author: KLAPHAKE, Judge.

text:
    In the Matter of the CIVIL COMMITMENT OF Jimmie Ray RAMEY, d.o.b. 7-20-53.
    No. C5-02-147.
    Court of Appeals of Minnesota.
    July 23, 2002.

      Brian C. Southwell, Minneapolis, MN, for appellant Ramey.
    Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge, KLAPHAKE, Judge, and HANSON, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Jimmie Ray Ramey challenges the order indeterminately committing him as a sexually dangerous person (SDP) pursuant to Minn.Stat. § 253B.02, subd. 18c (2000). Ramey argues that the Minnesota standard for commitment under this statute fails to meet the lack of control requirements of Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed,2d 856 (2002). Ramey further contends that the SDP statute is unconstitutionally vague because the phrases “adequate control” and “course of harmful conduct” provide no legally fixed standards. Finally, Ramey challenges certain evidentiary rulings by the district court.

Because we conclude that the Minnesota standard for commitment as an SDP is consistent with the standard set forth in Crane and is not vague either facially or as applied, we affirm. Further, because the evidence of harmful sexual conduct involving Ramey’s wife and stepdaughter is clear and convincing, and not unduly prejudicial, the district court did not abuse its discretion in admitting their testimony at trial.

FACTS

Ramey pleaded guilty on March 14, 1997, to second-degree assault on his wife and was sentenced to 66 months, an upward departure. The charges of first-degree criminal sexual conduct, kidnapping, and terroristic threats were dismissed as part of a plea bargain. As his release date approached, the state filed a petition for Ramey’s indeterminate commitment as a sexually dangerous person (SDP).

During the assault on his wife, Ramey dragged her by the ankles from their bed, beat her into a semi-conscious state, poured beer on her, raped her with a heated cucumber, ’ forced her to perform oral sex contrary to her religious beliefs, and then had intercourse with her. Ra-mey stated that the intercourse was consensual; his wife agreed, stating that she knew the best way to end Ramey’s violence was to agree to have sex with him. She later wrote to the district court, contending that the assault was not a sexual matter and that she had intercourse with Ramey after the argument was over.

Ramey has a general history of violence, including a 1981 third-degree assault conviction, a 1987 second-degree murder conviction, and a 1993 fifth-degree assault conviction. In 1994, he broke a girlfriend’s wrist when she refused to give him money for drugs and alcohol.

In 1973, Ramey was accused of abducting a woman and forcing her into his car. She escaped, but reported the matter to the police. One-half hour later, Ramey abducted and raped a 12-year old girl. He pleaded guilty to indecent liberties and was sentenced to the state reformatory. He was paroled in 1976.

It is alleged that from 1976 to 1981, Ramey sexually and physically abused his stepdaughter, S.S., when she was between 9 and 14 years old. After one incident, her grandmother noticed bruises; 10-year old S.S. was examined at the emergency room, but no vaginal traces of sperm were found. S.S. testified that during that incident, Ra-mey forced her to engage in oral sex and, although he vaginally and anally penetrated her, he did not ejaculate. Ramey was arrested and eventually pleaded guilty to charges of disorderly conduct, resisting arrest, and assaulting a police officer. The rape charge was dismissed. S.S. testified that the abuse continued, but she was threatened by Ramey and was afraid to tell anyone. Ramey denied that any abuse occurred, and there were no corroborating witnesses. S.S. testified that one girl, S.D., observed sexual contact or had been touched sexually by Ramey, but S.D. denied this. S.D. testified that Ramey was her “hero” because he assaulted her stepfather after learning that her stepfather had abused her.

While in prison on the second-degree assault conviction, Ramey was offered, but refused, sexual offender treatment until it was too late to begin the program prior to his release date. Ramey attributes his violent behavior to his addiction to cocaine and alcohol. Although he has completed various chemical dependency treatment programs, he has repeatedly relapsed during prior releases. His latest release plan was to live with the woman whose arm he broke in an argument over money for alcohol and drugs.

The examiners appointed to evaluate Ramey for the commitment petition diagnosed him as having alcohol and cocaine dependence, in remission because of his imprisonment, but with the probability of relapse in the community. He was further diagnosed with Antisocial Personality Disorder. They described Ramey as “hyper-sexual” and “sexually preoccupied.” One examiner described him as “extremely dangerous” and likely to “reoffend very quickly” when in the community. Both examiners concluded that Ramey was “highly likely” to commit sex offenses if not committed and agreed that Ramey lacks adequate ability to control his sexual impulses. One examiner concluded that Ramey had an “utter” lack of power to control his sexual impulses when drinking.

The district court concluded that there was clear and convincing evidence that Ramey had engaged in a course of harmful sexual conduct and that his mental disorders do not allow him to “adequately control his sexual impulses.” The court also found clear and convincing evidence that Ramey was likely to engage in future acts of harmful sexual conduct because of his mental disorders and ordered Ramey committed.

On June 6, 2001, the district court issued an order for Ramey’s indeterminate commitment as an SDP. On August 30, 2001, the court heard Ramey’s motion for amended findings of fact and conclusions of law. On November 28, 2001, the court granted Ramey’s motions in part and denied them in part; this order dealt with language in the findings on minor or specific factual details. On the same date, the court issued its amended findings, conclusions and order for indefinite commitment. Ramey filed a notice of appeal on January 28, 2002.

ISSUES

1. Is the Minnesota standard for civil commitment as a sexually dangerous person consistent with the standard set forth by the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002)?

2. Are the terms “lack of adequate control of sexual impulses” and “course of harmful sexual conduct” unconstitutionally vague as applied under Minn.Stat. § 253B.02, subd. 18c (2000)?

3. Did the district court clearly err in finding that Ramey had committed harmful sexual conduct against his wife and stepdaughter?

4. Did the district court abuse its discretion in not excluding the testimony of his stepdaughter as unduly prejudicial under Minn. R. Evid. 403?

ANALYSIS

I. Kansas v. Crane

Ramey argues that the ruling of the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), effectively rejected the Minnesota standard for lack of control of sexual impulses necessary to sustain a commitment as an SDP.

Under the Minnesota Commitment and Treatment Act (act), an SDP is one who:

(1)has engaged in a course of harmful sexual conduct * * *;
(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct * * *.

Minn.Stat. § 253B.02, subd. 18c (2000). “Harmful sexual conduct” is “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Id., subd. 7a(a) (2000). There is a rebuttable presumption that criminal sexual conduct in the first, second, third, or fourth degree creates a substantial likelihood of serious physical or emotional harm. Id., subd. 7a(b) (2000). The act does not require an SDP to exhibit an utter lack of ability to control sexual impulses, which is the standard for commitment as a sexual psychopathic personality (SPP). Id., subd. 18b (2000).

The act has been interpreted, because of the standard of proof, to require that the person be “highly likely” to engage in harmful sexual conduct. In re Linehan, 594 N.W.2d 867, 876 (Minn.1999), cert. denied, 528 U.S. 1049, 120 S.Ct. 587, 145 L.Ed.2d 488 (1999) (Linehan IV). In addition, the Minnesota Supreme Court, relying on Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), read a lack-of-control standard into the act:

[Ljike the Kansas Act, the Minnesota SDP Act “requires a finding of future dangerousness, and then finks that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior.”

Linehan IV, 594 N.W.2d at 875 (quoting Hendricks, 521 U.S. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d 501).

The significance of requiring a degree of lack of control is to distinguish the SDP from offenders who have committed similar offenses, but who should be dealt with in the criminal justice system. This requirement narrows the group of those who can be committed as an SDP under the act. Thus, in Hendricks, the United States Supreme Court noted that the Kansas

statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.
⅜ ⅜ ⅜ ⅜
[This] adequately distinguishes Hendricks from [those] who are perhaps more properly dealt with exclusively through criminal proceedings.

Hendricks, 521 U.S. at 358-60, 117 S.Ct. at 2080-81, 138 L.Ed.2d 501.

Linehan IV quoted this Hendricks language, commenting that this reasoning “establishes that some lack of volitional control is necessary to narrow the scope of civil commitment statutes.” Linehan IV, 594 N.W.2d at 873 (footnote omitted). The Minnesota Supreme Court held that the SDP standard, while not requiring an utter lack of control, did require, as did Hendricks, “a degree of volitional impairment such that [the offenders are] ‘unable to control their dangerousness.’ ” Id. at 875 (quoting Hendricks, 521 U.S. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d 501). The supreme court’s final distillation of this standard states

that the SDP Act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.

Id. at 876.

In Crane, the United States Supreme Court has further refined Hendricks. Crane affirms that Hendricks does not require a total or complete lack of control for civil commitment of sexually dangerous offenders, but affirmatively states that some lack of control determination must be made. Crane, 534 U.S. at -, 122 S.Ct. at 870, 151 L.Ed.2d 856. The key is to “distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” Id. The Court concluded that confinement would involve those who “find it particularly difficult to control their behavior — in the general sense.” Id., 534 U.S. at -, 122 S.Ct. at 871, 151 L.Ed.2d 856. The Crane Court did not seek to set forth detailed rules regarding where mental disorder and difficulty in controlling behavior must intersect on a continuum to render an individual subject to confinement. Rather, it stated:

We recognize that Hendricks as so read provides a less precise constitutional standard than would those more definite rules for which the parties have argued. But the Constitution’s safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules. For one thing, the States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment.

Id.

In short, Crane adds to Hendricks the affirmative duty to make a lack of control determination, which is already a requirement of the Minnesota standard under Linehan IV. Crane explicitly does not prescribe one particular standard for that determination. Rather, there must be a determination that a lack of ability to control behavior distinguishes the SDP from the ordinary offender, whether (1) it is “difficult, if not impossible * * * to control his dangerous behavior” as in Hendricks; (2) there is “serious difficulty in controlling behavior” as in Crane; or (3) there is an inability to “adequately control their sexual impulses,” as in Linehan IV.

We therefore conclude that the requirement of an inability to control behavior to some degree, as required by Crane, is satisfied by the interpretation of the SDP act as set forth in Linehan TV.

II. Vagueness

Ramey argues that the phrases “lack of adequate control” and “course of harmful sexual conduct” are unconstitutionally vague in general and as applied to him. Ramey also argues that the phrases leave the district court with too much discretion to establish the limits of the statute’s reach, thus failing to give notice of what conduct is prohibited by the act. Ramey apparently concedes that were the district court to articulate the standard as “serious difficulty in controlling,” as the Crane Court did, instead of “lack of adequate control,” the statute would not be unconstitutionally vague.

A statute that “defines an act in a manner that encourages arbitrary and discriminatory enforcement, or * * * is so indefinite that people must guess at its meaning” is void for vagueness. Hard Times Café, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 (Minn.App.2001) (quotation omitted). The burden of proof is on the party challenging the constitutionality of the law. Id. “Courts should exercise extreme caution before declaring a statute void for vagueness.” Id. (citation omitted).

A statute is not impermissibly “vague merely because it is possible to imagine some difficulty in determining whether certain marginal fact situations fall within its language.” Humenansky v. Minn. Bd. of Med. Exam’rs., 525 N.W.2d 559, 564 (Minn.App.1994) (citation omitted), review denied (Minn. Feb. 14, 1995). A statute is constitutionally infirm only when the meaning of an undefined word or phrase is not commonly understood or has not been established by judicial construction. Id. (citing Minn.Stat. § 645.08(1) (2000)). A vagueness challenge is upheld only if the law is “impermissibly vague in all of its applications.” Village of Hoffman Est. v. Flipside, Hoffman Est., Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).

A. Adequate Control

The term “adequate control,” is taken from Linehan IV, where the issue was whether the SDP standard was narrowly tailored enough to serve a compelling state interest without violating substantive due process. Linehan IV, 594 N.W.2d at 876. The supreme court concluded that the SDP standard must be narrowly construed so that, while not needing to prove an utter lack of ability to control sexual impulses, the committing court must find future dangerousness linked with an existing mental disorder that makes it “difficult, if not impossible, for the person to control his dangerous behavior.” Id. at 875 (quoting Hendricks, 521 U.S. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d 501). The supreme court then held:

[T]he SDP Act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.

Id. at 876, 534 U.S. 407, 151 L.Ed.2d 856.

Any vagueness in the phrase “adequate control” comes from taking it out of the larger context. In Humenansky, the appellant argued that the licensing statute under which she lost her psychiatrist’s license was vague, because the phrase “mental condition” was not defined. Id., 525 N.W.2d at 564. However, the court noted that the statute prohibited a physician from practicing if, due to a mental or physical condition, the physician demonstrated an inability to practice with reasonable skill or safety to patients. Id. In that context, the court concluded that the term “mental condition” was not unconstitutionally vague. Id. at 565. Taken in the larger context of the holding of Linehan IV, the meaning of the phrase “adequate control” is clear; an offender’s history of harmful sexual conduct and a high likelihood of future dangerousness, coupled with a mental illness or dysfunction, demonstrates that an offender will find it difficult to control behavior. Linehan IV, 594 N.W.2d at 875.

In challenging a statute as void for vagueness, the challenging party must show that the statute lacks specificity as to his own behavior. Ruzic v. Comm’r. of Pub. Safety, 455 N.W.2d 89, 92 (Minn.App.1990), review denied (Minn. June 26,1990). An offender whose behavior is clearly proscribed by law may not challenge an enactment because of vagueness as “applied to the conduct of others.” Village of Hoffman Est., 455 U.S. at 495, 102 S.Ct. at 1191, 71 L.Ed.2d 362.

The findings of the district court here were specific as to how Ramey’s past violent sexual behavior and his present mental disorders or dysfunctions interacted to support a finding of lack of control over his sexual impulses that makes it highly likely he will engage in harmful sexual acts in the future. The conclusion of one expert witness was that Ramey lacked “utter control” over his sexual impulses when drinking or using cocaine, and both experts agreed that Ramey was likely to resume drinking and using cocaine on release. Because it seems highly likely that Ramey will engage in harmful sexual conduct, given his current mental disorders, past course of harmful sexual conduct, and difficulty in controlling his sexual impulses, the lack of adequate control standard is not vague as applied to Ramey.

B. Course of Harmful Sexual Conduct

Ramey argues that the statutory phrase “course of harmful sexual conduct” is void for vagueness because it sets no limitations in terms of number of incidents or period of time during which the conduct must occur. While it appears that no published case has interpreted this phrase, this court has opined in unpublished opinions that “course” is defined, using its ordinary meaning, as “a systematic or orderly succession; a sequence.” In re Banks, No. C5-99-217, 1999 WL 451207, at *2 (Minn.App. July 6, 1999) (quoting The American Heritage Dictionary 430 (3d ed.1992)). Further, this court has concluded that the course of conduct need not consist solely of convictions, but may also include conduct amounting to harmful sexual conduct, of which the offender was not convicted. See id.; In re Civil Commitment of Castongauy, No. C1-99-1025, 1999 WL 1216127, at *3 (Minn.App. Dec.15, 1999), review denied (Minn. Feb. 15, 2000). This is consistent with the rules of construction for statutes, that “[w]ords and phrases are construed according to the rules of grammar and according to their common and approved usage.” Minn.Stat. § 645.08(1) (2000). As so interpreted, the phrase “course of harmful sexual conduct” is not vague as applied to Ramey.

III. Findings of Fact

Ramey argues that the district court erred by finding that he had sexually assaulted his wife and stepdaughter, contending that the evidence was not clear and convincing. With regard to the assault on his wife, Ramey asserts that the evidence is not clear and convincing that the conduct described was “harmful sexual conduct” as set forth under the statute, because his wife claims she suffered no physical or emotional harm from the sexual part of the incident. With regard to his stepdaughter, Ramey claims that her testimony is uncorroborated and unconvincing.

On appeal, findings of fact are not set aside unless clearly erroneous, and the record is viewed in a light most favorable to the district court’s findings. In re Knops, 536 N.W.2d 616, 620 (Minn.1995). Deference is given to the district court’s opportunity to judge the credibility of witnesses. Id.

Ramey’s wife testified that although the two had fought on the date of the offense that led to his guilty plea for second-degree assault, the sexual portion of the incident had been fully consensual. This testimony, as well as a letter from Ramey’s wife, was available to the district court when it made its decision.

The district court also had other information available to it, including police reports and statements made contemporaneously with the assault, and Ramey’s guilty plea. In the original statements made to police, Ramey’s wife described the incident roughly as follows: Ramey (1) became angry over something she said; (2) beat her for about two hours; (3) pulled her off the bed by her ankles; (4) poured beer over her and ripped her clothing off; (5) sent her naked down the stairs to get him another beer; (6) grabbed her by her neck and slammed her into a wall; (7) charred a cucumber and penetrated her vaginally with its burnt end; (8) forced her to perform oral sex; and (9) threw objects at her, resulting in cuts from the broken glass. After enduring all this Ramey demanded, and his wife acquiesced in, sexual intercourse. In his guilty plea, Ramey apparently conceded that this was an accurate statement of facts, although he claimed that the final act of intercourse was consensual.

The standard that must be met for “harmful sexual conduct” is “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Minn.Stat. § 253B.02, subd. 7a(a). The standard is not that it must create physical or emotional harm; rather, there must be a substantial likelihood of harm. There is also a rebuttable presumption that conduct described in certain criminal statutes creates a substantial likelihood of serious physical or emotional harm, including criminal sexual conduct in the first and second degree. Minn.Stat. §§ 609.342, .343 (2000). Creating reasonable fear of imminent great bodily harm, using force or coercion, or causing personal injury to accomplish sexual contact or penetration are types of conduct included in first- and second-degree criminal sexual conduct. See id. Certainly, the district court had an adequate basis for its findings.

Ramey’s stepdaughter testified about sexual contact and penetration perpetrated upon her by Ramey over a five-year period of time. Only one incident was partially documented; after her grandmother noticed bruising, an emergency room physician examined her. No traces of sperm were discovered in the screen performed. During that incident, Ramey’s stepdaughter testified that he had forced her to perform oral sex, and after-wards penetrated her vaginally and anally, but did not ejaculate. ■

Ramey was charged with rape because of this incident. The rape charge was dismissed nolle prosequi, although Ramey did plead to disorderly conduct, assaulting a police officer, and resisting arrest. As part of the bond hearing on the incident, the court in 1978 referred to the sexual nature of the assault on Ramey’s stepdaughter, concluded that Ramey had a mental problem and that the family and his stepdaughter understood that he had a mental problem, and that the best' recourse was to treat Ramey as mentally disturbed and get him help. The court referred to this as the family’s wishes. Despite Ramey’s representations, the 1978 court did not lightly dismiss the evidence of a sexual assault.

The district court here had the advantage of hearing the witnesses personally and judging their relative credibility. A reviewing court generally defers to the district court in matters of witness credibility. Minn. R. Civ. P. 52.01. Because there is a factual basis in the record that supports the district court’s findings concerning the sexual conduct with Ramey’s wife and stepdaughter, those findings are not clearly erroneous.

IY. Admission of Evidence

Ramey argues that his stepdaughter’s testimony should have been excluded because “its probative value is substantially outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403.

Ramey argues that the pattern of conduct to which his stepdaughter testified occurred 20 years previously, making it difficult for him to defend. Further, Ra-mey contends that the probative value of this uncorroborated evidence was greatly outweighed by its prejudicial effect. Apparently arguing by analogy, Ramey compares the admission of Spreigl evidence in a criminal .case with the use of this testimony in a civil hearing.

The decision of whether to admit or exclude evidence is within the district court’s discretion and will be reversed only if the court has clearly abused its discretion. Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 791 (Minn.App.2001), review denied (Minn. Mar. 13, 2001). Unlike Spreigl evidence, which is disfavored because of the danger of proving a propensity to act in a certain way, Ramey’s stepdaughter’s testimony was direct evidence of a course of harmful sexual conduct, the core issue of the civil commitment act. By statute, the petitioner must show that an alleged offender has engaged in a course of harmful sexual conduct; in order to do so, the petitioner must offer evidence of a course of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18c.

Clearly, the district court must still weigh the credibility of the victim in admitting and considering her testimony and this court considered testimony that weighed against the victim’s credibility. The court ordered payment of travel expenses for S.D., whose testimony Ramey offered in rebuttal to his stepdaughter’s testimony. Further, the court received the affidavit of Ramey’s attorney, who attested that the victim’s brother refused to testify, but stated that he did not recall being abused by Ramey. Both Ramey’s stepdaughter and S.D. were available for questioning and cross-examination, so the court had a real opportunity to make credibility determinations and Ramey was able to challenge his stepdaughter’s credibility. We conclude that admission of her testimony was not an abuse of discretion.

DECISION

The Minnesota standard for civil commitment as an SDP, as set forth in Minn. Stat. § 253B.02, subd. 18c, and interpreted by Linehan TV, meets the lack-of-control standard required by Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). The phrase “lack of adequate control” is not vague as interpreted. The phrase “course of harmful sexual conduct” can be interpreted according to its ordinary meaning and usage, and is not vague. The findings of the district court regarding harmful sexual conduct are not erroneous and are supported by the evidence. The district court did not abuse its discretion in admitting the testimony of S.S., Ramey’s stepdaughter.

Affirmed.


source: Caselaw Access Project

author: HANSON, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. John Mark COLOSIMO, Appellant.
    No. C7-01-2181.
    Court of Appeals of Minnesota.
    July 23, 2002.

      Mike Hatch, Attorney General, St. Paul, and Jeffrey M. Vlatkovich, Hibbing, for respondent.
    John Mark Colosimo, Virginia, pro se appellant.
    Considered and decided by HALBROOKS, Presiding Judge, KLAPHAKE, Judge, and HANSON, Judge.
   OPINION

HANSON, Judge.

Appellant challenges his conviction of refusal to allow inspection of a boat, arguing that he was unlawfully stopped by a conservation officer; that the officer did not have probable cause to inspect the boat; and that the officer’s request to inspect the boat was an unlawful seizure. We reverse.

FACTS

Pro se appellant John Mark Colosimo, an attorney, and four others were in Colo-simo’s boat as it was being towed to a boat landing by a truck driven by Sean Oveson. When Oveson stopped at the landing, Conservation Officer Lloyd Steen, who was standing nearby, approached the boat and asked Colosimo if they had been fishing. Colosimo said they had and discussed the types and amounts of fish they had caught and were transporting. Officer Steen asked to see the fish. Colosimo refused, stating that Officer Steen had stopped the fishing party without reasonable suspicion for doing so and that Officer Steen did not have probable cause to inspect the boat. When Colosimo asked Officer Steen to articulate a reason for stopping and detaining his fishing party, and to explain why he had a right to inspect the boat, Officer Steen replied that he did not need a reason and, because he knew they had fish on board, he had a right to inspect the fish. After a lengthy conversation and Colosi-mo’s continued refusal to allow the inspection, Officer Steen ticketed Colosimo for refusal to allow inspection of a boat. Colo-simo and his party then left the scene.

Colosimo was charged with hindering and obstructing an officer in the performance of his official duties, in violation of MinmStat. § 97A.251, subds. 1 and 2 (1998), and refusal to allow inspection of a boat, in violation of Minn.Stat. § 97A.251, subd. 1(3). Colosimo moved to suppress the evidence of his refusal and to dismiss both charges, alleging that the evidence was acquired by Officer Steen’s illegal seizure of him. The district court dismissed the obstruction charge, holding that Colo-simo acted in good faith to assert his constitutional rights and no physical obstruction occurred, citing State v. Tomlin, 622 N.W.2d 546 (Minn.2001). But the court denied the motion as to the refusal charge, finding that Officer Steen’s conversation with Colosimo did not constitute a seizure because Oveson had already stopped the truck.

The parties stipulated to the facts in the omnibus hearing transcript. The district court found Colosimo guilty of refusal to allow inspection of a boat. While the district court agreed that Officer Steen could not have stopped Colosimo without reasonable suspicion, it reasoned that Officer Steen had a right to inspect the fish when he approached the stopped vehicle and learned there were fish on board. Colosi-mo appealed.

ISSUE

Is a boat owner guilty of the crime of refusal to allow inspection of a boat when the conservation officer does not have probable cause to request the inspection?

ANALYSIS

Our review of the district court’s denial of the motion to dismiss is de novo. See State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999) (reviewing dismissal for lack of probable cause); see also State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (stating that courts may independently review the facts and determine whether the district court erred by not suppressing evidence). Whether a statute has been properly construed is a question of law, also subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

I

Colosimo was found guilty of violating Minn.Stat. § 97A.251, subd. 1(3) (1998), which states:

A person may not:
⅝ ⅜: ⅜ ⅜
(3) refuse to allow inspection of a motor vehicle, boat, or other conveyance used while taking or transporting wild animals.

“Wild animals” is defined to include “fish.” Minn.Stat. § 97A.015, subd. 55 (1998).

We first address the question of whether the state must prove, as a predicate to the crime of refusal to allow inspection, that the officer had probable cause to request the inspection. Although the description of the crime in Minn.Stat. § 97A.251, subd. 1(3) does not expressly include that predicate, we conclude that it must be implied because of constitutional and other statutory requirements.

Constitutional Requirements

We analyze a conservation officer’s request to inspect fish in a boat under the constitutional standards applicable generally to searches and seizures. The Minnesota Supreme Court has consistently held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to searches made by conservation officers. State v. Richards, 284 N.W.2d 549, 551 (Minn.1979); State v. Sorenson, 441 N.W.2d 455, 459 (Minn.1989); see also State v. Krenz, 634 N.W.2d 231, 234 (Minn.App.2001) (holding that conservation officer violated the Fourth Amendment when he entered defendant’s fish house without consent, a warrant, probable cause or any articulable basis for suspicion).

Further, we have held that an owner of a vehicle has a reasonable expectation of privacy sufficient for Fourth Amendment protections to attach to the vehicle. See State v. Nace, 404 N.W.2d 357, 360-61 (Minn.App.1987), review denied (Minn. June 25, 1987) (stating that an automobile owner’s expectation of privacy in an automobile is somewhat less than in a home, but a warrantless search of an automobile still must be supported by probable cause); see also Carroll v. United States, 267 U.S. 132, 147-55, 45 S.Ct. 280, 283-86, 69 L.Ed. 543 (1925) (explaining that probable cause is required to search an owner’s automobile because of the owner’s reasonable expectation of privacy). We see no reason to distinguish between an automobile and a boat, both of which are vehicles that transport people and goods in a regulated environment.

If, under these constitutional standards, a conservation officer must have probable cause to believe that a crime has been committed in order to justify a warrantless search of a boat without the owner’s consent, then it follows that any evidence obtained by an inspection of a boat without consent would be subject to suppression on grounds that the officer did not have probable cause to search the boat. That being so, could the legislature constitutionally require a person to consent to a warrantless search of protected property without probable cause, or make it a crime for a person to refuse such consent? Although the narrow words of Minn.Stat. § 97A.251, subd. 1(3), could be read to do just that, when we construe that section to be consistent with the constitution, we conclude that it implies a predicate that the officer requesting inspection has either a search warrant or probable cause to support the request. Minn.Stat. § 645.17(3) (1998) (providing the presumption that the legislature does not intend to violate the constitution of the United States or of this state).

Other Statutory Requirements

This conclusion, that the crime of refusal to permit inspection of a boat implies the predicate that the officer has a warrant or probable cause to support the request, is reinforced by the statutory provisions that authorize inspections under the game and fish laws. MinmStat. § 97A.215, subd. 1(b) (1998), states:

When an enforcement officer has pro ba-ble cause to believe that wild animals taken or possessed in violation of game and fish laws are present, the officer may:
(1) enter and inspect any place or vehicle; and
(2) open and inspect any package or container.

(Emphasis added.)

Construing the provisions establishing the crime of refusal to allow inspections of a boat, under Minn.Stat. § 97A.251, subd. 1(3), together with the limitations placed on the authority of an enforcement officer to conduct an inspection only upon probable cause, we conclude that a boat owner cannot be convicted of the crime of refusal to allow inspection of a boat unless the state can prove that the officer had probable cause to request that inspection.

II

At oral argument, the state asserted that probable cause was not a necessary predicate to a request to inspect the boat because of the regulated activity exception. Some courts have recognized that a person engaged in a pervasively regulated activity may have a reduced expectation of privacy and, therefore, certain searches of the place where that activity occurs may not be unreasonable under the constitution, even in the absence of probable cause. See, e.g., New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (holding reasonable warrantless inspections of junkyards because vehicle dismantlers constitute “closely regulated” industry). The state argues that recreational fishing has been regulated by the requirement of a fishing license and by the imposition of specified restrictions.

We have already rejected the state’s argument as applied to recreational fishing in Minnesota. Krenz, 634 N.W.2d at 236-37 (declining to accept the state’s argument that warrantless searches of fish houses are justified to enforce the regulatory scheme for recreational fishing); see also State v. Larsen, 637 N.W.2d 315, 321 (Minn.App.2001) (“a citizen accused of stealing ... fish has the same constitutional guarantees of fairness and due process as citizens accused of other crimes”), review granted (Minn. Mar. 19, 2002). As we said in Krenz, warrantless searches conducted to enforce regulatory schemes are only reasonable in the context of a pervasively regulated business activity, not a personal recreational activity. 634 N.W.2d at 236. Krenz dealt with a warrantless search of a fish house and it could be argued that a person in a fish house had a greater expectation of privacy than one in a boat. But the limitation placed by legislature on the authority of an officer to inspect applies equally to a “place” and a “vehicle.” Minn.Stat. § 97A.215, subd. 1(b)(1). This effectively establishes that persons in a boat have the same reasonable expectation of privacy. Thus, unless a person is using a boat for a pervasively regulated business activity, the statute requires probable cause to enter and inspect a boat.

The state suggests that this construction of the statute places an unreasonable burden on conservation officers. We acknowledge the difficulty a conservation officer faces in acquiring probable cause for fishing violations that are committed essentially in private. And, while we agree that the analysis of constitutional requirements and the construction of the statute should not simply be mechanistic, we are not persuaded that public policy concerns raised by the state can override otherwise applicable constitutional protections or statutory limitations. Further, we cannot conclude that the legislature has clearly expressed an intent to prefer the enforcement of the fish laws to individual privacy rights. We have required such a clear expression in other licensing contexts.

For example, in State v. Greyeagle, 541 N.W.2d 326 (Minn.App.1995), we considered whether the application for and display of a special series license plate, to an owner who has a limited driver’s license, implies consent by the driver to stops of the vehicle based solely on the plates, without some independent reasonable suspicion or probable cause. We held that it did not, noting that the statute did not expressly authorize stops based solely on the plates. Id. at 328. After Greyeagle, the legislature amended the statute to provide that specific authorization. In State v. Henning, 644 N.W.2d 500, 503 (Minn.App.2002), we construed the amended statute to establish the driver’s implied consent to stops based solely on the plates.

In contrast here, Minn.Stat. Ch. 97A does not expressly authorize a conservation officer to inspect a boat based solely on the fact that a fishing license is required to take or transport fish, or because there are fish in the boat. To the contrary, the statute conditions the conservation officer’s inspection authority to situations where the officer has “probable cause.” Minn.Stat. § 97A.215, subd.. 1(b). Thus, as in Greyeagle, we need not address the ultimate question, “whether states may statutorily provide that [fishing licenses] be granted on condition that the user enjoys lesser constitutional rights.” See Greyeagle, 541 N.W.2d at 328 n. 3 (stating that the question of an officer’s statutory power to make suspicionless stops need not be addressed in the absence of specific statutory authority to do so).

Ill

The state argues that if probable cause is required, Colosimo’s refusal to allow the inspection, together with knowledge that fish were being transported in the boat, gave Officer Steen sufficient probable cause to believe that Colosimo violated fish laws' and that there was a fair probability that evidence of the violation was in the boat. Officer Steen testified that in the previous 21 years, no one had ever refused his request to inspect fish in a boat.

But the “[Fourth] Amendment gives [the occupant] a constitutional right to refuse to consent to entry and search,” where the officer lacks probable cause. United States v. Prescott, 581 F.2d 1343, 1350-51 (9th Cir.1978). Passive refusal cannot be a crime, nor can it be evidence of a crime. Id. at 1351. Therefore, Colo-simo’s refusal to allow Officer Steen to inspect the boat did not give Officer Steen probable cause to believe that Colosimo had incriminating evidence on the boat. A contrary conclusion would effectively eliminate the requirement of probable cause from the law because an officer could always avoid the requirement by simply requesting inspection: if the boat owner consents, probable cause would not be required, and if the boat owner refuses, the officer would use that refusal to supply probable cause.

Officer Steen admitted that he had no probable cause to inspect the boat when he approached the boat, and Colosimo’s refusal could not give Officer Steen, probable cause.

DECISION

We do not address Colosimo’s other arguments, concerning whether Officer Steen had reasonable suspicion to effectuate an investigatory stop or to seize the boat or its occupants. The dispositive issue before us, when considering Colosimo’s conviction for refusal to allow inspection, is whether Officer Steen was required to have probable cause to request inspection of Colosimo’s boat: We hold that Officer Steen was required to have probable cause to request inspection of the boat; that he did not have probable cause to make such request; and that, absent probable cause to request inspection, Colosimo cannot be convicted for refusal to allow inspection.

      . Such a distinction is further blurred under our facts, where the boat is being towed by a motor vehicle.

      . Other jurisdictions have also rejected such arguments. See, e.g., People ex rel. Attorney General v. Younger Mun. Judge, 327 Mich. 410, 42 N.W.2d 120, 125 (1950) (rejecting argument that a fishing license is distinguishable from a driver's license); Sitz v. Dep’t of State Police, 443 Mich. 744, 506 N.W.2d 209, 222 (1993) (rejecting regulatory argument).


author: AMUNDSON, Justice. GILBERTSON, Chief Justice

text:
    2002 SD 75
    Shirley R. BROWN, Plaintiff and Appellant, v. Joan POWELL and James S. Donovan, Defendants and Appellees, and Benita Donovan, Defendant.
    No. 22018.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2002.
    Decided June 26, 2002.

      Brent A. Wilbur and Bobbi J. Benson of May, Adam, Gerdes and Thompson, Pierre, for plaintiff and appellant.
    Joan Powell, Pierre, for defendants and appellees Joan Powell and James Donovan.
   AMUNDSON, Justice.

[¶ 1.] Shirley Brown appeals a trial court order directing enforcement of the terms of a contract for deed between herself and the assignee of the contract, Joan Powell. We affirm.

FACTS

[¶ 2.] Brown owned some apartments in Gettysburg, South Dakota. In 1996, she sold the property to James and Benita Donovan for $30,000 on a contract for deed. The contract acknowledged a $5,000 down payment with the balance payable at the rate of $303.19 on the first day of each month and the final payment due on June 1, 2006. The contract required Donovans to pay the real estate taxes and to insure the premises and contained the following nonassignment clause:

Neither this agreement nor any interest in the above described real property shall be assigned or conveyed by [Dono-vans] without written consent of [Brown].

[¶ 3.] Donovans fully complied with the contract for deed until October 1998. By that time, James Donovan had incurred an indebtedness to attorney Joan Powell for her legal fees in another matter. Thus, on October 23, Donovan assigned his interest in the rents and profits from the Gettysburg property to Powell.

[¶ 4.] Donovans continued to make the payments under the contract for deed until February 16, 1999. On that date, James Donovan entered into a real estate purchase agreement with attorney Powell to sell his interest in the contract for deed to her. From February 17, 1999 to September 27, 1999, Powell made the payments required by the contract for deed to Brown with checks drawn on an account entitled “Joan Elayne Powell, Esq. Business Account.”

[¶ 5.] In October 1999, Brown refused Powell’s monthly payment. On November 12, she commenced a foreclosure action against Donovan alleging default on the contract for deed in the failure to insure the premises, the failure to make timely payments and the failure to pay real estate taxes. On December 9, Powell, acting as Donovan’s attorney, answered the complaint and generally denied its allegations. On December 13, Powell filed her own notice of claim of interest in the realty asserting the assignment of rents and profits, the execution of the real estate purchase agreement and her receipt of a quitclaim deed to the property from Donovan.

[¶ 6.] On March 15, 2000, Powell moved to intervene in the action against Donovan and for a dismissal of the suit. A hearing was held on March 27. During the hearing, Powell tendered the full amount owing on the contract for deed from October 1999 to the hearing date. Powell also represented that she had satisfied all other indebtedness against the property including utility bills, taxes and insurance. After the hearing, the trial court entered findings of fact, conclusions of law and an order dismissing Donovan as a party, granting Powell’s motion to intervene, and directing that she tender past due payments under the contract and that Brown accept the payments pursuant to a valid assignment of the contract.

[¶ 7.] Brown subsequently filed a series of motions including a motion to amend her complaint to include Benita Donovan and Joan Powell as defendants. In addition, Brown filed a motion for the trial court to vacate its previous findings, conclusions and order on the basis that Powell had misrepresented her payment of the real estate taxes on the property. A hearing was held on November 27 and, on December 4, the trial court entered its order granting Brown’s motions and specifically vacating its findings as to the payment of real estate taxes by Powell.

[¶ 8.] The action was brought to trial before the court on May 8, 2001. During trial, Powell explained the confusion over her payment of the real estate taxes on the property and provided evidence of her payment of all outstanding indebtedness including the taxes and insurance. After trial, the trial court entered findings of fact and conclusions of law incorporating its earlier findings and further determining that: the taxes and insurance on the property were current; the amount of the default was five times the $303 monthly payments; the default was caused by hard feelings and miscommunication; Powell made a good faith effort to keep the contract up to date and follow it; and, that it would be inequitable to forfeit the contract. Based upon its findings and conclusions, the trial court entered an order very similar to the order it had previously vacated. The court further ordered that Powell should retender the past due monthly payments to Brown pursuant to a valid assignment of the contract for deed from Donovan and that the original terms of the contract should be enforced between Brown and Powell. Brown appeals.

ISSUE

[¶ 9.] Are the trial court’s findings of fact clearly erroneous?

[¶ 10.] Brown challenges the validity of Donovan’s assignment of the contract for deed to Powell on the basis of the contract’s nonassignment clause and the lack of written consent to the assignment by Brown. Powell argues that Brown waived the nonassignment clause by accepting contract payments from her after the assignment. We agree.

[¶ 11.] As authority for her argument, Powell relies upon this Court’s holding in Smith v. Hegg, 88 S.D. 29, 214 N.W.2d 789 (1974) that a nonassignment provision in a lease was waived by the lessor’s actual knowledge of the assignment and acceptance of monthly lease payments from the assignee for approximately five years. See also Wandler v. Lewis, 1997 SD 98, 567 N.W.2d 377 (vendor’s acquiescence in previous nbnconsensual assignments of property and acceptance of payments made pursuant to contract after prior assignments waived nonassignment clause of contract). Other jurisdictions have also held that a nonassignment provision in a land sale contract is waived where the vendor learns of the assignment and accepts payments on the contract from the assignee while abandoning any efforts to revoke the contract. See Distasio v. Gervazio, 234 Mich. 482, 208 N.W. 440, 442 (1926)(nonassignment requirement of contract waived by vendor’s receipt from as-signee and retention of payments required by contract); Ross v. Page, 11 N.D. 458, 92 N.W. 822, 825 (N.D.1902)(deviations from provisions of land sale contract waived where vendor accepted and retained money payments knowing that contract had been assigned and that assignee made the payments in reliance on the assignment); Nielsen v. Baldridge, 173 Or. 555, 146 P.2d 754, 758 (1944)(vendor waived provision against nonassignment in land contract where vendor permitted escrow to accept payments from assignees after learning of the assignment); Parker v. Camp, 656 N.E.2d 882, 884 n. 2 (Ind.Ct.App.l995)(vendor waived any right to assert nonassignment clause in land contract where vendor accepted several payments from assignee of contract and correspondence between vendor’s agent and assignee demonstrated vendor treated contract as being with assignee):

[¶ 12.] Here, the trial court found as a fact that there was “strong evidence that [Brown] was aware of Mr. Donovan’s assignment of the Contract for Deed while accepting payment thereunder from Joan Powell.” Brown argues that this finding is clearly erroneous and that there is no evidence to support it. We disagree.

This Court reviews a trial court’s findings of fact under the “clearly erroneous” standard.... In applying the clearly erroneous standard, our function is not to decide factual issues de novo. The question is not whether this Court would have made the same finding that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed. We will not overturn the trial court’s decision unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made. Due regard shall be given to the opportunity the trial court had to judge the credibility of witnesses.

Zarecky v. Thompson, 2001 SD 121, ¶ 8, 634 N.W.2d 311, 314 (citations omitted).

[¶ 13.] Contrary to Brown’s assertions, we find sufficient evidence to support the finding that she was aware of the assignment of the contract. Brown’s son, who has long held a power of attorney to manage her affairs, admitted at trial that he knew his mother was accepting contract payments from Powell. Although he also testified that he knew that Powell was Donovan’s attorney and that he thought Powell was acting on Donovan’s behalf in making the payments, there is no logic in this assertion. Powell represented Donovan in a criminal matter unrelated to any real estate transaction. Neither Brown nor her son provided any explanation whatsoever as to why Powell’s representation of Donovan in a separate criminal proceeding should have led them to believe that Powell was acting on Donovan’s behalf in making payments on the contract for deed. Thus, we find no clear error in the trial court’s rejection of this explanation.

[¶ 14.] Certainly Powell’s payments were sufficient to suggest to a prudent mind that “further inquiry should be made” concerning the nature of Powell’s interest in the realty. See Smith, 88 S.D. at 34, 214 N.W.2d at 792 (finding that purchaser knew of leasehold interest in realty held by original lessee’s assignee upheld where purchaser possessed information sufficient to suggest to a “prudent mind that further inquiry should be made”). The seven checks Powell issued to Brown from February 1999 through September 1999 were all written on aii account plainly captioned:

JOAN ELAYNE POWELL, ESQ.
Business Account

Powell further testified that:

The fact of the matter is that I wrote on the checks what they were for. They knew by living in this small community that Donovan didn’t have anything to do with the apartments anymore, had open and notorious possession of the apartments.

The checks admitted as evidence support this testimony. The check written in February 1999 to cover contract payments for January and February contained the notation, “Donovan contract.” The second check written in March 1999 contained the notation, “March Donovan Apts.” The third check written in May 1999 to cover payments for April and May contained the notation, “Apr/May.” The fourth check written in June of 1999 contained the notation “June 99.” The sixth check written in August of 1999 contained the notation, “Aug 99.” None of the checks gave any indication in any fashion that the payments on the contract were being issued by Powell on Donovan’s behalf rather than in her own right. Thus, they provided Brown with no reasonable basis to form such a belief.

[¶ 15.] If the checks alone were insufficient to make Browns aware of the assignment of the contract for deed and Powell’s assumption of some sort of interest in the realty, Powell also showed that she had an exchange with Brown’s counsel in June 1999 about insurance coverage on the property. In response to counsel’s inquiry, Powell provided him with copies of insurance policy declaration pages showing the property was insured. Some of the declaration pages named both Powell and Donovan as insureds. Powell also indicated in her testimony that she orally informed counsel at that time that she had the property.

[¶ 16.] In addition to the checks and the insurance policies, Powell also presented extensive evidence and testimony concerning her payment of various debts against the property including utilities, taxes and insurance. Powell testified that her payment of these debts and her possession of the property and other efforts to improve it and clean it up were open and notorious in the small community.

[¶ 17.] In conjunction with the foregoing evidence, this Court must also remain mindful that foreclosure is an equitable remedy and, therefore, various equitable principles are important to our review in this matter. See Alma Group, L.L.C. v. Weiss, 2000 SD 108, ¶ 12, 616 N.W.2d 96, 99 (foreclosure of a mortgage is an equitable action). In that regard, “[t]his Court has emphasized on numerous occasions that the law ‘abhors a forfeiture.’ ‘Forfeitures are considered odious in the law and are not favored by the courts.’ ” Bozied v. City of Brookings, 2001 SD 150, ¶ 24, 638 N.W.2d 264, 273 (citations omitted). Because forfeitures of land sale contracts are highly disfavored by the law, courts are generally quick to find a waiver of conditions alleged as a basis for a claim of breach. Cochran v. Grebe, 578 S.W.2d 351, 354 (Mo.Ct.App.1979)(forfeitures are highly disfavored by the law and the courts are therefore quick to find a waiver or estoppel in a case of this sort). In this particular instance, the condition is a covenant against assignment of the contract. Such conditions are also looked upon with disfavor. See Smith, 88 S.D. at 32-33, 214 N.W.2d at 791 (though this Court will at times enforce covenants in leases against assignment, such restraints against alienation are looked upon with disfavor and are strictly construed against the lessor).

[¶ 18.] Equity also favors those with a substantial investment in a land sale contract. See Miller v. Radtke, 230 Neb. 561, 432 N.W.2d 542, 547 (1988)(ejectment of vendee may be granted as remedy for violating terms of a land contract only where the equities justify such disposition, where property is of less value than the contract price and where such procedure does not offend against justice and equity). Accord Poommipanit v. Sloan, 1 Neb.App. 1132, 510 N.W.2d 542 (1993). As held by the Nebraska Supreme Court as a corollary to these principles, “[s]trict foreclosure will be decreed only under peculiar and special circumstances where the purchaser does not have a substantial equity in the property.” Riffey v. Schulke, 193 Neb. 317, 227 N.W.2d 4, 6 (1975).

[¶ 19.] Here, the trial court specifically-found that it would be inequitable to require Powell to forfeit the contract and this finding finds ample support in the testimony and evidence submitted by Powell concerning the extent of her investment in the property. As Powell herself summarized that evidence:

To date there’s been $22,585 just on the contract. It’s a $30,000 contract. Of course, that includes interest. The payoff on this thing is around 12,000 at this point but the fact of the matter is they’ve taken $22,585 in monthly payments. And I paid myself $8,489.32, if we count the check, you know, that I wrote back in November for $1,200 plus I’ve paid — and they’ve stipulated to this — I’ve paid one, two, $3,000 in taxes back and current. My client informed me when I took this thing over that the back taxes were paid.
I’ve bettered the Plaintiffs’ position in this case. I took a Contract for Deed that was in serious default that they hadn’t done one thing on. They’ve accepted late payments, they let taxes go by. I don’t know what their situation was with prior insurance because I think it was insured through Browns but there were numerous defaults in that contract when I took it over and I’ve gone in and I’ve cured all the defaults.
* * *
In addition to the thousands of dollars in taxes and thousands of dollars of payments that I’ve tendered to Browns, I’ve also paid thousands of dollars in back utility bills, water bills, garbage bills, things that were sitting on the books when I took this over.
The Plaintiff has not been damaged. In fact, if I wouldn’t have come into this thing they would have gotten stuck with two years of back taxes.

Against these facts, Browns could only argue that they did not want to do business with Powell. As found by the trial court, the equities clearly favor Powell’s position in this matter.

[¶ 20.] Based upon the foregoing evidence and principles of equity, we hold that the trial court was not clearly erroneous in finding that Browns were aware of the assignment of the contract for deed to Powell. Nor was it clearly erroneous in finding that Browns accepted payments on the contract from Powell with knowledge of the assignment and that they thereby waived enforcement of the contract’s non-assignability clause.

[¶ 21.] Affirmed.

[¶ 22.] SABERS and KONENKAMP, Justices, concur.

[¶ 23.] GILBERTSON, Chief Justice, and GORS, Acting Justice, dissent.

GILBERTSON, Chief Justice

(dissenting).

[¶ 24.] I respectfully dissent. I would reverse the trial court’s findings as clearly erroneous. Moreover, the trial court committed significant errors of law. I would reverse and remand for a trial on the merits of the breach of contract and foreclosure claims.

[¶ 25.] When Donovan purportedly assigned his rights to Powell, Brown had three options: (1) she could attempt to void the assignment; (2) she could recognize the assignment, but retain her rights against Donovan for the breach of contract; or (3) she could accept the assignment and waive her rights against Donovan. See Garden State Buildings, L.P., v. First Fidelity Bank, N.A., 305 N.J.Super. 510, 702 A.2d 1315, 1322 (1997). Brown claims she chose to void the assignment, as evidenced by her refusal to accept payments from Powell once Brown was aware of the purported assignment. The trial court, however, skipped both options one and two in favor of option three. The court also impermissibly applied ratification analysis in place of true waiver analysis. This improper application of law mandates reversal.

[¶ 26.] “A contractual right can be assigned unless ... assignment is validly precluded by contract.” Restatement (Second) Contracts § 317(2)(c) (1981). An anti-assignment clause protects the seller by ensuring her the opportunity to choose with whom she contracts and by providing security of performance. See Wandler, 1997 SD 98 at ¶ 37, 567 N.W.2d at 384-85. Yet, a valid assignment may still be achieved when the seller elects, by some affirmative action or intentional conduct, not to exercise her power to void the assignment. See Corbin on Contracts § 873 (1951). This action or conduct may ratify the assignment without waiving the seller’s rights against the assignor.

[¶ 27.] Waiver of a valid anti-assignment provision, under South Dakota law, may only be accomplished by the intentional relinquishment of a known right. Subsurfco, Inc. v. B-Y Water Dist., 337 N.W.2d 448, 456 (S.D.1983).

The doctrine of waiver is applicable where one in possession of any right, whether conferred by law or by contract, and with full knowledge of the material facts, does or forbears the doing of something inconsistent with the exercise of the right. To support the defense of waiver, there must be a showing of a clear, unequivocal and decisive act or acts showing an intention to relinquish the existing right.

Brim v. S.D. Bd. of Pardons and Paroles, 1997 SD 48, ¶ 48, 563 N.W.2d 812, 823 (emphasis in original) (quoting Norwest Bank v. Venners, 440 N.W.2d 774, 775 (S.D.1989)). Therefore, an anti-assignment clause may be waived by a written instrument, a course of dealing, or even the failure to invalidate the assignment, so long as the action is voluntary and unequivocal. See Wandler, 1997 SD 98 at ¶ 38, 567 N.W.2d at 385 (holding defendant’s repeated acquiescence to previous nonconsensual assignments, and his continued acceptance of payments from the assignee after he was aware of the assignment, evidenced “the nonassignment provision was generally not enforced”).

[¶28.] The contract for deed in this case clearly contained a valid anti-assignment provision, of which Powell admits she was aware. Despite her knowledge of the anti-assignment provision, Powell never provided the 82-year-old invalid Brown with notice of the assignment. While Powell claimed she attempted to contact Brown once, there is no evidence beside her own testimony to support this assertion. Powell was forced to concede that she never secured a valid waiver of that provision. Thus, we are left to determine whether a judicial mind, in view of the law and the circumstances, could have reasonably concluded that Brown’s conduct amounted to a voluntary, knowing and intelligent waiver of her rights against Donovan.

[¶ 29.] There is no evidence in the record to support a finding that Brown knowingly accepted payments from Powell as an assignee. There was no actual notice because Powell did not file a notice of interest in the property until December 13, 1999. This was nearly eleven months after Powell had taken the quitclaim deed from Donovan and long after Powell began making monthly installments. There was no constructive notice because Powell did not record the purchase agreement or quitclaim deed until December 29, 1999. See SDCL 43-28-14 (providing unrecorded instrument is only valid with respect to those who have notice of it).

[¶ 30.] Brown was aware that Powell was Donovan’s attorney and believed, as evidenced by the absence of Powell’s name on Brown’s first set of foreclosure pleadings, that Powell was making payments only in her capacity as Donovan’s attorney. Powell encouraged this notion by making the payments from her business account, thereby fostering the idea that the payments were related to her law practice and not her personal finances. Annotations on Powell’s checks even perpetuated Brown’s misconception, as they were entitled “Donovan contract” and “March Donovan Apts.” The trial court’s distinction that the installments were not made from a trust account is inapposite when dealing with non-lawyers. Care must be taken by all attorneys to assure that their personal funds do not intermingle with the funds and property interests of a client, especially when it causes confusion (intended or otherwise) to third parties regarding the actual state of affairs. See Matter of Discipline of Tidball, 503 N.W.2d 850, 854 (S.D.1993).

[¶ 31.] This Court’s recognition of Powell’s payment of'debts and utilities as illustrative of Powell’s “open and notorious possession” is unpersuasive. The majority of these payments were not made until after the foreclosure action had been filed. As mentioned above, no notice of the assignment was given to Brown and no purchase agreement or deed was filed. The insurance documents presented to Brown still contained Donovan’s name as the insured. Powell’s efforts to bring the property taxes and insurance up to date just before trial were simply too little, too late.

[¶ 32.] The Court’s invocation of equity in this case is also misplaced. Powell comes before this Court with unclean hands; she comes with the full knowledge of an attorney as to notice and the effects of South Dakota’s recording statutes. One who knowingly chooses not to file notice of a sale should not be allowed to benefit from that lack of notice, by claiming the other party’s ignorance constituted a waiver of her rights. Such surreptitious behavior is not favored by the law when exhibited by a layperson, much less an attorney. See South Dakota Rules of Professional Conduct 4.3 (stating “[w]hen a lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”). Although Brown could have been easily notified, evidence of such notification is nonexistent.

[¶ 33.] Moreover, the property was sold by Brown to Donovan at less than fair market value to supplement his wages as her employee. It was also an incentive for him to remain in her employment. What equity is it to enforce that discount against a trusting 82-year-old invalid widow and grant it to an attorney whom Brown never hired or even knew?

[¶ 34.] Finally, Powell raises several issues that are not relevant to this foreclosure action. For example, the argument that this lawsuit was spawned from bad feelings over Donovan’s acquittal is completely irrelevant to whether a valid waiver exists in this case. Likewise, the evidence of Brown’s previous acceptance of late payments from Donovan is also irrelevant. The pre-assignment acceptance of late payments is only germane to a determination of whether foreclosure against Donovan is justified for non-payment or late payment. Brown has amended her foreclosure action, however, and it is now based upon Donovan’s breach of contract in assigning his rights to Powell without Brown’s approval. Thus, the trial court’s consideration of these facts in the context of deciding whether a valid waiver exists was clearly erroneous.

[¶ 35.] It would have been a simple matter for a law-trained person to send a one-paragraph notice of assignment to the contract vendor. It would have been a simple matter for a law-trained person to file the assignment of the contract for deed with the local register of deeds. It would have been a simple matter for a law-trained person to be candid with the court and initially raise her property interest in an answer when the property was facing foreclosure. Yet, none of this occurred. Equity should not be invoked to effectively nullify a nonassignment clause demanded by an 82-year-old woman for her protection. Instead of acknowledging the contracting parties’ intent, this Court s opinion only rewards the less than forthright behavior of a member of the bar who presumably knew how and when to cross the “t’s” and dot the “i’s.”

[¶ 36.] For the above reasons, I would reverse and remand for further proceedings on the breach of contract and foreclosure action.

[¶ 37.] GORS, Acting Justice, joins this dissent.

      . The Court places great factual reliance upon its view that Brown’s son "has long held a power of attorney to manage her affairs” and was well aware of Powell’s interest in the property. This is error. Brown's son testified he did not obtain a power of attorney from his mother until "after this foreclosure action was commenced.” Thus what Brown's son knew or did not know as to the status of the property prior to the foreclosure action is irrelevant.
      Beyond that, Brown’s son testified he knew nothing of Powell's purported interest in the property:
      Q: Did Joan Powell inform you somehow that she purchased the properly?
      A: No.
      Q: Has she ever in fact just written or called you and told you that she’d purchased the property?
      A: No.
      Q: Would you have found out about that essentially about the time the foreclosure, just before the foreclosure action was commenced?
      A: Yes.
      Q: So the date of the foreclosure action would be about the time you would have found out?
      A: That's correct.
      Q: Have either you or your mother ever consented to a transfer of the property or a waiver of what's called the due-on-sale clause in the contract?
      A: Absolutely not.

      Q: And were you aware in any way that she was tendering those checks to you as a purchaser of the property herself?
      A: Absolutely not.

      . While this Court states that foreclosure is considered to be an equitable remedy, it is notable that the basis for prevailing in a foreclosure is clearly set forth by statute. A violation of the terms of the contract is a breach of contract constituting default. SDCL 21-50-1 provides that a remedy for default on a contract for deed is strict foreclosure. See Wandler, 1997 SD 98 at ¶ 20, 567 N.W.2d at 382.

      . Indeed, Powell's lack of disclosure went even further. On November 12, 1999, Brown filed a complaint for foreclosure of the contract for deed against Donovan based on his failure to timely make the required contractual payments, failure to properly insure the property, and failure to pay the property taxes. On December 9, 1999, Powell, acting as Jim Donovan’s attorney, filed an answer on his behalf. But she made no mention of her claimed ownership of the property or interest therein. "Clearly, the requirement of candor towards the tribunal goes beyond simply telling a portion of the truth. It requires every attorney to be fully honest and forthright. Therefore, candor and fairness should characterize the conduct of an attorney at the beginning, during and at the close of litigation.'" In re Discipline of Wilka, 2001 SD 148 ¶ 15, 638 N.W.2d 245, 249 (citations omitted). “Attorneys have a responsibility to present the record with accuracy and candor.” Matter of Discipline of Dorothy, 2000 SD 23, ¶ 51, 605 N.W.2d 493, 509 (citing Pinkham v. Sara Lee Corp., 983 F.2d 824, 833 (8thCir.1992)). Only later did Powell file a motion to intervene as a party defendant. This legal timidity is even more unusual as at basically the same time, Powell had not been bashful in resorting to the courts of this state in an attempt to vindicate her legal and factual claims in another matter. See Marks v. Clark, 2001 SD 122, 635 N.W.2d 278.


author: AMUNDSON, Justice.

text:
    2002 SD 74
    Donna HENTZ, Plaintiff and Appellant, v. The CITY OF SPEARFISH, DEPARTMENT OF PUBLIC WORKS, OFFICE OF PLANNING & ZONING, Defendant and Appellee.
    No. 22168.
    Supreme Court of South Dakota.
    Considered on Briefs on April 22, 2002.
    Decided June 26, 2002.

      Donald D. Richards, Spearfish, for plaintiff and appellant.
    E. James Hood, Suzanne M. Dardis of Hood & Nies, Spearfish, for defendant and appellee.
   AMUNDSON, Justice.

[¶ 1.] Donna Hentz (Hentz) petitioned the trial court for a writ of mandamus commanding the City of Spearfish (City) to comply with its zoning ordinances. The court issued the writ of mandamus, but did not order the removal of the addition. Hentz appeals. We affirm.

FACTS

[If 2.] The dispute between City and Hentz arises out of an unlawfully issued budding permit. Hentz resides next door to Mary Kay Viles and Joe DeSiena (Viles) in City. Viles applied to City for a building permit that would allow her to construct a multi-story addition onto her home. City initially denied the permit because it violated City Ordinance 356, Section 3(D)(2), which requires a 12-foot side setback for homes over one and one-half stories high. Viles subsequently resubmitted her application and a proposal that left a 7-foot setback on the first level of the home and a 12-foot setback for the second story. On June 18, 2001, City issued the permit after officials determined the application met all legal requirements.

[¶ 3.] Viles began budding her addition, which was estimated to cost $130,000. After construction was underway, Hentz determined the addition obstructed her view of Lookout Mountain. Hentz and her attorney contacted City officials to complain about the sight obstruction and about a violation of the set back ordinance. City disagreed regarding Hentz’s interpretation of the set-back requirements, so Hentz petitioned the trial court for a writ of mandamus.

[¶4.] The trial court found City had incorrectly determined that the addition was in compliance with City ordinances; thus, Hentz’s writ of mandamus was issued. The court, however, gave City an option of either amending the ordinance section or requiring applicants to apply for variances if a proposed two-story structure fails to meet the required setback. The trial court stated that it refused to order demolition of Viles’ addition because much of the construction was complete and Viles had never been party to the suit by Hentz against City.

[¶5.] Hentz appeals the following issue:

Whether the trial court abused its discretion by prospectively denying injunc-tive relief in a decision issuing a writ of mandamus.

STANDARD OF REVIEW

[¶ 6.] The applicable standard of review for this issue is the abuse of discretion standard. Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 N.W.2d 265, 269 (stating circuit court has discretion in granting a writ of mandamus and acknowledging the standard of review is abuse of discretion) (citing Willoughby v. Grim, 1998 SD 68, ¶ 6, 581 N.W.2d 165, 167; Brown v. City of Yankton, 434 N.W.2d 376, 378 (S.D.1989)). “[A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” Id. (quoting State v. Almond, 511 N.W.2d 572, 574 (S.D.1994)).

DECISION

[¶ 7.] Hentz argues that the lower court did not have the right to prospectively foreclose the possibility of seeking specific types of relief. She contends that she is “entitled to have the City do that which they are duty bound to do ... require the homeowners to make the house smaller or the lot bigger.” In its memorandum decision regarding the issuance of the writ of mandamus, the trial court found City had no authority under its own ordinances to issue the building permit, but granted the relief prospectively, allowing the addition to remain in place.

[¶ 8.] Utilizing a writ of mandamus to obtain relief is a unique remedy, which has been described as follows:

The nature of a writ of mandamus is an extraordinary remedy that will' issue only when the duty to act is clear:
Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right. To prevail in seeking a Writ of Mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.

Baker, 2001 SD 49 at ¶ 16, 625 N.W.2d at 269 (emphasis in original) (citations omitted). See also H & W Contracting, LLC v. City of Watertown, 2001 SD 107, ¶ 24, 633 N.W.2d 167, 174 (citing Willoughby, 1998 SD 68 at ¶ 7, 581 N.W.2d at 168) (stating petitioners must demonstrate “a clear legal right to performance of the specific duty sought to be compelled” and opposing party “must have a definite legal obligation to perform that duty”). In the case at hand, issuing the writ was not error because City clearly had a legal obligation to comply with its own ordinances. See Baker, 2001 SD 49 at ¶ 16, 625 N.W.2d at 269. In addition, there is precedent establishing that denying injunctions that would require removal or destruction of a building is justified under certain circumstances.

[¶ 9.] In Hamerly v. City of Lennox Bd. of Adjustment, 1998 SD 43, ¶ 14 n7, 578 N.W.2d 566, 569 n7, we acknowledged that “it was improper to order city to remove the building of another pursuant to a writ of certiorari brought by a neighbor. This is especially so where, as here, the property owner is not even a party to the action.” Although we agree with Hentz’s argument that this case is somewhat distinguishable, the inequity resulting from the destruction of property of a non-party is the same.

[¶ 10.] Additionally, in Harksen v. Peska, 1998 SD 70, ¶ 27, 581 N.W.2d 170, 175, a landowner built a cabin that violated covenants on the land. There, we determined an injunction requiring the purchaser to tear down the cabin was too harsh. We said:

The last factor to guide a court in issuing an injunction is the balancing of the equities, or what is known as the “relative hardship test.” (citing Foley v. City of Yankton, 89 S.D. 160, 165-66, 230 N.W.2d 476, 479 (1975)).
A critical factor in balancing equities is that the party being enjoined knew that he was violating the covenant, (citing Foley, 89 S.D. at 166, 230 N.W.2d at 479 (stating “[a]n additional factor that the court should consider is the state of mind of the party against whom the mandatory injunction is sought”)).

Id. at ¶ 31, 32. We then noted that knowledge is a crucial factor in the relative hardship test and that some courts will not apply this test if one deliberately builds a structure in violation of restrictions. This, in turn, allows injunctions that require destruction of the property. Id. ¶ 32 n10. In Harksen, despite the builder’s knowledge that he was in violation of the covenant, we said “[i]t would be inequitable to require the destruction of a $100,000 summer residence when there really is no burden on Harksen.” Id. at ¶ 33.

[¶ 11.] Similarly, in this case the hardship of requiring Viles to tear down the addition outweighs the detriment to Hentz. Viles proceeded under the good faith assumption that they were building in compliance with the zoning laws, and received a building permit. They did not have knowledge that they were in violation of the zoning laws. Cf. id. (finding knowledge existed). We agree with the trial court’s following statement in its Memorandum Opinion:

City has two choices. It may initiate an amendment to the section.... Alternatively, City can require building permit applicants to apply for a variance, where the entirety of the proposed two-story structure does not meet the necessary 12 foot setback requirement....
Viles have proceeded in reliance on a building permit issued by the appropriate authority.... [T]he structure was in place as of the time of hearing.... To now obtain a 12-foot setback on the first story would require demolition of the foundation and footings and the pouring of new footings and foundation. The [c]ourt will not require this of property owners who have proceeded in good faith and who have not been joined in this action.

[¶ 12.] “[M]andamus will not lie to undo an act done in violation of a public or official duty[.]” State v. Lehman, 45 S.D. 394, 187 N.W. 720, 721 (1922). See also Crowley v. Spearfish Indep. Sch. Dist., 445 N.W.2d 308, 311 (S.D.1989) (stating “mandamus is inapplicable to undo an act already done in violation of public or official duty”); Beresford Indep. Sch. Dist. v. Fletcher, 66 S.D. 500, 287 N.W. 497, 498 (1939) (stating “mandamus is not the proper remedy to compel the undoing of [a completed act]”). In this case, the City has already issued the building permit to Viles, and she completed the construction of the addition pursuant to the permit issued. Since the construction was completed prior to the court’s ruling in this case, mandamus is the inappropriate remedy to undo the project.

[¶ 13.] Finally, Hentz requested that her attorney fees be awarded. This Court has previously stated that “Appellate attorney fees may be granted ‘in actions where such fees may be allowable!.]’ ” City of Sioux Falls v. Johnson, 2001 SD 108, ¶ 27, 632 N.W.2d 849, 856 (citing SDCL 15-26A-87.3) (emphasis in original). We have said that the Legislature contemplated the granting of appellate attorney fees only where such fees are permissible at the trial level. Id. See also Block v. Bartelt, 1998 SD 65, ¶ 14, 580 N.W.2d 152, 155 (acknowledging that motion for appellate attorney fees under SDCL 15-26A-87.3 is reliant on the statutory authority to obtain attorneys fees in certain types of eases under SDCL 15-17-38); Matter of Estate of O’Keefe, 1998 SD 92, ¶ 17, 583 N.W.2d 138, 142 (stating attorney fees can only be awarded if provided by contract or if authorized statutorily). Hentz has not demonstrated that specific statutory authority entitles him to appellate attorney fees. Therefore, no appellate attorney fees are allowed in this appeal.

[¶ 14.] Affirmed.

[¶ 15.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . Our review of this case is limited to "pleadings and papers transmitted from the circuit court” because no transcript was included as part of the record before us. Baltodano v. North Cent. Health Serv., Inc., 508 N.W.2d 892, 894 (S.D.1993).

        . City Ordinance 356, Section 3(D)(2), regarding side setbacks states, in pertinent part, that "[f]or dwellings more than one and one-half (1½) stories, there shall be a side setback of not less than twelve (12) feet.”

      . Hentz argued that this case is inapplicable because "mandamus compels an unperformed ministerial duty[,]” whereas "certiora-ri reviews a performed judicial or official duty." 14 AmJur2d, Certiorari, § 7 (2000).