author: GILDEA, Justice.

text:
    Brian Keith PIPPITT, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A06-2106.
    Supreme Court of Minnesota.
    Aug. 16, 2007.

      Robert A. O’Malley, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, John J. Sausen, Assistant County Attorney, Brainerd, MN, for Respondents.
   OPINION

GILDEA, Justice.

This case comes to us on appeal from the postconviction court’s denial of petitioner Brian Keith Pippitt’s petition for postconviction relief. Pippitt was convicted of the first-degree premeditated murder of Evelyn Malin and first-degree murder while committing burglary. For these crimes, Pippitt received two concurrent life sentences. On direct appeal we vacated the conviction for first-degree murder while committing burglary and affirmed the conviction for first-degree premeditated murder. State v. Pippitt, 645 N.W.2d 87, 96 (Minn.2002). We held, among other things, that the evidence was sufficient to convict Pippitt of first-degree premeditated murder. Id. at 94.

Approximately three years after we decided his direct appeal, Pippitt petitioned for postconviction relief. After an eviden-tiary hearing, the postconviction court denied the petition. Pippitt now appeals to this court claiming, that the postconviction court erred when it found that he was not entitled to a new trial based on new evidence, prosecutorial misconduct and ineffective assistance of trial counsel. We affirm.

The facts underlying the crime and the evidence against Pippitt are set forth in our opinion in Pippitt’s direct appeal. See Pippitt, 645 N.W.2d at 89-92. We discuss in this opinion only those facts and evidence relevant to the issues Pippitt raises in this appeal.

Pippitt’s new evidence claim involves the trial testimony of Raymond Misquadace (Raymond), Peter Arnoldi and Merle Ma-lin. We begin with a discussion of this testimony and the evidence received at the postconviction hearing related to this testimony.

Much of the evidence of Pippitt’s involvement in the crime came from the testimony of Raymond, who was an accomplice. Raymond testified that he, Pippitt and three other men stopped at the Dollar Lake Store on February 24, 1998, at 9 or 10 p.m. The victim, Evelyn Malin, owned and operated the Dollar Lake Store, which was attached to her home. According to Raymond, the store was already closed when they arrived, but Pippitt and two of the other men decided to enter the store to get beer. Pippitt walked to the store’s front door while the other two men walked around the store. Raymond heard a thump or a crash and then noticed that the front door was open, Pippitt was no longer standing at the front door and shadows were moving inside the store. A short while later, Raymond saw the three men return to the car where he was waiting, but he did not see from which direction they came. The men were carrying cigarettes and beer and one stated that he had choked Malin while Pippitt hit her.

Pippitt argued to the postconviction court that Raymond had recanted. But Pippitt did not present testimony from Raymond to the postconviction court. Instead, Pippitt supported this argument through statements from Jeri Severson. Severson, who had been the crime victims’ advocate for the Aitkin County Sheriffs Department at the time of Pippitt’s arrest and trial, testified and swore by affidavit that in April 2005, Raymond told her that he had been pushed into a false confession by law enforcement and that “he told them what he thought they wanted to hear because he thought it would be better for him, but instead it ruined his life.” Sever-son later attempted to contact Raymond before the hearing, but was not able to do so.

Also relevant to this appeal is the testimony from Peter Arnoldi, who corroborated Raymond’s testimony at trial. Arnoldi had been in custody with Pippitt and he testified that Pippitt confessed to the murder. As we noted on direct appeal, “Ar-noldi’s credibility was seriously called into question” during trial. Pippitt, 645 N.W.2d at 94. In the postconviction proceeding, Pippitt challenged Arnoldi’s testimony through an affidavit from Craig Li-cari. In his affidavit, Licari claimed that he had met Pippitt and Arnoldi at the state hospital in St. Peter and that Arnoldi had told him that Pippitt was charged with murder but that he was innocent and that Pippitt’s relatives had implicated him in the hope of receiving reward money. Li-cari also stated, “Mr. Arnoldi had told me consistently in May of 1999 that his conversations with Mr. Pippitt, along with his reading of Mr. Pippitt’s case materials, had led him to a firm belief that Mr. Pippitt was innocent. And he never told me that Mr. Pippitt had also confessed to the crime.”

Pippitt’s new evidence claim also involves the testimony of Merle Malin, the victim’s son. As indicated above, Raymond suggested that Pippitt went into the Dollar Lake Store through the front door, while the other two men went around to the back. At trial, Malin testified that because the front door sagged, his mother was not physically capable of lifting it sufficiently to engage the dead bolt. Malin’s testimony thus suggested that the front door was not dead bolted and could have been used to enter the store. The state offered this testimony to corroborate Raymond’s testimony regarding Pippitt’s point of entry.

At the postconviction hearing, which was held eight years after the murder and five years after the trial, Merle Malin testified that his mother always locked the front door and that he did not recall whether the door had a dead bolt. After seeing a picture of the front door, Merle Malin testified that the door did have a dead bolt, and that his mother could lock it. Malin said that he did not recall his trial testimony regarding the dead bolt issue, and stated that because he had not been to the store for four or five months before the murder, he did not know if the dead bolt worked at the time of the murder.

In addition to his new evidence claim involving the testimony of Raymond, Ar-noldi, and Malin, Pippitt also raises an issue in this appeal relating to the statements made and testimony provided by Michael Misquadace (Michael), an alibi witness the defense offered at trial. Michael testified that he and Pippitt were at the casino in Mille Lacs until sometime in the evening, then went to the home of Michael’s fiancée before returning to Pip-pitt’s mother’s home where they stayed for the remainder of the evening. Michael’s fiancée also testified that Pippitt had accompanied Michael to her home the evening of the 24th. Her sister and her sister’s fiancé testified that Pippitt had stopped by the home with Michael some evening in late February.

The police interviewed Pippitt twice before his arrest and once after he was in custody, but Pippitt did not tell the police during these interviews that he was with Michael on the night of the murder. At trial, the only explanation that Pippitt gave for failing to inform the police of his alibi was, “Pm not going to give any testimony to a law enforcement officer that I don’t know at the time is true.” At the postcon-viction hearing, Pippitt explained that he was not aware that February 24, 1998, was the day that he had gone to the casino with Michael until his mother visited him in jail and reminded him. He stated that he was first questioned about the murder 11 or 12 months after it had happened and that he had no reason to recollect what he was doing that long ago.

As indicated above, Pippitt contends the postconviction court erred when it denied his petition. On review of' a postconviction decision, we determine whether there is sufficient evidence to support the postconviction court’s findings. White v. State, 711 N.W.2d 106, 109 (Minn. 2006). The postconviction court’s decision will not be overturned unless the court has abused its discretion. Id. A postconviction court’s legal determinations are reviewed de novo, but its factual findings will not be set aside unless they are clearly erroneous. Schleicher v. State, 718 N.W.2d 440, 445 (Minn.2006); Doppler v. State, 660 N.W.2d 797, 801 (Minn.2003). Finally, Pippitt has the burden of showing that he is entitled to relief. See Wilson v. State, 726 N.W.2d 103, 106 (Minn.2007).

I.

We first address whether the postcon-vietion court erred when it concluded that Pippitt was not entitled to a new trial based on newly discovered evidence. Pip-pitt argues that witness recantations provide the new evidence that entitles him to a new trial. Specifically, he argues that Severson’s testimony leads to the conclusion that Raymond’s testimony was false, that Lieari’s affidavit shows that Arnoldi’s testimony was false, and that Malin’s testimony at the postconviction hearing constitutes a recantation of his trial testimony. The postconviction court concluded that Pippitt’s new evidence was “doubtful, impeaching or cumulative,” and therefore did not entitle him to a new trial.

When considering whether a defendant is entitled to a new trial based on newly discovered evidence, we consider four factors. See Race v. State, 417 N.W.2d 264, 266 (Minn.1987). The defendant must show that (1) the evidence was not known to him or his counsel at the time of trial; (2) the failure to learn of the new evidence was not because of a lack of diligence; (3) “the evidence is material (or as we have sometimes said, is not impeaching, cumulative or doubtful)”; and (4) the evidence will probably produce an acquittal at a retrial or a more favorable result for the defendant. Id.; see also Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997).

But when the newly discovered evidence is in the nature of a recantation by a witness who testified at trial, we use the three-prong Larrison test. Wilson, 726 N.W.2d at 106 (citing Larrison test and distinguishing it from the four-prong newly discovered evidence test). Under the Larrison test, we will grant a new trial only if the petitioner meets, by a fair preponderance of the evidence, the following three requirements:

(1) the court must be reasonably well-satisfied that the testimony in question was false; (2) [the petitioner must show that] without that testimony the jury might have reached a different conclusion; and (3) the petitioner [must show that he or she] was taken by surprise at trial or did not know of the falsity until after trial.

Opsahl v. State (Opsahl I), 677 N.W.2d 414, 423 (Minn.2004). The first two prongs of the Larrison test are compulsory, but the third prong is not. See id.

We turn now to an analysis of whether the new evidence Pippitt cites (the testimony from Severson, the affidavit from Li-cari, and the testimony from Malin) entitles him to a new trial.

Severson’s Postconviction Testimony

We first consider whether Severson’s testimony constitutes a recantation of Raymond’s testimony. The postconviction court ruled that Severson’s testimony was hearsay and therefore inadmissible. We do not reach the merits of the court’s evidentiary ruling because we conclude that even if the postconviction court had considered Severson’s testimony, her account of Raymond’s purported recantation does not meet the first prong of the Larri-son test.

We generally look “with disfavor on motions for a new trial founded on alleged recantations * * State v. Hill, 312 Minn. 514, 523, 253 N.W.2d 378, 384 (1977). Thus, the first prong of the Larrison test is not met by “a simple statement contradicting earlier testimony.” Opsahl v. State (Opsahl II), 710 N.W.2d 776, 782 (Minn.2006). It is likewise not sufficient under Larrison to determine that “a witness is generally unreliable.” Id. Instead, we have said that “the court must be ‘reasonably certain that the recantation is genuine ’ ” before the first prong is met. Id. (quoting State v. Walker, 358 N.W.2d 660, 661 (Minn.1984)).

The statements Severson attributed to Raymond do not constitute a genuine recantation. Raymond vaguely claimed that he was pushed into testifying falsely, without explaining which parts of his testimony were false or precisely how he was so coerced. Importantly, Raymond did not tell Severson that he did not commit the crime or that Pippitt did not commit the crime. Severson’s second-hand account of Raymond’s statements may cast doubt on Raymond’s reliability, but it does not satisfy the rigorous genuine recantation standard. Accordingly, we hold that the postconviction court did not abuse its discretion in finding that Pippitt was not entitled to a new trial based on Severson’s testimony.

Licari’s Postconviction Affidavit

Pippitt next argues that he is entitled to a new trial because of Licari’s statements. While the Larrison test is applied to witnesses who recant trial testimony, we have also indicated that Larri-son applies more generally, such as “when a court reviews an allegation that false testimony was given at trial.” Dukes v. State, 621 N.W.2d 246, 257 (Minn.2001). Licari’s affidavit, however, does not lend itself to analysis under Larrison. The second prong of Larrison requires consideration of whether the jury may have reached a different conclusion without the recanted testimony. See State v. Turnage, 729 N.W.2d 593, 598 (Minn.2007) (discussing second prong). Unlike a witness recantation, Licari’s affidavit does not nullify Arnoldi’s trial testimony; it simply provides some evidence that, if admissible, could be used to impeach Arnoldi’s trial testimony. An analysis that considers the jury verdict in the absence of Arnoldi’s testimony is therefore inappropriate.

Consequently, we apply the Race four-prong test to Licari’s affidavit. We assume that the evidence presented in Li-cari’s affidavit meets the first two prongs of the Race test. But the third prong requires that the evidence be material, and not merely impeaching. Race, 417 N.W.2d at 266. We will not grant a new trial on the basis of evidence that is merely impeaching. See, e.g., Dale v. State, 535 N.W.2d 619, 622 (Minn.1995). Because Li-cari has no direct knowledge of anything relating to Malin’s murder or Pippitt’s involvement in it, the testimony in Licari’s affidavit would not be admissible for any purpose other than Arnoldi’s impeachment. Licari’s statement provides an additional basis to challenge the credibility of Arnoldi’s trial testimony. But being merely impeaching, Licari’s statement does not meet the third prong of Race. See Dale, 535 N.W.2d at 622 (concluding that new evidence that “does no more than impeach” the complainant did not entitle defendant to a new trial). Accordingly, we hold that the postconviction court did not abuse its discretion in concluding that Li-cari’s affidavit did not entitle Pippitt to a new trial.

Merle Malin’s Postconviction Testimony

Pippitt’s final piece of new evidence involves the testimony of Merle Malin, the victim’s son. Pippitt does not argue that Malin’s testimony at the postconviction hearing is new evidence under Race. He argues only that Malin’s postconviction testimony constitutes a recantation of Ma-lin’s trial testimony regarding the victim’s ability to dead bolt the front door. We disagree.

Malin did not state at the postconviction hearing that his trial testimony was false. Indeed he gave no testimony at the hearing about the merits of his statements at trial that his mother was not physically capable of lifting the door into place so the dead bolt could engage. Rather, he initially stated at the hearing that he could not remember whether the door even had a dead bolt. When shown a picture of the door, he reported his memory being refreshed, and confirmed that the door had a dead bolt and that his mother could lock it. While that portion of Malin’s postconviction testimony conflicts with his trial testimony, the conflict does not necessarily indicate that his trial testimony was false for purposes of the Larrison test. See Opsahl II, 710 N.W.2d at 782 (noting that “a simple statement contradicting earlier testimony” does not satisfy the first prong of Larrison).

Malin’s trial testimony was closer in time to, and provided much more detail regarding, the facts about which Malin testified. When we compare the level of detail Malin provided about the front door during his trial testimony with his inability to remember, at the postconviction hearing, whether the door even had a dead bolt, we cannot be reasonably “well-satisfied” that his trial testimony was false, as required by the Larrison test. Id. We therefore hold that the postconviction court did not abuse its discretion in finding that Pippitt was not entitled to a new trial based on Malin’s testimony.

Because Pippitt has not met his burden of establishing, by a fair preponderance of the evidence, facts that would warrant a reopening of the case, we hold that the postconviction court did not err in denying relief based on newly discovered evidence.

II.

We next consider Pippitt’s claim that the prosecutor committed misconduct by arguing in closing that Pippitt did not have an alibi prior to May 1999 and that his alibi at trial was fabricated. Specifically, Pippitt claims that Michael’s statement to the police, which was given before May 1999, shows that Pippitt had an alibi and therefore the prosecutor engaged in improper argument by suggesting otherwise. The postconviction court concluded that Pippitt’s prosecutorial misconduct claim was Knaffla-barred because he failed to raise it on direct appeal. We agree.

We have consistently recognized that when a direct appeal has been taken, all matters raised and all matters that could have been raised in the appeal “will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). When Pippitt appealed his conviction to this court, he knew what the state had asserted in its closing argument. We therefore hold that the postcon-viction court did not abuse its discretion in finding that Pippitt’s prosecutorial misconduct claim was Knaffla-barred.

111.

Finally, Pippitt argues that he was denied effective assistance at trial because his counsel failed to call his mother and a former cell mate as witnesses, and failed to object to the prosecutor’s claim in closing argument that Pippitt had no alibi prior to May 1999. We have said that “an ineffective assistance of trial counsel claim is generally Knaffla-barred in a postconviction petition if the claim can be decided on the basis of the trial record and the briefs.” White, 711 N.W.2d at 110. But, under the second exception to the Knaffla rule, an ineffective assistance of counsel claim, even if “known but not raised at the time of direct appeal, may be brought in a postconviction petition if the claim cannot be ‘evaluated by an appellate court on direct appeal based on the briefs and trial court transcript, without any additional factfinding.’ ” Carney v. State, 692 N.W.2d 888, 891 (Minn.2005) (quoting Robinson v. State, 567 N.W.2d 491, 495 (Minn.1997)).

In order to prevail on a claim of ineffective assistance of counsel, Pippitt must show “that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s * * * error[ ], the result of the [trial] would have been different.’ ” Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We have said that decisions about which witnesses to call and what objections to make are trial strategy decisions within the proper discretion of trial counsel. State v. Vick, 632 N.W.2d 676, 689 (Minn.2001); State v. Jones, 392 N.W.2d 224, 236 (Minn.1986). Accordingly, our review of trial counsel’s performance does not include reviewing attacks on trial strategy. Opsahl I, 677 N.W.2d at 421.

Pippitt has not shown that his counsel’s decisions regarding witness selection were objectively unreasonable. The evidence that Pippitt’s mother could have provided, had she testified at trial, included evidence of an alibi, which was already presented by at least four other witnesses, and evidence which conflicted with certain details that Raymond first testified to, but then admitted not remembering exactly. Pippitt also claims that his former cell mate could have provided evidence of efforts to coerce other inmates to testify against Pippitt. At the postcon-viction hearing, Pippitt’s trial attorney testified that he attempted to get more information about the allegation, but was unable to substantiate anything beyond innuendo. Based on the above, we conclude that the decision of Pippitt’s trial counsel not to call Pippitt’s mother and former cell mate did not fall below an objective standard of reasonableness.

Pippitt also argues that his trial counsel was ineffective for failing to object to the prosecutor’s statements regarding Pip-pitt’s lack of an alibi. Pippitt relies on the statement that Michael gave to police the week after the murder to support this claim. It is unclear, however, whether Michael’s statement was ever made part of the record. Despite references to Michael’s statement in both the posteonviction petition as well as the transcript of the postconviction proceeding, Michael’s statement is not contained in the district court file. If Michael’s statement was not a part of the record, then Pippitt’s claim that his counsel was ineffective for failing to object to the prosecutor’s assertion that he lacked an alibi prior to May 1999 is without merit. Without Michael’s statement, there is nothing in the record indicating that Pip-pitt had any sort of alibi prior to May 1999. Without something in the record that calls into question the truthfulness of the prosecutor’s statements, we have no basis for concluding that the prosecutor’s statements constituted misconduct.

And even if Michael’s statement was in fact part of the record, Pippitt’s claim fails on the merits. In the statement taken the week after the murder, Michael told police that on the day of the murder, he and Pippitt had gone to the casino in Mille Lacs, had stopped at a liquor store, and had returned home around 7:30 or 8 p.m. Michael’s statement did not account for Pippitt’s whereabouts for any time after 8 p.m. on the day of the murder. The statement therefore does not constitute an alibi for the time period of Malm’s murder, which indisputably occurred sometime after 9 p.m. In addition, Michael’s statement to the police differed from his trial testimony in which he claimed that he and Pippitt had stopped at Michael’s fiancée’s home after the casino and then had returned to Pippitt’s mother’s home where they remained the rest of the evening. If Pippitt’s trial counsel had objected to the prosecutor’s attacks on Pippitt’s alibi based on Michael’s statement to the police, he would simply have drawn attention to the fact that the statement was inconsistent with Michael’s trial testimony. This could only have hurt Pip-pitt because Michael was Pippitt’s main alibi witness at trial. Counsel’s failure to object under these circumstances therefore did not fall below an objective standard of reasonableness.

We hold that Pippitt has not met his burden of showing that he is entitled to postconviction relief based on ineffective assistance of counsel.

We affirm.

      . Pippitt raises a number of additional claims in his pro se brief. We have reviewed these claims and conclude that they have no merit.

      . The state’s theory was that the men gained entry through a basement window.

      . Malin testified that he saw his mother lock up "several times” and that she did not utilize the deadbolt on the front door because "she couldn’t.” Malin recounted to the jury a specific instance from the fall before the February 1998 murder when he was with his mother at the store. He dead bolted the front door at closing time. But the next morning he was not with his mother when she opened the store. He testified that he "really caught it” from his mother because he dead bolted the door and she was not able to get the door open in the morning.

      .The evidence presented at trial regarding whether the front door was in fact dead bolted at the time of the murder, however, is inconclusive. The chief investigator admitted that he did not know whether the door was dead bolted when police arrived on the scene. He did not examine the door and lock until after it had been removed from the store and no evidence was presented that indicated that any one conducted such an examination. Moreover, as we noted on direct appeal, "Ar-noldi testified that Pippitt told him they entered through a window.” Pippitt, 645 N.W.2d at 93. Physical evidence at the scene "was also consistent” with a window entry. Id.

      . See Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928), overruled by United States v. Mitrione, 357 F.3d 712, 718 (7th Cir.2004) (adopting a different test).

      . The postconviction court refused to issue a writ of habeas corpus ad testificandum to compel the commissioner of corrections to bring Licari to court to testify. We emphasize what we have said before about the necessity of an evidentiary hearing for the postconviction court to make credibility determinations. See, e.g., Tumage, 729 N.W.2d at 598. For the purpose of this analysis, we therefore assume that had Licari testified, his testimony would have been credible and would have been consistent with the substance of his affidavit. We also assume, but do not decide, that Licari's testimony would be admissible to impeach Arnoldi’s credibility. See Minn. R. Evid. 613(b) (discussing admissibility of extrinsic evidence of prior inconsistent statements).

      . Licari's testimony also has limited impeachment value because of its vagueness. Licari does not state precisely when he had his conversations with Arnoldi, so it cannot be determined whether they occurred before or after Arnoldi claims Pippitt confessed to him.

      . Even if Pippitt had argued that this evidence was new evidence under Race, this claim would fail because Malin's postconviction testimony was doubtful about his mother's use of the dead bolt. Accordingly, this testimony would not satisfy the third prong of the new evidence test set forth in Race, 417 N.W.2d at 266.

      . “There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review.” White, 711 N.W.2d at 109. Pippitt’s prosecu-torial misconduct claim is not novel and, as more fully explained in section III, the interests of justice do not require review.

      . The Aitkin County Court Administrator provided us with a copy of the statement which she believed was a part of the record, but she obtained the statement directly from Pippitt's counsel, not from the district court records.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    In the Matter of the Civil COMMITMENT OF John Louis BEAULIEU, III.
    No. A07-496.
    Court of Appeals of Minnesota.
    Aug. 14, 2007.

      Lori Swanson, Attorney General, Angela Helseth Kiese, Sean McCarthy, Assistant Attorneys General, St. Paul, MN; and Timothy Faver, Beltrami County Attorney, Bemidji, MN, for appellant, State of Minnesota.

      Margaret Joanne Dow, Bemidji, MN, for respondent, John Beaulieu.
    Considered and decided by DIETZEN, Presiding Judge; TOUSSAINT, Chief Judge; and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

The State of Minnesota argues that the district court erred when it determined that it lacks both personal and subject-matter jurisdiction to civilly commit respondent, an enrolled member of the Red Lake Band of Chippewa Indians, as a sexually dangerous person under Minn.Stat. § 253B.02, subd. 18(c) (2004). Because (1) there is an adequate connection between respondent and the state, (2) respondent received notice of the action, and (3) respondent was afforded an opportunity to be heard, we conclude that the state has personal jurisdiction over respondent. Furthermore, because the operation of federal law does not preempt the state from exercising its authority to civilly commit members of the Red Lake Band, we conclude that the state has subject-matter jurisdiction over respondent’s commitment. We therefore reverse and remand.

FACTS

In 1999, respondent John Louis Beau-lieu, III, who was born in November 1984 and is an enrolled member of the Red Lake Band of Chippewa Indians, was adjudicated delinquent in federal court of aggravated sexual abuse of a child pursuant to the Indian Major Crimes Act. Respondent subsequently spent nearly two years at the Adolescent Sexual Adjustment Program (ASAP) in Huron, South Dakota. After being discharged from ASAP, respondent was admitted to the Leo Hoffman Center in St. Peter, Minnesota, where he resided from May 2002 through November 2003. During his stay there, respondent orally threatened two female staff members and, as a result, was charged with and eventually pleaded guilty to ter-roristic threats. Respondent also had sexual contact with other adolescents at both ASAP and the Leo Hoffman Center.

In August 2003, while still on federal probation, respondent filed an application with Beltrami County Human Services, seeking case-management and residential- and day-programming assistance pending his release from federal supervision. In November 2003, respondent was granted conditional release and was placed by Bel-trami County Human Services in the REM-Lyndale Group Home (REM-Lyn-dale). Respondent also received supportive therapeutic services through Safety Center, Inc. But respondent was discharged from REM-Lyndale in May 2004 after he repeatedly acted out sexually. Respondent’s conditional release was thereafter revoked by the federal court as a result of respondent’s failure to comply with his treatment requirements at REM-Lyndale, and respondent was subsequently placed in the Lake Regions Law Enforcement Center in Devils Lake, North Dakota, until he reached the age of 21 and federal supervision terminated.

On November 3, 2004, Beltrami County petitioned to civilly commit respondent as a sexually dangerous person (SDP) and/or a sexual psychopathic personality (SPP) pursuant to the Minnesota Commitment and Treatment Act. Respondent was transferred to the Beltrami County jail pending his initial commitment hearing on March 2, 2005. On March 15, 2005, the district court found by clear-and-eonvincing evidence that, based on the testimony of James Gilbertson, Ph.D., the court-appointed examiner, and James Alsdurf, Ph. D., respondent’s requested examiner, respondent is an SDP under MinmStat. § 253B.02, subd. 18(c) (2004). The district court ordered that respondent be initially committed to the Minnesota Sex Offender Program for a period not to exceed 60 days. After conducting a review hearing, the district court found by clear-and-convincing evidence that respondent continues to be an SDP, and thus the district court ordered that respondent be indeterminately committed.

On October 23, 2006, respondent filed a pro se petition for relief from the judgment pursuant to Minn. R. Civ. P. 60.02, seeking, in part, to void the commitment order on the grounds that the district court lacks both personal and subject-matter jurisdiction to commit him. The district court granted respondent’s motion, concluding that the state lacks jurisdiction to commit respondent and that both the initial and indeterminate commitment orders were therefore “void ab initio ” under rule 60.02(d). Upon the state’s motion, the district court stayed its order for a period not to exceed 30 days to allow the state time to perfect an appeal and to seek a further stay from this court.

This appeal follows.

ISSUES

1. Does the state have personal jurisdiction over respondent, an enrolled member of the Red Lake Band of Chippewa Indians, for the purposes of commitment proceedings?
2. Does the state have subject-matter jurisdiction to determine whether respondent should be committed as a sexually dangerous person?

ANALYSIS

The existence of personal and subject-matter jurisdiction are questions of law, which this court reviews de novo. In re Ivey, 687 N.W.2d 666, 669 (Minn.App. 2004) (citing Wick v. Wick, 670 N.W.2d 599, 603 (Minn.App.2003), and In re Thulin, 660 N.W.2d 140, 143 (Minn.App.2003)), review denied (Minn. Dec. 22, 2004).

I.

The state challenges the district court’s determination that the state lacks personal jurisdiction to civilly commit respondent as an SDP, arguing that it has personal jurisdiction over respondent because there is an adequate connection between respondent and the state and because respondent received notice of the action and was afforded an opportunity to be heard.

Personal jurisdiction has two requirements: (1) an adequate connection between the state and the party over whom jurisdiction is sought, or a basis for the exercise of jurisdiction; and (2) a form of process that satisfies the requirements of both due process and the Minnesota Rules of Civil Procedure governing the commencement of civil actions.

Ivey, 687 N.W.2d at 670. If a judgment is void for want of personal jurisdiction, it must be vacated under Minn. R. Civ. P. 60.02(d). Id.

Accordingly, we must first examine whether there is an adequate connection between respondent and the state. In addressing this issue, the district court cited this court’s decisions in Ivey and In re Civil Commitment of Kittrell, No. A05-2370, 2006 WL 1390579 (Minn.App. May 23, 2006), an unpublished decision.

In Ivey, this court held that there was an adequate connection between the state and the appellant, and therefore personal jurisdiction over appellant for civil-commitment purposes, when, despite the fact that appellant was imprisoned in Germany, the commissioner of corrections maintained supervisory power over appellant while he was serving the ten-year conditional-release portion of his sentence. 687 N.W.2d at 668, 671. We reasoned that the requirements of personal jurisdiction were satisfied because appellant’s

last residence before incarceration was in the state, his crimes and incarceration occurred in the state, and he was subject to DOC’s continuing supervisory authority, under an apparently valid sentencing order, at the time he returned to the state. Further, he was afforded due process and an opportunity to be heard on a commitment petition that was properly commenced according to the rules and statutes governing commencement of these actions.

Id. at 671.

In Kittrell, the appellant, a resident of the state of Michigan who was in Minnesota on business, was arrested for assaulting two women. 2006 WL 1390579, at *1. After pleading guilty to two counts of second-degree assault, appellant was sentenced to 84 months in prison and 42 months of supervised release. Id. Because the record indicated that appellant had sexually assaulted women in California, Arizona, and Michigan, the district court concluded that appellant was a patterned sex offender and, consequently, sentenced appellant under the Minnesota Patterned Sex Offender Statute. Id. (applying Minn. Stat. § 609.108 (1998)).

Prior to the appellant’s release from prison, the Minnesota Attorney General’s office filed a petition for civil commitment, alleging that the appellant was an SDP and an SPP. Id. at *2. The district court found that the appellant was both an SDP and an SPP and ordered that the appellant be indeterminately committed. Id. Appellant appealed, arguing that because he was not a Minnesota resident and because he had not committed sex crimes in Minnesota, the state did not have personal jurisdiction over him for the purpose of committing him as an SDP or SPP. Id. But this court, citing Ivey, held that because the appellant was in the legal custody of the commissioner of corrections when the petition to commit him was filed, the district court had personal jurisdiction over him. Id.

Here, the district court concluded that both Ivey and Kittrell are distinguishable, stating:

Respondent was not incarcerated or under the supervision of the Minnesota Department of Corrections prior to his commitment. Rather, Respondent remained in federal custody until the Bel-trami County Attorney’s Office initiated a civil commitment proceeding. As a result, Respondent never formed an adequate connection with Minnesota by way of incarceration or supervision by the Minnesota Department of Corrections.

Accordingly, the district court concluded that the state did not establish “adequate connection” with respondent and, therefore, it did not have personal jurisdiction over him. We disagree.

The record indicates that in August 2003, respondent sought residential- and day-programming assistance from Beltra-mi County Human Services pending his release from federal jurisdiction. The record further shows that respondent was subsequently granted conditional release and placed by Beltrami County Human Services in REM-Lyndale. In addition, respondent received supportive therapeutic services from Safety Center, Inc. While at REM-Lyndale, respondent repeatedly acted out sexually and was therefore discharged and had his conditional release revoked.

We conclude that Beltrami County’s placement of respondent at REM-Lyndale along with the additional services he received from Safety Center constitute an adequate connection with the state for purposes of personal jurisdiction, despite the fact that respondent was under federal supervision at the time. As the state notes, Ivey does not expressly limit personal jurisdiction in commitment cases to situations where a defendant is under state supervision. In fact, Ivey cites cases from other jurisdictions where “ ‘the power of a court to try a person for [a] crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.’ ” 687 N.W.2d at 670 (quoting Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952)); see also State v. Greenleaf, 591 N.W.2d 488, 497 (Minn.1999) (stating that “even an illegal arrest in violation of an extradition treaty does not preclude criminal prosecution”); State v. Monje, 109 Wis.2d 138, 325 N.W.2d 695, 700 (1982) (concluding that an illegal execution of a valid warrant did not deprive court of personal jurisdiction over defendant). Furthermore, there is no dispute that the process used by the district court was consistent with due-process requirements and the Minnesota Rules of Civil Procedure, the petition for civil commitment was properly filed, respondent received proper notice, and respondent had an adequate opportunity to be heard. Accordingly, we conclude that the district court erred when it granted respondent’s motion to void the commitment order after determining that the state lacks personal jurisdiction.

II.

The state also argues that it has subject-matter jurisdiction over respondent. Subject-matter jurisdiction is defined as a court’s authority to hear and determine either a particular class of actions or questions the court assumes to decide, Irwin v. Goodno, 686 N.W.2d 878, 880 (Minn.App.2004). “Because subject-matter jurisdiction goes to the authority of the court to hear a particular class of actions, lack of subject-matter jurisdiction may be raised at any time.” Id. (quotation omitted).

“State court jurisdiction over matters involving Indians is governed by federal statute or case law.” State v. Stone, 572 N.W.2d 725, 728 (Minn.1997). The United States Supreme Court “has consistently recognized that Indian tribes retain ‘attributes of sovereignty over both their members and their territory.’ ” Id. (quoting Cal. v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987)). “This sovereignty is ‘dependent on, and subordinate to, only the Federal Government, not the States.’ ” Id. (quoting Cabazon, 480 U.S. at 207, 107 S.Ct. at 1087).

As a general rule, state courts have subject-matter jurisdiction over civil commitments. See State ex rel. Anderson v. U.S. Veterans Hosp., 268 Minn. 213, 218, 128 N.W.2d 710, 715 (1964) (stating that “[t]he fact that the probate court has jurisdiction over commitment proceedings by virtue of our constitution has long been established” (footnote omitted)); Ivey, 687 N.W.2d at 669 (stating that “[t]he district court has subject matter jurisdiction over judicial commitments, including commitments of a person as a sexual psychopathic personality or as a sexually dangerous person”). But “[i]t has long been established that the Red Lake Band of Chippewa Indians at the Red Lake Reservation has a special status among Indians of this state.” State by Minn. State Ethical Practices Bd. v. Red Lake DFL Comm., 303 N.W.2d 54, 55 (Minn.1981). Because “the federal government has never transferred its exclusive and unlimited jurisdiction over the Red Lake Band to the State of Minnesota[,] ... the Band enjoys unique self-government.” Id.

In State v. R.M.H., 617 N.W.2d 55, 58 (Minn.2000), the Minnesota Supreme Court addressed the issue of whether the state has subject-matter jurisdiction over tribal Indians in Indian country, stating that under the analytical framework set forth by the United States Supreme Court, “state law does not generally apply to tribal Indians on their reservation absent express consent from Congress. However, even absent such express consent, a state may exercise its authority if the operation of federal law does not preempt it from doing so.” (Citations omitted.) See also Stone, 572 N.W.2d at 731 (stating that “[t]he Supreme Court has not established a per se rule prohibiting the exercise of state jurisdiction ... in the absence of an express congressional grant of jurisdiction”).

Accordingly, we first look to whether Congress has expressly consented to state jurisdiction over commitment proceedings brought against members of the Red Lake Band. In 1953, Congress enacted 18 U.S.C. § 1162 (2000), otherwise known as Public Law 280, which grants Minnesota jurisdiction over offenses committed either by or against Indians on a reservation. Specifically, section 1162(a) states that Minnesota “shall have jurisdiction over offenses committed by or against Indians ... to the same extent that [the state] has jurisdiction over offenses committed elsewhere within the [s]tate.” But section 1162(a) expressly excludes the Red Lake reservation, and thus Public Law 280 does not provide Minnesota with jurisdictional authority to enforce its laws on the reservation. Id.; see also State v. Jones, 729 N.W.2d 1, 4 (Minn.2007) (stating that “[u]nder Public Law 280, Minnesota has broad criminal and limited civil jurisdiction over all ‘Indian country’ within the state, except for the Red Lake Reservation ... ”). In addition, Congress has not otherwise expressly provided Minnesota with jurisdiction to civilly commit members of the Red Lake Band.

Therefore, we examine whether the operation of federal law preempts state jurisdiction over commitment proceedings brought against members of the Red Lake Band. See Cabazon, 480 U.S. at 215, 107 S.Ct. at 1091 (stating that “[u]nder certain circumstances a State may validly assert authority over the activities of nonmembers on a reservation, and ... in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members” (second alteration in original) (quotation omitted)); Jones, 729 N.W.2d at 12 (Anderson, G. Barry, J., concurring) (stating that “[w]hen Pub[lie] L[aw] 280 does not expressly authorize state jurisdiction, we ask whether federal law preempts state jurisdiction”); R.M.H., 617 N.W.2d at 60 (noting that “a state may exercise jurisdiction on a tribal reservation absent express federal consent if the operation of federal law does not preempt it from doing so”).

“ ‘State jurisdiction is preempted ... if it interferes or is incompatible with federal and tribal interest reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.’ ” R.M.H., 617 N.W.2d at 60 (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334, 103 S.Ct. 2378, 2386, 76 L.Ed.2d 611 (1983)). “The inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its ‘overriding goal’ of encouraging tribal self-sufficiency and economic development.” Cabazon, 480 U.S. at 216, 107 S.Ct. at 1092; see also R.M.H., 617 N.W.2d at 64 (stating that “the goals of tribal self-government, self-sufficiency, and economic development are overriding goals,” and they “reflect an interest in protecting a tribe’s retained sovereignty over its members and its territory” (citations omitted)). Moreover, “state law may be preempted if it relates to an area that is so pervasively regulated by the federal government that state regulation would obstruct federal policies.” R.M.H., 617 N.W.2d at 64.

[O]ur inquiry into whether federal law preempts state law is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but [calls] for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in [this] specific context, the exercise of state authority would violate federal law.... Further, in this area of the law, a preemption analysis rests principally on a consideration of the nature of the competing interests at stake and rejects a narrow focus on congressional intent to preempt state law as the sole touchstone.

Id. (alterations in original) (quotations and citations omitted).

We first consider whether state jurisdiction over respondent threatens the federal interest in encouraging Indian self-government. See id. The district court noted that the Red Lake Band of Chippewa Indians Tribal Code, chapter 901, provides for guardianship proceedings for incapacitated persons, and Minn.Stat. § 253B.212, subd. 1 (2006), authorizes the Minnesota Commissioner of Human Services to contract with Indian Health Service to provide care and treatment for committed tribal members, thereby evidencing the band’s “ability to civilly commit its members.” Thus, the district court concluded that

[although the Tribal Code does not currently provide for the civil commitment of sexually dangerous persons and/or sexual psychopathic personalities, the lack of such a law does not mean that Minnesota therefore has the right or power to exercise jurisdiction. The Red Lake Band has the ability to enact such legislation if it concludes that the safety of the tribal community necessitates a commitment procedure for dangerous sex offenders. The assumption of jurisdiction by Minnesota solely because the Tribe has chosen not to enact such a law disregards all the above principles relating to the autonomy of the Red Lake Reservation. And so, even though Minnesota clearly has a compelling interest to protect its citizens from sexually dangerous offenders like Respondent, exercising jurisdiction in a civil commitment proceeding over a Red Lake tribal member for sexual offenses occurring on the Reservation would “undermine the effectiveness of the band’s efforts” to self-govern.

But as the state notes, “the Red Lake [B]and has no tradition of sovereignty in this area” and “has never exercised any authority to commit sexually dangerous persons.” While the Red Lake Commitment Code addresses civil commitment for individuals who are chemically dependent, mentally ill, and mentally retarded, the code does not provide for the commitment of sexually dangerous persons. In addition, section 253B.212, subdivision 1, expressly provides that the commissioner of human services may contract with and receive payment from the Indian Health Service for the care and treatment of Red Lake members “who have been committed by tribal court order to the Indian Health Service for care and treatment of mental illness, developmental disability, or chemical dependency,” but does not provide for the commitment of sexually dangerous persons. (Emphasis added.)

Accordingly, Red Lake does not have a civil-commitment law that allows for the commitment of sexually dangerous persons and does not operate an inpatient sex-offender treatment facility to house and rehabilitate such individuals. As a result, we conclude that the exercise of state jurisdiction over respondent’s commitment is justified by the nature of the competing interests at stake. Anderson v. Beaulieu, 555 N.W.2d 537, 539 (Minn.App.1996) (quotation omitted); see also Jones, 729 N.W.2d at 2, 15 (Anderson, J., concurring) (concluding that state had subject-matter jurisdiction to enforce against member of the Leech Lake Band of Ojibwe who resided on the reservation a statute requiring a person who is convicted of predatory offenses to register current address because “the state’s interest in tracking convicted kidnappers is so high, and the threat to tribal sovereignty so low, as to constitute an exceptional circumstance”).

We next examine whether state jurisdiction interferes with the goals of encouraging tribal self-sufficiency and economic development. Respondent does not argue and there is no record evidence indicating that the state’s exercise of jurisdiction over the civil commitment of tribe members somehow threatens the economic development and self-sufficiency of the Red Lake Band. Instead, it is likely that state jurisdiction over Red Lake Band members would serve to benefit the tribe economically, as the cost of instituting a sex-offender program for sexually dangerous persons would be placed squarely on the state’s shoulders.

In addition, we must address whether state jurisdiction over respondent’s commitment proceeding relates to an area that is so pervasively regulated by federal law that state regulation would obstruct federal policies. In 2006, the federal government enacted 18 U.S.C.A. § 4248 (West Supp.2007), which provides that if the court finds by clear-and-convincing evidence that a person in federal custody is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General. Section 4248(d) further states that the Attorney General shall release the person to the state in which the person is domiciled or was tried and that the state will assume responsibility for the person’s custody, care, and treatment. But section 4248 did not become effective until July 27, 2006, after respondent was out of federal custody, and therefore is inapplicable to the facts here. Nonetheless, the 2006 enactment reflects a federal policy of referring sexually dangerous persons to the state system, even when the federal government otherwise has custody and jurisdiction. Therefore, we conclude that state jurisdiction over respondent does not relate to an area that is so pervasively regulated by federal law that state regulation would obstruct federal policies.

Finally, we must consider the state’s interest in civilly committing sexually dangerous members of the Red Lake Band. It is undeniable that the state has a compelling interest in protecting the health and safety of the public, including persons both on and off tribal land, from dangerous and repeat sex offenders. See In re Linehan, 557 N.W.2d 171, 181 (Minn.1996) (stating that “[u]nder its police powers, the state has a compelling interest in protecting the public from sexual assault”). Indeed, the Minnesota Supreme Court has stated that there is a compelling governmental interest in “the protection of members of the public from persons who have an uncontrollable impulse to sexually assault.” In re Blodgett, 510 N.W.2d 910, 914 (Minn.1994); cf. Jones, 729 N.W.2d at 15 (Anderson, J., concurring) (concluding that the state’s interest in tracking the whereabouts of convicted kidnappers on Indian reservations and in protecting potential kidnapping victims so as to justify enforcement of state predatory-offender registration statute is “so high” as to result in “as exceptional circumstance”). The state also has a compelling interest in the care and treatment of sex offenders and the mentally disordered. See Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979) (“The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.”); In re Linehan, 557 N.W.2d at 181 (stating “[tjreating sexual predators for the disorders that explain their dangerousness serves and falls within the state’s interest in protecting the public from sexual assault”).

We conclude that the state’s exercise of jurisdiction over the commitment of respondent is justified by strong state interests and does not significantly interfere with the federal interest in preserving tribal self-government, self-sufficiency, and economic development. Furthermore, we conclude that state jurisdiction does not “relate[ ] to an area that is so pervasively regulated by the federal government that state regulation would obstruct federal policies.” R.M.H., 617 N.W.2d at 64. Accordingly, we conclude that the district court erred when it granted respondent’s motion to void the commitment order after determining that the state lacks subject-matter jurisdiction.

DECISION

Because the state has both personal and subject-matter jurisdiction over respondent’s commitment as a sexually dangerous person, we conclude that the district court erred when it granted respondent’s motion to dismiss the commitment orders under rule 60.02(d).

Reversed and remanded.


author: PER CURIAM.

text:
    2007 ND 129
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Robert M. LIGHT, 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. Robert M. Light, Respondent.
    No. 20070226.
    Supreme Court of North Dakota.
    Aug. 16, 2007.
   INTERIM SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On August 10, 2007, an Application for the Interim Suspension of Robert M. Light, a member of the Bar of North Dakota, with Affidavit of Disciplinary Counsel and supporting documents, was filed under N.D.R. Lawyer Discipl. 3.4, Threat of Public Harm. Light was admitted to practice law on December 27, 1990, and is currently licensed to practice law in the courts of North Dakota.

[¶ 2] The Application states that several complaints have been filed against Light, indicating Light has missed appointments; had a message on his answering machine that he was out of the office and his voice mail was not taking messages; his office was closed during normal business hours and during scheduled appointments; mail had piled up inside his office door; clients have been unable to contact Light about work he promised to do and was performing on their behalf; Light arrived late and unprepared for a jury trial; and Light is under investigation for the crimes of reckless endangerment, terrorizing, and carrying a concealed firearm.

[¶ 3] The Application indicates that Light’s conduct violates N.D.R. Prof. Conduct 1.3, Diligence, and 1.4, Communication, and N.D. Stds. Imposing Lawyer Sanctions 4.41, which provides that disbarment is generally appropriate when a lawyer abandons the practice, knowingly fails to perform services, or engages in a pattern of neglect, and causes serious or potentially serious injury to a client.

[¶ 4] Disciplinary Counsel subsequently filed a Supplemental Affidavit in Support of Application for Interim Suspension, a Second Supplemental Affidavit, and supporting documents. The Supplemental Affidavit states that an additional complaint was filed against Light relating to his representation of a client in a personal injury matter. According to the Supplemental Affidavit, Light received payment of $20,000 for settlement of the personal injury matter by check made out to Light and his client. The client learned of the settlement from another attorney. The client has not endorsed the check nor received any money from Light.

[¶ 5] The supplemental affidavits state that Light may have violated N.D.R. Prof. Conduct 1.15, Safekeeping Property, and 8.4, Misconduct, and may have committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, by violation of N.D.C.C. § 12.1-24-01, Forgery or Counterfeiting, and N.D.C.C. § 12.1-23-07, Misapplication of Entrusted Property.

[¶ 6] Under N.D.R. Lawyer Discipl. 3.4(B), Threat of Public Harm, the court may enter an interim order at any stage of any proceeding immediately suspending the lawyer pending final disposition of the proceeding predicated upon the conduct causing the harm or may order such other action as deemed appropriate. This rule also provides that upon request by counsel or the lawyer after entry of an interim suspension order, the court shall within ten days provide an opportunity for the lawyer to demonstrate that the order should not remain in force. The Court considered the matter, and

[¶ 7] ORDERED, Robert M. Light’s license to practice law is SUSPENDED effective immediately, and until further order of this Court, pending final disposition of the disciplinary proceedings predicated upon the complaints filed.

[¶ 8] FURTHER ORDERED, Robert M. Light comply with N.D.R. Lawyer Dis-cipl. 6.3, Notice of Status.

[¶ 9] GERALD W. VANDE WAJLLE, C.J., and DALE V. SANDSTROM, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DANIEL J. CROTHERS, concur.


author: CROTHERS, Justice. MARING, Justice,

text:
    2007 ND 134
    Cynthia L. BURNS, Plaintiff and Appellant, v. Bartley D. BURNS, Defendant and Appellee.
    No. 20060218.
    Supreme Court of North Dakota.
    Aug. 22, 2007.

      Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, N.D., for plaintiff and appellant.
    Michael S. Mclntee, Mclntee Law Firm, Towner, N.D., for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] Cynthia L. Burns appealed from a divorce judgment granting custody of the couple’s two children to Bartley D. Burns. We conclude the district court did not abuse its discretion in allowing one of the children’s teachers to testify, and the court’s award of custody to Bartley Burns is not clearly erroneous. We affirm.

I

[¶ 2] The parties married in 1991 and resided during the marriage in Surrey. They have two children, a son born in 1993 and a daughter born in 1997. The son has been diagnosed with autism, Tourette’s syndrome, and attention deficit disorder. He is a special needs child who requires and receives individual attention from special education personnel at school. The daughter is healthy except for “stomach problems due to stress.”

[¶ 3] In August 2004, Cynthia Burns and the children left the marital home in Surrey and moved to Fargo. Cynthia Burns claimed she left Surrey because of abuse and improper disciplinary measures used by Bartley Burns against their son. The triggering event occurred at a family gathering in Minnesota where Bartley Burns “knuckled” the son on the back of the head to calm him down. She originally stayed at a women’s shelter in Fargo and filed a report of abuse and neglect against Bartley Burns. Following an investigation, authorities concluded Bartley Burns posed no risk to the children and services were not required.

[¶ 4] Cynthia Burns commenced this divorce action in October 2004. Bartley Burns moved for an interim order requesting that the district court award temporary custody of the children to him in Surrey pending the divorce proceedings. The court granted the motion in December 2004. Following the divorce trial in October 2005, the court divided the marital property, awarded custody of the children to Bartley Burns, and granted Cynthia Burns reasonable visitation. The court noted the testimony that “ ‘tips the scales’ ” in Bartley Burns’s favor was given by two of the son’s teachers, one from the Fargo school system and one from the Surrey school system, who testified that “familiarity, routine and non-fluctuating schedules are extremely important to an autistic child” and that “it is very beneficial for an autistic child to be in the same surroundings and around the same people.”

II

[¶ 5] Cynthia Burns argues the district court erred in admitting into evidence “expert” testimony that was not disclosed by Bartley Burns before trial.

[¶ 6] Bartley Burns presented the testimony of Marilyn Ternes, the son’s case manager and special education teacher at the Surrey school. Ternes has credentials allowing her to teach students with any disabilities, and she had been working with the child for six years. Cynthia Burns’s attorney objected on the grounds that Bartley Burns had failed to disclose Ternes as an expert witness and that her testimony would be cumulative to the evidence presented by two other Surrey school teachers who had previously testified. Bartley Burns’s attorney responded that Ternes was not being presented as an expert, but as a “factual witness[]” who had seen and observed the son, much like Cynthia Burns’s witness, Erica Hewitt, a para-professional with the Fargo school system who testified about her work with the son. Cynthia Burns’s attorney also claimed surprise. The district court overruled the objection, concluding Cynthia Burns’s attorney could .adequately address any concerns on cross-examination. Ternes testified about the problems associated with an autistic child.

[¶ 7] Whether Bartley Burns offered Ternes to provide opinion testimony is not an issue we need to decide on this appeal. Ternes’s testimony was similar to testimony given by Hewitt, whom Cynthia Burns did not disclose before trial as an expert witness. A district “court has broad discretion over the conduct of a trial or hearing, including limitations on the number of witnesses.” Gullickson v. Kline, 2004 ND 76, ¶ 15, 678 N.W.2d 138. “A district court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner, when its decision is not the product of a rational mental process by which the facts of record and law relied upon are stated and considered together for the purpose of achieving a reasonable determination, or when it misinterprets or misapplies the law.” Gisvold v. Windbreak, Inc., 2007 ND 54, ¶ 5, 730 N.W.2d 597. We have said a continuance is the proper remedy for a party claiming surprise, e.g., Paulson v. Paulson, 2005 ND 72, ¶ 16, 694 N.W.2d 681, and “‘[a] judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.’ ” City of Grand Forks v. Scialdone, 2005 ND 24, ¶9, 691 N.W.2d 198 (quoting State v. Hirschkorn, 2002 ND 36, ¶ 9, 640 N.W.2d 439); Reimche v. Reimche, 1997 ND 138, ¶9, 566 N.W.2d 790. Cynthia Burns did not seek a continuance and has not shown she was unable to meet the situation. The district court did not abuse its discretion in allowing Ternes to testify.

Ill

[¶ 8] Cynthia Burns argues the district court erred in awarding custody of the children to Bartley Burns.

[¶ 9] A district “court’s decisions on child custody, including the ultimate award of custody, are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous.” Klein v. Larson, 2006 ND 236, ¶ 6, 724 N.W.2d 565. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made.” Gietzen v. Gabel, 2006 ND 153, ¶6, 718 N.W.2d 552. “Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court’s initial custody decision merely because we might have reached a different result.” Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157. “A choice between two permissible views of the weight of the evidence is not clearly erroneous, ... and our deferential review is especially applicable for a difficult child custody decision involving two fit parents.” Id.

[¶ 10] The district court found that most of the statutory best interest factors under N.D.C.C. § 14-09-06.2(1) were either inapplicable or favored neither party. The court found that while factor (j) (evidence of domestic violence) favored Cynthia Burns, factors (d) (the length of time the children have lived in a stable, satisfactory environment and the desirability of maintaining continuity) and (m) (any other factors considered by the court to be relevant to a particular child custody dispute) favored Bartley Burns.

A

[¶ 11] Cynthia Burns argues the court erred in finding she did not have the advantage under factor (c) (the disposition of the parents to provide the children with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs). The court evaluated this factor as a “ ‘plus’ ” for both parents, finding “no discernable difference between Bart and Cynthia.” Although Cynthia Burns claims she was the parent who handled most of the food and clothing needs of the children and obtained remedial care for the son, the record also reflects that from 1999 through 2004, Bartley Burns ran a home business and tended to the children’s needs while Cynthia Burns was employed in various jobs outside of the home. Bartley Burns cared for the children while Cynthia Burns was working, took the children to school, and dealt with school personnel concerning the son’s special needs on a daily basis. The record also reflects that both parties are capable of providing for the children’s material needs. The district court’s finding that factor (c) did not favor either party is not clearly erroneous.

B

[¶ 12] Cynthia Burns argues the district court erred in awarding custody to

Bartley Burns because he “hits his children and has a history of doing so” and she took the children to Fargo to remove them from what she described as “an abusive setting.”

[¶ 13] There is some evidence of violence inflicted by the parties against each other and against the children through disciplinary measures. The court found no credible evidence of domestic violence to make the N.D.C.C. § 14-09-06.2(l)(j) presumption against an award of custody applicable. “If the evidence of domestic violence does not rise to the level to trigger the presumption, the court may still consider the evidence as one of the best-interest factors.” DeMers v. DeMers, 2006 ND 142, ¶ 7, 717 N.W.2d 545. The court found that this factor favored Cynthia Burns based on disciplinary measures employed by Bartley Burns on the children. Bartley Burns had spanked the daughter and “knuckled” the son on the back of his head on more than one occasion “to get his attention” and stop his bouts of uncontrollable screaming. In its analysis of factor (j), the court said:

For his part, Bart readily acknowledges that he made a serious mistake when he “knuckled” [the son] in the back of the head—and he genuinely regrets having employed this method of “discipline.” Bart also candidly admits that he has indeed spanked both of the children on their bottoms, and has probably left some braises on [the daughter] in the process. However, he relates that he is not “an abuser of children” and he assures that [sic] Court that he has “made some changes” in his life.
While not taking issue with what the Cass County investigators concluded in their report, the Court is persuaded, by the greater weight of the evidence, that Bart clearly “crossed the line” (on more than one occasion) between what is appropriate, and inappropriate, discipline for a young child — particularly in the case of a special needs child such as [the son].
To his credit, Bart is not denying that certain of his “disciplinary” techniques have been entirely inappropriate. However, while he openly recognizes the error of his ways, history may well repeat itself unless he develops some coping skills to employ whenever he feels that he’s being pushed to the limit by the children’s behavior. While the Court by no means views Bart to be a danger to his children, the Court is of the opinion that he will be a much better parent if he develops these needed coping skills— and the Court recommends that he seek outside help to obtain these skills.

[¶ 14] Parents have the right to use reasonable force to discipline their children. N.D.C.C. § 12.1-05-05(1); Thompson v. Olson, 2006 ND 54, ¶ 17, 711 N.W.2d 226; Dinius v. Dinius, 1997 ND 115, ¶ 15, 564 N.W.2d 300. Here, the district court’s finding that Bartley Burns was not a “danger” to his children is an implicit finding that he caused no “serious physical harm” to the children by his disciplinary measures, and there is no evidence in the record to support a finding of “serious physical harm.” N.D.C.C. § 50-25.1-02(3) (definition of an “‘[ajbused child’”); cf. Hill v. Weber, 1999 ND 74, ¶¶ 1, 11, 592 N.W.2d 585 (district court’s finding that father repeatedly struck daughter on the head with enough force to create a substantial risk of serious bodily injury constituted a material change of circumstances as a matter of law warranting a change of custody). Because the evidence was insufficient to trigger the domestic violence presumption, the court properly gave factor (j) equal consideration with the other applicable factors under N.D.C.C. § 14-09-06.2(1) when determining the best interests of the children. See, e.g., Ternes v. Ternes, 555 N.W.2d 355, 357-58 (N.D. 1996). Under these circumstances, the district court’s finding factor (j) favored Cynthia Burns did not require that she be awarded custody of the children.

C

[¶ 15] Cynthia Burns argues the court erred in finding factor (d) favored Bartley Burns.

[¶ 16] In its analysis of factor (d), the court stated:

The evidence indicates that Bart and Cynthia separated on August 24, 2004, when Cynthia and the parties’ two (2) minor children ... left the family home near Surrey, North Dakota, and moved to Fargo, North Dakota.
The former family home is a 1971 model mobile home, with a three-stall garage. While this is obviously an older model dwelling, trial testimony establishes that all of the windows were recently replaced, as was the exterior siding. Further, some new carpet and paneling have been installed in the interior of the home. The most significant improvement in terms of the Court’s custody decision, however, is the addition of a third bedroom which is being occupied by [the daughter]. Prior to the children’s relocation to Fargo, this was the only home they had ever known — and all indications are that it was more than adequate for their needs, and remains so today.
The evidence also indicates that the children benefit a great deal from their association with the students, administration, teachers and staff at the Surrey School. This has proven to be an excellent learning environment for both [children] — particularly so for [the son], a special needs child who requires (and regularly receives) a considerable amount of individual attention from qualified special education personnel (specifically, Marilyn Ternes). The Court also takes note of the high regard Bart has for [the son’s] classmates, saying that they are “remarkable” and “very caring” toward [the son].
The children’s way of life in rural Surrey was interrupted by an approximately four (4) month stay (from late August of 2004 through late December of that year) with Cynthia in Fargo, North Dakota, before the Court (Hon. Gary A. Holum, District Judge) ordered that they be returned to Ward County to live with Bart. While it appears that [the children] adjusted quite well to their new surroundings in Fargo, and there is no question that Cynthia provided them with a very suitable living environment during the short time they were there, “home” for these children is still the former family home near Surrey. If the goal is to maintain continuity in these children’s lives, it appears that this goal would be better served by allowing the children to remain in the former family home near Surrey.

Cynthia Burns contends the court’s finding improperly focuses on the physical abode and the community, rather than the “environment” in which the children lived, and because she was “the parent that maintained the environment and which made the home what it was,” the court should have found factor (d) favored her.

[¶ 17] Factor (d) requires consideration of the stability and quality of the child’s past environment. Klein, 2006 ND 236, ¶10, 724 N.W.2d 565. Factor (d) “addresses past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting. It also addresses the quality of that past environment, and the desirability of maintaining continuity. Under factor d, ‘prior custody is a factor to be considered when determining the custodial arrangement which is best for the child.’ ” Stoppler v. Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142 (internal citation omitted). See also Eifert v. Eifert, 2006 ND 240, ¶ 8, 724 N.W.2d 109. The stability of a child’s home environment can be undermined by frequent moves to unfamiliar settings, a succession of persons residing in the home, live-in romantic companions for the custodial parent, or other potential disruptions such as the inability to maintain steady employment. Klein, at ¶ 10. Although more than a physical structure or a geographic location should be analyzed under factors (d) and (e) (the permanence, as a family unit, of the existing or proposed custodial home), see Schmidt v. Schmidt, 2003 ND 55, ¶ 12, 660 N.W.2d 196, a district “court’s concerns about maintaining the custodial relationship that existed prior to the divorce and allowing the child to attend the same school and live in the same house are all valid considerations under factor d.” Shaw v. Shaw, 2002 ND 114, ¶ 7, 646 N.W.2d 693.

[¶ 18] The district court addressed the children’s living environment in both Surrey and Fargo and found that while Cynthia Burns provided them a “very suitable living environment” in Fargo, the children would be better off in Surrey because “the children benefit a great deal from their association with the students, administration, teachers and staff at the Surrey School.” We have also noted that “although factor (d) uses an approach looking at the past, there is an overlap between factors (d) and (e).” Jelsing, 2007 ND 41, ¶ 14, 729 N.W.2d 157. In analyzing factor (e), which the court found favored no one, the court noted that neither party had a “ ‘significant other’ ” and that their respective “ ‘family unit[s]’ ” would consist of each party and the children. The court further noted that neither party planned on moving from their respective homes, “there is a great deal of permanency inherent in Bart’s living arrangements,” and “Cynthia has obtained stable employment in Fargo, has ‘settled in’ to the community and looks to make Fargo her home for the foreseeable future.”

[¶ 19] The district court did emphasize the continuity of the son’s physical setting, but this emphasis is supported by the record and the son’s status as a special needs child. In addressing subdivision (m), the district court relied on the testimony of the son’s Surrey and Fargo teachers.

In the final analysis, though, the Court is of the opinion that both Bart and Cynthia are good parents to [the son] and [the daughter]. The Court believes that they will thrive in the care of either parent, and this is a real plus for the children. Nevertheless, the very nature of divorce is that one of these two fit parents must be designated as the custodial parent, while the other will assume the role of the noncustodial parent.
In arriving at its custody decision in this case, the testimony that “tips the scales” in Bart’s favor came from two (2) of [the son’s] teachers, Ms. Erica Hewitt and Ms. Marilyn Ternes. Both of these individuals testified that familiarity, routine and non-fluctuating schedules are extremely important to an autistic child such as [the son]. Both Ms. Hewitt and Ms. Ternes indicated that it is very beneficial for an autistic child to be in the same surroundings and around the same people. Ms. Ternes specifically stated that autistic children have difficulty transitioning from one setting to another, noting that, “Change is not easy for a student who already struggles from the get-go.”
[The son] and [the daughter] began the 2004-05 school year at the Surrey School, but were abruptly removed from that system on the very first day of school and whisked off to Fargo, where Cynthia enrolled them at Bennett Elementary School. After what looks to have been a successful new beginning for the children at Bennett Elementary, they were pulled out of that educational setting at mid-year and placed back into the Surrey School. In view of what Ms. Hewitt and Ms. Ternes have said concerning the importance of continuity in [the son’s] life, now is not the time to “pull the rug out from underneath him” and send him back to Fargo. While [the daughter] is no doubt better able to adapt to change than is [the son], bouncing back and forth between different homes and different schools can’t be good for her physical and emotional well-being either.

Although Cynthia Burns contends the district court improperly “doubly counted” the son’s handicap and needs against her by focusing on them in finding factors (d) and (m) favored Bartley Burns, we believe it highlights the added weight the court believed should be given to this consideration based on the evidence in the record.

[¶ 20] Cynthia Burns essentially contends that she was the primary caretaker of the children during the marriage and that this status should have been given greater weight by the district court in its best interest analysis. A “ ‘primary caretaker is generally the parent who provides the child with daily nurturanee, care and support.’ ” Kjelland v. Kjelland, 2000 ND 86, ¶ 15, 609 N.W.2d 100 (internal citation omitted). The court made no explicit finding on the primary caretaker in this family. The court’s findings that most of the best interest factors favored neither party and the evidence of both parents’ involvement in the children’s caretaking strongly suggest the court believed there was no primary caretaker in this case. See, e.g., Reeves v. Chepulis, 1999 ND 63, ¶¶ 18-19, 591 N.W.2d 791. In any event, being a child’s primary caretaker does not guarantee a custody award in a divorce action because the primary caretaker rule has not been given presumptive status in this state. Schmidt, 2003 ND 55, ¶ 9, 660 N.W.2d 196; see also Dufner v. Dufner, 2002 ND 47, ¶20, 640 N.W.2d 694. We conclude the court did not err in its analysis of factors (d) and (m) under these circumstances, and its finding that these factors favored Bartley Burns is not clearly erroneous.

[¶ 21] We have considered Cynthia Burns’s other arguments and find them unpersuasive. The court’s finding that it is in the best interests of the children to be placed in the custody of Bartley Burns is not clearly erroneous.

rv

[¶ 22] The judgment is affirmed.

[¶ 23] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, JJ, concur.

DALE V. SANDSTROM, J., concurs in the result.

MARING, Justice,

concurring in part and dissenting in part.

[¶24] I concur in parts II and III A and, respectfully, dissent to parts III B and III C of the majority opinion. I am of the opinion the trial court clearly erred in applying the law to the facts of this case as it pertained to Bartley Burns’s use of force on the child, and the trial court misapplied factor (d). I would reverse and remand for the trial court to properly apply the law pertaining to abuse of a child to the facts of this case and to perform a proper analysis of factor (d) and factor (j).

I

[¶ 25] The majority, at ¶ 14, concludes “the district court’s finding factor (j) favored Cynthia Burns did not require that she be awarded custody of the children.” In Hill v. Weber, 1999 ND 74, ¶ 1, 592 N.W.2d 585, our Court was asked to determine whether the trial court’s “finding that the father repeatedly struck his older daughter on the head with enough force to create a substantial risk of serious bodily injury” was clearly erroneous. We concluded the trial court was not clearly erroneous and affirmed the judgment. Id. In Hill, 1999 ND 74, ¶3, 592 N.W.2d 585, there were facts similar to those in this case:

[T]he older daughter, age 14, alleged abuse, testifying she was often struck on the back of her head by her father and told to get her duties done. She further testified her father would hit her as hard as he could with an open hand, and that he had been doing it since before the divorce. The mother testified the father had a history of abusing her and the children.

Our Court analyzed the trial court’s findings and concluded:

The district court found the violence against the older daughter created a threat to her health and safety. We agree with the trial court, if the criteria of [N.D.C.C. § 14 — 09—06.6(3)(b)] are met, there is as a matter of law a material change of circumstances that warrants a change of custody under [N.D.C.C. § 14-09-06.6(6)].
Here, the older daughter testified her father repeatedly hit her as hard as he could on the back of her head with an open hand, causing her pain. Although there was contrary testimony, the district court found the older daughter more credible than the other witnesses. The district court noted the general state of human knowledge that repeated hits to the head may cause injury. See Arthur C. Roberts, The Value of Outcome Studies in Litigating Closed Head Injury Cases, 30 Trauma 39 (1988). The finding of fact is supported by the testimony of the older daughter, and we will not substitute our judgment on credibility for that of the district court. The finding of fact is not clearly erroneous.

Id. at ¶¶ 11,13.

[¶ 26] Despite Hill, at ¶ 13, in which our Court acknowledged the injury repeated hits to the head may cause, the majority claims, at ¶ 14, “[pjarents have the right to use reasonable force to discipline their children.” The majority continues, at ¶ 14, “[h]ere, the district court’s finding that Bartley Burns was not a ‘danger ’ to his children is an implicit finding that he caused no ‘serious physical harm’ to the children by his disciplinary measures, and there is no evidence in the record to support a finding of ‘serious physical harm.’” The majority concludes, at ¶ 14, “[b]ecause the evidence was insufficient to trigger the domestic violence presumption, the court properly gave factor (j) equal consideration with the other applicable factors under N.D.C.C. § 14-09-06.2(1) when determining the best interests of the children.” Repeatedly “knuckling” the back of a child’s head goes beyond reasonable force. I fail to comprehend how the same Court that concluded repeated hits to the head may cause injury and are a threat to the health and safety of a child, can now claim repeatedly “knuckling” the back of a child’s head does not present serious physical harm. I am of the opinion the trial court clearly erred in applying the law to the facts of this case. The trial court should reconsider the weight of this factor on a remand.

II

[¶ 27] The trial court found factor (d) of N.D.C.C. § 14-09-06.2(1) favored awarding custody to Bartley Burns. The majority, at ¶ 20, concludes the trial court’s finding that factor (d) favored Bart-ley Burns is not clearly erroneous. Factor (d) requires the trial court’s consideration of the “length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.” N.D.C.C. § 14-09-06.2(l)(d).

[¶ 28] In Schmidt v. Schmidt, 2003 ND 55, ¶¶ 26, 27, 660 N.W.2d 196 (Maring, J., concurring), I wrote:

I continue to be of the opinion that when applying factor (d), a trial court must examine not only past stability of environment, including a consideration of place or physical setting, but a consideration of the prior family unit and its lifestyle as part of that setting. See Stoppler v. Stoppler, 2001 ND 148, ¶¶ 26-31, 633 N.W.2d 142 (Maring, J., concurring in part and dissenting in part). This includes consideration of the continuity of the relationship with the parent who had cared for the children on a daily basis. Id. at ¶ 28.
... I continue to be troubled by the emphasis on the continuity of the child’s physical setting over the importance of the continuity of the parent-child relationship in both factors (d) and (e). I am concerned we still have vestiges of the philosophy that the parent who receives the home where the children have grown up will get custody of the children.

Four years later, the concerns I expressed in Schmidt still exist. The trial court’s analysis of factor (d) focused on the child’s physical home setting in Surrey and the child’s school in Surrey, concluding “[i]f the goal is to maintain continuity in these children’s lives, it appears that this goal would be better served by allowing the children to remain in the former family home near Surrey.” The trial court made no mention of the child’s need for continuity of the parent-child relationship and did not determine how the child’s continuity of his relationship with the parent who had cared for him on a daily basis would be affected by its decision. The trial court made clear that the child’s familiarity with Surrey and the Surrey school were more important than the continuity of the child’s relationship with his mother. The trial court seemed to say, and the majority supports that, “all things being equal,” the parent who receives the marital home receives the child, even if that home environment included inappropriate discipline for a young disabled child such as repeated “knuckling” of the back of the child’s head.

[¶ 29] Further, the majority, at ¶ 20, notes that “being a child’s primary caretaker does not guarantee a custody award in a divorce action because the primary caretaker rule has not been given presumptive status in this state.” However, I am of the opinion the trial court completely ignored the issue of who was the primary caretaker and failed to include this consideration in its analysis of factor (d). Under factor (d), the trial court is to examine the past relationship between the parent and child, including who took care of the child’s basic and, in this case, special needs.

[¶30] I am of the opinion the trial court erred on its application of factor (d). The judgment should be reversed and remanded for a proper analysis of factor (d) and factor (j).

[¶ 31] MARY MUEHLEN MARING, J.