author: HECHT, Judge.

text:
    In the Interest of J.J.S., JR., Minor Child, J.J.S., Sr., Father, Appellant.
    No. 00-1111.
    Court of Appeals of Iowa.
    March 14, 2001.

      Mona Knoll and Richard L. Pazdernik, Jr. of Nazette, Marner, Wendt, Knoll & Usher, L.L.P., Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, Gordon Allen and Kathrine S. Miller-Todd, Assistant Attorney Generals, and Susan Conn, Assistant County Attorney, for appellee-State.
    H. Nick Gloe of Faches, Gloe & Quint, Cedar Rapids, guardian ad litem for minor child.
    Heard by STREIT, P.J., and HECHT and VAITHESWARAN, JJ.
   HECHT, Judge.

Joe, Sr. appeals the juvenile court’s termination of his parental rights with respect to his son, Joe, Jr. He contends the court erred in reopening and reconsidering the record and in admitting new evidence after it issued a ruling dismissing the State’s petition to terminate his parental rights. He claims even if the court did not err in reconsidering the termination of parental rights issue, there was not clear and convincing evidence presented during the first and second trial that Joe, Jr. could not be returned to his custody. We reverse and remand to the juvenile court.

I. Factual Background and Proceedings. Joe, Sr. and Makina S. are the parents of Joe, Jr., who was born on September 26,1994. In March of 1995, during a visit to the hospital, it was discovered the child had several fractured bones. The Department of Human Services (“DHS”) removed him from his parents’ care on March 6, 1995, and placed him in foster care. The child was adjudicated to be a child in need of assistance on March 13, 1995. DHS offered services to both parents, including visitation with Joe, Jr. Joe, Sr. regularly participated in both visitation and services, but Makina did not. The State filed a petition to terminate both parents’ rights on December 1, 1995. The juvenile court held several days of hearings on the matter. On June 28, 1996, the juvenile court continued the case for ninety days to give the parents another chance to show they could appropriately parent their child. On April 3, 1997, the juvenile court dismissed the State’s petition to terminate Joe, Sr.’s parental rights. On June 2,1997, the juvenile court terminated Mak-ina’s parental rights. Her rights are not at issue in this appeal.

After the court terminated Makina’s rights, Joe, Jr. remained in foster care. During this time, Joe, Sr. was making progress completing the tasks listed in the permanency plan designed to enable the child to move back into his home. On November 19, 1997, the child was returned to his father’s full time care after Joe, Sr. had addressed most of DHS’s concerns regarding his ability to parent. However, on March 8, 1998, DHS received a child abuse report indicating Joe, Sr. left Joe, Jr. and two other children unsupervised for a short time in his apartment with candles burning and returned to the apartment intoxicated. The juvenile court ordered Joe, Jr. be removed from his father and returned to foster care. Joe, Sr. admitted he had a problem with the use of alcohol and began substance abuse treatment on March 16, 1998. He completed the treatment program at the end of June, 1998. As part of his continuing treatment program, it was recommended Joe, Sr. attend Alcoholic’s Anonymous (“AA”) twice a week and take Antabuse, a prescription drug which causes nausea and vomiting when taken with alcohol.

On October 26, 1998, the State filed a second petition to terminate Joe, Sr.’s parental rights. Before a hearing on the State’s petition, all of the involved parties agreed to give Joe, Sr. another chance and formulated a list of five tasks he was to complete before the child could permanently return to his care. These tasks included enrolling Joe, Jr. in Head Start, attending AA meetings and obtaining a sponsor, taking Antabuse regularly, cooperating with service providers, and making the child available for speech therapy appointments. The child was placed in the temporary custody of his father during this time. In order for Joe, Jr. to be enrolled in the Head Start program, he was required to have a physical examination. For various reasons, Joe, Sr. failed to take his son in for a physical by March 17, 1999, and DHS removed the child from his care.

The juvenile court held a hearing on the State’s petition to terminate Joe, Sr.’s parental rights on April 28 and June 22, 1999. On September 9, 1999, the juvenile court denied the State’s petition to terminate Joe, Sr.’s parental rights and dismissed the action. On October 1,1999, the State filed a “motion for reconsideration” alleging: (1) Joe, Sr. had not maintained suitable housing, was not attending AA meetings, and was not taking Antabuse; and (2) Joe, Jr.’s therapist indicated in a letter to DHS that he is at risk for attachment disorders and is a “high needs child” in immediate need of a permanent stable home. After a hearing on the State’s motion, which the juvenile court treated as a motion to reopen the record on the State’s petition to terminate parental rights, the motion was granted and an evidentiary hearing was scheduled.

At the subsequent hearing, the State presented evidence tending to prove certain developments which it claimed had occurred after the termination hearing in June, including Joe, Sr.’s failure to: (1) obtain suitable housing for himself and his son; (2) make arrangements for day care for the child during work hours; (3) take Antabuse during the past six months; (4) regularly attend AA meetings; and (5) avoid alcohol-related law violations. He was arrested on October 12,1999, for operating while intoxicated, pled guilty to the charge, and was incarcerated in a “community based facility” at the time of hearing. The State also presented the testimony of the child’s therapist regarding his behavior problems and special needs. On June 2, 2000, the juvenile court reversed its previous ruling and terminated Joe, Sr.’s parental rights with respect to his son. Joe, Sr. appeals the order.

II. Standard of Review. The standard of review in termination cases is de novo. In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct.App.1998). The grounds for termination must be proven by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 830 (Iowa Ct.App.1997). Our primary concern is the best interests of the child; we look to both the child’s long-range and immediate interests. In re M.T., 613 N.W.2d 690, 691 (Iowa Ct.App.2000).

III. The State’s Motion for Reconsideration. Although motions to reconsider are not expressly authorized in the Iowa Rules of Civil Procedure, they are recognized by case law. See Iowa Elec. Light & Power Co. v. Lagle, 430 N.W.2d 393, 396 (Iowa 1988). Motions to reconsider filed after a final judgment are often considered to be motions pursuant to Iowa Rule of Civil Procedure 179(b) if filed within ten days. See Boughton v. McAllister, 576 N.W.2d 94, 95 (Iowa 1998). Joe, Sr. argues if the State’s motion for reconsideration was a motion pursuant to rule 179(b), it was not filed in a timely manner and the juvenile court erred by granting it. Rule 179(b) provides, in relevant part:

On motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly or a different judgment or decree substituted. But a party, on appeal, may challenge the sufficiency of the evidence to sustain any finding without having objected to it by such motion or otherwise.

Iowa R.Civ.P. 179(b). Such motions must be filed within ten days after the filing of the decision. See Iowa R.Civ.P. 247. In the present case, the State filed its motion twenty-two days after the final order declining to terminate Joe, Sr.’s rights and dismissing the petition.

The State argues on appeal although rule 179(b) motions apply to juvenile court proceedings, the ten-day time limit for filing the motions should not apply in order to preserve the informality of the proceedings. We agree with the State’s assertion rule 179(b) motions may be utilized in termination proceedings. See In re A.R., 316 N.W.2d 887, 889 (Iowa 1982). However, we find no authority for the proposition the ten-day time limit should not apply in such cases. In this situation, we must balance the policies behind recognizing informal procedural rules in juvenile court with the goal of promoting the child’s best interests, including the goal of establishing permanency in the child’s life. While we recognize the importance of the informal rules in juvenile court to further the goal of obtaining all information relevant to determining the best interests of a child, we do not subscribe to a rule that would indefinitely prolong a final decision regarding permanency. There must be a sense of finality to orders of the juvenile court to advance the best interests of the child. We conclude the time limit prescribed in rule 179(b) does apply in termination proceedings. The State’s motion was untimely and the juvenile court erred by granting it and allowing the State to present additional evidence.

Even if the State’s motion had been filed within ten days after the order dismissing the petition to terminate Joe, Sr.’s parental rights, we conclude the substance of the motion was not aligned with the purpose of rule 179(b). “Motions under rule 179(b) are permitted so that courts may enlarge or modify findings based on evidence already in the record. They are not vehicles for parties to retry issues based on new facts.” In re Marriage of Bolick, 539 N.W.2d 357, 361 (Iowa 1995). In the body of its motion, the State clearly sought to present new evidence to the juvenile court regarding Joe, Sr.’s ability to be an appropriate parent to his son. The motion specifically alleged, “That since the hearing in June, Joe, Sr. has not obtained suitable housing and is still living in a warehouse, has not been attending AA meetings or taking antibuse [sic] as required in the Case Permanency Plan.” In addition, a letter from Joe, Jr.’s therapist relied upon by the State was dated September 28, 1999, nineteen days after the juvenile court issued its order dismissing the State’s petition to terminate parental rights. In short, by its motion to reconsider, the State sought to relitigate the same issues presented in June to the juvenile court with new facts. Rule 179(b) does not authorize such relief.

The juvenile court treated the State’s motion as a motion to reopen the record on the issue of the termination of Joe, Sr.’s parental rights. The State contends its motion was specifically contemplated or invited by the language of the juvenile court’s September 9,1999, order:

In reaching these conclusions, this court has determined that it is necessary to expedite Joe, Jr.’s return to his father’s care. This court has determined that, unless new evidence has occurred since June, 1999 that would mandate otherwise, Joe, Jr. can be returned to his father’s care as soon as possible under DHS supervision, if appropriate, and released from the state of limbo in which he has languished for the past four years.

The State argues this language documents the juvenile court’s intention to keep the record open for additional evidence bearing upon the petition to terminate Joe, Jr.’s parental rights. We reject this contention, however, because it is inconsistent with the court’s ultimate disposition of the case-dismissal of the petition to terminate parental rights. We conclude instead the quoted language from the order addressed only the schedule for returning physical placement of the child to his father. This is a more logical interpretation of the court’s order because, after dismissal of the petition, the juvenile court still had jurisdiction over placement of the child despite the fact it had lost jurisdiction over the petition requesting termination of Joe, Sr.’s parental rights.

Because the State’s motion was filed after a final adjudication of the termination case, it cannot be considered a motion pursuant to rule 192 seeking to reopen the record. See Iowa R.Civ.P. 192 (allowing any party to offer further testimony before final submission of a case.) The State asserts our supreme court approved the reopening of the record in juvenile cases after final submission with the following language:

The father also asserts that the trial court erred when it reopened the case and took additional testimony after the final submission.... In a trial to the court, the court has broad discretion to reopen the evidence; this court has said, “Such discretion is to be liberally exercised.” Dobler v. Bawden, 238 Iowa 76, 85, 25 N.W.2d 866, 871 (1947). We find no abuse of discretion; the motion to reopen should have been granted. This is a juvenile case in which the best interests of the children dictate that the rules of procedure be liberally applied in order that all probative evidence might be admitted.

In re J.R.H., 358 N.W.2d 311, 318 (Iowa 1984). We believe J.R.H. is distinguishable from the case presently before us. In J.R.H., the juvenile court granted the motion to reopen the record during a disposi-tional phase of a CINA case. Id. at 316. The present case involves not merely a hearing as to the temporary custodial placement of the child with one parent or the other as in J.R.H.; it involves the rights of a parent to continue to exercise his right to parent his child. Considering the inherently more substantial rights at stake in termination proceedings, we conclude a juvenile court does not have the ability to reopen the record to receive additional evidence after a final adjudication on the merits of the termination petition. When additional evidence relevant to Joe, Sr.’s fitness as a parent came to light after the petition was dismissed on the merits, the appropriate procedure was not to seek to reopen the dismissed action, but rather to file a new petition alleging grounds for termination of parental rights.

In the alternative, the State argues the juvenile court correctly reopened the record based on newly discovered evidence. The State fails to identify a rule or other authority that would support such procedure. Iowa Rule of Civil Procedure 244 allows a party to seek a new trial on the ground material evidence was discovered which could not with reasonable diligence have been discovered and produced at trial. See Iowa R.Civ.P. 244(g); Benson v. Richardson, 537 N.W.2d 748, 762 (Iowa 1995). Under Iowa law, “newly discovered evidence” sufficient to merit a new trial is evidence which existed at the time of trial, but which, for excusable reasons, the party was unable to produce at the time. Embassy Tower Care, Inc. v. Tweedy, 516 N.W.2d 831, 833 (Iowa 1994). The State’s motion clearly indicates it sought to present evidence that was not available at the time of the original trial on the issue of termination of Joe, Sr.’s rights. The State alleged the facts asserted in its motion occurred after the hearing in June. Accordingly, such evidence could not have formed the basis for a new trial under rule 244(g) because it was not in existence at the time of trial. Furthermore, if the State’s motion is viewed as a rule 244(g) motion for new trial, it was untimely as motions for new trial must be filed' within ten days after the filing of the decision. See Iowa R.Civ.P. 247. Thus, the juvenile court could not have properly granted a new trial pursuant to rule 244(g) under these circumstances

IV. Conclusion. The State’s motion for reconsideration was not filed within ten days of the juvenile court’s decision and was therefore not timely pursuant to rule 179(b). Furthermore, the motion alleged new facts that occurred after dismissal of the petition to terminate Joe, Sr.’s parental rights. Under these circumstances, the State alleged a new claim for termination of the father’s parental rights. We find no procedural rule or other authority supporting the State’s contention it could reopen the dismissed action to present new evidence as though no final adjudication had occurred. Our decisions often address a child’s need for timely finality in termination cases. We note parents also have an important interest in finality. Like other types of litigation, termination actions have a beginning and an end. They do not have an interminable existence such that, after trial and dismissal on the merits, they may thereafter be reopened at any time to present new evidence of post-trial or post-dismissal developments. The juvenile court erred in terminating Joe, Sr.’s parental rights after dismissal of the termination action based upon post-trial occurrences. Consequently, we reverse the juvenile court’s order terminating Joe, Sr.’s parental rights and remand this case to the juvenile court for further proceedings consistent with this opinion. We express no opinion on the question of whether the post-trial or post-dismissal occurrences alleged by the State could constitute clear and convincing evidence that would support termination of Joe, Sr.’s parental rights if an action requesting such relief is commenced following remand.

REVERSED AND REMANDED.

      . We also note the State's motion cannot be viewed as a motion to modify the judgment pursuant to Iowa Rule of Civil Procedure 252. The State did not file a petition for relief and serve it upon Joe, Sr. with an original notice as contemplated by rule 253(b).


source: Caselaw Access Project

author: /s/ Kathleen A. Blatz Chief Justice

license: Public Domain

text:
    Steve R. KROYER, Respondent, v. PURE PRIDE, et al., Relators.
    No. C7-01-561.
    Supreme Court of Minnesota.
    June 19, 2001.
    Jerome D. Vehanen, Nancy E. Lamo, McCollum Corwley Vehanen Moshet & Miller, Ltd., Minneapolis, for relators.
    Michelle Barone Osterbauer, Joseph J. Osterbauer, Minneapolis, for respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed February 28, 2001, be, and the same is, affirmed without opinion. See Minn.R.Civ.App.P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ Kathleen A. Blatz Chief Justice


author: /s/ Alan C. Page Associate Justice

text:
    Harvey Guy MINNICH, deceased, by Marjorie Jane MINNICH, Respondent, v. ISENBERG EQUIPMENT, INC., Federated Mutual Insurance Company, Relators.
    No. C0-01-479.
    Supreme Court of Minnesota.
    June 20, 2001.
    Rehearing Denied July 23, 2001.
    Michael D. Carr, Fitch, Johnson, Larson, Walsh & Held, P.A., Minneapolis, for relators.
    Charles A. Bird, Bird & Jacobsen, Rochester, for respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed February 21, 2001, be, and the same is, affirmed without opinion. See Minn.R.CivApp.P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT

/s/ Alan C. Page Associate Justice


text:
    In re PROPOSED PETITION TO RECALL Mike HATCH, Attorney General.
    No. C8-01-990.
    Supreme Court of Minnesota.
    June 25, 2001.
   ORDER

The Secretary of State has referred a proposed petition to recall Attorney General Mike Hatch to the Chief Justice for review. See Minn.Stat. § 211C.05, subd. 1 (2000). The statutory review process requires the Chief Justice to review the proposed petition to determine whether it alleges specific facts that, if proven, would constitute grounds for recall of the officer under Minn. Const, art. VIII, § 6 and Minn.Stat. § 211C.02 (2000). Minn.Stat. § 211C.05, subd. 1.

The grounds for recall set forth in the Minnesota Constitution and the recall statute are “serious malfeasance or nonfea-sance during the term of office in the performance of the duties of the office or conviction during the term of office of a serious crime.” Minn. Const, art. VIII, § 6; see Minn.Stat. § 211C.02. The petition states as grounds for recall both malfeasance and nonfeasance based on the same conduct, that “Mike Hatch has failed in his duties as Attorney General and as a lawyer to defend the constitutionality of Minnesota Statute Section 609.293 in Hen-nepin County District Court Case No. MC-01^89, resulting in a District Court Order striking down the crime of sodomy as unconstitutional.” Petitioners claim that among the duties of a lawyer and of the Attorney General is the duty to provide a vigorous legal defense of statutes enacted by the Minnesota Legislature.

A threshold question is whether the same conduct can provide the basis for a finding of both malfeasance and nonfea-sance. The recall provision in the Minnesota Constitution lists both malfeasance and nonfeasance as separate bases for a recall election. Minn. Const, art. VIII, § 6. The legislature adopted very distinct definitions of malfeasance and nonfeasance in the recall statute, the former describing wrongful or unlawful action and the latter describing a failure to act. Malfeasance is defined in the recall statute as:

the intentional commission of an unlawful or wrongful act by a state officer other than a judge in the performance of the officer’s duties that is substantially outside the scope of the authority of the officer and that substantially infringes on the rights of any person or entity.

MinmStat. § 211C.01, subd. 2 (2000). Nonfeasance is defined in the recall statute as “the intentional, repeated failure of a state officer other than a judge to perform specific acts that are required duties of the officer.” Minn.Stat. § 211C.01, subd. 3 (2000). As malfeasance requires the intentional commission of an unlawful or wrongful act, the focus is on action taken by the official. In contrast, nonfeasance focuses on the official’s failure to act.

In addition to the distinction between affirmative conduct and a failure to act, the recall statute establishes another express difference between malfeasance and non-feasance. Specifically, under the recall statute nonfeasance is the repeated failure to perform specific acts, whereas there is no requirement of repetition in the definition of malfeasance. Minn.Stat. § 211C.01, subds. 2, 3.

To allow an allegation of a failure to perform a duty to state a claim for malfeasance as well as nonfeasance would render meaningless both the recall statute’s distinction between action and nonaction and its express requirement of repetition in the case of nonfeasance. The canons of statutory construction require that all provisions of a statute be given effect. Minn. Stat. § 645.17(2) (2000). To give effect to legislative intent apparent in the definitions in the recall statute, a determination of whether the petition alleges facts that, if true, constitute either affirmative misconduct or a failure to act is necessary.

The stated basis for the petition in this case is the failure to defend the constitutionality of a statute, which on its face appears to state a claim of nonfeasance rather than malfeasance. The court has previously rejected a party’s attempt to characterize nonfeasance as malfeasance in the context of tort liability of a public official. See Giefer v. Dierckx, 230 Minn. 34, 40 N.W.2d 425 (1950). In Giefer, the plaintiff brought a negligence action against a public official based on the failure of the officer, after placing a barrier on the west side of a bridge washout, to place a barrier or warning on the east side of the washout. Id. at 37, 40 N.W.2d at 426-27. The plaintiff attempted to characterize the act as affirmative misconduct, as opposed to nonfeasance, in order to fall under a rule from a previous case. Id. at 38, 40 N.W.2d at 427. The court held that despite the plaintiffs characterization, the allegedly negligent conduct was the failure to place a sign on the east side of the washout, which constituted nonfeasance, and not malfeasance or misfeasance. Id.

Similarly, in this case, despite the language of the petition indicating a claim of both nonfeasance and malfeasance, petitioners’ claim is one of nonfeasance. Petitioners focus exclusively on the Attorney General’s failure to defend the constitutionality of the statute making sodomy a crime. See Minn.Stat. § 609.293 (2000). They allege multiple deficiencies in the response of the Attorney General to a motion for summary judgment in the case. As in Giefer, the focus is on what the actor failed to do. 230 Minn, at 38, 40 N.W.2d at 427. Given petitioners’ focus on the Attorney General’s alleged failure to perform a duty, the petition is properly characterized as one alleging nonfeasance rather than malfeasance.

Therefore, the issue is whether petitioners allege facts that, if proven, would establish an “intentional, repeated failure of a state officer * * * to perform specific acts that are required duties of the officer.” Minn.Stat. § 211C.01, subd. 3. Petitioners allege that “Mike Hatch has failed in his duties as Attorney General and as a lawyer” to defend the constitutionality of the statute.

Petitioners’ allegation concerning duties “as a lawyer” is not included in the legal standard for recall. Both the constitutional and statutory recall provisions are based on malfeasance or nonfeasance in the performance of the duties of the office. Minn. Const, art. VIII, § 6; Minn.Stat. § 211C.02. Neither provision makes any reference to the duties of a lawyer, and therefore allegations of failure in the duties as a lawyer are not valid grounds for recall of a public officer.

Petitioners also allege failure in the duties as Attorney General, in particular the duty to defend the constitutionality of the sodomy statute. Petitioners argue that this duty to defend arises from the inherent duties of the Office of Attorney General and separately from the Minnesota Rules of Professional Conduct.

The Rules of Professional Conduct cannot provide a legal basis for a recall petition for several reasons. To the extent petitioners rely on the Rules of Professional Conduct to support the allegation of failure in duties as a lawyer, their reliance is unavailing because, as indicated, failure as a lawyer cannot be the basis for a recall petition. To the extent petitioners rely on the Rules to support the allegation of failure in the duties as Attorney General, this reliance fails as well. Neither the constitution nor the recall statute addresses an official’s failure to abide by professional norms as a basis for recall. In addition, the Rules of Professional Conduct themselves establish that they are intended to serve only as a standard of conduct within the regulation of the practice of law:

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. * * *. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.

Minn. R. Prof. Conduct, Scope. Just as the rules are not designed to be a basis for civil liability, they are also not designed to provide a basis for recall of a public official. Moreover, to allow the recall process to be used as a means of enforcing the Rules of Professional Conduct infringes on the Supreme Court’s exclusive authority to discipline attorneys. See In re Daly, 291 Minn. 488, 490, 189 N.W.2d 176,179 (1971) (holding that ultimate determination governing discipline of attorneys is vested in the court); In re Lord, 255 Minn. 370, 872, 97 N.W.2d 287, 289 (1959) (holding that despite Attorney General’s status as executive officer he is subject to discipline process and that unethical conduct in court “involves something resting entirely with the judicial branch”). Because the recall statute does not address a public official’s duties as a lawyer, because the Rules of Professional Conduct are intended only as a basis for professional regulation, and because using the professional rules as a basis for recall would infringe on the court’s exclusive authority to discipline attorneys, those rules cannot form the basis of a recall petition.

Petitioners allege that separate from his duties under the Rules of Professional Conduct, the Attorney General is “duty bound” to defend the statute, presumably relying on duties inherent in the office. In response, the Attorney General relies upon the broad discretion afforded the Attorney General when representing the state, citing Head v. Special School District No. 1, 288 Minn. 496, 503, 182 N.W.2d 887, 892 (1970), overruled on other grounds, Nyhus v. Civil Service Bd., 305 Minn. 184, 232 N.W.2d 779 (1975); Slezak v. Ousdigian, 260 Minn. 303, 308, 110 N.W.2d 1, 5 (1961); and State, ex rel. Peterson v. City of Fraser, 191 Minn. 427, 432, 254 N.W. 776, 777-78 (1934). The Attorney General also relies on cases from other jurisdictions holding that the Attorney General may even challenge the constitutionality of statutes when the Attorney General determines the statute is unconstitutional. See, e.g., State v. Chastain, 871 S.W.2d 661, 665 (Tenn.1994); State, ex rel. Landis v. S.H. Kress & Co., 115 Fla. 189, 155 So. 823, 826 (1934) (superseded by statute).

Here there is no need to reach the issue of whether the duties of the office require the Attorney General to defend the constitutionality of statutes because the petition fails for a separate reason. Under the nonfeasance provision of the recall statute the petition' must allege facts that if true, constitute a repeated failure to act. Minn.Stat. § 211C.01, subd. 3. The requirement in the statute that the failure to perform be repeated indicates the legislature did not intend an official to be subject to recall for a single failure to perform a required duty. The legislature’s intent is apparent from the noticeable absence of the term “repeated” in the definition of malfeasance. Minn.Stat. § 211C.01, subd. 2. Additionally, in the statute regarding recall of county officials, which based on its similarities appears to have been the model for chapter 211C, the legislature did not require repeated failure to act in the definition of nonfeasance. MinmStat. § 351.14, subd. 3 (2000). Therefore, the legislature’s clear intent that a failure to act be repeated before the official is subject to recall for nonfeasance in office must be given effect. Minn.Stat. § 645.17(2) (establishing presumption that the legislature intends the entire statute to be effective).

The petition alleges only a single failure of the Attorney General to defend the constitutionality of a statute. While the petition alleges multiple deficiencies in the Attorney General’s response to a motion for summary judgment, the fact that the defense of the statute in one case was allegedly deficient in more than one way does not satisfy the requirement of repeated failure “to perform specific acts that are required duties of the officer.” Minn.Stat. § 211C.01, subd. 3. Because the facts as alleged by petitioners do not establish repeated failure to perform the asserted duty to defend the constitutionality of statutes, the conduct alleged does not satisfy the legal standard for nonfeasance in the recah statute. Therefore, the petition does not satisfy the requirements for referral by the reviewing Chief Justice to a special master.

Now therefore, based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the proposed petition for recall be, and the same is, dismissed.

BY THE COURT:

/s/ Kathleen A. Blatz Chief Justice


author: PER CURIAM.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Charles E. MEADEN, an Attorney at Law of the State of Minnesota.
    No. C3-00-1955.
    Supreme Court of Minnesota.
    June 28, 2001.

      Edward F. Kautzer, Jack D. Nelson, Ruvelson & Kautzer, Chartered, St. Paul., for appellant.
    Edward J. Cleary, Director, Martin A. Cole, Senior Asst. Director, Office of Lawyers Professional Responsibility, St. Paul, for respondent.
   OPINION

PER CURIAM.

Respondent Charles E. Meaden was admitted to practice law in Minnesota in 1984, but is currently suspended in this state for non-payment of attorney registration fees and is on restricted status for failure to comply with continuing legal education requirements. By order of the New Jersey Supreme Court, dated July 13, 2000, Meaden was suspended from the practice of law in that state for three years, effective August 11, 2000. The Director of Minnesota’s Office of Lawyers Professional Responsibility (Director) was notified of Meaden’s New Jersey suspension and has petitioned this court for an order imposing identical discipline in Minnesota under Rule 12(d) of the Minnesota Rules on Lawyers Professional Responsibility (RLPR). Because we conclude that the procedures in New Jersey were consistent with fundamental fairness and due process and that the imposition of identical discipline is neither unjust nor substantially different from that which is warranted under Minnesota law, we suspend Meaden from the practice of law in this state for a minimum of three years from the date of this opinion.

In March 1996, while in a store in California, Meaden surreptitiously obtained the name and credit card number of another customer. On April 17, 1996, using an assumed name and the credit card number he had obtained in California, Meaden placed a $5,800 order for golf equipment with a Florida golf supply company. The salesperson became suspicious and contacted the credit card owner, who denied authorizing the purchase. On April 19, Meaden was arrested in New Jersey when he accepted delivery of the golf equipment. At the time, Meaden claimed that he had found the boxes containing the golf equipment. When asked to identify himself, Meaden gave his own name, but he carried business cards containing the assumed name under which he had ordered the equipment and the name of the credit card owner.

Meaden was subsequently indicted in New Jersey on charges of criminal attempt in violation of N.J. Stat. Ann. § 2C:5-1 (West 1995), and receiving stolen property in violation of N.J. Stat. Ann. § 2C:20-7 (West 1995). He pleaded not guilty and was eventually admitted into a pretrial intervention program. Admission into the program allowed Meaden to avoid being tried on the charges. Meaden did not inform the New Jersey Office of Attorney Ethics (OAE) of the criminal charge against him as required by Rule 1:20-13(a)(1) of the New Jersey Rules of Court. The OAE eventually learned of the charges and, in May 1997, filed a “Disciplinary Action Formal Complaint” with the New Jersey Supreme Court alleging that Meaden had committed professional misconduct, including the commission of a criminal act and conduct involving dishonesty, fraud, deceit, and misrepresentation. The complaint also alleged that Meaden failed to report the charge to the OAE as required.

A New Jersey district ethics committee held a hearing on the OAE’s complaint in March 1998. At that hearing, Meaden, represented by counsel, stipulated to the facts contained in both the police report concerning his arrest and the prosecutor’s pretrial intervention report. He also testified on his own behalf. In his testimony, Meaden admitted the misconduct but claimed that he had only limited knowledge of the events leading up to his arrest. He also testified about his mental health history, which included over 20 years of treatment for depression, at least one hospitalization for suicidal intentions, and a diagnosis of bipolar disorder.

Both Meaden and the OAE presented mental-health experts who testified about the role Meaden’s mental health played in his misconduct. They both were of the opinion that Meaden suffered from bipolar disorder and that he had experienced hy-pomanic episodes during the time leading up to the events of April 19, 1996. Mead-en’s expert offered the opinion that, at the time Meaden was carrying out his scheme, he was able to tell right from wrong but could not control his actions. The OAE’s expert was of the opinion that, although Meaden exercised defective judgment, he was not “out of control.”

During Meaden’s testimony at the hearing, it came out that he had obtained a firearm purchaser identification card and had made several applications for permits to purchase guns between 1994 and 1996. When obtaining the firearm purchaser identification card and filling out the applications for the permits to purchase guns, Meaden was required to indicate whether he had been treated or observed by a psychiatrist for any mental condition or whether he had been confined in any hospital for observation for any mental condition. In each instance, Meaden indicated that he had not. As a result, in April of 1998, the OAE filed a second disciplinary complaint alleging that Meaden had engaged in dishonesty in obtaining the purchaser identification card and in filling out the applications for permits to purchase guns.

The district ethics committee that heard the initial complaint eventually recommended that Meaden be disciplined based on that complaint. Oral argument on both complaints was held before the New Jersey Disciplinary Review Board on May 13, 1999. Because of a recording malfunction, Meaden was unable to obtain a transcript of the oral argument and the Disciplinary Review Board granted reargument, which was held on October 14, 1999. Eight days before the second oral argument, Meaden submitted to the Disciplinary Review Board a September 14, 1999, New Jersey Superior Court order expunging from court and law enforcement agency records all information relating to his April 19, 1996, arrest and the subsequent charges. At the October 14 oral argument and in a subsequent motion to the Disciplinary Review Board, Meaden contended that the expunged records ought not be considered in his disciplinary matter. The Disciplinary Review Board determined that it could consider Meaden’s criminal history despite the expungement order and that there was clear and convincing evidence that Meaden had violated Rule 8.4(b) of the New Jersey Rules of Professional Conduct (NJRPC) (committing a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer) by stealing the credit card number and attempting to use that number to commit theft. The board further determined that Meaden’s failure to disclose his psychiatric history on the firearms applications violated Rule 8.4(c), NJRPC (conduct involving dishonesty, fraud, deceit, or misrepresentation). The Disciplinary Review Board recommended that Meaden’s license to practice law in New Jersey be suspended for three years. On July 13, 2000, the New Jersey Supreme Court issued an order implementing the Disciplinary Review Board’s three-year suspension of Meaden, effective August 11, 2000. In re Meaden, 165 N.J. 22, 754 A.2d 1148 (2000).

The Director now seeks identical discipline under Rule 12(d), RLPR. “The purpose for imposing identical disciplinary sanctions is to prevent a sanctioned attorney from avoiding the consequences of misconduct by simply moving his or her practice to another state.” In re Heinemann, 606 N.W.2d 62, 64 (Minn.2000). This court

may * * * impose the identical discipline unless it appears that discipline procedures in the other jurisdiction were unfair, or the imposition of the same discipline would be unjust or substantially different from discipline warranted in Minnesota. * * * Unless the Court determines otherwise, a final adjudication in another jurisdiction that a lawyer had committed certain misconduct shall establish conclusively the misconduct for purposes of disciplinary proceedings in Minnesota.

Rule 12(d), RLPR.

To meet the rule’s fair procedure requirement, the proceedings in the other jurisdiction must be “consistent with fundamental fairness and due process.” In re Schmidt, 586 N.W.2d 774, 775 (Minn.1998). Thus, “we review the record of the underlying proceedings to see if the lawyer being disciplined received notice of the allegations against him and whether he was provided an opportunity to respond to those allegations.” Id. at 775-76; see also Heinemann, 606 N.W.2d at 64 (holding that procedure was fair when the attorney was given fair notice, an opportunity to respond and be heard, and an opportunity to participate fully in the process); In re Roff, 581 N.W.2d 32, 34 (Minn.1998) (holding that procedure was fair when the attorney knew of the complaint filed by disciplinary authorities and at each phase of the proceeding had an opportunity to present a defense and offer mitigating circumstances).

The record here indicates that: (1) Meaden received notice of the complaints filed against him and filed answers to those complaints; (2) he had a hearing on the initial complaint before a district ethics committee, at which he testified, offered the testimony of a mental health expert on his behalf, produced evidence of mitigating circumstances, and was represented by counsel; and (3) he had an oral argument on both complaints before the New Jersey Disciplinary Review Board in May 1999 and, when it was determined that no transcript of that argument was available due to a recording malfunction, he was granted reargument. Moreover, by arguing that, “[a]lthough procedurally fair, substantively the New Jersey Supreme Court did not give reasonable or adequate weight to the expungement of the New Jersey criminal matter, and failed to give reasonable deference to the treating psychologist[’s] testimony or to the mitigating factors supported by that testimony,” Meaden concedes that the New Jersey proceedings were procedurally fair. Thus, based on the record before us, we conclude that the New Jersey disciplinary proceedings in this case provided Meaden fundamental fairness and due process.

Even if procedures are fair, this court may not impose identical discipline if to do so would be unjust or result in discipline substantially different from that warranted in Minnesota. Rule 12(d), RLPR. As noted above, Meaden argues that the three-year suspension imposed by the New Jersey Supreme Court is inappropriate because it gave inadequate weight to the fact that the criminal matter that formed the basis of the first complaint had been expunged and did not give reasonable deference to the testimony of the psychiatric experts and the mitigating factors supported by their testimony.

With respect to the expunged records, Meaden argues that, under Minnesota law, expungement must be considered in determining the level of discipline warranted by his misconduct and, therefore, identical discipline is not appropriate. In essence, he argues that, because Minnesota’s courts must consider the interests of the public and public safety before issuing an ex-pungement order, Minn.Stat. § 609A.03, subd. 5 (2000), this court would consider an expungement to be a factor in favor of reducing the level of discipline warranted by the misconduct in an attorney discipline matter. Although it is not clear that this court would treat Meaden’s expunged criminal records any differently than they were treated in the New Jersey proceedings, we need not resolve that issue to determine whether Meaden’s three-year suspension was supported by the record. At the March 1998 district ethics committee hearing, Meaden admitted the misconduct and stipulated to the facts underlying that misconduct. Based on that admission and stipulation we conclude that the record supports the discipline imposed. Therefore, consideration of information in the expunged records could not have prejudiced Meaden.

Meaden’s second argument is that the Disciplinary Review Board did not give sufficient consideration to his mental illness as a mitigating factor. Relying on In re Weyhrich, 339 N.W.2d 274, 279 (Minn. 1983) (listing requirements that must be met in order for a psychological disability to be considered a mitigating factor), and In re Otis, 582 N.W.2d 561 (Minn.1998), he contends that this court would have treated his mental illness as a more significant mitigating factor than did the Discretionary Review Board and suggests that we would have imposed less discipline than was imposed by the New Jersey Supreme Court. We have thoroughly reviewed the record before us and are satisfied that the New Jersey Disciplinary Review Board gave due consideration to whether Mead-eris mental health condition mitigated his misconduct. Although we might have imposed different discipline, either more or less, had Meaden’s disciplinary proceedings originated in Minnesota, that is not the situation presented. The question we must answer is whether the discipline imposed by the New Jersey Supreme Court is unjust or substantially different from discipline warranted in Minnesota. Rule

12(d), RLPR. Based on this record, we conclude that it is not. Accordingly, we order that:

1. Respondent Charles E. Meaden is indefinitely suspended from the practice of law in this state as of the date of this opinion. Meaden may apply for reinstatement under Rule 18, RLPR, after a minimum of three years.

2. Respondent Charles E. Meaden shall pay to the Director the sum of $900 in costs, in addition to disbursements, pursuant to Rule 24, RLPR.

So ordered.

      . Under New Jersey statutes, one who has not previously been convicted of a criminal offense may apply for a program of supervisory treatment in lieu of ordinary prosecution. N.J. Stat. Ann. § 2C:43-12 (West 1995). If approved for referral to such a program, the charges are held in an inactive status and, if the prosecutor consents, the indictment is dismissed with prejudice upon completion of the program. Id. § 2C:43-13, subds. (b), (d).

      . The Disciplinary Review Board’s voting record in this case indicates that, of seven members voting, four voted for the three-year suspension and three voted to disbar Meaden.

      . Under the New Jersey Rules of Court, decisions of the Disciplinary Review Board that do not recommend disbarment become final upon entry of an appropriate order by the Clerk of the Supreme Court. N.J. R. Ct. 1:20-16(b). The Supreme Court may, on its own motion, review determinations of the board in which disbarment is not recommended. Id.

      . Although we do not decide whether we would treat expunged records differently than New Jersey, we note that Minnesota’s application for admission to the bar asks the following question:
      4.01 Have you ever in your entire life been charged with, arrested for, pleaded guilty to, or been convicted of a felony or gross misdemeanor or the equivalent? Attach copies of records relative to the incidents), including police reports and court records. Provide a narrative statement describing the incident(s) or circumstances. (You must disclose this requested information, even if the charges were dismissed or you were acquitted, the conviction was stayed or vacated, the record sealed or expunged or you were told you need not disclose this information.)
      Yes □ No □


author: BLATZ, Chief Justice

text:
    STATE of Minnesota, Respondent, v. Jason DeWayne SCHWARTZ, Petitioner, Appellant.
    No. C1-99-1946.
    Supreme Court of Minnesota.
    June 28, 2001.

      John E. Mack, Mack & Daby, New London, for appellant.
    Michael Hatch, Atty. Gen., Alan I. Gilbert, Chief Deputy and Sol. Gen., St. Paul, Boyde Beccue, Kandiyohi County Atty,, Willmar, for respondent.
   OPINION

BLATZ, Chief Justice

Appellant Jason DeWayne Schwartz appeals the district court’s denial of his petitions for postconviction relief and' writ of habeas corpus. The district court determined that appellant failed to prove beyond a reasonable doubt that the statutes under which the Commissioner of Corrections revoked his conditional release and re-incarcerated him were unconstitutional and concluded that appellant was lawfully detained. The court of appeals affirmed. Appellant claims that Minn.Stat. § 243.05 (2000), which gives the Commissioner of Corrections authority over supervised release, and Minn.Stat. § 609.109, subd. 7 (2000), which extends that authority to the conditional release of convicted sex offenders, violate the Separation of Powers provision of the Minnesota Constitution. Appellant also challenges the “no contact with minors” condition of his release and contends that the record does not support the commissioner’s determination that he violated that condition. We affirm.

On August 23, 1996, a jury convicted appellant of two counts of criminal sexual conduct in the second degree. The criminal conduct consisted of two separate incidents of sexual contact with a 4-year-old child. The district court sentenced appellant to concurrent terms of 26 months and 21 months in prison. The sentences were stayed, and appellant was placed on probation for 5 years. The conditions of his probation included a 1-year jail sentence and the requirement that he successfully complete sex offender treatment.

While on probation, appellant served time in the Kandiyohi County and Brown County jails, but was denied admittance into the recommended sex offender treatment program because he refused to admit to the acts for which he was convicted. The probation officer recommended that the district court revoke his probation; however, the court cancelled the revocation hearing when informed that appellant planned to enroll in a second sex offender treatment program. Appellant was discharged from this program and when given a third opportunity, he again failed to complete treatment.

On December 9, 1998, the district court revoked appellant’s probation and executed his concurrent sentences with 365 days of credit for jail time previously served. The court issued a Criminal Judgment and Warrant of Commitment, committing appellant to the custody of the Minnesota Commissioner of Corrections. The warrant of commitment included a 5~year conditional release term. The court of appeals affirmed the probation revocation over appellant’s various constitutional arguments. State v. Schwartz, 598 N.W.2d 7, 10 (Minn.App.), rev. denied (Minn. Sept. 28, 1999). Appellant was incarcerated until May 1999, when he was released under certain conditions. Appellant was required to abide by those conditions for the duration of both his supervised release period and the 5-year conditional release period. The conditions included the provision that appellant have no direct or indirect contact with minors without the express prior approval of his supervising agent.

On or about October 2, 1999, appellant drove to a store with an adult male friend and that friend’s 1-year-old child. Appellant’s supervising agent saw appellant in the presence of the child and initiated release revocation proceedings. A revocation hearing was conducted before a Department of Corrections executive officer of hearings and release. During the hearing, appellant admitted to being in the presence of the child on October 2, but denied that such contact violated his release conditions. The commissioner determined that appellant had directly violated the no contact with minors provision, revoked appellant’s conditional release, and returned appellant to prison.

Appellant petitioned the district court for postconviction relief and a writ of habe-as corpus. In both petitions, appellant alleged that the revocation of release process violated the separation of powers doctrine and his constitutional right to due process. Appellant further claimed in his petition for a writ of habeas corpus that the sentence imposed exceeded the statutory maximum allowed and that the terms and conditions placed on his release were unconstitutional.

After a hearing, the district court dismissed the petition for writ of habeas corpus and denied the petition for postconviction relief, concluding that appellant was legally detained pursuant to the December 9, 1998 warrant of commitment and that appellant failed to prove the alleged constitutional violations beyond a reasonable doubt. Appellant appealed the district court’s decision to the court of appeals and also sought review by writ of certiorari. The court of appeals denied certiorari review, concluding that the direct appeal provided an adequate appellate remedy.

The court of appeals affirmed the district court’s denial of postconviction relief and dismissal of the writ of habeas corpus, concluding that Minnesota’s supervised and conditional release processes do not violate separation of powers and that the record supports the commissioner’s decision to revoke appellant’s conditional release. State v. Schwartz, 615 N.W.2d 85, 90, 91 (Minn.App.2000). The court of appeals also concluded that Schwartz was not unlawfully detained beyond the terms of his sentence. Id. at 91.

In this appeal, appellant again asserts that he is being unlawfully detained beyond the imprisonment term of his sentence. He specifically argues that Minn. Stat. § 243.05 and the rules promulgated thereunder, and Minn.Stat. § 609.109, subd. 7, which authorize the commissioner to administer and rescind supervised and conditional release, violate the Separation of Powers provision of the Minnesota Constitution. Appellant also argues that the no contact with minors condition is not valid or enforceable against him.

I

Appellant’s constitutional challenge presents a question of law, which this court reviews de novo. State v. Behl, 564 N.W.2d 560, 566 (Minn.1997). In reviewing the constitutionality of a statute, every presumption is invoked in favor of upholding the statute, so that statutes will be declared unconstitutional only when absolutely necessary. Id. Here appellant bears the burden of establishing that the commissioner’s authority over the release program is unconstitutional beyond a reasonable doubt. Baker v. State, 590 N.W.2d 636, 638 (Minn.1999).

Appellant challenges the broad statutory authority of the commissioner to control the release and re-incarceration of individuals, specifically as this authority is exercised over his sex offender conditional release term. Minnesota Statutes § 243.05 authorizes the commissioner to release certain persons sentenced to a state adult correctional facility and to adopt rules setting standards and procedures for granting and revoking release. Minn.Stat. § 243.05, subds. 1, 2; see Minn. Stat. § 244.05, subd. 2 (2000); Minn. R. 2940.0100-4500 (1997).

Two types of authorized release are pertinent here. Supervised release is the current term for the release practice formally known as parole. For felony offenses committed on or after August 1, 1993, a period of supervised release follows the term of imprisonment. MinmStat. §§ 244.01, subds. 7, 8, (2000), 244.05, subd. 1(b) (1998). The term of imprisonment is presumptively equal to two-thirds of the executed sentence, with the remaining time to be served as supervised release subject to alteration for in-prison disciplinary offenses. Minn.Stat. §§ 244.01, subd. 8, 244.05, subd. 1(b). A person on supervised release remains in the state’s legal custody and is subject to re-incarceration for breach of a condition of release. Minn. Stat. §§ 243.05, subd. 1(b), 244.05, subd. 3 (2000); State v. Meyer, 228 Minn. 286, 301-02, 37 N.W.2d 3,13 (1949) (noting that a person released on parole remains in the legal custody of the state). Pursuant to this statutory framework, when appellant completed his term of imprisonment in May 1999, a portion of his sentence remained to be served as supervised release.

In addition to supervised release, appellant’s executed sentence included a conditional release term of 5 years, pursuant to the conditional release of sex offenders statute, MinmStat. § 609.109, subd. 7. The conditional release statute requires that persons convicted of specified criminal sexual conduct crimes are placed on conditional release for a 5 or 10 year period following the sentence imposed for their offense, less the time served on supervised release. MinmStat. § 609.109, subd. 7(a). We have repeatedly stated that conditional release is a mandatory aspect of the sentence to be imposed by the district court on statutorily designated sex offenders. E.g., State v. Brown, 606 N.W.2d 670, 673-74 (Minn.2000); State v. Humes, 581 N.W.2d 317, 319 (Minn.1998). The conditional release statute expressly states that, unless otherwise provided, the provisions relating to supervised release govern conditional release. MinmStat. § 609.109, subd. 7(b). Furthermore, like supervised release, if a convicted sex offender violates a condition of release, the commissioner may re-incarcerate the offender. Id.

Appellant contends that this statutory delegation of authority to the commissioner violates the Separation of Powers provision of the Minnesota Constitution. That provision reads:

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

Minn. Const, art. Ill, § 1. Specifically, appellant argues that the commissioner’s authority over supervised and conditional release invades the province of the judiciary because the commissioner, a member of the executive branch, has the power to sentence appellant to a new prison term without meaningful judicial intervention. Appellant argues that this is a usurpation of a power traditionally reserved to the judicial branch.

We have stated that the legislature is vested with the “power to prescribe punishment for criminal acts” and the judiciary’s role is to “impose sentences within the statutory limits prescribed by the legislature.” State v. Pflepsen, 590 N.W.2d 759, 764 (Minn.1999). Here, the jury convicted appellant of two counts of criminal sexual conduct in the second degree, a violation for which Minn.Stat. § 609.109, subd. 7(a) compels a 5-year conditional release term. When appellant violated the terms of his probation, the district court included the mandatory 5-year conditional release term on the warrant of commitment executing appellant’s sentence. After serving his term of imprisonment, appellant was released to serve the balance of his sentence — the term of supervised release, as well as the 5-year conditional release term — under the authority of the commissioner.

Appellant argues that the statutes at issue here are unconstitutional because, similar to the legislatively created administrative child support process that we struck down on separation of powers grounds in Holmberg v. Holmberg, 588 N.W.2d 720, 726 (Minn.1999), the commissioner’s authority to control supervised and conditional release revocation usurps and interferes with functions of the judiciary. As illustrated in Holmberg, the threshold inquiry is whether there is in fact an infringement on the original jurisdiction of the courts. Id. at 724. Under the sentence executed by the district court, appellant was committed to the commissioner for a set period of time which included the 5-year conditional release term. The commissioner’s subsequent revocation and re-incarceration decision does not alter the sentence of the court or impose a new sentence, but merely executes a condition within the parameters set by the court for appellant’s commitment to the commissioner. See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (stating that “the revocation of parole is not part of a criminal prosecution” and parole itself “arises after the end of the criminal prosecution, including imposition of sentence” and is supervised by an administrative agency and not by the court). Thus, revocation of release does not remove from the district court a class of cases within the court’s original jurisdiction, as in Holmberg.

Our analysis is further informed by the recent decision of the Ohio Supreme Court upholding Ohio’s post-release control statute against a separation of powers challenge. See Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103, 1110 (2000). In essence, the Ohio Supreme Court concluded that post-release control is part of the sentence imposed by the judiciary, and the executive branch’s authority to impose sanctions during release does not impede the judiciary’s sentencing authority. Id. The court noted that the executive branch’s discretion to impose sanctions during release comports with the longstanding practice of affording the executive branch “absolute discretion” over the release portion of an offender’s sentence. Id. at 1109. Moreover, the court stated that the post-release control sanctions are not mere punishment for another crime, but rather for behavior modification and reintegration of the offender into the community. Id. at 1110. For these reasons, the court held that the executive branch’s discretionary power to compel post-release control sanctions does not violate separation of powers. Id.

We agree with this reasoning and conclude that the commissioner’s statutory authority over supervised and conditional release operates within and does not impede the court’s sentencing authority. Thus, we hold that appellant has not met his burden of showing that the commissioner’s statutory authority over supervised and conditional release violates separation of powers.

II.

Appellant next challenges the conditional release condition that he have no direct or indirect contact with minors without obtaining the express prior approval of his supervising agent, arguing that the condition is unreasonable, unduly restrictive, vague, and therefore unenforceable. He further contends that, even if the condition is valid and enforceable, there is no support in the record for the commissioner’s decision that appellant violated the no-contact condition.

We first consider appellant’s argument that the no-contact condition is unreasonable and unduly restrictive. We have said in the analogous context of setting probation conditions that the conditions must be reasonably related to the offense and must not unduly restrict the probationer’s liberty. State v. Friberg, 435 N.W.2d 509, 515 (Minn.1989). Applying this same test to appellant’s release conditions, the no contact with minors condition is reasonably related to Schwartz’s conviction for criminal sexual conduct with a 4-year-old. In addition, we decline appellant’s invitation to invalidate the no-contact provision on the basis that the term “contact” might conceivably be interpreted so broadly as to unduly restrict a releasee’s liberty. A restriction on the persons with whom a probationer may associate is a traditional term of probation. See ABA Standards for Criminal Justice — Sentencing, Standard 18-3.1S(d)(vii) (3d ed.1994). Similarly, a no contact with minors provision is reasonably related to the purpose of conditional release for appellant’s offense and does not unduly restrict appellant.

Finally, appellant argues that the commissioner’s revocation decision was erroneous because appellant was not adequately instructed as to the limitations of the no-contact condition. Appellant testified at his release revocation hearing that a case worker told him that contact meant something akin to starting a relationship with a minor. But appellant also admitted to knowing that, under the no-contact condition, his friends and family had to be informed about his offense and sign a waiver before appellant could obtain approval to be around their children. Hence, appellant’s own testimony refutes his contention that he did not receive sufficient notice of the limits of the no-contact condition to guide his conduct around his friend and the friend’s child. Appellant has failed to sustain his burden of proving that the no-contact condition was unconstitutional. Furthermore, contrary to appellant’s assertion, the record supports the conclusion that appellant violated the no-contact condition.

Accordingly, we hold that the commissioner’s statutory authority over supervised and conditional release does not violate separation of powers, that the no contact with minors condition was valid and enforceable here and that the record supports the commissioner’s decision to revoke appellant’s conditional release. Therefore, the district court did not err in dismissing appellant’s petition for writ of habeas corpus and denying appellant’s petition for postconviction relief.

Affirmed.

      . Pursuant to Minn.Stat. § 243.05, the commissioner has delegated to the position of executive officer of hearings and release the authority to grant and revoke prisoners’ release status. Minn.Stat. § 243.05, subd. 4; Minn. R. 2940.0100, subp. 8 (1999). Because these corrections officers are carrying out the powers and duties of the commissioner that are being challenged here, we will refer generally to the actions of the officer in this case as being the actions of the commissioner.

      . This conclusion disposes of appellant's contention that he is being unlawfully detained beyond the term of his imprisonment because he has already served the confinement time as “sentenced” by the district court. In revoking appellant's release and returning him to prison, the commissioner is not imposing a new sentence, but merely carrying out an aspect of the sentence under which the district court committed appellant to the commissioner's authority.

      . Appellant also argues that the release revocation process is void of meaningful judicial review. Given our conclusion that the commissioner's authority over supervised and conditional release does not encroach upon the authority of the judiciary, we need not engage in an analysis of the sufficiency of judicial review for separation of powers purposes. Nonetheless, we note that appellant challenged the commissioner's authority via a petition for a writ of habeas corpus under Minn.Stat. § 589.01 (2000), and a petition for postconviction relief under Minn.Stat. § 590.01 (1998). Each of these statutory provisions allows the district court to review the petition, hold a hearing if appropriate, and order relief. Thus, judicial review of the commissioner's decision is provided for by the availability of a hearing on the release revocation decision, where the district court determines a hearing is warranted.
      Likewise, the appropriate standard of review to be applied by the district court in reviewing the commissioner’s revocation decision is not before us here. Appellant does not explicitly raise the issue, aside from stating a concern that the current system deprives appellate courts of the ability to determine whether the commissioner's decision was "unreasonable, oppressive or without evi-dentiary support.” In State ex rel. Morrow v. LaFleur, we suggested in dicta that deference was due the decision of the commissioner of corrections regarding whether an inmate was amenable to sex offender treatment. 590 N.W.2d 787, 792 (Minn.), cert. denied, 528 U.S. 1013, 120 S.Ct. 517, 145 L.Ed.2d 400 (1999). However, in Morrow, the inmate did not challenge the commissioner's factual determination that he was not amenable to treatment, id. at 792; therefore, Morrow does not establish a standard of review, particularly in other contexts such as supervised or conditional release revocation.

      . Citing no authority, appellant argues that the no-contact condition "violates the rule against vagueness * * * However, we recognize the broad discretion accorded those making release decisions, including the imposition of conditions that are somewhat indefinite. Morrissey, 408 U.S. at 479, 92 S.Ct. 2593 (according parole officers the discretion to impose vague parole conditions such as avoiding " 'undesirable' associations or correspondence”). Furthermore, appellant's testimony indicates that he received sufficient guidance as to the parameters of the no-contact condition. See State v. Christie, 506 N.W.2d 293, 301 (Minn.1993) (examining criminal statute to determine whether statute afforded fair warning of the conduct prohibited in order to survive vagueness challenge).

      . As appellant does not allege that the district court applied an incorrect standard of review of the agency decision, the correct standard of review is not before us. See footnote 4, supra. Nonetheless, given that appellant does not dispute his presence in the car with the child and admitted he knew he needed permission to be around minors, even an exacting standard of review would result in the determination that conditional release was properly revoked.