Steele v. Bonner

#25358-a-PER CURIAM
2010 SD 37

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

JOHN R. STEELE, Plaintiff and Appellee,

v.

HAZEL BONNER, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JAMES W. ANDERSON
Retired Circuit Judge

* * * *

JAMES L. WAGGONER Attorney for plaintiff
Rapid City, South Dakota and appellee.

HAZEL BONNER
Rapid City, South Dakota Pro se.

* * * *

CONSIDERED ON BRIEFS
ON MARCH 22, 2010

OPINION FILED 05/05/2010
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PER CURIAM

[¶1.] John Steele (Steele), as chairman of the Consumer Protection

Committee of the State Bar of South Dakota, sought a permanent injunction

enjoining Hazel Bonner (Bonner) from practicing law without a license. After a

court trial, the court granted Steele’s permanent injunction, permanently enjoining

Bonner from certain specified conduct relating to the practice of law.

FACTS

[¶2.] Bonner is a 1994 graduate of the University of South Dakota School of

Law. She has never successfully passed the South Dakota bar exam (or any other

bar exam), nor has she been admitted to the practice of law by this Court. Thus,

Bonner has never been qualified to become a member of the State Bar of South

Dakota.

[¶3.] In October of 2002, Thomas C. Barnett, Jr. (Barnett),

Secretary/Treasurer of the State Bar of South Dakota, received a formal complaint

from Jeremiah Davis, an attorney with the Pennington County Public Defender’s

office, regarding Bonner. Davis’ complaint alleged Bonner was engaging in the

practice of law without a license. The letter discussed two situations in which

Bonner had interfered with Davis’ representation of criminal defendants.

[¶4.] The first incident concerned Bonner’s contact with a young man being

housed at Pennington County jail who was charged with homicide. Against the

advice of Davis, the young man’s appointed attorney, the young man talked with

Bonner, who wrote a newspaper article about the young man. Davis had been

informed Bonner suggested the young man sign a “power of attorney” which would

ostensibly protect Bonner’s conversations with the young man by the attorney/client
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privilege. Davis was concerned the communication the young man had with Bonner

may be used against the young man at trial.

[¶5.] The second incident concerned Bonner’s involvement in a criminal

child abuse case. When Davis appeared for the preliminary hearing on behalf of his

clients, the magistrate informed Davis an exhibit had been presented to the court

on behalf of his client. Davis had not prepared the exhibit or even knew of the

exhibit’s existence. This exhibit was entitled “a report to the court concerning three

children” submitted by “Hazel Bonner, independent investigator and advocate of

Rapid City South Dakota, also an associate professor of Sociology at Oglala Lakota

College.” The headings of that portion of the “report” entitled “My Findings”

include: “Best efforts to reunite the family are required in this case,” and

“Placement in this case cannot be considered the least restrictive environment.”

The “report” also included a section entitled “[a] plea offer from the prosecutor.”

This section disclosed plea negotiations and an allegation that Davis told his client

“if she went to trial she would be convicted because she is Indian, juries in Rapid

City are white and discriminate against Indians.” The final sentence of the

document reads: “If that doesn’t happen, the parents have asked me to relay to the

court that they are petitioning the court to transfer the proceedings to the Rosebud

Sioux Tribe in accordance with 25 USC § 1911(b).”

[¶6.] Later in October 2002, a small claims complaint was filed against

Bonner alleging Bonner had answered Season Sunhawk’s ad for legal work and

then had not performed the work. In her answer to the complaint, Bonner alleged:

I told him I had done 3 hours of research. I had written a
memo on At-Will Employment in South Dakota. I had
determined that Wal Mart did not need to give him notice
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of termination or a reason for termination and a chance to
remedy any substandard job performance and that the
termination was probably legal under South Dakota law
unless it was retaliatory or discriminatory. He was
claiming it was discriminatory.

At trial Bonner testified she gave this information to Sunhawk. Sunhawk received

a default judgment against Bonner in that action.

[¶7.] In January 2003, Barnett received correspondence from the

administrative officer for the federal public defender regarding a problem their

office had with Bonner. The essence of the correspondence and accompanying

attachments was that Bonner had meddled in a case, given advice, and attempted

to file pleadings with the United States Federal District Court.

[¶8.] In 2008, Bonner attempted to represent a veteran in a benefit appeal.

The veteran was being represented by a non-attorney advocate approved by the

American Legion. This advocate testified at trial that Bonner had questioned her

handling of the appeal, and that Bonner had filed paperwork which ultimately

delayed the veteran’s benefits. Most disconcerting to the advocate was Bonner’s

initial representation of herself as an attorney.

[¶9.] Bonner maintains she did not engage in the practice of law, but merely

assisted individuals whose attorneys had failed them.

[¶10.] After the trial on this permanent injunction matter, the trial court

found that Bonner had engaged in the practice of law without a license, and entered

an injunction permanently prohibiting certain conduct. Bonner appeals.

STANDARD

[¶11.] This Court’s review of a decision regarding injunctive relief is well

settled:
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Granting or denying an injunction rests in the sound
discretion of the trial court. We will not disturb a ruling
on injunctive relief unless we find an abuse of discretion.
An abuse of discretion can simply be an error of law or it
might denote a discretion exercised to an unjustified
purpose, against reason and evidence.

In doing so, we review the trial court's findings of fact under a
clearly erroneous standard, but we give no deference to the trial
court's conclusions of law.

Halls v. White, 2006 SD 47, ¶ 4, 715 NW2d 577, 579 (internal quotations and

citations omitted).

[¶12.] SDCL 16-18-1 specifically authorizes injunctions to prohibit

individuals from practicing law without a license. This section states:

Excepting as provided by § 16-18-2, no person shall
engage in any manner in the practice of law in the State
of South Dakota unless such person be duly licensed as an
attorney at law, and be an active member of the state bar
in good standing. Any person engaging in any manner in
the practice of law in violation of this section may be
restrained by permanent injunction in any court of
competent jurisdiction, at the suit of the attorney general
or any citizen of the state.

SDCL 16-18-1.

[¶13.] The trial court found Bonner engaged in the practice of law. The

trial court’s findings of fact will not be overturned unless clearly erroneous.

Halls, 2006 SD 47, ¶ 4, 715 NW2d at 579.

ISSUES

[¶14.] Bonner sets forth the “legal issues presented” as follows:

1. Failure to protect due process rights of defendant.

2. Entrance of a final permanent injunction that
violates constitutional rights of defendant.

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3. Final order included unacceptable mistakes which
after reading transcript of final order I tried to
correct but final order had same unacceptable
mistake.

4. The injunction protects only the licensed attorneys,
not a function of the State Bar Grievance
Committee.

5. Total cost of persecution/prosecution appears
unwarranted, all done at taxpayer expense.

6. After receiving the transcript I add: An order that
all transcripts be word for word reports of what
actually happened in court.

[¶15.] Throughout her pro se brief, Bonner appears to argue that she has not

engaged in the practice of law; therefore, no injunction should have entered against

her. Steele condenses Bonner’s issues on appeal to: “[w]hether there was sufficient

evidence produced at the time of the trial to establish that the actions of Bonner

constituted the practice of law so as to permit the trial court to enter a permanent

injunction enjoining Bonner from any further such activity.”

ANALYSIS

[¶16.] Even where a person is a duly licensed attorney, 1 we have consistently

held that the opportunity to practice law is a privilege and in no sense a right:

1. The successful passage of the South Dakota bar exam does not equate with
membership in the bar. To become a licensed attorney and properly
represent the public an applicant must also possess good moral character.
SDCL 16-16-2. The applicant must establish good moral character by clear
and convincing evidence to the satisfaction of this Court. SDCL 16-16-2.2; In
re Widdison, 539 NW2d 671, 675 (SD 1995). SDCL 16-16-2.1 defines good
moral character as including but not limited to “qualities of honesty, candor,
trustworthiness, diligence, reliability, observance of fiduciary and financial
responsibility, and respect for the rights of others and for the judicial
process.” Good moral character is a prerequisite to practice law in every
state. Widdison, 539 NW2d at 678 (citing Layon v. North Dakota State Bar
Bd., 458 NW2d 501, 503 (ND 1990)).
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‘[T]he right to practice law’ is not in any proper sense of
the word a ‘right’ at all, but rather a matter of license and
high privilege. Certainly, it is in no sense an absolute
right. It is in the nature of a franchise to the enjoyment
of which no one is admitted as a matter of right, but only
upon proof of fitness and qualifications which must be
maintained if the privilege is to continue in enjoyment.

In re Widdison, 539 NW2d 671, 675 (SD 1995) (quoting In re Egan, 52 SD 394, 402,

218 NW 1, 2-3 (1928)). The purpose is to protect the public from the fraudulent,

unethical or incompetent practice of law. In re LaPrath, 2003 SD 114, ¶ 43, 670

NW2d 41, 56 (citing Discipline of Kallenberger, 493 NW2d 709 (SD 1992)). Only

those who meet this high fiduciary standard are allowed to assist those in need of

competent legal representation:

A certificate of admission to the bar is a pilot’s license
which authorizes its possessor to assume full control of
the important affairs of others and to guide and safeguard
them when, without such assistance, they would be
helpless. Moreover, in [South Dakota] it is a
representation made by this court he [or she] is worthy of
the unlimited confidence which clients repose in their
attorneys; trustworthy to an extent that only lawyers are
trusted, and fit and qualified to discharge the duties
which devolve upon members of his profession.

Id. ¶ 42, 670 NW2d at 66 (quoting Egan, 52 SD at 402, 218 NW at 4).

ISSUE ONE

[¶17.] Failure to protect the due process rights of defendant.

[¶18.] Initially, Bonner points to the fact that the summons and complaint

had not been filed with the clerk of courts before she attempted to respond. In

support, Bonner quotes SDCL 12-22-8 (incorrectly cited as section 13-22-8), which

concerns commencing an election contest. Moreover, Bonner makes no claim that

she didn’t receive proper notice. In her prayer for relief regarding this issue,

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Bonner requests all attorneys be required to commence actions by filing them with

the clerk’s office. As Bonner received notice and participated at every stage, her

argument is unavailing. See Flanders v. Ford City Borough Council, 986 A2d 964,

973 (PaCommwCt 2009) (participating in proceedings waives alleged deficiencies in

notice and service).

[¶19.] Bonner’s next due process argument turns to the difficulties Bonner

encountered attempting to remove Judge Fuller from this matter. Judge Fuller

recused himself prior to trial as well as did all other judges of the Seventh Judicial

Circuit. The trial was conducted by an out-of-circuit retired Circuit Judge, Judge

James W. Anderson.

[¶20.] Bonner also raises an issue regarding documents that were introduced

at trial that she apparently had not seen before. These documents were presented

during the trial, and at that time Bonner did not object to their admission.

Assuming Bonner raises an evidentiary question; evidentiary rulings made by the

trial court are “presumed correct and reviewed under an abuse of discretion

standard.” Wangsness v. Builders Cashway, 2010 SD 14, ¶ 11, 779 NW2d 136, 140.

It is elementary that “evidence, received without
objection, is available to the trier of fact . . . .” Killian v.
Hubbard, 69 SD 289, 295, 9 NW2d 700, 703 (1943).

If when inadmissible evidence is offered the party against
whom such evidence is offered consents to its
introduction, or fails to object, or to insist upon a ruling on
an objection to the introduction of such evidence, and
otherwise fails to raise the question as to its admissibility,
he is considered to have waived whatever objection he
may have had thereto, and the evidence is in the record
for consideration the same as other evidence.

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Bakker v. Irvine, 519 NW2d 41, 46-47 (SD 1994) (internal citations omitted). Here

the trial court appropriately considered the evidence.

ISSUE TWO

[¶21.] Entrance of a final permanent injunction that violates
constitutional rights of defendant.

[¶22.] Bonner takes issue with each of the activities the trial court enjoined

her from performing. Bonner foregoes any argument regarding specific

constitutional issues, yet argues: “Excuse me I don’t know what thing can have a

pleading prepared for them?” And, “Perhaps we should all be lined up and just shot,

but we are a nation under law, aren’t we? But whose law, the licensed attorneys?”

[¶23.] The injunction prohibits Bonner from contacting defendants charged

with crimes who are already represented by counsel without that counsel’s consent.

Regarding this prohibition, Bonner states: “Excuse me I have the constitutional

right of association and will continue associating with whom I wish in and out of

jail.” Bonner offers no argument or support for this proposition.

[¶24.] The United States Supreme Court has distinguished between

“intimate association” and “expressive association.” Schlarp v. Dern, 610 FSupp2d

450, 461 (WDPa 2009) (citing Roberts v. U.S. Jaycees, 468 US 609, 618, 104 SCt

3244, 82 LEd2d 462 (1984)). The right to intimate association involves “the right of

an individual to develop deeply personal attachments with other individuals.” Id.

This freedom has typically been construed to protect the right to marry, rear

children, engage in consensual sexual activity, and associate with family members.

Id. This freedom is not absolute, and “even a significant interference with an

individual’s freedom of association may be sustained if there exists a sufficiently

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important state interest, and the means employed are narrowly drawn to avoid

unnecessary abridgment of associational freedoms.” Wingate v. Gage County Sch.

Dist., No. 34, 528 F3d 1074, 1081 (8thCir 2008). This class of freedom of association

is founded upon the Due Process Clause of the Fourteenth Amendment. Schlarp,

610 FSupp2d at 461-62.

[¶25.] The freedom of expressive association is founded on the First

Amendment. “Federal courts ‘have long understood as implicit in the right to

engage in activities protected by the First Amendment a corresponding right to

associate with others in pursuit of a wide variety of political, social, economic,

educational, religious, and cultural ends.’” Id. at 462 (quoting Roberts, 468 US at

622, 104 SCt at 3244). “The right to associate for expressive purposes is not,

however, absolute. Infringements on that right may be justified by regulations

adopted to serve compelling state interests, unrelated to the suppression of ideas,

that cannot be achieved through means significantly less restrictive of associational

freedoms.” Roberts, 468 US at 623, 104 SCt at 3252.

[¶26.] In this case, South Dakota’s interest in protecting the public from the

unauthorized practice of law justifies any potential impact on Bonner’s associational

rights. Bonner is only being restricted from associating with criminal defendants

who are represented by an attorney. She has no more right to practice law for these

individuals than she does to practice surgery on them. This abridgement protects

the public, especially the defendants with whom Bonner may have contact, while

restricting Bonner’s freedom of association in the least restrictive manner. The

injunction does not violate Bonner’s constitutional rights.

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ISSUE THREE

[¶27.] Unacceptable mistake in final order.

[¶28.] In the final order, the trial court referred to a case in which Bonner

had assisted as “United States of America v. Daryl Fast Horse.” Bonner points out

that the individuals were named “Fast Wolf.” Bonner is unable to point to any

manner in which her rights may have been affected by this error.

ISSUE FOUR

[¶29.] Injunction protects only the licensed attorneys, not a function
of the state bar.

[¶30.] The focus of Bonner’s discussion is that she will not stop her conduct,

and that she fervently requests a criminal charge be filed against her so that she

can have her day in court. Bonner includes no argument concerning any alleged

irregularity below.

ISSUE FIVE

[¶31.] Total cost of persecution/prosecution borne by taxpayers.

[¶32.] Bonner questions the cost of this action. If Bonner seeks relief for any

perceived error regarding the cost of bringing this action, it is entirely

indecipherable from the brief.

ISSUE SIX

[¶33.] An order that all transcripts be word for word reports of what
actually happened in court.

[¶34.] Bonner provides no discussion on this issue, and therefore it is waived.

See State v. Darby, 1996 SD 127, ¶ 44, 556 NW2d 311, 322 (failing to argue an issue

after it has been raised on appeal waives the issue).

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[¶35.] Bonner’s only citations to legal authority in her initial brief are two

statutes. One statute concerns commencement of a challenge to an election, the

other addresses disqualification of a judge. Neither of these statutes are offered for

any issue on which Bonner may receive relief. As has been stated many times by

this Court, Bonner’s failure to cite authority is fatal. SDCL 15-26A-60(6); Hart v.

Miller, 2000 SD 53, ¶ 42, 609 NW2d 138, 148. Bonner includes a table of

authorities in her reply brief, but in no way indicates which authorities are being

provided for which propositions or arguments, nor indicates in the text of her reply

which authorities support her argument. Affirmance is appropriate based solely on

Bonner’s failure to present any authority for the arguments she espouses.

[¶36.] The trial court’s findings of fact that Bonner engaged in the practice of

law without a license are supported by the record. Bonner has provided nothing in

the way of authority or persuasive argument to the contrary. As this Court has

stated:

Practicing law “is not limited to conducting litigation, but
includes giving legal advice and counsel, and rendering
services that require the use of legal knowledge or skill
and the preparing of instruments and contracts by which
legal rights are secured, whether or not the matter is
pending in court.”

Persche v. Jones, 387 NW2d 32, 36-37 (SD 1986) (citation omitted). Bonner’s

activities included: preparing filings for the signature of individuals involved in

legal proceedings; offering advice to “clients” on application of facts to the law as

Bonner researched; submission of reports to the court suggesting the proper

disposition of criminal and abuse and neglect proceedings, in which Bonner clearly

advocates for her “clients;” and holding herself out as a lawyer.

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[¶37.] The legal authorities support the policy reasons for protecting the

public from the practice of law by unlicensed laypersons. There is no difference if

we condemned this type of misconduct by a person who had been disbarred or failed

to pass a bar exam from Bonner, who has never taken it. The trial court’s decision

was guided by the obligation to protect the public by precluding the unlicensed and

unfit to practice law upon their behalf. This compelling need has been clearly

demonstrated to this Court by a review of the trial record and Bonner’s bewildering

appellate briefs.

[¶38.] The trial court is affirmed.

[¶39.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER,

MEIERHENRY, and SEVERSON, Justices, participating.

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