author: KONENKAMP, Justice.

text:
    2005 SD 116
    STATE of South Dakota, Plaintiff and Appellee, v. Michael Joseph Christopher KOTTMAN, Defendant and Appellant.
    No. 23443.
    Supreme Court of South Dakota.
    Argued On Oct. 3, 2005.
    Decided Nov. 22, 2005.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    John R. Hinrichs, Minnehaha County Public Defender’s Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] As a condition of his release on parole, defendant signed a waiver allowing warrantless searches of his home and person by parole agents or law enforcement officers, whenever a reasonable suspicion arose that he was violating a condition of his parole. Sioux Falls police suspected defendant in a burglary that appeared to have been an “inside job.” Defendant had recently been fired from the burglarized business. Because the officers knew defendant had signed a waiver, they searched his home without a warrant. They found a methamphetamine pipe, and defendant was charged and convicted of possession of a controlled substance. In this appeal, defendant contends that the warrantless search was illegal, and even if his waiver allowed for this type of search, there was still no reasonable suspicion to justify it. We affirm.

Background

[¶2.] Defendant, Michael J. Kottman, signed a supervision agreement in 2000, allowing a parole agent to search his “person, property, place of residence, vehicle and personal effects” when “reasonable cause is ascertained.” (Emphasis added). Then in 2002, as a result of the United States Supreme Court decision in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the South Dakota Department of Corrections amended the terms of the waiver condition in South Dakota parole agreements. First, reasonable cause was changed to reasonable suspicion, and, second, both parole agents and law enforcement officers were permitted to conduct warrantless searches. Kottman signed his new parole supervision agreement on March 6, 2002.

[¶ 3.] On November 16, 2003, the security alarm went off at Empire Plastics, a Sioux Falls business. The alarm sounded at 2:52 p.m., and two Sioux Falls police officers arrived four minutes later. Officers Kurtis Daughters and Travis Olsen noticed a broken exterior window. They contacted the business owner, Doug Edwards, and foreman, Nick Swier, who assisted them in examining the premises. The owner, Edwards, identified the location of the motion sensors and indicated that only one had been activated. He also told the officers that nothing seemed out of place and that the only thing missing was “the metal cash box, which contained between $200 and $300, and which had been kept inside a back office closet.” Because the business had multiple motion sensors and only one was activated and also because the cash box was in the closet of an interior office, where there were no motion sensors, Edwards told the officers that the “intruder must have had knowledge of the layout of the building, and about where this cash box had been stored.”

[¶ 4.] Other officers joined Daughters and Olsen and assisted in the remainder of the search of Empire Plastics. After the search, Officer Daughters asked Edwards if he had any suspects in mind. Edwards responded that he had a good relationship with all his past and current employees except one, Michael Kottman. Edwards said that he had fired Kottman just five days earlier and that Kottman knew where the cash box was located because he had recently stocked the storage room. Thereafter, Daughters spoke with the foreman, Swier, who indicated that Kottman had worked for Empire Plastics for only two weeks. In addition, he “emphasized that [Kottman] had even said that he had a ‘methamphetamine problem’ and that he ‘was a user.’ ”

[¶ 5.] In response to this information, Daughters went to his squad car and performed a preliminary background check on Kottman. The check revealed that Kott-man was on parole and had previously been convicted of four burglaries and other theft crimes. When Daughters attempted to contact Kottman’s parole agent, he was unable to reach him and instead spoke with another parole agent, John Schultz. During this conversation, Daughters confirmed that Kottman was on parole for burglary and theft convictions and as a condition of parole he had signed a search and seizure waiver. Then Daughters obtained the address Kottman reported as his residence and informed Schultz that he planned to “go to Kottman’s residence and conduct a warrantless search of the premises and his vehicles.” Because Daughters was familiar with the waiver provision in the parole supervision agreements, he did not obtain a copy of Kottman’s agreement before conducting the search.

[¶ 6.] When the officers arrived at Kottman’s home, his girlfriend, Shannon Weiss, let them inside, and then she went downstairs to get Kottman, who was showering. Thereafter, the officers explained to Kottman that they suspected him of burglarizing Empire Plastics and that they would be searching his home and vehicles. “Daughters began his search of the premises by going downstairs first to the basement section of [Kottman’s] split-level home, which had four floors.” He noticed that the shower had recently been used and that a pile of clothes were on the floor in the north-east bedroom. While in the bedroom, Daughters also noticed a “karate-type shirt” located about two feet from the pile of clothes and it was “nicely rolled up.” When he picked up the shirt, a glass methamphetamine pipe containing “a white powdery residue” rolled out onto the carpet. Daughters concluded that the bathroom and bedroom he had just searched belonged to Kottman, who was upstairs waiting with Officer Mike Iverson.

[¶ 7.] During the officers’ search of the remainder of the home and all the vehicles, they did not find any other drugs or paraphernalia. However, they found and seized several items as possible evidence connecting Kottman to the burglary. Kottman was thereafter charged with possession of methamphetamine and he moved to suppress the evidence because the officers did not have a warrant and there were no “exigent circumstances necessitating their entrance and search of [Kottman’s] home.” Kottman also claimed that the officers did not have enough information to conclude with reasonable suspicion that Kottman burglarized Empire Plastics.

[¶ 8.] His motion was denied, and, after a jury trial, he was convicted of possession of a controlled substance. Kottman appeals, claiming (1) the warrantless search of his home was illegal because it violated his Fourth Amendment right to be free from unreasonable searches and seizures, (2) the United States Supreme Court case, U.S. v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), does not apply and does not make this search reasonable because it violated the “stalking horse doctrine,” and (3) if Knights applies, the search was illegal because reasonable suspicion did not exist.

Standard of Review

[¶ 9.] “ ‘A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review.’ ” State v. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d 314, 319 (quoting State v. Hermann, 2002 SD 119, ¶ 9, 652 N.W.2d 725, 728). The circuit court’s application of a legal standard is also reviewed de novo, while its factual findings are reviewed under the clearly erroneous standard. Id.; State v. Ballard, 2000 SD 134, ¶ 9, 617 N.W.2d 837, 840 (citations omitted).

Analysis and Decision

[¶ 10.] Even though Kottman maintains that the officers needed a warrant to enter his home or that the entry without a warrant must have been supported by exigent circumstances, Kottman sacrificed substantial Fourth Amendment rights when he signed the supervision agreement as a condition of his parole. The constitutionality of these conditional waivers has previously been upheld by this Court. See State v. Ashley, 459 N.W.2d 828, 830 n. 1 (S.D. 1990); State v. Cummings, 262 N.W.2d 56, 61 (S.D.1978). Specifically, we recognized that “[a] probationer’s expectations of privacy are less than those of the average citizen, and a condition of probation such as that imposed in [a conditional waiver] does not run afoul of [a probationer’s] Fourth Amendment rights.” Cummings, 262 N.W.2d at 61. Thus, the mere fact the officers searched Kottman’s home without a warrant or exigent circumstances does not mean his Fourth Amendment rights were violated.

[¶ 11.] Nevertheless, Kottman insists that the existence of this conditional waiver does not negate the officers’ violation of the stalking horse doctrine, which “prevents law enforcement officers from unfairly exploiting search and seizure waivers in probation and parole agreements to skirt Fourth Amendment rights.” Kottman cites Ashley, where we adopted the stalking horse doctrine. 459 N.W.2d at 830. In further support, Kottman requests that we apply decisions from the District Court of South Dakota and Eighth Circuit Court of Appeals, which also recognized the doctrine. See United States v. Scott, 945 F.Supp. 205, 209 (D.S.D.1996) (stating “searches must be used for rehabilitative and security purposes and not as a mechanism for solving crimes and circumventing the proscriptions of the Fourth Amendment”); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.1997) (invalidating a parole search that was “nothing more than a ruse for a police investigation”).

[¶ 12.] In response, the State asserts that “the United States Supreme Court’s analysis in U.S. v. Knights supersedes Ashley.” In Knights, the defendant signed a probationary agreement with waiver language almost identical to Kottman’s supervision agreement. See 534 U.S. at 114, 122 S.Ct. at 589, 151 L.Ed.2d 497. Similar to Kottman’s contention here, the defendant in Knights relied on a recognized distinction between a probation-related and an investigation-related search and moved to suppress the evidence because it was not probation related. Id. at 116, 122 S.Ct. at 590, 151 L.Ed.2d 497. But the conditional waiver mentioned nothing about a purpose requirement, and, as a result, the Supreme Court rejected the defendant’s claim. Id. at 116-18, 122 S.Ct. at 590, 151 L.Ed.2d 497. Consequently, the Supreme Court refused to apply a purpose-related review and adopted a traditional Fourth Amendment analysis. Id. at 118-22, 122 S.Ct. at 590-91, 151 L.Ed.2d 497.

[¶ 13.] Even though Kottman’s claims are similar, he insists that Knights does not apply and that this Court should continue to regard Ashley as the controlling authority. Kottman argues that Knights “should not reflect the law and policy in South Dakota with respect to parole searches” because South Dakota “acknowledges a higher degree of Fourth Amendment protection than that offered by the United States Constitution.” See State v. Opperman, 247 N.W.2d 673, 675 (S.D.1976). First, Opperman’s holding has been seriously curtailed. State v. Hejhal, 438 N.W.2d 820 (S.D.1989). Second, it is not sufficient to simply invoke Opperman with a suggestion that we interpret a provision in our State Constitution to grant a higher standard of protection than a similarly worded provision in the Federal Constitution. A bare disagreement with the United States Supreme Court’s interpretation of the Federal Constitution “imparts no sound doctrinal basis to impose a contrary view under the pretext of separately interpreting our State Constitution. Our Constitution is more than just a device to reject or evade federal decisions.... ” State v. Schwartz, 2004 SD 123, ¶ 34, 689 N.W.2d 430, 438 (Konenkamp, J., concurring). Counsel advocating a separate constitutional interpretation “must demonstrate that the text, history, or purpose of a South Dakota constitutional provision supports a different interpretation from the corresponding federal provision.” Id. ¶ 57. No such analysis was presented here.

[¶ 14.] We think it significant that after Knights the Eighth Circuit Court of Appeals, and most other appellate courts, rejected the previously accepted stalking horse doctrine. United States v. Brown, 346 F.3d 808, 810 (8th Cir.2003). In particular, the Eighth Circuit agreed that a traditional Fourth Amendment analysis would sufficiently balance “the degree to which a search intrudes upon an individual’s reasonable expectation of privacy against the degree to which the government needs to search to promote legitimate interests.” Id. at 811 (citing Knights, 534 U.S. at 119, 122 S.Ct. at 591, 151 L.Ed.2d 497). This Court has already applied a Fourth Amendment balancing test and upheld the constitutionality of these conditional waivers when the search was probation related. See Cummings, 262 N.W.2d at 61; Ashley, 459 N.W.2d at 830 n. 1. And today we align ourselves with those courts that have decided in the wake of Knights that the Supreme Court’s traditional Fourth Amendment analysis precludes the continued viability of the stalking horse doctrine. See, supra n. 4. Today, we overrule Ashley’s adoption of this doctrine.

[¶ 15.] Because the stalking horse doctrine no longer applies, we are left to evaluate Kottman’s claim that the officers did not have reasonable suspicion to justify the search. What showing must be made by parole agents and law enforcement officers to uphold a warrantless search and seizure under a conditional waiver requiring a threshold determination of reasonable suspicion? This Court has not yet addressed this question, and a review of Knights and the Eighth Circuit’s analysis in Brown provide little guidance because the parties in those cases conceded the existence of reasonable suspicion. See 534 U.S. at 122, 122 S.Ct. at 593, 151 L.Ed.2d 497; 346 F.3d at 812. In addition, relatively few state or federal courts have specifically addressed the question of what constitutes reasonable suspicion - as applied to these conditional waivers in the wake of Knights. However, those courts that have answered the question largely chose to apply the reasonable suspicion standard as defined in investigatory stop cases. After reviewing the case law, we conclude that the determination of reasonable suspicion in this case should be analyzed under the same standard for reasonable suspicion in investigatory stop cases.

[¶ 16.] Here, the circuit court found that the circumstances supported the existence of reasonable suspicion based on the information the officers obtained and the inferences the officers could have reasonably drawn. Even though the trial court’s findings are reviewed under the clearly erroneous standard, “[i]t is our duty to make our own legal assessment of the evidence to decide under the Fourth Amendment whether the officers’ actions were ‘objectively reasonable.’ ” State v. Chavez, 2003 SD 93, ¶ 49, 668 N.W.2d 89, 103 (Konenkamp, J., concurring); State v. Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d 603, 610. See also Hess, 2004 SD 60, ¶ 9, 680 N.W.2d at 319 (citing State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994)). “In deciding whether particular facts give rise to an objectively reasonable suspicion the officer must have more than ‘an inchoate and unparticularized suspicion or “hunch,” but less than the level of suspicion required for probable cause.’ ” Ballard, 2000 SD 134, ¶ 13, 617 N.W.2d at 841 (quoting State v. Anderson, 258 Neb. 627, 605 N.W.2d 124, 132 (2000)).

[¶ 17.] Kottman claims that “[i]t is difficult to believe that [his] parole status and prior employment justified individualized suspicion ... to such a high degree that law’ enforcement could forgo the inconvenience of investigating further and simply raid [Kottman’s] home.” However, reasonable suspicion does not implicate the individualized suspicion required under ordinary Fourth Amendment analysis. See State v. Hirning, 1999 SD 53, ¶ 13, 592 N.W.2d 600, 604 (identifying a requirement of individualized suspicion when describing the standard for probable cause). Instead, we are presented with a situation where Kottman expressly agreed to limit his rights under the Fourth Amendment by accepting early release on parole from the penitentiary, with the condition that parole agents and law enforcement officers would have the power to search without a warrant as long as there is reasonable suspicion. Imposing this limitation does “not run afoul of [Kottman’s] Fourth Amendment rights.” Cummings, 262 N.W.2d at 61.

[¶ 18.] Thus, we review the particular facts surrounding the officers’ actions and determine whether they support an “objectively reasonable suspicion” that Kottman burglarized Empire Plastics. See Ballard, 2000 SD 134, ¶ 13, 617 N.W.2d at 841. In this case, the officers arrived four minutes after the alarm sounded and no perpetrators were in the structure or nearby. Only one motion sensor was activated, even though there were several located throughout the building. The circuit court found that this information could reasonably lead the officers to believe that “the person who stole [the cash box] must have had knowledge of its exact location in order to enter, locate, remove it and depart the premises in less than four minutes,” and that the “person who entered the building must have had knowledge of where the motion sensor alarms were positioned and had gone directly to where the cash box was hidden.”

[¶ 19.] The officers were able to identify a suspect after they spoke with the owner and learned that Empire Plastics had a good working relationship with all its past and current employees, except Kottman. The officers’ suspicion was strengthened when they learned that Kott-man knew where the cash box was located and had been fired only five days earlier. Further, Officer Daughters performed a background check and learned that Kott-man “was a multiple previously convicted felon including convictions for offenses such as burglary and grand theft and that [he] was then released from the Penitentiary on parole supervision.” With these facts, the circuit court ruled that the officers had reasonable suspicion to search Kottman’s home. We conclude that the officers’ knowledge based on their investigation “taken together with rational inferences” constitutes reasonable suspicion under these circumstances. See State v. Lockstedt, 2005 SD 47, ¶ 19, 695 N.W.2d 718, 728 (citations omitted).

[¶ 20.] Affirmed.

[¶ 21.] GILBERTSON, Chief Justice, and SABERS, ZINTER and MEIERHENRY, Justices, concur.

      . The exact language of the waiver condition states: "I will submit my person, property, place of residence, vehicle and personal effects to search and seizure at any time, with or without a search warrant, whenever reasonable suspicion is determined by a parole agent or law enforcement.'’

      . A lock box was seized but it could not be identified later as the one taken in the burglary. The State voluntarily dismissed the charge of third-degree burglary on June 11, 2004.

      . "Probation” and "parole” are used interchangeably, but we have not addressed whether there is a difference between parolees or probationers. However, the Third Circuit stated that there
      is "no constitutional difference between probation and parole for purposes of the fourth amendment.” United States v. Harper, 928 F.2d 894, 896 n. 1 (9th Cir.1991) [ (citations omitted) ]. In fact, parole may be an even more severe restriction on liberty because the parolee has already- been adjudged in need of incarceration. See United States v. Cardona, 903 F.2d 60, 63 (1st Cir.1990), cert denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991). United States v. Hill, 967 F.2d 902, 909 (3d Cir.1992). See also United States v. Williams, 417 F.3d 373, 376 n. 1 (3d Cir.2005).

        . See, e.g., Williams, 417 F.3d at 377-78 (specifically adopting Knights and rejecting claims under stalking horse doctrine); United States v. Wilson, 105 Fed.Appx. 498 (4th Cir.2004) (unpublished) (holding only reasonable suspicion is required for search under conditional waiver as a result of Knights); United States v. Keith, 375 F.3d 346 (5th Cir.2004) (adopting the theory that Knights removes the distinction between parole and investigatory related searches); United States v. Loney, 331 F.3d 516 (6th Cir.2003) (stating Knights removed the requirement to consider purpose behind search when conditional waiver exists); United States v. Hagenow, 423 F.3d 638 (7th Cir.2005) (recognizing Knights and rejecting the requirement for special need to search without a warrant); Brown, 346 F.3d at 810 (rejecting the stalking horse doctrine); United States v. Stokes, 292 F.3d 964 (9th Cir.2002) (approving Knights invalidation of the claim the search was a "subterfuge for a criminal investigation"); United States v. Tucker, 305 F.3d 1193 (10th Cir.2002) (recognizing the validity of a search because it was reasonable under the Fourth Amendment); United States v. Yuknavich, 419 F.3d 1302 (11th Cir.2005) (holding only reasonable suspicion is required as a result of Knights).

      . The Court in Knights recognized that "[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ " 534 U.S. at 119, 122 S.Ct. at 591, 151 L.Ed.2d 497 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 1300, 143 L.Ed.2d 408 (1999)).

      . The language of Kottman’s conditional waiver requires reasonable suspicion and Kottman is not claiming that probable cause or reasonable cause should be required before a warrantless search can be conducted.

      . While it is trae the Eighth Circuit used Knights’ "traditional Fourth Amendment balancing test to determine the search's constitutionality,” it did so in order to reject the distinction between probation and investigatory related searches and not to define what constitutes reasonable suspicion. Brown, 346 F.3d at 811-12.

      . For exámple, when the North Dakota Supreme Court modified its method of review for the validity of probationary searches after Knights, it applied a reasonable suspicion standard adopted from its investigatory and traffic stop cases. See State v. Maurstad, 2002 ND 121, ¶ 35, 647 N.W.2d 688, 697 (requiring an "objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity”) (citing City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466, 469; City of Fargo v. Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 9.01, 903-04).
      New Mexico also applied a reasonable suspicion standard based on its previous decisions in investigatory stop cases. See State v. Baca, 135 N.M. 490, 90 P.3d 509, 521-22 (App.2004) (citing State v. Urioste, 2002-NMSC-023, 132 N.M. 592, 52 P.3d 964 (requiring "articulable facts that ... would lead a reasonable person to believe criminal activity occurred or was occurring”)); State v. Galvan, 90 N.M. 129, 560 P.2d 550, 552 (App.1977).
      Similarly, the Supreme Court of Illinois aligned its reasoning with an investigatory stop case. See People v. Lampitok, 207 Ill.2d 231, 278 Ill.Dec. 244, 798 N.E.2d 91, 106-07 (2003) (requiring " 'articulable facts which, taken together with the rational inferences from those facts, ... warrant a reasonably prudent officer to investigate further”) (quoting Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)); People v. Scott, 148 Ill.2d 479, 171 Ill.Dec. 365, 594 N.E.2d 217 (1992).
      In contrast, Pennsylvania and New Jersey applied specific statutes which defined reasonable suspicion under warrantless searches based on conditional waivers. See Commonwealth v. Moore, 805 A.2d 616, 621 (Pa.Super.2002) (citing 61 Pa. Stat. Ann. 331.27b(d)(6)); State v. Maples, 346 N.J.Super. 408, 788 A.2d 314, 316 (2002) (citing N.J. Stat. Ann. 10A:26-1.3). But the court in Pennsylvania also referred to investigatory stop cases when reviewing the adequacy of reasonable suspicion under the circumstances. See Moore, 805 A.2d at 621 (citing Commonwealth v. Wimbush, 561 Pa. 368, 750 A.2d 807 (2000); Commonwealth v. Lohr, 715 A.2d 459, (Pa.Super.1998); Commonwealth v. Tate, 237 Pa.Super. 104, 346 A.2d 570 (1975)).
      In addition to state courts, a review of the federal courts reveals that most circuits also adopted a reasonable suspicion standard derived from previous investigatory stop cases. Williams, 417 F.3d at 376 (requiring "a particularized and objective basis for suspecting legal wrongdoing”) (quoting United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)); Wilson, 105 Fed.Appx. 498 (unpublished) (same as Third Circuit); Loney, 331 F.3d at 520 (requiring " articulable reasons' and 'a particularized and objective basis’ ”) (quoting United States v. Payne, 181 F.3d 781, 788 (6th Cir.1999) (quoting United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981))); Hagenow, 423 F.3d at 642 (requiring "something less than probable cause but more than a hunch”) (quoting United States v. Baskin, 401 F.3d 788, 791 (7th Cir.2005)); Tucker, 305 F.3d at 1200-01 (requiring "a particularized and objective basis for suspecting criminal activity”) (citing United States v. Treto-Haro, 287 F.3d 1000, 1004 (10th Cir.2002); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990)).


source: Caselaw Access Project

license: Public Domain

text:
    2005 SD 117
    Monica BORDEAUX, Guardian, Ad Litem of G.B.F., Minor Child, Plaintiff and Appellant, v. SHANNON COUNTY SCHOOLS, Defendant and Appellee.
    No. 23563.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 3, 2005.
    Decided Nov. 30, 2005.

      Terry L. Pechota of Pechota Law Office, Rapid City, South Dakota, Attorney for plaintiff and appellant.
    Thomas H. Harmon of Tieszen Law Office, Pierre, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] In this personal injury action, the circuit court granted summary judgment for the defendant. We affirm.

Background

[¶ 2.] On Saturday, April 26, 2003, Monica Bordeaux brought her eleven-year-old son, G.B.F., to Billy Mills Hall in Pine Ridge, South Dakota, so that he could participate in a Hand Game tournament. Later that day, G.B.F. left the tournament to go to a convenience store across the road. He was hit and injured by a drunk driver. Bordeaux, as G.B.F.’s guardian, brought suit against the Shannon County School District for negligence, seeking damages for her son’s injuries.

[¶ 3.] The Hand Game tournament was sponsored by Youth Opportunity and Pine Ridge Village. The tournament was open to both youth and adult teams. Will Peters was the tournament coordinator. Peters sought tournament participants by advertising through radio commercials and by distributing flyers. One flyer reached Kathy Red Cloud, a teacher and Hand Game coach at Wolf Creek School in the Shannon County School District. Red Cloud circulated the flyer among her students “the same way [she] would any community event.” Some of her students decided to play in the tournament, including G.B.F., and Red Cloud informed them they would have to provide their own transportation.

[¶ 4.] According to Red Cloud, she also decided to attend the tournament, but only as a participant on a team in the adult division. She volunteered to bring pizzas donated by Pizza Hut for all the tournament participants. Because her car was not suitable to carry the pizzas, she was given permission by her school’s assistant principal to drive a vehicle owned by the Shannon County School District. However, she did not agree to transport any students to the tournament or agree to supervise any students while at the tournament. Her affidavit indicates that she “was not at all involved with the children’s activity.” She also said that she “did not transport any children, either to or from the Hand Game Tournament, to then-homes or anywhere else.” On the other hand, according to Monica Bordeaux’s affidavit, when Bordeaux arrived at the tournament with her son, Red Cloud told her that “she would take all the team players home.” Bordeaux also said in her affidavit that, after the accident, Red Cloud told her that she “made sure none of the players went outside and that all of the players had rides home before [Red Cloud] released them from her care.”

[¶ 5.] In her complaint, brought solely against the School District, Monica Bordeaux alleged that her son was in the “care, custody, and control of the Shannon County Public Schools and its employees,” and that the Hand Game tournament was “sanctioned by the Shannon County Public Schools.” Her complaint further alleged:

Shannon County Public Schools and its employees were negligent, including but not limited to failing to adequately monitor students, failing to keep students from leaving Billy Mills Hall, failing to adequately inform and warn the students of the danger of leaving Billy Mills Hall and crossing the highway, failing to have adults present with children when they left Billy Mills Hall, failing to ensure that if students left the Hall they would be safe and not in danger, and for such other reasons as will be proven at trial.

[¶ 6.] Bordeaux argues that Red Cloud was the coach for the school’s Hand Game team and that she was acting as the team’s coach for this tournament. This was a school-sanctioned event, Bordeaux asserts, because Red Cloud passed out “activity attendance permission slips to members of the [School] team” and told Bordeaux that she would drive the students home after the tournament. Bordeaux said that she signed the permission slip, but they were never collected at school. Bordeaux also relies on a comment made by Will Peters, the tournament coordinator, that it was his “assumption that whoever brought the schools’ teams was responsible for them.”

[¶ 7.] Before G.B.F. left the tournament to go to Big Bat’s convenience store with two other boys, they first asked for permission from Red Cloud. She told them that they could go, but to be careful. Bordeaux argues that this request and grant of permission proves that G.B.F. was under the supervision of Red Cloud and hence in the care, custody, and control of the School District.

[¶ 8.] The School District moved to dismiss on the grounds that the tournament “was not sponsored or held in connection with any Shannon County School activity, and that no Shannon County employees were performing the duties for Shannon County School at the time and place alleged.” In her affidavit, the School District superintendent explained that “Billy Mills Hall in Pine Ridge, South Dakota, is not a property belonging to or under the control of the Shannon County Schools and the Shannon County School District was not involved in any manner in the ‘Hand Game Tournament’ held on April 26, 2003.”

[¶ 9.] The circuit court and the parties agreed that the court could consider matters outside the pleadings, and thus the School District’s motion to dismiss was to be treated as a motion for summary judgment. It was also understood that in lieu of a hearing, the parties would submit their affidavits and responses no later than November 15, 2004. Thereafter, it was further agreed that if the court desired an oral hearing, it would advise counsel. On January 13, 2005, the court notified the parties by letter decision that summary judgment would be granted to the School District. On January 20, 2005, the court signed the summary judgment order of dismissal. It was filed on January 25, 2005.

[¶ 10.] On January 24, 2005, invoking SDCL 15 — 6—56(f), Bordeaux’s attorney hand delivered an affidavit requesting that the court withhold judgment and grant the plaintiff a continuance for further discovery. The record does not reflect a ruling by the court on the substance of this request or its timeliness. “If the trial court fails to decide or rule on a motion, nothing is presented for review in the appellate court.” Jameson v. Jameson, 1999 SD 129, ¶ 25, 600 N.W.2d 577, 583 (citations omitted). Bordeaux appeals claiming that there are genuine issues of material fact and that “this matter should be set for further discovery and trial.”

Standard of Review

[¶ 11.] “Under our familiar standard of review in summary judgment cases, we decide only whether genuine issues of material fact exist and whether the law was correctly applied.” Schulte v. Progressive Northern Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438 (citing Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635). “Summary judgment is proper in negligence cases if no duty exists as a matter of law.” Pierce v. City of Belle Fourche, 2001 SD 41, ¶ 8, 624 N.W.2d 353, 355 (citing Peterson v. Spink Elec. Co-op., Inc., 1998 SD 60, ¶ 8, 578 N.W.2d 589, 590-91). Determining whether a duty exists and “defining its limitations remain a function of the courts” under de novo review. Fisher v. Kahler, 2002 SD 30, ¶ 6, 641 N.W.2d 122, 125 (citing Tipton v. Town of Tabor, 1997 SD 96, ¶ 12, 567 N.W.2d 351, 357 (Tipton II)).

Analysis and Decision

[¶ 12.] The circuit court found that there were no genuine issues of material fact to preclude summary judgment. “On review, we apply the same test as the trial court: we probe the record for material facts, resolve disputed facts in favor of the nonmoving party, and decide whether the moving party is entitled to a judgment as a matter of law.” Fisher, 2002 SD 30, ¶ 5, 641 N.W.2d at 125 (citing Sorrels v. Queen of Peace Hosp., 1999 SD 133, ¶ 5, 601 N.W.2d 606, 608).

[¶ 13.] Although the circuit court recognized that granting summary judgment in a negligence case is “extremely rare,” it concluded that a duty did not exist between the School District and G.B.P. at the Hand Game tournament because “the tournament was not sanctioned], approved, or part of the extracurricular activities of the School District,” and Red Cloud was there as a private citizen. Even after accepting the fact that Red Cloud gave permission to G.B.F. to leave the Hall for Big Bat’s, the court held that this fact “certainly does not arise to an allegation of supervision, control, and/or negligence.”

[¶ 14.] Nevertheless, Bordeaux claims that Red Cloud was acting as an agent of the School District when she gave G.B.F. permission and that this act was within the scope of her employment. We require “those resisting summary judgment [to] show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof.” Chem-Age Industries, Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). In fact, “SDCL 15-6-56(e) requires the opposing party to be diligent in resisting a motion for summary judgment, and mere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment.” Hughes-Johnson Co. v. Dakota Midland Hosp., 86 S.D. 361, 364, 195 N.W.2d 519, 521 (1972). See also Casazza v. State, 2000 SD 120, ¶ 16, 616 N.W.2d 872, 876. Accordingly, Bordeaux must present more than “[unsupported conclusions and speculative statements, [which] do not raise a genuine issue of fact.” Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D.1994) (citing Home Fed. Sav. & Loan Assoc. v. First Nat’l Bank, 405 N.W.2d 655, 658 (S.D.1987)).

[¶ 15.] To prevail on her negligence claim, Bordeaux must establish that (1) the School District owed G.B.F. a duty, (2) the duty was breached, and (3) the cause of G.B.F.’s injury was the School District’s breach of its duty. See Kuehl v. Horner Lumber Co., 2004 SD 48, ¶ 10, 678 N.W.2d 809, 812 (quoting Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D.1988)). Absent a duty, the School District cannot be held liable in negligence for G.B.F.’s injuries. The theory Bordeaux presents to establish the School District’s duty is the existence of an agency relationship. Bordeaux contends that liability attaches, first, because an actual agency relationship existed (duty), then, Red Cloud breached that duty when she “failed to use reasonable care to ensure the safety of the students”, and, last, G.B.F. was injured as a direct and proximate result of this breach.

[¶ 16.] Bordeaux claims that an agency relationship existed because the School District “intentionally or by want of ordinary care allowed Kathy Red Cloud to believe that she was an agent of defendant.” An agency relationship is defined as “the representation of one called the principal by another called the agent in dealing with third persons.” SDCL 59-1-1. The record reflects that Red Cloud declared that she did not act as an agent at the tournament and instead she participated in her own right on an adult, team. Specifically, Red Cloud claims she “neither sought nor received permission or authority from [her] supervisor or the School District to participate in this activity.” The assistant principal further attested that he did not “assign [Red Cloud] to supervise any of the activities or children,” even though he understood “that she may have volunteered her own time to assist with children from her class who were going to participate.” And he also concedes that he authorized Red Cloud to use a School District owned vehicle on the day of the tournament.

[¶ 17.] Bordeaux presents no evidence from which it can be inferred that the School District appointed Red Cloud to act as a representative of the School District in the tournament. Consequently, we must then consider whether the School District “affirmatively, intentionally, or by lack of ordinary care cause[d] a third party to believe another [was] serving as [its] agent.” Dahl v. Sittner, 429 N.W.2d 458, 462 (S.D.1988); SDCL 59-1-5 (defining ostensible agency). Bordeaux directs us to the allegations contained within three affidavits, the sole support Bordeaux submitted in opposition to summary judgment. She presents the following claims. First, Red Cloud distributed permission slips to the students but never collected them. Second, Red Cloud drove a School District owned vehicle to the tournament. Third, she told Bordeaux she would drive the students home after the tournament. Fourth, G.B.F. asked Red Cloud for permission before leaving the Hall for Big Bat’s. Fifth and last, Will Peters stated it was his “assumption that who ever brought the'schools’ teams was responsible for them.”

[¶ 18.] As the nonmoving party, Bordeaux is entitled to have her factual assertions accepted as true, along with all their reasonable inferences. But, for two reasons, we decline to attach the same significance that Bordeaux assigns to her allegation that Red Cloud distributed “activity attendance permission slips to” student members of the school team. First, the only support for this assertion is Bordeaux’s statement itself. Red Cloud only conceded that she passed out a flyer. And, the tournament coordinator, Will Peters, corroborates that he distributed flyers to the schools. No permission slip was placed before the court and the record contains no reference to its terms. We have no idea whether this was a school form or a tournament form or what conditions it might have held with respect to student participation. Second, Bordeaux concedes that Red Cloud never collected these “permission slips.” Thus, even if they were distributed for some school purpose, there is no evidence that the purpose was consummated. Moreover, there is no allegation, much less evidence, that any other parent signed these permission slips for the tournament.

[¶ 19.] While it is undisputed that G.B.F. was brought to Billy Mills Hall by Bordeaux, Bordeaux insists that Red Cloud’s statement that she would drive G.B.F. home afterwards was proof that Red Cloud was acting on behalf of the School District and that Red Cloud, on behalf of the School District, assumed a duty to supervise G.B.F. during the tournament. Bordeaux next argues that because Red Cloud drove a School District vehicle, the existence of a duty is proven because Red Cloud is a School District employee and the Hand Game coach. However, the allegations establishing an agency relationship “must be traceable to the principal and cannot be established solely by the acts, declarations or conduct of an agent.” See Kasselder v. Kapperman, 316 N.W.2d 628, 630 (S.D.1982). In addition, purely because an agency relationship exists between Red Cloud and the School District, does not mean that it can be assumed that an agency relationship exists at all times.

[¶ 20.] The only factual allegation in the record connecting the School District to the event is that Red Cloud drove a School District vehicle to the tournament. As we explained earlier, there are four elements Bordeaux is required to prove before the School District can be held liable for negligence. And based on the record, even if we assume that Red Cloud gave G.B.F. permission to cross the street and told Bordeaux she would drive G.B.F. home, we cannot infer that the School District accepted a duty (through Red Cloud) to control and supervise G.B.F. at the tournament. “A duty will not spring up at the mere behest of those with grievances.... ” Fisher, 2002 SD 30, ¶ 6, 641 N.W.2d at 125.

[¶ 21.] We conclude that there was an insufficient nexus between Red Cloud’s activities and the School District to show that the School District, as alleged by Bordeaux, “sanctioned” the tournament and accepted the “care, custody, and control” of its student Hand Game players. These students were participating in a privately sponsored tournament on a Saturday in a public building not owned or operated by the School District. Bordeaux had the burden to present enough evidence in opposition to the motion for summary judgment to raise a question of material fact. This she has failed to do. Accordingly, we hold that Bordeaux’s allegations, without further support, were insufficient to establish a dispute of a material fact, and, therefore, summary judgment was properly granted.

[f 22.] Affirmed.

[IT 23.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . The Hand Game is a Native American guessing game played to singing and drumming and usually played by teams. Stewart Culin, Games of the North American Indian (Dover Publications, 1975).

      . The School District filed affidavits from the superintendent of Shannon County Schools, the assistant principal at Wolf Creek, and Red Cloud along with a copy of the tournament flyer and a statement of the incident from Red Cloud to the superintendent. In response, Bordeaux submitted her affidavit, along with affidavits from G.B.F., and Will Peters.

      . SDCL 15 — 6—56(f) provides:
      Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

      . In her appellate brief, Bordeaux states that at the tournament Red Cloud "assisted, coached, and supervised the children comprising the team from her Wolf Creek class." No affidavit in the record supports this assertion.


author: LAVORATO, Chief Justice. CARTER, Justice LARSON, Justice

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Michael L. ZENOR, Respondent.
    No. 05-0737.
    Supreme Court of Iowa.
    Dec. 16, 2005.

      Charles L. Harrington and Teresa A. Yens, Des Moines, for complainant.
    Mark McCormick of, Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for respondent.
   LAVORATO, Chief Justice.

This attorney disciplinary proceeding involves the conduct of Michael L. Zenor in his role as county attorney of Clay County. The allegations of misconduct fall into three main categories: causing charges to be instituted without probable cause, engaging in the defense of persons in criminal matters, and prosecuting persons who were his clients. Thé Iowa Supreme Court Board of Professional Ethics and Conduct, now the Iowa Supreme Court Attorney Disciplinary Board, filed the complaint alleging these matters in four counts. Later, by amendment, the Board added an additional matter to the fourth count.

Following a hearing, the Grievance Commission of the Iowa Supreme Court dismissed the count alleging that Zenor caused charges to be instituted without probable cause. However, the Commission found that the Board had sustained its burden of proof regarding its allegations that Zenor engaged in the defense of persons in criminal matters and that he had prosecuted persons who were his clients. The Commission recommended that Zenor receive a public reprimand.

On our de novo review, we find that the Board has proved all four counts of its. amended complaint. Contrary to the Commission’s recommendation, we think the misconduct as proven warrants suspension of Zenor’s license to practice law in this state for four months.

I. Scope of Review.

Although neither party appealed, we ordered the parties to file briefs addressing all counts. Zenor contends we are without authority to review the one count that the Commission dismissed. We rejected a similar contention in Iowa Supreme Court Attorney Disciplinary Board v. Howe, 706 N.W.2d 360, 367 (Iowa 2005). We therefore conclude we do have such authority.

Our review is de novo. See Iowa Ct. R. 35.10(1). Under this review, we give respectful consideration to the Commission’s recommendation. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Shinkle, 698 N.W.2d 316, 318 (Iowa 2005). However, “we ultimately decide what discipline is appropriate under the unique facts of each case.” Id. Accordingly, we may impose a lesser or greater sanction than the discipline the Commission recommends. Id.

“The Board has the burden to prove its allegations of lawyer misconduct by a convincing preponderance of the evidence.” Id. “‘This burden of proof is greater than that in a civil case but less than that in a criminal case.’ ” Id. (citation omitted).

II. Background Facts.

Zenor was admitted to the practice of law in the State of Iowa in 1975. He was a sole practitioner in Spencer, Iowa from 1975 to 1978. In 1978, he was elected Clay County Attorney. Following Zenor’s election, Pat Carr served as Zenor’s assistant county attorney and joined Zenor as a law partner in Zenor & Carr.

Zenor has been Clay County Attorney since 1978 and was still serving in that capacity at the time of the hearing on the complaint. Carr continued as both law firm partner and assistant county attorney from 1978 until his appointment to the bench in 1995.

Mike Houchins and Chuck Borth presently serve as Zenor’s assistant county attorneys. Houchins and Borth are .also partners in the firm of Zenor, Houchins & Borth.

The positions of Clay County Attorney and assistants have always been salaried and part-time. They are allowed under the law to engage in the private practice of law. See Iowa Code §§ 331.751(1) (“A full-time county attorney shall refrain from the private practice of law.” (Emphasis added.)), 331.757 (“A. full-time prosecutor shall refrain from the private practice of law.” (Emphasis added.)) (2005).

Since his election in 1978, Zenor has handled cases ranging from simple misdemeanor traffic tickets to trials of class “A” felonies. In addition to his duties as criminal prosecutor, Zenor has advised and represented Clay County on civil matters. Since Houchins and Borth became Zenor’s assistant county attorneys, Zenor has concentrated on the county’s civil work. During that time, Houchins and Borth have done most of the work in magistrate court. Presently, Zenor spends approximately thirty percent of his time on Clay County matters and the rest of his time he spends on private practice matters.

III. Instituting Charges Without Probable Cause.

In count I, the Board alleged, among other things, the following. While acting as Clay County Attorney, Zenor had the authority to enter into plea agreements and amend traffic citations. On numerous occasions, in connection with plea agreements, Zenor amended traffic citations to cowl-lamp violations pursuant to Iowa Code section 321.406. It was obvious to Zenor that the cowl-lamp violations were not supported by probable cause.

The Board alleged this conduct violated several provisions of the Iowa Code of Professional Responsibility for Lawyers. These provisions included DR 7-102(A)(2) (lawyer shall not “[k]nowingly advance a claim or defense that is unwarranted under existing law”), (5) (lawyer shall not “[k]nowingly make a false statement of law or fact”), (6) (lawyer shall not “[p]artici-pate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false”), (7) (lawyer shall not “[c]ounsel or assist a client in conduct that the lawyer knows to be illegal or fraudulent”); DR 7-103(A) (“A public prosecutor ... shall not institute or cause to be instituted criminal charges when the lawyer knows or it is obvious that the charges are not supported by probable cause.”); and DR 1-102(A)(1) (lawyer shall not “[vjiolate a disciplinary rule”), (4) (lawyer shall not “[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation”), (5) (lawyer shall not “[e]ngage in conduct that is prejudicial to the administration of justice”).

Between January 1998 and February 10, 2004, the Clay County Attorney’s office participated in the process of amending 168 charges to cowl-lamp violations. Zenor himself participated in the process of amending at least ten of these charges to cowl-lamp violations. During all this time, Zenor was aware that motor vehicles were no longer equipped with cowl lamps. Zenor admitted he had no probable cause to believe the cowl-lamp-violation had occurred. “Probable cause for a criminal charge means that the circumstances would support a belief by a reasonable person that the defendant committed the crime with which [the defendant] is charged.” Howe, 706 N.W.2d at 368. Zenor also admitted that he knew his assistants were participating in the practice of amending charges to cowl-lamp violations but he did nothing to stop the practice.

In his brief to this court, Zenor attempts to explain away the probable cause violation on a number of grounds. For example, when he became county attorney he was aware of a common practice in Clay County for prosecutors to use the cowl-lamp statute as a basis for reducing a simple misdemeanor moving traffic violation to a non-moving violation pursuant to a plea agreement. He continued this practice in exceptional cases but only with the complete concurrence of the arresting officer and the court. He considered amending a charge to be an exercise of prosecu-torial discretion to accomplish justice in cases in which mitigating circumstances exist. Everyone involved in the plea bargain, including then Magistrate Nancy Whittenburg (now district judge), understood that the cowl-lamp charge lacked a factual basis, but no one believed that a factual basis was required. No one was misled.

We rejected all of these explanations and contentions in Howe, a case involving similar facts but involving a city attorney rather than a county attorney. 706 N.W.2d at 366-71. Bradley Howe, a part-time city attorney for the city of Spencer, Iowa, admitted that from January 1998 through February 2004, he successfully moved then Magistrate Whittenburg to amend 174 citations that originally charged violations of a city ordinance to allege violations of the cowl-lamp statute. Id. at 367. Howe also admitted he knew at the time that there was no probable cause to believe the defendants in those 174 cases had violated the cowl-lamp statute. Id.

We concluded in Howe that DR 7-103(A) contains no exceptions to the probable cause requirement for charges resulting from plea bargains. We insisted that this ethical provision “means what it says: prosecutors cannot ethically file charges they know lack probable cause.” Id. at 371.

Concluding that Howe violated DR 7-103(A), we said:

[Howe’s] ethical duty [not to institute charges lacking probable cause] is not affected by the requirements for a guilty plea to a simple misdemeanor. Nor does the informed and willing participation of the police officers, the defendants, and the magistrate in the plea bargains at issue here excuse the respondent’s violations.

Id. Likewise here, we conclude Zenor’s conduct constituted a violation of DR 7-103(A), prohibiting a prosecutor from “in-stitut[ing] or causing] to be instituted criminal charges when the lawyer knows or it is obvious that the charges are not supported by probable cause.” DR 7-103(A).

IV. Engaging in the Defense of Persons in Criminal Matters and Prosecuting Persons Who Were Clients.

A. Butler representation. In count II, the Board alleged that Zenor prosecuted a speeding case against Robert Merrell Butler while representing Butler on the same speeding case and on a divorce case in another county.

The Board alleged this conduct violated several provisions of the Iowa Code of Professional Responsibility. These included DR 8-101(B) (“County attorneys and assistant county attorneys shall not engage in the defense of an accused in any criminal matter during the time they are holding this public office.”); DR 5-101(A) (“Except with the consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of the lawyer’s professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests.”); DR 5-105(B) (“A lawyer shall decline proffered employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment....”), (C) (“A lawyer shall not continue multiple employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the representation of another client....”); DR 9-101(B) (“A lawyer shall not accept private employment in a matter in which the lawyer had substantial responsibility while a public employee.”); and DR 1-102(A)(1), (5).

In early 2000 Butler came to Zenor for legal services concerning Butler’s divorce case. It was a long and difficult case that was dismissed at one point and refiled later. At the time of the hearing before the Commission, a modification was pending in the divorce case. Zenor worked on matters in the divorce case as they arose and billed Butler for the work.

In 2002 Butler was charged with a federal firearms charge. Another attorney represented Butler on this charge. However, Zenor did some research on the case and billed Butler for the work.

In November 2002 the State filed a bad check charge against Butler in Jefferson County, Iowa. On Butler’s behalf, Zenor called the prosecutor on the case to inquire about that office’s standard deal for this type of charge and relayed this information to Butler.

In November 2002 Butler was charged in Clay County with speeding. The Clay County Attorney’s office prosecuted the charge. On December 9, 2002, Zenor had a meeting with Dean Jalas, the state trooper who ticketed Butler. Zenor billed Butler for this meeting, but testified he later refunded the money.

On December 11, 2002, Zenor entered a not guilty plea on Butler’s behalf on the Clay County charge. On March 6, 2003, Butler pleaded guilty to an amended charge of cowl-lamp violation. Zenor testified that he was at a meeting in Minnesota on that date and did not appear in court.

On March 17, 2003, Zenor wrote a letter to the Iowa Department of Transportation (IDOT) on behalf of Butler, appealing the suspension of Butler’s driver’s license. Later, Zenor withdrew the request for a contested hearing concerning the suspension.

From early 2003 through August 2004, Zenor provided legal assistance to Butler on various charged violations of the Iowa Department of Natural Resources rules. Butler was billed for the time Zenor worked on the charges.

The Commission found that Zenor violated DR 8 — 101(B); DR 9-101(B); DR 5-101(A); DR 5-105(B, C); and DR 1-102(A)(1), (5). For reasons that follow we agree.

Zenor’s representation of Butler while Zenor prosecuted Butler’s speeding ticket violated DR 8-101(B), which prohibits a county attorney from engaging in the defense of an accused in any criminal matter. Zenor met with the ticketing officer, presumably to get the officer’s agreement to amend the speeding charge to a cowl-lamp violation. Thereafter Zenor entered a not guilty plea for Butler. Later, Zenor involved himself in the process of amending the speeding charge to a cowl-lamp violation. The fact that Zenor refunded money to Butler for the meeting with the officer fails to convince us that Zenor did not represent Butler on the speeding charge.

Additionally, Zenor’s participation in both the prosecution and defense of the speeding ticket is a violation of DR 5-105(B), which requires a lawyer to decline proffered employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of proffered employment and DR 5-105(C), which prohibits a lawyer from continuing multiple employment if the exercise of professional independent judgment on behalf of a client will be or is likely to be adversely affected by the representation of another client. Zenor could not have rendered independent professional judgment on behalf .of either client when representing opposing sides with opposing interests. See Howe, 706 N.W.2d at 373 (finding that city attorney violated DR 5-105(B) by prosecuting defendant on city charges while at the same time he was seeking to have the identical charges dismissed bn behalf of defendant).

Canon 5 of the Code of Professional Responsibility concerns a lawyer’s duty to exercise independent professional judgment on behalf of a client and states in part:

The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties. Neither personal interests, the interests of other clients, nor the desires of third persons should he permitted to dilute a lawyer’s loyalty to a client.

EC 5-1 (emphasis added). Even though the ethical considerations are aspirational and not mandatory, Comm. on Prof'l Ethics & Conduct v. Carty, 515 N.W.2d 32, 34-35 (Iowa 1994), Canon 5 does get to the heart of conflict-of-interests violations. It is inconceivable to us that in representing both the State and the criminal defendant on the same charge that one could be “free of compromising influences and loyalties,” EC 5-1. Nor does it seem possible that in engaging in this practice that the “interests of other clients,” EC 5-1, would not influence the attorney.

“The principle underlying Ethical Canon 5 is that a lawyer should not represent parties with differing interests.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 726 (Iowa 1999). “Differing interests” is defined as “includfing] every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.” Iowa Code of Profl Responsibility for Lawyers, Definition 2. “Furthermore, the mere possibility of an adverse effect upon the exercise of free judgment prevents a lawyer from representing clients with opposing interests.” Wagner, 599 N.W.2d at 726. Zenor’s clients' — the State and Butler — had differing interests and undertaking representation of both at the same time did more than raise “the mere possibility of an adverse effect upon the exercise of free judgment.” Id.

This conduct clearly prejudices the administration of justice in violation of DR 1-102(A)(5). On this point we said in Howe:

Although “there is no typical form of conduct that prejudices the administration of justice,” actions that have commonly been held to violate this disciplinary rule have hampered “the efficient and proper operation of the courts or of ancillary systems upon which the courts rely....” [S]ome conflict-of-interest rules protect not only the rights of clients, but also “the integrity of the legal system.” ... “[T]he tribunal has an interest in basing its decisionmaking on a full and vigorous presentation of the competing positions.” Similarly, “society as a whole has a right to expect that the system not be tainted by resort to hidden and conflicting agendas.”

706 N.W.2d at 373 (citations omitted). As in Howe, we think the conflict of interest in this case is of the type that adversely affects the administration of justice and erodes the integrity of the legal system.

Zenor’s later representation of Butler before the IDOT violated DR 9-101(B), which prohibits a lawyer from accepting “private employment in a matter in which the lawyer had substantial responsibility while a public employee.” DR 9-101(B). In Howe, city attorney Howe successfully aided a defendant in having the defendant’s conviction for a city traffic offense rescinded by then Magistrate Whittenburg. 706 N.W.2d at 372. The magistrate also granted the attorney’s motion to order the IDOT to expunge any record of the conviction. Id. Later, the IDOT issued the defendant a notice of suspension as a result of his initial conviction. Id. Howe wrote to the IDOT in an effort to save the defendant’s driving privileges. Id. at 372-73 We found that Howe’s representation on the defendant’s administrative suspension violated DR 9-101(B). Id. at 374.

Acknowledging that the interests of the city and the defendant were not adverse when Howe contacted the IDOT, we nevertheless recognized that there are special considerations that preclude a government lawyer from accepting successive employment on substantially related matters. .Id. We noted that this type of conflict has been explained as follows:

“[T]he rationale for disqualification is rooted in a concern with the impact that any other rule would have upon the decisions and actions' taken by the government lawyer during the course of the earlier representation of the government. Both courts and commentators have expressed the fear that permitting a lawyer to take action in behalf of a government client that later could be to the advantage of a private practice client would present grave dangers that a government lawyer’s largely discretionary actions would be wrongly influenced by the temptation to secure private practice employment or to favor parties who might later become private practice clients....
The fear that government lawyers will misuse government power in that way is not idle. Lawyers who represent the government often exercise enormous discretion unchecked by an actual client who oversees the lawyer’s work. For that reason a special rule is needed to remove the incentive for government lawyers to take discretionary decisions with an eye cast toward advantages in future, nongovernmental employment.”

Id. (alteration and omission in original) (quoting Charles W. Wolfram, Modem Legal Ethics § 8.10.1, at 458 (practitioner’s ed. 1986)). We further noted that Howe’s action in representing the defendant before the IDOT was a good example of the type of situation the rule seeks to avoid. Id. We can say the same here.

Moreover, three of the six convictions for traffic offenses upon which the IDOT based its designation of Butler as a habitual offender pursuant to Iowa Code section 321.555 occurred in Clay County while Ze-nor was county attorney. Therefore, Ze-nor, as Clay County Attorney, had substantial responsibility for the prosecution of those three offenses. The validity of the administrative suspension was directly related to the outcome of the prosecution of those offenses. Based on these facts, Zenor should not have accepted private employment concerning Butler’s administrative suspension.

Such conduct also violates DR 1-102(A)(5), which prohibits a lawyer from engaging in conduct prejudicial to the administration of justice. As mentioned, the conflict-of-interest rules we have discussed protect not only the rights of clients, but also the integrity of the legal system. See Howe, 706 N.W.2d at 373. Because of these violations, Zenor also violated DR 1-102(A)(1), which prohibits a lawyer from violating a disciplinary rule.

B. Depew representation. In count III, the Board alleged that Zenor represented Kenneth Depew on a traffic charge brought by Bradley Howe, the Spencer City Attorney. The traffic charge concerned Depew’s alleged violation of conditions concerning a graduated driver’s license. The Board also alleged that Zenor appealed the IDOT suspension of Depew’s license. Additionally, the Board alleged that Zenor later prosecuted a Clay County speeding ticket against Depew and ultimately was involved in the process of amending the speeding charge to a cowl-lamp violation.

The Board alleged this conduct violated DR 8 — 101(B); DR 5-101(A); DR 5-105(B)-(C); DR 9-101(B); and DR 1-102(A)(1), (5).

On March 9, 2003, a Spencer city police officer charged Depew with violation of the conditions of a graduated driver’s license. Howe, the Spencer city attorney, prosecuted this charge to which Depew entered a pro se guilty plea. The IDOT then notified Depew that his license would be suspended. Upon receiving this notice, De-pew sought Zenor’s assistance. Zenor represented Depew in an administrative appeal from the proposed suspension.

Zenor contacted Howe and the arresting officer, who agreed to set aside the conviction to allow Depew to plead guilty to a non-moving violation. Zenor prepared the motion to set aside the conviction and a letter explaining the sequence of events, both of which he sent to Magistrate Whit-tenburg. The magistrate entered an order setting aside the conviction and found De-pew guilty of a city cowl-lamp violation.

On June 30, 2003, a Clay County deputy sheriff charged Depew with speeding. The Clay County Attorney’s office was responsible for the prosecution of that charge.

On July 16, 2003, Zenor wrote to the magistrate stating that the ticketing officer suggested to Depew to go to the county attorney’s office and that the officer was agreeable to amending the charge to a non-moving violation. Zenor also stated in the letter that he wished to avoid the appearance of a conflict, in light of the fact that he had done legal work for Depew and Depew’s father, but stated that he was following standard office policy on this charge. In the letter, Zenor moved to reduce the charge to a cowl-lamp violation and enclosed a proposed order. The magistrate granted the motion and entered a conviction of a cowl-lamp violation.

Zenor charged Depew and was paid for the work on the first ticket and the administrative appeal. Zenor also charged and was paid for meeting with Depew on the second ticket but testified he refunded that money.

The Commission found that the Board had proven all of its alleged violations concerning Depew. We agree and adopt this finding. The Board made the same allegations concerning Butler. The facts concerning those violations do not differ in principle in any material respects from the facts concerning the violations involving Depew. What we said regarding the Butler matter applies with equal force here.

C. Stevenson and Zenor representation. In count IV, the Board alleged that Zenor engaged in criminal defense work while serving as a prosecutor. The Board cited two separate cases. One involved William Reed Stevenson and the other involved Zenor’s son, Michael Benjamin Zenor. The Stevenson matter was added in an amended complaint.

The Board alleged Zenor’s conduct concerning his representation of Stevenson and Michael Benjamin Zenor violated DR 8-101(B) and DR 1-102(A)(1), (5).

On January 13, 1998, a Spencer city police officer charged Stevenson with failure to yield on a left turn in Spencer, Clay County, Iowa. As city attorney, Howe prosecuted this charge, and Zenor negotiated a plea agreement with him, which resulted in a cowl-lamp violation.

On May 4, 1998, a Spencer city police officer charged Zenor’s son, Michael Benjamin, with speeding in Spencer, Clay County, Iowa. As city attorney, Howe also prosecuted this charge. Zenor asked Howe to move to amend the speeding charge to a cowl-lamp violation. Howe wrote to Magistrate Whittenburg, stating that the charging officer and Mike Zenor had reached a plea agreement concerning the ticket issued to Zenor’s son. Zenor conceded at the disciplinary hearing that he indeed represented his son in the case.

The Commission found that regarding both cases Zenor violated DR 8 — 101(B) and DR 1 — 102(A)(1), (5). We agree and adopt this finding.

The evidence clearly demonstrates that Zenor engaged in the representation of criminal defendants while he was the Clay County Attorney. His actions violated DR 8-101(B), which prohibits county attorneys from engaging in the defense of defendants in criminal matters during the time such attorneys are holding the public office of county attorney. Given this violation, such conduct also violated DR 1-102(A)(Í), which prohibits a lawyer from violating a disciplinary rule. Additionally, Zenor’s conduct violated DR 1 — 102(A)(5), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. As mentioned, a county attorney engaging in criminal defense work prejudices the administration of justice. See Howe, 706 N.W.2d at 372, 375 (concluding that city attorney’s representation of criminal defendants prosecuted by county attorney violated DR 1-102(A)(5)).

V. Discipline.

In determining the appropriate sanction, we consider ‘the respondent’s fitness to continue in the practice of law, deterrence of others from similar conduct, and assurance to the public that the courts will maintain the ethics of the profession.’ ” Shinkle, 698 N.W.2d at 324 (citation omitted) (internal quotation marks omitted). The nature of the alleged violations and protection of the public are additional considerations. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Tofflemire, 689 N.W.2d 83, 92 (Iowa 2004). We also consider aggravating and mitigating circumstances. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 164 (Iowa 2003).

Attorney discipline is

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

Comm. on Prof'l Ethics & Conduct v. Vesole, 400 N.W.2d 591, 593 (Iowa 1987) (citation omitted).

While there is no standard discipline imposed for particular instances of attorney misconduct, reference to similar cases provides guidance. See Howe, 706 N.W.2d at 381. Because Howe is so similar in the nature of the violations and the mitigating and aggravating circumstances, we think Howe weighs heavily in the type and duration of discipline that is warranted here.

Howe and Zenor both violated DR 7-103(A) by charging individuals with cowl-lamp violations when there was no probable cause to do so. Both simultaneously prosecuted and defended the same charge in violation of DR 5-105(B), which requires a lawyer to decline proffered employment if independent judgment will be or is likely to be adversely affected by accepting the proffered employment. Both also violated DR 1-102(A)(5), which prohibits a lawyer from engaging in conduct prejudicial to the administration of justice. Both represented clients in administrative matters following the attorneys’ prosécution of the clients for the very offense triggering agency involvement. This conduct we found to be in violation of DR 9-101(B) (lawyer should not accept private employment in a matter in which the lawyer had substantial responsibility while a public employee) and in violation of DR 1-102(A)(5), which prohibits a lawyer from engaging in conduct prejudicial to the administration of justice.

Zenor engaged in criminal defense work while serving as county attorney in violation of DR 8-101(B). Howe did not violate this provision because Howe was a city attorney and DR 8-101(B) applies only to county attorneys and assistant county attorneys. That is not to say, however, that Howe was allowed to engage in criminal defense work under all circumstances. As we held in Howe, there is still the prohibition of DR 9-101(B), which prohibits a lawyer from accepting private employment in a matter in which the lawyer had substantial responsibility while a public employee, a provision we found that Howe had violated. See Howe, 706 N.W.2d at 374-75.

Finally, both attorneys violated DR 1-102(A)(1), which prohibits a lawyer from violating a disciplinary rule.

As mentioned, mitigating circumstances in both cases are similar. Neither Howe nor Zenor have been previously disciplined. See id. at 366, 379. Moreover, in both cases witnesses testified to their honesty and reputation for being hard-working, trustworthy, forthright, and fair. See id. at 366.

Like Howe, we think Zenor’s unethical conduct resulted from “his desire to facilitate the disposition of criminal cases to the mutual satisfaction of the defendant and the police officers, and was not done with the thought that he was manipulating the criminal process or would obtain any personal financial benefit.” Id. at 380.

As in Howe, we have considered the fact that Zenor is not the only county attorney who has plea-bargained traffic citations down to cowl-lamp violations. See id. But as we did in Howe, we do not consider that fact to be a mitigating circumstance. See id. We do, however, as we did in Howe, consider the fact that we have never before given any guidance on the limitations placed on plea-bargained charges by DR 7-103(A). If this were the only ethical infraction, we might consider a public reprimand a sufficient sanction. See id. But as in Howe, this regrettably is not the case because like Howe, Zenor has committed serious conflict-of-interest violations that alone warrant suspension. See id. at 381.

There are similar aggravating circumstances supporting this sanction. Both have lengthy service as prosecutors. Howe has served as a prosecutor since 1976, see id. at 366, 380, while Zenor has served as a prosecutor since 1978. Both should have “known better than to serve clients with divided loyalties.” Id. at 381. Moreover, in neither case was the unethical conduct an isolated event. See id.

In Howe, we recognized that “[although there are no established rules for the duration of a suspension imposed for conflict-of-interest violations, we strive to be consistent from one case to another, despite the factual distinctions that make each case unique.” Id. We cited a number of disciplinary cases involving conflict-of-interest violations. See id. We noted that dispositions in those cases ranged from a public reprimand to a one-year suspension, “depending on the pervasiveness of the prohibited conduct, the existence of other ethical violations, and the presence of mitigating or aggravating factors.” Id. We concluded that “the pervasiveness of the misconduct [in Howe’s] case and the prejudicial impact it has on the bar and the criminal justice system call for a longer period of suspension than the three-month suspension ordered in most of the cited cases.” Id. at 382. We therefore suspended Howe’s license to practice law in this state indefinitely with no possibility of reinstatement for a period of four months from the date of the opinion. Id.

For the same reasons, we conclude Ze-nor’s misconduct calls for the same period of suspension. We therefore suspend Ze-nor’s license to practice law in this state indefinitely with no possibility of reinstatement for a period of four months from the date of the filing of this opinion. This suspension applies to all facets of the practice of law. See Iowa Ct. R. 35.12(3). Upon application for reinstatement, Zenor shall have the burden to establish that he has not practiced law during the period of suspension and that he meets all requirements of Iowa Court Rule 35.13. The costs of this proceeding are taxed to Ze-nor. See Iowa Ct. R. 35.25.

LICENSE SUSPENDED.

All justices concur except CARTER, J., who concurs specially, LARSON, J., who dissents, and STREIT and WIGGINS, JJ., who take no part.

CARTER, Justice

(concurring specially).

Notwithstanding Iowa Ethics Opinion No. 87-13 (February 12, 1988), I am not convinced that discipline should be imposed on the basis of a prosecutor’s acceptance of misdemeanor guilty pleas to equipment violations that had not occurred where the alleged offenders agreed to that disposition.

I am satisfied, however, that the other charges against Zenor that were sustained are serious enough to warrant the discipline being imposed by the court.

LARSON, Justice

(dissenting).

I dissent from Division III of the majority opinion for the reasons set out in my dissent in Iowa Supreme Court Attorney Disciplinary Board v. Howe, 706 N.W.2d 360 (Iowa 2005).


author: HALBROOKS, Judge.

text:
    In the Matter of an INVESTIGATION INTO the COMMISSION’S JURISDICTION OVER the CITY OF HUTCHINSON’S INTRASTATE NATURAL GAS PIPELINE Pursuant to Minn.Stat. § 216B.045.
    Nos. A04-2342, A04-2414.
    Court of Appeals of Minnesota.
    Dec. 27, 2005.

      Gary A. Van Cleve, Molly McKee, Lar-kin Hoffman Daly & Lindgren, Ltd., Bloomington, MN, for relator Hutchinson Utilities Commission.
    Kathleen M. Brennan, Andrew J. Shea, McGrann Shea Anderson Carnival Straughn & Lamb, Minneapolis, MN, for relator Minnesota Municipal Utilities Association.
    Mike Hatch, Attorney General, Kari Valley Zipko, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Public Utilities Commission.
    Hugh T. Nierengarten, Nierengarten & Hippert, Ltd., New Ulm, MN, for amicus curiae City of New Ulm.
    Susan L. Naughton, League of Minnesota Cities, St. Paul, MN, for amicus curiae League of Minnesota Cities.
    Considered and decided by STONEBURNER, Presiding Judge; PETERSON, Judge; and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Relators Hutchinson Utilities Commission (HUC), a municipal utility, and Minnesota Municipal Utilities Association (MMUA), a nonprofit corporation that provides services and assistance to Minnesota cities engaged in utility enterprises, challenge the exercise of jurisdiction by respondent Minnesota Public Utilities Commission (MPUC) over a pipeline owned by the City of Hutchinson on the ground that it exceeds the statutory mandate of the MPUC. Alternatively, relators challenge the MPUC’s exercise of jurisdiction as arbitrary and capricious. Because we find that the MPUC exceeded its statutory mandate, we reverse without reaching re-lators’ alternative argument.

FACTS

This case concerns the regulation of an 89-mile underground natural-gas pipeline that runs from Trimont to Hutchinson and transports natural gas to the City of New Ulm, New Ulm’s electric-generating facilities, the City of Hutchinson, and HUC’s electric-generating facilities. Beginning in 1960, HUC contracted with Northern Natural Gas Company (Northern) for its natural-gas supply. But in 2001, Northern offered HUC insufficient natural-gas capacity. Because of the energy shortfall, HUC decided to build its own pipeline. Construction of a natural-gas pipeline involves oversight by the MPUC. See Minn. Stat. § 216B.243, subd. 2 (2004) (requiring that a certificate of need be filed with the MPUC before siting or construction of any “large energy facility”).

HUC applied for and was granted a Certificate of Need from the MPUC on December 13, 2002. At that time, the MPUC concluded that it need not decide whether the pipeline would be subject to regulation under Minn.Stat. § 216B.045 (2004).

On January 28, 2004, Northern, now a competitor of HUC, submitted a letter to the MPUC requesting that the commission address the jurisdictional issues deferred in the certificate-of-need decision and investigate to determine whether HUC’s pipeline services complied with Minn.Stat. § 216B.045. On March 23, 2004, the MPUC held an initial hearing but ultimately deferred the matter and ordered additional briefing.

The next hearing occurred on August 19, 2004. At that time, the MPUC considered whether it had jurisdiction and, if so, whether it should regulate HUC’s pipeline under section 216B.045. In an order issued September 15, 2004, the MPUC determined that the HUC’s pipeline meets the statutory definition of an intrastate natural-gas pipeline under Minn.Stat. § 216B.045, subd. 1, and that MPUC had jurisdiction over HUC’s pipeline.

HUC, MMUA, and the City of New Ulm petitioned the MPUC for reconsideration, but the MPUC denied reconsideration. HUC and MMUA thereafter filed petitions for writ of certiorari with this court, seeking review of the MPUC’s decision.

ISSUE

Did the MPUC exceed its statutory mandate by exercising jurisdiction over HUC’s pipeline?

ANALYSIS

Whether an agency has jurisdiction over a matter is a legal question, and thus a reviewing court need not defer to agency expertise on the issue. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Statutory construction is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

Minn.Stat. § 14.69 (2004) outlines the scope of judicial review of an agency decision:

In a judicial review under sections 14.63 to 14.68, the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary and capricious.

On appeal from an agency decision, the party seeking review bears the burden of proving that the agency’s conclusions violate one or more provisions of Minn.Stat. § 14.69. Markwardt v. State, Water Resources Bd., 254 N.W.2d 371, 374 (Minn.1977). Minn.Stat. § 216B.52, snbd. 1 (2004), provides that an appeal from a decision and order of the MPUC may be commenced according to the Administrative Procedure Act.

As a creature of statute, the MPUC enjoys only the authority granted to it by the legislature. Minnegasco v. Minn. Pub. Utils. Comm’n, 549 N.W.2d 904, 907 (Minn.1996); Frost-Benco Elec. Ass'n 358 N.W.2d at 642; see also Great N. Ry. v. Pub. Serv. Comm’n, 284 Minn. 217, 220-21, 169 N.W.2d 732, 735 (1969) (applying same principle in case involving the interstate commerce commission). That authority may be either express or implied. “While express statutory authority need not be given a cramped redding, any enlargement of express powers by implication must be fairly drawn and fairly evident from the agency objectives and powers expressly given by the legislature.” Peoples Natural Gas Co. v. Pub. Utils. Comm’n, 369 N.W.2d 530, 534 (Minn.1985) (holding that the commission lacked express or implied authority to enforce its own orders by ordering a customer refund; noting that other enforcement tools were available in the statutes).

Here, HUC and MMUA argue that the MPUC exceeded its statutory authority when it asserted jurisdiction over HUC’s pipeline. MPUC asserted jurisdiction pursuant to MinmStat. § 216B.045, subd. 3 (2004), which provides: “Every owner or operator of an intrastate pipeline shall offer intrastate pipeline transportation services by contract on an open access, nondiscriminatory basis.”

MPUC noted in its order that jurisdiction was proper because (1) the pipeline meets the definition of an “intrastate pipeline” under the statute; (2) the statute gives jurisdiction over “every owner or operator” and HUC is an “owner or operator” of a pipeline; (3) the only owners excluded from regulation under Minn.Stat. § 216B.045 (2004) are “public utilities” and HUC does not meet the definition of a “public utility”; and (4) section 216B.045 provides for broad oversight and regulation by the commission over contracts governing services provided by intrastate pipelines and a forum for consumer complaints. See Minn.Stat. § 216B.045, subds. 3, 4, 5.

But in the first section of the statutory scheme on public utilities, the legislature expressly excluded municipal utilities, of which HUC is one, from most of the regulatory scheme: “Because municipal utilities are presently effectively regulated by the residents of the municipalities which own and operate them, ... it is deemed unnecessary to subject such utilities to regulation under this chapter except as specifically provided herein.” Minn.Stat. § 216B.01 (2004) (emphasis added).

The MPUC argues that it was proper to assert jurisdiction because HUC is an “owner” or “operator” within the meaning of MinmStat. § 216B.045, subd. 3, which requires “[ejvery owner or operator of an intrastate pipeline [to] offer intrastate pipeline transportation services by contract on an open access, nondiscriminatory basis.” And HUC also meets the definition of “person” under section 216B.045, subdivision 1, which regulates all “intrastate pipelines,” meaning any pipeline “wholly within the state of Minnesota which transports or delivers natural gas received from another person at a point inside ... the state, which is delivered ... within the state to another, provided that all the natural gas is consumed within the state.” MinmStat. § 216B.045, subd. 1. “Person” is defined by statute as, among other entities, a “corporation” which includes “a municipality, an association, a cooperative ... or any political subdivision or agency.” Minn.Stat. § 216B.02, subds. 2, 3 (2004).

We look to the language of chapter 216B to determine whether the MPUC properly asserted jurisdiction. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). “Every law shall be construed, if possible, to give effect to all its provisions.” Minn.Stat. § 645.16 (2004). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation omitted).

We conclude that the language of section 216B.01 is clear on its face. It mandates that municipal utilities are excepted from regulation under chapter 216B, “except as specifically provided herein.” Minn.Stat. § 216B.01. And' none of the provisions cited by respondent as bases for jurisdiction specifically provide for regulation of municipal utilities. See Minn.Stat. § 216B.045. In contrast, throughout chapter 216B, the legislature expressly provided for regulation of municipalities when it intended for them to be regulated. See, e.g., Minn.Stat. § 216B.025 (2004) (“A municipality may elect to become subject to regulation by the commission....”); Minn.Stat. § 216B.097 (2004) (authorizing a cold weather rule specifically for municipal utilities); Minn.Stat. § 216B.241, subd. 1b(a), (b) (2004) (“This subdivision applies to ... (3) a municipality with gross operating revenues in excess of $5,000,000 from sales of natural gas to retail customers.... Each ... municipality subject to this subdivision shall spend and invest for energy conservation improvements-”); Minn.Stat. § 216B.36 (2004) (“Notwithstanding the definition of ‘public utility’ in section 216B.02, subdivision 4, a municipality may require payment of a fee under this section by a cooperative electric association ... that furnishes utility services within the municipality.”). Therefore, we conclude that section 216B.045 cannot serve as a basis for jurisdiction over HUC’s pipeline because the provision does not specifically provide for regulation as required under section 216B.01.

Next, the MPUC argues that it was proper to assert jurisdiction because the purpose of section 216B.01 is not met in this case, given that HUC’s pipeline also serves New Ulm residents. The MPUC contends that because the New Ulm residents have no control over HUC by the opportunity to vote for HUC members, the HUC is not “effectively regulated” according the section 216B.01. We disagree. In this case, non-residents of Hutchinson do have a means to lodge complaints relating to HUC’s pipeline with the MPUC. See Minn.Stat. § 216B.045, subd. 5. Section 216B.045 provides a complaint mechanism for non-residents, and we conclude that this provision allows for effective regulation of HUC’s pipeline. And “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16.

Finally, although we do not inquire into public-policy concerns when a statute is unambiguous, we note that, here, the legislature’s expressed public policy is to allow local governments to regulate municipal utilities, see Minn.Stat. § 216B.01, and our result is consistent with that policy.

DECISION

Because the legislature mandated that municipalities are excluded from the regulatory scheme unless the statute expressly provides and Minn.Stat. § 216B.045 (2004) does not expressly provide for regulation of municipal utilities, MPUC exceeded its statutory authority by asserting jurisdiction over HUC’s pipeline. We, therefore, reverse the agency determination as provided under Minn.Stat. § 14.69 (2004).

Reversed.

      . After HUC applied for a Certificate of Need, as a "person” proposing to construct a "large energy facility,” Northern intervened and objected. MPUC determined that HUC’s proposed pipeline would meet the energy demands that could not be met more cost effectively by other measures. This court affirmed that decision. In re Application of Hutchinson for Certificate of Need, No. A03-99 (Minn.App. Sept.23, 2003).

      . HUC initially questioned Northern’s standing to bring a complaint under Minn.Stat. § 216B.045, subd. 5, which states that the parties entitled to complain are customers or persons seeking to become customers of an intrastate pipeline, the department, or the commission on its own motion. While HUC continues to believe that Northern was not a proper complainant, it concedes on appeal that the commission has, in essence, addressed the jurisdiction issue on its own motion. Therefore, this issue is before us.