(dissenting).
I vote to grant the petition to reinstate Reutter to the practice of law in this state.
Through testimony, affidavits of practicing attorneys, statements of community leaders, and expressions of law enforcement, Reutter has demonstrated by clear and convincing evidence that he has the moral qualifications, competency and learning in law required to practice law in South Dakota. In Finding of Fact XV of the Disciplinary Board, said Board conceded that Reutter demonstrated he had been an asset to his community and his employer for a period in excess of five years. This showing includes the mayor of the city he lives in, the local bank president, the chief of police, and business leaders in the general locale. There was no evidence presented to the Disciplinary Board to the contrary. Thus, the Conclusions of the Board are unsupported by the Findings of Fact. They must be by settled law in this state. Knodel v. Bd. of County Comm’rs, 269 N.W.2d 386 (S.D.1978); Kirkeby v. Renaas, 85 S.D. 515, 186 N.W.2d 513 (1971).
In 1985, I singularly dissented to the conviction of Reutter. State v. Reutter, 374 N.W.2d 617 (S.D.1985). In 1989, the Eighth Circuit Court of Appeals reversed the conviction. Reutter v. Solem, 888 F.2d 578 (8th Cir.1989). Attorney Reutter spent three and one-half (3½) years in the South Dakota State Penitentiary pending his appeal. By law, he suffered <?½ years of imprisonment for a criminal conviction which was reversed. As Mahatma Ghandi, the noted philosopher and religious leader of India declared: Life is pain. Never before, in the annals of South Dakota jurisprudence, has an attorney served time for three and one-half (3½) years as a prisoner behind bars for a criminal conviction only to learn that a federal court held that the South Dakota Supreme Court was wrong. In essence, Reutter was not given a fair jury trial; his rights were violated, nay, trampled upon, in that the prosecution committed a Brady violation and the prosecutor’s closing argument was “misleading and highly improper.” Reutter v. Solem at 582. If any impartial legal mind will *905read this case, it becomes very apparent that South Dakota’s prosecutors had soiled ethical hands. To win was their goal and a fair trial was cast to the winds. The Parole Board, which factored into Trygstad’s testimony to convict Reutter, was com-. prised of one of the prosecutors in the case.
We have more pain for Reutter, apparently to be suffered, for years hence. South Dakota is still punishing Reutter and this Court is its organ. With all my being, I loathe it and condemn the present judgment of this Court for its total unfairness. A reversal nullifies the original conviction. Yes, the slate is wiped clean! See Bullington v. Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270 (1981). This Court still does not get the message!
Reutter has redeemed himself in my book. Before the Disciplinary Board, he acknowledged the wrongfulness of using cocaine in the year 1982. Testifying before the Board, see Hearing Transcript pages 14, 17, 18, he characterized his usage as “terrible actions,” “it was wrong,” “I take total responsibility,” and on page 33 thereof, he expressed of his drug usage that it gave “a black eye to a professional organization.” Therefore, the Disciplinary Board’s finding that Reutter does not appreciate the wrongfulness of his drug usage is clearly erroneous. In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). It borders on being outrageous.
When this Justice requested counsel for the Disciplinary Board at the petition hearing in our Court Room to answer “What turned the Board off [on Reutter],” counsel replied: “They didn’t think he was telling the truth.” I posed: “About what?” Counsel expressed: “About using cocaine.” Ladies and Gentlemen of the legal profession: Reutter admitted it at the hearing and the transcript so shows. Hearing Transcript, page 17, Reutter: “I admitted the usage [of cocaine],” under questioning of Board Counsel Zieser. Transcript, page 23, Reutter: “Well, the coke that I had was over at Mike Kota’s house.” Transcript, page 24, Reutter, in response to a question of how many times he used it: “It was just a few, a few, like two or three times.” Transcript, page 27, under questioning of Board member Goodsell, Reutter expressed: “I think the point is, you know, I just have accepted the fact that it was cocaine, and I can’t tell the difference [between cocaine and a cocaine-like substance].” Reutter admitted under questioning of Board member Welk, at page 43 of the transcript, that he used cocaine in the summer and fall of 1982 (3 times). On page 46 of the transcript, Reutter testified he never “sold any drugs.” Author’s Note: Reutter was convicted of two counts of aiding and abetting distribution of cocaine and one count of. conspiracy to distribute cocaine; all three convictions were set aside by the Eighth Circuit Court of Appeals. On page 47 of the transcript, Board member Welk asked Reutter if he ever transported drugs, cocaine or marijuana; Reutter replied: “Absolutely not.” Apparently, the Board simply will not believe him and takes the position that he will not admit to using cocaine. I have searched the record of the Board hearing to find a statement that Reutter expressed he was a recreational user of cocaine; it is not there. He did admit, at page 48, to the recreational use of marijuana at one juncture in his life.
Reutter, per the record and his supplication to the members of this Court in Open Court, reflected that he has been drug free since 1984■ There is not one scintilla of evidence to refute this. He has been acting as a legal assistant in a prominent law firm’s office who vouchsafe for his competency and character. He has completed 90 hours of continuing legal education, has passed the Minnesota Bar Examination, and was reinstated to the practice of law in Minnesota. Majority opinion acknowledges this but discounts it, apparently, as being meaningless. Through the years, now nearly 15 in number, by meeting the Justices of that Court and reading their opinions, I have developed a hefty respect for their legal ability and scholarly attainment. I choose not to set it aside. For this Justice to express, as has the majority opinion, that it “is a matter of no concern whatever to this Court” is disdainful to our Minnesota brothers. We surely are not obliged to *906follow their decision to reinstate Reutter but neither should we disparage its significance. Our showy decision carries an implication or appearance of under-attention to the decision of a sister state. Are we reacting to the Circuit Court of Appeals’ reversal? A decision built upon vanity is like a poorly constructed house which at first gleams in its newness, and then begins to look poor and shabby after a few years of exposure.’ Long after my surcease of sorrow on this Court, time will expose this decision for what it is: Unjust and unduly harsh.
I deeply resent Finding of Fact XIII of the Disciplinary Board. Said Board was obviously miffed because Reutter “did not consider himself a felon, even in light of the previous paragraph of these findings.” In truth, in fact, and in law, Reutter is not a felon; you have to be convicted of a felony to be a felon. It is obvious that the Board’s clear insinuation is that Reutter is dishonest by expressing he does not have a felony record. And, yes, he had the supposed temerity to tell the Board he was not a felon and was not appearing before them as a felon. He is right. And the Board’s finding is, once again, clearly erroneous. And, again, it borders on the outrageous. Every member of that Board is a lawyer but one lady, who does not have a degree in law. It appears to me that all of these “lack of candor” expressions are conclusions — subjective conclusions of the Board — rather than conclusions based upon facts or objective findings. In case the Disciplinary Board and this Court do not get the message: Reutter’s convictions have been set aside as being null and void by the Eighth Circuit Court of Appeals. To characterize him as a “felon” is improper and a wrong basis to deny reinstatement. Article 6 of the United States Constitution provides:
This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. (Emphasis supplied mine).
We are bound by the decision of the Eighth Circuit Court of Appeals — and so are the members of the Disciplinary Board. Reut-ter was convicted of a Class I misdemean- or, possessing paraphernalia. Per Reut-ter’s testimony, page 19 of the transcript, he was never asked to plead guilty to possession or usage of cocaine.
One of the subjective assumptions made by the Disciplinary Board about Reutter not being straightforward in telling the truth to the Board relates to Reutter’s testimony before the Board. Reutter testified he did not recall using cocaine with Trygs-tad on two occasions in 1982, but he testified he used cocaine on several occasions in 1982. This testimony was coming clean with the Board. Trygstad did not testify or recollect in the criminal trial during 1984, that Reutter used cocaine with him in 1984. Not once did Trygstad make mention of this; now, in the present disciplinary hearing he mentioned that Reutter did. Disciplinary Board has seized upon this apparent inconsistency as duplicity on the part of Reutter.
Reutter was also candid before this Court. He expressed his regret for “giving a black eye to the Bar.” He was thankful that he had been drug free since 1984 and wanted to practice law in Gregory, South Dakota with the prominent law firm who now represents him in this proceeding. In fact, a former South Dakota State Bar President, senior member of this firm, appeared and testified on behalf of Reutter’s application for reinstatement to the State Bar.
Counsel for the Board argued before this Court that Reutter “had no remorse.” Based upon his statements in Open Court and his testimony before the Board, such a statement is without foundation in this record. It is one of the ingredients of the poisoned chalice in this case. In response to a question of Mr. Zieser, Reutter expressed (at page 21, Transcript Hearing):
Well, we tried to offer it in the petition and the affidavits that have been submitted. I don’t know, I didn’t gather the *907affidavits, they were I guess gathered by, the ones from Gregory, they were gathered by people in the firm. But I think part of what they wanted to show through those was that the life I have led in Gregory is one that at least my peers perceive is of a, on a community acceptable level and it’s hard to — I mean, if there is anything else that through the time I go to work every day and I try to maintain a lifestyle that is the kind that my employers accept as morally responsible. I just have not had any relationship whatsoever with any illegal drugs since that time some 10 years ago. I have just totally stayed away, I have no inkling. I recognize not only the wrongfulness, but what it did to my life. I would be the, I guess I would have to be stupid to have a, not to change that right now. (Emphasis supplied mine).
Does this sound like a man who is not remorseful?
We have consistently expressed in ethics cases that the public must be protected from further wrongdoing. In re Weisensee, 88 S.D. 544, 546, 224 N.W.2d 830, 831 (1975), citing In re Rude, 88 S.D. 416, 221 N.W.2d 43 (1974). See State v. Kirby, 36 S.D. 188, 154 N.W. 284 (1915). Before us, we need not fear that the public will be subjected to wrongdoing. Reutter has the backing of an entire community which has watched him — daily—perform tasks in the community for a period of several years. Had Reutter been morally unfit, this community, in a sparsely populated locale, would witness it. They would know if he was a bad guy or a good guy. And they have accepted him into this ranching and farming community as a contributor and decent citizen. Misrepresentation of truth (alleged misrepresentation) seems to be the core reason for denying Reutter the right to practice law.
We have a deluge of litigation in this Court, in fact so many that it becomes difficult to focus on that which we have held in the past few months. Ethics cases are no exception. Recently, we handed down Discipline of Taylor, 498 N.W.2d 200 (1993). Although we sanctioned the attorney with public censure, he was still permitted to continue the practice of law. In Taylor, the attorney made a series of misrepresentations to his clients, advising his clients that their case was progressing through the legal system. Attorney Taylor advised his clients that a Summons and Complaint had been filed; that a Default Judgment had been entered; that the Default Judgment would be executed in South Dakota; that the Default Judgment had been transferred to another state for execution; that the authorities in the other state were ready to execute on the Default Judgment; and, finally, liquid assets had been seized pursuant to the Default Judgment. All of these representations were all false. Compare, now, the alleged “not coming clean” with the Disciplinary Board in this case and the falsehoods told by Taylor, whose saving grace was his understanding of his problem and dealing with it constructively. The same may be said for Reutter. Taylor’s equitable posture was his decent contribution to his community. So it is with Reutter. Justice should be evenhanded.
In re the Matter of Reinstatement of Husby, 426 N.W.2d 27 (S.D.1988), this Court in a 4-1 decision, Henderson, J., dissenting, permitted an attorney to be reinstated after he pleaded guilty to using a controlled substance and smuggled cocaine (as an attorney) into a county jail for a man he was defending for rape and murder of an innocent young girl. Husby had (1) never taken the South Dakota Bar exam (2) never passed a national academic test and (3) never taken any ethics examination. Over my strenuous objection, he was reinstated. Husby did not establish his competency to practice law; Reutter has. Reut-ter continued his legal education and kept current with the law; Husby made no showing whatsoever in this regard. Husby and the present decision are in conceptual conflict.
A special concurrence was filed herein to augment and support the majority opinion. First, it fails to mention that the Minnesota Supreme Court recognized:
*908The Director and the Lawyers Professional Responsibility Board do not dispute that Reutter has demonstrated his present moral fitness to practice law, nor do we find any evidence of unfitness. The criminal conviction, which served as the basis for disbarment, has since been nullified and erased. Reutter has openly admitted his misconduct, acknowledged the wrongfulness of that misconduct, and expressed his remorse. Reutter’s admitted misconduct, the misdemeanor offense and his use of controlled substances, occurred almost ten years ago, was not severe, and would not, of itself, have warranted disbarment. The panel concluded that Reut-ter was morally fit to enter the practice of law in this state, and nothing has been brought to this court’s attention to dispute that conclusion. (Emphasis supplied mine).
Secondly, it flogs Reutter again with evi-dentiary statements contained in the 1985 reversed conviction in the South Dakota Supreme Court, all pertaining to the testimony of a “Mrs. Soto.” Justice Amundson was not a member of the 1985 Reutter court. He was appointed to this Court on March 11, 1991. He was not a member of the Disciplinary Board who heard the present proceedings when the Board met at Sioux Falls, South Dakota, on December 18,1992. However, he is a former member of said Board and a former Chairman thereof.* Apparently, he bases his factual observations upon a reversed case handed down by this Court in 1985.
In reviewing this transcript, from whence sworn testimony came, and by virtue of the only proceeding upon which Findings of Fact could be birthed, the facts depicted in the special concurrence of Justice Amundson are not in the record. Hence, the special concurrence is based upon facts outside of the record. The only reference to cocaine from California and a “guy named DeSoto out in California” was made by Board counsel Zieser while questioning Reutter. Zieser asked him if he got cocaine from “DeSoto,” and Reutter answered (page 23 of transcript): “No, I didn’t.” He expressed “Well, the coke that I had [used] was over at Mike Kota’s house.” This “scheme to distribute cocaine standing in black and white,” as Justice Amundson describes it, stands totally unsupported by the facts developed at the Board’s hearing in Sioux Falls. The “scheme,” charged as a conspiracy to distribute cocaine by the state’s prosecutors, was declared a nullity. Now, it is resurrected again by a special concurrence.
Recently, two prosecutors in South Dakota received suspensions from the practice of law, notwithstanding extensive use of drugs, while prosecuting members of the public, via this Court’s two decisions. In re Discipline of Jeffries, 500 N.W.2d 220 (1993); In re Discipline of Johnson, 500 N.W.2d 215 (1993). Their conduct was a double standard at its zenith and their conduct poisoned the criminal justice system of this state, destroying the public’s confidence in our courts. These prosecutors were servants of the law and are held to a higher standard lest the “special significance to the prosecutor’s obligation to serve the cause of justice” be lost. Arizona v. Youngblood, 488 U.S. 51, 63, n. 2, 109 S.Ct. 333, 340, 102 L.Ed.2d 281 (1988) (Blackmun, J., dissenting). Reutter was not a prosecutor.
I agree with Justice Sabers that Jeffries and Johnson are distinguishable from Reutter. They are distinguishable because the prosecutors were charged with the responsibility to eradicate the drug culture and to prosecute, as agents of the state, those who trafficked in drugs. While holding these offices of public trust, they subverted the calling which the people paid for by taxpayers’ dollars. Both Johnson and Jeffries were given suspensions from the practice of law, a lesser sanction of discipline than Reutter, who was disbarred and now is being denied reinstatement. Both Johnson and Jeffries had a long history, entailing many years of drug usage, going *909back to their youth, and that is not the fact with Reutter. Reutter’s usage was confined to a far more limited time. Apparently, the moral of the story is that prosecutors in South Dakota are granted more leniency than an ordinary attorney. The majority opinion would attempt to justify the sanctions towards Johnson and Jef-fries, as compared to Reutter, because they “divulged all instances of drug usage and were found credible by the Board,” whereas Reutter supposedly did not. Such accusation is unfounded. As reflected above, by the record — and I have read every word and every sentence thereof — Reutter acknowledged the usage of cocaine and made other references to this admission. The majority opinion has leaped upon one answer of Reutter and taken it out of context. The majority opinion is trying to make it appear that Reutter would only admit to a “cocaine-like” substance. However, under the questioning of Goodsell, he unequivocally expressed that he “accepted the fact that it was cocaine.”
Sirs, the cup we bring to Reutter is filled with pain and it burns his lips. I sadden for his anguish. This cup is fashioned by a clay of injustice and I do not choose to be one of the potters of such injustice. I would reinstate him to the practice of law so that he does not join the Legion of the Lost.
Source: Unified Judicial System handout to the public and law students at the University of South Dakota Law School, March, 1993, reflecting he was a committee member and Chairman of the South Dakota Disciplinary Committee (1981-1986).