(dissenting).
■ Kallenberger is not Pretty-Boy Floyd, A1 Capone, or John Dillinger.
Rather, this case involves a young, practicing lawyer in the small, rural community of Eureka, South Dakota. He underwent hard economic times because he lost an election, went off the public payroll, moved his office, had problems with the building, *713and with the community also falling on hard times, had a difficult time paying his bills. During his years in Eureka, raising his young family, he served on the Church Council, President of the Chamber of Commerce, and several other civic organizations to help his community. As I say, he is not Pretty Boy Floyd, A1 Capone or John Dillinger. He is a decent, hardworking young lawyer, who characterized himself in a letter to the Chief Justice on May 8, 1992, as having become “spread too thin and his own personal affairs suffer.” We, on this Court, and the Disciplinary Board, were furnished a copy of that letter.
Reading over the majority opinion, I -thought that perhaps we were dealing with a real western desperado. His desperado conduct led him to plead guilty to one Class 1 misdemeanor. Under SDCL 16-19-36, setting forth the definition of serious crimes committed by an attorney which must be reported to the Supreme Court, Kallenberger’s misdemeanor conviction is not a serious crime.* In South Dakota, lawyers, like the grocery stores, are turned into tax collectors. Kallenberger has been disciplined enough, in my opinion, for he had to appear before a Circuit Judge who pronounced sentence upon him, namely: A suspended imposition of sentence for a period of eighteen (18) months; additionally, he was required to keep current with his sales tax returns.
When this case was argued before this Court on September 1, 1992, both Board counsel, Mr. Zieser, and Kallenberger represented to the Supreme Court that he had paid all taxes, penalty, and interest. Further, since January of 1992, he had timely filed all of his state sales tax returns promptly. Further, that he had no overdrafts on his office and had established a line of credit with the local bank as a precaution to avoid any overdrafts or humiliation.
Our State Disciplinary Board works hard; it is a rather thankless job; it had recommended a private reprimand, i.e., a sanction within the lawyer’s association so as to avoid further public exposure and to also monitor Kallenberger’s conduct as regards sales tax returns. You would think that this would be enough. Not so in this Court. As I have repeatedly expressed in other writings, this Court has a Statist mind set. If the State of South Dakota is a party, as distinguished from a private en-terpriser or an ordinary citizen, we must elevate our thinking to the State’s position, as if that entity of government is sacred. As, if you will, the State has greater rights than the ordinary citizen.
Per the transcript, dated April 3, 1991 (sic, I believe it was 1992) at 2:30 p.m., at the Holiday Inn Rushmore Plaza, Rapid City, South Dakota, the Disciplinary Board met concerning Kallenberger’s case. A formal record exists and Kallenberger was there with his lawyer, Mr. Yon Wald. He had a due process hearing on that date. Questions were asked and answered under oath, with an opportunity to cross-examine.
Subsequent to that proceeding, and which the majority now relies upon, in depth, a part of this record now contains:
1. An affidavit of John Lonheim, dated April 24, 1992, with a host of facts, therebefore untestified to, reciting a history of Lonheim’s activities concerning Kallenberger;
2. An affidavit of Roger Novotny, also a state agent, appending Exhibit A, which is dated April 28, 1992, again subsequent to April 3, 1992; and which also attached a letter from Attorney General Tellinghuisen dated *714June 6, 1990, also relied upon by the majority opinion; again, untestified to;
3. An affidavit of David Nincehelser, another state agent, dated April 28, 1992, which specified a certain “log of events;” also, untestified to;
4. A two and one half page letter of David D. Wiest, Assistant Attorney General, addressed to Board Counsel Zieser setting forth his version of the facts about Kallenberger’s conduct with reference to his sales tax deficiencies. But in this letter, dated April 28, 1992, Wiest expresses “Please be advised that Mr. Weber is an attorney for the Department of Revenue, and is not an Assistant Attorney General. Prosecution decisions are made by the Attorney General’s Office based upon information provided to us by the Department of Revenue. Mr. Weber does not speak for the Attorney General’s Office, and does not direct the Attorney General’s Office in the criminal prosecution of any case.” This was not produced at any hearing and was also untestified to.
It appears, from the record, that Board Counsel Zieser, concerned with “whether or not the Department of Revenue have in fact treated this man fairly” (a quote from his letter to the Chief Justice dated April 30, 1992) sought information from the Department of Revenue. These affidavits, which I have outlined above, thereby became a part of this record, at least as I review this record, and were employed by the majority opinion to jeopardize-the legal position of Kallenberger.
But, to colloquialize, now comes the zinger. Lo and behold, Timothy Weber, an attorney with the Department of Revenue, saw fit to file his own Affidavit, dated May 6, 1992. Rather than to characterize or summarize same, I am attaching it hereto, making it a part of my dissent in this case. You be the Judge. But to me, it clearly demonstrates that Kallenberger relied upon his friend’s counsel and advice, his friend then being an attorney with the Department of Revenue. And Kallenberger was, indeed, “... lulled into a false sense of security” believing, just as that attorney told him, who was the attorney for Department of Revenue, that “so long as he kept the Department informed and paid the taxes, penalties and interest, the Department would take no further action.” Those were the words of the state agent.
Can these practicing lawyers who sit on this Board think, read, understand, and balance the ebb and flow of a given ethical scenario? Here, the Board was heavily influenced by the showing of Timothy Weber, an attorney for the South Dakota Department of Revenue. Said Board is comprised of some of the top lawyers in this state, with years of experience to back up their judgment. On June 29, 1992, the Board, with all of this before them, recommended to this Court that Donald Kallen-berger be disciplined by private reprimand. I fully appreciate that we give careful consideration to the Board’s judgment but we are not bound by its judgment. In re Discipline of Draeger, 463 N.W.2d 346 (S.D.1990) and In re Husby, 426 N.W.2d 27, 28 (S.D.1988).
I agree with the Board and not with this Court. I close with the penultimate paragraph of the Board’s findings:
The Board found (sic, should be finds) as fact that the Respondent was in contact with Tim Weber, an attorney with the Department of Revenue, during his sales tax delinquency. That Respondent did not ignore the problem and believed that contact with Mr. Weber was an assurance to the Department of Revenue that the tax would be paid with penalty and interest in time. This finding by the Board caused the Board to recommend a private reprimand rather than a more severe discipline. (Emphasis supplied mine).
In essence, Kallenberger’s conduct in not filing timely returns was not willful per the Board. I would that this thorn not prick Kallenberger for he was led into a thicket, albeit by his friend, who nobly came forth to expose the truth. Surely, it will be one *715of the proudest moments in his legal career.
Therefore, I dissent.
ATTACHMENT IN THE SUPREME COURT OF THE. STATE OF SOUTH DAKOTA
In the Matter of the Discipline of Donald W. Kallenberger as an Attorney at Law.
[May 7, 1992],
CASE #17873
AFFIDAVIT
STATE OF SOUTH DAKOTA
ss:
COUNTY OF HUGHES
The undersigned, Timothy T. Weber, being first duly sworn on oath, deposes and states as follows:
1. I am an attorney employed by the South Dakota Department of Revenue (Department) and have been so employed since September of 1987.
2. Prior to my employment with the Department I was in private practise in Eureka, South Dakota and was the State’s Attorney for McPherson County from 1977 to August of 1987.
3. For approximately five years I was associated with Donald W. Kallenberger in the practise of law. Our association terminated when I left for my present position, and Don continued with the practise in Eureka.
4. Since my move to Pierre in 1987, Don and I have been in regular contact, mostly by telephone. We mainly conversed about the cases which we had jointly handled, but we also discussed more casual topics. On a number of occasions, we talked about Don’s tax filing status with the Department. Don would explain why he had failed to timely file a return. I recall one period in which his secretary had quit and another occasion where his office computer failed. During these conversations, I would urge Don to take care of the filing as soon as possible, but would also assure him that the Department does not take any formal action unless the taxpayer is personally contacted. The Department’s policy, as explained to me, has been to work with the taxpayer as much as possible before requesting civil or criminal action. I would tell Don to keep the Department informed if he had any problems or was unable to timely file or pay his sales tax liability.
5. Following the conversations we would have concerning Don’s tax filing, I would pass on his comments to personnel of the Department. Because of my past association with Don, I deliberately refrained from voicing any opinions concerning potential Departmental action against Don or taking part in any such action.
6. It is my belief that Don never intended to evade his tax liabilities to the State of South Dakota. In our discussions, my comments to him might have been misleading or they may have lulled him into a sense of false security to the effect that so long as he kept the Department informed and paid the taxes, penalties and interest, the Department would take no further action.
Dated this 6th day of May, 1992.
/s/ Timothy T. Weber Timothy T. WeberKallenberger has never been formally charged with nor informally accused of failing' to file Federal Unemployment tax and an Employer’s Quarterly Federal Tax Return. The record does not disclose that Kallenberger was accused of this in any proceedings below. Neither the original Report nor the Amended Report and Recommendation of the Disciplinary Board of the State Bar of South Dakota make any reference whatsoever to this alleged misconduct. Again, it appears that Kallenberger has not had due process on accusations against him; and the majority opinion has, sua sponte, brought this up anew without benefit of these allegations ever being a part of the formal disciplinary proceedings. It should be remembered that Kallenberger was not charged with a failure to file a sales tax return; he was charged with failing to file a timely sales tax return.