text:
    2003 ND 180
    STATE of North Dakota, Plaintiff and Appellee, v. Daniel Joseph KNOWELS, Defendant and Appellant.
    No. 20030093.
    Supreme Court of North Dakota.
    Dec. 2, 2003.

      Steven James Simonson of Autrey, Si-monson, Christensen, P.C., Grand Forks, for defendant and appellant; submitted on brief.
    David Thomas Jones, Assistant State’s Attorney, Grand Forks, for plaintiff and appellee; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Daniel Joseph Knowels appeals from a judgment of conviction entered upon a jury verdict finding him guilty of driving under the influence of alcohol under N.D.C.C. § 39-08-01. After the close of the State’s case-in-ehief, Knowels moved for a judgment of acquittal under N.D.R.Crim.P. 29, based on insufficient evidence. The trial court denied the motion and Knowels then presented his defense. Before submitting the case to the jury, Knowels again moved for a judgment of acquittal under N.D.R.Crim.P. 29, based on insufficient evidence. The trial court denied the motion and submitted the case to the jury. On appeal, Knowels argues there is insufficient evidence to sustain his conviction. Concluding there was sufficient evidence to support Knowels’ conviction, we affirm.

I

[¶ 2] Knowels was arrested for driving under the influence of alcohol on June 19, 2002, in Emerado, North Dakota. On the night of June 19, 2002, Knowels borrowed a vehicle from his coworker and roommate, Marty Erickson. Chief of Police Tim Gillespie noticed Knowels’ vehicle drift into the oncoming lane of traffic and continue to weave. Chief Gillespie stopped Know-els for erratic driving. Chief Gillespie noted Knowels had balance problems, bloodshot eyes, slurred speech, and smelled of alcohol. Alcohol was discovered in Know-els’ vehicle and Chief Gillespie confirmed an alcohol smell was emanating from the vehicle’s interior. Knowels testified he had poor balance because of an injured back and broken rib and his eyes were possibly bloodshot because he had recently awoken from a long sleep. He also admitted he had been drinking earlier that afternoon, but had not had a beer since approximately 2:30 p.m. Erickson testified that Knowels had a few beers, slept for several hours, awoke, ate dinner, and went back to sleep; Knowels eventually left his home at 10:30 p.m. Erickson testified Knowels did not have slurred speech or bloodshot eyes at the time he left and did not take beer with him, nor did he drink during dinner. Erickson also claimed the open containers found in the vehicle most likely belonged to him.

[¶ 3] Knowels refused all field sobriety tests. Chief Gillespie informed Knowels of the implied consent warnings, and Know-els agreed to a preliminary breath test. According to Chief Gillespie, Knowels failed to blow into the machine as instructed and did not provide a sufficient sample, possibly making the results questionable. No formal chemical testing measuring Knowels’ blood-alcohol content was performed. Knowels refused to submit to a blood test, but argues he made numerous requests for a breath test. Knowels was transported to the hospital, where he refused medical treatment for his alleged injuries.

[¶ 4] A jury trial was held on March 25, 2003. Because no chemical test was conducted, the only evidence of Knowels’ intoxication was Chief Gillespie’s testimony recounting his observations of Knowels during the traffic stop and subsequent arrest. The jury convicted Knowels of driving under the influence of alcohol, in violation of N.D.C.C. § 39-08-01.

II

[¶ 5] On appeal, Knowels argues there is insufficient evidence to convict him, primarily because there was no chemical analysis of his blood-alcohol content, aside from the preliminary breath test.

[¶ 6] Our standard of review is well established for cases in which a defendant challenges the sufficiency of the evidence to support a criminal conviction:

“In reviewing the sufficiency of the evidence to convict, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction. A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.” State v. Kunkel, 548 N.W.2d 773, 773 (N.D.1996) (quoting State v. ScMll, 406 N.W.2d 660, 660 (N.D.1987) (citations omitted)).

[¶ 7] Under North Dakota law, a person may be convicted for driving under the influence in one of two ways. Section 39-08-01 (l)(a) (1997), N.D.C.C., sets forth a per se violation, stating that a person may not drive a vehicle if “that person has an alcohol concentration of at least ten one-hundreths of one percent by weight at the time of the performance of a chemical test within two hours after the driving ... of a vehicle.” A person may also not drive a vehicle “under the influence of intoxicating liquor.” N.D.C.C. § 39-08-01(l)(b).

[¶ 8] North Dakota law does not require a chemical test to convict under N.D.C.C. § 39-08-01(l)(b). State v. Whitney, 377 N.W.2d 132, 133 (N.D.1985) (citing State v. Kimball, 361 N.W.2d 601 (N.D.1985); State v. Gawryluk, 351 N.W.2d 94 (N.D.1984); State v. Kisse, 351 N.W.2d 97 (1984)). “[T]he crime created by subsection (l)(b) is driving while under the influence of intoxicating liquor, regardless of the driver’s blood alcohol concentration.” State v. Schwab, 2003 ND 119, ¶ 8, 665 N.W.2d 52 (citing City of Minot v. Bjelland, 452 N.W.2d 348, 350 (N.D.1990)). Rather, the State must prove “the defendant, while driving a motor vehicle on a public way lacked ‘the clearness of intellect and control of himself that he would otherwise have.’ ” Whitney, 377 N.W.2d at 133 (quoting State v. Halvorson, 340 N.W.2d 176, 178 (N.D.1983)).

[¶ 9] After reviewing the evidence in the light most favorable to the verdict, we conclude the jury could reasonably have found Knowels was operating a vehicle while under the influence of intoxicating liquor, in violation of N.D.C.C. § 39-08-01(l)(b). Knowels’ arguments regarding the State’s lack of evidence of blood-alcohol content and the arresting officer’s denial of a breath test are unpersuasive. We conclude this case contains no reversible errors of law, and the verdict is supported by sufficient evidence. We affirm.

[¶ 10] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

      . Knowels initially moved "for a directed verdict acquitting the defendant” and later moved "for a directed verdict under Rule 29.” Under N.D.R.Crim.P. 29(a), the proper terminology is "motion for judgment of acquittal.” However, this Court treats a motion to direct a verdict as a motion for a judgment of acquittal under Rule 29. State v. Himmerick, 499 N.W.2d 568, 571 n. 1 (N.D. 1993) (citing State v. Holy Bull, 238 N.W.2d 52, 54 n. 2 (N.D. 1975)).

      . The North Dakota Legislative Assembly amended N.D.C.C. § 39-08-01(l)(a) in 2003. Effective August 1, 2003, it is now a per se violation for a person to drive a vehicle if "[t]hat person has an alcohol concentration of at least tea eight one-hundreths of one percent by weight at the time of the performance of the chemical test ...” 2003 N.D. Sess. Laws ch. 316, § 2.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2003 ND 185
    Gerald D. FISH, Plaintiff and Appellant, v. Neil E. DOCKTER, Defendant and Appellee.
    No. 20030080.
    Supreme Court of North Dakota.
    Dec. 2, 2003.

      Gerald D. Fish, pro se, Audubon, MN, plaintiff and appellant; submitted on briefs.
    Lolita G. Romanick, Morley Law Firm, Ltd., Grand Forks, ND, for defendant and appellee; submitted on briefs.
   SANDSTROM, Justice.

[¶ 1] Gerald D. Fish appealed, pro se, from a summary judgment dismissing his slander action against Neil E. Dockter. We hold the district court did not err in concluding Fish did not raise a genuine issue of material fact requiring a trial on his claim. We also hold the district court afforded Fish a fair hearing on the summary judgment motion, and we affirm.

I

[¶ 2] Gerald Fish was a truck driver with H & R Transfer, Inc. Ron Ristvedt and Roger Hagen own that company and also own Fargo Freightliner, where Neil Dockter, a mechanic, works as the shop manager. On March 17, 2000, Fish brought his H & R truck to Fargo Freightliner for service. Following company policy, Dockter reported to Ristvedt and Hagen that the truck was low on coolant and showed no oil on the dipstick and the truck cab inside was extremely dirty. On March 20, 2000, Fish was terminated by his employer, partly because of poor truck maintenance.

[¶ 3] Fish filed a complaint with the North Dakota Department of Labor, which issued a decision adverse to Fish. Fish also filed a federal OSHA “whistle blower” complaint for wrongful termination. At an administrative hearing on that complaint, Dockter testified regarding Fish’s maintenance of the truck. An adverse decision was also rendered against Fish in that action.

[¶ 4] Fish then sued Dockter for slander in state court. Fish claims Dockter’s statements about his truck were defamatory toward him. He asserts Dockter’s statements that Fish ran the truck six gallons low on oil were false and Dockter admitted while testifying during the administrative proceedings that Fish’s truck was only four gallons low on oil. Both parties moved for summary judgment. After a hearing, the trial court granted Dockter’s motion and summarily dismissed the lawsuit.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] On appeal, Fish asserts the trial court erred in granting Dockter’s motion to summarily dismiss the judgment, because the court decided disputed facts about which Fish was entitled to an evi-dentiary trial. We consider the merits of Fish’s appeal in the posture of summary judgment.

[¶ 7] Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and if no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result. BTA Oil Producers v. MDU Resources Group, Inc., 2002 ND 55, ¶ 11, 642 N.W.2d 873, cert, denied, 537 U.S. 974, 123 S.Ct. 436, 154 L.Ed.2d 331 (2002). When a party fails to establish the existence of a factual dispute on an essential element of his claim, on which he will bear the burden of proof at trial, summary judgment is appropriate. Balan v. Paracelsus Healthcare Corp., 2002 ND 46, ¶ 7, 640 N.W.2d 726. Whether the district court properly granted summary judgment is a question of law subject to de novo review. Id.

[¶ 8] Fish claims Dockter defamed him in reporting the condition of Fish’s truck to his employer on March 17, 2000, and in testifying at the federal administrative proceedings in December 2000 about the truck’s condition. The district court determined Dockter had a qualified immunity that he did not abuse in making the report to his employer and he had an absolute immunity while testifying at the agency proceedings and, therefore, as a matter of law, Fish failed to present a genuine issue of fact on his defamation claim against Dockter.

[¶ 9] Every person has the right of protection from defamation. Jose v. Norwest Bank North Dakota, 1999 ND 175, ¶ 23, 599 N.W.2d 293. Under N.D.C.C. § 14-02-04, civil slander is defined:

Slander is a false and unprivileged publication other than libel, which:
3. Tends directly to injure the person in respect to the person’s office, profession, trade, or business, either by imputing to the person general disqualifications in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to the person’s office, profession, trade, or business that has a natural tendency to lessen its profits.

[¶ 10] To be defamatory, a statement must be false. Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶ 33, 651 N.W.2d 625. However, there is no liability for defamatory statements that are privileged. Rykowsky v. Dickinson Public School Dist. No. 1, 508 N.W.2d 348, 351 (N.D.1993). Privilege is based upon the sound public policy that some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 78 (N.D.1991).

[¶ 11] Relevant to this appeal, N.D.C.C. § 14-02-05 defines a privileged communication as one made:

2. In any legislative or judicial proceeding or in any other proceeding authorized by law;
3. In a communication, without malice, to a person interested therein by one who also is interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information.

A

[¶ 12] The district court concluded Dockter possessed a qualified privilege for the statements he made to his employer about the condition of Fish’s truck. In considering whether an allegedly defamatory statement is subject to a qualified privilege, we undertake a two-step analysis: first, we determine whether the attending circumstances of the communication occasion a qualified privilege, and, if so, we determine whether the privilege was abused. Richmond v. Nodland, 552 N.W.2d 586, 589 (N.D.1996). Dockter reported the condition of Fish’s truck as part of his duties as shop foreman. As such, the communication was one that was reported by a person interested in the subject matter to another who was also interested in it under circumstances presenting a reasonable ground for supposing the motive of the communication was innocent and without malice. Section 14-02-05, N.D.C.C., specifically provides, “malice is not inferred from the communication or publication.” Fish has not made specific allegations or presented evidence in response to the summary judgment motion that would raise a genuine issue as to whether Dockter was acting with malice in making the statements to which Fish objects. When no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed no such evidence exists. Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Township, 2002 ND 140, ¶23, 651 N.W.2d 625. We conclude Dockter’s communication to his employer falls within the definition of qualified privileged communications under N.D.C.C. § 14-02-05(3).

[¶ 13] Having resolved that a qualified privilege exists, we next analyze whether Dockter abused the privilege. A qualified privilege is abused if statements are made with actual malice, without reasonable grounds for believing them to be true, on a subject matter irrelevant to the common interest or duty. Richmond v. Nodland, 552 N.W.2d 586, 589 (N.D.1996). Generally, actual malice and abuse of a qualified privilege are questions of fact. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 79 (N.D.1991). However, where the facts and inferences are such that reasonable minds could not differ, factual issues are questions of law. Id. From his own observations, Dockter had reasonable grounds to believe Fish’s truck was maintained with low fluid levels and had a dirty cab. Under company policy, he had reason to report it to his employer. We conclude the trial court did not err in deciding Dockter had a qualified privilege that he did not abuse in making statements to his employer about Fish’s maintenance of the truck.

B

[¶ 14] Fish claims Dockter defamed him in testifying at the federal administrative proceedings in December 2000 about Fish’s maintenance of the truck. The district court concluded Dock-ter had an absolute immunity while testifying at those proceedings. Under N.D.C.C. § 14-02-05(2) a communication is privileged when it is made “[i]n any legislative or judicial proceeding or in any other proceeding authorized by law.” See Wagner v. Miskin, 2003 ND 69, [¶]14, 660 N.W.2d 593. School board meetings are official proceedings authorized by law within the meaning of the statute such that statements made therein are privileged. Ry-kowsky v. Dickinson Public School Dist. No. 1, 508 N.W.2d 348, 351 (N.D.1993). So, too, the governmental process of hearing and granting or denying parole involves parole board meetings, which are proceedings authorized by law that come within the statute. Pulkrabek v. Sletten, 557 N.W.2d 225, 228 (N.D.1996). Similarly, the Minnesota Court of Appeals has held that communications incident to and during administrative proceedings are entitled to an absolute privilege. Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn. Ct.App.1997). We conclude the trial court did not err, therefore, in deciding that statements made by Dockter during the federal administrative hearing were entitled to an absolute privilege.

Ill

[¶ 15] Fish contends the district court denied him a full and fair hearing on his summary judgment motion. In Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46, we explained the burden of the party seeking summary judgment and of the party opposing it:

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

[¶ 16] Fish has failed to persuasively demonstrate how the district court did not afford him an appropriate opportunity to present his own motion for summary judgment or to oppose the summary judgment motion brought by Dockter. Rule 56(e), N.D.R.Civ.P., explains the nature of the affidavits which are required in supporting a motion for summary judgment and defending against it:

Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit must be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. If a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, must be entered against the adverse party.

The rule does not call for testimony at the motion hearing but rather for supplementation by depositions, answers for interrogatories, and further affidavits. There is no evidentiary weighing to be done in a summary judgment and, therefore, no reason to challenge affidavits through cross-examination. Fish has not directed the court to any language in the rules requiring the taking of testimony at the motion hearing.

[¶ 17] The court accepted and considered timely filed pleadings and affidavits and afforded the parties a full hearing prior to deciding their cross motions for summary judgment. At the close of Fish’s argument at the motion hearing, the following colloquy occurred between Fish and the court:

THE COURT: Proceed.
MR. FISH: Do I — can I cross examine Neil Dockter on his affidavit?
THE COURT: No, you may not.
MR. FISH: Okay. I’m done then. I’ll just rest on my briefs.

[¶ 18] Fish did not raise an objection to any of the court’s rulings during the motion hearing. We conclude his argument that he was denied a full and fair hearing is without merit.

IV

[¶ 19] The other issues raised by Fish on this appeal are entirely without merit and do not warrant further discussion. We affirm the summary judgment dismissing Fish’s slander action against Dockter.

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


author: VANDE WALLE, Chief Justice. SÁNDSTROM, Justice,'

text:
    2003 ND 187
    STATE of North Dakota, Plaintiff and Appellee, v. Thomas DODSON, Defendant and Appellant.
    No. 20030042.
    Supreme Court of North Dakota.
    Dec. 2, 2003.
    Rehearing Denied Jan. 14, 2004.

      Mark A. Flagstad, Assistant State’s Attorney, Minot, ND, for plaintiff and appel-lee.

      Michael R. Hoffman, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Thomas Dodson appealed district court judgments against him for possessing methamphetamine paraphernalia and possessing methamphetamine with intent to deliver. We affirm.

I

[¶ 2] On November 1, 2001, a search warrant was issued for Dodson’s residence at # 23 Parkview Trailer Court in Minot, Dodson’s person, his vehicle, and any other person present at the premises. The affidavit requesting the search warrant was prepared by Steve Niebuhr, a Minot police officer assigned to the Ward County Drug Task Force. The affidavit described the following surveillance activity. On October 23, 2001, a vehicle with license plate number GLJ439 (“GLJ439”) was observed at 541 Valley Street, Cynthia Kness’ residence. GLJ439 was registered to Cathy Ceglowski. The task force had information the vehicle was currently being used by Paul Palmer, who was on probation in Williams County and was suspected of being involved in methamphetamine labs in the Williston area. Later that afternoon, a vehicle registered to Alisia Moneada was also seen at the house. She had methamphetamine charges pending against her and had lived with John Wilkins, Jr., who had shown people in Williston and Minot how to manufacture methamphetamine. Wilkins absconded after charges were brought against him.

[¶ 3] GLJ439 was later seen at Dodson’s trailer located at # 23 Parkview Trailer Court. Niebuhr stated, “Dodson is known to be involved in the drug culture in Minot since 1991.” According to the affidavit, there had been numerous reports regarding Dodson, and one Shamra Campbell stated he “does more than his share of buying and selling methamphetamine.” When patrol officers were sent to his trailer for a domestic call, they were not allowed inside the trailer.

[¶ 4] Palmer and an unidentified male left the trailer in GLJ439 and went to Home of Economy. The unidentified male went into the store and Palmer followed later. Officer Niebuhr followed Palmer into the store. He saw the unidentified male leave with a bag and get into GLJ439. Palmer left without buying anything. The agents followed the vehicle back to Dodson’s trailer. Officer Niebuhr and another officer went back to Home of Economy and a clerk told them a man who matched the description of the unidentified male bought a 32-ounce bottle of sulfuric acid (Mr. Plumber). Sulfuric acid can be used in the production of methamphetamine.

[¶ 5] The next day a search was conducted of a garbage bag seized from the alley behind 541 Valley Street. Four tinfoil bindles with burn marks, one tinfoil bindle with no burn marks, and documents with the name Ariel Moneada were found. Alisia Moncada’s vehicle was also at the house. Monte Olson, who had been apprehended with marijuana and methamphetamine, told Officer Niebuhr that he and Kness were the main distributors of methamphetamine for Moneada and Wilkins.

[¶ 6] Four days later, another garbage bag was taken and searched from the alley behind Kness’ house. It contained four empty packages of Equate Suphedrine (24 per package) and eight foils with burned residue. Suphedrine contains one of the main precursors for methamphetamine, and “[t]he amount found at one time is indicia of the manufacturing methamphetamine (sic).”

[¶ 7] Two days later, there was a complaint from a resident of Parkview Trailer Court regarding heavy “come and go” traffic at Dodson’s trailer between 2:00 a.m. and 4:00 a.m. Two days after that, a Home of Economy employee reported the unidentified male returned and purchased Naptha, which is another precursor to manufacturing methamphetamine. The employee was shown Dodson’s picture and was “95% sure.” He was the unidentified male who purchased the Naptha and sulfuric acid. The employee gave Officer Niebuhr the license plate number, GTY578, of the vehicle Dodson was driving and described it as a 15-year-old blue vehicle. Dodson owns a blue 1987 Olds Cutlass with license plate number GPY578.

[¶ 8] Based upon the information provided, a search warrant was issued and Dodson was arrested as a result of the evidence seized during the search. Dodson moved to suppress the evidence. The district court denied his motion because it found the affidavit established probable cause, and even if it did not, the good faith exception to the exclusionary rule applied. Dodson entered conditional guilty pleas, reserving his right to appeal.

II

[¶ 9] Dodson contends the evidence discovered while conducting the search should have been suppressed because there was no probable cause to issue the warrant. The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution require searches and seizures to be reasonable and warrants to be issued only upon a showing of probable cause. The existence of probable cause is a question of law. State v. Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. “Probable cause to search exists ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.’ ” State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (quoting State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995)).

[¶ 10] The totality-of-the-eir-cumstances test is used to determine whether sufficient evidence was presented to a magistrate to establish probable cause, independent of the trial court’s findings: State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912.

“Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, ‘ “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... which is not weighed in individual layers but in the ‘laminated’ total.” ’ ”

Id. (citations omitted). The magistrate evaluates all the evidence and makes a practical, common sense decision whether probable cause exists to search a particular place. Id. at ¶ 6. We generally defer to a magistrate’s determination of probable cause if there was a substantial basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate’s determination. Id.

A.

[¶ 11] There must be a nexus between the place to be searched and the contraband sought. State v. Lewis, 527 N.W.2d 658, 662 (N.D.1995). In this case, the contraband sought by the warrant was:

Unlawful controlled substances including but not limited to marijuana, methamphetamine, drug paraphernalia, documents reasonably associated with drug trafficking, methamphetamine manufacturing, residency and U.S. currency reasonably associated with drug trafficking, electronic equipment used for storing recipes for manufacturing, equipment and ingredients commonly used for manufacturing and/or drug trafficking activity, which may constitute evidence of a criminal offense.

The affidavit stated GLJ439, which was being used by Paul Palmer, was located at 541 Valley Street and Dodson’s trailer on the same day Dodson purchased sulfuric acid; burnt bindles and Equate Suphed-rine were found in the garbage at 541 Valley Street; individuals charged with drug-related offenses were associated with 541 Valley Street; and Monte Olson stated he and the owner of 541 Valley Street distributed methamphetamine. This information does not establish a sufficient nexus between # 23 Parkview Trailer Court and the contraband sought.

[¶ 12] Circumstantial evidence may establish the nexus between a place to be searched and the contraband sought. State v. Hage, 1997 ND 175, ¶ 20, 568 N.W.2d 741. However, the fact GLJ439 was at 541 Valley Street and # 23 Parkview Trailer Court on the same day, which was prior to any evidence of drug activity being discovered at 541 Valley Street, does not provide a sufficient link between the two locations from which conduct occurring at 541 Valley Street can cast a degree of suspicion upon # 23 Park-view Trailer Court. See State v. Mische, 448 N.W.2d 415, 421 (N.D.1989) (finding that ample evidence the defendant was involved in criminal activity at one location was not enough to establish probable cause to search his residence). The evidence regarding 541 Valley Street would not lead a person of reasonable caution to believe the contraband sought would be located at

#23 Parkview Trailer Court. See id. at 420 (citing State v. Metzner, 338 N.W.2d 799, 804 (N.D.1983)). Therefore, the evidence discovered during the garbage bag searches, the association evidence regarding Alisia Moneada and John Wilkins, Jr., and the information provided by Monte Olson, while creating suspicion of drug activity, do not together establish probable cause regarding # 23 Parkview Trailer Court. As a result, we consider whether the other evidence provided in the affidavit established probable cause to issue the search warrant for # 23 Parkview Trailer Court.

B.

[¶ 13] The affidavit contained information that Palmer and Dodson went to Home of Economy, where Dodson purchased a 32-ounce container of Mr. Plumber, which can be used in the process of manufacturing methamphetamine. It stated Palmer was on probation in Williams County and suspected to be involved in methamphetamine labs in Williston. Officer Niebuhr also stated Dodson was known to be involved in the drug culture in Minot and numerous reports regarding him had been received, including a report from Shamra Campbell that Dodson “does more than his share of buying and selling methamphetamine.”

[¶ 14] Dodson claims the information regarding his reputation is conclu-sory. “[Statements of reputation or unsupported conclusions and allegations are insufficient to establish probable cause” unless they are supported by “specific underlying circumstances.” State v. Ennen, 496 N.W.2d 46, 50 (N.D.1993) (citing State v. Handtmann, 437 N.W.2d 830, 835 (N.D.1989) and State v. Erickson, 496 N.W.2d 555, 558 (N.D.1993)). The statement regarding Dodson’s reputation in this case is similar to the reputation information presented in Ennen. In Ennen, the officer stated in his affidavit, “Based upon my investigation of the Ray, North Dakota area, I have determined that Mr. Patrick Ennen is a known drug user.” Id. at 48. This Court determined the statement could not be used to support probable cause because there was no evidentiary support for the statement. Id. at 50.

[¶ 15] The reports regarding Dodson and the statement by Shamra Campbell do not provide the necessary evidentiary basis in this case.

We have presumed the reliability of citizen informants and said their reliability should be evaluated from the nature of their report, their opportunity to observe the matters reported, and the extent to which it can be verified by independent investigation. Furthermore, observations of fellow law enforcement officers involved in a common investigation are also considered a reliable basis in a magistrate’s probable cause determination. Despite this general rule of police officer reliability, “unnecessarily long chains of information passed through police channels” should be avoided, and an officer directly involved with the investigation and knowledgeable about the facts should be the affiant on the warrant application.

Hage, 1997 ND 175, ¶ 16, 568 N.W.2d 741 (citations omitted). In this case, there was no information provided from which the magistrate could determine Shamra Campbell’s reliability or the nature of the intelligence reports. Therefore, the statements regarding Dodson’s reputation, the intelligence reports, and the statement by Shamra Campbell do not raise a significant degree of suspicion regarding Dodson.

[¶ 16] Likewise, the information provided regarding Palmer is not enough to establish probable cause. In Thieling, we evaluated an affidavit which included information from various officers that people suspected of being involved in the drug trade or who were associated with people involved in the drug trade visited the defendant’s home. 2000 ND 106, ¶ 11, 611 N.W.2d 861. We stated, “ ‘[M]ere suspicion that persons visiting the premises are connected with criminal activity will not suffice’ for issuance of a warrant to search the premises.” Id. at ¶ 12 (quoting 2 Wayne R. LaFave, Search and Seizure § 3.7(d), at 374 (3d ed.1996)). This Court found the information regarding Thieling’s associations in connection with the other minimal evidence of drug activity was at most a very thin layer in the probable cause analysis. Id. Similarly, in this case, the information regarding Palmer when considered with the other minimal evidence of drug activity occurring at #23 Parkview Trailer Court, does not give rise to a significant degree of suspicion and is at most a “very thin layer to be measured in the probable cause analysis.” Id.

C.

[¶ 17] Dodson argues the information regarding the purchase of Mr. Plumber and Naptha was not sufficient to establish probable cause because Naptha and Mr. Plumber are innocent items. The relevant inquiry is not whether conduct is innocent or guilty, but what degree of suspicion attaches to it. Illinois v. Gates, 462 U.S. 213, 245, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Guthmiller, 2002 ND 116, ¶ 13, 646 N.W.2d 724. Mr. Plumber and Naptha have common legal uses. Each product can also be used in the process of manufacturing methamphetamine. The simultaneous purchase of innocent items can become suspicious under circumstances indicating the items will be used to manufacture drugs. See State v. Ballweg, 2003 ND 153, ¶21, 670 N.W.2d 490. However, Dodson purchased one 32-ounce bottle of Mr. Plumber and a container of Naptha. The information provided regarding the purchases does not cause a great degree of suspicion because there is minimal other evidence of drug activity-occurring. See Lewis, 527 N.W.2d at 662-63 (holding that buying indoor growing supplies and covering up windows in the winter was as consistent with growing marijuana as it was with attempting to grow other plants indoors); see also Ball-weg, at ¶ 21.

D.

[¶ 18] The information provided to the magistrate in this case was sufficient to cause suspicion and warrant further investigation. However, the combined layers did not establish probable cause to believe the contraband sought would be found in the places to be searched. Therefore, there was no probable cause to issue the search warrant under the Fourth Amendment of the United States Constitution.

Ill

[¶ 19] Absent an exception, “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The trial court found the good faith exception to the exclusionary rule applied in this case. Dodson argues the tenuous nature of the affidavit was not enough for an officer to objectively rely on it.

[¶ 20] The good faith exception to the exclusionary rule under the Fourth Amendment of the United States Constitution was recognized by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Court held exclusion of evidence is not the proper remedy when an officer has acted in good faith upon objectively reasonable reliance that a warrant was properly issued by a neutral and detached magistrate. Id. at 922, 104 S.Ct. 3405. We have summarized four situations in which reliance cannot be objectively reasonable under Leon as:

(1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.

State v. Herrick, 1999 ND 1, ¶ 15, 588 N.W.2d 847 (citing Leon, at 923, 104 S.Ct. 3405). The basis of the good faith exception is that if an officer reasonably relies on a warrant in good faith, there is no police misconduct to deter. Leon, at 916, 104 S.Ct. 3405. It is not used to deter misconduct of judges or magistrates. Id.

[¶ 21] Dodson has not sufficiently raised an argument that the North Dakota Constitution precludes application of the good faith exception to the state’s exclusionary rule, notwithstanding its application under the federal constitution. See State v. Van Beek, 1999 ND 53, ¶ 26 n. 4, 591 N.W.2d 112. Previously, we have only applied the good faith exception in cases under N.D.C.C. § 19-03.1-32(3), which involves no-knock search warrants. Herrick, at ¶ 27 (“we do not decide if in fact North Dakota does provide greater state constitutional protections than the Fourth Amendment, and if so, whether such heightened protection would preclude a good-faith exception to North Dakota’s exclusionary rule”). So too, we do not decide whether we will adopt the good faith exception in this case where federal precedent controls because a state constitutional argument was not raised. See State v. Hughes, 1999 ND 24, ¶ 5, 589 N.W.2d 912 (concluding evidence was admissible under federal precedent regarding the good faith exception when the defendant did not sufficiently raise an argument that the “State Constitution affords greater protection than the Federal Constitution”); State v. Garrett, 1998 ND 173, ¶ 9 n. 1, 584 N.W.2d 502 (adhering to the position that the state and federal constitutions will be treated synonymously when no argument was raised based on the State Constitution); State v. Johnson, 531 N.W.2d 275, 280 (N.D.1995) (using the less restrictive federal test regarding the inevitable discovery doctrine when the state test required an additional element because only a federal constitutional issue had been raised and “we may not engraft our good-faith requirement onto federal Fourth Amendment law5’); see also State v. Thomas, 540 N.W.2d 658, 666 (Iowa 1995) (noting the Iowa Supreme Court had not addressed the good faith exception in regards to the state constitution, but considering its effect on a violation of the Fourth and Fourteenth Amendments to the United States Constitution).

A.

[¶ 22] In Arkansas v. Sullivan, the United States Supreme Court held:

The Arkansas Supreme Court’s alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court’s own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). There, we observed that the Oregon Supreme Court’s statement that it could “ ‘interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court’ ” was “not the law and surely must be inadvertent error.” Id. at 719, n. 4, 95 S.Ct. 1215. We reiterated in Hass that while “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards,” it “may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.” Id. at 719, 95 S.Ct. 1215.

532 U.S. 769, 772, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001). Therefore, we are required to apply the good faith exception to the exclusionary rule under the Fourth Amendment when evaluating a federal constitutional claim because, if we do not, we will be imposing greater restrictions on police activity when the United States Supreme Court specifically refrained from doing so in Leon.

[¶ 23] We are also required to apply the good faith exception to the exclusionary rule under the Fourth Amendment in the same manner as the federal courts apply it. The United States Supreme Court has expressed the importance of uniformity in federal law. Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Long, the Court held a search of a vehicle’s passenger compartment was reasonable under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and other Supreme Court decisions. Long at 1035, 103 S.Ct. 3469. In reaching this holding, the Court had to determine whether the state court judgment appealed from rested on independent state grounds. The Court observed that state courts often have to apply federal constitutional standards and in doing so they create a “considerable body of ‘federal law.’ ” Id. at 1042, 103 S.Ct. 3469. The Court found:

“It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action.”

Id. at 1041, 103 S.Ct. 3469 (quoting Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 84 L.Ed. 920 (1940)). Long requires the Court to accept that a state court decision is decided a certain way because the state court believes federal law so requires when the decision “fairly appears to rest primarily on federal law ... and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Id. at 1040-41,103 S.Ct. 3469.

[¶ 24] In an appeal from the Arizona Supreme Court, the United States Supreme Court applied the standard from Long in a case involving the good faith exception. Arizona v. Evans, 514 U.S. 1, 7-8, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (responding to a contention that the Court lacked jurisdiction because the good faith issue was decided pursuant to an Arizona statute). In finding it had jurisdiction to review the case, the Court stated, “State courts, in appropriate cases, are not merely free to — they are bound to — interpret the United States Constitution. In doing so, they are not free from the final authority of this Court.” Id. at 8-9. In response to the dissent’s position that the state courts need to be able to serve as laboratories for novel legal issues, the Court found Arizona was now freer to do so because it no longer had an erroneous view of what the United States Constitution required. Id. at 8, 115 S.Ct. 1185. The Court determined the Arizona Supreme Court’s decision was based on federal law because it did not offer a plain statement that state law was being applied and the Arizona court primarily cited Leon in its holding. Id. at 9-10.

[¶ 25] In Evans, the police had performed a search pursuant to an arrest warrant that had been quashed. Id. at 4, 115 S.Ct. 1185. However, the court personnel responsible for informing the police that the warrant was no longer valid did not do so. Id. at 5,115 S.Ct. 1185. Officers arrested the defendant based on the warrant and performed a search of his automobile. Id. at 4-5, 115 S.Ct. 1185. The Arizona Supreme Court found the evidence should have been suppressed. It stated that it could not “ ‘support the distinction drawn ... between clerical errors committed by law enforcement personnel and similar mistakes by court employees,’ and that ‘even assuming ... that responsibility for the error rested with the justice court, it does not follow that the exclusionary rule should be inapplicable to these facts.’ ” Id. at 14, 115 S.Ct. 1185 (quoting State v. Evans, 177 Ariz. 201, 866 P.2d 869, 871 (1994)). Relying on the framework from Leon, the Court reversed. The Court determined the holding was contrary to its decisions applying the good faith exception because it would not deter police misconduct and there was no reason to believe there would be a substantial effect on the court employees responsible for the error. Id. at 14-15,115 S.Ct. 1185.

[¶ 26] Although the facts of Evans are not particularly analogous to this case, the application of the good faith exception to the Arizona court’s judgment illustrates that state courts are to apply the good faith exception to the exclusionary rule under the Fourth Amendment in a manner that is consistent with United States Supreme Court precedent when evaluating a violation of the Fourth Amendment. Additionally, this Court and other state courts have stated federal precedent is controlling when evaluating the good faith exception under the Fourth Amendment. Hughes, 1999 ND 24, ¶ 5, 589 N.W.2d 912 (“Federal precedent controls” when the defendant does not properly raise a state constitutional issue); see also Thomas, 540 N.W.2d at 666 (“In assessing Fourth Amendment violations, this court is bound by federal law”); State v. Saiz, 427 N.W.2d 825, 828 (S.D.1988) (“the Fourth Amendment question in this case is controlled by Leon ”).

B.

[¶ 27] There is a strong preference for officers to obtain search warrants. See Leon, 468 U.S. at 913-14, 104 S.Ct. 3405.

Because a search warrant “provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime,’ ” United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)), we have expressed a strong preference for warrants and declared that “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fail.” United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

Leon at 913-14, 104 S.Ct. 3405. In this case, we have determined the information provided in the affidavit did not rise to the level of establishing probable cause for the magistrate to issue the search warrant. However, the information when taken in its entirety was not so lacking in indicia of probable cause that Officer Niebuhr could not reasonably rely on the judgment of the issuing magistrate. See United States v. Carpenter, 341 F.3d 666, 671 (8th Cir.2003) (“It is sufficient to note that [the defendant] raises a close question concerning a legal deficiency. On such issues, officers may reasonably rely on the judgment of the issuing magistrate”). In this case, Officer Niebuhr sought approval of a search warrant from a neutral and detached magistrate. Relying on that magistrate’s determination that the warrant established probable cause was not objectively unreasonable. Therefore, the evidence was properly admitted under Leon because there was no police misconduct to deter.

[¶ 28] For the reasons stated herein, the judgments of the trial court are affirmed.

■ [¶ 29] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

SÁNDSTROM, Justice,'

concurring specially.

[¶ 30] Although this Court may, in an appropriate case, interpret a provision of our State Constitution differently than the United States Supreme Court has interpreted a parallel provision of the United States Constitution, this Court’s interpretation must be based on the history of the document, not the individual philosophy or views of the justices. As Justice Vande-Walle wrote in his special concurrence in State v. Ringquist, 433 N.W.2d 207, 217 (N.D.1988):

Although I agree we need not merely echo the United States Supreme Court in applying our own constitutional provisions which are identical to the Federal Constitution, I cannot agree that the interpretation and application of those provisions should merely reflect the philosophy or views of the particular justices who happen to be sitting at the time the issue of the application and interpretation of our State Constitution is raised.

[¶ 31] The proceedings of the North Dakota Constitutional Convention offer no support for the contention that the drafters of our State Constitution intended greater protections for criminal defendants than those provided by the United States Constitution, except to extend those protections to state court proceedings. As I explained in my concurrence in State v. Herrick, 1999 ND 1, ¶¶ 33-36, 588 N.W.2d 847:

“The framers of North Dakota’s Constitution must have intended more protection under the North Dakota Constitution’s unreasonable searches and seizures clause than that of the Fourth Amendment to the United States Constitution, because otherwise the state provision is a meaningless redundancy.” So goes the argument. What the argument lacks is historical perspective.
From its adoption, the Fourth Amendment of the United States Constitution was considered a limitation only on the federal government. It was not until 1961 that the United States Supreme Court, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), extended “the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized” to the states. Duncan v. Louisiana, 391 U.S. 145, 148 and n. 6, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
When the framers of North Dakota’s Constitution included an unreasonable searches and seizures clause, they were prohibiting the state from doing what the federal government was prohibited from doing. In view of then current federal constitutional jurisprudence, our framers were providing a real protection that would otherwise have been lacking.
A review of the entire proceedings of our State Constitutional Convention offers not one word of support for the concept that the framers intended to do anything other than prohibit the state from doing what the federal government was prohibited from doing. Official Report of the Proceedings and Debates of the First Constitutional Convention of North Dakota (1889); Journal of the Constitutional Convention for North Dakota (1889).

[¶ 32] This Court recently unanimously reaffirmed that we look to historical context in interpreting the meaning of guarantees in our State Constitution. See, e.g., State v. $17,515.00 in Cash Money, 2003 ND 168, ¶ 6, 670 N.W.2d 826 (citations omitted):

N.D. Const, art. I, § 13 ... provides: “The right of trial by jury shall be secured to all, and remain inviolate.” This provision neither enlarges nor restricts the right to a jury trial, but merely preserves the right as it existed at the time of the adoption of our constitution.

[¶ 33] Relating to search and seizure, Justice VandeWalle noted in his Ringquist special concurrence:

[T]he language of our State Constitution, Article I, Section 8, does not significantly differ from the Fourth Amendment language of the United States Constitution. It seems enigmatic to, on the one hand, observe that the history of our State Constitution reveals an intention to make its provisions of basic rights broader than those in the Federal Constitution and, on the other hand, recognize that prior to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), evidence obtained through a search and seizure without legal justification was admissible if it tended to prove that the defendant committed an offense. State v. Lacy, 55 N.D. 83, 212 N.W. 442 (1927).

Ringquist, 433 N.W.2d at 217.

[¶ 34] In the final analysis, we must remember that we who at this time hold these positions of responsibility are not the law, but servants of the law.

[¶ 35] Dale V. Sandstrom


author: GILBERTSON, Chief Justice.

text:
    2003 SD 132
    Danny GOODROAD, Petitioner, v. Doug WEBER, Warden, South Dakota State Penitentiary, Tim Reisch, Secretary of Corrections, Larry Long, Attorney General, State of South Dakota, Respondents.
    No. 22919.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 2, 2003.
    Decided Nov. 5, 2003.

      Danny Goodroad, Pro se.
    Lawrence E. Long, Attorney General, Patrick T. Smith, Davison County State’s Attorney, and Chris A. Nipe, Davison County Special Deputy State’s Attorney, Mitchell, South Dakota, for respondents.
   GILBERTSON, Chief Justice.

[¶ 1.] Danny Goodroad has filed a motion for a certificate of probable cause to appeal the circuit court’s denial of habeas corpus relief from his various criminal convictions. We deny the motion.

FACTS

[¶ 2.] Goodroad was convicted of driving while under the influence, false person-ation, receiving stolen property and as a habitual offender in the circuit court for Davison County with Judge McMurchie presiding. Goodroad appealed and his convictions and thirty-seven year penitentiary sentence were affirmed by this Court in a decision entered April 30, 1997. See State v. Goodroad, 1997 SD 46, 563 N.W.2d 126. After the direct appeal, attorney Michael Thompson represented Goodroad in a habeas corpus action in Davison County. Circuit Judge Lee Anderson presided over the case and ultimately denied Goodroad relief.

[¶ 3.] On April 23, 2003, Goodroad filed a second application for a writ of habeas corpus in Davison County. This application was filed pro se. Judge Anderson again presided over the matter and denied relief on June 16. Goodroad subsequently sought a certificate of probable cause from Judge Anderson for purposes of bringing an appeal, but the certificate was denied in an order dated July 7. Goodroad now seeks a certificate of probable cause from this Court.

ANALYSIS

[¶ 4.] Judge Anderson denied Goodroad’s second application for a writ of habeas corpus on the basis of SDCL 21-27-16.1 which requires that all grounds for habeas corpus relief be raised in the original application. Grounds not raised in the original application cannot be raised in a subsequent application unless the court finds “reasonable cause” for their omission from the original application. Id. In Jackson v. Weber, 2001 SD 136, 637 N.W.2d 19, this Court held that “reasonable cause” is established by a showing of ineffective assistance of counsel in the original habeas corpus proceeding.

[¶ 5.] Goodroad contended that his original habeas counsel was ineffective in presenting a claim that his counsel on direct appeal was ineffective for failing to rely on a proportionality study in arguing that his sentence was cruel and unusual. Judge Anderson rejected the argument finding that counsel’s lack of reliance on the study was non-prejudicial because this Court held in the direct appeal that the sentence was not shocking to the conscience and did not “activateO a proportionality review.” See Goodroad, 1997 SD 46 at ¶ 40, 563 N.W.2d at 135. According to settled law at the time of the direct appeal, Judge Anderson could reach no other conclusion. See e.g. State v. Anderson, 1996 SD 46, ¶ 29, 546 N.W.2d 395, 402 (first step in reviewing constitutional challenge to sentence is determining whether it shocks the conscience so as to activate Eighth Amendment proportionality tests). Accord State v. Pulfrey, 1996 SD 54, ¶ 7, 548 N.W.2d 34, 36. Moreover, settled law at the present time would require no different result. See State v. Guthmiller, 2003 SD 83, ¶43, 667 N.W.2d 295, 309 (if sentence does not appear “grossly disproportionate,” no further review is necessary).

[¶ 6.] Based upon the foregoing, to whatever extent counsel was deficient in the original habeas corpus action, the deficiency was non-prejudicial because no different result could have been achieved. See Strickland, supra. Therefore, the deficient performance did not rise to the level of ineffective assistance of counsel. See id. Absent a showing of ineffective assistance of counsel in the original habeas corpus action, Goodroad’s second action was barred by SDCL 21-27-16.1 and Judge Anderson appropriately denied Goodroad relief. See Jackson, supra.

[¶ 7.] Goodroad questions the propriety of Judge Anderson presiding over both his original and his second habeas corpus action. In that regard, he cites SDCL 21-27-14.1:

The application shall be heard before any judge of the court in which the conviction took place. A record of the proceedings shall be made and kept. There may be no proceedings on an application by a judge who imposed sentence on the applicant or who otherwise denied him relief concerning the subject matter involved in the application, (emphasis added).

[¶ 8.] Respondents contend that this statute only prohibits habeas corpus proceedings from being conducted by the original trial court judge. This Court has recognized that, under SDCL 21-27-14.1, a judge who presides at trial cannot preside at a state habeas corpus hearing. See State v. Phipps, 406 N.W.2d 146, 150 n. 2 (S.D.1987). However, the statute is not limited to that situation. Not only does it prohibit habeas corpus proceedings by the “judge who imposed sentence,” but also by any other judge who has “otherwise denied [the applicant] relief concerning the subject matter involved in the application.” A plain reading of this language includes a judge who has previously denied an applicant habeas corpus relief from his criminal conviction. See State v. Brassfield, 2000 SD 110, ¶ 14, 615 N.W.2d 628, 632 (statutes must be given their plain meaning and effect).

DECISION

[¶ 9.] Based upon the plain language of SDCL 21-27-14.1, Judge Anderson should not have presided over Goodroad’s second habeas corpus action. Nevertheless, no prejudice resulted from his participation. Judge Anderson reached the only result possible in denying Goodroad’s second application because the application clearly had no merit under settled law. Thus, Judge Anderson’s participation in this particular case is not alone sufficient to warrant issuance of a certificate of probable cause that an appealable issue exists. Accordingly, the motion for issuance of a certificate of probable cause is denied.

[¶ 10J SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . SDCL 21-27-16.1 provides in full:
      All grounds for relief available to a petitioner under this chapter shall be raised in his original, supplemental or amended application. Any ground not raised, finally adjudicated or knowingly and understanding^ waived in the proceedings resulting in his conviction or sentence or in any other proceeding that the applicant has taken to secure relief from his conviction, or sentence, may not be the basis for a subsequent application, unless the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original, supplemental or amended application.

        . Under Jaclcson, supra, counsel's effectiveness in a prior habeas corpus proceeding is determined according to the two part standard set forth in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that standard, a showing of ineffectiveness requires a showing that counsel’s performance was deficient and that the deficient performance prejudiced the defense.


author: SABERS, Justice.

text:
    2003 SD 131
    STATE of South Dakota, Plaintiff and Appellee, v. Matthew DUCHENEAUX, Defendant and Appellant.
    No. 22776.
    Supreme Court of South Dakota.
    Argued Oct. 6, 2003.
    Decided Nov. 5, 2003.

      Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, Attorneys for plaintiff and appellee.
    Darren Magee, Public Defender’s Office, Sioux Falls, Attorney for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Matthew Ducheneaux was charged with possession of marijuana. The magistrate judge ruled that Duche-neaux was entitled to use the affirmative defense of necessity under SDCL 22-5-1. The State appealed the decision to the circuit court. The circuit court reversed and Ducheneaux attempted to appeal to this Court. After this Court dismissed his appeal, Ducheneaux was tried and convicted by a jury in magistrate court. The circuit court denied his appeal and Duche-neaux appeals. We affirm.

FACTS

[¶ 2.] On July 15, 2000, Officer Vinson Weber of the Minnehaha County Police Reserve Unit was patrolling the Yankton Trail Park in Sioux Falls during the city’s annual “Jazz Fest.” As Officer Weber rode his bicycle on the bike path, he noticed a cloud of smoke and an odor of marijuana. Officer Weber testified that he observed Ducheneaux passing a marijuana cigarette to another man while exhaling smoke. When questioned, Ducheneaux informed the officer that he had a prescription for the marijuana and handed Officer Weber a pill bottle labeled as a prescription for Ducheneaux for the drug Diazepam. The bottle contained pills and marijuana cigarettes. Ducheneaux was arrested and charged under SDCL 22-42-6 with possessing less than two ounces of marijuana.

[¶ 3.] Ducheneaux is 36 years old and was rendered quadriplegic by an automobile accident in 1985. His paralysis is nearly complete except that he has some movement in his hands. Ducheneaux suffers from a condition called spastic paralysis, which causes him to experience spastic tremors and pain throughout his body. His condition is a result of his quadriplegia and is therefore incurable. The only option for Ducheneaux is to treat the symptoms.

[¶ 4.] Ducheneaux testified that he has not had success with traditional drug therapies. The magistrate noted that other drugs have “created intolerable and possible fatal side-effects.” Among the legal prescription drugs sometimes used for spastic paralysis is Marmol, a synthetic tetrahydrocannabinol (THC). THC is the essential active component in marijuana. Although Ducheneaux has a prescription for Marinol, he feels that it produces dangerous side effects without the benefits of natural marijuana.

[¶ 5.] Ducheneaux testified that he was authorized in 1993 to obtain natural marijuana from the federal government through the Investigational New Drug (IND) program. Through this mechanism, the federal government currently allows eight individuals nationwide to access marijuana for medical purposes. Ducheneaux testified that in order to obtain the marijuana, he needed to find a local pharmacy willing to fulfill the responsibility of storing, securing and dispensing the federally issued marijuana. He claims he was unable to find such a pharmacy, but does not specify his efforts in that respect. There is no evidence in the record other than Ducheneaux’s testimony to verify his authorization through the IND. His claim is questionable given the fact that the IND program was suspended and ceased taking applications in 1992. Kuromiya v. U.S., 78 F.Supp.2d 367 (E.D.Pa.1999) (describing termination of the individual IND program). Regardless, his alleged authorization through the IND compassionate use program is irrelevant because the marijuana in his possession was not issued to him through that program.

[¶ 6.] Based on his determination that all of his legal options were unacceptable, Ducheneaux decided to illegally purchase and use whole marijuana instead.

[¶ 7.] The magistrate ruled that the affirmative defense of necessity under SDCL 22-5-1 was available to Ducheneaux. The circuit judge reversed the magistrate and Ducheneaux petitioned this Court for an intermediate appeal, but the petition was not accepted. Thereafter, a jury trial was held in magistrate court and Ducheneaux was convicted of possession of two ounces or less of marijuana.

[¶ 8.] Ducheneaux appeals his conviction raising one issue:

Whether the affirmative defense of necessity under SDCL 22-5-1 encompasses a defense of medical necessity against a charge of possession of marijuana.

We affirm.

STANDARD OF REVIEW

[¶ 9.] Statutory construction is a question of law which we review de novo. Christensen v. Carson, 533 N.W.2d 712, 714 (S.D.1995) (additional citation omitted). “We determine the intent of a statute from the statute as a whole, from its language, and by giving it its plain, ordinary and popular meaning.” Id. Application of a statute to particular facts is also a question of law which we review de novo. State v. Talarico, 2003 SD 41, ¶ 10, 661 N.W.2d 11, 16 (citations omitted).

[¶ 10.] WHETHER THE AFFIRMATIVE DEFENSE OF NECESSITY UNDER SDCL 22-5-1 ENCOMPASSES A DEFENSE OF MEDICAL NECESSITY AGAINST A CHARGE OF POSSESSION OF MARIJUANA.

[¶11.] SDCL 22-5-1 provides:

A person may not be convicted of a crime based upon conduct in which he engaged because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been lawfully unable to resist.

The defense of necessity is an affirmative defense and as such, “requires the defendant to present credible evidence in its support prior to submission to the trier of fact.”. State v. Bowers, 498 N.W.2d 202, 205-206 (S.D.1993) (citing State v. Rome, 452 N.W.2d 790 (S.D.1990)); SDCL 22-1-2(3). We have established a standard for determining whether a necessity defense under SDCL 22-5-1 is submissible to a jury:

[T]he defense of necessity [is] properly raised when the offered evidence, if believed by the jury, would support a finding by them that the offense ... was justified by a reasonable fear of death or bodily harm so imminent or emergent that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the desirability of avoiding the public injury arising from the offense committed[.]

State v. Boettcher, 443 N.W.2d 1, 2 (S.D. 1989) (citing State v. Miller, 313 N.W.2d 460, 462 (S.D.1981) (additional citations omitted)). The analysis requires the court to “examine [ ] the circumstances surrounding the crime based on a reasonable person standard.” Miller, 313 N.W.2d at 462. In order to submit the defense to the jury, the defendant must show that he had a “reasonable fear of death or bodily harm imminent or emergent” at the time he engaged in the unlawful act. Boettcher, 443 N.W.2d at 2 (citing State v. Watkins, 316 N.W.2d 627 (S.D.1982)).

[¶ 12.] Ducheneaux argues that he can predict when an attack or spasm is coming and that a jury could reasonably find that his fear of such an attack is reasonable. He contends that his concern over the health consequences of traditional treatments also amounts to “fear of imminent or emergent bodily harm.” Based on these fears, Ducheneaux asserts that a jury could reasonably find that his possession of marijuana was justified under SDCL 22-5-1 because he had done everything in his power to control his condition and maintain his health and smoking marijuana was his only remaining option.

[¶ 13.] While Ducheneaux’s arguments are somewhat compelling in light of our interpretive language, they fail when compared to the plain language of the statute. Regardless of how reasonable his actions may have been, it is still necessary that the actions fall within the scope of the statute. If his unlawful behavior is not encompassed by the statute, then the magistrate erred as a matter of law in ruling that the defense was available. The statute requires a showing that the defendant committed the crime “because of the use or threatened use of unlawful force upon him or upon another person,” and that the he was “lawfully unable to resist.” SDCL 22-5-1. The circumstances of this case do not meet these elements.

[¶ 14.]Ducheneaux cannot show that he engaged in the crime because of the “use or threatened use of unlawful force upon him.” The only “force” threatened or used in this situation is that which his medical condition forces his muscles to exert. To find that his spastic paralysis constitutes “unlawful force” strains the language of the statute. The statutory language clearly implies force or threat of force by another actor and requires that the force or threat of force be unlawful. See Bowers, 498 N.W.2d at 206 (abortion protestors denied necessity defense because abortion does not constitute unlawful force). Every South Dakota case in which this Court has found SDCL 22-5-1 applicable involves force from an outside actor. See e.g. Boettcher, 443 N.W.2d at 3 (defense available where evidence, if believed by the jury, would show that defendant had a fear of imminent bodily harm to her child in the form of sexual abuse); Miller, 313 N.W.2d at 462 (evidence that inmate feared being harmed in prison was sufficient to allow him to assert the defense); State v. Rome, 452 N.W.2d 790, 792-793 (S.D.1990) (indications that child was being abused was sufficient to permit justification defense by parent against a child-napping charge). Furthermore, even assuming he has shown the requisite force, Dueheneaux cannot show that any such force was “unlawful.” Laws govern the actions or inactions of people, not medical conditions. See SDCL 22-1-8 (“No act or omission shall be deemed criminal or punishable except as prescribed or authorized by this title or by some other statute of this state.”). It would be a strained interpretation of SDCL 22-5-1 to hold that its language supports the construction that a medical condition can exert unlawful force against a person.

[¶ 15.]Ducheneaux also fails to show that the “force” at issue was one which he was “lawfully unable to resist.” Although he testified that traditional medications have unwanted and detrimental side effects, Du-cheneaux had legal means to combat the pain and spasms accompanying his condition. As noted at his trial, his doctors prescribed several medications for his condition, including Marinol, the legal form of THC, and valium. His belief that his alternative treatments are inferior is insufficient justification for choosing an illegal remedy. See e.g. State v. Tate, 102 N.J. 64, 75, 505 A.2d 941, 946-947 (1986) (noting that, “[sjince a legal alternative was available, the illegal alternative was not necessary, and the resort to it was not justified”).

[¶ 16.]Clearly, this is not the typical possession of marijuana case. The Court is not unmoved by Matthew Ducheneaux’s circumstances. However, the Court is bound to act within the realm of its authority. We cannot judicially graft language into SDCL 22-5-1 to permit it to be used in these circumstances. The question whether a defense of necessity applies against a possession of marijuana charge when the marijuana is alleged to be medically necessary is legislative. The Legislature has clearly spoken on the issue of marijuana possession in SDCL 22-42-6 which provides in part, “[n]o person may knowingly possess marijuana.” (Emphasis supplied.) The language is unequivocal and therefore, whether such a defense is allowed in South Dakota remains a question of policy best answered by the State Legislature. The Legislature has given no indication that it recognizes this defense under SDCL 22-5-1 and the Court cannot take it upon itself to judicially legislate the defense.

[¶ 17.] Moreover, we have previously noted, “South Dakota grants no authority, by statute or precedent, for medicinal use of marijuana.” State v. Koehn, 2001 SD 144, ¶ 16, 637 N.W.2d 723, 728. Ducheneaux argues that Koehn is not controlling because the presence of a medical necessity defense was not the primary issue in that case. Even assuming that the Court was merely writing dicta, there is still nothing in South Dakota law which allows for a medical necessity defense in these circumstances.

[¶ 18.] Dueheneaux devoted a substantial portion of his brief to cases discussing creation of a common law affirmative defense of medical necessity. However, at oral argument, Ducheneaux’s attorney indicated that he relied purely on the necessity statute under SDCL 25-5-1 and not on this common law defense. Therefore, we need not reach the issue whether South Dakota common law supports a medical necessity defense. Because SDCL 22-5-1 does not support an interpretation that would allow for its use in these circumstances, we affirm.

[¶ 19.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . The eight patients still receiving medicinal marijuana are apparently "grandfathered" in because they were receiving the drug at the time the program was suspended.

      . A motion hearing was scheduled on March 8, 2001, at which the magistrate assumed Ducheneaux would be making an offer of proof regarding the necessity defense. Du-cheneaux called no witnesses and offered no evidence. The State stipulated to Duche-neaux’s physical condition, but not to the medical benefits of marijuana or to the fact that Ducheneaux could only obtain relief through use of marijuana.
      The magistrate made many findings of fact regarding Defendant's need to use marijuana, the toxic effect of legal prescription drugs and the alleged advice from Ducheneaux’s doctor that he try marijuana. These findings were not supported on the record before the magistrate. It appears that all of the facts underlying the magistrate’s findings came from a brief submitted by Ducheneaux’s counsel. The only testimony regarding Defendant’s medical condition, 'the toxicity of prescription drugs and his need for marijuana therapy came from Defendant at his trial.

      . Although not determinative, it is noteworthy that on at least two occasions, proposals to create a medical necessity defense for marijuana possession were deferred in the South Dakota Legislature until the forty first day. See Senate Bill 73, 76th Session, South Dakota Legislature, 2001; House Bill 1120, 76th Session, South Dakota Legislature, 2001. In the South Dakota Legislature, deferring a bill until the forty-first day of session is tantamount to tabling the bill.


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellant, v. Aaron Matthew PICKETT, Appellee.
    No. 02-1960.
    Supreme Court of Iowa.
    Nov. 13, 2003.

      Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, J. Patrick White, County Attorney, and Michael Brennan, Assistant County Attorney, for appellant.
    Richard Klausner, Johnson County Public Defender, Iowa City, for appellee.
   TERNUS, Justice.

When the defendant, Aaron Pickett, was placed on probation after pleading guilty to first-offense operating while intoxicated, the court ordered Pickett to pay a probation enrollment fee of $250. Although Pickett paid the fee, he failed to satisfy the conditions of his probation. The court then revoked Pickett’s probation and ordered the district department of correctional services to refund the $250 fee he had paid. We granted the State’s request for discretionary review of this order. Upon our consideration of the arguments of the parties, we conclude the trial court had no authority to order a refund. Accordingly, we reverse.

I.Governing Statutes.

Because this case primarily presents an issue of statutory construction, it is helpful to begin our discussion with a brief review of the statute at issue and its related provisions. Iowa Code section 905.14 (2001) imposes an enrollment fee on- defendants placed on probation. This statute states:

1. A person placed on probation or parole and subject to supervision by a district department shall be required to pay an enrollment fee of two hundred fifty dollars to the district department to offset the costs of supervision.
2. The fees established pursuant to this section shall not be waived by the. sentencing court. Each district department shall retain fees collected for administrative and program services.
3. The department of corrections may adopt rules for the administration of this section. If adopted, the rules shall include a provision for waiving the collection of fees for persons determined to be unable to pay.

Iowa- Code § 905.14 (emphasis added). “[District department” is defined as “a judicial district department of correctional services.” Id. § 905.1(5). The district departments are intended to “furnish or contract for those services necessary to provide a community-based correctional program” to meet the needs of that judicial district. Id. § 905.2.

Pursuant to the rule-making authority granted in section 905.14, the department of corrections has adopted the following administrative rules:

42.1(13) The district department shall have written policies and procedures governing the preparation, submission, review, modification, collection and retention of supervision enrollment fees, in accordance with Iowa Code chapter 905.14. Payments shall be made directly to the supervising judicial district department.
42.1(14) The district department shall have written policies and procedures governing the waiver of collection of supervision fees for persons determined to be unable to pay, in accordance with Iowa Code chapter 905.14.

Iowa Admin. Code rs. 201 — 42.1(13)-(14) (1997). The record before us does not contain the specific policies and procedures adopted pursuant to these rules by the district department involved in this case.

With this statutory framework in mind, we review the events leading to the present appeal.

II. Background Facts and Proceedings.

On February 19, 2002, Pickett pled guilty to operating while intoxicated, first offense. See Iowa Code § 321J.2. The court granted the defendant a deferred judgment and placed him on “unsupervised probation under the Department of Corrections” for one year. Several conditions were imposed on his probation and he was ordered to pay “an administrative probation supervision fee in the sum of $250.00.”

The sixth judicial district department of correctional services (DCS) checked on Pickett’s compliance with the court’s order on September 13, 2002, and concluded he had not completed the conditions of his probation. Thereafter, DCS wrote to Pickett, referencing his “self-supervised probation” and informing him that he had not complied with the court’s order in several particulars, including payment of the administrative fee. The DCS also informed Pickett that he had a scheduled appointment on November 1, 2002, and should be prepared at that time to document that he had completed his probation requirements.

Pickett failed to respond to this letter and a second compliance check by DCS on November 4, 2002, revealed that he had failed to fulfill his obligations under the court’s order. The county attorney then filed a request asking that Pickett’s probation be revoked due to his noncompliance. Hearing was set for November 26, 2002.

Pickett appeared at the scheduled hearing and acknowledged that he had not completed the conditions of his probation. He did, however, inform the court that he had mailed the $250 enrollment fee the previous day. The court concluded the defendant’s probation should be revoked, as well as, his deferred judgment. The court then stated its intention to order DCS to refund the fee. Pickett’s guilty plea was accepted on the record and the court imposed sentence. A later judgment entry prepared by the court ordered DCS to refund the supervision fee paid by the defendant.

DCS subsequently wrote to the court, informing the court that Iowa Code section 905.14, which provides for payment of a probation enrollment fee, does not permit the sentencing court to waive the fee. DCS told the court that its policy is not to return the fee should the defendant’s probation be revoked. The court responded by email, stating that it was not the court’s intention to order refunds of “all probation supervision fees when a self-supervised probation is revoked,” and that the court did so here “based upon the unique facts in this case.” In view of DCS’s letter, the court entered a second order specifically addressing the probation supervision fee issue in an effort to clarify its initial order. The court stated in its second order that DCS’s position was contrary to the court’s prior order, and again ordered DCS to refund Pickett’s fee.

This court granted the State’s request for discretionary review. The primary issue before our court is whether a district court has authority to order the DCS to refund the $250 fee mandated by section 905.14 when the defendant’s probation is subsequently revoked. Before addressing the merits of this issue, however, we first discuss the defendant’s claim that the State did not preserve error on the court’s refund order.

III. Error Preservation.

Pickett claims the State did not preserve error because it failed to object when the court announced at the probation revocation hearing that it intended to order DCS to refund the enrollment fee. It is true that the only formal record made on this issue was a statement by the DCS representative, Allyson Clark, that “we have to have written consent to turn it over.” Later, when DCS informed the court that it would not refund the fee because the law prevented the sentencing court from waiving the fee, the court stated in its email to DCS:

[DCS’s] position regarding a refund of the probation supervision fee was clearly stated in court by Allyson Clark. I considered that position and determined that the fee should be refunded. No further discussion is necessary.

We think this record supports a conclusion that error was preserved when considered in light of the purposes of our error preservation rules.

Error preservation is important for two reasons: (1) affording the district court an “ ‘opportunity'to avoid or correct error’ and (2) providing the appellate court “ ‘with an adequate record in reviewing errors purportedly committed’ ” by the district court. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002) (citation omitted). These principles of error preservation are based on fairness: .

“[I]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Furthermore, it is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable.”

Id. (citation omitted). The record made in the district court shows that the purposes of error preservation were accomplished here and there is no unfairness in allowing the State to argue on appeal that the court could not order a refund of the probation supervision fee.

Although the objection made by the DCS representative at the probation revocation hearing was rather cryptic, her statement that “written consent” was needed alerted the court to DCS’s position that the court could not unilaterally order a refund. Even though the DCS representative did not indicate whose “consent” was thought necessary in order to, refund the enrollment fee, based on the governing statutes and rules, it is apparent that the consent required was that of DCS. See Iowa Code § 905.14(3) (allowing the department of corrections to adopt rules for waiving collection of the fee); Iowa Admin. Code r. 201 — 42.1(14) (providing for district department to adopt policies for waiver of collection). Moreover, it can hardly be argued that the trial court did not understand DCS’s position at the hearing in view of the court’s later statement that it had considered this position in making its ruling.

In summary, then, we conclude the trial court was sufficiently alerted to the objection being raised on appeal so as to allow the court “to avoid or correct error.” See DeVoss, 648 N.W.2d at 60. In addition, DCS made an adequate record for purposes of our review. Therefore, we will proceed to the merits of the claimed error.

IV. Can the Sentencing Court Order a Refund of the Section 905.11 Fee ?

A. General principles of statutory interpretation. Because the issue before us involves the interpretation of a statute, we briefly review the pertinent rules of statutory construction.

When we interpret a statute, we attempt to give effect to the general assembly’s intent in enacting the law. Generally, this intent is gleaned from the language of the statute. To ascertain the meaning of the statutory language, we consider the context of the provision at issue and strive to interpret it in a manner consistent with the statute as an integrated whole.

Griffin Pipe Prods. Co. v. Guarino, 663 N.W.2d 862, 865 (Iowa 2003) (citations omitted). Similarly, we interpret a statute consistently with other statutes concerning the same or a related subject. State v. Iowa Dist. Ct., 616 N.W.2d 575, 581 (Iowa 2000). Finally, statutes are interpreted in a manner to avoid absurd results, see Al-brecht v. Gen. Motors Corp., 648 N.W.2d 87, 89 (Iowa 2002), and to avoid rendering any part of the enactment superfluous, see Am. Legion v. Cedar Rapids Bd. of Review, 646 N.W.2d 433, 439 (Iowa 2002). Our review of the district court’s interpretation of a statute is for correction of errors of law. See State Pub. Defender v. Iowa Dist. Ct., 663 N.W.2d 413, 415 (Iowa 2003).

With these principles in mind, we turn to an analysis of the statute.

B. Applicability of section 905.11. Before we address whether a trial court can order a refund of a probation enrollment fee, we consider the defendant’s claim that the trial court was not required by section 905.14(1) to assess the enrollment fee in his case. Pickett contends that because the fee was not mandatory in his case, any restrictions on the court’s authority under section 905.14 do not apply. He asserts the enrollment fee was not obligatory here because his probation was not “subject to supervision by a district department of correctional services.” See Iowa Code § 905.14(1). He relies on the court’s order placing him on “unsupervised probation under the Department of Corrections,” and DCS’s reference to his probation as “seZf-supervised.” (Emphases added.) In reviewing the reality of Pickett’s probation, however, we conclude that Pickett was, in fact, subject to the supervision of the sixth judicial district department of correctional services, albeit at a minimal level.

Iowa Code section 901B.1 sets forth a corrections continuum that consists of five levels: (1) noncommunity-based corrections sanctions; (2) probation and parole options; (3) quasi-incarceration sanctions; (4) short-term incarceration (less than thirty days); and (5) incarceration in excess of thirty days. Id. § 901B.1(1). The probation and parole options consist of the following:

(1) Monitored sanctions. Monitored sanctions are administrative supervision sanctions which are monitored for compliance by the district department of correctional services and include, but are not limited to, low-risk offender-diversion programs.
(2) Supervised sanctions. Supervised sanctions are regular probation or parole supervision and any conditions established in the probation or parole agreement or by court order.
(3) Intensive supervision sanctions. Intensive supervision sanctions provide levels of supervision above sanctions in subparagraph (2) but are less restrictive than sanctions under paragraph “c ” [quasi-incarceration sanctions] and include electronic monitoring, day reporting, day programming, live-out programs for persons on work release or who have violated chapter 321J, and institutional work release under section 904.910.

Id. § 901B.1(1)(6) (emphasis added). Notwithstanding characterizations of the defendant’s probation as “unsupervised” or “self-supervised,” we think it falls within the level two, sublevel one category of “monitored sanctions,” which are “administrative supervision sanctions.” Id. § 901B.1(1)(6 )(1) (emphasis added). See generally id. § 901B.1(3) (requiring DCS to develop “[a]n intermediate criminal sanctions program [that] shall consist of only levels two, three, and sublevels one and three of level four of the corrections continuum” (emphasis added)). Significantly, the court’s order expressly states that the defendant’s probation was “under the Department of Corrections.” Moreover, the DCS did, in fact, provide administrative supervision of the defendant’s probation, checking for compliance and notifying the court when compliance was not forthcoming. We conclude, therefore, that the defendant’s probation was “subject to supervision by a district department” within the contemplation of section 905.14(1).

C. Authority of district court to order refund. Having rejected the defendant’s argument that section 905.14(1) did not require imposition of the probation supervision fee, we next consider whether the court, having imposed the fee, can order that it be refunded upon revocation of the defendant’s probation. We observe initially that when the statute is viewed in its entirety, it seems apparent that the legislature intended all defendants put on probation subject to DCS supervision to pay an enrollment fee unless DCS decided to waive collection of the fee. We agree with the State that the district court’s interpretation of the statute is inconsistent with this overall statutory scheme.

First, we think that ordering a refund is no different than waiving the fee. Whether it is called a refund or a waiver, the result is the same: a defendant placed on probation is relieved of the obligation to pay an enrollment fee. Thus, permitting the sentencing court to order a refund would substantially weaken the mandatory nature of the fee and the prohibition against waiving the fee.

More importantly, granting this power to the court is inconsistent with the authority given by the legislature to the department of corrections — not the court — to adopt rules providing for waiving collection of the fee “for persons determined to be unable to pay.” Id. § 905.14(3). By ordering a refund here, the district court was in effect requiring DCS to waive collection of the previously imposed enrollment fee. But under the statute, that decision rests with DCS. Here, DCS has a policy, as stated in its letter to the district court, not to refund the statutory fee. This policy makes sense given the legislature’s directive to the department to adopt rules permitting waiver of collection when the defendant is unable to pay. See id. Clearly, a defendant who has already paid the fee would not fall within this category of defendants.

In ordering the refund, the district court appeared to place some importance on the fact the State had requested the court to revoke Pickett’s probation, stating to the DCS representative that “[y]ou can’t ... have your cake and eat it too.” Contrary to the implication of the court’s comment, we find nothing inconsistent in the State’s request for probation revocation and its insistence on collection of the enrollment fee. Regardless of whether a defendant successfully completes probation, DCS is required to exert efforts to supervise, with varying levels of intensity, the defendant’s efforts. See generally State v. Oliver, 588 N.W.2d 412, 416 (Iowa 1998) (holding purpose of enrollment fee is “ ‘to offset costs of supervision,’ ” not to punish the defendant (quoting Iowa Code section 905.14(1))). Therefore, there is no absurdity in interpreting the statute to prohibit a refund of the fee to unsuccessful defendants. Consequently, DCS’s position rests on a proper interpretation of the law.

V. Conclusion and Disposition.

We hold the trial court erred in ordering DCS to refund a probation enrollment fee imposed under section 905.14(1). It simply had no authority to do so. We reverse that portion of the court’s sentencing order and remand for entry of an order consistent with this opinion.

REVERSED AND REMANDED.

All justices concur except WIGGINS, J., who takes no part.


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Bruce E. KIERNAT, a Minnesota Attorney, Registration No. 55591.
    No. A03-1792.
    Supreme Court of Minnesota.
    Dec. 4, 2003.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Bruce E. Kiernat has committed professional misconduct warranting public discipline, namely, misappropriation of $53,000 of trust funds and filing of an inaccurate annual account with the district court to conceal his misconduct in violation of Minn. R. Prof. Conduct 3.3(a) and 8.4(c) and (d).

Respondent waived his right to file an answer and his right to a hearing under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which he admits the allegations in the petition and the parties jointly recommend that the appropriate discipline is disbarment from the practice of law and payment of $900 in costs 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 Bruce E. Kiernat is disbarred from the practice of law effective immediately. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson

Associate Justice