text:
    2006 ND 210
    In the Interest of T.A., S.A., D.J., and J.A., Minor Children. Don Boehmer, Petitioner and Appellee, v. T.A., S.A., D.J., J.A., K.A., B.J., J.P., Respondents, B.J., Respondent and Appellant.
    No. 20060063.
    Supreme Court of North Dakota.
    Oct. 17, 2006.

      Benjamin C. Pulkrabek, Mandan, N.D., for respondent and appellant.

      Gary L. Delorme, Assistant State’s Attorney, Jamestown, N.D., for petitioner and appellee.
   MARING, Justice.

[¶ 1] B.J. (“Brian” ) appeals the juvenile court’s order terminating parental rights to his three minor children, S.A. (“Sarah”), D.J. (“Doug”), and J.A. (“Jenny”). We hold the juvenile court did not err in finding clear and convincing evidence the children have been deprived; the causes and conditions of deprivation are likely to continue; and, as a result of the continued deprivation, Sarah, Doug, and Jenny have suffered or will probably suffer serious physical, mental, or emotional harm if Brian’s parental rights are not terminated. We affirm.

I

[¶ 2] Brian is the biological father of Sarah, Doug, and Jenny. The children’s mother, K.A. (“Katherine”), whose parental rights were terminated, does not appeal. Katherine also has a child, T.A. (“Thomas”), with another man, whose parental rights are not at issue in this appeal. Katherine’s parental rights to Thomas have been terminated. This matter involves Brian’s parental rights to his three children. Sarah was born in 1999, Doug was born in 2001, and Jenny was born in 2002. Stutsman County Social Services (“Social Services”) conducted an emergency removal of the children from Katherine’s Jamestown, North Dakota, home on October 20, 2004, at which time the children were placed in foster care.

[¶ 3] Brian and Katherine had been involved in a relationship for several years. They first met when Brian was fifteen years old and Katherine was sixteen years old. Brian is now twenty-three. From ages fifteen to nineteen, Brian lived with Katherine. The couple then broke up for six months, lived together for six months, and then ended their relationship. They never married. Katherine eventually moved from Oklahoma to North Dakota, bringing the children with her. On October 20, 2004, Brian, Katherine, their children, and Thomas were living in Katherine’s Jamestown home. Brian came from Oklahoma a couple of weeks earlier to stay with Katherine and their children when Katherine requested help from him with the children.

[¶ 4] Social Service’s October 20, 2004, emergency removal of Sarah, Doug, and Jenny was based on numerous incidents. There had been reports the children walked unsupervised around town and had been left home unattended. The children had problems at school. On the day of the emergency removal, an empty alcohol bottle was on the front step of Katherine’s house and piles of clothing and ashtrays full of cigarette butts were lying throughout the house. There were few indications, such as toys or pictures, that children lived at the house. There was very little food in the house. The children’s beds were mattresses placed on the floor with single blankets on them, and Jenny was found lying naked in her crib. The children’s foster mother noted the children’s poor personal hygiene, Jenny’s oversized pants and her lack of a diaper, and that the children lacked discipline. The foster mother also indicated the children did not receive Christmas or birthday gifts from Brian, and Brian failed to attend a scheduled supervised visit.

[¶ 5] Brian has a history of criminal activity that has affected his ability to spend time with his three children. On October 1, 2004, and again on October 10, 2004, Brian was charged with disorderly conduct in North Dakota. On November 23, 2004, Brian was arrested in North Dakota for theft of property. After serving his sentence for the theft, Brian was released from jail on February 4, 2005, on eighteen months probation. Brian returned to Oklahoma the end of February. A month and a half later, Brian was placed in jail in Oklahoma. Brian was extradited to North Dakota and sentenced to jail for violating his probation by leaving North Dakota. Brian’s release was scheduled for July 2006.

[¶ 6] After the emergency removal of the children on October 20, 2004, Brian did not have contact with Social Services until December 15, 2004, when Social Services contacted Brian. Social Services and Brian agreed to conduct parenting capacity and addiction evaluations after Brian’s release from jail in February. After his release from jail, Brian visited Social Services and established a date to spend time with his children and to complete the evaluations. Brian failed to appear at the visitation and did not contact Social Services. Brian signed releases for parenting capacity and addiction evaluations, but did not have the evaluations performed. Brian claimed he was job searching in Fargo the day he was to visit with his children because he was under pressure from his probation officer to find a job. He claimed he missed the visitation with his children because he confused the dates. Social Services learned on February 15, 2005, that Brian had left North Dakota. Social Services did not have any type of contact with Brian again until July 2005 when Brian’s grandmother talked with Social Services.

[¶ 7] Although the year is disputed, Brian testified that the children lived with him in Oklahoma for much of 2002. Brian’s grandmother, cousin, and a family friend took turns watching the children while Brian was at work. Brian paid the friend for babysitting and paid for diapers and milk. Brian testified he took his children to a nearby park and had toys for them. Katherine then moved from Oklahoma to North Dakota and brought the children with her. In 2004, Brian came to North Dakota at Katherine’s request. Brian claimed he took the children to a dentist during the short time he was in North Dakota in 2004. Brian did not present medical bills to support this claim. Brian claimed he deferred primary care-taking to Katherine and that he was incarcerated during the first time the children were found wandering around Jamestown and, by the second occurrence, the State already had custody. Brian indicated his family is willing to assist him in raising the children, he wants to keep his children, and he is willing to get help from social services.

[¶ 8] After the emergency removal, the children were placed in the temporary care and custody of Social Services. An adjudication hearing was held, at which time the children were placed in the care and custody of Social Services for one year. At a permanency hearing, the juvenile court ordered Social Services to retain care and custody for an additional year. Social Services petitioned to terminate the parental rights of Brian and Katherine. After the hearing, the juvenile court entered an order terminating Brian’s parental rights.

[¶ 9] Brian appeals the order terminating his parental rights.

II

[¶ 10] To terminate a person’s parental rights, the petitioner must prove the child is deprived; the conditions and causes of the deprivation are likely to continue or will not be remedied; and, that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm. N.D.C.C. § 27 — 20—44(l)(b)(l). “The party seeking parental termination must prove all elements by clear and convincing evidence.” Interest of E.R., 2004 ND 202, ¶ 5, 688 N.W.2d 384. “Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true.” Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913.

[¶ 11] Findings of fact by a juvenile court are not overturned unless clearly erroneous. N.D.R.Civ.P. 52(a). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Adoption of S.R.F., 2004 ND 150, ¶ 8, 683 N.W.2d 913. Under N.D.R.Civ.P. 52(a), “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

A

[¶ 12] A deprived child is one “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” N.D.C.C. § 27-20-02(8)(a). Proper parental care is met by exhibiting minimum standards of care that the community will tolerate. Interest of J.R., 2002 ND 78, ¶9, 643 N.W.2d 699.

[¶ 13] Brian does not claim the juvenile court erred in finding his children were deprived as defined by N.D.C.C. § 27-20-02(8)(a).

B

[¶ 14] Brian argues the juvenile court erred in finding clear and convincing evidence that the conditions and causes of the children’s deprivation are likely to continue or will not be remedied.

[¶ 15] To prove deprivation is likely to continue or will not be remedied, the State must offer prognostic evidence that demonstrates deprivation will continue. Interest of T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38. Past deprivation alone is not sufficient to prove deprivation will continue. Interest of T.K., at ¶ 14. However, any prediction of the future requires some reflection on the party’s past conduct. Interest of T.F., 2004 ND 126, ¶ 19, 681 N.W.2d 786. “Prognostic evidence, including reports and opinions of the professionals involved, that forms the basis for a reasonable prediction as to future behavior must be evaluated in determining if a child’s deprivation is likely to continue.” Interest of D.Q., 2002 ND 188, ¶21, 653 N.W.2d 713.

[¶ 16] Incarceration does not alone constitute continued deprivation, but the harm a parent’s incarceration may cause the children “may be established by prognostic evidence that a parent’s current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent’s rights are not terminated.” Interest of T.F., 2004 ND 126, ¶ 12, 681 N.W.2d 786. When a parent, voluntarily and without reasonable justification, makes himself unavailable to care for and parent young children, the children should not be expected to wait or assume the risk involved in waiting for permanency and stability in their lives. Interest of E.R., 2004 ND 202, ¶ 9, 688 N.W.2d 384. “A parent’s lack of cooperation in parenting classes or with social workers is probative, as is the parent’s background.” Interest of E.G., 2006 ND 126, ¶ 10, 716 N.W.2d 469. Such lack of parental cooperation is indicative of the likelihood deprivation will continue. Interest of D.Q., 2002 ND 188, ¶ 21, 653 N.W.2d 713.

[¶ 17] Brian’s history of incarceration in Oklahoma and North Dakota indicates the children’s deprivation will not cease in any reasonable amount of time. At the time of the hearings, the evidence indicated Brian would be incarcerated until July 20, 2006. The evidence also established he had no contact with his children since October 2004 when they were removed from Katherine’s home. By the time he would be released from prison, he would not have seen his children for almost twenty-one months. Brian’s children cannot be expected to wait any longer for Brian to provide them with stability by staying out of jail. Furthermore, Brian admitted he would have a difficult time supporting his children, at least initially, because of a lack of money and housing uncertainty. Based on Brian’s job history and past living arrangements, there is no indication Brian will be able to obtain stable employment or adequate housing sufficient to prevent continued deprivation.

[¶ 18] Brian has displayed an inability or lack of desire to be part of his children’s lives for any prolonged period of time. Brian admittedly allowed Katherine to be the children’s primary caretaker despite his knowledge of Katherine’s limitations as a parent. Except for a brief time a few years back, Brian played a very small role in raising his children. Deprivation can result from habitual absence from the children’s lives. “To terminate parental rights, a court need not await the happening of a tragic event.” Interest of T.K., 2001 ND 127, ¶ 17, 630 N.W.2d 38. The evidence supports the juvenile court’s finding there is clear and convincing evidence the deprivation is likely to continue, and we conclude the finding is not clearly erroneous.

c

[¶ 19] To terminate a parent’s rights, there must also be evidence that continued deprivation has led to the children suffering or will in the future probably result in physical, mental, moral, or emotional harm to the children. Interest of D.D., 2006 ND 30, ¶23, 708 N.W.2d 900. “Assisting a parent to establish an adequate environment for the child by offering long term and intensive treatment is not mandated if it cannot be successfully undertaken in a time frame that would enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care.” Interest of E.R., 2004 ND 202, ¶ 11, 688 N.W.2d 384. The risk of harm to children also may be proven by prognostic evidence. Interest of E.G., 2006 ND 126, ¶ 15, 716 N.W.2d 469.

[¶ 20] Brian does not appeal the juvenile court’s finding that there has been and probably will be harm suffered by the children because of his continued deprivation. The record supports that Brian’s pattern of incarceration and failure to avail himself of assistance from Social Services have already led to his children suffering.

Ill

[¶ 21] We conclude the juvenile court’s finding that there is clear and convincing evidence to support the termination of Brian’s parental rights to Sarah, Doug, and Jenny is not clearly erroneous. The order is affirmed.

[¶ 22] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.

      . The parties’ names are pseudonyms.


source: Caselaw Access Project

author: CALDWELL, Circuit Judge.

license: Public Domain

text:
    2006 SD 85
    Timothy R. JOHNS and Leann L. Johns, Plaintiffs and Appellants, v. BLACK HILLS POWER, INC., a South Dakota Corporation, Defendant and Appellee.
    No. 23896.
    Supreme Court of South Dakota.
    Considered on Briefs May 24, 2006.
    Decided Sept. 20, 2006.

      Dave L. Claggett, Spearfish, South Dakota, Attorney for plaintiffs and appellants.
    Gary D. Jensen of Beardsley, Jensen & VonWald, Rapid City, South Dakota, Attorneys for defendant and appellee.
   CALDWELL, Circuit Judge.

[¶ 1.] Timothy and LeAnn Johns (Johns) appeal the circuit court’s grant of summary judgment in favor of Black Hills Power, Inc. (BHP) on their claim of trespass or, in the alternative, inverse condemnation. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On July 24, 1990, Johns purchased a residence located at 110 South Main Street, Lead, South Dakota. The property was purchased from Barbara E. Huebler (Huebler). BHP placed an anchor pole and guy wires on the northeast corner of Huebler’s property in 1989. The anchor pole and guy wires provided support for pole No. 7 located on the opposite side of the street. The anchor pole and guy wires were on the property at the time of Johns’ purchase. Johns became customers of BHP the day after the property was transferred to them. Johns’ residence did not directly receive electrical service from pole No. 7. Its electrical service was provided by pole No. 50.

[¶ 3.] In the spring of 2004, BHP placed a wooden stake in Johns’ yard for the proposed placement of additional guy wires. Johns objected to the placement and checked the public records to determine the extent of BHP’s rights. A check of the records disclosed no license, easement or other writing granting BHP a right to occupy the property. Johns notified BHP by letter to either immediately remove the pole and guy wires or negotiate an easement if it wished to continue to use the property. BHP ultimately removed the anchor pole and guy wires in November 2004.

[¶ 4.] This action was originally commenced by Johns as a small claims action. BHP petitioned to transfer the case to circuit court. Johns alleged that BHP has committed trespass, or, in the alternative, inverse condemnation. BHP acknowledged that no easement or license had been filed with the register of deeds. BHP maintained that its tariff required the granting of rights of way as a condition of service. BHP asserted that even if a taking had occurred, Johns did not have standing to maintain an action. Further, it argued that Johns had constructive notice of the alleged taking when they purchased the property and, therefore, were estopped or waived any such claim. BHP moved for summary judgment which was granted by the circuit court. Johns appeal.

STANDARD OF REVIEW
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. If any legal basis exists to support the circuit court’s ruling, we will affirm. Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635 (citing SDCL 15-6-56(e) (1966)); see De Smet Ins. Co. of South Dakota v. Gibson, 1996 SD 102, ¶5, 552 N.W.2d 98, 99. “With the material facts undisputed, our review is limited to determining whether the [circuit] court correctly applied the law.” Kobbeman, 1998 SD 20, ¶ 4, 574 N.W.2d at 635.

Schulte v. Progressive Northern Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438.

ANALYSIS AND DECISION ISSUE

[¶ 5.] Whether the circuit court erred in granting summary judgment in favor of BHP.

Tariff
[¶ 6.] SDCL 49-34A-10 provides: Pursuant to rules promulgated under chapter 1-26 by the Public Utilities Commission, every public utility shall file with the commission, within such time and in such form as the commission may designate, tariffs and schedules showing the terms and conditions of service and all rates established by the public utility and collected or enforced, or to be collected or enforced, within the jurisdiction of the commission. The public utility shall keep copies of such tariffs and schedules open to public inspection under such rules as the commission may promulgate. Schedules and tariffs approved by the commission have the force and effect of law.

Before the circuit court, BHP asserted that Section 310 of the Rules and Regulations Covering Electric Service (tariff) filed by BHP with the Public Utilities Commission (PUC) granted a right-of-way without compensation. Section 310 provides:

Customer shall, without compensation, make or procure satisfactory conveyance to Company of right-of-way for Company’s lines necessary and incidental to the furnishing of service to customer and for continuing or extending said lines over and across the property owned or controlled by customer. The Company shall not be liable for damages involving the power line when such damages result from actions of parties other than the Company.

[¶ 7.] Johns argued that Section 310 is unconstitutional in as much as it provides for a taking without compensation. BHP argued that the tariff is a contract with its customers and is accepted by the customer when accepting electric service. BHP maintained that the anchor pole and guy wires were part of the distribution system which supplied electricity to Johns. BHP claimed that there was no constitutional issue when a correct understanding of the tariff was applied.

[¶ 8.] The circuit court did not grant summary judgment on this basis and withheld a decision on the constitutionality issue because Johns had not given proper notice to the attorney general pursuant to SDCL 15 — 6—24(c). Johns still have not provided the required notice and this Court declines to consider the constitutionality issue before the circuit court has an opportunity to fully consider it. Boever v. South Dakota Bd. of Accountancy, 526 N.W.2d 747, 751 (S.D.1995).

Standing

[¶ 9.] The anchor pole and guy wires were placed on the property prior to Johns’ purchase. Johns’ complaint alleged trespass or, in the alternative, inverse condemnation. The circuit court concluded that the placing and maintaining of the pole on Johns’ property was not a temporary or continuing trespass. “If the invasion is deemed to be ‘permanent,’ there is but one cause of action, and the statute of limitation commences to run from the time the invasion began, or when it became known to the aggrieved party.” City of Sioux Falls v. Miller, 492 N.W.2d 116, 118 (S.D.1992) (citations omitted).

[¶ 10.] The following factors are considered in determining whether a nuisance or trespass is permanent:

(1) [I]s the source of the invasion physically permanent, i.e., is it likely, in the nature of things to remain indefinitely?
(2) [I]s the source of the invasion the kind of thing an equity court would refuse to abate by injunction because of its value to the community or because of the relations between the parties?
(3) [W]hich party seeks the permanent or prospective measure of damages?

Miller, 492 N.W.2d at 119 (quoting Dan D. Dobbs, Handbook on the Law of Remedies § 5.4, at 338 (1973)).

“First, a nuisance or trespass is usually not regarded as a permanent one unless it is physically permanent or likely to continue indefinitely.” Dobbs, supra. Under the second part of the test, Dobbs mentions that there are two large classes of cases, in which courts will not order removal of the trespassing structure or cessation of the operation of a nuisance-causing activity. In one class the defendant has the power of eminent domain. In such cases, courts will not force the defendant to cease operation since the defendant could, after a formal condemnation, continue its operation. “In a case like this, then, the source of the nuisance or trespass is physically permanent, and also legally permanent, in the sense that courts will not require its removal.” Id. at 340.

Miller, 492 N.W.2d at 119.

[¶ 11.] Despite the fact that BHP ultimately decided to replace the anchor pole and guy wires after a substantial financial subsidy from the City of Lead, the placement of the anchor pole and guy-wires on Johns property was permanent or likely to continue indefinitely. Further, it is doubtful that a court would require BHP to remove them because BHP could have formally condemned the property to place the pole on the property. See SDCL 49-33-10. “ ‘The clearest case of a permanent nuisance or trespass is the one where the offending structure or condition is maintained as a necessary part of the operation of a public utility.’ ” Miller, 492 N.W.2d at 119 (citation omitted).

[¶ 12.] This Court holds that the circuit court was correct as a matter of law in concluding that this was a permanent trespass. “[I]f a [trespass] is deemed permanent, there is only one unceasing invasion of the plaintiffs interests and only one cause of action.... The statute of limitations of the one cause of action must, then, begin running from the time the invasion began, or from the time it became manifest.” Id. (quoting Dobbs, supra at 343). Johns’ action is really one for inverse condemnation or a taking because of the permanent nature of the trespass. See Miller, 492 N.W.2d at 120. “[I]t is a general rule of the law of eminent domain that any award goes to the owner at the time of the taking, and that the right to compensation is not passed to a subsequent purchaser.” Palazzolo v. Rhode Island, 533 U.S. 606, 628, 121 S.Ct. 2448, 2463, 150 L.Ed.2d 592 (2001). The anchor pole and guy wires at issue were placed on the property in 1989 prior to Johns’ purchase on July 24, 1990. When Johns purchased the property, any diminution in value caused by the placement of the pole and wires presumably was reflected in the purchase price. Johns concede in their brief that if the trespass or taking is permanent, the cause of action would belong to the former owner. This Court affirms the circuit court’s conclusion that any cause of action for inverse condemnation belongs to the prior owner and Johns lack standing to maintain an action for the taking.

Constructive Notice and Waiver

[¶ 13.] The circuit court also concluded that even if Johns had standing, summary judgment was proper based on constructive notice and waiver. Because this Court concludes that Johns lack standing, it is not necessary to address this issue.

[¶ 14.] We affirm the grant of summary judgment because Johns do not have standing.

[¶ 15.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 16.] CALDWELL, Circuit Judge, for SABERS, Justice, disqualified.

      . Johns initially sought damages in the amount of $8,000 in the small claims proceeding. After removal to circuit court, Johns claimed in their answers to BHP's interrogatories damages in the amount of $5 per day compounded daily for eighteen years at ten percent per annum, totaling $103,191.98.

      . Johns reliance on SDCL 15-6-17(a) as a bar to the granting of summary judgment is misplaced. The concepts of "real party in interest” and "standing to sue” are related, but distinct. See 6A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 1542 (2004). "A party must be both the real party in interest and have standing.” Id.

      In the realm of public law, when governmental action is attacked on the ground that it violates private rights or some constitutional principle, the question whether the challenger is a proper party plaintiff to assert the claim rarely is analyzed in terms of real party in interest or capacity principles. Instead, the courts have tended to rely on the judge made doctrine of standing to sue. To the extent that standing in this context is understood to mean that the litigant actually must be injured by the governmental action that he is assailing, then it closely resembles the notion of real party in interest under Rule 17(a), inasmuch as both terms are used to designate a plaintiff who possesses a sufficient interest in the action to entitle him to be heard on the merits. Thus, for example, the well-settled rule that a party ordinarily does not have standing to raise the constitutional rights of another person who is not joined in the suit may be thought of as merely a particular application of the real party in interest principle. However, several other elements of the standing doctrine are clearly unrelated to the rather simple proposition set out in Rule 17(a), and plaintiff must both be the real party in interest and have standing.

        Id.


author: ZINTER, Justice.

text:
    2006 SD 86
    In re REASONABLE TESTING ACCOMMODATIONS OF Terry Lee LaFLEUR.
    No. 23701.
    Supreme Court of South Dakota.
    Argued April 25, 2006.
    Decided Sept. 20, 2006.
    Rehearing Denied Oct. 31, 2006.

      Dominic M. Smith, South Dakota Advocacy Services, Sioux Falls, South Dakota, Attorney for applicant and appellant.
    James D. Leach, Board of Bar Examiners, Rapid City, South Dakota and Lawrence E. Long, Attorney General, Robert Mayer, Deputy Attorney General, Pierre, South Dakota, Attorneys for Board of Bar Examiners and appellee.
   ZINTER, Justice.

[¶ 1.] Terry Lee LaFleur failed to pass the South Dakota bar examination on three occasions. On his last attempt, he failed even though the South Dakota Board of Bar Examiners granted his request for accommodations under the Americans with Disabilities Act (ADA). Those accommodations included time and one half to take the exam and a private, distraction free room. Prior to a fourth attempt, LaFleur requested double time and other accommodations, but the Board only granted the accommodations provided on the third attempt. LaFleur appeals. We affirm.

Facts and Procedural History

[¶ 2.] LaFleur attended Thomas M. Cooley School of Law. The school is located in Lansing, Michigan and is accredited by the American Bar Association. While in law school, LaFleur experienced difficulties maintaining acceptable grades and was placed on academic probation. He underwent psychological testing by Dr. Robert J. Fabiano. Dr. Fabiano diagnosed Attention Deficit Hyperactivity Disorder (ADHD) (Inattentive Type) and Major Depressive Disorder (Single Episode, Mild). Thereafter, LaFleur received special accommodations in law school, including additional time to take examinations and the use of a private testing room. With these accommodations, LaFleur met the requirements for graduation.

[¶ 3.] After graduation, LaFleur applied to take the July 2002 South Dakota bar examination. In his application, La-Fleur requested accommodations for his ADHD. He requested time and a half, use of a private and distraction free room, rest periods, and a tape recorder. The Board Secretary denied LaFleur’s request. La-Fleur failed that exam.

[¶ 4.] LaFleur next applied for the February 2003 examination. This time, LaFleur did not request any accommodations. He again failed.

[¶ 5.] A week later, LaFleur applied for the July 2003 examination. On this third application, LaFleur requested accommodations of time and a half, use of a private and distraction free room, rest periods, and a tape recorder. The Board Secretary again denied this request. LaFleur, however, appealed that decision to the full Board, and an administrative hearing was scheduled. The day before the hearing, the Board granted LaFleur’s requested accommodations. Although the Board granted LaFleur’s requested accommodations, he withdrew from the July 2003 examination.

[¶ 6.] LaFleur then applied for the February 2004 examination and requested the same accommodations, including time and a half. He took the February 2004 examination with his requested accommodations but failed by four points.

[¶ 7.] LaFleur subsequently petitioned this Court for permission to take the exam for a fourth time. After we granted his petition, LaFleur again requested accommodations. The Board Secretary asked LaFleur to update his medical records supporting his request. LaFleur complied and sought an updated psychological evaluation at the University of South Dakota Counseling Center. Mr. Michael Fendt, a university doctoral student and licensed psychologist in Minnesota, performed the evaluation under the authority and supervision of Dr. Matt Stricherz, Ph.D., a licensed psychologist. The evaluation indicated that LaFleur had a reading disorder and Attention Deficit Disorder (ADD) (Combined Type).

[¶ 8.] Based on the updated psychological evaluation, LaFleur applied for the July 2005 examination and requested new accommodations. This time he requested: double time on all subtests; testing over a four day period ■ rather than two days; testing to be conducted in the mornings into the early afternoon; a private, distraction free room; use of colored pens and a ruler; and use of scratch paper. In support of this request, LaFleur submitted a form documenting his disability. La-Fleur’s submission indicated that he had “difficulty following written and oral directions, disorganization, inattention, dis-tractibility, and hyperfocusing adversely impacting] verbal processing under time tested conditions.” LaFleur also submitted Mr. Fendt’s psychological evaluation report, which indicated that LaFleur had “difficulty sustaining attention in academic tasks, conversations with people, and problems staying focused at work.” The report further indicated that LaFleur had “difficulties following through on instructions at home, work, and at school, and failing to complete his responsibilities in these environments” and that LaFleur “would easily be distracted by external and internal stimuli, and ... [had] great difficulty organizing tasks.”

[¶ 9.] Although the Board Secretary denied LaFleur’s new requests for accommodations, including double time, she granted time and a half and a private room. LaFleur again'requested an administrative hearing before the Board. Following the hearing, the Board issued findings of fact and conclusions of law only allowing the previously provided accommodations. LaFleur appeals arguing that the Board violated the ADA in failing to provide his requested accommodations.

Standard of Review

[¶10.] “[U]nder SDCL 16-16-16, this Court is the final arbiter of the decisions of the Board of Bar Examiners, and as such, we can accept or reject the Board’s conclusion.” Application of Wid-dison, 539 N.W.2d 671, 675 (S.D.1995) (citing Application of Shemonsky, 379 N.W.2d 316, 318 (S.D.1985)). We generally apply the “de novo standard of review to both questions of law and fact in all bar admission cases.” Id. (rejecting admission to State Bar for failure to demonstrate good moral behavior). See also In re Ogilvie, 2005 SD 65, 698 N.W.2d 78 (lacking required good moral character); In re Yanni, 2005 SD 59, 697 N.W.2d 394 (reversing Board’s refusal to admit applicant without examination). However, this case does not involve these types of questions relating to an applicant’s eligibility for admission to the Bar. This case involves more academic and technical questions regarding testing matters for an examination that the Board administers. In analogous cases where “the accommodation involves similar academic decisions, ‘courts [have] show[n] great respect for the [academic officials’] professional judgment.’ ” See Mershon v. St. Louis Univ., 442 F.3d 1069, 1078 (8th Cir.2006) (quoting Amir v. St. Louis Univ., 184 F.3d 1017, 1028 (8thCir.l999) (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523, 532 (1985))). We agree that in such matters, we should give “due weight” to the Board’s administrative decisions and will not substitute our own notion of exam policy. See Gill v. Columbia 98 School Dist., 217 F.3d 1027, 1037 (8th Cir.2000) (citing Board of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690, 712 (1982)).

Decision

[¶11.] The ADA is a federal civil rights act that is “designed to provide comprehensive protection for disabled individuals against discrimination based on their disabilities.” Theriault v. Flynn, 162 F.3d 46, 47-48 (lstCir.1998). This comprehensive act is designed “to eliminate disability discrimination on three fronts: employment (Title I, 42 USC §§ 12111-12117); public services offered by public agencies (Title II, 42 USC §§ 12131-12165); and public services and accommodations offered by private entities (Title III, 42 USC 12161-12189).” Martin v. Taft, 222 F.Supp.2d 940, 966 (S.D.Ohio 2002). LaFleur alleges a violation under Title II, which provides in part:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such agency.

42 USC § 12132. “The protection afforded [under Title II of] the ADA is characterized as a guarantee of ‘meaningful access’ to government benefits and programs, which broadly means that public entities must take reasonable steps to ensure that individuals with disabilities can take advantage of such public undertakings.” Theriault, 162 F.3d at 48 (citations omitted).

[¶ 12.] LaFleur contends that the Board violated Title II by failing to approve his requested accommodations and, in particular, his request for double time to take the exam. In order to prevail on this claim, LaFleur “must show (1) that [he] is disabled, (2) that [his] requests for accommodations [were] reasonable, and (3) that those requests have been denied.” D'Amico v. New York State Bd. of Law Exam’rs, 813 F.Supp. 217, 221 (W.D.N.Y. 1993). See also Cox v. Alabama State Bar, 330 F.Supp.2d 1265, 1267 (M.D.Ala. 2004). In the analogous Title III setting, the Eighth Circuit further explained that under the reasonable accommodation requirement: a plaintiff must show “that the defendant failed to make reasonable modifications that would accommodate the plaintiff’s disability without fundamentally altering the nature of the public accommodation.” Amir, 184 F.3d at 1027 (emphasis added) (citations omitted). The Board has conceded that it is a public entity, that LaFleur is disabled, and that his requested accommodations were denied. Therefore, the question is whether LaFleur proved that the Board failed to make reasonable accommodations that would accommodate his disability.

[¶ 13.] LaFleur first claims that in light of Mr. Fendt’s evaluation, LaFleur’s requested accommodations were reasonable, and therefore, the Board was required to implement those accommodations unless the Board proved that the accommodations would fundamentally alter the nature of the bar exam. In support of his argument, LaFleur relies on a reasonable-modifications regulation found in 28 CFR § 35.130(b)(7), which provides:

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate conclusively that making the modifications would fundamentally alter the nature of the service, program, or activity.

Under this regulation, LaFleur contends that once he made a prima facie showing of a need for accommodations through Mr. Fendt, the Board was required to demonstrate that LaFleur’s requested accommodation would fundamentally alter the nature of the exam. Because the Board made no showing that LaFleur’s requested accommodations would fundamentally alter the nature of the bar exam, he contends that he must prevail.

[¶ 14.] However, because the Board never relied upon the fundamental alteration defense, LaFleur misapprehends the issue that is actually presented in this case. In analyzing this regulation, the Supreme Court recognized that the “fundamental-alteration” language is only one part of the reasonable-modification requirement. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 604, 119 S.Ct. 2176, 2189, 144 L.Ed.2d 540, 560 (1999). The Supreme Court acknowledged that in addition to the fundamental alteration defense, a public agency may also satisfy the reasonable accommodation requirement if the public entity actually provides effective, alternative accommodations. See Id. at 605-606, 119 S.Ct. at 2189-2190. Consequently, the reasonable modification requirement not only permits a public entity to reject a proposed accommodation if it would fundamentally alter the entity’s services or programs, but also if the public entity’s alternative accommodation would accommodate the individual’s disability.

[¶ 15.] In this case, rather than raising the fundamental alteration defense, the Board relied solely on evidence that the alternative accommodations it offered were reasonable and adequate to accommodate LaFleur’s disability. Therefore, we must determine whether LaFleur satisfied his ultimate burden of proving that those alternatives did not provide reasonable accommodations for his disability.

[¶ 16.] LaFleur’s proof was primarily based on the updated psychological evaluation performed by Mr. Fendt. Mr. Fendt obtained a bachelor’s degree in psychology in 1971, a master’s degree in counseling in 1996, and was a doctoral student at the time of the evaluation. He recommended that LaFleur be given double time on all tests; a private, distraction free room for testing; segmented testing over a four day period and other accommodations. Mr. Fendt testified that double time was the national standard for people with disabilities similar to LaFleur’s. When pressed further, however, Mr. Fendt disclosed that this was the standard for entrance examinations such as the GRE, GMAT, SAT, and the ACT. Mr. Fendt conceded that he did not know the national standard for bar examinations, and he did not contact anyone at the National Conference of Bar Examiners to determine that standard.

[¶ 17.] In contrast, the Board relied upon the testimony of Dr. John D. Ran-seen, a licensed psychologist. Dr. Ran-seen is an associate professor of psychiatry at the University of Kentucky Medical Center. Dr. Ranseen also consults for sixteen different state boards of bar examiners, has made numerous invited presentations on the ADA, and has published several articles on ADA accommodations. Dr. Ranseen was also familiar with La-Fleur’s case as he had reviewed LaFleur’s file on two prior.occasions. Based on his review of LaFleur’s case, including the updated evaluation performed by Mr. Fendt, Dr. Ranseen opined that double time was unnecessary because time and a half and a distraction free room would reasonably accommodate LaFleur’s disability. Dr. Ranseen reported:

The updated evaluation seemingly indicates that Mr. LaFleur still encounters some relative difficulty in terms of his general academic processing speed such that I recommend that he be provided 50% extra time. I think that it is plausible that he is a distractible individual secondary to weakness in his ability to sustain attention. Thus, I recommend that he again be provided a separate (or distraction-reduced) testing area. However, based on my numerous stated concerns and his past history of accommodation (50% extra time, separate room), I see no reason tvhy additional accommodations should be offered (100% extra time, additional days).

Dr. Ranseen explained that: 1) LaFleur had received similar accommodations (time and a half) in the past; 2) since then, he had been treated for his attention deficit hyperactivity disorder; 3) treatment usually helps the ability to focus; and 4) although it was not clear that the treatment greatly improved LaFleur’s ability to focus, there was also no clear indication that his ability to focus had significantly decreased.

[¶ 18.] After evaluating the testimony and qualifications of these experts, the Board adopted Dr. Ranseen’s opinion over that of Mr. Fendt. As the Board noted, Dr. Ranseen was more qualified, knowledgeable, and experienced than Mr. Fendt or Dr. Stricherz in determining ADA accommodations for bar examinations. We have often stated that a quasi-judicial fact finder is vested with discretion in choosing the expert that it believes concerning a person’s impairment. Tischler v. United Parcel Service, 1996 SD 98, ¶46, 552 N.W.2d 597, 605 (stating that in workers’ compensation cases, “[i]t is within the [agency’s] discretion to disregard one expert’s impairment rating and accept another.”). We see no difference here. Therefore, the Board did not err in finding that LaFleur failed to satisfy his burden of proving that he was denied reasonable modifications that would accommodate his disability.

[¶ 19.] Affirmed.

[¶ 20.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, and MILLER, Retired Justice, concur.

[¶ 21.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

      . Under SDCL 16-16-11, an applicant who fails the bar examination three times may only retake the exam with permission from this Court.

      . The evaluation also recommended LaFleur's request: use of written formats for all test materials, to write answers to the MBE and later transferring them to the "bubble sheet,” and an option to use audio recordings. La-Fleur asks for reversal of the Board and a granting of all accommodations recommended in this evaluation, or in the alternative, an order modifying the Board’s decision granting the accommodations listed in ¶ 8, supra.

      . LaFleur argues that, in deciding this issue, we must apply a modified burden shifting analysis similar to the McDonnell Douglas analysis utilized in Title VII employment discrimination cases. See Peebles v. Potter, 354 F.3d 761, 766 (8thCir.2004) (stating that “a modified burden shifting analysis” is utilized "because a claim against an employer for failing to reasonably accommodate a disabled employee does not turn on the employer’s intent or actual motive. The McDonnell Douglas line of cases, however, is aimed at fleshing out this 'elusive factual question of intentional discrimination.' ”) (citations omitted).
      In any event, we believe that this type of burden shifting analysis is only applicable in motions for summary judgment and directed verdicts. See Lord v. Hy-Vee, 2006 SD 70, ¶ 22, 720 N.W.2d 443, 452; Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 575 (5thCir.2004) (" The McDonnell Douglas formula ... is applicable only in a directed verdict or summary judgment situation.’ ”) (quoting Powell v. Rockwell Int’l Corp., 788 F.2d 279, 285 (5thCir.l986)). In this case, we are not presented with an appeal involving summary judgment or directed verdict. Rather, the Board made its decision after a full hearing on the merits of the reasonableness claim. Therefore, the burden shifting analysis is inapplicable. The issue is simply whether LaFleur was denied reasonable accommodations.

      . In the context of alternative placements for persons with mental disabilities, the Supreme Court stated:
      If ... the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.

        Id. at 605-606, 119 S.Ct. at 2189.

      . Dr. Ranseen was a consultant for the board of bar examiners in: California, Colorado, Florida, Kentucky, Louisiana, Maryland, Minnesota, Missouri, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia.

      . Dr. Ranseen’s invited presentations on the ADA included:
      1) "Learning Disability Among College Students: A Neuropsychologist's Perspective.” Counseling and Testing Center, University of Kentucky. March 1993.
      2) "Testing Under the ADA: What You Should Know About the Definition, Diagnosis, and Accommodation of Disabilities.” American Bar Association: Section on Legal Education and Admissions to the Bar. Chicago, Illinois. August 1995.
      3) "Testing Under the ADA: Issues with Adult Attention Deficit Disorder.” National Conference of Bar Examiners. Chicago, Illinois. April 1996.
      4) "Testing Under the ADA: Evaluating Disability Documentation.” National Conference of Bar Examiners. Chicago, Illinois. April 2000.
      5) ADA Case Studies. National Conference of Bar Examiners. New Orleans, Louisiana. March 2004.

      . Dr. Ranseen's published articles relating to the ADA included:
      1) Ranseen, J.D., Lawyers With ADHD: The Special Test Accommodation Controversy, Professional Psychology (1998).
      2) Ranseen, J.D., Reviewing ADHD Accommodation Requests An Update, The Bar Examiner (2000).
      3)Ranseen, J.D. & Park, G.S., Test Accommodations for Post-Secondary Students: The Quandary of ADA’s Disability Definition, Psychology, Public Policy & Law (2005).


author: CARTER, Justice. WIGGINS, Justice

text:
    STATE of Iowa, Appellee, v. Douglas Arnold GRANT, Appellant.
    No. 05-0020.
    Supreme Court of Iowa.
    Oct. 13, 2006.
    Martha M. McMinn, Sioux City, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Nicholaus D. Garwick, Intern, and Thomas S. Mullin, County Attorney, for appellee.
   CARTER, Justice.

Defendant, Douglas Arnold Grant, convicted following a bench trial of possession with intent to deliver methamphetamine in violation of Iowa Code section 124.401(l)(c)(6) (2003), a class “C” felony, appeals, challenging the sufficiency of the evidence to show intent to deliver the controlled substance found in his possession. After reviewing the record and considering the arguments presented, we affirm the decision of the court of appeals and the judgment of the district court.

Officers Wagner and Tisher of the Sioux City Police Department, who were members of an area drug task force, were trying to locate two persons suspected of manufacturing methamphetamine. Information they received from an informant indicated that defendant knew the suspects and might know of their whereabouts.

The officers went to a house in Sioux City where defendant and his brother were residing. They inquired whether the persons they were looking for were inside the house. When defendant answered in the negative, Officer Wagner asked if they could search the house to verify that their suspects were not there. Defendant replied that they could.

After entering defendant’s residence, the officers discovered that defendant and his brother had recently been smoking marijuana in one of the rooms. Officer Wagner asked if they could also search the residence for marijuana. Defendant agreed that they could. The officers’ search for marijuana and the persons they were looking for was unproductive, but they did find an address book containing the names of two persons known to them as manufacturers and distributors of methamphetamine.

At this point, Officer Wagner asked defendant whether he had any methamphetamine in the house. Defendant acknowledged that he might have an “eightball,” which in drug parlance is approximately one-eighth of an ounce. He led Officer Wagner to a location in the basement where two sealed tins were secreted above an air duct. In opening the tins, the officers discovered eight individually wrapped packages of methamphetamine totaling 5.38 grams in weight. Also contained in one of the tins was the plastic shell of a ballpoint pen with the ink cartridge removed. The officers identified this object as a “tooter” used for inhaling methamphetamine fumes.

Defendant was charged with possession with intent to deliver more than five grams of methamphetamine, a class “B” felony. At his trial, Officers Wagner and Tisher testified and described the events that we have recited. Officer Wagner testified that, in his experience involving more than 100 cases, the packages containing between .58 and .66 grams were “dosage” units designed for sale as such in order to produce a quick high. He further testified:

Q. And what is the significance of the fact that you see eight individually wrapped baggies of methamphetamine based on your training and experience as a police officer and as a Drug Task Force officer? A. Through my training and experience through both positions, an individual that uses methamphetamine has no reason to take methamphetamine — a larger substance of methamphetamine and put it into individual baggies when they could continually go back to the original bag and use their methamphetamine as they received it from the original bag. I don’t see any reason why a user of methamphetamine would want to go through the hassle of individually packaging all their methamphetamine in small quantities of approximately half-gram to a little more — to one of them being a teener, one-sixteenth of an ounce of methamphetamine. It wouldn’t be common practice for a user of methamphetamine to divide the methamphetamine into separate packaging like that.

On cross-examination, defendant’s counsel developed the fact that no packaging material, scales, or large amounts of cash were found in the officers’ search and that the address book that had been located did not describe particular drug transactions. On redirect, Officer Wagner testified:

Q. Is the fact that you did not see pay/owe sheets, scales, or cash with the eight separately wrapped baggies of methamphetamine, does that detract from your conclusion that what you saw Mr. Grant had with him was consistent with drug dealing? A. No, it does not.
Q. Why doesn’t it detract from your conclusion? A. The eight individually packaged baggies in and of itself is conducive to me that someone is — has these eight packages to be distributed. As I stated earlier, if someone was just a user of illegal drugs, it would be time-consuming and cumbersome to take their larger quantity and break it up into separate baggies for them to be using at a different date when they could just take out of the original bag and use what they wanted and keep it.

On cross-examination, Sergeant Kirkpatrick of the Sioux City Police Department, supervisor of the area drug task force, admitted that the 5.38 quantity of methamphetamine found in defendant’s possession did not exceed that which might be acquired for personal use.

Sergeant Kirkpatrick also testified concerning the buying and selling of methamphetamine on the street. His testimony included the following:

DEFENDANT’S ATTORNEY: And I believe you have relied on the packaging to indicate that it was ready for resale. Couldn’t it just have easily been ready for resale by the person whoever sold this to Mr. Grant? A. Anything is possible.
PROSECUTING ATTORNEY: Is it probable? A. In my opinion, no. Generally, if he’s going to go and buy an eightball from a dealer that sells eight-ball quantities, again, we’re talking about the level in which you exist in this higher food chain, that person is going to have eightballs for sale, probably ounces for sale. Somebody that’s selling dosage units is right at the bottom of the distribution network. They sell dosage units. They package them for quick sale. If you are in the market to buy eightballs or a couple of eightballs, your dealer is generally going to have his drugs packaged that way because of his position in the food chain.

Following a bench trial, defendant was convicted of possessing less than five grams with intent to deliver, a class “C” felony. On appeal he challenges the sufficiency of the evidence to show an intent to deliver any portion of the controlled substance found in his possession and, in the alternative, argues that his conviction was against the weight of the evidence. We consider these issues. Other facts relevant to our decision will be considered in our discussion of the legal issues presented.

I. Proof of Intent to Deliver.

Because it is difficult to prove intent by direct evidence, proof of intent usually consists of circumstantial evidence and the inferences that can be drawn from that evidence. State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996). We have also recognized that in controlled-substance prosecutions opinion testimony by law enforcement personnel experienced in the area of buying and selling drugs may be offered as evidence for purposes of aiding the trier of fact in determining intent. State v. Olsen, 315 N.W.2d 1, 6-7 (Iowa 1982). We stated in Olsen:

[A witness] may testify on the pattern or modus operandi of a certain offense and compare the facts of the case to it. The distinction is that, on the one hand, the witness is asked for an opinion based upon certain evidence as it relates to a well-defined modus operandi and on the other, an opinion on the guilt or innocence of the defendant. The former is proper; the latter is not.

Id. (citations omitted). We have also recognized that the intent to deliver a controlled substance may be inferred from the manner of packaging drugs, large amounts of unexplained cash, and the quantity of drugs possessed. Adams, 554 N.W.2d at 692; State v. Birkestrand, 239 N.W.2d 353, 362 (Iowa 1976); State v. Dandridge, 213 N.W.2d 903, 904 (Iowa 1974).

In State v. Dinkins, 553 N.W.2d 339 (Iowa Ct.App.1996), the court of appeals was presented with a challenge to the sufficiency of the evidence to establish an intent to deliver crack cocaine. The court found that the fact that the defendant was observed interacting with persons on the street in an area where drug trafficking was common, possessed individually wrapped rocks of crack cocaine, along with evidence from an experienced police officer that these actions conformed to those of drug dealers was sufficient to support a finding of intent to deliver. Dinkins, 553 N.W.2d at 342.

In the present case, although the quantity of drugs possessed was characterized as not exceeding that which might be acquired for personal use, the quantity was nonetheless substantial. This fact coupled with the packaging of the drugs and the expert testimony of experienced police officers was sufficient evidence to support the trial court’s finding that defendant intended to deliver at least some of the methamphetamine that was found in his possession. Defendant’s argument to the contrary is based on the assumption that he purchased the drugs wrapped in the form in which they were found at his residence. However, the State countered this theory through the testimony of Sergeant Kirkpatrick that one purchasing methamphetamine for personal use in the quantity that was involved here would ordinarily receive the substance in bulk packaging form. The district court, as trier of fact, could have found from all of the evidence that defendant possessed the substance in individual packages of small amounts to facilitate its sale.

II. The Weight-of-the-Evidence Argument.

As an alternative argument, defendant contends that, if it is found that the evidence was sufficient to show intent to deliver, that finding would be against the weight of the evidence presented. This issue was raised in the district court in a motion for new trial based on Iowa Rule of Criminal Procedure 2.24(2)(5)(6). In acting on such motions, the district court has considerable discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). We review both a grant and a denial of relief based on a weight-of-the-evidence claim for an abuse of discretion. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003).

The granting of a new trial based on the conclusion that a verdict is against the weight of the evidence is reserved for those situations in which there is reason to believe that critical evidence has been ignored in the fact-finding process. In the present case, all of the evidence presented was carefully reviewed by the district court in its findings of fact. There is no basis for concluding that any critical piece of evidence was ignored in the trial court’s decision process. The district court did not abuse its discretion in denying defendant’s claim that its decision was against the weight of the evidence.

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

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except WIGGINS, J., and TERNUS, C.J., who dissent, and HECHT, J., who takes no part.

WIGGINS, Justice

(dissenting).

I respectfully dissent. The only evidence of the defendant’s intent to deliver is the officers’ discovery of eight separate bags of methamphetamine coupled with the officers’ opinion testimony about the purpose of individually wrapped bags. Officer Wagner best expressed the basis of the officers’ opinion. He testified:

I don’t see any reason why a user of methamphetamine would want to go through the hassle of individually packaging all their methamphetamine in small quantities of approximately half-gram to a little more — to one of them being a teener, one-sixteenth of an ounce of methamphetamine. It wouldn’t be common practice for a user of methamphetamine to divide the methamphetamine into separate packaging like that.

The officers did not find packaging materials, scales, large amounts of cash, or pay/owe sheets in the residence. Although the officers did find an address book containing the names of two persons known to them as manufacturers and distributors of methamphetamine, the officers did not find anything that could be construed as a customer list. Additionally, in the same tin as the methamphetamine, the officers found drug paraphernalia used to consume methamphetamine, not to sell it. Finally, the officers conceded the quantity of drugs found did not exceed that which might be acquired for personal use.

Contrary to the officers’ testimony, there are many reasons, consistent with personal use explaining why the methamphetamine was packaged separately. First, the defendant may have bought the drugs in eight different packages. Second, the defendant may have bought the methamphetamine in one package and repackaged the drugs, planning to take just enough to use at one time. Third, personal use makes perfect sense when the individually packaged drugs were found in the same tin as the device to use the drugs.

“[Ijntent, being a mere act of the mind ... is usually established by appropriate inference and presumptions from the overt acts proved.” Hall v. Wright, 261 Iowa 758, 771-72, 156 N.W.2d 661, 669 (1968). Without any additional evidence of intent, the finder of fact would have to speculate whether the packaging indicated the defendant had the intent to sell the methamphetamine. Under this record, it is just as likely that the packaging indicated the defendant intended to use the methamphetamine for personal use. Accordingly, I believe finding eight packages of methamphetamine, in small quantities consistent with personal use, in the same container as paraphernalia used to consume these drugs, without any other evidence is insufficient to support a conviction beyond a reasonable doubt for possession with intent to deliver methamphetamine. I would reverse the conviction.

TERNUS, C.J., joins this dissent.

      . The individual weights for the eight packages were .66 grams, .65 grams, .64 grams, .40 grams, .58 grams, .62 grams, .64 grams, and 1.19 grams.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellant, v. Keiaffa Nichole GREEN, Appellee.
    No. 04-1578.
    Supreme Court of Iowa.
    Oct. 13, 2006.
    Thomas J. Miller, Attorney General, Mark A. Hunacek, Assistant Attorney General, J. Patrick White, County Attorney, and Derek Swanson, Assistant County Attorney, for appellant.
    Thad J. Collins of Pickens, Barnes & Abernathy, Cedar Rapids, for appellee.
   LARSON, Justice.

Keiaffa Green was charged with operating a motor vehicle while her license was suspended, a simple misdemeanor under Iowa Code sections 321.218 and 321.210(l)(f) (2003). The State successfully applied for discretionary review under Iowa Code section 814.5(2)(d) (review of “final judgment or order raising a question of law important to the judiciary and the profession”). We affirm and remand.

I. Facts and Prior Proceedings.

On July 27, 2003, Keiaffa Green was cited for driving ninety-two in a sixty-five mph zone, a “serious violation” qualifying her for a license suspension under Iowa Code section 321.210(1)(/’). Iowa Department of Transportation (DOT) records included a copy of a letter dated January 24, 2004, to Green notifying her that her license would be suspended as of March 3, 2004. On March 4, 2004, Green was cited for driving under the suspension. Following trial, a magistrate dismissed the charge on the ground the State had failed to show that Green had actually received notice of her suspension.

The State argues that the district court lacked authority in a criminal case (driving under suspension) to adjudicate the legality of the suspension — an issue it claims may only be raised through judicial review of agency action under Iowa Code chapter 17A. The State also argues that the court erred in holding that the actual receipt of a notice of suspension is required for conviction.

Ordinarily, the legality of a license suspension must be determined in judicial review proceedings under chapter 17A, not in a collateral criminal proceeding based on that suspension. See State v. Clark, 608 N.W.2d 5, 9 (Iowa 2000) (holding that prosecution for driving while barred is not a proper forum to challenge an underlying DOT failure to provide for a hearing); Iowa Dep’t of Transp. v. Dist. Ct., 534 N.W.2d 457, 459-60 (Iowa 1995) (holding that a district court in a criminal case lacked jurisdiction to determine legality of underlying license revocation).

In Clark a driver was charged with operating a vehicle while suspended. The district court dismissed the charge because the DOT had not complied with the statutory procedures for initiating the hearing on the suspension. 608 N.W.2d at 6. Specifically, the district court ruled that the notice of suspension, which stated that “unless you request a contested hearing” the suspension would become effective, was contrary to statute because it illegally shifted the burden of initiating a hearing to the driver. Id. at 7. We reversed on the ground that the district court had no authority in a criminal case to invalidate the DOT’s action. Id. at 8-9.

In Iowa Department of Transportation v. Iowa District Cowl, the DOT notified the driver that, under a recently enacted statute, his license was revoked because of a drug violation. The driver filed an application for a nunc pro tunc order seeking an adjudication that the new statute did not apply to him. Iowa Dep’t of Transp., 534 N.W.2d at 458. The nunc pro tunc order was entered, and the DOT obtained a writ of certiorari from this court. We held that the district court lacked authority in a criminal action to adjudicate the validity of the revocation; the licensee’s sole remedy was through agency action under chapter 17A. Id. at 459.

In both Clark and Department of Transportation it-was clear that agency proceedings had been commenced by the DOT through notification to the driver of the pending suspension or revocation of their licenses. Clark, 608 N.W.2d at 6; Dep’t of Transp., 534 N.W.2d at 458. Those cases must be distinguished from the present case because in the present case, the issue is whether the condition precedent to agency action, i.e., the notice to the licensee, was established by the DOT.

Two statutes bear on DOT notices. Iowa Code section 321.16, the general notice requirement, focuses on the sending of such notices. It provides:

When the department is authorized or required to give notice under this chapter or any other law regulating the operation of vehicles, unless a different method of giving notice is expressly prescribed, notice shall be given either by personal delivery to the person to be so notified or by personal service in the manner of original notice ... or by first class mail addressed to the person at the address shown in the records of the department ....

Iowa Code § 321.16.

In contrast to that statute, section 321.210(1) provides a more stringent requirement for notices of suspension by focusing on the licensee’s receipt of the notice. It provides:

Prior to a suspension taking effect [for a serious violation] the licensee shall have received thirty days’ advance notice of the effective date of the suspension.

Iowa Code § 321.210(1).

Green contends, and the district court held, that the DOT failed to establish that Green actually received the thirty-day notice, as required by section 321.201(1). The DOT counters that it satisfied the notice requirement by mailing it to Green’s last known address according to DOT records, and the only reason Green did not get the notice was that she moved to an address different from that shown in the DOT records without notifying the DOT of the change of address as required by. statute. We need not address the issue of receipt because we conclude the State failed to prove it mailed the notice.

The district court found as a matter of fact that the DOT had mailed the notice, based on the fact that it introduced a copy of a letter into evidence. The DOT, however, produced no testimony to support its claim of mailing, nor did it produce an affidavit of mailing despite Iowa Code section 321.16’s requirement that the DOT “develop[ ] ... affidavits verifying the mailing of notices under this chapter.” The DOT’s administrative rules, moreover, anticipate.that more than a copy of a suspension notice may be used to verify mailing. This rule provides:

The department may prepare an affidavit of mailing verifying the fact that a notice was mailed by first-class mail. To verify the mailing of a notice, the department may use its records in conjunction with U.S. Postal Service records available to the department.

Iowa Admin. Code r. 761 — 615.37(4).

The DOT points to this saving language of section 321.16, which provides:

A person’s ... claim of failure to receive a notice of revocation, suspension, or bar mailed by first class mail to the person’s last known address shall not be a defense to a charge of driving while suspended, revoked, denied, or barred.

(Emphasis added.) This saving provision clearly contemplates that the notice had been “mailed by first class mail.” In the present case, there was no proof that the notice was in fact mailed. We do not believe that the saving provision of Iowa Code section 321.16 may be read so broadly as to relieve the DOT of showing the mailing of a notice such as by affidavit or a certified mail receipt. We cannot presume, based solely on the DOT’s furnishing of a copy of a notice found in its files that the notice was actually mailed.

We affirm the district court’s order and remand for dismissal of the charge.

AFFIRMED AND REMANDED.

All justices concur except HECHT, J., who takes no part.


author: CARTER, Justice.

text:
    W. Harold ASMUS, Appellant, v. WATERLOO COMMUNITY SCHOOL DISTRICT and Employers Mutual Companies, Appellees.
    No. 04-1538.
    Supreme Court of Iowa.
    Oct. 13, 2006.

      Jay P. Roberts and Carter J. Stevens of Roberts, Stevens & Lekar, PLC, Waterloo, for appellant.
    Valerie A. Landis of Hopkins & Hueb-ner, P.C., Des Moines, for appellees.
   CARTER, Justice.

W. Harold Asmus (claimant), a teacher in the Waterloo Community School District for twenty-six years, appeals from a decision on judicial review upholding the workers’ compensation commissioner’s denial of his disability claim based on an alleged mental injury. Claimant contends that he is disabled from a severe state of depression caused by the stresses that arose from an alleged tyrannical working environment at his school. The workers’ compensation commissioner found that claimant had established the medical causation elements of a work-engendered mental disability claim, but had not proven the necessary elements to establish legal causation. The district court agreed.

Claimant asserts that the commissioner erred in failing to find that he had established both medical causation and legal causation sufficient to sustain a claim of work-related mental disability. In the alternative, he argues that, if legal causation does not exist, the standards for establishing that condition work a denial of equal protection of the law. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

Claimant was a teacher in the Waterloo Community School District from 1975 until April 2000. Except for the first five years of this period, he was a sixth grade teacher at Hoover Middle School, primarily teaching science. Claimant was an active member of the teachers’ union and, until shortly prior to resigning as a teacher, was the union representative for his school building. The principal at Hoover Middle School from 1992 to 1998 evaluated claimant as a satisfactory teacher, although numerous parent complaints about his teaching methods were noted and certain reviews identified poor organizational skills and inability to control his temper.

In the fall of 1998, a new principal began working at Hoover Middle School. Claimant professes to have had no problems in his dealings with that principal during her first year at the school. During the 1999-2000 school year, claimant was diagnosed as suffering from tuberculosis. He alleges that during this school year numerous conflicts with the principal arose that produced great stress in carrying out his teaching responsibilities. In April of that school year, the principal and other teachers who claimant alleged were favored by the principal received anonymous emails in a critical and somewhat obscene tone. An investigation traced the source of these emails back to claimant. A criminal investigation resulted in a charge of harassment being brought against him. That charge was ultimately dismissed as part of an agreement between the prosecutors, claimant, and the school district pursuant to which claimant agreed to resign, and the school district agreed not to lodge a professional license complaint against him.

The sources of the stress that claimant identifies as the cause of his depression were the following:

1. The circulation among teachers in the building of a summary of parent input at a recent parent/teacher conference identifying claimant by name as having intimidated students. Evidence was produced at the arbitration hearing that these parent complaints against claimant were in fact lodged at the parent/teacher conference. However, the principal agreed that it was a mistake to have circulated a summary that identified the teacher against whom complaints had been made.
2. The principal’s refusal to recommend that certain teachers in the building grade less leniently and more in keeping with claimant’s philosophy of grading. Evidence presented indicated that, in declining to support claimant’s efforts to change the grading philosophy of other teachers, the principal fully supported his right to apply his own grading philosophy to his students.
3. Claimant’s science classroom, which was one of the largest classrooms in the building, was divided into two rooms. One of the rooms was devoted to the teaching of a remedial English course. Claimant asserted that he needed the larger room to properly teach his science classes. Evidence was offered that the decision to divide the room was made by the central school administration in order to accommodate a much needed remedial English program. Claimant’s classroom was chosen because of its size and the fact it had two doors, thereby facilitating the division.
4. Claimant contends that the building principal altered a district-wide school improvement plan in order to eliminate a seventh grade teacher that the principal did not like. Substantial evidence was offered to show that the school improvement plan had been developed prior to the principal in question arriving at Hoover Middle School and was a decision of central school administration based upon input from the various school buildings in the district.
5. An issue arose regarding an alleged willful circumvention of claimant in the process of teacher’s applications for special training. Substantial evidence was presented that, although claimant, during the time that he was union representative for the building, was required to approve such applications as to form, the applicants who were alleged to have circumvented his review did this after claimant had been replaced as union representative. The dispute arose during a transition period, and the affected teachers indicated they much preferred to go to the new union representative because claimant unduly cross-examined them concerning their effort to secure special training.
6. An alleged pervasive atmosphere of favoritism of some teachers and intimidation of others (including claimant) engendered by the dictates of the building principal.

With regard to the sixth circumstance listed above, claimant presented a large volume of evidence that things were not going well at Hoover Middle School after the new principal arrived. At least nine teachers in addition to claimant testified that the new principal did in fact engender an appearance of favoring some teachers and intimidating others. Many of these teachers agreed that the principal appeared to be unreasonably antagonistic toward claimant. In response to these witnesses, the school district called the former building principal and assistant principal who testified that there had been a great deal of strife among teachers in the building during the time that they were the chief administrators there. They characterized many of the teachers as strong-minded individuals who thrived on conflict.

In 1990 claimant had sought the help of a psychiatrist and was diagnosed as acutely depressed. He was treated regularly for three years during which he was taking the drug Prozac. His psychiatrist indicated that at the end of the three-year period claimant’s depression was in remission. When claimant’s problems with the criminal law arose in April 2000 as a result of his insulting email to the principal and others, he resumed seeing this psychiatrist. That doctor testified at the arbitration hearing that claimant was suffering from a recurring major depression and posttraumatic stress disorder from child abuse he had suffered at the hands of his stepfather.

This witness testified that claimant equated the principal with his abusive stepfather and that the stresses thus produced were a major cause of his current depressive state. In the witness’s opinion, claimant will never be able to teach again. A psychiatrist that examined claimant on behalf of the school district did not agree that the workplace conditions were a producing cause of claimant’s depression and was of the opinion that, as a result of previously existing mental problems, he misperceived the situations of which he has complained as a vendetta by the building principal.-

In reviewing the evidence presented, the deputy industrial commissioner concluded that, although the medical evidence presented supported a claim of medical causation for purposes of proving a mentally induced injury arising out of the employment, the evidence did not meet the standard of legal causation that a claimant must show in order to prove a compensa-ble mental injury. After an exhaustive review of the testimony given by all of the witnesses, the deputy concluded that the stressors claimed were not sufficiently greater or unusual compared to stress experienced by other individuals in like or similar jobs, including those in the Waterloo Community School District, to satisfy the requirements for legal causation.

In reviewing the deputy’s decision, the workers’ compensation commissioner adopted the deputy’s findings and conclusions and further noted that the claimant’s allegations of stress, whether because of the specific circumstances alleged or due to the general climate within the school, would not be entirely unusual in a teaching setting. The commissioner ruled that “[t]he claimant’s evidence in this case was not strong enough to cross the line” into levels of unusual stress required for proof of legal causation.

I. The Legal Causation Issue.

In Dunlavey v. Economy Fire & Casualty Co., 526 N.W.2d 845, 853-58 (Iowa .1995), this court recognized that a purely mental injury may be compensable under the workers’ compensation laws in the absence of an accompanying physical injury. In order for a mentally injured worker to prevail on such a claim, Dunla-vey required proof of both medical causation and legal causation. Dunlavey, 526 N.W.2d at 853. Medical causation simply requires a claimant to establish that the alleged mental condition was in fact caused by employment-related activities. Legal causation, on the other hand, presents a question of whether the policy of the law will extend responsibility to those consequences that have in fact been produced by the employment. Id. Dunlavey formulated the standard for legal causation as whether the claimant’s stress was “of greater magnitude than the day-to-day mental stresses experienced ' by other workers employed in the same or similar jobs, regardless of their employer.” Id. at 858.

In reaching their respective decisions in the present case, both the deputy workers’ compensation commissioner and the commissioner strictly adhered to the Dunlavey standard of legal causation. They evaluated all of the specific instances that claimant asserts caused him abnormal levels of stress and concluded that events of the same or similar nature would not be abnormal in the teaching profession. With respect to the generalized claim of a pervasive atmosphere of intimidation testified to by many witnesses, the commissioner noted that this climate, which was attributed to the building principal, would not be an unusual perception in the workplace.

Although the standard of legal causation involves an issue of law, see Dunlavey, 526 N.W.2d at 853, the application of that standard to a particular setting requires the commissioner to render an outcome determinative finding of fact. A court on judicial review is bound by that fact-finding if it is supported by substantial evidence.

Evidence is substantial for purposes of reviewing the decision of an administrative agency when a reasonable person could accept it as adequate to reach the same finding. Second Injury Fund of Iowa v. Bergeson, 526 N.W.2d 543, 546 (Iowa 1995); Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). The fact that two inconsistent conclusions may be drawn from the same evidence does not prevent the agency’s findings from being supported by substantial evidence. Munson v. Iowa Dep’t of Transp., 513 N.W.2d 722, 723 (Iowa 1994); Reed v. Iowa Dep’t of Transp., 478 N.W.2d 844, 846 (Iowa 1991). In situations in which the workers’ compensation commissioner has rendered a finding that the claimant’s evidence is insufficient to support the claim under applicable law, that negative finding may only be overturned if the contrary appears as a matter of law. Ward v. Iowa Dep’t of Transp., 304 N.W.2d 236, 238 (Iowa 1981); Wetzel v. Wilson, 276 N.W.2d 410, 412 (Iowa 1979); Auxier v. Woodward State Hospital-School, 266 N.W.2d 139, 144 (Iowa 1978).

In applying these principles to the present case, we conclude that, while evidence presented by the claimant would permit a finding of legal causation, it does not compel such finding. The ultimate decision in such instances is entrusted to the agency. Consequently, the decision of the workers’ compensation commissioner and the district court must be affirmed.

II. The Equal Protection Challenge.

Claimant contends that the legal requirements for establishing a mental injury serve to deny a claimant equal protection of the law under the state and federal constitutions because an additional burden is placed on mental injury claimants that does not exist in establishing compensable physical injury. This assertion is premised on the fact that ordinarily it is not required as a condition of compensability that workplace hazards must be of a specified magnitude in order to produce a com-pensable injury, see Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa 2002), while such a requirement has been imposed with respect to mental injury claims. Claimant insists that there is no rational basis for drawing this distinction.

We have recognized that, under both federal and state embodiments of equal protection when social or economic legislation is at issue, the states have wide latitude and such legislation will be presumed to be valid if the classification drawn is rationally related to legitimate state interests. Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005). We are satisfied that the classification at issue here does not affect a fundamental right and therefore review it under a rational-basis standard. Classifications do not deny equal protection of the law simply because they result in some inequality. Claude v. Guar. Nat’l Ins. Co., 679 N.W.2d 659, 665 (Iowa 2004). They deny equal protection only if the lines drawn do not rationally advance a legitimate government purpose. Id.

In searching for a rational governmental purpose supporting the Dunlavey standard of legal causation in mental injury cases, we need only examine the reasons set forth in that opinion for adopting the standard that was chosen. After considering several different standards of causation in mental injury cases, some more restrictive than the one chosen and some less restrictive, we opted for the standard that was approved because we feared that if only causation in fact was required this would convert the workers’ compensation system into general mental health insurance because few workers with nontrau-matic mental problems could not show that job stress somehow contributed to that condition. Dunlavey, 526 N.W.2d at 855-56; see also Brown v. Quik Trip Corp., 641 N.W.2d 725, 728 (Iowa 2002). The need to protect against that undesirable consequence provides a rational basis for the standard of legal causation that has been adopted. We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

All justices concur except HECHT, J., who takes no part.

      . In the later case of Brown v. Quik Trip Corp., 641 N.W.2d 725, 728-29 (Iowa 2002), we formulated a different standard for those situations in which the mental injury can be readily traced to a specific event.

      . The case of Humboldt Community Schools v. Fleming, 603 N.W.2d 759 (Iowa 1999), relied on by claimant, presents an opposite example of the application of the substantial-evidence rule. In that case, the claimant prevailed because the agency found in the claimant's favor concerning the magnitude of the stress that existed.