author: CADY, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Michael D. MAXWELL, Respondent.
    No. 05-0576.
    Supreme Court of Iowa.
    Oct. 21, 2005.

      Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.
    Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for respondent.
   CADY, Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged Michael D. Maxwell with numerous violations of the Iowa Code of Professional Responsibility for Lawyers stemming from his neglect and inattention in the representation of three clients. The Grievance Commission of the Supreme Court of Iowa found Maxwell violated the Code of Professional Responsibility. It recommended Maxwell be suspended from the practice of law for an indefinite period of time, subject to reinstatement under the provisions governing the suspension of a lawyer for a disability. On our review, we find Maxwell violated the Code of Professional Responsibility and impose an indefinite suspension of not less than one year.

I. Background Facts and Proceedings

Michael D. Maxwell was admitted to practice law in Iowa in 1988. He practiced law for a brief period of time in Texas prior to that time, and worked in private business for several years before attending law school. Maxwell is fifty-five years old. He is married and has two children. His wife is also an Iowa lawyer. Maxwell has been a sole practitioner in Des Moines since 1991, and has developed a general practice. He is licensed to practice before the United States Patent and Trademark Office.

Maxwell has suffered from depression for much of his adult life. He has also had a long struggle with anxiety. Maxwell began medical treatment for his depression while in college. It has continued, off and on, since that time. For the most part, he is treated with medication and psychotherapy. Recent medical treatment has revealed an additional diagnosis of attention deficit disorder. His chronic depression is affected by a number of ongoing stress factors, and the treatment he has received has only been met with limited overall success. Periods of success have never been sustained. Some of the stress in his life emanates from the practice of law, producing a tendency for him to procrastinate, lose concentration, and become generally disorganized.

The symptoms of depression suffered by Maxwell have generated a multitude of problems for him in his personal and business life. Three problems are at the center of this disciplinary action. In May 1999, he began representing a woman named Theresa Daniels in a personal injury claim. He failed to file a lawsuit on behalf of Daniels prior to the time the statute of limitations ran in 2001. In June 1999, he began representing a woman named Kendra Wiess in a personal injury claim. Again he failed to file a lawsuit on behalf of Wiess prior to the time the statute of limitations ran in 2001. In 2002, he began representing a woman named Ar-minda Monaghan in an action to modify the child custody, visitation, and support terms of a decree for dissolution of marriage. During the pendency of this action, Maxwell failed to notify Monaghan of a court hearing, and she was denied an opportunity to present testimony prior to a court ruling in the case.

Maxwell has a history of prior disciplinary actions. He was reprimanded in 1993 for placing his personal interests before the interests of a client. He was reprimanded in 1999 for neglect of a client’s legal matter. He was admonished in 2000 for failing to communicate with a client. He was reprimanded in 2004 for neglect and misconduct.

Maxwell acknowledged the facts of the complaints against him. His testimony at the disciplinary hearing centered on his chronic depression as an underlying cause of his conduct, and his lifelong efforts in dealing with the affliction. His testimony was supported by the testimony of his treating physician. Maxwell has gained considerable insight and understanding into his depression, its causes and problems, and the methods of controlling it. He is committed to leading as normal a life as possible. He plans to seek inpatient treatment and has been winding down his law practice. He currently has only ten active cases in his office. He hopes to limit his future practice to assisting other lawyers. He has expressed an understanding of the limits his depression places on his ability to practice law, especially as a sole practitioner, as well as other activities in his life.

II.Board Complaint

The Board charged Maxwell with numerous violations of the Iowa Code of Professional Responsibility for Lawyers, including DR 1-102(A)(1) (violation of a disciplinary rule), DR 1 — 102(A)(5) (conduct prejudicial to the administration of justice), DR 1-102(A)(6) (conduct that adversely reflects on the fitness to practice law), DR 6-101(A)(3) (neglect of a client matter), DR 7-101(A)(l) (failure to seek objectives of a client), DR 7-101(A)(2) (failure to carry out employment contract with a client), and DR 7-101(A)(3) (prejudice or damage to a client).

The Commission found the Board established the violations as set forth in the complaint,' with one exception. It found insufficient evidence of intent to support a violation under DR 7-101 on each count. See Iowa Code Prof 1 Responsibility DR 7-101 (beginning “[a] lawyer shall not intentionally” (emphasis added)). The Commission recommended that Maxwell be suspended from the practice of law for an indefinite period of time, and further recommended that reinstatement be governed by the suspension provisions of rule 35.16. See Iowa.Ct. R. 35.16 (disability suspension).

III. Scope of Review

Our review of attorney disciplinary proceedings is de novo. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa 2002) (citing Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 679 (Iowa 2001)). We are not bound by the findings made by the Commission, but give them weight. Id. (citing Mulford, 625 N.W.2d at 679).

IV. Violations

We have previously discussed professional neglect as a violation of our rules of ethics. See Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551-52 (Iowa 2004). Under these standards, the conduct by Maxwell on all three counts constituted neglect, in violation of DR 6 — 101(A)(3). See id. at 551 (stating neglect “is a form of professional incompetence that often involves procrastination, such as the lawyer doing little or nothing to advance the interests of a client after agreeing to represent the client”; failure to file action within statute-of-limitations period,is neglect unless inadvertent or an error in judgment (citations omitted)). At the same time, the conduct violated DR 1-102(A). See Iowa Sup.Ct Bd. of Prof'l Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa 2002) (neglect also violates DR 1-102(A) (citations omitted)). We also conclude from the evidence that the conduct violated DR 7-101(A). Intent required to support a violation of the professional obligation to zealously represent a client under DR 7-101(A) means “ ‘a conscious disregard’ of the responsibilities assumed.” Comm, on Prof'l Ethics & Conduct v. Gill, 479 N.W.2d 303, 305 (Iowa 1991) (quoting Comm. on Prof'l Ethics & Conduct v. Gardalen, 414 N.W.2d 124, 128 (Iowa 1987)). Although Maxwell may have failed to act on behalf of his clients due to his ongoing depression, he was aware of his responsibilities and was aware he was not performing those responsibilities. Additionally, we have repeatedly said that depression does not minimize the seriousness of unethical conduct. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 295 (Iowa 2002) (collecting cases). Instead, it is considered in the imposition of discipline. Id. Accordingly, we turn to the issue of discipline, which is the heart of this case.

V. Discipline

Generally, the discipline imposed for neglect of client matters “ranges from a public reprimand to a six-month suspension.” Moorman, 683 N.W.2d at 553 (citation and quotation marks omitted). Yet, precedents are of little value in such cases, and each case must be individually considered. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Eich, 652 N.W.2d 216, 219 (Iowa 2002). “Additionally, multiple incidents of neglect become aggravating circumstances in determining discipline.” Moorman, 683 N.W.2d at 553 (citation omitted). In Iowa Supreme Court Board of Professional Ethics & Conduct v. Sullins, 613 N.W.2d 656, 656-57 (Iowa 2000) (per curiam), we imposed a one-year suspension for numerous incidents of profuse and pervasive neglect. More recently, in Iowa Supreme Court Board of Professional Ethics & Conduct v. Moorman, we imposed a two-year suspension for repeated neglect and other conduct that adversely reflected on the fitness to practice law. Moorman, 683 N.W.2d at 553. Ultimately, we consider discipline in light of “the nature of the alleged allegations, the need for deterrence, protection of the public, maintenance of the reputation of the bar as a whole, and the respondent’s fitness to continue to engage in the practice of law.” Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001) (citation, quotation marks, and brackets omitted).

The number of incidents of neglect, the resulting harm, and Maxwell’s present unfitness to engage in the practice of law support a suspension. However, we reject the recommendation of the committee to treat the discipline as a disability suspension under rule 35.16. Although a disability suspension shares some of the same objectives and purposes of attorney discipline, a disability suspension is not a sanction and does not specifically address unethical conduct and the need to deter future conduct. See Iowa Ct. R. 35.9 (the grievance commission can recommend as part of the report any sanction consistent with the purposes of attorney discipline). Additionally, the standard for reinstatement in a disciplinary suspension is different than the standard for reinstatement in a disability suspension. Compare Iowa Ct. R. 35.13, with id. R. 35.16. Reinstatement in a disciplinary suspension not only requires a showing of fitness to practice law, as in a disability suspension, but also requires a showing of good moral character and compliance with other rules and terms of the suspension. Id. R. 35.13(l)(d). Although the disability suspension process may be available to an attorney gripped by depression and unable to function in a professional capacity, it was not the path taken by Maxwell.

We conclude Maxwell should be indefinitely suspended from the practice of law with no possibility of reinstatement for one year. This sanction strikes a fair balance between the seriousness of the unethical conduct and the serious debilitating medical condition at the heart of this case, together with the commendable efforts Maxwell has taken to overcome his condition.

VI. Conclusion

We suspend Maxwell’s license to practice law with no possibility of reinstatement for a period of not less than one year from the date of the filing of this opinion. This suspension applies to all facets of the practice of law. Iowa Ct. R. 35.12(3). Upon application for reinstatement, Maxwell shall prove that he meets all of the requirements of Iowa Court Rule 35.13, including that he is fit to practice law. Costs of the action shall be taxed to Maxwell pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    STATE of Iowa, Appellant, v. Lester Tobias LASLEY, Appellee.
    No. 03-1938.
    Supreme Court of Iowa.
    Oct. 28, 2005.

      Thomas J. Miller, Attorney General, Donald D. Stanley, Jr., and Brian Meyer, Assistant Attorneys General, Brent D. Heeren, County Attorney, and Richard Vander Mey, Assistant County Attorney, for appellant.
    Steven F. Olson and Jeffrey S. Rasmussen of BlueDog, Olson & Small, P.L.L.P., Minneapolis, Minnesota, for appellee.
   LAVORATO, Chief Justice.

This proceeding stems from a charge of an alleged sale of cigarettes to an under-aged person by an individual on an Indian reservation in violation of Iowa Code section 453A.2(1) (Supp.2001). A magistrate dismissed the charge, concluding that the court lacked subject matter jurisdiction because of Indian sovereign immunity. The State sought discretionary review, which we granted. The Sac and Fox Tribe of the Mississippi in Iowa (Tribe), owner of the establishment where the offense allegedly took place, sought the dismissal. The State contends the magistrate had subject matter jurisdiction and the Tribe has no standing.

The Tribe contends the magistrate correctly determined the court did not have subject matter jurisdiction. In addition, the Tribe contends discretionary review was inappropriate and for that reason we have no jurisdiction to hear the appeal. In the event we conclude there was subject matter jurisdiction for the magistrate to hear the case, the Tribe contends reinstatement and prosecution of the charge is barred.

We conclude we have jurisdiction to hear the appeal, there was subject matter jurisdiction for the magistrate to hear the case, and reinstatement and prosecution of the charge is not barred. Accordingly, we reverse the magistrate’s dismissal order and remand for an order reinstating the charge and for further proceedings consistent with this opinion.

I. Background Facts.

On March 13, 2003, an officer with the Tama County Sheriffs department issued an Iowa Uniform Citation and Complaint against Lester Tobias Lasley, charging him with providing tobacco to an under-aged person in violation of Iowa Code section 453A.2(1). The Tribe owned the Meskwaki Trading Post, in Tama County, where Lasley was employed and where he allegedly provided the tobacco to the un-deraged person. The Tribe is a federally recognized tribal entity. See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 67 Fed.Reg. 46,328, 46,330 (July 12, 2002); see also Sac & Fox Tribe of the Miss. in Iowa v. Licklider, 576 F.2d 145, 147-50 (8th Cir.1978) (describing history of the Tribe dating back to the 1700s and concluding the land located in Tama County and occupied by the Tribe constitutes an Indian reservation).

Later, Brad S. Jolly, an attorney with a Minnesota law firm, applied for admission pro hac vice. In the application, Jolly represented that he was appearing as counsel for Lasley, “in his status as an employee” of the Tribe, and as counsel for the Tribe. The application further stated that Jolly’s law firm had been retained to act as counsel for Lasley “in his status as an employee” of the Tribe and as counsel for the Tribe, including the Tribe’s trading post.

Jolly also filed a motion to dismiss for lack of subject matter jurisdiction, alleging that the State of Iowa “lacks civil regulatory jurisdiction” over the Tribe and its reservation.

Following a hearing, Magistrate John J. Willett filed a decision in which the magistrate granted Jolly’s application for admission pro hac vice and noted that Jolly was appearing on behalf of the Tribe. The court also noted in its ruling that Jolly argued that this was a civil/regulatory matter and for that reason the State lacked civil/regulatory jurisdiction within the boundaries of the tribal lands. The court further noted that the State argued that because the defendant was an individual in a criminal case, the State had authority to enforce its criminal statutes against him even though the criminal act allegedly took place on land owned by the Tribe. Framing the issue as “whether the lack of subject matter jurisdiction extends to an individual employee of the Tribe,” the court dismissed the case for lack of such jurisdiction. The court reasoned that the statutes of Iowa regulating tobacco were in fact regulatory and therefore could not be enforced either against the Tribe or its employees.

The State filed a motion to reconsider and enlarge, asking the court to reconsider its decision that the criminal complaint was regulatory rather than criminal. The State also challenged the Tribe’s standing to appear in a criminal case when the defendant in open court acknowledged that he did not ask Jolly to represent him. As to the standing issue, the State asked the court to add the following facts to its decision:

The Court’s recitation of facts regarding the July 30, 2003, hearing fails to make any reference to statements made by the defendant, Lester Lasley, in open court, in the presence of the presiding magistrate and Brad Jolly, counsel for the Tribe, that he did not ask to have an attorney represent him, that attorney Jolly was not his attorney, that he had not asked attorney Jolly or attorney Jolly’s law firm to represent him, and, further, that in fact he just wished to plead guilty.

In its ruling on the State’s motion to reconsider and enlarge, the court noted that Lasley appeared pro se and wished to have the matter finalized on the date he appeared. However, the court also noted that “it is not that simple. [Lasley] was charged with an act allegedly occurring on tribal lands while [Lasley] was employed by the Tribe in a tribal business operated upon tribal land.” The court refused to change its decision as to the jurisdictional question but did grant the State’s motion to expand its findings by incorporating the above cited facts regarding Lasley’s statements in open court.

The State sought discretionary review, maintaining the charge was criminal/prohibitory rather than civil/regulatory. The State also raised the standing issue it earlier raised before the magistrate. Later, the State filed a supplement to its application that included the expanded findings about Easley’s statements in open court. We granted the State’s application over the Tribe’s resistance.

II. Issues.

We consider the following issues: (1) whether the case is appropriately before us on discretionary review, (2) whether the Tribe has standing in the case, (3) whether subject matter jurisdiction is lacking, and (4) whether reversing the dismissal and reinstating the prosecution is the appropriate remedy.

III. Scope of Review.

Because the case raises an issue of statutory interpretation, our review is for correction of errors at law. State v. Wolford Corp., 689 N.W.2d 471, 473 (Iowa 2004). In addition, we review proceedings concerning subject matter jurisdiction at law. Tigges v. City of Ames, 356 N.W.2d 503, 512 (Iowa 1984).

IV. Appropriateness of Discretionary Review and Standing.

Because our resolution of both issues turns on the law concerning subject matter jurisdiction, we address them together.

The Tribe contends discretionary review of the State’s appeal is inappropriate because the magistrate did not find the statute invalid. The Tribe relies on Iowa Rule of Criminal Procedure 2.73(1) which provides that in simple misdemeanor cases “[a]n appeal may be taken by the plaintiff only upon a finding of invalidity of an ordinance or statute.” Iowa R.Crim. P. 2.73(1).

The State sought discretionary review pursuant to Iowa Code section 814.5(2) (2003) which allows the State to seek such review under limited circumstances. The ground the State relies on provides discretionary review may be available when the underlying case resulted in “[a] final judgment or order raising a question of law important to the judiciary and the profession.” Iowa Code § 814.5(2)(d).

We need not concern ourselves with the obvious tension between rule 2.73(1) and section 814.5(2) because we are faced here with an issue of Indian sovereignty, which immediately calls into question subject matter jurisdiction. See Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700,1702, 140 L.Ed.2d 981, 985 (1998) (“As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.”); see also State v. Bear, 452 N.W.2d 430, 432 (Iowa 1990) (recognizing that Indian sovereignty raises a question of subject matter jurisdiction). “Subject matter jurisdiction may be raised at any time.” Bear, 452 N.W.2d at 432; Hyde v. Buckalew, 393 N.W.2d 800, 802 (Iowa 1986) (“The issue whether the legislature intended to waive its sovereign immunity with respect to a particular type of claim is a matter of [subject matter] jurisdiction, the power of the court to hear and adjudicate a particular class of cases, and the State may raise that issue by motion to dismiss at any stage of the proceeding.”). In addition, this court may raise the issue sua sponte. State ex rel. Vega v. Medina, 549 N.W.2d 507, 508 (Iowa 1996).

In Lansky ex rel. Brill v. Lansky, we noted the importance of resolving jurisdictional issues first, especially those involving subject matter jurisdiction, no matter how the issue is presented:

The general theme of Iowa cases provides that, when a court is confronted with a question of its own authority to proceed, it should take charge of the proceedings affirmatively, regardless of the vehicle used to raise the issue. The court should utilize the most efficient method at its disposal to determine the true facts and then decide the issue promptly. When the court’s power to proceed is at issue, the court has the power and duty to determine whether it has jurisdiction of the matter presented. Subject matter jurisdiction should be considered before the court looks at other matters involved in the case and before it determines whether the parties are entitled to a jury trial. The court should be less concerned about the form in which the question of subject matter jurisdiction reaches it and more concerned about establishing an efficient, prompt, trustworthy solution, even if innovative and unusual approaches are required to reach the issue.

449 N.W.2d 367, 368 (Iowa 1989) (emphasis added) (citations omitted).

Although there was some question whether Jolly was in fact representing the defendant, the magistrate never actually made a ruling on that issue. As far as the court was concerned, the important question was whether it had subject matter jurisdiction to hear the matter. The court was not concerned, and nor are we, with how the issue was raised. Because of where the alleged offense occurred — on Indian land and in a trading post belonging to the Tribe — the subject matter jurisdiction issue was so apparent that the court should have and probably would have raised the issue on its own even had Jolly not appeared. Because the subject matter jurisdiction issue is in the case, we are duty bound to address it regardless of whether a statutory provision or rule permitted appeal by the State.

The same reasoning applies to the State’s argument that the Tribe had no standing to intervene in this criminal ease because it was not a defendant and its attorney had no permission from Lasley to represent him. Whether the Tribe had standing is not determinative because we are not concerned with how the issue of subject matter jurisdiction was raised or who raised it. Again, the issue was so obvious that the court should have and probably would have raised it on its own even had Jolly not appeared.

That brings us to the subject matter jurisdiction issue.

V. Subject Matter Jurisdiction.

The State contends the statute under which Lasley was charged is criminal/prohibitory, and therefore enforceable against him despite the fact that he was working on an Indian reservation. In contrast, the Tribe contends that the statute is civil/regulatory and therefore provides no subject matter jurisdiction for the prosecution of the charge against Lasley. The Tribe’s fall-back position is that the State’s attempt to exercise jurisdiction over Lasley is tantamount to an attempt to exercise jurisdiction over the Tribe. For that alternative reason, the Tribe concludes, subject matter jurisdiction is lacking for the prosecution of the charge against Lasley.

A. Applicable law. The Federal Constitution “grants Congress broad general powers to legislate in respect to Indian tribes, powers that [the Supreme Court has] consistently described as ‘plenary and exclusive.’ ” United States v. Lara, 541 U.S. 193, 200, 124 S.Ct. 1628, 1633, 158 L.Ed.2d 420, 428 (2004) (citations omitted); see U.S. Const, art. I, § 8, cl. 3 (Indian Commerce Clause); U.S. Const, art. II, § 2, cl. 2 (Treaty Clause). In California v. Cabazon Band of Mission Indians, the United States Supreme Court reiterated several principles regarding Indian sovereignty:

Indian tribes retain “attributes of sovereignty over both their members and their territory,” and ... “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.” It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided.

480 U.S. 202, 207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244, 253 (1987) (citations omitted). Thus, although Indian tribes retain attributes of sovereignty, state laws may be applied to tribal Indians on reservations if Congress grants a state authority to do so.

As applied to this case, Congress has twice expressly provided the State of Iowa jurisdiction to apply its laws to tribal Indians on the Tribe’s reservation. In 1948, Congress conferred criminal jurisdiction over offenses committed “by or against Indians on the Sac and Fox Indian Reservation” located in Iowa. Act of June 30, 1948, ch. 759, 62 Stat. 1161. The statute, commonly known as Public Law 846, reads:

Jurisdiction is hereby conferred on the State of Iowa over offenses committed by or against Indians on the Sac and Fox Indian Reservation in that State to the same extent as its courts have jurisdiction generally over offenses committed within said State outside of any Indian reservation: Provided, however, That nothing herein contained shall deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations.

Id.

Interpreting a similar statute by Congress granting similar authority to the State of Kansas, the United States Supreme Court held that the statute confers jurisdiction on both minor and major offenses committed by or against Indians on Indian reservations in accordance with state law. Negonsott v. Samuels, 507 U.S. 99, 105, 113 S.Ct. 1119, 1123, 122 L.Ed.2d 457, 465 (1993). The proviso part of the statute simply means that federal courts retain jurisdiction over offenses subject to federal jurisdiction under the Indian Major Crimes Act, while Kansas courts have jurisdiction to try persons for the same conduct when it violates state law. Id.

In 1953, Congress enacted what is commonly known as Public Law 280. Act of Aug. 15, 1953, ch. 505, § 2, 67 Stat. 588 (codified as amended at 18 U.S.C.A. § 1162 (2000)); Act of Aug. 15, 1953, ch. 505, § 4, 67 Stat. 589 (codified as amended at 28 U.S.C.A. § 1360 (1993)), Public Law 280 expressly granted six states, not including Iowa, criminal and civil jurisdiction over specified areas of Indian country within the states and provided for the assumption of such jurisdiction by other states. Id.; Cabazon, 480 U.S. at 207, 107 S.Ct. at 1087, 94 L.Ed.2d at 253-54.

“The primary concern of Congress in enacting Pub.L. 280 that emerges from its. sparse legislative history was with the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement.” Bryan v. Itasca County, 426 U.S. 373, 379, 96 S.Ct. 2102, 2106, 48 L.Ed.2d 710, 715-16 (1976). Section 2, which was the central focus of the Act, granted broad criminal jurisdiction over offenses committed by or against Indians within specified Indian country within the states. Id. at 380, 96 S.Ct. at 2107, 48 L.Ed.2d at 716.

Section 4 of the Act gave the enumerated six states “jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in ... Indian country.” Act of Aug. 15, 1953, ch. 505, § 4, 67 Stat. 589 (codified as amended at 28 U.S.C.A. § 1360 (1993)). This provision was “primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens, by permitting the courts of the States to decide such disputes.... ” Bryan, 426 U.S. at 383, 96 S.Ct. at 2108, 48 L.Ed.2d at 718. Section 4 was thus interpreted to grant the courts of the enumerated six states jurisdiction over private civil litigation — such as laws of contract, tort, marriage, divorce, insanity, and descent — involving reservation Indians, but not to grant general civil/regulatory authority over Indian reservations. Cabazon, 480 U.S. at 208, 107 S.Ct. at 1087, 94 L.Ed.2d at 254; Bryan, 426 U.S. at 383-85 & 384 n. 10, 96 S.Ct. at 2108-09 & 2108 n. 10, 48 L.Ed.2d at 718-19 & 718 n. 10.

Obviously, Iowa did not assume criminal jurisdiction under Public Law 280 because it already had such jurisdiction under Public Law 846. However, Iowa “accepted Congress’ invitation” as to section 4 of Public Law 280, relating to civil jurisdiction, “by passing Iowa Code section 1.12 in 1967.” Meier v. Sac & Fox Indian Tribe of the Miss. in Iowa, 476 N.W.2d 61, 63 (Iowa 1991). Section 1.12 provides:

The state of Iowa hereby assumes jurisdiction over civil causes of actions between Indians or other persons or to which Indians or other persons are parties arising within the Sac and Fox Indian settlement in Tama county. The civil laws of this state shall obtain on the settlement and shall be enforced in the same manner as elsewhere throughout the state.

Iowa Code § 1.12.

For a state law to be enforceable under the criminal offense provision of Public Law 280, such law must be “criminal/prohibitory” and not “eivil/regulatory.” Cabazon, 480 U.S. at 208, 107 S.Ct. at 1088, 94 L.Ed.2d at 254. In Cabazon, the Court approved the following test for determining whether a state law is criminal/prohibitory or eivil/regulatory:

[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub.L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State’s public policy.

Id. at 209-10, 107 S.Ct. at 1088-89, 94 L.Ed.2d at 254.

The Court made it clear, however, that just because “an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of Pub.L. 280.” Id. at 211, 107 S.Ct. at 1089, 94 L.Ed.2d at 256. “Otherwise, the distinction between § 2 [criminal offense provision] and § 4 [civil action provision] of [Public Law 280] could easily be avoided and total assimilation [of Indians] permitted.” Id. When Congress passed Public Law 280, it had no intention of effecting total assimilation and

nothing in [Public Law 280’s] legislative history remotely suggests that Congress meant the Act’s extension of civil jurisdiction to the States should result in the undermining or destruction of such tribal governes as did exist and a conversion of the affected tribes into little more than “ ‘private, voluntary organizations,’ ” a possible result if tribal governments and reservation Indians were subordinated to the full panoply of civil regulatory powers....

Bryan, 426 U.S. at 387-88, 96 S.Ct. at 2110-11, 48 L.Ed.2d at 720-21 (citation omitted).

In Cabazon, two tribes in Riverside County, California conducted bingo games on their reservations pursuant to an ordinance approved by the Secretary of the Interior. 480 U.S. at 204-05, 107 S.Ct. at 1086, 94 L.Ed.2d at 252. The county attempted to impose several restrictions through an ordinance on the tribes regarding the playing of bingo inside the reservations. Id. at 205-06, 107 S.Ct. at 1086, 94 L.Ed.2d at 252-53. The tribes sued the county in federal district court for declaratory and injunctive relief, alleging the county had no authority to apply ordinances regulating bingo inside the reservations. Id, at 206, 107 S.Ct. at 1086, 94 L.Ed.2d at 253. The State intervened, asserting that the bingo games on the two reservations violated a state statute making it a misdemeanor in California to conduct unregulated bingo and insisted that the tribes comply with the law. Id. at 205-06, 107 S.Ct. at 1086, 94 L.Ed.2d at 252-53. California was one of the six states that was granted criminal jurisdiction under Public Law 280 over offenses committed by or against Indians within all Indian country within the state. Id. at 207, 107 S.Ct. at 1087, 94 L.Ed.2d at 253-54. The trial court held that the state had no authority to enforce its gaming laws within the reservations and granted the tribes’ motion for summary judgment, a decision which was affirmed by the ninth circuit. Id. at 206, 107 S.Ct. at 1086, 94 L.Ed.2d at 253. The Supreme Court agreed. Id. at 222, 107 S.Ct. at 1095, 94 L.Ed.2d at 263. The Court, employing the criminal/prohibitory and civil/regulatory test, held that because California permitted a substantial amount of gambling activity, including bingo, and promoted gambling through its state lottery, the statute and ordinance in question regulated rather than prohibited gambling in general and bingo in particular. Id. at 210-11, 107 S.Ct. at 1088-89, 94 L.Ed.2d at 255-56.

B. Analysis. As mentioned, Iowa’s jurisdiction over criminal offenses committed by or against Indians on the Tribe’s reservation derives from Public Law 846 rather than Public Law 280. Nevertheless, we think we are bound by the Cabazon criminal/prohibitory and civil/regulatory analysis under Public Law 280 for two reasons. First, the grant of criminal jurisdiction under Public Law 846 — offenses committed by or against Indians on the Sac and Fox Indian Reservation — mirrors the language under section 2 of Public Law 280. And, as mentioned, at the invitation of Congress we accepted through Iowa Code section 1.12, by nearly identical language found in section 4 of Public Law 280, jurisdiction over civil causes of actions. In State ex rel. Department of Human Services v. Whitebreast, we employed the Ca-bazon test in deciding that the State’s action through its Child Support Recovery Unit to collect reimbursement for aid paid on behalf of an Indian child from an Indian father was not a private civil action within the meaning of Iowa Code section 1.12 but ' rather grew out of the State’s public, regulatory duty to recover from the Indian father. 409 N.W.2d 460, 463 (Iowa 1987). For these reasons, we see no difference in the scope and intent of the grant of authority regarding criminal jurisdiction to Iowa in Public Law 846 and our acceptance of Congress’s invitation to accept civil jurisdiction in Iowa Code section 1.12 from that contained in Public Law 280.

Second, but most important, the Caba-zon test ensures against the undermining or destruction of tribal self-government, a result that would seriously erode what is left of Indian sovereignty. The test also ensures against total assimilation, which Congress to this date has not expressed any desire to accomplish.

With the Cabazon test in mind, we proceed to determine whether the statute under which Lasley was charged is criminal/prohibitory or civil/regulatory. In doing so, we heed the Court’s admonition in Cabazon, that the particular State law in question in any given case must be given individual and detailed examination before it can be characterized as either criminal/prohibitory or civil/regulatory. Cabazon, 480 U.S. at 211 n. 10, 107 S.Ct. at 1089 n. 10, 94 L.Ed.2d at 256 n. 10. To us that means that we must analyze the statute under which Lasley was charged and the specific conduct it governs before we can draw any conclusions.

The statute under which Lasley was charged provides: “A person shall not sell, give, or otherwise supply any tobacco, tobacco products, or cigarettes to any person under eighteen years of age.” Iowa Code § 453A.2(1) (Supp.2001). The applicable penalty provision states: “An employee of a retailer who violates section 453A.2, subsection 1, commits a simple misdemeanor punishable as a scheduled violation under section 805.8C, subsection 3, paragraph ⅛'.” Id. § 453A.3(1)(6). Scheduled fine amounts, which increase as the number of offenses increase, are provided in Iowa Code section 805.8C(3)(6 )(l)-(3). No one disputes that section 453A.2(1) is a public offense punishable through criminal prosecution and therefore criminal in nature. The question remains however whether, notwithstanding this fact, this statute is part of a regulatory scheme and is for that reason civil/regulatory.

As mentioned, Public- Law 846 grants the State of Iowa jurisdiction over offenses committed by or against Indians on the Sac and Fox Indian Reservation in Iowa. Although the record does not reveal whether Lasley is an Indian, no one claims he is not. If the record were otherwise, the State of Iowa would apparently have jurisdiction. See United States v. John, 587 F,2d 683, 686 (5th Cir.1979) (when neither the offender nor the victim, are Indians, there is no basis for federal jurisdiction, so that the crime will be tried in state court according to state law). We proceed on the basis that Lasley is an Indian belonging to a federally recognized tribal entity.

That brings us to the decisive issue: Is Iowa Code section 453A.2(1) criminal/prohibitory and therefore enforceable in state court under Public Law 846? Or is the statute civil/regulatory and therefore outside the State’s jurisdiction? For reasons that follow, we think the statute is criminal/prohibitory.

We first note that the statute does not merely regulate the sale of tobacco. Rather, it absolutely prohibits one from furnishing in any manner any tobacco, tobacco products, or cigarettes to any person under eighteen years of age. Iowa Code § 453A.2(1). So the intent of the law is generally to prohibit certain conduct — the hallmark under the Cabazon test for establishing that a statute is criminal/prohibitory. Moreover, as the State points out, selling cigarettes to an underaged person anywhere in Iowa violates the State’s public policy because there is a statute absolutely forbidding it — another hallmark under the Cabazon test for establishing that a statute is criminal/prohibitory. See Iowa Code § 142A.1(2) (stating the purpose of Iowa -Code chapter 142A is to establish a “comprehensive tobacco use prevention and control initiative” to specifically address “reduction of tobacco use by youth and pregnant women, promotion of compliance by minors and retailers with tobacco sales laws and ordinances, and enhancement of the capacity of youth to make healthy choices”). The public policy in this state now recognizes the health hazards of cigarette smoking as to all citizens of this state, not just underaged persons. See Iowa Code ch. 142B (prohibiting smoking in certain public places and imposing a civil fine for a violation of the statute). Section 453A.2(1) was not simply intended to regulate conduct occurring on the Tribe’s reservation. Rather it represents the legislature’s exercise of its police power by way of a criminal statute to protect underaged persons from the harmful consequences resulting from tobacco usage and to prohibit distribution of tobacco products to underaged persons on the reservation in the same manner as such conduct is prohibited elsewhere in the State. See Austin v. Tennessee, 179 U.S. 343, 348-49, 21 S.Ct. 132, 134, 45 L.Ed. 224, 228 (1900) (noting the potential of “deleterious effects” of cigarettes and determining that it is within the province of the legislature to prohibit their sale entirely provided such act is designed for protection of public health).

The Tribe’s attempt to compare the facts here to those in Cabazon favorable to the Tribe fails to convince us that the statute is civil/regulatory. True, the rationale for the Cabazon decision was the fact that the State of California permitted and even encouraged gambling in the State. Under the Tribe’s interpretation of this rationale, simply because the State of Iowa allows the sale of cigarettes, it cannot prohibit the sale of cigarettes to underaged persons on the reservation. But, as the State points out, a closer reading of Caba-zon shows that the Court found significant that there was no effort to forbid the playing of bingo by any member of the public over the age of 18. Cabazon, 480 U.S. at 211, 107 S.Ct. at 1089, 94 L.Ed.2d at 256. Cabazon does not support the proposition that because selling cigarettes to adults is permitted throughout the state, it follows that sale of cigarettes to underaged persons on the Tribe’s reservation should be permitted. .

We note that the Court in Cabazon cited with approval United States v. Marcyes, 557 F.2d 1361 (9th Cir.1977) as an example of lower courts demonstrating an ability to identify prohibitory laws. Cabazon, 480 U.S. at 211 n. 10, 107 S.Ct. at 1089 n. 10, 94 L.Ed.2d at 256 n. 10. The ninth circuit adopted and applied the prohibitory/regulatory distinction in determining whether a state law governing the possession of fireworks was made applicable to Indian reservations by the Assimilative Crimes Act, 18 U.S.C. § 13. Marcyes, 557 F.2d at 1363-65. The court concluded that even though there were limited exceptions to the statute’s prohibition, the fireworks law was prohibitory in nature. Id. at 1364. Relying on public policy, the court in Mar-cyes reasoned that

[t]he possession of fireworks is not the same situation encountered in other regulatory schemes such as hunting or fishing, where a person who wants to hunt or fish merely has to pay a fee and obtain a license. The purpose of such statutes is to regulate the described conduct and to generate revenues. In contrast, the purpose of the fireworks laws is not to generate income, but rather to prohibit their general use and possession in a legitimate effort to promote the safety and health of all citizens. Moreover, by allowing appellants to operate their stands on the reservation or in any federal enclave would entirely circumvent Washington’s determination that the possession of fireworks is dangerous to the general welfare of its citizens.

Id.

Likewise providing tobacco products to underaged persons is not the same situation encountered in true regulatory schemes in which the purpose is to regulate conduct and raise revenue. That is not the purpose behind the statute in question. Rather the purpose is to strictly prohibit the conduct proscribed by the statute in order to promote the safety and health of all underaged persons. Allowing the sale of tobacco products to under-aged persons on the Tribe’s reservation would circumvent the legislature’s determination that furnishing such products in any manner to underaged persons is dangerous to the health of such persons. Cf. State v. Robinson, 572 N.W.2d 720, 722-24 (Minn.1997) (applying Cabazon test with additional analytical considerations in concluding underage drinking statute was criminal/prohibitory as against state public policy of protecting both minors and the public from physical and other injuries resulting from alcohol consumption, despite fact that such sales under proper regulation are allowed to be made to adults).

As mentioned, the Tribe has a fall-back position. The Tribe argues as follows:

The very nature of the offense itself requires the individual to be acting in some capacity as a seller of tobacco products. In this case, Mr. Lasley’s capacity to sell tobacco products exists only because he is an employee of the Tribe’s subordinate economic enterprise. Therefore, the attempt to exercise jurisdiction over Mr. Lasley is tantamount'to an attempt to exercise jurisdiction over the Tribe itself.

The Tribe cites no authority to support this contention. More ..important, the State charged Lasley, not the Tribe, with violating Iowa Code section 453A.2. The sanctions for licensed retailers who violate section 453A.2 include revocation of permit, see Iowa Code § 453A.22(1), and penalties, see Iowa Code § 453A.22(2).

VI. Remedy.

The Tribe contends that in the event we reverse the magistrate’s dismissal, the law does not permit reinstatement of the prosecution. In support of its contention, the Tribe relies on Iowa Rule of Criminal Procedure 2.33(1).

Rule 2.33(1) provides:

The court, upon its own motion or the application of the prosecuting attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the reasons therefor being stated in the order and entered of record, and no such prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to another prosecution for the same offense if it is a simple or serious misdemeanor; but it is not a bar if the offense charged be a felony or an aggravated misdemeanor.

Iowa R.Crim. P. 2.33(1). Clearly, this rule does not support the Tribe’s contention because the dismissal did not result from the magistrate’s or the prosecutor’s motion, but rather on the motion of the Tribe. See State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984) (only the court or the prosecutor may move to dismiss pursuant to rule 2.33(1); rule 2.33(1) “is not available to a defendant”).

Moreover, the rule lists only one ground for dismissal: “in the furtherance of justice.” Iowa R.Crim. P. 2.33(1). Appropriate reasons to dismiss under this rule “include[] ‘facilitating the State in gathering evidence, procuring witnesses, or plea bargaining.’ ” Fisher, 351 N.W.2d at 801 (citation omitted). The magistrate gave none of these reasons for the dismissal; the dismissal was purely on the grounds of lack of subject matter jurisdiction. In addition, even if this were a 2.33(1) dismissal, the erroneous dismissal of the case is not a bar to prosecution. See State v. Hartley, 549 N.W.2d 794, 795-96 (Iowa 1996) (evaluating dismissal of a serious misdemeanor pursuant to rule 27(1) [now 2.33(1) ] and concluding as follows: “We have held that an erroneous dismissal prior to a defendant’s being placed in jeopardy does not prevent future prosecution.”). Here there was an erroneous dismissal, and the dismissal came before Lasley was ever put in jeopardy. “Jeopardy does not attach until a defendant is put to trial before the trier of facts, whether the trier be a jury or a judge.” State v. Beecher, 616 N.W.2d 532, 536 (Iowa 2000). In a trial by jury, jeopardy attaches when the jury is empanelled and sworn. Id. In a bench trial, jeopardy attaches when the judge begins to receive evidence. Id. Neither event had occurred here when the court entered its dismissal order.

VII. Disposition.

In sum, we conclude the appeal is properly before us and it matters not whether the Tribe has standing because subject matter jurisdiction requires us to determine whether we have jurisdiction regardless how the issue was raised. We further conclude that the statute under which Las-ley was charged is criminal/prohibitory, which means the magistrate has subject matter jurisdiction to hear the case. We therefore reverse the magistrate’s decision to the contrary. We remand for further proceedings because there is no bar to reinstatement and prosecution of the charge. In reaching our decision, we have carefully considered all of the arguments and contentions of the parties. Those we have not addressed either lack merit or were not properly raised for our review.

REVERSED AND CASE REMANDED.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Edgar Lee ANDREWS, Appellant.
    No. 04-0937.
    Supreme Court of Iowa.
    Nov. 4, 2005.

      Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and Linda K. Zanders, Assistant County Attorney, for appellee.
   CARTER, Justice.

Edgar Lee Andrews, who was convicted of driving while barred in violation of Iowa Code section 321.561 (2003), appeals, challenging the legality of the investigatory stop that led to the discovery of his violation. He also asserts that his trial counsel was ineffective in not challenging hearsay statements that were included in the stipulated record and that that record was insufficient to support a finding of guilt. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

The criminal prosecution was tried to the court based on the evidence contained in the minutes of testimony attached to a trial information charging defendant with violating Iowa Code section 321.561. Prior to the submission of the case, defendant had filed a motion to suppress the evidence of his unauthorized driving on the ground that the investigatory stop that revealed it was illegally instituted. The district court denied that motion.

I. The Ruling on the Motion to Suppress.

The motion to suppress had alleged that (1) defendant had been pulled over for “improper vehicle registration,” (2) the arresting officer reported that defendant had an “in transit” sign on his rear window, and (3) Iowa Code section 321.25 authorizes the operation of motor vehicles without license plates for a period of forty-five days if the vehicle has a “temporary card” attached. In addition, the motion stated that the only reason given by the officer for stopping the vehicle was the existence of the “in transit” sign on the rear window.

The record made in support of defendant’s motion to suppress was very brief and consisted entirely of the following:

[DEFENDANT’S COUNSEL]: We have previously filed a Motion to Suppress in this case claiming that there was no reasonable suspicion or probable cause to pull Mr. Andrews over, and we had set this matter for hearing today at this time.
Your Honor, between the time we filed the motion and today’s date there are several cases — State versus Ross, Your Honor, was one of the cases that we provided to the Court. There’s another case, State versus, I believe, Jackson. And Finally, Your Honor, a case, State versus Johnson.
THE COURT: Johnson?
[DEFENDANT’S COUNSEL]: And it’s a Westlaw cite, Your Honor, 2002 W.L. 575936. It’s an unreported decision by the Iowa Court of Appeals. Ms. Zanders [the prosecuting attorney] found this case, Your Honor. I thought there was some adverse authority out there, but it seems to be controlling.
So at this time, Your Honor, what we would do is propose to stipulate to the fact that the reason my client was pulled over on the date in question is because he had a temporary paper plate in his vehicle and that’s the reason he was stopped. We are prepared to stipulate to that underlying fact, assuming Ms. Zanders is willing to do so.
MS.. ZANDERS [The prosecuting attorney]: The State is in agreement with that, Your Honor.
[DEFENDANT’S COUNSEL]: Your Honor, based on the cases that we have supplied the Court, including the case of State versus Johnson, which appears to be controlling in this matter, we’d ask the Court to go ahead and issue a ruling based on the Court of Appeals’ decision in Johnson, even though I realize that is adverse to my client’s interest at this time. I think we’re obligated to point those issues out to the Court.
THE COURT: ... The Court notes that State v. Johnson appears to be directly on point. That’s the Iowa Court of Appeals case cite as 2002 Westlaw 575936. In this case there was the paper plate in the rear window. The officer had a reasonable basis to stop the vehicle, and once stopped the officer would have been proper to determine whether or not the driver was a licensed driver or not.
Therefore, the defendant’s motion is overruled.

This court has previously determined in State v. Lloyd, 701 N.W.2d 678 (Iowa 2005), and State v. Jackson, 315 N.W.2d 766 (Iowa 1982), that a valid investigatory stop- may be made to check the registration of a motor vehicle being operated without license plates. Although in those cases a temporary paper registration plate was displayed in the vehicle’s rear window, the officer had not noticed the presence of the temporary registration prior to initiating the stop. We held in each of those cases that the officer’s inability to detect the temporary registration was an objectively reasonable mistake and the stop based on the absence of a license plate was not only based on reasonable suspicion but in fact was premised on probable cause. Lloyd, 701 N.W.2d at 681; Jackson, 315 N.W.2d at 767.

The rather sketchy record in the present case reveals that the officer who initiated the motor vehicle stop had noticed an “in transit” sign on the vehicle’s rear window prior to stopping the car. In reviewing district court rulings on motions to suppress, we may consider both the evidence presented during the suppression hearing and that introduced at trial. State v. Bowers, 656 N.W.2d 349, 352 (Iowa 2002); State v. Jackson, 542 N.W.2d 842, 844 (Iowa 1996). The stipulated bench trial record embraced the minutes of testimony attached to the trial information “including police reports if they [were] attached to the ... charge.” A police report attached to the minutes of testimony stated:

On 3-2-04 I witnessed a red Chevy Blazer with an “in transit” sign on its rear window. I conducted a traffic stop on said vehicle in the 3500 blk of Grand. I approached the vehicle and advised the male driver, later identified as E. Andrews, that I had stopped him because he did not have any plates on his vehicle. Andrews advised his wife had recently purchased the vehicle and then showed me a title with signature of a Betty Andrews as the purchaser, in mid-February 2004. I then asked Andrews for his driver’s license. Andrews stated he did not have a driver’s license due to previously being under suspension. A check through dispatch showed Andrews to be barred for habitual violator.

We consider the foregoing narrative in reviewing the district court’s ruling on the motion to suppress.

In the unpublished decision of the court of appeals in State v. Johnson, No. 01-1053, 2002 WL 575936 (Iowa Ct.App. Mar.13, 2002), on which the district court relied, the officer conducting the investigatory stop had noticed a properly displayed temporary registration plate but stopped the vehicle for purposes of verifying that the identification on the temporary registration corresponded to the vehicle on which the registration had been placed. In upholding the stop, the court stated:

While the officer initially determined that the paper license plate was properly displayed, he needed to see the title in order to “make sure the title matched the paper tag in back” and was not issued for another vehicle. This was a valid purpose for detaining Johnson.

The court of appeals’ recognition of carte blanche authority on the part of the officer to conduct investigatory stops for purposes of verifying temporary registration documents must be reconciled with the controlling constitutional standard laid down in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In that case, the Court held:

[EJxcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

Prouse, 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673. In the face of this very clear pronouncement on the application of the Fourth Amendment to vehicle registration checks, we entertain doubt concerning the validity of random stops of motor vehicles properly displaying valid temporary registration cards issued pursuant to Iowa Code section 321.25 that were observed by the officer before the stop was initiated. However, even if we assume that a stop made under those circumstances would not be valid, that does not aid defendant in the present ease.

The statutory provision for temporary cards authorizing vehicle operation on the highways while application for registration is pending provides as follows:

A vehicle may be operated upon the highways of this state without registration plates for a period of forty-five days after the date of delivery of the vehicle to the purchaser from a dealer if a card bearing the words “registration applied for” is attached on the rear of the vehicle. The card shall have plainly stamped or stenciled the registration number of the dealer from whom the vehicle was purchased and the date of delivery of the vehicle.... A dealer shall not issue a card unless an application for registration and certificate of title has been made by the purchaser and a receipt issued to the purchaser of the vehicle showing the fee paid by the person making the application.

Iowa Code § 321.25. Defendant’s motion to suppress did not assert that the vehicle he was driving displayed a card that had been issued by a dealer and which contained the information required by statute. The motion simply recited that the arresting officer had reported that defendant had an “in transit” sign on his rear window. No evidence was presented at either the suppression hearing or at trial concerning the information displayed on this card.

Although the stipulation on which the motion to suppress was submitted states that the reason defendant was pulled over was because he had a temporary paper plate on his vehicle, our analysis must be based on an objective assessment of all of the facts rather than the subjective motivation of the officer. State v. Heminover, 619 N.W.2d 353, 360-61 (Iowa 2000). Because there is no evidence suggesting that a reasonable police officer observing the card in the window would conclude the “in transit” sign complied with the requirements of section 321.25, the district court did not commit error in denying the motion to suppress.

II. The Ineffective-Assistance-of-Counsel Claim.

Defendant urges that, in stipulating to the submission of the case on the minutes of testimony attached to the trial information, his counsel breached an essential duty and caused him prejudice by not objecting to “bald assertions” of defendant’s alleged barred driving status. Defendant contends that this evidence was properly excludable on both hearsay and confrontation-clause grounds.

We find no breach of duty by defendant’s trial counsel in the manner alleged. The record made on the submission of the case was as follows:

[DEFENDANT’S COUNSEL]: Your Honor, ... [t]he record should reflect we previously filed a Motion to Suppress on the new Driving While Barred charge. Your Honor, that matter was heard before Judge Price. For the purposes of the record we discovered an unpublished Court of Appeals case which is on point. Judge Price overruled our Motion to Suppress, however, there was a warrant out for the revocation and he has been incarcerated since that date.
Your Honor, we are proposing today, in order to preserve the issue on the Motion to Suppress, we will stipulate to the Minutes of Testimony and the underlying facts including police reports if they are attached to the new charge. We understand the Court will enter a finding of guilty in this particular case, and of course, that would also be grounds to revoke or enter appropriate orders in his revocation hearing. We are willing to waive time and ask the Court to proceed and waive time for sentencing.

In responding to ineffective-assistance claims, we measure the attorney’s performance by standards of reasonableness consistent with prevailing professional norms. State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). We presume competency and avoid second-guessing and hindsight. Kress, 636 N.W.2d at 20. Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel. State v. Oetken, 613 N.W.2d 679, 683-84 (Iowa 2000); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). It is clear from the foregoing colloquy that counsel’s decision to stipulate to the record was a tactical one designed to avoid the waiver that would exist from a plea of guilty. Defendant may not now challenge that tactical decision by claiming that his counsel was ineffective.

III. Sufficiency of the Evidence.

Defendant urges that the evidence contained in the stipulated record was insufficient to support the alleged driving-while-barred status. He states in this regard:

The minutes of testimony contain the unsupported claim that the Assistant Director of the Driver’s License Division of the Department of Transportation would testify regarding the records supporting the barred status in question. But none of those records appear in the court file.

We are satisfied that the evidence contained in the stipulated record was sufficient to support the finding of the district court beyond a reasonable doubt that the defendant was operating a motor vehicle while his license was barred. The synopsis of the testimony expected from the assistant director of the driver’s license division of the department of transportation was as follows:

That he is the Assistant Director of the Driver’s License Division of the Department of Transportation; that he has the care, custody and control of the above-named defendant’s driving record; that he examined the record of the Defendant in the Department of Transportation and found that his/her privileges of operating a motor vehicle were barred....

Although his evidence was undoubtedly hearsay, defendant’s agreement to include this evidence in the record gave the district court license to accept the described testimony as a verity irrespective of whether the actual records of the agency were included in the stipulated record. See State v. Johnson, 272 N.W.2d 480, 483 (Iowa 1978) (failure to object operates as a waiver of any improprieties in witness testimony); State v. Harmon, 238 N.W.2d 139, 143 (Iowa 1976) (same); State v. Hall, 235 N.W.2d 702, 727 (Iowa 1975) (same).

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

AFFIRMED.


author: WIGGINS, Justice.

text:
    In the Matter of T.S., Alleged to Be a Substance Abuser, T.S., Appellant.
    No. 04-1820.
    Supreme Court of Iowa.
    Nov. 4, 2005.

      John B. Swain, Assistant Public Defender, Marshalltown, for appellant.
    Susan S. Klaessy, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

The appellant, T.S., appeals his involuntary commitment for chronic substance abuse. In this appeal, he claims the county attorney should not have participated in the proceeding and the juvenile court should have required the presence of the examining physician at his hearing. Although this decision will have no effect on the underlying matter because T.S. successfully completed his substance abuse program and the court released him from his delinquency probation, we conclude this case falls within an exception to the mootness doctrine. On the merits of T.S.’s appeal, we hold the county attorney should not have participated in the hearing and the court should have required the examining physician to be present at the hearing.

I. Background Facts and Proceedings.

T.S.’s mother filed an application under Iowa Code section 125.75 (2003) alleging T.S., a minor, was a substance abuser. The application asserted the authorities recently arrested T.S. for operating while intoxicated (OWI), T.S. stayed out until early hours, abused alcohol and drugs, punched numerous holes in the walls of their home, did not attend school, and was not employed. The juvenile court had exclusive jurisdiction over the commitment proceeding because T.S. was a minor. Iowa Code § 125.75A. Finding probable cause to believe T.S. is a substance abuser, the juvenile court entered an order for immediate custody under section 125.81 directing T.S. be detained at a local hospital for in-patient evaluation. The juvenile court appointed a physician to examine T.S. The examining physician filed his written report with the clerk. The same facts leading to this proceeding caused the State to file a juvenile delinquency proceeding charging T.S. with OWI.

At the commitment hearing, T.S.’s attorney objected to the county attorney’s participation in the hearing as attorney for the applicant, T.S.’s mother. The court overruled this objection stating, “the State is acting within its authority under Iowa Code Chapter 232 in being involved in these proceedings.”

The examining physician did not attend the heai-ing. At the hearing, the State asked the court to take judicial notice of the physician’s report. T.S.’s attorney objected to the admittance of the physician’s report on the basis that under Iowa Code section 125.82(3), the physician who has examined the respondent must be present at the hearing unless prior to the hearing the court determines for good cause the physician’s presence is not necessary. T.S.’s attorney argued the physician was not present and the court had not made a previous finding of good cause for the physician’s absence. The court determined it was not necessary for the physician to be personally present at the hearing and admitted the report into evidence.

In the report, the physician opined T.S. is a substance abuser, was treatable, and would benefit from in-patient treatment. It was also the opinion of the physician that T.S. is potentially likely to physically injure himself or others because of his driving with peers while under the influence. Aside from the physician’s report, the State did not present any evidence at the hearing. The only person who testified at the hearing was T.S.

At the close of the hearing, the court found T.S. was “[a] chronic substance abuser as defined by Section 125.2(17).” The court was “convinced that the State has established by clear and convincing evidence that [T.S.] is a substance abuser and that he would benefit from treatment.” The court further found T.S. is endangering his health and lacks self-control in his use of alcohol.

T.S. filed a “motion to enlarge and amend findings of fact and conclusions of law and to modify/substitute accordingly the judgment/decree/order.” The district court entered a written order on the motion. Regarding its decision to allow the county attorney to participate in the proceedings, the court stated, “it is this court’s experience that individual county attorneys set policy as to whether they will participate in Chapter 125 proceedings where juveniles are involved.” The court further stated it is not aware of a prohibition on the county attorney’s participation. In addition, the court stated although Iowa Code chapter 232 does not specifically authorize the county attorney’s participation in the proceedings, section 331.756(48) authorizes the county attorney to “carry out duties relating to the care, guidance and control of juveniles as provided in Chapter 232.” The court concluded its analysis by stating T.S. was not prejudiced by the county attorney’s participation.

The court also noted it had already examined the physician’s report prior to the hearing pursuant to Iowa Code section 125.80(2) because it was part of the court file, the contents of which the court may take judicial notice. Therefore, the court reasoned, “admission of the report at hearing was a formality” and “the report was complete, unambiguous and in compliance with Code requirements.” Finally, the court concluded requiring the personal appearance of the examining physician is impractical and leads to unreasonable delay in the proceedings, inconsistent with the best interest of the minor.

In the separate juvenile delinquency proceeding, the juvenile court adjudicated T.S. delinquent for OWI and placed him on formal probation. T.S.’s formal probation required him to undergo in-patient substance abuse treatment. T.S. successfully completed the in-patient treatment and the court released him from the delinquency probation. Shortly after his release from probation, the county attorney presented an application to the court to dismiss this substance abuse proceeding stating T.S. successfully completed in-patient treatment as part of the delinquency proceeding and there is no further reason for T.S. to remain under commitment. At the request of T.S.’s attorney and with the consent of the court, the county attorney withdrew her application to dismiss this substance abuse proceeding and withdrew as counsel for the applicant.

Acknowledging this appeal as moot because there is no further reason for T.S. to remain under commitment, T.S.’s attorney asks us to reach the merits of this appeal on the issues: (1) whether the county attorney can participate in an involuntary commitment proceeding for substance abuse under Iowa Code chapter 125 when the county attorney is not the applicant; and (2) whether the requirements of Iowa Code section 125.82(3) regarding a physician’s presence at the hearing were satisfied.

II. Mootness.

We do not decide cases where there is no longer any actual controversy, unless we exercise our discretion and decide the case under an exception to the mootness doctrine. Rhiner v. State, 703 N.W.2d 174, 176-77 (Iowa 2005). An exception to the mootness doctrine exists “where matters of public importance are presented and the problem is likely to recur.” Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1983). The factors we consider to determine whether we will review a moot action are:

(1) the private or public nature of the issue; (2) the desirability of an authoritative adjudication to guide public officials in their future conduct; (3) the likelihood of the recurrence of the issue; and (4) the likelihood the issue will recur yet evade appellate review.

State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002).

The procedural aspects of an involuntary civil commitment hearing are of great public importance. In re M.T., 625 N.W.2d 702, 705 (Iowa 2001). Involuntary commitment hearings occur on a daily basis; consequently, the issues raised by T.S. are likely to recur. Id. It is probable the procedural issues raised in this appeal will evade appellate review given the time it takes to process an appeal and the likelihood a commitment will terminate before the appeal process can be completed. Id. Additionally, it is desirable for the courts and our public officials to have an authoritative adjudication of these issues. Therefore, we will exercise our discretion to reach the merits of the issues raised in this appeal. .

III. Analysis.

The outcome of the issues raised on appeal depends on our construction of the statutes governing the involuntary commitment or treatment of chronic substance abusers found in chapter 125 of the Code. “ ‘We do not speculate as to the probable legislative intent apart from the words used in the statute.’ ” City of Fairfield v. Harper Drilling Co., 692 N.W.2d 681, 684 (Iowa 2005) (citations omitted). We give a statute a plain and rational meaning, if the language used by the legislature is clear and unambiguous. ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 603 (Iowa 2004). Because a person’s liberty interests are at stake, “it is imperative that the statutory requirements and procedures [of the involuntary commitment statutes] be followed.” In re M.T., 625 N.W.2d at 706.

A. Whether the county attorney can participate in an involuntary commitment proceeding for substance abuse under Iowa Code chapter 125 when the county attorney is not the applicant.

Iowa Code section 125.75 provides in relevant part:

Proceedings for the involuntary commitment or treatment of a chronic substance abuser to a facility may be commenced by the county attorney or an interested person by filing a verified application with the clerk of the district court of the county where the respondent is presently located or which is the respondent’s place of residence.

Iowa Code § 125.75. The Code further provides if the applicant is not the county attorney, the applicant may apply for the appointment of counsel if he or she is financially unable to pay an attorney to assist in the application. Id. § 125.76. As soon as practical after the filing of an application that includes a request for a court-appointed attorney, the court will appoint an attorney to represent the applicant as long as “the court is satisfied that a court-appointed attorney is necessary to assist the applicant in a meaningful presentation of the evidence, and that the applicant is financially unable to employ an attorney.” Id. § 125.78(2). Concerning the actual hearing, the Code states:

At a commitment hearing, evidence in support of the contentions made in the application shall be presented by the applicant, or by an attorney for the applicant, or by the county attorney if the county attorney is the applicant.

Id. § 125.82(1).

The legislative intent is clear and unambiguous from the language used in chapter 125 that an application for involuntary commitment or treatment may be filed by “the county attorney or an interested person.” Id. § 125.75. The Code contains separate procedures concerning who is required to present the evidence based on whether the application is filed by the county attorney or an interested person. If the county attorney files the application, the legislature intended the county attorney to present the evidence. Id. § 125.82(1). On the other hand, if an interested party files the application, the applicant presents the evidence in support of the application. Id. The legislature, realizing a layperson may not be able to make a meaningful presentation of the evidence without the help of an attorney, made provisions in the Code for a layperson to have a court-appointed attorney in the event the applicant is unable to employ an attorney. Id. § 125.76. Accordingly, the statutory scheme does not provide for the county attorney to present the evidence when the county attorney is not the applicant.

The juvenile court concluded there are no specific provisions in the Code prohibiting the county attorney’s involvement in a commitment hearing under chapter 125. It reasoned the county attorney could become involved in a matter the juvenile court had jurisdiction over because Iowa Code section 331.756(48) provides the county attorney with authority to “[cjarry out duties relating to the care, guidance, and control of juveniles” in chapter 232. Further, the juvenile court reasoned even though there are no provisions in chapter 232 of the Code authorizing a county attorney’s participation in a chapter 229 mental health hospitalization proceeding, the county attorney regularly participates in such proceedings; therefore, the county attorney should be allowed to participate in a chapter 125 commitment proceeding. We disagree with the juvenile court’s reasoning and conclusions.

First, the juvenile court was incorrect in finding no authority exists to allow the county attorney to participate in a chapter 229 mental health hospitalization proceeding. The legislature expressly requires the county attorney to present the evidence in a chapter 229 mental health hospitalization proceeding regardless of who files the application. See id. § 229.12(1) (stating “evidence in support of the contentions made in the application shall be presented by the county attorney”).

Second, section 331.756(48) clearly states the duties of the county attorney include “[e]arry[ing] out duties relating to the care, guidance, and control of juveniles as provided in chapter 232.” Although the legislature gave the juvenile court jurisdiction over chapter 125 proceedings involving minors, a chapter 125 proceeding is not a chapter 232 proceeding. Section 331.756(48) does not create a right to participate in a chapter 125 proceeding but “merely lists the duties of a county attorney under the implementation of home rule.” Cf. Emmet County Bd. of Supervisors v. Ridout, 692 N.W.2d 821, 826, 828 (Iowa 2005) (rejecting the argument home-rule authority gave the county attorney the power to collect a debt the county was not authorized to collect under the Code). Moreover, if we were to expand the authority given to the county attorney by the legislature in the statute we would be usurping the role of the legislature. Cf. Iowa Dep’t of Soc. Servs. v. Blair, 294 N.W.2d 567, 570 (Iowa 1980) (holding courts cannot expand an administrative agency’s authority beyond the authority granted to the agency by the legislature).

Consequently, the county attorney should not have presented evidence on behalf of the applicant, T.S.’s mother. If the county attorney saw a need to present the evidence in this involuntary commitment proceeding, the county attorney could have applied to the court to join in the application as an applicant.

B. Whether the requirements of Iowa Code section 125.82(8) regarding a physician’s presence at the hearing were satisfied.

The Code states:

The person who filed the application and a physician or professional who has examined the respondent in connection with the commitment hearing shall be present at the hearing, unless prior to the hearing the court for good cause finds that their presence is not necessary.

Iowa Code § 125.82(3). The legislature requires the physician to be present in order to allow the respondent to cross-examine the physician. Id. § 125.82(1). The juvenile court’s failure to require the physician’s presence, without the required prior showing of good cause, clearly violated T.S.’s statutory right to cross-examine the physician.

The juvenile court compounded its mistake by taking judicial notice of the physician’s report on the basis it was part of the court file. The legislature requires the physician to file the report with the clerk of court prior to the hearing date so the clerk can immediately forward the report to the judge who issued the order requiring the examination and send a copy of the report to the respondent’s attorney. Id. § 125.80(2). The report is to be used by the judge to either dismiss the application if the report indicates the respondent is not a chronic substance abuser or schedule a commitment hearing as soon as possible if the report indicates the respondent is a chronic substance abuser. Id. § 125.80(3)-(4). Thus, the purpose of the report is to allow the judge to make an early determination as to whether the commitment proceeding should be terminated.

The juvenile court does have the authority to take judicial notice of prior court orders and court-filed documents. See, e.g., In re T.C., 492 N.W.2d 425, 429 (Iowa 1992) (allowing judicial notice of the pleadings and exhibits from a previous child in need of assistance proceeding); In re Adkins, 298 N.W.2d 273, 277-78 (Iowa 1980) (allowing judicial notice of a prior child in need of assistance case, “including the evidence, providing certain safeguards are followed”). The rule allowing the juvenile court to take judicial notice of these items does not apply to the physician’s report in the instant case because it is neither a court order nor a court-filed document. Cf. In re H.G., 534 N.W.2d 113, 113-14 (Iowa Ct.App.1995) (holding the rule regarding judicial notice of prior court orders and court-filed documents does not extend to a modification hearing report prepared by a juvenile court officer).

Furthermore, our rules of evidence govern judicial notice of adjudicative facts. Iowa R. Evid. 5.201(a). These rules provide:

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Id. R. 5.201(6). The examining physician’s report contains opinions based upon the physician’s examination of the patient. The report does not consist of matters generally known or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Therefore, under our rules of evidence, it was improper for the juvenile court to take judicial notice of the report.

IV. Disposition.

We reverse the judgment of the district court because the county attorney should not participate in an involuntary commitment proceeding for substance abuse under Iowa Code chapter 125 unless the county attorney is the applicant and because the juvenile court failed to follow Iowa Code section 125.82(3) requiring the presence of a physician at the hearing without the required prior showing of good cause. Normally we would not remand the case for a proper determination as to whether T.S. is subject to an in-patient treatment order because the matter is moot. In re M.T., 625 N.W.2d at 706. In this case, however, we do remand the case for the district court to dismiss the action as originally requested by the county attorney.

REVERSED AND CASE REMANDED.


author: ANDERSON, G. BARRY, Justice.

text:
    Leon PERRY, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-169.
    Supreme Court of Minnesota.
    Nov. 10, 2005.
    Rehearing Denied Jan. 10, 2006.

      Leon Perry, Bayport, MN, Pro Se Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant Hennepin County Attorney, Minneapolis, MN, for Respondent.
    Considered and decided by the court en banc without oral argument.
   OPINION

ANDERSON, G. BARRY, Justice.

Appellant Leon Perry appeals from a summary denial of his petition for postcon-viction relief alleging a violation of his Fourteenth Amendment rights. He also raises a claim of ineffective assistance of trial counsel that he did not raise to the postconviction court. We affirm the post-conviction court’s denial of Perry’s petition and deny Perry’s claim of ineffective assistance of trial counsel.

On November 16, 1995, a Hennepin County jury convicted Perry of the first-degree premeditated murder of Brian Thomas under Minn.Stat. § 609.185(a)(1) (2004). On the same day, the district court sentenced appellant to life in prison. This court’s opinion issued in response to appellant’s direct appeal provides a full statement of the facts in this case. State v. Perry, 561 N.W.2d 889, 891-93 (Minn.1997). This court affirmed appellant’s conviction, holding that the district court did not err by admitting an incriminating out-of-court statement offered to rebut defense counsel’s suggestion that the police lied to appellant during his interrogation. Id. at 894. Additionally, this court denied appellant’s claim that he received ineffective assistance of counsel because his counsel opened the door to the incriminating statement. Id. at 894-95. Finally, this court denied appellant’s claim that the state violated his Sixth Amendment rights when, as a person of color, he was indicted by a 23-person grand jury that included no persons of color. Id. at 895-97.

On November 9, 2004, appellant filed a petition for postconviction relief claiming that the state violated his right to equal protection under the Fourteenth Amendment because there were no persons of color on the grand jury that indicted him. The postconviction court denied appellant’s petition on the grounds that the claim was procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976) (“Knaffla rule”) and failed on the merits even if not barred.

On appeal to this court, appellant argues that his Fourteenth Amendment claim is not the same as his previously denied Sixth Amendment'claim, and further argues, inter alia, that it therefore should not be procedurally barred. Additionally, in his appeal to this court, appellant has raised for the first time a new ineffective assistance of counsel claim.

A postconviction court “may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.” Minn.Stat. § 590.04, subd. 3 (2004). Further, this court held in Knaffla that once a direct appeal has been taken, “all matters raised therein and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” 309 Minn, at 252, 243 N.W.2d at 741.

There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review. Ives v. State, 655 N.W.2d 633, 636 (Minn.2003). The second exception may be applied if fairness requires it and the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991).

Taylor v. State, 691 N.W.2d 78, 79 (Minn.2005).

It is clear that appellant knew ox-should have known about the equal protection claim prior to his direct appeal because the district court rejected the claim in a pretrial order. Although his pretrial motion to dismiss provided no specific legal basis for dismissal, citing only “racial bias” as the basis, the state’s memorandum in response to the motion argued that appellant had failed to make the prima facie showing necessary for an equal protection challenge. The district court’s order and memorandum denying appellant’s “racial bias” claim determined that there was insufficient evidence that the racial composition of the grand jury violated appellant’s “constitutional rights.” This broad ruling in response to appellant’s broad claims, coupled with the state’s understanding that appellant was making an equal protection claim, strongly indicates that appellant knew about the equal protection claim prior to his direct appeal to this court. Thus, the posteonviction court did not abuse its discretion when it determined that the Knaffla rule procedurally barred appellant from raising the claim in his petition for relief. See Hanley v. State, 534 N.W.2d 277, 279 (Minn.1995) (concluding that postconviction review is barred where appellant “knew or should have known” of claim at time of direct appeal).

We further conclude that Perry’s equal protection claim meets neither exception to the Knaffla rule. Although Perry did not argue in his briefs to this court that the exceptions apply, we address these exceptions in the interests of judicial economy.

As to the first exception, his claim is not novel. In 1996 alone — the year immediately preceding Perry’s direct appeal — two U.S. Courts of Appeals’ opinions extensively analyzed equal protection claims very similar to his. United States v. Esquivel, 88 F.3d 722, 725 (9th Cir.1996); Ricketts v. City of Hartford, 74 F.3d 1397, 1407-09 (2d Cir.1996). We have held that a claim was not novel when there were “several published cases” regarding the claim that “diligent criminal defense attorneys” would have uncovered when making a direct appeal. Ademodi v. State, 616 N.W.2d 716, 718 (Minn.2000). As to the second exception to the Knaffla rule, fairness does not require that we review a claim that Perry should have known about more than nine years ago. We have previously declined to utilize the fairness exception when the petitioner did not argue that the exception applied and when the petitioner failed to articulate facts supporting the application of the exception. Jones v. State, 671 N.W.2d 743, 746 (Minn.2003). That analysis clearly applies here. Accordingly, we hold that the postconviction court did not abuse its discretion when it invoked the Knaffla rule to bar Perry’s equal protection claim.

We turn next to Perry’s claim of ineffective assistance of counsel, an argument not made to the postconviction court. The -gist of Perry’s ineffective assistance of counsel claim is that his trial counsel erred by failing to object to the jury’s return of one signed verdict form and five unsigned forms. The district court instructed the jury on the crimes charged and then provided the jury with six possible verdict forms — one form for each of the five separate charges indicating that Perry was guilty and one form indicating that he was not guilty. The district court instructed the jury to sign one of the verdict forms and return the others unsigned. Perry apparently contends that the jury’s act of returning all of the unsigned verdict forms, in addition to returning the signed form reflecting a conviction for’ premeditated murder, is the same as the jury “returning” a verdict finding Perry guilty of each of the crimes charged. He then argues that the jury therefore convicted him of two inconsistent crimes — first-degree premeditated murdér and second-degree manslaughter. Finally, he argues that his trial counsel erred by not objecting to a sentence for first-degree murder “in light of the convictions for the lesser included offenses as well.”

In his appeal from denial of post-conviction relief, Perry did not address the effect of.the Knaffla rule on his ineffective assistance of counsel claim. If he had, it would have been difficult for him to contend that he did not know that the jury had returned five unsigned verdict forms. Additionally, it is clear that he knew that he could raise an issue of ineffective assistance of counsel on direct appeal because he did raise such a claim. Perry, 561 N.W.2d at 894. The Knaffla rule therefore bars his claim.

Nor are the exceptions to the Knaffla rule helpful to Perry. His claim is only novel because it is based on his misunderstanding that the return- of multiple unsigned verdict forms is the equivalent of inconsistent verdicts. Additionally, he articulates no reason why fairness dictates an exception to the Knaffla rule. We have declined to invoke the fairness exception to the Knaffla rule where the petitioner provides no adequate reasons for its application. E.g., Hale v. State, 566 N.W.2d 923, 926-27 (Minn.1997); Roby v. State, 531 N.W.2d 482, 484 (Minn.1995). Moreover, our own careful review of the record reveals no reason for invoking the fairness exception here.

We conclude that the Knaffla rule bars Perry’s ineffective assistance of counsel claim.

Affirmed.

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

      . This court used the term "persons of color” to describe all potential jurors who did not self-id'entify as "white” on the jury questionnaire form.

      . We note that Perry's equal protection claim relies on the same argument and statistics of minority underrepresentation as appellant’s claim in State v. Willis, 559 N.W.2d 693, 700-01 (Minn.1997). We rejected Willis's claim in that case, and Perry provides no analysis articulating why that precedent should be overturned.

      . Although issues not raised to the district court are generally waived, we analyze Perry’s claim under the Knaffla rule in the interests of judicial economy. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996); see Brookfield Trade Ctr., Inc. v. County of Ramsey, 609 N.W.2d 868, 873 n. 6 (Minn.2000) (noting that this court may address issues not otherwise ripe for appeal in the interest of justice and judicial economy).

      .Appellant does not take his argument to its logical terminus — that the jury returned a verdict of “not guilty’’ by returning that verdict form unsigned.