author: SANDSTROM, Justice.

text:
    2007 ND 116
    STATE of North Dakota, Plaintiff and Appellant v. Denise M. HAHNE, Defendant and Appellee.
    No. 20070013.
    Supreme Court of North Dakota.
    July 25, 2007.

      Lloyd C. Suhr, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellant.
    Justin J. Vinje, Vinje Law Firm, Bismarck, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] The State of North Dakota appeals the district court’s order suppressing evidence in its case against Denise Hahne for driving under the influence of alcohol. Concluding the district court based its decision on an erroneous view of the law that law enforcement must provide motorists with an opportunity to avoid temporary checkpoints, we reverse the suppression order and remand to the district court so it may apply the correct legal standard.

I

[¶ 2] Hahne was cited for driving under the influence of alcohol after the State Highway Patrol stopped her after she failed to stop at a temporary sobriety checkpoint. The officers field-tested Hahne and “got a reading of .092”; a later blood draw revealed her blood-alcohol content was 0.13 percent.

[¶ 3] After a hearing, the district court found that on August 18, 2006, the Highway Patrol had operated a sobriety checkpoint at the intersection of East Main and Bismarck Expressway in the City of Bismarck. According to the district court, troopers cited Hahne at 9:50 p.m. The district court found that the traffic in this area was “busy” and that the speed limit was 50 m.p.h. Although the district court found that “the Troopers followed a well prepared operational order,” it suppressed the evidence, finding that a U-turn at night on a curving road with a 50 m.p.h. speed limit was not a legal way for drivers to avoid the checkpoint:

The Court finds for all practical purposes there was actually no way for Hahne to safely and legally avoid the checkpoint. The only outlet after the notice of the checkpoint is a potentially dangerous U-turn and if other motorists at the same time would attempt such a turn, this would simply multiply the hazard to the driving public. The Court finds [the] Defendant effectively did not have a safe or legal way to avoid the checkpoint and suppresses all evidence obtained due to the stop of Hahne.

[¶ 4] The State appeals after the district court ordered the evidence of Hahne’s intoxication suppressed.

[¶ 5] The district court had jurisdiction under N.D.C.C. § 39-20-06. The notice of appeal from the district court judgment was timely under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] The State contends the district court erred as a matter of law by granting Hahne’s motion to suppress evidence of her intoxication, because the ruling implied that all such checkpoints must provide an opportunity for motorists to avoid them. The State argues that it was wrong to suppress the evidence solely on the basis of a driver’s ability to see and avoid the checkpoint. The State contends the district court ruling would limit the effectiveness of these checkpoints, which it says are used to reduce alcohol-related fatalities on our roadways. For the first time on appeal, Hahne contends the State “failed to supply any facts demonstrating the effectiveness of the checkpoint.”

A Fourth Amendment “seizure” occurs when a vehicle is stopped by police at a checkpoint. Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450 [110 S.Ct. 2481, 110 L.Ed.2d 412] (1990); State v. Everson, 474 N.W.2d 695, 698 (N.D.1991); State v. Wetzel, 456 N.W.2d 115, 117-118 (N.D.1990). However, individualized reasonable suspicion is not required for checkpoint stops. United States v. Martinez-Fuerte, 428 U.S. 543, 561-562 [96 S.Ct. 3074, 49 L.Ed.2d 1116] (1976). Checkpoint stops nevertheless present important concerns under the Fourth Amendment and Section 8, Article I of the North Dakota Constitution. See Sitz, 496 U.S. at 450 [110 S.Ct. 2481]; Everson, 474 N.W.2d at 698-699. The basic question is whether the seizure is reasonable.

State v. Albaugh, 1997 ND 229, ¶6, 571 N.W.2d 345. If the seizure is reasonable, then it is constitutional. Illinois v. Lidster, 540 U.S. 419, 421, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004).

[¶ 7] As in Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), our analysis begins by explaining what this case is not about. First, we need not address whether such checkpoints in general are constitutionally permissible. We have previously held that temporary law enforcement checkpoints or roadblocks established for particular public purposes are, in general, constitutional. See, e.g., Albaugh, 1997 ND 229, ¶ 19, 571 N.W.2d 345 (game and fish checkpoint); City of Bismarck v. Uhden, 513 N.W.2d 373, 379 (N.D.1994) (sobriety checkpoint); State v. Everson, 474 N.W.2d 695, 703 (N.D.1991) (drug checkpoint); State v. Wetzel, 456 N.W.2d 115, 121 (N.D.1990) (vehicle safety checkpoint). These decisions follow the line of United States Supreme Court cases that have addressed such checkpoints or roadblocks established to serve “special law enforcement concerns.” Lidster, 540 U.S. at 424-27, 124 S.Ct. 885 (upholding a roadblock whose “objective was to help find the perpetrator of a specific and known crime, not of unknown crimes of a general sort”); see, e.g., Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (sobriety checkpoint); United States v. Martinez-Fuerte, 428 U.S. 543, 545, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (fixed immigration border checkpoint); but see City of Indianapolis v. Edmond, 631 U.S. 32, 38, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (The Court never “indicate[d] approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing” or serve a “general interest in crime control”). Second, we need not address whether, in light of Edmond, our prior decisions — Albaugh, Everson, or Wetzel — have continuing vitality; instead, we leave that for other days and other cases. Third, like Sitz, this case contains “[n]o allegations ... of unreasonable treatment of any person after an actual detention at a particular checkpoint.” See Sitz, 496 U.S. at 460, 110 S.Ct. 2481. Fourth, while suppression of evidence is the customary remedy for Fourth Amendment violations, see Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), but see Hudson v. Michigan, — U.S. —, —, 126 S.Ct. 2159, 2165, 165 L.Ed.2d 56 (2006), we need not address the appropriate remedy in this case because the remedy is too far removed from the narrow issue here. Finally, because Hahne raises for the first time on appeal the issue of whether this checkpoint was effective in the context of arrest rates, the issue is not properly preserved, and we will not address it here.

[¶ 8] Here we review whether the district court, in granting Hahne’s motion to suppress evidence, relied on an erroneous assumption that law enforcement must, as a matter of law, provide a legal opportunity for motorists to avoid such checkpoints. See State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381 (questions of law are fully reviewable on appeal).

[¶ 9] In Michigan Dep’t of State Police v. Sitz, the United States Supreme Court, in upholding the constitutionality of the Michigan sobriety checkpoint program, applied the three-part balancing test developed in Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), which involves: (1) “a weighing of the gravity of the public concerns served by the seizure,” (2) “the degree to which the seizure advances the public interest,” and (3) “the severity of the interference with individual liberty.” Brown, 443 U.S. at 50-51, 99 S.Ct. 2637; Sitz, 496 U.S. at 448-55, 110 S.Ct. 2481; accord Uhden, 513 N.W.2d at 378. The Court in Brown held that a central concern in balancing these factors is “assur[ing] that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” Brown, 443 U.S. at 51, 99 S.Ct. 2637. Therefore, “the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Id.

[¶ 10] In Sitz, applying the first part of the Broum test, the U.S. Supreme Court held that “[n]o one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion.” 496 U.S. at 451, 110 S.Ct. 2481.

[¶ 11] In Sitz, applying the second part of the Brown test, the U.S. Supreme Court held that a “searching examination” of the ratio between the number of cars stopped and the number of actual arrests is not necessarily required:

The actual language from Broum v. Texas, upon which the Michigan courts based their evaluation of “effectiveness,” describes the balancing factor as “the degree to which the seizure advances the public interest.” 443 U.S., at 51 [99 S.Ct. 2637]. This passage from Broum was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger. Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferrable [sic] as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains mth the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers. Brown’s rather general reference to “the degree to which the seizure advances the public interest” was derived, as the opinion makes clear, from the line of cases culminating in Martinez-Fuerte, supra. Neither Martinez-Fuerte nor Delaware v. Prouse, 440 U.S. 648 [99 S.Ct. 1891, 59 L.Ed.2d 660] (1979), however, ... supports the searching examination of “effectiveness” undertaken by the Michigan court.

Sitz, 496 U.S. at 453-54, 110 S.Ct. 2481 (emphasis added).

[¶ 12] In Sitz, applying the third part of the Broum balancing test, the U.S. Supreme Court concluded that the intrusion on motorists’ liberty, composed of both “objective” and “subjective” components, was slight. Sitz, 496 U.S. at 451, 110 S.Ct. 2481. The Court measured the “objective” intrusion by the duration of the stop and the intensity of the investigation. Id. at 451-52, 110 S.Ct. 2481. The Court then described the “subjective” intrusion of the stop as “the fear and surprise engendered in law-abiding motorists by the nature of the stop.” Id. at 452, 110 S.Ct. 2481. Because uniformed officers made the stops under pre-established guidelines, the Court concluded that this “subjective” intrusion was minimal. Id. at 453, 110 S.Ct. 2481. According to the Sitz majority, the Michigan appellate court had concluded that the checkpoint stop caused unreasonable subjective intrusion because “the record failed to demonstrate that approaching motorists would be aware of their option to make U-turns or turnoffs to avoid the checkpoint.” Id. at 452, 110 S.Ct. 2481. The Court in Sitz concluded, however, that “the Michigan courts misread our cases concerning the degree of ‘subjective intrusion’ and the potential for generating fear and surprise.” Id. The Court ruled that “[t]he ‘fear and surprise’ to be considered are not the natural fear of one who has been drinking over the prospect of being stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in law-abiding motorists by the nature of the stop.” Id. The Sitz majority held that stationary checkpoints visible to motorists from a distance, operated under established guidelines by uniformed officers, do not generate an undue amount of fear or annoyance to a law-abiding motorist. Id. The Court illustrated its point by comparing checkpoint stops to roving patrol stops:

The circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.

Id. at 453, 110 S.Ct. 2481 (internal quotations and citation omitted) (emphasis added). Therefore, the Court concluded such stationary checkpoints, in general, do not create an unconstitutional degree of subjective intrusion on a motorist’s personal liberties. Id.

[¶ 13] Although the driver in City of Bismarck v. Uhden did not challenge the constitutionality of the checkpoint on the basis of the degree of intrusion into his individual liberty, the Uhden Court did comment on how a checkpoint’s visibility might affect that intrusion:

At oral argument, Uhden’s attorney did allege that the location of the checkpoint was such that it could not he viewed by motorists until it was too late for the motorists to turn off the road and avoid it. We do not belittle the significance of this alleged fact and the intrusion caused thereby. This would be one relevant factor in the analysis of the intrusiveness of the stop, though not itself conclusive, see Everson, supra, but we do not find in the record before us evidence supporting the allegation of Uh-den’s attorney.

Uhden, 513 N.W.2d at 378 n. 8.

[¶ 14] In this case, the district court found “for all practical purposes there was actually no way for Hahne to safely and legally avoid the checkpoint. The only outlet after the notice of the checkpoint is a potentially dangerous U-turn and if other motorists at the same time would attempt such a turn, this would simply multiply the hazard to the driving public.” This finding implies that law enforcement must provide motorists with a way to avoid these types of checkpoints or roadblocks as a matter of law.

[¶ 15] Following Sitz and its progeny, we hold law enforcement checkpoints need not, as a matter of law, provide motorists with a way to avoid them. When considering the constitutional reasonableness of a checkpoint, avoidability is one factor that may be considered in evaluating the intrusion on the personal liberty of individual motorists.

Ill

[¶ 16] The district court order is reversed and the case remanded for proceedings consistent with this opinion to determine whether the checkpoint Hahne encountered was constitutionally reasonable.

[¶ 17] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2007 ND 121
    Steven Allen RAHN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20070022-20070024.
    Supreme Court of North Dakota.
    July 25, 2007.

      Steven Allen Rahn, pro se, Mandan, N.D., petitioner and appellant.
    Cynthia Mae Feland, Assistant State’s Attorney, Bismarck, N.D., for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Steven Rahn has appealed from district court orders denying his motion for correction or reduction of sentence and denying his application for post-conviction relief. We dismiss Rahn’s appeal from the order denying his motion for correction or reduction of sentence, concluding we do not have jurisdiction. We affirm the order denying post-conviction relief, concluding the relief sought by Rahn is not available through post-conviction proceedings.

I

[¶ 2] Rahn was charged with driving under revocation, his eighth such offense within five years. In addition, the State filed petitions to revoke his probation on prior convictions for driving under revocation and driving under the influence. At a June 29, 2006, hearing, Rahn pleaded guilty to driving under revocation and admitted the allegations in the petitions to revoke his probation. The court initially sentenced Rahn to serve one year at the Burleigh County Detention Center in each case, with the sentences to run concurrently. After counsel for both the State and Rahn suggested it might be preferable to have Rahn serve his sentence with the North Dakota Department of Corrections in order for Rahn to receive treatment for his hepatitis C, the court ordered that Rahn serve his sentence with the Department of Corrections.

[¶ 3] After being incarcerated, Rahn was informed by prison officials that he did not meet the Department of Corrections’ protocol for hepatitis treatment. On September 7, 2006, Rahn filed a motion for correction or reduction of sentence under N.D.R.Crim.P. 35, arguing that his failure to receive hepatitis treatment at the penitentiary warranted a reduction in his sentence to time served and seeking immediate release from custody. The court denied Rahn’s motion in an order entered on September 21, 2006. Rahn did not file a timely appeal from that order.

[¶ 4] On December 6, 2006, Rahn filed an application for post-conviction relief, again arguing that the State’s failure to provide treatment for his hepatitis C entitled him to relief, including immediate release from custody. By an order dated December 20, 2006, the court denied Rahn’s motion.

[¶ 5] On January 3, 2006, Rahn filed a notice of appeal from the orders denying his motion for correction or reduction of sentence and his application for post-conviction relief.

II

[¶ 6] Rahn has attempted to appeal from the district court order denying his motion to correct or reduce his sentence under N.D.R.Crim.P. 35.

[¶ 7] Before we can consider the merits of an appeal, we must have jurisdiction. City of Grand Forks v. Lamb, 2005 ND 103, ¶ 5, 697 N.W.2d 362. The right of appeal in a criminal case is statutory and is a jurisdictional matter that we will consider sua sponte. Id.; State v. Steen, 2003 ND 116, ¶ 5, 665 N.W.2d 688; State v. Gwyther, 1999 ND 15, ¶ 17, 589 N.W.2d 575. If there is no right to appeal, we are without jurisdiction to consider the merits and must dismiss the appeal. Lamb, at ¶ 5; Gwyther, at ¶ 17. Appeals in criminal cases are governed by N.D.C.C. ch. 29-28, and under N.D.C.C. § 29-28-06(5) a defendant may appeal from an “order made after judgment affecting any substantial right of the party.” See Steen, at ¶ 5.

[¶ 8] Rahn moved for correction or reduction of his sentence under N.D.R.Crim.P. 35. There are two parts to the rule: the first subsection permits correction of an illegal sentence and the second subsection permits the court to reduce the sentence. State v. Gunwall, 522 N.W.2d 183, 184 (N.D.1994). A motion for reduction of a sentence under N.D.R.Crim.P. 35(b) is not a matter of right, but is an application for leniency which is left within the sound discretion of the trial court. Gunwall, at 184; State v. Jefferson Park Books, Inc., 314 N.W.2d 73, 76 (N.D.1981). Accordingly, an order denying a motion for reduction of sentence under N.D.R.Crim.P. 35(b) does not affect a substantial right and is not appealable, and we must dismiss that part of the appeal. State v. Halton, 535 N.W.2d 734, 736 (N.D.1995); Gunwall, at 184-85.

[¶ 9] Rahn’s motion also sought correction of his sentence under N.D.R.Crim.P. 35(a). This Court has held that an order denying a motion for correction of an illegal sentence under N.D.R.CrimJP. 35(a) involves a substantial right and is appealable. Steen, 2003 ND 116, ¶ 6, 665 N.W.2d 688; State v. Johnson, 1997 ND 235, ¶6, 571 N.W.2d 372; Ostafin v. State, 1997 ND 102, ¶ 12, 564 N.W.2d 616; Gunwall, 522 N.W.2d at 185.

[¶ 10] An appeal must, however, also be timely to confer jurisdiction upon this Court. The timely filing of a notice of appeal is mandatory and jurisdictional, and cannot be waived by the appellate court. E.g., State v. DuPaul, 527 N.W.2d 238, 243 (N.D.1995); McMorrow v. State, 516 N.W.2d 282, 283 (N.D.1994); State v. Guthmiller, 497 N.W.2d 407, 408 (N.D.1993). An appeal from an order denying a motion to correct an illegal sentence must be filed within thirty days of entry of the order. N.D.RApp.P. 4(b)(1)(A). The subsequent filing of an application for post-conviction relief does not toll the running of the time to appeal from an earlier judgment or order. See N.D.RApp.P. 4(b)(3); Morstad v. State, 518 N.W.2d 191, 192 (N.D.1994).

[¶ 11] The order denying Rahn’s motion to correct sentence was entered on September 21, 2006. Rahn did not file a notice of appeal within thirty days of that date. Rahn later filed an application for post-conviction relief on December 6, 2006. After his application was denied, Rahn filed a notice of appeal attempting to appeal from the order denying his N.D.R.Crim.P. 35 motion for correction or reduction of sentence in addition to appealing from the order denying post-conviction relief. Rahn’s attempted appeal from the order denying correction of sentence was untimely, and we are without jurisdiction and must dismiss that portion of the appeal.

Ill

[¶ 12] Rahn has appealed from the order denying his application for post-conviction relief.

[¶ 13] Proceedings for post-conviction relief are governed by N.D.C.C. ch. 29-32.1. Bell v. State, 1998, ND 35, ¶ 24, 575 N.W.2d 211. The provisions of that chapter are expressly unavailable to seek relief for an inmate’s custodial treatment after he is incarcerated:

A proceeding under this chapter is not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence.

N.D.C.C. § 29-32.1-01(2). In Bell, at ¶ 17, this Court noted that claims of inadequate treatment programs at the state penitentiary were “specifically excluded” and “irrelevant” in an action for post-conviction relief.

[¶ 14] The issues raised by Rahn on appeal from the order denying his application for post-conviction relief are all based upon the Department of Corrections’ alleged failure to provide treatment for his hepatitis C while he was incarcerated after his conviction and revocation of probation. Rahn also claims constitutional violations based upon failure to provide treatment and sought money damages from numerous state officials and employees in his post-conviction application and on appeal. There are other avenues of relief available for such claims. See Ennis v. Dasovick, 506 N.W.2d 386 (N.D.1993) (action brought under 42 U.S.C. § 1983 for failure to provide medical treatment). Post-conviction proceedings, however, are an inappropriate vehicle to raise such claims. N.D.C.C. § 29-32.1-01(2); Bell, 1998 ND 35, ¶ 17, 575 N.W.2d 211.

[¶ 15] We conclude the district court did not err in denying Rahris application for post-conviction relief.

IV

[¶ 16] We have considered the remaining issues and arguments raised by the parties and find them either unnecessary to our decision or without merit. We dismiss the appeal from the order denying Rahn’s motion for correction or reduction of his sentence, and we affirm the order denying his application for post-conviction relief.

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


author: MARING, Justice.

text:
    2007 ND 117
    Robert A. BIENEK, Petitioner and Appellant v. DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20070032.
    Supreme Court of North Dakota.
    July 25, 2007.

      Kerry S. Rosenquist of Rosenquist & Arnason, Grand Forks, N.D., for petitioner and appellant.
    Zachary E. Pelham, Office of Attorney General, Bismarck, N.D., for respondent and appellee.
   MARING, Justice.

[¶ 1] Robert Bienek appeals the district court’s judgment affirming the North Dakota Department of Transportation’s decision to suspend Bienek’s commercial driving privileges for life. Bienek argues he has not been twice convicted of driving under the influence, and therefore, should not have his commercial driving privileges suspended for life. We affirm.

I

[¶ 2] On April 26, 1990, Robert Bienek, while driving a noncommercial vehicle, was arrested for driving under the influence (“DUI”). Bienek did not request an administrative hearing before the North Dakota Department of Transportation. Instead, he accepted a license suspension prior to the July 6, 1990, dismissal of his DUI charge. Bienek’s noncommercial driving privileges were suspended on July 15, 1990, and reinstated on June 8, 1992. In 2001, Bienek obtained a class A commercial driver’s license.

[¶ 3] On May 20, 2006, Bienek was driving a noncommercial vehicle when he was arrested for DUI. Bienek pled guilty to the DUI charge. Bienek was informed by the Department that his North Dakota commercial driving privileges would be suspended for life, beginning July 10, 2006, because he had two disqualifying convictions. Bienek requested and was granted an administrative hearing to contest the proposed lifetime suspension of his commercial driving privileges.

[¶ 4] Bienek’s administrative hearing before a Department hearing officer occurred on July 21, 2006. Bienek argued the 1990 suspension of his noncommercial driving privileges was not a conviction, and therefore, he did not have the two disqualifying convictions required by N.D.C.C. § 39-06.2-10(8) to suspend his commercial driving privileges for life. The hearing officer recommended Bienek’s commercial driving privileges be suspended for one year after concluding that only the resolution of Bienek’s 2006 DUI was a disqualifying conviction. The Department disagreed with the hearing officer’s recommendation, concluding the 1990 suspension of Bienek’s noncommercial driving privileges was a conviction for the purposes of N.D.C.C. § 39-06.2-10(8). The Department suspended Bienek’s commercial driving privileges for life, effective August 20, 2006. The district court affirmed the Department’s decision. Bienek appeals.

II

[¶ 5] Bienek argues the Department erred when it determined the 1990 suspension of his noncommercial driving privileges was a conviction for the purposes of N.D.C.C. § 39-06.2-10(8). Bien-ek contends that because the Department erred in concluding the 1990 suspension of his noncommercial driving privileges was a disqualifying conviction, his commercial driving privileges were improperly suspended for life.

[¶ 6] “The Administrative Agencies Praetice[ ] Act, N.D.C.C. ch. 28-32, governs the review of administrative license suspensions.” Ringsaker v. Director, ND Dept. of Transp., 1999 ND 127, ¶ 5, 596 N.W.2d 328. “On appeal from a district court’s review of an administrative agency’s decision, we review the agency decision.” Elshaug v. Workforce Safety and Insurance, 2003 ND 177, ¶ 12, 671 N.W.2d 784. “The district court’s analysis is entitled to respect if its reasoning is sound, because the legislatively-mandated district court review cannot be ineffectual.” Id. Section 28-32-46, N.D.C.C., provides that this Court must affirm an administrative agency’s order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

[¶ 7] When this Court reviews an agency’s factual findings, “we do not make independent findings of fact or substitute our judgment for that agency, but determine only whether a reasoning mind reasonably could have determined the factual conclusions were proven by the weight of the evidence from the entire record.” Ringsaker, at ¶ 5. However, on legal questions, “such as an interpretation of a statute, an agency’s decision is fully reviewable on appeal. Our primary objective in the interpretation of a statute is to ascertain the intent of the legislature, which must be sought initially from the language of the statute.” Lentz v. Spryncznatyk, 2006 ND 27, ¶ 4, 708 N.W.2d 859 (citation omitted). “In construing a statute, words are to be understood in their ordinary sense.” Id.; N.D.C.C. § 1-02-02.

A

[¶ 8] Under N.D.C.C. § 39-06.2-10(8), a person holding a commercial driver’s license is disqualified for life from operating a commercial vehicle after a second DUI conviction while operating a noncommercial vehicle. “Conviction” is defined under N.D.C.C. § 39-06.2-02(8) as “an un-vacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal....” However, under N.D.C.C. § 39-06-30, “conviction” is defined as “a final order or judgment of conviction by the North Dakota supreme court, any lower court having jurisdiction, a tribal court, or a court in another state.... ”

[¶ 9] When a general statutory provision is in conflict with a special provision in the same or in another statute, “the two must be construed, if possible, so that effect may be given to both provisions.... ” N.D.C.C. § 1-02-07. If the conflict between the provisions is irreconcilable, the special provision prevails and is construed as an exception to the general provision, “unless the general provision is enacted later and it is the manifest legislative intent that such general provision shall prevail.” Id. The definition of “conviction” in N.D.C.C. § 39-06.2-02(8) is a special provision applicable to commercial driver’s licenses that conflicts with the definition of “conviction” in N.D.C.C. § 39-06-30, a general provision applicable to motor vehicle operator’s licenses. Under statutory construction principles, the definition of “conviction” found in N.D.C.C. § 39-06.2-02(8) prevails over the definition of “conviction” found in N.D.C.C. § 39-06-30. Therefore, the definition of “conviction” found in N.D.C.C. § 39-06.2-02(8) must be used when interpreting N.D.C.C. § 39-06.2-10(8).

B

[¶ 10] Accordingly, for the purposes of N.D.C.C. § 39-06.2-10(8), a conviction is “an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal....” N.D.C.C. § 39-06.2-02(8). “Determination” is defined as “[a] final decision by a court or administrative agency.” Black’s Law Dictionary 480 (8th ed.2004). Bienek argues that because he accepted an administrative suspension following his 1990 DUI arrest, there was no determination by a court of original jurisdiction or an authorized administrative tribunal that he violated or failed to comply with the law, and therefore, no conviction. Although Bienek does argue “authorized administrative tribunal” is not defined under chapter 39-06.2, N.D.C.C., he does not contend the Department was not an authorized administrative tribunal in 1990.

[¶ 11] In 1990, following Bienek’s DUI arrest, the Department suspended Bien-ek’s noncommercial driving privileges. The Department is, and was in 1990, authorized by statute to suspend an individual’s driver’s license. See N.D.C.C. § 39-20-04.1. We conclude, under N.D.C.C. § 39-06.2-10(8), the Department is an authorized administrative tribunal. The Department made a final decision after Bienek’s 1990 DUI arrest that his noncommercial driving privileges should be suspended. Using “determination” in its ordinary sense, the Department’s final decision to suspend Bienek’s noncommercial driving privileges was a determination made by an authorized administrative tribunal. The 1990 suspension of Bienek’s noncommercial driving privileges was a conviction for the purposes of N.D.C.C. § 39-06.2-10(8). Because Bienek had two DUI convictions while operating noncommercial vehicles, his commercial driving privileges were properly suspended for life under N.D.C.C. § 39-06.2-10(8).

Ill

[¶ 12] Bienek argues that even if the 1990 suspension of his noncommercial driving privileges was a conviction, it should not be used to satisfy N.D.C.C. § 39-06.2-10(8) because the 1990 suspension occurred before the Federal Motor Carrier Safety Improvement Act was enacted. Bienek contends that the Department relied on the Act to determine the meaning of “conviction.” Therefore, because the Department relied on the Act, the Department should not consider, when determining convictions, any offense that occurred before the enactment of the Act. Bienek argues our decision in Lentz should be limited to convictions occurring after the effective date of the Act. We decline this invitation.

[¶ 13] In Lentz, 2006 ND 27, ¶ 1, 708 N.W.2d 859, Lentz argued N.D.C.C. § 39-06.2-10(8) should not be applied retroactively to a DUI conviction that occurred before the statute was enacted. Lentz’s second DUI conviction occurred after N.D.C.C. § 39-06.2-10(8) was enacted. Id. at ¶ 8. This Court concluded Lentz’s second DUI conviction triggered the suspension of his driver’s license, even though his first DUI occurred before the statute’s effective date. Id. at ¶ 13.

[¶ 14] Bienek’s first DUI conviction occurred before the enactment of the Act. However, analogous to Lentz, Bienek’s second DUI conviction occurred after the enactment of the Act. See Lentz, at ¶ 8. As in Lentz, Bienek’s second DUI conviction triggered the suspension of his commercial driving privileges. See id. at ¶ 13. Further, as in Lentz, Bienek’s first DUI conviction occurred before the enactment of N.D.C.C. § 39-06.2-10(8), and his second conviction occurred after its enactment. See Lentz, at ¶ 13. Because Bienek’s second DUI conviction occurred after the enactment of N.D.C.C. § 39-06.2-10(8), the lifetime suspension of Bienek’s commercial driving privileges was triggered.

IV

[¶ 15] Bienek argues the Department’s interpretation of “conviction” renders N.D.C.C. § 39-06.2-02(8) void for vagueness. “A party who appeals from an administrative hearing officer’s decision must comply with N.D.C.C. § 28-32-42(4).” Dettler v. Sprynczynatyk, 2004 ND 54, ¶ 13, 676 N.W.2d 799. “The Administrative Agencies Practice Act requires that alleged errors from the administrative level be specifically enumerated for the district court.” Bjerklie v. Workforce Safety and Ins., 2005 ND 178, ¶ 7, 704 N.W.2d 818; see N.D.C.C. § 28-32-42(4). When an individual seeks a reversal of a license suspension, N.D.C.C. § 39-20-06 provides:

Any person whose operator’s license or privilege has been suspended, revoked, or denied by the decision of the hearing officer under section 39-20-05 may appeal within seven days after the date of the hearing under section 39-20-05 as shown by the date of the hearing officer’s decision, section 28-32-42 notwithstanding, by serving on the director and filing a notice of appeal and specifications of error in the district court in the county where the events occurred for which the demand for a test was made, or in the county in which the administrative hearing was held.

Specifications of error are required by both statutes. To satisfy N.D.C.C. § 28-32-42(4), the specifications of error must identify the matters that are truly at issue, “with sufficient specificity to fairly apprise the agency, other parties, and the court of the particular errors claimed.” Dettler, 2004 ND 54, ¶ 15, 676 N.W.2d 799.

[¶ 16] Bienek makes a void for vagueness argument for the first time on appeal. This Court does not address issues raised for the first time on appeal. Heng v. Rotech Medical Corp., 2006 ND 176, ¶ 9, 720 N.W.2d 54. Bienek failed to identify void for vagueness as a matter at issue in his specifications of error and failed to properly preserve his void for vagueness claim for appeal. Therefore, we will not review the merits of Bienek’s void for' vagueness argument on appeal. See Dettler, at ¶ 21.

V

[¶ 17] The district court’s judgment affirming the Department’s decision to suspend Bienek’s commercial driving privileges for life is affirmed.

[¶ 18]GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: PER CURIAM.

text:
    2007 SD 61
    Michael W. WILLIAMS, Appellee, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellant.
    No. 24243.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2007.
    Decided June 27, 2007.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellant.
    Jason W. Shanks of May and Johnson Sioux Falls, South Dakota, Attorney for appellee.
   PER CURIAM.

[¶ 1.] The Board of Pardons and Paroles (Board) appeals the circuit court’s order reversing its decision to deny Michael Williams credit for two years served on supervised release.

FACTS

[¶ 2.] Williams was convicted of sexual contact with a minor and sentenced to serve ten years in the penitentiary. However, nine of the ten years were suspended and Williams was placed under the supervision of the Board. Williams signed an agreement on June 16, 2000, setting forth various conditions of his suspended sentence. The relevant condition at issue here provided: “I will keep my Parole Agent informed of my whereabouts and of all activities participated in and submit such reports as required.” Williams was also required to complete treatment in a sex offender program.

[¶ 3.] On October 28, 2005, Williams’ parole agent, David Bruns, prepared a violation report indicating on October 21, 2005, he advised Williams to surrender to the Charles Mix Sheriffs office by 5 p.m. that day for failing to complete a required sex offender program. Williams did not turn himself in that day. Williams testified he was at his grandfather’s funeral in Avon, South Dakota, and did not have a vehicle. Bruns made attempts to contact Williams and also his family members. Williams did not return Bruns’ phone calls, maintain any contact with him or appear for a scheduled meeting. Williams was located on November 2, 2005, when he was hospitalized for an attempted suicide.

[¶ 4.] At the revocation hearing, Bruns indicated that Williams was “a constant stream of problems” and a “high-maintenance” parolee. Prior incidences included drinking and drug use, leaving while on house arrest, curfew violation, failing to notify of residence changes, residing with a minor child without prior approval and missed sexual offender classes. The Board found that Williams had violated the conditions of his suspended sentence and imposed the original sentence. In addition, the Board determined that two years of the more than five years that Williams was on supervision would not be credited against the sentence.

[¶ 5.] Williams appealed the Board’s decision to circuit court challenging the decision to revoke the suspended sentence as well as the denial of two years credit while he was on supervision. The circuit court upheld the Board’s decision finding it did not abuse its discretion in revoking the suspended sentence. However, the circuit court reversed the Board’s decision denying Williams credit for two years spent under supervision reasoning the denial was not commensurate with Williams’ conduct leading to revocation. The Board appeals contending the circuit court erroneously substituted its own judgment for that of the Board.

ANALYSIS

[¶ 6.] Whether the Board erred in denying Williams credit for two years spent on supervised release.

[¶ 7.] In an appeal from an agency decision, “[w]e review questions of fact under the clearly erroneous standard; mixed questions of law and fact and questions of law are reviewed de novo. Matters of discretion are reviewed under an abuse of discretion standard.” Lee v. Board of Pardons & Paroles, 2005 SD 103, ¶ 6, 705 N.W.2d 609, 611 (citations omitted). Further,

The standard of proof required for a criminal conviction is not necessary to revoke a suspended sentence. Before the Board may revoke the suspended portion of a sentence, it must be “reasonably satisfied” that the terms of the suspension have not been followed. So long as there is adequate evidence to support that minimal level of scrutiny, the Board has not abused its discretion in revoking the suspended sentence and its decision should be upheld.

Austad v. Board of Pardons & Paroles, 2006 SD 65, ¶ 8, 719 N.W.2d 760, 764 (citations omitted).

[¶ 8.] SDCL 24-15A-28 governs revocation or modification of parole. That statute provides:

If the board is satisfied that any provision of § 24-15A-27 has been violated, it may revoke the parole and reinstate the terms of the original sentence and conviction or it may modify conditions of parole and restore parole status. In addition, the board may order the denial of credit for time served on parole. If the board does not find that the provisions of § 24-15A-27 have been violated, the board may restore the parolee to the original or modified terms and conditions of the parolee’s parole.

SDCL 24-15A-28. Williams has not filed a notice of review or contested the circuit court decision upholding the revocation of parole. The only question is whether the Board abused its discretion in denying credit for two of the five years Williams was on supervised release.

[¶ 9.] Bruns, the parole agent, testified before the Board that based on Williams’ conduct and history he was recommending that Williams “lose a minimum of two years of his five years of street time.” This recommendation was also contained in a violation report detailing Williams’ prior incidents while on supervision; the sanctions imposed for that conduct and the facts supporting this most recent violation. The same two year recommendation was also provided by Bruns’ supervisor. The prior sanctions imposed against Williams included: requiring further counseling, a verbal reprimand, adjustments in the required amount of contacts with the agent, establishing a curfew, requiring Williams to prepare a daily log and written reports, being placed on house arrest, and imposing jail time. The Special Assistant Attorney General argued that the Board should deny credit for three years of the supervised time based on Williams’ conduct. The Board ultimately agreed with the recommendation of Bruns and denied credit for two years of the supervised time. Given the fact Bruns was the witness with the most contact with Williams, it is not surprising that the Board would accord a degree of deference to his recommendation.

[¶ 10.] In reversing the Board’s decision, the circuit court re-weighed evidence concerning the severity of Williams’ failure to maintain contact and highlighted the fact that although Williams failed to attend the sexual offender treatment program and was dropped, the instructor enjoyed having him there when he attended. The circuit court also narrowed its focus and determined that each prior violation was dealt with by an appropriate sanction and gave those incidents little weight cumulatively in reviewing the Board’s decision. Moreover, the circuit court found “Williams’ suspended sentence violation stems from his living in a state of poverty where he could not afford adequate transportation, the death of his grandfather, and other unfortunate circumstances that were partially beyond his control.” Rather than providing deference to the Board, these findings represent a circuit court’s second judgment on what the appropriate sanction should have been.

[¶ 11.] As the United States Supreme Court has observed:

Implicit in the system’s concern with parole violations is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole. The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary.

Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S.Ct. 2593, 2599-2600, 33 L.Ed.2d 484 (1972) (emphasis added). Therefore, a reviewing court “must be wary not to retry a case and make new judgments based upon a cold record.” Iversen, 522 N.W.2d at 193. To support a reversal, the record must establish the Board’s decision was an abuse of discretion, not merely a decision which the circuit court “might have made differently if done so as the initial fact finder.” Id. Because the circuit court exceeded its appellate role, we reverse and remand for the circuit court to enter judgment affirming the Board’s decision.

[¶ 12.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . As a threshold matter, Williams contends the Board has waived its right to appeal by only appealing the trial court’s determination that the Board abused its discretion and not appealing the determination the Board was clearly erroneous in denying the credit. Those two holdings are part and parcel of each other. Reviewing for an abuse of discretion includes an inquiry into the authority for the decision as well as the facts supporting the decision. See Iversen v. Watt Board of Education, 522 N.W.2d 188, 192 (S.D.1994).


text:
    2007 SD 60
    STATE of South Dakota, Plaintiff and Appellee, v. James Marvin LINDNER, Defendant and Appellant.
    No. 24203.
    Supreme Court of South Dakota.
    Considered on Briefs April 23, 2007.
    Decided June 27, 2007.

      Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Michael G. Miller, Minnehaha County Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] James Lindner (Lindner) appeals his conviction for possession of a controlled substance and possession of marijuana contending the trial court erred in denying the admission of proffered testimony. We reverse and remand.

FACTS

[¶ 2.] On September 30, 2005, Lindner and Daniel Stricherz (Stricherz) went to a Wal-Mart store in Sioux Falls, South Dakota. Stricherz remained in the vehicle while Lindner went inside. Lindner met his stepson, Michael Richards (Richards), at the front of the store. Stricherz testified that the two got into an argument but Stricherz could not hear what was being said. Stricherz testified that Lindner yelled at Richards and took something from him and put it into his pocket. Lind-ner returned to the car and the two left.

[¶ 3.] At this point Lindner and Stri-cherz went to Lindner’s sister’s house for a few minutes to see if she wanted to go with them to play bingo for their father’s birthday. They left without her and went to play bingo at about 6:00 p.m. They played until approximately 10-10:30 p.m. After bingo they went to a casino in Sioux Falls. At approximately 2:30 a.m. law enforcement stopped Lindner’s vehicle for a nonworking headlight, brake light and license plate light.

[¶ 4.] Lindner did not have his driver’s license or proof of insurance and was asked to step out of the vehicle. Lindner consented to a pat down search. The officer found a slender object in a front pocket that Lindner indicated was his work pen. When asked to remove the item, Lindner attempted to switch it into his other hand before the officer could see what it was and acted as though he could not find the object. The officer grabbed Lindner and Lindner threw the object, which was a glass pipe, to the ground. After he was placed under arrest Lindner indicated he had more contraband in his pocket. The officer found a small plastic bag with marijuana and a pipe. A field test indicated that the pipe that was thrown to the ground contained methamphetamine residue. Lindner indicated to the officer these items belonged to his stepson, Richards.

[¶ 5.] Lindner was charged with possession of a controlled drug or substance (methamphetamine), possession of marijuana and possession of drug paraphernalia. On the morning of trial, Lindner asked the trial court to grant Richards immunity if he testified because the State had refused to grant immunity. The trial court denied the request and appointed Richards an attorney to advise him of his rights because he was going to be called as a witness in the proceeding. During trial, from opening statement to closing argument, defense counsel argued that Lindner took the items away from his stepson. Richards was called as a witness at the trial. Richards invoked his Fifth Amendment privilege against self-incrimination in response to defense questions about the occurrence at Wal-Mart.

[¶ 6.] Richards was excused as a witness and a conference between counsel and the judge was held concerning the next witness. The jury was removed from the courtroom and the following exchange took place:

Defense counsel: At this point I would intend to call a paralegal from my office to testify under 804(a)(1). I believe this witness asserting his right to Fifth Amendment, that makes him an unavailable witness. And I would intend to call the paralegal to testify as to what he told her during their interview.
The Court: [State], what’s the—
State: Judge, the state is objecting, I guess, on a couple of grounds. One, the fact of the matter is the paralegal coming and testifying, the state is not going to be able to adequately cross-examine her. The witness in this particular case did come, did take the stand, exercised that Fifth Amendment right. And I believe based on that I have no — I have no means of adequately cross-examining a witness who is not the person who made statements.
The Court: Well, I don’t think that we read 804(a)(1) all by itself. We have to look at the other statutes as well. And specifically Rule 804(b)(6), and as it’s codified in SDCL 19-16-35, which is the statute that deals with other hearsay being admissible if the declarant is unavailable. That statute requires there be advanced notice by the proponent to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.
[Defense counsel], did you give notice to [State] before the trial that you anticipated that you might be needing to call the paralegal to testify as to these interviews that you had?
Defense counsel: I did not, Your Honor.
The Court: And that notice includes or is supposed to include your intent to offer the statement and the particulars of it, including the name and the address of the declarant. It also requires that the court has to do a weighing as to whether the statement is offered as a material fact; whether the statement is more probative on the point for which it is offered than any other evidence which the proponents can procure through reasonable efforts; and the general purpose
of these rules and the interests of justice will best be served by admission of the statement into evidence.
And it also has to have equivalent circumstantial guarantees of trustworthiness consistent with the statutes as set forth in Sections 19-16-30 to 19-16-34. Those statutes deal with former testimony which would be testimony under oath, dying declarations, admissions against interest, statements about personal or family history and decedent’s statements. I suppose that it’s possible — and I don’t know what that testimony is at this point — but I suppose it’s possible that it might be in the nature of admissions against interest. I anticipate that’s what that testimony would be, so under those circumstances it might arguably have that circumstantial guarantee of trustworthiness. But absent advance notice to state, I don’t think I can allow that testimony.
Defense counsel: Thank you, Judge.
Court: Any further record you wish to make with respect to that testimony, [defense counsel]?
Defense counsel: I don’t judge. I would let the court know that I don’t have any other witnesses then.

(Emphasis added.) Lindner was convicted for possession of methamphetamine and marijuana and acquitted on the paraphernalia charge. The trial court only imposed sentence for methamphetamine possession. Lindner received a suspended sentence and 180 days in the county jail based on the trial court’s sentencing statement that this was essentially a “residue-type” case. Lindner appeals contending the trial court’s decision denying the testimony was an abuse of discretion.

ANALYSIS

[¶ 7.] We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. State v. Mattson, 2005 SD 71, ¶ 13, 698 N.W.2d 538, 544. “With regard to the rules of evidence, abuse of discretion occurs when a trial court misapplies a rule of evidence, not when it merely allows or refuses questionable evidence.” State v. Asmussen, 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586. Here, the trial court abused its discretion in determining advance notice of the statement was required for a statement against interest under SDCL 19-16-32 (Rule 804(b)(3)). In analyzing the admissibility of the statement, the trial court first considered its admissibility under SDCL 19-16-35 (Rule 804(b)(6))(catch-all provision), which requires advance notice. SDCL 19-16-35 provides:

A statement not specifically covered by any of §§ 19-16-80 to 19-16-81,, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by § 19-16-4 if the declarant is unavailable as a witness and if the court determines that
(1) the statement is offered as evidence of a material fact;
(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this section unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

SDCL 19-16-35 (emphasis added). However, although this catch-all hearsay exception contains an advance notice requirement, that notice requirement does not apply to the firmly rooted exceptions to the hearsay rule found in SDCL 19-16-30 thru 19-16-34.

[¶ 8.] Therefore, Lindner contends that the trial court erred in ruling that the statement was also excluded under SDCL 19-16-32 (admissions against interest). That statute provides:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true, is not excluded by § 19-16-4 if the declarant is unavailable as a witness. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

SDCL 19-16-32. “A party seeking to admit statements under this exception to the hearsay rule must prove (1) the declarant is unavailable, (2) the statement so far tends to subject the declarant to criminal liability that a reasonable person would not have made the statement unless he believed it to be true, and (3) the statement is corroborated by circumstances clearly indicating its trustworthiness.” State v. Brings Plenty, 490 N.W.2d 261, 266 (S.D.1992) (citations omitted). As the trial court recognized and defense counsel indicated, the witness was being called to testify as to what Richards stated when she interviewed him about the encounter at Wal-Mart. Richards previously invoked his Fifth Amendment privilege against self-incrimination concerning the encounter and was therefore unavailable to testify. See SDCL 19-16-29 (Rule 804(a))(“Unavailability as a witness includes situations in which the declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement.”); Brings Plenty, 490 N.W.2d at 266 (declarant’s exercise of his Fifth Amendment privilege makes him unavailable under SDCL 19-16-32). The trial court did not further analyze the admissibility of the witness’ testimony and relied only on the lack of notice to the State in excluding the testimony; a requirement that does not exist for admission under SDCL 19-16-32. This was an error of application amounting to an abuse of discretion.

[¶ 9.] As the trial court indicated in its ruling before invoking the notice requirement, a statement by Richards that he possessed drugs and paraphernalia would subject him to criminal liability as it is against his interest. The jury was also presented with evidence that Stricherz observed a verbal altercation with Lindner and Richards and that Lindner took something away from Richards. The evidence further indicated Lindner immediately informed law enforcement the items belonged to Richards when he was arrested. On remand, the trial court should apply the test set forth in Brings Plenty to this evidence and the proffered statement in order to determine its admissibility, an inquiry that was bypassed by the errant notice requirement.

[¶ 10.] Finally, the State argues that even if the defense theory of the case is true a parent taking drugs away from a child has no defense to a conviction and the fact Lindner did not dispose of the drugs immediately evidences his criminal intent. In order to support a conviction, the State was required to establish the possession was “knowing.” See SDCL 22-42-5; 6 (“No person may knowingly possess ... ”). In light of our decision to reverse and remand we do not address this contention other than to note that this is a question left to the jury to determine, especially considering the fact that Lindner was convicted for possession of methamphetamine based on residue in a pipe.

[¶ 11.] Reversed and remanded.

[¶ 12.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . The officer testified a UA was not conducted on Lindner following his arrest.

      . Lindner did not testify at trial. The defendant's case consisted of his parents' testimony that he did play bingo for his father’s birthday that evening along with Stricherz. Stricherz then testified as to what he observed at Wal-Mart. Richards was called and asked about that incident which resulted in the invocation of his Fifth Amendment privilege.

      . In State v. Crawford, 2007 SD 20, ¶ 10, 729 N.W.2d 346, 348, this Court examined a situation where a paralegal was also called to testify to statements made during an interview after the declarant invoked his Fifth Amendment privilege against self-incrimination. The trial court allowed some of the statements under SDCL 19-16-32 and excluded others and we affirmed the trial court's evidentiary rulings. Id. ¶ 22.

      . "The Rule requires not the unavailability of the declarant but the unavailability of the declarant’s testimony. There is a difference. The declarant's presence on the witness stand will not block use of his or her extra-judicial statement if the declarant refuses to answer [or] exercises a privilege not to answer[.]” Weinstein's Federal Evidence, Vol. 5, § 804.03 [1] (2006). The exercise of the privilege against self-incrimination creates such unavailability. Weinstein’s, § 804.03[2] n. 5.

      . "The corroboration requirement of this rule is a preliminary determination as to the statement’s admissibility, not an ultimate determination about the statement's truth.” Wein-stein’s, § 804.06[5][b][i]. "The corroboration requirement should not be used as a means of usurping the jury’s function.” Weinstein’s, § 804.05[b][iii]. "Evidence that the declarant was near the scene and had some motive or background connecting him with the crime should be sufficient corroboration.” Id. To aid in the corroboration analysis, we note that the Eighth Circuit Court of Appeals has articulated the following factors:
      (1) whether there is any apparent motive for the out-of-court declarant to misrepresent the matter, (2) the general character of the speaker, (3) whether other people heard the out-of-court statement, (4) whether the statement was made spontaneously, (5) the timing of the declaration and the relationship between the speaker and the witness.

        United States v. Bobo, 994 F.2d 524, 528 (8th Cir.1993) (citing United States v. Rasmussen, 790 F.2d 55, 56 (8th Cir.1986)).


author: GILBERTSON, Chief Justice.

text:
    2007 SD 62
    Donald JUNDT and Virgena Jundt, Petitioners, v. The Honorable A.P. FULLER, Circuit Judge of the Seventh Judicial Circuit, Respondent, and South Side Ditch & Water Company and Reinhold A. Eisenbraun, Intervenors.
    No. 24393.
    Supreme Court of South Dakota.
    Considered on Briefs April 12, 2007.
    Decided June 27, 2007.

      Jess M. Pekarski of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for petitioners.
    Neil Fulton of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for respondent.
    Michael M. Hickey and Sara L. Larson of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for intervenor South Side Ditch & Water.
    Reinhold A. Eisenbraun, Pro se interve-nor.
   GILBERTSON, Chief Justice.

[¶ 1.] Petitioners Donald and Virgena Jundt filed a petition for writs of mandamus, prohibition and certiorari against the respondent, the Honorable A. Peter Fuller, Judge of the Circuit Court for the Seventh Judicial Circuit, seeking to prevent the remand of an eminent domain action for enforcement of a water permit to the South Dakota Water Management Board (the Board). This Court issued an alternative writ of prohibition, the respondent filed a response and the petitioners filed a reply. Based upon these submissions, we grant the petitioners a peremptory writ of prohibition.

FACTS

[¶ 2.] On March 15, 2005, the Board granted the petitioners a water permit authorizing them to divert water from the South Side Ditch diversion point along Rapid Creek in Pennington County. Although no appeal was taken from the decision granting the permit, South Side Ditch and Water Company (South Side) refused to allow the petitioners to use the South Side Ditch. The petitioners then commenced eminent domain proceedings in circuit court to obtain use of the ditch as authorized by their permit. Rather than proceeding with the eminent domain case, the respondent entered the following order of remand on December 4, 2006:

[I]t is hereby

ORDERED, ADJUDGED and DECREED that [petitioners’] application of South Dakota Water Permit No. 2526-2 be transferred and remanded back to the South Dakota Water Management Board with instructions to provide adequate Findings of Fact and Conclusions of Law, particularly on the issue of whether [petitioners] are considered “persons” under SDCL 46-5-34.1, as the statute existed in 1992. The attached documents to this. Order, as well as any other documents the Board deems appropriate, shall be considered by the Board upon remand.

According to the respondent’s brief, he ordered the remand because the petitioners’ status under SDCL 46-5-34.1 was relevant to their eligibility for a water permit and board findings and conclusions on the issue appeared to be based upon “incorrect facts.”

[¶ 3.] Following the entry of the respondent’s order, the petitioners applied to this Court for various writs, arguing that the respondent did not have jurisdiction to “remand” their water dispute to the Board. The petitioners sought a writ to prevent the remand and compel the respondent to proceed with the eminent domain case in circuit court. This Court entered an alternative writ of prohibition ordering the respondent to refrain from any acts in furtherance of his order of remand. The writ further ordered the respondent to show cause why a peremptory writ should not issue directing him to vacate his order of remand and to proceed with the eminent domain case as an original action in circuit court. The respondent has now filed his response to the order to show cause and the petitioners have filed their reply.

ANALYSIS

[¶ 4.] The respondent argues that he and the Board shared concurrent jurisdiction to resolve the dispute between the petitioners and South Side and that he properly deferred to the Board’s expertise by referring the matter to the Board pursuant to the doctrine of primary jurisdiction. That doctrine was most recently explained in Dan Nelson, Automotive, Inc. v. Viken, 2005 SD 109, ¶ 7, 706 N.W.2d 239, 242:

Primary jurisdiction questions arise when both an administrative agency and a court have authority to hear an initial dispute. [Mordhorst v. Egert, 88 S.D. 527, 531 — 532, 223 N.W.2d 501, 504 (1974)]. When both entities have authority to hear the initial dispute, the doctrine of primary jurisdiction “determines whether the court or the agency should make the initial determination.” Id. (citation omitted).

Under the doctrine:

courts will not determine a controversy involving an issue within the jurisdiction of an administrative agency prior to the resolution of that question by the agency involved, when it is a matter that involves the exercise of discretion requiring the special knowledge, experience, and services of the administrative body; when it involves a determination of technical and intricate matters of fact; or when a uniformity of ruling is essential to comply with the purposes of the regulatory statute being administered.

Northwestern Bell Tel. Co. v. Chicago and North Western Transp. Co., 245 N.W.2d 639, 642 (S.D.1976)(citing Northwestern Bell Tel. Co. v. Hawkeye State Tel. Co., 165 N.W.2d 771 (Iowa 1969)).

[¶ 5.] As the respondent submits, an argument does appear to exist under Romey v. Landers, 392 N.W.2d 415 (S.D.1986) that the Water Management Board shared jurisdiction with the circuit court to resolve the initial dispute between the petitioners and South Side. In Romey, this Court affirmed a circuit court order upholding the Board’s declaratory ruling directing the removal of a series of dams constructed in violation of a party’s irrigation rights under a permit. In reaching its decision, this Court affirmed the Board’s authority to issue declaratory rulings that also require “coercive relief.” The petitioners here might similarly have sought “coercive relief’ from the Board to enforce their water permit rather than proceeding in circuit court with their eminent domain action.

[¶ 6.] Despite the existence of a possible administrative remedy for the petitioners, the respondent did not dismiss, stay or suspend their circuit court case to allow them to pursue that remedy. These would be typical methods for a court to exercise the doctrine of primary jurisdiction. See Birmingham Hockey Club, Inc. v. National Council on Compensation Insurance, Inc., 827 So.2d 73, 84 (Ala.2002)(quoting Jones Truck Lines, Inc. v. Price Rubber Corp., 182 B.R. 901, 911 (M.D.Ala.1995)(under doctrine of primary jurisdiction, the court may retain jurisdiction or may dismiss the case without prejudice and also has the option of staying the proceedings, retaining jurisdiction and referring the matter to the agency for an administrative ruling)). Instead, the respondent attempted to transfer and remand the petitioners’ original water permit application back to the Board for consideration of additional evidence and the entry of “adequate” findings of fact and conclusions of law on a new legal issue relevant to their entitlement to the permit. This amounted to an order for the Board to reconsider or vacate its original decision granting the permit. However, at that point, the Board no longer had authority to reconsider its decision. Furthermore, it may have been inappropriate for the Board to consider the additional evidence referenced by the respondent.

[¶ 7.] Nothing in South Dakota’s Administrative Procedures Act authorizes an administrative agency to reconsider a decision in a contested case. See SDCL ch 1-26. However, “administrative agencies have the inherent authority to correct adjudications which appear to be erroneous.” Stearns-Hotzfield v. Farmers Insurance Exchange, 360 N.W.2d 384, 389 (Minn.Ct.App.1985)(citing Anchor Casualty Company v. Bongards Cooperative Creamery Association, 253 Minn. 101, 91 N.W.2d 122 (1958); State ex rel. Turnbladh v. District Court, County of Ramsey, 259 Minn. 228, 107 N.W.2d 307 (1960)). There are, however, restrictions on that authority. One restriction is timeliness. Generally, an agency’s “right to reverse an earlier, erroneous adjudication lasts until jurisdiction is lost by appeal or until a reasonable time has run, which would at least be co-extensive with the time required by statute for review.” Stearns-Hotzfield, 360 N.W.2d at 389 (citing Anchor Casualty, 91 N.W.2d at 126; Turnbladh, 107 N.W.2d at 313). Accord State, ex rel. Harpley Builders, Inc. v. Akron, 62 Ohio St.3d 533, 584 N.E.2d 724, 725 (1992)(an agency retains jurisdiction to set aside its own decision until a party appeals or the time to file an appeal has passed); Wiles v. Department of Labor and Industries of State, 34 Wash.2d 714, 209 P.2d 462, 465 (1949)(agency has right to withdraw an order made and entered by it providing withdrawal is made before the time for appealing such order has expired). Once an agency’s adjudication has become final it is no longer subject to reconsideration. See City of Philadelphia Police Dept. v. Civil Service Com’n of the City of Philadelphia, 702 A.2d 878, 880 (Pa.Commw.Ct.1997)(tribunal loses jurisdiction to change order once it becomes final).

[¶ 8.] Another restriction on reconsideration of an administrative decision relates to the grounds for seeking reconsideration. When the grounds involve the consideration of additional evidence, the agency should determine whether the evidence is merely cumulative to that before it at the time its decision was rendered and whether the evidence was in existence and at hand at the time of the original hearing. See Stepan v. J.C. Campbell Co., 228 Minn. 74, 36 N.W.2d 401, 404 (1949). If the evidence is cumulative or was in existence, there is no abuse of discretion in denying reconsideration. See id.

[¶ 9.] Both timeliness and the grounds for reconsideration weighed against the Board’s reconsideration of the water permit application at issue here. The Board’s original decision granting the permit was issued on March 15, 2005 and the time for appealing the decision expired thirty days later. SDCL 1-26-31. No appeal was ever filed. Thus, the decision became final and was no longer subject to reconsideration by the Board by the time the respondent attempted to remand it back to that body in December 2006. Moreover, the record does not reflect any consideration of whether the evidence the respondent wanted the Board to review was before the Board at the time of its original decision or whether that evidence was in existence and available at that time. If it was, it would have been an abuse of discretion for the Board to reconsider the evidence.

[¶ 10.] In addition to the restrictions on reconsideration of administrative decisions, separation of powers considerations also weigh against the propriety of the respondent’s order of remand. This Court touched upon the issue of separation of powers between administrative agencies and reviewing courts in Romey, supra when it held that an agency did not encroach on the judiciary when it enforced a permit that it had previously issued. This case presents a converse situation of judicial encroachment on an agency prerogative. As explained in Perkins v. Department of Medical Assistance, 252 Ga.App. 35, 555 S.E.2d 500, 502 (2001):

It must be remembered that the constitutional separation of powers between the executive branch and the judicial branch prevents courts from involvement in review of administrative decisions unless there exists specific legislative empowerment for the judiciary to act regarding executive branch functions; when such delegation of power exists, appeals to the courts must follow such statutory procedures as a condition precedent to obtaining subject matter jurisdiction, because such conferred powers over executive branch functions are statutorily circumscribed.

[¶ 11.] Here, the administrative decision issuing the petitioners’ water permit was never appealed. Yet, the respondent has attempted to review that decision, reverse it and remand it for reconsideration when the statutory procedures that are a condition precedent for such review were never followed. This violates separation of powers principles as explained in Perkins.

[¶ 12.] An unappealed administrative decision becomes final and should be accorded res judicata effect. See Joelson v. City of Casper, Wyo., 676 P.2d 570, 572 (Wy 1984)(if judicial review is granted by statute and no appeal is taken, the decision of an administrative board is final and conclusive); Pinkerton v. Jeld-Wen, Inc., 588 N.W.2d 679, 680 (Iowa 1998)(final adjudicatory decision of administrative agency is regarded as res judicata). Rather than acting as a reviewing court and attempting to direct the Board to reconsider its issuance of the petitioners’ water permit, the respondent should have considered issuance of the permit as a final decision and should have proceeded to consider the merits of the petitioners’ eminent domain action to enforce it. See Joelson, supra (when courts are called upon to enforce an administrative order that has become final, only those questions concerning the order’s violation may be adjudicated and not questions which go to the validity of that order).

[¶ 13.] Based upon the foregoing analysis, we hold that the respondent exceeded his jurisdiction and authority by attempting to remand the petitioners’ eminent domain case to the Board for reconsideration of the petitioners’ water permit application. While the respondent contends that the petitioners have an adequate legal remedy for any such error through litigation of the eminent domain proceedings they initiated and an appeal, he ignores that that litigation is at a standstill because of the remand and that there is no right of appeal from an order of remand to an administrative agency. Anderson v. Nash Finch Wholesale Fruit & Grocery Co., 88 S.D. 59, 215 N.W.2d 125 (1974). Therefore, we deem issuance- of a writ necessary.

[¶ 14.] The petitioners seek writs of mandamus, prohibition and certiorari. Thus, a question remains as to the appropriate writ to issue. It has been held that: “a court may issue a writ [of prohibition] to confine a lower court to its proper jurisdiction, to compel the court to exercise a jurisdiction properly before it, or to prevent a clear abuse of discretion by the lower court.” In re State of S.D., 692 F.2d 1158, 1160 n. 3 (8thCir.1982). See also In re State, 180 S.W.3d 423, 425 (Tex.App.2005)(writ of prohibition operates like injunction issued by superior court to control, limit, or prevent action in court of inferior jurisdiction). Thus, in Swezy v. Bart-Swezy, 866 So.2d 1248 (Fla.Dist.Ct.App.2004), the Florida District Court of Appeal granted a writ of prohibition to prevent a circuit court’s referral of a child support matter to a general master in violation of that state’s procedural requirements. More recently, this Court issued its own writ of prohibition on January 18, 2007 directing a circuit court to vacate an invalid writ of prohibition that it had previously issued in a case. See Gray v. Gienapp, 2007 SD 12, 727 N.W.2d 808. Accordingly, we hold that a writ of prohibition is the appropriate remedy for the respondent’s actions here.

[¶ 15.] For the foregoing reasons, we grant the petitioners a peremptory writ of prohibition directing the respondent to vacate his order of remand and to proceed with consideration of the petitioners’ action in circuit court.

[¶ 16.]SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . It appears that eminent domain may be an appropriate manner of proceeding in circuit court to enforce water rights in a case such as this. See generally SDCL 46-8-1 (any person may exercise right of eminent domain to acquire as public use any property or rights necessary for application of water to beneficial use); SDCL 21-35-1 (owners of water rights covered by chapter on eminent domain).

      . Our alternative writ also afforded each defendant in the eminent domain case an opportunity to intervene in these writ proceedings and to file a response. Two of those defendants, including South Side, filed an additional response which we have also considered in our review of this matter.

      . Although SDCL 1-26-34 authorizes a circuit court to order an agency to take additional evidence in a case, this is in the context of an appeal from an agency decision. See SDCL 1-26-34 (application for leave to present additional evidence must be made before date set for hearing on appeal from agency’s final decision). Here, there was no appeal of an agency decision before the respondent.

      . These standards are similar to those applied by a circuit court in an appeal in ruling on a motion to present additional evidence to an agency. See SDCL 1-26-34 (if it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency).


author: WIGGINS, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Steven C. KAISER, Respondent.
    No. 07-0581.
    Supreme Court of Iowa.
    July 27, 2007.
    Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.
    Frank A. Comito and Kent A. Gummert of Gaudineer, Comito & George, L.L.P., West Des Moines, for respondent.
   WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board filed a complaint with the Grievance Commission of the Supreme Court of Iowa against Steven C. Kaiser alleging he violated the Iowa Code of Professional Responsibility for Lawyers when he entered into business ventures with his client without properly making the required disclosures to the client. The Board charged Kaiser with violations of Iowa Code of Professional Responsibility DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule); DR 1 — 102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law); DR 5-101(A) (except with the consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of the lawyer’s professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests); DR 5-104(A) (a lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise professional judgment therein for the protection of the client, unless the client has consented after full disclosure); and DR 5-105(0) (a lawyer shall not continue multiple employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the representation of another client, except to the extent permitted by DR 5-105(D)).

The parties filed a joint stipulation of facts and their exhibits. Within the stipulation Kaiser and the Board agreed Kaiser violated DR 1-102(A)(1), DR 1-102(A)(6), DR 5-101(A), and DR 5-104(A). The Board also agreed to drop its charge that Kaiser violated DR 5-105(C). The parties stipulated a proper sanction would be a suspension of Kaiser’s law license with no possibility for reinstatement for at least three months. The parties waived a hearing, filed briefs, and submitted the matter to the Commission with the stipulation and exhibits as the record.

The Commission found “[Kaiser] entered into the business ventures with [his client] with nothing less than honorable intentions” and these business ventures “caused [Kaiser] considerably more financial pain than profit.” However, the Commission found Kaiser did not meet his “very heavy burden of disclosure.” Instead, the Commission pointed out, “[Kaiser] acknowledges that there is no documentation that verifies adequate disclosure of the possible conflicts and consequences inherent in his business venture with [his client].” The Commission noted Kaiser has never previously been the subject of a disciplinary proceeding, but also that “the primary aggravating factor in this case is the fact that a client that clearly needed independent advice and advocacy was undoubtedly denied that commodity due to [Kaiser]’s understandable self-interest in the operation of the lawyer/client business venture.” The Commission recommended that Kaiser’s license to practice law be suspended for at least sixty days.

On our de novo review of the record we agree with the stipulation and the Commission’s finding that Kaiser violated DR 1-102(A)(1), DR 1-102(A)(6), DR 5-101(A), and DR 5-104(A) in connection with his involvement in creating, running, and funding businesses with his client without the client’s prior consent after a full disclosure of the potential conflicts.

In determining the proper sanction, we must do so on the record before the Commission. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006). We are not bound by the stipulations of the parties. Id. Nor are we bound by the recommendations of the Commission. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 726 N.W.2d 397, 400 (Iowa 2007). The sanction given in any particular case is solely within the authority of this court. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sloan, 692 N.W.2d 831, 833 (Iowa 2005).

We have imposed sanctions from a public reprimand to revocation when an attorney has improperly conducted business transactions with a client, with a determining factor being the egregiousness of the conduct. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnston, 732 N.W.2d 448, 456 (Iowa 2007).

In this case, Kaiser did not fully disclose the potential conflicts to his client and did not receive the client’s informed consent before proceeding to develop and run businesses with his client. Kaiser also used his legal knowledge to protect his own self-interests in an attempt to cover his financial losses. However, the stipulation does not indicate that the client suffered any harm except for having to defend lawsuits he likely would have had to defend even if Kaiser made the proper disclosures. Considering the nature of Kaiser’s violations, the protection of the public, deterrence of similar misconduct by others, Kaiser’s fitness to practice law, our duty to uphold the integrity of the profession in the eyes of the public, aggravating circumstances, mitigating circumstances, and the sanction we have given in similar cases, we suspend Kaiser’s license to practice law in this state for thirty days.

Accordingly, we suspend Kaiser’s license to practice law in this state for a period of thirty days from the date of filing this opinion. Kaiser is eligible for reinstatement on the day after the thirty-day period expires unless action is taken to deny reinstatement as provided in Iowa Court Rule 35.12(2). Kaiser must comply with the notification requirements of Iowa Court Rule 35.21. We tax the costs of this action against Kaiser pursuant to Iowa Court Rule 35.25. Kaiser shall not be reinstated until these costs have been paid.

LICENSE SUSPENDED.