author: PER CURIAM.

text:
    2001 SD 105
    The PEOPLE of the State of South Dakota in the Interest of S.G.V.E. and A.G.V.E., Minor Children, and Concerning G.G.V.E., Respondent.
    No. 21839.
    Supreme Court of South Dakota.
    Considered on Briefs July 26, 2001.
    Decided Aug. 15, 2001.

      Mark Barnett, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, for appellee State of South Dakota.
    Nancy Manning, Rapid City, for appellant G.G.V.E., Mother.
    John Murphy, Rapid City, SD, Attorney for appellees S.G.V.E. and A.G.V.E., Children.
   PER CURIAM.

[¶ 1.] Mother, an enrolled member in the Oglala Sioux Tribe, appeals from the termination order involving her daughters, raising jurisdictional issues and questions regarding least restrictive alternative and the children’s best interests. The Indian Child Welfare Act (ICWA) applies to this case. We affirm.

FACTS AND PROCEDURE

[¶ 2.] A.G.V.E., the eldest daughter, and S.G.V.E., the youngest daughter, were born June 30, 1989, and August 22, 1990, respectively, and are presently ages 12 and 10. They moved with Mother from the Pine Ridge Indian Reservation to Rapid City on October 7, 1999. Until then, they lived on the reservation. On October 18, the Rapid City police and a Department of Social Services (DSS) worker responded to a report of domestic violence at Mother’s residence. They found two intoxicated adults (Mother’s sister and her boyfriend) and three children present. It was learned that three adults and five children lived in the home, though Mother told her landlord two adults and two children would be living there. The only furniture within was a single air mattress. The only food found was milk, ketchup and two frozen breakfast burritos. There were no plates, silverware or cooking utensils. The only other items found in the home were a sack of empty beer cans and an empty liquor bottle. The children had not attended school that day and had head lice. Mother arrived home at this time, intoxicated, with the children, and was arrested for nonsupport. The children were taken into DSS temporary custody and an abuse and neglect petition was filed October 22, 1999.

[¶ 3.] Mother is an alcoholic. In January 1997, the Oglala Sioux Tribe removed her children from her care due to problems related to her drinking and the abuse and neglect of her children. DSS began working with Mother on the Pine Ridge Indian Reservation at this time. The tribe returned the children to Mother’s custody sixteen months later, in May 1998, after Mother completed alcohol treatment. Mother has had periods of sobriety as well as relapses into alcohol use. Mother began drinking again shortly after her children were returned to her.

[¶ 4.] Mother has also involved herself with men who are violent and who have physically abused her. She has been involved with three such men during the children’s lifetimes.

[¶ 5.] After the abuse and neglect petition was filed October 22, 1999, notice was sent by certified mail to the Oglala Nation Tiospaye Resource and Advocacy Center (ONTRAC), the Oglala Sioux Tribal Court, the Aberdeen Area Director of the Bureau of Indian Affairs, and the Secretary of the Interior. This mail was received and signed for by individuals within these agencies on October 27, 1999, October 27, 1999, October 28, 1999 and October 29, 1999, respectively. Notices of subsequent hearings in this matter were also sent by certified mail and signed receipts in the record indicate receipt by these four agencies.

[¶ 6.] On November 12, 1999, DSS met with Mother and they signed a Family Service Agreement (FSA) which required that Mother: 1) visit her children weekly; 2) obtain a chemical dependency evaluation and follow its recommendations; 3) complete a parenting course; 4) obtain a domestic violence evaluation and follow its recommendations; and 5) obtain suitable housing. An updated FSA, requiring a psychological evaluation requested by Mother’s attorney, was signed January 3, 2000.

[¶ 7.] Mother was arrested and jailed in Pine Ridge for an outstanding warrant involving child neglect and open intoxication. Her advisory hearing, scheduled for November 9, 1999, was continued due to her incarceration. At the February 7, 2000 advisory hearing, Mother appeared with her attorney and admitted the allegations in the abuse and neglect petition. Mother was court-ordered to cooperate with DSS and warned by the court that she had nine months to “straighten her act out” or her parental rights would be terminated.

[¶ 8.] DSS attempted to locate family and tribal member placements for the children. Father was contacted in this regard. Ultimately, his parental rights were terminated August 9, 2000; this decision was not appealed.

[¶ 9.] Mother did not complete the requirements of her FSA. She lived in motels and did not obtain suitable housing. DSS was unaware of her whereabouts at various times during the pendency of these proceedings. She failed to obtain employment and missed appointments and some visits with her children. Mother was admonished and warned again by the trial court at an April 3, 2000 review hearing. She failed to keep her appointment for the scheduled psychological evaluation and did not complete this requirement. Mother obtained a chemical dependency evaluation and was recommended to complete an intensive outpatient treatment program, attend two Alcoholics Anonymous (AA) meetings weekly and seek a sponsor, and follow aftercare recommendations. Mother did not follow these recommendations. She admitted drinking in January or February of 2000 and was dropped from her aftercare program for non-attendance. She attended AA meetings in June and July 2000 only after the trial court ordered her to do so. She completed a domestic violence evaluation after a delay of several months and rescheduling, but failed to attend the recommended support group meetings though she was also court-ordered to do so. At a June 27, 2000 review hearing, when it became clear that Mother had not made an effort to obtain suitable housing and showed little motivation toward completing other FSA requirements, the court again issued stern warnings to Mother to attend to these tasks.

[¶ 10.] Mother, according to her attorney and as evidenced by the record, “passively resisted” all attempts by DSS to assist her in addressing the problems which caused her to lose custody of her children. This resulted in her attorney’s request to amend the FSA to require a psychological evaluation of Mother. As indicated, she failed to keep her appointment and never obtained this evaluation. Her missed visits with her children caused them to write her letters, included in the record, expressing their hurt and anger and refusing to accept fault for her lack of responsibility.

[¶ 11.] In August 2000, Mother moved back to the Pine Ridge Indian Reservation and lived with her father. She would later testify she moved back in an attempt to use ICWA to keep from having her parental rights terminated. On August 24, Mother told her younger daughter that she met someone and was getting married. Older daughter expressed concern to a DSS worker that Mother’s new boyfriend would beat Mother. Despite assuring her children she would not marry until they were living with her on the reservation, Mother married her new boyfriend in September of 2000. Mother admitted this was “quick” and that she often focuses more on the men in her life and places her children “last instead of first.” The children do not know Mother’s new husband. Efforts by DSS to get Mother and children admitted into an inpatient treatment program on the reservation were rejected by Mother in part because it would require her to be away from her new husband.

[¶ 12.] Mother’s parental rights were terminated at a final dispositional hearing October 13, 2000. Her request for a continuance was denied. Following filing of this order, Mother’s attorney advised the court that Mother’s filed objections to the State’s proposed findings of fact and conclusions of law had included jurisdictional issues. An evidentiary hearing on those issues was scheduled for December 21, 2000 and the October 13, 2000 order was vacated for the limited purpose of determining the jurisdiction of the Oglala Sioux Tribe.

[¶ 13.] The tribe filed a motion to transfer jurisdiction and dismiss the case on December 20. It prayed the state court would give full faith and credit to the tribal court’s December 18, 2000 order accepting jurisdiction of the matter. This motion was filed under the concurrent jurisdiction provision of § 1911(b) of ICWA but the state court permitted oral amendment of the motion to be filed under the exclusive jurisdiction provision of § 1911(a) of ICWA.

[¶ 14.] At the December 21 evidentiary hearing, the state court determined the tribe did not have exclusive jurisdiction. The court further determined that although the tribal court had concurrent jurisdiction, good cause was shown for denying its motion to transfer due to the advanced stage of the proceedings at which the tribe made its request.

[¶ 15.] On January 16, 2001, the court filed its final dispositional order and findings of fact and conclusions of law which denied the tribe’s motion to transfer and reinstated the court’s previous order terminating Mother’s parental rights. Mother appeals.

ANALYSIS AND DECISION

[¶ 16.] 1. Whether the trial court erred in finding that the Oglala Sioux Tribe did not have exclusive jurisdiction of this matter.

[¶ 17.] Section 1911(a) of ICWA provides that the tribe has exclusive jurisdiction if: 1) the Indian child resides on the reservation; 2) the Indian child is domiciled on the reservation; or 3) the Indian child is a ward of the tribal court. Mother asserts jurisdiction based on the second and third provisions of this section.

A. Domicile

[¶ 18.] In In re G.R.F., 1997 SD 112, 569 N.W.2d 29, we held that jurisdiction under ICWA is established as of the date the action is filed. Id. at ¶ 19, 569 N.W.2d at 34 (citing Spear v. McDermott, 121 N.M. 609, 916 P.2d 228, 234 (N.M.Ct.App.1996)); see also In re Adoption of Halloway, 732 P.2d 962, 966 (Utah 1986) (“The propriety of the trial court’s assumption of jurisdiction turns on [the child’s] domicile at the time these proceedings were initiated.”). In the present case, the significant date is October 22, 1999, the date the abuse and neglect petition was filed. On this date, Mother and children were living in Rapid City.

[¶ 19.] The United States Supreme Court has held, in a case applying ICWA, that “domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29, 46 (1989). “Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents.” Id., 490 U.S. at 46, 109 S.Ct. at 1607, 104 L.Ed.2d 29.

[¶ 20.] Physical presence is established in Rapid City. The following evidence was presented as to Mother’s state of mind concerning her intent to remain in Rapid City with her children: Mother vacated her residence on the reservation on October 7 and moved to Rapid City, leasing a residence there; Mother enrolled the children in the Rapid City school system; Mother transferred her food stamp/TANF case to Rapid City and informed her caseworker she did not have to complete community service requirements on the reservation because she had moved to Rapid City; and in November, Mother moved her remaining personal belongings to Rapid City. She testified her intent in moving was to see if the children would receive a better education in Rapid City. There is no indication by Mother’s actions or statements of an intent that the move was temporary.

[¶ 21.] Although Mother cites to the number of years she lived on the reservation prior to her October 7, 1999 move to Rapid City, the fact remains that she did move, leaving her reservation residence and giving no indication of an intent to return.

B. Wards of the tribal court

[¶ 22.] Although she testified to the contrary at the December 2000 eviden-tiary hearing, Mother claims on appeal that her children remained wards of the tribal court following that court’s return of her children to her in May 1998. The tribal court’s order dated May 7, 1998 was a trial ■ exhibit and is part of the settled record of this case. In no way does it appear to be anything other than a final order, returning custody to Mother, finding her home is no longer contrary to the best interests of the children, and releasing DSS from service and ordering that the case be closed. There is no reference to continuing jurisdiction over these children. This order stands in contrast to the temporary custody order of a tribal court we examined in In re D.L.L., 291 N.W.2d 278, 282 (S.D.1980) and held to be a continuing order. Mother’s reliance on that case is misplaced.

[¶ 23.] As the children were not wards of the tribal court and were not domiciled on the reservation at the time these proceedings were initiated, the state trial court did not err in finding that the tribal court did not have exclusive jurisdiction.

[¶ 24.] 2. Whether the trial court abused its discretion in denying the Og-lala Sioux Tribe’s motion to transfer jurisdiction to the tribe.

[¶ 25.] The trial court found that although there was concurrent jurisdiction between the state and tribal courts, there was good cause to deny the tribe’s motion to transfer jurisdiction to the tribe because of the advanced stage of the proceedings at the time the tribe filed its motion. By this date, December 20, 2000, the case had already been pending for fourteen months and Mother’s parental rights had actually been terminated for over two months. The tribe had had notice of these proceedings since the beginning of this case, in October 1999. No explanation was offered in its motion to transfer to explain why it waited until this case had been disposed of by final order before requesting the transfer.

[¶ 26.] In In re A.L., 442 N.W.2d 233 (S.D.1989), we quoted BIA guidelines on the issue of what constituted good cause not to transfer, noting that ICWA does not provide a statutory definition of “good cause:”

Good cause not to transfer the proceeding may exist if any of the following circumstances exists:
(i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.
44 FedReg at 67591. The timeliness of a petition language is ‘designed to encourage the prompt exercise of the right to petition for transfer in order to avoid unnecessary delays.’

Id. at 236. “The legislative history of the ICWA states that the term was designed to provide state courts with flexibility in determining the disposition of a placement proceeding involving an Indian child.” Id. at 235 (citing SRep No.597, 95th Cong., IstSess. 17 (1977)).

[¶ 27.] In A.L., we held that notice by certified mail to the tribe constituted substantial compliance with ICWA notice requirements and that the tribe had actual notice one year before it requested transfer. We held the transfer request in that case was untimely. In In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333 (N.M.Ct.App.1988), cited in A.L., a motion for transfer filed six months after notice was received by the tribe, and on the morning of the hearing to determine parental rights, was held to be untimely. “[W]hether a petition is timely must be made on a case-by-case basis.” A.L., 442 N.W.2d at 236. In neither of these cases had the action proceeded to the stage in this case, the entering of a final dispositional order by the court.

[¶ 28.] The trial court did not abuse its discretion in denying, for good cause, to transfer this matter to the tribal court where the motion to transfer was filed fourteen months after the tribe received notice and over two months after a final dispositional order had been entered terminating Mother’s parental rights.

[¶ 29.] 3. Whether the trial court erred in finding beyond a reasonable doubt that serious emotional or physical damage would likely result if the children were returned to Mother.

[¶ 30.] During the pendency of these proceedings, the children were placed in five different foster homes due to their behaviors. The younger child cries easily and has frequent tantrums. She has a stealing problem and admitted to having two imaginary friends she can call upon whenever she wants. The older daughter is intolerant of others, refuses to apologize for anything, and tries to get others in trouble. One foster parent noted she does not seem to have an emotional connection with anyone and relationships are only superficial. Both girls have had hurtful arguments with one another and have disowned each other as sisters, deciding they do not wish to live together.

[¶ 31.] Psychological evaluations on both children were completed and they were found to have serious psychological symptoms and were diagnosed with major depression. These symptoms and diagnoses were determined to be consistent with an impoverished early childhood. The younger daughter, harbors a “very negative, angry attitude toward the environment” while the older daughter is detached and represses her emotions. Both conditions were considered chronic and significantly impacted the girls’ psychological functioning. Testimony was presented that both children would benefit from a stable environment. As the conditions which led to their removal continued to exist due to Mother’s failure to complete FSA requirements and put her children’s interests ahead of her own, the trial court did not err in finding beyond a reasonable doubt that serious emotional or physical damage would likely result if the children were returned to Mother.

[¶ 32.] 4. Whether the trial court erred in finding beyond a reasonable doubt that termination of Mother’s parental rights was the least restrictive alternative and in the children’s best interests.

[¶ 33.] We have always recognized that the needs of the children are paramount and that their best interests must prevail. In re A.H., 421 N.W.2d 71 (S.D.1988); In re R.Z.F., 284 N.W.2d 879 (S.D.1979). Mother had fourteen months to put her children’s best interests first. She admitted at the final dispositional hearing that she often put their needs last. She demonstrated this a month before the court terminated her parental rights by marrying a man her children did not know after promising them she would wait until they were together again. She did not tell DSS she was married. She did not comply with the requirements of her FSA despite the court’s repeated warnings, admonitions and orders to do so. In short, there is no indication that the situation existing at the time the children were removed from Mother’s custody had been alleviated or that Mother was interested in making the permanent changes necessary for her children to be returned.

[¶ 34.] The termination order is affirmed.

[¶ 35.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.

      . The State notified ONTRAC, the Oglala Sioux Tribe's ICWA compliance office, by certified mail that was signed for as received, nine different times regarding various proceedings in this action. Each of the other agencies, except for the Secretary of the Interior, was also notified nine times. The Secretary of the Interior received seven notices.

      . Mother informed DSS that she and Father have an older child, not part of this appeal, who lives with Father on the reservation.

      . The result is the same if we determine the effective date to be October 19, 1999, the date the order granting temporary custody to DSS was entered.

      . Here, too, the notice requirement of ICWA was met by the tribe’s having actual notice through certified mail, though there is no evidence it received registered notice.

      . One of these moves was an administrative decision by DSS and not due to the girls’ behaviors.


source: Caselaw Access Project

author: MILLER, Chief Justice.

license: Public Domain

text:
    2001 SD 113
    KWONGYUEN HANGKEE COMPANY, LTD., Petitioner and Appellee, v. STARR FIREWORKS, INC., a/k/a Starr Fireworks, Respondent and Appellant.
    No. 21674.
    Supreme Court of South Dakota.
    Argued April 25, 2001.
    Decided Aug. 29, 2001.
    Ronald A. Parsons, Jr., Scott N. Heide-priem of Johnson, Heidepriem, Miner, Marlow and Janklow, and Marc W. Tobias, Sioux Falls, SD, Attorneys for petitioner and appellee.
    Erich K. Johnke, Timothy L. James of James & Associates, Yankton, SD, Attorneys for respondent and appellant.
   MILLER, Chief Justice.

[¶ 1.] Starr Fireworks appeals the circuit court’s decision to recognize and enforce a Hong Kong judgment. We hold that the Hong Kong judgment is recognizable and enforceable under the doctrine of comity.

FACTS

[¶ 2.] Kwongyuen Hangkee Company, Limited, sued Starr Fireworks in the High Court of the Hong Kong Special Administrative Region, Court of First Instance for failure to pay for shipments of fireworks sent from December 1991 through March 1992. Although the disputé arose while Hong Kong was a sovereign under the British Crown, Hangkee filed suit after Hong Kong had reverted to communist Chinese rule. Starr Fireworks retained counsel in Hong Kong to defend against the claim.

[¶ 3.] Before the hearing in the Hong Kong tribunal, the chief witness, Mr. Sam Lau, who was the director of Hangkee in Seattle, Washington and Starr’s sole contact with Hangkee, died in a murder/suicide. Without the testimony of Mr. Lau, who had extensive knowledge of the dispute between his company and Starr, the majority of the evidence the Hong Kong tribunal received was in the form of affidavits. Based on the affidavits, the Hong Kong tribunal awarded Hangkee $98,438.45 plus interest on June 14, 1999. Starr did not appeal this decision.

[¶ 4.] In April 2000, Hangkee attempted to enforce the Hong Kong judgment in South Dakota through a Petition for Registration and Enforcement of Foreign Judgments. Starr’s motion to strike the petition was denied. The trial court decided to recognize and enforce the judgment in South Dakota based on the common-law doctrine of international comity. Starr appeals.

STANDARD OF REVIEW

[¶ 5.] This is a case of first impression in South Dakota. This Court has never considered whether to recognize and enforce a judgment obtained in a foreign nation. It presents a question of law, which is reviewed de novo.

DECISION

[¶ 6.] 1. The common-law doctrine of comity applies to foreign nation judgments.

[¶ 7.] This Court has long recognized the doctrine of comity in the area of sister state judgments. Knittle v. Ellenbusch, 38 S.D. 22, 159 N.W. 893 (1916) (Nebraska bulk sale law); Emerson-Brantingham, Imp. Co. v. Ainslie, 38 S.D. 472, 161 N.W. 1001 (1917) (Wyoming mortgage). In 1975, SDCL chapter 15-16A, “Enforcement of Foreign Judgments,” codified the full faith and credit between sister states demanded by Article IV of the United States Constitution and the comity principles it embodies. Hangkee now urges this Court to extend the common-law doctrine of comity to the judgment of a foreign nation. South Dakota has no statutes that address the recognition and enforcement of a foreign nation judgment, thus the rules of the common-law are in force. SDCL 1-1-24.

[¶ 8.] The United States Supreme Court has recognized comity as:

The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call ‘the comity of nations.’ Although the phrase has been often criticized, no satisfactory substitute has been suggested.
‘Comity,’ in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

Hilton v. Guyot, 159 U.S. 113, 163-64, 16 S.Ct. 139, 143, 40 L.Ed. 95, 108 (1895). We further quoted the Hilton court’s specification of requirements, which must precede the application of the doctrine of comity:

[W]e are satisfied that where there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under, a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact.

Hilton, 159 U.S. at 202-03, 16 S.Ct. at 158, 40 L.Ed. at 122. These conditions have developed into four factors courts consider when deciding whether to enforce and recognize a foreign nation judgment. Id. The four factors are:

(1) the foreign court actually had jurisdiction over both the subject matter and the parties;
(2) the decree was not obtained fraudulently;
(3) the decree was rendered by a system of law reasonably assuring the requisites of an impartial administration of justice — due notice and a hearing; and
(4) the judgment did not contravene the public policy of the jurisdiction in which it is relied upon.

Id.

[¶ 9.] Additionally, we note that thirty-one jurisdictions to date have adopted the Uniform Foreign Money-Judgment Recognition Act, which is a codification of the common-law doctrine of comity applied to foreign nation money judgments. Unif. For. Money-Judgm. Recognition Act, 13 ULA 89 (Supp 2000) (Table of Jurisdictions Wherein Act Has Been Adopted). Furthermore, states where the uniform act is not codified employ the principles of comity when deciding whether to enforce the judgment of a foreign nation. Mississippi Department of Human Svcs. v. Shelnut, 772 So.2d 1041 (Miss.2000) (recognizing that state law and the principles of comity govern the enforcement of a foreign judgment); Davidson & Co., Ltd. v. Allen, 89 Nev. 126, 508 P.2d 6 (1973) (utilizing the principles of comity involving an attempt to enforce Canadian default judgment in Nevada). In the absence of statutory guidance by the South Dakota Legislature, we are persuaded that we should employ the doctrine of comity to determine whether to enforce a foreign nation judgment.

[¶ 10.] 2. The Hong Kong judgment is recognizable and enforceable.

[¶ 11.]- Under the first factor, Starr argues that no evidence exists indicating that the Hong Kong tribunal had subject matter jurisdiction and personal jurisdiction over Starr. As Hangkee points out, this ignores the facts of this case. We previously noted that Starr retained Hong Kong counsel in order to defend the action. According to Hangkee, Starr raised the jurisdictional claim to the Hong Kong tribunal, which rejected it. Starr does not deny this. Furthermore, Starr fully participated in the Hong Kong proceedings including a hearing and submission of evidence. Starr did not appeal the Hong Kong tribunal’s jurisdictional decision or its judgment in favor of Hangkee. Furthermore, the evidence indicates that the High Court of the Hong Kong Special Administrative Region, Court of First Instance, has unlimited civil and criminal jurisdiction and applies both common-law and equity. PETER WESLEY-SMITH, AN INTRODUCTION TO THE HONG KONG LEGAL SYSTEM 69 (Oxford Univ. Press, 3d ed., 1998).

[¶ 12.] The second factor requires this Court to examine whether the judgment was obtained fraudulently. The evidence does not indicate any fraud. Hangkee sued Starr on its delinquent account and provided invoices, among other evidence, as proof. Most importantly, Starr specifically agrees the judgment was not obtained fraudulently and thus no further analysis is needed.

[¶ 13.] The third factor inquires whether the foreign system of law reasonably provides for the impartial administration of justice. As noted under the first factor, Starr fully participated in a hearing before the Hong Kong tribunal after due notice, which is contained in this record. Additionally, the Hong Kong system of law follows English legal procedure, which courts have accepted as comporting with due process rights. Manches & Co. v. Gilbey, 419 Mass. 414, 646 N.E.2d 86, 87 (1995); Dart v. Dart, 224 Mich.App. 146, 568 N.W.2d 353, 358 (1997). Although Hong Kong reverted to communist Chinese rule in 1997, Starr’s attempt to cast doubt on Hong Kong’s system of law fails for two reasons under the undisputed facts of this case.

[¶ 14.] First, Starr was given due notice and fully participated in the Hong Kong legal proceeding and did not appeal from the adverse judgment. Its argument that Hong Kong does not provide impartial administration of justice, based on legal commentators’ arguments, is without merit. Starr fully participated in the Hong Kong legal proceedings, suffered an adverse judgment, did not appeal and now alleges the Hong Kong system of law is dubious. This directly contradicts the fact that Starr was provided with due notice and a full opportunity to develop its case at a hearing.

[¶ 15.] Second, regardless of Hong Kong’s reversion to communist Chinese rule, China agreed that it would not affect Hong Kong’s capitalist way of life, including its English system of law, for fifty years. Besides legal commentators’ opinions, Starr offers no substantive evidence to show that Hong Kong’s system of law fails to provide for the impartial administration of justice. In fact, all the evidence indicates that the Hong Kong tribunal did provide for the impartial administration of justice in this case.

[¶ 16.] The last factor examines whether the judgment contravenes the public policy of the forum asked to enforce it. Hangkee points out that collection of a delinquent bill does not contravene any public policy of South Dakota. We agree.

[¶ 17.] Affirmed.

[¶ 18.] SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.


text:
    John Francis ANDERSON, Appellant, v. SECRETARY OF STATE OF The State OF IOWA, Appellee.
    No. 99-1170.
    Supreme Court of Iowa.
    Sept. 6, 2001.
    Rehearing Denied Oct. 3, 2001.
    John F. Anderson, Des Moines, pro se.
    Thomas J. Miller, Attorney General, and Christie J. Scase, Assistant Attorney General, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   PER CURIAM.

John Francis Anderson, a citizen seeking declaratory, injunctive, and mandamus relief to compel the Iowa Secretary of State to place initiative and referendum issues on the general election ballot, appeals from a denial of the relief requested. The district court dismissed the petition on the ground that it failed to state a claim upon which relief could be granted under applicable law. After reviewing the record and considering the arguments presented, we agree with the district court and affirm its judgment.

In his action, Anderson sought an order compelling the Secretary of State to place on the general election ballot the following measures:

Should the involuntary annexation statute be repealed?
YES_ NO_
Should a bifurcated vote be required for voluntary annexation?
YES_ NO_

In seeking to reverse the district court’s refusal to order that these measures be placed on the ballot, Anderson argues that the framers of the Iowa Constitution clearly intended and assumed that the people shall specify to the legislature what is required of them and compel a response that accommodates their demand. He bases this contention on provisions of article I, section 2 of the Iowa Constitution, which provides:

All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.

Anderson’s argument must fail because the people in exercising the political power that inheres in them established a republican form of government under which the sole authority for enacting legislation was vested in a popularly elected general assembly by article III, section 1 of the Iowa Constitution. This court has held that the people lack power to make laws of statewide application and has rejected attempts by the legislature to obtain voter approval of proposed legislation. See Stewart v. Polk County, 30 Iowa 9, 18 (1870); State v. Geebrick, 5 Iowa 491, 492-93 (1858); Santo v. State, 2 Iowa (Clarke) 164, 202-03 (1855). If the legislature itself may not propose legislation to be enacted by vote of the people, then, a fortiori, an individual citizen may not do so.

Anderson contends that he was entitled to a grant of the relief requested as a matter of law because no answer or motion was filed within the time specified in the original notice. There are two reasons why this contention must be rejected. First, the Secretary of State’s motion to dismiss was filed within ten days of having received written notice of intent to seek default pursuant to Iowa Rule of Civil Procedure 231(b) and thus cured the default before Anderson could legally act thereon. Second, even if there had been a default, a party may not be allowed any greater relief than that to which the party is legally entitled on the facts alleged. Rayburn v. Maher, 227 Iowa 274, 285-86, 288 N.W. 136, 141 (1939); Skvor v. Weis, 153 Iowa 720, 731, 134 N.W. 85, 87-88 (1912).

Anderson also asked the district court to enjoin the application of any future involuntary annexations under Iowa Code section 368.11 (1999). He makes no argument on appeal concerning the source of the district court’s authority to grant such relief other than suggesting that this is bad legislation. Assuming that he is correct in this regard, neither the district court nor this court is empowered to correct the situation.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.


author: VOGEL, Judge.

text:
    STATE of Iowa, Appellee, v. Nicholas Andrew O’SHEA, Appellant.
    No. 00-0908.
    Court of Appeals of Iowa.
    June 13, 2001.

      Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Moss, Dunn, Montgomery & Boles, L.L.P., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Michael Short, County Attorney, and Bruce C. McDonald, Assistant County Attorney, for appellee.
    Heard by HUITINK, P.J., and VOGEL and MAHAN, JJ.
   VOGEL, Judge.

O’Shea was convicted of second degree murder in the death of his next door neighbor, Jan Boley. O’Shea appealed his conviction on several grounds, which were considered by this court in State v. O’Shea, No. 98-2170, 2000 WL 63189 (Iowa Ct. App. Jan.26, 2000) (O’Shea I). In reviewing the denial of O’Shea’s motion for a new trial, grounded on a claim that the verdict was contrary to the evidence, we found the district court had applied the wrong legal standard, and remanded for application of the correct standard. The court once again denied O’Shea’s new trial request, and also denied a newly-made motion for judgment of acquittal. It is from these denials that O’Shea appeals. Because we find no abuse of discretion, we affirm the district court’s decision.

Background Facts and Proceedings. In the approximately three years leading up to Boley’s death, the relationship between O’Shea and Boley was characterized by high levels of animosity. Boley and her husband Mark would utter racist epithets at one of O’Shea’s friends, and Boley would call O’Shea vulgar names when she encountered him in public. The conflict escalated when Boley and her family believed O’Shea was involved in an assault against one of their relatives and gave rise to threats of violence and “intimidation” trips to O’Shea’s school. When O’Shea began dating Billie Jo Bouchard, a friend of Boley’s son, the verbal abuse and taunts were extended to Bouchard, even at Bou-chard’s place-of employment. The facts surrounding the fatal confrontation between O’Shea and Boley were previously stated by this court:

On occasion, Bouchard was permitted to stay overnight in the O’Shea residence. She came there about 11:00 p.m. on the evening of March 24, 1998. The next morning, Bouchard left the O’Shea home to go to school. As she walked to her pickup, Mrs. Boley began screaming and moving toward her. Bouchard hurried to her vehicle and entered it.
O’Shea was awakened when he heard the front door slam. He then heard Mrs. Boley screaming outside. He jumped out of bed and ran to the window. He saw Mrs. Boley approach the driver’s side door of Bouchard’s truck and heard her cussing and threatening to “kick [Bouchard’s] ass.”
Bouchard testified Mrs. Boley pounded on the truck window, pulled the door open, and began striking Bouchard whose left arm was in a sling as a result of a recent collarbone fracture. Meanwhile, O’Shea, still inside the house, ran to the hutch and grabbed the phone. He then entered the kitchen and picked up a knife. O’Shea testified he began to dial the police department, but dropped the phone when he saw Mrs. Boley assaulting Bouchard. Though dressed only in socks and shorts, he ran outside.
There was ambiguity in the evidence with respect to the position of Bouchard and Mrs. Boley when O’Shea approached them. Two motorists testified they witnessed Mrs. Boley standing on her feet during the altercation. One of these witnesses recalled seeing Bou-chard inside the truck during the assault. The other witness recalled seeing both Bouchard and Mrs. Boley grappling outside but near the truck. Bou-chard recalled having her head slammed against an object, but did not know if the object was the street or another surface. O’Shea testified Bouchard was on her back on the street, and Mrs. Boley was straddling her as he approached them with the knife in his left hand.
O’Shea claimed, as he approached, Mrs. Boley rolled off Bouchard and toward him. He testified, as he attempted to push her away from him, the knife entered Mrs. Boley’s chest. She subsequently died. O’Shea claimed he had no intention to stab Mrs. Boley, but simply intended to get her off Bouchard.

Although O’Shea argued his actions were in defense of Bouchard and thus justified, the jury returned a guilty verdict. On his initial appeal he contended the district court applied the wrong legal standard in ruling on his motion for a new trial, challenged the sufficiency of the evidence to support his conviction, and claimed ineffective assistance of counsel. Upon review we found the district court had applied the wrong legal standard to O’Shea’s new trial request. We reversed and remanded solely on this issue, as O’Shea’s general judgment of acquittal motion failed to preserve error on his sufficiency of the evidence argument, and as the ineffective assistance of counsel claims were preserved for postconviction proceedings.

Scope of Review. Rulings on motions for new trial are reviewed for errors at law. Iowa R.App.P. 4. The district court has broad, but not unlimited discretion in ruling on new trial requests, and its decision will be reversed only for a demonstrated abuse of this discretion. See Iowa R.App.P. 14(f)(3); State v. Belt, 505 N.W.2d 182, 184 (Iowa 1993). A motion for a new trial, asserting the verdict was contrary to evidence under Iowa Rule of Criminal Procedure 23(2)(b)(6), should be granted only if, after considering both inculpatory and exculpatory evidence, the jury’s verdict was contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). A verdict is contrary to the weight of the evidence where “a greater amount of credible evidence supports one side of an issue or cause than the other.” Id. at 658 (quoting Tibbs v. Florida, 457 U.S. 31, 38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 658 (1982)).

I. New Trial Motion. O’Shea alleges a number of grounds for finding abuse of discretion in the trial court’s ruling. He contends the district court ignored the “findings of fact” made by this court in O’Shea I, once again applied the wrong standard in ruling on his new trial request, made findings and conclusions in regard to witness credibility that were not supported by the evidence, and failed to apply the law of justification. This last assertion is essentially an allegation that the State failed to meet its burden of proof in showing malice aforethought and lack of justification.

A. Background facts in O’Shea I. O’Shea contends that our two-page statement of background facts and proceedings in O’Shea I “weighs heavily” in favor of his justification defense, and he appears to suggest the district court should have found itself to be heavily influenced, if not bound, by our factual recitation. However, when reviewing a district court ruling for abuse of discretion, background facts are set down to frame the discussion and legal analysis, not to bind a district court upon remand. This contention is without merit.

B. Application of the Ellis standard. O’Shea’s assertion that the district court failed to apply the correct new trial standard is also flawed. In denying the new trial motion the court found that “the State of Iowa produced substantial, credible evidence to support the jury verdict .... The greater amount of the credible evidence supports the State of Iowa.” O’Shea focuses on the district court’s use of the word “substantial,” and argues this demonstrates the court applied the standard of sufficiency of the evidence, rather than the greater weight of the evidence standard required by State v. Ellis, 578 N.W.2d 655 (Iowa 1998).

While “substantial evidence” is one element of the sufficiency of the evidence standard, other indices of that standard— such as viewing evidence in the light most favorable to the prosecution — are wholly lacking from the court’s decision. Moreover, the district court made specific credibility findings — a thing not permitted under a sufficiency of the evidence assessment — and the bulk of its ruling is a near verbatim recitation of the Ellis criterion. See id. It is clear to this court that the correct standard was applied by the district court.

C. Credibility assessment of Alger. One of the State’s key witnesses was Angela Alger, a registered nurse who worked in the critical care unit at an area hospital. Alger had just finished a twelve-hour shift and was running an errand when she drove by O’Shea’s house, apparently on the same side of the street as Bouchard’s truck. She testified that she saw Boley and Bouchard struggling, and then saw O’Shea run up to Boley, grab her by the hair, reach around her and strike her at least three times and with consistent force in the upper right area of her chest. Alger testified that she had a very good view of the confrontation and that she remembered it very clearly. She admitted she did not see a knife. This testimony was a prime focus of the new trial hearing.

O’Shea attacked Alger’s testimony on the basis that, although she claimed to have seen at least three striking motions towards Beley’s chest, the report of the medical examiner revealed only one stab wound. The State in turn assailed O’Shea’s version that the stabbing occurred accidentally when he pushed Boley with a football-type blocking move, as such claim was contrary to the testimony of both the medical examiner and Alger. Thus, Alger’s credibility was key to the district court’s new trial ruling.

O’Shea focuses on the following recitation by the district court:

Ms. Alger was in an excellent place to observe the altercation and stabbing of Jan Boley. Due to her education and training, one could conclude that Ms. Alger also possessed greater than normal skills in making observations under stressful circumstances. Ms. Alger gave a very detailed accounting of the events and the stabbing motion of the defendant. Ms. Alger observed three thrusts of the knife by the defendant. Ms. Alger’s observations of defendant’s actions in grabbing and stabbing Jan Boley did not support, and in many aspects contradicted, the defendant’s version of how the events leading up to the stabling occurred as well as the stabbing.

O’Shea contends that this statement demonstrates the district court went outside of the record in two respects: one, there was no basis for assuming Alger’s nursing skills imparted her with a greater ability to make observations under stressful conditions and two, since Alger never saw the knife, the court incorrectly found she had observed three knife thrusts.

We agree there is no clear support in the record for crediting Alger with enhanced observational abilities. However, the district court merely stated that “one could conclude” Alger’s education and training as a nurse would assist in this regard. The court did not hinge its credibility assessment on the disputed language, and noted a number of other things that served to enhance the reliability and credibility of Alger’s testimony. What is apparent from the court’s ruling is that it was impressed by Alger’s overall credibility, and a witness’s composure and demean- or — •things critical to credibility assessments — are beyond our power to review.

In addition, the statement that Alger saw three knife thrusts, although not an accurate recitation of her actual testimony, is a correct summation of the facts as found by the district court. There is no dispute O’Shea had a knife and used it to stab Boley in the upper chest area, and there is no dispute that this is the only contact his hand or arm had with that area of her body. When this is combined with Alger’s testimony that she saw him strike or hit Boley in the chest three times, a logical conclusion is that what Alger actually witnessed was three thrusts of O’Shea’s knife.

Even assuming the district court’s new trial ruling contained actual misstatements or inaccuracies, they are not fatal to its decision. Eliminating from Alger any enhanced observational ability and noting that she saw only three hits to Boley’s chest area, her testimony is still imbued with indices of credibility and supportive of the State’s theory of the case. Moreover, a review of the record indicates that, without regard to the personal credibility of O’Shea and Alger, the medical examiner’s testimony directly contradicts O’Shea’s account of the incident, but is consistent with Alger’s testimony and the State’s theory.

When the State demonstrated O’Shea’s version of events during trial, the medical examiner testified that if Boley had been struck as O’Shea claimed, the wound’s direction would have been totally different. In contrast, when presented with Alger’s narrative the examiner testified the described actions were consistent with his findings. He also testified the thrust would have required some degree of force as the knife broke a rib, and that the two centimeter difference between the size of the surface wound and the widest part of the blade could be caused by the motions of struggle or by partial removal and reinsertion of the blade into the single knife wound.

While O’Shea correctly asserts other testimony was supportive of his position, the district court found that “very little” of that testimony was credible. We give great weight to a district court’s credibility findings, and a review of the trial transcript provides no reason why that deference should not be granted in this case. See State v. Weaver, 608 N.W.2d 797, 804 (Iowa 2000). Even reducing the level of credibility assessed to Alger, and strictly reading the record for established facts, there was no abuse of discretion in concluding the greater weight of credible evidence demonstrated the stab wound was intentionally, rather that accidentally, inflicted.

D. Justification defense. O’Shea next argues that, even if the weight of the evidence demonstrates he intentionally stabbed Boley, the weight of the evidence did not support a finding of malice aforethought or the State’s contention he acted without justification. Malice is defined as “a fixed purpose or design to do some physical harm to another which exists prior to the act committed.” State v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000) (quoting State v. Sharpe, 304 N.W.2d 220, 226 (Iowa 1981)). This purpose need not exist for any specific length of time. State v. Walker, 538 N.W.2d 316, 319 (Iowa Ct. App.1995). Malice can be implied from the use of a deadly weapon and an accompanying opportunity to deliberate, or from prior relations between the defendant and the victim. Id. A defendant’s conduct both before and after the incident is also relevant to this inquiry. See State v. Berry, 549 N.W.2d 316, 318 (Iowa Ct.App.1996).

In this case, the greater weight of the evidence shows the defendant deliberately picked up a kitchen knife before leaving his home and then used that knife to intentionally and forcefully stab an unarmed victim in the chest. The knife is indisputably a deadly weapon, and the record reveals more than a sufficient opportunity for deliberation, thus giving rise to an inference of malice. O’Shea urges us to consider other information he maintains demonstrates an absence of malice. That he did not flee the scene, let police officers into his home, and did not try to hide or dispose of the knife lends some support to his position, but is insufficient to rebut the inference of malice. The other events O’Shea relies upon are neutral in their implications, subject to multiple inferences or more properly within the scope of the trial court’s judgment.

For example, O’Shea contends his tumultuous history with Boley demonstrates he was never the aggressor, and accordingly would have no motive to make a calculated choice to stab Boley. However, a fact finder could also conclude the virulent and sustained harassment by Boley and her family reached a crescendo with the attack on Bouchard, leading O’Shea to a deliberate and intentional decision to end, or retaliate for, the abuse. Other specifics, such as O’Shea’s assertion he tried to call the police prior to the incident, rely heavily or exclusively on his credibility. The record indicates the district court found O’Shea to be less than persuasive in this regard.

O’Shea further argues that any inference of malice is rebutted by the proof of justification in the record. As O’Shea properly raised the defense of justification, the burden was on the State to refute the defense by proving, beyond a reasonable doubt, any one of the following elements: that O’Shea knew Bouchard had instigated or continued the confrontation with Boley, that O’Shea had an alternate course of action available, that he did not believe Bouchard was in imminent danger of injury and the use of force was unnecessary, that if he did have such a belief it had no reasonable basis, or that the force used was unreasonable. See State v. Coffman, 562 N.W.2d 766, 768 (Iowa Ct.App.1997). The jury was instructed accordingly.

O’Shea focuses much of his argument on the fact that it was reasonable to believe Bouchard was in danger and that it was necessary to use force to protect her from any further physical harm. The State effectively concedes this point. The key to the justification issue is whether his goal of stopping Boley in her attack on Bouchard could have been met without stabbing Bo-ley in the chest.

O’Shea’s actions meet the definition of deadly force. See Iowa Code § 704.2(2) (1999) (classifying deadly force as that level of force a defendant knew or reasonably should have known would create a strong probability of serious injury). Deadly force is reasonable force only where

it is reasonable to believe that such force is necessary to avoid injury or risk to ... the life or safety of another, or ... to resist a like force or threat. Reasonable force, including deadly force, may be used even if an alternative course of action is available if the alternative entails a risk to ... the life or safety of a third party....

Iowa Code § 704.1 (1999).

Boley was not armed with a weapon and no person, including O’Shea, testified it even appeared that she held one. None of the disinterested witnesses described the confrontation between Boley and Bouchard as being of a life-threatening nature. The evidence indicates Boley was holding down or holding onto Bou-chard, had struck Bouchard’s head against some object, and was hitting Bouchard with her hands. While it was necessary for O’Shea to physically confront Boley to end her attack on Bouchard, it was neither necessary nor reasonable to stab her in the chest with such force that the knife broke a rib and came close to exiting from Bo-ley’s back. Given the record, it was not an abuse of discretion to find the weight of the evidence demonstrated the attack on Boley was without justification.

II. Motion for Judgment of Acquittal. After remand O’Shea filed a new motion for judgment of acquittal, attempting to cure the flaws of the general motion made during his trial. The new motion set forth the specific elements alleged to be insufficiently supported by the record. The district court struck the filing, stating it was beyond the authority of the limited remand. O’Shea, citing Iowa Rule of Criminal Procedure 18(8)(b), contends this motion was perfectly permissible, as the rule places no time limit on filing a motion for judgment of acquittal and allows the district court to reach a decision on such a motion even after a jury verdict is returned.

When a case is remanded for a limited purpose, the district court’s authority extends only to that which is mandated by the appellate court. In re Marriage of Davis, 608 N.W.2d 766, 769 (Iowa 2000). Any action contrary to or beyond the scope of the mandate is null and void. Id. Here, the remand to the district court was for the sole and limited purpose of applying the correct legal standard to O’Shea’s new trial motion and did not extend to a reconsideration of the motion for judgment of acquittal. Moreover, a court is authorized to enter a post-verdict judgment of acquittal only if it reserves ruling on the same. See State v. Marti 290 N.W.2d 570, 582 (Iowa 1980). Here, no such reservation was made. The district court was wholly without authority to consider O’Shea’s new and/or renewed motion for judgment of acquittal, and it was properly struck.

III. Ineffective Assistance of Counsel. The motion for judgment of ae-quittal also advanced an ineffective assistance of counsel claim based on counsel’s failure to make a sufficiently specific motion at trial. O’Shea now forwards this claim as an independent ground of appeal. As previously stated, the remand to the district court was limited to application of the Ellis standard, and the new ineffective assistance of counsel claim had no place in the district court proceedings. Moreover, even if we were to take up O’Shea’s implicit suggestion to equate his second appeal to a postconviction proceeding, the newly made ineffective assistance claim was waived when not raised in O’Shea’s first appeal.

Failure to raise a claim may not be fatal if a defendant can demonstrate sufficient reason for the failure. See Berryhill v. State, 608 N.W.2d 243, 245 (Iowa 1999). The number of reasons is limited when the claim is based on ineffective assistance of trial counsel, id., but one cause that may be sufficient is ineffective assistance of appellate counsel. See Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991). Notably, O’Shea neither claims ineffective assistance of appellate counsel nor attempts to forward any other basis for negating the waiver, unless we view the lack of error preservation at trial to be adequate reason in and of itself. Sufficient cause does not exist, however, merely because counsel failed to preserve error at trial. The State points to our prior decision of Bailey v. State, 493 N.W.2d 419 (Iowa Ct.App.1992), as being potentially contrary to this conclusion.

David Bailey was convicted of burglary in the second degree and theft in the second degree. On direct appeal this court affirmed Bailey’s conviction, finding trial counsel had failed to preserve error on his claim that a private office in a public area was not an “occupied structure” as defined by Iowa Code section 713.1 (1987). Bailey then filed an application for postconviction relief, arguing that this failure to preserve error amounted to ineffective assistance of his trial counsel. The district court denied the application, and we affirmed its decision. While concluding the trial attorney’s failure to preserve error was not tantamount to ineffective assistance of counsel, we noted:

Although this issue was ... not raised on direct appeal, we find “sufficient reason” for not having done so exists because it was the direct appeal itself in which error on this issue was found to not be properly preserved, thus suggesting trial counsel had failed to provide effective assistance of counsel by not properly preserving error.

Id. at 421-22.

The effectiveness of Bailey’s trial counsel could have been preserved in his direct appeal by presenting the error to the appellate court as a basis for an ineffective assistance of counsel claim. Since Bailey failed to raise the issue in his direct appeal, on postconviction relief he was required to demonstrate sufficient reason for this failure. Berryhill, 603 N.W.2d at 245. Bailey did not assert any reason for failing to preserve error, including the often-cited ineffective assistance of appellate counsel. Nonetheless, the Bailey court was willing to infer sufficient cause from the procedural facts of the case. To the extent Bailey found sufficient reason to be established by no more than a trial counsel’s failure to preserve error, it is overruled.

Conclusion. This case was remanded for the limited purpose of applying the correct legal standard to O’Shea’s new trial motion. Accordingly, the district court properly struck, as beyond the scope of that remand, O’Shea’s newly-made motion for judgment of acquittal and the incorporated ineffective assistance of trial counsel argument. Our review is therefore limited to the new trial motion, as no other issues are properly before us on appeal. In that regard the record reveals the correct standard was applied by the district court, and that under such a standard the district court could find the greater weight of credible evidence supported the State’s contention that O’Shea stabbed Boley with malice aforethought and without justification. No abuse of discretion having been shown, we affirm the ruling of the district court.

AFFIRMED.

      .The jury was charged that the State was required to prove all of the following elements to establish the crime of murder in the second degree:
      1. On or about the 25th day of March, 1998, the Defendant stabbed Jan Marie Boley.
      2. Jan Marie Boley died as a result of being stabbed.
      3. The Defendant acted with malice aforethought.
      4. The Defendant was not acting with justification.

      .The State's burden was set forth as follows:
      A person is justified in using reasonable force if he reasonably believes the force is necessary to defend another from any imminent use of unlawful force.
      If the State has proved any one of the following elements, then the Defendant was not justified:
      1. The Defendant knew the person he helped had started or continued the incident, or the Defendant himself started or continued the incident which resulted in death.
      2. An alternative course of action was available to the Defendant.
      3. The Defendant did not believe the person he helped was in imminent danger of death or injury and the use of force was not necessary to save the person.
      4. The Defendant did not have reasonable grounds for the belief.

        5. The force used by the Defendant was unreasonable.


author: Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Martin M. FITERMAN, an Attorney at Law of the State of Minnesota.
    No. C4-01-1506.
    Supreme Court of Minnesota.
    Sept. 26, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Martin M. Fiterman has committed professional misconduct warranting public discipline, namely, respondent aided and abetted insider trading in violation of federal law, including 15 U.S.C. § 78j(b), 17 C.F.R. § 240.10b-5, 15 U.S.C. § 78ff(a), and 18 U.S.C. § 2(a) and (b), as evidenced by his agreement to plead guilty to these offenses, in violation of Rules 8.4(b) and (c), Minn. R. Prof. Conduct.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is disbarment and payment of $900 in costs and disbursements pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Martin M. Fiterman is disbarred from the practice of law, effective immediately, and that he pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT

Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard G. DAY, an Attorney at Law of the State of Minnesota.
    No. C7-00-1117.
    Supreme Court of Minnesota.
    Oct. 1, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Richard G. Day has committed professional misconduct warranting public discipline, namely, practicing law after suspension, failing to return client property and failing to cooperate in the disciplinary proceedings in violation of Minn. R. Prof. Conduct 1.16(d), 5.5, and 8.1(a)(3) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is an indefinite suspension with reinstatement conditioned upon a petition and hearing as set forth in Rule 18, RLPR, payment of costs in the amount of $900 under Rule 24, RLPR, compliance with Rule 26, RLPR, successful completion of the professional responsibility examination under Rule 18(e), RLPR, and satisfaction of the continuing legal education requirements under Rule 18(e), RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Richard G. Day is indefinitely suspended from the practice of law with reinstatement conditioned on the agreed-upon terms set forth above. Respondent shall pay $900 under Rule 24, RLPR.

BY THE COURT

Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael H. DAUB, an Attorney at Law of the State of Minnesota.
    No. C2-01-578.
    Supreme Court of Minnesota.
    Oct. 4, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Michael H. Daub has committed professional misconduct warranting public discipline, namely, respondent failed to file or failed to timely file state and federal individual income tax returns, neglected and failed to communicate with his clients in six different representations, and failed to diligently pursue representations resulting in one client’s case not being commenced within the statute of limitations in violation of Minn. R. Prof. Conduct 1.3,1.4,1.16, 3.2, 8.4(b) and (d).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is suspension for a minimum of four months subject to the following conditions:
a. The reinstatement hearing provided for in Rule 18(a) through (d), RLPR, is not waived.
b. Respondent shall successfully complete the professional responsibility portion of the state bar examination within one year of the date of this Court’s order.
c. Respondent shall comply with Rule 26, RLPR.
d. Respondent shall pay $900 in costs pursuant to Rule 24(a), RLPR, and $21.89 as disbursements pursuant to Rule 24(b), RLPR.
e. Prior to reinstatement, respondent shall enter into agreements satisfactory to the Internal Revenue Service (IRS) and the Minnesota Department of Revenue (D0R) for the payment of all unpaid taxes. Respondent shall provide to the Director copies of the payment agreements and proof of currency on payments required by the agreements. If, prior to reinstatement, an agreement with the IRS and/or DOR has not been reached despite diligent effort by respondent, respondent shall report to the Director concerning his progress in reaching an agreement. Such reports shall continue after reinstatement on a monthly basis until written agreements have been signed by both the IRS and DOR.
f. Respondent may apply for reinstatement 60 days prior to the expiration of his period of suspension but no reinstatement hearing will be scheduled to occur prior to the expiration of the minimum four-month suspension.

The parties further recommend that, upon reinstatement, respondent be placed on supervised probation for a period of two years under the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of his probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date respondent is reinstated. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph d. below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of active client files by the first day of each month during the probation. With respect to each active client file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Within 30 days after his being reinstated to the practice of law, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with the probation requirements. Respondent shall provide progress reports as requested.
f. Respondent shall maintain total abstinence from alcohol and other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent’s chemical dependency before issuing the prescription.
g. Respondent shall initiate or continue current treatment by a licensed consulting psychologist or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by the therapist.
h. Respondent shall timely file all required state and federal tax returns, including individual and employer withholding returns, and timely pay the taxes due thereon. Respondent shall affirmatively report to the Director, on or before the due date of the required returns, his compliance with the filing and payment requirements. Such reports shall include copies of the required returns. On or before the filing deadline, respondent shall provide the Director with copies of all applications for filing extension and proof of approval of such applications. Respondent shall provide all of the documents and information required herein without specific reminder or request.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Michael H. Daub is suspended from the practice of law for a minimum period of four months, effective 14 days from the date of this order, and that he pay $900 in costs and $21.89 in disbursements under Rule 24, Rules on Lawyers Professional Responsibility. Upon reinstatement, respondent shall be placed on supervised probation for two years.

BY THE COURT

Paul H. Anderson Associate Justice