author: CROTHERS, Justice.

text:
    2006 ND 212
    STATE of North Dakota, Plaintiff and Appellee, v. Todd Lance EBEL, Defendant and Appellant.
    Nos. 20050440—20050443.
    Supreme Court of North Dakota.
    Oct. 17, 2006.

      Ronald W. McBeth, Assistant State’s Attorney, Law Enforcement Center, Wahpe-ton, N.D., for plaintiff and appellee.

      Steven M. Light (argued) and Lorelle A. Moeckel (appeared), Larivee & Light, Fargo, N.D., for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Todd Ebel appeals from a criminal judgment and commitment entered upon his conditional guilty plea to one count of possession of a controlled substance and two counts of possession of drug paraphernalia. We conclude probable cause existed to support the issuance of the search warrant and the district court did not err in denying Ebel a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

I

[¶ 2] On December 29, 2004, Police Officer Dustin Hill contacted a district court judge via telephone to obtain a search warrant for Ebel’s residence in Hankinson. Officer Hill requested the warrant because he believed Ebel’s residence was the site of a methamphetamine lab.

[¶ 3] Officer Hill testified via telephone, offering information supporting his application for a search warrant of Ebel’s residence. Officer Hill provided information he had received from Richland County Deputy Sheriff Shane Orn, that Deputy Orn had received several complaints of come-and-go traffic, loud parties and strange activity at the residence. Officer Hill testified that he had observed two vehicles making short stops at the residence earlier that day and that Deputy Orn had seen come-and-go traffic, specifically three vehicles in a matter of ten minutes the same day. Officer Hill indicated others had observed come-and-go traffic over the last several months.

[¶ 4] Officer Hill offered statements from Joseph O’Meara, who is Hankinson’s mayor and Ebel’s neighbor. Officer Hill stated, “[O’Meara] said it’s just non-stop. He said it’s just cars are coming and going at all hours of the night. He specifically stated that people would leave the house at eleven o’clock at night ... or they would get there at eleven o’clock at night and be coming and going until four or five in the morning.” Hill testified O’Meara stated he specifically observed that within the last two weeks, a female ran into the house, came out, held up her hand, “[h]ad a small package and then hopped in the car and took off.” Based upon his training and experience, Officer Hill testified he believed O’Meara had witnessed a drug transaction.

[¶ 5] Hill also offered an account of a recent confrontation between O’Meara and Ebel that occurred at four o’clock in the morning, stating: “[Ebel] was in his underwear, standing outside in the cold, singing with his dog and [O’Meara] stated that [Ebel] could not look in his eyes. He was jittery. He had all the signs of what was described to him through his training of an individual being under the influence of methamphetamine.” Hill testified that O’Meara, as a member of the fire department, had received training within the last year from officers on identifying possible methamphetamine labs, including what to look for and observe.

[¶ 6] Officer Hill also testified as to information provided by Ron Hubrig, the city water and sewer supervisor. Hill testified the city had experienced a problem with drains clogging in the city sewer system, and they worked with the mayor to figure it out, “slowly traced it back over a year’s time to, within the last two weeks, ... that shop towels and rubber gloves have been coming into the pump station.” Hill testified the city traced these items “directly back to a manhole cover” near Ebel’s residence. Officer Hill testified, “[t]his is a closed sewer system ... [and] ... [t]he only other individual [other than Ebel] who has access to that is across the street, the Mayor.” Officer Hill asserted that the shop towels and rubber gloves, indicating the potential presence of a methamphetamine laboratory, could only have come from the mayor’s house or Ebel’s house.

[¶ 7] Officer Hill testified that O’Meara also stated that O’Meara’s wife had observed Ebel bringing “cylindrical tanks into the residence,” further indicating potential illicit manufacturing of methamphetamine. Specifically, Hill testified the tanks could be holding anhydrous ammonia, which is used in methamphetamine production. Hill also testified that the mayor and his wife had observed several doors and windows in the home open in cold weather, further indicating “to officers through their training and experience that they are airing the residence out. This happened several times ... this happens during the production of methamphetamine due to the release of noxious chemicals and gases, during the chemical process.”

[¶ 8] Based upon the information provided to the district court in Officer Hill’s telephone testimony, the court issued a warrant to search Ebel’s residence. In issuing the warrant, the district court stated:

There is probable cause to search based on the open windows during the winter in combination with the tanks going into the house recently and the rubber gloves and the shop towels being found in the sewer that can be traced only to Mr. Ebel’s residence. The other information also is corroborative of a possible methamphetamine lab and distribution. So based on that I will find probable cause.

In January 2005, law enforcement searched Ebel’s residence and seized drug paraphernalia and controlled substances. Ebel was arrested for possession of drug paraphernalia and subsequently charged with two counts of possession of drug paraphernalia and two counts of possession of a controlled substance.

[¶ 9] In March 2005, Ebel moved to suppress the evidence seized during the execution of the search warrant, claiming the warrant was issued without probable cause. On May 31, 2005, the district court denied his motion, explaining in its memorandum opinion and order:

The primary basis for ... finding that there was probable cause to believe that methamphetamine was being manufactured at Ebel’s residence was that rubber gloves and shop towels found in the sewer system could be traced to Ebel and Ebel was witnessed carrying acetylene tanks into his home. Testimony indicated that these types of gloves and towels are commonly used in the manufacturing of methamphetamine. Officer Hill also testified that acetylene tanks may be used to hold anhydrous ammonia, an ingredient of methamphetamine. In addition to this “primary evidence,” [the district court] also acknowledged that other corroborative evidence, such as the stop and go traffic in front of Ebel’s home and the windows being open during the winter, indicated drug activity.

[¶ 10] After the district court’s denial of his motion to suppress, Ebel raised the potential of a Franks issue at an October 2005 status conference and was thereafter permitted to file a motion seeking a Franks hearing and a request for reconsideration of his motion to suppress. Under Franks, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667, the Fourth Amendment requires a hearing be held at the defendant’s request, if a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause. On October 26, 2005, the district court denied Ebel’s motion to reconsider probable cause and denied Ebel’s request for a Franks hearing. Ebel ultimately entered a conditional guilty plea to two counts of possession of drug paraphernalia and one count of possession of a controlled substance. The State dismissed with prejudice one charge for possession of a controlled substance. Ebel appeals from the judgment and commitment for three of those counts.

II

[¶ 11] Ebel asserts the district court erred in denying his motion to suppress, arguing there was insufficient information to support probable cause for issuance of the search warrant.

[¶ 12] The Fourth Amendment of the United States Constitution, as applicable to the states by the Fourteenth Amendment, and N.D. Const, art. I, § 8, require searches and seizures to be reasonable and warrants to be issued only upon a showing of probable cause. Whether probable cause exists to issue a search warrant is a question of law. State v. Stewart, 2006 ND 39, ¶6, 710 N.W.2d 403; State v. Hage, 1997 ND 175, ¶ 10, 568 N.W.2d 741. “The standard of proof necessary to establish guilt at trial is not necessary to establish probable cause.” State v. Ballweg, 2003 ND 153, ¶ 18, 670 N.W.2d 490. “We defer to a magistrate’s determination of probable cause so long as a substantial basis for the conclusion exists, and we resolve doubtful or marginal cases in favor of the magistrate’s determination.” Stewart, at ¶ 6.

[¶ 13] This Court uses the totality-of-the-cireumstances test in reviewing the sufficiency of information before the magistrate, independent of the court’s decision. State v. Nelson, 2005 ND 59, ¶ 16, 693 N.W.2d 910; State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994). To establish probable cause, there must be a nexus between the place to be searched and the contraband sought. Nelson, at ¶ 17. Circumstantial evidence may be used to establish that nexus. Id. (citing State v. Dodson, 2003 ND 187, ¶¶ 11-12, 671 N.W.2d 825). “Probable cause exists when ‘there is a fair probability contraband or evidence of a crime will be found in a particular place.’ ” State v. Corum, 2003 ND 89, ¶ 27, 663 N.W.2d 151 (quoting State v. Guthmiller, 2002 ND 116, ¶ 10, 646 N.W.2d 724).

[¶ 14] Mere suspicion criminal activity is taking place, which may warrant further investigation, does not rise to a level of probable cause to search. See State v. Thieling, 2000 ND 106, ¶8, 611 N.W.2d 861. “The relevant inquiry is not whether conduct is innocent or guilty, but what degree of suspicion attaches to it.” Ballweg, at ¶ 18 (citing Illinois v. Gates, 462 U.S. 213, 245, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and Guthmiller, 2002 ND 116, ¶ 13, 646 N.W.2d 724).

[¶ 15] Citizen informants are presumed to be a reliable source of information. State v. Rangeloff, 1998 ND 135, ¶ 22, 580 N.W.2d 593; Hage, 1997 ND 175 ¶ 16, 568 N.W.2d 741. If possible, this reliability should be evaluated and verified by independent investigation by police. Rangeloff, at ¶ 22. Additionally, where the information presented to the magistrate demonstrates conduct or activity of a “protracted and continuous” nature, the passage of time is less important to the validity of the probable cause. Hage, ¶ 12. Drug dealing is intrinsically a “protracted and continuous” activity. Id. at ¶ 13.

[¶ 16] In Stewart, 2006 ND 39, ¶ 10, 710 N.W.2d 403, this Court concluded statements from criminal informants coupled with the trained officer’s deductions yielded probable cause for the issuance of a search warrant. Here, Officer Hill presented first-hand information relating to Ebel’s activities from presumed reliable citizen informants, namely Ebel’s neighbors — the mayor and the mayor’s wife. Officer Hill’s testimony to the magistrate in obtaining the warrant indicated come- and-go traffic over several months. Both Hill and another police officer had corroborated come-and-go traffic at Ebel’s residence. “[T]he independently corroborated and detailed observations of frequent short term traffic entering and leaving the appellant’s residence is the kind of ‘abnormal activity’ which raises suspicion of drug-related criminal conduct when viewed against the other circumstances alleged in the affidavit.” State v. Ronngren, 361 N.W.2d 224, 229 (N.D.1985) (quoting United States v. Sumpter, 669 F.2d 1215, 1222 (8th Cir.1982)).

[¶ 17] Officer Hill offered the mayor’s wife’s observation of cylindrical tanks being taken into the house. Both the mayor and his wife observed doors and windows open during cold winter weather periods and were reported to have observed open windows in Ebel’s residence just a few days prior to the application for the warrant in December. Officer Hill testified the presence of tanks and the open windows was indicative of methamphetamine production taking place on the premises. Officer Hill offered testimony regarding the mayor’s observations of Ebel’s strange behavior, which from the mayor’s training was consistent with methamphetamine use.

[¶ 18] Officer Hill testified that rubber gloves and shop towels had been coming into the city’s sewer system and that the city had traced these items directly back to a manhole cover near Ebel’s residence. Officer Hill further testified that because it was a closed sewer system, the items could only have originated from Ebel’s house or the mayor’s house. Officer Hill indicated that in his experience all of these facts together were indicative of the presence of a methamphetamine manufacturing operation at Ebel’s residence.

[¶ 19] Here, the magistrate was presented with a variety of evidence indicating drug activity was occurring at Ebel’s residence. In light of all the evidence presented to the magistrate and considering the laminated total of information presented, we conclude there existed a fair probability a methamphetamine lab would be found in Ebel’s house. Under the “totality of the circumstances” with deference to the district court, the magistrate had sufficient probable cause to issue a search warrant for Ebel’s residence.

Ill

[¶ 20] Ebel argues the district court erred in denying his request for a Franks hearing. When a defendant alleges false or misleading statements have been made in the application for a search warrant, we address the issue under the standard set forth in Franks, 438 U.S. at 155-56, 171-72, 98 S.Ct. 2674. Under Franks, the affidavit, or in this case the telephonic testimony, must contain truthful statements.

[However,] [t]his does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.

Franks, at 165, 98 S.Ct. 2674.

[¶ 21] A false statement under Franks is “one that misleads a neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate’s evaluation of whether or not there is probable cause.” State v. Donovan, 2004 ND 201, ¶ 7, 688 N.W.2d 646 (internal quotation omitted). See also State v. Schmitt, 2001 ND 57, ¶ 10, 623 N.W.2d 409; State v. Ennis, 334 N.W.2d 827, 831 (N.D.1983). That standard may also apply to statements that are deliberately false or misleading by omission. See Rangeloff, 1998 ND 135, ¶ 9, 580 N.W.2d 593; State v. Winkler, 552 N.W.2d 347, 352 n. 1 (N.D.1996). However, “for an omission to serve as the basis for a hearing under Franks, it must be such that its inclusion in the affidavit would defeat probable cause.” Rangeloff, at ¶ 9 (internal citation omitted).

[¶ 22] In response to a request for a Franks hearing, a hearing is only required if:

(1) a defendant makes a substantial preliminary showing, accompanied by an offer of proof, that false statements were made in support of a search warrant, either knowingly and intentionally or with reckless disregard for the truth, and (2) the allegedly false statements are necessary to a finding of probable cause. No evidentiary hearing is required if there remains sufficient evidence to support a finding of probable cause without the allegedly false statements, and allegations that false statements were negligently or innocently made are insufficient to necessitate an evidentiary hearing.

Rangeloff, at ¶ 10 (quoting State v. Handtmann, 437 N.W.2d 830, 836 n. 3 (N.D.1989).) The allegations of false statements must clearly delineate which statements are claimed to be false and should be accompanied by a statement supporting the reasons the statements are believed to be false. Rangeloff, at ¶ 10. “Affidavits or other reliable nonconclusory statements of witnesses should be furnished, or the absence of such support satisfactorily explained.” Id. The defendant’s burden of proof necessary to make a threshold showing is something less than a preponderance of evidence. Id.

[¶ 23] We have previously stated that the district court’s ruling on whether a “substantial preliminary showing” has been made is a finding of fact, but we review the district court’s finding of fact in a preliminary criminal proceeding under a separate, but comparable, standard. Rangeloff, 1998 ND 135, ¶ 10, 580 N.W.2d 593; City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). We will not reverse a district court’s findings of fact in preliminary proceedings of a criminal case “if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the [district] court’s findings, and the decision is not contrary to the manifest weight of the evidence.” Rangeloff, at ¶ 10 (quoting City of Fargo, 520 N.W.2d at 581).

[¶ 24] In requesting a Franks hearing, Ebel asserts Officer Hill misrepresented to the district court that the rubber gloves and shop towels found in the sewer system could be directly traced back to Ebel. In support of his request for a Franks hearing, Ebel submitted an affidavit from Hu-brig, the city water and sewer supervisor, which countered Officer Hill’s assertion to the district court about the origins of the rubber gloves and shop towels when obtaining the search warrant for Ebel’s residence.

[¶ 25] Specifically, the city water and sewer supervisor’s affidavit stated, in part:

7. There are seven households on that stretch of street so for me to determine which point of origin [the shop towels and rubber gloves] came from would be hard to speculate.
8. I could not pinpoint which exact house the debris had come from.
9. I did not tell law enforcement officers that the gloves, and rags I found in the net of the manhole would have only come from the May- or’s house or Todd Ebel’s house;
10. It would be incorrect to categorize my statement regarding the rubber gloves and towels to say they could have only come from one of these two houses.

[¶26] Hubrig’s affidavit counters Officer Hill’s testimony in obtaining the search warrant from the district court. Instead of the shop towels and rubber gloves only originating from either Ebel’s house or the mayor’s house, Hubrig’s affidavit identifies “seven households on that stretch of street.” Even assuming Hubrig’s affidavit initially demonstrates, at least for purposes of an initial showing, either intentional falsity or reckless disregard by the officer sufficient to make a “substantial preliminary showing,” a hearing under Franks is not required if, setting aside the material that is the subject of alleged falsity or reckless disregard, there remains sufficient content in the warrant affidavit to support probable cause. See United States v. Oleson, 310 F.3d 1085, 1090 (8th Cir.2002) (even if warrant application is corrected as defendant suggested, probable cause still existed to support its issuance); United States v. Jacobs, 986 F.2d 1231, 1233-34 (8th Cir.1993) (hearing on warrant’s validity required only where defendant can demonstrate warrant would not have established probable cause if corrected).

[¶ 27] Here, after correcting the potentially false information in Hill’s testimony in support of issuance of the warrant, we conclude the remaining information is sufficient to establish a nexus to support probable cause. With regard to the rubber gloves and shop towels found in the sewer, even without the information that their origins pointed to only two houses, Ebel’s residence remained one of seven residences as a potential source for these items. Hubrig’s proffered affidavit neither rebuts the fact that the gloves and towels were found in the sewer, which as Officer Hill testified indicated the presence of methamphetamine production, nor does the affidavit eliminate Ebel’s house as a potential source for these materials.

[¶ 28] Ebel argues Officer Hill also made a false statement by failing to inform the district court that Ebel is a welder by profession. Again, Ebel has not presented any evidence whether this omission by Officer Hill was either intentional or reckless. Ebel asserts his occupation as a welder provides an innocent explanation for possessing the cylindrical tanks observed being' taken into Ebel’s house. But our inquiry is not whether conduct is innocent or guilty; rather the degree of suspicion that attaches to it. See Ballweg, 2003 ND 153, ¶ 18, 670 N.W.2d 490. We conclude the fact Ebel was a welder does not alone preclude the existence of probable cause to support the issuance of the warrant. We therefore hold that Ebel did not make a substantial preliminary showing requiring an evidentiary hearing under Franks.

[¶ 29] We conclude the. district court’s denial of Ebel’s request for a Franks hearing was proper. We therefore affirm the district court’s denial of a Franks hearing and the court’s determination that probable cause existed to support the issuance of the search warrant.

IV

[¶ 30] The district court judgment is affirmed.

[¶ 31] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2006 ND 219
    In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Lucille L. THOMAS, an Incapacitated Person. Harold Kolrud, Petitioner and Appellant, v. David Thomas, Respondent and Appellee.
    No. 20050370.
    Supreme Court of North Dakota.
    Oct. 20, 2006.

      Michael Geiermann, Schulz Geiermann & Bergeson Law Offices, P.C., Bismarck, N.D., for petitioner and appellant.
    Robert G. Manly (argued), Vogel Law Firm, Moorhead, MN, and Daniel D. Na-rran (on brief), Kessel, Splitt and Narran, LaMoure, N.D., for respondent and appel-lee.
   MARING, Justice.

[¶ 1] Harold Kolrud appealed from a district court order appointing David Thomas guardian and conservator for Lucille L. Thomas and from an order denying Kolrud’s claim for wages and expenses incurred in assisting her. We conclude the district court did not abuse its discretion in appointing David Thomas guardian and conservator or in denying Kolrud’s claim for wages and expenses. We affirm.

I

[¶ 2] Lucille Thomas was born in 1915 and lived in the LaMoure area until her husband died in 1987. She eventually moved to Jamestown. In 1992, Kolrud was introduced to Lucille Thomas by a friend who told him Lucille Thomas was concerned about her financial affairs and taxes. Lucille Thomas’s husband had handled the couple’s finances and Kolrud was licensed to sell insurance, annuities, and other financial products. Kolrud and Lucille Thomas developed a close friendship and Kolrud began handling her investments. Those assets have increased significantly since then.

[¶ 3] In 1997, Lucille Thomas executed a will leaving her estate to her son and only child, and naming Kolrud as an alternate beneficiary. She also executed a durable power of attorney appointing Kolrud to serve as her attorney in fact and nominating him to serve as guardian and conservator if she became incapacitated. After her son died in 1998, Lucille Thomas executed a codicil to the will naming Kolrud as a beneficiary. Between 1997 and 2000, Kolrud sold Lucille Thomas seven annuities for which he received commissions, and he also named himself the beneficiary on the annuities. According to Kolrud, he and Lucille Thomas agreed that he would care for her in return for receiving the balance of her estate when she died, and Kolrud cared for and assisted her throughout the years. In January 2003, Lucille Thomas began paying Kolrud $1,400 per month to care for her at her Jamestown apartment, and Kolrud quit his employment from which he had been earning $20 per hour. In October 2003, Lucille Thomas fell in her apartment and fractured her hip, necessitating her placement in a Jamestown nursing home. Kolrud and his family and friends cleaned out her apartment, stored and sold some of her belongings, and continued to take care of her needs.

[¶ 4] David Thomas is Lucille Thomas’s nephew who resides in Owatonna, Minnesota, about 400 miles from Jamestown. He is retired, but continues to work, owns several businesses, and is financially secure. He visited Lucille Thomas about once each year, but became concerned about her situation after she entered the nursing home. David Thomas contacted Kolrud and asked about the contents of Lucille Thomas’s will and power of attorney. Lucille Thomas granted her attorney authority to speak with David Thomas about her financial situation. In January 2004, Lucille Thomas met with her attorney and David Thomas at the nursing home. A new will was drafted removing Kolrud as a beneficiary, and a new power of attorney was drafted replacing Kolrud with David Thomas.

[¶ 5] After Kolrud learned of the changes to the will and power of attorney, he petitioned for appointment as Lucille Thomas’s guardian and conservator. The district court appointed Kolrud emergency temporary guardian until a permanent guardian could be appointed, and also appointed a visitor, physician, and guardian ad litem and ordered reports to be filed with the court. In May 2004, Kolrud took Lucille Thomas to an attorney and she signed another will naming Kolrud as a beneficiary. Kolrud also submitted a $6,222.70 bill to Lucille Thomas for wages and expenses incurred for assisting in her transition to the nursing home. In September 2004, Kolrud paid himself $6,222.70 without seeking court approval. The court ordered the money held in an interest-bearing account until a final determination could be made on the validity of the debt. Following a series of hearings, the court found Lucille Thomas was an incapacitated person under N.D.C.C. § 30.1-26-01(2), appointed David Thomas guardian and conservator, and denied Kolrud’s request for payment of the $6,222.70 bill.

II

[¶ 6] Kolrud argues the district court erred in appointing David Thomas guardian and conservator.

[¶ 7] Although we apply the clearly erroneous standard under N.D.R.Civ.P. 52(a) when reviewing findings of fact in a guardianship proceeding, see, e.g., Matter of Guardianship of Larson, 530 N.W.2d 348, 351 (N.D.1995); Matter of Guardianship of Nelson, 519 N.W.2d 15, 17 (N.D.1994); Matter of Guardianship of Renz, 507 N.W.2d 76, 77 (N.D.1993), courts in Uniform Probate Code jurisdictions apply the abuse of discretion standard when reviewing a trial court’s selection of a guardian and conservator. See, e.g., In re Guardianship of Kowalski, 382 N.W.2d 861, 864 (Minn.App.1986); Matter of Guardianship of Nelson, 204 Mont. 90, 663 P.2d 316, 318 (1983); In re Guardianship of Blare, 1999 SD 3, ¶ 9, 589 N.W.2d 211; Peter G. Guthrie, Annotation, Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991, 995 (1975). 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. In re E.G., 2006 ND 126, ¶ 7, 716 N.W.2d 469. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. City of Bismarck v. Mariner Constr., Inc., 2006 ND 108, ¶ 8, 714 N.W.2d 484.

[¶ 8] Kolrud argues the district court erred in appointing David Thomas as guardian and conservator because the court misapplied the statutory priorities under N.D.C.C. §§ 30.1-28-11(3) and 30.1-29-10(3). However, N.D.C.C. § 30.1-29-10(4), relating to conservators, provides that “[t]he court, for good cause, may pass over a person having higher priority and appoint a person having lower priority or no priority.” Section 30.1-28-11(4), N.D.C.C., relating to guardians, similarly provides that “[t]he court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having a lower priority.” The court found “good cause” under N.D.C.C. § 30.1-29-10(4), and that it would be in Lucille Thomas’s “best interest” under N.D.C.C. § 30.1-28-11(4), to pass over Kolrud and appoint David Thomas “even if Kolrud and Thomas were considered equal priority or Kolrud was of a higher priority.” Therefore, the disposi-tive issue is whether the court erred in finding good cause and that it would be in Lucille Thomas’s best interest to select David Thomas rather than Kolrud as the guardian and conservator.

[¶ 9] The court found that Lucille Thomas was “generally aware” of the guardianship and conservatorship proceedings and that “she expresses varying positions depending on who she wants as guardian depending on who she is speaking with,” which is consistent with the physician’s report that she is “a ‘people pleaser’ who has trouble saying no to people and would be vulnerable to ... ‘arm twisting’ when faced with someone who is in her thoughts placing pressure on her.” The court noted “she is forgetful at times and has not been consistent in stating her desires regarding her understanding of her financial affairs or how she wishes her financial and legal affairs to be carried out and by whom she wishes that to be done. What she says and expresses in the areas of financial and legal affairs varies depending on who she is speaking with.”

[¶ 10] Kolrud is sixty-nine years old, lives in Jamestown, is in good health, and Lucille Thomas’s assets have nearly doubled under his supervision. The court found that “Kolrud and his family care about Lucille and have spent a considerable amount of their time and energy in helping her.” David Thomas is seventy years old, is in good health, and is Lucille Thomas’s nephew. The court noted that “Lucille expresses love for him and wished he lived closer to her.” The court was also concerned about the annuities Kolrud sold to Lucille Thomas on commission and his being named the beneficiary on all of them, many of which were purchased before her son died. The court noted that David Thomas had no ownership or beneficiary interest, and would not accept any, in Lucille Thomas’s assets, and had said he would waive his right to compensation if appointed. Kolrud was willing to waive his right to compensation as guardian and conservator, but was not willing to waive his right to take under the estate. In appointing David Thomas, the court reasoned:

[U]nder the circumstances of this case Thomas’ lack of any actual or potential conflict of interest between his duties as guardian and conservator and any financial interest in Lucille’s estate assets is virtually zero. On the other hand, Kol-rud’s circumstances in becoming a friend of Lucille at the time he was in the process of advising her and then selling her annuities and making commissions and being named as beneficiary of such annuities and other assets and having a very significant financial interest in Lucille’s assets as a result of that fiduciary relationship poses a potential built-in conflict of interest in his acting as guardian and conservator for Lucille under all the circumstances presented to the Court and the various conflicting desires expressed by Lucille regarding the size and extent of her estate and how she wishes it to be ultimately handled .... [T]he Court finds that Lucille’s best interests will be best met by appointing Thomas as guardian and conservator rather than Kolrud.

[¶ 11] Concern over the appearance of undue influence can establish “good cause” under N.D.C.C. § 30.1-29-10(4), justifying the appointment of a neutral and detached person as guardian and conservator over others with higher priority who have a financial interest in the protected person’s assets. See Matter of Conservatorship of Gessler, 419 N.W.2d 541, 543-44 (N.D.App.1988); see also Jar-min v. Shriners Hosps. for Crippled Children, 450 N.W.2d 750, 752-53 (N.D.1990) (personal representative’s interest in estate when accompanied by other circumstances can justify removal). Appointing a neutral and detached person can alleviate “ ‘the possibility of undue influence on the respondent,’ ” and can “alleviate the possibility of an appearance of undue influence, to the benefit of all concerned.” Gessler, 419 N.W.2d at 544. On the record before us, we conclude the court’s findings on good cause and Lucille Thomas’s best interest are not clearly erroneous, and the court did not abuse its discretion in selecting David Thomas as guardian and conservator.

Ill

[¶ 12] Kolrud argues the district court erred in denying his request for payment of $6,222.70 for wages and expenses incurred after Lucille Thomas fractured her hip necessitating her move from her apartment to the nursing home.

[¶ 13] A district court has discretionary authority regarding management of a protected person’s property and finances, and its decisions on those matters will not be reversed on appeal unless the court abused its discretion. Matter of Conservatorship of Stensland, 526 N.W.2d 485, 486 (N.D.1995); Matter of Conservatorship of Sickles, 518 N.W.2d 673, 678 (N.D.1994); Matter of Guardianship of Renz, 507 N.W.2d 76, 78 (N.D.1993); Matter of Conservatorship of Kinney, 495 N.W.2d 69, 71 (N.D.1993); see also Matter of Estate of Flaherty, 484 N.W.2d 515, 521 (N.D.1992) (review of fees paid or taken by a personal representative is left to sound discretion of trial court, and the court’s underlying findings will be upheld unless clearly erroneous). We apply the abuse of discretion standard of review to the district court’s ultimate decision whether to approve payment of a claim against a protected person’s estate and the clearly erroneous standard of review to the court’s underlying findings of fact.

[¶ 14] According to Kolrud, in January 2003 he reached an agreement with Lucille Thomas to provide care for her for $1,400 per month. Kolrud also claimed that, after the guardianship proceedings began, she authorized payment of $6,222.70 to him for services rendered when she had to leave her apartment and move to a nursing home. The court denied the payment, reasoning:

[T]he Court has considered the arguments presented by both parties and fully reviewed Mr. Kolrud’s verification for such payment. The payment is in addition to his paying himself $1,400 per month for wages during 2003, which was a payment of $16,800 in itself. He is requesting the balance for wages owed to himself in 2003, to be with Lucille Thomas in Fargo during her surgeries and for expenses in selling and disbursing her apartment all done as per her instructions. Considering the entire record, the court finds that Mr. Kolrud was more than well paid in taking an amount of $1,400 per month. It is also clear to this Court that Ms. Thomas had no idea that Mr. Kolrud was paying himself that amount of money nor is the court convinced that she would deem that appropriate regardless of Mr. Kol-rud’s position on the matter. In addition, the Court does not deem it reasonable to charge $10 per hour to visit someone at a hospital and $20 per hour to do basic sorting, packing, selling and cleaning of a household. In summary, the Court finds that Mr. Kolrud was well paid at the rate of $1,400 per month during the time that the alleged services were rendered and the $6,222.70 additional payment if allowed would be unreasonable compensation.

[¶ 15] We conclude the court’s findings are not clearly erroneous and the court did not abuse its discretion in denying Kol-rud’s claim for wages and expenses.

IV

[¶ 16] The district court orders are affirmed.

[¶ 17] GERALD W. VANDE WALLE, C.J., and WILLIAM F. HODNY, S.J., and DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ„ concur.

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


author: KAPSNER, Justice.

text:
    2006 ND 217
    John HILD, also known as John W. Hild, Betty Jo Ridl and Robert Hild, Plaintiffs and Appellants, v. Robert Post JOHNSON, Gerald J. Elkins, Donna J. Elkins, Beth Ann Martin, Turm Oil, Inc., A.V.M., Inc., Mike Golden, Reginia Jacobson and John G. Jacobson, or their successors in trust, as Trustees for the Jacobson Trust, Black Stone Minerals Company, L.P., Palace Exploration Company, Dance Creek L.L.C. and Coleman Oil, Inc., Defendants and Appellees.
    No. 20060056.
    Supreme Court of North Dakota.
    Oct. 20, 2006.

      Albert J. Hardy, Hardy, Maus & Nord-sven, P.C., Dickinson, N.D., for plaintiffs and appellants.
    Brian R. Bjella (argued), Fleck, Mather & Strutz, Bismarck, N.D., for defendants and appellees Robert Post Johnson, Gerald J. Elkins, Donna J. Elkins, Beth Ann Martin, Turm Oil, Inc., A.V.M., Inc., Mike Golden, Reginia Jacobson, and John G. Jacobson, or their successors in trust, and Trustees for the Jacobson Trust, and Black Stone Minerals Company, L.P.

      Lawrence Bender (appeared), Pearce & Durick, Bismarck, N.D., for defendants and appellees Palace Exploration Company, Dance Creek L.L.C. and Coleman Oil, Inc.
   KAPSNER, Justice.

[¶ 1] John Hild, Betty Jo Ridl, and Robert Hild (“Hilds”) appeal from a district court judgment quieting title in certain mineral interests in Robert Johnson and various other mineral owners (collectively “Johnson”) who claim an interest through J.E. and Thalia Harding. We affirm, concluding (1) a grant of an undivided mineral interest expressed as a fraction conveys that quantum in the entire described tract of land, even if the tract contains more or less acreage than contemplated by the parties, and (2) when there is a discrepancy in a deed between the specific description of the property conveyed and an expression of the quantity conveyed, the specific description is controlling.

I

[¶ 2] This dispute centers upon the mineral acres underlying the Little Missouri River in a section of land (“Section 21”) in Billings County. Prior to 1992, it had not been conclusively determined whether the Little Missouri River was a navigable waterway at the time of statehood in 1889. If it was a navigable waterway, all rights, including mineral rights, to the land underlying the river belonged to the State of North Dakota under the “equal footing” doctrine and the Submerged Lands Act of 1958. See 43 U.S.C. § 1311; State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 539 (N.D.1994); J.P. Furlong Enters., Inc. v. Sun Exploration and Prod. Co., 423 N.W.2d 130, 132 (N.D.1988). If the river was not navigable, however, ownership of the land underlying the river and the accompanying mineral interests belonged to the owners of the adjacent land. See N.D.C.C. § 47-01-15; Kim-Go v. J.P. Furlong Enters., Inc., 460 N.W.2d 694, 696-97 (N.D.1990); Amoco Oil Co. v. State Highway Dep’t, 262 N.W.2d 726, 730 (N.D.1978).

[¶ 3] In January 1960, Joe Hild acquired title to all of Section 21 by marshal’s deed., The deed described the land conveyed as all of Section 21, “containing 582.76 acres, more or less.” The 582.76 acres represented all of the land in Section 21 less the 57.24 acres underlying the river. In March 1960, Joe Hild and his wife conveyed an undivided 382.76/582.76 interest in the oil, gas, and minerals in all of Section 21 to J.E. and Thalia Harding. The mineral deed described the land as:

All of Section Twenty-one (21) in Township One Hundred Thirty-nine (139) North of Range One Hundred Two (102) West, containing 582.76 acres, more or less.

[¶ 4] In 1992, the United States Court of Appeals for the Eighth Circuit upheld a federal district court’s finding that the Little Missouri River was not navigable at the time of statehood, and therefore the State did not own the land or mineral interests underlying the river. See North Dakota v. United States, 972 F.2d 235 (8th Cir.1992).

[¶ 5] In 2000, Joe Hild conveyed his mineral interests in Section 21 to the Hilds. The Hardings’ mineral interests in Section 21 had passed to Johnson. In 2004, the Hilds brought this quiet title action against Johnson, claiming ownership of all mineral interests underlying the river. On cross-motions for summary judgment, the district court determined the 1960 mineral deed from Joe Hild and his wife to the Hardings conveyed an undivided 382.76/582.76 fractional interest in the minerals in all of Section 21, including that portion lying beneath the river. Judgment was entered quieting title in those minerals in Johnson. The Hilds have appealed, arguing that the district court misinterpreted the 1960 mineral deed and that they own all of the mineral interests underlying the river.

II

[¶ 6] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for the prompt resolution of a controversy on the merits if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Peoples State Bank of Truman, Inc. v. Molstad Excavating, Inc., 2006 ND 183, ¶ 17, 721 N.W.2d 43; State ex rel. N.D. Hous. Fin. Agency v. Center Mut. Ins. Co., 2006 ND 175, ¶8, 720 N.W.2d 425. Summary judgment is appropriate if the issues in the case are such that the resolution of any factual disputes will not alter the result. State ex rel. N.D. Hous. Fin. Agency, at ¶ 9; State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶ 4, 712 N.W.2d 828. Whether the district court properly granted summary judgment is a question of law that we review de novo on the entire record. ACUITY v. Burd & Smith Constr., Inc., 2006 ND 187, ¶ 6, 721 N.W.2d 33; Peoples State Bank, at ¶ 17. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Peoples State Bank, at ¶ 17; Farmers Ins. Exch. v. Schirado, 2006 ND 141, ¶ 9, 717 N.W.2d 576.

III

[¶ 7] The Hilds argue the district court erred in concluding the 1960 mineral deed conveyed an undivided 382.76/582.76 mineral interest in the full 640 acres in Section 21 to the Hardings. The Hilds contend the deed conveyed only 382.76 mineral acres, and the construction applied by the district court failed to give effect to the statement in the deed that the described land in question contained “582.76 acres, more or less.”

A

[¶ 8] Our interpretation of the 1960 mineral deed is governed by established rules of construction. A deed conveying an undivided interest in a portion of the minerals in a tract of land will generally take one of three forms:

The three most commonly used methods of stating the quantum of a mineral interest conveyed or reserved are percentage interests, fractional interests and interests denoted by a particular number of acres of minerals.

Arnold v. State, 750 P.2d 1137, 1139 (Okla.App.1987); see 1 Howard R. Williams & Charles J. Meyers, Oil and Gas Law § 320.2 (2005); North Dakota Mineral Title Standards (1989), Standard 3-02. The various forms are outlined in 1 Williams & Meyers, supra, § 320.2, at 663-64 (footnotes omitted):

The owner of 100% of the minerals in a tract of land may convey an undivided interest therein by at least three methods. For illustration, suppose the tract (Blackacre) is thought to contain 40 acres and that the owner (R) and the purchaser (E) agree on the transfer of one-half of R’s interest. The deed effectuating this agreement could take one of three forms, as follows:
. Form 1. R could transfer to E “an undivided one-half interest in all oil, gas or other minerals in, on and under” Blackacre.
Form 2. R could transfer to E “an undivided fifty percent (50%) of all oil, gas and other minerals in, on and under” Blackacre.
Form 3. R could transfer to E “an undivided twenty (20) acres in all oil, gas and other minerals in, on and under” Blackacre.
So far as we are aware, no difference in consequences will attend the use of Form 1 as opposed to Form 2, above. However, Form 3 will have a different effect from Forms 1 and 2 under certain circumstances.

See also North Dakota Mineral Title Standards (1989), Comment to Standard 3-02. The differing consequences stemming from use of a fractional or percentage description, as opposed to a grant of a specified number of mineral acres, arises when the described tract of land contains more or less than the assumed number of acres:

[A] transfer of an undivided interest by fraction or percentage gives that quantum of interest in the land described by the deed, to the extent the grantor has title to such land. The grantee of a fractional or percentage mineral interest gains by an excess of acreage and loses by a shortage of acreage. On the other hand, the grantee of undivided mineral acres neither gains nor loses by variations in acreage. His mineral acres becomes the numerator and the grantor’s total acreage becomes the denominator in calculating the fractional interest grantee owns in the land.

1 Williams & Meyers, supra, § 320.2, at 667 (footnote omitted).

[¶ 9] The practical effect of the rule is explained in 1 Eugene Kuntz, Oil and Gas § 16.3, at 492-93 (1987) (footnotes omitted):

A mineral acre represents the full mineral interest on one acre, as an undivided interest in a larger described tract of land.... Consequently, in a tract containing 160 acres, an 80 acre mineral interest would be the same as an undivided 1/2 mineral interest.
It makes no difference which form of description is used so long as the tract contains the assumed number of acres. If, however, the tract contains more or less than the assumed number of acres, it will make a difference. In the illustration used, if the tract in fact contains only 150 acres, the use of a fraction would result in a smaller interest being conveyed or reserved than would be reserved or conveyed by the use of the mineral acre designation. If the fraction were used to designate the interest, the interest would consist of an undivided 1/2 interest in 150 acres. If, on the other hand, the mineral acre designation were used, the interest would consist of 80 mineral acres out of 150, or an 8/15 undivided interest. Conversely, if the tract contains 170 acres, the use of the fraction would describe an undivided 1/2 interest in 170 acres, whereas the use of mineral acres would produce an interest consisting of 80 mineral acres out of 170, or an 8/17 undivided interest.

[¶ 10] The rule has been expressly adopted in the North Dakota Mineral Title Standards (1989), Standard 3-02:

The grantee of undivided mineral acres acquires the mineral acres provided for in the conveyance, regardless of the acreage of the land conveyed, but such interest is limited to the extent the grantor has title to such lands. A conveyance of an undivided mineral interest by percentage or fraction results in the grantee acquiring the quantum of interest in the lands described by the conveyance, but limited to the extent the grant- or has title to such lands. As a result, the grantee of a fractional or percentage mineral interest gains by an excess of acreage and loses by a shortage of acre-: age, while the grantee of undivided mineral acres neither gains nor loses by an excess or shortage of acreage.

[¶ 11] In this case, the 1960 mineral deed expressly conveyed an undivided interest, expressed as a fraction, in the minerals in all of Section 21. Under the accepted rules of construction for mineral deeds, the grantees therefore acquired the stated fractional interest in all of the described tract, and gained when there was an excess in acreage above the amount contemplated by the parties. Accordingly, the district court did not err when it concluded the 1960 deed conveyed to the Har-dings an undivided 382.76/582.76 mineral interest in all 640 acres of Section 21.

B

[¶ 12] The Hilds contend the district court’s interpretation of the 1960 mineral deed failed to give effect to the description of the tract as containing “582.76 acres, more or less.” Again, interpretation of the deed is governed by well-established rules of construction.

[¶ 13] When there is a discrepancy in a deed between the specific description of the property conveyed and an expression of the quantity conveyed, the specific description is controlling. The rule is summarized in Jordan v. Tinnin, 342 So.2d 748, 751 (Ala.1977) (quoting Bankhead v. Jackson, 257 Ala. 131, 57 So.2d 609, 610 (1952)):

“[W]here a conveyance of land contains a definite description by subdivisions, or metes and bounds, or both, the addition of a statement of the number of acres, more or less, is merely cumulative matter of description and in construing the deed as written, the particular description controls.”

[¶ 14] When a deed purports to convey a specific tract of land with a designation that it contains a given number of acres “more or less,” the deed will be construed to convey the entire tract:

“Accordingly, where the deed purports to convey the whole of a designated tract, with the description of it as containing a given number of acres ‘more or less,’ the primary significance of the deed is that the grantor intended to convey all the land in the tract described, whatever may be its acreage, and the grant is not defeated by a discrepancy between the recited and the actual area.”

Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478, 481 (1951) (quoting 16 Am.Jur. Deeds § 282). The same principle is expressed in 12 Am.Jur.2d Boundaries § 73 (1997) (footnotes omitted):

[W]hen a specified tract of land is sold, the entire tract ordinarily passes, although it exceeds the quantity mentioned in the deed. This is especially true where the land is represented to contain a certain number of acres “more or less.”

See also 23 Am.Jur.2d Deeds § 251 (2002).

[¶ 15] When “a deed contains an adequate, particular description of the property conveyed, it will not be controlled by a recital therein of the quantity,” 26A C.J.S. Deeds § 220, at 245 (2001), because quantity is the least reliable of all elements of description in a deed:

Quantity, however, is the least certain of all the elements of description which are usually found in a deed, and the recital as to the number of acres has perhaps the least influence of any of the matters which may be considered in determining what land is conveyed. All other elements of description must lose their superior value through ambiguities and uncertainties before resort can be had to the recital as to quantity.

Id. at 246 (footnotes omitted); see, e.g., Ewell v. Weagley, 13 F.2d 712, 714 (4th Cir.1926); Koennicke v. Maiorano, 43 Conn.App. 1, 682 A.2d 1046, 1053 (1996); Lopez v. Smith, 145 So.2d 509, 518 (Fla.Dist.Ct.App.1962); Anderson-Prichard Oil Corp. v. Key Okla. Oil Co., 149 Okla. 262, 299 P. 850, 853 (1931); Hardin v. Chapman, 36 Tenn.App. 343, 255 S.W.2d 707, 711 (1952); see also 12 Am.Jur.2d Boundaries § 73 (“[qjuantity is the least reliable of all descriptive particulars in a conveyance and the last to be resorted to”). In addition, this Court has noted that a stated quantity expressed in a deed may be considered in determining the property conveyed “if no other description be given.” Mitchell v. Nicholson, 71 N.D. 521, 526, 3 N.W.2d 83, 85 (1942).

[¶ 16] The 1960 mineral deed granted a specified fractional interest in “All of Section Twenty-one” in a designated township and range. A statement in a deed of the quantity of land conveyed may be considered only if all other elements of description in the deed are ambiguous or uncertain. E.g., 26A C.J.S. Deeds § 220 (2001); Ewell, 13 F.2d at 714; Lopez, 145 So.2d at 518; Andersorir-Prichard Oil, 299 P. at 853; Hardin, 255 S.W.2d at 711. In this case, the description of the land is clear, giving a full legal description of a particular section in a designated township and range. There is no ambiguity or uncertainty in the legal description of the tract, and it is readily identifiable. Under these circumstances, the particular description of the land controls over the recitation that the land contains a certain number of acres “more or less.”

IV

[¶ 17] Applying established rules of construction of deeds, the 1960 mineral deed clearly and unambiguously conveyed a specific percentage of the minerals in a particularly described tract of land. Accordingly, the district court did not err in determining that the 1960 mineral deed conveyed to the Hardings an undivided 382.76/582.76 interest in the minerals in all 640 acres of Section 21, including that portion underlying the river.

[¶ 18] The judgment is affirmed.

[¶ 19] GERALD W. VANDE WALLE, C.J., and BENNY A. GRAFF, S.J., and MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ„ concur.

[¶ 20] The Honorable BENNY A. GRAFF, S.J., sitting in place of SANDSTROM, J., disqualified.


text:
    2006 ND 218
    In the Interest of B.L.S. Rick Eckroth, Petitioner and Appellee v. B.L.S., Respondent and Appellant.
    No. 20060234.
    Supreme Court of North Dakota.
    Oct. 20, 2006.

      Brian D. Grosinger (argued), Assistant State’s Attorney, Mandan, ND, for petitioner and appellee.
    Greg I. Runge (argued), Bismarck, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] B.L.S. appeals a district court order, involuntarily committing him to the North Dakota State Hospital (“State Hospital”) and allowing him to be treated involuntarily with prescription medication. We affirm in part and reverse in part.

I

[¶ 2] B.L.S., a 44-year-old man diagnosed with paranoid schizophrenia, was incarcerated in the Morton County Correctional Center. Staff at the correctional center noticed B.L.S.’s behavior progressively worsen during his incarceration. After three months, a correctional officer petitioned the district court to involuntarily commit B.L.S. to the State Hospital. The petition alleged that B.L.S. had washed his undergarments in a toilet in which he had just defecated; taken three-hour showers; stood in the toilet, flooding his cell; refused his medications; wrote pages of incoherencies; chronically masturbated; had extreme hygiene problems; had a violent disposition; and was delusional. The officer believed that hospitalization was necessary to prevent B.L.S. from injuring himself.

[¶ 3] The court held a preliminary hearing and a treatment hearing to decide whether B.L.S. was mentally ill and whether he required treatment. B.L.S.’s psychiatrist, Dr. William Pryatel, sought a court order to involuntarily treat B.L.S. with medication. Dr. Pryatel filed a Request to Treat with Medication (“Request”) on July 7, 2006, asking the court to authorize the forcible use of four medications: Risperdal, Haloperidol, Geodon, and Olanzapine. As required by N.D.C.C. § 25-03.1-18.1(l)(a), another physician, Dr. Diana Robles, certified that the prescriptions were “clinically appropriate and necessary to effectively treat [B.L.S.]” and that there was a reasonable expectation of a “serious risk of harm” if he was not treated as requested. Dr. Pryatel also submitted a Notice of Medication (“Notice I”), dated July 11, 2006, indicating that several additional medications had been given to B.L.S. prior to the hearing. Notice I provided that “[Sodium] Polystyrene, Amlodipine, Furosemide, Enalapril, Ami-triptyline, Nambumetone, and Allopurinol” had been given to B.L.S.

[¶ 4] At both proceedings, the court appointed counsel for B.L.S., but he sought to represent himself. The court allowed him to do so, but did not excuse the appointed counsel. The court did not determine in either proceeding, on the record, that B.L.S. knowingly, intelligently, and voluntarily waived the right to counsel. At the treatment hearing’s conclusion, the court found, by clear and convincing evidence, that B.L.S. was mentally ill, required treatment, and that forced medication was necessary. The court order specifically authorized the use of “Risper-dal, Haloperidol, Geodon, [and] Olanza-pine.”

[¶ 5] B.L.S. appealed and, on August 28, 2006, we reversed, reaching only the waiver of counsel issue. Interest of B.L.S., 2006 ND 188, ¶ 13, 721 N.W.2d 50. We remanded the case for new proceedings on the petition. Id.

[¶ 6] On September 5, 2006, the district court held a second treatment hearing. B.L.S. again sought to represent himself. The court, however, did not approve his request. On the record, it engaged in a colloquy concerning B.L.S.’s competence to waive counsel, ruling he did not appreciate the risks of self-representation and that the appointed counsel, Greg Runge, would represent him.

[¶ 7] At the second treatment hearing, Dr. Pryatel presented another Notice of Medication (“Notice II”), dated September 5, 2006, indicating that B.L.S. had been given six medications, including: “Halo-peridol Deconate, Haloperidol, Furosem-ide, Enalapril (Vasotec), Allopurinol, [and] Amlodipine (Norvasc).” . Testimony at the second hearing disputed whether all of the listed medications had actually been given. Dr. Pryatel did not file a new Request or amend his previous Request. He testified that Haloperidol and Haloperidol Deconate were psychotropic medications used to treat B.L.S.’s schizophrenia, but the rest of the medications listed in Notice II were used to treat B.L.S.’s blood pressure, high potassium levels, and gout. B.L.S.’s counsel extensively cross-examined Dr. Pryatel on the side effects of the four psychotropic medications noticed in the Request, “Ris-perdal, Haloperidol, Geodon, [and] Olanza-pine.”

[¶ 8] At the hearing’s conclusion, the court found, by clear and convincing evidence, that B.L.S. was mentally ill, required treatment, and that forced medication was necessary. Accordingly, the district court committed B.L.S. to the State Hospital for the remainder of the 90 days imposed by the original treatment order. The court also authorized the use of “Risperdal, Haloperidol, Geodon, Olan-zapine, Haloperidol Deconate, ... Furo-semide, Enalapril, Allopurinol, [Amlodi-pine], [and] Sodium [Polystyrene].”

II

[¶ 9] On appeal, B.L.S. argues that the petitioner failed to establish, by clear and convincing evidence, that B.L.S. was mentally ill, required treatment, and that forced medication was necessary. He also argues his due process rights were violated because the district court authorized the use of more medications than were originally noticed in Dr. Pryatel’s Request. The petitioner argues there was sufficient evidence to determine that B.L.S. was a mentally ill person requiring treatment, and the district court properly authorized forced medication.

Ill

[¶ 10] Our review of an appeal under N.D.C.C. ch. 25-03.1 is “limited to a review of the procedures, findings, and conclusions of the trial court.” Interest of D.A., 2005 ND 116, ¶ 11, 698 N.W.2d 474. We review the findings of the district court under the more probing clearly erroneous standard of review. Id. A finding of fact is clearly erroneous if “it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction ‘it is not supported by clear and convincing evidence.’ ” Id. (quoting Interest of J.D., 2002 ND 50, ¶ 13, 640 N.W.2d 733 and Interest of R.N., 513 N.W.2d 370, 371 (N.D.1994)).

[¶ 11] B.L.S. argues there was no clear and convincing evidence to support the finding that he is “mentally ill” and a “person in need of treatment.” The statute defines “mentally ill person,” in pertinent part, to include “individual^ with an organic, mental, or emotional disorder which substantially impairs the capacity to use self-control, judgment, and discretion in the conduct of personal affairs and social relations.” N.D.C.C. § 25-03.1-02(11) (2005). Section 25-03.1-02(12)(b)-(c), N.D.C.C., provides that a “person requiring treatment” is one who:

is mentally ill ... and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. “Serious risk of harm” means a substantial likelihood of:
b. Killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
c. Substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care.

A Morton County correctional officer testified that B.L.S. had engaged in bizarre activities such as washing his undergarments and hands in an unflushed toilet. He also testified that B.L.S. had extreme hygiene issues, indicating that he had “poor self-control or judgment in providing [for his] ... personal care.” This behavior supports the district court’s finding of mental illness.

[¶ 12] Dr. Pryatel testified that he evaluated B.L.S. and diagnosed him with schizophrenia. B.L.S. has been hospitalized at the State Hospital approximately ten times in the last fifteen years. All of B.L.S.’s prior diagnoses have been consistent with Dr. Pryatel’s most recent evaluation. Dr. Pryatel also testified B.L.S. has been engaging in sexually aggressive and predatory behavior while at the State Hospital. B.L.S. had cornered female staff and had exposed himself. Dr. Pryatel stated this behavior reinforces the necessity for treatment because B.L.S. is delusional in that he believes the female staff members “want him sexually.” This behavior also supports the court’s finding that B.L.S. manifested threatening behavior while at the State Hospital. Finally, Dr. Pryatel testified B.L.S. needs medical treatment in order to adequately care for hjs physical health. Although Dr. Pryatel testified that some of his medical conditions had improved under treatment, he indicated they remained life-threatening if left untreated. Interest of M.M., 2005 ND 219, ¶ 11, 707 N.W.2d 78 (holding that due to mental illness, the respondent was not able to make rational medical decisions, posing a “serious risk of harm” if left untreated). B.L.S.’s conduct and serious medical conditions support the determination that B.L.S. is mentally ill and a person in need of treatment. Cf. Interest of P.B., 2005 ND 201, ¶ 9, 706 N.W.2d 78 (citing Interest of KG., 2005 ND 156, ¶7, 703 N.W.2d 660) (noting that past conduct can be an indication of future risks in mental health appeals).

[¶ 13] Based on the record, there was sufficient evidence to support the court’s findings. Therefore, the district court’s findings that B.L.S. is mentally ill and requiring treatment were not clearly erroneous and we will not disturb them on appeal. M.M., 2005 ND 219, ¶11, 707 N.W.2d 78; see also N.D.R.Civ.P. 52(a).

IV

[¶ 14] B.L.S. argues that there was not clear and convincing evidence to show that forced medication was necessary and appropriate.

[¶ 15] In D.A, we discussed the statutory requirements for the involuntary use of prescription medication. 2005 ND 116, ¶ 10, 698 N.W.2d 474. There, we stated:

Under N.D.C.C. § 25-03.1~18.1(l)(a), before a trial court authorizes involuntary treatment with prescribed medication, the treating psychiatrist and another licensed physician must certify, and the court must find by clear and convincing evidence:
(1)That the proposed prescribed medication is clinically appropriate and necessary to effectively treat the patient and there is a reasonable expectation that if the person is not treated as proposed there exists a serious risk of harm to that person, other persons, or property;
(2) That the patient was offered that treatment and refused it or that the patient lacks the capacity to make or communicate a responsible decision about that treatment;
(3) That prescribed medication is the least restrictive form of intervention necessary to meet the treatment needs of the patient; and
(4) That the benefits of the treatment outweigh the known risks to the patient.

In making its determination, the court must consider all relevant evidence presented at the treatment hearing, including:

(1) The danger the patient presents to self or others;
(2) The patient’s current condition;
(3) The patient’s treatment history;
(4) The results of previous medication trials;
(5) The efficacy of current or past treatment modalities concerning the patient;
(6) The patient’s prognosis; and
(7) The effect of the patient’s mental condition on the patient’s capacity to consent.

N.D.C.C. § 25-03.1-18.1(2)(a); D.A, 2005 ND 116, ¶ 10, 698 N.W.2d 474.

[¶ 16] The law also requires the court to inquire whether the respondent has had a sufficient opportunity to prepare for the forced medication hearing. N.D.C.C. § 25-03.1-18.1(l)(b). The Request to Treat With Medication provides the notice of the proposed course of treatment with medication under N.D.C.C. § 25-03.1-18.1. If the respondent has not had a sufficient opportunity to prepare to address the medication issue, the statute authorizes the court to grant a continuance for up to seven days so that an independent expert examiner can evaluate the respondent. Id.

[¶ 17] The district court found, by clear and convincing evidence, that involuntary treatment with medication was required. In ordering the medication, the court made specific findings mirroring the statutory factors contained in N.D.C.C. § 25-03.1-18.1.

[¶ 18] As required by section 25-03.1-18.1, another physician,' Dr. Diana Robles, certified that the use of Risperdal, Halo-peridol, Geodon, and Olanzapine was clinically appropriate and necessary. She further certified that there is a reasonable expectation that, if not treated with these medications, his condition creates a serious risk of harm to his person and that he was offered the appropriate medication, but he refused it.

[¶ 19] Based on this record, there was ample evidence to support the district court’s order concerning the use of Risper-dal, Haloperidol, Geodon, and Olanzapine. Therefore, the court’s finding that forced treatment with medications named in the Request was not clearly erroneous. M.M., 2005 ND 219, ¶ 16, 707 N.W.2d 78; see also N.D.R.Civ.P. 52(a).

V

[¶ 20] B.L.S. argues that his due process rights were violated because he did not receive prior notice of all of the medications authorized by the district court and because the involuntary treatment with medication statute is limited to “mental illness” medication. Since the additional medications ordered by the district court were not certified by an independent phy-sidan as required by N.D.C.C. § 25-03.1-18.1(l)(a), we hold that B.L.S.’s statutory rights were violated with respect to the medications not listed in the Request.

A

[¶ 21] B.L.S. argues that he did not receive proper notice of all the medications authorized in the court order. Dr. Prya-tel’s Request to treat B.L.S. with medication specifically requests authorization to use Risperdal, Haloperidol, Geodon, and Olanzapine. At the second treatment hearing, however, the district court ordered additional medications used to treat B.L.S.’s physical health needs, including: “Furosemide, Enalapril, Allopurinol, [Am-lodipine], [and] Sodium [Polystyrene].” Dr. Pryatel indicated that treatment for B.L.S.’s high blood pressure and kidney function was necessary, or B.L.S. “could die.”

[¶ 22] Section 25-03.1-18.1, N.D.C.C., requires that respondents be afforded adequate notice and the opportunity to prepare to address the involuntary treatment with medication. Interest of B.D., 510 N.W.2d 629, 634 (N.D.1994). Generally, the request for authorization for treatment must specify the prescribed medication, at least by generic description, which it seeks to involuntarily administer. Id. The statute also requires a second physician, not involved in current treatment or diagnosis, to review the clinical appropriateness and necessity of the proposed medication. N.D.C.C. § 25-03.1-maxa).

[¶ 23] In this case, B.L.S. was not afforded adequate statutory notice of the additional medications, the court failed to inquire whether B.L.S. had been given the opportunity to prepare to address the additional medications it ordered, and the record does not disclose that a second physician had certified the clinical appropriateness and necessity of the additional medications. Accordingly, we reverse the district court with respect to the order permitting treatment with medications that were not certified by Dr. Robles and not included in Dr. Pryatel’s original Request to treat B.L.S. with medication.

B

[¶24] B.L.S. argues that some of the medications ordered by the district court are unauthorized under N.D.C.C. § 25-03.1-01 because they are used to treat his physical ailments. B.L.S. argues that prescription medication ordered under N.D.C.C. § 25-03.1-18.1 must be limited to psychotropic medications used to treat mental illness. His argument is without merit.

[¶ 25] Section 25-03.1-18.1, N.D.C.C., allows the use of prescription medication to prevent a “serious risk of harm to that person, others, or property” and requires that the medication be “clinically appropriate and necessary to effectively treat the patient....” N.D.C.C. § 25-03.1-02 defines “serious risk of harm” to include the “substantial deterioration [of the respondent’s] physical health.” Id. No language in either statute limits the types of medication a physician or psychiatrist can request, nor does B.L.S. provide any legal support beyond his bare assertion. To the contrary, some provisions in chapter 25-03.1 specifically authorize the use of medication to treat physical infirmities. E.g., N.D.C.C. § 25-03.1-16 (emergency provision authorizing medication “to prevent imminent deterioration of the respondent’s physical or mental condition”). Therefore, had the additional medications ordered by the district court been included in the Request and certified by a second physician as clinically appropriate and necessary, the court would not have erred in authorizing their use.

VI

[¶26] The district court’s finding that B.L.S. was mentally ill and required treatment was not clearly erroneous. The district court did not err in authorizing the use of the four medications specifically noted on Dr. Pryatel’s Request to treat B.L.S. with medication. The court did err, however, when it authorized the use of the additional medication not listed in the Request and not certified as clinically necessary by a second physician. We affirm the district court’s order with respect to finding B.L.S. mentally ill, in need of treatment, and authorizing the forcible use of four prescription medications, Risperdal, Haloperidol, Geodon, and Olanzapine, but we reverse the district court’s order to the extent that it exceeds the Request to Treat with Medication.

[¶ 27] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., WILLIAM F. HODNY, S.J., concur.

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

      . Nothing in this opinion prevents the short-term use of prescribed medication under N.D.C.C. § 25-03.1-24, which provides:
      State hospital or treatment facility personnel may treat a patient with prescribed medication or a less restrictive alternative if, in the opinion of a psychiatrist or physician, these treatments are necessary to prevent bodily harm to the patient or others or to prevent imminent deterioration of the respondent’s physical or mental condition and there is not time to obtain a court order. This chapter does not prohibit a hospital from rendering emergency medical care without the need for consultation, if in the exercise of sound medical judgment that care is immediately necessary and delay would endanger the life of or adversely and substantially affect the health of the patient.
      We do, however, emphasize the temporary nature of N.D.C.C. § 25-03.1-24. Treatment with prescribed medication under this section should not continue beyond a reasonable time in which a court order could be obtained. See also N.D.C.C. § 25-03.1-16 (allowing emergency treatment with medication to prevent bodily harm to the respondent or others or to prevent imminent deterioration of the respondent's physical or mental condition).


author: MARING, Justice. KAPSNER, Justice,

text:
    2006 ND 221
    Mark A. ROJAS, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE, Appellee, and Holland Enterprises, Inc., Respondent.
    No. 20060087.
    Supreme Court of North Dakota.
    Oct. 23, 2006.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, N.D., for appellee.
   MARING, Justice.

[¶ 1] Mark Rojas appeals from a district court judgment affirming a decision by Workforce Safety & Insurance (“WSI”) to pay only a portion of Rojas’s claimed attorney’s fees, and denying his motion for further attorney’s fees. We reverse and remand.

I

[¶ 2] In January 2000, while Rojas was working as an over-the-road truck driver, he injured his knee when he slipped on ice at a truck stop. Rojas filed a claim for workers compensation benefits, and WSI accepted the claim and paid medical and disability benefits. WSI claimed it mailed Rojas a Notice of Intention to Discontinue/Reduce Benefits (“NOID”) in May 2000. Rojas claimed he never received the NOID. Rojas’s benefits were terminated on May 31, 2000.

[¶ 3] After his benefits were terminated, Rojas contacted WSI and was told the decision to terminate his disability benefits was final and his only option was to reapply for benefits. In June 2001, Rojas reapplied for disability benefits, and in July 2001, WSI denied his reapplication. Rojas requested reconsideration and a formal hearing.

[¶ 4] A hearing before an administrative law judge (“ALJ”) was held in August 2003. The ALJ found Rojas had never received the NOID, and also concluded Rojas was entitled to ongoing disability benefits from May 2001, because he had met the burden for reapplication of disability benefits.

[¶ 5] WSI adopted the ALJ’s finding that Rojas did not receive the NOID, but rejected the ALJ’s findings that Rojas met the burden for reapplication of disability benefits. WSI concluded Rojas failed to show he was entitled to any further disability benefits under the reapplication statute.

[¶ 6] Rojas appealed WSI’s final order to the district court. The district court reversed the order and directed WSI to reinstate the ALJ’s recommended decision. WSI appealed. In Rojas v. Workforce Safety and Ins., 2005 ND 147, ¶ 16, 703 N.W.2d 299, we held WSI’s termination of Rojas’s ongoing disability benefits, when Rojas had not received notice or had the opportunity to respond, violated due process. We also concluded that the reapplication statute is only applicable when a claimant’s prior benefits have been validly terminated, and because Rojas’s benefits were not validly terminated, the reapplication statute was not applicable and the ALJ should not have limited reinstatement of benefits to the period beginning May 2001. Id. at ¶ 18. We modified the district court’s judgment to direct WSI to enter an order reinstating Rojas’s disability benefits from May 31, 2000, and prospectively, and affirmed the judgment as modified. Id. at ¶ 22.

[¶ 7] After the appeal, Rojas submitted a request to WSI for payment of $19,679.83 in attorney’s fees and costs. WSI paid Rojas $9,876.83 for costs and attorney’s fees, which WSI determined was the maximum amount it could pay under the fee cap provided in N.D.C.C. §§ 65-02-08 and 65-10-03, the statutes providing the procedure for payment of attorney’s fees in WSI cases.

[¶ 8] Rojas petitioned the district court for payment of attorney’s fees under N.D.C.C. § 28-32-50, which governs payment of attorney’s fees in civil judicial proceedings against administrative agencies. The district court affirmed WSI’s decision and denied Rojas’s motion, concluding N.D.C.C. §§ 65-02-08 and 65-10-03 conflict with and supersede N.D.C.C. § 28-32-50 for actions involving WSI.

II

[¶ 9] Section 65-02-08, N.D.C.C., authorizes an award of attorney’s fees to a prevailing injured employee in WSI proceedings:

The organization shall establish, by administrative rule, costs payable, maximum costs, a reasonable maximum hourly rate, and a maximum fee to compensate an injured employee’s attorney for legal services following issuance of an administrative order reducing or denying benefits.... Except for an initial determination of compensability, an attorney’s fee may not exceed twenty percent of the amount awarded, subject to a maximum fee set by administrative rule. The organization shall pay an attorney’s fees and costs when:
1. The employee has prevailed in binding dispute resolution under section 65-02-20.
2. The employee has prevailed after an administrative hearing under chapter 28-32.
An injured employee has prevailed only when an additional benefit, previously denied, is paid. An injured employee does not prevail on a remand for further action or proceedings unless that employee ultimately receives an additional benefit as a result of the remand. This section does not prevent an injured employee or an employer from hiring or paying an attorney; however, the employee’s attorney may not seek or obtain costs or attorney’s fees from both the organization and the employee relative to the same claim.

[¶ 10] Section 65-10-03, N.D.C.C., authorizes an award of attorney’s fees to an injured employee who prevails on a judicial appeal:

The organization shall pay the cost of the judicial appeal and the attorney’s fee for an injured employee’s attorney when the employee prevails. The employee has prevailed when any part of the decision of the organization is reversed and the employee receives an additional benefit as a result. An injured employee does not prevail on a remand for further action or proceedings unless the injured employee ultimately receives an additional benefit.... The amount of the attorney’s fee must be determined in the same manner as prescribed by the organization for attorney’s fees, and the amount of attorney’s fee already allowed in administrative proceedings before the organization must be taken into consideration. The organization shall establish, pursuant to section 65-02-08, a maximum fee to be paid in an appeal. The maximum fee may be exceeded upon application of the injured employee to the organization, upon a finding that the claim had clear and substantial merit, and that the legal or factual issues involved in the appeal were unusually complex, but a court may not order that the maximum fee be exceeded.

[¶ 11] Section 28-32-50, N.D.C.C., authorizes an award of attorney’s fees in any civil judicial proceeding against an administrative agency:

In any civil judicial proceeding involving as adverse parties an administrative agency and a party not an administrative agency or an agent of an administrative agency, the court must award the party not an administrative agency reasonable attorney’s fees and costs if the court finds in favor of that party and, in the case of a final agency order, determines that the administrative agency acted without substantial justification.

[¶ 12] The district court concluded the provisions for attorney’s fees in N.D.C.C. §§ 65-02-08 and 65-10-03 conflicted with N.D.C.C. § 28-32-50 and could not be harmonized, because § 28-32-50 leaves the amount of attorney’s fees to the discretion of the court and §§ 65-02-08 and 65-10-03 provide for the creation of a specific schedule of fees to be followed and limit the amount the claimant may be awarded. The court concluded §§ 65-02-08 and 65-10-03 are special provisions that control in cases involving WSI, and could not be harmonized with the general provision of § 28-32-50, which applies to any civil judicial proceeding against an administrative agency.

[¶ 13] The application and interpretation of statutes are questions of law fully reviewable by this Court. Rydberg v. Rydberg, 2004 ND 73, ¶ 10, 678 N.W.2d 534. The primary objective in interpreting a statute is to determine the Legislature’s intent. BASF Corp. v. Symington, 512 N.W.2d 692, 695 (N.D.1994). To determine the Legislature’s intent we compare every section of the statute as a part of the whole, and give meaning, if possible, to every word, phrase, and sentence. Id. “[W]e interpret statutes in context and in relation to others on the same subject to give meaning to each without rendering one or the other useless.” Id. at 696. Whenever possible, we harmonize statutes to avoid conflict between them. Id. Only when conflicting statutes cannot be harmonized and are irreconcilable will the special provision prevail and be construed as an exception to the general provision. N.D.C.C. § 1-02-07; In re KG., 551 N.W.2d 554, 556 (N.D.1996). We follow the “cardinal rule” of statutory construction that, “our ‘interpretation must be consistent with legislative intent and done in a manner which will accomplish the policy goals and objectives of the statutes.’ ” In re K.G., at 556 (quoting O’Fallon v. Pollard, 427 N.W.2d 809, 811 (N.D.1988)). We presume the Legislature did not intend an unreasonable result or unjust consequence. N.D.C.C. § 1-02-38(3).

[¶ 14] Sections 65-02-08 and 65-10-03, N.D.C.C., are very specific and apply only to actions against WSI when an injured employee’s benefits have been reduced or denied. Section 28-32-50, N.D.C.C., generally applies to any civil judicial proceeding against an administrative agency. Although each of these statutes governs awards of attorney’s fees, they apply in different situations. Sections 65-02-08 and 65-10-03, N.D.C.C., essentially guarantee an automatic award of attorney’s fees when an injured employee prevails against WSI. Section 28-32-50, N.D.C.C., however, represents a middle ground between an automatic award of attorney’s fees to a party who prevails in a judicial action against an administrative agency and an award of attorney’s fees for claims that are essentially frivolous or meritless. Aggie Invs. GP v. Public Serv. Comm’n, 470 N.W.2d 805, 814 (N.D.1991). Sections 65-02-08 and 65-10-03, N.D.C.C., guarantee an automatic award of attorney’s fees to the prevailing party, but N.D.C.C. § 28-32-50 requires the party to not only prevail but also requires proof that the agency acted without substantial justification. Furthermore, the language of N.D.C.C. § 28-32-50 is expansive and inclusive, and does not exclude actions against WSI. We conclude these statutes are not irreconcilable and apply in different situations, and therefore can be harmonized.

[¶ 15] Moreover, our interpretation is consistent with the Legislature’s intent and accomplishes the statutes’ goals and objectives. The purpose of N.D.C.C. § 28-32-50 is to ensure that private parties are not deterred from challenging unreasonable government action because of the expense involved, and to deter an administrative agency from taking a position that lacks substantial justification. See generally Hearing on S.B. 24,03 Before the Senate Judiciary Comm., 49th N.D. Legis. Sess. (Feb. 6, 1985). The purpose of Workforce Safety and Insurance law is “to provide sure and certain relief for workers injured in their employment,” and the purpose of N.D.C.C. § 65-02-08 is to benefit injured employees by adding an attorney’s fees payment to the employee’s benefit recovery to ensure the employee will not be deterred from disputing WSI’s decision, when warranted, due to the high cost of litigation. Ash v. Traynor, 2000 ND 75, ¶¶ 8-10, 609 N.W.2d 96. Sections 65-02-08 and 65-10-03, N.D.C.C., have fee caps, which the Legislature intended to use to control costs within the WSI system and reduce unwarranted litigation. Little v. Traynor, 1997 ND 128, ¶22, 565 N.W.2d 766. In cases such as this, however, where an injured employee alleges WSI acted without substantial justification in reducing or denying benefits, we cannot conclude the intent of the Legislature is met by limiting the award of attorney’s fees. The statutory fee caps will not reduce unwarranted litigation, since the litigation is in response to WSI’s unjustified conduct, and the fee cap would harm the employee by encouraging WSI to act in an unreasonable manner in the hopes that the employee will not pursue litigation due to the high cost.

[¶ 16] Sections 65-02-08 and 65-10-03, N.D.C.C. and § 28-32-50, N.D.C.C., are not irreconcilable, and the goals and intent of the Legislature can be harmonized. We conclude a prevailing injured employee is entitled to attorney’s fees in actions against WSI under N.D.C.C. §§ 65-02-08 and 65-10-03 up to the statutory limit, but when WSI denies or reduces the employee’s benefits without substantial justification, N.D.C.C. § 28-32-50 may be applied to award the employee reasonable attorney’s fees.

[¶ 17] Section 28-32-50, N.D.C.C., will not apply in all WSI cases; rather, it is only applicable in rare cases when WSI’s actions lack substantial justification. Substantial justification means, “ ‘justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person.’ ” Aggie, 470 N.W.2d at 814 (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). A position is substantially justified if a reasonable person could think the position is correct, and the position has a reasonable basis in law and fact. Aggie, at 814. The rationale behind this statute was to provide individuals and small businesses on the state level the same relief provided by Congress in the Equal Access to Justice Act (“EAJA”), 28 U.S.C.A. § 2412 (2006). See Hearing on S.B. 2403 Before the House Judiciary Comm., 49th N.D. Legis. Sess. (Mar. 11, 1985) (testimony of Myron Nelson). The language of N.D.C.C. § 25-32-50 was based on the language used in the EAJA for the specific purpose of using federal interpretations of the statute as a guide in interpreting our statute. Aggie, at 814. The U.S. Supreme Court has held that under § 2412(d)(1)(A), of the EAJA, the burden is on the Government to prove that its position in the underlying litigation was substantially justified, because the purpose of the legislation is to ensure individuals will not be deterred from seeking review of unjustified governmental action because of the expense involved and that strong deterrent requires that the burden of proof rest with the Government. Scarborough v. Principi, 541 U.S. 401, 406 and 414-15, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004). Therefore, we conclude the burden is on the agency to prove it acted with substantial justification.

[¶ 18] We reverse the judgment, concluding the district court erred in determining N.D.C.C. § 28-32-50 cannot be applied in WSI cases. We will not decide whether WSI acted without substantial justification and whether Rojas should be awarded reasonable attorney’s fees under N.D.C.C. § 28-32-50, because that discretionary determination must initially be made by the district court. Lamplighter Lounge Inc. v. State, 523 N.W.2d 73, 75 (N.D.1994). On remand the district court must apply N.D.C.C. § 28-32-50 and determine whether WSI acted without substantial justification, warranting an award of additional attorney’s fees.

[¶ 19] GERALD W. VANDE WALLE, C.J., and BENNY A. GRAFF, S.J., and EVERETT NELS OLSON, S.J., concur.

[¶ 20] The Honorable EVERETT NELS OLSON, S.J., and the Honorable BENNY A. GRAFF, S. J. sitting in place of SANDSTROM, J., and CROTHERS, J. disqualified.

KAPSNER, Justice,

dissenting.

[¶ 21] I respectfully dissent.

[¶22] The district judge held on the issue of attorney fees:

The two statutes conflict in that one leaves the amount of attorney’s fees to the discretion of the Court and the other provides for the creation of a specific schedule of fees to be followed and a cap on the amount that may be awarded. The North Dakota Supreme Court has stated that “when two statutes relating to the same subject matter appear to be in conflict, they should whenever possible be construed to give effect to both if such can be done without doing violence to either.” City of Bismarck v. Fettig, 1999 ND 193, ¶ 14, 601 N.W.2d 247. In addition, “[w]hen there is a conflict between statutes, we construe specific statutes to control general statutes.” Id. at ¶ 15 (citing Haff v. Hettich, 1999 ND 94, ¶34, 593 N.W.2d 383). This follows North Dakota law which states:
Whenever a general provision in a statute is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable the special provision must prevail and must be construed as an exception to the general provision, unless the general provision is enacted later and it is the manifest legislative intent that such general provision shall prevail.
N.D.C.C. § 1-02-07 (1987).
... Because Title 65 governs a more specific and narrowly defined area, it would follow that sections 65-02-08 and 65-10-03 would be considered more specific provisions that must control in cases involving the WSI over the more general provisions found under Chapter 28-32.

[¶ 23] I am persuaded that the district court was correct.

[¶ 24] Any possibility that the two statutes can be read harmoniously is removed by the explicit language of N.D.C.C. § 65-10-03:

The maximum fee may be exceeded upon application of the injured employee to the organization, upon a finding that the claim had clear and substantial merit, and that the legal or factual issues involved in the appeal were unusually complex, but a court may not order that the maximum fee be exceeded.

See also N.D.C.C. § 65-02-08 providing that “a hearing officer or arbitrator may not order that the maximum fees be exceeded.”

[IT 25] If the legislature had intended an exception for cases under N.D.C.C. § 28-32-50, it would not have stated “a court may not order that the maximum fee be exceeded.” Instead, the legislature provided that in cases of “clear and substantial merit,” a claimant can apply to WSI for a fee in excess of the maximum fees. This may be such a case. However, application to WSI is the correct manner for achieving such a result.

[¶ 26] I would affirm the judgment of the district court.

[¶ 27] CAROL RONNING KAPSNER