author: STONEBURNER, Judge.

text:
    MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, The Coalition for a Clean Minnesota River, and New Ulm Area Sportfishermen, Respondents, v. The BIG STONE COUNTY BOARD OF COMMISSIONERS and The County of Big Stone, Minnesota, Appellants.
    No. C7-01-1161.
    Court of Appeals of Minnesota.
    Jan. 15, 2002.

      Byron E. Starns, Leonard, Street and Deinard, Minneapolis, for respondents.
    Noah D. Hall, Mark F. Ten Eyck, Minnesota Center for Environmental Advocacy, St. Paul, for respondent Minnesota Center for Environmental Advocacy.
    Jay T. Squires, Ratwik, Roszak & Malo-ney, P.A., Minneapolis, for appellants.
    Mike Hatch, Attorney General, Craig L. Engwall, Assistant Attorney General, St. Paul, for Amicus Curiae State of Minnesota Department of Natural Resources.

      Considered and decided by SHUMAKER, Presiding Judge, STONEBURNER, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

STONEBURNER, Judge.

Respondents Minnesota Center for Environmental Advocacy, the Coalition for a Clean Minnesota River and the New Ulm Area Sportfishermen sought a declaratory judgment that a proposed repair to Big Stone County Ditch No. 2/2A (County Ditch 2) requires (1) permission of the Commissioner of the Department of Natural Resources (DNR) pursuant to Minn. Stat. § 103E.011, subd. 3; (2) a public waters work permit from the DNR pursuant to Minn.Stat. § 103G.245; (3) an Environmental Impact Statement (EIS); and (4) a wetland-replacement plan approved pursuant to Minn.Stat. §§ 103G.222 and 103G.2242.

The district court granted partial summary judgment to respondents, declaring that the project requires a public waters work permit and permission from the Commissioner of the DNR. After trial, the district court concluded that the project does not require an EIS but does require either an approved wetland-replacement plan or an exemption from the requirement by the appropriate government agency. The district court also concluded that the Environmental Assessment Worksheet (EAW) used by appellants was fatally flawed, and ordered a new EAW and review before the project could proceed.

Appellants, the drainage authority for Big Stone County, appeal the district court’s determination that the EAW is fatally flawed and that the project requires a work permit, permission from the commissioner, and a wetland-replacement plan. Respondents seek review of the district court’s determination that the project does not require an EIS. Because we conclude that the project requires either permission from the commissioner or a public waters work permit, requires an approved wetland-replacement plan or exemption from the appropriate agency, and is subject to a mandatory EIS, we affirm in part and reverse in part.

FACTS

County Ditch 2 was built in 1907 through a pre-existing natural watercourse to drain adjacent areas for agricultural use. County Ditch 2 passes through DNR-protected wetland 6-11W. Wetland 6-11W is an approximately 60-acre public water, Type-5 wetland, defined as

[ijnland open fresh water, shallow ponds, and reservoirs in which water is usually less than ten feet deep and * * * fringed by a border of emergent vegetation similar to open areas of type 4 wetland.

Minn. Stat. § 103G.005, subd. 17b (5) (2000). Bottom elevations in wetland 6-11W range from 1005.7 to 1007.5 feet above sea level.

In 1915, landowners petitioned appellants to widen and enlarge the ditch. The width of the ditch as it currently exists is consistent with the 1915 “as-improved” width. The depth of the portion of County Ditch 2 located below wetland 6-11W was 1004.48 feet, mean sea level, “as improved” in 1915, but accumulated sediment has raised bottom elevations. In 1994, landowners petitioned appellants to comprehensively repair County Ditch 2, including removal of sediment from the ditch below wetland 6-11W to reestablish the as-improved 1915 depth. The district court found that this work would constitute a “repair” as defined by Minn.Stat. § 103E.701 (2000).

In response to the 1994 petition, appellants commissioned a report from Sioux Engineering on the impact of the project. The report indicated that removing sediment from the ditch below wetland 6-11W would affect water levels in the wetland, triggering environmental review. Sioux Engineering recommended that appellants install a weir to eliminate any effect on the wetland, and the additional expense of environmental review. The weir solution is acceptable to respondents and the DNR but not to appellants. Appellants proceeded in 1995 and 1996 with major repairs to County Ditch 2, but did not remove sediment downstream of wetland 6-11W.

In July 1998, appellants received a new petition for removal of the sediment downstream of wetland 6-11W. Initially, appellants unanimously approved a resolution finding that “the repair * * * does not have the potential for significant environmental effects” and that an EIS was not required. Appellants rescinded this resolution on advice of counsel and retained Sioux Engineering to prepare an EAW to identify whether there would be significant environmental effects from the project and to allow for public comment and a hearing.

The EAW incorrectly identifies wetland 6-11W as a Type-3 wetland consisting of 20 acres. Type-3 wetlands are defined as “inland shallow fresh marshes in which soil is usually waterlogged early during a growing season and often covered with as much as six inches or more of water.” Minn.Stat. § 103G.005, subd. 17b (3). The EAW summary states:

The main issue considering wetland 6-11W and Big Stone County Ditch No. 2 is the impact of a repair of ditch 2 to original constructed depth and the current water level in 6-11W. Past records indicate that water depths in wetland 6-11W were adequate to maintain type 3 conditions with the ditch in a reasonable state of repair. Current data indicates that with the repair of Ditch No. 2 water depths may not support the same wetlands type.

It is undisputed that the project will transform wetland 6-11W from a Type-5 protected wetland to an unprotected Type-2 wetland, defined as

[ijnland fresh meadows in which soil is usually without standing water during most of the growing season but is waterlogged within at least a few inches of the surface.

Minn.Stat. § 103G.005, subd. 17b(2).

Appellants received comments based on the flawed EAW, and a response to the comments from the county engineer. The Minnesota Board of Water and Soil Resources commented that a replacement plan for the loss of wetlands would be required. The board noted that, pursuant to Minn. R. 8420.0210 (1999), a Technical Evaluation Panel (TEP) and local government unit would be responsible for determining if appellant is exempt from the replacement plan requirement. A TEP was convened and issued a report that stated that a “mitigation or replacement plan would certainly be needed if plans were made to lower the control point of Protected Waters Wetland 6-11W.”

After a public hearing, appellants concluded that the cumulative potential effects of the project “would not be so significant as to warrant an EIS.” Appellants assert that the project is exempt from the requirement of a wetland-replacement plan but have not sought an exemption from the local government unit.

Respondents brought this declaratory judgment action. The district court granted partial summary judgment declaring that appellants are required to obtain permission from the commissioner of the DNR to undertake this project because it substantially affects public waters, and that appellants are required to have a public waters work permit. After trial, the district court concluded that appellants are also required to have an approved wetland-replacement plan or exemption from the requirement by the appropriate government agency but are not required to have an EIS. Finding the EAW used by appellants fatally flawed, however, the district court enjoined work on the project pending preparation and review of an appropriate EAW and resolution of the replacement plan issue by the local government unit. This appeal and notice of review followed.

ISSUES

1.Did the district court err by granting summary judgment declaring that appellants are required to obtain the commissioner’s permission for a ditch repair that will involve draining public waters, pursuant to Minn.Stat. § 103E.011 and a public waters work permit under Minn.Stat. § 103G.245?

2. Did the district court err by concluding that the county’s project is exempt from the requirement of a mandatory EIS for projects that eliminate protected waters?

3. Did the district court err by concluding that appellants must obtain an approved wetland-replacement plan or an exemption from the local governmental unit pursuant to Minn. R. 8420.0210?

ANALYSIS

Standards of review

On appeal from summary judgment, we ask whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). On appeal from a declaratory judgment, appellate courts apply a clearly erroneous standard to the factual findings and review the district court’s determinations of questions of law de novo. Rice Lake Contracting Corp. v. Rust Env’t & Infrastructure, Inc., 549 N.W.2d 96, 98-99 (Minn.App.1996), review denied (Minn. Aug. 20, 1996). Construction of statutes and rules is a matter of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Application of statutes and rules to the undisputed facts of a case involve questions of law. See Boubelik v. Liberty State Bank, 553 N.W.2d 393, 402 (Minn.1996).

1. DNR permission/permit requirement

Appellant argues that the district court erred by declaring that the project requires permission from the commissioner of the DNR pursuant to MinmStat. § 103E.011 (2000) and a public waters work permit pursuant to Minn.Stat. § 103G.245 (2000). Appellants assert that they are not required to have either permission or a permit. We disagree.

MinmStat. § 103E.011 defines the drainage authority’s powers. Subdivisions two and three restrict a drainage authority’s power with respect to work in public waters:

A drainage authority may not drain a water body or begin work or activity regulated by the public water work permit requirement under chapter 103G.245 in a watercourse until the [DNR] determines that the water body or watercourse is not public waters. If a water body or watercourse is determined to be public waters, the drainage proceedings are subject to chapter 103G.215 relating to replacing public waters and the water bank program.

Minn.Stat. § 103E.011, subd. 2.

The drainage authority must receive permission from the commissioner to:
(1) remove, construct, or alter a dam affecting public waters;
(2) establish, raise, or lower the level of public waters; or
(3) drain any portion of public water.

Minn.Stat. § 103E.011, subd. 3(a). A public waters work permit is required to

[c]hange or diminish the course, current, or cross section of public waters, entirely or partially, within the state, by any means, including * * * excavating

MinmStat. § 103G.245, subd. 1(2). But an exception to the public waters work-permit requirement arises when

[w]ork in altered natural watercourses that are part of drainage systems established under chapter * * * 103E if the work in the waters is undertaken according to chapter * * * 103E.

MinmStat. § 103G.245, subd. 2(1).

Appellants’ argument that the statutes, read together, relieve them of both the permission and the permit requirements is without merit. County Ditch 2 is part of an altered natural watercourse. Therefore, we agree that if the permission requirement of MinmStat. § 103E.011, subd. 3, is satisfied, the exemption from the public waters work permit requirement of MinmStat. § 103G.245, subd. 1(2) would apply. Under these circumstances the exemption would apply because the project would be part of a chapter 103E drainage system involving an altered natural watercourse and would have been undertaken according to chapter 103E. But appellants did not obtain the commissioner’s permission for the project as required by § 103E.011, subd. 3, and therefore they are not proceeding according to chapter 103E and are not entitled to an exemption from the work permit required by Minn. Stat. § 103G.245. While we affirm the district court’s determination that appellants are subject to both statutes, we reverse the district court’s holding that both permission and a permit are required and hold that appellants must either have permission under chapter 103E or the work permit under chapter 103G to proceed with work that will drain, change, or diminish public waters in wetland 6-11W.

2. EIS requirement

The district court found that wetland 6-11W will be eliminated as a Type-5 wetland and will become an unprotected Type-2 wetland and recognized that an EIS is mandatory for “projects that will eliminate a protected water.” Minn. R. 4410.4400, subp. 20 (1999). But the district court applied an exemption from the EIS requirement for “routine [ditch] maintenance or repair * * * performed within 20 years of ⅜ ⅞ * major repair.” Minn. R. 4410.4600, subp. 17 (1999). Respondents argue that the district court misconstrued the exemption. We agree.

The district court failed to consider the portion of Minn. R. 4410.4600 that limits the scope of exemptions. See Minn. R. 4410.4600, subp. 1. “An EIS must be prepared for projects that meet or exceed the threshold of any subparts 2 to 24” of Minn. R. 4410.4600. Id. (emphasis added). The district court recognized that this project meets the threshold of Minn. R. 4410.4400, subp. 20, because it eliminates a protected water. The unambiguous language of Minn. R. 4410.4600, subp. 1, makes the exemption relied on by the court inapplicable and makes an EIS mandatory for this project. Because the district court’s factual findings clearly establish that an EIS is required for this project, we reverse the district court’s erroneous conclusion that an EIS is not required. Because an EIS is mandatory, a new EAW is not required, so we also reverse the district court’s order that appellants prepare and disseminate another EAW.

3. Wetland replacement requirement

Public waters wetlands may not be drained unless “replaced by wetlands that will have equal or greater public value.” Minn.Stat. § 103G.221 (2000). A replacement plan is not required for draining wetlands resulting from the repair or maintenance of an existing public drainage system such as County Ditch 2, unless the affected wetlands are types 3, 4, or 5 that have been in existence for more than 25 years. Minn.Stat. § 103G.2241, subd. 2(c) (2000). Wetland 6-11W is. a Type-5 wetland that has existed for more than 50 years and is therefore subject to the replacement-plan requirement.

Appellants argue that they are exempt from the replacement-plan requirement by Minn.Stat. § 103G.2241, subd. 3(1) (2000) which provides an exemption for activities that are also exempted from federal regulation under 33 U.S.C. § 1344(f). Appellants rely on United States v. Sargent County Water Res. Dist, 876 F.Supp. 1090 (D.N.D.1994) (affirming an exemption from federal regulation under 33 U.S.C. § 1344(f) in a drainage case). As the district court correctly noted, the referenced exemption is for discharge of dredged or fill material into navigable waters “for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches.” 33 U.S.C. § 1344(f)(C) (1991). And this court recently held that Sargent County Water Res. Dist. does not create an exemption under § 103G.2241 for parties who drain wetlands. Hentges v. Minn. Bd. of Water & Soil Res., 638 N.W.2d 441 (Minn.App. 2002) (holding that the federal law provides an exemption to the discharge of materials into navigable waters, including wetlands, due to the maintenance of ditches). Here, the regulated activity is the drainage of wetlands and not the discharge of dredged materials into the ditch. The district court correctly determined that § 103G.2241, subd. 3(1), does not mandate an exemption in this case.

The district court further concluded that an exemption from the replacement-plan requirement must be sought from the Big Stone Soil and Water conservation District, the appropriate local-government unit for this project. See Minn. R. 8420.0210 (stating that the local-government unit makes exemption determinations and that the determinations must be based on the exemption standards); see also Minn. R. 8420.0240 (1999) (stating that if a decision requires a finding of wetland size or type, the local government unit should seek the advice of the technical panel). We agree. The district court did not err by concluding that the project requires either an approved replacement plan or exemption determination from the appropriate local government unit.

DECISION

We affirm the district court’s conclusion that the ditch repair proposed by appellants is subject to Minn.Stat. § 103E.110, subd. 3, and Minn.Stat. § 103G.245 governing work in public waters. But we reverse the portion of the district court’s decision stating that both statutes must be satisfied and hold that if appellants obtain permission pursuant to chapter 103E.011, subd. 3, and otherwise proceed in accordance with chapter 103E, they are entitled to the exemption in Minn.Stat. § 103G.245, subd. 2(2), from the public waters work permit requirement of Minn.Stat. § 103G.245, subd. 1(2). We affirm the district court’s conclusion that appellants are not, as a matter of law, exempt from wetland-replacement requirements, and must seek approval of a replacement plan or exemption from the requirement from the appropriate local government unit. We reverse the district court’s determination that appellants must prepare another EAW and the determination that an EIS is not mandatory. We hold that for appellants to proceed with the repair in a manner that will drain wetland 6-11W, they must obtain the required DNR approval, complete the EIS process, and obtain a replacement plan approval or exemption.

Affirmed in part and reversed in part.

      . An EAW is a brief document prepared in worksheet format, designed to rapidly assess the environmental effects associated with a proposed project. The EAW serves primarily to aid in the determination of whether an EIS is needed and to serve as a basis for the scoping process for an EIS. Minn. R. 4410.1000 (1999).

      . BWSR is a state agency that provides technical assistance and regulatory support to local authorities to administer wetland conservation laws.

      . Respondents requested "appropriate injunc-tive relief” in their initial complaint but did not address this issue at the district court level. The district court did not specifically address the need for injunctive relief. Additionally, the parties do not raise the issue of injunctive relief in their appeal to this court. Therefore, we do not reach the issue on whether injunctive relief was appropriate in this case.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Gary JAMES, Appellant.
    No. C8-01-245.
    Court of Appeals of Minnesota.
    Jan. 15, 2002.

      Mike Hatch, Attorney General and Susan Gaertner, Ramsey County Attorney, Janice Barker, Assistant County Attorney, St. Paul, for respondent.
    John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by CRIPPEN, Presiding Judge, WILLIS, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

WILLIS, Judge.

Appellant Gary James challenges his conviction of unlawful possession of a pistol, arguing that the district court erred by (1) permitting the prosecutor’s peremptory strikes of two veniremembers because the strikes were not based on race-neutral reasons, (2) sua sponte excusing a prospective juror, and (3) ruling that James could be impeached by a prior felony conviction. He also argues that circumstantial evidence did not exclude a rational hypothesis that someone else possessed the pistol and that the prosecutor committed prejudicial misconduct by alleging facts not in evidence. James raises additional issues in a pro se brief. Because we conclude that the district court did not err, the evidence was sufficient to support the jury’s verdict, the prosecutor did not commit prejudicial misconduct, and the pro se brief provides no basis for relief, we affirm.

FACTS

St. Paul police officers Troy Greene and Edward O’Donnell were dispatched to a house on a complaint that a man with a gun was outside. Upon arriving, Officer Greene saw James standing at a corner of the house, near the front door. James saw the squad car and started to walk quickly south, away from the officers and toward the rear of the house, with a small, dark item in each hand. Officer Greene left the squad car and pursued James.

James stopped abruptly at the southwest corner of the house. With his right hand concealed from the officers’ view, James made a “slight dip or squat” as he reached down toward the ground. He then turned and ran back toward the front of the house and Officer Greene, who saw that James no longer had an item in his right hand. James was stopped by Officer O’Donnell, who had joined the pursuit. The officers’ searches revealed a holster in James’s rear pants pocket and a partially loaded semi-automatic pistol on the ground at the southwest corner of the house.

James stipulated that he is ineligible to possess a firearm because he was convicted of a crime of violence in 1996. See Minn.Stat. § 624.713, subd. 1(b) (2000) (providing that person convicted of crime of violence may not possess a pistol unless ten years have elapsed since restoration of civil rights or expiration of sentence or disposition). A jury found James guilty of possession of a firearm by an ineligible person. See id. This appeal follows.

ISSUES

I. Did the district court err by permitting the prosecutor to exercise peremptory strikes of African-American and Native-American veniremembers?

II. Did the district court err by sua sponte dismissing a prospective juror?

III. Did the district court abuse its discretion by ruling that James could be impeached by his 1994 conviction of fifth-degree controlled-substance crime?

IV. Does circumstantial evidence support a rational hypothesis that someone other than James possessed the pistol?

V. Did the prosecutor commit prejudicial misconduct during closing argument by alleging facts not in evidence?

VI. Does James’s pro se brief provide a basis for relief?

ANALYSIS

I.

James argues that the district court erred by permitting the state to exercise peremptory challenges to remove an African American and a Native American from the venire. He contends that the prosecutor’s stated race-neutral reasons for the exclusions were merely a pretext for purposeful discrimination. Using peremptory challenges to exclude persons from the jury solely on the basis of race is prohibited. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986).

In Batson, the Supreme Court established a three-step process to determine whether a peremptory challenge is motivated by discriminatory intent. First, the defendant must make a prima facie showing that the challenge was exercised on the basis of race. Id. at 96, 106 S.Ct. at 1723. Second, when such a prima facie showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for the challenge. Id. at 97, 106 S.Ct. at 1723. Finally, if the prosecutor establishes a race-neutral reason for the challenge, the district court must determine whether there has been purposeful discrimination. Id. at 98, 106 S.Ct. at 1724. If the prosecutor had a discriminatory intent in striking a juror, the defendant is automatically entitled to a new trial. State v. Greenleaf, 591 N.W.2d 488, 500-01 (Minn.1999).

After James’s counsel objected and argued that the state’s challenge of the African-American veniremember was based on race, the prosecutor stated:

[The veniremember] * * * had indicated that she’d been convicted in 1995 of Malicious Punishment of a child and that she felt that she was not treated fairly in her own house, all of this in light of the fact that when she talks about her abusive significant other from years past who was * * * shot in 1996— now, when she discusses him she says, “You reap what you sow.” So her viewpoints of his criminal behavior [were] different than her viewpoints of how she personally was handled by the court system, which gave me grave concerns.
In addition, * * * she had also been arrested as recently as February 23rd of 2000 for DWI and 3-1 of '99 for DWI.
* * * I struck her because of the Malicious Punishment charge and her feelings about that prosecution. It was not based upon her race.

And after the state’s challenge of the Native-American veniremember, the prosecutor stated:

[The veniremember] had been convicted in 1990 of DWI but then again in 1998 he got another gross misdemeanor DWI * * *. He would not have completed his probationary term or shown any period of time in which the interventions as a result of that DWI have been successful. My concerns about those convictions and where he’s at at this point in time in his life potentially with his chemical dependency were concerns of mine, basing my reasons for my strike on that, again, a race-neutral decision.

The district court determined that the prosecutor had satisfactorily explained her reasons for exercising the peremptory challenges.

Considerable deference must be given by a reviewing court to the district court’s finding on whether the prosecutor acted with discriminatory intent because that finding normally will turn largely on the district court’s evaluation of credibility. State v. DeVerney, 592 N.W.2d 837, 844 (Minn.1999). Appellate courts generally uphold a district court’s acceptance of a prosecutor’s explanation if the record supports that explanation and there is no clear proof that the stated explanation was a pretext for racial discrimination. See State v. Moore, 438 N.W.2d 101, 107 (Minn.1989). Prior convictions and prior arrests are valid reasons for exercising peremptory challenges. DeVerney, 592 N.W.2d at 843; Moore, 438 N.W.2d at 107. The district court did not err by permitting the state to exercise peremptory challenges against the veniremembers.

II.

James argues that the district court erred by sua sponte dismissing a prospective juror who was sleeping. After the prospective juror was accepted by defense counsel and the prosecutor, the district court recessed and expressed “serious concerns as to whether or not [the prospective juror] will be able to listen to the evidence and give a fair trial” because the prospective juror appeared “somewhat disoriented” and had been “asleep for some time” when other veniremembers were being questioned. Over defense counsel’s objection, the district court excused the prospective juror.

James asserts two claims. First, he contends that challenges for cause and peremptory challenges of veniremembers may only be exercised by the parties, not by the district court. See Minn. R.Crim. P. 26.02, subds. 5-6 (providing procedure for challenges). But here, the district court did not challenge the prospective juror; it simply excused him. The essence of James’s argument, however, is that the district court cannot remove a prospective juror after both parties have accepted the individual but before the jury has been sworn in. But the district court has the discretion to dismiss a sleeping or inattentive juror during trial. See State v. Yant, 376 N.W.2d 487, 491 (Minn.App.1985), review denied (Minn. Jan. 17,1986). We see no reason for the district court to have discretion to remove a juror during trial, after testimony and evidence have been presented, but not to remove a prospective juror before trial. If the district court expresses legitimate concerns about a prospective juror’s ability to remain awake and alert during trial and removes the individual during voir dire, potential fair-trial issues are avoided. And because the excused prospective juror must be replaced by a veniremember subject to the same jury-selection process as the excused prospective juror, issues of prejudice do not arise.

Second, James argues that additional recesses or other accommodations during trial would resolve any difficulties that the prospective juror had with staying alert. But the district court observed the prospective juror during voir dire and is in the best position to determine whether that person could remain attentive during trial, with or without accommodations.

III.

James argues that the district court erred by ruling that the state could introduce evidence of his 1994 conviction of fifth-degree controlled-substance crime to impeach his testimony. The district court’s ruling on the impeachment of a witness by prior conviction is reviewed under a clear-abuse-of-discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn.1998).

Evidence of a prior conviction may be admissible to impeach a defendant’s testimony if the underlying offense is less than ten years old and is punishable by imprisonment in excess of one year, and the district court “determines that the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a)(1). To determine whether the probative value outweighs prejudicial effect, the court should consider

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

Ihnot, 575 N.W.2d at 586 (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn.1978) (“Jones factors”)). The district court “should demonstrate on the record that it has exercised the discretion accorded by Minn. R. Evid. 609(a)(1) after considering and balancing the [Jones] factors.” State v. Lund, 474 N.W.2d 169, 172 (Minn.App.1991).

James’s prior conviction was within the ten-year limit and is punishable by imprisonment in excess of one year. See Minn.Stat. § 152.025, subd. 3 (2000) (providing maximum five-year imprisonment for fifth-degree controlled-substance crime). But because the district court did not record its consideration of the Jones factors, we must perform that analysis. See Lund, 474 N.W.2d at 172 (finding Jones factors satisfied even when district court did not record consideration of factors).

A.Impeachment Value of Prior Crime

Convictions for possession of controlled substances do not directly relate to veracity of a defendant. State v. Zerne-chel, 304 N.W.2d 365, 366 (Minn.1981). But impeachment by a prior conviction “aids the jury by allowing it to see the whole person and thus to judge better the truth of [the defendant’s] testimony.” State v. Gassler, 505 N.W.2d 62, 67 (Minn.1993) (quotations omitted).

B. Date of Conviction and Subsequent History

James’s 1994 conviction is fairly recent; his subsequent 1996 conviction of criminal sexual conduct in the fourth degree and a probation violation in 1998 show “a pattern of lawlessness that indicates that the [pri- or] offense had not lost any relevance by the passage of time.” Ihnot, 575 N.W.2d at 586 (quotation omitted).

C. Similarity of Past Crime and Charged Crime

The only similarity between James’s pri- or conviction of controlled-substance crime and his current offense of prohibited person in possession of a firearm is that he was charged with possessing something that was unlawful for him to possess. The elements and nature of the crimes are different. The greater the difference between a prior crime and the current offense, the less prejudicial the prior conviction is for impeachment purposes. Id. at 586-87. We note that the supreme court has upheld the admission of prior convictions for impeachment purposes in cases in which the prior crime and the current offense were more similar than the crimes involved here. Id. at 583, 586-87 (affirming district court’s decision to allow admission of conviction of third-degree criminal sexual conduct for impeachment purposes in a trial for first-degree criminal sexual conduct); State v. Frank, 364 N.W.2d 398, 398-99 (Minn.1985) (affirming district court’s decision to permit use of two prior rape convictions for impeachment purposes in trial for first-degree criminal sexual conduct). The admission of James’s prior conviction of controlled-substance crime did not present an impermissible risk of prejudice.

D., E. Importance of Defendant’s Testimony and Centrality of Credibility Issue

As James acknowledges, his testimony and credibility were essential to his defense. Considering the strength of Officer Greene’s testimony and other evidence against James, “[t]he jury needed to hear why he was at [the house], and why, when searched, a holster was found in his back pocket” and also needed to hear him “deny that he ever held or had possession of the gun.” If a defendant’s credibility is the central issue of a case, “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.” Ihnot, 575 N.W.2d at 587 (quotation omitted).

All five Jones factors are satisfied. The probative value of admitting James’s 1994 conviction outweighed its prejudicial effect. Therefore, the district court did not abuse its discretion by allowing the state to introduce evidence of his conviction for impeachment purposes.

IV.

James argues that the circumstantial evidence is insufficient to establish that he had possession of the pistol. This court will uphold a conviction based on circumstantial evidence “if the reasonable inferences drawn from the evidence are inconsistent with any rational hypothesis except that of the defendant’s guilt.” State v. Gates, 615 N.W.2d 331, 337 (Minn.2000). A jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to deference. State v. Morris, 606 N.W.2d 430, 437 (Minn.2000). When considering a sufficiency-of-circumstantial-evidenee claim, this court views the evidence in the light most favorable to the verdict and assumes that the jury believed testimony that supported the verdict and disbelieved testimony that did not. See Gates, 615 N.W.2d at 337; State v. Harris, 589 N.W.2d 782, 791 (Minn.1999).

James contends that the evidence does not exclude the rational hypothesis that someone else possessed or controlled the pistol. He refers to testimony describing a 911 call, during which the caller reported that there were “a bunch of guys” outside the house and that a person in a car drove off a few minutes before the police officers arrived. James asserts that any one of those persons could have dropped the holster and pistol, pointing out that this hypothesis is consistent with his own testimony that he found a “black item” on the ground outside the house, picked it up, and put it in his pocket without knowing what it was. He also testified that he did not reach the southwest corner of the house before he was stopped by the officers.

We reject James’s argument. The circumstantial evidence supporting the verdict forms “a complete chain that leads directly to the defendant’s guilt.” See Gates, 615 N.W.2d at 337-38 (citation omitted). Officer Greene testified that James had an item in each hand before he arrived at the southwest corner. He also testified that James no longer had an item in his right hand after he dipped or squatted toward the ground. Immediately after James was handcuffed, Officer Greene searched the southwest corner and found a pistol. Officer O’Donnell testified that he found a holster in James’s pants pocket and demonstrated at trial that the pistol fits the holster. Although Officer Greene’s testimony conflicted with James’s testimony that he did not reach the southwest corner, we must assume that the jury believed Officer Greene and disbelieved James. See Hams, 589 N.W.2d at 791. Viewed in the light most favorable to the verdict, the evidence is sufficient to establish that James had possession of a pistol.

V.

James claims that the prosecutor committed prejudicial misconduct during closing argument by misstating the contents of the 911 call that started the events leading to James’s arrest. James did not specifically object to the statements, generally object that the prosecutor was alleging facts not in evidence, or seek a cautionary instruction. Generally, a defendant waives the right to challenge a prosecutor’s closing-argument comments unless the defendant objected or sought a cautionary instruction. State v. Griese, 565 N.W.2d 419, 427 (Minn.1997). But regardless of a defendant’s failure to object, this court may reverse a conviction if the comments were “unduly prejudicial.” State v. Whittaker, 568 N.W.2d 440, 450 (Minn.1997). Improper comment is prejudicial if it likely played a substantial part in influencing the jury to convict. State v. Parker, 417 N.W.2d 643, 647 (Minn.1988).

The prosecutor stated, in part:

And what had just happened? A woman was walking down the street when a car pulled up. A man got out * * * wearing dark dress clothes, with a gun and he — there is a huge confrontation.
[A witness] saw this woman walking down the street and a man in dark dress clothes pulling a gun and fighting.
⅜ ⅜ ⅜ ⅝
Who was the bunch of people? This white female who’s being assaulted?
This woman that’s being beaten up isn’t going to * * * testify that he had a gun
You don’t have to decide who he assaulted, what happened to them, where did they go, how did he know them.

James points out that the transcript of the 911 call does not indicate that a woman was being assaulted, only that the man “was trying to get her to get in the car,” and argues that these statements were inflammatory.

But even if the prosecutor’s statements were improper, it is highly unlikely that the statements had any effect on the jury’s verdict. The statements were made immediately after the prosecutor played a tape recording of the 911 call, and the district court instructed the jury that “[arguments or statements by the lawyers are not evidence.” And the state had a strong case: the testimony of the police officers, the holster found in James’s pants pocket, and the handgun found at the southwest corner of the house. We conclude that the prosecutor’s statements were not prejudicial.

VI.

James submitted a pro se supplemental brief that raises issues related to racial profiling, characterization of an expert witness, credibility of the police officers, and failure to disclose exculpatory material. After careful consideration, we find that James’s claims provide no basis for relief.

DECISION

The district court properly (1) allowed the prosecutor’s peremptory strikes of an African-American veniremember and a Native-American veniremember, (2) exercised its discretion in removing an inattentive prospective juror, and (3) ruled that James’s prior felony conviction was admissible for impeachment purposes. Circumstantial evidence was sufficient to support the jury’s verdict, the prosecutor did not commit prejudicial misconduct, and James’s pro se brief provides no basis for relief.

Affirmed.


author: TOUSSAINT, Chief Judge.

text:
    METROPOLITAN SPORTS FACILITIES COMMISSION, Respondent, v. MINNESOTA TWINS PARTNERSHIP, a Minnesota General Partnership, d/b/a Minnesota Twins Baseball Club and the Minnesota Twins, et al., Appellants.
    No. C2-01-2010.
    Court of Appeals of Minnesota.
    Jan. 22, 2002.
    Review Denied Feb. 4, 2002.

      Corey J. Ayling, Andrew J. Shea, Richard L. Evans, Kathleen M. Brennan, McGrann Shea Anderson Carnival Straughn Lamb, Chartered, Minneapolis, MN, for respondent.
    Roger J. Magnuson, Peter William Carter, Andre Timothy Hanson, Mitchell W. Granberg, Dorsey Whitney LLP, Minneapolis, MN, for appellants.
    Mike Hatch, Attorney General, Alan I. Gilbert, Chief Deputy and Solicitor General, Mark B. Levinger, Stuart T. Alger, Assistant Attorneys General, St. Paul, MN, for amicus curiae State of Minnesota.
    William M. Hart, Meagher Geer P.L.L.P., Minneapolis, MN, for amicus curiae Charles E. Spevacek.
    Considered and decided by TOUSSAINT, Chief Judge, SCHUMACHER, Judge, and KLAPHAKE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellants Minnesota Twins Partnership and Major League Baseball challenge the temporary injunction (1) requiring the Twins to play their 2002 home schedule at the Hubert H. Humphrey Metrodome stadium; (2) enjoining Major League Baseball from interfering with the contract; (3) enjoining the Twins from taking action that would prevent them from playing their 2002 home schedule at the Metro-dome; and (4) enjoining the sale of the Twins unless the new owner agrees to comply with the lease terms requiring the Twins to play their 2002 home schedule at the Metrodome. Because the district court did not abuse its discretion in issuing the temporary injunction against the Twins and Major League Baseball to maintain the status quo pending resolution of the merits, we affirm.

FACTS

The Minnesota Twins (Twins), a privately owned and operated baseball team, are a member of Major League Baseball. Major League Baseball is an unincorporated association of 30 major-league baseball teams. The Metropolitan Sports Facilities Commission (the commission) is a Minnesota governmental entity that was created in 1977 to construct and operate the Hubert H. Humphrey Metrodome in Minneapolis.

The use agreement between the Twins and the commission has been amended over the years and is governed by both legislation and the parties agreements. As originally enacted, the legislation required that the use agreement be no longer than 30 years and no shorter than the term of the bonds used to finance the stadium. Minn.Stat. 473.581, subd. 3(a) (1978). In 1979, the legislature amended the act so that the agreement could provide for termination upon conditions related and limited to the bankruptcy, insolvency, or financial capability of the organization. 1979 Minn. Laws ch. 203, 8.

In October 1997, pursuant to the escape clause in the then-applicable use agreement, the Twins gave written notice terminating the use agreement, effective at the end of the 1998 season. This notice was based on an assertion that the adverse financial conditions necessary to trigger the escape clause existed. The commission brought an action in district court, alleging that the financial conditions had not been met and asserting that the Twins were estopped from relying on those conditions to terminate the contract. The parties then entered into a new use agreement on July 31, 1998, and agreed to dismiss the lawsuit with prejudice.

The 1998 use agreement provided the Twins with a fixed-term agreement for the years 1998-2000, with the option of exercising three one-year extensions following the fixed-term period. In September 2001, the Twins exercised their lease option for the 2002 season.

Under the terms of the agreement, the commission does not charge the Twins any rent for their use of the stadium for home games. Nor do they charge for the Twins year-round use of locker and office space. Rent may be charged only in very limited circumstances, including play of the All-Star game at the Metrodome or post-season play. The Twins also pay a minimal share of utility, upkeep, and maintenance costs. Further, the commission may collect revenue from the sale of concessions, subject to payment of at least 35 of the gross receipts to the Twins. And it receives 25 of the net revenue the Twins collect from advertising at the Metrodome. Together, these sums would amount to an estimated $500,000 for the 2002 season.

Therefore, with no rent being collected, the major benefit that the commission receives under the use agreement is the Twins promise to play baseball at the Met-rodome. The Twins are excused from this obligation only if the force majeure clause applies and they are unable to play a home game for a reason beyond the Teams and the Commissions control, including strikes, an act of God, a natural casualty, or a court order. If the Twins cease playing games at the Metrodome as required, or if they cease playing major-league professional baseball for any reason, they are in default of the agreement. The remedies available to the commission under the contract include, but are not limited to, injunc-tive relief and orders for specific performance requiring the Team to play its Home Games at the Stadium during the Term hereof. The agreement is binding on the Twins successors and assigns as well.

The commission became concerned that the Twins would not comply with their one-year agreement after reports that Major League Baseball intended to eliminate or contract two franchises, including the Minnesota Twins. On November 6, 2001, the commission brought a declaratory-judgment action seeking, in relevant part, specific performance of the use agreement and an injunction preventing Major League Baseball from interfering with the commissions contractual relationship with the Twins. The commission alleged that the Twins sought to circumvent their contractual obligations by selling their franchise to Major League Baseball for $250 million and that the league would then terminate the franchise.

The commission moved for a temporary restraining order on November 6, 2001, and the court issued the ex parte order on the same date. After the commissions motion for a temporary injunction, the district court held a hearing on November 15, 2001. On November 16, 2001, the district court granted the commissions motion for a temporary injunction.

The Twins and Major League Baseball appealed and petitioned the Minnesota Supreme Court for accelerated review. The supreme court denied the motion but ordered this court to consider the appeal on an expedited basis. Accordingly, this court expedited briefing deadlines and the scheduling of oral arguments.

ISSUE

Did the district court abuse its discretion in temporarily enjoining the Twins from breaching their one-year use agreement with the commission and enjoining Major League Baseball from interfering with the commissions contractual relationship with the Twins?

ANALYSIS

The decision of whether to grant a temporary injunction is within the district courts broad discretion and will not be reversed absent an abuse of that discretion. Eakman v. Brutger, 285 N.W.2d 95, 97 (Minn.1979). The district court must make sufficient findings to permit meaningful appellate review. Minn. R. Civ. P. 52.01; Crowley Co. v. Metro. Airports Commn, 394 N.W.2d 542, 544-45 (Minn.App.1986) (remanding appeal from denial of injunction for district court to make necessary findings). On review, we consider the facts in the light most favorable to the prevailing party. Bud Johnson Constr. Co. v. Metro. Transit Commn, 272 N.W.2d 31, 33 (Minn.1978).

Appellants argue that the district court made inadequate findings to support the temporary injunction, especially as to Major League Baseball. When findings are insufficient to permit appellate review, the temporary injunction will be reversed and remanded to the district court for findings. See Ulland v. Intl. Assn. of Entrepreneurs of Am., 527 N.W.2d 133, 135 (Minn.App.1995), review denied (Minn. Apr. 18, 1995). This argument, however, cannot be resolved until after we analyze the findings in light of the relevant law. We note that much of the analysis is applicable to both Major League Baseball and the Twins, and that their interests are in many instances intertwined.

We now turn to the main issue on appeal, in which we review the injunction for an abuse of discretion. A temporary injunction is an extraordinary equitable remedy. Miller v. Foley, 317 N.W.2d 710, 712 (Minn.1982). It is meant to preserve the status quo pending an adjudication on the merits. Id. The grant of a temporary injunction neither establishes the law of the case nor constitutes an adjudication of the issues on the merits. Indep. Sch. Dist. No. 35 v. Engelstad, 274 Minn. 366, 370, 144 N.W.2d 245, 248 (1966).

In evaluating whether the district court abused its discretion, we must consider five factors:

(l)The nature and background of the relationship between the parties preexisting the dispute giving rise to the request for relief.
(2)The harm to be suffered by plaintiff if the temporary restraint is denied as compared to that inflicted on defendant if the injunction issues pending trial.
(3)The likelihood that one party or the other will prevail on the merits when the fact situation is viewed in the light of established precedents fixing the limits of equitable relief.
(4)The aspects of the fact situation, if any, which permit or require consideration of public policy expressed in the statutes, State and Federal.
(5)The administrative burdens involved in judicial supervision and enforcement of the temporary decree.

Dahlberg Bros. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965) (footnotes omitted).

1. Nature and background of the relationship

A temporary injunction is issued to maintain the status quo pending a decision on the merits. Pickerign v. Pasco Mktg., Inc., 303 Minn. 442, 444, 228 N.W.2d 562, 564 (1975). Generally, injunctive relief based on a contract must be coextensive with the terms of the contract. Cherne Indus., Inc. v. Grounds Assocs., 278 N.W.2d 81, 93 (Minn.1979) (citation omitted).

The district court found that granting the motion for a temporary injunction would not create a new legal relationship between the parties, [but] would maintain the existing relationship under the Use Agreement. The district court noted that: (1) the Twins exercised their option to play their 2002 home baseball games at the Metrodome; (2) the Twins are scheduled to play 81 games over a six-month period; and (3) the relationship between the Twins and the commission is not a typical landlord-tenant relationship, but instead provides the state, citizens, and fans with substantial non-monetary benefits.

Appellants do not dispute that the Twins and the commission have an existing contractual relationship, which arose when the Twins decided to extend the use agreement for another year. Because the Twins pay no rent for use of the stadium during home games or for their year-round use of locker and office space, the district court may ultimately conclude that their contractual relationship with the commission is not a typical one for landlords and tenants. Instead, the agreement is based on the Twins promise to play their 2002 season at the Metrodome. Additionally, although the relationship between the commission and Major League Baseball is not a contractual one, the Twins are a member of Major League Baseball. Accordingly, the injunction that the district court issued temporarily maintains the status quo by requiring the Twins to play their 2002 home games at the Metrodome and by enjoining Major League Baseball from interfering with the commissions contractual relationship with the Twins. The first Dahlberg factor, therefore, favors the issuance of the temporary injunction.

2. Balancing harms

The district court concluded that the commission, the state, citizens, and fans would suffer irreparable harm if the Twins failed to play their 2002 home games at the Metrodome. The court (1) cited the role of baseball as a tradition and as a national pastime, the history of the Twins in Minnesota for some 40 years, including two World Series championships, the role of Twins legends who have bettered the community by their volunteer work with children, and the availability of Twins games as affordable family entertainment; (2) noted that private buildings had been condemned to build the Metrodome; (3) found that the welfare, recreation, prestige, prosperity, trade, and commerce of the people of the community are at stake; and (4) ruled that the vital public trust outweighs any private interest.

a. Harm to be suffered by the commission if the temporary injunction is denied

The party seeking an injunction must establish that legal remedies are inadequate and that an injunction must issue to prevent great and irreparable injury. Cherne, 278 N.W.2d at 92. The lack of a showing of irreparable injury may be a sufficient ground for determining that the district court abused its discretion in granting a temporary injunction. Morse v. City of Waterville, 458 N.W.2d 728, 730 (Minn.App.1990) (finding insufficient showing of irreparable harm where injury suffered by plaintiff discharged from employment was primarily' economic), review denied (Minn. Sept. 28, 1990). Irreparable harm, however, is not always susceptible of precise proof. Thermorama, Inc. v. Buckwold, 267 Minn. 551, 552, 125 N.W.2d 844, 845 (1964) (inferring irreparable harm from former employees potential solicitation of customers in violation of contract).

Appellants argue that the district court erred as a matter of law in determining that the commission demonstrated the possibility of irreparable injury. First, they contend that specific performance is not an available remedy for a tenants breach of a commercial lease, and that money damages are adequate. Second, they assert that because the only parties to the lease are the commission and the Twins, the court erred in considering potential harm to the public. We address appellants arguments in turn.

i. Availability of injunctive relief for breach of the use agreement

Appellants first claim that a landlord may not obtain specific performance requiring a tenant to stay in business. See Mayor’s Jewelers, Inc. v. State of California Pub. Employees’ Ret. Sys., 685 So.2d 904 (Fla.Dist.Ct.App.1996). They argue that under the hard and fast rule, specific performance is not available in commercial-lease cases. See Hamilton W. Dev. Ltd. v. Hills Stores Co., 959 F.Supp. 434, 439 (N.D.Ohio 1997) (discussing hard and fast rule adopted by some jurisdictions refusing to order specific performance to enforce obligation of continuous operation in commercial leases, based on burdens to courts of continuing supervision).

Caselaw, however, does not preclude equitable relief as a matter of law in all commercial-lease cases. Even Mayor’s and Hamilton do not stand for the proposition that equitable remedies are always prohibited in commercial-lease disputes. In Mayor’s, the decision rested on the finding that granting the injunction would have imposed the burden of supervision on the court; the court found it unnecessary to determine whether there was an adequate remedy at law. Mayor’s, 685 So.2d at 905. In Hamilton, where the issue was whether a shopping-center developer could obtain a permanent injunction to prevent a store from ceasing operations in violation of the continuous-operation obligations imposed by lease, the federal court expressed the belief that Ohio courts would reject an unbending rule against specific performance in all cases and concluded instead that Ohio state courts would narrowly construe such lease clauses. Hamilton, 959 F.Supp. at 439-40.

Upon examination, the district court may ultimately conclude that the use agreement at issue here is not a typical commercial lease. Under the agreement, the Twins pay no rent for their use of the Metrodome for the 2002 home games or for their year-round use of locker and office space. Generally, in a commercial lease, the tenant pays the landlord rent as consideration for the use and occupancy of the property. Mid-City Hotel Assocs. v. Prudential Ins. Co., 114 B.R. 634, 641 (Bankr.D.Minn.1990); Blacks Law Dictionary 1299 (7th ed.1999). Rent, however, was not the benefit the commission received from the bargain. Instead, the benefit of the bargain that the commission received was the Twins promise to play their home games at the Metrodome for the duration of their lease. Indeed, the stated purpose for building and operating the stadium was to attract major league sports franchises to play at the stadium for the enjoyment of fans. Minn.Stat. 473.556, subd. 12; see City of New York v. N.Y. Jets Football Club, Inc., 90 Misc.2d 311, 394 N.Y.S.2d 799, 803 (Sup.Ct.1977) (noting city did not construct stadium to lease for money consideration but for public purpose of hosting professional sports games).

Next, appellants contend that if the Twins breach the use agreement, the only harm the commission will suffer is lost revenue from concession sales and advertising, in the amount of some $500,000, as well as the loss of the potential for rent from postseason play. See MinmStat. 473.581, subd. 3(a) (2000) (providing use agreement shall provide for payment of damages in amount of average revenue received by commission in the event team defaults, until replacement team enters into use agreement). They note that under the use agreement, if they play home games elsewhere, they must repay certain concession receipts, signage, revenue, and facilities cost credit received under the agreement. They assert that money damages will compensate the commission for its injuries and that injunctive relief is, therefore, unavailable.

The availability of money damages to compensate for some of the harm suffered by a nonbreaching party does not necessarily preclude an injunction; instead, the issuance of injunctive relief depends on whether there are additional injuries for which money cannot compensate the nonbreaching party. Morse, 458 N.W.2d at 729-30. Temporary injunctive relief has been upheld when the potential damages are difficult to determine, as in the-case when the threatened termination of a dealership would result in an unused plant, the loss or idling of trained employees, and disruption of the dealerships relationship with the buying public. Dahlberg, 272 Minn. at 277, 137 N.W.2d at 323. When there is difficulty and uncertainty in determining damages, it may be far better to prevent the injury through a temporary injunction than to attempt to compensate the injured party after the injury has occurred. Lano Equip., Inc. v. Clark Equip. Co., 399 N.W.2d 694, 698 (Minn.App.1987) (citing 5A Corbin on Contracts 1142 (1964) (discussing appropriateness of granting temporary injunction despite claim that money damages would be adequate remedy)), review denied (Minn. Apr. 17, 1987).

ii. Propriety of considering harm to the public

The district court ruled that the Commission, the State, citizenry and fans will suffer irreparable harm if the Twins do not play the 2002 baseball games at the Metrodome. Appellants assert that the court erred in considering harm to the public, contending that because the agreement was a commercial lease between landlord and tenant, only harm to the contracting parties may be considered.

The commission was created in 1977 to construct and operate a new sports facility. 1977 Minn. Laws ch. 89. The enabling legislation explicitly set out public purposes, finding it

necessary for the public health, safety and general welfare to establish a procedure for the acquisition and betterment of sports facilities and to create a metropolitan sports facilities commission.

Minn.Stat. 473.552 (1978). The commission was authorized to lease the sports facility for purposes that would provide athletic, educational, cultural, commercial or other entertainment, instruction, or activity for the citizens of the metropolitan area. Minn.Stat. 473.556, subd. 12 (1978).

Further, the Metrodome was publicly financed; the legislature authorized the issuance of bonds and the collection of taxes to help fund the Metrodome. Minn. Stat. 473.581, subds. 1(a), 2 (1978). Because the sports facility was used for public, governmental and municipal purposes, it was generally exempted from taxation. Minn.Stat. 473.556, subd. 4 (1978). The supreme court has upheld legislation that was later enacted exempting the Metro-dome from property taxation. Metro. Sports Facilities Commn. v. County of Hennepin, 478 N.W.2d 487, 488 (Minn.1991).

The supreme court, in considering a challenge to the use of public funds for construction of the Metrodome, recognized that construction of a stadium for use by professional sports teams constitutes a public purpose for which public expenditures may legally be undertaken. Lifteau v. Metro. Sports Facilities Commn, 270 N.W.2d 749, 751-52 (Minn.1978). The court took judicial notice of the importance of professional sports in citizens social lives, the entertainment and recreational purposes the stadium would serve, the jobs the stadium would provide, and the anticipated benefits to neighboring businesses. Id. at 754-55.

The public interest in Major League Baseball franchises in general has been recognized by others. In discussing possible effects of the potential loss of baseballs antitrust exemption, Chairman Selig stated that it

could irreparably injure [fans] by leading to the removal of live professional baseball from communities that have hosted major league and minor league teams for decades.

Hearing Before the Subcomm. on Econ. and Commercial Law of the House Comm, on the Judiciary, 103d Cong. 49 (1993) (statement of Allan H. Bud Selig, Chairman, Executive Council of Major League Baseball and President, Milwaukee Brewers Baseball Club). Similarly, based on his own unsuccessful efforts to stop the relocation of the Milwaukee Braves, Selig told Congress that he believed that the professional sports league and Major League Baseball should vigilantly enforce strong policies prohibiting clubs from abandoning local communities which have supported them. Baseballs Antitrust Immunity: Hearing Before the Subcomm. on Anti-Trust, Monopolies and Business Rights of the Senate Comm, on the Judiciary, 102d Cong. 110 (1992) (statement of Allan H. Selig, Owner, Milwaukee Brewers Baseball Club). He further stated that franchise relocation should be prohibited except in the most dire circumstances where the local community has, over a sustained period, demonstrated that it cannot or will not support the franchise. Id. at 110-11.

In addition, legal commentators have recognized that money damages are not sufficient to compensate for the harm suffered by a community for the loss of a professional sports team. See, e.g., Matthew J. Mitten Bruce W. Burton, Professional Sports Franchise Relocations From Private Law Public Law Perspectives: Balancing Marketplace Competition, League Autonomy, and the Need for Level Playing Field, 56 Maryland L.Rev. 57, 70-71 (1997). According to these commentators,

[m]erely allowing a city to recover contract damages for the premature loss of a team does not provide adequate compensation for the citys lost benefit of the bargain in providing the public, financial inducements necessary to attract or retain a sports franchise. * * * The citys real benefits of the bargain are the highly valued, intangible benefits * * *. The value of such benefits is virtually impossible to quantify and, therefore, is not recoverable for a team owners breach of contract.

Id.

Money damages may compensate a developer or manufacturer but money cannot compensate the people * * * for immeasurable, indirect and intangible damages. N.Y. Jets, 394 N.Y.S.2d at 808. Since it appears from the record that money could not compensate the commission for the intangible losses that would result if the Twins breached their promise to play, the district court did not abuse its discretion in considering harm to the public when deciding whether to grant temporary injunctive relief.

b. Harm to be suffered by appellants if injunction is granted

The district court found that the public interest outweighs any private interests, but otherwise made no specific findings on the potential harm that appellants claim. The Twins contend that the harm they will suffer if forced to stay in business is financial. They (1) cite the commissions admission on its website that the Metrodome is unsuitable for professional baseball and its reference to the Twins inability to generate sufficient stadium revenues; (2) rely on material in the commissions appendix referring to losses the Twins have suffered; and (3) assert that when interest payments are considered, the Twins lost almost $4 million last season.

Major League Baseball asserts that it will also suffer substantial harm because the injunction will cause it to incur the cost of sending teams to Minnesota and to lose control over baseball. It characterizes the injunction as a sweeping order that mandates the major league teams from the United States and Canada to send teams to Minnesota to play a season of baseball for the benefit of the commission.

The commission disputes the Twins claim that they are being forced to lose money, noting that they have already played 41 seasons and contractually obligated themselves to play one more season only a few months ago, when they exercised their option under the use agreement. Furthermore, the Twins submitted no financial records to the district court in support of their claim that they will lose money if forced to play the 2002 season.

The commission also contends that the irreparable harm attributable to contraction and the leagues voluntary decision to approve its members contracts and do business in Minnesota justifies an injunction with an impact outside Minnesota. The commission notes that Major League Baseball has not contested personal jurisdiction in the district court and argues that it voluntarily availed itself of the forum offered by Minnesota courts. This court has previously upheld a temporary injunction affecting business and litigation outside Minnesota. Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 456-57 (Minn.App.2001) (upholding injunction ordering California competitor to comply with Minnesota noncompete agreement).

The district court must base its decision on affidavits, deposition testimony or oral testimony in court. Minn. R. Civ. P. 65.02(b). The material on which appellants rely to support their claim that they will lose money if the injunction issues was not presented to the district court in this form. On the record before this court, viewed most favorably to the prevailing party, we conclude that the district court did not abuse its discretion in concluding that the possibility of irreparable harm to the commission and the public outweighed the potential harm shown by the Twins and Major League Baseball.

S. Likelihood that commission will prevail on the merits

If a plaintiff can show no likelihood of prevailing on the merits, the district court errs as a matter of law in granting a temporary injunction. Sanborn Mfg. Co. v. Currie, 500 N.W.2d 161, 165 (Minn.App.1993). But if a plaintiff makes even a doubtful showing as to the likelihood of prevailing on the merits, a district court may consider issuing a temporary injunction to preserve the status quo until trial on the merits. Dahlberg, 272 Minn. at 275 n. 13, 137 N.W.2d at 321 n. 13 (upholding temporary injunction despite finding that plaintiff may have serious obstacles to overcome before establishing its right to what in effect amounts to specific performance of the franchise agreement).

The district court found that there was a substantial likelihood that the commission would prevail on the merits because (1) the Twins exercised their option to lease the Metrodome for the 2002 baseball season, obligating themselves to play 2002 home games at the Metrodome; (2) the schedule has been published and the Twins are selling season tickets for the games; (3) for contraction of the Twins to occur, the owner must voluntarily agree to sell the team; and (4) elimination of the Twins franchise would result in a breach of the use agreement. Citing the use agreement, the court determined that the commission was entitled to specific performance requiring the Twins to play its home games at [the Metrodome]. The court found that monetary relief would not be adequate to compensate the commission for the breach, citing the public interest and the intent that citizens would benefit in substantial nonmonetary ways from the use agreement, as reflected in the agreement that the Twins will not be required to pay ordinary rent.

a. Whether the use agreement explicitly authorizes specific performance as a remedy for breach

The Twins first challenge the district courts determination that the use agreement entitles the commission to specific performance requiring the Twins to play [their] home games at the [Metro-dome]. The section at issue provides:

18.3 If the Team ceases to play its games at the Stadium as required by section 2.3 for any reason other than the reasons in section 15 [the force majeure clause] or if the Team ceases to play major league professional baseball games for any reason, the Team shall have breached this agreement and will be liable for such remedies as may be available to the commission at law or in equity, including, but not limited to in-junctive relief and orders for specific performance requiring the Team to play its Home Games at the Stadium during the Term hereof

(Emphasis added.) We agree with the parties that the plain language of the use agreement authorizes any remedy allowed by law or equity, including but not limited to injunctive relief and specific performance in the event of a breach.

b. Whether the commission has established a substantial likelihood of success on the merits

In its complaint, the commission sought a declaratory judgment that elimination of the Twins franchise by contraction and the Twins acceptance of consideration for such action would violate the 1998 use agreement. The commission sought permanent injunctive relief to prevent the Twins from violating the terms of the 1998 use agreement.

The declaratory-judgment act allows a party to seek a determination as to the construction of a contract and to obtain a declaration of rights, status, or other legal relations under the contract before a breach occurs. Minn.Stat. 555.02, .03 (2000). The policy behind the declaratory judgment act is to allow parties to determine certain rights and liabilities pertaining to an actual controversy before it leads to repudiation of obligations, invasion of rights, and the commission of wrongs. Culligan Soft Water Serv. v. Culligan Intl. Co., 288 N.W.2d 213, 215-16 (Minn.1979).

Appellants argue that specific performance is not available to enforce a commercial lease. See Stronge Warner Co. v. H. Choate Co., 149 Minn. 30, 34-35, 182 N.W. 712, 713-14 (1921) (holding that specific performance of lease terminated by the landlord was unwarranted where third party was already established in the leased premises, and parties relationship required parties to operate in mutual and cooperative manner, such that compelling them to continue after the open rupture would be embarrassing and financially detrimental to both). They acknowledge that a few courts have authorized injunctions ordering stores to remain open pursuant to continuous operation provisions in leases, but assert that the decisions denying in-junctive relief reflect the modern trend and majority rule. 8600 Assocs., Ltd. v. Wearguard Corp., 737 F.Supp. 44, 46 (E.D.Mich.1990). They point out that even when one federal district court issued a temporary injunction requiring an anchor store in a mall to specifically perform under a lease, it required the mall owner to post a $1 million bond, and the injunction was then stayed pending disposition of the appeal. Mass. Mut. Life Ins. Co. v. Associated Dry Goods Corp., 1992 WL 100397 (7th Cir.1992) (staying injunction pending appeal); Mass. Mut. Life Ins. Co. v. Associated Dry Goods Corp., 786 F.Supp. 1403, 1431 (N.D.Ind.1992) (ordering injunction and bond).

We are considering a use agreement, which may not be a typical commercial lease between a landlord and tenant. Further, the contract between the commission and the Twins does not foreclose specific performance as a remedy, but instead actually identifies it as a potential remedy, if otherwise warranted under law and equity.

A party does not have an automatic right to specific performance as a remedy for breach of a contract. Dakota County HRA v. Blackwell, 602 N.W.2d 243, 244 (Minn.1999). Instead, the district court must balance the equities of the case and determine whether the equitable remedy of specific performance is appropriate. Id. The supreme court has ordered specific performance in contractual settings in which damages were not readily measurable. See, e.g., Blankenfeld v. Smith, 290 Minn. 475, 479, 188 N.W.2d 872, 874 (1971) (upholding order for specific performance requiring sale of corporate stock).

Thus, considering the caselaw, the equities, the unique aspects of this case, and the recognition in the contract that specific performance may be a remedy, the district court did not abuse its discretion in concluding that the commission may prevail on the merits.

Appellants next contend that, although the commission is no more than a commercial landlord, the district court found that the Minnesota Twins owe a duty to perform that, in effect, creates a personal-services contract. According to appellants, such agreements are not subject to specific performance. See, e.g., Minneapolis Mill Co. v. Bassett, 31 Minn. 390, 392, 18 N.W. 100, 100 (1884) (specific performance unavailable for breach of personal-services contract because usually there is an ample remedy in damages, and [because] enforcement of the decree would involve the court in superintendence of the work, a duty which courts are loath to assume). While personal-services contracts generally are not enforceable, they may be enforceable under genuinely extraordinary circumstances. See Miller, 317 N.W.2d at 713 (holding, however, that employees were not entitled to temporary injunction preventing employment termination because injuries they sustained were common to most discharged employees). In any event, as we have discussed above, this is a use agreement and we decline to adopt appellants argument.

The next question is whether the commission is likely to prevail on the merits on its tortious-interference-with-contract claim against Major League Baseball. Tortious interference with a contract requires a showing of (1) a contract; (2) the alleged tortfeasors knowledge of a contract; and (3) his or her intentional procurement of a breach; (4) without justification; (5) resulting in damages. Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 900 (Minn.1982).

Major League Baseball contends that an award of damages under the contract is the only remedy and that injunc-tive relief is unavailable as a matter of law. See Swaney v. Crawley, 133 Minn. 57, 60, 157 N.W. 910, 911 (1916). Further, it contends that no remedy is available where no breach has yet occurred. But the Minnesota Supreme Court has explicitly stated that once a party to a contract has established that this tort applies, the courts may hold that third party liable for resulting damages as well as grant necessary injunc-tive relief. Kallok v. Medtronic, Inc., 573 N.W.2d 356, 361 (Minn.1998).

Finally, Major League Baseball contends that the district court injunction impermissibly regulates interstate commerce in violation of the Commerce Clause. A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (quotation omitted). Likewise, an appellant generally may not raise a constitutional issue for the first time on appeal. In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn.1981).

Major League Baseball argued to the district court in a supplemental memorandum that application of the law governing franchises in Minnesota, Minn.Stat. ch. 80C (2000), would violate the limits placed on state authority by the Commerce Clause of the United States Constitution. On appeal, they make the much broader argument that issuance of the injunction violates the Commerce Clause. Because Major League Baseball did not raise this broad issue below, and the district court did not consider it independently, we decline to address it.

I. Consideration of public policy

The district court found that a temporary injunction would further public policy because local professional sports franchises are an important community asset and should fulfill their contractual obligations. Appellants contend that the pub-lie policy implicated is one that permits private businesses to manage their own affairs and that there is no corresponding public policy favoring a government mandate for continued operation of a private enterprise. But the Twins entered into the agreement to use the Metrodome, which was publicly built, financed, and operated for the benefit of the public. See Minn.Stat. 473.552 (2000); Lifteau, 270 N.W.2d at 754-55. Consequently, this factor weighs in favor of granting the injunction.

5. Administrative burdens involved in judicial supervision and enforcement of temporary injunction

The district court determined that its decision would impose minimal administrative burdens. Appellants contend, however, that Minnesota courts have shown significant hesitance to take over management of a business under an injunction, because of requirements that involved parties maintain a cooperative relationship. See Pac. Equip. & Irrigation, Inc. v. Toro, 519 N.W.2d 911, 916 (Minn.App.1994), review denied (Minn. Sept. 16, 1994). Certainly, ordering the parties to maintain a cooperative relationship may impose a continuing duty of supervision on the district court. Id. And courts look with disfavor on specific performance of leases because of the burden of continuing judicial supervision that may be required. Hamilton, 959 F.Supp. at 439.

The commission acknowledges that if the franchise had already left town, fashioning an injunction would require a massive restructuring of the status quo that could entail administrative and supervisory costs significant enough to dissuade a court from issuing a temporary injunction. But here, the status quo is preserved by the injunction, which merely continues a close, long-term relationship. See Lano, 399 N.W.2d at 700 (affirming a temporary injunction requiring continuation of dealer contract in context of 26-year dealership relationship, where district court expressed willingness to address administrative problems). The district court here determined that granting the temporary injunction would not impose significant administrative burdens, and the existing record supports that finding.

Motion for judicial notice

Finally, we address the commissions request that this court take judicial notice of supplemental facts contained in its appendix. The record on appeal comprises the papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any. Minn. R. Civ.App. P. 110.01. Except in cases involving un-controverted documentary evidence that would support an affirmance, an appellate court may not base its decision on matters outside the record on appeal and may not consider matters not received in evidence. In re Real Property Taxes for 1980 Assessment, 335 N.W.2d 717, 718 n. 3 (Minn.1983). Because many, if not most, of the supplemental facts that the commission asks us to notice judicially are either disputed or controversial or were not presented to the district court in the first instance, we decline to consider them.

Conclusion

We are faced with a very limited standard of review and may reverse the order granting a temporary injunction only if we conclude, after reviewing the order in light of the Dahlberg factors, that the district court abused its discretion. We are not reviewing a final decision on the merits; the temporary injunction is intended to maintain the status quo pending trial.

The district courts findings are sufficient to allow us to conduct meaningful review of the temporary injunction. Based on the irreparable harm that will result if the commission does not receive the benefit of its bargain — which will occur if the Twins breach their promise to play their 2002 home games at the Metrodome — as well as the interests in maintaining the status quo pending resolution on the merits, the possibility of success on the merits, the public policy concerns, and the minimal administrative burdens on the district court, we hold that appellants failed to show that the district court abused its discretion in issuing the temporary injunction.

DECISION

The district court did not abuse its discretion in issuing a temporary injunction in favor of the Metropolitan Sports Facilities Commission pending trial on the merits.

Affirmed.


author: PER CURIAM.

text:
    2002 ND 6
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Glenn K. SWANSON, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Glenn K. Swanson, Respondent.
    Nos. 20010160, 20010161.
    Supreme Court of North Dakota.
    Jan. 15, 2002.
    Paul W. Jacobson, Disciplinary Counsel, Bismarck, N.D., for petitioner.
    Richard P. Olson of Olson Burns Lee, Minot, N.D., for respondent.
   PER CURIAM.

[¶ 1] The disciplinary counsel objects to the Disciplinary Board’s recommendation that Glenn K. Swanson receive a three-year suspension, with credit for the time he has been suspended pending this proceeding. We reject the recommendation of the Disciplinary Board and order Glenn K. Swanson be disbarred.

I

[¶ 2] Glenn K. Swanson was admitted to practice law in North Dakota in 1949. Swanson was retained to probate the Edwin 0. Hoffas estate in 1981. Swanson was paid $75,000 for attorneys fees in 1986, when the work had not been completed. The personal representative was paid a fee of $30,000. In July 1986, at a hearing on the Final Report and Accounting, Judge Benson ordered Swanson to submit time sheets to the court to show work related to the estate. Swanson failed to submit the time sheets. Swanson was ordered to refund $31,310 to the estate, and the personal representative was ordered to refund $15,000. In December 1986, the court ordered removal of the personal representative, and another attorney was appointed to protect the heirs’ interests. Judge Benson held Swanson and the personal representative in contempt for violating the court order requiring them to furnish statements of their fees.

[¶ 3] Swanson was appointed executor of the Wilmer Anderson estate in May 1981. The will left the entire estate to Anderson’s sister, Agnes P. Bong. Swanson was removed as personal representative in July 1994, at which time the Anderson estate had been open for thirteen and one-half years. Swanson had failed to prepare an accounting and more than $20,000 remained in the estate account.

[¶ 4] On June 26, 2001, the Disciplinary Board Hearing Panel found Swanson’s conduct involving the Hoffas estate violated the following rules under the Code of Professional Responsibility: DR 2-106(A), which provides a lawyer may not enter an agreement for, charge, or collect an illegal or clearly excessive fee; DR 6-101(A), which provides a lawyer shall not neglect a legal matter entrusted to him; and N.D.C.C. § 27-14-02(2), which provides an attorney shall not willfully disobey or violate a court order requiring him to do or refrain from doing an act connected with or in the course of his professional practice. In addition, the hearing panel found Swanson’s handling of the Anderson estate violated DR 6 — 101(A)(3), which provides a lawyer shall not neglect a legal matter entrusted to him, and Rule 1.3, N.D.R. Prof. Conduct, which provides a lawyer shall act with reasonable diligence and promptness in representing a client. The hearing panel found the appropriate discipline for Swanson’s misconduct was aggravated by his prior disciplinary history involving conduct similar to his conduct in these matters. Swanson’s prior disciplinary history included private reprimands in May 1979 and in December 1982. Swanson was suspended from the practice of law for forty-five days in August 1983, and received a ninety-day suspension in June 1995.

[¶ 5] In March 1998, the Disciplinary Board filed its Report with Conditional Admission for discipline of Swanson, requesting that Swanson be transferred to disability status. This Court rejected the Disciplinary Board’s report, ordering Swanson be suspended pending the disposition of the outcome of this case. See Disciplinary Bd. v. Swanson, 1998 ND 60, ¶¶ 12, 13, 575 N.W.2d 218. The hearing panel recommended Swanson be suspended from the practice of law for five years and that he pay the cost of the proceedings. The Disciplinary Board adopted the hearing panel’s findings and conclusions, but recommended that Swanson receive a three-year suspension, with credit for time served while suspended, and that he pay $4,029.70 in costs and expenses. The disciplinary counsel objected to the Board’s recommendation and asserted that Swanson should be disbarred. We agree.

II

[¶ 6] We review disciplinary proceedings de novo under a clear and convincing standard of proof. Disciplinary Bd. v. Nassif, 547 N.W.2d 541, 542 (N.D.1996). De novo review generally means we give due weight to the hearing panel’s findings and recommendations, but we do not act as a mere rubber stamp. Disciplinary Bd. v. Keller, 2000 ND 221, ¶ 8, 620 N.W.2d 156. Each attorney discipline case must be reviewed on its own facts to determine what discipline is warranted. Disciplinary Bd. v. Leier, 1997 ND 79, ¶ 3, 562 N.W.2d 741.

III

[¶ 7] There is no dispute over whether Swanson’s actions in handling the Hoffas and Anderson estates constituted misconduct. The Disciplinary Board adopted the hearing panel’s conclusions that Swanson’s conduct violated both the Code of Professional Responsibility and the Rules of Professional Conduct. The hearing panel found Swanson’s conduct involving the Hoffas estate violated DR 2-106(A), DR 6 — 101(A), and N.D.C.C. § 27-14-02(2). Swanson’s conduct involving the Anderson estate was found to have violated DR 6 — 101(A)(3) and Rule 1.3, N.D.R. Prof. Conduct. Swanson does not challenge these findings. We conclude there was clear and convincing evidence in the record to support them.

[¶ 8] Disciplinary counsel argues disbarment is the appropriate sanction based on Swanson’s misconduct. Swanson contends this Court should adopt the Disciplinary Board’s recommendation of a three-year suspension with credit for time suspended. In determining the appropriate sanctions for violations of the Rules of Professional Conduct, this Court is guided by the North Dakota Standards for Imposing Lawyer Sanctions. Disciplinary Bd. v. Landon, 1999 ND 202, ¶ 21, 600 N.W.2d 856. The Standards for Imposing Lawyer Sanctions provide the following factors for this Court to consider: (1) the ethical duty violated by the lawyer; (2) the lawyer’s mental state; (3) the extent of actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of aggravating or mitigating factors. N.D. Stds. Imposing Lawyer Sanctions 3.0.

[¶ 9] The disciplinary counsel suggests several of the Standards for Imposing Lawyer Sanctions are germane to this case. Rule 4.4, N.D. Stds. Imposing Lawyer Sanctions, provides the sanctions that are available when a lawyer fails to act with reasonable diligence and promptness in representing a client. Disbarment is appropriate when “a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.” N.D. Stds. Imposing Lawyer Sanctions 4.41(c). Disbarment is also appropriate when a lawyer “has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.” N.D. Stds. Imposing Lawyer Sanctions 8.1(b).

[¶ 10] Swanson argues disbarment is unwarranted because there was no intent to harm his clients or act with selfish motive, and his clients did not suffer any serious injury. Swanson acknowledges his misconduct in handling the estates, but suggests he is only guilty of procrastination. “Perhaps no professional shortcoming is more widely resented than procrastination.” In re Disciplinary Action Against Seaworth, 1999 ND 229, ¶ 25, 603 N.W.2d 176 (citing N.D.R. Prof. Conduct 1.3 cmt.). The comment to Rule 1.3 provides “[a] client’s interest often can be adversely affected by the passage of time or the change of conditions,” thus “a lawyer should carry through to conclusion all matters undertaken for a client.” Id.

[¶ 11] In Disciplinary Bd. v. LaQua, 548 N.W.2d 372 (N.D.1996), we found an attorney’s lack of diligence and failure to close an estate for nineteen years was a grave misconduct that caused serious harm to the beneficiary. This Court determined disbarment was an appropriate sanction for the type of misconduct committed by the attorney, but instead ordered suspension based on the mitigating factors in the case. Id. at 377. Swanson’s misconduct in handling the Hoffas and Anderson estates was similar to that of the attorney in LaQua. We believe Swanson’s misconduct in handling the two estates caused serious injury and is the type of conduct that warrants disbarment. See id.

[¶ 12] The disciplinary counsel asserts that a number of aggravating- factors exist under Rule 9.22, N.D. Stds. Imposing Lawyer Sanctions, to support Swanson’s disbarment. In a disciplinary proceeding, aggravating circumstances are defined as “any considerations or factors that' may justify an increase in the degree of discipline to be imposed.” N.D. Stds. Imposing Lawyer Sanctions 9.21. The following relevant factors may be considered in aggravation: prior disciplinary offenses, a pattern of misconduct, multiple offenses, vulnerability of the victims, and substantial experience in the practice of law. N.D. Stds. Imposing Lawyer Sanctions 9.22 Swanson has engaged in a pattern of neglect with respect to client matters. See In re Discipline of Swanson, 337 N.W.2d 434 (N.D.1983). The hearing panel found Swanson has been reprimanded twice and suspended twice for similar misconduct. Prior disciplinary actions against an attorney are an appropriate consideration in establishing a pattern of misconduct. Disciplinary Bd. v. Howe, 2001 ND 86, ¶ 29, 626 N.W.2d 650. When there exists a pattern of repeated conduct violations, disbarment is justified and necessary. Leier, 1997 ND 79, ¶ 7, 562 N.W.2d 741. We conclude the aggravating factors in this case support Swanson’s disbarment.

IV

[¶ 13] Having considered all the factors presented in this case, we conclude disbarment is the appropriate sanction. Accordingly, we order Glenn K. Swanson be disbarred. Costs and expenses of the disciplinary proceedings are an authorized sanction, and unless otherwise ordered, are to be assessed against the disciplined lawyer. In re Disciplinary Action Against Rau, 533 N.W.2d 691, 695 (N.D.1995). We further order Glenn K. Swanson to pay the secretary of the Disciplinary Board the costs and expenses of these disciplinary proceedings in the amount of $4,029.70, as documented in disciplinary counsel’s affidavit of March 1, 2001.

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

      . Because Swanson's conduct in handling the Hoffas and Anderson estates began in 1981, events in this case are governed under both the North Dakota Code of Professional Responsibility effective, from January 1, 1977, to December 31, 1987, and the North Dakota Rules of Professional Conduct, effective January 1, 1988.

      . Under N.D.R. Lawyer Discipl. 1.3(a)(2), a suspension by this Court may not exceed three years.