author: LAVORATO, Chief Justice. CADY, Justice

text:
    Daniel MARTINS and Coleen Martins, Appellees, v. INTERSTATE POWER COMPANY, Appellant.
    No. 00-0791.
    Supreme Court of Iowa.
    Oct. 9, 2002.
    Rehearing Denied Nov. 7, 2002.

      Sheila Stuart Kelley and Christopher D. Stombaugh of Kopp, McKiehan, Geyer & Skemp, L.L.P., Platteville, Wisconsin, Scott Lawrence of Lawrence & Desroch-ers, St. Nazianz, Wisconsin, and R. Craig Oppel of Allbee, Allison, & Denning, P.C., Muscatine, for appellees.
    David L. Hammer, Angela C. Simon and Scott J. Nelson of Hammer, Simon & Jensen, Dubuque, for appellant.
    Michael R. May, Ankeny, for amicus curiae Iowa Association of Municipal Utilities and Dennis Puckett of Sullivan & Ward, P.C., Des Moines, for amicus curiae Iowa Association of Electric Cooperatives.
   LAVORATO, Chief Justice.

The district court entered judgment on a jury verdict in favor of Daniel Martins and Coleen Martins against Interstate Power Company (Interstate). We transferred the case to the court of appeals and that court affirmed. We granted Interstate’s application for further review. On further review, we consider one issue: Whether the district court erred in submitting a “pure nuisance” claim without an accompanying negligence claim in a stray voltage case against an electric utility. Finding no error, we affirm the court of appeals decision and the judgment of the district court.

I. Background Facts and Proceedings.

From 1982 to March 1, 1997, Daniel Martins milked cows on a dairy farm just outside the city limits of Monona, Iowa. Daniel and Coleen were married in 1986. The Martins purchased the dairy farm from a finance company in 1991. Before that, Daniel’s parents owned the farm. A dairy barn was built on the property in 1977. An Interstate substation sits less than a quarter mile to the west of the Martins’ farm. The farm is between the city and the substation.

In March 1989, the Martins notified Interstate that they believed stray voltage was accessing their cows. Interstate investigated and attributed any problems to the Martins’ own wiring on the farm.

In 1992, the Martins again notified Interstate that they believed stray voltage was accessing their cows. This was after Daniel received an electric shock from the bulk tank and off the barn steel. Field representatives from a dairy to which the Martins sold milk found excessive alternating current from the utility at cow contact points in the barn. Interstate conducted more testing and made some recommendations, but insisted that the stray voltage was not caused by its lines.

In April 1993, at the Martins’ request, Interstate isolated the neutrals, which involves separating the farm neutral from the utility neutral (separating the Martins’ and Interstate’s electrical systems). Testing after the isolation confirmed there was no stray voltage.

In the early 1990s, Daniel first reported problems typically associated with stray voltage to his veterinarian. The veterinarian described the Martins’ herd as “unruly” and characterized by “bad behavior.” For example, cows would kick off their milkers, kick at their stomach, swing from side to side, and “do a lot of dancing.” Cows were frightened and would not enter the barn.

After Interstate isolated the neutrals in 1993, the Martins’ veterinarian noted that “the cow behavior instantly turned around, it was just like day and night.” The cows began chewing their cuds and “appeared to be more comfortable in the barn.” They started putting on weight and looked better. The somatic cell count dropped dramatically, and milk production increased.

In 1995 and 1996, however, the cows’ behavior and condition began to deteriorate again. The Martins noticed abnormal behavior in the cows, and the somatic cell counts started increasing.

Sometime between 1985 and 1990, the local gas company found alternating current on the gas line at the Martins’ dairy farm. In 1996, after more testing revealed the same problem, the gas company replaced the steel gas line with a plastic line.

In November 1996, the Martins filed this lawsuit against Interstate, seeking damages allegedly caused by stray voltage. The petition alleged four theories of liability: strict liability, negligence, nuisance, and trespass. Interstate denied the allegations and raised the affirmative defense of comparative fault.

Several months after this lawsuit was filed, the Martins’ veterinarian advised them to move the herd off their farm. In March 1997, the Martins moved the herd to a farm four miles north. Cow behavior improved at the new location.

Meanwhile, in February 2000, the Martins voluntarily dismissed the strict liability, negligence, and trespass counts, proceeding solely on the nuisance count.

Following this dismissal, Interstate filed a motion for summary judgment as to the nuisance count. The district court denied the motion, and we denied Interstate’s application for permission to appeal in advance of final judgment.

Thereafter the matter proceeded to trial. The jury returned a verdict in favor of the Martins for $700,000. Following Interstate’s appeal, we transferred the case to the court of appeals, which affirmed. We then granted Interstate’s application for further review.

II. Issues.

Interstate raised numerous issues on appeal. We address only one: whether the district court erred by applying a “pure nuisance” claim against the utility without an accompanying negligence claim. We conclude the court of appeals adequately addressed and correctly decided the issues we do not address.

III. Pure Nuisance Versus Nuisance With Accompanying Negligence Claim.

A. Generally. Iowa Code section 657.1 defines nuisance and provides for civil remedies'.

Whatever is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof.

Iowa Code § 657.1 (1995). Iowa Code section 657.2 lists certain conduct or conditions deemed to be a nuisance.

The statutory definition of nuisance does not modify application of common law to nuisances. Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 314 (Iowa 1998). “Rather, the statutory provisions ‘are skeletal in form, and [we] look to the common law to fill in the gaps.’ ” Id. (quoting Weinhold v. Wolff, 555 N.W.2d 454, 459 (Iowa 1996)).

A private nuisance is “an actionable interference with a person’s interest in the private use and enjoyment of the person’s land.” Weinhold, 555 N.W.2d at 459 (citation omitted). “Parties must use their own property in such a manner that they will not unreasonably interfere with or disturb their neighbor’s reasonable use and enjoyment of the neighbor’s property.” Id.

A public nuisance, the other form of nuisance, is “a species of catchall criminal offenses, consisting of an interference with the rights of the community at large.” Guzman v. Des Moines Hotel Partners, L.P., 489 N.W.2d 7, 10 (Iowa 1992). Examples include anything from the obstruction of a highway to a public gaming house or indecent exposures. Id. Here we are dealing with a private nuisance.

Whether a lawful business is a private nuisance

depends on the reasonableness of conducting the business in the manner, at the place, and under the circumstances in question. Thus, the existence of [such] a nuisance does not depend on the intention of the party who created it. Rather, it depends on the following three factors: priority of location, the nature of the neighborhood, and the wrong complained of.

Weinhold, 555 N.W.2d at 459 (citations omitted). Whether a party has created and maintained a nuisance is ordinarily a fact question. Id.

There is a distinction between the concepts of “nuisance” and “negligence,” which we explained in Bormann:

Negligence is a type of liability-forming conduct, for example, a failure to act reasonably to prevent harm. In contrast, nuisance is a liability-producing condition. Negligence may or may not accompany a nuisance; negligence, however, is not an essential element of nuisance. If the condition constituting the nuisance exists, the person responsible for it is liable for resulting damages to others even though the person acted reasonably to prevent or minimize the deleterious effect of the nuisance.

Bormann, 584 N.W.2d at 315 (emphasis added) (citations omitted); see also 58 Am. Jur.2d Nuisances § 9, at 676 (1989) (The tort concepts of negligence and nuisance “describe completely distinct concepts, which constitute distinct torts, different in their nature and their consequences.... [Negligent acts do not, in themselves, constitute a nuisance; rather negligence is merely one type of conduct upon which liability for nuisance may be based, and thus, negligence is not a necessary ingredient of a nuisance.”) In other words, nuisance simply refers to the results; negligence might be the cause. Guzman, 489 N.W.2d at 11.

The true distinction between negligence and nuisance is that “to constitute a nuisance ‘there must be a degree of danger (likely to result in damage) inherent in the thing itself, beyond that arising from mere failure to exercise ordinary care in its use.’ ” Id. (emphasis added) (citations omitted).

Where a nuisance is based on negligence, however, liability for nuisance may depend upon the existence of negligence. Id. Where that is the case, apportionment of fault principles under Iowa Code chapter 668 apply. Id.; see also 58 Am.Jur.2d Nuisances § 82, at 735 (“[W]henever a nuisance has its origin in negligence, negligence must be proven, and the plaintiff may not avert the consequences of contributory negligence by affixing to the negligence of the wrongdoer the label of nuisance.”).

B. Stray voltage. One court has described the concept of stray voltage this way:

In order to understand stray voltage or neutral-to-earth voltage, one must first understand the neutral-grounded network. All electricity leaving an electrical substation must return to that substation in order to complete a circuit. Unless that circuit is completed, electricity will not flow. The current leaves the substation on a high voltage line which eventually connects to some electrical “appliance.” After exiting the “appliance” that current must return to the substation. The neutral-grounded network provides the returning current two choices. Either it can return via the neutral line, which accounts for the second wire on our electrical poles, or it can return through the ground. These two pathways comprise the grounded-neutral network. Electricity flows through the path of lowest resistance. If there exists more resistance in the neutral line than in the ground, the current will flow through the ground to return to the substation.
Neutral-to-earth voltage or stray voltage will occur when current moves from either the neutral line to the ground or from the ground to the neutral line. It uses a cow as a pathway if that animal happens to bridge the gap between the two. A cow’s hooves provide an excellent contact to the earth while standing on wet concrete or mud, while at the same time the cow is contacting the grounded-neutral system consisting of items such as metal stanchions, stalls, feeders, milkers, and waterers. The current simply uses the cow as a pathway in its eventual return to the substation. Apparently very slight voltages can affect cattle. Evidence [has] suggested anything greater than one volt can be catastrophic to a dairy farm.

Larson v. Williams Elec. Coop., Inc., 534 N.W.2d 1, 1-2 n. 1 (N.D.1995) (farmer brought action against electric cooperative seeking recovery of damages to dairy farm allegedly caused by stray voltage); see also Peter G. Yelkovac, Homogenizing the Law of Stray Voltage: An Electrifying Attempt to Corral the Controversy, 28 Val. U.L.Rev. 1111, 1117-19 (Spring 1994) [hereinafter Yelkovac].

A cow in contact with stray voltage experiences a slight electrical shock, and repeated exposure to these slight shocks causes a cow to develop severe behavioral and physiological problems “rendering the cow a much less-effective milk producer.” Yelkovac at 1111. Yelkovac suggests that the sources of stray voltage most often stem from problems in an electrical provider’s transmission and distribution system or in a farmer’s wiring or equipment, or from a combination of problems in the electrical systems of both the provider and farmer. Id. at 1112. The writer also suggests that “[s]ome stray voltage may always be present as an inherent part of supplying electricity; however, problems in the electrical systems can elevate the levels of voltage to an undesirable level, causing an electrical current to flow through the cattle and into the ground or earth.” Id. at 1112-13 (emphasis added).

One method of controlling stray voltage, known as “isolation” (and attempted by Interstate in this case)

mitigates the effects of stray voltage by preventing the voltage from reaching the cattle. Essentially, the most effective type of isolation involves the separation of the primary and secondary neutral wires so that the stray voltage cannot flow as easily into the farmer’s electrical system from the power provider’s system.

Id. at 1120.

C. Treatment of stray voltage claims in cases from other jurisdictions. Cases addressing the stray voltage issue are not consistent. As Yelkovac points out,

[t]he body of law on the subject [of stray voltage], ... lacks the uniformity that this highly technical area demands. For example, courts differ in their pronouncements of the duty owed by power providers to their dairy farm customers regarding stray voltage and in their willingness to allow strict products liability as a cause of action in stray voltage suits. Because of the lack of uniformity in this area, the law fails to address properly an inherently technical problem such as stray voltage. The disparate standards of care essentially ensure that a farmer’s chance of recovery in a negligence action depends to a large degree upon the farm’s location within a particular state. Moreover, the availability of a cause of action sounding in strict products liability facilitates the farmer’s recovery by obviating the need for the farmer to demonstrate fault on the part of the power provider. Farmers in states that do not recognize this cause of action in stray voltage cases face greater difficulty in recovering under fault-based, negligence theories.

Id. at 1116. Interestingly, the writer does not discuss the application of nuisance theory to stray voltage cases. Rather, he limits his discussion to negligence and strict liability theories of recovery. He suggests a uniform treatment of stray voltage cases that would define the standard of care and prohibit the use of strict products liability theory against power providers. Id. at 1154-58.

Courts have decided several stray voltage cases grounded on nuisance. See, e.g., Jackson County Hog Producers v. Consumers Power Co., 234 Mich.App. 72, 592 N.W.2d 112 (1999); Kuper v. Lincoln-Union Elec. Co., 557 N.W.2d 748 (S.D.1996); Kaech v. Lewis County Public Util. Dist. No. 1, 106 Wash.App. 260, 23 P.3d 529 (2001); Vogel v. Grant-Lafayette Elec. Coop., 201 Wis.2d 416, 548 N.W.2d 829 (1996); Kolpin v. Pioneer Power & Light Co., 162 Wis.2d 1, 469 N.W.2d 595 (1991); Stunkel v. Price Elec. Coop., 229 Wis.2d 664, 599 N.W.2d 919 (1999). In none of these cases was there any recovery on the sole theory of nuisance.

In Kuper, the South Dakota Supreme Court held the trial court erred in submitting a stray voltage case to the jury on the theory of nuisance. 557 N.W.2d at 761-62. The court relied on a South Dakota statute, which provided, “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Id. at 761 (quoting SDCL 21-10-2). Rural electric cooperatives, specifically authorized by South Dakota law, are required to construct, operate, and maintain their electrical distribution systems in accordance with the provisions of the National Electric Safety Code (which has been adopted in South Dakota). Id. Therefore, the court concluded, the South Dakota legislature “has made it quite clear that a public utility cannot be designated a nuisance.” Id. The court noted that “[i]n granting an exemption from nuisance actions to statutorily authorized activities, our legislature obviously adopted a public policy that private interests must endure some inconvenience for the general populace to receive the benefits of utilities.” Id.

In Kaech, the plaintiff argued that the trial court erred in dismissing plaintiffs claim based on nuisance. Kaech, 23 P.3d at 534. The court concluded that the plaintiffs allegation that stray voltage escaped from faulty insulators and damaged his dairy herd was essentially a “negligence claim with multiple theories.” Id. at 541. Because “a nuisance claim that is simply a restated negligence claim need not be considered separately from the negligence claim,” the court held that the trial court did not err in dismissing plaintiffs nuisance claim. Id.

In Jackson County Hog Producers, the appellate court affirmed the trial court’s dismissal of a nuisance claim against an electric utility for damage allegedly caused by stray voltage. 592 N.W.2d at 117. The court concluded the nuisance claim was merely a restatement of the plaintiffs negligence claim, which was properly dismissed as barred by the statute of limitations. Id.

The Wisconsin Supreme Court has expressly adopted the Restatement (Second) of Torts section 822 into its law of private nuisance. CEW Mgmt. Corp. v. First Fed. Sav. & Loan Ass’n, 88 Wis.2d 631, 277 N.W.2d 766, 767 (1979). On the issue of private nuisance, the Restatement provides:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

Restatement (Second) of Torts § 822 (1979).

In Vogel, applying section 822 of the Restatement (Second) of Torts, the Wisconsin Supreme Court held that nuisance law is applicable to stray voltage claims “because excessive levels of stray voltage may invade a person’s private use and enjoyment of land.” Vogel, 548 N.W.2d at 834. The court also held that whether there was such an invasion was reserved for the trier of fact. Id. Finally, based on the record before it, the court concluded “that the trial court did not err by construing the nuisance action as an unintentional invasion and otherwise actionable under negligence, and by not submitting the question of intentional invasion to the jury.” Id. at 837 (emphasis added). Finally, the court affirmed the trial court’s judgment reducing the amount of damages for plaintiffs’ contributory negligence, because “a nuisance claim based on an unintentional invasion is properly subject to the defense of contributory negligence.” Id.

In Stunkel, the Wisconsin Court of Appeals applied and elaborated upon Vogel. Stunkel, 599 N.W.2d at 921-23. Dairy farmers brought a claim against their electric company on negligence and nuisance theories, alleging that excessive stray voltage caused by the electric company resulted in their herd’s lower milk production. Id. at 921. The jury concluded the electric company was not negligent in permitting stray voltage to exist on the plaintiffs’ farm, but also found the electric company operated its utility in a manner that created a nuisance. Id. The trial court concluded that the plaintiffs were not entitled to recover damages unless the jury had answered the negligence inquiry affirmatively, and entered judgment dismissing the complaint. Id. The plaintiffs presented the court of appeals with one issue: whether a claim for private unintentional nuisance requires proof of actionable underlying conduct and, if so, whether such conduct was established in this case. Id.

Relying on Restatement (Second) of Torts section 822, the Stunkel court concluded that “no claim for private nuisance may be made without the underlying prerequisite conduct being proved.” Id. at 923. Therefore, to recover for a private unintentional nuisance, the plaintiffs had to prove the underlying negligent conduct. Id. The court affirmed dismissal of the complaint, concluding that the record supported the jury’s finding that the defendant did not engage in negligent conduct causing damage to the plaintiff. Id. at 924.

D. The merits. The foregoing survey of our nuisance cases makes clear that there can be a nuisance claim without an underlying actionable conduct, such as negligence, being proved. Additionally, such a claim can be established without a showing of intentional conduct. This, of course, is contrary to the position of the Restatement (Second) of Torts section 822, which this court has not adopted.

The key for such a stand-alone claim of nuisance is that the degree of danger likely to result in damage must be inherent in the thing itself. Guzman, 489 N.W.2d at 11. Excessive stray voltage from an electric utility resulting in damage to a dairy herd meets that test.

Interstate and amicus assert that permitting users of electricity to obtain large judgments against utilities without proving the utilities’ negligence, fault, or wrongdoing will result in large economic and societal costs. They further assert that without assurance that a reasonable care standard will be applied when questions about the utilities’ conduct arise, “public service utilities will have absolutely no guide for their conduct, and no basis for the important decisions they must make which affect the great mass of people they serve.”

Interstate relies heavily on Blackman v. Iowa Union Electric Co., 234 Iowa 859, 14 N.W.2d 721 (1944), to support its argument that a claim of nuisance against a utility can only be predicated upon negligence. In Blackman, the plaintiff sued an electric and gas company for personal injury and property damage caused by the escape of gas that flooded plaintiffs home. Id. at 860, 14 N.W.2d at 722. The plaintiffs petition alleged the defendant “negligently and carelessly allowed gas to escape from its mains and become a nuisance in plaintiffs property and to flood into and through plaintiffs property ... occupied as his home.” Id. The case was also tried on that theory. Id. at 862, 14 N.W.2d at 723. Therefore the case cannot support the proposition that a claim of nuisance against a utility can only be predicated upon negligence. Here, the Martins dismissed their negligence count and tried the case solely on the basis of nuisance.

Finally, Interstate contends that by allowing the Martins to proceed under a nuisance claim not predicated on negligence, the district court essentially applied a strict liability standard against the utility, in conflict with our decision in Schlader v. Interstate Power Co., 591 N.W.2d 10 (Iowa 1999). In Schlader, the plaintiffs filed a petition raising counts of negligence, strict products liability, breach of implied warranties, breach of contract, and gross negligence. Id. at 11. Significantly, nuisance was not pled. We affirmed the district court’s summary judgment ruling against the plaintiffs on their strict liability claim that was premised on products liability under section 402A of the Restatement (Second) of Torts. Id. at 12-13. In doing so, we said: “It seems apparent that we would astonish the legislature if we were to adopt strict liability regarding stray voltage.” Id. at 12. We noted the repeal of Iowa Code section 478.16 (1985), which had imposed a rebuttable presumption of negligence against a utility in case of injury to any person or property by an electricity line. Id. at 13. We viewed the repeal as “weighting] strongly against strict liability.” Id. We therefore refused to impose it. Id.

It is true that one could read Schlader as Interstate does, and come away with the impression that some underlying prerequisite conduct like negligence is necessary to establish liability against electric utilities in stray voltage cases. This, of course, conflicts with the present state of nuisance law in Iowa, an issue that we did not consider and address in Schlader. We therefore reject any impression one might draw from Schlader that some underlying prerequisite conduct is necessary to establish a nuisance claim against electric utilities in stray voltage cases.

Unlike South Dakota, Iowa has no statute exempting electric utilities from nuisance claims. The argument here, of course, is that we as a court should not wait for legislative action and should on our own adopt a similar stance in the name of public policy. We decline to do so. Any exception to our nuisance law with respect to electric utilities should come from the legislature and not from this court.

We conclude the district court correctly submitted the nuisance claim without an accompanying negligence claim.

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

All justices concur except CADY, J., who dissents and TERNUS, J., who joins this dissent.

CADY, Justice

(dissenting).

I respectfully dissent.

A common law claim for nuisance does not exist as a separate tort theory of recovery from negligence in every case, but only in those circumstances where there is a “ ‘degree of danger (likely to result in damage) inherent in the thing [responsible for the harm], beyond that arising from mere failure to exercise ordinary care in its use.’ ” Guzman, 489 N.W.2d at 11 (quoting Hall v. Town of Keota, 248 Iowa 131, 142, 79 N.W.2d 784, 790 (Iowa 1956)). This means that the inherent degree of danger must be something more than negligence. Id. If the harm is nothing more than negligence, there is no claim for nuisance. Id.

The majority incorrectly concludes that excessive stray voltage responsible for damage to a dairy herd meets this test of a nuisance. It does not, because the case only satisfies part of the test. Although some stray voltage is inherent in the process of supplying electricity, the undesirable levels of stray voltage responsible for harm to cattle result because of “problems in the electrical systems.” Yelkovac, 28 Val. U.L.Rev. at 1112-13. Stray voltage can be minimized or controlled by proper methods of distribution. Id. at 1119-20. Thus, the failure of a utility to properly minimize and contain stray voltage to an acceptable inherent level would be no more than negligence. The majority has created a case for nuisance that is not supported by law, facts, or science.

The effect of the majority decision is to impose a form of strict liability on a utility in a stray voltage case. Nearly sixty years ago, we expressly said that a utility “can only be held hable for its own negligence.” Blackman, 234 Iowa at 862, 14 N.W.2d at 723. Moreover, this concept was recently reaffirmed in Schlader v. Interstate Power Co., where we refused to allow the concept of strict liability to creep into a stray voltage case brought against the utility. Schlader, 591 N.W.2d at 12. Furthermore, we indicated our legislature has expressed its intent not to impose strict liability regarding stray voltage. Id. at 13.

The majority side-steps Blackman by pointing out that it involved mixed claims of negligence and nuisance, unlike this case. Yet, this is a distinction without a difference. The plaintiff in Blackman asserted claims for nuisance and negligence, but the court made it clear that the utility could not be subject to liability for nuisance, only negligence. Blackman, 234 Iowa at 862, 14 N.W.2d at 723. The court specifically held that because “proof of negligence was essential in this case, it cannot be said to be a nuisance action.” Id. The court further concluded “a gas company is not liable as an insurer for injuries sustained as a result of the escape of gas.” Id. Proof of negligence was essential because the harm inherent in transporting gas by pipes into homes is not so great that reasonable care on the part of the utility could not make it safe. This law applies with equal force to this case.

The majority also limits the impact of Schlader by claiming that its application to this case conflicts with the existing law of nuisance. The conflict, however, is only on the surface, not in principle. Under our law of nuisance, there can be no claim for nuisance if the thing responsible for the harm involves only a breach of care. Guzman, 489 N.W.2d at 11. Under our long line of authority, supplying electricity is not so inherently harmful that reasonable care cannot make it safe. Consequently, the law of nuisance does not provide a remedy.

The decision of the majority is not only contrary to our prior cases and the intent of our legislature, it is against the great weight of authority from other jurisdictions. I would reverse the district court. Negligence was the only theory of recovery available to the plaintiffs in this case.

TERNUS, J., joins this dissent.


source: Caselaw Access Project

author: /s/ James H. Gilbert, Associate Justice

license: Public Domain

text:
    Kathy KLEIN, Respondent, v. WAL-MART STORES, INC., and Insurance Company of State of Pennsylvania/AIG; Administered by Claims Management, Inc., Relators.
    No. C8-02-1440.
    Supreme Court of Minnesota.
    Oct. 29, 2002.
    Christopher E. Sandquist, Gislason & Hunter, LLP, Mankato, for Relators.
    David C. Wulff, Roseville, for Respondent.
   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 July 31, 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

/s/ James H. Gilbert, Associate Justice


author: Helen M. Meyer Associate Justice

text:
    Patricia A. LAMB, Respondent, v. ALLINA HEALTH SYSTEM, d/b/a United Hospital, Self-Insured, administered by Gallagher Bassett Services, Inc., Relator, and Minnesota Department of Labor & Industry, VRU, Intervenor.
    No. C6-02-1324.
    Supreme Court of Minnesota.
    Nov. 1, 2002.
    Raymond R. Peterson, McCoy, Peterson, Jorstad & Brabbit, Ltd., Minneapolis, MN, for employee/respondent.
    Douglas J. Brown, Brown & Carlson, P.A., Minneapolis, MN, for employer/relator.
   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 July 5, 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

Helen M. Meyer Associate Justice

BLATZ, C.J., took no part in the consideration or decision of this case.


author: PAUL H. ANDERSON Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Cortlen G. CLOUTIER, an Attorney at Law of the State of Minnesota.
    No. C0-02-1092.
    Supreme Court of Minnesota.
    Nov. 1, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Cortlen G. Cloutier committed professional misconduct warranting public discipline, namely, respondent failed to timely file and pay state and federal personal and employer withholding taxes, failed to communicate with two clients and to diligently pursue their legal matters, failed to cooperate with the Director’s efforts to monitor respondent’s compliance with an earlier tax-related private probation, and failed to cooperate with the Director’s investigations into additional tax matters and three client complaints in violation of Minn. R. Prof. Cond. 1.3, 1.4, 8.1(a)(3), and 8.4(d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 60-day suspension from the practice of law with the reinstatement hearing provided for in Rule 18, RLPR, waived and with the requirements that prior to reinstatement respondent shall enter into agreements satisfactory to the Internal Revenue Service and the Minnesota Department of Revenue for the payment of all unpaid taxes, penalties and interest, and provide copies of the agreements and proof of currency on payments required by the agreements to the Director; that respondent shall pay $900 in costs pursuant to Rule 24(a), RLPR; that respondent shall comply with Rule 26, RLPR, and that respondent be reinstated upon the expiration of the suspension period provided that at least 15 days prior to such expiration, he files an affidavit with the Clerk of Appellate Courts and the Director establishing that he is current with Continuing Legal Education requirements and has satisfied the conditions of reinstatement, and that upon reinstatement, respondent be placed on supervised probation for two years subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor respondent’s compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date this stipulation is executed. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall, on the first day of each month, provide the Director with an inventory of active client files described in paragraph d. below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
f. Within 30 days from execution of [the] stipulation, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
g. Respondent shall remain in compliance with the agreements entered into with the IRS and the DOR [as required above as a condition of reinstatement] and shall provide the Director with proof of continued compliance upon request.
h. Respondent shall timely file all required state and federal tax returns, including individual and employer withholding returns, and timely pay the taxes due thereon. Respondent shall affirmatively report to the Director, on or before the due date of the required returns, his compliance with filing and payments requirements. Such reports shall include copies of the required returns. On or before the filing deadline, respondent shall provide the Director with copies of all applications for filing extension[s] and proof of approval of such applications. Respondent shall provide all of the documents and information required herein without specific reminder or request.
i. Respondent shall employ a qualified tax preparer to assist him in preparing and fifing required annual tax returns. Respondent shall make timely quarterly estimated payments to the state and federal tax authorities. On or before the fifing deadline, respondent shall provide proof of such fifing and payment to the Director without specific reminder or request.

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 Cortlen G. Cloutier is suspended for 60 days with reinstatement conditioned on the agreed-upon conditions set above. Upon reinstatement, respondent shall be on supervised probation for two years subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs under Rule 24(a), RLPR.

BY THE COURT:

PAUL H. ANDERSON Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael C. McCANN, an Attorney at Law of the State of Minnesota.
    No. C1-02-128.
    Supreme Court of Minnesota.
    Nov. 1, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Michael C. McCann committed professional misconduct warranting public discipline, namely, failing to cooperate with the Director in his efforts to monitor compliance with respondent’s probation and failing to promptly respond to the Director’s correspondence by the due date in violation of Minn. R. Prof. Conduct 8.1(a)(3) and 8.4(c).

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 a public reprimand and two years of supervised probation subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Within two weeks from the date of this order respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a replacement supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall, on the first day of each month, provide the Director with an inventory of active client files described in paragraph d. below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
f. Within 30 days from the date of this order, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
g. Respondent shall maintain total abstinence from alcohol and other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent’s chemical dependency before issuing the prescription.
h. Respondent shall attend weekly meetings of Alcoholics Anonymous or another outpatient alcohol treatment program acceptable to the Director. Respondent shall, by the tenth day of each month, without a specific reminder or request, submit to the Director an attendance verification on a form provided by the Director, which provides the name, address and telephone number of the person personally verifying the attendance. Such attendance verification shall also, upon request, be provided to the respondent’s supervisor, if any.
i. Respondent shall initiate or continue current treatment by a licensed consulting psychologist or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by the therapist.

Respondent has also agreed to pay $900 in costs and $39 in 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 Michael C. McCann is publicly reprimanded and placed on probation for a period of two years. Respondent shall pay $900 in costs and $39 in disbursements under Rule 24, RLPR.

BY THE COURT:

PAUL H. ANDERSON Associate Justice


author: Russell A. Anderson Associate Justice

text:
    Dean S. OTTERSON, Respondent, v. ST. CLOUD HOUSING & REDEVELOPMENT AUTHORITY, and Minn. Workers’ Compensation Assigned Risk Plan/Admin. by Berkley Administrators, Relators, and Special Compensation Fund, Respondent.
    No. C7-02-1350.
    Supreme Court of Minnesota.
    Nov. 4, 2002.
    Douglas J. Brown, Carrie I. Hanson, Brown & Carlson, P.A., Minneapolis, MN, for Appellants.
    Mike Hatch, Attorney General, Rory H. Foley, Assistant Attorney General, St. Paul, MN, for Respondents.
   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 July 10, 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

BY THE COURT:

Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Suzette E. JOHNSON, an Attorney at Law of the State of Minnesota.
    No. C1-02-1103.
    Supreme Court of Minnesota.
    Nov. 4, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Suzette E. Johnson committed professional misconduct warranting public discipline, namely, respondent failed to cooperate with the Director’s investigation of a complaint filed against her and in verifying her compliance with a stipulated probation, respondent failed to timely complete a client’s family law and bankruptcy matters, and misrepresented the status of the bankruptcy matter to the client in violation of Minn. R. Prof. Cond. 1.3, 1.4, 8.1(a)(3), and 8.4(c) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits her conduct violated the Rules of Professional Conduct, waives her rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand, two years of supervised probation and payment of $900 in costs under Rule 24(a), RLPR. The parties also recommend that respondent’s probation be subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorizations for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by Bailey W. Blethen, who will monitor respondent’s compliance with the terms of this probation. In the event that Mr. Blethen should become unable to serve as respondent’s supervisor, respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks of notice of Mr. Blethen’s inability to continue to supervise respondent. If, after diligent effort, respondent is unable to locate a replacement supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall, on the first day of each month, provide the Director with an inventory of active client files described in paragraph d. below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
f. Within thirty days from issuance of the court’s order in this matter, respondent shall provide to the Director and to the probation supervisor a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
g.Respondent shall initiate or continue current treatment by a licensed consulting psychologist or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by the therapist.

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 Suzette E. Johnson is publicly reprimanded and placed on supervised probation for two years subject to the agreed-upon conditions set out. Respondent shall pay $900 in costs under Rule 24(a), RLPR.

BY THE COURT:

PAUL H. ANDERSON Associate Justice


author: MEYER, Justice.

text:
    STATE of Minnesota, Respondent, v. Douglas Arthur CONGER, petitioner, Appellant.
    No. C3-01-699.
    Supreme Court of Minnesota.
    Nov. 7, 2002.

      John M. Stuart, State Public Defender, Susan J. Andrews, Theodora Gaitas, Asst. State Public Defenders, Minneapolis, MN, for Appellants.
    Mike Hatch, Attorney General, John B. Galus, Asst. Attorney General, St. Paul, MN, David Hauser, Otter Tail County Attorney, Fergus Falls, MN, for Respondents.
    HEARD, considered, and decided by the court en banc.
   OPINION

MEYER, Justice.

Douglas A. Conger was convicted of two counts of criminal sexual conduct in the second degree stemming from allegations that he inappropriately touched his daughter, A.C. At Conger’s trial, Detective Brian Fox testified that Conger answered Fox’s inquiry into the allegations by saying “[i]f my daughter said it happened, it must have happened.”

Conger appealed his conviction, claiming that his statement to Detective Fox should have been excluded because police failed to record it, and asking that we extend the exclusionary rule of State v. Scales to noncustodial interrogations occurring at police stations. Conger asserts that a record of the interview would have made clear to the jury that he was not admitting guilt but answering a series of speculative questions. The court of appeals affirmed his conviction, concluding that it could not extend Scales. State v. Conger, No. C3-01-699, 2002 WL 77046, at *1 (Minn.App. Jan.22, 2002). We granted review to consider whether Scales should be extended to noncustodial interrogations. We conclude it should not; Conger’s statement was properly admitted and his conviction must be affirmed.

A brief review of the facts will provide the context for our decision. Social workers in Otter Tail County presented a “Touch Program” at the elementary school of ten-year-old A.C. on January 20, 2000, introducing children to the idea of good and bad touches. At the close of the program, A.C. told a nearby social worker that her brother gave her “bad touches,” describing his kicking and pinching of her genitals. When social worker Sharon Bjork met with A.C. the next day to follow up, A.C. described her father rubbing her genitals and breasts once or twice when she climbed in bed with her parents. Bjork contacted the local police, who then questioned A.C.’s father, Douglas Conger.

Detective Fox interviewed Conger at the Perham police station and did not tape-record their conversation. Bjork interviewed Conger’s wife, Barbara Conger, at the same time and recorded that conversation. Fox intentionally did not record Conger’s interview, though equipment was available. He said he chose not to record the interview because Conger was not in custody, and because “[sjometimes people talk more freely when they don’t have a little red light on a tape recorder sitting on the table in front of them.” Fox testified at the omnibus hearing that he did not intend to place Conger under arrest, but viewed him as a “participant in a possible crime.”

During his interview, Conger denied any inappropriate touching of A.C. After about 20 minutes of questioning, Detective Fox told Conger that he was finished, but may have questions later. After finding discrepancies between what Barbara Conger told the social worker and what Douglas Conger had said, Fox asked Conger if he could pose some additional questions. Conger agreed. This second session of interviewing lasted 20 to 25 minutes and was not recorded. Fox testified at trial that during this second session Conger appeared nervous, flushed, and fidgety. Fox also testified that Conger stated toward the end of the second interview: “[i]f my daughter said it happened, it must have happened.”

At the omnibus hearing, Conger moved to suppress his statement to Detective Fox based on the Scales decision. In State v. Scales, 518 N.W.2d 587, 592 (Minn.1994), this court mandated that police record all custodial interrogations, including the Miranda warning, or risk suppression of the evidence obtained. Conger asks that we extend the holding of Scales to require that police record noncustodial interrogations of suspects in police stations.

Preliminarily, we note that Conger did not properly preserve for review the issue of expanding Scales. At trial, Conger asked the district court to rule that the second interview became custodial, bringing his statement within the ambit of Scales. Changing tactics, Conger appealed to the court of appeals and this court to use its supervisory power to broaden the Scales decision to encompass noncustodial statements. A reviewing court must only consider the issues presented and heard by the trial court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Although this issue was not preserved for appeal, we will exercise our discretion to consider it because of its import for criminal procedure. See State v. Basting, 572 N.W.2d 281, 286 (Minn.1997) (finding this court can hear issues raised for the first time before it on a discretionary basis). We exercise de novo review on issues of law. State v. Costello, 646 N.W.2d 204, 207 (Minn.2002).

In two cases prior to Scales this court expressed increasing support of recording. State v. Pilcher, 472 N.W.2d 327, 332-33 (Minn.1991); State v. Robinson, 427 N.W.2d 217, 224 n. 5 (Minn.1988). In Robinson we observed that disputes about whether or not the Miranda warning was given could be avoided if police record those warnings. And in Pilcher we urged the police to record all Miranda warnings and waivers. In Scales we concluded that the interests of justice required that police record all custodial interrogations. We held that “all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.” Scales, 518 N.W.2d at 592.

Although no empirical studies have been published assessing the impact of the Scales decision, from our vantage point the recording requirement has had positive effects. We take judicial notice of the fact that fewer cases come before us in which a key issue is whether a suspect waived his or her constitutional rights during interrogation. The apparent reduction in appellate cases challenging Miranda warnings and waivers suggests that Scales has succeeded in providing an objective record to answer the contentious disputes around those issues. A national study of police departments that videotape custodial interrogations offers evidence of other benefits we predicted in Scales. In those jurisdictions, videos help police accurately assess a suspect’s guilt or innocence, foster humane treatment of suspects and respect for civil rights, and serve to persuade the public that police interrogations are professional and trustworthy. William A. Geller, U.S. Dep’t of Justice, Videotaping Interrogations and Confessions 10 (1993). Ninety-seven percent of those police departments found videotaping “on balance, to be useful:” Id.'

Despite evidence of the benefits of recording, many state courts faced with the question have declined to require that police record custodial interrogations. Minnesota, Alaska, and Texas are the only states that exclude statements based on a failure to record. A number of courts have recognized the merits of recording, but have refused to require the practice. No state has yet done what Conger requests: require that police record noncustodial interrogations.

Conger argues that there is a serious loophole in Scales because police control the decision when to place a person in custody, and they can delay that decision to avoid the recording requirement. We recognize this potential for abuse of Scales. We also recognize that recording noncustodial interrogations when feasible would be beneficial. It would protect the due process rights of suspects by providing a record that establishes precisely what was said, and provides a basis to determine if and when their interrogation became eus-todial, and whether any statements were the result of coercion. As this court observed in Scales, an objective record of the encounter would prevent factual disputes about the denial of a defendant’s constitutional rights, make it possible for defendants to challenge misleading or false testimony, reduce baseless claims against the state, and discourage unduly coercive police tactics. Scales, 518 N.W.2d at 591.

But many of the authorities relied on in Scales do not support its extension to the noncustodial context. The Uniform Rules of Criminal Procedure only require recording in custodial interrogations, as does the Model Code of Pre-Arraignment Procedure. Similarly, the majority of the academic articles advocating a recording requirement limit their endorsement to custodial interrogations. And while Alaska and Texas similarly require recording of custodial interrogations, no state has extended such a mandate to noncustodial situations.

In Pilcher and Robinson this "court expressed concern about its ability to determine whether a suspect in custody had in fact waived his or her constitutional right to counsel, and in Scales we established a practice that would ensure that police create an objective record of custodial conversations. But Miranda rights do not attach until a suspect is in custody. Thus, extending the recording requirement to noncustodial interrogations would be a significant departure from the Rdbinson-Pil-cher-Scales line of reasoning.

In Scales we exercised our supervisory power to insure the fair administration of justice after law enforcement had ignored our warnings to record when feasible. We remind law enforcement that the fair administration of justice is not served if police manipulate the custody status of suspects to avoid the Scales recording requirement. And we observe that in Conger’s case a recording would have resolved the disputes about his custodial status and the context of his statement to Detective Fox. However, while many of the benefits of recording custodial interrogations would accrue to noncustodial interrogations, the interests of justice do not require that police record all noncustodial interrogations at this time.

We affirm the court of appeals and uphold Conger’s conviction.

      . In 1995, before the impact of Scales could be felt, this court heard at least six cases concerning the validity of waivers. See, e.g., State v. Hince, 540 N.W.2d 820 (Minn.1995); State v. Williams, 535 N.W.2d 277 (Minn.1995); State v. Wilson, 535 N.W.2d 597 (Minn.1995); State v. Champion, 533 N.W.2d 40 (Minn.1995); State v. Roan, 532 N.W.2d 563 (Minn.1995); State v. Thaggard, 527 N.W.2d 804 (Minn.1995). In 2001, only one case addressed the validity of a Miranda warning and waiver. State v. Hannon, 636 N.W.2d 796 (Minn.2001).

      . Eleven statés had already found recording was not required under their state due process clause prior to Scales: Colorado, Georgia, Idaho, Illinois, Maine, Mississippi, Nevada, Utah, Vermont, Washington, and West Virginia. People v. Raibon, 843 P.2d 46, 49 (Colo.Ct.App.1992); Coleman v. State, 189 Ga.App. 366, 375 S.E.2d 663, 664 (1988); State v. Rhoades, 120 Idaho 795, 820 P.2d 665, 674-75 (1991); People v. Everette, 187 Ill.App.3d 1063, 135 Ill.Dec. 472, 543 N.E.2d 1040, 1047 (1989), rev'd on other grounds, 141 Ill.2d 147, 152 Ill.Dec. 377, 565 N.E.2d 1295 (1990); State v. Buzzell, 617 A.2d 1016, 1018 (Me.1992); Williams v. State, 522 So.2d 201, 208 (Miss.1988); Jimenez v. State, 105 Nev. 337, 775 P.2d 694, 696-97 (1989); State v. James, 858 P.2d 1012, 1018 (Utah Ct.App.1993); State v. Gorton, 149 Vt. 602, 548 A.2d 419, 422 (1988); State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960, 963 (1991); State v. Kilmer, 190 W.Va. 617, 439 S.E.2d 881, 893 (1993).
      At least nine states since Scales have considered the question and opted against requiring recording: California, Connecticut, Hawaii, Indiana, Massachusetts, Michigan, New Hampshire, Pennsylvania, and Tennessee. People v. Holt, 15 Cal.4th 619, 63 Cal.Rptr.2d 782, 937 P.2d 213, 242-43 (1997); State v. James, 237 Conn. 390, 678 A.2d 1338, 1360 (1996); State v. Kekona, 77 Hawai'i 403, 886 P.2d 740, 745-46 (1994); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind.Ct.App.1998); Commonwealth v. Diaz, 422 Mass. 269, 661 N.E.2d 1326, 1328-29 (1996); People v. Fike, 228 Mich.App. 178, 577 N.W.2d 903, 906-07 (1998); State v. Barnett, 147 N.H. 334, 789 A.2d 629, 632 (2001); Commonwealth v. Craft, 447 Pa.Super. 371, 669 A.2d 394, 394-98 (Pa.Super.Ct.1995); State v. Godsey, 60 S.W.3d 759, 771-72 (Tenn.2001).

      . State v. Scales, 518 N.W.2d 587, 592 (Minn.1994); Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985); Tex.Code Crim. Proc. art. 38.22 § 3(a)(1) (2002). New Hampshire opted for a middle ground, holding that "immediately following the valid waiver of a defendant's Miranda rights, a tape recorded interrogation will not be admitted into evidence unless the statement is recorded in its entirety.” Barnett, 789 A.2d at 632.

      . See, e.g., Holt, 937 P.2d at 242; James, 678 A.2d at 1360; Stoker, 692 N.E.2d at 1390; Diaz, 661 N.E.2d at 1329; Godsey, 60 S.W.3d at 772.

      . Rule 243 begins: “A person who is in custody or otherwise deprived of his freedom of action in any significant way may not be questioned regarding any offense unless” he/ she is warned, and waives his/her rights. Uniform Rules of Criminal Procedure R. 243 (Proposed Final Draft 1974). It then goes on to say that ”[t]he information of rights, any waiver thereof, and any questioning shall be recorded upon a sound recording device whenever feasible and in any case where questioning occurs at a place of detention.” Id. The language "deprived of his freedom of action in any significant way” comes directly from the Miranda decision, Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . "This Section requires that law enforcement agencies make full written records and sound recordings to aid the resolution of factual disputes which may subsequently arise concerning what happened to an arrested person in custody.” Model Code of Pre-Arraignment Procedure § 130.4 note at 39 (Proposed Official Draft Complete Text and Commentary 1975).

      . The two academics cited in Scales differ in their recommendation. Yale Kamisar, Forward: Brewer v. Williams — A Hard Look at a Discomfiting Record, 66 Geo. L.J. 209, 237-41 (1977) appears to advocate recording custodial interrogations, while Glanville Williams, The Authentication of Statements to the Police, [1979] Crim. L.Rev. 6, 15, makes a case for recording everything in an interview room. Other academics limit their advocacy to custodial settings. See, e.g., Gail Johnson, False Confessions and Fundamental Fairness: The Heed for Electronic Recording of Custodial Interrogations, 6 B.U. Pub. Int. L.J. 719 (1997); Daniel Donovan & John Rhodes, Comes a Time: the Case for Recording Interrogations, 61 Mont. L.Rev. 223, 224 (2000). Cf. Richard A. Leo, Questioning the Relevance of Miranda

        in the Twenty First Century, 99 Mich. L.Rev. 1000, 1028 (2001) (extolling electronic recording of interrogations as “the most promising interrogation reform of our era,” without qualifying the type of interrogation).


author: KLAPHAKE, Judge. MINGE, Judge

text:
    In re ESTATE OF Jean GULLBERG, a/k/a Jean Weiland Gullberg, Deceased.
    No. C0-02-668.
    Court of Appeals of Minnesota.
    Oct. 29, 2002.

      James C. Backstrom, Dakota County Attorney, Margaret M. Horsch, Assistant County Attorney, Dakota County Judicial Center, Hastings, MN, for appellant Dakota County.
    Mike Hatch, Attorney General, Suzette C. Schommer, Assistant Attorney General, St. Paul, MN, for intervenor Department of Human Services.
    Randy F. Boggio, Bloomington, MN, for respondent.
   OPINION

KLAPHAKE, Judge.

Intervenor appellant Minnesota Department of Human Services (the state) and appellant Dakota County (the county) challenge a district court decision denying the county’s claim against respondent, the Estate of Jean Gullberg, for reimbursement of medical assistance benefits paid on behalf of Jean Gullberg’s husband, Walter Gullberg, who predeceased her. The district court denied the county’s petition for allowance of the claim, holding that Minnesota’s estate recovery statute, Minn.Stat. § 256B.15, subd. 2 (2000), is preempted by 42 U.S.C. § 1396p(b)(4)(B) (2000).

On appeal, this court has granted the state’s motion to intervene and the county’s subsequent motion to join in the state’s brief. Because Minnesota’s estate recovery statute is preempted only to the extent that it conflicts with federal law, we reverse and remand to determine the nature and extent of Walter Gullberg’s interest in the homestead at the time of his death.

FACTS

Walter and Jean Gullberg were married when they purchased their homestead property in 1983. The warranty deed listed them as joint tenants. On October 30, 1992, Walter Gullberg conveyed his interest in the homestead by quit claim deed to Jean Gullberg, who was still his wife. Less than one month later, Walter Gull-berg applied for medical assistance. On the application for medical assistance, the homestead was valued at between $57,300 and $59,000. Between December 1, 1992 and his death on February 13, 1994, at the age of 70, Walter Gullberg received $40,081.31 in medical assistance benefits.

Jean Gullberg died more than six years later, on September 11, 2000, having never received medical assistance benefits. The only asset listed in her estate inventory was the homestead, which was valued at $119,900.

On March 15, 2001, the county filed a claim in the amount of $40,081.31 against the estate under Minnesota’s estate recovery statute, Minn.Stat. § 256B.15, subd. 2 (2000). The Gullbergs’ daughter, who had been appointed personal representative of the estate, disallowed the claim. The county thereafter filed a petition with the district court seeking allowance of the claim. On May 31, 2001, while the county’s petition was pending, the personal representative sold the homestead and placed the proceeds in the estate account.

In denying the county’s claim against the estate, the district court concluded:

The State may not seek reimbursement of Medical Assistance benefits from the assets of the estate of the surviving spouse of a Medical Assistance recipient where those assets were conveyed to the recipient’s surviving spouse prior to the recipient’s death.

The court reasoned that because federal law limits the definition of “estate” to property and assets in which the recipient had legal title at the time of death, federal law preempts Minnesota’s estate recovery statute, which defines “estate” to include any property that was jointly owned at any time during the marriage.

ISSUE

Did the district court err in concluding that Minnesota’s estate recovery statute is preempted by federal law, thus disallowing the county’s claim in its entirety?

ANALYSIS

The issue of “[w]hether federal law preempts state law is generally an issue of statutory construction,” which is reviewed de novo. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 9 (Minn.2002) (citing Pikop v. Burlington N.R.R. Co., 390 N.W.2d 743, 748 (Minn.1986)). To the extent that the preemption doctrine finds its roots in the supremacy clause, it implicates constitutional concerns, burdens, and standards. See U.S. Const, art. VI; Martin, 642 N.W.2d at 17 (finding of preemption implicates obligation to interpret statute to avoid constitutional defects).

Federal law will preempt state law in three distinct situations: explicit preemption, implicit preemption, or conflict preemption. Martin, 642 N.W.2d at 10-11. Because Congress “specifically permits state action regarding Medicaid” and “requires that a participating state’s Medicaid plan conform to federal requirements,” this case does not involve explicit or implicit preemption. See id. at 11 (“there is no explicit or implicit federal preemption of the [Medicaid] field”). Rather, this case presents a “conflict preemption” situation, in which preemption will arise only “when state law conflicts with federal law, either because compliance with both federal and state law is impossible or because the state law is an obstacle to the accomplishment of the purposes of the federal scheme.” Id. (citations omitted).

Since 1993, federal law has required states to recover the costs of certain medical assistance provided to individuals over the age of 55 from the “individual’s estate,” but only after the “death of the individual’s surviving spouse.” 42 U.S.C. § 1396p(b) (2000). Federal law defines the term “estate” to include all assets within the individual’s estate under state probate law. 42 U.S.C. § 1396p(b)(4)(A) (2000). At the “option” of a state, an individual’s “estate” may also include

any other real and personal property and any other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.

42 U.S.C. § 1396p(b)(4)(B) (2000). Thus, under federal law, a state may choose to enact legislation that allows recovery of claims against a surviving spouse’s estate if the estate contains property or assets in which the Medicaid recipient had some legal title or interest at the time of his or her death. See, e.g., In re Estate of Jobe, 590 N.W.2d 162, 165-66 (Minn.App.1999), review denied (Minn. May 26, 1999); In re Estate of Wirtz, 607 N.W.2d 882, 886 (N.D.2000).

In Minnesota, the estate recovery statute allows claims against the estate of a surviving spouse but limits those claims “to the value of the assets of the estate that were marital property or jointly owned property at any time during the marriage.” Minn.Stat. § 256B.15, subd. 2 (2000). In Jobe, 590 N.W.2d at 165-66, this court allowed a claim against a surviving spouse’s estate where the only asset in that estate consisted of the homestead, which was held by the couple in joint tenancy and became the property of the surviving spouse on the death of the recipient. In so doing, we concluded that there was no preemption because compliance with federal and state law was possible. Id. at 166.

This case presents a slightly different situation. Here, the recipient spouse conveyed the homestead, which was marital property and held in joint tenancy, to the surviving spouse shortly before he applied for and began to receive medical assistance benefits. While the county’s claim against the estate is clearly allowed by Minnesota’s estate recovery statute, the issue is whether allowance of the claim in its entirety complies with federal law.

Again, federal law permits a state to define a Medicaid recipient’s estate to include

other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor * * * of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.

42 U.S.C. § ^pCblM)®.

At the time of his death in early 1994, Walter Gullberg did not hold legal title to the homestead, having conveyed it in late 1992 to his wife, Jean Gullberg. Nevertheless, he continued to have some legal “interest” in the homestead because he and Jean Gullberg were still married at the time of his death. See Searles v. Searles, 420 N.W.2d 581, 583 (Minn.1988) (“the law recognizes that spouses have a common ownership interest in property acquired during coverture, regardless of who holds title”); Minn.Stat. § 524.2-402(a), (c) (2000) (homestead descends to surviving spouse free from any testamentary disposition to which surviving spouse has not consented, but subject to claim filed under 256B.15 for medical assistance benefits). Moreover, the homestead was conveyed to Jean Gullberg through some “other arrangement.” See Bonta v. Burke, 98 Cal.App.4th 788, 120 Cal.Rptr.2d 72, 76 (2002) (recipient, who conveyed homestead to her daughters but retained life estate and right to revoke the remainder, held significant interest in property until her death); Wirtz, 607 N.W.2d at 885 (North Dakota Supreme Court recognizes that “other arrangement” language has been interpreted by courts to include community property and homestead interests). We therefore conclude that at the time of his death, Walter Gullberg continued to have some legal interest in the homestead, albeit contingent on any number of factors.

Nonetheless, to the extent that Minnesota’s estate recovery statute allows recovery “to the value of the assets of the estate that were marital property or jointly owned property at any time during the marriage,” we conclude that it goes beyond what is allowed by federal law, which allows recovery only “to the extent of’ the individual’s legal interest at the time of death. This apparent conflict, however, does not render the state law preempted in its entirety. See Martin, 642 N.W.2d at 16. “Preemption of state laws is generally disfavored,” and courts will find state laws “preempted only to the extent that they are in conflict with federal law.” Id at 11 (citations omitted). Such a “partial” preemption fulfills our obligation to construe statutes to avoid constitutional defects. Id at 18. Thus, we must construe Minn. Stat. § 256B.15, subd. 2 so as to allow it to operate in harmony with the federal law. See id

We therefore conclude that Minn.Stat. § 256B.15, subd. 2 allows claims against a surviving spouse’s estate only to the extent of the value of the recipient’s interest in marital or jointly owned property at the time of the recipient’s death. This construction allows some tracing of assets back through the marriage, but restricts recovery to the value of the recipient’s interest in those assets at the time of the recipient’s death. Cf. Wirtz, 607 N.W.2d at 886 (holding that 42 U.S.C. § 1396p(b) “contemplates only that assets in which the deceased recipient once held an interest will be traced” and that “recovery from a surviving spouse’s separately-owned assets * ⅜ * or recovery from the surviving spouse’s entire estate, including assets not traceable from the recipient, is not allowed”).

Typically, the homestead is the only significant asset subject to estate recovery provisions. West Virginia v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 284-85 (4th Cir.2002) (because potential Medicaid beneficiaries are required to “spend down” their income and assets before they become eligible for benefits and because the homestead is one of the few assets which is exempt from these spend down provisions, the homestead is typically the only significant asset subject to estate recovery provisions). Thus, allowing a claim like this serves to fulfill the purposes of the Medicaid Act by protecting the surviving spouse’s right to enjoy and use assets during his or her lifetime, while enabling the county to recoup a portion of its expenditures and to prevent “capable individuals from using Medicaid as artificially inexpensive long-term care insurance.” Jon M. Zieger, The State Giveth and the State Taketh Away: In Pursuit of a Practical Approach to Medicaid Estate Recovery, 5 Elder L.J. 359, 374-76 (Fall 1997) (noting that 1993 changes in federal law were aimed “both at reducing manipulation [of eligibility provisions] and at giving the state a second chance at the sheltered wealth after the recipient’s death” and predicting that because estate recovery “may prove unsettling to members of the middle class,” many will “seek out long-term care insurance * * * before the need for it arises and when the product is still financially within reach”).

DECISION

The district court’s disallowance of the county’s claim is reversed and the matter is remanded to determine and reevaluate Walter Gullberg’s interest in the homestead at the time of his death. The county’s claim is limited to recovering only to the extent of that interest.

Reversed and remanded.

MINGE, Judge

(concurring specially).

This decision results in partial preemption of the Minnesota law. In addition, the decision limits the long-term ability and flexibility of the state of Minnesota to collect reimbursement for Medical Assistance from those able to pay. Finally, it creates opportunity for estate planning creativity and abuse that would frustrate such collections of Medical Assistance reimbursement in the future.

As the majority opinion in this case recognizes, we should avoid finding federal preemption unless it is clearly required. Section 1396p(b)(4) of title 42 of the federal code was amended in 1993 to both set a higher minimum standard for state efforts to collect reimbursement for Medicaid (in Minnesota the Medicaid program is known as Medical Assistance) and to give the states flexibility to accomplish this. Pub.L. No. 103-66, § 13612(c) (1993). The language in the federal law is admittedly not a model of clarity. To the extent this decision limits the efforts of the state of Minnesota to deal with the unfortunate, but persistent, efforts of some to enhance their final estate by sheltering and divesting assets in order to qualify for Medical Assistance, this decision takes us down the wrong road. That road and federal preemption can be avoided by construing words “estate,” “interest,” and “other arrangement” in 42 U.S.C. § 1396p(b)(4) (2000) to include any estate, interest, or arrangement that the state by law establishes for purposes of recovery of Medical Assistance (Medicaid) benefits. By this approach, we minimize the endless scheming. The all-together human temptation to take advantage of a generous government program is controversial, brings discredit to estate planning, and breeds cynicism in the larger community. Since I do not agree that the federal law should be read to preempt Minnesota law and preclude an expansive state interpretation of “estate,” “interest,” or “arrangement,” I do not join in the opinion of the court. However, at oral argument the respondent stated that if the state of Minnesota could reach the limited interest attributed to Walter Gull-berg as allowed by the majority, the state would be fully reimbursed for its claim. Therefore, I concur in the result.

      . "[A]t the time of death” must be construed to mean a point in time immediately before death. Any other reading of this phrase would render the estate recovery statute meaningless because upon death, property immediately passes to beneficiaries. Cf. Minn.Stat. § 645.16 (2000) ("Every law shall be construed, if possible, to give effect to all its provisions.”).

      . The special concurrence notes that at oral arguments, the estate suggested that if recovery is allowed in this case, then the county would be “fully reimbursed for its claim." This statement was not made in the context of our decision here. The value of Walter Gull-berg's interest in the homestead at the time of his death is a matter for the district court to determine on remand.