source: Caselaw Access Project

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

license: Public Domain

text:
    2008 ND 73
    STATE of North Dakota, Plaintiff and Appellee v. Michael JACOBSON, Defendant and Appellant.
    No. 20070103.
    Supreme Court of North Dakota.
    April 17, 2008.

      Terry W. Elhard, State’s Attorney, Ashley, N.D., for plaintiff and appellee.
    Chad R. McCabe, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Michael Jacobson appeals a district court criminal judgment. Jacobson was convicted of assault following a bench trial over which the Honorable Bruce B. Haskell presided. At trial, Judge Haskell disclosed to the parties that he was socially acquainted with a physician, Dr. Charles Allen, who was going to be a witness at trial, and that he would be inclined to believe Dr. Allen’s testimony. The parties agreed to proceed with the bench trial despite Judge Haskell’s familiarity with Dr. Allen. Jacobson argues that Judge Haskell committed reversible error by failing to recuse himself from the matter once he knew Dr. Allen would be testifying at trial.

[¶ 2] We affirm the district court criminal judgment. Judge Haskell, in compliance with the North Dakota Code of Judicial Conduct, disclosed on the record information he believed the parties might consider relevant to his disqualification and provided an opportunity for the parties to agree to waive his disqualification. Jacobson agreed to proceed with Judge Haskell conducting the bench trial. After Judge Haskell found Jacobson guilty of assault, Jacobson moved for a new trial. We conclude that Judge Haskell was disqualified from the proceeding. His disqualification, however, did not require him to immediately remove himself from the proceeding. He properly disclosed information relevant to the question of disqualification. The parties agreed to proceed, thus waiving Judge Haskell’s disqualification. Moreover, when a party has knowledge of information relevant to disqualification and waits until the final decision of the judge to object to the judge’s involvement in the case, the objection is untimely and results in a waiver.

I

[¶ 3] Jacobson was charged with assault. He waived his right to a jury trial, and the case came before Judge Haskell for a bench trial. During the bench trial, the State called Dr. Allen, an emergency room physician who treated the victim of the alleged assault, as a witness. When Dr. Allen was called to the stand by the State’s Attorney, Terry Elhard, the following dialogue ensued between the court, Elhard, and Jacobson’s counsel, Donavin Grenz:

Mr. Elhard: State will call Dr. Charles Allen.
The Court: All right. Hang on a second. I don’t know if this is going to make a difference to either party but I hadn’t gotten a witness list or anything prior and Dr. Allen and I are acquaintances. Our sons played baseball together. If that makes a difference to either of you, you better let me know now and I’ll recuse myself. I hate to do that after coming down here and everything, but like I said, I didn’t have any witness list or any way to know [who] the witnesses were until I walked in this morning — so if that’s going to be a problem for you Mr. Grenz.
Mr. Grenz: Your Honor, it’s almost impossible to make that determination. I don’t know what to say, Your Honor. Clearly you believe that it may have an impact because of your knowledge.
The Court: Well let me put it this way. If Dr. Allen’s credibility is going to be an issue, which in most cases witnesses are, I would be inclined to believe what he had to say because I’ve known him for several years in a couple different contexts and I find him to be a credible, believable person. I mean if all he’s going to be testifying to is fact things where credibility isn’t much of an issue, then that may make a differen[ce]. I don’t know what else I can tell you. Obviously I would do the best I can not to let that unduly influence me, but as I say, I’ve known him for several years and I would find him believable in most circumstances.
Mr. Grenz: Well Your Honor, based upon the discovery that we made, I can’t find any statements or anything else that were given by the doctor. Again, if all he’s going to do is testify in regard to what the pictures show and confirm that that was her condition, that’s one thing, but if he’s going to testify to anything else, I’d ask that that be stricken.
Mr. Elhard: ... I have it in my discovery that he was a witness that we were going to call.
Mr. Grenz: He made that disclosure—
The Court: Well let me stop you. I’ll allow Dr. Allen to testify as to his examination in the emergency room, however if there’s any records or documents that weren’t provided to the defense, he’s not going to be able to introduce those into evidence or testify from them.
Mr. Elhard: Okay.
Mr. Grenz: With that proviso, Your Honor.
The Court: All right. Dr. Allen, if you want to come up here please and be sworn.

Dr. Allen provided testimony regarding the victim’s injuries. His testimony indicated the injuries were caused by blunt force. Jacobson’s attorney did not object to any of Dr. Allen’s testimony. Other testimony was provided by the victim, Jacobson, the victim’s treating nurse, and the Burleigh County Sheriffs Department investigator who was present during Dr. Allen’s examination of the victim.

[¶ 4] The district court found Jacobson guilty of assault. Jacobson moved for a new trial. Jacobson maintained that, after Judge Haskell disclosed his relationship with Dr. Allen, Jacobson was improperly forced to choose between proceeding with the trial or incurring additional costs by postponing the trial. Jacobson argued that Judge Haskell should have recused himself. The district court denied the motion for a new trial.

[¶ 5] Jacobson appeals the district court criminal judgment. He argues Judge Haskell committed reversible error by failing to recuse himself once he knew Dr. Allen would be testifying at trial.

II

[¶ 6] It is important that our judicial system maintain an appearance of propriety. See Sargent County Bank v. Wentworth, 500 N.W.2d 862, 880 (N.D.1993). The Due Process Clause of the United States Constitution entitles parties in both criminal and civil matters to an impartial, neutral, and disinterested tribunal. State v. Anderson, 427 N.W.2d 316, 320 (N.D.1988). The public’s respect and confidence in the integrity of the judicial system “ ‘can only be maintained if justice satisfies the appearance of justice.’ ” Wentworth, 500 N.W.2d at 877 (citation omitted). A judge is presumed by law to be unbiased and not prejudiced. Farm Credit Bank of St. Paul v. Brakke, 512 N.W.2d 718, 720 (N.D.1994). However, to maintain the judiciary’s appearance of propriety, a judge is to recuse himself from any matter in which the judge’s impartiality would be questioned. See N.D.Code Jud. Conduct Canon 3(E).

[¶ 7] A judge’s disqualification decision is directed by the North Dakota Code of Judicial Conduct. Wentworth, 500 N.W.2d at 877. The Code mandates that a judge shall avoid impropriety and the appearance of impropriety. N.D.Code Jud. Conduct Canon 2. “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned_” N.D.Code Jud. Conduct Canon 3(E)(1). The Code provides a non-exhaustive list of instances when a judge must recuse himself from a matter:

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;
(c) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;
(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.

Id. An objective standard is used to determine whether a judge must recuse himself. Brakke, 512 N.W.2d at 721. “[T]he judge must determine whether a reasonable person could, on the basis of all the facts, reasonably question the judge’s impartiality.” Id. “Even without intentional bias, disqualification can be essential to satisfy the appearance of justice.” Wentworth, 500 N.W.2d at 877-78.

[¶ 8] We have held that a judge is disqualified from cases in which a reasonable person could have reasonably questioned the judge’s impartiality on the basis of all the facts. See, e.g., Wentworth, 500 N.W.2d at 879-80 (holding the district court judge erred by failing to disqualify himself from a bench trial in a complex foreclosure action because the judge was represented in an unrelated matter by an attorney who was a member of a law firm representing one of the parties in the foreclosure action); Matter of Estate of Risovi, 429 N.W.2d 404 (N.D.1988) (holding the district court judge should have recused himself from a matter because he gave legal advice regarding the estate at issue to one of the parties before becoming a judge). We have also held that a judge properly presided over a matter in which a reasonable person could not have reasonably questioned the judge’s impartiality on the basis of all the facts. See, e.g., Brakke, 512 N.W.2d 718 (N.D.1994) (holding that under the events in the case the district court judge’s recusal from the matter was not mandated by the fact that the judge had been named as a defendant in another suit by a party in the matter before the judge); State v. Dailey, 2006 ND 184, 721 N.W.2d 29 (holding the district court judge was not disqualified from sentencing a defendant for manslaughter and driving under the influence when the judge made statements to the jury after the jury entered its verdict about the defendant’s pri- or driving under the influence convictions and the defendant’s prior involvement in drug court).

[¶ 9] When a judge is disqualified, the judge must either withdraw from the matter or disclose the information relevant to the judge’s disqualification to the parties and ask the parties to consider waiver of the disqualification. See N.D.Code Jud. Conduct Canon 3(F); Estate of Risovi, 429 N.W.2d at 406. Withdrawal is the only permissible action in instances when the judge is personally biased or prejudiced concerning a party or a party’s lawyer, or has personal knowledge of disputed evi-dentiary facts concerning the proceeding. N.D.Code Jud. Conduct Canon 3(F); Estate of Risovi 429 N.W.2d at 406. When withdrawal is mandatory, the judge must immediately withdraw from the proceeding. Estate of Risovi, 429 N.W.2d at 407. Disclosure is an option on any basis for disqualification other than personal bias or prejudice. N.D.Code Jud. Conduct Canon 3(F).

[¶ 10] When disclosure is a permissible course of action for a disqualified judge, and, thus, withdrawal from the proceeding by the disqualified judge is not mandated, the judge’s disqualification may be remitted under Canon 3(F), N.D.Code Jud. Conduct. Canon 3(F) provides,

A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

The commentary to Canon 3(F) explains that this procedure is designed to ensure that consideration of the question of remit-tal is made independently of the judge.

[¶ 11] A judgment may be reversed because of a judge’s violation of the North Dakota Code of Judicial Conduct. Wentworth, 500 N.W.2d at 879-80. However, “the failure to raise the question of judicial bias in the trial court ordinarily precludes our review of that question on appeal.” Delzer v. United Bank, 484 N.W.2d 502, 509 (N.D.1992).

Ill

[¶ 12] Jacobson was entitled to an impartial, neutral, and disinterested tribunal. He argues Judge Haskell committed reversible error by failing to disqualify himself after openly disclosing personal bias or prejudice in favor of the State’s expert witness. Jacobson asserts that Judge Haskell’s impartiality would reasonably be questioned because he offered to recuse himself and he admitted that he would be inclined to find Dr. Allen’s testimony credible. The State contends Judge Haskell did not indicate any bias or prejudice against the defendant. The State argues Judge Haskell’s social acquaintance with a disinterested expert witness did not mandate his recusal from the matter.

[¶ 13] Judge Haskell is presumed by law to be unbiased and not prejudiced. See Brakke, 512 N.W.2d at 720. Judge Haskell’s involvement in this matter was proper unless a reasonable person could, on the basis of all the facts, reasonably question his impartiality. Although a judge has a duty to recuse when required by the Code, a judge also has an “equally strong duty not to recuse when the circumstances do not require recusal.” See Center for Professional Responsibility, American Bar Association, Annotated Model Code of Judicial Conduct 187 (2004); cf. Brakke, 512 N.W.2d 718 (holding a judge should not disqualify when a party brings a frivolous lawsuit against the judge for the purpose of disqualifying him from the proceeding). Canon 3(B)(1), N.D.Code Jud. Conduct, imposes on a judge the duty to “hear and decide matters assigned to the judge except those in which disqualification is required.” Canon 3(B)(1) was added to the Code “to emphasize the judicial duty to sit and to minimize potential abuse of the disqualification process.” Center for Professional Responsibility, supra, at 188 (quoting ABA Standing Committee on 1990 Code, Legislative Draft 15 (1990)).

[¶ 14] Jacobson argues Judge Haskell was disqualified from Jacobson’s case because Judge Haskell’s social relationship with Dr. Allen evidenced an impermissible bias or prejudice against Jacobson. Jacobson further argues Judge Haskell should have recused himself because of his admission that he would find Dr. Allen’s testimony credible. Jacobson contends Judge Haskell was mandated to withdraw from the case by the North Dakota Code of Judicial Conduct because of his disqualification.

[¶ 15] Sections (E) and (F) of Canon 3, N.D.Code Jud. Conduct, govern disqualification. While under Canon 3(E)(1), N.D.Code Jud. Conduct, the list of circumstances under which a judge is disqualified from a matter is not exhaustive, the contents of that list are instructive. Canon 3(E)(1)(a), N.D.Code Jud. Conduct, indicates that a judge shall disqualify himself when “the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.” (Emphasis added.)

[¶ 16] Under Canon 3(F), N.D.Code Jud. Conduct, a judge disqualified under section 3(E)(1)(a) must immediately remove himself from the proceeding. Here, Judge Haskell’s familiarity with a disinterested expert witness did not relate to personal bias or prejudice concerning a party, a party’s lawyer, or personal knowledge of a disputed fact in the case and therefore does not fall into the section mandating disqualification. See Canon 3(E)(1)(a). An appearance of partiality requiring a judge’s disqualification does not automatically result from a judge’s casual or social acquaintance with a witness. See Center for Professional Responsibility, supra, at 208. To impose such a rule could potentially have severe results, particularly in our primarily rural state. See In re Conduct of Jordan, 290 Or. 669, 624 P.2d 1074, 1075 (1981) (“judges cannot be expected to disqualify themselves in all cases in which they may be casually acquainted with parties or witnesses, particularly in smaller communities”).

[¶ 17] Although Judge Haskell was not disqualified by his mere familiarity with an expert witness, we agree with Jacobson that Judge Haskell’s admission that he would be inclined to believe Dr. Allen’s testimony where credibility is an issue created a situation in which Judge Haskell’s impartiality might reasonably be questioned. Judge Haskell said,

If Dr. Allen’s credibility is going to be an issue, which in most cases witnesses are, I would be inclined to believe what he had to say because I’ve known him for several years in a couple different contexts and I find him to be a credible, believable person. I mean if all he’s going to be testifying to is fact things where credibility isn’t much of an issue, then that may make a difference]. I don’t know what else I can tell you. Obviously I would do the best I can not to let that unduly influence me, but as I say, I’ve known him for several years and I would find him believable in most circumstances.

This statement reveals Judge Haskell felt a reasonable person might question his impartiality because of his inclination to believe the expert witness if credibility was an issue. What Judge Haskell said indicates he decided he was disqualified from the proceeding. Because his impartiality might reasonably be questioned on the basis of all of the facts, we conclude Judge Haskell was correct that he was disqualified under the North Dakota Code of Judicial Conduct from involvement in Jacobson’s ease.

[¶ 18] Under Canon 3(E) and (F), N.D.Code Jud. Conduct, once a judge is disqualified from a proceeding, the next question becomes whether the disqualification mandates the judge’s withdrawal from the proceeding or whether the judge can disclose the basis of the disqualification and ask the parties to consider whether to waive the disqualification. We conclude Judge Haskell was not mandated to immediately withdraw from this case under Canons 3(E) and (F), N.D.Code Jud. Conduct. Judge Haskell did not have a personal bias or prejudice concerning the State or Jacobson, or the lawyers, and he did not have any personal knowledge of any of the disputed evidentiary facts, which are the only circumstances that mandate immediate removal of the judge from the proceedings. He, therefore, had the option, under Canon 3(F), N.D.Code Jud. Conduct, of either withdrawing or disclosing to the parties on the record the basis for his disqualification and asking them to consider whether to remit disqualification. He chose to disclose information relevant to the question of disqualification to the parties in compliance with Canon 3(F) and provided an opportunity for them to remit his disqualification. By agreeing to proceed, the parties remitted Judge Haskell’s disqualification. See Pannell v. State, 71 S.W.3d 720 (Tenn.Crim.App.2001) (holding defendant, whose counsel engaged in colloquy with judge during pre-trial motions regarding facts relating to the judge’s disqualification which the judge revealed at that time, remitted disqualification of trial judge when defendant’s counsel indicated to the judge during that colloquy that the defendant did not object to the judge sitting as presiding judge in the case).

[¶ 19] We acknowledge that under the commentary of Canon 3(F), N.D.Code Jud. Conduct, the judge “must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose re-mittal after consultation” with their clients. N.D.Code Jud. Conduct Canon 3(F) cmt. In the present ease, Judge Haskell did not ask the parties and their lawyers to consider, out of his presence, whether to waive disqualification. He, therefore, did not strictly follow the procedure required by Canon 3(F), N.D.Code Jud. Conduct. That failure to follow the N.D.Code of Judicial Conduct is not excusable. While not an excuse, we do note that what happened is likely explained by the circumstances of this case. Judge Haskell did not know Dr. Allen was a witness prior to the beginning of the trial. The disqualification issue, therefore, did not arise until Dr. Allen was called to testify by the State. The inexcusability of Judge Haskell’s failure to follow the procedure outlined in Canon 3(F), N.D.Code Jud. Conduct, does not necessarily render Judge Haskell’s procedural missteps prejudicial.

[¶ 20] We recognize that the annotated Model Code of Judicial Conduct indicates that methods of obtaining a waiver of disqualification which deviate from the requirements outlined in Canon 3(F) are not valid. See Center for Professional Responsibility, supra, at 249. However, the authorities cited in the annotated Model Code in support of that proposition, all of which relate to judicial ethics and discipline, do not provide that, in order for a remittal of disqualification to be valid, the procedure outlined in Canon 3(F) must be strictly followed. See In re Platt, 269 Kan. 509, 8 P.3d 686 (2000) (holding public censure appropriate for judge who refused to automatically disqualify himself from proceedings involving attorneys against whom he was personally biased); In re Johnson, 341 S.C. 30, 532 S.E.2d 883 (2000) (holding public reprimand warranted when judge failed to disqualify herself in matter in which an arrest warrant was sought against her grandson); Ariz. Jud. Eth. Adv. Comm. Op. 97-2, 1997 WL 599607, at * 1 (Feb. 13, 1997) (stating “The remittal procedure of Canon 3F must be strictly followed,” in the context of an ethics opinion advising municipal judges that they should recuse themselves from cases in which a party is represented by a member of the municipal judges merit commission, but that remittal of disqualification is possible under Canon 3F). None of the authorities cited invalidate a remittal of disqualification on the basis that the procedure required by Canon 3(F) was not strictly followed. See id.

[¶ 21] The procedure of having the parties and their lawyers consider whether to waive disqualification out of the presence of the judge is to ensure the decision is made independent of any influence of the judge. N.D.Code Jud. Conduct Canon 3(F) cmt. The record in this case indicates that Judge Haskell never proposed a waiver of disqualification to the parties and never made any comment that could be construed as pressure to consent to his continuing to hear the case. The parties do not allege any such improper conduct; Jacobson does not argue he was denied an opportunity to discuss whether to waive Judge Haskell’s disqualification, nor does he argue the district court erred by failing to strictly follow the procedure required by Canon 3(F), N.D.Code Jud. Conduct.

[¶ 22] On the record, the parties agreed to proceed before Judge Haskell, after Jacobson asked Judge Haskell to restrict the scope of Dr. Allen’s testimony to testimony regarding his emergency room examination of the victim. Judge Haskell stated he would allow Dr. Allen to testify as to his examination in the emergency room, but not as to records not provided to the defense. During Dr. Allen’s testimony, Jacobson had the opportunity to make evidentiary objections regarding the questions asked of Dr. Allen and Dr. Allen’s responses. Jacobson did not object to any portion of Dr. Allen’s testimony. Jacobson also never moved to disqualify Judge Has-kell at any time thereafter.

[¶ 23] After the criminal judgment had been entered against him, Jacobson moved for a new trial. A party seeking to disqualify a judge from a proceeding must file a timely motion. See Center for Professional Responsibility, supra, at 187. It was improper for Jacobson to wait to see if the district court decision was favorable to him before moving for a new trial on the ground that Judge Haskell should have recused himself from the matter. See id.; see also United States v. Vadner, 160 F.3d 263, 264 (5th Cir.1998) (holding “[t]he most egregious delay — the closest thing to per se untimeliness — occurs when a party already knows the facts purportedly showing an appearance of impropriety but waits until after an adverse decision has been made by the judge before raising the issue of recusal”); Madsen v. Prudential Fed. Sav. & Loan Assn., 767 P.2d 538, 543 (Utah 1988) (quoting 46 Am.Jur.2d Judges § 202, at 225-26 (1969)) (“It is a well-recognized rule that an application for the disqualification of a trial judge must be filed at the earliest opportunity. The courts generally apply this rule with strictness against a party who, having knowledge of the facts constituting a disqualification, does not seek to disqualify the judge until an unfavorable ruling has been made.”).

[¶ 24] Even if strict compliance with the procedure outlined in Canon 3(F), N.D.Code Jud. Conduct, was required, Jacobson would not prevail on appeal because Jacobson waived his right to disqualification by failing to request disqualification until after Judge Haskell entered a criminal judgment finding him guilty of assault, and because he and his lawyer knew the facts that would form the basis of disqualification prior to entry of the judgment against him. Under the circumstances of this case, we hold Jacobson waived his right to disqualify Judge Has-kell by waiting until after the criminal judgment was entered against him to move for a new trial based on mandatory disqualification of Judge Haskell.

IV

[¶ 25] Judge Haskell complied with the North Dakota Code of Judicial Conduct and was not mandated to remove himself from this matter sua sponte. He was not disqualified because of his social acquaintance with a disinterested expert witness. However, Judge Haskell’s admission that he would be inclined to believe Dr. Allen’s testimony where credibility is an issue created an objective appearance of partiality constituting a disqualification. His disqualification, however, did not require him to immediately remove himself from Jacobson’s case because it did not arise from a bias or prejudice against the parties, the lawyers, or personal knowledge of disputed evidentiary facts. He had the option to disclose and did disclose on the record information relevant to the question of disqualification. He provided an opportunity for the parties to waive his disqualification. The parties agreed to proceed, thus remitting Judge Haskell’s disqualification. Although he did not strictly follow the procedure of Canon 3(F), N.D.Code Jud. Conduct, both parties agreed to proceed with him conducting the bench trial without any evidence in the record they did so because of comments by Judge Haskell. Moreover, Jacobson also waived his right to disqualify Judge Haskell by waiting until a criminal judgment was entered against him to raise the issue. We, therefore, affirm the district court criminal judgment.

[¶ 26] CAROL RONNING KAPSNER, J., concurs.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 27] I concur in the result reached in the opinion by Justice Maring and in the concurring opinion of Justice Crothers. I agree this is not a matter of the judge’s personal bias or prejudice concerning a party or a party’s lawyer. I also agree with Justice Maring that a party who has knowledge of the facts constituting a disqualification cannot wait until the judge has made an unfavorable ruling to seek disqualification of the judge. Because this is not a matter of the judge’s personal bias or prejudice and because the defendant waited until an unfavorable ruling had been made to raise the issue, I further agree the criminal judgment should be affirmed.

[¶ 28] DALE Y. SANDSTROM, J., concurs.

CROTHERS, Justice,

concurring in part and dissenting in part.

[¶ 29] I agree with much the Majority says about judicial impartiality and the reasons for judicial disqualification. However, those legal concepts become both confusing and difficult to apply because of the inherent mismatch created when disciplinary rules are used to regulate adjudicative proceedings. See Sargent County Bank v. Wentworth, 500 N.W.2d 862, 877 (N.D.1993) (“The Rules of Judicial Conduct direct a judge’s decisions on disqualification.”). “A violation of the Rules of Judicial Conduct by the judge who presides over a case can result in the reversal of a judgment.” Id. at 879-80. The result is that across the nation, Canon 3E has become the most litigated section of the Model Code of Judicial Conduct. See Ronald D. Rotunda et al., Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility 862 (2002). I write separately to minimize the inherent confusion and difficulty of using disciplinary rules in courtroom proceedings and to prevent that confusion from being compounded by a lack of clear demarcation between what I think are several distinct concepts under Canons 3E and 3F.

[¶ 30] One concept is that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” N.D.Code Jud. Conduct Canon 3E. Our decisions interpret Canon 3 to require disqualification for both actual partiality and the appearance of partiality. This Court has explained:

“The Rules of Judicial Conduct direct a judge’s decisions on disqualification. Rule 2 demands that ‘[a] judge shall avoid impropriety and the appearance of impropriety in all his activities.’ Rule 2(A) thus directs that ‘[a] judge shall respect and comply with the law and shall act in such a manner that promotes public confidence in the integrity and impartiality of the judiciary.’ Rule 3(C)(1)(a) makes a judge’s disqualification ‘appropriate when the judge’s impartiality might reasonably be questioned.’ ”

Wentworth, 500 N.W.2d at 877.

[¶ 31] This Court has also stated, “The appearance of impropriety can be as important as the fact.” Farm Credit Bank of St. Paul v. Brakke, 512 N.W.2d 718, 720 (N.D.1994). We explained in Wentworth:

“The disqualification directions in Rule 3(C) are not merely guidelines; they are mandatory. Our primary concern is the preservation of public respect and confidence in the integrity of the judicial system, which ‘can only be maintained if justice satisfies the appearance of justice.’ Even without intentional bias, disqualification can be essential to satisfy the appearance of justice.”

Id. at 877-78 (citations omitted). These general and difficult to administer concepts, along with some cases deciding particular fact patterns, are all we have offered judges to decide in a myriad of situations whether they can or should continue to preside over a case.

[¶ 32] A second concept is that the Code provides several “automatic” or “per se” circumstances when a judge is disqualified. Judges are disqualified from presiding over matters when they have an actual bias or prejudice concerning a party or a party’s lawyer, when they have personal knowledge of evidentiary facts, or when they or a close family member were or are a lawyer, witness, or have an economic interest in the matter. See N.D.Code Jud. Conduct Canon 3E(1). With few exceptions not relevant to this case, these circumstances automatically and immediately disqualify the judge from presiding over a case. Id.; see also James J. Alfini et al., Judicial Conduct and Ethics § 4.04, at 4-10 (4th ed. 2007) (“The Codes provide a list of circumstances in which a judge’s disqualification is automatic.”).

[¶ 33] Concept three is that most disqualifications under Canon 3E can be waived by inaction or failure to object. Alfini, supra § 4.14, at 4-67. However, waiver of an objection available under Canon 3E is far different from the exacting remittal procedure prescribed in Canon 3F. Because strict adherence to the remittal procedures in Canon 3F is required, it would be antithetical to apply normal waiver analysis to that process. Although not an issue here, because remit-tal is not permitted for “personal bias or prejudice concerning a party, the parties and lawyers,” a party likely cannot waive an objection to a judge’s failure to disqualify on any of the grounds for which remittal is prohibited. See N.D.Code Jud. Conduct Canon 3F; Matter of Estate of Risovi, 429 N.W.2d 404, 407 (N.D.1988) (where disqualification cannot be remitted, judge must immediately withdraw and any subsequent order is void).

[¶ 34] In this case, I agree with the Majority that the Judge was not automatically disqualified due to the presence of any per se circumstances. Majority Opinion at ¶ 16. Therefore, the issues on appeal are whether the Judge abused his discretion by not recusing, whether Jacobson waived his objection to the Judge’s failure to recuse himself, and whether the Judge did recuse himself and the parties remitted his disqualification under Canon 3F.

Recusal and Waiver

[¶ 35] North Dakota judges have a balancing act to perform when faced with a question of partiality. On the one hand, judges are instructed to “hear and decide matters assigned to the judge except those in which disqualification is required.” N.D.Code Jud. Conduct Canon 3B(1). On the other hand, judges are disqualified from a case when, by use of an objective test, they determine their “impartiality might reasonably be questioned.” N.D.Code Jud. Conduct Canon 3E(1). When a judge believes he or she is not disqualified but circumstances exist material to that consideration, the judge is encouraged to disclose those circumstances to the parties. Commentary to the Code provides:

“A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”

N.D.Code Jud. Conduct Canon 3E(1) cmt. See Reems v. St. Joseph’s Hosp., 536 N.W.2d 666, 674 (N.D.1995) (Meschke, J., dissenting) (Judge’s “failure either to disclose or to disqualify compounds the problem of perceived partiality, even if he was not actually biased.”).

[¶ 36] Here, the Judge learned during trial that he had a social relationship with a witness. In response, the Judge did not deem himself disqualified from the case and he did not terminate his participation. Instead, he disclosed on the record the basis of the relationship with the witness, as contemplated in the commentary quoted above. The colloquy between the Judge and counsel was as follows:

“Mr. Elhard: State will call Dr. Charles Allen.”
“The Court: All right. Hang on a second. I don’t know if this is going to make a difference to either party but I hadn’t gotten a witness list or anything prior and Dr. Allen and I are acquaintances. Our sons played baseball together. If that makes a difference to either of you, you better let me know now and I’ll recuse myself. I hate to do that after coming down here and everything, but like I said, I didn’t have any witness list or any way to know [who] the witnesses were until I walked in this morning-so if that’s going to be a problem for you Mr. Grenz.”

(Emphasis added.)

[¶ 37] The foregoing shows the Judge made an initial disclosure of a social relationship with the witness. I view his statement, “If that makes a difference to either of you, you better let me know now and I’ll recuse myself,” as one inviting a motion for the Judge to recuse, as intended by the Canon and commentary. N.D.Code Jud. Conduct Canon 3E and cmt. See also Model Code of Judicial Conduct R. 2.11 cmt. 5 at 28 (2007) (discussing the ABA’s new Rule 2.11 on disqualification and modified Commentary that “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.”). Notably, “Disclosure of information relevant to disqualification does not mandate a judge’s disqualification.” See Model Code of Judicial Conduct Canon 3E(1) annot. at 190 (2004).

[¶ 38] Neither counsel accepted the Judge’s invitation to request recusal, either at the outset or after further discussion. Normally, the failure to object is a waiver precluding subsequent challenge on appeal. See Delzer v. United Bank of Bismarck, 484 N.W.2d 502, 509 (N.D.1992). However, further consideration of the question is required because of the Judge’s subsequent statement he would generally find the witness credible.

[¶ 39] After inviting a recusal motion and receiving equivocation from defense counsel (“Your Honor, it’s almost impossible to make that determination. I don’t know what to say, Your Honor. Clearly you believe that it may have an impact because of your knowledge.”) the Judge said:

“The Court: Well let me put it this way. If Dr. Allen’s credibility is going to be an issue, which in most cases witnesses are, I would be inclined to believe what he had to say because I’ve known him for several years in a couple different contexts and I find him to be a credible, believable person. I mean if all he’s going to be testifying to is fact things where credibility isn’t much of an issue, then that may make a differen[ce]. I don’t know what else I can tell you. Obviously I would do the best I can not to let that unduly influence me, but as I say, I’ve known him for several years and I would find him believable in most circumstances.”

The majority concludes, and I agree, these statements by the Judge that he would find the witness credible “created a situation in which Judge Haskell’s impartiality might reasonably be questioned.” Majority Opinion at ¶ 17. However, I cannot agree with the Majority’s conclusion that the Judge’s disclosure “indicates he decided he was disqualified from the proceeding.” Id.

[¶ 40] In my view, the Judge should have recused himself under Canon 3E on the basis of his view of Dr. Allen’s credibility. But he did not. Jacobson could have contemporaneously objected to the Judge presiding over the trial. But he did not. Instead, Jacobson waited until after trial and until after he received an unfavorable decision to move for a new trial based on judicial partiality. Jacobson waited too long and waived his objection to the Judge not recusing himself. The result is that Jacobson waived his objection under Canon 3E. I therefore concur with the Majority’s conclusion that the judgment should be affirmed.

[¶ 41] My analysis would end here, and I would not reach issues relating to Canon 3F and remittal of disqualification. I therefore cannot join the Majority because it concludes the Judge did recuse himself and because it proceeds to discuss and decide this case based on remittal under Canon 3F.

Remittal of Disqualification

[¶ 42] Canon 3F provides a procedure for remittal of a judge’s disqualification from a case under certain circumstances. We are cautioned that “Canon 3F permits the parties to waive disqualification if the proper steps are taken.” Model Code of Judicial Conduct Canon 3F annot. at 249 (2004). “Any method for obtaining a waiver of disqualification that deviates from the requirements of Canon 3F is not valid.” Id. See Ariz. Jud. Eth. Adv. Comm. Op. 97-2, 1997 WL 599607, at * 1 (Feb. 13, 1997) (“The remittal procedure of Canon 3F must be strictly followed.”).

[¶ 43] The Code of Judicial Conduct provides for remittal and states:

“Remittal of Disqualification. A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.”

N.D.Code Jud. Conduct Canon 3F. Broken down, effective remittal conducted in strict compliance with Canon 3F requires a showing that each of the following steps have been taken:

1. The judge determined he or she is disqualified under Canon 3E;
2. the judge determined disqualification under Canon 3E was for other than personal bias or prejudice concerning a party, the parties or their lawyers;
3. the judge determined he or she is willing to offer remittal;
4. the judge disclosed to the parties and their lawyers the basis for the judge’s disqualification;
5. the parties and their lawyers determined they are interested in waiving disqualification;
6. the parties and their lawyers determined they all waive or remit the judge’s disqualification;
7. the parties’ and their lawyers’ determination to waive the judge’s disqualification was made “without participation by the judge”;
8. the judge agreed to participate in the proceeding after being notified that all parties and their lawyers have waived or remitted disqualification; and
9. the agreement of all parties and their lawyers to waive or remit disqualification, and the judge’s agreement to participate, has been incorporated into the record.

N.D.Code Jud. Conduct Canon 3F. These requirements are cumulative. The grammatical structure of Canon 3F indicates all of these criterion must be satisfied before remittal is permitted. In the case before the Court, any analysis of remittal is ultimately fruitless because the record does not support a conclusion that all of these requirements were addressed, much less satisfied.

[¶ 44] I will assume for purposes of analysis that the Judge’s statement, “I’ll recuse myself,” was in fact a statement of recusal. I will also presume for purposes of analysis that the Judge determined re-cusal was for reasons other than automatic disqualification, and that the Judge decided he was willing to accept remittal. These conclusions enjoy support, at least by implication, in the Judge’s statement, “If that makes a difference to either of you, you better let me know now and I’ll recuse myself.” Thus, the first three factors arguably have been satisfied. Similarly, the Judge’s disclosure of his reason for disqualification satisfies the fourth prong of Canon 3F requiring that the parties and their lawyers know why the Judge removed himself from the case and what they are agreeing to waive.

[¶ 45] But I cannot agree the remaining factors are supported in the record. Factors five and six require that the parties and their lawyers be given an opportunity to decide if they are interested in remitting, and that they have the chance to make that decision “without participation by the judge.” Commentary to Canon 3F explains that these requirements are “[t]o assure that consideration of the question of remittal is made independently of the judge.” N.D.Code Jud. Conduct Canon 3F cmt. The comments also state, “[A] judge must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule.” Id.

[¶ 46] Here, we have been offered nothing directly supporting an argument that the parties wanted to remit disqualification. We could only reach that conclusion by inference based on the lack of an objection to the Judge’s continuation of the case, or upon counsel’s statement following the Judge’s disclosure on the record:

“Mr. Grenz: Well Your Honor, based upon the discovery that we made, I can’t find any statements or anything else that were given by the doctor. Again, if all he’s going to do is testify in regard to what the pictures show and confirm that that was her condition, that’s one thing, but if he’s going to testify to anything else, I’d ask that that be stricken.”
“Mr. Elhard: ... I have it in my discovery that he was a witness that we were going to call.”
“Mr. Grenz: He made that disclosure—
“The Court: Well let me stop you. I’ll allow Dr. Allen to testify as to his examination in the emergency room, however if there’s any records or documents that weren’t provided to the defense, he’s not going to be able to introduce those into evidence or testify from them.”
“Mr. Elhard: Okay.”
“Mr. Grenz: With that proviso, Your Honor.
“The Court: All right. Dr. Allen, if you want to come up here please and be sworn.”

(Emphasis added.)

[¶ 47] Given the need for strict compliance with remittal procedures, we should be unwilling to conclude Jacobson agreed to discuss remittal of the Judge’s disqualification based on his counsel’s concurrence in an in-limine motion concerning documents or records not produced in discovery and not admissible at trial. I also believe we neuter our Canon if we conclude — like the Majority appears to have concluded — that this requirement is satisfied by a party’s failure to affirmatively object to the judge continuing to preside over a matter. This is especially true since the question of remittal is not ripe for consideration until after the judge is disqualified. See N.D.Code Jud. Conduct Canon 3F (“A judge disqualified by the terms of Section 3E ... may ask the parties and their lawyers ... to waive disqualification.”).

[¶ 48] This record also contains nothing to support the conclusion Jacobson and his attorney had an opportunity to discuss re-mittal out of the Judge’s presence. Nor do we have any support in the record that the parties and their attorneys had an opportunity to discuss remittal without the Judge being present. Instead, the trial transcript contains the colloquy between the Court and counsel, followed by the testimony of Dr. Allen. Nothing indicates a time-line break or a private conversation between any of the parties and their counsel. On these facts, factors five and six have not been satisfied.

[¶ 49] The seventh requirement is that all parties and their counsel agree to waive or remit disqualification. Commentary to Canon 3F states, “A party may act through counsel if counsel represents on the record that the party has been consulted and consents.” Like consideration of factor five, silent acquiescence in the Judge’s continuation of trial should be insufficient as a matter of law to conclude Jacobson waived or remitted disqualification. I also have difficulty contemplating how all of the parties and their lawyers could have agreed to remit disqualification without first having had an opportunity to communicate with each other out of the Judge’s presence. However, due to availability of electronic communications and ever-resourceful counsel, I am willing to leave that question for another day.

[¶ 50] The eighth requirement is that the judge agrees to proceed after being notified that all parties and their lawyers consent to remittal. Here, we have no remittal agreement by the parties, so nothing could have been communicated to the Judge. We also have no express acknowledgment that, after deeming himself disqualified, the Judge accepted remittal and rejoined the case. Rather, we have a record showing disclosure by the Judge, followed by a colloquy between the Judge and counsel, followed by a limitation of documentary evidence, followed by Dr. Allen’s testimony, and ultimately followed by completion of trial. These facts are consistent with a judge making a disclosure under Canon 3E, as discussed above. These facts are inconsistent with the mandatory — and cumulative — remittal procedures required under Canon 3F.

[¶ 51] The ninth and final requirement is that the remittal agreement be “incorporated in the record.” Commentary to Canon 3F states, “As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement.” The reason for requiring a clear record should be self-evident; we do not want ambiguity in situations involving judicial ethics or courtroom proceedings. The impact of the lack of a clear record is demonstrated here, where uncertainty exits whether the Judge disqualified himself and, if so, whether he intended to offer remittal of that disqualification. The lack of an agreement incorporated into the record means that any arrangement between the court, the counsel and the parties was ineffective.

[¶ 52] In summary, I cannot agree the district court conducted a remittal proceeding under Canon 3F. If this really was a remittal proceeding, I would conclude the district court abused its discretion by remitting disqualification based on the record before us. I therefore respectfully dissent from that portion of the Majority Opinion discussing and deciding that this case is based on Canon 3F.

[¶ 53] DANIEL J. CROTHERS, J.

      . The “Rules of Judicial Conduct” referred to in Wentworth were North Dakota’s adoption of the American Bar Association's 1970 version of the Model Code of Judicial Conduct. Those Rules were replaced by our adaptation of the American Bar Association's 1990 Code of Judicial Conduct, which became effective in North Dakota on January 1, 1994. See North Dakota Court Rules, State, 2008, 466 (Thomson/West 2008). Canon 3C of the 1970 Code was strengthened in the 1990 Code to include mandatory language and became what we now know as Canon 3E. However, this Court in Wentworth construed the provisions of 3C "as mandatory and not merely guidelines.” Reems v. St. Joseph’s Hosp., 536 N.W.2d 666, 671 n. 3 (N.D.1995). Therefore, this Court’s application of Canon 3C in Wentworth has equal application to current Canon 3E. Reems, at 671 n. 3.


author:
MARING, Justice.
      CROTHERS, Justice, specially

text:
    2008 ND 65
    STATE of North Dakota, Plaintiff and Appellee v. Jarrett Alynn KIEPER, Defendant and Appellant.
    No. 20070100.
    Supreme Court of North Dakota.
    April 17, 2008.

      Julie Ann Lawyer (on brief), Assistant State’s Attorney, and Matthew Ramage-White (on brief), third-year law student, Bismarck, N.D., for plaintiff and appellee.
    Michael Ray Hoffman, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Jarrett Kieper appeals from a criminal judgment entered upon his conditional guilty plea. We conclude the issuance of the search warrant was not supported by probable cause, and the district court erred in denying Kieper’s motion to suppress the evidence seized as a result of the illegal search. We reverse and remand for further proceedings.

I

[¶ 2] On July 12, 2006, law enforcement applied for a search warrant for Kieper’s residence from a district court judge, and Special Agent Ben Leingang of the North Dakota Bureau of Criminal Investigations testified in support of the application. Leingang testified he has four and a half years of law enforcement experience, including training specifically related to narcotics and narcotics identification. Leingang testified that law enforcement officers collected trash placed on the curb for pickup in front of Kieper’s residence on July 12, 2006. The officers searched the trash and found two butter knives with black burn marks and white residue, a baggie corner, and two pieces of mail with Kieper’s name and address. The residue on the knives could not be field tested, but Leingang testified that in his training and experience drug users use metal devices, such as butter knives, as tools to help ingest the narcotic by placing the narcotic on top of the knife, applying a heat source to the bottom of the knife, and ingesting the fumes from the heated narcotic. Lein-gang testified that in his training and experience, baggie corners may be used to package narcotics by placing the narcotic in the little baggie and twist-tying it, however he did not say whether the baggie corner found in the trash showed signs of being twist-tied. Leingang did not testify about what type of housing Kieper lives in, whether the trash was placed in closed garbage bags, whether the bags were in garbage cans, or whether the evidence the officers believed was related to drug activity was found in the same container as the mail. Leingang was asked why law enforcement collected and searched the trash at Kieper’s house, and he said, “[w]e received information from the last few years, we received information from a confidential informant, we received information from two unanimous [sic] sources, we received information from Parole and Probation, and have also received information from the Bismarck Police Department on a Jarrett Kieper in regards to distributing narcotics.” The judge found the information presented established probable cause and issued a search warrant.

[¶ 3] Law enforcement executed the warrant on July 19, 2006, and found evidence of controlled substances. Kieper was arrested and charged with several drug related offenses.

[¶ 4] Kieper moved to suppress the evidence seized during the search of his house, arguing probable cause did not exist to issue the search warrant. After an evidentiary hearing, the district court denied Kieper’s motion, finding probable cause existed to issue the search warrant. Kieper pled guilty to possession of psilocy-bin, possession of marijuana, possession of psilocyn, and two counts of possession of drug paraphernalia, but reserved the right to appeal the denial of his motion to suppress.

II

[¶ 5] Kieper argues the district court erred in denying his motion to suppress because there was insufficient evidence to support a finding of probable cause to issue the search warrant.

[¶ 6] The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and N.D. Const. Art. I, § 8, require that searches and seizures be reasonable and that warrants be issued only upon a showing of probable cause. Whether probable cause existed to issue a warrant is a question of law. State v. Nelson, 2005 ND 59, ¶ 3, 693 N.W.2d 910. We review the validity of the search warrant independent of the district court’s decision, and we only consider the information contained in the affidavit or application for issuance of the warrant. State v. Schmalz, 2008 ND 27, ¶ 13, 744 N.W.2d 734. “ ‘We defer to a magistrate’s determination of probable cause so long as a substantial basis for the conclusion exists, and we resolve doubtful or marginal cases in favor of the magistrate’s determination.’ ” State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375 (quoting State v. Stewart, 2006 ND 39, ¶ 6, 710 N.W.2d 403).

[¶ 7] Probable cause exists “ ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.’ ” Nelson, 2005 ND 59, ¶ 3, 693 N.W.2d 910 (quoting State v. Corum, 2003 ND 89, ¶ 22, 663 N.W.2d 151). Probable cause exists if it is established that certain identifiable objects are probably connected with criminal activity and will probably be found at the present time at an identifiable place. Nelson, at ¶ 3. The information used to establish probable cause should be considered together and not in a piecemeal fashion. Id. “We apply the totality-of-the-eircumstanees test to review whether information before the magistrate was sufficient to find probable cause, independent of the [district] court’s findings.” State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912. “[T]here must be a nexus between the place to be searched and the contraband sought, and circumstantial evidence may be enough to establish the nexus.” Nelson, at ¶ 17. However, “[m]ere suspicion criminal activity is taking place, which may warrant further investigation, does not rise to the level of probable cause to search.” Ebel, 2006 ND 212, ¶ 14, 723 N.W.2d 375.

[¶ 8] In State v. Thieling, 2000 ND 106, ¶ 2, 611 N.W.2d 861, a search warrant for Thieling’s home was issued based on information that persons associated with drug activity had recently visited the home; items associated with drug activity were found in Thieling’s trash, including altered baggies and small pieces of plastic and tin foil; mail in the trash bags indicated the items came from Thieling; and trash had not been placed on the curb since law enforcement officers searched the trash bags two weeks before applying for the warrant. Thieling argued the information presented to the magistrate was insufficient to establish probable cause and this Court agreed, concluding the evidence suggesting drugs or contraband would be found in the home was tenuous and did not provide a substantial basis for the magistrate’s finding of probable cause. Id. at ¶ 13.

[¶ 9] However, in Schmalz, 2008 ND 27, 744 N.W.2d 734, this Court concluded there was a sufficient factual basis to issue a search warrant based on an officer’s testimony that law enforcement had received “intel” that Schmalz was involved in drugs, and testimony that officers searched Schmalz’s trash and found a paper towel with what the officer believed was burnt marijuana residue, packaging tape and cellophane packaging that smelled of marijuana, and mail addressed to Schmalz. This Court said the information that Schmalz was involved in drugs was not sufficient to sustain a finding of probable cause, but the State did not exclusively rely on the “intel” in requesting the warrant. Id. at ¶ 14. We also said the facts about the trash search were thin and presented a questionable nexus to tie Schmalz to the suspected contraband, because it was not clear whether the drug evidence and mail were found together or separately in a single bag or can. Id. at ¶ 16. We concluded this was a marginal or doubtful case, but affirmed the magistrate’s decision because there was a sufficient factual basis to issue a search warrant based on the officer’s testimony regarding his training and experience, the smell of marijuana on all three pieces of evidence, and the residue that looked like burnt marijuana. Id. at ¶ 21. “The mere smell of marijuana, as detected by a trained and experienced officer, has been held by this Court to create a sufficient factual basis upon which to establish probable cause.” Id. at ¶ 20. The distinguishing factor in Schmalz is the dark colored residue the officer identified as burnt marijuana, and the smell of marijuana found on the residue, cellophane packaging, and packaging tape.

[¶ 10] The present case is like Thieling, because the evidence that drugs would be found in Kieper’s house was minimal. The evidence in this case consisted only of common household items and did not greatly raise the degree of suspicion. “The relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Thieling, 2000 ND 106, ¶ 9, 611 N.W.2d 861 (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The butter knives with black burn marks and white residue may raise some suspicion because of their altered state, but they do not raise a high degree of suspicion because they are common household items and there was no evidence the residue on the knives was drug residue. See Thieling, at ¶ 9 n. 2 (drug residue found in garbage may be sufficient to support a finding of probable cause). The altered baggie may also raise more suspicion than an unaltered baggie, but baggies are intended to be used for packaging items and a baggie corner is consistent with packaging. Id. at ¶ 9. The baggie corner found in Kieper’s trash may have been enough for probable cause to believe Kieper was packaging something, but there was no evidence Kieper was packaging illegal drugs. See Thieling, at ¶ 9. The evidence from the trash does not raise a high degree of suspicion and adds little to the probable cause analysis.

[¶ 11] Furthermore, the facts surrounding the trash search are limited. The search warrant application and supporting testimony did not contain information describing Kieper’s residence, whether trash belonging to others may be placed in this location, whether the evidence was found in a trash bag, or whether the alleged contraband was found in the same bag as the mail. The information provided to the magistrate to show a nexus between the alleged contraband and Kieper’s residence is tenuous. See Schmalz, 2008 ND 27, ¶ 16, 744 N.W.2d 734.

[¶ 12] Kieper contends Lein-gang’s testimony explaining the trash was searched based on information from various sources over the last few years indicating Kieper was distributing narcotics does not support probable cause because there was no evidentiary support for the allegations. “Sufficient information, rather than ‘bare bones’ information must be presented to the magistrate’; ‘an affidavit expressed in conclusions without detailing underlying information is insufficient for probable cause.’ ” Thieling, 2000 ND 106, ¶ 11, 611 N.W.2d 861 (quoting State v. Rangeloff, 1998 ND 135, ¶ 19, 580 N.W.2d 593). Leingang did not disclose the names of the informants or what specific information law enforcement had received from each of the informants. The testimony about information law enforcement received regarding Kieper distributing narcotics was merely a conclusion without detailed underlying information and does not sustain a finding of probable cause. See Schmalz, 2008 ND 27, ¶ 14, 744 N.W.2d 734.

[¶ 13] When all of the evidence presented to the issuing magistrate is considered as a whole, the information may have been sufficient to raise a suspicion that criminal activity was taking place, which may warrant further investigation, but it was not sufficient to establish probable cause to issue a search warrant. We conclude Leingang’s testimony in support of the application for a search warrant does not provide a substantial basis for the magistrate’s conclusion that there was probable cause to issue a search warrant for Kieper’s residence. The search of Kieper’s residence was illegal under the federal and state constitutions, and the evidence seized during the search must be suppressed.

Ill

[¶ 14] The State contends that if probable cause did not exist to support the search warrant, the evidence should not be suppressed because the good faith exception to the exclusionary rule applies and no evidence has been presented that Lein-gang acted improperly or that the magistrate failed to act in a detached and neutral manner.

[¶ 15] The United States Supreme Court recognized the good faith exception in United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405 (1984), when it held evidence should not be excluded when an officer has acted in good faith upon objectively reasonable reliance on the magistrate’s probable cause determination. In applying the good faith exception, the court must determine “ ‘whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.’ ” State v. Herrick, 1999 ND 1, ¶ 15, 588 N.W.2d 847 (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405). Suppression remains an appropriate remedy in four situations:

(1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.

State v. Dodson, 2003 ND 187, ¶ 19, 671 N.W.2d 825 (quoting Herrick, at ¶ 15).

[¶ 16] The State did not argue in the district court the good faith exception applied. Rather, the State raised the issue for the first time on appeal. Kieper argues the State waived the issue by failing to raise it below. It is well-established that “[i]ssues which are not raised before the [district] court, including constitutional issues, will not be considered for the first time on appeal.” State v. Blumler, 458 N.W.2d 300, 303 (N.D.1990). While the question of whether the good faith exception should apply is based on an objective standard of whether a reasonable officer would have known the search was illegal, it still requires the court have sufficient facts to make a decision and those facts may be lacking if we allow the State to make the argument for the first time on appeal. See Higgason v. Superior Court, 170 Cal.App.3d 929, 216 Cal.Rptr. 817, 823-24 (1985). Furthermore, the defendant will be denied the opportunity to present evidence in response, to cross-examine witnesses on testimony that may support the new theory, or to argue before the district court the theory’s invalidity or inapplicability. Id.

[¶ 17] We will not decide whether the good faith exception applies because the State failed to raise the issue in the district court and it was not properly preserved for review.

IV

[¶ 18] We conclude probable cause did not exist to issue a search warrant. We reverse the criminal judgment, and remand the case to the district court to allow Kieper to withdraw his guilty plea.

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

DALE V. SANDSTROM, J., I concur in the result.

CROTHERS, Justice, specially

concurring.

[¶ 20] I concur in the result reached by the majority, but respectfully disagree with their analysis.

[¶ 21] I wrote separately in State v. Schmalz because probable cause was not established and the search was sustainable, if at all, upon establishing the good-faith exception. 2008 ND 27, ¶ 31, 744 N.W.2d 734 (Crothers, J., concurring in the result). So too, I agree the search here only can be sustained on good faith. But the State did not raise that issue below. Majority opinion at ¶¶ 14-17.

[¶ 22] I disagree with the majority that application of Schmalz and State v. Thieling, 2000 ND 106, 611 N.W.2d 861, should lead us to different conclusions. Both cases involved trash containing household items that could have been evidence of criminal activity. Both cases involved limited facts about the trash, and had an unreliable nexus between the trash and the residence sought to be searched. Both cases involved information provided by third parties that furnished little or no useful evidence supporting probable cause. But in one case this Court found probable cause and in the other case it did not. I believe these different holdings based on similar facts will result in law enforcement and reviewing magistrates having understandable difficulty determining why the warrant was sustained in Schmalz and deficient in Thieling. The analysis in this case does nothing to dissipate that confusion, but instead perpetuates the error which I believe was made in Schmalz. I therefore cannot join the majority’s analysis in this case, but I do concur in the result they have reached.

[¶ 23] DANIEL J. CROTHERS, J.


author: PER CURIAM.

text:
    2008 ND 76
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Kerry A. O'DONNELL, 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. Kerry A. O'Donnell, Respondent.
    Nos. 20080084, 20080085.
    Supreme Court of North Dakota.
    April 18, 2008.
   SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] Kerry A. O’Donnell was admitted as an attorney in North Dakota on October 6, 2003, and his name has appeared on the roll of attorneys since that date.

[¶ 2] On August 6, 2007, O’Donnell admitted service of a Summons and Petition for Discipline. The Petition alleges that O’Donnell attempted to acquire the controlled substance hydrocodone, by misrepresentation, fraud, forgery, deception, or subterfuge, by attempting to fill a prescription he had intentionally altered to obtain more pills than had been prescribed. The Petition further alleges that O’Donnell denied altering the prescription, falsely informing the arresting officer that if the prescription was forged, it must have been done by someone entering O’Donnell’s vehicle during one of his stops to the pharmacy.

[¶ 3] The Petition asserts that O’Donnell’s conduct violated N.D.R. Prof. Conduct 8.4(b) and N.D.R. Lawyer Discipl. 1.2(A)(2)(committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer through violations of N.D.C.C. § 12.1-06-01(criminal attempt) and N.D.C.C. § 19-03.1-25(l)(c)(acquiring or obtaining possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge)); and N.D.R. Prof. Conduct 8.4(c) and N.D.R. Lawyer Discipl. 1.2(A)(3)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

[¶ 4] On September 24, 2007, O’Donnell filed an Answer to Petition for Discipline admitting that he attempted to acquire hydrocodone by intentionally altering the prescription to obtain more pills than had been prescribed while he was under the influence of the same medication. O’Donnell also admitted that he falsely informed the arresting officer about the forgery of the prescription, but denied that he stated someone else entered his car and changed the prescription. O’Donnell further admitted he committed a criminal act; that he has completed a chemical dependency program and continues to participate in meetings and treatment; and that he is participating in the Lawyer Assistance Program. O’Donnell also acknowledged that he understands the gravity of the situation; however, he denied that his actions fraudulently affected a client or adversely affected his trustworthiness as a lawyer and were the result of addiction, which he is addressing.

[¶ 5] On November 21, 2007, a Stipulation, Consent to Discipline, and Recommendation of Hearing Panel with exhibit 1 was filed. In the Stipulation, O’Donnell stipulated that he had become addicted to prescription drugs due to health issues; that he was arrested for attempting to acquire the controlled substance hydroeo-done with a forged prescription; that he had intentionally altered the prescription to obtain more pills than had been prescribed for him; that he entered a plea of guilty on December 3, 2007, to attempting to obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge, a Class A misdemeanor, which is a serious crime for purposes of N.D.R. Lawyer Discipl. 4.1; and that his conduct violated N.D.R. Prof. Conduct 8.4(b) and N.D.R. Lawyer Discipl. 1.2(A)(2)(committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and N.D.R. Prof. Conduct 8.4(c) and N.D.R. Lawyer Discipl. 1.2(A)(3)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

[¶ 6] The Stipulation also acknowledged that O’Donnell had successfully completed intensive outpatient chemical dependency treatment at First Step Recovery on June 7, 2007, and was evaluated for aftercare plans and recommendations. By letter dated June 12, 2007, from First Step Recovery, O’Donnell provided his aftercare plans and recommendations to the State Bar Association Lawyer Assistance Program, which was accepted as an Individualized Assistance Plan for purposes of N.D.R. Lawyer Discipl. 6.6(E).

[¶ 7] In the Stipulation and Consent to Discipline, O’Donnell consented to a suspension from the practice of law for two years, to be stayed on certain terms and conditions. The Hearing Panel filed the Stipulation, Consent to Discipline and Recommendations of Hearing Panel, adopting the Stipulation and Consent to Discipline and recommending that O’Donnell be suspended from the practice of law for two years, to be stayed on the conditions set forth in the Stipulation and Consent to Discipline, and that O’Donnell pay the costs and expenses of the disciplinary proceeding in the amount of $250.

[¶ 8] The matter was referred to the Supreme Court under N.D.R. Lawyer Dis-cipl. 3.1(F). No objections were filed under N.D.R. Lawyer Discipl. 3.1(F)(2). The Court considered the matter and rejected the Stipulation, Consent to Discipline and Recommendation of the Hearing Panel. The matter was returned to the Hearing Panel for further consideration.

[¶ 9] On February 20, 2008, O’Donnell was placed on interim suspension after a criminal judgment was entered and O’Donnell was convicted of attempt to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge in violation of N.D.C.C. §§ 12.1-06-01 and 19-03.1-25(l)(c), a Class A Misdemeanor. See Disciplinary Board v. O’Donnell, 2008 ND 17, 744 N.W.2d 724.

[¶ 10] On March 3, 2008, O’Donnell admitted service of a second Petition for Discipline relating to his criminal conviction for a “serious crime” under N.D.R. Lawyer Discipl. 4.1(C). The second Petition asserts that O’Donnell’s conviction violated N.D.R. Prof. Conduct 8.4(b) and N.D.R. Lawyer Dis-cipl. 1.2(A)(2)(eommitting a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer through violations of N.D.C.C. § 12.1-06-01(criminal attempt) and N.D.C.C. § 19-03.1-25(l)(c)(acquiring or obtaining possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge)); and N.D.R. Prof. Conduct 8.4(c) and N.D.R. Lawyer Discipl. 1.2(A)(3)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). O’Donnell filed an Answer admitting that he had committed the criminal act and the criminal act was the result of a drug addiction; that he has completed a chemical dependency program and continues to participate in meetings and treatment; that he is participating in the Lawyer Assistance Program; that he understands the gravity of the situation; and that his conduct did not fraudulently affect a client or adversely affect his trustworthiness as a lawyer.

[¶ 11] On April 9, 2008, the Hearing Panel filed its Findings of Fact, Conclusions of Law and Recommendation of Hearing Panel. The Hearing Panel found that O’Donnell was arrested for attempting to acquire hydrocodone, a controlled substance, with a forged prescription, and attempted to fill a prescription knowing he had intentionally altered the prescription to obtain more pills than prescribed. The Hearing Panel further found that O’Donnell pled guilty to the Class A Misdemean- or of attempting to obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge and that it is a “serious crime” under N.D.R. Lawyer Discipl. 4.1.

[¶ 12] The Hearing Panel also found that O’Donnell successfully completed intensive outpatient chemical dependency treatment at First Step Recovery on June 7, 2007, and was evaluated for aftercare plans and recommendations. By letter dated June 12, 2007, from First Step.Recovery, O’Donnell provided his aftercare plans and recommendations to the State Bar Association Lawyer Assistance Program, which was accepted as an Individualized Assistance Plan for purposes of N.D.R. Lawyer Discipl. 6.6(E). Further, the Hearing Panel found that O’Donnell is in compliance with the treatment plans at First Step Recovery.

[¶ 13] The Hearing Panel concluded that O’Donnell’s conduct violated N.D.R. Prof. Conduct 8.4(b) and N.D.R. Lawyer Discipl. 1.2(A)(2), committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, through violations of N.D.C.C. §§ 12.1-06-01(criminal attempt) and 19-03.1-25(l)(c) (acquiring or obtaining possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge). The Hearing Panel also concluded that O’Donnell’s conduct violated N.D.R. Prof. Conduct 8.4(c) and N.D.R. Lawyer Discipl. 1.2(A)(8)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

[¶ 14] The Hearing Panel considered the aggravating factor of selfish or dishonest motive under N.D. Stds. Imposing Lawyer Sanctions 9.22(b). The Hearing Panel considered mitigating factors under N.D. Stds. Imposing Lawyer Sanctions 9.32(a), absence of a prior disciplinary record; 9.32(c), personal or emotional problems experienced by O’Donnell for which he is undergoing treatment and seeking assistance; 9.32(d), timely good faith effort to make restitution or to rectify consequences of misconduct; 9.32(e), full and free disclosure to disciplinary board or cooperative attitude toward the proceeding; 9.32®, inexperience in the practice of law; and 9.32(l), remorse.

[¶ 15] The Hearing Panel recommended that O’Donnell be suspended from the practice of law for two years with all of the suspension stayed for a period of two years upon certain terms and conditions set forth in the Findings of Fact Conclusions of Law and Recommendation of the Hearing Panel. The Hearing Panel further recommended that O’Donnell be placed on probation during the two-year stay.

[¶ 16] The Hearing Panel concluded that the terms and conditions of probation specified measures sufficient to protect the public and recommended that Supreme Court’s order of interim suspension be vacated. The Hearing Panel also recommended a procedure to be used in the event probation is violated and the stay must be lifted, and that O’Donnell provide an affidavit of compliance to the Court before the expiration of the two-year stay period.

[¶ 17] The Hearing Panel finally recommended that O’Donnell pay the costs and expenses of the disciplinary proceeding in the amount of $250, payable to the Secretary of the Disciplinary Board.

[¶ 18] The matter was again referred to the Supreme Court under N.D.R. Lawyer Discipl. 3.1(F). The time for filing objections was waived and no objections were filed under N.D.R. Lawyer Discipl. 3.1(F)(2). The Court considered the matter, and

[¶ 19] ORDERED, the Findings of Fact, Conclusions of Law and Recommendation of the Hearing Panel filed April 9, 2008, is accepted as amended by the Court, and Kerry A. O’Donnell is suspended from the practice of law for two years, which is stayed for two years on the following conditions:

A. O’Donnell must comply with all treatment plans prescribed for him by First Step Recovery;
B. O’Donnell must comply with all terms and conditions of the sentence imposed in State of North Dakota v. Kerry Andrew O’Donnell, Cass County 09-07-K-00933.
C. O’Donnell must comply with all terms and conditions specified for his participation in the Lawyer Assistance Program.
D. O’Donnell must abstain from the use of alcohol or any other mood altering substances, except those prescribed by an approved physician with notice to the Lawyer Assistance Program. E. O’Donnell must submit to random drug/alcohol screening, to include testing of breath, blood, or urine samples, at his own expense, whenever requested by probation officers, mental health or other counselors, the Lawyer Assistance Program, or Disciplinary Counsel. A copy of the laboratory results of each drug/alcohol screen must be provided to the Lawyer Assistance Program and Disciplinary Counsel by the laboratory or testing facility. O’Donnell must execute all necessary releases so that the laboratory or agency administering the screen can send copies of the results to the Lawyer Assistance Program and Disciplinary Counsel at the same time the results are sent to O’Donnell. A positive test or use of alcohol or mood altering substances may be deemed a basis to revoke probation and lift the stay of suspension. An attempt to mask or reduce the level of any prohibited substance may also be deemed a basis to revoke probation or lift the stay of suspension. O’Donnell is responsible for all costs and must make all arrangements for any testing required under the terms of probation.
F. O’Donnell agrees to waive any confidentiality with respect to the June 12, 2007, Individualized Assistance Plan from First Step Recovery and must provide First Step Recovery personnel with releases allowing them to communicate freely with the Lawyer Assistance Program and Disciplinary Counsel. Upon request, O’Donnell must provide releases to all treating counselors, therapists, healthcare providers, AA, NA, or other recovery or peer support program, or sponsors, to allow them to freely communicate with the Lawyer Assistance Program and Disciplinary Counsel regarding the nature of any treatment provided to O’Donnell.
G.O’Donnell is responsible for any and all costs associated with his compliance with the terms and conditions of probation.

[¶ 20] FURTHER ORDERED, for purposes of N.D.R. Lawyer Discipl. 3.4 and in the event Kerry A. O’Donnell violates the terms and conditions of his probation and the stay of suspension must be lifted, the following procedure will be used:

A. Upon receiving evidence demonstrating that O’Donnell has violated the terms and conditions of probation, Disciplinary Counsel shall transmit the evidence to the Court, together with a proposed order revoking probation and imposing the entire two-year suspension, effective the day probation is revoked.
B. Upon transmittal of the proposed order revoking probation, O’Donnell may request within ten days an opportunity to be heard. The Court shall return the matter to the Disciplinary Board to provide O’Donnell an opportunity to be heard and for the Disciplinary Board to provide a recommendation on Disciplinary Counsel’s proposed order.
C. Upon request by Disciplinary Counsel or O’Donnell after entry of an order revoking probation, the Court shall within ten days provide an opportunity for O’Donnell or Disciplinary Counsel to demonstrate that the order should not remain in force.

[¶ 21] FURTHER ORDERED, prior to the expiration of the two-year stay of suspension, Kerry A. O’Donnell must provide the Court with an affidavit and supporting documentation from the Lawyer Assistance Program showing that he has fully complied with the terms and conditions of all disciplinary orders and rules and that the Lawyer Assistance Program certifies he has complied with all terms and conditions specified for his participation in the Lawyer Assistance Program.

[¶ 22] FURTHER ORDERED, the Order of Interim Suspension entered on February 20, 2008, suspending Kerry A. O’Donnell from the practice of law is hereby vacated. See Disciplinary Board v. O’Donnell, 2008 ND 17, 744 N.W.2d 724.

[¶ 23] FURTHER ORDERED, Kerry A. O’Donnell pay the costs and expenses of the disciplinary proceeding in the amount of $250, payable within 30 days to the Secretary of the Disciplinary Board.

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


author: CROTHERS, Justice.

text:
    2008 ND 75
    Jason Reid GROSGEBAUER, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20070299.
    Supreme Court of North Dakota.
    April 18, 2008.

      Chad R. McCabe, McCabe Law Firm, Bismarck, ND, for petitioner and appellant.
    Andrew Moraghan, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellee.
   CROTHERS, Justice.

[¶ 1] Jason Grosgebauer appeals the district court’s judgment affirming a North Dakota Department of Transportation decision revoking Grosgebauer’s driving privileges for three years because he refused a blood test. We conclude the Department’s findings that Grosgebauer refused chemical testing and failed to cure the refusal are supported by a preponderance of the evidence. We affirm.

I

[¶ 2] On May 19, 2007, Grosgebauer was stopped for speeding and for crossing the center line. Grosgebauer exhibited signs of intoxication. Grosgebauer admitted having been at a bar and having drank “enough.” Grosgebauer stated, “If you [ ] take me to the hospital for a blood test, I’m gonna fail.” Grosgebauer failed field-sobriety testing and refused to take a preliminary breath test. He explained that he was concerned residual alcohol- in his mouth would result in a false positive because he had bleeding gums. Grosgebauer was arrested.

[¶ 3] The officer read Grosgebauer his Miranda rights, but Grosgebauer denied understanding the rights. The officer perceived Grosgebauer was “toying around” with him by feigning a lack of understanding. After arrest, the officer asked Gros-gebauer to submit to a blood test. The officer read the implied consent advisory three separate times, and each time, Gros-gebauer “kind of swore at [the officer] [and] kind of mumbled” in response. The officer told Grosgebauer if he did not consent to or refuse a blood test, that his mumbling and swearing would be interpreted as a refusal. Grosgebauer’s response did not change. Grosgebauer claimed throughout these proceedings that his responses to the officer indicated he did not understand the implied consent advisory. Grosgebauer also offered that he has difficulty hearing when background noise is present and that he tends to “tune [things] out.” Grosgebauer admitted he has not sought medical treatment for this malady.

[¶ 4] The officer stayed with Grosge-bauer until turning him over to jail personnel. While waiting for jail personnel, the officer completed paperwork, provided Grosgebauer with water to drink and helped him make phone calls on Grosge-bauer’s cell phone. At some point during this waiting period, a corrections staff member asked if Grosgebauer needed a blood test. The officer responded that Grosgebauer had refused the blood test. Grosgebauer overheard this conversation and said words approximating “I did not refuse.” The staff member who allegedly witnessed this comment did not testify at the administrative hearing. The officer then filled out a Report and Notice form indicating the refusal and handed it to Grosgebauer. Grosgebauer made no verbal or physical indication he was willing to take the blood test, even though the area where blood is drawn was visible and not far from where Grosgebauer was waiting.

[¶ 5] The Department of Transportation revoked Grosgebauer’s license for three years for refusing the blood test. The Department found Grosgebauer had refused the initial preliminary breath test and the three requests for a blood test. The Department wrote in its decision, ‘While Grosgebauer’s intentions may have been equivocal, his conduct was not.” The Department also found Grosgebauer’s later statement of “I did not refuse” did not indicate whether Grosgebauer was willing to take the blood test. “Grosgebauer gave no indication that he was then willing to take the blood test, either verbally or non-verbally.” The Department determined there would have been sufficient time for the blood test if Grosgebauer had availed himself.

[¶ 6] The district court affirmed the administrative decision. Grosgebauer appeals, claiming he did not withdraw his implied consent and did not affirmatively refuse any of the tests. Grosgebauer alternatively argues he cured any refusal when he declared, in the jailer’s presence, “I did not refuse.”

II

[¶ 7] When reviewing license suspensions under N.D.C.C. § 39-20-05, the record of the administrative agency is considered rather than the district court’s ruling. N.D. Dep’t of Transp. v. DuPaul, 487 N.W.2d 593, 595 (N.D.1992). The agency’s decision must be affirmed unless:

“1) the decision is not in accordance with the law; 2) the decision violates the constitutional rights of the appellant; 3) provisions of the Administrative Agencies Practices Act were not complied with in the proceedings before the agency; 4) the agency’s rules or procedures have not afforded the appellant a fair hearing; 5) the agency’s findings are not supported by a preponderance of the evidence; or 6) the conclusions of law and the agency’s decision are not supported by its findings of fact.”

Id. This Court considers “whether the agency reasonably reached its factual determinations by the greater weight of all the evidence.” Id. “[W]hether or not [a defendant] refused to take [a chemical] test is a question of fact.” Hammeren v. N.D. State Highway Comm’r, 315 N.W.2d 679, 682-83 (N.D.1982). Two questions are under consideration by this Court: first, whether a preponderance of the evidence supports the finding that Grosge-bauer refused the blood test and, second, whether a preponderance of the evidence supports the finding that Grosgebauer did not effectively cure the refusal.

A

[¶ 8] Section 39-20-01, N.D.C.C., states, in pertinent part:

“Any person who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcohol, other drug, or combination thereof, content of the blood.... The law enforcement officer shall also inform the person charged that refusal of the person to submit to the test determined appropriate will result in a revocation for up to four years of the person’s driving privileges. The law enforcement officer shall determine which of the tests is to be used.”

(Emphasis added.) A driver may not be tested against his will, and the Legislature has provided a procedure in N.D.C.C. § 39-20-04 for drivers to refuse testing. State v. Murphy, 516 N.W.2d 285, 287 (N.D.1994). The statutory right to refuse testing exists to avoid violent confrontations between drivers and police officers. Id. When a person refuses to be tested, his driver’s license may be administratively revoked for a maximum of four years. N.D.C.C. § 39-20-04.

[¶ 9] Withdrawing the implied consent provided under N.D.C.C. § 39-20-01 requires an affirmative refusal to be tested. State v. Mertz, 362 N.W.2d 410, 413-14 (N.D.1985). Drivers who are unable to refuse by reason of being “dead, unconscious, or otherwise in a condition rendering the person incapable of refusal” may be tested, because they are “deemed not to have withdrawn [ ] consent.” N.D.C.C. § 39-20-03. For those able to make a conscious decision, refusal does not have to be explicitly stated; “stubborn silence” or a “physical failure to cooperate” may also indicate refusal. Mayo v. Moore, 527 N.W.2d 257, 260 (N.D.1995); DuPaul, 487 N.W.2d at 597.

[¶ 10] In Mayo, the driver did not explicitly refuse a test. 527 N.W.2d at 260. When asked to take the test, however, the driver physically turned away from the officer to face the wall and told the officer she could not hear him. Id. at 259. She asked, “why are you doing this to me?” Id. The officer warned her “if she did not do or say anything, he would mark it down as a refusal.” Id. at 260-61. This Court concluded the administrative officer’s finding of a refusal was supported by a preponderance of the evidence. Id. at 262. In DuPaul, a driver did not respond to whether he would test, but demanded to see a doctor and a lawyer. 487 N.W.2d at 595. This Court affirmed the Department’s finding of a refusal stating, “[a]t no time did [the driver] agree to be tested after he had been advised of the consequences. The failure ... to respond after being requested to take a blood test and his response only of wanting a doctor and a lawyer constitutes a refusal to be tested.” Id. at 597. The Court also acknowledged, “[t]he law does not authorize the driver to choose the specific test to be administered, nor to choose a specific person to administer the test.” Id. Similarly, in Obrigewitch v. Dir., Dep’t of Transp., the driver “continually interrupted the police officer while the implied consent law was read” and responded to the officer’s request to take the chemical test in “an obstreperous and evasive manner.” 2002 ND 177, ¶ 14, 653 N.W.2d 73. The driver ignored the officer’s request to take the chemical test for twenty to twenty-five minutes. Id. This Court upheld the Department’s finding of a refusal. Id. at ¶ 15.

[¶ 11] These cases represent a tension inherent in our implied consent policy. Section 39-20-01, N.D.C.C., establishes that consent to testing is presumed. This presumption is tempered by legislative grace allowing a driver to opt out of testing. N.D.C.C. § 39-20-04. While consent may be the default legal position, in practice, the statutory scheme requires communication between the officer and the driver in which the officer requests submission to the test. See Obrigewitch, 2002 ND 177, ¶ 4, 653 N.W.2d 73 (officer attempted to “persuade” driver to submit to testing). The opportunity for a driver to refuse testing may be a practical necessity. See Murphy, 516 N.W.2d at 287. Nonetheless, this act of “legislative grace” should not be construed as giving drivers the ability to avoid the potential consequences of test submission and to avoid the penalties of refusal by remaining ambivalent. See Krabseth v. Moore, 1997 ND 224, ¶ 17, 571 N.W.2d 146.

[¶ 12] Ultimately, in cases like Mayo, DuPaul, Obrigewitch and here, whether a driver affirmatively refused to submit to testing is a determination of fact that is significantly reliant on the credibility of witnesses. Here, the Department considered testimony from both the officer and Grosgebauer and found “the trooper’s testimony more credible.” Each time the officer read the implied consent to Grosge-bauer, “the response was the same: Gros-gebauer swore at the officer and grumbled but would not submit.” (Emphasis added.) These circumstances are similar to those present in Mayo and Obrigewitch, and finding a refusal in such circumstances is consistent with our case law. Furthermore, the Department’s factual finding of a refusal is supported by a preponderance of the evidence. While Grosgebauer claims a hearing loss and not understanding the implied consent, the Department did not find this compelling. His claimed inability to understand the implied consent warning is unpersuasive, particularly given the officer’s testimony that Grosgebauer “toyfed]” with him by contending he also did not understand the Miranda warning. The hearing loss argument is also suspect because Grosgebauer never sought treatment for this condition, he apparently did not have difficulty hearing or understanding the conversation between the officer and jail personnel, and he did not appear to be affected by the condition at the administrative hearing. Under the applicable standard of review, the Department’s finding of a refusal is affirmed.

B

[¶ 13] Grosgebauer alternatively argues even if he did refuse testing, he cured that refusal when he stated, “I did not refuse.” Under Lund v. Hjelle, a driver is able to cure a prior refusal if he changes his mind and requests the test. 224 N.W.2d 552, 557 (N.D.1974). Lund states:

“[W]e hold that where, as here, one who is arrested for driving while under the influence of intoxicating liquor first refuses to submit to a chemical test to determine the alcoholic content of his blood and later changes his mind and requests a chemical blood test, the subsequent consent to take the test cures the prior first refusal when the request to take the test is made within a reasonable time after the prior first refusal; when such a test administered upon the subsequent consent would still be accurate; when testing equipment or facilities are still readily available; when honoring a request for a test, following a prior first refusal, will result in no substantial inconvenience or expense to the police; and when the individual requesting the test has been in police custody and under observation for the whole time since his arrest.”

Id. (emphasis added). In Lund, the driver was arrested for driving under the influence. Id. at 554. Lund initially agreed to take a chemical test but refused once at the hospital. Id. Lund was taken to the police station where he was allowed to phone his insurance agent, who advised he submit to testing. Id. Lund’s subsequent request for testing, occurring approximately an hour after his arrest, was denied. Id. at 554-55. This Court held the test should have been given, and the revocation of Lund’s license was reversed. Id. at 556-57.

[¶ 14] To cure a prior refusal, the criteria in Lund “must be strictly and rigidly adhered to.” Asbridge v. N.D. State Highway Comm’r, 291 N.W.2d 739, 750 (N.D.1980).

“Allowing a person charged with driving or being in actual physical control of a motor vehicle while under the influence to vacillate between not taking and taking a chemical test already imposes a severe and somewhat unwarranted burden upon law enforcement officers. We are unwilling to add to this administrative burden by extending and expanding the requirements so precisely articulated in Lund.”

Asbridge, at 750 (internal citation omitted); see also Horn v. N.D. Dep’t of Transp., 2000 ND 131, ¶ 18, 613 N.W.2d 29 (driver failed in an attempt to cure a prior refusal with only twenty minutes left of the two-hour testing window).

[¶ 15] Grosgebauer argues his statement of “I did not refuse” was sufficient to signify he had “change[d] his mind and requested] a chemical blood test.” Lund, at 557. The Department found that though there was sufficient time to perform a blood test “Grosgebauer gave no indication that he was then willing to take the blood test, either verbally or non-verbally.” In Lund, the driver changed his mind after speaking to an insurance agent and clearly expressed his desire to law-enforcement to take a chemical test. Here, Grosgebauer, who earlier had claimed he did not understand the Miranda warning, swore and mumbled when asked to submit to testing. Then, after he overheard a conversation between the officer and a jailer, responded with an ambiguous statement. This is not a clearly articulated reconsideration like that expressed by the driver in Lund. Therefore, a preponderance of the evidence supports the Department’s determination that Grosgebauer did not cure his refusal to submit to testing.

Ill

[¶ 16] We conclude the Department’s findings that Grosgebauer refused a blood test and that he did not effectively cure the refusal are supported by a preponderance of the evidence. We affirm the district court’s judgment affirming the Department’s decision revoking Grosge-bauer’s driving privileges for three years.

[¶ 17] GERALD W. VANDE WALLE, C.J., and BRUCE E. BOHLMAN, S.J., and MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ., concur.

[¶ 18] The Honorable BRUCE E. BOHLMAN, S.J., sitting in place of SANDSTROM, J., disqualified.