author: MARING, Justice. VANDE WALLE, Chief Justice, SANDSTROM, Justice,

text:
    2003 ND 81
    STATE of North Dakota, Plaintiff and Appellant, v. Christopher Ray FIELDS, Defendant and Appellee.
    No. 20020269.
    Supreme Court of North Dakota.
    June 3, 2003.

      Ladd R. Erickson, Special Assistant State’s Attorney, Washburn, ND, for plaintiff and appellant.
    Steven M. Light (argued) and Lindsey D. Haugen (appeared), Larivee & Light, Grand Forks, ND, for defendant and ap-pellee.
   MARING, Justice.

[¶ 1] The State of North Dakota appeals from the Memorandum Opinion and Order granting Christopher Fields’ Motion to Suppress. We affirm.

[¶ 2] At approximately 3:24 a.m. on May 28, 2002, a Morton County Sheriffs Deputy noticed Christopher Fields driving his vehicle on the 1000 block of 6th Avenue Northwest in Mandan. The officer initiated a traffic stop. Earlier that morning, the officer had been informed that the license tags on Fields’ vehicle were expired. The officer was also told by another officer that the drug task force had information that Fields had received a shipment of drugs a few days earlier. The officer knew Fields from a previous arrest on drug charges and knew that, according to other officers and a confidential informant, Fields was continuing to deal drugs.

[¶ 3] During the stop, Fields was asked for his driver’s license, registration, and proof of insurance. Fields provided his driver’s license, but did not have his registration or proof of insurance. The officer testified that Fields was acting nervous during the stop. When asked why he was driving so late at night, Fields told the officer that he was on his way to a convenience store to buy milk and cereal.

[¶ 4] After the officer issued Fields a citation for the expired tags, he said goodbye, turned, and began to walk away. The officer then reapproached the vehicle and asked Fields if he had any drugs or weapons in the vehicle. Fields said that he did not. The officer next asked for Fields’ consent to search the vehicle. Fields refused consent. At this point, the officer informed Fields he was calling for a drug detection dog to do a canine search of the outside of the vehicle. The officer asked Fields to exit his vehicle and stand next to him. It took approximately 30 minutes for the drug detection dog to arrive on the scene. When the dog arrived, it made a few passes and then gave positive indications on the vehicle. The vehicle was searched, revealing a loaded gun and illegal drugs.

[¶ 5] Fields filed a motion to suppress the evidence discovered during the vehicle search. He argued that the evidence found during the vehicle search should be excluded because the officer lacked a reasonable and articulable suspicion to continue the detention after the original purpose of the traffic stop had been completed and because the officer did not have probable cause to search the vehicle. The trial court granted Fields’ Motion to Suppress. The State appeals.

I

[¶ 6] The trial court’s disposition of a motion to suppress will be af firmed unless, after resolving conflicting evidence in favor of affirmance, there is insufficient competent evidence fairly capable of supporting the trial court’s findings or the decision is contrary to the manifest weight of the evidence. See City of Fargo v. Ovind, 1998 ND 69, ¶ 6, 575 N.W.2d 901. This deferential standard of review recognizes the importance of the trial court’s opportunity to assess the credibility of the witnesses. See id. “The ultimate conclusion of whether the facts support a reasonable and articulable suspicion is a fully reviewable question of law.” Id.

II

[¶ 7] Neither party disputes the fact that the initial stop of Fields’ vehicle was proper. As we have previously explained, “traffic violations, even if considered common or minor, constitute prohibited conduct and, therefore, provide officers with requisite suspicion for conducting investigatory stops.” State v. Storbakken, 552 N.W.2d 78, 80-81 (N.D.1996). In this case, the officer had earlier been told that Fields’ vehicle had expired tabs. When the officer saw the vehicle being driven and verified that the tabs were expired, he had probable cause to believe the law was being violated and, therefore, properly initiated a traffic stop. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”).

[¶ 8] When conducting a traffic stop, an officer can temporarily detain the traffic violator at the scene of the violation. See State v. Mertz, 362 N.W.2d 410, 412 (N.D.1985) (citing N.D.C.C. §§ 39-07-07 and 39-07-09). The constitutionality of an investigative detention is judged under the framework established in Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), requiring that an investigative detention be “reasonably related in scope to the circumstances which justified the interference in the first place.” This Court has explained that for traffic stops, “[a] reasonable period of detention includes the amount of time necessary for the officer to complete his duties resulting from the traffic stop.” Mertz, at 412. Those duties, according to the Court of Appeals for the Eighth Circuit, may include:

request[ing] the driver’s license and registration, request[ing] that the driver step out of the vehicle, request[ing] that the driver wait in the patrol car, conducting] computer inquiries to determine the validity of the license and registration, conducting] computer searches to investigate the driver’s criminal history and to determine if the driver has outstanding warrants, and making] inquiries as to the motorist’s destination and purpose.

United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001). The investigative detention may continue “as long as reasonably necessary to conduct these activities and to issue a warning or citation.” Id. at 925; see also Mertz, at 412 (“[A] traffic violator is subject to the arresting officer’s authority and restraint until the officer completes issuance of the traffic citation and expressly releases the violator.”).

[¶ 9] In this case, the officer issued Fields a citation for the expired tabs and expressly released Fields by saying goodbye, turning around, and starting to walk back to his vehicle. After the officer issued the traffic citation, the legitimate investigative purposes of the traffic stop were completed. See Jones, 269 F.3d at 925 (stating that once the trooper had determined that the driver was not tired or intoxicated, had verified that the driver’s license and registration were valid, and had checked for any outstanding arrest warrants, the legitimate investigative purposes of the traffic stop were completed).

Ill

[¶ 10] Once the purposes of the initial traffic stop are completed, a continued seizure of a traffic violator violates the Fourth Amendment unless the officer has a reasonable suspicion for believing that criminal activity is afoot. See Jones, 269 F.3d at 925. Therefore, the constitutional inquiry in this case is reduced to two determinations: whether Fields was “seized” within the meaning of the Fourth Amendment when he was held awaiting the arrival of the drug detection dog, and if so, whether there was a reasonable suspicion to support the seizure. See id.

A

[¶ 11] This Court has recognized that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” State v. Koskela, 329 N.W.2d 587, 589 (N.D.1983) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). In United States v. Beck, 140 F.3d 1129 (8th Cir. 1998), the United States Court of Appeals for the Eighth Circuit was confronted with a situation similar to the one in this case. In Beck, the driver was stopped for following another vehicle too closely. The officer checked the driver’s license, rental agreement, and criminal history before giving him a verbal warning and telling him he was free to go. The officer started walking away, but returned to ask the driver if he had any guns, drugs, or knives in the vehicle. The officer asked for consent to search the vehicle, but the driver did not give consent. The officer then radioed for a canine unit and told the driver that a drug sniff of the vehicle would be conducted. The officer instructed the driver to get out of the vehicle and to stand by the side of the car. When the canine unit arrived, the dog alerted to the passenger side rear door of the vehicle. A search was conducted and methamphetamine was discovered. In determining whether the driver had been “seized” for Fourth Amendment purposes, the court concluded:

[W]e do not believe a person in Beck’s situation, who had been present when a canine unit had been summoned to the scene and was then told by [the officer] that he was going to have a canine unit conduct a drug sniff of Beck’s car, would reasonably have felt free to leave.
Furthermore, any doubts that Beck had that he was free to drive away were extinguished when, after refusing consent to a search of his automobile, [the officer] ordered Beck to get out of his automobile and to stand on the side of the road. At that point, having been ordered out of his vehicle in order to permit a drug dog sniff, a reasonable person in Beck’s situation would not have felt free to leave.

Beck, 140 F.3d at 1135-36.

[¶ 12] In this case, after Fields refused to consent to a search of his vehicle, he was told that the drug detection dog would be called and that a drug sniff of his vehicle would be conducted. The officer asked Fields to get out of his car and to stand by him. It is reasonable to believe that a person in Fields’ position would not have felt free to leave the scene. We conclude that Fields was seized within the meaning of the Fourth Amendment when he was held awaiting the arrival of the drug detection dog. Therefore, unless the officer had a reasonable and articulable suspicion to believe that criminal activity was afoot, the continued detention of Fields after the completion of the traffic stop would amount to a Fourth Amendment violation.

B

[¶ 13] Whether the facts support a reasonable and articulable suspicion is a question of law, fully reviewable on appeal. See Ovind, 1998 ND 69, ¶ 6, 575 N.W.2d 901. This Court considers the totality of the circumstances when deciding whether reasonable suspicion exists. See id. at ¶ 8. “Although we have recognized that the concept of reasonable suspicion is not readily reduced to a neat set of legal rules, it does require more than a ‘mere hunch.’ ” State v. Kenner, 1997 ND 1, ¶ 8, 559 N.W.2d 538 (quoting Salter v. North Dakota Dep’t of Transp., 505 N.W.2d 111, 114 (N.D.1993)). To determine whether reasonable suspicion exists, we apply an objective standard, taking into account the inferences and deductions that an investigating officer would make that may elude a layperson. See Kenner, at ¶ 8. “The question is whether a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity.” Id. (quoting State v. Smith, 452 N.W.2d 86, 88 (N.D. 1990)).

[¶ 14] At the time that Fields was being detained to wait for the drug detection dog, the officer knew the following: (1) that in April 2002, Fields was arrested when drugs and drug paraphernalia were found in his motel room and vehicle; (2) that according to other officers, Fields was continuing to deal drugs; (3) that a confidential informant who had previously given an accurate tip had indicated that Fields was continuing to deal drugs; (4) that the drug task force had information that Fields had received a shipment of drugs a few days earlier; (5) that during the traffic stop, Fields was acting nervous; and (6) that during the traffic stop, Fields gave a “suspicious” story about going out for milk and cereal at 3:24 a.m.

[¶ 15] The first factor, the officer’s knowledge of Fields’ criminal history, “is a legitimate factor to be taken into account in determining whether there is a sufficient quantum of suspicion.... ” 4 Wayne R. LaFave, Search and Seizure § 9.4(f), 192 (3d ed.1996). In this case, the officer had, just the month before, executed a search warrant on Fields’ motel room and vehicle, discovering methamphetamine and drug paraphernalia. However, knowledge of a person’s criminal history by itself is not enough to support a finding of reasonable suspicion. See id. at 192-93; see also United States v. Sandoval, 29 F.3d 537, 542 (10th Cir.1994). As the court in Sandoval correctly observed:

If the law were otherwise, any person with any sort of criminal record — or even worse, a person with arrests but no convictions — could be subjected to a Terry-type investigative stop by a law enforcement officer at any time without the need for any other justification at all. Any such rule would clearly run counter to the requirement of a reasonable suspicion, and of the need that such stops be justified in light of a balancing of the competing interests at stake....

29 F.3d at 543. The reasonable suspicion determination is not so clear cut, however, when, as in this case, a criminal history is not the only factor that could contribute to finding reasonable and articulable suspicion. See id. at 542 (recognizing that although knowledge of a person’s criminal history is, in itself, insufficient to justify a seizure, in combination with other factors, it can constitute reasonable suspicion of current criminal activity).

[¶ 16] The second, third, and fourth factors, all concern information, given to the officer, which indicated that Fields was continuing to participate in drug activities. Specifically, there was information from the confidential informant that Fields was continuing to deal drugs. This same information was also provided by the other officer. There also was information from the other officer that Fields had just recently received a shipment of drugs. We have stated that “[a] tip may provide the factual basis for a reasonable suspicion stop.” State v. Boline, 1998 ND 67, ¶ 32, 575 N.W.2d 906. When determining whether information available to an officer establishes reasonable and articula-ble suspicion, it must be evaluated for its “quantity, or content, and quality, or degree of reliability, ...” Id.

[¶ 17] In this case, all the information given to the officer, both from the confidential informant and from the other officer, was conclusory in content. There were no specific facts that connected Fields’ alleged drug activities to Fields’ vehicle or to his travels on the night he was stopped. There was only conclusory information that Fields continued to deal drugs and had received a shipment a couple of days prior.

[¶ 18] In addition, while the information from the confidential informant may have had some degree of reliability because that same confidential informant had provided law enforcement with accurate information in the past, it is unclear whether the information provided by the other officer was reliable. Just as reliability of an informant is an important consideration for a probable cause determination, it is also relevant in the reasonable suspicion analyisis, “although allowance must be made in applying them for the lesser showing required to meet that standard.” See Alabama v. White, 496 U.S. 325, 328-29, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). According to the officer’s testimony, he received the information that Fields had recently received a shipment of drugs from another officer who had been given the information by the drug task force. However, there is no indication in the record where the drug task force got its information. Therefore, the reliability of that information is questionable.

[¶ 19] The fifth factor relates to the officer’s testimony that Fields was very nervous during the stop. “Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” State v. Heitzmann, 2001 ND 136, ¶ 15, 632 N.W.2d 1 (citing Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). However, nervousness alone is not enough to establish a reasonable and articulable suspicion because “[i]t certainly cannot be deemed unusual for a motorist to exhibit signs of nervousness when confronted by a law enforcement officer.” Beck, 140 F.3d at 1139.

[¶ 20] The sixth factor to consider is the officer’s disbelief of Fields’ explanation for driving late at night. “The lateness of the hour is another fact that may raise the level of suspicion.” United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993) (citing United States v. Knox, 950 F.2d 516, 519 (8th Cir.1991)). When he was stopped at 3:24 a.m., Fields claimed that he was driving to a convenience store to buy milk and cereal. The officer thought that this “story” was “suspicious.” Courts have recognized that unusual or suspicious travel plans may give rise to reasonable suspicion. See Beck, 140 F.3d at 1139 (citing United States v. Wood, 106 F.3d 942, 946-47 (10th Cir.1997)). However, in this case, Fields’ explanation can describe innocent behavior. People oftentimes find it necessary to purchase goods at night. That is precisely why some stores are open 24 hours a day. Additionally, there are many people who, because of work or other reasons, do not keep regular hours and would need to do their shopping at night.

[¶ 21] Although the State has advanced several factors, which are valid considerations in forming reasonable suspicion, we conclude that the combination of factors present in this case is not sufficient to provide the officer with a reasonable and articulable suspicion that criminal activity was afoot. See Jones, 269 F.3d at 929. But see State v. Lee, 265 Neb. 663, 658 N.W.2d 669 (Neb.2003). Before the initial traffic stop occurred, the officer had knowledge of Fields’ past criminal history and of the non-specific information received from fellow officers and a confidential informant. Undisputably, this information did not amount to the reasonable and articulable suspicion needed to initiate a traffic stop; it was the. officer’s knowledge of the expired tabs that made the initial traffic stop valid. The only additional observations made by the officer during the initial stop were Fields’ nervous behavior and his “suspicious” story about going to the convenience store at 3:24 a.m. Nervousness during a traffic stop and traveling during the late-night hours are acts that could “describe a very large category of presumably innocent travelers.” Jones, at 927 (quoting Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)). Considering the totality of the circumstances in this case, we conclude that the officer in this case was acting on a “mere hunch” when he seized Fields to wait for the drug detection dog. Reasonable suspicion requires more than a “mere hunch.” See Kenner, 1997 ND 1, ¶ 8, 559 N.W.2d 538. We conclude that the continued detention of Fields past the point necessary to complete the initial traffic stop violated his Fourth Amendment right to be free from unreasonable seizure. Therefore, the evidence obtained as a result of the unlawful detention is tainted and should be suppressed. See Jones, at 929; Beck, 140 F.3d at 1140 (both citing Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The trial court properly granted Fields’ Motion to Suppress. We affirm.

[¶ 22]WILLIAM A. NEUMANN and CAROL RONNING KAPSNER, JJ„ concur.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 23] I concur in the result reached by the majority opinion. Although the officer may have had reasonable suspicion that Fields was dealing in drugs, I agree with the majority opinion there is no evidence to support a reasonable suspicion he had drugs in the motor vehicle as opposed to his home, place of business or other places he frequented or which he might have owned.

[¶ 24]GERALD W. VANDE WALLE, C.J.

SANDSTROM, Justice,

dissenting.

[¶ 25] Because the majority misapplies the law, I respectfully dissent.

[¶ 26] We affirm factual findings in preliminary proceedings unless they are not supported by sufficient competent evidence or they are contrary to the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D. 1994). We do not make our own factual findings. Lock v. Moore, 541 N.W.2d 84, 86 (N.D.1995).

[¶ 27] Whether the facts support a reasonable and articulable suspicion is a fully reviewable question of law. City of Fargo v. Ovind, 1998 ND 69, ¶ 6, 575 N.W.2d 901. In determining whether a reasonable suspicion exists, we apply an objective standard, taking into account the inferences and deductions an investigating officer would make that might elude a layperson. State v. Kenner, 1997 ND 1, ¶ 8, 559 N.W.2d 538. We are to consider the totality of the circumstances in deciding whether reasonable suspicion exists. Ovind, at ¶ 8.

[¶ 28] The majority, at ¶¶ 15-21, instead of considering the totality of the circumstances, parses the circumstances. The majority, at ¶ 20, injects “facts” of its own. And, the majority, at ¶ 18, e.g., applies a standard more akin to probable cause to test whether there was reasonable suspicion.

[¶ 29] At 3:24 in the morning, a law enforcement officer stopped Fields for driving with expired motor vehicle license tags. The officer knew that Fields had been arrested for drug dealing the previous month. The officer knew the Metro Area Narcotic’s Task Force had reported that Fields had recently received a drug shipment and that a confidential informant had reported Fields continued to deal drugs. Fields was acting nervous and gave what the officer considered to be an implausible story, claiming he had gone out to buy milk at 3 o’clock in the morning. Given these circumstances, would a reasonable officer be reasonably suspicious? I believe a reasonable officer would be.

[¶ 30] Would a reasonable officer reasonably think Fields was giving an implausible story and acting nervous because his drugs were stashed at a different location? Or would a reasonable officer — exercising common sense and professional expertise — reasonably suspect Fields was giving an implausible story and acting nervous because the drugs were present at the scene? I believe a reasonable officer would believe the latter.

[¶ 31] I would reverse the district court’s order suppressing the drugs seized after subsequent probable cause led to a search.

[¶ 32]DALE SANDSTROM, J.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2003 ND 82
    In the Matter of DISCIPLINARY ACTION AGAINST Bryan L. GIESE, 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. Bryan L. Giese, Respondent.
    No. 20020315.
    Supreme Court of North Dakota.
    June 3, 2003.

      Paul W. Jacobson, Disciplinary Counsel, Bismarck, ND, for petitioner.
    John M. Olson (argued), Olson Cichy, Bismarck, ND, and Bryan L. Giese (on brief), Mandan, ND, for respondent.
   PER CURIAM.

[¶ 1] Brian Giese petitioned for review of a hearing panel’s report, which found he violated N.D.R. Prof. Conduct 1.8, 3.1, 3.2, and 8.4(e) and N.D.R. Lawyer Discipl. 1.2(A)(3) and recommended he be suspended from the practice of law for ninety days and pay costs of $2,714.68 and restitution of $1,824.24. We conclude there is clear and convincing evidence Giese violated those rules, and we adopt the hearing panel’s recommendations.

I

[¶2] Giese was admitted to practice law in North Dakota on October 6, 1980. In 1989, Giese, his wife, and his parents entered into a contract for deed to purchase land from Wilmer and Alma Conitz. Giese was then representing Wilmer and Alma Conitz in a separate dispute regarding the land. See Conitz v. Conitz, 467 N.W.2d 93 (N.D.1991). In April 1989, Giese advised Wilmer and Alma Conitz in writing that he could not represent them in a legal capacity in the sale of the land and recommended they seek independent counsel regarding the transaction. In May 1989, Wilmer and Alma Conitz executed a contract for deed to sell the land to the Gieses. The contract for deed required the Gieses to make monthly payments to Wilmer and Alma Conitz for eighteen years, and the Gieses have never defaulted on any payments due under the contract for deed.

[¶ 3] Wilmer Conitz died after the contract for deed was executed. In September 2000, and with about seven years remaining under the terms of the contract for deed, Giese contacted Alma Conitz and asked her to execute and deliver to Giese and his wife a warranty deed for the land. According to Giese, he promised to continue to make all the payments due under the contract for deed, and he asked Alma Con-itz to sign the warranty deed because he did not want to have to deal with her daughter-in-law and her granddaughters in the future. Giese did not then advise Alma Conitz to seek independent counsel. Alma Conitz executed a warranty deed to the Gieses, which recited “[f]ull payment of [the] Contract for Deed” had been made when, in fact, it had not been paid in full. Giese recorded the warranty deed with the register of deeds.

[¶ 4] In November 2000, Alma Conitz retained an attorney to resolve issues about the warranty deed. Her attorney wrote to Giese in November 2000, demanding the Gieses reconvey the land to her pending payment under the terms of the contract for deed. Giese offered to immediately pay off the contract for deed, or to have appropriate deeds delivered to an escrow agent. Alma Conitz refused to accept immediate payment, and Giese then claimed her refusal was not “reasonable” under language in the contract for deed that precluded her from “unreasonably” withholding consent to prepayment. Giese again sought to have appropriate deeds delivered to an escrow agent. In December 2000, Alma Conitz sued the Gieses, seeking reconveyance of the land. Alma Conitz and the Gieses ultimately settled that action in October 2001, with the Gies-es executing a quit claim deed to Alma Conitz.

[¶ 5] Disciplinary counsel filed a petition for discipline against Giese, alleging he violated N.D.R. Prof. Conduct 1.8, Conflict of Interest: Prohibited Transactions; N.D.R. Prof. Conduct 3.1, Meritorious Claims and Contentions; N.D.R. Prof. Conduct, 8.2, Expediting Litigation; N.D.R. Prof. Conduct 8.4(e), Misconduct; and N.D.R. Lawyer Discipl. 1.2(A)(3). A hearing panel found Giese violated those rules and recommended suspending him from the practice of law for ninety days, imposing $2,714.68 in costs against him, and ordering him to pay $1,824.24 in restitution to the estate of Alma Conitz. Giese objected to the hearing panel’s report.

The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Giese filed a timely petition for review under N.D.R. Lawyer Discipl. 3.1(F). This Court has jurisdiction under N.D. Const. art. VI, § .3, N.D.C.C. § 27-14-01, and N.D.R. Lawyer Discipl. 3.1(F).

II

[¶ 7] We review disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. We accord due weight to the hearing panel’s findings and conclusions, but we do not act as a mere rubber stamp of the hearing panel’s decision. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240. Disciplinary counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. In re Disciplinary Action Against Seaworth, 1999 ND 229, ¶ 24, 603 N.W.2d 176. Each disciplinary case must be considered upon its own facts to decide what discipline, if any, is warranted. Edwardson, at ¶ 9.

III

[¶8] Giese argues the hearing panel’s report fails to recognize several of his procedural objections at the hearing and fails to state several facts.

A

[¶ 9] Giese argues the hearing panel’s report fails to state the hearing panel granted his motion to supplement the record with a supplemental affidavit and exhibits. Before the hearing panel issued its final report, it granted Giese’s motion to supplement the record. Therefore, Giese’s supplemental materials are part of the record before this Court, and Giese’s argument about the hearing panel’s failure to state its action in its report is meritless.

B

[¶ 10] Giese argues the hearing panel’s report fails to state he objected to the introduction into evidence of his answers to interrogatories and requests for admission. Giese argues the hearing panel should have excluded his answers to the requests for admission and his answers to the interrogatories because he was present and available to answer the same questions under oath and the written answers should have been used only to impeach or rebut his sworn testimony.

[¶ 11] Under N.D.R. Lawyer Discipl. 3.5(B), the North Dakota Rules of Civil Procedure and Rules of Evidence apply to disciplinary proceedings. See Hegland v. McKechnie, 2003 ND 37, ¶ 7, 657 N.W.2d 287. Under N.D.R.Civ.P. 33(c), answers to interrogatories are admissible into evidence in a civil action to the extent permitted by the rules of evidence, and Giese’s answers to the requests for admission and to interrogatories are non-hearsay admissions by a party opponent and are admissible into evidence. See N.D.R.Civ. P. 36; N.D.R.Ev 801(d)(2).

[¶ 12] Giese broadly claims all the testimony of the attorney for Alma Conitz and her daughter-in-law should not have been admitted into evidence and should not be considered by this Court. Giese claims, because Alma Conitz died in 2002 and was not available to testify at the disciplinary hearing, he was denied the opportunity to “face and examine his accuser/s, not parties whose potential testimony was clearly objectionable.” Giese has not identified any specific objectionable testimony in his brief to this Court, and his generalized claims that all of the testimony of the two witnesses should be stricken is overly broad. In the absence of a specific citation to objectionable testimony by the two witnesses and because the underlying facts in this case are largely undisputed, we reject Giese’s claims about the admissibility of the testimony of the two witnesses.

IV

[¶ 13] Giese argues the hearing panel’s report fails to state certain findings, the hearing panel’s findings do not support its conclusions and recommendation, and the disciplinary proceeding against him should be dismissed.

[¶ 14] The hearing panel found Giese did not advise Alma Conitz to seek independent counsel in September 2000 when he obtained the warranty deed from her and filed it with the register of deeds; the warranty deed erroneously recited full consideration had been paid for the contract for deed; and Giese refused to reeon-vey the land to Alma Conitz, which resulted in her lawsuit against him in which he acknowledged that there were no issues for trial and the court would order him to reconvey the property to her. The hearing panel concluded Giese’s conduct violated N.D.R. Prof. Conduct 1.8, 3.1, 3.2, and 8.4(e), and N.D.R. Lawyer Discipl. 1.2(A)(3).

A

[¶ 15] We initially consider whether or not Giese’s conduct in obtaining the warranty deed from Alma Conitz and recording that deed violated N.D.R. Prof. Conduct 1.8, which provides:

RULE 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS
1. (a) Except for standard commercial transactions involving products or services that the client generally markets to others, a lawyer shall not enter into a business, financial or property transaction with a client unless:
(1) The transaction is fair and reasonable to the client; and
(2) After consultation, including advice to seek independent counsel, the client consents to the transaction.

[¶ 16] The hearing panel found Giese advised Wilmer and Alma Conitz to seek independent counsel when the contract for deed was signed in 1989, but Giese did not advise Alma Conitz to seek independent counsel in September 2000. Giese claims there was no attorney-client relationship between him and Alma Conitz in September 2000. He essentially claims he was dealing with Alma Conitz as a private party and not as her attorney in September 2000 when she willingly and voluntarily executed the warranty deed.

[¶ 17] In Disciplinary Bd. v. McKechnie, 2003 ND 22, ¶ 19, 656 N.W.2d 661 (quoting AJBA/BNA Lawyers’ Manual on Professional Conduct, at 31:101 (2002)), we said, “the lawyer-client relationship begins when the client acknowledges the lawyer’s capacity to act in his behalf and the lawyer agrees to act for the benefit and under the control of the client.” The existence of an attorney-client relationship does not depend on an express contract or the payment of fees, and may be implied from the parties’ conduct. McKechnie, at ¶ 19. An attorney-client relationship is established when a party seeks and receives advice and assistance from an attorney on matters pertinent to the legal profession. Matter of Petrie, 154 Ariz. 295, 742 P.2d 796, 800 (1987). See 7 Am.Jur.2d Attorneys at Law § 136 (1997). The existence of an attorney-client relationship turns largely on the client’s subjective belief it exists and looks to the nature of the work performed and to the circumstances under which confidences are divulged. Petrie, at 800-01; Louisiana State Bar Ass’n v. Bosworth, 481 So.2d 567, 571 (La.1986); Matter of McGlothlen, 99 Wash.2d 515, 663 P.2d 1330, 1334 (1983). The attorney-client relationship and the prohibition of transactions with a client continue as long as the influence arising from the attorney-client relationship continues. McGlothlen, at 1335. See Petrie, at 801. See also 7 Am.Jur.2d Attorneys at Law at § 145. The existence of an attorney-client relationship is a question of fact. Moen v. Thomas, 2001 ND 110, ¶ 13, 628 N.W.2d 325.

[¶ 18] According to Giese, in September 2000 Alma Conitz and he did not have a “continuing, ongoing attorney/client relationship,” and their relationship “would come and go at times, and basically all’s [sic] I was doing for her at that point in time was income taxes on an annual basis.” Giese testified he represented both Wilmer and Alma Conitz on various items, including tax work, between 1989 and September 2000. This Court has said tax work is the practice of law. See Disciplinary Bd. v. Larson, 485 N.W.2d 345, 350 (N.D.1992). Giese also testified he prepared a will for Alma Conitz, which she signed on July 23, 1998. This record also includes a November 3, 2000, letter from Giese to Alma Conitz, which stated:

I write this letter in order to follow up on statements or direction I have received from your daughter-in-law, Betty Mischel. Betty has told me that she wants me to change or amend your Last Will and Testament in several respects. I have thought about this for several days and have decided that as an attorney, I can not morally and ethically assist you in this matter. It is my opinion that I would be going against Wilmer’s wishes, desires and directives to change your Will. If you insist on doing so, I suggest you retain another attorney to do so.
There are several matters, however that we must take care of and which I will assist you, for a small fee/costs only:
1. Open a simple estate/probate file on Wilmer’s estate in order to convey his interest in the rural property to you the surviving spouse. Please get Wilmer’s original Last Will & Testament to me.
2. We need to get Farmers Home Administration (now called the FSA) to release and satisfy the old real estate mortgages that Kenneth and Betty Conitz signed and gave to FmHA many years ago. In this regard, I need the abstracts of title to the property so we can get this cleared up. Please go to New Salem, or wherever, and get the abstracts for me.
If you need a ride to travel, I will assist you.
I look forward to many years of business relationship and friendship with you. Please keep your health up to the best of your ability.

[¶ 19] Giese was advising Alma Conitz on matters pertaining to the legal profession when he annually prepared her taxes and when he declined the request to change her will for moral and ethical reasons but stated there were several probate matters “we must take care of’ and offered to assist her. Giese’s November 2000 letter to Alma Conitz is clear evidence he provided her with legal advice and viewed himself as her attorney during this time period. Although Giese claims all his files with Alma Conitz had been closed and he had no attorney-client relationship with her in September 2000, his communications with Alma Conitz establish a continuous pattern of legal advice by him. We conclude the evidence clearly and convincingly establishes the influence arising from the attorney-client relationship between Giese and Alma Conitz existed in September 2000, and we reject Giese’s claim he did not have an attorney-client relationship with her in September 2000.

[¶ 20] Giese nevertheless argues his 1989 advice to Wilmer and Alma Conitz was never withdrawn and applies to his September 2000 conduct with Alma Conitz. We disagree.

[¶21] Giese’s 1989 letter to Wilmer and Alma Conitz provided, in part:

As you know, we have discussed over the past year or more the possibility or idea of my wife and me purchasing your farm from you. At first this was just an idea or thought, but over the past couple of months we have done some serious negotiations regarding this matter and it appears now that we have come very close to closing a written contract in this regard with my parents also being involved as buyers.
I write this letter in order to confirm the fact that we have discussed and I have informed you that I can not represent you in a legal capacity relative to this matter because of my involvment [sic] as a buyer under the proposed contract. As such, I recommend that you retain your own independent attorney or legal counsel, and / or be completely sure from your own perspective or interests as to the exact terms and conditions of the document. Further, do not sign the contract for deed document unless you are completely satisfied with its written terms and conditions.
While I feel that you and I have been completely honest and up-front with each other relative to this contract and the negotiations we have gone through, I want to avoid completely the prospect that at a later date either you or any of your representatives or heirs, would allege that I took advantage of you regarding any aspect of this transaction.

[¶ 22] The parties have cited no authority regarding the continued validity of Giese’s 1989 advice in a similar situation, and we have found none. Giese testified he “dealt with [Wilmer Conitz] pretty much exclusively” in 1989. Business transactions between an attorney and client are fraught with pitfalls and traps, and an attorney, with his superior knowledge and education, engages in business transactions with a client at the attorney’s peril and is held to the highest standards. See In re Lowther, 611 S.W.2d 1, 2 (Mo. 1981). The attorney must take precautions to ensure the client is fully aware of the details and risks of the transaction, and a passing suggestion to consult a second attorney does not discharge an attorney’s obligation. See In re Smyzer, 108 N.J. 47, 527 A.2d 857, 861-62 (1987). Although Giese’s 1989 advice to Wilmer and Alma Conitz may have been sufficient to remove the contract for deed from the auspices of a prohibited transaction in 1989, we reject Giese’s claim the earlier advice governs his conduct in September 2000. The September 2000 transaction involved issues different from the 1989 sale of land by a contract for deed, and the 2000 transaction was not contemplated by the terms of Giese’s 1989 advice. We reject Giese’s claim that his 1989 advice to Wilmer and Alma Conitz continued to govern his September 2000 conduct with Alma Conitz, and we conclude the evidence clearly and convincingly establishes Giese’s September 2000 conduct violated N.D.R. Prof. Conduct 1.8.

B

[¶ 23] The hearing panel’s other findings involve Giese’s response to the lawsuit by Alma Conitz. The hearing panel found:

4. Alma Conitz retained the services of another attorney to secure the recon-veyance of the property. The new attorney wrote to [Giese] on November 6, 2000, demanding that [he] immediately convey the property by warranty deed back to Alma Conitz. [Giese] refused to do so. On December 18, 2000, the new attorney served [Giese] with a Summons and Complaint seeking reconveyance of the property to Alma Conitz. The trial was scheduled for October 17, 2001. At a final pre-trial conference by telephone on October 3, 2001, [Giese] acknowledged that there were no issues for trial and he conceded that the court would order him to reconvey the property to Alma Conitz. [Giese] executed a quit claim deed on October 4, 2001, with his wife, which reconveyed the property to Alma Conitz as she had previously requested in November, 2000. Her costs for this litigation were $1,824.24.
The conduct of ... Giese violated the following Rules of Professional Conduct:
2. RULE 3.1, MERITORIOUS CLAIMS AND CONTENTIONS, RPC, which provides that a lawyer shall not make or controvert an issue in a proceeding unless there is a basis for doing so that is not frivolous, as [Giese] defended and prolonged the litigation to reconvey the property to Alma Conitz without any valid defense;
3. RULE 3.2, EXPEDITING LITIGATION, RPC, which provides that a lawyer shall make reasonable efforts to expedite litigation consistent with the best interest of the client, in that [Giese] unnecessarily prolonged the litigation described above from December, 2000, until October, 2001, when he should have reconveyed the property to Alma Conitz at or before the time when the suit was commenced;
4. RULE 1.2A(3), NDRLD, which provides that it is misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, as [Giese] filed with the Register of Deeds the warranty deed he had obtained from Alma Conitz even though the contract for deed had not been fully satisfied and paid in full as recited in the warranty deed and he had not informed Alma Conitz that he was going to file the warranty deed with the Register of Deeds;
5. RULE 8.4(e), MISCONDUCT, RPC, which provides it is professional misconduct to engage in conduct enumerated in the North Dakota Century Code as a basis for revocation or suspension of a lawyer’s certificate of admission, through violation of § 27-13-01(2), NDCC, maintaining a defense to a claim that is not honestly debatable under the law, § 27-13-01(6), NDCC, employing means that are not consistent with truth and honor, and § 27-14-02(7), NDCC, committed any other act that brings reproach upon the legal profession, as set forth in the Findings.

[¶ 24] Giese was a named defendant in the action by Alma Conitz. Although Giese argues he was sued in his capacity as a private party and not in his capacity as an attorney, his argument ignores that the lawsuit by Alma Conitz emanated from his attorney-client relationship with her. Attorneys are officers of the court, see N.D.R. Prof. Conduct, Preamble, Scope and Terms, and this Court has disciplined attorneys for conduct as litigants in a civil action. Disciplinary Bd. v. Bard, 519 N.W.2d 286 (N.D.1994). Giese’s obligations as an attorney and officer of the court did not diminish or terminate simply because he was a named party in the lawsuit. Rather, Giese was a party in that lawsuit as a result of conduct emanating from his attorney-client relationship with Alma Conitz. This record establishes that Giese’s conduct necessitated the lawsuit by Alma Conitz and unnecessarily delayed the proper resolution of that action. We conclude the evidence clearly and convincingly establishes Giese’s conduct violated N.D.R. Prof. Conduct 3.1, 3.2, and 8.4(e) and N.D.R. Lawyer Discipl. 1.2(A)(3).

Y

[¶ 25] The hearing panel recommended Giese be suspended from the practice of law for ninety days. In deciding the appropriate sanction for a violation of the rules of professional conduct, we find guidance in the North Dakota Standards for Imposing Lawyer Sanctions. Edwardson, 2002 ND 106, ¶21, 647 N.W.2d 126.

[¶ 26] Standard 4.3, N.D. Stds. Imposing Lawyer Sanctions, provides:

4.3 Failure to Avoid Conflicts of Interest.
Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving conflicts of interest:
4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.

Standard 6.2, N.D. Stds. Imposing Lawyer Sanctions, provides:

6.2 Abuse of the Legal Process.
Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving failure to expedite litigation or bring a meritorious claim, or failure to obey any obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists:
6.22 Suspension is generally appropriate when a lawyer knows that he or she is violating a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.

[¶ 27] Considering Giese’s professional misconduct and the injury caused to Alma Conitz, we agree with the hearing panel that a ninety-day suspension is appropriate under the circumstances of this case. We order Giese to pay restitution of $1,824.24 to the estate of Alma Conitz and costs of $2,714.68 for this proceeding.

VI

[¶ 28] We conclude Giese violated N.D.R. Prof. Conduct 1.8, 3.1, 3.2, and 8.4(e) and N.D.R. Lawyer Discipl. 1.2(A)(3), and we order he be suspended from the practice of law for ninety days, effective August 1, 2003, pay restitution of $1,824.24 to the estate of Alma Conitz, and pay costs of $2,714.68 for this disciplinary proceeding.

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


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 85
    Jody L. FERCHO, f/k/a Jody L. Remmick, Plaintiff and Appellant, v. Thomas L. REMMICK, Defendant and Appellee.
    No. 20020286.
    Supreme Court of North Dakota.
    June 3, 2003.

      Douglas A. Bahr (argued), Solicitor General, Attorney General’s Office, Bismarck, ND, and Mark S. Douglas (appeared), Child Support Enforcement Unit, Jamestown, ND, for plaintiff and appellant.
    Thomas L. Remmick, pro se, Jamestown, ND. No appearance.
   VANDE WALLE, Chief Justice.

[¶ 1] Jody Fercho appealed an August 2002 district court order which required the South Central Child Support Enforcement Unit (“Unit”) to conduct a review of Thomas Remmick’s child support obligation. Because we hold this appeal is moot, we dismiss.

I

[¶ 2] When Fercho and Remmick divorced in 1992, the initial district court judgment established Remmick would pay $50 per month for child support for the parties’ two children. An amended judgment entered in December 1998 increased Remmick’s child support obligation to $300 per month, and a Second Amended Judgment entered in April 2002 modified his obligation to $200 per month. A hearing on an order requiring Remmick to show cause why he should not be held in contempt was also held in April 2002, and the court ordered him to begin making monthly arrearage payments. The order also contained provisions concerning income withholding procedures and instructions to notify the court if Remmick received a Social Security Disability Insurance benefits check. The district court indicated it would review the order in June 2002.

[¶ 3] In August 2002, a hearing was held, apparently to review the April order. Remmick was current on his child support and arrearage payments at the time of the August hearing. Remmick testified his income had increased from $767 to $1187 because he was now receiving additional Veteran’s Administration benefits for his children. At the hearing, the district court concluded a review of the child support amount was necessary to verify the new information and to ensure the support amount was “fair,” considering Remmick’s increased income.

[¶ 4] Under N.D.C.C. § 14-09-08.4(1), a child support agency must review a child support order “no less frequently than thirty-six months after the establishment of the order or the most recent amendment or review of the order by the court or child support agency,” with certain statutory exceptions. The Unit requested a written order if the court was requiring the Unit to conduct a review, stating “if we are being asked to do a review then the Unit would enter an objection because the review would be done at less than 35 months from the April 2002 modification.” The court subsequently ordered the Unit to conduct a review of Remmick’s child support obligation because of a change in circumstances resulting from his increased income. The Unit moved the court to reconsider the order, and prior to a ruling on the motion, filed a notice of appeal.

[¶ 5] Attorneys from the Office of the Attorney General and the Unit (“State”) represent Fercho in this appeal under N.D.C.C. § 14-09-09.26 which specifies the State is a real party in interest in certain child support matters. The State contends the district court order to conduct an early child support review violated the principle of separation of powers in our system of government by encroaching on an executive agency’s discretion and by encroaching on the legislature’s power to determine legislative policy. See N.D. Const, art. XI, § 26; State v. Hanson, 558 N.W.2d 611, 614 (N.D.1996). Remmick did not file an appellee’s brief.

[¶ 6] In February 2003, this Court granted Remmick’s motion for remand to allow the district court to consider his motion for modification of child support. Remmick’s children had started to receive $580 per month for social security dependent disability benefits. The Third Amended Judgment entered in March 2003 established a $520 monthly child support obligation, and because the dependent benefits exceeded this amount, Remmick was not required to contribute additional money. The judgment also eliminated Remmick’s arrearages because he had received a lump sum payment for past social security children’s benefits. The Unit never conducted the court-ordered child support review, which is the subject of this appeal.

II

[¶ 7] Before reaching the merits of an appeal, we consider the threshold issue of mootness. Simpson v. Chicago Pneumatic Tool Co., 2003 ND 31, ¶ 7, 657 N.W.2d 261 (citing Bland v. Comm’n on Med. Competency, 557 N.W.2d 379, 381 (N.D.1996)). This Court does not render advisory opinions, and we will dismiss an appeal if the issues become moot or academic so no actual controversy is left to be determined. Ashley Educ. Ass’n v. Ashley Pub. Sch. Dist., 556 N.W.2d 666, 668 (N.D. 1996). An appeal is moot when an appellate court is unable to render effective relief because of the lapse of time or because of the occurrence of an event prior to the appellate court’s determination. Id. Under N.D.R.App.P. 42, when a change of circumstances may render an issue on appeal moot, a party has a duty to notify this Court, in writing, and explain why the appeal should or should not be dismissed.

[¶ 8] The mootness issue in this case arises from an event which occurred after the district court’s decision, but prior to oral argument. See, e.g., DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 17, 636 N.W.2d 432 (dismissing an appeal because satisfaction of judgment rendered appeal moot); In Interest of E.T., 2000 ND 174, ¶ 6, 617 N.W.2d 470 (dismissing an appeal of involuntary medication order as moot because patient had been released from hospital and involuntary feeding was stopped). Here, the Unit stated it had no objection to Remmick’s motion to modify child support, and the Third Amended Judgment modified Remmick’s child support obligation to reflect his present financial status. The Unit had not conducted the court-ordered child support review pri- or to remand, and the Third Amended Judgment relieved the Unit of its obligation to conduct the review. Therefore, we conclude no “actual controversy” exists, and this appeal is moot.

[¶ 9] Nevertheless, this Court will determine an issue that is moot, rather than dismiss the appeal, “if the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review.” Sposato v. Sposato, 1997 ND 207, ¶ 9, 570 N.W.2d 212 (quoting Ashley Educ. Ass’n, 556 N.W.2d at 668). In previous cases, we have used the following definition of “public interest”:

We understand “public interest” to mean more than mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as the interest of the particular localities which may be affected by the matter in question.

Ashley Educ. Ass’n, at 668 (quoting Forum Pub. Co. v. City of Fargo, 391 N.W.2d 169, 170 (N.D.1986)).

[¶ 10] For example, we concluded a prosecutor’s power to charge an individual with the same crime after dismissing a prior complaint for lack of probable cause was an issue of significant public interest with statewide importance because it affected the scope of a prosecutor’s authority and the legal rights of citizens. Walker v. Schneider, 477 N.W.2d 167, 170 (N.D.1991). We also determined a party’s claim involving millions of dollars of state aid to local school districts which asserted a statute unconstitutionally delegated legislative power and challenged state officials’ authority to impinge on the legislative assembly’s appropriation power was a matter of great public concern. North Dakota Council of Sch. Adm’rs v. Sinner, 458 N.W.2d 280, 283 (N.D.1990).

[¶ 11] The State has also raised significant public interests by asserting a violation of the principle of separation of powers and judicial encroachment on the other branches of government. However, the community at large is not affected by the district court’s order, nor does it implicate citizens’ rights. In Sposato v. Sposato, this Court dismissed as moot a custodial parent’s appeal of an order granting grandparent visitation for a specific time because the specified time period had expired. Sposato, 1997 ND 207, ¶ 10, 570 N.W.2d 212. We stated “[w]hile grandparent visitation rights in general are of public interest and may even raise constitutional issues of parental rights, this particular order has no statewide implications.” Id. at ¶ 9. After reviewing the record on appeal in this case, we conclude the district court ordered the child support review to evaluate a specific situation, given the unique circumstances of the parties and the procedural history of the case. Thus, although general child support issues are matters of public interest, this particular order did not affect the “public interest” in the manner contemplated by our prior case law, nor do we believe the separation-of-powers argument inherent in the specific facts of this case rises to that level.

[¶ 12] Although a court-ordered child support review could occur again, we will not render a purely advisory opinion merely because the issue may arise in the future. See In Interest of E.T., 2000 ND 174, ¶ 7, 617 N.W.2d 470; Gosbee v. Bendish, 512 N.W.2d 450, 454 (N.D.1994). The State’s brief projects the potential monetary costs of court-ordered child support reviews, if North Dakota district court judges ordered such reviews on a regular basis. However, these projections are speculative as nothing in the record indicates such repetitive occurrences do, in fact, occur. We do not perceive this to be an issue which inherently evades review. Cf. Bolinske v. N.D. State Fair Ass’n, 522 N.W.2d 426, 430 (N.D.1994) (concluding the restriction of an individual’s ability to circulate petitions at the annual state fair was an issue capable of repetition without opportunity for review because the fair is an annual, short-term event); Collins v. Collins, 495 N.W.2d 293, 296 (N.D.1993) (concluding an appeal regarding interstate income withholding to enforce child support judgments involves issues capable of repetition which would otherwise evade review when an obligor quits his or her job or leaves the state to evade income withholding). While we recognize the potential for the issue presented here to reoccur, the State has not brought the matter before us in a manner which can be properly determined by this Court.

Ill

[¶ 13] We conclude this appeal is moot and does not involve an issue of great public interest or a matter capable of repetition, yet evading review. Accordingly, we dismiss.

[¶ 14] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEH-LEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

      . Because of our disposition of this case we do not consider whether or not the order was appealable.


author: SANDSTROM, Justice.

text:
    2003 ND 83
    STATE of North Dakota, Plaintiff and Appellee, v. Anthony James MOORE, Defendant and Appellant.
    No. 20020305.
    Supreme Court of North Dakota.
    June 3, 2003.
    Rehearing Denied June 17, 2003.

      Birch P. Burdick, State’s Attorney, Courthouse, Fargo, N.D., for plaintiff and appellee.
    Anthony James Moore, pro se, State Penitentiary, Bismarck, N.D., defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Anthony James Moore appeals the district court order denying post-judgment motions following Moore’s conviction on one count of gross sexual imposition. Moore appeals the district court’s denial of his post-trial motion for pretrial discovery materials, his post-trial motion for the prospective juror list used at trial, his motion for a complete transcript of his trial, his motion for the removal of documents from the register, and his motion to dismiss his second count with prejudice. We dismiss the appeal for lack of appealability.

I

[¶ 2] Moore was charged with two counts of gross sexual imposition, involving different victims on different occasions. The counts were separated for trial. Moore was tried and convicted by a jury of gross sexual imposition on one count on November 28, 2001, and sentenced to twenty years in prison. On December 13, 2001, the district court granted the State’s motion to dismiss the second count without prejudice. Moore filed numerous post-trial motions with the district court between November 30, 2001, and January 2, 2002, all of which were denied on January 22, 2002. Eight months later, between September 23, 2002, and October 17, 2002, Moore filed eleven additional motions with the district court, including motions for pretrial discovery materials, a transcript of the entire court proceeding, the prospective juror list used at the November 27, 2001, trial, and dismissal of the second count with prejudice. On October 21, 2002, the district court denied Moore’s motions because at the time Moore filed them he did not have a current action pending in the East Central Judicial District Court or in any other court. Moore appealed the district court’s October 21, 2002, denial of his motions.

[¶ 3] On appeal, Moore asks this Court to remand the district court’s denial of his motions, to have the district court dismiss the second count with prejudice, to have the district court provide him with a transcript of the entire court proceeding, pretrial discovery materials, and the prospective juror list used at trial, and to have the court remove and destroy documents from the register.

II

[¶ 4] Moore argues that the district court erred in denying his motions to have the district court provide him with a transcript of the entire court proceeding, pretrial discovery materials, and the prospective juror list used at trial, and to have the court remove and destroy documents from the register. The right of appeal in North Dakota is governed purely by statute, and an order is appealable only if it comes within the provisions of a specific statute. State v. Peterson, 334 N.W.2d 483, 484 (N.D.1983) (citing State v. Jefferson Park Books, Inc., 314 N.W.2d 73, 75 (N.D.1981)). Although “[sjtatutes conferring the right to appeal must be liberally construed to maintain the right to appeal,” the party appealing bears the burden of showing that the right to appeal comes within the language of a statute. Id.

[¶5] Section 29-28-06, N.D.C.C., provides statutory authority for appeals by a defendant in a criminal case, and states:

An appeal may be taken by the defendant from:
1. A verdict of guilty;
2. A final judgment of conviction;
3. An order refusing a motion in arrest of judgment;
4. Am order denying a motion for a new trial; or
5. An order made after judgment affecting any substantial right of the party.

[¶ 6] Moore’s appeal does not fall within subsections 1 through 4 of N.D.C.C. § 29-28-06. For Moore’s appeal to come under the statute, this Court would have to conclude the district court’s denial of Moore’s post-conviction motions affects his substantial rights under N.D.C.C. § 29-28-06(5). Moore’s discovery motions filed with the district court eight months after his conviction were not timely and do not affect any of his substantial rights. We conclude the district court’s denial of Moore’s discovery motions is not appeal-able. N.D.C.C. §§ 28-27-02, 29-28-06.

Ill

[¶ 7] Moore argues that dismissal of the second count without prejudice allows the prosecution to bring him to trial again, amounting to an unreasonable delay in trying his case. He argues his Sixth Amendment right to a speedy trial is violated.

[¶ 8] The United States Supreme Court has explained, the Sixth Amendment’s “Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges.” United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). The court explained:

The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.
Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in Marion, where the defendants had been subjected to a lengthy investigation which received considerable press attention. But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, “a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.” United States v. Marion, 404 U.S. [307], 321, 92 S.Ct. 455, 30 L.Ed.2d 468 [1971]. Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety' is no greater than it is upon anyone openly subject to a criminal investigation.

MacDonald, 456 U.S. at 8-9, 102 S.Ct. 1497 (footnotes omitted).

[¶ 9] The Eighth Circuit and other federal courts of appeals that have considered the question of a district court order dismissing an indictment without prejudice under the Speedy Trial Act have held the dismissal “is not a final decision” and therefore is not appealable. United States v. Holub, 944 F.2d 441, 442 (8th Cir.1991); see also United States v. Ford, 961 F.2d 150, 151 n. 1 (9th Cir.1992); United States v. Jones, 887 F.2d 492, 493 n. 2 (4th Cir.1989); United States v. Kelley, 849 F.2d 1395, 1396 (11th Cir.1988); United States v. Reale, 834 F.2d 281, 282-83 (2d Cir.1987); United States v. Bratcher, 833 F.2d 69, 72 (6th Cir.1987). Under this holding, courts have explained that “absent extraordinary circumstances, a defendant has no standing to appeal the dismissal of an indictment.” United States v. Femia, 57 F.3d 43, 49 (1st Cir.1995) (citation omitted). There is no standing because the defendant has not been legally aggrieved by such action. Parr v. United States, 351 U.S. 513, 517-18, 76 S.Ct. 912, 100 L.Ed. 1377 (1956); Reale, 834 F.2d at 282.

[¶ 10] Upon the State’s motion under N.D.R.Crim.P. 48(a), the district court dismissed Moore’s second count of the information without prejudice. In North Dakota, felony prosecutions usually proceed under an information in place of an indictment. See N.D. Const. art. I, § 10; N.D.R.Crim.P. 7. Federal case law holds that dismissal of an indictment without prejudice on a motion brought through the Government under Federal Rule of Criminal Procedure 48(a) is not a final appealable order. United States v. Day, 806 F.2d 1240, 1242 (5th Cir.1986) (district court order dismissing indictment without prejudice on Government’s motion under Federal Rule of Criminal Procedure 48(a) is not a final appealable order); United States v. Moller-Butcher, 723 F.2d 189, 190-91 (1st Cir.1983); United States v. Lankam, 631 F.2d 356, 357-58 (4th Cir. 1980). The comments in N.D.R.Crim.P. 48(a) indicate that the rule follows the language and meaning of Fed.R.Crim.P. 48(a). State ex rel. Koppy v. Graff, 484 N.W.2d 855, 857 n. 2 (N.D.1992). We, likewise, hold that a district court’s dismissal "without prejudice, upon the State’s motion under N.D.R.Crim.P. 48(a), is not appealable. Therefore, dismissal of Moore’s second count without prejudice is not appealable. If Moore is recharged on the second count and is convicted, he may be able to pursue his claims on direct appeal. See United States v. Holub, 944 F.2d 441, 442 (8th Cir.1991).

IV

[¶ 11] We conclude Moore’s issues are not appealable to this Court because Moore’s motions were not timely and we lack jurisdiction under the provisions of N.D.R.App.P. 4(b)(1) or N.D.C.C. §§ 28-27-02 and 29-28-06.

[¶ 12] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEBLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: MARING, Justice.

text:
    2003 ND 84
    In the Matter of GARRISON STATE BANK AND TRUST. THOMPSON FUNERAL HOMES, INC., Appellant, v. ALDERWOODS GROUP, INC., f/k/a The Loewen Group, Inc., Appellee.
    No. 20020341.
    Supreme Court of North Dakota.
    June 3, 2003.

      LaRoy Baird III, LaRoy Baird, P.C., Bismarck, ND, for appellant.
    B. Timothy Durick (argued) and David E. Reich, Pearce & Durick, Bismarck, ND, for appellee.
   MARING, Justice.

[¶ 1] The Thompson Funeral Home, Inc. (“Thompson”) appealed from a summary judgment dismissing its claim for funds held on deposit in a checking account with Garrison State Bank and Trust. The district court found Thompson failed to present a genuine issue of material fact about its entitlement to the funds and concluded, as a matter of law, the money in the account belonged to Alderwoods Group, Inc. (“Alderwoods”). We affirm.

I

[¶ 2] Dennis and Clara Thompson owned and operated the Thompson Funeral Home in Garrison and opened the Garrison State Bank and Trust account, number 002-436, to operate the business. In 1996, they sold the funeral home to the Loewen Group International, Inc. (“Loewen”). After they sold the company, the account at Garrison State Bank and Trust remained open and Loewen continued to use it as a business operating account. The contract for the sale of the business required a $185,000 cash down payment and an unsecured promissory note in the amount of $380,000 to be paid off in ten annual payments. Loewen filed for bankruptcy in September of 1999, and Thompson filed an unsecured claim in the bankruptcy court for the balance of the purchase price. The business was ultimately acquired by Vertin Acquisition Entity, L.L.C. (“Vertin”), but documents show that Loewen retained all cash assets. The business was ultimately sold by Vertin back to Dennis and Clara Thompson. On January 2, 2002, Loewen changed its name to Alderwoods.

[¶ 3] This action was initiated by Garrison State Bank and Trust, under N.D.C.C. ch. 32-11, to deposit with the clerk of the district court $176,621.15 in proceeds in checking account number 002-436, asserting the bank was holding the funds in the account but was uncertain who had a legal right to claim the funds. Thompson and Alderwoods were notified of the action by the bank, and both responded, asserting a legal right to the funds in the account. The district court granted Alderwoods’ motion for summary judgment, dismissing Thompson’s claim to the funds and directing the bank to release the funds to Aider-woods.

[¶ 4] On appeal, Thompson asserts the district court erred in granting summary judgment, because there are genuine issues of material fact that need to be resolved. Alderwoods asserts the district court properly granted summary judgment, because Thompson has failed to support its claim for the funds with documentation or evidence to raise a genuine issue of material fact that Thompson has a legal claim to the funds.

II

[¶ 5] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for prompt and expeditious disposition of a controversy without a trial if there is no genuine issue of material fact or if the law is such that resolution of the factual disputes will not alter the result. Grinnell Mut. Reinsurance Co. v. Farm, & City Ins. Co., 2000 ND 163, ¶ 18, 616 N.W.2d 353. In considering a motion for summary judgment, the court may examine the pleadings, depositions, admissions, affidavits, interrogatories and inferences to be drawn from that evidence. Id. If the moving party meets its initial burden of showing the absence of a genuine issue of material fact, a nonmoving party may not rely on mere allegations, but must present competent evidence by affidavit or other comparable means creating a material factual dispute. Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 7, 599 N.W.2d 293. The party resisting a summary judgment motion must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. Dahlberg v. Lutheran Soc. Servs. of North Dakota, 2001 ND 73, ¶ 11, 625 N.W.2d 241. An issue of fact may be appropriate for summary judgment if reasonable minds can draw only one conclusion from the evidence. Id.

[¶ 6] In its decision granting summary judgment, the district court explained:

Thompson has failed to present competent evidence outlining its claim to the funds in the account. Thompson from all evidence provided by Alderwoods sold the funeral home business in 1996 and received credit and funds pursuant to the purchase agreement. The transaction was complete and Thompson had no claim to the bank account at that time. The fact a signature card remained at the bank does not create an interest in a bank account some five years later. The loss of Thompson’s unsecured debt due to Alderwoods predecessor filing bankruptcy also does not create a right to the funds in the account. Thompson fails to provide any form of evidence indicating the remaining funds in the account are due Thompson from the initial sale of the funeral home business in 1996.
Alderwoods, on the other hand, has provided documentation, deposition testimony, and interrogatory answers proving Thompson has no claim to the funds.
Thompson’s second argument that the funds in the account are part of the assets it later obtained through the repurchase of the funeral home business is not supported by the documents involved in that sale. The documents provided in Alderwoods’ motion for summary judgment clearly show the funds in the account were not part of the repurchase of the funeral home business by Thompson. Again, Thompson provides no competent evidence showing an interest to the funds in the account.
Based on the record before me, I find Thompson has failed to respond to Ald-erwoods’ motion for summary judgment with competent evidence and there are no genuine issues of material fact.

[¶ 7] During oral argument to this Court, Thompson argued that when the funeral business was sold to Loewen, Thompson was to receive a $62,257.48 credit for the cash in the disputed checking account but Thompson did not receive that credit and, consequently, Thompson is now entitled to that amount in the account. However, the closing statement for the sale shows that Thompson received a credit for the $62,257.48 cash in the account. Although the sale contract provided that the seller could furnish a final net current asset calculation within 60 days of closing, presumably if that calculation varied from the closing statement figures, Thompson never provided any such calculation. Nor does he now offer a calculation with figures which vary from those in the closing documents. Furthermore, Dennis Thompson conceded in his February 21, 2003, deposition that when the corporation was sold to Loewen, the checking account was “zeroed out” and Thompson “took all [its] cash out.” Thompson’s concession and the lack of any other documentation showing a failure of the purchaser to make an accounting to Thompson of the cash funds constitutes a failure by Thompson to raise a genuine issue of disputed fact for Thompson’s claim to funds in the bank account. That account came within Loewen’s ownership when it purchased the company, and Thompson has failed to provide evidence showing it now has any ownership rights to the account.

[¶ 8] Thompson asserts Loewen still owes Dennis and Clara Thompson money for the purchase of the business. However, Thompson has failed to provide any documentation to show how failure of Loewen to pay the balance of the purchase price for the corporation entitles Thompson to funds in the checking account. Thompson filed an unsecured creditor’s claim in bankruptcy court for the balance of the purchase price, but has failed to provide any evidence showing Thompson has a legal right to the funds in the disputed account. Thompson may be owed money from Loewen for the purchase, but that debt does not affect ownership of the bank account. We do not make any determination on this appeal whether Thompson is entitled, as an unsecured creditor, to payments from the bankrupt or its successor.

[¶ 9] Thompson also asserts it is entitled to funds in the account because it has now repurchased the funeral home business from Vertin and has acquired the bank account as part of the purchased assets. Alderwoods provided documents showing that all cash assets were retained in the transfer of the business by Loewen to Vertin. Thompson has provided no evidence or documentation to raise a genuine issue that its repurchase of the funeral home business included acquisition of the disputed account funds.

Ill

[¶ 10] Having reviewed the entire record in this case, we conclude the district court did not err in granting summary judgment dismissing Thompson’s claim. Thompson has failed to support its claim or to make a sufficient showing to raise a genuine issue of material fact that it is entitled to funds in the disputed checking account. We, therefore, affirm the summary judgment.

[¶ 11] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ„ concur.


author: KAPSNER, Justice.

text:
    2003 ND 87
    Barbara RAMEY, Plaintiff and Appellant, v. TWIN BUTTE SCHOOL DISTRICT, Defendant and Appellee.
    No. 20020342.
    Supreme Court of North Dakota.
    June 3, 2003.

      Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, ND, for plaintiff and appellant.
    Thomas W. Fredericks, Fredericks, Pel-cyger & Hester, LLC, Louisville, CO, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Barbara Ramey (“Ramey”) appeals from a summary judgment dismissing her employment discrimination claim against Twin Buttes School District (“Board”). We conclude Ramey failed to establish a prima facie case of discriminatory non-hiring because she did not present sufficient evidence to demonstrate she was qualified for the positions for which she applied. We affirm the trial court’s grant of summary judgment to the Board.

I

[¶ 2] Ramey, an enrolled member of the Standing Rock Sioux Tribe, lives on the Fort Berthold Reservation. Twin Buttes School is a public school located on the Fort Berthold Reservation. More than 90 percent of the students at the Twin Buttes School are enrolled or are eligible for enrollment in the Three Affiliated Tribes. Members of the Twin Buttes School Board are responsible for hiring applicants seeking employment at the school.

[¶ 3] In July and August 1999, Ramey applied to the Board to be hired for the positions of instructional aide or computer specialist. The minutes from the Board’s August 20, 1999, special meeting to hire teacher’s aides and instructional aides indicate a school board member made a motion to hire Ramey as a teacher’s aide and that motion was seconded by another member “for discussion purposes.” The motion to hire Ramey was rescinded following comments by the Board members. The minutes from the meeting indicate “[t]he Board stressed being Three Affiliated Tribe ..., and [the Board] felt with Barb Ramey’s qualifications she could be better utilized in different places. Also, the Board had just hired her husband, PJ Little Owl.” The Board did not hire Ramey for any of the open teacher’s aide positions and she was not hired for the computer specialist position.

[¶ 4] Ramey contends the Board violated the North Dakota Human Rights Act by discriminating against her because of her tribal affiliation; Ramey is a member of the Standing Rock Sioux Tribe and not a member of the Three Affiliated Tribes of the Fort Berthold Reservation. Ramey filed a motion for summary judgment, arguing she established a prima facie case for employment discrimination. The Board contested Ramey’s motion for summary judgment and filed its own motion for summary judgment, arguing (1) Ramey failed to file a timely claim as required under the North Dakota Human Rights Act; (2) the North Dakota Human Rights Act does not apply to the Board because it is preempted by federal and tribal law; and (3) Ramey has failed to establish a prima facie case of discrimination under the North Dakota Human Rights Act.

[¶ 5] The trial court denied Ramey’s motion for summary judgment and granted the Board’s motion for summary judgment on the basis that Ramey failed to establish she was a member of a protected class, and, alternatively, Ramey failed to establish she was qualified for the position, both essential elements of a discrimination claim. Ramey appealed the trial court’s decision.

II

[¶ 6] Ramey argues the trial court erred when it granted summary judgment to the Board because genuine issues of material fact existed as to whether she failed to establish a prima facie case of discrimination under the North Dakota Human Rights Act.

[¶ 7] Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result. Engel v. Montana Dakota Utilities, 1999 ND 111, ¶ 6, 595 N.W.2d 319. “On appeal, we review the evidence in the light most favorable to the party opposing the summary judgment motion.” Id.

[¶ 8] We have outlined the burden on the litigants in a motion for summary judgment:

Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive standard of proof at trial when ruling on a summary judgment motion. The party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclu-sory allegations, but must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact, and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case and on which that party will bear the burden of proof at trial.

Engel, at ¶ 7 (citations omitted). “When no pertinent evidence on an essential element is presented to the trial court in resistance to summary judgment, it is presumed no such evidence exists.” Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 15, 630 N.W.2d 46.

Ill

[¶ 9] Ramey contends she established she was a member of a protected class and she was qualified for the positions for which she applied; therefore, the trial court erred when it concluded she failed to establish a prima facie case of discrimination.

[¶ 10] “The North Dakota Human Rights Act was passed ‘to prevent and eliminate discrimination in employment relations, public accommodations, housing, state and local government services, and credit transactions ....’” Miller v. Medcenter One, 1997 ND 231, ¶ 10, 571 N.W.2d 358 (quoting N.D.C.C. § 14-02.4-01). Under the Human Rights Act, “[i]t is a discriminatory practice for an employer to fail or refuse to hire a person ... or to accord adverse or unequal treatment to a person or employee with respect to application, [or] hiring ... because of ... national origin.” N.D.C.C. § 14-02.4-03.

[¶ 11] To establish a prima facie ease of discrimination for failure-to-hire under the North Dakota Human Rights Act, a plaintiff must show: (1) she is a member of a protected class under the Human Rights Act; (2) she sought and was qualified for the position; (3) she suffered an adverse employment decision; and (4) others not in the protected class were treated more favorably. See Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 18, 630 N.W.2d 46.

A

[¶ 12] Under the first element for establishing a prima facie case of discriminatory non-hiring, Ramey must show she is a member of a protected class under the Human Rights Act. Anderson, at ¶ 18. The North Dakota Human Rights Act protects classes based on:

race, color, religion, sex, national origin, age, physical or mental disability, status with respect to marriage or public assistance, or participation in lawful activity off the employer’s premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.

N.D.C.C. § 14-02.4-03.

[¶ 13] Ramey contends the discrimination was based on national origin because she is a member of the Standing Rock Sioux Tribe and not a member of the Three Affiliated Tribes. Discrimination based on tribal affiliation can give rise to a claim for national origin discrimination. Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1120 (9th Cir.1998). In Dawavende-wa, the court concluded that “[b]ecause the different Indian tribes were at one time considered nations, and indeed still are to a certain extent, discrimination on the basis of tribal affiliation can give rise to a ‘national origin’ claim.” Id.

[¶ 14] In this case, the trial court concluded Ramey “failed to establish how she was a member of a protected class or how she was discriminated against because of her Tribal affiliation.” The trial court mentioned Ramey did not “attach evidence of Tribal affiliation with her job application” and it is well known that applicants “need to submit proof of enrollment with their job application.” Ramey argues she is a member of a protected class because there is no dispute that she is an Indian and there is a genuine issue of material fact as to whether the Board had knowledge of Ramey’s tribal affiliation.

[¶ 15] The minutes of the Board’s August 20, 1999, special meeting indicate the motion to hire Ramey was rescinded following a discussion in which “[t]he Board stressed being Three Affiliated Tribe[s].” Although we assume, without deciding, that the minutes raise an inference of discrimination based on tribal affiliation, it is not necessary in this case to decide this issue because the question of whether Ra-mey was qualified for the job is dispositive of this appeal.

B

[¶ 16] Ramey must show, under the second element for establishing a prima facie case of discriminatory non-hiring, that she applied for a position and was qualified for that position. See Engel v. Montana Dakota Utilities, 1999 ND 111, ¶ 13, 595 N.W.2d 319.

[¶ 17] Ramey applied to the Board for two positions, computer specialist and instructional aide. The job announcement for the computer specialist position listed the following qualifications:

A Bachelors degree in education with a valid North Dakota Teaching Certification would be highly preferred. College experience necessary; will be working toward a teaching certificate, 3-5 years in computer technician experience with Macintosh/Apple and IBM computer in classroom and/or lab experience, working knowledge on systems, installation, networking and Internet application, ability to conduct inservice and demonstration lessons and assist the instructional staff with computer applications, knowledge of Three Affiliated Tribes history, language preferred, Native American Preference, must be drug and alcohol free as a condition of employment.

The job announcement advertising the instructional aide position stated the following qualifications:

Must have at least one year of college in Elementary Education/or Bilingual Education/or Liberal Arts, or Special Education, must have ability to speak, read and write English, must have knowledge of the Mandan Language and the Culture of the Three Affiliated Tribes, 1-3 years of experience working with Native American Children preferred, must have a valid North Dakota driver’s license and be drug and alcohol free as a condition of employment.

[¶ 18] Ramey’s resume and application indicate she has experience as a floor/ change person at 4 Bears Casino & Lodge from August to December 1994, as an assembly line worker at Killdeer Mountain Manufacturing from May to August 1997, and as a “clerk/bagger/invoice” for five years at Super Valu. Ramey stated in her resume that her responsibilities at 4 Bears Casino & Lodge

required the technical knowledge of slot machines and change machines. Filling various machines with correct change, Correcting bill and coin jam problems, reel tilts, and documenting all in-machine repairs by time, date, and situation. Finally, distributing all jackpots to the proper winners.

Ramey’s resume indicates her duties while working at Killdeer Mountain Manufacturing included:

assembling] circuit board[s], and all computer chips accurately. Making sure all boards and bulbs on boards worked. Soldered computer chips on circuit board to the standard of the Manufacturing Company and Customer. Doing top priority projects for the Government and getting Governmental clearance for those projects.

[¶ 19] Ramey also included on her resume her computer skills and computer experience. Ramey states: “I have approximately five yrs of experience with personal computers, Windows '95, Windows 6.0, and some knowledge of DOS/Mi-erosoft Office Suite.... I have worked with QuickBooks Pro 99, for computerized accountings since January of 1999.”

[¶ 20] In this case, the trial court concluded “Ramey’s application and resume show that she was indeed not qualified for the positions sought.” (Emphasis in original). Ramey’s application and resume indicate she has an Associate of Arts degree in Business Administration/Accounting, not a Bachelors degree in education with a North Dakota Teaching Certification which was “highly preferred” for the computer specialist position. Ramey disclosed she has “experience with personal computers” in her resume; however, Ramey did not indicate in her application or resume whether she has any experience as a computer' technician when the job required three to five years of computer technician experience. The job announcement sought applicants with computer experience, including experience with Macintosh/Apple and IBM computers; a working knowledge concerning installation, networking, and Internet applications; and the ability to conduct demonstration lessons. Nothing in Ramey’s application or resume show that she met the qualifications for the computer specialist position. Melissa Starr, the elected President of the Board, stated in an affidavit Ramey was not hired because:

Ms. Ramey’s application and resume did not establish any work or educational experience that qualified her for the computer tech position. She has worked as a floor/change pérson at the tribal casino and an assembly line worker in a factory. Her education was in business and accounting — not computers. The successful candidate had an Associate of Science degree from North Dakota State at Dickinson, as well as impressive work experience, including'office administration and computers.

[¶ 21] Although Ramey argues she was qualified for the computer specialist position, she has failed to provide any evidence that she met the qualifications, as advertised, for the position. Ramey’s work and educational background do not demonstrate any experience as a computer technician. Ramey did not meet her burden of putting forth enough evidence to show she was qualified for the computer specialist position; therefore, Ramey failed to establish a prima facie case of discrimination under the law.

[¶ 22] Ramey also argues she was qualified for the position of instructional aide. Ramey contends she possessed all of the listed qualifications for the instructional aide position except for one year of college, and she has an Associate of Arts degree which is equal to or better than the qualification requested. Although Ramey may have taken some liberal arts or education classes, neither Ramey’s application nor her resume establish she has the required one year of college in elementary education, bilingual education, liberal arts, or special education; Ramey’s college education pertains to business administration and accounting. The job announcement also stated the applicant “must have knowledge of the Mandan Language and the Culture of the Three Affiliated Tribes.” Nowhere in Ramey’s application or resume does she indicate any knowledge of the Mandan language or the culture of the Three Affiliated Tribes. Ramey’s work experience and educational background do not demonstrate she has any experience teaching or working with children despite the preference that the applicant have one to three years of experience working with Native American children. Ramey failed to demonstrate that she possesses each of the qualifications listed in the job announcement advertising the instructional aide position.

[¶ 23] Ramey asserts that the Board considered her qualified for the instructional aide position because at least two Board members felt she was qualified when one member made a motion to hire Ramey and another member seconded that motion. The minutes from the meeting indicate the motion was seconded “for discussion purposes” and not to immediately hire Ramey for the position. The trial court concluded “[a] review of the record shows that the weight of the evidence suggests that Ramey was not hired because three of the five Board members simply felt she was not qualified to fill the positions.”

[¶ 24] Ramey also argues the Board thought she was qualified for the instructional aide position because of its comments, reflected in the August 20, 1999, minutes, that the Board “felt with Barb Ramey’s qualifications she could be better utilized in different places.” Ramey contends in her affidavit that a Board member not only thought she was qualified but said Ramey was “over qualified.” Melissa Starr’s affidavit states that Ramey was not hired for the instructional aide position because “Ms. Ramey lacks any experience educating children. The Board felt that the successful applicants were better qualified and/or more reliable.” Ramey failed to meet her burden of establishing she met each qualification listed on the job announcement for the instructional aide position. We conclude Ramey did not establish a prima facie case of discrimination.

IV

[¶ 25] Because Ramey has failed to establish an essential element of unlawful discrimination, this Court does not need to discuss the other elements for establishing a prima facie case of discrimination. Miller v. Medcenter One, 1997 ND 231, ¶ 19, 571 N.W.2d 358 (citing Braaten v. Deere & Co., 1997 ND 202, ¶ 19, 569 N.W.2d 563).

V

[¶ 26] We conclude Ramey failed to establish a prima facie case of discriminatory non-hiring because she did not put forth enough evidence showing she was qualified for the positions for which she applied. The judgment of the trial court granting summary judgment to the Board is affirmed.

[¶ 27] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE Y. SANDSTROM, JJ., concur.

      . Ramey does not argue that an Indian preference itself violates the North Dakota Human Rights Act.

      . Ramey does not challenge that the job skills are reasonably necessary to the position, nor does she dispute that those hired met the qualifications.