author: YANDE WALLE, Chief Justice.

text:
    2002 ND 207
    STATE of North Dakota, Plaintiff and Appellee, v. John Clark WEISZ, Defendant and Appellant.
    No. 20020115.
    Supreme Court of North Dakota.
    Dec. 20, 2002.

      Terry W. Elhard, State’s Attorney, Ashley, ND, for plaintiff and appellee.
    David N. Ogren, Herr & Ogren, Wishek, ND, for defendant and appellant.
   YANDE WALLE, Chief Justice.

[¶ 1] John C. Weisz appealed from a criminal judgment and commitment finding him guilty of two counts of terrorizing. We affirm.

I

[¶ 2] On March 3, 2001, Weisz drove his pickup truck from a bar in Logan County and eventually proceeded into McIntosh County. Brenda Rath and Michael Schauer were also in the truck. The parties disagree about what events transpired, but as a result of Weisz’s actions toward Rath and Schauer, Weisz was charged in McIntosh County with one count of harassment, two counts of aggravated assault, and two counts of terrorizing. He was also charged with two counts of simple assault in Logan County. Weisz pled guilty to the simple assault charges in Logan County.

[¶ 3] A jury trial on the McIntosh County charges began on March 5, 2002. On March 7, 2002, the jurors began deliberating and took an evening supper break at a local restaurant. According to the post-trial affidavit of juror Allen Nitschke, the following events apparently occurred during the supper break. The court staff member in charge of the jurors received a telephone call and learned the wife of one of the jurors had been hurt. The juror was called to the telephone and received a message his wife had been injured by a cow and hospitalized. The jurors decided to continue deliberating, and later in the evening, the jury returned a verdict finding Weisz guilty of two counts of terrorizing.

[¶ 4] The record demonstrates no one notified the trial judge of the telephone call. Apparently after the trial, juror Nitschke told Weisz’s trial counsel about the telephone call. At sentencing, trial counsel attempted to offer Nitschke’s testimony, not for the purpose of bringing to the court’s attention the telephone call, but for the following reason:

[W]hat I would like to offer is testimony by the juror which would establish the basis for that verdict that they entered. And it is — Your Honor, based upon the instructions that were given by the Court, it appears that the elements of the offense and the instructions were disregarded when the jury reached the verdict. That might have been their verdict, Your Honor, but it appears that they did not follow the instructions.

The trial judge refused to hear juror Nitschke’s testimony for this purpose or allow him to testify as a character witness for Weisz. In September 2002, Nitschke signed an affidavit describing the events at the restaurant. On appeal, with different representation, Weisz raises the specific issue of the juror communication for the first time.

[¶ 5] Weisz argues the telephone call violated N.D.C.C. § 29-22-02 as an impermissible juror communication. He asserts this is reversible error due to the likelihood he did not receive a fair jury deliberation. He also argues the State violated his rights against being placed in double jeopardy when the McIntosh County trial proceeded on aggravated assault charges because he had already pled guilty in Logan County to simple assault charges stemming from the same incident.

II

A

[¶ 6] On appeal, we generally do not consider issues, even constitutional issues, not raised before the trial court. State v. Kensmoe, 2001 ND 190, ¶ 17, 636 N.W.2d 183. “One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.” State v. Osier, 1999 ND 28, ¶ 14, 590 N.W.2d 205. As previously noted, the juror communication in this case was never brought to the attention of the trial court. Because Weisz did not properly preserve the issue for appeal, our review is limited to obvious error which requires a demonstration of “obvious error which affects substantial rights of the defendant.” State v. Jones, 557 N.W.2d 375, 378 (N.D.1996) (quoting State v. Thiel, 411 N.W.2d 66, 70 (N.D.1987)); N.D.R.Crim.P. 52(b). However, we exercise our authority to notice obvious error cautiously and only in exceptional circumstances when the defendant has suffered serious injustice. State v. Mertz, 514 N.W.2d 662, 670 (N.D.1994) (citing State v. Kopp, 419 N.W.2d 169 (N.D.1988)).

B

[¶ 7] The error alleged by Weisz is a violation of N.D.C.C. § 29-22-02, which states the procedure for' the custody of jurors:

The jurors shall retire in charge of one or more officers who must be sworn to keep them together in some private and convenient place until they have rendered their verdict. Such officer or officers shall furnish food and other necessaries to the jurors, at the expense of the state, as directed by the court, and may not speak to nor communicate with such jurors or any of them nor permit any other person so to do except by order of the court. Men and women jurors may retire, when rest or sleep or propriety requires it, to separate rooms.

Following a literal reading of § 29-22-02, absent a court order, any communication with or by a jury member during the process of deliberating would violate the statute. However, the intention of § 29-22-02 is to ensure extraneous influences and communications do not taint jury deliberations. See State v. Bergeron, 340 N.W.2d 51, 58 (N.D.1983) (stating “the State and the court, independently, have an interest and obligation to assure that the jury reaches a verdict free of extraneous pressures, strain, or discomfort”).

[¶ 8] In State v. Julson, 202 N.W.2d 145, 155 (N.D.1972), the defendant alleged a violation of N.D.C.C. § 29-22-02 when jurors were transported in separate vehicles to a restaurant, after the case was submitted to them. We stated no prejudice resulted from the separation of the jurors, and because no improper influences were used or attempted during the separation,. this was not a basis for a new trial. Julson, at 155-56. Furthermore, in State v. Bergeron, 340 N.W.2d 51, 58 (N.D.1983), we examined § 29-22-02 in the context of jury sequestration. In discussing a similar Nebraska statute, we noted the Nebraska Supreme Court held a failure to comply with its statute would create a rebuttable presumption of prejudice. Bergeron, at 58-59; see also State v. Robbins, 205 Neb. 226, 287 N.W.2d 55, 58 (1980) (construing Neb.Rev.Stat. § 29-2022 (1943)). We declined to establish this presumption, stating “mere reliance upon N.D.C.C. § 29-22-02 without a showing of actual prejudice is insufficient.” Bergeron, at 59.

[¶ 9] As we have previously stated, “a defendant is entitled to a fair trial but not necessarily to a perfect trial.” State v. Ellvanger, 453 N.W.2d 810, 815 (N.D.1990) (quoting State v. Allen, 237 N.W.2d 154, 162 (N.D.1975)). In order to obtain a new trial, Weisz would have to show he had been prejudiced in some way by the error. Keyes v. Amundson, 343 N.W.2d 78, 82 (N.D.1983) (citing State v. Bergeron, 340 N.W.2d 51, 59 (N.D.1983)). An individual cannot rely upon mere technical violations of the statute without a showing of prejudice. Id.

[¶ 10] Assuming the events occurred exactly ■ as juror Nitschke described, the telephone message received by the other juror was unrelated to the case. There is nothing in the affidavit indicating the jurors’ deliberations were affected by the telephone call. After examining the transcript of the trial court proceedings, we cannot say a jury which began deliberating at 11:47 a.m., took a supper break around 5:05 p.m., sent the judge a written question at approximately 7:20 p.m., and returned its verdict just before 8:00 p.m., failed to fairly deliberate — due to a telephone call which occurred during the supper break. “In the absence of contrary evidence, a presumption exists that a jury performed its duties in accordance with the law and were not influenced by outside events or evidence.” State v. Osier, 1999 ND 28, ¶ 24, 590 N.W.2d 205 (quoting State v. Voeller, 356 N.W.2d 115, 121 (N.D.1984)).

[¶ 11] While the telephone call in this case was an impermissible communication under N.D.C.C. § 29-22-02, it does not rise to the level of a denial of a fair trial. Weisz has not shown prejudice or demonstrated he suffered a serious injustice by a juror allegedly receiving a telephone call and discussing a family situation, while on a dinner break from deliberations. See Diane M. Allen, Annotation, Communication Between Court Officials or Attendants and Jurors in Criminal Trial as Ground for Mistrial or Reversal — Post-Parker Cases, 35 A.L.R.4th 890, § 16 (1985) (summarizing cases in which communications between jurors and court personnel about a juror’s personal affairs did not justify a mistrial or reversal). Thus, we conclude the juror communication does not constitute obvious error.

C

[¶ 12] Because of the presence of a juror affidavit and a trial irregularity in this case, we briefly discuss these general issues. Rule 606(b), N.D.R.Ev., governs a juror’s ability to testify regarding the validity of a verdict. See N.D.R.Ev. 606(b) (allowing jurors to testify whether extraneous prejudicial information was brought to their attention, outside influences were brought to bear upon them, or they arrived at the verdict by chance, but prohibiting them from testifying about the mental processes inherent in arriving at the verdict). In State v. Clark, 1997 ND 199, ¶ 8, 570 N.W.2d 195, cert. denied, 532 U.S. 1043, 121 S.Ct. 2010, 149 L.Ed.2d 1011 (2001), we reviewed the use of juror affidavits under N.D.R.Ev. 606(b):

[J]uror affidavits “may be used to show juror misconduct based upon extraneous prejudicial information, outside influence, or a chance verdict,” but may not be used to show “the effect of the misconduct on the jury.” Keyes v. Amundson, 343 N.W.2d 78, 84-5 (N.D.1983). “Our decisions have consistently rejected jurors’ affidavits about the effect of internal deliberations.” Miller v. Breidenbach, 520 N.W.2d 869, 872 (N.D.1994). See also Kerzmann v. Rohweder, 321 N.W.2d 84 (N.D.1982); Grenz v. Werre, 129 N.W.2d 681 (N.D.1964). “It is improper for a court to consider juror affidavits for purposes of impeaching a verdict relative to the mental processes or reasoning of the jurors in arriving at a decision.” Mauch v. Manufacturers Sales & Serv., Inc., 345 N.W.2d 338, 343 (N.D.1984). “An attempt to use juror affidavits to demonstrate how the jury arrived at its decision falls precisely within the confines of the rule prohibiting impeachment of the jury verdict.” Andrews v. O’Hearn, 387 N.W.2d 716, 719 (N.D.1986).

See, e.g., Keyes v. Amundson, 343 N.W.2d 78, 85-87 (N.D.1983) (reversing denial of a new trial when juror misconduct was discovered after the verdict through juror affidavits demonstrating extraneous prejudicial information had reached the jury during deliberations); cf. Hamilton v. Oppen, 2002 ND 185, ¶34, 653 N.W.2d 678, (Vande Walle, C.J., concurring in denial of new trial when juror affidavits insufficient to show juror misconduct and no evidentiary hearing was requested).

[¶ 13] Furthermore, when an irregularity occurs during trial, the affected party must bring the problem to the trial court’s attention when the irregularity occurs so the court may take appropriate action. State v. Breding, 526 N.W.2d 465, 472 (N.D.1995) (citing State v. Abrahamson, 328 N.W.2d 213, 219 (N.D.1982)). Trial irregularities, brought to the attention of counsel after the verdict, should be addressed by a motion to the trial court with supporting evidence. See N.D.R.Crim.P. 33(c) (describing the procedure for moving for a new trial because of jury misconduct or any other grounds besides newly discovered evidence). Here, the irregularity was never brought to the attention of the trial court.

Ill

[¶ 14] Weisz also argues the prosecution of aggravated assault charges in McIntosh County should have been barred by his conviction, by plea agreement, of simple assault in Logan County. We addressed similar arguments in State v. Lange, 497 N.W.2d 83 (N.D.1993), and State v. Pendergrast, 340 N.W.2d 454 (N.D.1983). In Lange, we held the double jeopardy clause was not violated when the defendant was tried in two different counties on rape charges when he allegedly raped the complainant in Mercer County and then drove into Oliver County and assaulted her again. Lange, at 84, 86-87. (“[T]he Oliver County rape was a separate and distinct act which involved a separate and distinct determination of consent, and ... the Oliver County verdict was not based upon the same issue as determined by the Mercer County jury”). In Pendergrast, the defendant pled guilty in Dickey County to violating a statute prohibiting referral and chain selling. Pendergrast, at 455. The State then charged the defendant in Stutsman County for violating the same statute, and a jury found him guilty. Id. In considering the defendant’s double jeopardy argument, we stated two violations of the same statute were separate offenses because they were committed at different times and places. Id. at 456.

[¶ 15] In this case, the State presented evidence to the jury showing Weisz committed a more severe assault on Rath and Schauer after he drove from Logan County into McIntosh County. Following our reasoning in Lange and Pendergrast, we conclude Weisz was not placed in jeopardy for the same crime when he was prosecuted in McIntosh County on aggravated assault charges after pleading guilty to simple assault charges in Logan County.

IV

[¶ 16] Because the juror communication was not an obvious error which affected Weisz’s substantial rights, and because Weisz’s rights against being placed in double jeopardy were not violated, we affirm the criminal judgment and commitment.

[¶ 17] CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN and MARY MUEHLEN MARING.


source: Caselaw Access Project

author: NEUMANN, Justice. VANDE WALLE, Chief Justice,

license: Public Domain

text:
    2002 ND 208
    Michael HOWES, Plaintiff, Appellant and Cross-Appellee, v. KELLY SERVICES, INC., Defendant, Appellee and Cross-Appellant.
    No. 20020014.
    Supreme Court of North Dakota.
    Dec. 20, 2002.
    Rehearing Denied Dec. 20, 2002.
    Timothy Q. Purdon and Thomas A. Dickson, Dickson & Purdon, Bismarck, N.D., and Michael G. Liffrig, Mandan, N.D., for plaintiff, appellant and cross-ap-pellee.
    Jerome C. Kettleson and Larry L. Bos-chee, Pearce & Durick, Bismarck, N.D., for defendant, appellee and cross-appellant.
   NEUMANN, Justice.

[¶ 1] In Howes v. Kelly Services, Inc., 2002 ND 131, ¶¶ 11-16, 649 N.W.2d 218, we held Kelly was entitled to rely upon prior demands for a nine-person jury by two co-defendants, even though both co-defendants were dismissed from the lawsuit before trial. We concluded the trial court abused its discretion in denying Kelly’s motion for a new trial on that issue, and we reversed and remanded for a new trial. Id. at ¶¶ 16, 18. On petition for rehearing, Howes claims the trial to a six-person jury was harmless error under N.D.R.Civ.P. 61 and Allen v. Kleven, 306 N.W.2d 629, 634 (N.D.1981).

[¶ 2] In Allen, 306 N.W.2d at 632, Allen, a passenger in a car driven by Williams, sued Eleven for injuries sustained in an accident involving the car driven by Williams and a car driven by Kleven. Allen’s complaint did not request a jury trial. Eleven answered, alleging Allen’s injuries were caused by the negligence of Allen and Williams. Eleven’s answer requested a jury trial without specifying the number of jurors desired. Rule 38(c), N.D.R.Civ.P., then provided a jury shall consist of six unless a request for a jury of twelve is made within the time for demanding a jury trial. Eleven later brought a third-party action against Williams, alleging Williams was negligent and seeking contribution if Eleven was found liable for Allen’s injuries. Williams’ answer to Eleven’s third-party action denied liability and requested a twelve-person jury. At a pretrial conference, Williams agreed to a trial by a six-person jury.

[¶ 3] On appeal, Allen argued the trial court erred in allowing a six-person jury. Allen argued William’s agreement to a six-person jury effectively withdrew Williams’ demand for a twelve-person jury. Allen claimed she did not consent to the withdrawal under N.D.R.Civ.P. 38(e), and she affirmatively objected. Williams and Eleven argued the issue about jury size was germane only to the third-party action. They also argued Allen waived her right to object because she did not demand a jury trial. This Court considered the parties’ arguments under the harmless error rule in N.D.R.Civ.P. 61, and concluded Allen’s reasons for a twelve-person jury were conjectural and did not demonstrate the alleged error was prejudicial. Allen, 306 N.W.2d at 634. We said the appealing party had the burden of establishing the trial court erred and the error was highly prejudicial. Id. We decided there was “nothing before us from which to conclude that if an error was made by the trial court when it allowed the jury to be reduced from 12 to six members, it was anything more substantial than harmless error.” Id.

[¶ 4] The facts in Allen are different from this case in one aspect. In Allen, a third-party defendant demanded a twelve-person jury in a third-party action after Allen had sued Eleven in the main action and failed to request a jury trial. Here, although Eelly’s answer did not demand a jury trial, we held Eelly was entitled to rely on prior demands for a nine-person jury by two co-defendants. Eelly’s right to rely on co-defendants’ prior demands for a nine-person jury is more compelling than Allen’s right to rely on a third-party defendant’s subsequent demand for a twelve-person jury.

[¶ 5] In Allen, 306 N.W.2d at 634, this Court applied the harmless error rule of N.D.R.Civ.P. 61 to the issue involving jury size. Under N.D.R.Civ.P. 61, no error is ground for granting a new trial or setting aside a verdict unless refusal to do so is inconsistent with substantial justice, and at every stage of a proceeding, a court must disregard any error or defect which does not affect the substantial rights of the parties. In another context, we have defined an error affecting substantial rights as an error that was prejudicial, or affected the outcome of a proceeding. See State v. Olander, 1998 ND 50, ¶ 15, 575 N.W.2d 658.

[¶ 6] We have applied the harmless error rule to other issues affecting the jury. See Larson v. Williams Elec. Co-op., Inc., 534 N.W.2d 1, 4-5 (N.D.1995) (applying harmless error to exclusion from jury panel of all defendant co-op’s members and customers and concluding error was not harmless); Kronberger v. Zins, 463 N.W.2d 656, 658-60 (N.D.1990) (applying harmless error to trial court’s ex parte communications with jury and concluding error was not harmless); Sathren v. Behm Propane, Inc., 444 N.W.2d 696, 698 (N.D.1989) (applying harmless error to juror’s honestly mistaken response to voir dire question and concluding error was harmless); Andrews v. O’Hearn, 387 N.W.2d 716, 723-26 (N.D.1986) (applying harmless error to communications with jury and concluding error was harmless).

[¶ 7] Here, before trial, Kelly claimed it was entitled to a nine-person jury. Kelly argued prior demands for a nine-person jury by two co-defendants could not be withdrawn without the consent of all parties, even though the two co-defendants had been dismissed from the action before trial. The trial court held Kelly had waived its right to a jury, and the case was heard by a six-person jury, as requested by Howes. In Howes, 2002 ND 131, ¶¶ 11-16, 649 N.W.2d 218, we held Kelly was entitled to rely upon the prior demands for a nine-person jury by its two co-defendants. Although not of constitutional dimension, Kelly was denied its statutory right to a larger jury with the likelihood of obtaining a more representative cross section of the community. This is an error which affects the framework within which the trial proceeds, rather than an error which occurs during the trial process itself. Under our law, it would be virtually impossible to show the prejudicial effect of seating of a six-person jury and denying a party the statutory right to a nine-person jury, because jurors may not testify as to matters concerning their mental process during deliberations. N.D.R.Evid. 606(b). See Sathren, 444 N.W.2d at 698 n. 2. In this narrow situation, the inherent possibility of prejudice is present but virtually impossible to assess.

[¶ 8] In an analogous situation, we concluded the automatic exclusion of a defendant co-op’s members and customers from a jury pool without an individualized inquiry was not harmless error. Larson, 534 N.W.2d at 4-5. Although we acknowledged the scope and expense of a new trial, our decision recognized the importance with which we regard the jury system. See Larson, at 5-6 (VandeWalle, C.J., concurring). We concluded the exclusion of an identifiable group of people from the jury pool deprived the parties of a fair cross section of the population from which to select a jury and was not harmless error. Larson, at 4-5. We said the refusal to order a new trial in that situation would be inconsistent with substantial justice. Id. at 5.

[¶ 9] Here, we similarly conclude the trial court’s pre-trial denial of Kelly’s assertion of its statutory right to a nine-person jury would be inconsistent with substantial justice. We therefore conclude the denial affected Kelly’s substantial rights and was not harmless. To the extent Allen is contrary to our conclusion, we overrule it.

[¶ 10] We deny Howes’ petition for rehearing.

[¶ 11] MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.

VANDE WALLE, Chief Justice,

concurring in the result of the opinion denying the Petition for Rehearing.

[¶ 12] I would deny the petition for rehearing but on grounds different than the majority.

[¶ 13] Unfortunately Allen v. Kleven, 306 N.W.2d 629, 634 (N.D.1981), was not cited to us until the petition for rehearing was filed. That may have been due to the fact the issue as to size of the jury was far from the major issue in the brief of the appellant or the appellee but it was the issue upon which this Court granted a new trial on appeal, even though the trial court denied a new trial on that ground while granting it on the sufficiency of the evidence. Nevertheless, since I am not only the one remaining member of the Allen v. Kleven Court, but actually wrote the opinion for the Court, I should have recalled it. Regrettably, I did not until the petition for rehearing.

[¶ 14] My concern is not solely or primarily that an opinion I authored be reversed. The facts here, as the majority notes, may be more compelling than Allen v. Kleven, and it is possible to distinguish that decision on its facts. Rather, after reconsideration, I am concerned by the precedent established by presuming prejudice under the harmless-error rule. As the majority recognizes, we have applied the harmless-error rule in most jury issues. In the instance we did presume prejudice, Larson v. Williams Elec. Coop., Inc., 534 N.W.2d 1 (N.D.1995), the error involved the exclusion of an entire class of jurors, not a reduction in the number of jurors. In Larson, I concurred specially, expressing my view that the decision had “limited value as precedent” and that the harmless-error rule was “alive and well.” Id. at 6.1 further observed:

Few errors, even with regard to the jury, require a new trial on the basis that to deny a new trial would be inconsistent with substantial justice. I am willing to join my colleagues in their statement, but the result does not indicate my willingness to broaden the definition of error which affects a substantial right of the parties.

Id. at 6. It is apparent from the majority’s rationale denying rehearing that I should have adhered to my view in Larson that “I would prefer to affirm.” Id. at 5.

[¶ 15] On the basis of this decision, I expect we will be urged to abandon our harmless-error analysis in other jury issues because it may be difficult to prove prejudice. I suggest that if, in this instance, the majority is correct that it is virtually impossible to show the prejudicial effect of seating a six-person jury rather than a nine-person jury, it is because there is in fact, without more, no prejudicial effect. To hold a reduction in number from nine to six jurors is, alone, prejudicial error, is, I submit, to cast doubt on that part of Article 1, Section 13 of the North Dakota Constitution, as amended in 1974, which provides that the Legislature “may determine the size of the jury for all other cases [other than a criminal charge for which the defendant may be confined for more than one year], provided that the jury consist of at least six members.” Subsequent to the constitutional amendment, the Legislature, in 1977, enacted N.D.C.C. § 28-14-03.1 stating that “[i]n all civil actions when a jury is impaneled, a jury must consist of six qualified jurors unless any party makes a timely written demand for a jury of nine.” See also N.D.R.Civ.P. 48(b).

[¶ 16] Thus a six-person jury is established by statute and by rule as the appropriate sized jury. Absent a claim that a six-person jury is constitutionally inadequate under the United States Constitution, a claim I do not understand is being made here, there is little to support the “substantial justice” standard employed by the majority.

[¶ 17] We have not previously employed that standard even in a criminal case where, in the face of a statute, N.D.C.C. § 29-22-02, requiring sequestration of the jury, the court denied the defendant’s request to sequester the jury. State v. Bergeron, 340 N.W.2d 51 (N.D.1983). On appeal we held:

An argument can be made that, absent a presumption of prejudice, the defendant may have difficulty to establish sufficient prejudice to require a new trial. We do not agree. For example, if a juror was exposed to the significant prejudicial publicity during a separation this could be grounds for a new trial. For this reason the trial court should prepare to sequester the jury in advance whenever a lengthy trial is anticipated. However, mere reliance upon NDCC § 29-22-02 without a showing of actual prejudice is insufficient.

Id. at 59. We concluded that in light of the failure to show prejudice “the trial court did not commit error in denying defendant’s motion to sequester the jury.” Id. I would apply the Bergeron standard here, and, if this were the only issue on appeal, I would grant the petition for rehearing and affirm the trial court’s denial of a new trial on that ground.

[¶ 18] But, in addition to the judgment as a matter of law which we reversed in our opinion, the other major issue on appeal involved the trial court’s conditional grant of Kelly’s motion for a new trial on the ground the evidence was insufficient to support the verdict. I would affirm the trial court’s order for a new trial on that ground, under the rationale set forth in Okken v. Okken, 325 N.W.2d 264 (N.D. 1982). Under that rationale, on the motion for new trial, the trial judge is entitled to weigh the evidence, the trial judge is not required to accept the truth of the evidence which supports the verdict but may instead consider all the evidence and judge the credibility of witnesses, and we will not reverse the trial court’s order for a new trial absent a manifest abuse of discretion. Here there was no manifest abuse of discretion in ordering a new trial on that ground. I would affirm the trial court and therefore deny the petition for rehearing.

[¶ 19] GERALD W. VANDE WALLE, C.J.


author: SANDSTROM, Justice.

text:
    2002 ND 204
    GRAND FORKS PROFESSIONAL BASEBALL, INC., a North Dakota Corporation; David C. Thompson, individually; William Coutts, individually; and Jack Geller, individually, Appellants, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
    No. 20020093.
    Supreme Court of North Dakota.
    Dec. 20, 2002.

      David C. Thompson (argued) and Emi-lee O. Harren (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, David C. Thompson, P.C., Grand Forks, N.D., for appellants.
    Lawrence E. King (argued), Special Assistant Attorney General, and Lawrence A. Dopson (on brief), Special Assistant Attorney General, Bismarck, N.D., for appellee.
   SANDSTROM, Justice.

[¶ 1] David Thompson, Jack Geller, and William Coutts, corporate directors and officers of Grand Forks Professional Baseball, Inc., appealed from a judgment of the district court affirming an order of the North Dakota Workers Compensation Bureau holding them personally liable for unpaid corporate worker’s compensation insurance premiums. We affirm, concluding the Bureau’s assessment of liability against these individuals is in accordance with the law.

I

[¶ 2] Grand Forks Professional Baseball, Inc., was incorporated in September 1995 to acquire and manage a minor league baseball team. The team operated during 1996 and 1997 and was then disbanded.

[¶ 3] Initially, Kenneth Leip was the president and sole owner of the corporation. However, he divested his interest in the corporation in April 1996. At that time, Geller acquired a 17.10% interest, Thompson a 16.06% interest, and Coutts a 5.18% interest in the corporation. By September 1996, these individuals were officers and directors of the corporation.

[¶ 4] The corporation failed to make timely payment of its worker’s compensation insurance premiums. The Bureau determined that for the years 1996 and 1997 the corporation owed $34,177.83, with interest and penalties. In August 1998, the Bureau instituted a collection action against the corporation for the unpaid premiums. The Bureau has not, however, pursued that lawsuit, because the corporation ceased functions and is apparently insolvent.

[¶ 5] On August 18, 2000, the Bureau issued corporate officer liability orders against Thompson, Geller, and Coutts to collect the unpaid premiums from them. They requested reconsideration, and a formal hearing was held on the Bureau’s assessment. The Bureau entered a final order on June 26, 2001, assessing liability for the unpaid premiums against these individuals, and they appealed to the district court. After a hearing, the court entered a judgment upholding the Bureau’s order.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-42. The appeal to this Court is timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32^49. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 7] The appellants do not dispute that they were officers and directors of Grand Forks Professional Baseball, Inc., during the relevant period, that the corporation was obligated to pay worker’s compensation insurance premiums, or that the Bureau correctly calculated the amount of premiums due. Rather, the appellants argue they are not by statute personally liable for the unpaid corporate premiums, because none of them has a 20% ownership share in the corporation. They argue the Bureau’s action against the corporation constituted an election of remedies, precluding the Bureau from suing individual corporate officers or directors. They also argue the Bureau’s attempt to hold them personally liable without completing the corporate collection action violated their constitutional right to due process and equal protection.

[¶ 8] Under N.D.C.C. § 28-32-19, the district court must affirm the order of the agency unless it finds any of the following:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.

On appeal, this Court under N.D.C.C. § 28-32-21 reviews the judgment of the district court in the same manner. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a Bureau decision. Paul v. North Dakota Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884.

Ill

[¶ 9] Thompson, Geller, and Coutts contend a corporate officer or director cannot be held personally liable for a corporation’s unpaid worker’s compensation premiums under N.D.C.C. § 65-04-26.1(1), unless that individual owns at least 20% of the corporate stock. The statute provides:

An officer or director of a corporation, or manager or governor of a limited liability company, or employee of a corporation or limited liability company having twenty percent stock ownership who has control of or supervision over the filing of and responsibility for filing premium reports or making payment of premiums or reimbursements under this title and who fails to file the reports or to make payments as required, is personally liable for premiums under this chapter and reimbursement under section 65-05-07.2, including interest, penalties, and costs if the corporation or limited liability company does not pay to the bureau those amounts for which the corporation or limited liability company is liable.

The Bureau argues, and the district court found, this statute is unambiguous and imposes liability upon a corporate officer or director for unpaid premiums irrespective of whether that individual owns corporate stock.

[¶ 10] Interpretation of a statute is a question of law fully reviewable by this Court. Svedberg v. North Dakota Workers Comp. Bureau, 1999 ND 181, ¶ 8, 599 N.W.2d 323. Words used in a statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. If a statute is clear and unambiguous, we do not disregard the letter of the statute under the pretext of pursuing its spirit. N.D.C.C. § 1-02-05.

[¶ 11] Relevant to this issue, we conclude the statute is unambiguous. The subject entities of the statute are separated by commas, and the coordinating conjunction “or” is used for “introducing an alternative.” Webster’s New World Dictionary 999 (2d College Ed.1978). The phrase “having twenty percent stock ownership” is descriptive of the subject “employee of a corporation or limited liability company,” and, by comma placement, clearly is not descriptive of or applicable to the subject “officer or director of a corporation.” The statute, therefore, imposes personal liability for unpaid premiums upon officers or directors of a corporation irrespective of their ownership interest in the corporation. It also, however, imposes liability upon an employee of a corporation only if that employee has a 20% stock ownership and has control of or supervision over the filing of premium reports or making payment of premiums and fails to do so.

[¶ 12] Although not necessary to resolution of this issue, the legislative history also demonstrates the appellants’ interpretation is without merit. Prior to the amendment of the statute in 1995, personal liability for insurance premiums was generally imposed only against corporate officers and directors who had at least a 20% equity share in the corporation. See Raboin v. North Dakota Workers Compensation Bureau, 1997 ND 221, ¶ 6, 571 N.W.2d 833. At that time the statute provided:

Any officer, director, or any employee having twenty percent ownership of a corporation ... is personally liable for premiums or reimbursement, including interest, penalties, and costs in the event the corporation ... does not pay to the bureau those amounts for which the employer is liable.

N.D.C.C. § 65-04-26.1(1).

[¶ 13] In 1995, the statute was amended to allow the Bureau to hold all corporate officers and directors personally liable for unpaid insurance premiums, irrespective of their stock ownership. The amendments were included in House Bill 1329, and Assistant Attorney General Robert W. Morris, counsel for the Bureau, testified before both the House and the Senate Industry, Business & Labor Committees:

This section of the Bill proposes to make several changes to the present corporate officer liability provisions of the Workers Compensation Act....
First, the Bill proposes to clarify and broaden the officers that may be held personally liable. At the present time, it is unclear from the law whether liability may be imposed upon any officer plus any employee owning over twenty percent of the stock or whether an officer must own twenty percent of the stock to be liable. The Bill proposes to amend the language of the law to clarify that the former is true. Under House Bill 1329, any officer, regardless of stock ownership, plus any employee with a twenty percent ownership interest may be held personally liable.

We hold that, under N.D.C.C. § 65-04-26.1(1), an officer or director of a corporation can be held personally liable for unpaid worker’s compensation insurance premiums, irrespective of whether that individual has an ownership interest in the corporation.

IV

[¶ 14] Thompson, Geller, and Coutts argue that the Bureau’s commencement of and failure to prosecute a collection action against the corporation for the unpaid insurance premiums constituted an election of remedies precluding the Bureau from holding them personally liable for the unpaid premiums.

[¶ 15] The doctrine of election of remedies is applied when three elements are present: (1) the existence of two or more remedies; (2) inconsistency between the remedies; and (3) the choice of one remedy. Farmers Elevator & Mercantile Co. v. Farm Builders, Inc., 432 N.W.2d 864, 870 (N.D.1988). A trial court does not abuse its discretion by postponing the election of remedies until final judgment is entered. Id. Under the doctrine, a plaintiff is only required to elect between two remedies when those remedies are inconsistent. Barker v. Ness, 1998 ND 223, ¶ 9, 587 N.W.2d 183.

[¶ 16] The Bureau has authority under N.D.C.C. § 65-04-24 to sue an employer for unpaid premiums and also has authority to impose personal liability against corporate directors or officers under N.D.C.C. § 65-04-26.1(1). These remedies are neither exclusive nor inconsistent. If the worker’s compensation insurance premium remains unpaid, the Bureau can seek under these statutes payment from the employer and can also seek payment from individual corporate officers and directors. The appellants have not cited persuasive authority to support their position that the Bureau’s initiation of an action against the corporation precludes the Bureau from seeking payment of the unpaid premiums from the individual corporate officers and directors. We conclude their election of remedies issue is without merit.

V

[¶ 17] Thompson, Geller, and Coutts argue the Bureau’s attempt to hold them personally liable for the unpaid insurance premiums under N.D.C.C. § 65-04-26.1(1) violates due process and equal protection by denying them “their collective right to benefit from the res judicata and/or collateral estoppel effect of a dismissal with prejudice of the bureau’s civil action against the corporation, under failure to prosecute and/or laches grounds.” The appellants have not cited any authority supporting the claim of a constitutional violation. All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution. Olson v. Bismarck Parks and Recreation Dist., 2002 ND 61, ¶ 11, 642 N.W.2d 864. A party must “bring up the heavy artillery” when asserting a constitutional claim or forgo the claim entirely. State v. Kensmoe, 2001 ND 190, ¶ 19, 636 N.W.2d 183.

[¶ 18] The Bureau has not pursued its case against the corporation, because the Bureau believes that entity is now defunct and attempts at collection would be futile. Under N.D.C.C. § 65-04-26.1(2), the personal liability of corporate officers and directors survives dissolution, reorganization, or bankruptcy of the corporation. The Bureau has statutory authority to assess personal liability for unpaid insurance premiums on the corporation’s officers and directors, and there is no statutory requirement that the Bureau first attempt to settle its claim with the corporation. The appellants’ argument that the Bureau’s action to hold them personally liable for the unpaid insurance premiums violates their due process and equal protection rights is without merit.

VI

[¶ 19] The Bureau’s assessment of personal liability against Thompson, Geller, and Coutts for payment of unpaid worker’s compensation premiums of Grand Forks Professional Baseball, Inc., is in accordance with the law. Accordingly, we affirm the decision of the district court upholding the Bureau’s order imposing liability against these corporate officers and directors.

[¶ 20] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.

      . We note N.D.C.C. § 28-32-46 adds additional grounds for not affirming an administrative agency decision, effective August 1, 2001. However, the appeal from the Bureau's decision was filed on July 26, 2001. Therefore, former N.D.C.C. § 28-32-19 applies. See Henderson v. Dir., North Dakota Dep’t of Transp., 2002 ND 44, ¶ 6 n. 2, 640 N.W.2d 714.

      . We note, this statute has been recodified under N.D.C.C. § 28-32-49, effective August 1, 2001. The prior version of the statute applies because the appeal from the Bureau's decision was filed on July 26, 2001.


author: ZINTER, Justice.

text:
    2002 SD 139
    In the Matter of the ALCOHOL BEVERAGE LICENSE SUSPENSION OF CORK 'N BOTTLE, INC., d/b/a Cork 'N Bottle, Yankton, SD, License No’s PL-4964 and RB-2697.
    No. 22280.
    Supreme Court of South Dakota.
    Argued Oct, 7, 2002.
    Decided Nov. 20, 2002.

      Erich K. Johnke of James & Associates, Inc. Yankton, South Dakota, Attorney for appellant Cork 'n Bottle.
    Jack C. Magee, Assistant Attorney General Department of Revenue Pierre, South Dakota, Attorney for appellees Department of Revenue.
   ZINTER, Justice.

[¶ 1.] The Cork ⅛ Bottle Inc. (CNB), a Yankton convenience store, sold alcohol to an underage purchaser, and its alcohol licenses were suspended by the Department of Revenue (Department). The circuit court affirmed the suspensions. CNB appeals arguing that it substantially complied with a “safe harbor” statute that precludes license suspension if the licensee utilized five precautionary measures to prevent underage alcohol sales. One of these precautionary measures required that the employee who sold the alcohol must have attended a “Department approved” training program. Because the licensee did not send the employee to “Department approved” training, we affirm the suspensions.

FACTS

[¶2.] Eugene Jensen owns the CNB. CNB holds a package liquor license and a retail beer license. As a part of this business, Jensen developed training and incentive programs that he designed to help prevent underage alcohol sales.

[¶ 3.] Under Jensen’s training and incentive programs, new employees were advised about the legal consequences of selling alcohol to underage purchasers. Jensen also attended a Tobacco Alcohol Management course, and he reviewed the course materials with each new employee. Additionally, employees were taught how to detect false identifications; employees were offered a $300 “bounty” for confiscation of the driver’s license of an underage person attempting to purchase alcohol; and, employees were required to sign an “Employee Liquor Liability Employment Agreement.” In the agreement, each employee indicated that they understood, and would follow, all laws regarding the sale of alcoholic beverages. Finally, some, but apparently not all employees attended a “Department approved” Tobacco Alcohol Management course that provided instruction on techniques to prevent underage sales of alcohol.

[¶ 4.] The events that precipitated this controversy began in November of 2000. At that time, CNB was notified by the Yankton County State’s Attorney that he would initiate a “sting” to ensure compliance with the laws prohibiting underage alcohol sales. This sting notice advised licensees that an undercover, underage person would attempt to illegally purchase alcoholic beverages from licensees in Yankton County. Jensen placed this “sting warning” in a location plainly visible to all employees. He also posted his notice of the “$300 cash [bounty] to whomever keeps the ID card.”

[¶ 5.] On December 8, 2000, Bonnie Dougherty’s fourth day of employment, she sold a six-pack of beer to an undercover, underage purchaser. Dougherty sold the beer even though she asked for the purchaser’s identification. Dougherty testified that she had a “mental lapse” and mistakenly checked the purchaser’s birth date against the age required to purchase tobacco (age 18) rather than the age required to purchase alcohol (age 21).

[¶ 6.] Because of the illegal sale, the Department suspended CNB’s alcohol beverage licenses for two weeks pursuant to SDCL 35-2-10. CNB appealed the Department’s decision to circuit court. In that appeal, CNB argued that it had substantially complied with a statute that provides a safe harbor for those licensees who take certain precautionary measures to prevent underage alcohol sales. The circuit court affirmed the Department’s suspension.

[¶ 7.] The sole issue on appeal is:

Whether CNB substantially complied with the “Department approved” employee-training requirement of the safe harbor statute.

STANDARD OF REVIEW

[¶ 8.] The facts in this case are not in dispute. The issue before us is a question of law. We review questions of law under the de novo standard. Paint Brush Corp. v. Neu, 1999 SD 120, ¶ 15, 599 N.W.2d 384, 389. Furthermore, liquor-licensing statutes are strictly construed against the licensee. Consolidated Municipality of Carson City v. Lepire, 112 Nev. 363, 914 P.2d 631, 633 (Nev.1996) (quoting West Indies v. First National Bank, 67 Nev. 13, 214 P.2d 144, 154 (Nev.1950)). As we noted in State v. Hy Vee Food Stores, Inc., 533 N.W.2d 147, 150 (S.D.1995), “[t]he serious problems associated with youth who abuse alcohol justify stringent enforcement against those who dispense it.” (emphasis added).

DECISION

[¶ 9.] The Secretary of Revenue is charged with administering the state’s alcoholic beverage laws. SDCL 35-1-2. Under those laws, the Secretary is authorized to revoke or suspend the license of any business that violates the prohibition against sales to underage purchasers. SDCL 35-2-10 and 35-2-21. Moreover, before those statutes were amended in 2000, the Secretary could suspend an alcohol beverage license without giving any consideration to the licensee’s efforts to prevent illegal sales or its previous record of underage sales. Id.

[¶ 10.] However, in 2000, the Legislature enacted SDCL 35-2-10.1. That statute provided licensees with a safe harbor from license suspension if the violation was committed by an employee or agent of the licensee and five requirements were satisfied. The second requirement (SDCL 35-2-10.1(2)) provides that the employee who made the illegal sale must have been certified by a nationally recognized “training program approved by the Department.”

[¶11.] This appeal arose because Dougherty did not attend a training program that was approved by the Department. Although there is no dispute about this fact, CNB argues that its own program ensured that its employees understood the law regarding underage alcohol sales. CNB also argues that its program provided sufficient instruction on techniques to prevent underage persons from purchasing or consuming alcoholic beverages. Consequently, CNB contends that, even though it did not strictly comply with SDCL 35-2-10.1(2), CNB is entitled to safe harbor because it substantially complied by providing its own equivalent training measures.

[¶ 12.] We recently addressed the doctrine of substantial compliance. We held that substantial compliance is not established unless the statute has been actually followed sufficiently to carry out the substance essential to eveiy reasonable objective of the statute. In making that determination, we noted that consideration should be given to the intent and purpose of the statute.

Substantial compliance with a statute means actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court should determine whether the statute had been followed sufficiently so as to carry out the intent for which it was adopted. Substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case.

Wagner v. Truesdell, 1998 SD 9, ¶ 7, 574 N.W.2d 627, 629 (quoting State v. Bunnell, 324 N.W.2d 418, 420 (S.D.1982)). See also Peterson v. Hohm, 2000 SD 27, ¶ 12, 607 N.W.2d 8,11-12.

[¶ 13.] The general objective of “South Dakota alcoholic beverage laws manifest an unwavering public interest in prohibiting liquor sales to persons under twenty-one.” Hy Vee Food Stores, 533 N.W.2d at 150. However, substantial compliance also requires actual compliance in respect to the substance essential to every reasonable objective of the statute. Therefore, we must also consider the more specific objective of SDCL 35-2-10.1, which is intended to provide a safe harbor from license suspension if the licensee satisfies the five requirements of the statute. Significantly, those five requirements are listed in the conjunctive. Consequently, substantial compliance requires actual compliance in respect to the substance essential to the objective of each of the five requirements. To hold otherwise, would allow a licensee to pick and choose the requirements that the licensee, rather than the Legislature, deemed necessary to obtain safe harbor.

[¶ 14.] The training requirement at issue here requires that the employee “... has been certified by a nationally recognized training program approved by the Department.... ” CNB concedes that the intent of this plain language was “to ensure that the employee or agent attends a certified training program that provides instruction on techniques to prevent persons under the age of twenty-one years from purchasing or consuming alcoholic beverages.” Although CNB concedes that Dougherty did not attend a “Department approved” training program, CNB contends that its own training was sufficient to satisfy the statute’s general objective of prevention of underage alcohol sales. To support that contention, CNB points out that in addition to its in-house training, it offered its employees a financial incentive to avoid underage sales. CNB also argues that employee turnover in the convenience store business makes it impossible for an employer to send all of its employees to out-of-town training that is approved by the Department.

[¶ 15.] However, even if CNB’s efforts had some relation to the general objective of reducing underage alcohol sales, the more specific objective of SDCL 35-2-10.1(2) is to require training at a program approved by the Department. This plain and unambiguous language indicates that the Legislature intended that the Department, rather than the license holder, determine which training programs qualify for safe harbor protection. It also appears the purpose of this specific requirement was to give the Department, rather than the licensee, the decision to determine which programs best provide instruction on techniques to prevent underage persons from purchasing alcoholic beverages. Because the substance essential to the objective of SDCL 35-2-10.1(2) is to require attendance at a program approved by the Department, rather than other training deemed adequate by the licensee, CNB’s training did not substantially comply with the statute.

[¶ 16.] Remarkably, we reached an analogous conclusion in Brown v. State Board of Examiners in Optometry, 263 N.W.2d 490 (S.D.1978). There, an optometrist argued that he received sufficient continuing education hours to substantially comply with a board approved training requirement in SDCL 36-7-20.1 and 20.2. Although some of Brown’s hours were not approved by the State Board of Examiners in Optometry, he argued that attendance at non-approved courses constituted substantial compliance. We disagreed because the plain language of SDCL 36-7-20.2 required board-approved training.

[¶ 17.] Similarly, SDCL 35-2-10.1(2) requires that the licensee’s employees attend a Department approved training program, and Dougherty did not attend such a program. Instead, she only received in-house training from CNB’s owner. Because in-house training was not actual compliance in respect to the substance essential to every reasonable objective of the statute, we conclude that CNB did not substantially comply with the training requirement in SDCL 35-2-10.1(2).

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, SABERS and KONENKAMP, Justices,

[¶ 20.] AMUNDSON, Retired Justice, concur.

      . SDCL 35-2-10 provides: Any license issued under this title may, in compliance with chapter 1-26, be revoked or suspended by the secretary upon proof of violation by the licensee, his agents or employees or by the manager or contractual operators of retail establishments and their agents or employees operating under a county or municipal license, of any provision of this title, or any rule or regulation adopted by the secretary as provided in this title, or violation of ordinance or regulation of the political subdivision issuing the license relevant of alcoholic beverage control. For licensees with multiple alcoholic beverage licenses for the same premises, upon suspension or revocation of any license pursuant to this chapter, such licensee shall cease operation under all alcoholic beverage licenses held by such licensee for the same premises for the same period as the suspension or revocation.

      . SDCL 35-2-10.1 provides: No retail license may be revoked or suspended because of a violation of any statute, ordinance, rule, or regulation prohibiting the sale or service of any alcoholic beverage to a person under the age of twenty-one years if the violation was committed by an employee or agent of the licensee and:
      (1) The licensee did not see the violation occur;
      (2) The employee or agent has been certified by a nationally recognized training program approved by the Department of Revenue that provides instruction on techniques to prevent persons under the age of twenty-one years from purchasing or consuming alcoholic beverages;

        (3) The licensee has a written policy requiring the licensee's employees or agents to examine the driver’s license or other age-bearing identification document of any person who appears to be under the' age of twenty-one years before selling or serving any alcoholic beverage to that person, and the employee or agent has agreed in writing to abide by the policy;
      (4) The employee or agent has not been convicted of a similar violation within the past twelve months; and
      (5)The licensee has not had any prior violation of any statute, ordinance, rule, or regulation prohibiting the sale or service of an alcoholic beverage to a person under the age of twenty-one years on the premise where the violation occurred in the previous twelve months.
      SDCL 35-2-10.1 (emphasis added).

      . At the time Brown was decided those statutes provided:
      SDCL 36-7-20.1:
      All registered optometrists whenever licensed in the state of South Dakota are and shall be required to take annual courses of study in subjects relating to the practice of the profession of optometry to the end that the utilization and application of new techniques, scientific and clinical advances, and the achievements of research will assure expansive and comprehensive care to the public.

        Brown, 263 N.W.2d at 493, n. 2.
      SDCL 36-7-20.2 provided:
      The length of study required by § 36-7-20.1 shall be prescribed by the board but shall not exceed fifteen hours in any calendar year. Attendance must be at a course or courses approved by the board. Attendance at any course or courses of study are to be certified by the board upon a form provided by the board and shall be submitted by each registered optometrist at the time he makes application to the board for the renewal of his license and payment of his renewal fee. In no instance may the board require a greater number of hours of study than are available at approved courses held within the state and shall be allowed to waive this requirement in case of certified illness or undue hardship.
      (emphasis added). Id. at 493.


author: CARTER, Justice.

text:
    Richard BUSHBY, Judy Lucas, Gina Cucchiara, David Cucchiara, Kevin Ward, and Dale Gonterman, Appellants, v. WASHINGTON COUNTY CONSERVATION BOARD and Washington County Board of Supervisors, Appellees.
    No. 01-1548.
    Supreme Court of Iowa.
    Nov. 14, 2002.
    Rehearing Denied Jan. 2, 2003.

      Wallace L. Taylor, Cedar Rapids, for appellants.
    Barbara A. Edmondson, County Attorney, for appellees.
   CARTER, Justice.

Plaintiffs, Richard Bushby, Judy Lucas, Gina Cucchiara, David Cucchiara, Kevin Ward, and Dale Gonterman, opponents of a proposed tree-clearing project in a county park in Washington County, appeal from an adverse summary judgment denying injunctive relief. The appellees are the Washington County Conservation Board (conservation board) and the Washington County Board of Supervisors (board of supervisors). Appellants contend the actions of the two public boards violated the public-trust doctrine and were arbitrary, capricious, unreasonable, and an abuse of discretion. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

The pleadings, affidavits, and depositions that constitute the record on the summary-judgment motion reveal the following undisputed facts. Sockum Ridge is a 215-acre timber reserve and park in southern Washington County under the jurisdiction of the conservation board. The timber contains a large number of white oak, red oak, and shag bark hickory trees and has been left in a fairly natural state, except for development of a few hiking trails and a small pond.

On October 11, 2000, the conservation board held a public hearing on a proposal to increase timber-management activity at Sockum Ridge. A slide show was presented that revealed a plan for removal of dead and dying trees within the park and a proposal to clear-cut a five-acre zone within the park in order to promote the growth of oak trees and discourage the growth of more shade-tolerant trees. Several of the appellants appeared at the public hearing and spoke against the proposal.

At a meeting of the conservation board on November 8, 2000, the board’s executive director, Steve Anderson, presented a slide show concerning timber management problems in Sockum Ridge. As part of this presentation, Anderson proposed the removal of dead and dying trees in the Sockum Ridge timber and, in addition, the “clear-cutting” of five acres of timber (described as the five acres south of the upper parking area in the park). According to Anderson, the purpose of the clear-cutting was the removal of larger trees to facilitate the growth of younger oak trees. He stated that, if this was not done, undesirable shade-tolerant trees would predominate over more desirable trees. The proposal for removal of dead trees and a five-acre clear-cut was approved on a three-to-two vote of the conservation board.

At the December 13, 2000 meeting of the conservation board, a soil biologist appeared and gave assurances that the proposed tree harvest at Sockum Ridge would not produce erosion problems if done correctly. Several persons, including some of the appellants, appeared at this meeting and requested that the proposed tree harvest not be carried out.

On January 22, 2001, the appellants brought an action in equity, seeking to enjoin the conservation board from removing trees from the Sockum Ridge Park. One of the grounds urged in the petition was that the conservation board proposed to sell the trees for lumber and that to do so would be beyond the board’s authority. The district court, on February 20, 2001, concluded that only the board of supervisors could contract to sell the trees. Based on that conclusion, the court granted a temporary injunction against the proposed tree harvest.

The district court’s order prompted the board of supervisors to unanimously pass a resolution on March 27, 2001, following a public hearing, authorizing the county board to proceed with the harvest of dead and dying trees and a five-acre clear-cut. This authorization was conditioned on (1) the proceeds from the sale of the trees going into the county general fund, (2) limiting the harvesting of live trees in the five-acre clear-cut zone to trees of at least twelve inches in diameter, and (3) the removal of no trees from slopes or ravines.

In its meeting of April 11, 2001, the conservation board acquiesced in the conditions imposed by the board of supervisors and resolved to go forward with the tree-clearing project by a four-to-one vote. Shortly thereafter, the district court dismissed the temporary injunction prohibiting the tree removal and, in a subsequent ruling, granted summary judgment dismissing the petition for permanent injunction. This appeal followed.

I. Standard of Review.

A ruling granting summary judgment is reviewed on appeal for correction of errors at law. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000). Summary judgment is appropriate if there is no disputed issue of material fact and the moving party is entitled to judgment as a matter of law. See Iowa R. Civ. P. 1.981(3). On a motion for summary judgment, the record is viewed in the light most favorable to the nonmoving party. Crippen, 618 N.W.2d at 565.

II. Standing.

Appellees contend that appellants lack standing to challenge the action of the respective public bodies approving the proposed tree-removal project. Standing has been defined as the right of a person to seek judicial relief from an alleged injury. Clark v. Iowa State Commerce Comm’n, 286 N.W.2d 208, 210 (Iowa 1979). Recently, the court stated that, upon an objection of standing, the burden is on the plaintiff “to show (1) a specific, personal, and legal interest in the litigation, and (2) injury.” Rieff v. Evans, 630 N.W.2d 278, 284 (Iowa 2001). While this court has dealt with issues of standing in many cases, we have not yet discussed the requisite standing requirements for environmental cases.

The United States Supreme Court has held that plaintiffs in cases involving environmental concerns establish standing if “they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 183, 120 S.Ct. 693, 705, 145 L.Ed.2d 610, 628 (2000) (citing Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636, 643 (1972)). We apply that standard in the present case and conclude that plaintiffs have alleged sufficient facts to confer standing.

III. The Authority of the Conservation Board and Board of Supervisors to Approve the Cutting of Timber.

We first discuss the authority of these two public boards to approve the tree-clearing project at Soekum Ridge Park. Iowa Code chapter 350 empowers counties to create a county conservation board upon approval of the voters. Iowa Code § 350.2 (1999). County conservation board members are appointed by the board of supervisors. Iowa Code §§ 331.321(l)(b), 350.2. Among other duties, county conservation boards have control over all property acquired by the county for county forests. Iowa Code § 350.4. In managing such areas, the conservation board is authorized to “plan, develop, preserve, administer and maintain all such areas, places and facilities.” Iowa Code § 350.4(4). Pursuant to section 350.10, county conservation boards also have the powers set forth in sections 461A.35 through 461A.57, including:

The commission may enter into agreements for the removal of ice, sand, gravel, stone, wood, or other natural material from lands or waters under the jurisdiction of the commission if, after investigation, it is determined that such removal will not be detrimental to the state’s interest. The commission may specify the terms and consideration under which such removal is permitted and issue written permits for such removal.

Iowa Code § 461A.53. We are satisfied that the proactive management of trees in forested areas under the conservation board’s control is authorized by the statutes we have identified.

The board of supervisors’ duties and powers relating to the sale of county property include:

In disposing of an interest in real property by sale ... the following procedures shall be followed, except as otherwise provided by state law:
a. The board shall set forth its proposal in a resolution and shall publish notice of the time and place of a public hearing on the proposal, in accordance with section 331.305.
b. After the public hearing, the board may make a final determination on the proposal by resolution.

Iowa Code § 331.361(2). The board of supervisors followed this procedure in authorizing the removal and sale of trees from Soekum Ridge Park.

IV. The Public Trust Doctrine.

Appellants contend that these public bodies could not lawfully remove trees from Soekum Ridge because the natural timber is a public trust. The public-trust doctrine on which appellants rely is based on the idea that the public possesses inviolable rights to particular natural resources. Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 813 (Iowa 2000). The purpose of the public-trust doctrine is to prohibit states from “conveying important natural resources” to private parties. Id. at 814 (citing Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452-53, 13 S.Ct. 110, 118, 36 L.Ed. 1018, 1042-43 (1892)).

In Iowa this doctrine was originally applied to the beds of navigable waters and has been expanded to include the recreational use of lakes and rivers. Id. at 813. Nevertheless, the scope of the public-trust doctrine in Iowa is narrow, and we have cautioned against overextending the doctrine. Id. We are convinced that it does not serve as an impediment to legally sanctioned management of forested areas by the public bodies entrusted by law with their care. As discussed in the prior division of this opinion, the authority of the conservation board and board of supervisors to manage this forested area is sanctioned by statute. The district court properly rejected appellants’ contentions based on the public-trust doctrine.

Y. Should the Proposed Cutting of Trees be Enjoined Because the Action Approving it was Arbitrary and Unreasonable.

Appellants urge that the action of the conservation board and board of supervisors, which they challenge, was so arbitrary and unreasonable as to be unlawful. In response to this claim, the appel-lees urge that this court has severely limited the basis for challenging the action of political subdivisions. They urge that such limitation is found in the following statement:

A municipal corporation and its officers ordinarily will not be restrained because their action is unwise, extravagant, or a mistake of judgment, but only where the action complained of is illegal, fraudulent, or clearly oppressive.

Douglass v. City of Iowa City, 218 N.W.2d 908, 913 (Iowa 1974).

Appellants respond that school districts are political subdivisions, and for purposes of challenging actions taken by those bodies, this court has stated:

The courts of this state are not concerned with the wisdom of discretionary acts on the part of school boards.... The duty of all courts ... is to uphold a school regulation unless it is clearly arbitrary and unreasonable.... [0]ur task is to determine whether it is so unreasonable and arbitrary as to be illegal, void and unenforceable.

Bd. of Dirs. of Indep. Sch. Dist. of Waterloo v. Green, 259 Iowa 1260, 1267, 147 N.W.2d 854, 858 (1967). Appellants urge that the action of the conservation board and board of supervisors was so arbitrary and unreasonable as to fail under this test. We disagree.

It is significant that appellants make no effort to establish that the tree removal that was approved was unreasonable based on the merits of the action to be taken. Instead, they urge that the action approving the tree removal was arbitrary and capricious because the members of the conservation board and board of supervisors who voted to approve the tree removal were not aware of the number of trees to be removed, their location within the park, or why the executive director of the conservation commission contended that removal of the trees was the proper thing to do. We find no merit in this contention. The extent of the proposed tree removal was discussed at three meetings of the conservation board and at the board of supervisors meeting that authorized the proposed tree-removal project. The extent of the project was clearly designated in the resolutions of the respective boards approving same. The tree removal was described as all dead and dying trees within the 215-acre park and all trees of twelve-inch or greater diameter (except trees located on slopes or in ravines) in a five-acre zone within the park.

The reason for the proposed tree removal had been fully discussed by the conservation board before the resolution approving it was adopted. The project was a reinitiation of an identical project approved in 1989 but not carried out. It was based on the view of professional foresters that pressure from more shade-tolerant trees had to be taken off the oak trees. Also considered was a potential use of the five-acre zone as an educational project for timber management. The dispute between the proponents and opponents of the plan arose from a difference in philosophy as to whether publicly owned timber should be actively managed or left to the devices of nature. The public agencies entrusted with that decision elected to impose a degree of active management. It was clearly within their authority to make this choice.

Although the resolutions of the two public bodies do not describe the location of the five-acre zone in which the clear-cut is to occur, it is clear from the record that, in presenting the matter to the conservation board at its November 8, 2000 meeting, its executive director identified the location of this zone within the park. (It is described in the record as the five acres south of the upper parking area in the park.) Similarly, although the precise number of trees of twelve-inch diameter or the number of dead and dying trees that will be cut was not identified in the resolutions authorizing this action, we are confident that the members of the public bodies who voted to approve the project were aware of its scope. The action of the conservation board and board of supervisors has not been demonstrated to have been unreasonably or arbitrarily exercised.

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

AFFIRMED.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Ronald Truman HOBBS, Appellant.
    No. 00-1750.
    Supreme Court of Iowa.
    Dec. 18, 2002.

      Webb L. Wassmer of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Todd Holmes, County Attorney, and T.J. Braunschweig, Assistant County Attorney, for appellee.
   LARSON, Justice.

Ronald Hobbs was convicted of bootlegging, maintaining a liquor nuisance, and failure to have a beer permit in violation, respectively, of Iowa Code sections 123.59, 123.60, and 123.22 (1999). The defendant appealed. We conclude there was insufficient evidence to sustain the convictions and therefore reverse and remand for dismissal.

I. Facts and Prior Proceedings.

On July 26, 1999, Scott Beach (the defendant’s nephew) and Dustin Hobbs (the defendant’s son) provided beer to RAG-BRAI riders from a tent located in rural Kossuth County. Defendant Hobbs was not at the tent at all that day. The beer, according to the defendant, was free, but jars labeled “tips” were placed on the counter in the tent. Hobbs had applied for a beer permit, but the permit was denied. After the denial, the owner of the property with whom Hobbs had contracted to set up the tent told him he could have a party for the RAGBRAI riders on the land and give the beer away. Beach testified that the “state people” told him that they could give the beer away but receive tips for their service. This contention was neither confirmed nor denied by the State’s witnesses. The Kossuth County Sheriff testified that he told Beach to close down the tent, since he was not allowed to sell, dispense, or give away alcohol. He said that Beach told him they were not selling beer; they were just accepting tips for their service.

Hobbs was convicted, following a jury trial, of all three offenses. He was sentenced to 180 days on each of the offenses to be served concurrently with 150 days of the sentences to be suspended on each count. He was ordered to pay a $1000 fine and surcharge of $300 on each count. He was also ordered to complete a counseling program, but the State now concedes that was error.

II. The Bootlegging Charge.

Section 123.59 provides:

Any person who, acting individually, or through another acting for the person, keeps or carries on the person, or in a vehicle, or leaves in a place for another to secure, any alcoholic liquor, wine, or beer, with intent to sell or dispense the liquor, wine, or beer, by gift or otherwise in violation of the law, or who, within this state, in any manner, directly or indirectly, solicits, takes, or accepts an order for the purchase, sale, shipment, or delivery of alcoholic liquor, wine, or beer in violation of law, or aids in the delivery and distribution of alcoholic liquor, wine, or beer so ordered or shipped, or who in any manner procures for, sells, or gives alcoholic liquor, wine, or beer to a person under legal age, for any purpose except as authorized and permitted in this chapter, is a bootlegger and subject to the general penalties provided by this chapter.

Bootlegging was instructed under three alternative means of commission, as provided by section 123.59: (1) keeping with intent to sell or dispense beer by gift or otherwise in violation of the law; or (2) directly or indirectly soliciting, taking, or accepting orders for the purchase, sale, shipment, or delivery of beer in violation of the law; or (3) aiding in the delivery of beer to a person under the legal age.

The jury returned a general verdict of guilty on the bootlegging charge without identifying the alternatives on which the jury relied. The State concedes it had presented no evidence of furnishing beer to underage drinkers, so that alternative had no support in the record. The remaining means of committing bootlegging require proof that the defendant sold or otherwise delivered the beer in violation of the law. For reasons discussed later, the State’s proof failed to establish a sale or gift in violation of the law.

III. The Liquor Nuisance Charge.

Section 123.60 defines nuisance as:

The premises where the unlawful manufacture or sale, or keeping with intent to sell, use or give away, of alcoholic liquors, wine, or beer is carried on, and any vehicle or other means of conveyance used in transporting liquor, wine, or beer in violation of law, and the furniture, fixtures, vessels and contents, kept or used in connection with such activities are nuisances and shall be abated as provided in this chapter.

The gist of the nuisance offense is the sale “or keeping with intent to sell, use or give away” the beer. The State contends the beer was kept with the intent to sell it, or as an alternative argument, it was kept on the premises with the intent to give it away.

A. The evidence of sale. The State introduced evidence that RAGBRAI riders were observed receiving beer and placing money in the tip jar, but taking this evidence in the light most favorable to the verdict, it does not establish more than what the defendant concedes — beer was dispensed and money was placed in the tip jars. While one could assume that a “tip” was required, making the transaction a sale, there was no evidence to support this assumption. Witnesses for the State testified that all of the people they observed drinking beer in or around the tent put money in the tip jar. However, there was no evidence to show they were required to do so. The State did not present any evidence through controlled buys by law enforcement personnel, any of the beer-tent patrons, or any other witnesses that this was the fact. We believe the record simply does not support a finding that beer was sold.

B. The gift alternative. The State argues that the statute also prohibits the keeping of beer “with intent to give [it] away.” While on its face the statute appears to cover any case in which a defendant gives beer away or keeps it with the intent to give it away, the statute cannot reasonably be interpreted in such a broad manner. To do so would criminalize a social host’s possession of beer with the intent to serve it to guests.

We believe the “giving away” language of section 123.60 must be given a reasonable reading and must be limited to those cases in which the gift itself is illegal — such as giving beer to a minor or to an intoxicated person. Merely keeping beer with intent to give it away does not constitute a liquor nuisance.

The charge of maintaining a liquor nuisance, therefore, cannot be sustained under either the sale or gift alternative.

IV. The Charge of Failure to Have a Permit.

Iowa Code section 123.122 provides:

A person shall not manufacture for sale or sell beer at wholesale or retail unless a permit is first obtained as provided in this division or, a liquor control license authorizing the retail sale of beer is first obtained as provided in division 1 of this chapter. A liquor control license holder is not required to hold a separate class “B” beer permit.

For the reasons previously discussed, there was inadequate evidence to support a finding that the defendant sold beer. For this reason, a charge of failure to have a permit to sell beer cannot be sustained.

V. Disposition.

Because the charges cannot be affirmed for the reasons discussed, we reverse and remand for dismissal of the charges.

REVERSED AND REMANDED.


author: TERNUS, Justice.

text:
    In the Interest of L.M. and D.M., Minor Children, S.M., Mother, Appellant.
    No. 02-0301.
    Supreme Court of Iowa.
    Dec. 18, 2002.

      Scott Bandstra, Des Moines, for appellant mother.
    Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, John Sarcone, County Attorney, and Martha Johnson, Assistant County Attorney, for appellee State of Iowa.

      Victoria Meade, Des Moines, guardian ad litem for minor children.
   TERNUS, Justice.

The juvenile court terminated the parental rights of S.M., appellant, to her two children, L.M. and D.M. The termination order was affirmed by the court of appeals. We granted further review to consider the mother’s challenge to the expedited procedures for appeal in termination cases and her ineffective-assistance-of-counsel claim. Upon our review of the arguments of the parties, we affirm.

I. Background Facts and Proceedings.

S.M. is the mother of two children, L.M., born in June 1998, and D.M., born in December 1996. The children were adjudicated in need of assistance in late 1998, based on findings that the mother had left the children home alone on several occasions and did not provide the children adequate nutrition. They were placed in the temporary custody of their maternal grandmother.

Despite services provided to the mother, the State concluded she had not made sufficient progress. So, in November 1999, the State filed a petition to terminate S.M.’s parental rights. The children were removed from their grandmother’s care and placed in a foster home. Thereafter, the juvenile court entered an order terminating S.M.’s parental rights. This order was reversed by the court of appeals, however, for reasons that are not germane to the present appeal. On March 14, 2001, the court of appeals remanded the case to the juvenile court to proceed in the best interest of the children.

Upon remand, the State made numerous attempts to provide services to the mother. Having little success, the State filed a second petition to terminate parental rights on August 30, 2001. After hearing, the juvenile court again terminated the mother’s parental rights, concluding the prerequisites for termination under section 232.116(l)(e) and (g) had been met. See Iowa Code § 282.116(l)(e), (g) (2001).

S.M. filed an appeal under the expedited procedures set forth in the Iowa Rules of Appellate Procedure. See generally Iowa Rs.App. P. 6.5(2), .6(3)-(4), .10(2), .151-.154. The court of appeals affirmed the termination order and this court granted further review.

II. Issues on Appeal.

S.M. raises five issues on appeal: (1) there was not clear and convincing evidence that her children could not be returned to her care; (2) the State did not provide reasonable services to her in an effort to reunite the family; (3) the services offered by the State did not reasonably accommodate her mental disability; (4) the reduced time for filing a notice of appeal in termination-of-parental rights cases violates her right to equal protection; and (5) the preparation and filing of a brief within the shortened time period allowed in termination cases is per se ineffective assistance of counsel.

Although we have reviewed the record and carefully considered all issues raised by the mother in her application for further review, we will limit our discussion in this opinion to the equal protection and ineffective-assistance-of-counsel claims. With respect to the other three issues, we conclude they pose no legal impediment to termination and, upon our de novo review, we concur in the juvenile court’s termination decision. Any additional discussion in this opinion would not add to the analysis or discussion in the prior opinions of the court of appeals and juvenile court.

III. Equal Protection.

Our review of claims under the Equal Protection Clause is de novo. See In re C.M., 652 N.W.2d 204, 209 (Iowa 2002). The party mounting an equal protection challenge to a rule must “negate every reasonable basis” upon which the rule could be sustained. Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 688 (Iowa 2002).

The Fourteenth Amendment prohibits a state from “denying] to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. This constitutional provision “requires that similarly-situated persons be treated alike.” Bowers, 638 N.W.2d at 689. It also requires that any classification of persons be justifiable under the applicable constitutional standard. Id. When “the challenged statute classifies persons in terms of their ability to exercise a fundamental right or when it classifies or distinguishes persons by race or national origin,” the State must show “that the classification is narrowly tailored to serve a compelling government interest.” In re Detention of Williams, 628 N.W.2d 447, 452 (Iowa 2001). Where a suspect class or fundamental right is not involved, the State need'only show it has a rational basis for the classification. Bowers, 638 N.W.2d at 689.

Here, the mother claims the strict scrutiny standard applies because the appeal affects her “fundamental ‘liberty interest in the care, custody and control of her child.’ ” See In re K.M., 653 N.W.2d 602, 607 (Iowa 2002) (citation omitted). A question with respect to the standard to be applied under the Equal Protection Clause also arose in In re C.M., 652 N.W.2d at 210, a case in which the mother, as here, challenged the abbreviated procedures for termination cases. In In re C.M., we noted the possibility that the strict scrutiny standard applied due to the involvement of a fundamental right. Id. We also pointed out, however, that the right directly affected — the right to an appeal — was not fundamental and only warranted an examination of the rules for purposes of ascertaining a rational basis for the classification. Id. As in In re C.M., we need not resolve this question because even under the more exacting standard, the challenged rules pass constitutional muster.

Our decision in In re C.M. provides helpful guidance. In that case, the mother claimed “the use of a petition on appeal in lieu of full briefing violate[d] her right to equal protection of the law by restricting her access to the appellate courts in comparison to appellants in other civil and criminal cases.” Id. at 209. Our court rejected this challenge, holding that “the State’s interest in obtaining a permanent home for a child as soon as possible is a compelling governmental interest.” Id. at 211. We also concluded “that the expedited procedure embodied in the appellate rules is narrowly tailored to address the State’s compelling interest.” Id. Accordingly, we found no equal protection violation. Id.

The challenge to the rules made in the present case is a variation of the one asserted in In re C.M! Here, the mother focuses on the reduced time for filing a notice of appeal in termination-of-parental-rights cases as compared to the time allowed in other types of appeals. Under Iowa Rule of Appellate Procedure 6.5(2), an appellant in a termination case has only fifteen days, rather than the usual thirty days, to file a notice of appeal. Compare Iowa R.App. P. 6.5(2); with Iowa R.App. P. 6.5(1). We find no constitutional infirmity in this rule for the same reasons we found no problem with the more streamlined briefing format questioned in In re C.M. The State has a compelling interest in finalizing permanent placements for children as soon as possible and a reduction in the time for filing a notice of appeal is narrowly tailored to accomplish that objective. S.M.’s equal protection claim is denied.

IV. Ineffective Assistance of Counsel.

Ineffective-assistance-of-counsel claims are reviewed de novo. See State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999). To succeed, the mother must establish two elements: “(1) counsel’s performance was deficient, and (2) actual prejudice resulted.” In re C.M., 652 N.W.2d at 207.

S.M. does not claim that her own attorney’s performance was deficient in any particular way. Rather, she makes the interesting argument that any attorney representing a parent in compliance with the expedited appellate procedures for termination-of-parental-rights cases is ineffective. She focuses on the new requirement that a petition on appeal must be filed within fifteen days after filing the notice of appeal, claiming that fifteen days does not allow adequate time for preparation of the required pleading. Compare Iowa R.App. P. 6.6(4) (providing that petition on appeal in termination-of-parental-rights cases must be filed within fifteen days from the filing of the notice of appeal), with Iowa R.App. P. 6.13 (allowing fifty days after filing the notice of appeal in which to file appellant’s proof brief in all cases not subject to shortened deadlines). In particular, she contends that counsel is precluded from “cit[ing] specific parts of the record to show the appellate court how the trial court erred” because the transcript of the trial cannot be prepared within the fifteen-day timeframe.

We do not agree with the mother’s argument that the shortened time for filing a petition on appeal automatically results in deficient performance by appellate counsel. The rules contemplate that the petition will be prepared by trial counsel. See Iowa R.App. P. 6.6(4) (requiring trial counsel to prepare the petition absent “a showing of extraordinary circumstances”). The petition itself is a streamlined, fill-in-the-blanks form, designed to be completed in an expeditious manner. See generally Iowa R.App. P. 6.751 — Form 4. With respect to factual matters, the appellant is merely asked to “state the material facts as they relate to the issues presented for appeal.” Id.; accord Iowa R.App. P. 6.151(2)(c). As for the legal aspects of the appeal, counsel is simply required to “[s]tate the legal issues presented for appeal, including a statement of how the issues arose and how they were preserved for appeal,” with a citation to supporting legal authority. See Iowa R.App. P. 6.751 — Form 4; accord Iowa R.App. P. 6.151(2)(d), (e). Thus, counsel is not expected to exhaustively review the evidence at trial, nor must counsel cite to the record to demonstrate error. Verification of counsel’s statements of the facts and issues preserved will be undertaken by the reviewing court, which will have the trial transcript available for reference. Even in the extraordinary situation where trial counsel does not prepare the petition on appeal, the new attorney would most likely be able to consult with trial counsel and the client, as well as be able to review the court file.

We simply cannot conclude, as the appellant asks, that an attorney who files a petition on appeal within the fifteen-day deadline is per se ineffective. Therefore, we reject S.M.’s claim of ineffective assistance of counsel.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.