author:
      ECKRICH, Circuit Judge.
      MEIERHENRY, Justice GILBERTSON, Chief Justice,

text:
    2004 SD 136
    Burnell OLESEN and Mary E. Olesen, Plaintiffs and Appellees, v. TOWN (City) OF HURLEY, Defendant and Appellant.
    No. 22934.
    Supreme Court of South Dakota.
    Considered on Briefs June 1, 2004.
    Decided Dec. 29, 2004.

      Samuel M. Goodhope of Moore, Rasmussen, Kading, and Kunstle, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellees.
    Timothy W. Bjorkman of Bjorkman & Fink, Bridgewater, South Dakota, Attorneys for defendant and appellant.
   ECKRICH, Circuit Judge.

[¶ 1.] City of Hurley (City) appeals 1) the trial court’s determination that it was not entitled to summary judgment on the issue of sovereign immunity and 2) the trial court’s grant of partial summary judgment to Burnell and Mary E. Olesen (Olesens) holding that City’s operation of a restaurant was an ultra vires act. We affirm.

FACTS

[¶ 2.] Olesens operated Little Philly’s Café in Hurley, South Dakota from the mid-1980s until 1998. From 1995 until this lawsuit commenced in 1998, the City sold food within the confínes of the-Hurley Municipal Bar. Little Philly’s and the bar were the only two competing food service establishments in Hurley, City’s restaurant served alcohol; whereas Olesens’ did not.

[¶ 3.] The parties co-existed peacefully together until 1995 when City expanded its food preparation and service facilities. The expansion allowed City to offer full course meals. City’s menu included lunch and supper- — offered six days a week-featuring steaks, salads, potatoes, a variety of hot sandwiches, various appetizers, and other hot food. The expansion of City’s menu was a substantial departure from its past offerings of potato chips, chislic, and snack food.

[¶ 4.] On April 28, 1998, Olesens filed a complaint against City alleging City’s operation of its restaurant was an ultra-vires act that unfairly competed with their business. City denied the allegations in the Olesens’ complaint. At this time, City was insured with EMC Insurance Company (EMC).

[¶ 5.] Thereafter, on March 25, 2000, the trial court granted Olesens’ motion impartial summary judgment determining that as a matter of law City’s service of food in its restaurant was an ultra-vires act. However, the question of damages was left for a jury determination. Following a lengthy hiatus, the case was scheduled for a jury trial to commence on April 2, 2003.

[¶ 6.] On March 10, 2003, three weeks before trial, City filed a motion for summary judgment. City’s summary judgment motion, filed after five years of litigation, alleged that City was immune from liability pursuant to SDCL 21-32A-1 and 3. This was the first time the sovereign immunity defense was raised. The only evidence presented by City in support of its motion for summary judgment was an affidavit from the City Finance Officer Tracy Hummel. This affidavit provided in pertinent part: “The City of Hurley received a letter from EMC, our insurance company, dated March 29, 2000, in which EMC informed the City it was withdrawing its insurance defense and any potential indemnity on the Olesens’ claim for the reason that the-trial court ... had granted the Olesens summary judgment as to Tia-bility on the grounds that the City’s conduct was ultra-vires as a matter of law.”

[¶ 7.] The trial court denied City’s motion for summary judgment. A jury trial commenced on the issue of damages and the jury returned a verdict for the Oles-ens. After trial, City renewed its sovereign immunity defense through post-trial motions. Through these post-trial motions City added its EMC insurance policies into the record. In effect, City was asking the trial court to hear a declaratory judgment action after the adverse jury verdict. The trial court denied City’s renewed motions for summary judgment. City appeals raising the following issues:

Whether sovereign immunity shielded City from liability.
Whether City’s express authority to operate a municipal bar implied authority to operate a restaurant.

STANDARD OF REVIEW

[¶ 8.] City appeals both the grant and denial of the summary judgment motions. Our standard of review on summary judgment is well-settled.

We must determine whether -the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Cromwell v. Rapid City Police Department, 2001 SD 100, ¶ 7, 632 N.W.2d 20, 23. “[S]ummary judgment will be affirmed ‘only when there are no genuine issues of material fact and the legal questions have been correctly decided.’ ” Casazza v. State, 2000 SD 120, ¶ 8, 616 N.W.2d 872, 874. Additionally, whether City is protected by sovereign immunity is a question of law, reviewed de novo. Hansen v. South Dakota D.O.T., 1998 SD 109, ¶ 7, 584 N.W.2d 881, 883.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 9.] Whether sovereign immunity shielded City from liability.

[¶ 10.] During the course of this matter City asserted the defense of sovereign immunity at two stages of the proceedings: First, three weeks before trial; second, three weeks after trial.

[¶ 11.] City claimed immunity from Olesens’ suit pursuant to SDCL 21-32A-1. That statute provides in pertinent part: “To the extent that any public entity ... purchases liability insurance and to the extent that coverage is afforded thereunder, the public entity shall be deemed to have waived the common law doctrine of sovereign immunity and shall be deemed to have consented to suit.” SDCL 21-32A-1. The terms of SDCL 21-32A-1 are unambiguous. Therefore, City faced liability to the extent coverage was afforded by its insurance coverage and was deemed to have waived its sovereign immunity in that respect. Cromwell, 2001 SD 100, ¶ 17, 632 N.W.2d at 25.

[¶ 12.] Although City claims that the affidavit of the finance officer established as a matter of law the extent of the insurance coverage afforded to City, that assertion is unsupported by the record. SDCL 15 — 6—56(e) requires that affidavits be based on personal knowledge and supported by facts that would be admissible into evidence. Mere conclusory allegations are not substitutes for specific facts. The finance officer’s affidavit only established that EMC denied coverage to City. This affidavit did not establish, as a matter of law, the extent of City’s insurance coverage. Therefore, the trial court’s decision denying City’s first motion for summary judgment is affirmed.

[¶ 13.] Following trial of this matter, City renewed its sovereign immunity defense by way of a second motion for summary judgment. This time, City’s motion included an affidavit which authenticated its EMC insurance policies. However, this motion was not timely made. Sovereign immunity is an affirmative defense. SDCL 21-32A-3. Motions to dismiss for failure to state a claim and for ^summary judgment must be made before trial. SDCL 15 — 6—12(c). The question of sovereign immunity is an issue that “should be resolved as early as possible.” Swedlund v. Foster, 2003 SD 8, ¶ 12, 657 N.W.2d 39, 45. The trial court’s denial of City’s post-trial motion for summary judgment is affirmed.

ISSUE TWO

[¶ 14.] Whether City’s express authority to operate a municipal bar implied authority to operate a restaurant.

[¶ 15.] Municipalities “possess only those powers conferred upon them by the Legislature ... [but] a grant of authority includes those incidental or implied powers that are necessary to enable a municipality to perform the function authorized.” City of Rapid City v. Rensch, 77 S.D. 242, 90 N.W.2d 380, 383 (S.D.1958); Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89 (1944). This is a fundamental rule of statutory construction known as “Dillon’s Rule.” It is a rule of strict construction. The rationale for the strict construction of a municipalities’ powers is because a “city, as such, has no inherent powers, and none of the attributes of sovereignty.” Ericksen, 70 S.D. at 53, 14 N.W.2d at 95. Historically, South Dakota cases which have considered the scope of a City’s implied powers have applied a reasonably strict standard. See id. at 95. (“The policy of the law is to require of municipal corporations a reasonably strict observance of their powers.”). In practice, a reasonably strict standard is, in part, a recognition that the scope of a City’s implied powers will depend upon the circumstances of each ease.

[¶ 16.] However, other rules of statutory construction may also apply when looking to the statutory grant of authority. For example, “in construing statutes, the terms of a statute relating to a particular subject will prevail over general terms of another statute.” Donovan v. City of Deadwood, 538 N.W.2d 790, 793 (S.D.1995). Additionally, the specific language of an enabling statute can make a difference. For example, “[t]he power to issue bonds for á specific purpose excludes the possibility of an implication of power to issue bonds for other purposes.” State ex rel Jacobsen v. Hansen, 75 S.D. 476, 480, 68 N.W.2d 480, 482 (1955). Likewise, when municipalities’ police powers are involved they are also strictly construed. See City of Sioux Falls v. Peterson, 71 S.D. 446, 25 N.W.2d 556, 557 (S.D.1946) (“It is a principle settled by the concurrence of many authorities that acts of the state legislature granting the police power to municipal corporations ... will be strictly construed.”). On the other hand, if the legislature’s intention is comprehensive and unambiguous, the courts will not interfere unless City’s action was inappropriate and unreasonable. See id. at 557 (recognizing the municipal authority to regulate traffic implies broad authority.)

[¶ 17.] With these principles in mind, the inquiry here is whether, under the undisputed facts of this case, the City’s statutory authorization to operate' a bar implied a necessary power to operate a restaurant in that bar?

[¶ 18.] City’s express authority to operate a bar is found in SDCL 9-29-6. That statute provides: “Every municipality shall have powers to engage in retailing alcoholic beverages as provided in Title 35.” SDCL 9-29-6. The parties have spent a fair amount of time arguing about acceptable bar food versus non-acceptable bar food. The focus is not whether potato chips, ehislic or snack foods are or are not acceptable bar food. This decision concentrates its focus on the scope and nature of City’s, restaurant operation. Here, City, under the guise of a municipal bar, offered full-course lunch and supper meals six days a week. City’s expanded restaurant operation was only made possible because of its decision to upgrade, renovate, and expand commercial kitchen facilities. Additionally, in 1998 when this lawsuit was commenced, City’s revenue from food was nearly $67,000. City’s revenue from on-sale beer was $46,742. City’s revenue from on-sale liquor was $7,923. These figures do not suggest that City’s restaurant business was merely incidental to its bar business.

[¶ 19.] City has an on-sale liquor license granted to it by express statutory authority. This license clearly gives City the power to sell alcohol upon the premises. However, City’s express power to sell alcohol by the glass does not, in these circumstances, imply a necessary power to operate a restaurant. The trial court’s decision is affirmed.

[¶ 20.] KONENKAMP and ZINTER, Justices, concur.

[¶ 21.] MEIERHENRY, Justice, concurs with writing.

[¶ 22.] GILBERTSON, Justice, dissents.

[¶ 23.] ECKRICH, Circuit Judge, for SABERS, Justice, disqualified.

MEIERHENRY, Justice

(concurring).

[¶ 24.] I concur with the majority opinion on both issues. The legislature has authorized a municipality to operate an on-sale liquor establishment. It has not authorized a municipality to operate a restaurant. Whether, or -to what extent, cities should be able to serve meals in conjunction with selling liquor is a policy decision best left to the legislature.

[¶ 25.] I also would affirm the trial court's decision in denying the City’s belated defense of sovereign immunity. In addition to the defense being untimely, operating a bar is not a'governmental activity subject to the defense of sovereign immunity. We have consistently held that sovereign immunity does not apply to a business enterprise run by the government. See Aune v. B-Y Water District, 464 N.W.2d 1, 2-5 (S.D.1990); L.R. Foy Const. Co., Inc. v. South Dakota State Cement Plant Com’n, 399 N.W.2d 340, 346-49 (S.D.1987); Oien v. City of Sioux Falls, 393 N.W.2d 286, 290-91 (S.D.1986). •

GILBERTSON, Chief Justice,

(dissenting)..

[¶ 26.] I respectfully dissent. I would reverse the lower court on Issue 2. I would hold the trial court erred when it granted partial summary judgment to 01-esens, holding City’s operation of food service at the municipal bar was an ultra vires act.

[¶27.] An express grant of authority from the legislature “includes those incidental or implied powers that are necessary to enable a municipality to perform the function authorized.” City of Rapid City v. Rensch, 77 S.D. 242, 246, 90 N.W.2d 380, 383 (1958) (citation omitted). A municipality is vested with discretion as to how it exercises specific powers conferred upon it by the legislature, as long as the methods employed are not limited by either, the state constitution or the legislature itself. Robbins v. Rapid City, 71 S.D. 171, 176, 23 N.W.2d 144, 147 (1946) (citation omitted). Municipalities are precluded from engaging in ultra vires acts for which there is no antecedent legislative authority. Ericksen v. City of Sioux Falls, 70 S.D. 40, 53, 14 N.W.2d 89, 95 (1944).

[¶ 28.] “Our Court has a history of not interfering with municipal governments unless their actions are palpably arbitrary, unreasonable,, or beyond their authority.” City of Marion v. Schoenwald, 2001 SD 95, ¶ 7, 631 N.W.2d 213, 216 (citations omitted). We have on several occasions upheld a municipality’s incidental acts exercised in the course of its express authority. See Snow Land, Inc. v. City of Brookings, 282 N.W.2d 607, 608 (S.D.1979) (holding municipality’s express authority to prohibit all Sunday liquor sales under SDCL 35-6-30 included implied authority to also ban low-point beer Sunday sales, despite state’s proscription under SDCL 35-4-81 which prohibited sales of low-point beer sales on Sunday between certain hours); City of Vermillion v. Hugener, 75 S.D. 106, 109, 59 N.W.2d 732, 734 (1953) (holding municipality had implied authority to enter into a long term contract to establish a golf course although state statute did not specifically grant authority to establish golf courses as' public parks). Actions taken under a municipality’s implied or incidental authority will be upheld when the actions have a basis in express authority and are reasonable, further the general law, and are not in conflict with the general law. Snow Land, Inc., 282 N.W.2d at 608.

[¶ 29.] City’s express authority to operate the municipal bar is granted under SDCL 9-29-6, which provides: “Every municipality shall have powers to engage in retailing alcoholic beverages as provided in Title 35.” The issue of incidental food service conducted at a municipal retail alcoholic beverage operation is not addressed within the statute, or the statutory scheme. Lacking expressly defined operational methods, incidental and implied acts necessary to the operation of a municipal bar are permitted, as long as those acts are reasonable and do not conflict with the general law. See Snow Land, Inc., 282 N.W.2d at 608; Hugener, 75 S.D. at 109, 59 N.W.2d at 734.

[¶ 30.] Today the Court bases its decision on a nineteenth century rule of law known as “Dillon’s Rule.” At one time earlier in its history, South Dakota did follow such a rule.

It is well settled that a municipal corporation has only such powers as are clearly and unmistakably granted to it by its charter or by other acts of the Legislature, and consequently can exercise no powers not expressly granted to it, except those which are necessarily implied or incident to the powers expressly granted and those which are indispensable to the declared objects and purposes of the corporation.

Ex parte McAlpine, 47 S.D. 472, 474-75, 199 N.W. 478, 479 (1924). See also Rensch, 77 S.D. 242, 90 N.W.2d 380; Ericksen, 70 S.D. 40, 14 N.W.2d at 89. However in Snow Land this Court specifically rejected this ancient doctrine. 282 N.W.2d 607. Snow Land is factually similar in that it deals with the authority of a municipality to regulate the sale of alcoholic beverages. The Court fails to follow Snow Land and does not say why it opts to return South Dakota to the mid-nineteenth century.

[¶ 31.] The record indicates City began serving a limited food menu in 1979 in conjunction with its bar operation. City’s municipal bar food service was not advertised to the general public, or to patrons inside the bar. The menu was made available to bar patrons only while on site.

[¶ 32.] Menu items such as hamburgers, french fries, chislic, and other grill items were added to the bar menu over time. A modern grill was installed in 1995 as part of a capital project designed to bring the bar into compliance with health and safety codes. When soup was added to the menu, Olesens complained to City and soup service was immediately discontinued. No complaint about the grill service was ever offered by Olesens prior to the commencement of their law suit. ' A full service, sit down restaurant menu was never offered by City.

[¶ 33.] City offered testimony at trial that bar revenues from on-sale beér and liquor and off-sale beer and liquor were insufficient in and of themselves to keep the bar in operation. The bar was not financially viable without the food service revenue. Additionally, City noted that the consumption of food with alcohol slows the absorption rate of alcohol into the blood stream as support for its efforts to provide bar patrons with limited food service while consuming alcohol.

[¶ 34.] The effect of this Court’s decision is devastating to the numerous small towns in this state that have only a municipal bar as a source of food as well as liquor. Prior to 1998, the town of Hurley had two eating establishments, the one owned by Olesens and the other run by the City. Olesens shut down in 1998 and this decision effectively shuts down the City’s food service. In light of this decision, what other small town will dare to offer food to the public at its municipal liquor establishment and open up its public treasury in the process? I doubt the’legislature intended such a result when it contemplated the authority it would grant to municipalities.

[¶ 35.] All-these factors taken together indicate the food service operation was merely incidental to the bar operation as a revenue enhancement and bar patron satisfaction and safety measure. City’s incidental food service was properly conducted under City’s express authority to operate a municipal bar.

[¶ 36.] The Court’s assertion that City’s express power to sell alcohol by the glass does not imply a necessary power to sell food by the plateful is not a correct statement of the law or the facts of this case. City’s express power to sell alcohol by the glass confers upon it the implied and incidental powers to do what is necessary to operate the municipal bar within reasonable limits, and those explicitly imposed by the legislature and the state constitution. City’s limited food service operation was an exercise of incidental powers that was not in conflict with any state statute or the state Constitution itself. As such, the food service operation was not an ultra vires act. The trial court should be reversed.

      . Food is "any raw, cooked, or processed edible substance, beverage, or ingredient used ' or intended for use or sale, in whole or in part, for human consumption.” SDCL 34-18-1(4).

      . A food service establishment is a term describing any place "in which food or drink is prepared for sale or service to the public.” Both food service establishments are fairly denominated restaurants. SDCL 34-18-1(5).

      . City’s motion was denominated motion for failure to state a claim upon which relief may be granted and for summary judgment. City submitted an affidavit in support of its motions). The motion is properly deemed a motion for summary judgment. See SDCL 15-6-12(c).

      . SDCL 15-6~12(c) provides in pertinent part: “After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleading.” (emphasis added).

      . We respectfully, disagree that Snow Land, Inc. v. City of Brookings, 282 N.W.2d 607, 608 (S.D.1979), specifically rejected the Dillon doctrine. In a case decided after Snow Land, Brookings-Lake Telephone Company v. City of Brookings, 430 N.W.2d 575, 577 (S.D.1988) we said:
      We do not question City’s ability to. provide for orderly expansion through annexation, but as a statutorily created entity, City's powers are limited to express or implied statutory powers. City of Rapid City v. Rensch, 77 S.D. 242, 90 N.W.2d 380 (1958). As this Court stated in Robbins v. City of Rapid City, 71 S.D. 171, 176, 23 N.W.2d 144, 147 (1946): The Constitution and statutes of this state invest municipal corporations with certain powers; they have no powers other than those so granted and such as are incidental thereto. Where specific powers are so conferred a municipal corporation is vested with discretion as to the method of exercising such powers unless the method of such exercise is prescribed or limited by the Constitution or by legislative enactments.

        Brookings-Lake Telephone Co., 430 N.W.2d at 577.

      . Judge Foster Dillon was a late nineteenth century Iowa jurist and government law scholar. The appellation "Dillon's Rule” is derived from two cases he authored: Merriam v. Moody’s Executors, 25 Iowa 163 (Iowa 1868); City of Clinton v. Cedar Rapids and M.R.R. Co., 24 Iowa 455 (Iowa 1868); Blacks Law Dictionary, 469 (7th ed West 1999); David J. Barron, Reclaiming Home Rule, (116 Harv L Rev 2255 (2003)).

      . Alcohol travels to the stomach and then to the small intestine where it is absorbed into the bloodstream. Alcohol absorbed into the bloodstream eventually reaches the brain and central nervous system, at which point the characteristic signs of alcohol intoxication begin to show. The rate of absorption depends on a variety of factors, especially the presence and type of food in an individual’s stomach at the time alcohol is ingested. Foods with a higher fat content, such as a hamburger or fried foods, take longer for the stomach to digest, and decrease the alcohol absorption rate. Jennifer L. Pariser, Note: In Vino Veritas: The Truth About Blood Alcohol Presumptions in State Drunk Driving Law, 64 NYUL-Rev 141, 151 (1989) (citing R. Erwin, Defense of Drunk Driving Cases Criminal/Civil § 15.04[l][b][i] at 15 (3d ed.1988); Bayly & McCallum, Some Aspects of Alcohol in Body Fluids. Part II: The Change in Blood Alcohol Concentration Following Alcohol Consumption, 2 Med. J. Austl. 172, 173 (1959); Fitzgerald & Hume, The Single Chemical Test for Intoxication: A Challenge to Admissibility, 66 Mass., L.Rev.-'23, 29 (1981); Holt, Stewart, Adam & Heading, Alcohol Absorption, Gastric Emptying and a Breathalyzer, 9 Brit. J. Clinical Pharmacology 205, 207 (1980); Sedman, Wilkinson, Sakmar, Weidler & Wagner, Food Effects' on Absorption and Metabolism óf Alcohol, 37 J. Stud. Alcohol 1197, 1197 (1976)).

      . As to larger municipalities, what of the fate of municipal swimming pools, baseball and soccer complexes, ánd municipal golf courses that sell food?

      . Even under an application of the 19th Century Dillon's Rule, the City still possessed the legal authority to sell food as “necessarily implied or incident to the powers expressly granted and those which are indispensable to the declared objects and purposes of the [municipality].” Ex parte McAlpine, 47 S.D. at 475, 199 N.W. at 479. SDCL 35-4-2.1 deals with approval by a municipality for a license to engage in on-sale liquor sales on Sundays. To legally sell liquor by the drink on Sunday, the facility must have “the serving of food if the licensee has facilities for the serving of prepared meals from a fixed restaurant with the simultaneous seating capacity of at least ... twenty five patrons.” See also SDCL 35-4-2.2 which requires the Sunday sale of wine be by a "restaurant.” The statute goes on to define a "restaurant” as:
      a room regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation which has suit.able table accommodations for at least fifty guests at one and the same time, and a connected kitchen containing conveniences for cooking sufficient to provide meals in a bona fide manner for fifty guests at one and the same time.
      These statutes are a clear indication that the Legislature anticipated that the sale of food by a full service menu was clearly incidental to the sale of liquor by the drink on Sundays. In fact it was not only incidental,, it was mandatory. If incidental on Sundays, no logic exists to say the same rationale does not apply the other six days of the week..

      . Mrs. Olesen acknowledged the Hurley Bar should be permitted to serve "bar food,” a term she defined to mean "munchies and chislic and things.” Are significant issues such as sovereign immunity and legislative grants of authority to municipal corporations to be hinged on whether a frozen pizza constitutes a "munchie?”


source: Caselaw Access Project

author: LAVORATO, Chief Justice. CADY, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Ryan Patrick QUINN, Appellant.
    No. 03-1643.
    Supreme Court of Iowa.
    Jan. 7, 2005.
    Rehearing Denied Feb. 4, 2005.

      J.E. Tobey III, Davenport, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, William E. Davis, County Attorney, and Alan R. Havercamp, Julie A. Walton, and Marc Gellerman, Assistant County Attorneys, for appellee.
   LAVORATO, Chief Justice.

The defendant, Ryan Patrick Quinn, appeals from a judgment of conviction and sentence in a bench trial for attempting to entice away a minor in violation of Iowa Code section 710.10(3) (2003). He contends, among other things, that there was insufficient evidence to support his conviction. He also contends that the inference permitted in Iowa Code section 710.10(4) violates free speech as guaranteed by the First Amendment. We conclude there was sufficient evidence to support his conviction. However, because the district court, in reaching its verdict, applied a statutory inference that is unconstitutional, we must reverse the judgment of conviction and sentence and remand the case for further proceedings.

I. Background Facts.

Sometime late in the afternoon of April 22, 2003, Karis Agnew, an eight-year-old second-grader, was riding her bike on the sidewalk across from her house. Karis lived in a residential neighborhood with her mother and father. Her father, Ron Agnew, gave Karis permission to ride her bike that day while he was working on his motorcycle in his garage. He had the garage door open so he could keep an eye on Karis.

Shortly after Karis began riding her bike, she saw a brown car with a dark brown stripe drive by. The driver said “hi” to her.' The driver turned the car around and then pulled into a driveway, blocking Karis’s path' on the sidewalk. The driver spoke to Karis through his open window, but did not open the car door. He said to her, “come over here” and gestured with his index finger to come over. Karis thought the driver indicated that he wanted her to “come over in the car — into the car, go into the car.” The driver did not offer anything to Karis. Karis then screamed, “Dad.”

Ron heard the scream, and father and daughter ran to each other. Ron saw a brown hatchback pull out of the driveway and drive away. Karis “was in -hysterics, screaming and crying.” She tried to tell her father what had happened, but he could not understand her because she was crying so much and was scared.

Helen, Karis’s mother and Ron’s wife, arrived home shortly after the incident at which point Ron called the police. Police Chief David Kopatich of the city of Walcott arrived on the scene within minutes of the call. Ron and Karis described what had happened.

At the request of Chief Kopatich, Police Officer Kevin Takacs also responded to Ron’s call; Officer Takacs searched the area, looking for a car that matched the Agnews’ description but did not find it in the area. Approximately forty-five minutes after the incident, the police had a suspect — Ryan Patrick Quinn. Officer Ta-kacs went to Quinn’s home in Davenport and waited for him. Quinn arrived about thirty minutes later. Officer Takacs spoke with Quinn and then contacted Chief Ko-patich, who came to Quinn’s residence. Chief Kopatich photographed Quinn’s vehicle, which matched the Agnews’ description.

Quinn told the officers that he had been in Walcott earlier, he turned around in a residential neighborhood, and said “hi” to a little girl. Quinn agreed to speak with the officers at the Walcott police department where Chief Kopatich took photographs of him.

At the police department, Quinn described his activities for the day. He went to a dental appointment and played golf in Iowa City. On his way home, he stopped in Durant for cigarettes. As he was driving, he threw a cigarette out the window, feared it blew into the backseat, so he stopped in Walcott to check on it. He said “hi” to a little girl, backed out of a driveway, and left the area. He heard a girl scream, but did not know what was going on.

Chief Kopatich told Quinn he did not believe the story at which point Quinn became defiant, insisting that he had told the truth. Chief Kopatich then had Quinn put in writing what he had just told the officer. After he signed the written statement, Quinn signed a Miranda rights waiver. Following that, Chief Kopatich left Quinn with Officer Takacs and an officer from the Durant police department.

The latter three again discussed what had happened. At trial, Officer Takacs testified that after Chief Kopatich left the room, he and Quinn had more conversation. He further testified that Quinn said the little girl was smiling and looked to be having a good time, that as soon as he made eye contact, she became scared, and “the look on her face was like she could read my mind like she knew what I wanted to do to her later.”

According to Officer Takacs, the conversation continued during which Quinn said he would go out, drive around at random, and make some kind of eye contact with a female and such contact was enough stimulation for him to go home, take a nice hot shower, and masturbate. Officer Takacs further testified that Quinn said he usually preferred girls fourteen and sixteen years of age because girls his age made fun of him and that he had had only two sex partners in his life.

At Chief Kopatich’s request, Quinn signed a second written statement. In this statement, Quinn stated that he would never try to pick up a girl, never has, and never wanted to. He craves only eye contact from girls; he' thinks about the eye contact when he takes a shower and masturbates.

The next day Ron identified Quinn’s car from photographs taken by the police. Karis identified both Quinn’s car and Quinn from the photographs. At trial, Ron testified that he did not know Quinn, and Quinn did not have permission to talk to his daughter.

II. Proceedings.

The State charged Quinn with attempting to entice away a minor under sixteen years of age, an aggravated misdemeanor, in violation of Iowa Code section 710.10(3). Later, Quinn filed a motion for a bill of particulars and a motion to dismiss, contending that the minutes of testimony lacked evidence to support the statutory requirement that he was attempting to entice away or attempting to commit an illegal act upon a minor. The district court denied the motions.

Shortly before trial, Quinn filed a motion for adjudication of law points and objection to application of evidentiary instruction. In the motion, Quinn contended that the inference permitted by Iowa Code section 710.10(4) (providing that an intent to commit a violation of section 710.10 “may be inferred when the person is not known to the person being enticed away and the person does not have the permission of the parent, guardian, or custodian to contact the person being enticed away”) violated his constitutional rights. More specifically, Quinn alleged that the language of section 710.10(4) violated his “rights as incorporated under due process within the context of the First Amendment to the United States Constitution, to-wit: Freedom of Speech and Assembly.” He also contended that the language of section 710.10(4) was overbroad on its face and as applied because the inference establishes all elements of the offense charged.

The court indicated that it would rule on the motion in its written ruling following the bench trial. Before this, Quinn had waived his right to trial by jury. Quinn also renewed his motion for bill of particulars and motion to dismiss, motions the court noted had been previously denied.

At trial, the court heard testimony from Ron, Karis, Chief Kopatich, and Officer Takacs. At the end of the State’s case, Quinn moved for judgment of acquittal and renewed his motion for bill of particulars and motion to dismiss. The court denied the motions. Quinn rested without presenting any evidence.

Later, the district court issued its findings of fact and conclusions of law, finding Quinn guilty as charged. In its ruling, the court concluded:

The defendant has objected to the application of [Iowa Code section 710.10(4) ] on the basis that it violates the due process clause of the constitution because it permits a finding of guilt without the facts to support such a finding.
The Court disagrees with the defendant’s argument in this regard, so long as the inference is limited to defendant’s specific intent to commit the crime. What a person intends is seldom capable of direct proof. Therefore, an -inference of specific intent would be appropriate after considering all the facts and circumstances surrounding the incident.

The court then made this significant finding:

The deciding factor in this case is the uncontroverted statement given to Officer Kevin Takacs by the defendant describing the victim’s smiling face that quickly changed as if she knew what he wanted to do to her later. To the Court in this case it can be inferred that he had in mind taking her in furtherance of his sexual attraction to young girls.

Following this ruling, Quinn filed a motion for new trial on several grounds, one of which is most significant here: The verdict is contrary to law or evidence. See Iowa R.Crim. P. 2.24(2)(& )(6). Among other things, Quinn argued in his motion that the inference the court used was improper and the court failed to properly address his constitutional arguments. The court denied the motion, stating, among other things, that it did not agree with the constitutional arguments made. Later, the court sentenced Quinn following which Quinn appealed.

III. Issues.

Among the issues Quinn raises, we consider two: (1) Was the evidence sufficient to sustain the guilty verdict? (2) Does the provision for inference of guilt in Iowa Code section 710.10(4) impermissibly infringe upon Quinn’s First Amendment rights?

IV. Scope of Review.

We review sufficiency-of-the-evidence claims for correction of errors at law. State v. Corsi 686 N.W.2d 215, 218 (Iowa 2004). We uphold a verdict if substantial evidence supports it. State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002). “Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.” Id. Substantial evidence must do more than raise suspicion or speculation. Corsi 686 N.W.2d at 218. We consider all record evidence not just the evidence supporting guilt when we make sufficiency-of-the-evidence determinations. Id. However, in making such determinations, we also view the “evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence.” Biddle, 652 N.W.2d at 197.

We review constitutional claims de novo. Id. at 200. In our review, we are guided by the following well-known principles:

Because statutes are . cloaked with a strong presumption of constitutionality, a party challenging a statute as unconstitutional carries a heavy burden of rebutting this presumption. Such a party must negate every reasonable basis upon which the court could hold the statute constitutional. Such a party must also show beyond a reasonable doubt that a statute violates the constitution.

Id. (citations omitted).

V.Sufficiency of the Evidence.

The statute under which Quinn was convicted provides:

A person commits an aggravated misdemeanor when, without authority and with the intent to commit an illegal act upon a minor under the age of sixteen, the person attempts to entice away a minor under the age of sixteen, or attempts- to entice away a person reasonably believed to be under the age of sixteen.

Iowa Code § 710.10(3). So to convict Quinn, the State had to prove beyond a reasonable doubt that Quinn (1) acted without authority, (2) acted with the intent to commit an illegal act upon a minor under the age of sixteen, and (3) attempted to entice away a minor under the age of sixteen or attempted to entice away a person reasonably believed to be under the age of sixteen.

At trial, Quinn moved for judgment of acquittal on the grounds that the State had failed to prove that he committed an act of enticement or had the specific intent to commit an illegal act upon Karis. The district court denied the motion and found there was sufficient evidence to convict. On appeal, Quinn again challenges the State’s proof on these elements. Quinn does not claim he had authority to do what he did. Nor does he raise any question about the age requirement in the statute. So we do not address these elements.

We had occasion to define “entice” as used in section 710.10(3) in State v. Osmundson, 546 N.W.2d 907 (Iowa 1996) (case defined “entice” as used in Iowa Code section 710.10(2) (1993) which said, “A person commits an aggravated misdemeanor when, without authority and with the intent to commit an illegal act upon the child, the person attempts to entice away a child.”). In that case we defined “entice” as “ ‘to draw on by arousing hope or desire’ or ‘to draw into evil ways,’ ” or

“[t]o wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax or seduce. To lure, induce, tempt, incite, or persuade a person to do a thing. Enticement of a child is inviting, persuading or attempting to persuade a child to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the person of said child.”

Osmundson, 546 N.W.2d at 909 (alteration in original) (citations omitted). Considering all of the record evidence and viewing the evidence in the light most favorable to the State, we conclude there was substantial evidence to support the district court’s finding that Quinn was attempting to entice away Karis for the purpose of performing an illegal act upon her.

Karis testified that Quinn blocked her path, said “come over here,” and gestured with his finger for her to come to him. Quinn does not deny he was in the area, said “hi” to Karis, and heard her scream. Moreover, according to Officer Takacs’ testimony, Quinn said that Karis was smiling and looked to be having a good time, that as soon as he made eye contact with her, she became scared and “the look on her face was like she could read my mind like she knew what I wanted to do to her later.”

A fact finder could reasonably infer from all of this evidence that Quinn was attempting to entice- away Karis for the purpose of performing an illegal act upon her. As the district court found here, a fact finder could reasonably infer that the intent to commit an illegal act on Karis could have been false imprisonment. Or given Quinn’s admitted sexual gratification from making eye contact with young girls, the illegal act could have been much worse, such as sexual abuse. We agree with the State that as a fact finder the district court was free to reject Quinn’s denial of an intent to do nothing more than make eye contact.

VI. The Constitutional Issue.

Iowa Code section 710.10 is captioned “Enticing away a minor.” This section describes various offenses concerning enticement of minors or attempts to entice minors for the purpose of committing' an illegal act upon them. Section 710.10(3), the one under which Quinn was convicted, is one of those provisions. Iowa Code section 710.10(4) permits an inference relative to all of these provisions. Specifically, section 710.10(4) provides:

A person’s intent to commit a violation of this section may be inferred when the person is not known to the person being enticed away and the person does not have the permission of the parent, guardian, or custodian to contact the person being enticed away.

Iowa Code § 710.10(4) (emphasis added).

In pretrial motions, Quinn challenged section 710.10(4) on the grounds that this provision

permits a fact finder to infer an intent to commit the whole of the criminal offense merely from the conduct of speaking to a person 16 years of age or younger who is not known to the speaker and under circumstances where the speaker has not been given permission of an appropriate person to speak to that particular minor person.

Relying on Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), Quinn contended that the application of the evidentiary inference in section 710.10(4)

violates the defendant’s rights as incorporated under due process within the context of the First Amendment to the United ■ States Constitution, to-wit: Freedom of Speech and Assembly.... [T]he language of [section 710.10(4) ] is overbroad on its face and as applied in this context and thus, the application of this evidentiary rule in connection with a charge of attempting to entice away a minor cannot be done without violating the above stated constitutional protections.

Quinn made this same challenge at trial, and the district court rejected it, stating:

The Court disagrees with the defendant’s argument in this regard, so long as the inference is limited to defendant’s specific intent to commit the crime. What a person intends is seldom capable of direct proof. Therefore, an inference of specific intent would be appropriate after considering all the facts and circumstances surrounding the incident.

In its decision, the district court, apparently applying the section 710.10(4) inference, found that “the defendant was not known to Karis Agnew nor did her parents give permission to the defendant to contact her.”

On appeal, Quinn again raises the First Amendment challenge and again relies heavily on Black. Simply put, he contends the inference permitted by section 710.10(4) violates his freedom of speech and is overbroad on its face and as applied. He maintains that a person can be convicted of violating Iowa Code section 710.10(3) merely by having contact with someone in the protected class described in section 7Í0.10(4). Not surprisingly, .the State counters that the district court correctly applied section 710.10(4) in conjunction with section 710.10(3) when the court rejected Quinn’s constitutional challenge.

The First Amendment to the Federal Constitution prohibits Congress from making laws “abridging the freedom of speech.” U.S. Const, amend. I. The Due Process Clause of the Fourteenth Amendment to the Federal Constitution makes the First Amendment applicable to the states. CanUuell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1217-18 (1940). .

In State v. Milner, we summarized the principles a court applies when considering a First Amendment challenge to a statute:

The First Amendment’s guarantee of freedom of speech prevents states from punishing “the use of words or language not within ‘narrowly limited classes of speech.’ ” Consequently, a statute must be narrowly drawn or authoritatively construed so as “to punish only unprotected speech and not be susceptible of application to protected expression.” A statute violates the First Amendment and is unconstitutionally overbroad if (1) it substantially proscribes protected speech “judged in relation to the statute’s plainly legitimate sweep,” and (2) the court cannot narrow the statute to cover only nonprotected speech. When a statute purports to regulate speech, even one to whom the statute may constitutionally be applied is permitted to urge the statute is facially overbroad.

571 N.W.2d 7, 13 (Iowa 1997) (citations omitted).

In Black, the United States Supreme Court was faced with a free speech and overbreadth challenge to a cross-burning statute. The statute at issue provided:

“It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.
Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”

Black, 538 U.S. at 348, 123 S.Ct. at 1541-42, 155 L.Ed.2d at 545 (quoting Va.Code Ann. § 18.2-423 (Michie 1996)). The trial court gave the jury the following instruction: “ ‘[T]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent.’ ” Id. at 349, 123 S.Ct. at 1542, 155 L.Ed.2d at 546 (citation omitted).

The Court upheld the portion of the statute banning cross burnings with the intent to intimidate. Id. at 362-63, 123 S.Ct. at 1549-50, 155 L.Ed.2d at 554. However, with respect to the prima facie intent portion of the statute, in a plurality opinion, Justice O’Connor, joined by Chief Justice Rehnquist and Justices Steven and Breyer, concluded that portion was facially unconstitutional because it permitted the state to convict a person based solely on the fact that a cross was burned. Id. at 365-67, 123 S.Ct. at 1550-52, 155 L.Ed.2d at 556-57. On this point, the plurality opinion said:

[T]he prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself.
It is apparent that the provision as so interpreted “ ‘would create an unacceptable risk of the suppression of ideas.’ ” The act-of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute— and potentially convict — somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.
As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, “[b]urning a cross at a political rally would almost certainly be protected expression....
The prima facie provision makes no effort to distinguish among these different types of cross burnings.

Id. at 365-66, 123 S.Ct. at 1550-51, 155 L.Ed.2d at 555-56 (citations omitted).

Here, section 710.10(4) permits a fact finder to infer a person’s intent to commit a violation of section 710.10(3) if the person (1) is not known to the minor being enticed away and (2) the person does not have the permission of the minor’s parent, guardian, or custodian to contact the minor being enticed away. The plain language of section 710.10(4) therefore permits an inference that all elements of section 710.10(3) are established merely by the “contact.” “Contact,” when used as a verb, means “to communicate with.” Webster’s Encyclopedic Unabridged 'Dictionary 437 (1996). Simply put then, a person who speaks to a minor described in section 710.10(3) may be arrested, prosecuted, and convicted for violating section 710.10(3) merely upon proof of the act of speaking with such minor, which without more, is protected under the First Amendment. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-04, 104 S.Ct. 1949, 1961, 80 L.Ed.2d 502, 518 (1984) (“The First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself— but also is essential to the common quest for truth and the vitality of society as a whole.”); Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313, 1316 (1943) (“The right of freedom of speech and press has broad scope.”). Whether section 710.10(3) is violated is inextricably intertwined with the proscribed contact in section 710.10(4).

Moreover, the inference here tends to shift the burden of proof to the defendant and penalizes a defendant who, as here, does not testify. The tendency in these circumstances is for the fact finder to convict unless the defendant has an explanation as to why he spoke to the minor. This is exactly the fear the plurality expressed in Black. See Black, 538 U.S. at 365, 123 S.Ct. at 1550-51, 155 L.Ed.2d at 555.

We reject the State’s argument that the inference in section 710.10(4) is limited to the intent to commit an illegal act upon a minor in section 710.10(3). The State’s argument overlooks the legislature’s change in the inference. In 2001, the inference provision was found in Iowa Code section 710.10(3) and provided:

A person’s intent to commit an illegal act upon the child may be inferred when the' individual is not known to the child and the, individual does not have the permission of the child’s parent, guardian, or custodian to contact the child.

Iowa Code § 710.10(3) (2001).

If the inference in section 710.10(4) (2003) is limited to the intent to commit an illegal act upon a minor in section 710.10(3) as the State argues, there would have been no need to change the statute. There is a considerable -difference between the language “[a] person’s intent to commit an illegal act upon the child may be inferred” in the previous statute (Iowa Code section 710.10(3) (2001)) and the language “[a] person’s intent to commit a violation of this section may be inferred” in the present statute (Iowa Code section 710.10(4) (2003)).

Moreover, “enticement” in section 710.10(3) has an element of intent. See Iowa Code § 710.10(3). Therefore, contrary to the State’s position, the inference in section 710.10(4) is not limited to the intent to commit an illegal act upon a minor.

We conclude section 710.10(4) is over-broad because it substantially proscribes protected speech and the statute cannot be narrowed to cover only nonprotected speech. The statute is not only facially unconstitutional, it is unconstitutional as applied to Quinn.

VII. Disposition.

In sum, we conclude there was substantial evidence to support the conviction. However, because the district court in reaching its verdict applied an inference pursuant to a provision that is facially unconstitutional and as applied, we must reverse the judgment of conviction and sentence. The remedy here is to remand the case to allow the district court to make new findings and conclusions of law based on the record before it without resorting to the inference in Iowa Code section 710.10(4).

REVERSED AND CASE REMANDED WITH DIRECTIONS.

All justices concur except CADY and LARSON, JJ., who dissent.

CADY, Justice

(dissenting in part).

I respectfully dissent. The statute under examination in this case can easily be interpreted to be consistent with the constitution, and we are obligated to declare the statute constitutional. See, e.g., Pfister v. Iowa Dist. Ct. for Polk County, 688 N.W.2d 790, 794 (Iowa 2004) (“When the constitutionality of a statute is challenged, ‘we presume the statute is constitutional and “give it any reasonable construction necessary to uphold it.” ’ ” (quoting State v. Anspach, 627 N.W.2d 227, 231 (Iowa 2001)); In re Adoption of S.J.D., 641 N.W.2d 794, 797 (Iowa 2002) (“If a statute is susceptible to more than one construction, one of which is constitutional and the other not, we are obliged to adopt the construction which will uphold it.” (citing Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001)).

If we restrict the meaning of “intent” under the statutory inference in section 710.10(4) to apply only to the “intent to commit an illegal act” element of the crime under section 710.10(3), section 710.10(4) is not unconstitutional. It is not unconstitutional because the inference does not establish all the elements of the crime. The state must still establish that the person made an attempt to entice away the minor. See Iowa Code § 710.10(3). Thus, the inference, unlike the inference in Black, does not permit the state to convict a person based solely upon engaging in protected speech.

The majority rejects this approach by interpreting “intent” under section 710.10(4) to apply not only to the “intent to commit an illegal act” element but also to the “attempt to entice” element. It points out that enticement necessarily considers a person’s state of mind. That may be true, but it does not transform an “attempt” element into an “intent” element. An attempt also requires some act. The statute does not permit a conviction based solely on a person’s intent.

The majority ultimately relies on the legislative amendment to the statute to reject any interpretation that limits the inference to the “intent to commit an illegal act” element. It concludes it is not possible to restrict the “intent” aspect of the statutory inference to the “intent to-commit an illegal act” element of the crime because there otherwise would have been no reason for the legislature to amend the statute in 2001. However, the majority overlooks a very logical reason for the amendment that would render the statute constitutional.

The legislature amended the statute in 2001 by changing “intent to commit an illegal act” to “intent to commit á violation of this section.” What the majority overlooks is that the crime of enticing a child was also expanded by the legislature to provide three means to commit the crime, now defined in the first three subsections of section 710.10. Subsection (4) of section 710.10 then, of course, sets forth the inference. Although subsections (2) and (3) of section 710.10 utilize the “intent to commit an illegal act” element (the exact language contained in the statutory inference prior to the 2001 amendment), subsection (1) utilizes an “intent to commit sexual abuse or sexual exploitation” element., Thus, the statutory inference was changed by the legislature to “intent to commit a violation of this section” so as to make the inference applicable to all three sections of 710.10. Contrary to the conclusion of the majority, the legislature had a rational and yalid reason to amend the statute, and we are obligated to give the legislature the benefit of this reasoning.

For these reasons, I respectfully dissent to that portion of the opinion of the majority that declares the statute to be unconstitutional.

LARSON, J., joins this dissent.


author: CADY, Justice.

text:
    In re the DETENTION OF Carol PALMER. State of Iowa, Appellee, v. Carol Palmer, Appellant.
    No. 03-2004.
    Supreme Court of Iowa.
    Jan. 21, 2005.

      Mark Smith, First Assistant Public Defender, and Matthew S. Sheeley, Assistant Public Defender, for appellant.
    Thomas J. Miller, Attorney General, Cris Odell Douglass and Andrew Prosser, Assistant Attorneys General, and John Sarcone, County Attorney, for appellee.
   CADY, Justice.

Carol Palmer appeals from a district court judgment finding him to be a sexually violent predator subject to civil commitment under Iowa Code chapter 229A (2003). He claims the court erred in admitting opinion testimony and in refusing to instruct the jury that he was presumed not to be a sexually violent predator. We affirm.

I. Background Facts and Proceedings

The appellant, Carol Palmer, is seventy-five years old. He is a pedophile with a long history of molesting young girls. His criminal record dates back to 1958, when he was arrested and served thirty days in jail for asking an eight-or nine-year-old girl to walk home from the movies with him. Since that time, his record has included convictions for lascivious acts with his wife’s great-niece, a neighborhood girl, and two of his wife’s granddaughters. Palmer’s most recent conviction occurred in 2002. He was convicted of indecent contact with a child and indecent exposure for molesting the daughter of his son’s friend and was sentenced to three years in prison. During his time in prison, he began, but did not complete, the sexual offender treatment program.

On June 17, 2003, the,State filed a petition to have Palmer declared a sexually violent predator subject to civil commitment under chapter 229A. Prior to trial, Palmer filed a motion in limine seeking to limit the testimony of Dr. Anna Salter, an expert witness employed by the State to testify at trial. Palmer asserted: '

Dr. Salter may offer her expert opinion that Respondent is at risk to re-offend based on the results of testing on the actuarial instruments and her own clinical observations, but her testimony should be limited to the risk assessment findings, i.e. risk probabilities. Any testimony that goes beyond the results of the Respondent’s risk assessments invades the province of the jury and should be excluded from the jury’s consideration pursuant to Iowa Rule of Evidence 5.702. State v. Dunkins, 553 N.W.2d 339 (Iowa 1996) (expert witness is not permitted to express direct opinion on guilt or innocence of defendant, which is exclusive function of finder of fact).

At the pretrial hearing on the motion, counsel for Palmer further articulated his objection to the expected opinion testimony of Dr. Salter. Counsel argued Dr. Salter should be precluded from using the “likely to engage in predatory acts constituting sexually violent offense” language of the governing statute in expressing her opinion. See Iowa Code § 229A.2(9). Instead, counsel asserted, Dr. Salter should be required to frame her opinion in terms of a low, moderate, or high risk to reof-fend. Otherwise, counsel argued, Dr. Salter’s opinion would answer the precise question to be presented to the jury. The district court denied the motion in limine.

A jury trial was held commencing on November 12, 2003. At trial, the State asked Dr. Salter:

[W]ere you able to formulate an opinion as to a reasonable degree of professional certainty about whether the respondent’s pedophilia makes it likely that he will engage in predatory acts of a sexually-violent nature if he’s not confined in a secure facility?

Palmer’s counsel objected on the grounds that the question “invades the province of the jury and it touches on an ultimate issue that is for the jury.” The court overruled the objection, and Dr. Salter was allowed to give her opinion. She answered: “It is that he’s likely to engage in predatory acts constituting sexually-violent offenses if he’s not confined.” Palmer’s counsel objected again and moved to strike the answer, but the court denied the motion. Ultimately, the jury found Palmer to be a sexually violent predator, and the district court ordered his commitment.

Palmer appeals and raises two issues. First, he claims the district court erred by allowing Dr. Salter to testify that Palmer was “likely to engage in predatory acts constituting sexually-violent offenses if he’s not confined.” Second, Palmer argues the district court erred by refusing to instruct the jury that he was presumed not to be a sexually violent predator. He claims the failure to give this instruction violated his due process rights.

II. Standard of Review

Generally, we review rulings on the admissibility of evidence for an abuse of discretion. State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003) (citing State v. Jordan, 663 N.W.2d 877, 879 (Iowa 2003)). We also review a district court’s failure to give a jury instruction for an abuse of discretion. Kiesau v. Bantz, 686 N.W.2d 164, 171 (Iowa 2004) (citing State v. Piper, 663 N.W.2d 894, 914 (Iowa 2003)). “Instructional error is not reversible error unless there is prejudice. Prejudice exists when the rights of the defendant ‘have been injuriously affected’ or the defendant ‘has suffered a miscarriage of justice.’ ” State v. Hartsfield, 681 N.W.2d 626, 633 (Iowa 2004) (citations omitted).

III. Opinion Testimony

A. Preservation of Error

The State asserts Palmer failed to preserve error on the district court’s ruling admitting Dr. Salter’s opinion testimony. The State contends an objection grounded on invasion of the province of the jury is invalid and insufficient to preserve error. The State cites Bornn v. Madagan, in which the court of appeals stated: “Our law refuses to sanction the objection that a qualified expert’s testimony ‘invades the province of the jury.’ Our courts have held such objections to be ‘of no force or effect.’ ” 414 N.W.2d 646, 648 (Iowa Ct.App.1987) (citations omitted).

Palmer contends his objection was sufficient to preserve error “because the nature of his objection was obvious: the objection followed a question and opinion that simply paraphrased the statutory definition of a sexually violent predator.” See State v. Clay, 213 N.W.2d 473, 476-77 (Iowa 1973) (“The general rule is that unless the reasons for an objection are obvious one attempting to exclude evidence whether the attempted exclusion is by objection or motion has the duty to indicate the specific grounds to the court so as to alert the judge to the question raised and enable opposing counsel to take proper corrective .measures to remedy the defect, if possible.” (Citation omitted; emphasis added.)).

In order to decide whether Palmer’s objection was sufficient to preserve error, it is helpful to examine the nature of the evidence to which he objected, as well as the rules employed to exclude it and the problems sought to be avoided by such rules. Initially, Palmer’s objection that Dr. Salter’s opinion would “invade the province of the jury” seems to be an invocation of the so-called ultimate issue rule.

B. The Ultimate Issue Rule

Historically, a witness was precluded from offering an opinion on an “ultimate” issue in a case. 1 McCormick on Evidence § 12, at 51 (John W. Strong ed., 5th ed.1999) [hereinafter McCormick ]; 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 704App.l00, at 704App. — 4 (Joseph M. McLaughlin ed., 2d ed.2004) [hereinafter Weinstein ]. “The stated justification was sometimes that such testimony ‘usurps the function’ or ‘invades the province’ of the jury.” 1 McCormick § 12, at 51; accord Weinstein § 704App.l'00, at 704App. — 4. Yet, application of the rule often “led to odd verbal circumlocutions which were said not to violate the rule.” Fed.R.Evid. 704 advisory committee’s note. For example,

a witness could express his estimate of the criminal responsibility of an accused in terms of sanity or insanity, but not in terms of ability to tell right from wrong or other more modern standard'. And in cases of medical causation, witnesses were sometimes required to couch their opinions in cautious phrases of “might or could,” rather than “did,” though the result was to deprive many opinions of the positiveness to which they were entitled, accompanied by the hazard of a ruling of insufficiency to support a verdict. In other instances the rule was simply disregarded, and, as concessions to need, opinions were allowed upon such matters as intoxication, speed, handwriting, and value, although more precise coincidence with an ultimate issue would scarcely be possible.

Id. Moreover, in practice,- the ultimate issue rule created many problems:

1.The distinction between ultimate and nonultimate facts proved impossible to draw. Although, in theory, ultimate facts are clearly distinguishable from the subsidiary facts introduced to proved them, in most actual cases the distinction may be “scarcely appreciable.”
2. It was at times impossible for a wit- ■ ness to couch his or her testimony in anything but ultimate facts. The ultimate-facts rule here resembled the ■ opinion rule for lay witnesses. If a witness in an automobile accident case testified that the car was speeding, objections could be raised both on the basis if the opinion rule and the ultimate-facts rule. As in the case of the opinion rule, expediency led to exceptions. Courts often allowed the witness to express an opinion on issues like speed, value, or identity if the witness would not otherwise have been able to give any testimony df value to 'the jury.
3. The expressed rationale for the ultimate-facts rule made little sense. Experts cannot invade the province of the jury because jurors are free to draw their own conclusions.
4. To further complicate the situation, a number of courts attempted to draw a distinction between testimony on an ultimate fact and testimony on an issue of law, allowing the former but barring the latter. Unfortunately this- required separating matters of law from matters of fact, an often impossible task in this as well as other contexts.

Weinstein § 704App.l00, at 704App.-4 to - 5 (citations omitted); see also 7 John Henry Wigmore, Evidence in Trials at Common Law § 1920; at 18 (James H. Chadbourn rev. ed. 1978) (“Th[e] ' phrase [“usurping the province of the jury”] is so misleading, as well as so unsound, that it should be entirely repudiated. It is a mere bit of empty rhetoric.... [The witness] could not usurp it if he would,' because the jury may still reject his opinion and accept some other view, and no legal power, not even the judge’s order, can compel them to accept the witness’ opinion against their own.”). Thus, around 1942, a trend emerged to abandon the ultimate issue rule. 1 McCormick § 12, at 52. Our decision in Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646 (1942), is recognized as the leading case in the establishment of this trend. 1 McCormick § 12, at 52 n. 8.

C. The Grismore Decision

In Grismore, we stated that objections claiming evidence would “invade the province of the jury” or “usurp the function of the jury” “stem from a misconception of the necessity and purpose of opinion testimony.” 232 Iowa at 343, 5 N.W.2d at 655. We explained:

Any such objection is not valid or tenable if the opinion called for is about a matter which is a proper subject of expert testimony. No such ... opinion can invade the province of the jury or usurp its functions even though it passes upon a controlling fact or the ultimate fact which the jury must determine. This is necessarily so.

Id. at 343, 5 N.W.2d at 655-56. It does not usurp the functions of the jury because the jury is not required to accept the opinion. Id. Accordingly, we observed:

There is no sound basis in law, reason, or common sense for decisions that a witness may state his opinion as to what “may,” “might,” “could,” or “probably did” cause something, but may not give an opinion as to that “did,” “will,” or “would,” cause it. The true rule is, and should be, that the witness may use such expression as voices his true state of mind on the matter, whether it be possibility, probability, or actuality. To insist that a witness confine his testimony to an expression of possibility or probability, when his real judgment or conviction is actuality, or fact, is unfair to the witness and the jury, and unjust to the party offering the testimony.

Id. at 348, 5 N.W.2d at 657.

While we abandoned the ultimate issue rule and the verbal circumlocutions it entailed, we were careful to caution that there were still limits on the admissibility of opinion testimony:

It should be received only as to such matters as are the proper subject of expert testimony. No witness should be permitted to give his opinion directly that a person is guilty or innocent, or is criminally responsible or irresponsible, or that a person was negligent or not negligent, or that he had capacity to execute a will or deed, or like instrument, or ... whether [probable cause existed]. But the reason is that such matters are not subjects of opinion testimony. They are mixed questions of law and fact. When a standard, or a measure, or a capacity has been fixed by law, no witness whether expert or non-expert, nor however qualified, is permitted to express an opinion as to whether or not the person or the conduct, in question, measures up to that standard. On that question the court must instruct the jury as to the law, and the jury must draw its own conclusion from the evidence.

Id. at 361, 5 N.W.2d at 663. For forty years, we continued to apply the Grismore prohibition against opinion testimony on issues of law and mixed law and fact in a variety of contexts. Then, in 1983, we adopted the Iowa Rules of Evidence.

D. Iowa Rules of Evidence

Iowa Rule of Evidence 5.704, which is identical to its federal counterpart and consistent with our approach in Grismore, provides: “Testimony in the form or an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Iowa R. Evid. 5.704 (emphasis added). That is, opinion testimony is not inadmissible because it embraces the ultimate issue in the case, but it must still be admissible under the other rules of evidence. Importantly, the opinion must be helpful to the trier of fact under rules 5.701 and 5.702. Thus, a witness cannot opine on a legal conclusion or whether the facts of the case meet a given legal standard. Iowa R. Evid. 5.704 advisory committee comment. Such an opinion would be of no value to the jury. In most cases, the jurors are fully capable of applying the facts of the case to the law provided to them by the trial judge. But see Weinstein § 704.04[2][a], at 704 — 13 to —14 (stating that such an opinion may be admissible in a case involving a specialized industry or complex area of law).

The most troubling problem with questions and opinions couched in terms of legal standards and conclusions, and the primary underlying reason they are often inadmissible, is that-they “may be misunderstood by' the witness and the jury if they do not know-the law’s definition of’ the- legal standards used. 1 McCormick § 12, at 55; accord Weinstein § 704.04[2][b], at 704 — 14 (“Another reason for excluding opinion testimony in the form of a legal conclusion is the danger of confusion that arises because legal terminology generally has a different meaning to lay persons than lawyers.”); see also Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir.1985) (“The problem with testimony containing a legal conclusion is in conveying the witness’ unexpressed, and perhaps erroneous, legal standards to the jury.”). Thus, the problem with legal conclusions is not that the opinion “invades the province of the jury,” but rather that it “ ‘invade[s] the province of the court to determine the applicable law and to instruct the jury as to that law.’ ” Id. (quoting Fed. Aviation Admin. v. Landy, 705 F.2d 624, 632 (2d Cir.1983) (additional citations omitted)). If there is a danger of the jury misunderstanding the legal terms used, not only may the opinion be excluda-ble under rules 5.701 and 5.702 as being not helpful to the jury, but it may also be excludable under rule 5.403 if the probative value of the opinion is substantially outweighed by the danger of misleading the jury. See Fed.R.Evid. 704 advisory committee’s note (stating that rules 701, 702, and 403 “afford ample assurances against the admission of opinions which would merely tell the jury what result to reach” and “stand ready to exclude opinions phrased in terms of inadequately explored legal criteria”).

Whether an opinion couched in legal terms is excludable on this basis depends on “whether the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular. If they do, exclusion is appropriate.” Torres, 758 F.2d at 151 (citing United States v. Hearst, 563 F.2d 1331, 1351 (9th Cir.1977)); accord Weinstein § 704.04[2][b], at 704 — 14 (“Opinion testimony using legal terms may be admissible if there is no conflict between the legal definition and the meaning of the term in common usage.”); see also James A. Adams & Joseph P. Weeg, Iowa Practice: Evidence § 5.704.2, at 580 (2004) [hereinafter Adams & Weeg] (“[T]estimo-ny which uses terms having their ordinary meaning and readily understandable is more likely to assist the jury than confuse or mislead.”). Conversely, “when the popular meaning is roughly the same as the legal meaning,” the opinion is not excluda-ble merely because it contains legal terms. 1 McCormick § 12, at 56.

Generally, the best resolution for this problem is for the questioner to break down the legal terms into its factual elements. For example, “the question ‘Did T have the capacity to make a will?’ would be excludable” because “capacity” is a legal term with a more precise, specialized legal meaning than the lay understanding of that term. Id. However, if the questioner simply asks, “ ‘Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?,’ ” the danger of confusion is- avoided. Id. That is, “the proponent of opinion testimony may enhance the likelihood of its admissibility by carefully exploring the bases for the opinion and by phasing his [or her] examination in factual terms.” Adams & Weeg § 5.704.2, at 579.

E. Dr. Salter’s Opinion

As previously noted, the question posed to Dr. Salter in this case was: “[W]ere you able to formulate an opinion as to a reasonable degree of professional certainty about whether the respondent’s pedophilia makes it likely that he will engage in predatory acts of a sexually-violent nature if he’s not confined in a secure facility?” This question essentially asked whether Palmer met one of the elements of the statutory definition of “sexually violent predator.”

The Sexually Violent Predator Act (SVPA) defines “sexually violent predator” as

a person who has been convicted of or charged with a sexually violent offense and who suffers from an mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

Iowa Code § 229A.2(11). The definition can be broken down into three main elements: (1) commission of a “sexually violent offense,” (2) “mental abnormality,” and (3) “makes the person likely to engage in predatory acts constituting sexually violent offenses if not confined in a secure facility.” Id. In this ease, there was no dispute that Palmer had committed a “sexually violent offense” and that he had:a “mental abnormality” as defined by the statute. The third element of the definition was the fighting issue at trial.

The third element of the definition contains within it three statutorily defined phrases: (1) “likely to engage in predatory acts of violence,” see id. § 229A.2(4) (defining the phrase as “the person more likely than not will engage in acts of a sexually violent nature”), (2) “predatory,” see id. § 229A.2(6) (defining the term as “acts directed toward a person with whom a relationship has been established or promoted for the .primary purpose of victimization”), and (3) “sexually violent offense,” see id. § 229A.2(10) (defining the phrase as any violation of chapter 709 or various other sexually motivated offenses). Under rule 5.704, the question propounded to Dr. Salter was not objectionable solely because it embraced an ultimate issue in the case. Thus, to the extent that the objection by Palmer raised this point, it was properly overruled by the district court. Yet, upon close examination of the complete record, Palmer’s objection was that the witness was being asked to render an opinion by utilizing the statutory standard of “likely to engage in predatory acts constituting sexually violent offenses.” We must therefore consider whether this specific ground makes the testimony sought by the question “otherwise” inadmissible.

We have previously noted the problem presented by questions that convey a witness’s undefined legal standard. Yet, the statutory definition of “likely” is “more likely than not.” Iowa Code § 229A.2(4). This definition is essentially the same as the common usage of the term. See Hearst, 563 F.2d at 1351 (stating that testimony containing a legal conclusion is not inadmissible where “[t]he average layman would understand those terms .and ascribe to them essentially the same meaning intended”). When, as here, the popular meaning is nearly the same as the legal meaning, there is no concern that the legal term results in an opinion of law that could be incorrectly understood by the jury or the witness. Torres, 758 F.2d at 151; 1 McCormick § 12, at 56. Moreover, there was an abundance of testimony . by Dr, Salter concerning the meaning of the term “likely.” Under these circumstances, Dr. Salter’s use of the statutorily defined term “likely” did not render her opinion inadmissible. See Weinstein § 704.04[2][b], at 704 — 14 (“Opinion testimony using legal terms may be admissible if there is no conflict between the legal definition and the meaning of the term in common usage.”).

However, the same rationale does not apply to the two remaining statutory terms used in the question posed to Dr. Salter, “predatory” and “sexual violent offense.” These statutorily defined terms have “a separate, distinct and specialized meaning in the law different from that present in the vernacular.” Torres, 758 F.2d at 151. Thus, the question asked and the opinion given created a danger of misleading the jury — that is, of Dr. Salter and the jury not. being “on the same page” with respect to the meanings of those terms. Accordingly, the State should have been required to break down the question into its factual elements.

Nevertheless, we have previously explained:

Because the function of an objection is to invoke a rule of evidence to regulate admission of proof at trial, it is sufficient if it alerts the trial court to the principle sought to be invoked. ‘In determining the formal sufficiency of an objection, it is enough if the substance of the defective feature of the evidence offered is made clear by any choice of language. Care must be taken that the objection strike at the very heart of the infirmity.’

State v. Nimmo, 247 N.W.2d 228, 231 (Iowa 1976) (quoting Mason Ladd, Objections, Motions and Foundation Testimony, 43 Cornell L.Q. 543, 551 (1958)).

Palmer’s objection did not address the State’s use of these two distinct legal terms in its question as ground for error and did not “alert[] the trial court to the principle sought to be invoked.” Id. “ ‘Care must be taken that the objection strike at the very heart of the infirmity.’ ” Id. (citation omitted). The proper objection would have been that the question called for a legal conclusion, for an opinion that was not the proper subject of expert testimony, Schlichte v. Franklin Troy Trucks, 265 N.W.2d 725, 730 (Iowa 1978), or for an opinion whose probative value would be substantially outweighed by the danger of misleading the jury, Iowa R. Evid. 5.403. More importantly, Palmer was required to identify the specific legal terms that rendered the question objectionable. We conclude the objection was insufficient to preserve error in this case.

Moreover, even assuming that error was preserved, the result would be the same because no prejudice resulted from Dr. Salter’s opinion. “The existence of error at trial does not itself warrant corrective action on appeal. Rather, under the ‘harmless error’ rule, the determinative factor in ascertaining whether remedial measures are warranted is the prejudicial impact of the error.” Adams & Weeg § 5.103.14, at 54. No prejudice results from erroneous admission of evidence on an issue that is undisputed. Id. at 59 (citing Oakes v. Peter Pan Bakers, Inc., 258 Iowa 447, 453, 138 N.W.2d 93, 97 (1965)). Palmer never asserted that any future acts he might commit would not meet the legal definition of “predatory” or “sexually violent offenses.” Rather, his argument was limited to challenging the likelihood that he would reoffend. Thus, the problematic part of Dr. Salter’s opinion went to what amounted to an undisputed issue in the case and resulted in no prejudice. Id.

IV. Jury Instruction

Palmer’s second claim is that the district court erred in refusing to instruct the jury that he was presumed not to be a sexually violent predator. Even in criminal cases, “the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution.” Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640, 643 (1979). “[T]he Sexually Violent Predator Act is civil in nature, not criminal.” In re Detention of Garren, 620 N.W.2d 275, 283 (Iowa 2000). The district court instructed the jury that the State had the burden to prove Palmer satisfied all of the elements of the definition of sexually violent predator beyond a reasonable doubt. This instruction is all he was entitled to, and he was only entitled to the beyond-a-reasonable-doubt standard because the legislature has chosen to adopt this standard in the SVPA. See Iowa Code § 229A.7(4). Because the SVPA is a civil statute, the present action should be treated like a civil case. Just as the defendant in a tort suit would not be entitled to a jury instruction that he is presumed not to be a tortfeasor, Palmer is not entitled to an instruction that he is presumed not to be a sexually violent predator. See In re Wyatt, 428 Mass. 347, 701 N.E.2d 337, 342 n. 10 (1998) (“[A]n instruction on the presumption of non-sexual dangerousness is not constitutionally required in a civil commitment proceeding ....”); see also In re Detention of Seewalker, 689 N.W.2d 705, 707 (Iowa Ct.App.2004) (“[W]e conclude Seewalker was not entitled to a ‘presumption-of-non-predator’ instruction.”); In re Care & Treatment of Wadleigh, 145 S.W.3d 434, 440 (Mo.Ct.App.2004) (finding no error in trial court’s refusal to give presumption-of-innocence instruction); In re Detention of Aqui, 84 Wash.App. 88, 929 P.2d 436, 445 (1996) (holding the respondent in a civil commitment proceeding is not “entitled to an instruction that he is presumed not to be a sexual predator”), abrogated on other grounds by In re Detention of Henrickson, 140 Wash.2d 686, 2 P.3d 473 (2000); cf. Addington v. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 1812, 60 L.Ed.2d 323, 334 (1979) (holding that due process does not require application of the beyond-a-reasonable-doubt standard in civil commitment proceedings). Although such an instruction would not necessarily be improper, it is not required by either the federal or the state constitution. Nor does the statute itself require such an instruction. Accordingly, the district court did not abuse its discretion in refusing to instruct the jury that Palmer was presumed not to be a sexually violent predator.

V. Conclusion

We conclude the district court did not abuse its discretion in admitting Dr! Salter’s opinion testimony and refusing to give Palmer’s requested instruction. Therefore, we affirm the judgment of the district court.

AFFIRMED.

      . In State v. Moses, we summarized:
      The Grismore rule has since been applied in a variety of cases under widely differing circumstances. E.g., Kooyman v. Farm Bureau Mutual Insurance Co., 315 N.W.2d 30, 37 (Iowa 1982) (witness not permitted to say defendant's conduct amounted to bad faith); State v. Nimmo, 247 N.W.2d 228, 230 (Iowa 1976) (witness not permitted to say that marijuana found on defendant “would be quite a bit more than a person would have on hand for personal use"); State v. Swartz, 244 N.W.2d 553, 555 (Iowa 1976) (witness not permitted to say that "marijuana was in the [defendant's] home to be sold or delivered by defendant and his wife” because it conveys conclusion of legal guilt); State v. Ogg, 243 N.W.2d 620, 621 (Iowa 1976) (witness not permitted to say “forty-six tablets of LSD far exceeds what one might possess for personal use” because statement expressed opinion of guilt); Speed v. State, 240 N.W.2d 901, 911 (Iowa 1976) (witness could testify that physician failed to use ordinary skill, but could not testify that doctor was negligent); State v. Johnson, 224 N.W.2d 617, 622 (1974) (expert on "tilltapping” not allowed to say crime of tilltapping had occurred); State v. Galloway, 167 N.W.2d 89, 94 (Iowa 1969) (polygraph expert could testify to defendant’s lack of veracity but was not permitted to say that defendant was involved in the shooting); M. Capp Mfg. Co. v. Hartman, 260 Iowa 24, 28-29, 148 N.W.2d 465, 468 (1967) (building inspector prohibited from testifying that the building's structure violated zoning ordinance); In re Ransom's Estate, 244 Iowa 343, 371-72, 57 N.W.2d 89, 104-05 (1953) (witness not permitted to say whether testator was competent to make, will because the inquiry involved a mixed question of law and fact and was a direct inquiry as to the testator’s testamentary capacity).
      320 N.W.2d 581, 588 (Iowa 1982).


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for Disciplinary Action Against James J. BOYD, a Minnesota Attorney, Registration No. 1039X.
    No. A05-51.
    Supreme Court of Minnesota.
    Jan. 24, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent James J. Boyd committed professional misconduct warranting public discipline, namely, (1) commingling personal funds in his trust account in order to shelter his and his son’s funds from the tax authorities, (2) failing to keep required trust account books and records resulting in trust account shortages, (3) using an estate bank account for his own personal and business purposes in order to shelter funds from the tax authorities after the estate was closed and he had been discharged as personal representative, and (4) representing a client in a probate matter while suspended from the practice of law in violation of Minn. R. Prof. Conduct 1.15(a), (b), (c) and (h), 5.5(a) and 8.4(c) and (d).

Respondent has a significant discipline history. Respondent has received three admonitions. Respondent was suspended for six months in 1988 for preparing and filing a false deed. Respondent was suspended again on July 16, 2003, for a period of six months with all but 30 days of the suspension stayed for failing to timely file state and federal income tax returns. Respondent is presently suspended by order dated October 7, 2004, for failing to take and pass the professional responsibility portion of the bar examination within one year of this court’s July 16, 2003, suspension order.

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 in which they jointly recommend that the appropriate discipline is disbarment and payment of $900 in costs and disbursements under 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 James J. Boyd is disbarred from the practice of law effective immediately. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: /s/Paul H. Anderson Associate Justice

text:
    In re Petition for Disciplinary Action Against James M. BURSETH, a Minnesota Attorney, Registration No. 1350X.
    No. CX-00-2004.
    Supreme Court of Minnesota.
    Jan. 24, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for revocation of probation and a supplementary petition for revocation of probation and for further disciplinary action alleging that respondent James M. Burseth has committed professional misconduct warranting public discipline. The Director alleges that Burseth has not maintained abstinence from alcohol as required by the terms of his court-ordered probation, appeared in court with the odor of alcohol on his breath, tested positive for alcohol on November 10, 2004 and had to be replaced as counsel in a murder trial scheduled to begin November 8, 2004 because he was unable to appear in court for jury selection. Respondent also failed to comply with the random urinalysis call-in schedule and made misrepresentations to the Director’s Office and his employer regarding his lack of abstinence in violation of Minn. R. Prof Conduct 3.4(c), 8.1(a)(1) and (2) and 8.4(c) and (d).

Respondent admits his conduct violated the Rules of Lawyers Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is an indefinite suspension, with no right to apply for reinstatement until respondent has provided one year of negative non-dilute random urinalysis test results for alcohol and drugs and with no waiver of the reinstatement hearing. The parties further recommend that reinstatement be conditioned upon: (1) payment of costs in the amount of $900 plus interest under Rule 24, RLPR; (2) compliance with Rule 26, RLPR; (3) successful completion of the professional responsibility portion of the bar examination; and (4) 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.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent James M. Burseth is indefinitely suspended from the practice of law effective immediately with no right to apply for reinstatement until he has provided one year of negative non-dilute random urinalysis test results for alcohol and drugs. Reinstatement is conditioned upon the agreed-upon conditions set forth above. Respondent shall pay $900 in costs plus interest under Rule 24, RLPR.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: /s/ G. Barry Anderson Associate Justice

text:
    Rana M. SCANLON, Respondent, v. CAILLE FARM, INC., Uninsured, Relator, and Minneapolis Radiology Assoc., Intervenor, and Special Compensation Fund, Respondent.
    No. A04-2259.
    Supreme Court of Minnesota.
    Jan. 31, 2005.
    Katherine Bloomquist, J. Matthew Ber-ner, Bloomquist & Berner, LLC, Minneapolis, MN, for Appellant.
    Philip K. Jacobson, Kelly & Jacobson, Minneapolis, MN, for Respondent.

      Kay Thompson, Minneapolis Radiology Assoc., Plymouth, MN, for Intervenor.
    Lorelei M. Hoyer, St. Paul, MN, for Special Compensation Fund.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 26, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/ G. Barry Anderson Associate Justice