author: RANDALL, Judge.

text:
    Donald HAUMANT, petitioner, Appellant, v. Susanne GRIFFIN, City of Minneapolis Director of Elections, Respondent.
    No. A04-1746.
    Court of Appeals of Minnesota.
    June 7, 2005.
    Review Denied Aug. 24, 2005.

      Alan W. Weinblatt, Amy Gavel, Wein-blatt & Gaylord PLC, St. Paul, MN, for appellant.
    Jay M. Heffern, Minneapolis City Attorney, Burt T. Osborne, Assistant Minneapolis City Attorney, Minneapolis, MN, for respondent.

      Considered and decided by RANDALL, Presiding Judge; HUDSON, Judge; and WRIGHT, Judge.
   OPINION

RANDALL, Judge.

Donald Haumant appeals from an order denying his request for an injunction requiring respondent, the City of Minneapolis’ Director of Elections, to place a proposed charter amendment on the November 2, 2004 general-election ballot for Minneapolis. Because the election has passed, Haumant now seeks an order requiring respondent to hold a special election. Haumant argues that (1) respondent must submit a proposed charter amendment to the voters unless it is manifestly unconstitutional, (2) the proposed charter amendment is not unconstitutional, (3) respondent’s reasons to keep the amendment off the ballot are invalid, (4) voters should be allowed to decide the issue, and (5) proposed Minneapolis charter amendments are not required to relate to the general form and structure of municipal government.

FACTS

The facts are not in dispute. On August 10, 2004, appellant and other members of an organization known as Citizens Organized for Harm Reduction (C.O.H.R.) filed a signed petition for a proposed charter amendment with the Minneapolis Charter Commission. The proposed charter amendment reads as follows:

Be it established by the people of Minneapolis that the Minneapolis City Charter be amended by adding the following as subsection (j) to Chapter 14, section 3: To require that the City Council shall authorize, license, and regulate a reasonable number of medical marijuana distribution centers in the City of Minneapolis as is necessary to provide services to patients who have been recommended medical marijuana by a medical or osteopathic doctor licensed to practice in the State of Minnesota to the extent permitted by State and Federal law.

Appellant’s petition, in accordance with the appropriate procedure, was forwarded to the Minneapolis City Council (City Council). And on August 20, 2004, the City Council conducted a hearing on the petition. After the hearing, the City Council ruled against inclusion of appellant’s petition on the November 2, 2004 Minneapolis ballot by a vote of 8-4, with one abstention. In support of its exclusion of appellant’s proposed ballot measure, the City Council made the following findings:

1. The proposed charter amendment is manifestly unconstitutional because it conflicts with federal law in violation of the supremacy clause of Article VI of the United States Constitution and is, therefore, preempted by federal law.
2. The proposed amendment contravenes state public policy and is preempted by Minnesota law.
3. The proposed amendment is an unauthorized, non-legal initiative that addresses specific operations of municipal government rather than a valid charter amendment that addresses the general form and structure of municipal government.

Appellant filed a petition for inclusion on the ballot in Hennepin County District Court on September 3, 2004. After a hearing and briefing on the issues, the district court denied appellant’s petition. The court stated that it agreed “with Respondent that the proposed charter amendment is manifestly unconstitutional” and held that the proposed amendment was preempted by both federal and state law. Further, the district court found that “the allegedly exculpatory clause contained at the end of the proposed charter amendment cannot rescue the amendment from charges that it is manifestly unconstitutional where it is clear that the proposed amendment seeks to legislate in areas where the city is preempted.” Finally, the district court held that “the proposed charter amendment is an initiative cloaked as a charter amendment” and, because the City of Minneapolis elected not to include initiative powers as part of its home rule charter, the proposed amendment was improper. After a pair of unsuccessful attempts to obtain- expedited review from the Minnesota Supreme Court and this court, this appeal followed.

ISSUE

Was it proper for the Minneapolis City Council to refuse to place appellant’s proposed charter-amendment petition on the November 2 ballot?

ANALYSIS

We start with the basics. Minneapolis is a home rule charter city whose charter reserves to its citizens the right to propose charter amendments by petition to its charter commission. The Minnesota Constitution provides that “[a]ny local government unit when authorized by law may adopt a home rule charter for its government.” Minn. Const, art. XII, § 4. City charters are framed and amended through appointed charter commissions. Minn. Stat. § 410.05, subd. 1 (2004). Section 410.12 of the Minnesota Statutes sets forth the process to be followed for a proposed charter amendment by citizen petition, and it states that “[t]he charter commission may propose amendments to such charter and shall do so upon the petition of voters equal in number to five percent of the total votes cast at the last previous state general election in the city.” Minn.Stat. § 410.12, subd. 1 (2004). Subdivision 4 also states that “[ajmendments shall be submitted to the qualified voters at a general or special election and published as in the case of the original charter.” Minn. Stat. § 410.12, subd. 4 (2004).

Based on these two sentences, and specifically relying on the use of the word “shall,” appellant argues that, where the petitioners have met the technical requirements for amendment proposals, the City Council has a mandatory duty to place all proposed charter amendments on the ballot. Respondent points out that this argument is subject to the doctrine of preemption, and by the fact that proposed charter amendments in Minnesota are qualified by the judicially-created requirement that proposed charter provisions not be “manifestly unconstitutional.” See Minneapolis Term Limits Coalition v. Keefe, 535 N.W.2d 306, 308 (Minn.1995).

1. State Law and Policy

A. Preemption

Where there are no disputed facts on appeal, the question of whether state statutes prevail over a local charter provision is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992). Appellant argues that the real issue here is the City Council’.s refusal to allow his proposed charter amendment onto the ballot, and not whether his amendment conflicts with state law. This argument ignores the settled principle that “[t]he power conferred upon cities to frame and adopt home rule charters is limited by the provisions that such charter shall always be in harmony with and subject to the constitution and laws of the state.” Nordmarken v. City of Richfield, 641 N.W.2d 343, 347 (Minn.App.2002) (quoting Town of Lowell v. City of Crookston, 252 Minn. 526, 528, 91 N.W.2d 81, 83 (1958)), review denied (Minn. June 18, 2002). This court has explicitly stated that a home rule charter “does not preclude the legislature from preempting charter authority on matters of state concern.” Id. at 348.

The question of whether state law has preempted a field depends on the facts and circumstances of each case. Id. at 348. “The doctrine of preemption is premised on the right of the state to so extensively and intensively occupy a particular field or subject with state laws that there is no reason for municipal regulation.” Id. (citing Mangold Midwest Co. v. Vill. of Richfield, 274 Minn. 347, 356, 143 N.W.2d 813, 819 (1966)). If preemption has occurred, a local law purporting to govern an aspect of the preempted field is void even if the law is not directly in conflict with the state law. Id.

There are four factors that Minnesota courts consider in determining whether preemption has occurred: (1) the subject matter regulated; (2) whether the subject matter is so fully covered by state law that it has become solely a matter of state concern; (3) whether any partial legislation on the subject matter evinces an intent to treat the subject matter as being solely a state concern; and (4) whether the nature of the subject matter is such that local regulation will have an adverse effect on the general state population. Mangold, 274 Minn. at 358,143 N.W.2d at 820.

Addressing the first two factors, we hold that the subject matter, the possession and distribution of marijuana, is one that is and has been historically covered by state and federal law. Minn.Stat. § 152.021 (2004), categorically prohibits the distribution and possession of marijuana without any exception for municipal regulation. As for the third factor, this court has stated, in the context of a criminal appeal, that:

The Minnesota legislature has attached criminal penalties to the possession, sale or cultivation of marijuana. Minn.Stat. §§ 152.01, subd. 7, 152.02, subd. 1 (1990), 152.09, subd. 1(1) (1988). The statutory classification of marijuana as a Schedule I substance implies a determination that marijuana has “no currently accepted medical use in the United States.” Minn.Stat. § 152.02, subd. 7(1) (1990). The legislature has enacted a single exception, in the THC Therapeutic Research Act (TRA), exempting from criminal sanctions possession or use of marijuana for cancer patients undergoing chemotherapy_ Minn.Stat. § 152.21, subds. 1, 3, 6 (1990). These statutory provisions demonstrate that the legislature has specifically addressed and determined the possible medical uses of marijuana.

State v. Hanson, 468 N.W.2d 77, 78 (Minn.App.1991), review denied (Minn. June 3, 1991). Review of the current version of Minn.Stat. § 152, indicates that Minnesota’s stance on the regulation of marijuana has not changed significantly since the Hanson decision. See Minn.Stat. §§ 152.021-152.029 (2004). Hanson holds that the legislature has spoken on the question of exempting certain uses of marijuana from the criminal statutes. The legislature has evinced its intent to treat this matter as one of state concern. Finally, addressing the fourth factor, it is clear that allowing inconsistent treatment of marijuana laws between municipalities would make the state’s marijuana laws difficult to enforce fairly.

Accordingly, we conclude that the legislature, by virtue of Minn.Stat. §§ 152.021-152.029 has indicated its intent to occupy the field of marijuana regulation and; thus, preempt municipal action. Forcing an election would be an exercise in futility and a waste of much-needed municipal dollars. See Nordmarken, 641 N.W.2d at 348 (holding that if preemption has occurred, a local law purporting to govern an aspect of the preempted field is void even if the law is not directly in conflict with the state law).

Appellant argues that his preemption problem is alleviated by inclusion of the phrase “to the extent permitted .by State and Federal law” in the proposed amendment. He argues that, while the City Council could not presently pass an ordinance pursuant to the proposed charter amendment, “the City Council may wait until state law permits the distribution of marijuana for medicinal use and then act knowing it has the support of the citizenry.” Accepting appellant’s argument here would result in this court ordering the Minneapolis City Council to hold a special election on an amendment that would have no effect. Such a result is without support in the law. See Hous. & Redevelopment Auth. of Minneapolis v. City of Minneapolis, 293 Minn. 227, 234, 198 N.W.2d 531, 536 (1972) (finding that it was proper for the district court to enjoin an election “rather than permit the administration ánd the voters of the city of Minneapolis to experience the frustration and expense of setting up election machinery and going to the polls in a process which was ultimately destined to be futile”).

B. Significance of the phrase “manifestly unconstitutional” and public policy

The Minnesota Supreme Court has stated that “when a proposed charter amendment is manifestly unconstitutional, the city council may refuse to place the proposal on the ballot.” Minneapolis Term Limits, 535 N.W.2d at 308 (citing Davies v. City of Minneapolis, 316 N.W.2d 498 (Minn.1982)); see also State ex rel. Andrews v. Beach, 155 Minn. 33, 35, 191 N.W. 1012, 1013 (1923) (ordering that a proposed amendment be placed on the ballot but stating, “[w]e do not hold that an amendment to a charter must be submitted, even though it is manifestly unconstitutional”). Appellant asserts that, because the supreme court chose the phrase “manifestly unconstitutional,” a proposed charter amendment may only be kept off the ballot if it-violates a specific provision of the Minnesota or United States Constitution. Appellant also argues that this court must begin with the presumption that his proposed charter amendment is constitutional and thus, it “may not be stricken [from the ballot] unless the challenging party demonstrates that it is in violation of the constitution beyond a reasonable doubt.” Minneapolis Term Limits, 535 N.W.2d at 310 (Stringer, J., dissenting).

Appellant’s argument, which is based on a dissenting opinion, - relies on an overly strict reading of the limits that have historically been imposed on charter amendment proposals by Minnesota courts. Our review- of the few cases dealing with this issue indicates thht appellant’s limitations on the “manifestly unconstitutional” analysis are artificial and misguided. Nordmarken, 641 N.W.2d at 347 (“[d]espite the broad governance authority conferred through a home rule charter, any charter provision that conflicts with state public policy is invalid”); see also Town of Lowell, 252 Minn, at 528, 91 N.W.2d at 83 (stating that the “adoption of any charter provision contrary to the public policy of the state, as disclosed by general laws or its penal code, is ... forbidden”); Andrews, 155 Minn, at 35, 191 N.W. at 1013 (noting that it “is not maintained that the proposed amendments contravene the public policy of the state or any statutory or constitutional requirement” and such a “question is not now before us, and consideration thereof is not necessary to the determination of this appeal”).

It is clear that although courts have often used the phrase “manifestly unconstitutional” in their analysis, this phrase has never been interpreted as barring only those proposed amendments that are proved to be unconstitutional beyond a reasonable doubt. Appellant’s attempt to add an additional element to the term “manifestly” is not persuasive. As the City of Minneapolis pointed out, there are no such gradations in our analysis. Courts have never said that a proposal, being only “somewhat unconstitutional” should be allowed to pass. Such a distinction would be illogical.

Minnesota courts have, over the years, required that charter provisions be not only constitutional, but also in accordance with state public policy. While determining the exact bent of “state public policy” might be difficult in certain instances, it is not so here. Section 152.021 of the Minnesota Statutes categorically prohibits the manufacture, distribution, and/or possession of marijuana, and provides criminal penalties for violation of its prohibition. It seems clear that appellant’s proposed charter amendment is not only preempted by state law, but also that it would be violative of state public policy as disclosed in the Minnesota Penal Code. See Town of Lowell, 252 Minn. at 530, 91 N.W.2d at 84. We understand appellant’s equitable/medical argument but, for now, legislative action is the potential source of the relief he seeks.

2. Federal Law

In addition to finding the proposed amendment violative of Minnesota state law and existing public policy, the district court found that Congress “has comprehensively legislated on the legality of marijuana and addressed the issue of controlled substances through the United States Code such that it has occupied the field of regulation.” Again, the issue of preemption is one of law that this court reviews de novo. See Nordmarken, 641 N.W.2d at 348^49. While this topic need not be reached in light of the analysis above, a short discussion of the federal issues follows.

As in Minnesota, under the federal Controlled Substances Act (CSA), 21 U.S.C. § 801 (2004) et seq., marijuana is designated as a Schedule I controlled substance. Designation as a Schedule I substance under the CSA means that a determination has been made that (1) the substance “has a high potential for abuse,” (2) the substance “has no currently accepted medical use in treatment in the United States,” and (3) there is “a lack of accepted safety for use of the drug or other substance under medical supervision.” Id. at § 812(b)(1). And the CSA makes it illegal to knowingly and intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Id. at § 841(a)(1). Finally, Congress, in the CSA, explicitly stated that “[fjederal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.” Id. at § 801(6).

Appellant relies on the Ninth Circuit’s decision in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir.2003), cert. granted, — U.S. -, 124 S.Ct. 2909, 159 L.Ed.2d 811 (U.S. June 28, 2004), for his assertion that “it is likely that the federal Controlled Substances Act may be found to be unconstitutional as applied in medical marijuana states.” See Raich, 352 F.3d at 1229 (distinguishing “the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes” from drug trafficking, and finding that “[a]s applied to the limited class of activities.presented by this case, the CSA does not regulate commerce or any sort of economic enterprise”). This assertion has some validity, but until the U.S. Supreme Court decides the issue, the federal CSA makes possession of marijuana for any purpose illegal.

In the event that appellant’s proposed charter amendment directing the Minneapolis City Council to “authorize, license, and regulate a reasonable number of medical marijuana distribution centers in the City of Minneapolis” were to pass, it would be, at least for now, in conflict with current federal law and would thus be “without effect.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992).

Appellant again argues that because the proposed amendment includes the phrase “to the extent permitted by State and Federal law,” the amendment could never" be preempted by, nor could it contravene, any existing law and, therefore, must go to the voters. We disagree. Cf. Davies, 316 N.W.2d at 504 (stating that “when a proposed charter amendment appears to be manifestly unconstitutional, the City Council must have the, authority to avoid what would amount to a futile election and a total waste of taxpayers’ money”) and (citing Hous. & Redevelopment Auth., 293 Minn, at 234, 198 N.W.2d at 536). If appellant’s argument were accepted, it would allow any group or person with sufficient resources to comply with the technical requirements of proposing a charter amendment, to force a referendum on any issue simply by appending the phrase-“to the extent permitted by State and Federal law” onto their amendment. That result would be absurd, and would gut the statutes and caselaw surrounding this issue. A parade of personal or “vanity” amendments would overtake the voting process if one “magic bullet” phrase trumped all concern for preemption, constitutionality, public policy, and common sense.

3. Initiative Versus Charter Amendment

Finally, while appellant failed to directly address this. .issue, the district court’s finding that “the proposed charter amendment is an-initiative cloaked as a charter amendment” has merit. As respondent points out, the City of Minneapolis elected not to include initiative powers as part of its home rule charter. Minneapolis residents are not permitted to directly implement legislation by petition. By his actions, appellant is furthering a cause that his elected representatives, so far, have refused to: namely, to lay the groundwork for the use of marijuana for medicinal purposes in Minnesota.

Appellant makes some interesting legal arguments and has spent considerable resources in furthering this cause, but we see appellant’s proposed charter amendment as an attempt to circumvent Minneapolis’ bar on legislation by initiative.

DECISION

Appellant’s, proposed charter amendment would be deemed preempted by Minnesota and federal laws. We conclude that appellant’s proposed amendment is “manifestly unconstitutional” as that phrase has been defined by Minnesota courts. Accordingly; we affirm the district court’s denial of injunctive relief.

Affirmed.

      . Our review of the minutes of the City Council indicates that the district court’s finding that the City Council rejected this ballot measure by a vote of 13-0 is erroneous.

      . We note for the record that the United States Attorney's letter, submitted by respondent in this matter, played no part in our analysis of the federal preemption issue. We are not bound in any fashion by the political gamesmanship in Congress over marijuana laws.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Jean Pierre WRIGHT, Appellant.
    No. A04-2243.
    Court of Appeals of Minnesota.
    June 28, 2005.
    Mike Hatch, Attorney General, St. Paul, MN; and Earl E. Maus, Cass County Attorney, Walker, MN, for appellant.
    Larry Kimball, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge; TOUSSAINT, Chief Judge; and HUSPENI, Judge.

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

   OPINION

RANDALL, Judge.

Respondent, Jean Pierre Wright, pleaded guilty to first-degree driving while impaired (DWI) and gross-misdemeanor driving after cancellation as inimical to public safety. The district court then stayed adjudication of respondent’s conviction. The state appealed 27 business days after the district court’s decision in reliance on Minn. R.Crim. P. 28.05, subd. 1(1), which allows the state to appeal felony sentences within 90 days of the sentencing order. A special term panel of this court questioned jurisdiction, but deferred ruling on the issue. At special term, respondent argued that the state’s appeal was not timely, claiming the state had only 5 days, not 90, to file its appeal.

The state argues that Minn.Stat. § 169A.276, subd. 1(b) (2002) prohibits the district court from staying adjudication in felony DWI cases. The state also argues that no special circumstances exist warranting a stay of adjudication, and neither the probation officer’s recommendation nor the impact of a conviction on respondent’s employment are sufficient to support a stay of adjudication.

First, the state’s appeal is from a sentence. Thus, this court has jurisdiction to decide this case on its merits. We conclude the district court erred by staying adjudication of respondent’s conviction on these facts. We reverse and remand for resentencing.

FACTS

On September 7, 2004, respondent pleaded guilty to first-degree DWI and gross-misdemeanor driving after cancellation as inimical to public safety. This was respondent’s fourth alcohol-related driving offense.

Respondent appeared before the district court on October 18, 2004, for sentencing. At the hearing, respondent argued that he was turning his life around and had found success working as a slots manager at the Northern Lights Casino. Respondent argued that he would lose his job if he was convicted of a felony and, thus, he requested that the court stay adjudication of his conviction. The PSI recommended that the court stay adjudication.

The state, while sympathizing with respondent’s plight, opposed a stay of adjudication and, instead, recommended a stay of execution. In support of its argument, the state noted that this was respondent’s fourth alcohol-related driving offense, that respondent had been convicted of burglary in 1996, and certain evidence indicated that respondent would lose his job as slots manager even if the court stayed adjudication.

The district court followed the recommendation of the PSI and stayed adjudication of respondent’s conviction. While the court did not make lengthy findings regarding its decision, it did state that respondent “will probably get his job back” as a result of the stay of adjudication. The court then ordered respondent to abide by the terms of the stay of adjudication for seven years (no further arrests, abstaining from alcohol, and attending counseling); serve six months in the Cass County Jail; undergo 30 days of home monitoring with an alco-sensor; and pay $1,625 in fines. The state’s appeal followed.

ISSUE

Does this court have jurisdiction over the state’s appeal, despite the state’s failure to file within five days as required by Minn. R.Crim. P. 28.04, subd. 2(1) (governing procedure for appeal of pretrial orders)?

ANALYSIS

I. Appealability

The state filed its appeal from the district court’s stay of adjudication on November 24, 2004, 27 business days after entry of the district court’s order. On December 22, 2004, a special-term panel of this court questioned jurisdiction over the state’s appeal based on the language of State v. Thoma, 569 N.W.2d 205, 208 (Minn.App.1997), aff'd, mem., 571 N.W.2d 773 (Minn.1997) (classifying stays of adjudication as pretrial orders for purposes of appeal). Compare Minn. R.Crim. P. 28.04, subd. 2 (allowing for appeal from a pretrial order within 5 days of notification of the decision) (emphasis added), with Minn. R.Crim. P. 28.05, subd. 1(1) (allowing the prosecutor to appeal from an imposed or stayed felony sentence within 90 days of entry of an order) (emphasis added). The special term panel deferred the jurisdictional question to this panel. Before reaching the merits of the state’s argument, we need to determine whether this appeal should be classified as an appeal from a pretrial order or an appeal from a sentence.

In State v. Thoma, this court consolidated five appeals where the state was contesting stays of adjudication on misdemeanor charges. 569 N.W.2d at 206-07. The Thoma court held that a district court’s stay of adjudication in a non-felony case was appealable by the state as a “pretrial order” under Minn. R.Crim. P. 28.04, subd. 1(1). Id. at 206-07. The Tho-ma court noted that the supreme court had previously granted further review of a pair of non-felony stays of adjudication: State v. Cash, 558 N.W.2d 735 (Minn.1997), and State v. Foss, 556 N.W.2d 540 (Minn.1996). Id. at 208. None of these cases dealt with the precise issue that we face here: i.e., whether the state’s appeal of a felony stay of adjudication, where the defendant was ordered to serve jail time, should be treated as an appeal from a sentence or a pretrial order.

As the state points out in its brief to the special term panel, there is precedent for its argument that stays of adjudication in felony proceedings are appealable as sentences rather than pre-trial orders. See State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn.1996); State v. Lattimer, 624 N.W.2d 284, 286-87 (Minn.App.2001), review denied (Minn. May 14, 2001). In Krotzer, which was treated in all respects as an appeal from a felony sentence, the supreme court addressed the state’s argument that a stay of adjudication from a conviction for criminal sexual conduct in the third degree was an abuse of discretion. 548 N.W.2d at 254-55. Then, in Lattimer, the district court stayed adjudication of a charge of criminal vehicular operation resulting in great bodily harm, a felony. 624 N.W.2d at 290. The state appealed and argued its appeal as an appeal from a sentence. Id. The Lattimer court held:

Logic dictates that whether a district court (1) executes a sentence and incarcerates a person, (2) stays execution or imposition of a sentence coupled with terms of probation that may include incarceration up to 12 months, or (3) stays adjudication of guilt but imposes a sentence consisting of terms of probation that may include incarceration up to 12 months, that each disposition is a sentence.

Id. at 286. The'court went on to point out that “[bjecause Krotzer is crystal clear that incarceration is allowed upon a stay of adjudication, the stay of adjudication is a sentence.” Id. at 286-87.

The state also points to this court’s decision in State v. Angotti 688 N.W.2d 554, 556 (Minn.App.2001). In Angotti, this court was faced with a stay of adjudication of a felony charge where the district court had ordered five years of probation and no jail time. Id. at 555. The Angotti court relied on the logic of Lattimer in advancing the proposition that, because district courts have the power to “impose terms and conditions of probation, including incarceration for up to 12 months” when staying adjudication, a stay of adjudication must then be a sentencing function. Id. at 556. The Angotti court explicitly stated that “[t]he stay of adjudication, as applied in this case, is a sentencing function of the district court.” Id.

Respondent, in support of his argument that the state’s appeal is untimely, relies on State v. Verschelde, 595 N.W.2d 192, 196 (Minn.1999). Respondent argues, based on the supreme court’s statement that “a stay of adjudication is considered a pretrial order for purposes of appeal,” that a stay of adjudication of any conviction, felony or misdemeanor, must be classified as a pretrial order for purposes of appeal. Id. (citing Thoma, 569 N.W.2d at 207-08). The supreme court’s statement in Ver-schelde is distinguishable. In Verschelde, the supreme court addressed the issue of whether it should create a broad rule establishing a defendant’s right to appeal following a stay of adjudication entered pursuant to section 152.18, subd. 1 (1998). Id. at 196. We note first, and importantly, that the defendant in Verschelde consented to the stay of adjudication in accordance with the requirements of section 152.18, and the supreme court held that “[w]hen a defendant consents to a stay of adjudication, he waives his right to an appeal.” Id. Here, there was no correlative waiver and there was no MinmStat. § 152.18. The court in Verschelde was faced with a criminal defendant who consented to a stay of adjudication, but later decided to appeal. Id. at 192-93. He was, in essence, attempting to have his cake and eat it too.

Here, the district court stayed adjudication of respondent’s conviction over the state’s objection. The state did believe respondent had effected some meaningful change in his behavior and would have gone along with a stay of execution. But it is crystal clear that the state did not consent to the court’s stay of adjudication. The state’s position here is not at all similar to the defendant’s position in Ver-schelde.

The district court stayed adjudication of a felony conviction and imposed extensive conditions of probation on respondent, including ordering that respondent abide by the terms -of the stay for seven years (no further arrests,, abstaining from alcohol, and attending counseling); serve six months in the Cass County Jail; undergo 30 days of home monitoring with an alco-sensor; and pay $1,650 in fines. We find the reasoning of Krotzer, Lattimer, and Angotti to be persuasive.

The language of Minn.Stat. § 169A.276 (2002) supports our conclusion that the state is appealing a sentence rather than a pretrial order. Section 169A.276 sets forth a minimum mandatory sentence of three years in prison for first-degree DWI convictions in Minnesota. Subdivision 1(b) states that district courts “may stay execution of this mandatory sentence ... but may not stay imposition or adjudication of the sentence or impose a sentence that has a duration of less than three years.” Minn.Stat. § 169A.276, subd. 1(b). As stated above, respondent pleaded guilty to first-degree DWI and driving as inimical to public safety. A finding by this court that the state is appealing a “pretrial order” would circumvent the intent of the legislature to bar stays of adjudication in first-degree felony DWI cases.

We conclude the state’s appeal is from a sentence rather than a pretrial order; the state’s appeal is timely; and we will address the merits.

II. Sentence

The state argues that the circumstances of this case and the record do not support a stay of adjudication. First, it is clear the district court’s decision to stay adjudication is within the court’s “inherent judicial power” when the decision is supported by “special circumstances.” Krotzer, 548 N.W.2d at 254-55. A clear-abuse-of-discretion standard applies to appellate review of stays of adjudication. Angotti, 633 N.W.2d at 556.

Here, the district court stayed adjudication based on the fact that respondent would lose his job as a slots manager if a felony conviction were entered. We can understand the district court’s motive, but it is not at all clear that the potential loss of employment is sufficient, by itself, to support a stay of adjudication on a felony. See State v. Twiss, 570 N.W.2d 487, 487 (Minn.1997) (holding that possibility of loss of employment due to gross misdemeanor conviction was not a “special circumstance” supporting stay of adjudication).

Importantly, the record indicates that respondent’s employer considered his stay of adjudication to be the equivalent of a conviction until respondent satisfied the seven years of his probation. The record contains evidence of the employer’s intention to terminate respondent regardless of what the sentence was called. The record does not support the conclusion that the district court’s attempt to save respondent’s job was successful.

This was respondent’s fourth alcohol-related driving offense. Thus, respondent was charged with first-degree DWI under MinmStat. § 169A.24, subd. 1(1) (2002). As stated above, the Minnesota Legislature has attempted to prohibit district courts from staying adjudication in first-degree DWI cases. Minn.Stat. § 169A.276, subd. 1(b). We do not rest our decision on that statute. The constitutionality of a statute attempting to limit the inherent sentencing powers of the judiciary was not raised, briefed, or argued on a “separation-of-powers” basis. Thus, we do not address that issue. It is enough to note that the legislature has indicated a clear intent to bar stays of adjudication on felony DWI convictions. Since any statute stands until successfully challenged, that legislative expression, at the very least, heightens the threshold for facts and circumstances justifying a stay of adjudication on this new statute, meaning, Minnesota’s first felony DWI statute.

We conclude the district court erred when it stayed adjudication of respondent’s sentence for felony DWI on these facts. We reverse and remand for resen-tencing.

DECISION

The state appealed a stay of adjudication on a felony charge where part of the district court’s sentence included jail time as a condition of the stay. The state’s appeal is from a sentence. Accordingly, pursuant to Minn. R.Crim. P. 28.05, subd. 1(1), the state had ninety (90) days to file its appeal, and this court accepts jurisdiction.

The district court erred by staying adjudication of respondent’s conviction on these facts.

Reversed and remanded.

      . We note that the issue of jurisdiction was not discussed in either decision.

      . Respondent, in apparent reliance on his jurisdictional argument to the special term panel, did not submit a brief challenging the merits of the state’s appeal.

      . The language of section 152.18, which addresses deferral of prosecution for certain first-time drug offenders, has not changed since the supreme court issued its decision in Verschelde.


author: HUDSON, Judge.

text:
    John MIERNICKI, et al., Appellants, v. DULUTH CURLING CLUB, et al., Respondents.
    No. A04-1741.
    Court of Appeals of Minnesota.
    July 5, 2005.
    Robert E. Mathias, Mathias Law Firm, Duluth, MN, for appellants.
    Diane B. Bratvold, Marcia K. Miller, Paula Vraa, Rider Bennett, LLP, Minneapolis, MN, for respondents.
    Considered and decided by HUDSON, Presiding Judge; STONEBURNER, Judge; and DIETZEN, Judge.
   OPINION

HUDSON, Judge.

The complaint in this dram-shop action against respondents was filed without the knowledge of appellants, the plaintiffs, by an attorney whom they had not retained. Respondents moved for summary judgment on the ground that the statute of limitations had expired before appellants ratified the attorney’s action in filing the complaint. The motion was denied, and the matter proceeded to trial. A jury awarded appellants collectively $20,000. Appellants challenge the award, and respondents challenge the denial of summary judgment. We do not address the merits of appellants’ appeal because we conclude that the district court erred as a matter of law in denying summary judgment for respondents. We reverse the judgment awarded to appellants, and we reverse the denial of summary judgment to respondents.

FACTS

Lynn Miernieki, 67, spent the evening of December 21, 2000, drinking at respondent Duluth Curling Club (DCC). In the early morning of December 22, with an alcohol concentration of 0.30, he fell down a flight of stairs and sustained a brain injury. He can no longer communicate or perform basic functions; he lives in a nursing home.

Sometime after the accident, Miernicki’s brother, Mike Miernieki, retained an attorney. On December 20, 2002, two days before the statute of limitations expired, the attorney filed a complaint in a dram-shop action against DCC in the names of appellants, MiernicM’s three adult children. They had not retained the attorney and were not aware that the complaint was being filed.

In October 2003, DCC served a motion for summary judgment on the ground that appellants had not complied with Minn. Stat. § 340A.802 (2002), requiring them to give notice of a potential dram-shop action within 240 days of retaining counsel and to bring the action within two years of an injury. In November 2003, before the hearing on the summary-judgment motion, each appellant executed an affidavit. Mier-nicki’s son, appellant John Miernieki, said, “I was not aware that I was a party to a liquor liability lawsuit until after suit had been filed in my name.... I have never signed a formal retainer Agreement [of the attorney who filed the action].... ” Mier-nicki’s daughters, appellants Julie Hienricy and Mary Raimo, each said, “I was told by my uncle, Mike Miernieki, that a lawsuit had been started sometime after the case had been started.... I have not yet signed a written retainer agreement....” All three appellants said they ratified their uncle’s hiring of the attorney.

DCC’s summary-judgment motion was denied. On appeal, DCC filed a notice of review of that denial.

ISSUE

Does filing a complaint without the plaintiffs knowledge toll a statute of limitations?

ANALYSIS

“This court reviews de novo the district court’s decision on summary judgment based on the application of a statute.” Davies v. West Pub. Co., 622 N.W.2d 836, 841 (Minn.App.2001) (addressing the denial of summary judgment on a statute of limitations issue).

The purpose of a statute of limitations is “to prescribe a period within which a right may be enforced and after which a remedy is unavailable for reasons of private justice and public policy.” Entzion v. Ill. Farmers Ins. Co., 675 N.W.2d 925, 928 (Minn.App.2004). The statute of limitations for dram-shop actions is set forth in Minn.Stat. § 340A.802, subd. 2 (2004): “No [dram-shop] action may be maintained ... unless commenced within two years after the injury.” The dram-shop act is to be strictly construed. Bushland v. Corner Pocket Billiard Lounge, 462 N.W.2d 615, 616 (Minn.App.1990).

The record shows that appellants did not retain an attorney, plan to bring an action, or know that an action had been brought until after December 22, 2002, when the statute of limitations expired. They argue that their subsequent ratification of their uncle’s retention of the attorney who brought the action in their name tolls the statute of limitations. Minnesota has no caselaw on point. But the Restatement (Second) of Agency § 90 (1958) provides that, “If an act to be effective in creating a right against another or to deprive him of a right must be performed before a specific time, an affirmance is not effective against the other unless made before such time.” Here, to be effective in creating a right against DCC, an action had to be filed before December 22, 2002. Appellants’ “affirmance,” or ratification of the filing of that action, was not made before December 22, 2002, and is therefore not effective against DCC. See Fed. Election Comm’n v. NRA Political Victory Fund, 513 U.S. 88, 90, 115 S.Ct. 537, 539, 130 L.Ed.2d 439 (1994) (concluding that “the effort of the Solicitor General to authorize the FEC’s petition [for certiorari] after the time for filing it had expired did not breathe life into it”); Nasewaupee v. Sturgeon Bay, 77 Wis.2d 110, 251 N.W.2d 845, 848-49 (1977) (holding that the town board’s ratification of a private attorney’s unauthorized commencement of a lawsuit when ratification came after the statute of limitations had run was a nullity), cited in Fed. Election Comm’n, 513 U.S. at 98-99, 115 S.Ct. at 543. The attorney in Nase-waupee acted in good faith: he had been contacted by the chairman of the town board concerning the situation but had not been authorized to commence a lawsuit. Nasewaupee, 251 N.W.2d at 847. Analogously, the attorney retained by Mike Miernicki may have been acting in good faith when he filed a complaint in appellants’ names. But good faith does not defeat a statute of limitations. See, e.g., Kemp v. Allis-Chalmers Corp., 390 N.W.2d 848, 851 (Minn.App.1986) (stating that “a good-faith belief that there was a four-year statute of limitations period” and the contention that this would be more appropriate than the two-year statute that actually pertained could be addressed only in the legislature).

DECISION

Because appellants’ ratification of the action filed in their name occurred after the statute of limitations had expired, the filing was ineffective against DCC. We reverse the judgment awarded to appellants and the denial of summary judgment to respondents. Respondents are entitled to summary judgment.

Reversed.

      . In their affidavits, appellant Julie Hienricy said she was incorrectly identified in the action as Julie Miernieki and appellant Mary Raimo said she was incorrectly identified as Mary Ravio.

      . We also note that, even if the attorney had a good-faith belief as to appellants’ willingness to bring this lawsuit, bringing it without their knowledge and without having been retained by them is counter to the scope of representation set out in Minn. R. Prof. Conduct. 1.2.


author: DIETZEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Andre ROBINSON, Appellant.
    No. A04-840.
    Court of Appeals of Minnesota.
    July 19, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; STONEBURNER, Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

In this third-degree assault case, appellant challenges a victim’s out-of-court statements admitted by the district court, the validity of the district court’s jury instructions, and the imposition of a double upward departure from the presumptive guidelines sentence. We conclude that the out-of-court statements were admissible as non-hearsay or, in the alternative, as exceptions to the hearsay rule. We also conclude that the district court’s jury instructions were adequate. But because the double upward departure from the presumptive sentence violates the rule of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), we affirm in part, reverse in part, and remand for resentencing.

FACTS

In the early morning of April 12, 2003, appellant Andre Robinson, the father of two children with Fountaine Thompson, arrived at Thompson’s townhouse. After opening the door for Robinson, Thompson became angry because she thought Robinson had been with another woman. The two argued, and Thompson ultimately received a “blow-out” fracture in the orbit of her eye. There are two explanations for the cause of the fracture. First, according to the testimony of the attending nurse.at the hospital, Thompson stated that Robinson slapped her with an open hand to her face. This statement was replicated on a physical-assessment questionnaire completed by the nurse at the emergency room. The questionnaire also indicated that Robinson had grabbed Thompson before but had not hurt her.

Second, about a month after the incident, Thompson met with the prosecuting attorney and said that her injury • was caused by accident; at trial, she admitted that she told the nurse that Robinson hit her but testified she did so because , she was angry and wanted to get Robinson in trouble. According to this version of events, Thompson went into the bathroom to stop the argument with Robinson. After some time, Thompson peered out of the door to see if Robinson was in the hallway. At that moment, Robinson pushed the bathroom door and struck Thompson in the eye.

In May 2003, the state charged Robinson with third-degree assault and interference with an emergency call. At a pretrial hearing, Robinson objected to the admission of Thompson’s statements to the nurse implicating him in the assault. The state argued that the statements should be- considered as non-hearsay because they were statements of identification, or, in the alternative, the statements were admissible subject to the medical diagnosis or catchall exceptions to the hearsay rule. The district court found that the statements were not statements of identification or admissible under the catchall exception, but admitted the statements pursuant to the medical diagnosis exception.

After a jury trial, Robinson was convicted of third-degree assault. In February 2004, the district court sentenced Robinson to 48 months in prison, a double upward departure from the ‘presumptive sentence of 24 months. See Minn. Sent. Guidelines IV-V. The district court stayed the prison sentence for five years and placed Robinson on probation. This appeal followed.

ISSUES

I. Are Thompson’s statements admissible as non-hearsay or as exceptions to the hearsay rule?

II. Did the district court abuse its discretion by failing to instruct the jury on the definition of intent? ■

III. Does Robinson’s sentence violate the Sixth Amendment right to a jury.trial under the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)?

ANALYSIS

I.

A. Hearsay

A district court exercises discretion when it makes evidentiary rulings, and those rulings will not be reversed absent an abuse of that discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” Id.

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Minn. R. Evid. 801(c). Hearsay is generally not admissible at trial. Minn. R. Evid. 802. An out-of-court statement offered to prove the truth of the matter asserted is admissible, however, if it is covered by an exception to the hearsay rule or if it is exempted from the definition of hearsay. See Minn. R. Evid. 803 (providing exceptions when declarant’s availability is immaterial); Minn. R. Evid. 804 (providing exceptions when declarant is unavailable); Minn. R. Evid. 801(d) (listing statements that are not hearsay). Generally, hearsay evidence is admissible if it is reliable and trustworthy such that cross-examination would be unnecessary. See Minn. R. Evid. 803(24) (allowing hearsay if statement has “equivalent circumstantial guarantees of trustworthiness”); Minn. R. Evid. 102 (noting that purpose of rules of evidence is to ascertain truth).

B. Medical Diagnosis or Treatment Hearsay Exception

The district court admitted Thompson’s statements pursuant to the medical diagnosis or treatment exception to the hearsay rule. The exception admits hearsay “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Minn. R. Evid. 803(4). Robinson argues that the district court erroneously admitted Thompson’s statements under this exception because the statements identified Robinson as the abuser and were not relevant to Thompson’s diagnosis or treatment for the “blow-out” fracture. We agree.

Historically, caselaw has concluded that statements concerning the cause of an injury are inadmissible under the medical diagnosis or treatment exception:

Care should ... be exercised in distinguishing between statements made to a physician relating to conditions and symptoms of the injury or ailment for which treatment is sought and statements made to the physician as to the cause of the injury or the circumstances concerning the manner in which the accident occurred. Such statements are inadmissible.

Peterson v. Richfield Plaza, Inc., 252 Minn. 215, 228, 89 N.W.2d 712, 721-22 (1958); see also United States v. Beaulieu, 194 F.3d 918, 921 (8th Cir.1999) (“[A] de-clarant’s statements relating the identity of the individual allegedly responsible for [her] injuries or condition would seldom, if ever, be reasonably pertinent to treatment or diagnosis.”) (quotation omitted); State v. Bellotti 383 N.W.2d 308, 312 (Minn.App. 1986) (“[Statements regarding who caused injuries generally are not admissible because they are irrelevant to medical diagnosis and treatment.”), review denied (Minn. Apr. 24,1986), abrogated in part on other grounds by State v. Larson, 453 N.W.2d 42 (Minn.1990), cert. granted, vacated on other grounds by Larson v. Minnesota, 498 U.S. 801, 111 S.Ct. 29, 112 L.Ed.2d 7 (1990), aff'd on reh’g, State v. Larson, 472 N.W.2d 120 (Minn.1991).

Courts have created an exception to this principle for child-abuse cases, on the theory that the child’s “statement identifying the abuser ... is pertinent to treatment.” Larson, 453 N.W.2d at 47. The state argues that State v. Richards, 552 N.W.2d 197 (Minn.1996), is dispositive of the issue because the case extended rule 803(4) to apply to domestic-abuse cases. We disagree. In Richards, an out-of-court statement was made by a murder victim, who told a medical counselor that she was afraid of the defendant because he beat her. Id. at 209. The supreme court did not announce the extension of the medical diagnosis or treatment exception to domestic-abuse cases but only concluded that the district court had a “solid legal basis” for admitting the statement under rule 803(4). Id. We conclude that Richards is distinguishable because Thompson’s statements identifying her assailant were not “made for purposes of medical diagnosis or treatment” of the “blow-out” fracture to her eye. See Minn. R. Evid. 803(4).

Here, the district court observed that a domestic-abuse victim is equivalent to a child-abuse victim, so medical treatment is based on identifying the source of the injury in order to prevent further domestic abuse. But there is not a child-abuse victim in this case and Richards is unavailing because its holding is distinguishable. We conclude that the prohibitions of Peterson and Bellotti apply to these facts. Thompson’s statements to the' nurse identifying Robinson .as the abuser were not reasonably pertinent to her medical diagnosis or treatment. Thompson’s statements clearly fit within the category of statements made regarding the cause or manner in which the injury occurred. Accordingly, Thompson’s statements as to the cause of her injury are inadmissible under rule 803(4), the medical diagnosis and treatment hearsay exception.

C. Prior Statement s of Identification

The state next argues that Thompson’s statements are not hearsay under the identification exemption contained in Minn. R. Evid. 801(d)(1)(C). A statement under this provision is not hearsay if the declar-ant testifies at trial, is subject to cross-examination, and the statement is “one of identification of a person made after perceiving the person, if the court is satisfied that the circumstances of the prior identification demonstrate the reliability of the prior identification.” Id. This provision is similar to federal rule 801(d)(1)(C), but Minnesota’s rule further requires that a court must be satisfied as to the reliability of the prior identification before it may be admitted into evidence. Minn. R. Evid. 801(d)(1)(C).

Many of the state and federal cases on this rule are in the context of pre-trial identifications, such as a photographic lineup. See, e.g., United States v. Owens, 484 U.S. 554, 562-63, 108 S.Ct. 838, 844, 98 L.Ed.2d 951 (1988) (“To judge from the House and Senate Reports, Rule 801(d)(1)(C) was in part directed to the very problem here at issue: a memory loss that makes it impossible for the witness to provide an in-court identification or testify about details of the events underlying an earlier identification.”); United States v. Elemy, 656 F.2d 507, 508 (9th Cir.1981) (“The reasons for admitting identification statements as substantive evidence are that out-of-court identifications are believed to be more reliable than those made under the suggestive conditions prevailing at trial, and the availability of the declar-ant for cross-examination eliminates the major danger of hearsay testimony.”); State v. Henderson, 620 N.W.2d 688, 698-99 (Minn.2001) (holding rule 801(d)(1)(C) inapplicable to- witness’s “drive-by” identification used as substitute for line-up because identification procedure was unreliable).

Robinson argues that rule 801(d)(1)(C) is strictly limited to line-ups and photographic identifications. But the language of the rule does not provide such limits. Committee comments to the rule provide some guidance by referring to the rule’s rationale as stemming “from the belief that if the original identification procedures were conducted fairly, the. prior identification would tend to be more probative than an identification at trial.” Minn. R. Evid. 801 1989 comm. cmt. Here, we have an emergency-room procedure that requires a patient or hospital employee to complete a physical-assessment questionnaire. One of the purposes of the questionnaire is to provide a domestic-abuse assessment; the questionnaire contains a boilerplate question that asks patients “[h]ave you ever been hit, kicked, pushed or otherwise hurt or mistreated by someone important to you?” We observe that the questionnaire serves a purpose similar to a photographic identification, in that patients, under a uniform procedure, are requested to identify assailants who have mistreated them. There is nothing in the record suggesting that Thompson’s statements of identification were not made pursuant to fairly conducted procedures.

The state further argues that State v. Hogetvedt, 623 N.W.2d 909 (Minn.App.2001), review denied (Minn. May 29, 2001), is similar factually. In Hogetvedt, an assault victim originally told police 'officers, medical personnel, and her children that defendant was the ássailant. Id. at 912. At trial, although the victim did not deny making the earlier statements, she claimed that defendant did not assault her. Id. This court determined that the original statements were non-hearsay identifications under rule -801(d)(1)(C). Id. at 913 (“In this case, [the victim’s] statements to her daughter and to [the police officer] identified appellant as her assailant and described the event soon after the assault occurred. These statements are not hearsay.”).

Because this court reversed the district court on the ground of prejudicial police testimony, id. at 916, Robinson argues that the Hogetvedt language is dictum. But federal cases also support the state’s argument. In Elemy, the Ninth Circuit observed that the non-hearsay identification rule applies to “the instance where before trial the witness identifies the defendant and then because of fear refuses to acknowledge his previous identification.” 656 F.2d at 508. Similar to our case, the court concluded that when a witness recants, the “prior identification can only be introduced into evidence by a third party who was present at the original identification.” Id. The Seventh Circuit has held that where a witness testified at trial that he had previously identified a defendant who had extorted money from him, but recanted the statement in his testimony, the pretrial statement was admissible under federal rule 801(d)(1)(C). United States v. O’Malley, 796 F.2d 891, 899 (7th Cir.1986).

We conclude that the reasoning of Hogetvedt, Elemy, and O’Malley applies to Thompson’s statements. Thompson testified at trial, was subject to cross-examination concerning the statements, and made statements _ of identification after perceiving Robinson, the father of her children. Minn. R. Evid. 801(d)(1)(C) also requires the district court to be satisfied “that the circumstances of the prior identification demonstrate the reliability of the prior identification.” Here, the district court stated at the pretrial hearing that Thompson’s statements contained “certain indicia of trustworthiness.” And the district court observed that Thompson’s statements to the nurse were corroborated by her statements to the police. While the district court did not make' a formal written finding of reliability under rule 801(d)(1)(C), the district court’s reliability observations are on the record, and those conclusions are sufficient for purposes- of appellate review.

The reliability of an identification should be analyzed in light of the facts and circumstances that exist at the time an identification is made and should not be colored by later events. See Minn. R. Evid. 801 1989 comm. cmt. (stating that a prior identification is more probative than an identification at trial, if procedures surrounding initial identification were conducted fairly); cf. Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3189, 3148, 111 L.Ed.2d 638 (1990) (holding that trustworthiness of statement admitted pursuant to catchall exception must be shown only from circumstances surrounding the making of the statement). Based on the record, the district court properly concluded that the identification had adequate indicia of trustworthiness. The identification was orally made on the morning of the incident to an attending nurse in the emergency room as well as on a physical-assessment questionnaire. The nurse testified that the appearance of Thompson’s injury was consistent with her statements and that she was experiencing intense pain. There is nothing in the record to indicate that at the time her statements were given in the emergency room they were not reliable. Consequently, we conclude that Thompson’s statements were admissible under rule 801(d)(1)(C), the non-hearsay identification provision.

D. Catchall Hearsay Exception

The state also argues that Thompson’s statements are admissible under State v. Ortlepp, 363 N.W.2d 39 (Minn.1985). Because the Ortlepp decision was based on Minn. R. Evid. 803(24), the hearsay catchall exception, id. at 40, we review the rule to determine whether the statements are admissible on that basis. Rule 803(24) admits statements

not specifically covered by any of the foregoing [hearsay] exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

“For hearsay to qualify under this provision, it must be established that there is some need for the evidence and that the evidence has guarantees of trustworthiness equivalent to the specific exceptions set out in Minn. R. Evid. 803.” Kronebusch v. MVBA Harvestore Sys., 488 N.W.2d 490, 495 (Minn.App.1992), review denied (Minn. Oct. 20,1992).

We conclude that Thompson’s statements are admissible under rule 803(24). First, the statements were offered as evidence of a material fact, namely, that Robinson assaulted Thompson. Second, the statements are more probative than any other evidence that the state could marshal because Thompson was the only witness to the incident. Third, because we have already stated that the district court rightly concluded that the statements contain indicia of trustworthiness, admission of the statements serves the interests of justice. Finally, because Thompson’s statements were the subject of a pretrial hearing, Robinson received sufficient notice of the state’s intention to offer the statements into evidence. See Minn. R. Evid. 803(24) (requiring sufficient notice to adverse party before evidence may be admitted).

We have recently concluded that Ortlepp is the applicable standard for evaluating a district court’s decision to admit hearsay evidence under the catchall exception. State v. Plantin, 682 N.W.2d 653, 658 (Minn.App.2004), review denied (Minn. Sept. 29, 2004); see also Oliver v. State, 502 N.W.2d 775, 778 (Minn.1993) (applying Ortlepp to catchall exception analysis). Although it is not apparent whether the Ortlepp standard is in addition to a rule 803(24) analysis, we conclude that the statements meet the requirements of both tests.

In Ortlepp, the supreme court established a four-part test for admitting hearsay statements under rule 803(24). 363 N.W.2d at 44. First, the declarant must be available for cross-examination regarding the statement. Id. Second, there can be no dispute as to whether the declar-ant actually made the statement. Id. Third, the statement must be sufficiently reliable; for example, the fact that a statement is against a declarant’s penal interest increases its reliability. Id. Alternatively, if a declarant makes a statement contrary to another interest, such as a statement hostile to the prosecution, reliability may be enhanced. See State v. Whiteside, 400 N.W.2d 140, 146 (Minn.App.1987) (admitting out-of-court statement of defendant’s girlfriend incriminating defendant, although girlfriend was uncooperative at trial), review denied (Minn. Mar. 18, 1987). Fourth, the statement must be consistent with all other evidence that the state introduced. Ortlepp, 363 N.W.2d at 44.

Here, the district court concluded that the statements did not fit the catchall exception. After examining the Ortlepp test, we disagree with the district court’s analysis. First, Thompson testified at trial and was available for cross-examination regarding her statements. Second, Thompson admitted making the statements to the nurse in her testimony. Third, although her statements were not against her penal interest, they were against her relationship interest with Robinson. In this aspect, Thompson’s statements are similar to statements ruled admissible by this court in Whiteside. See 400 N.W.2d at 146 (admitting out-of-court statements of defendant’s girlfriend under catchall exception incriminating defendant in criminal sexual conduct). Finally, the statements were consistent with all other evidence the state introduced at trial, which included testimony from the attending nurse and police reports that recorded statements Thompson made implicating Robinson. We therefore conclude that Thompson’s statements were also admissible under rule 803(24), the catchall exception to the hearsay rule.

In the end, although we disagree with the reasoning the district court used in admitting Thompson’s out-of-court statements, we affirm the conviction because the statements are admissible on other grounds. Cf. Katz v. Katz, 408 N.W.2d 835, 839 (Minn.1987) (“[W]e will not reverse a correct decision simply because it is based on incorrect reasons.”).

II.

Jury Instructions

Robinson next argues that the district court erred by failing to instruct the jury on the definition of intent. District courts are afforded “considerable latitude” in the selection of language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). Because Robinson did not object to the jury instructions at trial, we determine whether the instructions constituted plain error. Under a plain-error analysis, Robinson must show: (1) error; (2) that was plain; and (3) that affected substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). If those three prongs are met, we may correct the error only if it seriously affects the fairness or integrity of the judicial proceedings. Id.

Robinson was charged with assault in the third degree. MinmStat. § 609.223, subd. 1 (2002) (“Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.”). The district court gave the following instructions to the jury:

The elements of the offense are these. First, that the defendant assaulted Fountaine Thomas. Assault means to commit an act with the intent to cause fear of immediate bodily harm or death or intentionally inflict or attempt to inflict bodily harm.
Second, the defendant inflicted substantial bodily harm on Fountaine Thompson. Substantial bodily harm means bodily harm that involves a temporary but substantial disfigurement; causes a temporary but substantial loss or impairment of the function of any bodily member or organ; or causes a fracture of any bodily member.
It’s not necessary for the State to prove that the defendant intended to inflict substantial bodily harm but only that the defendant intended to commit the assault.
Third, the defendant’s act took place on or about April 12, 2003 in Hennepin County.
If you find that each of these elements has been proved beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proved beyond a reasonable doubt, defendant is not guilty.

This instruction is virtually identical to Minnesota’s standard jury instruction. See 10 Minnesota Practice, CRIMJIG 13.16 (1990).

Robinson argues that intent is an essential element of assault, so the district court should have included the definition for intent codified in state law. See MinmStat. § 609.02, subd. 9(3)-(4) (2002) (defining intent as defendant having purpose to cause result or belief that act, if successful, will cause result). We disagree. The district court followed the standard jury instructions, which adequately explain the elements of third-degree assault. See Peterson v. State, 282 N.W.2d 878, 881 (Minn. 1979) (“[D]etailed definitions of the elements to the crime need not be given in the jury instructions if the instructions do not mislead the jury or allow it to speculate over the meaning of the elements.”).

There is no indication in the record that the jury was misled or speculated over the issue of intent. And the district court’s jury instructions did not seriously affect the fairness and integrity of the proceeding. We conclude that the district court’s jury instructions did not constitute plain error.

III.

Robinson’s Sentence

Robinson argues that his sentence, which includes a double upward departure, violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Robinson’s appeal of his sentence under the Minnesota Sentencing Guidelines presents a constitutional issue, which we review de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998).

In Blakely, the Supreme Court applied the rule from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Blakely, 542 U.S. at-, 124 S.Ct. at 2536. That rule states that besides the fact of a prior conviction, a judge is proscribed from finding additional facts — facts not admitted by the defendant nor submitted to the jury— to impose a sentence above the statutory maximum. Id. at 2537. Minnesota courts have concluded that Blakely applies to upward durational sentencing departures under the guidelines. See State v. Shattuck, 689 N.W.2d 785, 786 (Minn.2004) (per curiam); State v. Saue, 688 N.W.2d 337, 341 & n. 1 (Minn.App.2004), review granted (Minn. Jan. 20, 2005); State v. Conger, 687 N.W.2d 639, 644 (Minn.App.2004), review granted (Minn. Dec. 22, 2004). Because Robinson’s appeal was pending at the time Blakely was released, he is entitled to the application of Blakely. See O’Meara v. State, 679 N.W.2d 334, 339-10 (Minn.2004).

The district court sentenced Robinson to 48 months in prison, a double upward departure from the presumptive sentence of 24 months for a defendant convicted of third-degree assault with, a criminal-history score of four. See Minn. Sent. Guidelines IV. The district court based the double upward departure on a number of factors — such as. Robinson’s history of violence, the presence of two children during the assault, Thompson’s vulnerability, the utility of a longer prison sentence for punishment purposes, and the belief that Robinson was a dangerous person — that were not admitted by Robinson and were not submitted to the jury. Therefore, Robinson’s sentence violates the rule of law enunciated in Blakely. See 542 U.S. at-, 124 S.Ct. at 2536.

The state argues that Blakely does not apply to a sentence imposed under the state guidelines because the guidelines should be construed as advisory, not mandatory. As support, the state cites the United States Supreme Court’s recent decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Court released a two-part opinion that concluded that Blakely applied to the federal sentencing guidelines. Id. at 755. The Court first observed that the federal guidelines “are mandatory and binding on all judges.” Id. at 750. In the second half of the opinion, the Court crafted a remedy that rendered the federal guidelines “effectively advisory.” Id. at 757.

The state argues that Minnesota’s sentencing guidelines should also be construed as advisory, which would eliminate the Blakely problem with Robinson’s sentence. But recent caselaw has made it clear that Minnesota’s guidelines are mandatory. See Shattuck, 689 N.W.2d at 786 (“[I]mposition of the presumptive sentence is mandatory absent additional judicial findings under the legislatively-created Guidelines regime....”); Saue, 688 N.W.2d at 343 (“[T]he presumptive sentence is not merely a suggestion, but a sentence that must be imposed unless the procedures for departure are followed.”).

Because the supreme court has concluded that the Minnesota sentencing guidelines are mandatory, Booker does not apply to this case. The decision to render Minnesota’s guidelines advisory rests with the supreme court or the legislature, not with this court. Cf. Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987) (observing that task of extending existing law should fall to supreme court or legislature, not court of appeals), review denied (Minn. Dec. 18,1987).

The state next argues that even if the guidelines are mandatory, the proper remedy is to remand for a new sentencing hearing and not to automatically impose the presumptive sentence. The state cites State v. Hagen, 690 N.W.2d 155, 160 (Minn.App.2004), for this proposition. But in Hagen, after we held that Blakely applied to a defendant’s sentence, we merely mentioned that the impaneling of a new jury was a possible remedy. Id. (“But the appropriate remedy, including the possible impaneling of a jury to determine the sentencing issues, has not been fully litigated here and must be determined m the first instance by the district court.”).

The state also argues that because sentencing is a judicial function, this court has the discretion to remand for a new sentence before a jury empaneled for the specific purpose of sentencing. See State v. Misquadace, 644 N.W.2d 65, 68 (Minn.2002) (“[T]he imposition of a sentence in a particular case ... is a judicial function.”). In that regard, the supreme court in Shat-tuck directed the parties to submit supplemental briefs on the question of, assuming the state sentencing guidelines are unconstitutional per Blakely, whether the court “has the inherent authority to authorize the use of sentencing juries and a bifurcated trial process.” Shattuck, 689 N.W.2d at 786. Consequently;, we decline to address this issue. We therefore conclude that Blakely is applicable to Robinson’s sentence and remand for proceedings not inconsistent with this opinion.

DECISION

The district court properly admitted Thompson’s statements into evidence and instructed the jury on third-degree assault. We therefore affirm the conviction of third-degree assault. Because the district court’s imposition of a 48-month prison sentence on Robinson violates the rule enunciated in Blakely, we reverse and remand for resentencing.

Affirmed in part, reversed in part, and remanded.

      . The district court subsequently dismissed the charge of interference with an emergency call.

      . The United States Supreme Court recently held that testimonial hearsay statements are only admissible under the Sixth Amendment's Confrontation Clause if the declarant is unavailable for trial and if the criminal defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). Here, Crawford is not applicable because Thompson was available for trial and was cross-examined by Robinson's counsel.

      . The Supreme Court’s decision in Wright examined Idaho’s catchall exception to the hearsay rule, but we have stated a preference for analyzing this issue under the Ortlepp framework, because the Wright decision featured an unavailable declarant, which raised a confrontation clause issue. See Plantin, 682 N.W.2d at 658 n. 1 (observing that case involving available declarant is similar to Oliver, 502 N.W.2d at 777, which applied the Ortlepp test).

      . The supreme court granted review in Saue and Conger but stayed additional processing of those matters pending a final decision in Shattuck.


author: PER CURIAM.

text:
      2005 ND 119
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST William P. VELA, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. William P. Vela, Respondent.
    No. 20050173.
    Supreme Court of North Dakota.
    June 24, 2005.
   SUSPENSION ORDERED.

PER CURIAM.

[1Í1] William P. Vela (“Vela”) was admitted to practice as an attorney in North Dakota on December 9, 1983, and his name has appeared on the roll of attorneys since that time. According to the records of the State Board of Law Examiners, Vela has not paid his 2005 license fee and, therefore, he is not currently licensed to practice law in this state. Vela admitted service of a Summons and Petition for Discipline on February 24, 2005.

[¶ 2] Vela did not file an answer to the Petition for Discipline. On April 6, 2005, Disciplinary Counsel filed a Motion for Default Findings and Recommendation. The matter was submitted to the Hearing Panel on the Motion for Default Findings and Recommendation. Yela sent a handwritten letter to the Disciplinary Board on May 2, 2005, objecting to the recommended suspension. The Hearing Panel concluded the letter was insufficient to prevent the entry of judgment, and under N.D.R. Lawyer Discipl. 3.1(E)(2), the charges are deemed admitted because Vela failed to timely file an appropriate answer. On May 18, 2005, the Hearing Panel filed its Findings of Fact, Conclusions of Law and Recommendation under N.D.R. Lawyer Discipl. 3.1(F)(2).

[¶ 3] Vela represented Dorje Lama (“Dorje”) in an immigration matter relating to Dorje’s request for asylum as a result of his political activity in Tibet. Vela told Dorje to get proof of his political activities, have the documents translated into English and certified. Dorje also told Vela the Nepalese passport he used to enter the United States was fraudulent, and he only used the name Dorje, having added “Lama” because he needed two names to travel.

[¶ 4] On May 14, 2001, Vela represented Dorje at a removal hearing. At the hearing, Vela told the immigration judge Dorje was not present in the United States on a valid passport from Nepal, although Dorje claimed his visa was valid. The immigration judge told Vela she found Dorje to be “removable” and it was up to Vela to make a prima facie showing why Dorje was not subject to removal to Nepal. The immigration judge further told Vela to present any documentation of Dorje’s identity five months before the individual hearing on July 2, 2003, to show why Dorje should not be removed to Nepal.

[¶ 5] At the July 2, 2003, hearing, Dor-je told the immigration judge his passport from Nepal was fake. The immigration judge asked Vela what evidence there was that the passport was fake. Vela told the immigration judge he had hired a private investigator to get the information, and another five days was needed to get information from the Nepalese government. The immigration judge told Vela he had to file a motion for continuance if he believed there was any material evidence he needed to submit, and to follow the local rule on continuances.

[¶ 6] The immigration judge proceeded with the hearing on the basis of deporting Dorje to Nepal. Vela requested the immigration judge to consider removal to India; the request was denied. Vela then requested to withdraw from the matter because he could not properly represent his client without consideration of removal to India. Vela’s motion to withdraw was denied. Vela then informed the immigration judge that Dorje Lama was not his client’s actual name, but that his name was simply Dorje — Lama had been added to gain the fake Nepal passport. Dorje was ordered removed to Nepal at the July 2, 2003, hearing.

[¶ 7] Despite being told he would need to prove the Nepal passport was fake, Vela did not obtain the evidence for presentation at the hearing over two years later. Vela asserted the information was developed by a private investigator, but it had not been timely filed fifteen days before the hearing as required by Procedure 3, Timely Filing of Hearing Briefs, Exhibits, and Witness Lists, of the Local Operating Procedures, Immigration Court, San Francisco, California. The immigration judge had also told Vela to file all documents five months before the July 2, 2003, hearing. Vela did not communicate to Dorje, whose English was not good at the time, the need for this information.

[¶ 8] Vela did not reveal Dorje’s application for asylum incorrectly identified him as Dorje Lama, which was not his true name. Vela did not correct the inaccuracy prior to the July 2, 2003, hearing, despite local rule requirements that everything of consequence be filed prior to the hearing.

[¶ 9] Dorje paid Vela $4,700 for representation over the years. The fee was not reasonable in light of Vela’s failure to communicate with his client, to act diligently in his representation, and to follow the local rules of the immigration court.

[¶ 10] The Hearing Panel concluded Vela’s conduct violated N.D.R. Prof. Conduct 1.3, Diligence; 1.4, Communication; 1.5 Fees, 1.16(b), Declining or Terminating Representation; and 3.3, Candor Toward the Tribunal.

(¶ 11] Under N.D. Stds. Imposing Lawyer Sanctions 4.41, disbarment is generally appropriate when: (b) a lawyer knowingly fails to perform services for a client, or (c) engages in a pattern of neglect with respect to client matter, and causes serious or potentially serious injury to a client. Under Standard 4.42, suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client, or (b) engages in a pattern of neglect, and causes injury or potential injury to a client. Under Standard 4.61, disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potential serious injury to a client. Under Standard 4.62, suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.

[¶ 12] The Hearing Panel also considered Standard 9.22(c) a pattern of misconduct; (g) refusal- to acknowledge wrongful nature of conduct; (h) vulnerability of victim; and (i) substantial experience in the practice of law, as aggravating factors.

[¶ 13] The Hearing Panel recommends that Vela be suspended from the practice of law for one year, pay restitution to his client Dorje in the amount of $4,700, and pay the costs and expenses of the disciplinary proceeding in the amount of $465. The Court considered the matter, and

[¶ 14] ORDERED, the Findings of Fact, Conclusions of Law, and Recommendations of the Hearing Panel are accepted, and William P. Vela is suspended from the practice of law for one year effective when, and if, he pays his 2005 license fee or applies for relicensure after January 1, 2006.

[¶ 15] FURTHER ORDERED, William P. Vela pay restitution to his client, Dorje, in the amount of $4,700.

[¶ 16] .FURTHER ORDERED, William P. Vela pay the costs of the disciplinary proceeding in the amount of $465.

[¶ 17] FURTHER ORDERED, William P. Vela comply with N.D.R. Lawyer Discipl. 6.3.

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

[¶ 19] The Honorable Carol Ronning Kapsner was unavoidably absent and did not participate in the decision.


author: KAPSNER, Justice. GERALD W. VANDE WALLE, C.J1 SANDSTROM, Justice,

text:
    2005 ND 129
    Bruce LEE, Plaintiff, Appellant and Cross-Appellee v. Susan LEE, Defendant, Appellee and Cross-Appellant.
    No. 20040184.
    Supreme Court of North Dakota.
    July 13, 2005.

      Loren C. McCray, Bismarck, ND, for plaintiff, appellant and cross-appellee.
    Brenda A. Neubauer,' Neubauer & Oster, Bismarck, ND, for defendant, appellee and cross-appellant.
   KAPSNER, Justice.

[¶ 1] Bruce Lee appeals the district court’s denial of his motion to establish child support. Susan Lee cross-appeals the district court’s denial of her motion to reestablish and increase spousal support. We reverse and remand.

I.

[¶ 2] The parties separated in 2001 following a 21-year marriage, and their divorce judgment was entered in 2002. They had one minor child at the time of' the divorce. The parties signed a stipulation which was incorporated into the divorce judgment. The stipulation provided Bruce Lee would receive primary physical custody of the child and pay a reduced amount of spousal support to Susan Lee in exchange for her not having a child support obligation.

[¶ 3] Bruce Lee filed a motion to establish child support in January 2003, and Susan Lee filed a cross motion in February 2003 for increased spousal support. The district court denied both motions in July 2003, finding child support and spousal support had “become interrelated” and the stipulation indicated child support would not be sought until all spousal support payments had been made. Bruce Lee fulfilled his spousal support obligation of $250 per month for 24 months and then filed a second motion to establish child support. Susan Lee filed a motion to reestablish and increase the amount of the spousal support obligation. The district court denied both motions and awarded Susan Lee $1,500 in attorney fees.

II.

[¶ 4] A trial court’s' decision on a motion to modify child support is a finding of fact reviewed under the clearly erroneous standard. Rueckert v. Rueckert, 499 N.W.2d 863, 868 (N.D.1993). “A finding of fact is clearly erroneous if, although there is some evidence to support it, a reviewing court, on the entire record, is left with a definite and firm conviction that a mistake has been made, or if it was induced by an erroneous view of the law.” Id.

A.

[¶ 5] The stipulated divorce decree states Susan Lee would not have a child support obligation “at this time ... in consideration for a lesser spousal support award.” Bruce Lee argues the language of the stipulation clearly states he did not waive his right to ever receive child support, but only waived the right to receive it at the time of the divorce. Susan Lee argues she agreed to a reduced spousal support award because she understood the stipulation to relieve her of ever having a child support obligation.

[¶ 6] When a divorce stipulation has been incorporated into a judgment, we are concerned with the interpretation and enforcement of the judgment, not the underlying contract. Jorgenson v. Ratajczak, 1999 ND 65, ¶13, 592 N.W.2d 527. Interpretation of a judgment is a question of law, which is fully reviewable. Id. “When a judgment is clarified by the same trial judge who entered it, we "afford the clarification considerable deference.” Karsky v. Kirby, 2004 ND 110, ¶ 8, 680 N.W.2d 257.

[¶ 7] The stipulation was incorporated into the divorce judgment in January 2002. The judge who entered the divorce judgment denied Bruce Lee’s first motion to establish child support in July 2003, finding “[cjhild support and spousal support have become interrelated.” Likewise, a different judge, sitting on this motion, found the parties intended to intertwine the issues of spousal support and child support and rejected the words “at this time” as they related to Susan Lee’s child support obligation.

B.

[¶ 8] “[T]he best interests of the children require child support obligors to provide adequate support and maintenance for their minor children.” Smith v. Smith, 538 N.W.2d 222, 226 (N.D.1995); see generally N.D.C.C. § 14-09-08. For this reason, this Court has said, “parental agreements that prohibit or limit the power of a court to modify future child support are invalid.” Id. This Court encourages settlements in divorce actions, but “take[s] a dim view of agreements purporting to sign away the rights of a child in support settings — not from a contractual background, but from a public policy one.” Id. (citing Rueckert v. Rueckert, 499 N.W.2d 863, 867 (N.D.1993)). Trial courts should not accept parental stipulations regarding child support if the court determines the stipulation is not in the child’s best interests. Rueckert, at 867.

[¶ 9] “There is a rebuttable presumption that the amount of child support that would result from the application of the child support guidelines is the correct amount of child support.” N.D.C.C. § 14-09-09.7(3). This presumption can be rebutted if application of the criteria in N.D. Admin. Code § 75-02-04.1-09 establishes by a preponderance of the evidence the guideline amount is not the correct amount. Smith, 538 N.W.2d at 225. “[Although a parental stipulation for child support is entitled to serious consideration, a trial court has continuing jurisdiction to modify support notwithstanding the. stipulation.” Id. at 226.

[¶ 10] The parties acknowledged their agreement does not establish child support in accordance with the guidelines. Neither party presented evidence the stipulation meets the criteria for rebutting the presumptive support amount under the guidelines. We remand for determination of the correct child support amount based on the guidelines.

C.

[¶ 11] Bruce Lee argues the stipulation is invalid under N.D.C.C. § 14-09-09.32, which states “[a]n agreement purporting to relieve an obligor of any current or future duty of child support is void and may not be enforced.... As used in this section, ‘child support’ does not include spousal support.” Because we are already sending the case back to establish Susan Lee’s child support obligation, we do not need to address the validity of the agreement under this section.

III.

[¶ 12] Spousal support will be modified upon a showing of a material change in circumstances. Wheeler v. Wheeler, 419 N.W.2d 923, 925 (N.D.1988). “ ‘Material change’ means something which substantially affects the financial abilities or needs of a party.” Id. The party seeking modification bears the burden of showing a material change, and the trial court’s determination regarding a material change is reviewed under the clearly erroneous standard. Meyer v. Meyer, 2004 ND 89, ¶ 5, 679 N.W.2d 273. The trial court looks at whether the change was contemplated at the time of divorce when determining whether spousal support should be modified. Id. When a spousal support award was stipulated by the parties the trial court should modify it “with great reluctance.” Id. at ¶ 8.

[¶ 13] The trial court found, “[n]one of the specifically enumerated circumstances have changed in two years.” Following a discussion of Susan Lee’s current financial situation, the trial court stated, “there has been no significant change of circumstances to justify a modification of the spousal support payments that have been stipulated by the parties.”

[¶ 14] This finding is not clearly erroneous under the facts considered by the trial court which did not include future child support. However, because the trial court determined child support and spousal support are interrelated under the terms of the stipulation, and because we are remanding for reconsideration of Susan Lee’s child support obligation which may, under the interpretation of this judgment, constitute a change in circumstances for the interrelated spousal support, the trial court may also reconsider Bruce Lee’s spousal support obligation.

rv.

[¶ 15] “During any time in which an action for separation or divorce is pending, the court, upon application of a party, may issue an order ... for the payment of attorney’s fees.” N.D.C.C. § 14-05-23. This Court has held “N.D.C.C. § 14-05-23 provides the trial court with authority to award attorney fees to a party in modification proceedings.” Pearson v. Pearson, 2000 ND 20, ¶24, 606 N.W.2d 128. A trial court’s award of attorney fees will be reversed if the court abused its discretion. Id. at ¶ 25. “A trial court abuses its discretion when it acts in an arbitrary, unreasonable or unconscionable manner.” Foreng v. Foreng, 509 N.W.2d 38, 41 (N.D.1993).

[¶ 16] One spouse’s need and the other’s ability to pay are the primary factors to look at when determining whether an award of attorney fees was proper. Pearson, 2000 ND 20, ¶25, 606 N.W.2d 128. “The court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the case.” Id.

[¶ 17] Bruce Lee argues the trial court abused its discretion in awarding Susan Lee $1,500 in attorney fees. The trial court found Bruce Lee had gross annual income of $66,000, and his financial situation at the time of trial, including debts, was the result of his personal spending decisions and not circumstances beyond his control. These findings indicate Bruce Lee has the ability to pay attorney fees.

[¶ 18] The trial court found Susan Lee had business debts of $65,000 with annual gross income of $26,000, and her financial situation was more precarious at the time of trial than it had been when the parties divorced two years earlier. Her business was struggling, she had assumed the burden of paying off the business debt, she worked for little or no pay, and she was no longer receiving spousal support. The trial court’s findings indicate Susan Lee had a need for attorney fees.

[¶ 19] We affirm the award of attorney fees.

V.

[¶20] We reverse and remand for a child support award consistent with the guidelines. Because child support and spousal support are interrelated, the district court may reconsider the spousal support award. We affirm the award of attorney fees to Susan Lee.

[¶21] CAROL RONNING KAPSNER and MARY MUEHLEN MARING, JJ., concur.

GERALD W. VANDE WALLE, C.J1

I concur in the result.

SANDSTROM, Justice,

concurring and dissenting.

[¶ 22] I agree with the majority that any claimed waiver of the right to receive child support is contrary to public policy, and I would reverse and remand for the district court to set child support in accordance with the Child Support Guidelines. The majority’s effort to open the door to reestablishing spousal support is contrary to our law. I therefore respectfully dissent from that portion of the majority opinion.

[¶ 23] The parties entered into a stipulation that was incorporated into the divorce judgment. The majority, at ¶2, summarizes the stipulation as follows:

The stipulation provided Bruce Lee would receive primary physical custody of the child and pay a reduced amount of spousal support to Susan Lee in exchange for her not having a child support obligation.

[¶ 24] Although the stipulation did provide that Bruce Lee would have primary physical custody of the child, the remainder of the majority’s characterization, I respectfully suggest, is not a fair summary of the stipulation. The stipulation and judgment actually provide:

[Susan Lee] shall not pay child support at this time under NDAC § 75-02-04.1-09(2)(j), because of a reduced ability to pay support due to her taking over the parties’ business pursuant to this divorce, refinancing said business and her income being speculative, and in consideration for a lesser spousal support award.

The December 2001 stipulation clearly and explicitly is limited to her not paying child support at that time. In addition, the stipulation took into consideration several other factors present at that time, but which are omitted from the majority’s analysis.

[¶ 25] Further, the stipulation and judgment clearly and explicitly contemplate that child support would subsequently be established:

Child support shall continue until the child reaches the age of nineteen (19) or graduates from high school, whichever shall occur first.

[¶ 26] Susan Lee received the full spousal support provided under the stipulation and judgment. Spousal support came to an end. The stipulation and judgment do not provide for spousal support to be reestablished after it has ended, and the district court did not retain jurisdiction to reestablish it. There is no longer a basis for spousal support to be reestablished. Bellefeuille v. Bellefeuille, 2001 ND 192, ¶ 19, 636 N.W.2d 195 (should circumstances warrant, before rehabilitative spousal support ends, a party may apply for further spousal support or for reservation of jurisdiction over the issue).

[¶ 27] The child, entitled to support from both its parents, has not been receiving support from Susan Lee since the divorce. Noncustodial mothers, as well as noncustodial fathers, have a duty to support their children. It is not appropriate for any court to seek to nullify that obligation.

[¶ 28] Dale V. Sandstrom