text:
    STATE of Minnesota, Respondent, v. Kevin TOMLIN, Appellant.
    No. C0-99-920.
    Court of Appeals of Minnesota.
    April 25, 2000.
    Review Granted June 27, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and Shawn B. Reed, Maki & Over-om, Chtd., Duluth, MN (for respondent).
    Kevin J. Short, Minneapolis, MN (for appellant).
    Considered and decided by WILLIS, Presiding Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant Kevin Tomlin appeals from his conviction of obstructing legal process pursuant to Minn.Stat. § 609.50, subd. 1(1) (1996). He argues that the misleading statements he made to the police following a hit-and-run accident involving his friends were not sufficient to support his conviction under the statute. He also argues that the trial court’s jury instruction on obstructing legal process materially misstated the law and that the trial court erred in denying his pretrial motion to dismiss for lack of probable cause. Because Tomlin’s lies and misleading statements to the police did not result in a physical obstruction of the officer’s accident investigation, we conclude they were insufficient as a matter of law to support his conviction under Minn.Stat. § 609.50, subd. 1(1). We, therefore, reverse.

FACTS

On the evening of December 27, 1997, Kevin Tomlin, an off-duty Duluth police officer, and his brother-in-law, James Grussendorf, spent several hours in the Beacon Sports Bar. They were joined by a friend, Scott Soderholm, at approximately 10:00 p.m. Anticipating that he would be drinking some alcoholic beverages, Tomlin prearranged for his wife to pick him up later in the evening. She arrived between 11:00 and 11:30 p.m.

At approximately 1:30 a.m., they all left the bar. The men had consumed 10-12 beers each. Tomlin’s wife had 1 or 2 mixed drinks. Tomlin rode with his wife and Grussendorf and Soderholm followed in their own vehicles. As they were driving west on Hermantown Road, Grussen-dorf crossed the centerline and sped up in an attempt to pass the Tomlins. In so doing, Grussendorf belatedly saw a pedestrian, Lee Kalfsbeek, walking his dog along the road. He swerved back into the westbound lane in front of the Tomlins and then slid into the ditch.

Soderholm, originally traveling third in the line of vehicles, also sped up to pass the Tomlins. Unable to avoid Kalfsbeek and his dog, Soderholm struck them, killing the dog and seriously injuring Kalfs-beek.

A factual dispute exists as to what happened during the next few minutes. Tomlin testified that he ran to the nearest house, which turned out to be Kalfsbeek’s, and asked the victim’s daughter to call 911. When Tomlin returned to the scene of the accident, Grussendorf and Tomlin’s wife had already left. Tomlin tried to administer first aid to Kalfsbeek until emergency medical personnel and police arrived. So-derholm then left the scene before anyone else arrived.

According to Kalfsbeek, he overheard Tomlin and Soderholm having an argumentative conversation. Soderholm testified that Tomlin said, “Get the hell out of here,” or “Leave, I’ll take care of it.”

Tomlin spoke with three police officers that night: Officer Kent Gaidis, Officer Michael Anderson, and Corporal William Ulvi. When questioned by Officer Gaidis, Tomlin misrepresented the color of Soder-holm’s truck and led the officer to believe that no other vehicles were involved. Tomlin claimed not to be able to tell the officer which direction on Highway 2 the vehicle had turned, despite the fact that the intersection was within view of the accident scene.

When Officer Anderson spoke with Tomlin, he asked him for the names of the other drivers, but he could not provide them. Tomlin also inaccurately described the suspect vehicle to Officer Anderson. Tomlin informed Officer Anderson that he had seen the driver of that vehicle. He described the driver (Soderholm) as being in his “pre-30s,” “clothing unknown.” Tomlin described the Grussendorf pickup as being “a truck.” Tomlin also provided Officer Anderson with a handwritten statement containing this information.

Tomlin later spoke with Corporal Ulvi. In response to questioning, Tomlin informed Corporal Ulvi that his wife and he had been at the Beacon Sports Bar. When asked if they had left the Beacon Sports Bar with anyone, Tomlin told Corporal Ulvi, “No.” Corporal Ulvi also asked Tomlin to describe the hit-and-run vehicle. Tomlin described the vehicle as being a “Ford or a Chevrolet” pickup. Tomlin was unable to provide Corporal Ulvi with any license plate numbers. Tomlin stated that he had seen the hit-and-run driver, but did not recognize him. When asked if he thought he would be able to identify the driver if he saw him again, Tomlin told Corporal Ulvi that he thought he would. Tomlin also used a police-department cellular phone to make five calls to the Grus-sendorf residence, where all the drivers were located, approximately one mile from the accident scene.

Tomlin later admitted that after his wife and friends had left the scene, he made a conscious decision not to volunteer the names of his friends to the officers who arrived that night. Approximately 36 hours after the accident, Tomlin voluntarily gave Hermantown police officers a second written statement which 'detailed the events of the accident and identified the drivers. Soon after, Grussendorf and So-derholm admitted them roles in the accident. But due to the passage of time, all blood alcohol evidence was lost.

Tomlin was arraigned for misdemeanor obstruction of legal process in violation of Minn.Stat. § 609.50, subd. 1(1) (1996). Prior to trial, Tomlin submitted a motion to dismiss for lack of probable cause, but it was denied by the trial court.

On April 6, 1999, a jury found Tomlin guilty of obstruction of legal process. Tomlin subsequently filed this appeal.

ISSUES

1. Was there sufficient evidence to sustain the verdict under the obstruction-of-legal-process statute, Minn.Stat. § 609.50, subd. 1(1) (1996), in light of State v. Krawsky and its progeny?

2. Did the trial court err in denying Tomlin’s pretrial motion to dismiss for lack of probable cause?

3. Did the trial court’s instruction to the jury on obstruction of legal process misstate the law?

ANALYSIS

Tomlin contends that the evidence was not sufficient to support the verdict under a “correct application” of the obstruction-of-legal-process statute, Minn.Stat. § 609.50, subd. 1(1) (1996). He argues that his misleading statements to the police do not reach the level of physical interference with the police that is required by the cases interpreting the statute.

Although framed in terms of sufficiency of the evidence, Tomlin’s argument necessarily requires an interpretation of the obstruetion-of-legal-process statute. Statutory interpretation is a question of law which this court reviews de novo. State v. Coauette, 601 N.W.2d 443, 445 (Minn.App.1999), review denied (Minn. Dec. 14,1999).

Minn.Stat. § 609.50, subd. 1(1), states in relevant part.

Whoever intentionally does any of the following may be sentenced as provided in subdivision 2:
(1) obstructs, hinders, or prevents the lawful execution of any legal process, civil or criminal, or apprehension of another on a charge or conviction of a criminal offense.

Id. The Minnesota Supreme Court thoroughly reviewed this statute in State v. Krawsky, 426 N.W.2d 875 (Minn.1988). In that case, the appellant argued that the statute was unconstitutionally overbroad. Id. at 876. The Krawsky court rejected the overbreadth challenge, but construed the statute very narrowly. It held: (1) the statute required the state to prove that the defendant acted intentionally, (2) the statute was “directed solely at physical acts,” and (3) the statute was directed at a particular kind of physical act — physically obstructing or interfering with an officer. Id. at 877. The court stated further, “the statute forbids intentional physical obstruction or interference with a police officer in the performance of his official duties.” Id. The court also indicated that the statute applied to a limited amount of verbal conduct.

The statute may be used to punish “fighting words” or any other words that by themselves have the effect of physically obstructing or interfering with a police officer in the performance of his duties — e.g., the statute may be used to punish a person who runs beside an officer pursing a felon in a public street shouting and cursing at the officer if the shouting and cursing physically obstructs the officer’s pursuit and if the person intends by his conduct to obstruct or interfere with the officer.

Id.

More recently, in State v. Occhino, 572 N.W.2d 316 (Minn.App.1997), review denied (Minn. Jan. 28, 1998), we upheld the use of the obstruction-of-legal-process statute in a cáse involving verbal acts. In Occhino, the defendant repeatedly interrupted a police officer who was answering multiple telephone Unes and responding to radio emergency messages. Id. at 318. In upholding the jury’s verdict, this court stated Occhino’s words had the “effect of physically interfering with [the officer’s] performance of her official duties.” Id. at 321.

In State v. Patch, 594 N.W.2d 537 (Minn.App.1999), this court considered another aspect of the obstructing-legal-process statute. There, the defendant informed an individual for whom the police had an outstanding arrest warrant that officers were coming to arrest her. Id. at 537. The defendant then assisted the individual’s flight by keeping a lookout for the officers and by offering the individual a ride, which was declined. Id. at 538. On appeal, this court overturned the jury verdict, concluding that, as a matter of law, a person does not commit obstruction of legal process by verbal conduct that is not directed at police officers and that does not have the effect of physically obstructing or interfering with the officers’ execution of legal process. Id. at 539-40.

In the instant case, Tomlin’s statements were directed at the officers, and there is sufficient evidence from which the jury could conclude that he intended to hinder the officers’ investigation. At trial, Tomlin testified that he made a conscious decision not to volunteer any information. He also stated he was looking out for his friends and he did not want them to get in trouble.

But in light of the narrow interpretation of the statute provided by Krawsky and its progeny, the issue of whether Tomlin’s misleading representations physically obstructed the officers presents a close case. As Tomlin points out, he was not legally obligated to answer the officers’ questions or to assist them. In contrast to 18 U.S.C. § 1001 (1994), which makes it a crime to “knowingly and willingly” make a false statement in any matter within the jurisdiction of a federal department or agency, there is no Minnesota state-law equivalent.

Moreover, after a careful review of the record, we find no evidence that Tomlin’s lies and misrepresentations to the officers physically obstructed their investigation. Unlike the situation in Occhino or the “fighting words” example in Krawsky, where the officers were physically prevented from performing their duties, Tomlin’s words did not physically interfere with the officers’ ability to complete their investigation of the accident. The officers were able to examine the forensic evidence at the scene and to interview the bartender and Kalfsbeek’s family members. They were also able to search the nearby roads for the suspect vehicle. Thus, although we in no way condone Tomlin’s conduct and find it reprehensible, we are constrained to conclude it does not fall within the parameters of Minn.Stat. § 609.50, subd. 1(1), as interpreted by Krawsky and it progeny. See also State v. Corbin, 343 N.W.2d 874, 875-76 (Minn.App.1984) (stating that “penal statutes must be construed strictly; any reasonable doubt must be interpreted in favor of the defendant”). Our resolution of this issue also makes it unnecessary to reach the jury instruction or probable cause issues presented by Tomlin. See State v. Holmberg, 527 N.W.2d 100, 103 (Minn.App.1995) (stating claim of failure to dismiss for lack of probable cause is irrelevant where defendant has been convicted because standard for sufficiency of evidence to support conviction is much higher than probable cause), review denied (Minn. Mar. 21,1995).

DECISION

Tomlin’s lies and misleading statements to police following the hit-and-run accident involving his friends were insufficient as a matter of law to support the conviction under Minn.Stat. § 609.50, subd. 1(1) (1996), because they did not result in a physical obstruction of the police officers’ accident investigation.

Reversed.

      . The obstructing-legal-process statute was amended in 1989, a year after Krawsky was released. 1989 Minn. Laws ch. 5, § 4. This amendment reorganized the statute into two subdivisions and separated by subclauses different ways of committing the offense. Id. But the language defining the prohibited conduct, "obstructs, hinders or prevents,” is the same in the current statute as it was in the statute construed in Krawsky.


source: Caselaw Access Project

author: DORIS OHLSEN HUSPENI, Judge.

license: Public Domain

text:
    Ruth STENSRUD, et al., Appellants, v. LYON COUNTY DITCH # 7, Respondent.
    No. C1-99-1316.
    Court of Appeals of Minnesota.
    April 25, 2000.
    Review Denied June 27, 2000.

      Steven J. Vatndal, Gislason & Hunter, LLP, Mankato, MN (for appellants).
    Arvid Wendland, Wendland Timmer-man, Blue Earth, MN (for respondent).
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and HUSPENI, Judge.
   OPINION

DORIS OHLSEN HUSPENI, Judge.

A downstream drainage authority challenges the trial court’s denial of a permanent injunction against an improvement to an upstream drainage system’s ditch. The upstream system claims the trial court erred in determining that (1) Minn.Stat. § 103E.401, subd. 2 (1996), required it to apply for an outlet permit from the downstream system and (2) the downstream system’s claim for injunctive relief was not an impermissible collateral attack on the upstream system’s order establishing the improvement. Because the upstream system was not required to apply for an outlet permit from the downstream system, we reverse.

FACTS

This case arises from a dispute between two drainage authorities. Respondent Lyon County Ditch # 7 (CD7) is controlled by the Lyon County Board. CD7 drains land in Lyon County and runs downstream into appellant Yellow Medicine/Lyon County Judicial Ditch # 10 (JD10). JD10 is located in Yellow Medicine County but also extends into Lyon County; it is controlled by the Yellow Medicine/Lyon County Joint Ditch/Judicial Ditch #10 Drainage Authority. The land drained by CD7 comprises less than one-tenth of the total JD10 watershed.

On August 8, 1996, the CD7 drainage authority approved a motion to improve CD7. JD10 believed CD7 had a duty under Minn.Stat. § 103E.401, subd. 2 (1996), to apply for an outlet permit before improving the CD7 ditch. CD7 made the improvement but did not apply for a permit from JD10.

CD7 brought an action in Lyon County for a declaratory judgment to determine whether Minn.Stat. § 103E.401, subd. 2, required CD7 to apply for a permit from JD10 before improving the CD7 ditch. JD10 counterclaimed against CD7 for an injunction to physically restrict the water flow between the ditches to its pre-im-provement level until CD7 applied for a permit.

The trial court issued a temporary injunction restricting the outlet between the ditches, and CD7 appealed, claiming JD10 had no standing to sue. We affirmed the trial court in VanLerberghe v. Joint Judicial Ditch # 10 Drainage Auth., No. C5-98-921, 1999 WL 10258 (Minn.App. Jan.12, 1999).

During the trial, both parties presented evidence regarding whether the improvement to CD7 resulted in any new lands being drained by JD10. This testimony was primarily about Lady Slipper Lake. Appellants argued that at one time the lake overflowed to the south, but that after the improvement it overflowed to the north and into CD7. The trial court was not' persuaded by this evidence, and it found that no new lands were drained by the improvement.

After trial, the court dissolved the temporary injunction and denied JDlO’s claim for permanent injunctive relief, finding: (1) JD10 did not establish irreparable harm, (2) JD10 had unclean hands, and (3) JD10 had an adequate alternative remedy at law. The court also found CD7 was required to apply for a permit under Minn. Stat. § 103E.401, subd. 2.

JD10 challenges all three of the grounds upon which the trial court denied injunc-tive relief. CD7 filed a notice of review challenging (1) whether MinmStat. § 103E.401, subd. 2, required CD7 to apply for a permit from JD10 and (2) whether JDlO’s action for injunctive relief was an impermissible collateral attack on CD7’s order establishing the improvement.

ISSUE

Was CD7 required to apply for an outlet permit under Minn.Stat. § 103E.401, subd. 2 (1996)?

ANALYSIS

We revieiy statutory construction de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990); see also Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984) (holding no deference is required on review of a purely legal issue).

Minn.Stat. § 103E.401, subd. 2 (1996), provides:

After the construction of a drainage project, a public or private drainage system that drains property not assessed for benefits for the established drainage system may not be constructed to use the established drainage system as an outlet without obtaining express authority from the drainage authority having jurisdiction over the drainage system proposed to be used as the outlet. This section is applicable to the construction of a public or private drainage system that outlets water into an established drainage system regardless of the actual physical connection.

Minn.Stat. § 103E.401, subd. 2.

CD7 argues this statute requires an upstream drainage authority to get permission from a downstream drainage authority for ditch construction only when the construction expands the watershed area to include land not previously assessed by the downstream drainage authority. Citing Oltman v. Von Ohlen, CD7 claims no permission was required because the improvement to CD7 did not expand the watershed. See Oltman v. Von Ohlen, 257 N.W.2d 338, 341 (Minn.1977) (holding previous version of statute did not apply to improvement of existing ditch into which no new lands would be drained). We agree.

The relevant drainage code provision in effect at the time of Oltman provided:

After the construction of any county or judicial ditch, no public or private ditch or ditch system, either open or tiled, for the drainage of land not assessed for benefits for such ditch, shall be constructed so as to use the ditch as an outlet without having first secured express authority so to do from the county board[.]

Minn.Stat. § 106.531 (1976).

In Oltman, the appellant argued the statute required respondent to get permission from the county board before using a county ditch as an outlet. 257 N.W.2d at 341. The supreme court held:

[the] statute applies only to construction of a ditch “for the drainage of land not assessed for benefits for such ditch.” Since the petition herein is for the improvement of an existing ditch into which the affected lands have previously been drained, the statute is inapplicable.

Id. (emphasis in original).

JD10 argues that the trial court correctly held that Oltman' did not apply here because the current version of the statute applies to improvements of existing ditches whereas the earlier version did not. But the version of the statute in effect at the time of Oltman, already included “improvement” in the definition of “ditch.” Minn.Stat. § 106.011, subd. 17 (1976). Moreover, a close examination of the statute and of Oltman demonstrates that the critical factor is whether the construction at issue, be it an improvement to an existing ditch or an entirely new ditch, will expand the existing watershed.

Our interpretation is supported by the legislative history of Minn.Stat. § 103E.401, subd. 2, which shows that no substantive changes have been made to these provisions of the drainage code since Oltman. 1985 Minn. Laws ch. 172, § 132 (stating changes made in recodifying drainage law as chapter 106A were intended to clarify and reorganize, not alter meaning); 1987 Minn. Laws ch. 239, §§ 7, 8 (clarifying language in Minn.Stat. § 106A.005); 1990 Minn. Laws ch. 391, art. 10, § 1 (stating changes made in recodify-ing drainage law shall not be construed as substantive); see also In re Petition for Establishment of County Ditch No. 11, 511 N.W.2d 54, 56 (Minn.App.1994) (tracing history of various recodifications of drainage statute since 1984 and noting recodifi-cations did not alter substance of law), review denied (Minn.1994).

In this case, the trial court noted there was some risk that the improvement to CD7 would increase the burden on JD10 by draining the pre-existing CD7 watershed more efficiently. But the statute does not require a permit in that situation. It requires a permit only when the construction “drains property not assessed for benefits for the established drainage system.” Minn.Stat. § 103E.401, subd. 2.

In its findings, the trial court observed that it was unable to determine the potential flooding impact of the improvement. More importantly, the trial court stated:

This court is satisfied from all of the evidence before it that while the improvement drains existing lands in the CD 7 watershed faster and more efficiently, * * * the improvement does not drain any new land.

(Emphasis in original.)

The record supports the trial court’s determination that the improvement does not drain any new land. Both sides presented testimony on this issue, but the trial court resolved the issue in respondent’s favor. We defer to the trial court’s determinations of witness credibility. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988). Having determined that the improvement does not drain any new land, the court was without authority to require that CD7 seek an outlet permit from JD10.

In view of our determination that Minn.Stat. § 103E.401, subd. 2, does not require that an outlet permit be sought in this case, we need not reach the allegation by JD10 that denial of the injunctive relief it sought was error. Nor need we address the allegation by CD7 that the action of JD10 in seeking injunctive relief was an impermissible attack on CD7’s order establishing the improvement.

DECISION

Because the improvement of an upstream system did not drain any new lands, CD7 is not required to seek an outlet permit from JC10 under Minn.Stat. § 103E.401, subd. 2 (1996).

Reversed.

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

      . The claim of Ruth Stensrud, an owner of land benefited by CD7, was dismissed by the trial court at the end of the trial in this case. That dismissal is not challenged in this appeal.


author: SCHUMACHER, Judge.

text:
    Arnold P. VOSSEN, Appellant, v. Kenneth R. PARKER, Respondent, Jerry R. Nesser, et al., Defendants.
    No. C6-99-1666.
    Court of Appeals of Minnesota.
    April 25, 2000.

      Donald H. Walser, Kraft, Walser, Hettig Honsey, PLLP, Hutchinson, MN (for appellant).
    Raymond R. Waechter, Willmar, MN (for respondent).
    Considered and decided by PETERSON, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

SCHUMACHER, Judge.

Appellant Arnold P. Vossen executed a mortgage and promissory note in favor of respondent Kenneth R. Parker. More than 15 years later, Parker began foreclosure proceedings. Vossen sued, claiming that the statute of limitations barred the foreclosure. The district court enjoined the foreclosure proceedings. Vossen sought partial summary judgment; the court denied, the motion. After a jury trial, the court granted judgment for Parker and dissolved the injunction. After amended findings and an amended judgment, Vossen appealed. We reverse.

FACTS

The parties have stipulated to the following relevant facts through an agreed statement of facts pursuant to Minn. R. CivApp. P. 110.04:

On January 22, 1982, Vossen and his spouse executed a mortgage on their homestead in favor of Parker. The mortgage did not recite the maturity date. It did, however, refer to a promissory note date “of even date herewith due and payable, as per the terms of said Note.” The promissory note, executed the same day, provided that payment was due in 12 months.

On October 7, 1997, Parker began foreclosure proceedings. Parker thus began foreclosure proceedings more than 15 years after the date of the mortgage. Parker did, however, begin foreclosure proceedings within 15 years of the maturity date shown on the promissory note.

ISSUE

Did the court err by deciding that the statute of limitations found in Minn.Stat. § 541.03 did not bar the foreclosure?

ANALYSIS

On an appeal from summary judgment, we ask whether there are any genuine issues of material fact in dispute and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We review de novo the district court’s interpretation of the law. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990).

Minnesota’s statute of limitations for mortgage foreclosures, Minn.Stat. § 541.03, provides as follows:

Subdivision 1. Limitation. No action or proceeding to foreclose a real estate mortgage, whether by action or advertisement or otherwise, shall be maintained unless commenced within 15 years from the maturity of the whole of the debt secured by the mortgage[.] ⅜ * *
Subd. 2. When time begins to run; commencement of proceedings. The time within which any such action or proceeding may be commenced shall begin to run from the date of such mortgage, unless the time of the maturity of the debt or obligation secured by such mortgage shall be clearly stated in such mortgage. * ⅜ ⅜

Minn.Stat. § 541.03 (1998). Vossen contends that because, as the parties stipulated, the mortgage does not recite the maturity date, the statute of limitations runs from the date of the mortgage. Parker contends that the limitation period runs from the maturity date because “the terms of the Promissory Note were incorporated into the Mortgage by reference.”

The statute provides that the limitation period runs from the date of the mortgage unless the maturity date is “clearly stated in such mortgage.” Id. As the parties agree, the maturity date cannot be found “in” the mortgage, much less clearly stated there. The maturity date can only be found “in” the promissory note. The Minnesota Supreme Court has observed that “[t]he decisions of this court clearly establish that a mortgage and a note are separate and independent contracts, different in their nature and purpose.” Lundberg v. Northwestern Nat’l Bank, 299 Minn. 46, 48, 216 N.W.2d 121, 123 (1974). Given that Minnesota law recognizes the distinctness of the two documents, it is difficult to understand how the recitation of a maturity date in the promissory note can satisfy the requirement that the date be “clearly stated in [the] mortgage.”

The statute contains no language allowing the maturity date to be incorporated into the mortgage through another document. Parker’s theory that the mortgage incorporated the terms of the promissory note thus can be countenanced only by “adding words to the statute, something which this court is prohibited from doing.” Ullom v. Independent Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994). “We cannot supply what the legislature ‘purposely omits or inadvertently overlooks.’ ” Renstrom v. Independent Sch. Dist. No. 261, 390 N.W.2d 25, 27 (Minn.App.1986) (quoting Wallace v. Commissioner of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971)).

When the words in a statute are clear and unambiguous, a court must give effect to the plain meaning of the language. Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986). Section 541.03 plainly provides that the statute of limitations for a foreclosure action begins on the date of the mortgage unless the maturity date is “clearly stated in such mortgage.” The maturity date is not stated at all in Vossen’s'mortgage. As a result, the 15-year statute of limitations applies, and because more than 15 years elapsed before Parker began foreclosure proceedings, the foreclosure is time-barred.

The purpose of the statute also supports this interpretation. Although there is little Minnesota caselaw interpreting the statute, other states with similar statutes have explained that the purpose of such statutes is to improve the marketability of title by eliminating possible ancient clouds on title and preventing stale claims. See, e.g., Ramiller v. Ramiller, 236 Iowa 323, 330, 18 N.W.2d 622, 625-26 (1945) (“The statute in question was evidently designed to make the record show to all whether or not any given mortgage was valid and enforcible.”) (quotation and citation omitted).

In this case, the mortgage was recorded, but no evidence in the record indicates that the promissory note was recorded. As a result, had a prospective purchaser sought to determine in 1997 whether the recorded mortgage on the Vossen homestead was more than 15 years past its maturity date, the purchaser would not have been able to do so because the promissory note was not in the public record. That is exactly the type of cloud on title that the legislature intended to prevent when enacting section 541.03 (and its predecessor statutes). In contrast, interpreting the statute as we do allows any person inspecting public records to determine without doubt the viability of an old mortgage. Cf. Miller v. Snedeker, 257 Minn. 204, 215 n. 4, 101 N.W.2d 213, 222 n. 4 (1960) (“Minnesota Standards for Title Examinations, No. 25, provides: ‘An examiner may disregard an unsatisfied mortgage of record, when 15 years have elapsed since its maturity,’ referring to § 541.03.”).

The district court relied upon, and Parker argues, the fact that this action is between the original parties to the mortgage and promissory note, who all had access to and actual notice of the maturity date stated on the note. Under these circumstances, the district court said, it would be unjust to allow Vossen to take advantage of the statute of limitations. But the purpose of the statute is to prevent clouds on title by requiring that the enforceability of a mortgage be ascertainable from the mortgage itself. Actual notice is thus legally irrelevant: the statute requires the mortgagee to put the world on constructive notice by including in the mortgage itself the information necessary to evaluate its longevity. Cf. Driessen-Rieke v. Steckman, 409 N.W.2d 50, 52 (Minn.App.1987) (applying section 541.03 to bar enforceability of mortgage between original parties). Parker failed to do that, and the statute thus requires that the limitation period run from the date of the mortgage.

DECISION

Because the plain language of section 541.03 bars the enforceability of this mortgage, the district court erred in denying Vossen’s motion for partial summary judgment.

Reversed.


author: RANDALL, Judge DORIS OHLSEN HUSPENI, Judge

text:
    STATE of Minnesota, Respondent, v. Leonard Arthur OLSON, Appellant.
    No. C3-99-1558.
    Court of Appeals of Minnesota.
    May 2, 2000.

      Jerry Strauss, Strauss & Associates, Minneapolis, for appellant.
    Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, St. Paul, Jeffrey R. Edblad, Isanti County Attorney, Cambridge, for respondent.
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, 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

This is an appeal from an order denying postconviction relief. Appellant argues that double jeopardy barred his retrial after the district court declared a mistrial in his first case. In that trial, the district court denied appellant’s substitute counsel’s motion for a continuance. The denial of that motion had the effect of forcing appellant to proceed pro se at trial. After jeopardy attached, the district court reconsidered its earlier denial of a continuance and now decided that a mistrial should be declared as a method of giving appellant a continuance.

Appellant argues that the district court erred in finding that he, acting pro se, impliedly consented to the district court’s declaration of a mistrial. Appellant argues he never waived his right to the defense of double jeopardy. Appellant also argues that his first attorney rendered ineffective assistance of counsel. That issue is moot because appellant’s first attorney was discharged long before he went to trial. We conclude that double jeopardy protects appellant from having to go through a second trial. We reverse.

FACTS

On December 12, 1996, appellant Leonard Arthur Olson was charged by complaint filed in Isanti County District Court with second-degree criminal sexual conduct and gross-misdemeanor criminal sexual conduct in the fifth-degree. The complaint alleged that on the evening of December 10, 1996, Olson molested six-year old N.P. by placing his arm around her and touching her genital area.

At his first appearance on December 18, 1996, Olson was represented by attorney Gerald Paulson. Following a number of pre-trial proceedings, the matter was set for trial on August 4, 1997. At the state’s request, the trial was continued until September 2, 1997, and the matter was then set for trial on November 3, 1997. The matter was continued again and eventually set for trial on January 5,1998.

By letter dated December 31, 1997, Paulson informed the district court that Olson had discharged him. On January 5, 1998, Olson appeared without counsel and stated that he recently fired Paulson. The district court appointed the district public defender, Arden Fritz, to represent Olson. After Fritz and Olson had the chance to speak, Fritz informed the court that Olson declined public defender representation. Fritz then stated that it was inappropriate for the public defender’s office to represent Olson absent a finding that Olson was eligible for public defender services. The district court stated that Olson did not want to represent himself, but told him, “since [you] discharged private counsel and declined to be represented by the Public Defender’s office as primary, that really leaves you with representing yourself.” The court then appointed Fritz as standby counsel and continued the matter to the next day so Olson could procure his file from Paulson.

The next day, Olson appeared, accompanied by attorney Jerry Strauss. Strauss appeared to argue a motion for a continuance and agreed to represent Olson if the motion was granted. Strauss argued for a minimum 30-day continuance, given the complexity and seriousness of the case. He stated that he was confident Olson did not fire Paulson as a delay tactic. He further stated that in light of the fee Olson was able to secure for his representation, Olson was serious about defending his ease.

The district court stated that it did not like to grant continuances where defendants fired their lawyers on the eve of trial. It noted that in the previous two months an apparent trend was developing where defendants would fire their attorneys on the eve of trial so they could obtain a continuance. The district court perceived this as a ploy “by people who don’t want to go to trial.” The court noted that it was concerned about calendaring issues and stated that “any disadvantage that [Olson] is suffering is his own doing.” The court continued, stating that it “must adhere to management standards that don’t grant continuances unless they’re absolutely necessary. There is no showing of necessity.” Strauss responded, stating that “to take [a] trial courtroom management schedule, before constitutional rights is ⅜ * * grievous err [sic].” On the record, the district court denied Strauss’s motion for a continuance. Strauss then declined to represent Olson because he was totally unprepared for an immediate trial.

Olson was then given the chance to be heard. He stated that Paulson advised him that the longer the case continued, the better it was for the defense. Not knowing better, Olson took Paulson at his word. The court concluded by commenting, “I think by delaying the right of the people of this State to a timely trial, I would be doing the wrong thing. So I’m not going to do it.” Then the trial started. After a 15-minute recess, Olson attempted to conduct voir dire with the assistance of the prosecutor. The jury was then impaneled and sworn.

On the morning of January 9, the district court convened the jury with the intent of beginning the taking of evidence. Outside the presence of the jury, the court briefly recited the procedural history of the case and noted that Olson was “involuntarily representing himself’ and that Olson never affirmatively stated that he wanted to represent himself. The court acknowledged it was forcing Olson to represent himself, stating, “the circumstances are that I’ve basically ordered [Olson] out to trial after he discharged his Lawyer that he had for a one year period.” When asked by the court if he was competent to represent himself, Olson stated that he was not. Olson repeated his contention that he did not want the previous continuances and that he was simply following Paulson’s advice. Olson questioned how he himself, or Fritz, or any other attorney, could adequately present a defense without being granted a continuance and time to prepare.

Fritz put on the record that he objected to the court’s decision to appoint the public defender’s officer to represent Olson or act as standby counsel. He noted that Olson never completed a public defender application form and that by statute, the public defender’s office cannot represent a defendant unless the individual meets the indi-gency standards set forth by statute. He also stated that he was “strictly incompetent” to represent Olson because he had no time to review the file and was completely unfamiliar with the facts of the case. He asked permission to withdraw as standby counsel.

The district court denied Fritz’s motion and adjourned to reconsider its decision compelling Olson to proceed pro se and to reconsider the necessity of a continuance. Approximately an hour later, the district court granted a 30-day continuance. The court acknowledged, “This is not an election to represent oneself, this is an imposition of self-representation * * The court was concerned that any conviction obtained would be reversed and that “bad law would be made,” limiting a district court’s ability to manage its trial calendar.

The prosecutor stated that double jeopardy was now an issue because the jury had been impaneled and sworn. He quickly moved the district court for a mistrial. The court agreed and declared a mistrial. The court attributed the mistrial to Olson’s “dilatory behavior” and not to the state’s conduct. Neither Olson nor Fritz was given the opportunity to object to the prosecutor’s request for a mistrial. The matter was set for a new trial on March 2, 1998.

Shortly before this trial, Olson moved the district court to dismiss the case, arguing that because jeopardy had attached at the previous trial, which was declared a mistrial by the court without his consent, the principle of double jeopardy barred a retrial. After a motion hearing, the district court denied Olson’s motion, ruling Olson was “minimally prejudiced by a retrial.” Olson filed an appeal with this court, seeking review of the district court’s order denying his motion. The appeal was dismissed by this court because it was not taken from a final judgment.

On March 10, 1998, Olson stipulated to the state’s case pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The district court (a different judge) found Olson guilty. On June 18, 1998, Olson was sentenced, and the judgment of conviction was entered. Olson received a stayed 21-month term of imprisonment and was placed on probation for up to 25 years.

On November 5, 1998, Olson filed a second appeal, arguing the issue of double jeopardy. On March 26, 1999, this court dismissed the appeal as untimely. On April 30, 1999, Olson filed a petition for postconviction relief, alleging that his right against double jeopardy had been violated and that he had received ineffective assistance of counsel. Following a hearing, the postconviction court denied Olson’s petition on August 30, 1999. This appeal followed.

ISSUES

1. Whether the claims raised in appellant’s petition for postconviction relief are procedurally barred.

2. Whether double jeopardy attached and barred a retrial of appellant.

3. Whether appellant received ineffective assistance of counsel in his first trial.

ANALYSIS

I. Appealability

Review of a postconviction proceeding is limited to determining “whether there is sufficient evidence to support the postconviction court’s findings, and a post-conviction court’s decision will not be disturbed absent an abuse of discretion.” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995) (citation omitted).

The state argues Olson’s petition for postconviction relief is procedurally barred because the issue of double jeopardy was raised in Olson’s direct appeal. We disagree.

Generally, where a direct appeal has been taken, the matters raised therein and all matters known, but not raised at that time, will not be considered in a subsequent petition for postconviction relief “unless the claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided.” Roby v. State, 531 N.W.2d 482, 484 (Minn.1995) (quotation omitted). In limited situations, however, if fairness so requires, and if the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal, a reviewing court will consider a claim contained in a petition for postconviction relief, even if the claim was known at the time of direct appeal or its legal basis may have been reasonably available. Id.

In Rairdon v. State, 557 N.W.2d 318 (Minn.1996), the petitioner filed a direct appeal, but then stipulated to its dismissal. Id. at 322. The court held that it would not extend the general rule that issues raised in or known at the time of direct appeal may not be considered in a later postconviction proceeding to a petitioner “who merely files a direct appeal, but whose claims do not receive actual appellate review.” Id. The court noted its decision was based on its “commitment to convicted defendants’ rights to substantive review.” Id. (citation omitted).

To adopt the state’s argument would deny Olson of his right to at least one substantive review of his conviction. Although Olson did file a direct appeal, the issues presented were never reviewed or addressed on the merits. The matter was dismissed on procedural and not substantive grounds. Because the issues presented in Olson’s petition for postconviction relief were never actually reviewed in his direct appeal, he is not precluded from raising them in a petition for postconviction relief.

II. Double Jeopardy

Olson argues that the double jeopardy clauses of the Minnesota and United States Constitutions barred a second trial because judicial misconduct forced the mistrial and the mistrial was granted without his consent.

An individual may not be put twice in jeopardy for the same offense. U.S. Const, amend. V; Minn. Const, art. I, § 7. Generally, jeopardy attaches once a jury is impaneled and sworn. State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974). “[T]he prohibition against double jeopardy is not to protect the individual against the peril of a second punishment, but to protect him against a second trial for the same offense.” Id. (citations omitted). In cases where a mistrial has been declared, “ ‘the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether- [the] Double Jeopardy [Clause] bars retrial.’ ” State v. Long, 562 N.W.2d 292, 296 (Minn.1997) (quoting Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973)).

The necessity of a mistrial is committed to the discretion of the district court. McDonald, 298 Minn. at 454, 215 N.W.2d at 610. The district court is in the best position to evaluate whether “for compelling reasons, ‘the ends of substantial justice cannot be attained without discontinuing the trial.’ ” Long, 562 N.W.2d at 296 (quoting Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961)). The court’s discretion should be exercised with caution and to serve the ends of public justice. Id.

If the defendant requests the mistrial, double jeopardy does not bar a second trial unless governmental misconduct provoked the mistrial request. State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985). If jeopardy has attached and the mistrial is declared without defendant’s consent, the test is “whether in the context of the trial the declaration was dictated by manifest necessity or the ends of public justice.” State v. Gwara, 311 Minn. 106, 108-09, 247 N.W.2d 417, 419 (Minn.1976) (citations omitted).

The state argues that by failing to object to the state’s motion, Olson impliedly consented to the mistrial. While we agree that a defendant need not expressly consent to a mistrial, and consent may be implied from the totality of the circumstances, the failure to object to a mistrial may not, standing alone, constitute consent. State v. White, 369 N.W.2d 301, 304 (Minn.App.1985), review denied (Minn. Aug. 20, 1985). It is simply a factor to be considered. Id. Contrary to the state’s implication, Olson was not given the opportunity to object to the mistrial or to confer with his standby counsel on this issue. Immediately after the prosecutor’s request for a mistrial, the district court stated, “Well, I agree that I should declare a mistrial, and will do so. * * * So a mistrial is declared and it’s at the instance of the Defendant and his conduct.” Olson, at this point appearing pro se, was not even given the opportunity to object. He was not given the opportunity to confer with standby counsel. The record shows no attempt by the district court or the prosecutor to insure that appellant had the time or the opportunity to confer with standby counsel Fritz, and the record is devoid of any inference that Fritz, as appellant’s standby counsel, even impliedly consented to the mistrial. The record shows only that public defender Fritz straightforwardly, and with professional decorum, stood his ground and pointed out the alleged impropriety of his initial appointment and the failure to ever formally certify appellant as indigent and entitled to a public defender at the taxpayers’ expense. Fritz consistently pointed out that he had not had the time to prepare for the case, was not in a position to represent appellant, and could not in good conscience start a serious criminal trial on the spur of the moment.

As a layman, Olson could not possibly have understood the import of failing to object to the prosecutor’s request for a mistrial. He likely assumed that he was better off with a mistrial so he could get time to talk to an attorney because the record shows that the district court and the prosecutor implied to Olson that this mistrial was in the form of a continuance to help Olson with trial preparation. Olson had absolutely no idea that a district court judge might not be able to declare a mistrial after the jury had been sworn and guarantee the state the right to a second prosecution without his consent.

As noted, Olson did not have the chance to confer with standby counsel, who, at least, would have informed him of the consequences of consenting to a mistrial. Olson was never given the opportunity to make an informed decision whether to object to the prosecutor’s mistrial request. Under the circumstances, Olson was effectively denied the chance to- meaningfully challenge the prosecutor’s request for a mistrial.

The district court may have acted precipitously in declaring a mistrial. Having said that, there is no question, and the record reflects, that the district court, thoughtfully, and in appellant’s best interests, reconsidered his previous decision to deny appellant time to hire private counsel. The court understood that the consequences of denying another continuance had the effect of ordering appellant to represent himself pro se on a serious charge. Upon further reflection, the district court understood that this trial was likely “hatched” from the beginning and there was probably a record full of error. For instance, the record shows that Olson was assisted with voir dire by the prosecutor. It is fundamental that a prosecutor cannot fulfill a defendant’s right, pursuant to the U.S. Constitution’s Sixth Amendment, to have “effective assistance of counsel.” The prosecutor, by definition, cannot be a defendant’s attorney. It is difficult to say which is worse, the perception or the reality. For instance, how possibly could a prosecutor effectively assist a defendant in exercising his peremptory challenges, the most important part of voir dire, at times an essential factor in the verdict of guilty or not guilty? If the prosecutor, through his own pretrial background check of the prospective panel, and through his observations of the jurors’ de-meanors when answering questions, and the answers themselves, is decidedly satisfied with six or seven members of the jury, could the prosecutor (would he? should he?) tell the defendant that he had better use his five peremptory challenges on some of those jurors because, as a prosecutor, he sure wants them!

The district court cannot be criticized, can be praised, for rethinking an earlier decision to require a defendant to proceed pro se. The problem is that the change of mind, likely a good change of mind, and one in accord with the administration of justice, came after the jury was impaneled, after the trial was started, and after jeopardy had attached.

This is the seminal issue before us. To give Olson a continuance/mistrial to obtain substitute counsel and prepare for a second trial could only come with a carefully laid record showing that Olson fully understood the implications of a mistrial/continuance and fully understood that by agreeing to one, he was waiving the possible defense of double jeopardy at the next trial. We do not have that record.

The record shows that the consequences of agreeing to a mistrial were not laid out in detail to Olson. The record does not show that Olson, with or without standby counsel, made an affirmative, fully informed, intelligent decision to consent to the mistrial with the explicit understanding that he could now be tried again.

At oral argument, the state argued that somehow Olson must have affirmatively consented to the mistrial because, “Well, Olson certainly knew there was going to be another trial.” Our only response can be, “So what.” The fact that Olson was told there was going to be another trial only means that a pro se defendant was told by a sitting judge that there was going to be another trial. All Olson could do at that point was assume that there would be one because the judge said so. That is far, far less than being told the serious implication of a mid-trial mistrial and being told exactly what his consent would mean, and being told he could make up his mind to consent, or not, after a reasonable time to confer with an attorney. None of that was done. Thus, Olson’s “knowing” that there was going to be a second trial is nowhere near the equivalent of “assuming” that he waived his constitutional right not to be tried twice for the same offense.

In Arizona v. Washington, 434 U.S. 497, 515 at 515-16, 98 S.Ct. 824, 835, 54 L.Ed.2d 717 (1978), the United States Supreme Court held that the district court judge did not act precipitously in declaring mistrial where

evincing a concern for the possible double jeopardy consequences of an erroneous ruling, he gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial.

(Emphasis added.)

In this sensitive framework, where the district court was trying to do the right thing for a pro se defendant, Olson had to have been given a full opportunity to address the propriety of a mistrial, especially in light of the fact that Olson’s consent would likely be a waiver of the defense of double jeopardy. It would have been better for the court to have granted a short recess and have ordered Olson and his standby counsel to confer in private so at least Olson would fully understand the implications of agreeing to a mistrial. Also, in that private conference, standby counsel would have informed Olson that even though the court had the power to grant a mistrial over his objection, he had the right to object.

We conclude that, under these circumstances, Olson did not impliedly consent to the mistrial by failing to object to the prosecutor’s request for a mistrial.

Because Olson did not consent to the mistrial, the state must prove that a “manifest necessity” justified the mistrial. See Long, 562 N.W.2d at 296 (holding manifest necessity standard controls where mistrial declared without defendant’s consent). The state argues that a mistrial was manifestly necessary because it allowed Olson to obtain the representation he desired and the time needed for counsel to prepare a defense.

A high degree of necessity, not absolute necessity, must exist before a mistrial is appropriate. Id. In reviewing the district court’s exercise of discretion and whether the mistrial was manifestly necessary, a reviewing court considers whether the district court adequately examined less drastic measures. Id. Where the district court, who is best situated to make such a decision intelligently, determines that “the ends of substantial justice cannot be attained without discontinuing the trial, it may declare a mistrial ‘without defendant’s consent, and even over his objection,’ ” and the defendant “may be retried consistently with the Fifth Amendment.” Gori, 367 U.S. at 368, 81 S.Ct. at 1526 (citations omitted).

As Olson contends, the mistrial declared by the district court was caused, in large part, by the court’s refusal to grant him a continuance so he could secure new counsel. The court refused to do so because it believed Olson was engaging in a delaying tactic to avoid trial. The court was also concerned about trial calendar management and the delay a continuance would cause.

The district court may deny a continuance if a defendant discharges his counsel for the purpose of delay or by arbitrarily choosing to substitute counsel at the beginning of trial. State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970). This rule recognizes the need for sound judicial administration and a speedy trial. Id. One factor to be considered is whether the district court’s denial of a continuance will prejudice the defendant’s preparation and presentation of his defense. Id. The inconvenience of rearranging the court calendar “cannot outweigh [a defendant’s] right to counsel.” In re T.D.F. 258 N.W.2d 774, 775 (Minn.1977) (citing City of Minneapolis v. Price, 280 Minn. 429, 435, 159 N.W.2d 776, 780 (1968) (holding inconvenience caused to court calendar is minor and “hardly justifies deprivation of a right as basic as the right to counsel”)).

Here, the record does not support the district court’s belief that Olson was engaged in delaying tactics. When the trial was called on January 5, 1998, the case was already nearly one year old. During this time, the matter had been continued three times. The first trial date was rescheduled at the request of the state. The matter was continued a second time presumably because Olson removed the first judge. It is unclear from the record why the trial was continued a third time. The record contains only a notice from the court administrator’s office, notifying the parties that the trial had been continued from November 3, 1998, to January 5, 1999. Aside from the three continuances, the record is devoid of any evidence that in the one-year period before trial Olson engaged in or employed delaying tactics designed to avoid trial.

We also note that the day after the district court granted Olson a one-day continuance so he could obtain his file from Paulson, Olson retained the services of attorney Strauss. This demonstrates Olson’s willingness to cooperate with his defense and is not consistent with a finding that he was seeking to prolong the case unnecessarily. Strauss agreed to represent Olson if permitted a short time to prepare and familiarize himself with the case. This, coupled with the fact that there is no evidence that Olson had previously engaged in delaying tactics, does not support the district court’s belief that Olson was interested in “avoiding trial.” Cf. State v. Miller, 488 N.W.2d 235, 239-40 (Minn.1992) (holding defendant not entitled to continuance when he refused to cooperate and contributed to delay); Fagerstrom, 286 Minn. at 299-300, 176 N.W.2d at 264 (affirming denial of continuance where defendant, without explanation, sought new counsel on day of trial).

Further, under the unusual posture of this case, there is a serious issue of adequate time to prepare a defense. Whether Olson proceeded pro se, or by public defender Fritz, or by private counsel, at least a minimum reasonable time is essential and constitutionally protected. “In defining constitutionally infirm representation, ⅜ * * competent representation is premised on sufficient time to prepare a defense.” T.D.F., 258 N.W.2d at 775 (citation omitted). In light of the complexity of the case and the lack of time to do any preparation or investigation, Strauss stated that although he preferred a 90-day continuance, he could be ready for trial within 30 days. He was confident that at least with a 30-day continuance he could familiarize himself with the facts, conduct an investigation of the case, and prepare an adequate defense for Olson. Similarly, public defender Fritz stated candidly to the court that he was “strictly incompetent” to try the case because he was completely unfamiliar with the facts. He commented that Olson was probably better prepared to handle the case because, at the very least, Olson knew the facts. “When denial of a continuance deprives defendant’s counsel of adequate trial preparation, we must reverse the conviction.” T.D.F. 258 N.W.2d at 775 (citation omitted).

Olson’s request for a short continuance before trial was a far less drastic measure that would have obviated the need for a mistrial. The district court itself acknowledged that it did the equivalent of forcing Olson to appear pro se and to proceed with his own jury selection, which ended up with Olson being assisted by the prosecutor.

We can only conclude that when the district court properly reconsidered its pri- or decision to force Olson to trial without an attorney, it then had the obligation to lay a detailed and complete record showing that Olson intelligently consented to the mistrial (as a legal method of getting a continuance to hire counsel) with the unequivocal understanding that he was consenting to being tried a second time. A detailed and intelligent decision by Olson does not appear in the record.

It is regrettable that a charge that all consider serious ends on this abrupt note. However, the constitutional prohibition against trying a defendant twice for the same offense is fundamental, a sine qua non of American and Minnesota due process standards. On this record, the interests of justice require that Olson’s conviction be reversed on the ground that his constitutional right against double jeopardy was violated.

III. Ineffective Assistance of Counsel

Because we reverse Olson’s convictions on double jeopardy grounds, we need not, in detail, address his claim that he received ineffective assistance of counsel. However, we note that his complaints against counsel are against an attorney whom he discharged long before both his mistrial, and even longer before the Loth-enbach stipulation that he went through that gets us here today. There is no issue of ineffective assistance of counsel for us to decide. The last two attorneys of record for Olson, public defender Fritz and private attorney Strauss, performed professionally and with competence.

DECISION

Issues raised, but not reviewed, in a direct appeal that is dismissed may be considered in a subsequent petition for postconviction relief. A pro se defendant does not impliedly consent to the state’s request for a mistrial where he is not given the opportunity to object or to consult with appointed standby counsel. A district court’s concern over trial calendar management does not necessarily constitute manifest necessity allowing a defendant to be tried twice.

On this record, consistent with double jeopardy protections under the federal and state constitutions, it was impermissible to compel this defendant to go through a second trial.

Reversed.

DORIS OHLSEN HUSPENI, Judge

(concurring in part, dissenting in part)

I agree that because the issues presented in Olson’s petition for postconviction relief were never actually reviewed in his direct appeal, he is not precluded from raising them here.

I also agree that because the attorney against whom Olson raised the insufficiency of counsel claim was discharged prior to both the mistrial activity and the Lothen-bach trial, there is no issue for this court to address, except to the extent, if any, that Olson’s discharge of that attorney may be weighed in the analysis of the request for a continuance and, ultimately, in the consideration of the double jeopardy issue.

Further, I agree with the majority that on the record before us we cannot conclude that Olson impliedly consented to the mistrial by failing to object to the trial court’s decision to grant it. I must, as did the majority, conclude that the mistrial was declared over the opposition of Olson.

There is actually very little in the majority’s analysis in Section II with which I take issue. But, I must dissent from the majority’s ultimate conclusion that Olson’s constitutional right not to be placed twice in jeopardy was violated.

The majority discusses at some length the perils inherent in denying a request for a continuance when the seeker of the continuance is an accused without legal counsel. I agree with that discussion, and I suppose the trial court would, too. To the extent that the trial court acted in haste in denying the continuance, it repented fully during the “leisure” afforded after the jury was impaneled.

The trial court recognized the very substantial likelihood that it had erred seriously (and probably reversibly, too) in insisting that Olson go forth in circumstances providing fragile, if not non-existent, legal counsel. And the trial court concluded that a conviction obtained under such circumstances would very likely be reversed and remanded on appeal — a result that would involve court, prosecution, and defendant alike in a new trial. Steering between Scylla and Charybdis, the trial court declared a mistrial sua sponte.

I believe this case can be distinguished from Long v. Humphrey, 184 F.3d 758 (1999). In Long, the Eighth Circuit reversed the Minnesota Supreme Court and granted a writ of habeas corpus, determining that

[g]iven the range of available and viable alternatives to mistrial, the trial court simply was not faced with the sort of urgent circumstances or the high degree of necessity contemplated by the manifest necessity standard.

Id. at 761.

A review of the trial court’s discussion in this case (covering several pages of transcript) demonstrates its conclusion that the .only alternative available was a mistrial. That conclusion is a valid one. A review of the record also demonstrates the trial court’s careful and deliberative consideration of the importance to Olson of having the charge against him decided in one trial and the importance of providing a fair trial to both the state and Olson.

I find no abuse of discretion in this case and would affirm the decision of the post-conviction court denying Olson’s petition.

      . The defendant in Long filed a federal habeas corpus claim, challenging the Minnesota Supreme Court’s decision. See Long v. Humphrey, 184 F.3d 758 (8th Cir.1999). The Eighth Circuit Court of Appeals reversed Long’s conviction, holding that a mistrial was not manifestly necessary because the district court failed to consider less drastic measures short of a mistrial. Id. at 761. The court determined that when “evaluated objectively and on the merits,” the district court’s decision "was an unreasonable application of clearly established Supreme Court precedent.” Id.

      . See U.S. Const, amend. VI (entitling criminal defendant to "assistance of counsel for his defense”).


author: PER CURIAM.

text:
    2000 ND 87
    In the Matter of Application for DISCIPLINARY ACTION AGAINST Scott J. McDONALD, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Scott J. McDonald, Respondent.
    Nos. 990359-990361.
    Supreme Court of North Dakota.
    April 25, 2000.

      Paul W. Jacobson, Disciplinary Counsel, Bismarck, N.D., for petitioner.
    James S. Hill, Zuger Kirmis & Smith, Bismarck, N.D., for respondent.
   PER CURIAM.

[¶ 1] The Disciplinary Board petitions for disciplinary action against Scott J. McDonald for making a statement of fact and offering evidence to a court which he knew was false. We conclude there is clear and convincing evidence McDonald violated N.D.R. Prof. Conduct 3.3(a), and we order McDonald be suspended from the practice of law for six months and one day, successfully complete the Multistate Professional Responsibility Examination, and pay the full costs of the disciplinary proceedings.

I

[¶ 2] McDonald was admitted to practice law in North Dakota on May 29, 1987. During the period relevant to this case, McDonald was a sole practitioner in Bowman. In June 1993, McDonald represented Howard Brooks in making a claim for abandoned mineral interests in Slope County. At the time, McDonald had one full-time secretary, Becky Hodell, on his staff. A part-time secretary, Carolyn Russell, worked occasionally when additional assistance was needed. With Russell’s help, McDonald prepared a notice of lapse of mineral interest under N.D.C.C. ch. 38-18.1. He directed Russell to have the notice published in the official county newspaper; mail the notice to Mabel E. and J.L. Albright, the owners of the mineral interests, at their last known post office address within 10 days of the final publication; and file the notice and an affidavit of service with the Slope County Register of Deeds.

[¶ 3] In July 1993, the notice was published in the Slope County Messenger. In August or September 1993, Russell told McDonald everything had been completed for the termination of the mineral interests, and McDonald had the Brooks file placed with his inactive files. Russell no longer worked for McDonald after June 1995.

[¶ 4] In April 1996, client Brooks asked McDonald whether the Albrights’ mineral interests were terminated, because Brooks had discovered the notice had not been filed with the Slope County Register of Deeds. McDonald reviewed the file and found the notice and an affidavit of service had not been recorded with the Register of Deeds, and no affidavit of service of the notice had been prepared. According to McDonald, there was an envelope in the file which appeared to have the notice addressed to the Albrights and which had been returned by the United States Postal Service as being undeliverable. In May 1996, McDonald recorded the notice of lapse of mineral interest and an affidavit of publication with the Slope County Register of Deeds, but did not record an affidavit of service of the notice.

[¶ 5] In November 1996, the Albright heirs brought a quiet title action against members of the Brooks family, seeking to eliminate the notice of lapse of mineral interest from the title of the property and to have the Brookses declared as having no interest in the mineral acres. In December 1996, McDonald answered the quiet title action on behalf of the Brookses. In January 1997, the Albright heirs moved for summary judgment. McDonald opposed the summary judgment motion and made a counter-motion for summary judgment, arguing the mineral interests of the Albright heirs had terminated under the provisions of N.D.C.C. ch. 38-18.1. With his response, McDonald filed an affidavit in which he claimed:

3. That on the 20th day of July, 1993, my office did cause to be placed in the United States Mails, a photocopy of Brooks’ Notice of Lapse of Mineral Interest, addressed to J.L. Al-bright and Mabel Albright at 6922 South Halstead Street, Chicago, Illinois; and
4. That on August 3, 1993, the United States Post Office returned the said envelope containing Brooks’ Notice of Lapse of Mineral Interest addressed to J.L. Albright and Mabel Albright, to my law office, and that the envelope was marked by the United States Post Office as being “Undeliverable”, at which time the said envelope was placed into my file.

[¶ 6] McDonald argued in his brief to the trial court that title vested in the surface owner, Brooks, because the procedural requirements under N.D.C.C. ch. 38-18.1 were satisfied:

In this action, there is no question that publication was made once each week in the official county newspaper in the county in which these minerals are located. Additionally, as the attached Affidavits and copies of the return delivery of the certified mailings show, the Notice was not only properly published, but was also sent to the last known mailing address of the alleged mineral interest owners, J.L. Albright and Mabel Albright. This Notice was mailed within 10 days of the date after the last publication date of the Notice of Lapse of Mineral Interest on July 15, 1993. See Exhibit “3”. It is also clear that a copy of the Notice and the Affidavit of the Service of the Notice by publication was recorded in the office of the Register of Deeds in the County in which the mineral interests are located. Pursuant to North Dakota Century Code § 38-18.1-06, this is prima facie evidence in these legal proceedings that such notice has been given.

[¶ 7] Along with these materials, McDonald also filed a photocopy of the envelope which was purportedly mailed to the Albrights on July 20, 1993, and a photocopy of the Postal Service’s “Domestic Return Receipt,” “PS Form 3811.” The attorney for the Albright heirs noticed discrepancies on the envelope and the Form 3811. The postmark date on the envelope was “JUL 20,” but no year was indicated. The Form 3811 had a publication date of “December 1994.”

[¶ 8] The attorney for the Albright heirs filed an affidavit from the Dickinson Postmaster, who said the “Form 3811 was not available for use by the United States Post Office or its patrons until sometime late in 1994, or perhaps even early 1995.” The Albrights’ attorney also served a subpoena duces tecum on McDonald requiring him to bring the envelope and the mailing receipts to the summary judgment hearing. McDonald withdrew his reliance on the alleged July 20, 1993 mailing, and turned to an older notice of abandonment of mineral interests which had been recorded in 1988 to support Brooks’ legal position. The trial court ruled in favor of the Al-bright heirs, and McDonald personally paid the costs of judgment. These disciplinary proceedings were instituted.

[¶ 9] When the envelope, which was purportedly mailed on July 20, 1993 to the Albrights, was opened at the disciplinary hearing for the first time since it was filed in the quiet title action, it contained a copy of the notice of lapse of mineral interest dated June 21, 1993, and a copy of the affidavit of publication. The affidavit of publication was sworn and subscribed to on August 6, 1993, 17 days after McDonald said the envelope was mailed. McDonald claimed Russell mailed the envelope. Russell did not testify at the hearing and her whereabouts are unknown.

[¶ 10] The hearing body found the envelope was not mailed on July 20, 1993, “but the circumstances make it clear the envelope was placed in the mail after [McDonald] reviewed his file in April, 1996 on or about July 20, 1996.” The hearing body also found not all of the markings on the envelope were made by Postal Service personnel:

McDonald testified Russell told him in August or September, 1993 that she had completed everything which needed to be done to terminate the mineral interests for Brooks. She was not employed by McDonald after June 2, 1995. The envelope placed in the mail to Mabel E. Albright and J.L. Albright on or about July 20,1996 and which was found undeliverable by the Postal Service and placed in McDonald’s file, was not placed there by Carolyn Russell. Someone in McDonald’s office created a forgery of an envelope to evidence mailing of a Notice of Lapse of Mineral Interest to Mabel E. Albright and J.L. Albright, M.D. Only Russell and McDonald had motive to do so, and only McDonald had the opportunity to do so.
Reasonable inferences drawn from the circumstantial evidence and other evidence provide testimony of clear and convincing proof that when McDonald discovered the statutory requirements had not been met for the termination of a mineral interest during his review of the file for Brooks in April, 1996, that he acted on or about July 20, 1996 to create a forgery of an envelope to falsely suggest mailing of a Notice of Lapse of Mineral Interest to Mabel E. Albright and J.L. Albright, M.D. on July 20, 1993. The forgery was prepared in order to give the appearance of compliance with statutory requirements for the termination of the Albright mineral interest.

[¶ 11] The hearing body concluded that when McDonald filed his affidavit in the quiet title action, the forged envelope he created evidenced a mailing of the notice in compliance with the statutory requirements for terminating mineral interests, and in the affidavit McDonald “made a statement of fact to the Court and offered evidence to the Court which he knew to be false in violation of N.D.R. Prof. Conduct 3.3(a).” As a sanction, the hearing body recommended McDonald’s license to practice law be suspended for 60 days and he be ordered to pay the costs of the disciplinary proceeding.

[¶ 12] The Disciplinary Board adopted the report of the hearing body, but recommended McDonald pay one-half of the costs of the proceedings and submitted its report to this Court. McDonald timely filed objections to the report and both parties presented briefs and oral argument. We consider the Board’s report under N.D.R. Lawyer Discipl. 3.1(F).

II

[¶ 13] We review disciplinary proceedings against attorneys de novo on the record under a clear and convincing standard of proof. Disciplinary Board v. Dooley, 1999 ND 184, ¶ 12, 599 N.W.2d 619. We give due weight to the findings, conclusions, and recommendations of the Board, but we do not act as a “rubber stamp” for those findings and recommendations. Disciplinary Board v. Landon, 1999 ND 202, ¶ 10, 600 N.W.2d 856. When the hearing panel has heard the witnesses and observed their demeanor, we accord special deference to its findings on matters of conflicting evidence. Disciplinary Board v. Lamont, 1997 ND 63, ¶ 15, 561 N.W.2d 650. Each disciplinary case must be considered upon its own facts to decide what discipline is warranted. Disciplinary Board v. Seaworth, 1999 ND 229, ¶ 23, 603 N.W.2d 176.

A

[¶ 14] The Board found McDonald violated N.D.R. Prof. Conduct 3.3(a), which provides, “A lawyer shall not: (1) Make a statement to a tribunal of fact or law that the lawyer knows to be false; or (2) Offer evidence that the lawyer knows to be false.” See also N.D.C.C. § 27-13-01(6) (requiring attorneys shall “never seek to mislead the judge or jury by any artifice or false statement of fact or law”). The high duty of candor placed upon attorneys is summarized in Disciplinary Board v. Kaiser, 484 N.W.2d 102, 108 (N.D.1992) (citations omitted):

‘“Truth and candor are synonymous with justice, and honesty is an implicit characteristic of the legal profession.’ ABA, The Judicial Response to Lawyer Misconduct, III.l, III.3 (1984). The primary function of our judicial system is to find the truth to reach a just conclusion.... Our courts are almost‘wholly dependent on members of the bar to marshal and present the true facts....’”

1

[¶ 15] McDonald argues all exhibits relied upon by the Board were introduced by McDonald and not by disciplinary counsel during his case-in-chief, and because McDonald moved for a “directed verdict” at the close of disciplinary counsel’s casein-chief, we cannot rely on this material in determining whether there is clear and convincing evidence he violated N.D.R. Prof. Conduct 3.3(a).

[¶ 16] Although disciplinary proceedings are neither civil nor criminal, but quasi-judicial in nature, the Rules of Evidence and Civil Procedure apply “insofar as appropriate.... ” N.D.R. Lawyer Dis-cipl. 3.5(B). In a criminal context, a defendant permits this Court to review the entire record to determine whether sufficient evidence exists to sustain the verdict if the defendant presents evidence after a N.D.R.Crim.P. 29(a) motion for judgment of acquittal is denied. See State v. Jones, 557 N.W.2d 375, 377 (N.D.1996). A similar result ensues in a civil context when a defendant moves for judgment as a matter of law under N.D.R.Civ.P. 50(a). “Technically a party waives the right to a judgment as a matter of law if the motion is made at the close of the opponent’s case, and thereafter the moving party introduces evidence in its own behalf.” 9A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2534, at p. 322 (1995) (footnote omitted) (discussing the federal counterpart to N.D.R.Civ.P. 50(a)). See also Pease v. Magill, 17 N.D. 166, 169, 115 N.W. 260, 261 (1908). Because McDonald presented evidence after his motion for “directed verdict” was denied by the hearing body, we are not procedurally bound to review only the evidence presented by disciplinary counsel, but can review the entire record of the proceedings.

2

[¶ 17] McDonald argues he is entitled to all reasonable and favorable inferences from the evidence because he has denied any wrongdoing and witnesses are presumed to tell the truth.

[¶ 18] The presumption that a witness has told the truth is easily rebut-table by evidence to the contrary. See Andrews v. O’Hearn, 387 N.W.2d 716, 730 (N.D.1986). This presumption may be rebutted by circumstantial evidence or a combination of both direct evidence and circumstantial evidence. See Lovas v. St Paul Ins. Companies, 240 N.W.2d 53, 61 (N.D.1976). We have recognized the concurrence of well-authenticated circumstances can be stronger evidence than positive testimony unconfirmed by circumstances. Id. If circumstantial evidence clearly and convincingly establishes that McDonald violated N.D.R. Prof. Conduct 3.3(a), the presumption is dissipated and McDonald is not entitled to the benefit of any favorable inferences.

3

[¶ 19] McDonald challenges several of the Board’s findings of fact in support of his argument there is no clear and convincing evidence he violated N.D.R. Prof. Conduct 3.3(a). The Board found the “Notice and an Affidavit of Service [of the notice] was not filed with the Register of Deeds of Slope County, as required by statute.” McDonald claims no pertinent statute was read into the record and no expert testimony was given in the disciplinary proceedings to establish he had not complied with the requirements for terminating mineral interests. According to McDonald, this error places all of the Board’s factual findings in question because it is critical to the Board’s ultimate finding McDonald had a motive to, and did, create a false affidavit and falsify evidence.

[¶ 20] Courts and administrative hearing bodies may take judicial notice of state laws even if the law is not formally submitted and received in 'evidence or requested to be officially noticed. Walter v. North Dakota State Highway Com’r, 391 N.W.2d 155, 158 (N.D.1986). The Board, through its hearing bodies, may do the same. Under N.D.C.C. § 38-18.1-06(4), “[a] copy of the notice and an affidavit of service of the notice must be recorded in the office of the register of deeds of the county in which the mineral interest is located” to constitute prima fa-cie evidence that notice has been given to successfully terminate mineral interests. See also Spring Creek Ranch, LLC v. Svenberg, 1999 ND 113, ¶ 11, 595 N.W.2d 323. There is nothing incorrect or improper about the Board’s finding McDonald did not comply with the statutory requirements that would undermine the Board’s other findings.

4

[¶ 21] McDonald argues the Board’s finding that not all markings on the envelope addressed to the Albrights were made by Postal Service personnel is not supported by credible evidence.

[¶ 22] John Callinan, a United States postal inspector, testified that while he believed the envelope at some point in time probably did go through the mail, there were various discrepancies on the face of the envelope. Callinan noted the postage meter impression with no year in the date was “very unusual and it’s against our postal regulations to make a meter imprint without a full date in it on first class mail.” He also testified postal records reflected the Form 3811, with a publication date of December 1994, had a delivery date of May 12, 1995, “and sometime after the delivery date ... they would go to our supply centers for supply to the post offices around the country.” Callinan testified a stamped impression on the lower left hand corner of the envelope was customary, but the writing on the stamped impression was not. According to Callinan, the date written on the stamp for the first notice of the certified mail was “7-24,” and the second notice should have been five days later, but instead was noted as being attempted on “7-26.” Callinan said 15 days after the first notice was given, the letter would be returned, but the return date written was “7-31,” only seven days after the first notice. Callinan also testified he did not believe a postal employee wrote “MLNA 65807” on the face of the envelope. Although “MLNA” is a Postal Service acronym for “Moved Left No Address,” the five digit number following it is supposed to be the zip code of the delivery number, and 65807 is the zip code for Springfield, Missouri, not Chicago, Illinois. We conclude there is credible evidence to support the Board’s finding that not all markings on the envelope were made by Postal Service personnel.

5

[¶ 23] McDonald argues the Board’s finding that the envelope was placed in the mail “on or about July 20, 1996” is also not supported by the evidence.

[¶ 24] The evidence clearly shows the letter was not mailed on July 20, 1993, as McDonald initially claimed, but must have been mailed sometime after that date. McDonald testified he placed the Brooks file in his inactive files in September 1993 and did nothing more with it until Brooks contacted him in April 1996. McDonald then discovered the notice and affidavit of service had not been recorded with the Register of Deeds. Callinan testified the Form 3811 used on the envelope would not have been available for use until “sometime after” May 12, 1995. The postmark date on the envelope was “JUL 20.” Considering the recent reactivation of the Brooks file in April 1996, we believe the evidence strongly suggests the most plausible date the envelope was placed in the mail was, as the Board found, July 20, 1996.

6

[¶ 25] McDonald contends the Board’s finding that Russell did not mail the envelope is not supported by the evidence. McDonald does not claim Hodell mailed the envelope, but argues Russell, his part-time secretary, could have done so.

[¶ 26] The earliest the letter could have been mailed was “sometime after” May 12, 1995, and McDonald’s records showed Russell was not employed by McDonald after June 2, 1995. McDonald placed the Brooks file with his inactive files in September 1993, and it seems highly improbable Russell would open the Brooks inactive file and mail the envelope shortly before her employment ended. We believe the circumstantial evidence clearly supports the Board’s finding Russell did not mail the envelope.

7

[¶ 27] McDonald argues there is no clear and convincing evidence he forged the envelope and made a statement of fact and offered evidence he knew was false to the court in the quiet title action. The only reasonable conclusion to be drawn from the circumstantial evidence in this case is that McDonald falsified the envelope to attempt to show compliance with N.D.C.C. ch. 38-18.1, and then used this evidence in an attempt to support Brooks’ legal position in the Albrights’ quiet title action.

[¶ 28] The evidence shows someone in McDonald’s office falsified the envelope to show a notice of lapse of mineral interest was mailed to the Albrights on July 20, 1993. McDonald testified Hodell would not have had a motive, and would not have done so. McDonald testified Russell could have had a motive to falsify the mailing, but the only motive for Russell to do so would be to cover up her mistake, and it seems highly improbable Russell would open an inactive file almost two years after the fact to correct the mistake. McDonald, as Russell’s supervisor, certainly had a more substantial motive to falsify the mailing. Considering these circumstances and the minuscule window between the time the Form 3811 might have been available for use in Bowman and the time Russell left McDonald’s employment, we agree with the Board that McDonald had the most opportunity and strongest motive to falsify the mailing.

[¶ 29] We reject McDonald’s contention the affidavit and envelope were never actually “submitted” to the court in the quiet title action because he conceded the mailing was defective and thereafter relied on an alternative argument to support Brooks’ claim to the mineral interests. McDonald did file a false affidavit and a photocopy of the falsified mailing with the district court in the quiet title action. McDonald’s eventual withdrawal of the falsified evidence, only after its authenticity was challenged by opposing counsel, does not erase the ethical violation.

[¶ 30] We conclude there is clear and convincing circumstantial evidence that McDonald made a statement of fact and offered evidence which he knew was false to a court in violation of N.D.R. Prof. Conduct 3.3(a).

B

[¶ 31] McDonald argues he was denied due process because his hearing was held on November 24,1998, more than 14 months after the petition for discipline was filed, and the hearing body did not issue its findings and recommendations until September 13, 1999, almost 10 months after the hearing.

[¶ 32] While the length of the delay is very troubling, we see no “grave injustice” in the 14-month delay between the filing of the petition for discipline and the hearing. Disciplinary Board v. Dvorak, 1998 ND 134, ¶ 24, 580 N.W.2d 586. The record reflects much of this time was spent by both parties attempting to find Russell. Although the hearing body exceeded the 60-day time limit under N.D.R. Lawyer Discipl. 3.1(F) for submitting its report, this time limit is directory, rather than jurisdictional, and the failure to observe prescribed time intervals does not abate a disciplinary proceeding. N.D.R. Lawyer Discipl. 3.5(H). See also Landon, 1999 ND 202, ¶ 8, 600 N.W.2d 856; Disciplinary Board v. Ellis, 504 N.W.2d 559, 562 (N.D.1993).

[¶ 33] In Matter of Wireman, 270 Ind. 344, 367 N.E.2d 1368, 1370 (1977), the Indiana Supreme Court said:

Due process, as applied to disciplinary proceedings involving attorneys, requires notice of the charges and an opportunity to be heard.... Beyond these requirements, there is no authority to suggest that the expiration of a time period would establish a constitutional infirmity mandating dismissal of all charges. There may be hypothetical factual situations where this expiration of time destroys the fundamental fairness of the entire disciplinary process; however, there is no evidence in the present case to warrant such determination.

(Citations omitted). Likewise, we find nothing in this case to warrant a determination that the delay in submitting the report destroyed the fundamental fairness of this disciplinary process.

Ill

[¶ 34] The Board recommends McDonald be suspended from the practice of law for 60 days and pay $3,307.18, one-half the costs of the disciplinary proceedings. Disciplinary counsel argues McDonald should be suspended for some period longer than six months, preferably one year, and he should be required to pay the full costs of the disciplinary proceedings, $6,614.36. McDonald argues an admonition would be appropriate under the circumstances of this case..

[¶35] In determining the appropriate sanction, we are guided by N.D. Stds. Imposing Lawyer Sanctions 6.1:

Rule 6.1. False statements, fraud, and misrepresentation.
Absent aggravating or mitigating circumstances, upon application of the factors set out in N.D. Stds. Imposing Lawyer Sanctions 3.0, the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration of justice or that involves dishonesty, fraud, deceit, or misrepresentation to a court:
6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.
6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

[¶ 36] We reject the Board’s recommendation that McDonald be suspended from the practice of law for 60 days. An attorney’s deliberate use of false testimony or falsified evidence in a judicial proceeding is antithetical to the oath, the standards, and the ideals of the legal profession. See Lamont, 1997 ND 63, ¶ 19, 561 N.W.2d 650; Kaiser, 484 N.W.2d at 109. In Kaiser, we suspended an attorney from the practice of law for two years for testifying falsely under oath on two occasions. In that case, although the attorney admitted the violations of the Code of Professional Responsibility, the attorney’s first episode of false testimony “had a profound effect on the outcome of that litigation, and on the decision by this court in that litigation” and resulted in “profits of nearly two million dollars to Kaiser and his partners.” Kaiser at 107. In Lamont, we suspended an attorney from the practice of law for 60 days for falsely testifying at a trial. However, the lawyer’s testimony had no effect on the outcome of the trial and it did not result in any benefit to himself personally or to his client. Lamont at ¶ 20.

[¶ 37] In imposing a sanction, we consider the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. N.D. Stds. Imposing Lawyer Sanctions 3.0. Deliberately presenting false information to a court is a very serious violation. McDonald denied any wrongdoing, but the Board and this Court have found, he committed the violation. McDonald has shown no remorse. There was the potential for a very serious miscarriage of justice because the false affidavit and false document could have served as the basis for a taking by McDonald’s client of the mineral interests of the other party. McDonald withdrew the falsified evidence from the court’s consideration, but only after its authenticity was challenged by opposing counsel, and the court ultimately found in favor of the Albrights. Even though the intentionally falsified evidence was immaterial to the actual outcome of the litigation, it is nevertheless an extremely serious breach of professional ethics. Kaiser at 107-08.

[¶ 38] The Board found as mitigating factors under N.D. Stds. Imposing Lawyer Discipl. 9.32 that McDonald has no prior disciplinary record, he was inexperienced in the practice of law, and he “practiced by himself in a solo practice in a remote area.” While the absence of a prior disciplinary record tilts in McDonald’s favor, we do not agree the other factors are mitigating circumstances in this case. McDonald’s unethical conduct occurred after he had been practicing law for more than nine years. “After so many years of practice, there is no question that he knew better.” Kaiser at 108. Moreover, attorneys “in a solo practice in a remote area” are not subject to a different standard of legal ethics.

[¶ 39] We conclude a suspension of six months and one day from the practice of law is appropriate in this case.

[¶ 40] We also reject the Board’s recommendation that McDonald pay only one-half of the costs of the disciplinary proceedings. The Board recommended reducing the amount of costs because the charge of violating N.D.R. Prof. Conduct 8.1 was dismissed. However, the parties agree most of the costs in this proceeding were incurred in attempting to locate Russell. Russell’s whereabouts were just as important to McDonald’s defense to the N.D.R. Prof Conduct 3.3(a) violation as they were to McDonald’s defense to the N.D.R. Prof. Conduct 8.1 violation. We conclude McDonald should pay the entire costs of the disciplinary proceeding.

IV

[¶ 41] We order McDonald be suspended from the practice of law for six months and one day commencing June 1, 2000. McDonald is ordered to pay $6,614.36 for the costs and expenses of the disciplinary proceedings. Before he may practice law again, McDonald must apply for reinstatement in accordance with N.D. Lawyer Dis-cipl. 4.5, including certification by the bar examiners of McDonald’s successful completion of the Multistate Professional Responsibility Examination.

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

      . McDonald claimed Russell was also known as Carolyn Bruns and he did not know her before she began working in his office during the spring of 1993. When it was discovered McDonald represented Carolyn Bruns in a 1990 divorce matter, McDonald admitted he was “mixed up about that,” and said Bruns and Russell were two separate people. Because of this, McDonald was also charged with violating N.D.R. Prof. Conduct 8.1 by knowingly making a false statement of material fact in connection with a disciplinary matter. The hearing body dismissed this charge, reasoning "[t]he evidence shows confusion by all parties as to the identity of Carolyn Russell, but there is no clear and convincing evidence of a knowing false statement on the part of McDonald.” Disciplinary counsel does not challenge dismissal of this charge. McDonald's argument that the entire disciplinary proceeding was contaminated by this charge which was ultimately dismissed by the hearing body is without merit.

      . Although we sympathize with McDonald for the hardships caused by his spouse's recent automobile accident, the accident occurred after the disciplinary hearing and could not have contributed to or caused his misconduct. See Disciplinary Board v. Crain, 1997 ND 131, 566 N.W.2d 404.