author: KAPSNER, Justice.

text:
    2008 ND 138
    Dave LAGERQUIST, Plaintiff and Appellee v. Rudy STERGO a.k.a. Rudy Strgo, Just Wire Corp., West Side Metals Corp., Midwest Industrial Metals Corporation, and John Doe, Defendants. West Side Metals Corp., Defendant and Appellant.
    No. 20070285.
    Supreme Court of North Dakota.
    July 2, 2008.

      David R. Phillips (argued) and Scott K. Porsborg (appeared), Smith Bakke Pors-borg & Schweigert, Bismarck, ND, for plaintiff and appellee.
    Jerome C. Kettleson (argued) and Zachary E. Pelham (appeared), Pearce & Dur-ick, Bismarck, ND, for defendant and appellant West Side Metals Corp.
   KAPSNER, Justice.

[¶ 1] West Side Metals Corporation (“West Side”) appeals an amended judgment holding West Side liable for money damages, costs, and disbursements in the amount of $86,702. We affirm the amended judgment of the district court to the extent that it finds the existence of an actual agency relationship and awards damages, costs, and disbursements, but reverse the district court’s holding that an ostensible agency relationship existed.

I

[¶ 2] This action arises out of a contract for the purchase of scrap metal between Rudy Stergo and Dave Lagerquist. Lagerquist brought a lawsuit against Ster-go, a scrap metal purchaser, and West Side, another scrap metal purchaser, for breach of contract. Stergo is an individual scrap metal buyer, who purchases scrap metal and sells the metal to other larger scrap metal purchasers, like West Side, at a profit. Most of West Side’s scrap metal purchases come from “peddler trade,” meaning independent buyers, like Stergo, come to West Side’s physical location with scrap metal to sell. West Side purchases its scrap metal from several hundred independent buyers each day.

[¶3] In the spring of 2005, Stergo learned Lagerquist had scrap metal and switch gear, which Lagerquist was interested in selling. West Side and Lager-quist both concede the contract to sell and purchase the material was formed on May 3, 2005, following a series of emails on that date, during which both parties agreed to specific pricing on various scrap metal held by Lagerquist. The contract provided Lagerquist and Stergo would meet in person on May 9, 2005, at which time Stergo would provide a down payment of $30,000 for the scrap metal purchase. The May 3, 2005, contract also provided Stergo would take delivery of the scrap metal on May 9, 2005. None of the May 3, 2005, emails make reference to West Side, and West Side does not appear in the final terms of the contract between Stergo and Lager-quist.

[¶ 4] Following the formation of the contract, Lagerquist showed the material to Stergo, and on May 9, 2005, Stergo gave Lagerquist $30,000 as a down payment on all of the scrap metal and switch gear he wished to purchase. Stergo began loading and hauling away the purchased scrap metal on May 9, 2005.

[¶ 5] The $30,000 down payment Ster-go gave to Lagerquist on May 9, 2005, was money supplied to Stergo by West Side. Lagerquist discovered the $30,000 check for the down payment was drawn against West Side’s account, rather than Stergo’s account, “quite a bit” after receiving the check on May 9, 2005. Lagerquist alleges, and the district court found, Stergo indicated he was associated with and a buyer for West Side on May 9, 2005, while Stergo was loading the scrap metal. After Stergo loaded part of the scrap metal onto trucks on May 9, 2005, Lagerquist gave Stergo two invoices totaling $115,009, the total price of the material, and reminded Stergo that Lagerquist needed the balance owing on the metal, $85,009, within two weeks under the terms of their contract.

[¶ 6] For unknown reasons, Lagerquist became concerned about the balance owed on the metal and called West Side on the telephone on May 10, 2005. Lagerquist testified an employee of West Side, Donna, told him West Side was familiar with Ster-go and confirmed Stergo was a buyer for West Side. Before the two weeks for payment had elapsed, Lagerquist called Ster-go to inquire about the payment of the balance owed. When Lagerquist contacted Stergo during the two-week payment period, Stergo said the scrap metal was contaminated with asbestos and lead and the metal had been buried. Stergo then contacted Lagerquist about three days after their initial telephone conversation and offered Lagerquist $10,000 to settle the unpaid portion of the contract price. Lag-erquist refused Stergo’s settlement offer. According to Lagerquist, Stergo also informed him that Stergo would not pay the remaining balance due on the scrap metal. Lagerquist learned Stergo had sold the scrap metal to another company, Midwest Industrial Metals Corporation (“Midwest”), instead of West Side. Lagerquist also discovered Stergo had received a total of $136,502 in checks from Midwest for the scrap metal. Evidence also established Stergo paid West Side over $30,000 of the $136,502 Stergo had received, apparently to compensate West Side for the money West Side had advanced to Stergo for down payment on the scrap metal Stergo purchased from Lagerquist. Lagerquist had difficulty reaching Stergo and could not collect the balance due on the scrap metal from Stergo.

[¶ 7] Lagerquist brought suit against Stergo, West Side, and Midwest to collect the balance due on the scrap metal. Midwest negotiated a settlement with Lager-quist, relieving Midwest of further liability in this lawsuit. After a bench trial, the district court found Stergo was an agent of West Side and, as such, West Side was held jointly and severally liable for Ster-go’s breach of contract and ordered to pay Lagerquist damages and costs in the amount of $86,702.

[¶ 8] West Side appeals the amended judgment, arguing the district court erred in concluding Stergo was both an ostensible and actual agent of West Side and thus erred in assessing damages against West Side as Stergo’s principal.

II

[¶ 9] “Agency is generally a question of fact.” Stockman Bank of Montana v. AGSCO, Inc., 2007 ND 26, ¶ 11, 728 N.W.2d 142 (citing Red River Commodities, Inc. v. Eidsness, 459 N.W.2d 805, 810 (N.D.1990)). “Agency is never presumed, and if an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.” Stockman Bank of Montana, at ¶ 11 (citing Argabright v. Rodgers, 2003 ND 59, ¶ 6, 659 N.W.2d 369). We review a district court’s finding of agency under the clearly erroneous standard of review. Argabright, at ¶ 6 (citing Fleck v. Jacques Seed Co., 445 N.W.2d 649, 651 (N.D.1989)).

[¶ 10] An agency relationship is created when one person, called the principal, authorizes another, called the agent, to act for the principal in dealing with third persons. Argabright, at ¶ 6 (citing N.D.C.C. § 3-01-01). Agency is either actual or ostensible. Id. (citing N.D.C.C. § 3-01-03). “An agency is actual when the agent really is employed by the principal.” Id. (citing N.D.C.C. § 3-01-03). “An agency is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent, who really is not employed by him.” Id. (citing N.D.C.C. § 3-01-03). “An apparent or ostensible agency must rest upon conduct or communications of the principal which, reasonably interpreted, causes a third person to believe that the agent has authority to act for and on behalf of the principal.” Id. (citing Krank v. A.O. Smith Harvestore Prods., Inc., 456 N.W.2d 125, 128 (N.D.1990)). “Agency is never presumed and, if an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence.” Id. (citing Hector v. Metro Ctrs., Inc., 498 N.W.2d 113, 118 (N.D.1993)). “A finding of fact is clearly erroneous if it is not supported by any evidence, if, although there is some evidence supporting the finding, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous conception of the law.” Auction Effertz, Ltd. v. Schecher, 2000 ND 109, ¶ 10, 611 N.W.2d 173 (citation omitted).

Ill

[¶ 11] In this case, the district court made specific factual findings with respect to the existence of both ostensible and actual agency. The district court found Lagerquist and Stergo entered into a contract for the sale and purchase of the scrap metal on May 9, 2005. The district court found that at the time the parties were negotiating and entering into the contract, relying on the premise that the contract was formed on May 9, 2005, “St[e]rgo indicated he was associated with West Side Metal and indicated he was a buyer for them.” The district court found Stergo was “authorized to buy metal for West Side, [and] he was provided with advances to pay for the metal with the clear expectation that any metal he bought would be re-sold to West Side Metals.” The district court found that after Lager-quist became worried about the balance due and called West Side on May 10, 2005, “he was told that St[e]rgo was acting for West Side Metal in purchasing scrap metal from Lagerquist.” The district court further concluded that Donna, one of West Side’s employees, “conferred with someone at West Side Metal before providing that information to Lagerquist.” The district court found “Lagerquist reasonably relied on the information he received when he telephoned West Side Metal.” The district court found “[Stergo] was assisted in allowing [himself] to present himself as an agent of West Side Metal.” The district court based these factual findings on the testimony of several witnesses; thus, there is evidence in the record to support the district court’s findings. See, e.g., Williston Coop. Credit Union v. Pesek, 363 N.W.2d 548, 550 (N.D.1985) (“The trial court had an opportunity to view the witnesses as they testified and assess their credibility. Where two parties present conflicting testimony on material issues of fact, we will not reexamine the trial court’s findings based upon the testimony. On the record before us, we cannot conclude that the trial court’s findings are clearly erroneous.”) (footnote omitted).

[¶ 12] While there is evidence in the record to support the district court’s factual findings that (1) Stergo represented he worked for West Side on May 9 and May 10; (2) after May 9, Lagerquist called West Side to confirm Stergo’s relationship with West Side; and (3) an employee of West Side confirmed the company knew Stergo, these facts do not lend themselves to the factual conclusion that ostensible agency existed. The district court erred in applying the law.

[¶ 13] In the parties’ briefs and during oral argument, both Lagerquist and West Side concede the contract for the sale and purchase of scrap metal was formed prior to May 9, 2005. We agree; Lagerquist and Stergo negotiated and entered into the contract on May 3, 2005. An exchange of emails, occurring on May 3, 2005, provides that Lagerquist agreed to sell and Stergo agreed to buy scrap metal and switch gear held by Lagerquist; the price for the scrap metal was fixed in that exchange as were the terms for payment. May 9, 2005, is the date upon which Stergo actually met with and paid $30,000 to Lagerquist as a down payment. It was the agreed upon delivery date. On May 9, 2005, Stergo also began loading the scrap metal pursuant to the parties’ May 3, 2005, contract.

[¶ 14] In order for ostensible agency to bind the principal to a contract made by an ostensible agent on the principal’s behalf, the principal must cause or allow a third person to believe the agent actually has such authority. N.D.C.C. § 3-02-02. Here, the facts would have to show that at the point at which Lagerquist and Stergo actually entered into the contract on May 3, 2005, West Side’s conduct or communications with Lagerquist, reasonably interpreted, caused Lagerquist to believe Stergo had authority to act for and on behalf of West Side. Argabright, 2003 ND 59, ¶ 6, 659 N.W.2d 369 (citing Krank, 456 N.W.2d at 128). There is no evidence in this case to support such a conclusion.

[¶ 15] “A contract, be it oral or written, ‘requires an offer, and acceptance of that offer, and mutual acceptance and understanding of the offeror and offer-ee as to the terms of the legally enforceable obligation thus incurred.’ ” Lohse v. Atlantic Richfield Co., 389 N.W.2d 352, 355 (N.D.1986) (quoting Cargill, Inc. v. Kavanaugh, 228 N.W.2d 133, 138 (N.D.1975)). “ ‘[T]o be valid and enforceable, ... a contract must be reasonably definite and certain in its terms so that a court may require it to be performed.’ ” Delzer v. United Bank of Bismarck, 459 N.W.2d 752, 758 (N.D.1990) (quoting Union State Bank v. Woell, 434 N.W.2d 712, 717 (N.D.1989) (first alteration added; ellipsis and emphasis in original).

[¶ 16] In this case, the May 3, 2005, email exchanges constitute the formation of a written contract. Stergo offered to purchase the different types of scrap metal, offering specific prices per pound on the different types of metal Lag-erquist had for sale. Lagerquist accepted Stergo’s per pound offers on the different types of scrap metal, and Lagerquist offered additional quotes for the pricing of other scrap metal not mentioned in Ster-go’s email. In these emails, both parties agreed Stergo would submit a cashier’s check to Lagerquist for $30,000 down payment on the scrap metal prior to taking delivery of the metal on May 9, 2005. The emails also provided the balance due on the metal would be paid within two weeks of the point at which Stergo took delivery of the scrap metal, on May 9 and 10, 2005. These emails constitute written offer and acceptance between Stergo and Lagerquist on May 3, 2005, and the emails provide reasonably definite terms to which both Stergo and Lagerquist agreed. Therefore, as conceded by the parties, the contract was formed on May 3, 2005, and the district court erred as a matter of law in determining the contract was formed on May 9, 2005. Balsam v. Buehner, 278 N.W.2d 425, 427 (N.D.1979) (holding that where parties admitted to forming a contract and certain contractual provisions, the contract was formed as a matter of law and certain provisions could not be denied).

[¶ 17] Even assuming that May 9 had been the date of the contract, there is no evidence of West Side’s communications or actions prior to the contract formation that would induce Lagerquist to believe Stergo had the authority to act for West Side. The district court’s factual findings fail to show ostensible agency because the communications and conduct on the part of West Side, in telling Lagerquist that Stergo was one of its buyers, did not occur until May 10, 2005, after the contract had been formed. When Lagerquist entered into the contract, he did so without any communication with West Side. None of the May 3, 2005, email communications referenced West Side, and West Side did not take part in the email exchanges on that date. Thus, the district court erred as a matter of law in finding ostensible agency between Ster-go and West Side for purposes of entering into a contract because West Side’s communications with Lagerquist occurred after the contract was made, and would not have led Lagerquist to reasonably believe Stergo was affiliated with West Side when Lagerquist agreed to sell Stergo the scrap metal. We reverse the district court’s holding that Stergo was an ostensible agent of West Side.

IV

[¶ 18] The district court found that, even if Stergo was not an ostensible agent of West Side, he was West Side’s actual agent. The district court found Stergo was an actual agent of West Side based on its factual conclusions that: (1) West Side advanced Stergo the $30,000 down payment necessary to secure Lager-quist’s scrap metal; (2) Stergo purported to be affiliated with and a buyer for West Side while taking delivery of the metal; (3) Stergo used West Side’s fax machine to send documents necessary to complete the scrap metal transaction; and (4) Stergo was “authorized to buy metal for West Side, [and] he was provided with advances to pay for the metal with a clear expectation that any metal he bought would be resold to West Side Metals.”

[¶ 19] Actual agency exists only when “the agent really is employed by the principal.” Argabright, 2003 ND 59, ¶ 6, 659 N.W.2d 369 (citing N.D.C.C. § 3-01-03).

[¶ 20] Lagerquist testified and the district court found that Stergo alleged he was affiliated with and a buyer for West Side. We have held that simply because a person purports to be an agent, this is insufficient to prove an agency relationship; “[a]gency cannot be proved by showing the declarations of the alleged agent.” Tostenson v. Ihland, 147 N.W.2d 104, 109 (N.D.1966) (citation omitted). While Ster-go’s assertion of an agency relationship alone is not sufficient to establish the existence of an actual agency relationship between Stergo and West Side, the district court is not precluded from considering such an assertion in determining whether actual agency exists.

[¶ 21] The district court also relied upon the fact that Stergo used the fax machine of West Side throughout this transaction in determining actual agency exists. Stergo’s use of West Side’s fax machine, when coupled with additional facts, lends support to the district court’s conclusion that actual agency existed. We caution, however, because of the high burden placed on the party asserting the existence of an agency relationship, that the use of another individual's or company’s fax machine or other office equipment is not strong or conclusive evidence of the existence of actual agency. See Stockman Bank of Montana, 2007 ND 26, ¶ 11, 728 N.W.2d 142 (citing Argabright, at ¶ 6) (“Agency is never presumed, and ... the party alleging agency must establish it by clear and convincing evidence.”). The district court’s consideration of Stergo’s use of West Side’s fax machine alone does not rise to the level of clear and convincing evidence, but is, nonetheless, a fact that may be considered with several others to support the district court’s conclusion that actual agency existed.

[¶ 22] There is evidence in the record to support the district court’s finding that West Side advanced $80,000 to Stergo and Stergo was authorized to purchase Lager-quist’s scrap metal with the funds, with the expectation that the scrap metal be delivered to West Side after Stergo’s purchase; this supports the district court’s finding that actual agency existed.

[¶ 23] The president of West Side, Ian Morris, testified West Side had done business with Stergo on many occasions, providing him with advances to purchase scrap metal, which were intended to allow Stergo to purchase scrap metal to deliver to West Side. During trial, Morris testified about the nature of West Side’s agreement with Stergo for this particular transaction while discussing Stergo’s sale of Lager-quist’s metal to Midwest rather than West Side:

Q Did [Stergo] tell you what he did?
A He told me he went to Midwest with the material and didn’t bring it to me, and I was upset with that. He ivas supposed to bring me the material with my money.

(Emphasis added). There is evidence in the record to support the district court’s conclusion that Stergo was authorized to buy scrap metal for West Side and West Side had a clear expectation that any scrap metal Stergo bought would be delivered to West Side.

[¶ 24] All of these factual findings, taken in their totality and supported by evidence in the record, support the district court’s determination that actual agency existed under the definition of actual agency in N.D.C.C. § 3-01-03.

V

[¶ 25] West Side’s final argument is that even if it fits the statutory definition of an actual principal under N.D.C.C. § 3-01-03, the district court erred in concluding Stergo was West Side’s agent because Stergo falls into an exception to the general definition of actual agent. West Side argues the district court should have deemed Stergo an independent buyer or supplier as defined by the Restatement (Second) of Agency.

[¶ 26] West Side urges this Court to adopt a Restatement rule related to independent buyers or suppliers, which sets forth the following maxim regarding independent buyers and agency: “One who contracts to acquire property from a third person and convey it to another is the agent of the other only if it is agreed that he is to act primarily for the benefit of the other and not for himself.” Restatement (Second) of Agency § 14K (1957). West Side further urges this Court to adopt the independent buyer analysis provided in comment (a), Restatement (Second) of Agency § 14K. The relevant portion of the comment reads:

Factors indicating that the one who is to acquire the property and transfer it to the other is selling to, and not acting as agent for, the other are: (1) That he is to receive a fixed price for the property, irrespective of the price paid by him. This is the most important. (2) That he acts in his own name and receives the title to the property which he thereafter is to transfer. (3) That he has an independent business in buying and selling similar property.

Restatement (Second) of Agency § 14K cmt. a (1957).

[¶ 27] Using the above maxim and comment analysis, Stergo, who contracted with Lagerquist to purchase scrap metal, is regarded as an agent of West Side only if Stergo agreed with West Side to act primarily for West Side’s benefit and agreed not to act in Stergo’s own interests. Here, because Stergo derives a profit from the scrap metal he purchases and, while doing so in part for the benefit of West Side, does not conduct the purchase primarily for the benefit of West Side, West Side argues Stergo would not be defined as West Side’s agent. West Side argues Stergo’s primary purpose is more likely to create a profit for himself rather than to benefit West Side. Thus, under the Restatement’s maxim, Stergo would not be considered an agent.

[¶28] Though North Dakota has not addressed the issues contained in Restatement (Second) of Agency § 14K, West Side points to several Texas state decisions and one federal case which have adopted this rule. See Rufenacht v. Iowa Beef Processors, Inc., 492 F.Supp. 877, 881 (N.D.Tex.1980) (cattle); Tarver, Steele & Co. v. Pendleton Gin Co., 25 S.W.2d 156, 159-60 (Tex.Civ.App.1930) (cotton); St. Louis & S.F.R. Co. v. Blocker, 138 S.W. 156, 162 (Tex.Civ.App.1911) (timber).

[¶ 29] We find that only a minority of jurisdictions have adopted the independent buyer or supplier exception contained in the Restatement. Therefore, we decline West Side’s invitation to adopt the independent buyer or supplier exception.

VI

[¶ 30] We reverse the district court’s holding that an ostensible agency relationship existed between Stergo and West Side, because the district court erred as a matter of law in applying the law of ostensible agency to the formation of the contract. We hold the district court did not clearly err in determining Stergo was West Side’s actual agent; there is evidence in the record to support the findings of the district court and the district court did not misapply the law of actual agency. We decline West Side’s invitation to adopt the Restatement’s independent buyer or supplier exception. Therefore, the amended judgment of the district court is affirmed to the extent that it finds actual agency and awards to Lagerquist damages, costs, and disbursements against West Side.

[¶ 31] GERALD W. VANDE WALLE, C.J., WILLIAM A. HERAUF, D.J., WIILIAM W. McLEES, D.J., and DANIEL J. CROTHERS, J.

[¶ 32] The Honorable WILLIAM A. HERAUF, D.J., and The Honorable WILLIAM W. McLEES, D.J., sitting in place of MARING, J., and SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: MARING, Justice. VANDÉ WALLE, Chief Justice,

license: Public Domain

text:
    2008 ND 140
    FORUM COMMUNICATIONS COMPANY, Petitioner v. The Honorable John T. PAULSON, Judge of the District Court, Southeast Judicial District, State of North Dakota, and Moe Maurice Gibbs, Respondents.
    No. 20080052.
    Supreme Court of North Dakota.
    July 7, 2008.
    Steven A. Johnson (on brief), Michael T. Andrews (on brief), and David L. Tilden (on brief), Vogel Law Firm, Fargo, N.D., for petitioner.
    Steven A. Storslee (on brief), Special Assistant Attorney General, Bismarck, N.D., for respondent the Honorable John T. Paulson.
    Jonathan R. Byers (on brief), Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent State of North Dakota.
   MARING, Justice.

[¶ 1] Forum Communications Company petitioned for a supervisory writ directing district court Judge John T. Paulson to vacate his order sealing juror questionnaires and any other information that would help identify the full names of jurors in the concluded Bismarck murder trial of Moe Maurice Gibbs. We exercise our original jurisdiction and issue a supervisory writ reversing the district court’s order and directing the court to consider Forum Communications’ request for information under the guidelines specified in this opinion.

I

[¶ 2] Gibbs was charged in Barnes County with murdering Valley City State University student Mindy Morgenstern in her Valley City apartment. The case was assigned to Judge Paulson, a district court judge in the Southeast Judicial District. Because of pretrial publicity, the district court moved the trial from Barnes County to Minot in Ward County. In June 2007, the court approved expanded media coverage of the trial, but issued an order restricting extrajudicial comments to the media or the public.

[¶ 3] Before trial, the State and Gibbs stipulated to use a thirty-four page jury questionnaire for prospective jurors to answer before trial to assist the parties in picking a jury. The questionnaire consisted of 169 questions divided into several broad categories, including personal information identifying the prospective juror, residence, family, education, employment, previous employment, personal, military, law enforcement and legal contacts, criminal justice system, juror service, and miscellaneous. The parties’ stipulation said the questionnaire “will not be filed and become a part of the Court’s record in this matter. The proposed Jury Questionnaire shall be held strictly confidential, with the exception of distribution to Court personnel, attorneys-of-record for each of the parties and the parties.” The district court approved the parties’ stipulation, stating the “completed Jury Questionnaires shall not become part of the Court’s file in this case. To the extent any completed Jury Questionnaires end up logged in the Court’s file, the completed Jury Questionnaire(s) shall be sealed in an envelope and marked ‘Confidential’ and only to be opened pursuant to the terms of a subsequent order of the Court.” The jury questionnaire included the following statement by the court to prospective jurors:

Some of these questions call for personal information. If you feel any question invades your right to privacy or is embarrassing to you, you may simply write “confidential” in the space provided. The Court will then give you an opportunity to answer that question in a closed hearing with the Court, the accused, the attorneys and the court reporter. The Court will do everything legally possible to protect your privacy.
This questionnaire is part of the jury selection process and, therefore, you must answer the questions under penalty of perjury.

[¶ 4] The parties do not dispute that the voir dire proceedings during the Minot trial were closed to the public and the media. During the Minot trial, Gibbs’ trial counsel petitioned for a disorderly conduct restraining order against a third party attending the trial, and a district court judge for the Northwest Judicial District issued a disorderly conduct restraining order against the third party, a Bismarck resident. The Minot jury ultimately deadlocked on a verdict in the criminal prosecution of Gibbs. The district court initially rescheduled a second trial in Grand Forks County “because of the extensive pretrial and trial publicity in Barnes County ... and the extensive trial coverage in Ward County ... including comments by jurors and juror editorials.”

[¶ 5] The district court eventually rescheduled the trial for Bismarck in October 2007, and the court issued a scheduling order requiring each prospective juror to complete the 169 question juror questionnaire utilized in the first trial. Forum Communications moved to open courtroom proceedings, including voir dire, to the public, to unseal court documents, including the completed jury questionnaires, and to vacate the gag order. The court ordered that the public would be allowed access to jury voir dire, subject to closure whenever counsel believed sensitive subjects would be discussed with prospective jurors. The court also unsealed a copy of a blank juror questionnaire distributed to the prospective jurors and indicated it would preserve, rather than destroy completed juror questionnaires. The court further ordered “as much public access to courtroom proceedings as possible,” but “reservefd] ruling on public access to specific matters that may be taken up in motion hearings, bench or chamber conferences or other special proceedings until such matters arise.” The court also left intact the order restricting extrajudicial comments. The parties do not dispute that during approximately five days of jury selection in Bismarck, the public and the media were allowed to attend voir dire, subject to some in camera proceedings, but the jurors were referred to by their first names and the initial of their last name. After a lengthy trial, the Bismarck jury returned a November 2007, verdict finding Gibbs guilty. Gibbs appealed to this Court, and his appeal is pending.

[¶ 6] In December 2007 and January 2008, Forum Communications asked by letter the district court to release the names of the jurors in the Bismarck trial. The district court issued the following order:

Because the Court gave its word to the jurors in the above entitled matter that it would protect those jurors’ identity as confidential. And because the Court had previous harassment problems of jurors and counsel from a Bismarck man when the case was tried in Minot, North Dakota, in order to protect the jurors as much as possible, the Court now enters the following Order.
IT IS HEREBY ORDERED, that the Clerk of District Court is to seal the juror questionnaires and any other identifying information that would help identify the full names of the jurors that participated in the Bismarck, Burleigh County, North Dakota retrial of the above captioned matter.
IT IS FURTHER ORDERED, that the records will remain sealed until such time as any appeal, or any ordered retrial and appeal therefrom have been determined.

Forum Communications petitioned this Court to exercise its original jurisdiction and issue a supervisory writ reversing the district court’s order sealing juror information.

II

[¶ 7] Forum Communication argues the law presumes court records, including the jurors’ names and the completed juror questionnaires, are public. Forum Communications claims the district court’s order sealing juror information is contrary to law and creates an injustice, and it has no adequate alternative remedy but to request a supervisory writ.

[¶ 8] In Roe v. Rothe-Seeger, 2000 ND 63, ¶ 5, 608 N.W.2d 289, this Court outlined standards for this Court’s discretionary exercise of its original jurisdiction to issue supervisory writs in extraordinary cases in which there is no adequate alternative remedy:

Our authority to issue supervisory writs derives from N.D. Const, art. VI, § 2, and N.D.C.C. § 27-02-04. Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 19, 603 N.W.2d 66. The authority to issue supervisory writs is discretionary; it cannot be invoked as a matter of right. Trinity Med. Ctr. v. Holum, 544 N.W.2d 148, 151 (N.D.1996); Odden v. O’Keefe, 450 N.W.2d 707, 708 (N.D.1990). This Court determines whether it should exercise its original jurisdiction to issue remedial writs on a case-by-case basis. Heartview Found. v. Glaser, 361 N.W.2d 232, 234 (N.D.1985); Marmon v. Hodny, 287 N.W.2d 470, 474 (N.D.1980). Courts generally will not exercise supervisory jurisdiction “where the proper remedy is an appeal merely because the appeal may involve an increase of expenses or an inconvenient delay.” Fibelstad v. Glaser, 497 N.W.2d 425, 429 (N.D.1993). We exercise our authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy. State ex rel. v. Hagerty, 1998 ND 122, ¶ 6, 580 N.W.2d 139.

[¶ 9] We conclude this is an appropriate case to exercise our original jurisdiction because this case involves issues of vital concern about the interrelationship of guidelines for public and media access to court records, for juror privacy, and for a criminal defendant’s right to a fair trial, and because there is no adequate remedy by appeal to resolve those issues.

Ill

[¶ 10] Forum Communications argues the district court’s decision is contrary to law and creates an injustice because the public and the media have a right of access to criminal proceedings, including juror information, under N.D. Sup.Ct. Admin. R. 41, and the state and federal constitutions. Forum Communications claims the district court did not identify an overriding interest for sealing the information, and the court made no findings to suggest there was an ongoing threat of harassment of the Bismarck jurors. Forum Communications contends the court did not consider reasonable alternatives, nor did it consider if the order was the least restrictive means of accomplishing an overriding interest.

[¶ 11] During the trial, the district court kept all records listing the names of the jurors confidential. The court’s right to do so is not at issue in this proceeding. The only issue is whether the district court’s post verdict order sealing the juror questionnaires and any other identifying information violated the law. It is now firmly established that the general public and the media have a constitutional right of access to criminal trials. Waller v. Georgia, 467 U.S. 39, 44-45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 558-81, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). In Globe, at 604-606, 102 S.Ct. 2613 (citations and footnotes omitted) the United States Supreme Court explained the rationale for public access to criminal trials:

Underlying the First Amendment right of access to criminal trials is the common understanding that “a major purpose of that Amendment was to protect the free discussion of governmental affairs.” By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government. Thus to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected “discussion of governmental affairs” is an informed one.
Two features of the criminal justice system, emphasized in the various opinions in Richmond Newspapers, together serve to explain why a right of access to criminal trials in particular is properly afforded protection by the First Amendment. First, the criminal trial historically has been open to the press and general public. “[A]t the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open.” And since that time, the presumption of openness has remained secure. Indeed, ... the presumption was so solidly grounded that the Court was “unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country.” This uniform rule of openness has been viewed as significant in constitutional terms not only “because the Constitution carries the gloss of history,” but also because “a tradition of accessibility implies the favorable judgment of experience.”
Second, the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole. Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. Moreover, public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. And in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process-an essential component in our structure of self-government. In sum, the institutional value of the open criminal trial is recognized in both logic and experience.
Although the right of access to criminal trials is of constitutional stature, it is not absolute. But the circumstances under which the press and public can be barred from a criminal trial are limited; the State’s justification in denying access must be a weighty one. Where, as in the present case, the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.

(Emphasis added.)

[¶ 12] The United States Supreme Court has explicitly held that jury voir dire is part of a criminal trial and is subject to the same right of access by the public and the media. Press-Enterprise, 464 U.S. at 505, 104 S.Ct. 819. In Press-Enterprise, at 503, 104 S.Ct. 819, a trial court in a California murder trial had closed all but three days of six weeks of jury voir dire. After the jury was selected, Press-Enterprise sought release of a transcript of the closed portion of jury selection. Id. The prosecution and defense counsel both objected, claiming the closed voir dire involved personal and sensitive issues for the individual jurors. Id. at 504, 104 S.Ct. 819. They asserted the release of the transcript would violate the jurors’ right of privacy because the prospective jurors had answered questions under an “implied promise of confidentiality.” Id.

[¶ 13] The Supreme Court traced the origins of public trials and said there was a presumption that jury selection be as open to the public as any other part of a criminal trial. Id. at 505-10, 104 S.Ct. 819. The Court set forth a balancing test and explained:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 510, 104 S.Ct. 819.

[¶ 14] In Press-Enterprise, 464 U.S. at 511-12, 104 S.Ct. 819, the Court, in framing the standard necessary to overcome the presumption of openness, recognized the alleged murder also involved claims of rape of the victim, and jury selection “may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain.” The Court explained prospective jurors’ privacy interests must be balanced against historic values and the need for openness in the process:

To preserve fairness and at the same time protect legitimate privacy, a trial judge must at all times maintain control of the process of jury selection and should inform the array of prospective jurors, once the general nature of sensitive questions is made known to them, that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record.
By requiring the prospective juror to make an affirmative request, the trial judge can ensure that there is in fact a valid basis for a belief that disclosure infringes a significant interest in privacy. This process will minimize the risk of unnecessary closure. The exercise of sound discretion by the court may lead to excusing such a person from jury service. When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.

Id. at 512, 104 S.Ct. 819.

[¶ 15] In Press-Enterprise, 464 U.S. at 513, 104 S.Ct. 819, the trial court closed voir dire without considering alternatives to closure and thereafter declined to release a transcript of the proceeding without explaining why the denial was not limited to information that was actually sensitive and deserving of privacy protection. Because the trial court had failed to articulate findings with the requisite specificity or consider alternatives to closure and total suppression of the voir dire transcript, the Supreme Court remanded for proceedings not inconsistent with its opinion. Id.

[¶ 16] The right of public access articulated in Press-Enterprise has been applied to preliminary jury questionnaires. See, e.g., United States v. King, 140 F.3d 76, 82 (2nd Cir.1998); Cable News Network, Inc. v. United States, 824 F.2d 1046, 1047 (D.C.Cir.1987); Dayton Newspapers, Inc. v. United States, 109 F.Supp.2d 768, 771-72 (S.D.Ohio 1999); Bellas v. Superior Court, 85 Cal.App.4th 636, 102 Cal.Rptr.2d 380, 385 (2000); Lesher Commc’ns, Inc. v. Superior Court, 224 Cal.App.3d 774, 274 Cal.Rptr. 154, 155 (1990); Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 781 N.E.2d 180, 188-89 (2002). The foregoing authorities establish that the public and the media have a presumptive right of access to juror questionnaires that is not absolute and must be balanced against a defendant’s right to a fair trial and jurors’ privacy interests; that the presumption of openness can only be overcome by an overriding interest and must be articulated with findings specific enough to permit effective review, and that any closure must be narrowly tailored to serve the competing interests.

[¶ 17] Also related to the asserted right of access to juror names is N.D.C.C. § 27-09.1-09(3), of the Uniform Jury Selection and Service Act, which requires public access to jurors’ names unless the interests of justice requires the names be kept confidential and states, in part:

The names of qualified jurors and the contents of jury qualification forms completed by those jurors shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.

Other jurisdictions have interpreted the “interests-of-justice” standard to mean that “the trial court find specific and convincing reasons why, in the particular case, the juror identities are required to be withheld,” and that “withholding should occur only in an exceptional case.” In re Globe Newspaper Co., 920 F.2d 88, 93 (1st Cir.1990).

[¶ 18] This Court has promulgated N.D. Sup.Ct. Admin. R. 41, for public access to “court records,” which are defined to include “any document, information, or other thing that is collected, received, or maintained by court personnel in connection with a judicial proceeding.” N.D. Sup.Ct. Admin. R. 41(2)(a)(l). Rule 41, N.D. Sup.Ct. Admin. R., provides, in part:

Section 1. Purpose. The purpose of this rule is to provide a comprehensive framework for public access to court records. Every member of the public will have access to court records as provided in this rule.
Section 3. General Access Rule.
(a) Public Access to Court Records.
(1) Information in the court record is accessible to the public except as prohibited by this rule.
Section 5. Court Records Excluded From Public Access. The following information in a court record is not accessible to the public:
(b) Information that is not accessible to the public under state law, court rule, case law or court order, including:
(5) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court;
(6) records of voir dire of jurors unless disclosure is permitted by court order or rule;
(d) A member of the public may request the court to allow access to information excluded under Section 5 as provided in Section 6.
Section 6. Requests to Prohibit Public Access to Information in Court Records or to Obtain Access to Restricted Information.
(a) Request to Prohibit Access.
(1) A request to prohibit public access to information in a court record may be made by any party to a case, by the individual about whom information is present in the court record, or on the court’s own motion on notice as provided in Section 6(c).
(2) The court must decide whether there are sufficient grounds to overcome the presumption of openness of court records and prohibit access according to applicable constitutional, statutory and case law.
(3) In deciding whether to prohibit access the court must consider that the presumption of openness may only be overcome by an overiding interest. The court must articulate this interest along with specific findings sufficient to allow a reviewing court to determine whether the closure order was properly entered.
(4) The closure of the records must be no broader than necessary to protect the articulated interest. The court must consider reasonable alternatives to closure, such as redaction or partial closure, and the court must make findings adequate to support the closure. The court may not deny access only on the ground that the record contains confidential or closed information.
(5) In restricting access the court must use the least restrictive means that will achieve the purposes of this rule and the needs of the requestor.
(b) Request to Obtain Access.
(1) A request to obtain access to information in a court record to which access is prohibited under Section 4(a), 5 or 6(a) may be made by any member of the public or on the court’s own motion on notice as provided in Section 6(b).
(2) In deciding whether to allow access, the court must consider whether there are sufficient grounds to overcome the presumption of openness of court records and continue to prohibit access under applicable constitutional, statutory and case law. In deciding this the court must consider the standards outlined in Section 6(a).

(Emphasis added.)

[¶ 19] Under N.D. Sup.Ct. Admin. R. 41(5)(b)(5), the names of qualified or summoned jurors and contents of jury qualification forms are open to the public unless by court order disclosure is prohibited or restricted. Under N.D. Sup.Ct. Admin. R. 41(5)(b)(6), records of juror voir dire are not open to the public, unless by court order disclosure is permitted. When a request for public access is made, a court must decide whether there are sufficient grounds to overcome the presumption of openness of court records and may prohibit access according to applicable constitutional, statutory, and case law. N.D. Sup. Ct. Admin R. 41(6)(b). In deciding whether to permit or prohibit access, the court must consider that the presumption of openness may be overcome only by an overriding interest, which must be articulated along with specific findings sufficient to allow a reviewing court to determine whether the closure order was properly entered. Id. A closure order must be no broader than necessary to protect the articulated interest; the court must consider reasonable alternatives to closure, such as redaction or partial closure; and the court must make findings adequate to support the closure. Id. In restricting access, the court must use the least restrictive means that will achieve the purposes of the rule and the needs of the requestor. Id. The provisions of N.D. Sup.Ct. Admin. R. 41(5)(b)(5) and (6)(a) are consistent with the constitutional right of access to a criminal trial articulated in United States Supreme Court precedent and the requisite balancing of interests required by that precedent.

[¶ 20] Here, the district court’s decision to seal any and all information pertaining to identification of the jurors was based on its articulated reasons of giving “its word to the jurors ... that it would protect those jurors’ identity as confidential” and “previous harassment problems of jurors and counsel from a Bismarck man when the case was tried in Minot.” We conclude those reasons, by themselves, are insufficient to rebut the presumption of openness and to warrant a blanket closure in this case. A blanket promise of protection from public disclosure of information on jury questionnaires is not legally effectual where public access is mandated under the constitution. See Bellas, 102 Cal.Rptr.2d at 391-92. Courts have recognized that the general public and the media have a qualified First Amendment right of post-verdict access to jurors’ names, which may be limited by articulated findings to protect juror privacy or safety. United States v. Doherty, 675 F.Supp. 719, 723 (D.Mass.1987); Commonwealth of Pennsylvania v. Long, 592 Pa. 42, 922 A.2d 892, 901-05 (2007); In re Juror Names & Addresses, 233 Mich.App. 604, 592 N.W.2d 798, 808-09 (1999); Beacon Journal Publ’g Co., 781 N.E.2d at 191-95. The parties have cited nothing in this record to suggest there were harassment problems of the jurors at any point during the Bismarck trial or any impending threats of juror harassment or safety threats after the verdict. The trial is now over and the jury has been discharged. The district court’s decision did not articulate any specific findings to support closure to protect juror privacy or safety after the jury was discharged. See also N.D.C.C. § 27-09.1-09; In re Globe Newspaper, 920 F.2d at 98 (holding interests-of-justice standard was not met and jurors’ names must be released); but see United States v. Black, 483 F.Supp.2d 618, 622-30 (N.D.Ill.2007) (holding there is no qualified First Amendment right of access to jurors’ names during a criminal trial). We conclude the district court’s rationale for sealing'the names of the jurors sitting on the Bismarck trial after the jury was discharged was insufficient to overcome the presumption of public access. We therefore conclude the names of the jurors who were sworn and tried the case to verdict must be released after notice tó each of the jurors who sat on the Bismarck case that their names will be released and it is their choice'whether to talk to the public or to the media.

[¶ 21] We also conclude the findings of the district court do not support a blanket closure of the Bismarck trial jurors’ questionnaires. We agree with those jurisdictions that have applied the First Amendment right of public access to juror questionnaires and their reasoning that a written questionnaire serves as an alternative to oral disclosure of the same information in open court and is, therefore, synonymous with, and a part of, voir dire. Bellas, 102 Cal.Rptr.2d at 390; Beacon Journal Publ’g Co., 781 N.E.2d at 188. We understand the desire of the trial judge “to protect jurors’ privacy interest, whether it be content-based or the desire for anonymity.” Bellas, at 391. However, such interest must be balanced against the right to access under the Press-Enterprise test. We recognize that the use of expanded questionnaires is a valuable tool and viewed as a way of obtaining extremely personal and sometimes embarrassing information from prospective jurors in criminal eases in a more palatable manner than in open court. We suggest that these expanded jury questionnaires be accompanied, such as was done in this case, by a paragraph that states in unambiguous language that the questionnaires will become public records and, as an alternative to writing in sensitive personal data to a question, jurors can respond to the question by requesting a closed appearance before the judge with counsel and the accused present. The court can have the in camera hearing transcribed and then decide if that portion of jury selection should be available or access denied based on the showing required under Press-Enterprise. The trial court must not offer a guarantee of protection from public disclosure of information contained in juror questionnaires.

[¶ 22] We conclude a remand is appropriate for the court to consider the questionnaires of the jurors who sat on the Bismarck jury and to determine if an overriding interest for closure overcomes the presumption of openness under Press-Enterprise and N.D. Sup.Ct. Admin. R. 41. The district court must articulate specific findings to establish whether the presumption of access has been rebutted with regard to any questions or categories of the questionnaire. Any closure must be no broader than necessary to protect the articulated interest and the court must consider reasonable alternatives to closure. We hold, at a minimum, however, that recognized privacy concerns require redaction from the questionnaires of the jurors’ date of birth, and addresses and telephone numbers that are not generally available to the public. We also direct the district court to consider for possible redaction as a least restrictive means for public access, questions 64 through 67 pertaining to medications, questions 91 through 96 pertaining to whether the juror was a victim of a crime, and questions 140 through 142 pertaining to racial and ethnic groups. If the court redacts any responses to those questions, or any other questions, the redaction must be made for those responses on all questionnaires.

IV

[¶ 23] We exercise our original jurisdiction and issue a supervisory writ reversing the district court’s order and directing the court to consider Forum Communications’ request for information under the guidelines specified in this opinion.

[¶ 24] GERALD W. VANDE WALLE, C.J., EVERETT NELS OLSON, S.J., WILLIAM F. HODNY, S.J., and DANIEL J. CROTHERS, J., concur.

[¶ 25] The Honorable WILLIAM F. HODNY, S.J., and EVERETT NELS OLSON, S.J., sitting in place of KAPSNER, J., and SANDSTROM, J., disqualified.

VANDÉ WALLE, Chief Justice,

concurring specially.

[¶ 26] I agree with and have signed the opinion written for the Court by Justice Maring because I believe the law we cite requires the result reached by the opinion. In addition to the authority cited in our opinion, N.D. Sup.Ct. Admin. R. 9 also is involved in the jury selection procedure in this State. Rule 9(5), N.D. Sup.Ct. Admin. R., provides that the administration and management of the jury system must comply with the Standards Relating to Juror Use and Management which are incorporated in the rule as an Appendix. Standard 7 governs voir dire and subsection (a) of that standard provides that basic background information should be made available in writing to counsel or each self-represented party “unless disclosure is limited by the court in accordance with Section 27-09.1-09, N.D.C.C.” As our opinion notes, that section provides, at subsection 3, that the names of qualified jurors and the contents of jury qualification forms completed by those jurors “shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.”

[¶ 27] Standard 7(c) requires the judge to “ensure that the privacy of prospective jurors is reasonably protected, and that the questioning by counsel is consistent with the purpose of the voir dire process.”

[¶28] Rule 9(3), N.D. Sup.Ct. Admin. R., provides that the State Court Administrator, after consultation with the Jury Standards Committee, shall file a jury selection plan with the Clerk of the North Dakota Supreme Court and further provides that plan “shall detail the procedures to be followed in selecting and managing jurors in order to implement the policies set forth in N.D.C.C. Ch. 27-09.1,” the Uniform Jury Selection and Service Act. Although that plan contains a brief qualification form for determining whether or not a juror is qualified to serve, it does not define the scope of the jury questionnaire. Rather, Section V of the Jury Selection Plan provides that “The questions on the qualification form shall be limited to those questions which may disqualify a person from jury service.” Those questions ask whether the prospective juror is a citizen, a resident of the State and the county in which the trial is to be held, age, physical or mental disability which would affect the ability to serve or which would require special accommodations and whether the prospective juror has lost the right to vote because of current imprisonment.

[¶ 29] Subsection 3(b) of Section V of the plan states: “Questions which do not directly address the determination of qualifications should not be on the qualification form, but may be on the juror questionnaire.”

[¶ 30] Thus the Jury Selection Plan recognizes a distinction between the juror qualification form which is to contain only questions as to the qualifications of the prospective juror to sit on any jury and the questionnaire which seeks information that the parties or their attorneys will use in determining whether or not the prospective juror should be challenged for cause or peremptorily removed from a panel in a particular case. It is this questionnaire which may ask questions the answers to which should remain confidential because of juror privacy.

[¶ 31] Here, the parties with the approval of the district judge used an “expanded” jury questionnaire, expanded as our opinion notes to 34 pages of questions.

[¶ 32] I write to note that our opinion may have unintended consequences. In an effort to “reasonably” protect the privacy of prospective jurors the district court, in future cases, may be unwilling to allow such an “expanded” jury questionnaire. While counsel or the self-represented party may ask those questions during voir dire in open court, it is problematic that they will ask each juror 34 pages of questions during that time or that the district judge will allow that depth of questioning in view of the court’s responsibility to reasonably protect the juror’s privacy. Thus the agreement to keep the questionnaires confidential has some logical purpose. However, as our opinion notes, the sweep of confidentiality is too great. Prospectively, if the expanded questionnaires are used, our opinion indicates at ¶ 22, some, but certainly not all, specific information may be held confidential. Thus jurors as well as the media and the public will be informed before the fact.

[¶ 33] As our opinion and this writing indicate, there is a balancing process at work between the public’s right to access and the juror’s right to privacy and that process is, initially, the responsibility of the trial court. Our opinion will hopefully provide guidance to the trial courts as well as to the parties, counsel and the public who seek access to the juror information.

[¶ 34] GERALD W. VANDE WALLE, C.J., concurs.


author: VANDE WALLE, Chief Justice.

text:
    2008 ND 139
    Christina S. CARROLL, Claimant and Appellant v. NORTH DAKOTA WORKFORCE SAFETY & INSURANCE, Appellee and Baer’s House of Quality, Respondent.
    No. 20070219.
    Supreme Court of North Dakota.
    July 7, 2008.

      Larry Michel Baer, West Des Moines, IA, for claimant and appellant.
    Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, ND, for ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Christina S. Carroll appealed from a district court judgment affirming the decision of Workforce Safety and Insurance (“WSI”) denying her request to increase the level of reimbursement for her home health care services. We conclude the district court did not have subject matter jurisdiction, and we vacate the court’s judgment.

I

[¶2] Carroll became a quadriplegic in 1990 after a work-related accident. WSI began paying her associated medical expenses and disability benefits, including home health care expenses. Carroll continued to live on her own, but required 24 hour home health care.

[¶ 3] In 1993, after a dispute about the cost of Carroll’s health care expenses, WSI and Carroll resolved the matter through a stipulation. The parties agreed, “Base pay for claimant’s care-givers shall be $7.00 per hour, with a $.50 increase after six months; and $.25 per year thereafter, except that experienced or specially trained care-givers may be started at $7.50. Not to exceed $6,236.00, the previous payment level.” After the stipulation, WSI periodically reviewed the costs of Carroll’s home health care and increased the amount of its payments when appropriate, exceeding $6,236 per month.

[¶ 4] In 2005, Carroll requested WSI increase the level of compensation for two of her home health care workers, who had received their certified nursing assistant certification. She requested an increase of $1.00 per hour for both. In a June 16, 2006, letter, WSI denied her request. To explain its decision, WSI said:

To better understand WSI’s decision, please consider that in June 1994 you and WSI entered into a stipulation where it was agreed that WSI would not pay more than $6,236.42 per month for your home health care costs. The last 12 years have shown that WSI has frequently exceeded its originally stipulated obligation in paying your home health care costs, which currently exceed $13,000.00 per month. If you were a newly injured worker, you would not be entitled to this amount. There is no legal obligation of WSI to continue to increase the amount it pays for your home health care costs. WSI will not approve any future requests to increase the amount that we currently pay for your in-house home health care staff.

The letter also informed Carroll she had 30 days to file a formal petition for binding dispute resolution if she disagreed with the decision.

[¶ 5] Carroll filed a notice of appeal dated July 17, 2006, in district court. The notice stated Carroll was appealing WSI’s June 16, 2006, decision.

[¶ 6] On July 17, 2006, Carroll also petitioned WSI for reconsideration and requested a formal administrative hearing. On July 28, 2006, WSI sent Carroll’s attorney a letter informing him that her request for reconsideration and a hearing would be addressed through WSI’s binding dispute resolution (“BDR”) program.

[¶ 7] On September 20, 2006, WSI sent Carroll’s attorney a letter informing him that it was denying Carroll’s request for an increase in the level of reimbursement for her current home health care providers after completing the BDR process. WSI completed a comprehensive study of home health care services available in Carroll’s geographic area to determine if the level of care the firms provide meet Carroll’s requirements, and concluded there were other alternative home health care services available that would provide similar services at a lower cost and would meet the standard of care Carroll requires. Carroll did not amend the previous notice of appeal or file a separate notice of appeal in the district court to appeal the BDR decision.

[¶ 8] The district court affirmed WSI’s September 20, 2006, BDR decision. The court questioned whether Carroll had a right to appeal the decision, but decided not to rule on the issue because the parties did not address whether the decision was appealable. The court affirmed WSI’s decision and found WSI did not abuse its discretion in denying Carroll’s request because its decision was a managed care decision, the amount Carroll’s health care workers receive would be allowable under WSI’s fee schedule and is more than they are entitled to receive under the 1993 stipulation, WSI followed the managed care procedure set out in the North Dakota Administrative Code, and Carroll’s due process rights were not violated because a hearing was not required.

II

[¶ 9] Carroll argues WSI cannot order that it will not approve any future requests to increase the amount it pays for her home health care services, and there is no statutory basis for placing a permanent cap on reasonably necessary medical care. Carroll also claims WSI denied her due process rights, WSI has failed to publish adequate regulations for utilizing BDR, WSI failed to construct an adequate record to allow the court to decide whether WSI complied with state law or to decide whether WSI abused its discretion, and WSI failed to comply with administrative regulations for evaluating home nursing care.

[¶ 10] Although the district court questioned whether it had jurisdiction to hear the case, but concluded it would not decide the issue because the parties did not address it, “ ‘[t]he right of appeal in this State is statutory and is a jurisdictional matter which we may consider sua sponte.’” Lende v. North Dakota Workers’ Comp. Bureau, 1997 ND 178, ¶ 28, 568 N.W.2d 755 (quoting Midwest Federal Sav. Bank v. Symington, 393 N.W.2d 753, 754 (N.D.1986)).

[¶ 11] The court must have subject matter and personal jurisdiction to issue a valid order or judgment. Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583. Although an individual may voluntarily submit to the personal jurisdiction of the court, subject matter jurisdiction cannot be conferred by agreement, consent or waiver. Id. The issue to be decided must be properly before the court for subject matter jurisdiction to attach. Id. at ¶ 11. The issue of whether the court has subject matter jurisdiction may be raised at any stage of the proceeding. Id. “For the district court to acquire subject matter jurisdiction over an appeal from a decision of an administrative agency, the appellant must satisfy the statutory requirements for perfecting the appeal.” Benson v. Workforce Safety and Ins., 2003 ND 193, ¶ 5, 672 N.W.2d 640.

[¶ 12] Section 65-02-20, N.D.C.C., establishes WSI’s managed care program and provides the procedure that may be used to dispute a managed care decision:

If an employee, employer, or medical provider disputes a managed care decision, the employee, employer, or medical provider shall request binding dispute resolution on the decision. The organization shall make rules providing for the procedures for dispute resolution. Dispute resolution under this section is not subject to chapter 28-32 or section 65-01-16_ A dispute resolution decision under this section requested by an employee is reviewable by a court only if medical treatment has been denied to the employee.... The dispute resolution decision may be reversed only if the court finds that there has been an abuse of discretion in the dispute resolution process.

The procedures for resolving disputes are contained in N.D. Admin. Code § 95-01-02-46.

[¶ 13] But, Carroll’s notice of appeal only specified that she was appealing the June 16, 2006, decision, not the BDR decision. Carroll did not file an amended notice of appeal or separate notice of appeal after receiving the BDR decision. Carroll’s failure to file an amended or separate notice of appeal for the BDR decision precludes appellate review of that decision. See N.D.C.C. § 28-32-42 (“An appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken,.... ”); Lynnes v. Lynnes, 2008 ND 71, ¶ 11, 747 N.W.2d 93 (appellant’s failure to file an amended or separate notice of appeal for an order entered after the notice of appeal was filed precludes appellate review of the subsequent order). Carroll only appealed and alleged errors in WSI’s June 16, 2006, initial denial. Section 65-02-20, N.D.C.C., requires an employee appeal from a dispute resolution decision before we can review that decision. That initial June 16, 2006, denial was interlocutory and became part of the managed care decision and was subject to review only on appeal from the final managed care order. We conclude the June 16, 2006, letter was not an appealable decision under N.D.C.C. § 65-02-20, Carroll did not appeal the BDR decision, and therefore the district court did not have subject matter jurisdiction to review WSI’s decision.

[¶ 14] While Carroll argues WSI has capped her future benefits because the June 16, 2006, denial provides, “WSI will not approve any future requests to increase the amount that we currently pay for your in-house home health care staff[,]” and she urges this Court to reverse that order, we cannot reach the issue of whether WSI can cap all future benefits because there is no appeal from WSI’s final decision.

Ill

[¶ 15] We conclude the district court lacked subject matter jurisdiction because there was not a valid appeal from WSI’s final decision, and therefore the court’s judgment affirming the September 20, 2006, binding dispute resolution decision is void. We vacate the district court’s judgment affirming the binding dispute resolution decision.

[¶ 16] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, JJ., and RONALD E. GOODMAN, S.J. and BRUCE E. BOHLMAN, S.J., concur.

[¶ 17] The Honorable RONALD E. GOODMAN, S.J. and the Honorable BRUCE E. BOHLMAN, S.J., sitting in place of CROTHERS, J. and SANDSTROM, J„ disqualified.


text:
    2008 ND 143
    Timothy Gene KLOSE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20070303.
    Supreme Court of North Dakota.
    July 21, 2008.

      Chad Rory McCabe, Bismarck, N.D., for petitioner and appellant.
    Frederick Russell Fremgen, State’s Attorney, Jamestown, N.D., for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Timothy Klose appeals from a district court judgment dismissing his second application for post-conviction relief, arguing the district court committed reversible error by failing to grant an evidentiary hearing to address his claim of ineffective assistance of post-conviction counsel. We affirm, concluding Klose’s claims for post-conviction relief are barred by res judicata and misuse of process, and Klose failed to raise a genuine issue of material fact on his claim of ineffective assistance of post-conviction counsel.

I

[¶ 2] Klose was charged with burglary and with the murder of his neighbor, Raymond Schultes, in March 2001. Klose requested a bifurcated trial, stipulated the State had sufficient evidence to prove he killed Schultes, and waived the portion of the trial relating to the act of killing Schultes, but preserved the right to a trial on his mental state, arguing he lacked criminal responsibility. Although the district court and Klose referred to Klose’s stipulation as an Alford plea, which is a guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a jury trial was held to decide whether Klose lacked criminal responsibility and was guilty of the offenses. Klose has never denied that he killed Schultes.

[¶ 3] The State and Klose agreed that in the early morning hours of March 22, 2001, Klose forced his way into Schultes’ apartment, struggled with Schultes, fired shots from a shotgun, and killed Schultes. The parties disputed the amount of time that passed between Klose’s entry into the apartment and Schultes’ death, whether Klose cleaned up and changed clothes in between forcing his way into Schultes’ apartment and killing Schultes, and whether Klose fired one or two guns during the incident. Klose argued he was suffering from delirium tremens at the time of the killing, he was experiencing hallucinations, and his conduct was the result of either a loss or a serious distortion of his capacity to recognize reality. Klose presented expert testimony supporting his theory. The State claimed that enough time passed between when Klose first forced his way into Schultes’ apartment and when Schultes was killed that Klose was criminally responsible for the murder. The jury convicted Klose of murder, but acquitted him on the burglary charge, finding that he was not criminally responsible.

[¶ 4] Klose appealed his conviction, arguing the district court erred in denying his motion for a mistrial and his motions for a new trial because there was insufficient evidence to sustain his conviction for murder, the district court erred in admitting the State’s exhibits into evidence, the court improperly communicated with the jury, and the court erred in concluding the jury did not render a compromised verdict. In State v. Klose, 2003 ND 39, 657 N.W.2d 276, this Court affirmed Klose’s conviction, concluding the district court did not abuse its discretion in denying Klose’s motion for a mistrial or his motions for a new trial, and there was substantial evidence supporting the jury’s verdict.

[¶ 5] Klose applied for post-conviction relief, arguing his trial counsel was ineffective for failing to introduce evidence Klose believed would have aided his claim that he lacked criminal responsibility. The district court held a two-day evidentiary hearing and denied Klose’s application. Klose appealed, representing himself, and argued his trial counsel was ineffective for not obtaining forensic testing of some of the evidence, for failing to obtain independent testing of a second shotgun the State alleged was fired during the incident, for failing to call witnesses who would have attacked the State’s theory of how long the incident took, and for failing to show and discuss crime scene photos with Klose before trial. In Klose v. State, 2005 ND 192, 705 N.W.2d 809, this Court affirmed the district court’s decision, concluding Klose failed to demonstrate that his counsel’s representation was deficient or that a different result was probable. The review of Klose’s appeal was limited because he failed to provide a copy of the transcript from the evidentiary hearing. Klose also argued he could not afford the cost of providing a transcript, but this Court refused to consider Klose’s claims because he failed to properly preserve or raise the issue. Id. at ¶ 14.

[¶ 6] In November 2006, Klose filed his second application for post-conviction relief. Klose argued his “Alford plea” was a guilty plea, he did not understand he was pleading guilty, and his guilty plea was improperly handled by the district court, trial counsel, and his first post-conviction counsel; his trial counsel and first post-conviction counsel should have reviewed the case photographs with him, called more witnesses, and more effectively questioned the witnesses to support Klose’s argument of how the murder occurred; his trial counsel and first post-conviction counsel should have called more witnesses in support of his claim that he was suffering from delirium tremens at the time of the murder; he should have received a transcript of his first post-conviction evidentia-ry hearing; and his first post-conviction counsel was ineffective for failing to provide appellate representation and for not securing a transcript for the appeal. Klose requested an evidentiary hearing. The State moved for summary disposition and dismissal.

[¶ 7] The district court summarily dismissed Klose’s second application for post-conviction relief. The court concluded Klose’s arguments that his trial counsel was ineffective because he failed to call enough witnesses to disprove the State’s theory of how long the incident took and to support his claim that he was suffering from delirium tremens at the time of the murder were fully and fairly litigated in Klose’s first application for post-conviction relief and dismissed the claims on the grounds of res judicata, and concluded any arguments based upon new witnesses are variations of the arguments made during his first post-conviction application and are a misuse of process. The court ruled Klose did not plead guilty, he only admitted he committed the act and a jury trial was held to determine his guilt; Klose knowingly and voluntarily stipulated to certain factual elements of the offenses; and it is a misuse of process to raise these issues now because they could have been raised in his motions for mistrial and a new trial, in his direct appeal, and in his first application for post-conviction relief. The court also concluded Klose was not entitled to a free transcript for his first post-conviction appeal, Klose did not object to the district court’s decision not to provide a free transcript, it is a misuse of process to raise this argument now because Klose had previous opportunities to raise the issue, and to the extent the issue was raised in previous proceedings Klose’s claim is barred by res judicata. The court concluded Klose’s claim that he was entitled to counsel for his first post-conviction appeal was also a misuse of process because Klose did not request new counsel for his appeal after his post-conviction counsel informed him he would not be working on the appeal and Klose did not explain why he did not develop this claim earlier.

II

[¶ 8] Klose argues he should be allowed to plead and prove all claims that could have been brought during his first post-conviction proceeding because his post-conviction counsel was so ineffective he has not received at least one substantive review of the issues relating to his conviction. Klose argues his first post-conviction counsel was ineffective because he failed to: claim that a manifest injustice had occurred and that trial counsel was ineffective because the trial court failed to substantially comply with N.D.R.Crim.P. 11; claim that a manifest injustice had occurred and that his trial counsel was ineffective because Klose’s guilty plea was not knowing and voluntary, or intelligently made, and Klose did not know or understand what an Alford plea was and did not know or understand that he was pleading guilty to the charge of murder; claim that Klose’s trial counsel failed to review the crime scene photographs with Klose; claim that Klose’s trial counsel failed to effectively cross examine Donald Martin, Klose’s neighbor who was a witness to the incident; claim that Klose’s trial counsel failed to interview and subpoena a specific defense witness, who Klose contends would have testified Klose was still suffering from delirium tremens hours after the murder; cross-examine Martin in the first post-conviction evidentiary hearing; and provide representation and secure a transcript in Klose’s first post-conviction appeal. Klose also argues a manifest injustice occurred when the court failed to provide him with representation and secure a transcript for his first post-conviction appeal.

[¶ 9] A person convicted of and sentenced for a crime may apply for post-conviction relief under N.D.C.C. § 29-32.1-01. A court may summarily dismiss an application for post-conviction relief:

if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We review an appeal from summary denial of post-conviction relief as we would review an appeal from a summary judgment. The party opposing the motion for summary dismissal is entitled to all reasonable inferences to be drawn from the evidence and is entitled to an evidentia-ry hearing if a reasonable inference raises a genuine issue of material fact. For summary judgment purposes, the evi-dentiary assertions of the party opposing the motion are assumed to be true.

Sambursky v. State, 2006 ND 223, ¶ 7, 723 N.W.2d 524 (citations omitted). The moving party has the initial burden of showing an absence of a genuine issue of material fact. Wheeler v. State, 2008 ND 109, ¶ 5, 750 N.W.2d 446. “‘[T]he burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.’ ” Steinbach v. State, 2003 ND 46, ¶ 12, 658 N.W.2d 355 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party “ ‘must not merely ‘respond’ to put a petitioner on its proof; it must show the [district] court it is entitled to judgment as a matter of law in its motion for summary disposition.’ ” Parizek v. State, 2006 ND 61, ¶ 9, 711 N.W.2d 178 (quoting Vandeberg v. State, 2003 ND 71, ¶ 7, 660 N.W.2d 568). If the moving party shows an absence of an issue of material fact, the burden shifts to the opposing party to show the existence of a factual issue. Wheeler, at ¶ 5. “ ‘The party opposing the motion may not merely rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.’ ” Id. (quoting Owens v. State, 1998 ND 106, ¶ 13, 578 N.W.2d 542). While summary dismissal generally is not appropriate for post-conviction claims of ineffective assistance of counsel because an evidentiary hearing is required to develop the record, summary dismissal will remain appropriate if the petitioner does not raise a genuine issue of material fact. Dunn v. State, 2006 ND 26, ¶ 12, 709 N.W.2d 1.

[¶ 10] Section 29-32.1-12, N.D.C.C., provides the State may claim the affirmative defenses of res judicata and misuse of process as grounds for denial of a post-conviction application:

1. An application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding.
2. A court may deny relief on the ground of misuse of process. Process is misused when the applicant:
a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding; or
b. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.

A misuse of process occurs:

(1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings; and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application.

St Claire v. State, 2002 ND 10, ¶ 13, 638 N.W.2d 39 (quoting Clark v. State, 1999 ND 78, ¶ 23, 593 N.W.2d 329) (citations omitted). Raising an issue in a second post-conviction application that could have been raised in a prior post-conviction proceeding or other proceeding is a misuse of process. St. Claire, at ¶ 13. “A defendant is not entitled to post-conviction relief if the contentions raised are simply variations of previous arguments.” Id. The defendant must raise a new issue, such as the discovery of new evidence, or his application for post-conviction relief may be denied. See id. “Generally, the applicability of res judicata is a question of law and is fully reviewable on appeal.” Steen v. State, 2007 ND 123, ¶ 13, 736 N.W.2d 457.

[¶ 11] The district court dismissed Klose’s application, concluding his claims were barred on the grounds of res judicata and misuse of process. The court said the ineffective assistance of counsel claims should have been fully attacked in the first application for post-conviction relief and some of Klose’s allegations had already been litigated.

[¶ 12] While “ ‘finality’ must not sacrifice a criminal defendant’s opportunity to have at least one substantive review of issues relating to a convicüon[,] ... [w]e will not weaken the integrity of our criminal justice system by allowing manipulation, or other subterfuge, under the guise of a post-conviction application.” Clark v. State, 1999 ND 78, ¶¶ 21-22, 593 N.W.2d 329. Klose’s arguments relating to his ineffective assistance of trial counsel claim could have been raised in previous proceedings, it is a misuse of process to raise them now, and to the extent those arguments were raised in previous proceedings they are barred by res judicata. However, Klose argues he should not be precluded from bringing these claims because he did not inexcusably fail to raise these issues in prior proceedings, but rather did not raise the issues because his first post-conviction counsel was ineffective, and therefore he has not received at least one substantive review of the issues relating to his conviction.

[¶ 13] Whether counsel is ineffective is a mixed question of fact and law, which is fully reviewable on appeal. Klose, 2005 ND 192, ¶ 10, 705 N.W.2d 809. This Court has recognized a petitioner may claim ineffective assistance of post-conviction counsel. Johnson v. State, 2004 ND 130, ¶ 17, 681 N.W.2d 769. The standard for ineffective assistance of counsel claims developed in Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), also applies to claims of ineffective assistance of post-conviction counsel, and therefore Klose must show his counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced him. See Johnson, at ¶ 17. To avoid summary dismissal of an ineffective assistance of counsel claim, the post-conviction applicant must present some evidence that his counsel’s performance fell below an objective standard of reasonableness, and he must overcome the presumption that his counsel’s performance was within the broad range of reasonableness. Sambursky, 2006 ND 223, ¶ 14, 723 N.W.2d 524. “To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different, and the defendant must specify how and where counsel was incompetent and the probable different result.” Steen, 2007 ND 123, ¶ 19, 736 N.W.2d 457.

[¶ 14] The State moved for summary dismissal, and had the burden of proving there was no genuine issue of material fact; however, the State presented evidence supporting its motion and established there were no factual issues, and therefore the burden shifted to Klose to present competent admissible evidence raising an issue of material fact. Klose’s response included a recitation of his arguments and a reference to his petition for post-conviction relief, but he failed to present any evidence supporting his claims and raising an issue of material fact that his post-conviction counsel’s representation fell below an objective standard of reasonableness or that a different result was probable.

A

[¶ 15] Klose argues his “Alford plea” for the murder and burglary charges was a guilty plea, he did not understand that he was pleading guilty, and the district court did not follow the procedures required by N.D.R.Crim.P. 11 when it accepted his plea. These issues could have been raised in previous proceedings, and it is a misuse of process to raise them in the second application for post-conviction relief. See Johnson, 2004 ND 130, ¶ 13, 681 N.W.2d 769. However, to the extent these issues are raised as part of the argument that Klose’s post-conviction counsel was ineffective, the arguments are without merit.

[¶ 16] While Klose’s admission was referred to as an Alford guilty plea, Klose did not plead guilty, but only stipulated to certain factual elements of the offenses. See United States v. Miller, 588 F.2d 1256, 1263-64 (9th Cir.1978) (stipulation to underlying facts is not a guilty plea); United States v. Lawriw, 568 F.2d 98, n. 13 (8th Cir.1977) (stipulation to facts, even a stipulation tending to establish a party’s guilt, is not a guilty plea); United States v. Brown, 428 F.2d 1100, 1102-03 (D.C.Cir.1970) (a stipulation that the defendant committed the act, but reserving mental issue, is not a guilty plea). An Alford plea is a final plea of guilty, and ‘[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.’ ” State v. Storbakken, 246 N.W.2d 78, 82 (N.D.1976) (quoting Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). After Klose’s stipulation, a jury trial was held to determine his guilt, and he was acquitted of the burglary charge and convicted of murder. Klose stipulated to the factual elements necessary to prove his guilt, but preserved the right to argue he was not guilty because he lacked criminal responsibility. We conclude Klose did not plead guilty.

[¶ 17] Moreover, even if Klose was confused about how his case was proceeding, he has not explained how his trial counsel and post-conviction counsel were ineffective for failing to raise this issue. Klose does not deny committing the murder, he only claims he was not criminally responsible for his actions. He received a jury trial to determine whether he was criminally responsible, and he has failed to explain how the result of the proceedings would have been different absent his counsels’ alleged errors.

[¶ 18] Klose argues it was improper for the district court to tell the jury, “The defendant has entered an Alford Guilty Plea to murder and burglary as charged in the Criminal Informations.” Klose did not object to the court’s statement to the jury. Although Klose claims the jury was confused by this comment and we agree the comment was improper, the court did instruct the jury that the purpose of the trial was to determine whether Klose was criminally responsible when he committed the crimes. It is clear the jury was not confused about Klose’s guilt because the jury found he was not guilty of burglary, showing they understood the court’s instructions and did not believe Klose had already plead guilty to the crimes. Klose was not prejudiced by the court’s statement.

[¶ 19] Klose argues the court did not comply with N.D.R.Crim.P. 11 when it accepted his stipulation. When a court accepts a guilty plea, under N.D.R.Crim.P. 11(b), it must advise the defendant of certain rights and must ensure the plea is voluntary, which includes inquiring whether the plea was the result of force, threats, or promises apart from a plea agreement. The court must substantially comply with N.D.R.Crim.P. 11(b) when it accepts a guilty plea. Bay v. State, 2003 ND 183, ¶ 9, 672 N.W.2d 270.

[¶ 20] While we have concluded Klose did not plead guilty, we need not decide whether the district court was required to apply the N.D.R.Crim.P. 11(b) requirements in accepting Klose’s stipulation or whether another procedure must be followed when a court accepts a stipulation to all or most of the factual elements necessary to prove guilt, because even if Klose’s stipulation was a guilty plea, the court substantially complied with N.D.R.Crim.P. 11(b). The district court questioned Klose about his admission and whether it was voluntary:

THE COURT: Now I’m going to ask you a series of questions to make sure that your two guilty pleas, the Alfred [sic] pleas, have been entered voluntarily. Are you now under the influence of alcohol or narcotics?
MR. KLOSE: No, sir.
THE COURT: Have any promises been made to you by the State’s Attorney’s Office to make you plead guilty?
MR. KLOSE: No, sir.
THE COURT: Is [sic] anyone threatened you to make you plead guilty?
MR. KLOSE: No, sir.
THE COURT: Do you understand the nature of the charge against you and the possible maximum punishment for each?
MR. KLOSE: Yes, sir.
THE COURT: Do you understand that you have a right to plead not guilty?
MR. KLOSE: Yes, sir.
THE COURT: Do you understand that by pleading guilty, you waive your right to a trial which includes your right to a jury trial, and your right to confront adverse witnesses?
MR. KLOSE: Yes, sir.

The court found Klose’s stipulation was knowing and voluntary. We conclude the court substantially complied with N.D.R.Crim.P. 11(b), and Klose’s trial counsel and post-conviction counsel were not ineffective for failing to raise this issue in previous proceedings.

B

[¶ 21] Klose argues he should have had access to crime scene photographs because he would have been able to explain the sequence of events during the murder more effectively, his trial counsel was ineffective for not discussing the photographs with him, and his post-conviction counsel was ineffective for failing to raise this issue in his first application for post-conviction relief. Klose raised this issue during his first post-conviction appeal; however, this Court refused to address the issue because Klose raised it for the first time on appeal and he did not explain how his counsel’s failure to provide him with the photographs constituted ineffective assistance. Klose now claims he could have explained to his trial counsel what the photographs represented, the photographs would have refreshed his memory, and he could have more accurately explained what happened during the murder if he had access to the photographs before trial. There was testimony at trial about Klose’s theory of how the murder occurred, and there is no evidence that if Klose had been shown the photographs before trial it would have refreshed his memory or aided his defense. Klose has failed to establish his trial counsel was deficient for not discussing the photographs with him before trial and his post-conviction counsel was deficient for not raising the issue, and that it is probable a different result would have been obtained if his counsel had not performed incompetently as he alleges.

C

[¶ 22] Klose argues his trial counsel and post-conviction counsel were ineffective because they did not cross examine Donald Martin about Martin’s initial statements to law enforcement regarding how the murder occurred. Martin testified at trial and at the post-conviction evi-dentiary hearing about the murder, and his testimony supported the State’s theory of how the murder occurred. Klose also claims his trial counsel was ineffective for failing to call a witness who could testify Klose was suffering from delirium tremens following the murder. Klose made similar arguments about other witnesses in his first post-conviction application, some of whom testified at the evidentiary hearing for his previous post-conviction application. Klose did not present affidavits from either witness supporting his current claims. It is a misuse of process to raise these issues now because they are variations of arguments that were previously made and failed, and furthermore, Klose failed to provide any evidence supporting his assertions and raising an issue of material fact. We conclude summary dismissal was appropriate.

D

[¶ 23] Klose argues his post-conviction counsel was ineffective for failing to represent him on appeal or secure a transcript for the appeal, and he suffered a manifest injustice because the district court failed to provide counsel and secure a transcript for his appeal.

[¶ 24] “The appointment of post-conviction counsel is not a matter of right, but rather a matter of trial court discretion.” Heyen v. State, 2001 ND 126, ¶ 17, 630 N.W.2d 56. Klose was initially represented by counsel during post-conviction proceedings, but after the district court denied his application for post-conviction relief his attorney informed him that he would not continue to represent Klose on appeal. While Klose had requested court appointed counsel in the past and was familiar with the process to secure court appointed counsel, Klose did not request the district court appoint new counsel, and there was evidence Klose’s decision to represent himself during his first post-conviction appeal was part of his appellate strategy. We conclude Klose’s post-conviction counsel was not ineffective and the district court did not err in failing to provide Klose with counsel for his appeal.

[¶ 25] Similarly, post-conviction applicants are not entitled to a free transcript for an appeal, and the district court has discretion in deciding an indigent applicant’s request for a transcript. Owens, 1998 ND 106, ¶ 33, 578 N.W.2d 542. Klose requested a transcript of the post-conviction evidentiary hearing and the district court denied his request and required him to pay half the cost of the transcript before it would be produced. Klose did not object to the court’s decision or raise the issue in his first appeal. Klose had a duty to provide a transcript on appeal. N.D.R.App.P. 10(b). When an appellant represents himself and fails to provide a transcript on appeal, he assumes the risks and consequences of his failure. State v. Hilgers, 2004 ND 160, ¶ 19, 685 N.W.2d 109. While Klose may have benefitted from having a transcript and this Court’s review was limited because he did not have a transcript, Klose chose to represent himself, and pro se litigants will not receive leniency simply because they choose to represent themselves. See id. Klose cannot argue he received ineffective assistance of post-conviction counsel on appeal because he represented himself. See Steen, 2007 ND 123, ¶ 18, 736 N.W.2d 457 (self-representation waives ineffective assistance of counsel claims). Klose’s post-conviction counsel was no longer representing him, and the attorney was not ineffective for failing to secure a transcript for the appeal. We conclude Klose’s post-conviction counsel was not ineffective for faihng to represent him on appeal or for failing to secure a transcript, and Klose did not suffer a manifest injustice.

Ill

[¶ 26] Klose has failed to raise an issue of material fact that his first post-conviction counsel’s representation fell below an objective standard of reasonableness and that the result of the proceeding would have been different absent his counsel’s deficient performance. We affirm the district court’s judgment dismissing Klose’s second post-conviction application.

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