Milum, 213 Kan. 581, 516 P.2d 984, 985 (1973) (noting a threat must be imminent and not directed at some indefinite time in the future); see also Fry v. State, 440 N.E.2d 1133, 1135 (Ind.Ct.App.1982) (alleging threats of physical harm not imminent when made two hours before the burglary); People v. Brown, 68 A.D.2d 503, 417 N.Y.S.2d 966, 974 (1979) (stating defense not available where threat is not capable of immediate exercise or realization); Anguish v. State, 991 S.W.2d 888, 885-87 (Tex.App.1999) (holding threat against defendant and family while gun held to defendant’s head does not qualify as imminent threat when made four days before robbery); State v. Harding, 635 P.2d 33, 35 (Utah 1981) (stating “a threat directed to some indefinite time in the future is not an imminent threat” for purposes of the defense of compulsion). Although Walker established a fact question, we conclude the State proved beyond a reasonable doubt that element one did not exist. Although our resolution of the issue under this element is dispositive, we conclude it would be instructive to address the other elements as well.

B. Element No. 2. This element requires that a criminal defendant not recklessly or negligently place himself in a situation where it is probable that he would be forced to commit a criminal act. Walker fails to meet the requirement of this element for two reasons. First, he was involved in the drug industry, which is fraught with danger. Second, and more importantly, Walker placed himself in danger by going to Gabe’s on October 30. He recklessly, or at the very least negligently, placed himself in a dangerous situation following the general threat made to him ten days before. If Walker had not gone to the bar, he would never have been approached by Suspect # 1. See People v. Roberson, 335 Ill.App.3d 798, 269 Ill.Dec. 420, 780 N.E.2d 1144, 1147 (2002) (finding defendant under necessity defense must be without blame in occasioning or developing the situation); see also People v. Hum-phries, 257 Ill.App.3d 1034, 196 Ill.Dec. 407, 630 N.E.2d 104, 111 (1994) (stating in compulsion case, debt to cocaine dealer arose from defendant’s own negligence or fault); People v. Rodriquez, 30 Ill.App.3d 118, 332 N.E.2d 194, 196 (1975) (noting defendant who asserts defense of compulsion must be without fault or negligence); Shaw v. State, 874 S.W.2d 115, 119 (Tex.App.1994) (holding compulsion defense not available to defendant who intentionally, knowingly, or recklessly placed himself in compulsion situation). Assuming Walker established a fact question on this issue, we nevertheless conclude the State proved beyond a reasonable doubt that element two did not exist.

C. Element No. 3. Walker, in order to establish a defense of compulsion, must have no reasonable legal alternative to violating the law. We conclude Walker did have a reasonable legal alternative to committing the robbery. He could have, quite simply, contacted law enforcement authorities in the ten-day interim period. The Eighth Circuit stated as follows:

Michal could have gone to the police .... Michal’s only evidence of having no reasonable legal alternative was that he had a subjective belief, based upon his father’s experiences in Poland and Michal’s criminal justice class in a community college, that going to the police would be futile. This subjective belief is insufficient as a matter of law to meet the objective standard that there must be no reasonable legal alternative to violating the law.

Jankowski, 194 F.3d at 883 (emphasis added); see Anguish, 991 S.W.2d at 887 (stating subjective belief by defendant that no law enforcement agency could protect him is irrelevant); see also State v. Griffin, 754 P.2d 965, 968 (Utah Ct.App.1988) (citing State v. Ashe, 745 P.2d 1255 (Utah 1987)) (finding defendant failed to demonstrate there were no reasonable legal alternatives to committing the crime); State v. Amundson, 69 Wis.2d 554, 230 N.W.2d 775, 783 (1975) (using objective-reasonableness test to determine if legal alternative available). Assuming Walker established a fact question on this issue, we nevertheless conclude the State proved beyond a reasonable doubt that element three did not exist.

D. Element No. 4. This element requires that a direct causal relationship may reasonably be anticipated between the commission of the criminal act and the avoidance of the threatened harm. We conclude Walker has failed to establish a fact issue concerning this element. Walker admitted no threats were made to him on October 30, 2001. Indeed, there is no evidence of any discussion concerning prior threats on that date. Assuming Walker established a fact question on this issue, we nevertheless conclude the State proved beyond a reasonable doubt that element four did not exist.

E. Summary. We hereby adopt the Jankowski elements and apply them to the defense of compulsion as set forth in Iowa Code section 704.10. We hold that a defendant has the burden of generating a fact question on each of the four elements set out in Jankowski. Once a prima facie case is established, the burden rests on the State to disprove the defense of compulsion beyond a reasonable doubt. Having carefully reviewed this case and applying the elements to it, we conclude Walker’s defense of compulsion must fail. The evidence was sufficient to uphold Walker’s conviction on the robbery charge.

Ineffective Assistance of Counsel. Walker claims his trial counsel was ineffective in failing to object to the admission of the knife into evidence and the State’s misstatements of the law. We review such claims de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). “Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned.” State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We conclude the record before us does not provide a sufficient basis for determining counsel’s effectiveness. We therefore preserve Walker’s ineffective assistance of counsel claims for possible postconviction relief proceedings.

Affirmed.

      . The Walton case actually deals with the defense of necessity. Walton, 311 N.W.2d at 115.

      . There has, however, been dicta concerning the related defense of necessity. Following the Walton rationale, subsequent cases indicate a necessity defense is only applied in emergency situations where the threatened harm is immediate and the threatened disaster imminent. State v. Mattly, 513 N.W.2d 739, 741 (Iowa 1994); Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 640 (Iowa 1991); State v. Harrison, 473 N.W.2d 242, 243-44 (Iowa Ct.App.1991).

      . The federal defense of duress is the same as the Iowa defense of compulsion. Donald M. Zupanec, Annotation, Coercion, Compulsion or Duress as Defense to Charge of Robbery, Larceny or Related Crime, 1 A.L.R.4th 481, § 2(a) (1980).

      . There was no testimony at trial suggesting the knife found in the vehicle was the knife used in the robbery. The State alleges even if this was not established at trial that the knife had “marginal relevance.”


author: /s/ Kathleen A. Blatz Chief Justice

text:
    In re Proposed Petition to Recall Secretary of State Mary KIFFMEYER.
    No. A03-1726.
    Supreme Court of Minnesota.
    Nov. 14, 2003.
   Minnesota Statutes § 211C.03 (2002) requires that each page of the petition must contain, inter alia:

the specific grounds upon which the state officer is sought to be recalled and a concise, accurate, and complete synopsis of the specific facts that are alleged to warrant recall on those grounds * * sR

(Emphasis added.) In addition, the review of a proposed recall petition by the chief justice is to determine whether the petition alleges “specific facts that, if proven, would constitute grounds for recall of the officer * * jf ¾ ¿oes n0^ justice shun immediately issue an order dismissing the petition and indicating the reason for dismissal.” Minn.Stat. § 211C.05, subd. 1 (2002) (emphasis added). The legislature’s repeated reference to “specific facts” evinces a clear intent that a proposed petition present more than a generalized statement of grounds for recall. The petition here states only the following as the basis for the recall petition:

# 1). Legal defects in her January 6, 2003 Oath of Office; and #2). Incompetence and Nonfeasance in the performance of her official duties mandated by Minnesota Statutes, Chapters 5; 13; and 358 in regards to the Oaths of Office for all members of both branches of the Minnesota Legislature; and specifically: Violating Minnesota Statutes, Sections 5.01; 5.05; 5.07; 13.03; 13.09; 204C.40; 358.05; 358.11(1); and 609.43(1).

The petition on its face fails to satisfy the legal standards established by the legislature because it alleges no specific facts concerning the grounds for recall. Accordingly, it is dismissed.

Petitioners also submitted a request that the undersigned recuse from participation in this matter on the basis of administration of the oath of office to the Secretary of State. That request is denied both because the undersigned did not administer the oath of office to the Secretary of State and because the petition is so devoid of facts that it is impossible to discern any valid basis for recusal.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for recall of Secretary of State Mary Kiffmeyer be, and the same is, dismissed for failure to allege specific facts that, if proven, would constitute grounds for recall.

/s/ Kathleen A. Blatz Chief Justice


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Ernest E. CUTTING, a Minnesota Attorney, Registration No. 20576.
    No. A03-926.
    Supreme Court of Minnesota.
    Nov. 20, 2003.
    Kenneth L. Jorgensen, Director, Martin A. Cole, First Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Appellant.
    Ernest E. Cutting, Minneapolis, MN, Pro Se.
   OPINION

PER CURIAM.

Respondent, Ernest E. Cutting, has been licensed to practice law in Minnesota since October 16, 1968. In a Petition for Disciplinary Action (Petition) filed on July 16, 2003, the Director of the Office of Lawyers Professional Responsibility (Director) alleged that Cutting engaged in a pattern of misconduct involving 14 separate clients by “failing to timely file probate annual reports, affidavits of mailing, and receipts with the probate court and failing to promptly comply with probate orders” in violation of Rules 1.3, 3.4(c), and 8.4(d) of the Minnesota Rules of Professional Conduct (MRPC). In addition, the Petition alleged that Cutting failed to cooperate with the Director’s investigation into the misconduct in violation of Minn. R. Prof. Conduct 8.1(a)(3) and Rule 25 of the Rules on Lawyers Professional Responsibility (RLPR). Subsequent to the Petition, Cutting failed to serve or file an answer to the Petition and, by order filed August 7, 2003, this court, pursuant to Rule 13(b), RLPR, deemed the allegations contained in the Petition admitted. The Director recommends that Cutting be indefinitely suspended from the practice of law.

In 1987, Cutting was suspended from the practice of law for 30 days and placed on two years’ supervised probation for mismanagement of a guardianship estate and failure to cooperate with the disciplinary proceedings. In re Cutting, 413 N.W.2d 505, 506 (Minn.1987).

Because the allegations contained in the Petition have been deemed admitted, the only issue this court must resolve is the appropriate discipline to be imposed on Cutting. The purpose of lawyer discipline is to protect the courts, the public, and the legal profession, and to guard the proper administration of justice. In re Bishop, 582 N.W.2d 261, 263 (Minn. 1998). This court considers four factors in determining the appropriate discipline: “(1) the nature of the misconduct, (2) the cumulative weight of the rule violations, (3) the harm to the public, and (4) the harm to the legal profession.” In re Muenchrath, 588 N.W.2d 497, 500 (Minn.1999). While this court may turn to cases involving similar misconduct in determining the appropriate discipline, each case is decided on its unique facts and circumstances. In re Brehmer, 642 N.W.2d 431, 433 (Minn.2002).

Neglect in handling probate matters is considered serious professional misconduct. In re Braseth, 352 N.W.2d 22, 23 (Minn.1984). Typically, this court imposes an “indefinite suspension in cases involving a continued pattern of client neglect when no evidence of mitigating circumstances is present.” In re Geiger, 621 N.W.2d 16, 23 (Minn.2001). In Braseth, a lawyer who seriously neglected five estate matters was indefinitely suspended for a minimum of two years. 352 N.W.2d at 23-24. In In re Olson, a lawyer who neglected 15 estates and submitted forged receipts to the court was suspended for six months with the understanding that he would retire thereafter. 442 N.W.2d 782, 783 (Minn.1989). Here, unlike Braseth, Cutting’s neglect did not harm his clients financially. Yet, in the matters where Cutting served as the lawyer for a guardian or conservator, his clients were harmed by his neglect in that citations to appear were sent to them and they faced the possibility of further punishment if Cutting continued to neglect his duties. Further, as the Comment to Minn. R. Prof. Conduct 1.3 points out, procrastination may be the most widely resented fault in the profession. Cutting’s neglect harms the profession as a whole. Cutting’s neglect also led to the waste of judicial resources as the probate court was repeatedly forced to “baby-sit” Cutting to get him to perform his duties.

This court has disciplined lawyers who failed to comply with court orders and failed to appear at hearings. In re Hau-gen, 373 N.W.2d 600, 600-01 (Minn.1985) (ordering a public reprimand and two years’ supervised probation for misconduct that included failing to comply with a discovery order and failing to appear for a hearing); In re Truelson, 427 N.W.2d 674, 674 (Minn.1988) (ordering an indefinite suspension for misconduct that included failing to comply with discovery requests and court orders and failing to cooperate with the disciplinary investigation).

Cutting’s misconduct is exacerbated by the fact that he has not cooperated with the Director’s investigation into his misconduct. Indeed, the failure to cooperate with the disciplinary process constitutes misconduct warranting discipline independent from the conduct underlying the Petition. In re Engel, 538 N.W.2d 906, 907 (Minn.1995); see also In re Thedens, 557 N.W.2d 344, 349 (Minn.1997) (stating that failing to attend a panel meeting was at least as serious a violation as failing to attend a prehearing meeting and merited a suspension). In Engel, this court noted the importance of cooperating and stated that the lawyer’s failure to cooperate “greatly hampered the investigatory efforts and demonstrates respondent’s failure to acknowledge either the seriousness of the proceeding or her disregard for her basic obligations as an attorney or a present inability to deal with any consequences for her actions.” 538 N.W.2d at 907. The same can be said for Cutting’s failure to cooperate. In Engel, this court held that the failure to cooperate warranted an indefinite suspension from the practice of law. Id.

This court also notes that previous misconduct of the same type is considered an aggravating factor when determining the appropriate discipline. In re Bernard, 534 N.W.2d 272, 276-77 (Minn.1995); In re Getty, 452 N.W.2d 694, 698 (Minn.1990). This court has imposed more severe sanctions when the current misconduct is similar to misconduct for which the attorney has already been disciplined. In re The-dens, 602 N.W.2d 863, 867 (Minn.1999). In fact, this court has held that suspension followed by probation or disbarment is a proper sanction when the misconduct in the second case is a virtual repeat of the earlier misconduct. Getty, 452 N.W.2d at 698. In this case, Cutting was previously disciplined for mismanaging and mishandling an estate and failing to cooperate with the disciplinary process. Cutting, 413 N.W.2d at 505-06. The nature of his current misconduct is similar to that earlier misconduct.

Based on the record before us, we conclude that Cutting has engaged in serious misconduct warranting discipline. Therefore, we order that effective 20 days from the date of this order Edward E. Cutting be indefinitely suspended from the practice of law, pay $900 in costs and disbursements pursuant to Rule 24, RLPR, and comply fully with Rule 26, RLPR. If Cutting seeks reinstatement, he shall also comply fully with Rule 18, RLPR, and, if reinstated, he shall be placed on supervised probation for a period of two years.

APPENDIX

The allegations as set out in the Petition are as follows:

FIRST COUNT

1. On August 1, 2002, Judge Michael T. DeCourcy filed a complaint against respondent.

2. Based upon the subsequent investigation, the Director has determined the following: Respondent serves as Guardian, Conservator or Personal Representative in numerous Ramsey County Probate court matters. Respondent also serves as attorney for the Guardian, Conservator or Personal Representative in other matters.

3. Pursuant to Minnesota Statute[s] § 525.58, respondent in his fiduciary capacities is obligated to annually file Annual Accounts, a Notice of Right to Petition (Notice) and other reports regarding the ward, conservatee or estate.

4. Respondent neglected numerous probate court matters and failed to comply with statutory obligations, as follows:

A Respondent Serves As Guardian or Conservator

Elaine K. Cooper

5. On July 25, 1990, the probate court issued an order appointing respondent general conservator of the person and estate of Elaine K. Cooper. Respondent failed to timely file the 7th Annual Account on or before August 24, 1998. The probate court notified respondent on September 14 and again on October 19, 1998, that he had failed to timely file the 7th Annual Account, Annual Notice of Rights and Personal Well Being Report.

6. On December 17, 1998, the court issued a citation to respondent to personally appear on January 12, 1999, to show cause why the documents had yet to be filed. Respondent filed the documents on January 12,1999.

7. Respondent failed to timely file the 8th Annual Account on or before August 24, 1999. On September 13 and again on October 26, 1999, the probate court notified respondent that he had failed to timely file the 8th Annual Account, Annual Notice of Rights and Personal Well Being Report.

8. On December 13, 1999, the court issued a citation to respondent to personally appear on January 26, 2000, to show cause why the annual documents had yet to be filed. Respondent appeared at the January 26, 2000, hearing and filed the documents.

9. Respondent failed to timely file the 9th Annual Account on or before August 24, 2000. On September 11 and October 16 and/or 17, 2000, the probate court notified respondent that he had failed to timely file the 9th Annual Account, Annual Notice of Rights and Personal Well Being Report.

10. On November 30, 2000, the court issued a citation to respondent to personally appear on January 24, 2001, to show cause why the annual documents had yet to be filed. Respondent appeared at the January 24, 2001, hearing and filed the documents.

11. On March 5, 2001, the court held a hearing for the examination of the 8th and 9th Annual Accounts. The accounts were allowed subject to the filing of the Affidavit of Mailing of the Notice Setting the Time and Place for the Examination of the Account.

12. On March 12 and April 17, 2001, the probate court notified respondent that he had failed to timely file the Final Account as Ms. Cooper died on December 23, 2000. Respondent failed to file the documents. The court issued a citation on May 25, 2001, to respondent to personally appear on June 27, 2001, and show cause why the Final Account was delinquent. Respondent filed the Final Account on May 31, 2001.

13. On May 31, 2001, the court issued a Notice and Order Fixing the Time and Place of the Hearing as July 9, 2001. On July 9, 2001, the court held a hearing to examine the Final Account. The court granted the final account and discharged respondent as the conservator subject to the filing of receipts for assets. The court directed respondent to file the receipts.

14. On August 13 and October 4, 2001, the probate court sent written requests to respondent to file the receipts for assets. Respondent failed to file the requested receipts. On January 18, 2002, the probate court issued a citation to respondent to personally appear on March 27, 2002, to show cause why the receipts for the assets had yet to be filed.

15. Respondent appeared at the March 27, 2002, hearing before the probate court but failed to file the asset receipts. The court continued the citation hearing to April 30, 2002. The court also set a hearing to surcharge respondent’s bond.

16. The April 30, 2002, citation hearing was continued to May 28, 2002, to allow respondent to provide asset receipts or present testimony as to what happened to the assets. On April 30, 2002, the probate court sent a notice of the May 28, 2002, hearing to respondent.

17. Respondent failed to appear at the May 28, 2002, hearing. The court requested a Notice of a Writ of Attachment for respondent and set bail at $100. On June 6, 2002, the Notice of Writ of Attachment was sent to respondent.

18. On June 12, 2002, respondent telephoned the probate court to reschedule the hearing to June 17, 2002. Respondent filed the receipt for the assets and a Petition for Discharge of Conservator at the time of the June 17, 2002, hearing. The court cited respondent for failure to timely file the receipts for the assets. It was determined by the court pursuant to the heirs’ receipts for assets that respondent never held any assets of the estate.

19. Respondent was discharged as conservator on November 8, 2002.

Margaret A. Hockert

20. On August 9, 1983, the probate court appointed respondent general conservator of the person and estate of Margaret A. Hockert. Ms. Hockert died on May 23, 2000. Respondent failed to timely file the 17th and Final Accounts on August 9, 2000. On September 18, October 23 and 31, 2000, the probate court issued notices to respondent to file the 17th Annual Account and accompanying documentation.

21. On December 13, 2000, the probate court issued respondent a citation to personally appear on January 24, 2001, to show cause why the documents had yet to be filed. Respondent appeared at the January 24, 2001, hearing and was granted an extension to file the annual reports in one week. Respondent failed to file the reports.

22. On February 15, 2001, the probate court manager wrote to respondent and requested the reports be filed immediately. Respondent was also placed on notice that his pattern of filing late reports was sufficient grounds for filing an ethics complaint. Respondent failed to file the annual reports.

23. On March 21, 2001, the probate court issued respondent a citation to personally appear on April 9, 2001, and show cause why the documents had yet to be filed and why the court should not remove respondent as conservator and find respondent in contempt of court. The citation, which was sent to respondent by certified mail, return receipt requested, was unclaimed by respondent and returned to the probate court.

24. Following the April 9, 2001, hearing respondent was directed to file the annual reports within two weeks. Respondent failed to file the annual reports. On April 13, 2001, the court notified respondent that he had yet to file the annual reports as directed by the court. Respondent was directed to file the documents immediately. Respondent filed the Final Account on May 7, 2001.

25. Pursuant to order filed June 6, 2001, the court allowed the Final Account. Respondent’s petition for discharge was not granted but was subject to filing the receipts for assets.

26. On July 10, 2001, the probate court requested respondent to file the receipts for assets for the balance of cash on the Final Account. Respondent was requested to file the receipts on or before August 1, 2001. Respondent failed to file the receipts. On August 13, 2001, the court made a second request for the cash receipts to be filed with the court by September 4, 2001. Respondent again failed to comply with the court’s requests.

27. On October 8, 2001, the probate court issued respondent a citation to personally appear on October 24, 2001, to show cause why the receipts for assets had yet to be filed. At the October 24, 2001, hearing respondent failed to file the requested receipts as provide[d] by the court. The court granted a 30-day extension to file the receipts as the life insurance policy had yet to be collected.

28. On January 16 and February 26, 2002, the probate court sent notices to respondent to file the receipts for assets. Respondent failed to comply with the court’s requests. On April 8, 2002, the probate court issued respondent a citation to personally appear on April 30, 2002, to show cause why the receipts for assets had not been filed. On April 30, 2002, the citation hearing was continued to May 28, 2002, to allow respondent to file the receipts for assets and present additional testimony.

29. The probate court issued a writ of attachment after respondent failed to appear at the May 28, 2002, citation hearing and continued the matter to June 17, 2002. On June 11, 2002, respondent filed the receipts for assets and a Petition for Discharge of Conservator.

30. At the June 17, 2002, hearing respondent was cited for failure to file the receipts for assets. The probate court also granted respondent’s Petition for Discharge.

Scott T. Dewald

31. On January 4, 1990, respondent was appointed general guardian of the person and estate of Scott T. Dewald.

32. Respondent failed to timely file the 12th Annual Account on February 3, [2002]. On February 25 and April 2, 2002, the profiate court sent notices requesting respondent file the 12th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to comply with the court’s requests.

33. On May 8, 2002, the court issued a citation to respondent for failure to file the 12th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent was cited and required to personally appear on June 19, 2002, before the probate court to show cause why the documents had not been filed.

34. The court struck the hearing upon receipt as the 12th Annual Account and citation had crossed in the mail.

Betty L. Young

35. On October 25, 1983, respondent was appointed general conservator of the person and estate of Betty L. Young. Respondent failed to timely file the 12th Annual Account on or before November 24, 1995. On November 8 and December 5, 1995, the probate court sent notices to respondent requesting he file the delinquent 12th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply.

36. On February 12, 1996, the probate court issued respondent a citation to personally appear on March 12, 1996, to show cause why the 12th Annual Account and accompanying documents had not been filed. Respondent filed the delinquent annual account on March 7, 1996. Pursuant to court order dated April 16, 1996, the 12th Annual Account was allowed.

37. Respondent failed to timely file the 14th Annual Account on or before November 24, 1997. On December 8, 1997, and January 12, 1998, the probate court sent notices to respondent requesting he file the delinquent 14th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply-

38. On February 25, 1998, the probate court issued a citation to respondent to personally appear on March 24, 1998, to show cause why the 14th Annual Account and accompanying documents had not been filed. The March 24, 1998, citation hearing was continued to April 28, 1998. Respondent filed the delinquent annual account on March 24, 1998. Pursuant to court order dated April 14, 1998, the 14th Annual Account was allowed.

39. Respondent failed to timely file the 16th Annual Account on or before November 24, 1999. On December 6, 1999, and January 11, 2000, the probate court sent notices to respondent requesting he file the delinquent 16th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply-

40. On February 16, 2000, the probate court issued respondent a citation to personally appear on March 22, 2000, to show cause why the 16th Annual Account and accompanying documents had not been filed. Respondent filed the 16th Annual Account on March 1, 2000, and the court struck the March 22, 2000, citation hearing.

41. Respondent failed to timely file the 17th Annual Account. On December 4, 2000, and January 11, 2001, the probate court sent notices to respondent requesting he file the delinquent 17th Annual Account. Respondent failed to comply. On February 16, 2001, the probate court issued respondent a citation to personally appear on March 28, 2001, to show cause why the 17th Annual Account and accompanying documents had not been filed. Respondent filed the 17th Annual Account on March 9, 2001. Respondent was present at the March 28, 2001, citation hearing. Pursuant to court order dated April 24, 2001, the court allowed the 17th Annual Account.

42. Respondent filed to timely file the 18th Annual Account on or before November 24, 2001. On December 10, 2001, and January 15, 2002, the probate court sent notices to respondent requesting he file the delinquent 18th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply-

43. On February 25, 2002, the probate court issued respondent a citation to personally appear on March 27, 2002, to show cause why the 18th Annual Account and accompanying documents had not been filed. Respondent appeared at the March 27, 2002, citation hearing and filed the 18th Annual Account. The 18th Annual Account was allowed pursuant to court order filed May 6, 2002.

Marion H. Carlson

44. On October 9,1985, respondent was appointed general conservator of the estate of Marion H. Carlson. Respondent failed to timely file the 14th Annual Account on or before November 8, 1999. On November 22 and December 28, 1999, the probate court sent notices to respondent directing him to file the 14th Annual Account, Annual Notice of Rights, [and] Personal Well Being Report. Respondent failed to timely file the documents with the court.

45. On February 8, 2000, the probate court cited respondent and required him to personally appear before the court on March 22, 2000, and show cause why the documents had not been filed. Respondent filed the documents on March 2, 2000. On March 9, 2000, the probate court’s citation to respondent, sent by certified mail, was returned by the post office as unclaimed.

46. On April 3, 2000, the 14th Annual Account came on for hearing. The court was unable to review the matter as scheduled due to respondent’s failure to file the affidavit of mailing which signifies that he notified interested parties of the [] time and place of the hearing. Thereafter, on April 3, 2000, the court wrote to respondent and requested he file the affidavit of mailing. Respondent filed the affidavit of mailing on April 14, 2000. The court allowed the 14th Annual Account on April 14, 2000.

47. Respondent failed to timely file the 15th Annual Account on November 9, 2000. On November 20 and December 27, 2000, the probate court sent notices to respondent requesting him to file the 15th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to file the documents.

48. On February 12, 2001, the probate court issued a citation to respondent and required him to personally appear before the court on March 28, 2001, to show cause why the documents had not been filed. On March 13, 2001, respondent filed the documents.

49. The 15th Annual Account came on for hearing on April 23, 2001. Respondent failed to submit to the court his conservator time records for the accounting period. On April 23, 2001, the court wrote to respondent and advised him that the conservator’s fees were high and directed respondent to submit time records. The April 23, 2001, court hearing was continued to May 21, 2001.

50. On May 21, 2001, the court convened to review the conservator’s time records. Respondent had failed to file the time records as previously directed by the court. On May 21, 2001, the court issued a letter to respondent requesting the time records in one week.

51. Respondent failed to submit the time records as required by the court. The court continued the June 5, 2001, hearing to July 3, 2001. On June 5, 2001, the court provided respondent notice that he was required to submit the time records prior to the July 3, 2001, hearing.

52. On July 3, 2001, a hearing was conducted to consider the 15th Annual Account. The court issued an order on July 12, 2001, approving the 15th Annual Account.

Mary Jo Kellner

53. On July 22, 1988, respondent was appointed guardian of the person and estate of Mary Jo Kellner. On September 23, 1993, the court issued an order for the examination of the 5th Annual Account to be heard on October 18, 1993. On September 23, 1993, respondent filed the 5th Annual Account with the probate court. On October 18, 1993, the court notified respondent that it had disallowed the 5th Annual Account due to respondent’s failure to serve an affidavit of mailing of the Order Fixing Time and Place of Hearing.

54. On August 2, 1994, the court, having never received the affidavit of mailing of the Notice, Personal Well Being Report and Annual Account with categorized vouchers, issued a reminder notice to respondent to file documents by September 2, 1994. Respondent failed to comply with the court’s notice.

55. On September 8, 1994, a notice and order to appear was issued to respondent advising him that a citation would be issued for his appearance to show cause why the annual documents had not been filed.

56. Respondent filed the affidavit of mailing for the 5th Annual Account and the 6th Annual Account documents on September 9, 1994. On September 9, 1994, the court issued the Order for Examination of the 5th and 6th Annual Accounts. On November 7, 1994, the court issued two orders allowing the 5th and 6th Annual Accounts respectively.

57. Respondent failed to timely file the 12th Annual Account on or about August 21, 2000. On September 5 and October 9, 2000, the court issued reminder notices to file the 12th Annual Account. On October 10, 2000, the court issued a Notice and order for appearance to show cause why the annual account had not been filed.

58. On November 13, 2000, respondent filed the 12th Annual Account. Respondent failed to file the Affidavit of Service regarding the Notice of Hearing. At the December 18, 2000, hearing, the 12th Annual Account was allowed by the court subject to filing the affidavit of service regarding notice of hearing.

59. On December 18, 2000, the probate court manager wrote respondent a letter advising him that the 12th Annual Account came on for hearing. Due to respondent’s failure to file the affidavit of mailing the account would not be allowed. Respondent was further advised that the notice needed to be mailed at least 14 days prior to the hearing. Respondent failed to file the Affidavit of Mailing.

60. On January 22, 2001, the probate court again wrote to respondent requesting the Affidavit of Mailing. Respondent failed to comply with the court’s request.

61. A citation was issuefd] to respondent on February 28, 2001, for failure to file the Affidavit of Mailing. Respondent was required to personally appear on April 25, 2001, to show cause why the Affidavit of Mailing had not been filed.

62. Respondent appeared for the April 25, 2001, hearing. Respondent filed the Affidavit of Service on April 30, 2001, over 5 months late.

Joanne Kueppers

63. On May 10, 1995, respondent was appointed general conservator of the person and estate of Joanne Kueppers. Respondent failed to timely file the 4th Annual Account on or before June 9, 1999. On June 21 and July 26, 1999, the probate court issued notices to respondent to file the delinquent 4th Annual Account and accompanying documents. On September 9, 1999, the probate court issued respondent a citation to personally appear on September 29,1999, to show cause why the 4th Annual Account and accompanying documents had not been filed. Respondent was present at the September 29, 1999, [] citation hearing. The court directed respondent to file the documents in one week. Respondent failed to file the documents until November 24, 1999. Pursuant to order dated February 14, 2000, the 4th Annual Account was allowed.

64. Respondent failed to timely file the 5th Annual Account on or before June 9, 2000. On June 19 and July 24, 2000, the probate court issued notices to respondent to file the delinquent 5th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to timely comply with the court’s notices. On August 31, 2000, the probate court issued respondent a citation to personally appear on September 27, 2000, to show cause why the 5th Annual Account and accompanying documents had not been filed. Respondent was present at the September 27, 2000, citation hearing and filed the 5th Annual Account and accompanying documents. Respondent failed to file an Affidavit of Mailing.

65. On October 23, 2000, the Examination of the Account was heard. The probate court allowed the 5th Annual Account subject to respondent’s filing the Affidavit of Mailing. The court continued the Examination of the Account to January 22, 2001. Respondent failed to file the Affidavit of Mailing until January 31, 2001. Pursuant to order dated January 31, 2001, the 5th Annual Account was allowed.

Mary Dorothy Kueppers

66. On May 10, 1995, respondent was appointed general conservator of the person and estate of Mary Dorothy Kueppers. Respondent failed to timely file the 4th Annual Account on or before June 9, 1999. On June 21 and July 26, 1999, the probate court issued notices to respondent to file the delinquent 4th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to timely comply with the court’s notices. On September 14, 1999, the probate court issued respondent a citation to personally appear on October 27, 1999, to show cause why the 4th Annual Account and accompanying documents had not been filed.

67. Respondent failed to appear at the October 27, 1999, [] citation hearing, nor did he file the 4th Annual Account and accompanying documents. Respondent was notified on October 27, 1999, that the citation hearing was continued to November 24, 1999 and that failure to appear at the November 24, 1999, hearing could result in the issuance of a Writ of Attachment for his arrest.

68. On November 24, 1999, the probate court issued an Order for Writ of Attachment due to respondent’s failure to appear at the citation hearing. That same day upon receipt of the Writ of Attachment, respondent filed the 4th Annual Account and accompanying documents. On December 2, 1999, the court issued an Order Quashing the Writ of Attachment.

69. Respondent failed to timely file [the] 5th Annual Account on or before June 9, 2000. On June 19 and July 25, 2000, the probate court issued notices to respondent to file the delinquent 5th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to timely comply with the court’s notices. On August 31, 2000, the probate court issued respondent a citation to personally appear on September 27, 2000, to show cause why the 5th Annual Account and accompanying documents had, not been filed. Respondent was present at the September 27, 2000, hearing and filed the 5th Annual Account and accompanying documents.

Dorthea B. Lange

70. On July 14, 1987, respondent was appointed general conservator of the person and estate of Dorthea B. Lange. Ms. Lange died on May 3, 2000. Respondent faded to timely file the 13th and Final Annual Accounts on or before August 14, 2000. On August 28 and September 26, 2000, the probate court sent notices to respondent requesting he file the delinquent 13th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to comply.

71. On November 9, 2000, the probate court issued respondent a citation to personally appear on November 29, 2000, to show cause why the 13th Annual Account and accompanying documents had not been filed. Respondent was present at the November 29, 2000, hearing and filed the 13th and Final Annual Account and accompanying documents.

B. Respondent Serves as Attorney for Guardian or Conservator

Laura J. Medved

72. Adeline Medved (Medved) was appointed conservator of Laura J. Medved on May 30, 1984. Medved retained respondent to represent her. Respondent failed to timely file the 11th Annual Account on June 29, 2002. On July 15 and August 20, 2002, the probate court sent notices to Medved to file the 11th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to comply with the court’s notices.

73. On September 25, 2002, the probate court issued a citation requiring Med-ved to personally appear on October 23, 2002, to show cause why the documents had yet to be filed. Respondent filed the 11th Annual Account on October 3, 2002. Respondent and Medved appeared at the October 23, 2002, citation hearing and filed the other documents at that time. On November 18, 2002, the court issued an order allowing the 11th Annual Account.

Dawn M. Hassinger

74. On March 28, 1990, the court issued an order appointing Sherry L. Miller (Miller) guardian of Dawn M. Hassinger. Miller retained respondent to represent her. In 1996, respondent failed to timely file the Annual Notice of Rights and Personal Well Being Report. On April 9 and May 20, 1996, the probate court sent reminder notices to Miller requesting the delinquent reports be filed. Respondent failed to file the documents as requested by the court.

75. On July 22, 1996, the probate court issued a citation to Miller to personally appear on August 20,1996, and show cause why the Annual Notice of Rights and Personal Well Being Report had not been filed. Respondent filed the documents on July 26,1996.

76. In 1998, respondent failed to timely file the Annual Notice of Rights and Personal Well Being Report. On April 13 and May 19, 1998, the probate court sent reminder notices to Miller to file the Annual Notice of Rights and Personal Well Being Report. Respondent failed to file the documents. On June 30, 1998, the probate court issued a citation to Miller to personally appear [] before the court on July 21, 1998, to show cause why the documents were not filed. Respondent filed the documents on July 6, 1998, and the citation hearing was stricken from the court’s calendar.

77. In 2000, respondent failed to file the Annual Notice of Rights and Personal Well Being Report. On April 10 and May 16, 2000, the probate court sent reminder notices to Miller to file the delinquent Personal Well Being Report and Annual Notice of Rights. Respondent failed to file the documents.

78. On June 26, 2000, the probate court issued a citation to Miller to personally appear on July 26, 2000, and show cause why the Annual Notice of Rights and Personal Well Being Report had not been filed. Respondent filed the documents on July 19, 2000. The citation hearing scheduled for July 26, 2000, was stricken from the court’s calendar.

79. In 2002, respondent failed to file the Annual Notice of Rights and Personal Well Being Report. On April 8 and May 14, 2002, the probate court sent reminder notices to Miller to file the delinquent Personal Well Being Report and Annual Notice of Rights.

80. On June 19, 2002, the probate court issued a citation to Miller to personally appear on August 28, 2002, and show cause why the Annual Notice of Rights and Personal Well Being Report had not been filed. On August 28, 2002, respondent and Miller personally appeared at the citation hearing and filed the documents at that time.

Beatrice A. Moore

81. On November 4, 1992, Valerie Mi-hok (Mihok) was appointed general conservator of the person and estate of Beatrice A. Moore. Mihok retained respondent to represent her.. Respondent failed to file the 6th Annual Account on or before December 4, 1998. On December 21, 1998, and January 25, 1999, the probate court sent notices to Mihok to file the 6th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to comply with the court’s notices.

82. On March 12, 1999, the probate court issued a citation requiring Mihok to personally appear on March 30, 1999, to show cause why the documents had yet to be filed. Respondent appeared at the March 30, 1999, citation hearing without filing the documents. Respondent filed the documents on April 5, 1999. The court allowed the 6th Annual Account pursuant to order dated May 3, 1999.

83. Respondent failed to file the 8th Annual Account on or before December 4, 2000. On December 18, 2000 and January 23, 2001, the probate court sent notices to Mihok to file the 8th Annual Account, Annual Notice of Rights and Personal Well Being Report. Respondent failed to comply with the court’s notices. On March 2, 2001, the probate court issued a citation requiring Mihok to personally appear on March 28, 2001, to show cause why the documents had yet to be filed. Respondent filed the 8th Annual Account on March 26, 2001. The court allowed the 8th Annual Account pursuant to order dated May 7, 2001.

Gary Alan Bayne

84. On March 9, 1982, Gordon K. and Marlene F. Bayne (the Baynes) were appointed co-guardians of the person and estate of Gary Alan Bayne. The Baynes retained respondent to represent them. Respondent failed to timely file the 16th Annual Account. On April 13 and May 19, 1998, the probate court sent notices to the Baynes to file the delinquent 16th Annual Account, Notice of Rights, [and] Personal Well Being Report as required by law. Respondent failed to file the documents. On June 30, 1998, the probate court issued a citation to the Baynes requiring them to personally appear before the court on July 21, 1998, and show cause why the documents had yet to be filed.

85. On July 6, 1998, respondent filed the 16th Annual Account and accompanying documents. The July 21, 1998, citation hearing was stricken from the court’s calendar. Pursuant to court order dated August 5, 1998, the 16th Annual Account was allowed.

86. Respondent failed to timely file the 18th Annual Account and accompanying documents on or before April 8, 2000. On April 17 and May 23, 2000, the probate court sent notices to the Baynes requesting that the delinquent 18th Annual Account, Notice of Rights and Personal Well Being Report be filed. Respondent failed to file the documents. On July 5,. 2000, the probate court issued a citation to the Baynes requiring them to personally appear before the court on August 23, 2000, and show cause why the documents had yet to be filed.

87. On August 21, 2000, respondent filed the 18th Annual Account and accompanying documents. The August-23, 2000, citation hearing was stricken. from the court’s calendar. The 18th Annual Account was allowed pursuant to court order dated September 20, 2000.

Anthony Jay Condon

88. On January 25, 1989, Everette and Kathleen Condon (the Condons) were appointed co-guardians of the person and estate of Anthony Jay Condon. The Con-dons retained respondent to represent them.

89. Respondent failed to timely file the 11th Annual Account on or before February 24, 2000. On April 10 and May 16, 2000, the probate court issued notices to the Condons to file the 11th Annual Account, Personal Well Being Report and Annual Notice of Rights. Respondent failed to file the documents.

90. On June 26, 2000, the probate court issued a citation to the Condons requiring them to appear on July 26, 2000, and show cause why the documents had yet to be filed.

91. On July 18, 2000, respondent filed the 11th Annual Account and accompanying documents. On July 24, 2000, after a telephone call from respondent, the July 26, 2000, citation hearing was stricken from the probate court s calendar. Pursuant to court order dated August 16, 2000, the 11th Annual Account was allowed.

92. Respondent’s pattern of failing to timely file probate annual reports, affidavits of mailing and receipts with the probate’court, and failing to promptly comply with probate court orders violated Rules 1.3, 3.4(c) and 8.4(d), Minnesota Rules of Professional Conduct (MRPC).

SECOND COUNT

93. On April 23, 2003, charges of unprofessional conduct, notice of pre-hearing and notice of panel assignment were mailed to respondent at his last known address.

94. The notice of pre-hearing meeting informed respondent that a pre-hearing meeting concerning the charges of unprofessional conduct would be held at 10:00 a.m. on May 13, 2003, at the Office of Lawyers Professional Responsibility, 1500 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102. Pursuant to Rules 9(b) and (e), RLPR, an attorney must serve an answer to the charges and appear for [the] pre-hearing meeting.

95. Respondent failed to serve an answer or appear for the pre-hearing meeting or otherwise respond to the charges of unprofessional conduct and notice of pre-hearing meeting.

96. Respondent’s conduct in failing to cooperate with required elements of the disciplinary proceedings violated Rule 8.1(a)(3), MRPC, and Rule 25, RLPR.

      . The specific allegations as set out in the Petition can be found in the appendix accompanying this opinion.