author: LANSING, Judge.

text:
    STATE of Minnesota by FRIENDS OF the RIVERFRONT, et al., Appellants, v. CITY OF MINNEAPOLIS, et al., Respondents, Minneapolis Park and Recreation Board, Respondent, DeLaSalle High School, Respondent.
    No. A07-0925.
    Court of Appeals of Minnesota.
    June 24, 2008.

      Jack Y. Perry, Matthew J. Franken, Briggs and Morgan, P.A., Minneapolis, MN, for appellants.
    Susan L. Segal, Minneapolis City Attorney, James A. Moore, Stephen H. Norton, Assistant City Attorneys, Minneapolis, MN, for respondent City of Minneapolis, et al.
    Brian F. Rice, Ann E. Walther, Rice, Michels & Walther, LLP, Minneapolis, MN, for respondent Minneapolis Park and Recreation Board.
    Carolyn V. Wolski, Leonard, Street and Deinard, Minneapolis, MN, for respondent DeLaSalle High School.
    Considered and decided by LANSING, Presiding Judge; TOUSSAINT, Chief Judge; and HUDSON, Judge.
   OPINION

LANSING, Judge.

As part of a challenge to a proposed athletic facility on Nicollet Island, the plaintiffs brought a lawsuit asserting a Minnesota Environmental Rights Act claim, a contract claim, and a declaratory-judgment claim. The district court dismissed the suit. On appeal, the plaintiffs challenge the decision to dismiss each of these claims. We conclude that the MERA claim was precluded by a previous administrative determination, that the contract claim was not ripe, and that the remaining declaratory-judgment claim fails as a matter of law. Accordingly, we affirm.

FACTS

This appeal stems from litigation over DeLaSalle High School and the Minneapolis Park and Recreation Board’s plan to build an athletic facility next to the high school’s campus on Nicollet Island. The city’s historic-preservation committee initially denied a certifícate of appropriateness for the project, but the city council reversed the decision on appeal. In the city-council proceedings, the Friends of the Riverfront, one of the plaintiffs in this case, intervened and argued that the proposed athletic facility would be in violation of the Minnesota Environmental Rights Act (MERA). On certiorari appeal, this court affirmed the city council’s decision to grant the certifícate of appropriateness. Friends of the Riverfront v. DeLaSalle High School, No. A06-2222, 2007 WL 4110617 (Minn.App. Nov. 20, 2007), review denied (Minn. Jan. 29, 2008).

After the city council made its decision — but before this court heard the appeal — the Friends of the Riverfront, the Grove Street Flats Association, and Sidney and Lola Berg brought a suit in district court challenging the proposed athletic facility. They claimed that construction of the facility would violate MERA and the terms of the Bergs’ lease of land on Nicol-let Island. In addition, they claimed that they were entitled to a declaratory judgment that the city-council president had a conflict of interest and should be disqualified from making further rulings on the proposed athletic facility. The district court dismissed the suit, primarily on the basis that the issues had already been decided in the city-council proceeding. The plaintiffs then appealed.

ISSUES

I. Under the collateral-estoppel doctrine, does the city council’s MERA determination preclude an independent MERA lawsuit?

II. Are the contract claims ripe for adjudication?

III. Did the plaintiffs’ action for a declaratory judgment against the city-council president set forth a legally sufficient claim for relief?

ANALYSIS

In their motion to dismiss, defendants presented arguments on a number of issues best raised in a summary-judgment motion. When a motion to dismiss presents matters outside the pleading, the district court can, as it did in this case, treat the motion as a motion for summary judgment. Minn. R. Civ. P. 12.02. On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 788 (Minn.2005). In assessing the evidence, we take the view most favorable to the party against whom judgment was granted. Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc., 666 N.W.2d 320, 323 n. 1 (Minn.2003).

I

The decisive issue in this case is whether collateral estoppel precludes an independent Minnesota Environmental Rights Act (MERA) claim. Collateral es-toppel is a common-law doctrine that precludes the relitigation of previously determined issues. State v. Lemmer, 736 N.W.2d 650, 658 (Minn.2007). The application of the doctrine involves a mixed question of fact and law, which we review de novo. Id. at 659. We do not apply the doctrine rigidly, and our focus is on whether the application would work an injustice. Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn.2004).

Collateral estoppel can be applied based on administrative hearings when — as in this case — the administrative body acted in a quasi-judicial capacity. Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 115-16 (Minn.1991). Collateral estoppel precludes relitigation if (1) the issues are identical, (2) the issue was necessary to the administrative agency’s decision, (3) the decision was a final determination subject to judicial review, (4) the estopped party was a party or in privity with a party to the prior determination, and (5) the estopped party was given “a full and fair opportunity to be heard on the adjudicated issue.” Id. at 116.

The plaintiffs argue that two of these requirements are not satisfied. First, they argue that they did not receive a full and fair opportunity to be heard in the city-council hearing. Second, Sidney and Lola Berg and the Grove Street Flats Association argue that they were not in privity with a party to the city council’s determination. We reject these arguments.

Full and Fair Opportunity

In determining whether a party was given a full and fair opportunity to be heard, Minnesota courts focus on two factors. First, we ask whether the administrative hearing provided sufficient procedural safeguards. State v. Joseph, 636 N.W.2d 322, 328 (Minn.2001). Second, we ask whether the tribunal or administrative agency was impermissibly biased. See Graham, 472 N.W.2d at 119 (concluding that collateral estoppel did not apply when school district was determining legality of its own conduct).

To determine whether the administrative hearing provided sufficient procedural safeguards to permit application of the collateral-estoppel doctrine, we must first identify the procedural safeguards that are necessary. Previous Minnesota cases are consistent with the Restatement (Second) of Judgments, which requires the right “to present evidence and legal argument” and “other procedural elements as may be necessary!,] ... having regard for the magnitude and complexity of the matter in question, the urgency with which the matter must be resolved, and the opportunity of the parties to obtain evidence and formulate legal contentions.” Restatement (Second) of Judgments § 83(2) (1980) (discussing collateral estoppel and administrative decisions).

In Graham, the supreme court held that the procedures used were sufficient to permit collateral estoppel when the hearing was presided over by an impartial hearing examiner, subpoenas were available, rules of evidence were followed, and the hearing took nine days. 472 N.W.2d at 118. But Graham does not indicate that these procedures are required in every case or that the rules of civil procedure must be strictly followed. Id. In Zander v. State, this court applied collateral estoppel to a MERA claim even though there was no hearing. 703 N.W.2d 845, 854-55 (Minn.App.2005). We held that it was sufficient that the estopped party had an opportunity to present written argument, provide written evidence, and obtain appellate review. Id. The consistency of these cases with the restatement approach leads us to conclude that the restatement framework provides useful guidance to determine what procedural safeguards are necessary.

Drawing on the restatement’s guidance, together with Minnesota precedent, we conclude that the city-council hearing, which is subject to judicial review, provided adequate procedural safeguards. The plaintiffs were able to present written argument and evidence. Thus, as the restatement requires, the plaintiffs had an opportunity “to present evidence and legal argument.” Restatement (Second) of Judgments § 83(2). The plaintiffs protest that they could not make oral arguments or present live testimony to the city council. But the purpose of the hearing was to determine whether the development was historically appropriate. In light of the type of evidence that would best address the “magnitude and complexity of the matter,” a full evidentiary hearing was not required. Id. Because of the nature of the issue, the city council did not need to carefully evaluate the credibility of the witnesses. Written argument was sufficient to permit the city council to evaluate the appropriateness of the development. The plaintiffs have not identified any evidence that they were unable to present.

Similarly, in light of the hearing’s subject matter, there was no need to use an independent hearing examiner. Unlike in Graham, there was no requirement that a hearing examiner be used in this case. See Graham, 472 N.W.2d at 118 (discussing use of hearing examiners in teacher-termination proceedings). Because written argument was adequate, a hearing examiner was not necessary to develop the factual record.

Although the plaintiffs were limited to written evidence and arguments, they were not prejudiced by this limitation. And we see no basis for concluding that they were entitled to an independent hearing examiner. We therefore conclude that the hearing provided adequate procedural safeguards.

We also conclude that the tribunal — in this case, the city council — was not imper-missibly biased. In Graham, the supreme court held that the procedures used were adequate, but that one of the school board’s decisions should not be given pre-clusive effect because it was “manifestly self-serving.” 472 N.W.2d at 119. The concern was that “the school board occupies the rather incongruous tripartite role of prosecutor, judge, and jury.” Id. at 118 (quotation omitted). In the school board’s discharge proceeding, retaliatory discharge was an affirmative defense. Id. at 119. In a subsequent retaliatory-discharge suit, the school board’s conclusion on the retaliatory-discharge issue was not preclusive because the school board was judging “whether it has, itself, engaged in unlawful discrimination against the employee.” Id.

But applying collateral estoppel in this case would not permit the city council to determine the legality of its own conduct. The city council’s decision is different from the school board’s decision in Graham. The city council’s MERA decision was primarily about whether DeLaSalle High School’s conduct was legal, not whether its own conduct was legal. We recognize that the city council’s decision was also about whether the Minneapolis Park and Recreation Board’s conduct was legal. But the board is independent of the city council. Although the board is a department of the Minneapolis city government, its members are elected independently, and the board can enact its own ordinances. City of Minneapolis, Minn., City Charter, ch. 16, § 1 (2008). Because of this independence and the fact that the city council’s decision primarily benefited DeLaSalle, we cannot conclude that the decision was manifestly self-serving or that the tribunal was imper-missibly biased.

The plaintiffs argue that the city council was biased because the city-council president was on DeLaSalle’s board of trustees. But this fact would not establish that the tribunal itself was impermissibly biased because the hearing procedures provided adequate protection against conflicts of interest. Minnesota law disqualifies public officials from participating in decisions when they have a direct interest in the outcome. Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 15, 153 N.W.2d 209, 219 (1967) (listing factors to be considered). If a disqualified official participates, a party can challenge the decision directly. See E.T.O., Inc. v. Town of Marion, 375 N.W.2d 815, 819 (Minn.1985) (considering Lenz factors in mandamus proceeding challenging license denial). On certiorari appeal, if it is determined that additional evidence is necessary, the case can be transferred to district court. See Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165, 173-74 (Minn.App.2001) (transferring case to district court to consider ex parte contacts and irregular procedures). Because of the possibility of appeal, the hearings provided adequate protection against conflicts of interest. The plaintiffs could have raised the alleged conflicts of interest — as well as their other procedural arguments — on direct appeal. In light of this protection, the tribunal as a whole was not impermissibly biased.

The record establishes that the hearing provided adequate procedural safeguards and that the tribunal was not impermissi-bly biased. We therefore conclude, as a matter of law, that the city-council hearing provided a full and fair opportunity to be heard.

Privity

“There is no prevailing definition of privity which can be automatically applied, ... so we must carefully examine the circumstance of each case.” Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47 (1972). It is not enough that the parties had similar interests or that the other party provided adequate representation. Pirrotta v. Indep. Sch. Dist. No. 347, 396 N.W.2d 20, 22 (Minn.1986). But a party was in privity with a party to the prior litigation if the party “(1) had a controlling participation in the first action, (2) had an active self-interest in the previous litigation, ... or (3) had a right to appeal from a prior judgment.” Lemmer, 736 N.W.2d at 661 (citation omitted). “The basic requirement is that the estopped party’s interests have been sufficiently represented in the first action so that the application of collateral estoppel is not inequitable.” Brunsoman v. Seitz, 414 N.W.2d 547, 550 (Minn.App.1987), review denied (Minn. Jan. 15, 1988).

Under the circumstances in this case, the district court could properly conclude that the Bergs and the Grove Street Flats Association were in privity with the Friends of the Riverfront in the city council proceeding. First, the Bergs and the Grove Street Flats Association participated in the certiorari appeal. Second, based on the record, the Bergs, the Grove Street Flats Association, and the Friends of the Riverfront had an indistinguishable — not merely similar — interest in the city-council proceeding. Because of this participation and interest, the parties can be equitably barred from bringing a subsequent MERA claim and relitigating the issues raised in the city-council proceeding.

The Bergs and the Grove Street Flats Association argue that fact issues exist on whether their interests are identical. If there were a reason to believe that the Bergs’ and the Grove Street Flats Association’s interests were in conflict with those of the Friends of the Riverfront, remand would be appropriate. See Miller v. Nw. Nat’l Ins. Co., 354 N.W.2d 58, 62 (Minn.App.1984) (remanding for privity determination when evidence of conflict was present). But at oral argument, counsel for the plaintiffs was unable to explain what fact issues might exist. Thus, because no facts are in dispute, the district court could properly rule on the privity issue without holding an evidentiary hearing.

The record establishes as a matter of law that the city-council hearing provided a full and fair opportunity to be heard and that the parties were in privity. The plaintiffs do not dispute that the other elements of collateral estoppel were satisfied. Therefore, the district court correctly concluded that collateral estoppel barred the plaintiffs MERA claim.

II

The ripeness doctrine is based on the general principle that Minnesota courts will consider only redressable injuries. See State ex rel. Sviggum v. Hanson, 732 N.W.2d 312, 321 (Minn.App.2007) (discussing general requirement of re-dressable injury). The doctrine bars suits brought before a redressable injury exists. We review justiciability issues de novo. Schiff v. Griffin, 639 N.W.2d 56, 59 (Minn.App.2002).

The district court dismissed, without prejudice, the Bergs’ contract claims on ripeness grounds. The Bergs have leased land from the city. Under the terms of the lease, the city is required to comply with several restrictive covenants. The Bergs claim that permitting the athletic facility would violate the restrictive covenants, and the city’s actions therefore violate the contract. The district court’s conclusion on the contract claims was correct for two reasons.

First, the Bergs cannot yet show that the city has actually breached the lease. The Bergs do not argue that merely planning the athletic facility violates the restrictive covenant. With respect to the contract claim, the relevant conduct is the actual construction of the athletic facility, not the course of conduct leading up to its construction. Because there is no basis for concluding that the contract has already been breached, the plaintiffs are not yet able to maintain a breach-of-contract claim based on actual breach.

Second, the Bergs cannot show that the city has committed an anticipatory breach of the lease. “An anticipatory breach by repudiation occurs where a vendor cannot possibly perform and where by its conduct it demonstrates an unequivocal intent not to perform.” Space Ctr., Inc. v. 151 Corp., 298 N.W.2d 443, 445 (Minn.1980). It is “an unconditional repudiation of a contract, either by words or acts, which is communicated to the other party prior to the time fixed by the contract for his performance.” In re Haugen, 278 N.W.2d 75, 79 n. 6 (Minn.1979). In this case, the claimed breach would occur only if the further approvals are obtained. Therefore, the city has not made an unconditional repudiation, and it is still possible for the city to perform. As a result, the Bergs cannot establish an anticipatory breach. Thus, the district court correctly concluded that the Bergs’ contract claim was not ripe.

Ill

The plaintiffs also sought a declaratory judgment disqualifying the city-council president from participating in future proceedings involving the athletic facility. The district court dismissed the claim based on the fact that the city-council president was not alleged to have a direct pecuniary interest in the DeLaSalle project. This conclusion was consistent with Minnesota caselaw. In previous cases, Minnesota courts have disqualified officials from participating in a decision only when they had a pecuniary interest. See Lenz, 278 Minn. at 15, 153 N.W.2d at 219-20 (considering nature of pecuniary interest); Nolan v. City of Eden Prairie, 610 N.W.2d 697, 700 (Minn.App.2000) (concluding that disqualification unnecessary when official “had no obvious pecuniary interest and he is not involved in any contractual way”), review denied (Minn. July 25, 2000).

Even if we assume an official should be disqualified based on fiduciary duties; the declaratory-judgment action was still properly dismissed. Declaratory judgments cannot be granted based on remote contingencies. Sviggum, 732 N.W.2d at 322 (citing Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 283, 290 N.W. 802, 805 (1940)). The city-council president’s prior conduct should have been dealt with on appeal. In future cases — if it turns out that the city-council president should be disqualified — then a declaratory judgment is necessary only if the city-council president does not disqualify herself or is not removed. Thus, because a declaratory judgment would be based on the remote contingency that a public official would act improperly, the district court properly dismissed the plaintiffs’ claim.

Finally, we note that the parties have addressed a number of other arguments. In their briefs, the parties dispute (1) whether MERA permits an independent lawsuit after the plaintiffs intervened in the city-council proceeding, (2) the ripeness of the MERA claim, (3) whether the plaintiffs preserved their arguments for appeal, and (4) whether the plaintiffs are entitled to an injunction and attorneys’ fees. Because we conclude that the plaintiffs’ claims were properly dismissed, we need not resolve the other MERA issues and the waiver issues. Furthermore, because the plaintiffs’ claims were properly dismissed, they were not entitled to attorneys’ fees under MERA.

DECISION

Because the MERA claim was barred by the collateral-estoppel doctrine, the contract claim was not ripe, and the declaratory-judgment action against the city-council president was legally insufficient, the district court properly dismissed the plaintiffs’ claims.

Affirmed.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2008 ND 131
    Interest of K.L., a Child Interest of M.S., a Child State of North Dakota, Petitioner and Appellee v. T.L., Mother, Respondent and Appellant K.L., a child; M.S., a child; B.A. and John Doe, fathers; and S.S., father, Respondents.
    Nos. 20070309, 20070310.
    Supreme Court of North Dakota.
    June 26, 2008.

      Pam H. Ormand (argued), Assistant State’s Attorney, Fargo, ND, for petitioner and appellee.
    Jessica Ahrendt (argued), Valley City, ND, for respondent and appellant T.L.
   KAPSNER, Justice.

[¶ 1] T.L. appeals a juvenile court order terminating her parental rights to her two minor children, K.L. and M.S. We affirm.

I

[¶ 2] T.L. is the biological mother of K.L., born in 2001, and M.S., born in 2004. On June 7, 2006, T.L., K.L., and M.S. were residing in a home that was subjected to a probation search. During the search, the searching officers contacted Cass County Social Services (“Social Services”) because they believed the conditions of the home were unsafe for T.L.’s children; the searching officers found drug paraphernalia, needles, pills, and alcohol, which were, according to the officers, within reach of the children. K.L. and M.S. were removed from the residence and placed in protective custody after the officers finished a search of the home.

[¶ 3] On June 8, 2006, K.L. and M.S. were tested for drugs. K.L. tested positive for amphetamines and methamphet-amines; the test indicated low to medium exposure to both of these drugs. M.S. was tested for drugs, and the test revealed the presence of amphetamines, methamphet-amines, and cocaine in M.S. M.S.’s drug test indicated a low exposure to cocaine and a moderate exposure to methamphetamine.

[¶ 4] On June 9, 2006, T.L. was tested for drug use, and her tests revealed the presence of amphetamines and marijuana. S.S., M.S.’s father, who lived with T.L. and the children, also tested positive for drugs. Social Services petitioned the juvenile court, alleging the children were deprived and requesting the juvenile court issue an order finding the children to be deprived. In October 2006, the juvenile court issued an order finding K.L. and M.S. were deprived children.

[¶ 5] T.L. and her children were assigned a case worker, Ruby Knoll, on June 8, 2006. The children remained in foster care following the juvenile court’s finding that the children were deprived, and T.L. was given supervised visitation with the children. T.L. was active in all of the visitations offered. Social Services made recommendations that T.L. obtain employment, obtain suitable housing, obtain a mental health evaluation and follow through with treatment for mental health issues, obtain a chemical dependency evaluation, and undergo treatment following the chemical dependency evaluation. In accordance with the recommendations of Social Services, T.L. found an apartment and began working. She did, however, change employment frequently and had trouble keeping her jobs. She secured an apartment until January 2007. Following an incident of domestic violence with S.S., with whom T.L. was sharing the apartment, T.L. felt she needed to find different housing. According to T.L.’s testimony, she lived in a trailer she intended to purchase from a friend, after moving out of the apartment in January 2007 and until the time of the June 2007, termination proceeding. T.L. testified she was unable to pay for heat, electricity, and water services, but continued to stay in the trailer without such services.

[¶ 6] Almost immediately after her children had been removed, T.L. successfully completed a chemical dependency evaluation, in which she was diagnosed with methamphetamine addiction, but she failed to follow-up with several treatment program options offered to her through Social Services; T.L. failed to complete a group therapy treatment program, and subsequently failed to complete an individual outpatient therapy program. From July 2006 to March 2007, T.L.’s attendance in her outpatient treatment programs was at best sporadic. T.L. also tested positive for methamphetamine use in December 2006, admitted to use in January 2007, refused a drug test in February 2007, and again tested positive for methamphetamine use in March 2007.

[¶ 7] Because of T.L.’s failure to comply with and complete any drug treatment programs, Social Services brought a petition for the termination of parental rights on March 22, 2007. A hearing on the petition was held on June 21 and 22, 2007, and July 10, 2007, before Judicial Referee Susan Thomas. In the midst of these hearings, on June 20, 2007, T.L. applied and was accepted into an inpatient methamphetamine treatment program, Teen Challenge. She offered and admitted her acceptance letter into Teen Challenge during the June 21, 2007, termination hearing. Prior to the July 10, 2007, hearing, T.L. applied and was admitted into another inpatient treatment program through the Robinson Recovery Center. T.L.’s trial counsel did not submit evidence of T.L.’s entrance into the Robinson Recovery Center treatment program at the July 10, 2007, termination hearing. At the hearings, the State presented the testimony of several social workers and addiction counselors. T.L. also testified at the termination proceeding.

[¶ 8] On August 17, 2007, the judicial referee issued findings of fact, conclusions of law, and order for judgment terminating T.L.’s parental rights to both K.L. and M.S.

[¶ 9] T.L. requested a review of the judicial referee’s findings of fact, conclusions of law, and order for judgment, and the juvenile court adopted the findings and conclusions of the judicial referee and ordered the termination.

[¶ 10] T.L. appeals the order of the juvenile court, arguing the juvenile court erred in finding there was clear and convincing evidence that the conditions and causes of deprivation are likely to continue and that the children will probably suffer serious physical, mental, moral, or emotional harm. T.L. also argues she was deprived of effective assistance of counsel.

II

[¶ 11] “To terminate 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 the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” Interest of I.B.A. and C.B.A., 2008 ND 89, ¶ 15, 748 N.W.2d 688 (citing N.D.C.C. § 27 — 20—44(l)(e)(l)). The party seeking parental termination bears the burden of proof and must prove all elements by clear and convincing evidence. Id. (citing Interest of T.A., 2006 ND 210, ¶ 10, 722 N.W.2d 548). Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true. Id. (citing Interest of T.A., at ¶ 10).

[¶ 12] “ ‘A lower court’s decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.’ ” Interest of D.M., 2007 ND 62, ¶ 6, 730 N.W.2d 604 (quoting Interest of M.B., 2006 ND 19, ¶ 13, 709 N.W.2d 11). “ ‘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.’ ” Id. (quoting Interest of M.B., at ¶ 13).

A

[¶ 13] The first element of the three-part test requires a finding that the child is a deprived child. N.D.C.C. § 27-20-44(l)(b). A “deprived child” is a child who:

Is 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). “We have defined ‘proper parental care’ to mean the minimum standards of care that the community will tolerate.” Interest of D.M., at ¶ 8 (citing Interest of M.B., at ¶ 14).

[¶ 14] According to the referee’s findings, K.L. and M.S. were found to be deprived children on October 8, 2006. T.L. does not dispute K.L. and M.S. are deprived children.

B

[¶ 15] Instead, T.L. contends the juvenile court clearly erred in determining the conditions and causes of deprivation are likely to continue.

[¶ 16] The second element of the three-part test for a parental rights termination requires the State to prove the deprivation is “ ‘likely to continue or will not be remedied.’ ” Interest of D.M., at ¶ 11 (quoting N.D.C.C. § 27-20-44(l)(e)(l)). “ ‘To show this, the State cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.’ ” Id. (quoting Interest of M.B., at ¶ 16).

[¶ 17] T.L. argues that the “likely to continue” finding was clearly erroneous because Social Services was not compliant with its statutory duty of diligence in reunification efforts under N.D.C.C. § 27-20-32.2 and more diligence on the part of Social Services would have placed T.L. in an inpatient drug treatment program, which would have improved her ability to control the main cause of her children’s current and future deprivation. T.L. also contends the juvenile court relied only on T.L.’s past conduct and existing drug addiction, rather than prognostic evidence in making the determination that the deprivation was likely to continue.

[¶ 18] Section 27-20-32.2(2)(b), N.D.C.C., requires the agency charged with the care of deprived children to make “reasonable efforts ... to preserve and reunify families ... [t]o make it possible for a child to return safely to the child’s home.” The term “reasonable efforts” is defined as “the exercise of due diligence, by the agency ..., to use appropriate and available services to meet the needs of the child and the child’s family ... after removal, to use appropriate and available services to eliminate the need for removal and to reunite the child and the child’s family.” N.D.C.C. § 27-20-32.2(1).

[¶ 19] Both the judicial referee and the juvenile court found reasonable efforts for reunification were made because Social Services developed a Single Plan of Care (“Plan”) immediately following the removal of T.L.’s children. The Plan required T.L. to (1) undergo anger management and domestic violence evaluations and follow through with recommended treatment programs; (2) undergo chemical dependency evaluations and follow and complete treatment program requirements; (3) obtain full-time employment; (4) seek treatment for mental health issues, such as depression and follow through with treatment or medication; and (5) obtain safe and appropriate housing for the children. T.L. does not argue the Plan was inadequate, but rather Social Services failed to provide T.L. adequate help in securing and completing the services offered to her.

[¶ 20] T.L.’s assertion is unsupported. There is evidence in the record to support the juvenile court’s factual findings that T.L. repeatedly failed to attend her outpatient drug treatment program, that she failed several drug tests and refused another, and that Social Services provided T.L. with information regarding inpatient treatment programs, but T.L. did not attempt to enter the programs until the termination hearing was underway. When T.L. did decide to pursue a more rigorous inpatient treatment program, T.L.’s case worker helped her complete and submit her treatment program application. The record supports the juvenile court’s conclusion that T.L., not Social Services, was the cause of the failed reunification efforts. Social Services made “reasonable efforts” when it created a comprehensive plan to address the reasons underlying T.L.’s children’s deprivation and provided T.L. with information and assistance in pursuing the Plan’s requirements. “Reasonable efforts,” as defined by N.D.C.C. § 27-20-32.2(1), requires Social Services to provide available and appropriate services to assist the family in reunification, but Social Services is not required to assume the parent’s responsibility in following through with the services offered. A parent’s “failure to follow through with provided services” is not the fault of Social Services. See Interest of D.D., 2006 ND 30, ¶¶ 25-26, 708 N.W.2d 900. See also Interest of M.B., 2006 ND 19, ¶ 21, 709 N.W.2d 11 (holding a parent’s choice “not to participate in” services offered by Social Services, did not constitute a failure to make reasonable efforts on the part of Social Services).

[¶ 21] T.L. next contends the juvenile court erred in finding there was clear and convincing evidence that the conditions and causes of deprivation are likely to continue and this determination was improper because the juvenile court relied on T.L.’s prior conduct and existing problems rather than prognostic evidence. T.L.’s contentions are incorrect.

[¶ 22] As noted above, “ ‘the State cannot rely on past deprivation alone, but must provide prognostic evidence, demonstrating the deprivation will continue.’ ” Interest of D.M., at ¶ 11 (quoting Interest of M.B., at ¶ 16). The judicial referee and juvenile court both relied on T.L.’s existing drug addiction and mental health problems for which T.L. failed to complete several different treatment programs. In T.L.’s request for review, even T.L. acknowledges

[h]er addiction permeated all areas of her life and which undermined her ability to successfully address her chemical dependency.... [S]he obtained outpatient [chemical dependency] treatment, however, she was discharged for missing sessions and continued drug use. She initiated individual counseling, however, she didn’t make followup appointments. She sought therapeutic and medication evaluations for depression, however, she didn’t follow through. She was able to obtain a job, however, she was unable to establish stable employment. [T.L.] herself acknowledged her difficulties caused by her methamphetamine usage and testified that abstaining from it was a daily struggle.
... [A]n expert on methamphetamine drug addiction[ ] testified to the specific aspects of meth addiction and recovery. He testified that given the profound addictive qualities of methamphetamine outpatient treatment has a 15% success rate.

[¶ 23] The juvenile court found T.L. failed to attend and complete outpatient treatment and did not pursue a more aggressive inpatient treatment program until the termination proceeding was underway. The juvenile court also heard testimony from an addiction expert called by T.L. about the low success rates for methamphetamine treatment, even when the patient complies with the treatment program. Relying on McBeth v. M.D.K., 447 N.W.2d 318, 322 (N.D.1989), the juvenile court explained that, given the low likelihood for success in curing methamphetamine addiction even with the help of a treatment regime, T.L.’s failure to actively pursue and complete any treatment program made T.L. like the parent in M.D.K In M.D.K., this Court held “it is not enough that a mother indicate a desire to improve.” 447 N.W.2d at 322. “A parent must be able to demonstrate present capability, or capability within the near future, to be an adequate parent.” Id. (citation omitted). The fact that T.L. had untreated addiction and mental health problems at the time of the hearing provided prognostic evidence that these problems would continue to exist and make deprivation of T.L.’s children likely. The juvenile court did not clearly err in this finding.

C

[¶ 24] T.L. argues the juvenile court erred in determining there was clear and convincing evidence the children will probably suffer serious physical, mental, moral, or emotional harm. The final element of the three-part parental rights termination test is “the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” Interest of M.B., at ¶ 18 (citation omitted). “The risk of harm may also be shown by prognostic evidence.” Id. (citing Interest of A.S., 1998 ND 181, ¶ 31, 584 N.W.2d 853). The juvenile court again noted T.L.’s failure to treat her addiction and mental health issues, which placed the children in continuing danger of serious physical, mental, moral, or emotional harm. The addiction and mental health issues made it difficult for T.L. to maintain and provide adequate housing for the children, putting them in physical jeopardy. T.L. failed to address and successfully treat issues of domestic violence that had occurred between T.L. and S.S. The failure to treat and address these issues places the children in a position of probable serious physical, mental, or emotional harm. The fact that both children had been exposed to several drugs and T.L. repeatedly failed or refused drug tests in the months leading up to the termination, places the children in probable serious physical harm because they would suffer exposure to drugs without T.L.’s successful completion of drug addiction treatment. There is prognostic evidence in the record to support the juvenile court’s finding that the children will probably suffer serious physical, mental, moral; or emotional harm, and the' juvenile court did not clearly err in arriving at its conclusion.

Ill

[¶ 25] T.L.’s final contention is that she was denied effective assistance of counsel. T.L. premises her ineffective assistance of counsel claim on her trial attorney’s failure to offer and admit evidence of her entrance into the second inpatient treatment program through the Robinson Recovery Center during the July 10, 2007, termination hearing.

[¶ 26] Section 27-20-26(1), N.D.C.C., states that “[e]xcept as otherwise provided in this section, a party who is indigent and unable to employ legal counsel is entitled to counsel at public expense at custodial, post-petition, and informal adjustment stages of proceedings under this chapter.” This Court has further explained that parent-child relationships are “powerful, intimate, and personal!,]” Adoption of K.A.S., 499 N.W.2d 558, 563 (N.D.1993) (citations omitted), and we therefore recognize the need for legal protections not otherwise afforded in civil proceedings. See generally Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights, 92 A.L.R.5th 379 (2001). Although the Legislature has expressly provided the right to counsel in a termination proceeding and this Court has explained the seriousness of the rights at stake in these proceedings, to date we have not decided whether a claim for ineffective assistance of counsel exists and, if so, what standard would be applied to demonstrate ineffective assistance of counsel occurred in a termination proceeding. In Adoption of 1997 ND 99, ¶¶ 21-22, 564 N.W.2d 623, this Court declined to recognize a claim for ineffective assistance of counsel in a parental rights termination, explaining:

In termination proceedings, an indigent parent has a right to court-appointed counsel. Matter of Adoption of K.A.S., 499 N.W.2d 558, 563 (N.D.1993). In criminal cases, a party claiming ineffective assistance of counsel must provide this Court with some evidence to support the claim, unless the record affirmatively shows ineffectiveness of constitutional dimensions. E.g., State v. McDonell, 550 N.W.2d 62, 64-65 (N.D.1996). Statements by counsel are not enough to support the claim, and we require some proof in the form of an affidavit or testimony. McDonell at 65. Without an adequate record scrutinizing the reasons for counsel’s action, review is virtually impossible. McDonell.
We have not recognized a claim for ineffective assistance of counsel in a civil action. We do not decide whether such a claim is cognizable because, assuming we would adopt the claim, [the parent]’s general allegations of ineffective assistance of counsel in his brief and motion for rehearing were insufficient to establish his claim. His conclusory statements do not meet the minimum threshold to support a claim for ineffective assistance of counsel.

[¶ 27] “Several states have recognized the viability of a claim of ineffective assistance of counsel in termination of parental rights proceedings.” Interest of J.C., 781 S.W.2d 226, 228 (Mo.App.1989) (citing Matter of Appeal in Gila County Juvenile Action, 130 Ariz. 530, 637 P.2d 740 (1981), overruled on other grounds, In re Pima County Juvenile Action No. S-919, 132 Ariz. 377, 646 P.2d 262 (1982); Matter of Christina H., 182 Cal.App.3d 47, 227 Cal.Rptr. 41 (1986); Interest of V.M.R., 768 P.2d 1268 (Colo.App.1989); In re R.G., 165 Ill.App.3d 112, 116 Ill.Dec. 69, 518 N.E.2d 691 (1988); Interest of J.P.B., 419 N.W.2d 387 (Iowa 1988); Interest of D.W., 385 N.W.2d 570 (Iowa 1986); Interest of Rushing, 9 Kan.App.2d 541, 684 P.2d 445 (1984); In re Stephen, 401 Mass. 144, 514 N.E.2d 1087 (1987); Matter of Trowbridge, 155 Mich.App. 785, 401 N.W.2d 65 (1986); Guardianship of Orneika J., 112 A.D.2d 78, 491 N.Y.S.2d 639 (1985); Matter of Bishop, 92 N.C.App. 662, 375 S.E.2d 676 (1989); In re Moseley, 34 Wash.App. 179, 660 P.2d 315 (1983)). The majority of states that recognize ineffective assistance of counsel claims in parental rights terminations have adopted the standard used in post-conviction relief proceedings following criminal actions as announced in Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). E.g., Interest of J.C., 781 S.W.2d at 228 (citations omitted). See generally Susan Calkins, Ineffective Assistance of Counsel in Parental-Rights Termination Cases: The Challenge for Appellate Courts, 6 J.App. Prac. & Process 179 (2004).

[¶ 28] This Court has discussed the relationship between a statutory right to counsel and ineffective assistance of counsel claims in the context of post-conviction relief proceedings:

[T]he typical reasoning for applying Strickland [in a post-conviction proceeding] is that “[i]t would be absurd to have the right to appointed counsel who is not required to be competent,” and a statute providing for appointment of counsel “ “would be meaningless if it did not embody a requirement that counsel be effective as well as merely present.’” Lozada [v. Warden, 223 Conn. 834, 613 A.2d 818, 821 (1992)] (quoting United States v. Wren, 682 F.Supp. 1237, 1241—42 (S.D.Ga.1988)).

Johnson v. State, 2004 ND 130, ¶ 16, 681 N.W.2d 769 (first, second, and fourth alterations added; third alteration in original).

[¶ 29] The statutory right to court-appointed counsel in a parental termination proceeding is much like that in a post-conviction relief proceeding. N.D.C.C. § 27-20-26(1). The reasoning for ineffective assistance of counsel claims in post-conviction relief claims is analogous and persuasive in the context of parental rights termination actions. Because of the legislative directive that respondents be afforded counsel in termination proceedings, it would be absurd and meaningless to have the right to appointed counsel, but not to require counsel to be effective in this context. Johnson, at ¶ 16 (citations omitted). See also In re K.L., 91 S.W.3d 1, 11 (Tex.App.2002) (adopting ineffective assistance of counsel claims in termination cases and explaining a parent whose parental rights were terminated due to counsel’s deficiencies has no meaningful remedy and monetary damages derived of a professional malpractice suit are inadequate due to the nature and severity of the interests involved). Therefore, we acknowledge the need to recognize an ineffective assistance of counsel claim and apply the test announced in Strickland. 466 U.S. at 688, 104 S.Ct. 2052.

[¶ 30] The Strickland standard requires the party asserting a claim for ineffective assistance of counsel to show “counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced [the parent]” such that the likely outcome of the proceeding would have been different. See Johnson, at ¶ 17 (citing Kamara v. State, 2003 ND 179, ¶ 5, 671 N.W.2d 811) (providing North Dakota’s adoption of the Strickland test in civil post-conviction relief proceedings).

[¶ 31] In addition to demonstrating the elements of the Strickland standard, counsel’s deficiency must be readily apparent in the record on direct appeal in the context of termination cases. We require this evidence to be readily apparent in the record because, unlike such claims in post-conviction proceedings, there is not a subsequent statutory proceeding that allows a party to develop a record or evidence for the alleged deficiency. See State v. Torres, 529 N.W.2d 853, 856 (N.D.1995) (citations omitted) (“ ‘Without a record scrutinizing the reasons underlying counsel’s conduct, adjudging it subpar is virtually impossible.’ ... ‘If we cannot readily determine that assistance of trial counsel was plainly defective, and no other grounds for reversal exist, the defendant can later pursue his claim at a postconviction proceeding where an adequate record can be developed.’ ”). Thus, while we acknowledge a claim for ineffective assistance of counsel, in termination proceedings, it will be necessary for evidence of such a claim to appear on the face of the record because the claim is ordinarily raised on direct appeal. See State v. Bengson, 541 N.W.2d 702, 703 (N.D.1996) (internal citations omitted) (“[For] claims [of] ineffective assistance of counsel on direct appeal, we examine the entire record. If the record affirmatively shows that counsel was ineffective, we will consider the merits of the ineffectiveness claim.”). We caution, however, that a review of these claims on direct appeal places a heavy burden on the party claiming ineffective assistance of counsel because “ ‘[w]ithout a record scrutinizing the reasons underlying counsel’s conduct, adjudging it subpar is virtually impossible.’ ” State v. Roberson, 1998 ND APP 15, ¶ 9, 586 N.W.2d 687 (quoting Torres, 529 N.W.2d at 856) (alteration in original).

[¶ 32] In this case, the record does not establish T.L.’s ineffective assistance of counsel claim. T.L.’s allegations do not show her trial counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced her such that the outcome of her termination proceeding would have been different as is required under the Strickland analysis. The fact that T.L.’s attorney did not introduce evidence of T.L.’s acceptance into a second treatment program, which T.L. was allegedly accepted into sometime between the first termination hearings on June 20 and 21, 2007, and the final hearing on July 10, 2007, does not automatically establish an ineffective assistance of counsel claim.

[¶ 33] It is possible T.L.’s trial counsel opted not to introduce evidence of another treatment program application and acceptance because this evidence might serve to weaken T.L.’s statements about her commitment to her existing Teen Challenge inpatient treatment program. Trial counsel may have decided such evidence might weaken T.L.’s contention that Social Services did not provide T.L. with reasonable efforts to provide her with available treatment services. Under the Strickland analysis, “ ‘[a]n unsuccessful trial strategy does not make defense counsel’s assistance defective, and we will not second-guess counsel’s defense strategy through the distorting effects of hindsight.’ ” Garcia v. State, 2004 ND 81, ¶ 8, 678 N.W.2d 568 (quoting Breding v. State, 1998 ND 170, ¶ 9, 584 N.W.2d 493). Trial counsel’s conduct is presumed to be reasonable. DeCoteau v. State, 2000 ND 44, ¶ 8, 608 N.W.2d 240 (citing Lange v. State, 522 N.W.2d 179, 181 (N.D.1994)); see also In re Geist, 310 Or. 176, 796 P.2d 1193, 1203 (1990) (recognizing ineffective assistance of counsel claims in parental rights terminations, but explaining that even under a standard more searching than Strickland, “an attorney’s choice of a particular theory of the case, the choice to call or not to call a particular witness, the choice to ask or not to ask certain questions, or the choice of a particular line of argument, will be tactical decisions. The mere fact that a tactical decision may backfire on counsel does not necessarily demonstrate that counsel was professionally inadequate”). Thus, because there were reasonable strategic advantages for failing to offer evidence of the second inpatient program or to move for a continuance on that premise, given the deference to counsel in matters of strategy, T.L.’s assertions do not rise to the level of ineffective assistance of counsel.

IV

[¶ 34] We affirm the order of the juvenile court.

[¶ 35] GERALD W. VANDEWALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS and DALE V. SANDSTROM, JJ., concur.


text:
    2008 ND 130

      In the Matter of E.W.F. Cass County State’s Attorney, Petitioner and Appellee v. E.W.F., Respondent and Appellant.
    No. 20080037.
    Supreme Court of North Dakota.
    June 26, 2008.

      Ryan J. Younggren (argued), Assistant State’s Attorney, Fargo, ND, for petitioner and appellee.
    Richard E. Edinger (argued), Fargo, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] E.W.F. appeals an order denying his petition for discharge from commitment as a sexually dangerous individual. We affirm.

I

[¶ 2] In 1994, E.W.F., then twenty-one years old, molested his five-year-old niece. He pled guilty to gross sexual imposition on September 14, 1995 and was sentenced to prison. On September 1, 1998, he was committed to the North Dakota State Hospital (“State Hospital”) as a sexually dangerous individual.

[¶ 3] From 1999 to 2006, E.W.F. waived his statutory right to annually petition for discharge from the State Hospital. On September 20, 2007, E.W.F. petitioned for discharge, and a hearing was conducted on January 3, 2008. Dr. Lynne Sullivan, a State Hospital staff psychologist, testified as an expert witness for the State. Based on Dr. Sullivan’s review of E.W.F.’s prior evaluations conducted in 1995, 1998, and 2006, along with current reports of E.W.F.’s behavior at the State Hospital, Dr. Sullivan testified E.W.F. still suffers from two sexual disorders, paraphelia not otherwise specified, and pedophilia. Dr. Sullivan prepared a Sexually Dangerous Individual Annual Re-evaluation Report (“Annual Report”) in September 2007, which also contained the annual interview she conducted with E.W.F. in 2007. The State filed the Annual Report with the clerk of district court prior to the January 2008, hearing for discharge under N.D.C.C. § 25-03.3-17(2). The Annual Report, filed with the district court on September 27, 2007, was not served upon E.W.F. or his counsel. The Annual Report was not offered by the State at the hearing.

[¶ 4] The Annual Report indicated E.W.F. had not completed sex offender treatment. The Annual Report stated E.W.F. had not made notable progress in the sex offender treatment program and had, in fact, regressed in his treatment, having moved up to stage three in the five-stage treatment program at one point, but regressed back to stage one at the time of the Annual Report. The Annual Report also noted E.W.F. had conducted himself inappropriately with female staff at the State Hospital, allegedly stalking one female employee. Dr. Sullivan’s Annual Report further provides that, while E.W.F. no longer shows strong inclinations toward nonconsenting sexual fantasies that he had in the first years of the sex offender treatment program, E.W.F. still has propensities toward stalking and admits to deviant sexual fantasies. E.W.F. discussed his desire to indecently expose himself at the State Hospital, but wished such behavior would not get him in trouble. Dr. Sullivan testified about the contents of the Annual Report at the January 2008, hearing on the discharge petition. Dr. Sullivan further testified E.W.F.’s behavior, coupled with his sexual disorders and failure to progress in the sex offender treatment program, made E.W.F. likely to engage in further acts of sexually predatory conduct.

[¶ 5] E.W.F. testified at the hearing, stating he had spent nine years in the sex offender treatment program, he did not feel additional treatment was necessary, and that if released, he would not re-offend. He did, however, admit to stalking a female State Hospital staff member within the previous year. E.W.F. underwent an independent evaluation prior to the hearing, but did not offer the written eval-nation or the testimony of the evaluating psychologist at the hearing.

[¶ 6] After considering the testimony of Dr. Sullivan and E.W.F., the district court found E.W.F. continues to be a sexually dangerous individual and denied E.W.F,’s petition for discharge on January 9, 2008.

[¶ 7] E.W.F. appeals the district court order denying his petition for discharge, arguing the State failed to prove by clear and convincing evidence that E.W.F. is likely to engage in further acts of sexually predatory conduct. E.W.F. further argues his substantive due process rights were violated, alleging his commitment serves as an unconstitutional mechanism for punishing his underlying criminal conviction.

II

[¶ 8] “Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard and will be affirmed unless the district court’s order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.” Matter of Hehn, 2008 ND 36, ¶ 17, 745 N.W.2d 631 (quoting Matter of Midgett, 2007 ND 198, ¶ 6, 742 N.W.2d 803) (internal quotations omitted).

[¶ 9] Chapter 25-03.3, N.D.C.C., which governs the commitment of sexually dangerous individuals, requires the State to prove, by clear and convincing evidence, three elements before an individual may be committed:

[1] engaged in sexually predatory conduct and [2] who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that [3] makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.

N.D.C.C. § 25-03.3-01(8).

[¶ 10] The phrase “ ‘likely to engage in further acts of sexually predatory conduct’ means the individual’s propensity towards sexual violence is of such a degree as to pose a threat to others.” Matter of Hehn, at ¶ 19 (citing Interest of M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473; Matter of G.R.H., 2006 ND 56, ¶ 16, 711 N.W.2d 587). In addition to the three requirements contained in the plain language of the statute, the United States Supreme Court has held that substantive due process rights require the individual facing commitment must be shown to have serious difficulty controlling his behavior. Matter of Hehn, at ¶ 19 (citing Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002)). This additional consideration is necessary to distinguish a sexually dangerous individual from the “ ‘dangerous but typical recidivist convicted in an ordinary criminal case.’ ” Id. (quoting Crane, at 413, 122 S.Ct. 867).

[¶ 11] E.W.F. does not contend the State failed to meet its burden on the first two prongs of the statute. He engaged in a prior act of sexually predatory conduct when he committed gross sexual imposition in 1994, satisfying the first prong of N.D.C.C. § 25-03.3-01(8). He does not dispute Dr. Sullivan’s finding that he has two sexual disorders, paraphelia not otherwise specified, and pedophilia, which meet the criteria under the second prong of N.D.C.C. § 25-03.3-01(8). E.W.F. instead argues the State failed to prove, by clear and convincing evidence, that he is likely to engage in further acts of sexually predatory conduct.

[¶ 12] E.W.F.’s argument is premised on the fact that the State did not offer, during the course of the hearing on the petition for discharge, Dr. Sullivan’s written report. Thus, E.W.F. argues, the State could not have met its burden. E.W.F. is incorrect in his assertion.

[¶ 13] Under N.D.C.C. §§ 25-03.3-17 and 25-03.3-18, which govern post-commitment proceedings, discharge, and petitions for discharge, the State is not required to present the written report or evaluation during the hearing itself. Rather, N.D.C.C. § 25-03.3-17(2) requires that the State annually conduct “an examination of that individual’s mental condition” and that the “report regarding the examination must be provided to the court that committed the individual.” (Emphasis added). The State is not required to submit the report to the defendant, nor is the State required to offer the report during the hearing. The State complied with the statutory requirements under N.D.C.C. § 25-03.3-17(2) when State Hospital staff psychologist Dr. Sullivan completed E.W.F.’s annual evaluation in September 2007 and submitted the report to the committing court on September 27, 2007. Thus, even though the State did not offer and admit the Annual Report during the hearing, the Annual Report is part of the record and readily available for the district court’s review, because it was filed with the district court under the clear direction of the statute.

[¶ 14] Similarly, N.D.C.C. § 25-03.3-18, which speaks specifically to petitions for discharge and the procedures that must follow, has no requirement for offering a written report at a petition for discharge hearing. Section 25-03.3-18(1), N.D.C.C., provides the committed individual must annually be afforded “written notice that the individual has a right to petition the court for dischargef,]” the written notice must “explain to the committed person when the committed person has a right to a hearing on the petition[,]” and the written “notice must inform the committed person of the rights this chapter affords the committed person at a discharge hearing.” Section 25-03.3-18(3), N.D.C.C., further provides the State “may have the committed individual evaluated by experts chosen by the state[,]” and the “committed individual is entitled to have an expert of the committed individual’s choice conduct an evaluation.” Section 25-03.3-18(4), N.D.C.C., requires the State to show, by clear and convincing evidence, that the committed individual remains a sexually dangerous individual, but does not require the State to submit a written evaluation as part of this burden.

[¶ 15] Dr. Sullivan’s detailed testimony provided the State with the evidence required to meet its burden of proof. E.W.F.’s prior gross sexual imposition conviction, along with Dr. Sullivan’s testimony that E.W.F. suffers from two sexual disorders, E.W.F. has not completed sex offender treatment, and E.W.F. still engages inappropriate sexual behavior while in treatment, making E.W.F. likely to engage in further acts of sexually predatory conduct, supports the district court’s conclusion that E.W.F. continues to be a sexually dangerous individual. To the extent the Annual Report was considered by the district court, Dr. Sullivan’s presence to testify made it possible to cross-examine her regarding the assertions made in the report on file with the district court.

[¶ 16] E.W.F. did exercise his right to an independent psychological evaluation. E.W.F. did not, however, call the independent psychologist to testify at the discharge hearing. The district court noted E.W.F.’s failure to call the evaluating psychologist, stating in its opinion and order denying E.W.F.’s petition for discharge that it found clear and convincing evidence partly because:

[The State] presented evidence of [E.W.F.] ’s individual assessments and [E.W.F.] ’s individual behaviors. The State’s evidence was unrebutted (and really unchallenged in the main as [E.W.F.] chose not to offer any expert opinion from his expert, Dr. Gilbertson). [E.W.F.j’s argument is without merit. The State has met its burden as to the third prong of the [sexually dangerous individual] definition.

It was not improper for the district court to draw a negative inference from E.W.F.’s failure to call his independent expert psychologist and to use the negative inference in determining whether there was clear and convincing evidence of E.W.F.’s likelihood of engaging in further acts of sexually predatory conduct. See First Nat’l Bank of Belfield v. Burich, 367 N.W.2d 148, 152 (N.D.1985) (citation omitted) (explaining that in a civil proceeding, a “[party]’s failure to offer evidence refuting or otherwise explaining [the opposing party’s witnesses testimony warrants the inference that [the opposing party’s witnesses statements were true and correct”). See also Tice v. Mandel, 76 N.W.2d 124, 138 (N.D.1956) (citations omitted) (“In civil actions counsel may properly comment on the failure of a litigant present at the trial to testify to an issue of fact as well as the failure of a party present at the trial to contradict material testimony introduced. The right to comment is not affected by the fact that the party refuses to answer pertinent questions on the ground that the answer might intend to incriminate him.”).

Ill

[¶ 17] E.W.F. next argues his civil commitment violates his substantive due process rights under the Fifth Amendment and these rights as announced in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). Technically, E.W.F.’s substantive due process rights arise under the Fourteenth, not the Fifth, Amendment, contrary to his argument that his “civil commitment proceeding clearly violates his Fifth Amendment substantive due process rights.... ” E.g., Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (providing “the Due Process Clause of the Fourteenth Amendment confers both substantive and procedural rights” in the context of enforcing these rights against a state, rather than federal, government); U.S. v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (explaining that procedural and substantive due process rights, as enforced against the federal government, arise under the Fifth Amendment).

[¶ 18] E.W.F. argues that his “psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case” in order to prevent substantive due process violations. Crane, 534 U.S. at 413, 122 S.Ct. 867 (citations omitted). See also Matter of Hehn, 2008 ND 36, ¶ 19, 745 N.W.2d 631. E.W.F. also argues his commitment violates the United States Supreme Court holding in Kansas v. Hendricks, 521 U.S. 346, 363-64, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), that a civil commitment must last no more than a “potentially indefinite” period of time.

[¶ 19] E.W.F.’s substantive due process arguments are without merit and are not ripe for our review. E.W.F. proffers no factual argument that his psychiatric diagnosis, and the severity of the mental abnormality itself, is not sufficient to distinguish him from the dangerous, but typical, recidivist convicted in an ordinary criminal case, as required in Crane. 534 U.S. at 413, 122 S.Ct. 867. E.W.F. does not dispute that he suffers from paraphelia and pedophilia, nor does he offer a factual basis to support his contention that these disorders do not make it difficult for him to control his behavior.

[¶ 20] E.W.F. further claims his confinement exceeds a period of time that is “potentially indefinite.” E.W.F. alleges that because he has been committed for nine years without improvement, the State has committed approximately 60 sex offenders in the last 10 years and none have been released for successful completion in a treatment program, and “[i]t is not possible to complete a [sex offender] treatment program when the state hospital continuously changes it” that his commitment cannot be called “potentially indefinite” and thus satisfy the constitutional constraints Hendricks placed on civil commitment. 521 U.S. at 363-64, 117 S.Ct. 2072.

[¶ 21] The fact that E.W.F. has been there for a period of nine years, without more, does not prove that he will remain there indefinitely. With regard to E.W.F.’s assertion that the commitment is indefinite because the plan continuously changed, making it impossible to complete the program and demonstrate the disorder and threat have been cured, E.W.F. does not provide evidence about how the program has changed or what has been made impossible to accomplish. He merely makes a bare assertion that completing the treatment is impossible due to change, but does not substantiate this allegation with specific and discrete facts. “A party must do more than submit bare assertions to adequately raise constitutional issues.” Riemers v. State, 2007 ND APP 3, ¶ 8, 738 N.W.2d 906 (citing Riemers v. O’Halloran, 2004 ND 79, ¶6, 678 N.W.2d 547). E.W.F.’s constitutional claims are not supported with substantial fact or law and are therefore not ripe for review.

IV

[¶ 22] We affirm the district court’s order denying E.W.F.’s petition for discharge.

[¶ 23] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

DALE V. SANDSTROM, concurs in the result.


author: SANDSTROM, Justice.

text:
    2008 ND 135
    STATE of North Dakota, Plaintiff and Appellant v. Charles BLUNT, Defendant and Appellee.
    No. 20070247.
    Supreme Court of North Dakota.
    June 30, 2008.

      Cynthia Mae Feland (argued), Assistant State’s Attorney, and Lloyd Clayton Suhr (appeared), Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellant.
    Michael Ray Hoffman, Bismarck, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] The State appealed from a district court order dismissing a criminal complaint charging Charles Blunt with two counts of misapplication of entrusted property. We reverse and remand, concluding (1) personal gain to the defendant is not an element of the crime of misapplication of entrusted property, and (2) the district court erred in concluding there was not probable cause to believe that an offense had been committed or that Blunt had committed it.

I

[¶ 2] Blunt was the Executive Director and CEO of Workforce Safety & Insurance (“WSI”) from 2004 to 2007. In 2006, the State Auditor’s Office conducted a performance review of WSI. The Auditor’s report “identified expenditures appearing to result in noncompliance with constitutional provisions, state law, and OMB policy” totaling more than $18,000. Among the alleged improper expenditures noted in the Auditor’s report were gift certificates to restaurants, gas stations, shopping malls, and movie theaters given to certain WSI employees; food, beverages, flowers, balloons, decorations, costume rentals, ornaments, and gifts for WSI meetings; costs of paying for legislators to attend insurance conventions; costs of a luncheon for a legislative committee to present WSI’s proposed legislative bills for 2005; and bonuses paid to three high-ranking WSI executives.

[¶ 3] As a result of the Auditor’s report, Blunt was charged with two counts of misapplication of entrusted property in violation of N.D.C.C. § 12.1-23-07(1). Count I charged Blunt with a class B felony for misapplying over $10,000 in WSI funds for gift certificates, meeting expenses, and expenditures on legislators. See N.D.C.C. § 12.1-23-07(2)(a). Count II charged Blunt with a class C felony for misapplying over $500 in WSI funds for improper bonuses to three high-ranking WSI executives. See N.D.C.C. § 12.1-23-07(2)(b). Following a preliminary hearing and submission of post-hearing briefs, the district court concluded the State had failed to establish probable cause that an offense had been committed or that Blunt had committed it. An order dismissing the criminal complaint was entered, and the State appealed.

[¶ 4] The district court had jurisdiction under N.D, Const, art. VI, § 8, and N.D.C.C. § 27-05-06(1). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-07(1). See State v. Baumgartner, 2001 ND 202, ¶ 6, 637 N.W.2d 14 (an order dismissing a criminal complaint is the equivalent of an order quashing an information or indictment and is appealable under N.D.C.C. § 29-28-07(1)); State v. Serr, 1998 ND 66, ¶¶4, 7, 575 N.W.2d 896 (same). The appeal was timely under N.D.RApp.P. 4(b)(1)(B).

II

[¶ 5] The State contends the district court erroneously engrafted an additional element onto the offense of misapplication of entrusted funds when it based its dismissal of the complaint on the State’s failure to show that Blunt personally bene-fitted from any unauthorized expenditure of public funds.

[¶ 6] Misapplication of entrusted property is prohibited by N.D.C.C. § 12.1-23-07(1):

A person is guilty of misapplication of entrusted property if the person disposes of, uses, or transfers any interest in property that has been entrusted to the person as a fiduciary, or in the person’s capacity as a public servant or an officer, director, agent, employee of, or a person controlling a financial institution, in a manner that the person knows is not authorized and that the person knows to involve a risk of loss or detriment to the owner of the property or to the government or other person for whose benefit the property was entrusted.

[¶ 7] This Court has identified the elements of the offense as: (1) the disposal, use, or transfer; (2) of any interest in property; (3) which has been entrusted to the defendant; (4) as a fiduciary or in his capacity as a public servant; (5) in a manner he knows is not authorized; (6) and that he knows to involve a risk of loss or detriment to; (7) the owner of the property or the government. State v. Barendt, 2007 ND 164, ¶ 10, 740 N.W.2d 87; State v. Jelliff, 251 N.W.2d 1, 7 (N.D.1977). Neither the language of N.D.C.C. § 12.1-23-07 nor the legislative histories of the statute or the provision of the Proposed Federal Criminal Code from which it was adopted indicate the State is required to show that the defendant personally benefited from misuse of the property. See National Commission on Reform of Federal Criminal Laws, Final Report § 1737 (Misapplication of Entrusted Property) (1971); II Working Papers of the National Commission on Reform of Federal Criminal Laws 974-75 (July 1970).

[¶ 8] The district court based its conclusion that the State was required to show Blunt personally benefitted from the unauthorized expenditures upon the fact that the defendant in Jelliff had personally benefitted from the misapplication of entrusted property:

In Jelliff the state’s attorney had personally taken funds for himself. Indeed, the Court is not aware of any case in North Dakota involving misapplication of public funds by a government employee or officer in which the defendant or the defendant’s family did not benefit from such misapplication of funds, although it is conceivable some such person could develop a “Robin Hood” personality, but the Court is not aware of any such North Dakota case. The state’s argument in this case has to be that Blunt gave away funds he was entrusted to manage as there is no evidence he used any of the funds for himself, although he could easily have had a cup of coffee or slice of cake at one of the events which led to these charges.

The district court concluded that “[w]ith-out any evidence of self dealing in these public funds, there is no evidence that Blunt knew these meeting expenses and ‘bonuses’ ‘involve a risk of loss or detriment ... to the government.’ ”

[¶ 9] The court essentially en-grafted an additional element onto the offense of misapplication of entrusted property that is not included in the statute. The language of the statute, the legislative history, and our case law do not support the district court’s conclusion. The focus and purpose of the statute is protection of the owner’s interest in the entrusted property, not whether the defendant received a personal benefit from misuse of the property. In short, “[a] public officer entrusted with public funds has no right to give them away.” 63C Am.Jur.2d Public Officers and Employees § 265 (1997); see also Teigen v. State, 2008 ND 88, ¶35, 749 N.W.2d 505 (Sandstrom, J., concurring specially) (N.D. Const, art. X, § 18, “restraints] ... government actors from gifting public funds or property”).

[¶ 10] We conclude the district court erred when it based its dismissal of the complaint upon lack of evidence that Blunt personally benefitted from the alleged unauthorized expenditures of public funds.

Ill

[¶ 11] Blunt contends that even if the district court based its determination that the State had failed to establish probable cause upon its erroneous inclusion of an additional element in the offense, dismissal of the complaint was still appropriate. Blunt contends the court made findings of fact on other elements of the offense that support the court’s conclusion there was not probable cause. Blunt argues the court’s findings show the State failed to prove Blunt knew that the expenditures were unauthorized or that they involved a risk of loss or detriment to the government.

A

[¶ 12] To some extent, the court’s reasoning and analysis, and Blunt’s arguments on appeal, are premised upon an apparent misconception of the purpose and scope of a preliminary hearing.

[¶ 13] Preliminary hearings are governed by N.D.R.Crim.P. 5.1:

(a) Probable Cause Finding. If the magistrate finds probable cause to believe an offense has been committed and the defendant committed the offense, an arraignment must be scheduled. The finding of probable cause may be based on hearsay evidence in whole or in part. The defendant may cross-examine adverse witnesses and may introduce evidence. The magistrate may receive evidence that would be inadmissible at the trial.
(b) Discharge of the Defendant. If the magistrate hears evidence on behalf of the respective parties in a preliminary examination, and finds either a public offense has not been committed or there is not sufficient cause to believe the defendant guilty of the offense, the magistrate must discharge the defendant.

[¶ 14] This Court has said that in determining whether probable cause exists, the district court may judge credibility and make findings of fact. State v. Foley, 2000 ND 91, ¶ 10, 610 N.W.2d 49; State v. Serr, 1998 ND 66, ¶ 9, 575 N.W.2d 896. On appeal, we will not reverse the district court’s findings of fact in preliminary proceedings in a criminal case if, after resolving conflicts in the evidence in favor of affirmance, sufficient competent evidence exists that is fairly capable of supporting the court’s findings and the decision is not contrary to the manifest weight of the evidence. Foley, at ¶ 8; Serr, at ¶ 9. Whether the facts found by the district court reach the level of probable cause is a question of law, fully reviewable on appeal. Heick v. Erickson, 2001 ND 200, ¶ 10, 636 N.W.2d 913; Foley, at ¶ 8; Serr, at ¶ 9.

[¶ 15] The district court’s authority to assess credibility and make findings of fact must be viewed, however, in the context of the minimal burden of proof placed upon the State and the limited purpose of the preliminary hearing. The State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred, but rather need only produce sufficient evidence to satisfy the court that a crime has been committed and that the accused is probably guilty. State v. Perreault, 2002 ND 14, ¶ 12, 638 N.W.2d 541; Foley, 2000 ND 91, ¶ 8, 610 N.W.2d 49; Serr, 1998 ND 66, ¶ 10, 575 N.W.2d 896. This Court has stressed that a preliminary hearing is not a trial on the merits. State v. Buchholz, 2005 ND 30, ¶ 11, 692 N.W.2d 105; Perreault, at ¶ 12; Walker v. Schneider, 477 N.W.2d 167, 172 (N.D.1991); Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72, 75 (N.D.1983). It is not the purpose of the preliminary hearing to determine the defendant’s guilt or innocence. Buchholz, at ¶ 11; Foley, at ¶ 7; Walker, at 172. Rather, the preliminary hearing is a “safety device” to prevent the accused’s detention without probable cause, and its purpose is to determine whether a trial should be held to determine the guilt or innocence of the accused. Buchholz, at ¶ 11; Dickinson Newspapers, at 75. At its core, the preliminary hearing is a “tool to ‘ferret out groundless and improvident prosecutions.’ ” Foley, at ¶ 7 (quoting Walker, at 172).

[¶ 16] Accordingly, the probable cause showing required at a preliminary hearing under N.D.R.Crim.P. 5.1 is “a minimal burden of proof.” Healy v. Healy, 397 N.W.2d 71, 73 (N.D.1986). The standard of probable cause at the preliminary hearing is the same standard of probable cause required for a valid arrest. Perreault, 2002 ND 14, ¶ 12, 638 N.W.2d 541; Serr, 1998 ND 66, ¶ 10, 575 N.W.2d 896; State v. Morrissey, 295 N.W.2d 307, 311 (N.D.1980). Under that standard, probable cause exists when the facts and circumstances “are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed,” and “[k]nowledge of facts sufficient to establish guilt is not necessary to establish probable cause.” Hoover v. Director, N.D. Dep’t of Transp., 2008 ND 87, ¶ 9, 748 N.W.2d 730 (quoting Rist v. North Dakota Dep’t of Transp., 2003 ND 113, ¶ 15, 665 N.W.2d 45); see also State v. Washington, 2007 ND 138, ¶ 12, 737 N.W.2d 382.

[¶ 17] In states which, like North Dakota, employ the preliminary hearing as a screening tool for probable cause rather than as a mini-trial on guilt or innocence, the court’s authority to weigh the evidence and judge credibility of witnesses is limited. See 4 Wayne R. La-Fave et al., Criminal Procedure § 14.3(b) (3d ed.2007). For example, in Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265, 1268 (1975), the court stressed that in Colorado the preliminary hearing is not a mini-trial, and the trial court’s “role is not a trier of fact,” but its “function is solely to determine the existence or absence of probable cause.” The court articulated the trial court’s limited authority to assess credibility at that stage of the proceedings:

We hold that a judge in a preliminary hearing has jurisdiction to consider the credibility of witnesses only when, as a matter of law, the testimony is implausible or incredible. When there is a mere conflict in the testimony, a question of fact exists for the jury, and the judge must draw the inference favorable to the prosecution.

Id.; see also 1 Nancy Hollander et al., Wharton’s Criminal Procedure § 8.22 (14th ed.2007) (quoting Hunter); 4 La-Fave, supra, at § 14.3(b) (quoting Hunter). We believe this standard appropriately corresponds with the limited purpose and scope of a preliminary hearing. As indicated by Professor LaFave, “[t]he preliminary hearing screening function ... no more puts the magistrate in the shoes of the jury or prosecutor than does the function of a trial judge in a ruling on a motion to dismiss or a motion for a directed verdict of acquittal.” 4 LaFave, supra at § 14.3(a).

[¶ 18] We must view the district court’s findings and rationale within the context of this limited scope of the preliminary hearing.

B

[¶ 19] The district court apparently based its determination of no probable cause in part oil its finding that Blunt may have believed the expenditures were implicitly authorized by the WSI Board of Directors:

Absent any evidence the WSI board of directors is trying to violate the law or commit any criminal act, the Court sees no reason the WSI board of directors should not be left to resolve these issues. Without evidence of any such action, there is no evidence Blunt knew he was not authorized to do what he did. If the WSI board of directors, when made aware of these expenses, did not give Blunt any instructions to the contrary, it is not inconceivable Blunt understood he was authorized to make these compensation, meeting expense and incentive expenditures.

[¶ 20] The language used by the district court evidences a misunderstanding of the legal standard to be employed at the preliminary hearing. The district court may not base its conclusion that probable cause was lacking upon a finding that “it is not inconceivable” there is an innocent explanation for the defendant’s conduct. The phrase “it is not inconceivable” suggests the court was employing a standard that goes beyond even the “beyond a reasonable doubt” standard necessary for conviction. We explained above that it is not appropriate at preliminary hearing to dismiss on the basis of “a mere conflict in testimony,” for example, a case of “he said, she said.” Under the standard employed by the district court, many or most murder charges would be subject to being dismissed at preliminary hearing because it would be “not inconceivable” that the defendant could have acted in self-defense. The State was not required to negate every possible scenario of innocence, but merely to satisfy the “minimal burden of proof’ for probable cause. See Healy, 397 N.W.2d at 73. If it is generally presumed that everyone knows the law, e.g., State v. Buchholz, 2006 ND 227, ¶¶ 13, 16, 723 N.W.2d 534, it must be presumed that the head of a large state agency knows the law regarding appropriate expenditure of the public funds entrusted to him. See In re Dvorak, 2000 ND 98, ¶ 12, 611 N.W.2d 147 (if all persons are presumed to know the law, then “certainly” a seasoned attorney knew or should have known of applicable legal principles). The district court’s speculation that, if the WSI Board of Directors was aware of the expenditures and did not complain to Blunt, “it is not inconceivable Blunt understood he was authorized to make these ... expenditures” does not provide a sufficient basis for concluding there was not probable cause.

C

[¶ 21] The court also premised its conclusion there was not probable cause on its finding the State had failed to demonstrate a risk of loss to the government. The court reasoned:

With respect to the question of whether Blunt’s actions with respect to gift certificate incentives, meeting expenses and “bonuses” constituted “a loss to the government,” there is no evidence the government lost anything as all of these expenditures appear to benefit the government since arguably such expenditures would make employees happy and thus better state workers, and would also benefit the government by assisting in the retention of good employees. Perhaps it can be argued that WSI employees who did not receive these benefits would be unhappy and thus less productive, but there is no evidence of any loss of production. Nor is there any evidence that such expenditures were in excess of WSI’s budget. The Court finds no loss to the government.

[¶ 22] Although the court addressed this issue within the context of the “risk of loss” element of the offense, the court’s finding that the expenditures created a public benefit in the form of happier, more productive workers would more appropriately apply, if at all, to the element requiring proof the expenditures were not authorized. If the court’s rationale is that an unauthorized expenditure of public funds creates no risk of loss to the government if there is some tangential benefit to the public, we reject it. It is axiomatic that if public funds are spent illegally, without constitutional or statutory authorization, there is a clear risk of loss to the state. The people and the legislature, through the constitution and laws of this State, have delineated the parameters of the appropriate expenditure of public funds, and any expenditure in violation of those provisions by definition creates a loss to the government.

[¶23] The district court’s rationale is equally erroneous when viewed in the context of the element requiring proof the expenditures were not authorized. To be authorized, it is “widely recognized” that expenditures of public funds “must be for a public purpose.” 63C Am.Jur.2d Public Funds § 58 (1997). In this State, this restriction is constitutionally based. See N.D. Const, art. X, § 18 (“neither the state nor any political subdivision thereof shall otherwise loan or give its credit or make donations to or in aid of any individual, association or corporation except for reasonable support of the poor”). These provisions restrict expenditures of public funds to public purposes. See, e.g., Teigen v. State, 2008 ND 88, ¶35, 749 N.W.2d 505 (Sandstrom, J., concurring specially) (“[t]he North Dakota constitutional limitation on gifts [in N.D. Const, art. X, § 18] is the action of the people in general to restrain the government actors from gifting public funds or property”); Gripentrog v. City of Wahpeton, 126 N.W.2d 230, 237 (N.D.1964). In this context, a public purpose is defined as “the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within a given political division.” Adams County Record v. Greater North Dakota Ass’n, 529 N.W.2d 830, 836 n. 1 (N.D.1995) (quoting Gripentrog, at 237).

[¶ 24] In this case, the district court implicitly found that, as a matter of law, the expenditure of public funds for gift certificates, food, beverages, flowers, balloons, decorations, costume rentals, ornaments, and gifts was authorized because there was a corresponding public benefit in the form of happier, more productive employees. The critical flaw in the district court’s rationale is that it has no limits. If Blunt had used public funds to give every WSI employee a new car, or to take them and their families to Disneyland, presumably the employees would have been happier, and it may have been easier to retain good employees. We doubt, however, that anyone would argue it was an appropriate expenditure of public funds. While most of the expenditures in this ease were relatively small on an individual basis, the aggregate alleged amounts to more than $18,000. We do not view that as an insignificant amount of public funds, nor would its misuse be inconsequential.

[¶ 25] We conclude the district court erred in basing its determination there was not probable cause on a perceived public benefit from expenditure of the funds.

D

[¶ 26] Blunt contends, and the district court concluded, that the lump sum payments made to three WSI executives were retroactive pay increases, not illegal bonuses as alleged by the State.

[¶ 27] The Auditor’s report characterized the payments as bonuses that were paid in violation of state law, and outlined the factual backgrounds of the payments. In 2005, WSI was apparently implementing a new compensation system. The three executives each received substantial pay raises. Their raises included three components: (1) an increase of up to five percent based upon their performance evaluation; (2) an increase to place them into their new pay grade in the new compensation system; and (3) an additional amount to be determined by Blunt. This third, additional component was paid retroactively, as well as going forward, and provided the basis for the State’s allegation that improper bonuses were given.

[¶ 28] To demonstrate the effect of these increases, the first executive received a monthly salary increase of $1,334, of which $613 was the “bonus” determined by Blunt. This bonus amount was paid retroactively for four months, resulting in a $2,452 lump sum payment. The second executive received a monthly increase of $745, of which $347 was the additional amount awarded by Blunt. The bonus amount was applied back four months, for a $1,388 lump sum payment. The third executive received a $728 monthly increase, of which $480 was the bonus determined by Blunt. This amount was paid retroactively seven months, for a lump sum payment of $3,360. The State thus alleged in Count II of the complaint payment of improper bonuses in the aggregate amount of $7,200.

[¶ 29] The parties have focused their arguments on this issue upon whether the lump sum payments are appropriately characterized as bonuses or retroactive pay increases. The parties have not cited, and we have not found, a statutory definition of “bonus.” In ordinary usage, “bonus” is defined as “[a] premium paid in addition to what is due or expected,” or, in the employment context, a payment “in addition to or in excess of the compensation that would ordinarily be given.” Black’s Law Dictionary 194 (8th ed.2004). The lump sum payments in this case fit that definition. The parties had an employment contract, and each had already performed the contract for the prior months. The employees had already received all of the amounts that were “due or expected” or that “would ordinarily be given.” Thus, lump sum payments for work performed in the past, and which had already been fully compensated at the time the work was performed, constitute “bonuses.”

[¶ 30] The State contends the payments were bonuses that did not comply with existing statutory state employee bonus programs. Under N.D.C.C. §§ 54-06-30 and 54-06-31, state agencies are authorized to pay performance bonuses or recruitment and retention bonuses under certain limited circumstances. Under either program, bonuses may be paid only if the agency has adopted a written policy implementing the program. See N.D.C.C. §§ 54-06-30 and 54-06-31. The evidence at the preliminary hearing showed WSI had not adopted written policies as required by the statutes, and Blunt does not contend the bonuses complied with the statutory requirements.

[¶ 31] We agree with the State that there is probable cause establishing lump sum payments constituting improper bonuses not authorized under state law. We further note, however, that even if the lump sum payments are characterized as retroactive pay increases, neither Blunt nor the district court has drawn our attention to any constitutional, statutory, or other legal authority allowing an agency head to award retroactive pay increases.

E

[¶ 32] We conclude the district court erred in concluding there was not probable cause to believe that an offense had been committed or that Blunt had committed it.

IV

[¶ 33] We have considered the remaining issues and arguments raised by the parties and find them to be either unnecessary to our decision or without merit. We conclude the district court erred in dismissing the criminal complaint against Blunt, and we reverse and remand for further proceedings in accordance with this opinion.

[¶ 34] GERALD W. VANDE WALLE, C.J., RICHARD L. HAGAR, D.J., DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ„ concur.

[¶ 35] The Honorable RICHARD L. HAGAR, D.J., sitting in place of KAPSNER, J„ disqualified.


author: MARING, Justice.

text:
    2008 ND 136
    Kenneth GERHARDT, Director, Morton County Social Service Board as Assignee for S.B., S.B., and Julie Sisk as Guardian Ad Litem for Z.B., a Minor Child, Plaintiffs and Appellees v. C.K., Defendant and Appellant.
    No. 20070282.
    Supreme Court of North Dakota.
    June 30, 2008.

      Marnie R. Soggie, Child Support Enforcement, Bismarck, N.D., for plaintiffs and appellees.
    Theresa L. Cole, American Legal Services, P.C., Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] C.K. appeals a district court memorandum opinion and order denying his motion for a DNA test to dispute a 1994 adjudication of paternity. C.K. argues on appeal that N.D.C.C. § 14-20-31, which was enacted in 2005, allows him to request additional genetic testing if he agrees to pay in advance for the testing.

[¶ 2] We hold that the law in effect in 1993, the year the original paternity adjudication proceeding was commenced, applies to this matter. Section 14-17-14(1), N.D.C.C. (1993), provides that a judgment adjudicating parentage is “determinative for all purposes.” Under N.D.C.C. § 14-17-10(1) (1993), the district court was not required to compel genetic testing in response to a post-judgment motion. We, therefore, affirm the district court memorandum opinion and order.

I

[¶ 3] After a child was born to S.B. on November 25, 1992, S.B. claimed C.K. was the child’s father. S.B. claimed she and C.K. had sexual intercourse twice in March 1992. C.K. denied having sexual intercourse with S.B. C.K. contended that his first cousin, M.K., was the child’s father. S.B. admits to having sexual intercourse with M.K. in early April 1992. Results of a 1993 blood test showed a 99.78 percent probability that C.K. is the child’s father. The court granted C.K. permission to add M.K. to the initial paternity action as a third party, but C.K. never served M.K. with a complaint. A blood sample was not obtained from M.K. during the initial paternity action. C.K. was adjudicated the father of the child in 1994.

[¶ 4] In March 2007, C.K. filed a motion requesting DNA testing to show he is not the child’s father. The district court entered a memorandum opinion and order denying C.K.’s motion. The district court held that the 1994 determination of parentage is binding on the parties to the adjudication proceeding and thereby precludes C.K. from obtaining additional genetic testing. C.K. appeals, arguing N.D.C.C. § 14-20-31, which was enacted in 2005, allows him to request additional genetic testing if he agrees to pay in advance for the testing.

II

[¶ 5] The parties request this Court to interpret the Uniform Parentage Act, embodied in chapter 14-20, N.D.C.C., and enacted by the legislature in 2005. See 2005 N.D. Sess. Laws ch. 135, § 9. The interpretation of a statute is a question of law, fully reviewable on appeal. Seehafer v. Seehafer; 2005 ND 175, ¶ 12, 704 N.W.2d 841.

[¶ 6] C.K. argues the district court erred because N.D.C.C. § 14-20-31 required the district court to order genetic testing. The Morton County Social Service Board argues the district court properly denied C.K.’s motion requesting DNA testing.

[¶ 7] The parties agree that the 2005 version of the Uniform Parentage Act applies to this matter. We note, however, that 2005 N.D. Sess. Laws ch. 135, § 12, explicitly provides that a “proceeding to adjudicate parentage which was commenced before the effective date of this chapter is governed by the law in effect at the time the proceeding was commenced.” Section 1-02-10, N.D.C.C., states, “No part of this code is retroactive unless it is expressly declared to be so.” We have declined to retroactively apply a statute when nothing in the statute suggests the statute is intended to apply retroactively. See White v. Altru Health System, 2008 ND 48, ¶ 21, 746 N.W.2d 173.

[¶ 8] Not only did the 2005 legislation not say it applied retroactively, it specifically provided that it did not. The parentage adjudication proceeding regarding S.B.’s child was commenced with the filing of a complaint in March of 1993. Thus, the 1993 version of the Uniform Parentage Act, which was the law in effect at the time the action to adjudicate parentage was commenced, is the applicable law for this matter.

[¶19] Under N.D.C.C. § 14-17-14(1) (1993), a judgment “determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.” Section 14-17-10(1), N.D.C.C. (1993), provides that the “court may, and upon request of a party shall, require the child, mother, or alleged father to submit to genetic tests, including tests of blood or other tissues.” The statute also provides that “upon reasonable request by a party,” a court shall “order that independent tests be performed by other experts.” N.D.C.C. § 14-17-10(2).

[¶ 10] In Interest of M.Z., 472 N.W.2d 222, 223 (N.D.1991), this Court concluded that N.D.C.C. § 14-17-10(1) “requires the court to order genetic tests only when the request for tests is made while proceedings are pending to adjudicate parentage under the chapter.” This Court stated, “We do not believe the statute requires the court to compel genetic tests in response to a post-judgment motion, after parentage has been adjudicated.” Id. Otherwise, “[t]here would be no finality to parental adjudications.” Id. Our holding in M.Z. was supported by the legislature’s intention “to provide finality to determinations about the existence of a parent-child relationship.” Id.

[¶ 11] Here, the district court was precluded by our holding in M.Z. from granting C.K’s post-judgment motion to compel genetic testing. See 472 N.W.2d 222. Although a different set of facts was at issue in M.Z., we conclude that our holding in M.Z., that N.D.C.C. § 14-17-10(1) (1993) does not require the court to compel genetic tests in response to a post-judgment motion, is controlling under the circumstances of C.K.’s motion for DNA testing.

Ill

[¶ 12] We hold that the law in effect in 1993, the year the original paternity adjudication proceeding was commenced, applies to this matter. Section 14-17-14(1), N.D.C.C. (1993), provides that a judgment adjudicating parentage is “determinative for all purposes.” Under N.D.C.C. § 14-17-10(1) (1993), the district court was not required to compel genetic testing in response to a post-judgment motion. We, therefore, affirm the district court memorandum opinion and order.

[¶ 13] WILLIAM F. HODNY, S.J., DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.

I concur in the result, GERALD W. VANDE WALLE, C.J.

[¶ 14] The Honorable WILLIAM F. HODNY, S.J., sitting in place of KAPSNER, J., disqualified.