author: VANDE WALLE, Chief Justice.

text:
    2004 ND 27
    Sheila K. BAIER, Petitioner and Appellant v. JOB SERVICE NORTH DAKOTA, and Prairie Chicken Inc. d/b/a Big Boy, Respondents and Appellees.
    No. 20030287.
    Supreme Court of North Dakota.
    Jan. 28, 2004.

      Bradley D. Peterson, Legal Services of North Dakota, Bismarck, N.D., for petitioner and appellant.
    Kevin McCabe, Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for respondent and appellee Job Service North Dakota.
    Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, N.D., for respondent and appellee Prairie Chicken Inc. d/b/a Big Boy.
   VANDE WALLE, Chief Justice.

[¶ 1] Sheila K. Baier appealed from a judgment of the district court affirming Job Service North Dakota’s denial of her application for unemployment benefits. We hold the agency’s decision that Baier was discharged from her job for misconduct, thereby disqualifying her from receiving unemployment benefits, is supported by a preponderance of the evidence, and we affirm.

I

[¶ 2] On October 6, 2001, Baier, currently age 37, began employment as a customer service worker with Prairie Chicken, Inc., doing business as Big Boy in Bismarck. The business is a fast-food restaurant and, as a customer service worker, Baier would pack chicken for orders, make drinks, sweep the floors, stock supplies, wash dishes, and do other similar duties. In December 2002, Baier complained to Donald Brandt, the restaurant’s manager who also supervised Baier, that a coworker, currently age 18, “was picking on her and calling her names.” Brandt met with Baier and the coworker on December 31, 2002. He instructed them to stay away from each other, and he scheduled them to begin working different shifts. He also told the coworker to stop the harassing conduct.

[¶ 3] Baier continued to feel she was being harassed by the coworker. She did not inform Brandt about it, but on January 7, 2003, she filed a complaint with local law enforcement. The police investigated the matter and visited about it with Brandt and other employees at the business. On January 16, 2003, the police department informed Baier there was inadequate support for her complaint and the officers would not pursue the matter any further. Baier became angry and placed a telephone call to Brandt on that day. During the telephone conversation, she told Brandt he had lied to the police and also had caused other employees to lie to the police. She told Brandt she would not allow him to date her or to be her boyfriend. Brandt immediately informed Baier that she was being terminated and that she need not come back to work.

[¶4] After she was terminated, Baier applied for unemployment benefits. The application was initially accepted and the employer requested a review. After an evidentiary hearing, an administrative referee determined Baier was terminated for misconduct on the job which disqualified her from receiving unemployment benefits. The case was appealed to the district court, which affirmed the agency’s decision.

II

[¶ 5] On appeal, Baier asserts Job Service erred in concluding her statements made to the manager during the January 16, 2003, phone call constituted misconduct for purposes of disqualifying her from receiving unemployment compensation benefits. The unemployment compensation program is a joint federal-state system in which each state receives federal funds and administers the program. Morris v. Job Service North Dakota, 2003 ND 45, ¶ 6, 658 N.W.2d 345. The dual objectives of unemployment compensation are to soften the harsh impact of involuntary unemployment and the competing objective of protecting employers from “quits” that have nothing to do with the employer or the employment and from dismissals based upon employee misconduct'. Johnson v. Job Service North Dakota, 1999 ND 42, ¶ 10, 590 N.W.2d 877. A person is disqualified from receiving unemployment benefits under N.D.C.C. § 52-06-02(2) if discharged for misconduct in connection with employment. Stalcup v. Job Service North Dakota, 1999 ND 67, ¶ 7, 592 N.W.2d 549. Although not defined by statute, the term “misconduct” is defined in our caselaw:

Misconduct is limited to conduct evincing such wilful [sic] or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, -wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

Id.

[¶ 6] In an appeal from an administrative agency decision, we review the decision of the administrative agency, rather than that of the district court, although the district court’s analysis is entitled to respect. Wanner v. North Dakota Workers Compensation Bureau, 2002 ND 201, ¶ 8, 654 N.W.2d 760. Under N.D.C.C. §§ 28-82-46 and 28-32-49, we affirm an agency’s decision unless (1) the decision is not in accordance with the law; (2) the decision violates the appellant’s constitutional rights; (3) the provisions of N.D.C.C. ch. 28-82 have not been complied with in the agency’s proceedings; (4) the agency’s rules or procedure have not afforded the appellant a fair hearing; (5) the agency’s findings of fact are not supported by a preponderance of the evidence; (6) the agency’s conclusions of law are not supported by its findings of fact; (7) the agency’s findings of fact do not sufficiently address the evidence presented by the appellant; or (8) the agency’s conclusions of law do not sufficiently explain its rationale for not adopting any contrary recommendations by a hearing officer or administrative law judge. Id.

[¶ 7] When reviewing an agency decision that an employee was terminated for misconduct disqualifying that employee from receiving unemployment compensation benefits, we utilize the following standards:

The nature of the employment is a consideration when deciding whether an employee’s conduct constitutes misconduct. The issue is a mixed question of fact and law. The evidence must support its findings of fact which, in turn, must sustain its conclusion regarding misconduct. If confronted with disputed facts, we defer to Job Service’s factual conclusions and ascertain only whether a reasoning mind could have reasonably determined the factual conclusions were proven by a preponderance of the evidence. However, when the facts are undisputed, and contradictory inferences cannot reasonably be drawn from those undisputed facts, we review the legal conclusion anew.

Johnson, 1999 ND 42, ¶ 12, 590 N.W.2d 877 (citations omitted).

[¶ 8] Brandt testified at the administrative hearing that after Baier accused him of lying and also of causing other employees to lie to the police he terminated her, because he believed Baier’s attitude would make it difficult for her to continue working in the office with others. He testified the job requires the employees to work as a team and he did not believe other employees could continue to work with Baier after she had accused them of lying.

[¶ 9] The issue of Baier’s perceived harassment by another coworker was promptly dealt with by Brandt when she informed him of the problem in December 2002. He discussed the issue, told the coworker to stop the behavior, and assigned Baier and the coworker to different work shifts. Thereafter, Baier felt the harassment was continuing, but she testified that she did not inform Brandt of the coworker’s continued misconduct because “I just felt like he wouldn’t listen to me.” Baier also testified that, after she had made the accusations to Brandt about his lying to the police and causing others to lie to them, she reviewed the police report and realized that Brandt had not lied and she was “not sure” that he had caused others to lie to the police. She testified that her telephone comment about not allowing Brandt to ever be her boyfriend “came out of nowhere” and she said it because she was upset with the police report.

[¶ 10] The administrative referee made the following specific findings:

[T]he greater weight of the evidence in the record gives rise to a determination that the claimant deliberately violated a standard of behavior that she owed the employer as its employee. The claimant was deliberate in her actions in not only accusing the employer of lying to the police, but also encouraging other employees to lie to the police as well. The claimant knew what she was saying was damaging to the employer’s character and harmful to a productive workplace. The claimant did not establish that the co-worker’s alleged harassment continued after the December 2002 conference. The claimant did not attempt to bring any issues of continuing harassment to the employer’s attention after the December 2002 conference. The claimant’s statements caused irreparable harm to the employee/employer relationship.

These findings were adopted and accepted by the agency and later affirmed by the trial court. We conclude that a reasoning mind could have reasonably determined the factual conclusions were proven by a preponderance of the evidence. The underlying facts are not disputed and contradictory inferences cannot reasonably be drawn from those undisputed facts, and we, therefore, review anew the legal conclusion that Baier’s actions constituted disqualifying misconduct. Johnson, 1999 ND 42, ¶ 12, 590 N.W.2d 877.

[¶ 11] Misconduct exists where the employee displays a willful or wanton disregard of the employer’s interest. Hjelden, 1999 ND 234, ¶ 8, 603 N.W.2d 500. An employee who deliberately violates or disregards standards of behavior which the employer rightfully expects is guilty of disqualifying misconduct. Medcenter One, Inc. v. Job Service North Dakota, 410 N.W.2d 521, 523-24 (N.D.1987). When the police informed Baier that her complaint was not going to be pursued, she called Brandt, on January 16, 2003, and accused him and other employees of lying to the police, thereby sowing seeds of confrontation among the workforce. Baier admits her accusations that Brandt and other employees lied were not supported by the police report, which she failed to review until after she had placed the phone call and made the accusations. Furthermore, Baier admits that her inferential reference of sexual misconduct by Brandt in saying that he could never be her boyfriend “came out of nowhere.” We conclude this conduct by Baier constituted more than an isolated episode of poor judgment. See Hulse v. Job Service North Dakota, 492 N.W.2d 604, 608 (N.D.1992). Rather, Baier’s conduct evinces a willful and deliberate disregard of standards of behavior which her employer had the right to expect of an employee and shows an intentional and substantial disregard of her employer’s interests and of her own duties and obligations to the employer.

Ill

[¶ 12] We conclude the findings of Job Service are supported by a preponderance of the evidence and its legal conclusion that Baier’s actions constituted disqualifying misconduct is supported by the findings. We, therefore, affirm the district court judgment upholding Job Service’s denial of Baier’s application for unemployment compensation benefits.

[¶ 13] DALE Y. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    2004 ND 19
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 3 with Chambers in Fargo, North Dakota, East Central Judicial District.
    No. 20040029.
    Supreme Court of North Dakota.
    Jan. 28, 2004.
   ORDER

[¶ 1] On January 20, 2004, the Honorable Lawrence A. Leclere, Judge of the District Court, with chambers in Fargo, East Central Judicial District, notified the Supreme Court of his intention not to seek reelection when his term ends December 31, 2004. Under Section 27-05-02.1(4), N.D.C.C., a vacancy is created.

2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy be filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] In December, 2003, this Court received comments and information on judicial service needs, population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.2, Section 4, in the East Central Judicial District, in light of the announced retirement of the Honorable Michael O. McGuire. See In the Matter of the Judicial Vacancy in District Judgeship No. 4, with Chambers in Fargo, North Dakota, East Central Judicial District, 2003 ND 190, 672 N.W.2d 464. We took judicial notice of the information contained in that file earlier this month in consideration of In the Matter of the Judicial Vacancy in District Judgeship No. 2 with Chambers in Fargo, North Dakota, East Central Judicial District, 2004 ND 2, and we do so again.

[¶ 4] For purposes of the consultation provided for under Section 27-05-02.1(4), N.D.C.C., the notice and comment period afforded the lawyers and judges of the district in Judicial Vacancy, East Central Judicial District, 2003 ND 190, 672 N.W.2d 464, is sufficient for determining the disposition of this vacancy.

[¶ 5] Under the criteria of Section 4 of N.D. Sup.Ct. Admin. R. 7.2, the Court has again considered all submissions received by the Court in Judicial Vacancy, East Central Judicial District, 2003 ND 190, 672 N.W.2d 464, and its own administrative records on state-wide weighted caseload data.

[¶ 6] This Court concludes that the office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship No. 3 at Fargo in the East Central Judicial District be filled, that an election for this office be held, and that this office appear on the 2004 primary and general election ballots in North Dakota.

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


author: PER CURIAM.

text:
    2004 ND 18
    In the Matter of the APPLICATION FOR DISCIPLINARY ACTION AGAINST Richard C. WILKES, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Richard C. Wilkes, Respondent.
    No. 20040012.
    Supreme Court of North Dakota.
    Jan. 26, 2004.
   INTERIM SUSPENSION CONTINUED.

PER CURIAM.

[¶ 1] An Application for the Interim Suspension of Richard C. Wilkes, a member of the bar of North Dakota, was filed January 8, 2004, under N.D.R. Lawyer Discipl. 8.4, and served on Wilkes. On January 15, 2004, with no response or request for hearing having been filed by Wilkes as permitted by N.D.R. Lawyer Displ. 3.4(B), this Court entered an Order for the Interim Suspension of Wilkes, Disciplinary Board v. Wilkes, 2004 ND 13, 673 N.W.2d 614 based on information that Wilkes had committed misconduct and that there is a substantial threat of irreparable harm to the public.

[¶ 2] Following entry of the Order for Interim Suspension, Wilkes requested, under N.D.R. Lawyer Discipl. 3.4(B), an opportunity to demonstrate that the Order should not remain in force. A Response to Order of Interim Suspension, Affidavit of Jon J. Jensen, and Exhibits in Support were filed January 21, 2004.

[¶ 3] Wilkes asserts there is insufficient evidence to establish that his conduct is causing or is likely to cause immediate and serious injury to a client or the public. He, further asserts the heirs of the two estates will be adequately protected through the investigation of Disciplinary Counsel and through their recent retention of their own counsel within the State of North Dakota.

[¶ 4] A hearing was held in this matter on January 22, 2004. Wilkes’ counsel and Disciplinary Counsel presented arguments to the Court. Subsequent to the argument, an Affidavit' of' Richard C. Wilkes and a Reply of Disciplinary Counsel were filed.

[¶ 5] Wilkes has not demonstrated to the satisfaction of this Court that the Order of Interim Suspension should not be continued for the protection of the public. It is therefore ORDERED that this Court’s Order of Interim Suspension entered January 15, 2004, is .continued in effect.

[¶ 6] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, DALE Y. SANDSTROM, MARY MUEHLEN MARINÓ, and CAROL RONNING KAPSNER, JJ„ concur.


author: KAPSNER, Justice. MARING, Justice,

text:
    2004 ND 29
    FIRST UNION NATIONAL BANK as Indenture Trustee, Plaintiff and Appellee v. RPB 2, LLC, a Colorado Limited Liability Company, d/b/a Palace Arms Hotel and Bismarck Hotel; Robert P. Brown; WML Services Corporation; David Schumacher; Alexandra K. Johnson; Mariner Construction, Inc.; Dakota Boys Ranch; Workforce Safety & Insurance; North Dakota State Tax Commissioner; United States of America; Bismarck Capital, LLC; Robert J. Pepe and Claire Pepe; Don Hermanson, dba Able Painting & Contracting; any person in possession; and all persons unknown, claiming any estate or interest in, or lien or encumbrance upon, the real estate described in the Complaint, Defendants. Don Hermanson, dba Able Painting & Contracting, Defendant and Appellant.
    No. 20030021.
    Supreme Court of North Dakota.
    Jan. 28, 2004.

      Lawrence R. Klemin (argued), and Steven M. Bitz (appeared), third-year law student, Bueklin, Klemin & McBride, Bismarck, ND, for plaintiff and appellee First Union National Bank.
    Michael J. Maus, Hardy, Maus & Nord-sven, P.C., Dickinson, ND, for defendant and appellant Don Hermanson, dba Able Painting & Contracting.
   KAPSNER, Justice.

[¶ 1] Don Hermanson, doing business as Able Painting and Contracting (“Her-manson”), appeals the district court’s summary judgment dismissal of his mechanic’s lien. The district court concluded the plain language of the statute did not require consideration to waive a lien and Hermanson signed an effective lien waiver. We conclude the district court did not err when it dismissed Hermanson’s claim of a mechanic’s lien on the Palace Arms Hotel (“hotel”) located in Bismarck, North Dakota, because Hermanson signed a valid lien waiver.

[¶ 2] On February 14, 2000, Herman-son began renovation work in the hotel pursuant to a series of eleven contracts signed by Hermanson and Robert Brown, doing business as RPB 2, LLC (“Brown”). Hermanson continued work on the hotel through October 20, 2001. During this time, Hermanson received no payment from Brown for work on the project, although Brown promised future payment to Hermanson with funds to be secured through refinancing efforts or sale of the hotel.

[¶ 3] Brown purchased the hotel subject to a mortgage which was later assigned to First Union National Bank (“First Union”), the plaintiff in this action claiming priority over Hermanson. First Union’s mortgage was filed on March 26, 2001.

[¶ 4] On September 13, 2001, Herman-son filed a Notice of Intention to Claim a Mechanic’s Lien on the hotel. Shortly thereafter, Brown 'asked Hermanson to sign a mechanic’s lien release so Brown could secure refinancing or sell the hotel and pay Hermanson from the proceeds. Hermanson filed a Release of Notice of Intention to File Mechanic’s Lien on October 5, 2001. The release, in pertinent part, stated, “Hermanson ... releases the hereinafter described property from potential claim to a Mechanic’s Lien for any services arising prior to the date of this Release.” Closing on the financing never occurred and Brown defaulted on the mortgage to First Union. First Union filed foreclosure proceedings on December 14, 2001.

[¶ 5] On November 23, 2001, Herman-son filed a Notice of Intent to File a Mechanic’s Lien and he filed an Amended Notice of Intent to File Mechanic’s Lien on December 14, 2001. On January 16, 2002, Hermanson again filed a mechanic’s lien against the hotel. He now claims priority over First Union’s mortgage because visible improvements to the hotel began before First Union filed its mortgage and the mechanic’s hen release he filed on October 5, 2001, was invalid due to failure of consideration.

[¶ 6] The district court found Herman-son could not re-assert his mechanic’s lien. The district court found Hermanson signed a valid lien release, and it did not require consideration to be valid because the plain language of the North Dakota statute does not require consideration. We agree.

I.

[¶ 7] This is an appeal from summary judgment. This Court reviews summary judgment de novo on the entire record. Collette v. Clausen, 2003 ND 129, ¶ 9, 667 N.W.2d 617. Summary judgment is a “procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result.” Northern Plains Alliance v. Mitzel, 2003 ND 91, ¶ 8, 663 N.W.2d 169 (citing Skjervem v. Minot State Univ., 2003 ND 52, ¶ 4, 658 N.W.2d 750). The moving party must establish there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Mitzel, at ¶ 8. The court will view the evidence in a light most favorable to the nonmoving party. Id. The court gives the benefit of all favorable inferences which can reasonably be drawn from the evidence to the nonmoving party. Id. Summary judgment is appropriate when a party fails to establish the existence of a factual dispute he would have to prove at trial. Id.

II.

[¶ 8] A party entitled to a mechanic’s lien may waive that right by a signed writing. N.D.C.C. § 35-27-02. A party may also be estopped from asserting a mechanic’s hen by conduct constituting estoppel. See Peterson Mech., Inc. v. Nereson, 466 N.W.2d 568, 571 (N.D.1991)(citing Sussel Co. v. First Fed. Sav. and Loan Ass’n of St. Paul, 304 Minn. 433, 232 N.W.2d 88 (1975)). The facts of this case do not present an estop-pel situation. This Court has previously-held that a lien waiver is the voluntary and intentional relinquishment of a known right or privilege. Peterson, at 571. The presence of a valid lien waiver precludes the assertion of a mechanic’s lien. Id.

[¶ 9] The issue is whether consideration is required for an effective lien waiver. The district court concluded, as a matter of law, the plain language of the North Dakota mechanic’s lien statute did not require consideration for a valid lien waiver. The applicable North Dakota statute provides:

Any person who improves real estate by the contribution of labor, skill, or materials, whether under contract with the owner of such real estate or under contract with any agent, trustee, contractor, or subcontractor pf the owner, has a lien upon the improvement and upon the land on which it is situated or to which it may be removed for the price or value of such contribution. Provided, however, that the amount of the lien is only for the difference between the price paid by the owner or agent and the price or value of the contribution. If the owner or agent has paid the full price or value of the contribution, no lien is allowed. Provided further that if the owner or an agent of the owner has received a ivaiver of lien signed by the person who improves the real estate by the contribution of labor, skill, or materials, no lien is alloived.
Any person who extends credit or makes a contract with any agent, trustee, contractor, or subcontractor of the owner for the improvement of real estate, shall, upon demand, have the right to request and secure evidence of the legal description of the real estate upon which the improvement is located, including the name of the title owner of the real estate.

N.D.C.C. § 35-27-02 (emphasis added).

[¶ 10] This is a case of first impression. This Court has not yet ruled on whether consideration is required for a valid lien waiver. This Court first determines if a statute is ambiguous, and if so, we look to construction aids. N.D.C.C. § 1-02-39. The statute does not state consideration is required for a lien waiver. N.D.C.C. § 35-27-02. To the extent the statute can be considered ambiguous because of this omission, the legislative history is not helpful. Legislative history on this issue does not directly state whether consideration for a lien waiver was contemplated at the time the current mechanic’s lien statute legislation was proposed or subsequently modified. Hearing on S.B. 2300 Before the Comm, on Industry, Business and Labor, 46th N.D. Legis. Sess. (January 31, 1979); Hearing on S.B. 2300 Before the Comm, on Industry, Business and Labor, 46th N.D. Legis. Sess. (March 12, 1979).

[¶ 11] Hermanson argues North Dakota should read into the statute that consideration is necessary for an effective hen waiver, because Minnesota requires consideration for an effective lien waiver. We disagree. Minnesota’s lien statute is distinct from North Dakota’s statute, both in language and prior interpretive case law.

[¶ 12] Historically, Minnesota law requires consideration for a mechanic’s lien waiver to be valid. See Sussel Co. v. First Fed. Sav. and Loan Ass’n of St. Paul, 304 Minn. 433, 232 N.W.2d 88, 90 (1975). Minnesota’s lien statute does not specifically state consideration is required for a valid waiver. Minn.Stat. § 514.07. However, Minnesota has substantial case law on the subject and has long held consideration is required for a valid lien waiver. Sussel, 232 N.W.2d at 90; McLellan v. Hamernick, 264 Minn. 345, 118 N.W.2d 791 (1962); Project Plumbing Co. v. St. Croix Prop., Inc., 297 Minn. 409, 211 N.W.2d 873 (1973); Cook v. Metal Bldg. Prod., Inc., 297 Minn. 330, 211 N.W.2d 371 (1973); Abbott v. Nash, 35 Minn. 451, 29 N.W. 65 (1886). North Dakota has no such history requiring consideration for a valid lien waiver.

[¶ 13] In contrast to Minnesota’s case law in which consideration is required, Wisconsin’s statute does not require consideration for an agreement to be binding. Wisconsin’s mechanic’s lien- statute provides:

Any document signed by a lien claimant or potential 'claimant and purporting to be a waiver of construction lien rights under this subchapter, is 'valid and binding as a waiver whether or not consideration was paid therefor and whether the document was signed before or after the labor or material was furnished or contracted for. Any ambiguity in such document shall be construed against the person signing it. Any waiver document shall be deemed to waive all lien rights of the signer for all labor and materials furnished or to be furnished by the claimant at any time for the improvement to which the waiver relates, except to the extent that the document specifically and expressly limits the waiver to apply to a particular portion of such labor and materials. A lien claimant or potential lien claimant of whom a waiver is requested is entitled to refuse to furnish a waiver unless paid in full for the work or material to which the waiver relates. A waiver furnished is a waiver of lien rights only, and not of any contract rights of the claimant otherwise existing.

Wis. Stat. § 779.05(1) (emphasis added).

[¶ 14] Mechanic’s lien statutes vary from state to state and are inconsistent on whether consideration is required for a valid waiver. See Minn.Stat. § 514.07; Wis. Stat. § 779.05; Ca. Civ.Code § 3262; 770 Ill. Comp. Stat. 60/1 (expressly stating lien waivers are enforceable); 49 Pa. Cons. Stat. § 1401 (providing that lien waivers may be effectuated through written agreement or facts constituting estoppel).

[¶ 15] In Nevada, a contractor signed a lien waiver contained in a construction contract. Dayside Inc. v. Dist. Court, 75 P.3d 384 (Nev.2003). After failing to receive payment, the contractor sought to enforce a mechanic’s lien, arguing the waiver provision in the original contract was void because it was against public policy. Id. at 385. The district court granted a partial summary judgment and dismissed the mechanic’s lien. The Nevada Supreme Court denied a petition for a writ of mandamus to reverse the partial summary judgment and restore the mechanic’s lien, concluding a prior waiver of a mechanic’s lien contained in a construction contract is not void as against public policy. Id. at 387-88.

[¶ 16] The Nevada Supreme Court recognized the split among jurisdictions as to the validity of. prior lien waivers contained in construction contracts and whether consideration was required for such a waiver to be effective. Id. at 386-87. In Dayside, the court explained Nevada legislation was silent on the issue of whether such lien waivers were effective, and absent a legislative proclamation, the court ruled a prior waiver of a mechanic’s hen is not contrary to public policy. Id. at 387. The Nevada court noted, “[a] waiver provision merely limits the avenues available to a contractor to collect for expended materials or labor in the event the owner fails to pay.” Dayside, 75 P.3d at 387 (citing Pero Bldg. Co., Inc. v. Smith, 6 Conn.App. 180, 504 A.2d 524, 527 (1986)). The intent demonstrated by the language of the release executed by Hermanson is similar to that which was upheld by the Nevada Supreme Court.

[¶ 17] This Court will not add words or additional meaning to a statute. Haggard v. Meier, 368 N.W.2d 539, 541 (N.D.1985). Essentially, Hermanson is asking this Court to add words to the mechanic’s lien statute which would require consideration to validate a lien waiver. We decline to do so. North Dakota’s mechanic’s lien law provides persons entitled to mechanic’s lien with the opportunity to waive the lien either by a signed writing, or through facts indicating estop-pel. Peterson Mech., Inc. v. Nereson, 466 N.W.2d 568, 571 (N.D.1991). The plain language of the statute does not require consideration for an effective lien waiver. To the contrary, the plain language of the statute indicates that a written lien waiver is sufficient without separate consideration because when a written lien waiver has been signed by the person who improves the real estate, “no lien is allowed.” N.D.C.C. § 37-27-02.

[¶ 18] We are persuaded that this language indicates the legislature concurred in the reasoning offered by the drafters of the Uniform Construction Lien Act:

The giving of hen waivers by subcontractors and materialmen has been a pervasive part of construction industry practice and is likely to continue to be so under this Act. The execution of a written waiver practically always is the knowing act of the claimant, is generally given to facilitate the financing of the project, and is relied upon by the construction lender, owner, and others, in dealing with the prime contractor. Therefore, under this Act, a written waiver is binding without consideration.

Uniform Construction Lien Act, § 215, cmt. 1 (1987).

[¶ 19] The Uniform Construction Lien Act was first developed in 1976 as a part of the Uniform Simplification of Land Transfers Act in an effort to modernize and lend uniformity to mechanic’s and construction hen laws. Uniform Construction Lien Act, prefatory note (1987). In 1981, Nebraska adopted the UCLA in its entirety from the USLTA, while other states have chosen to partially adopt it. Neb.Rev.Stat. §§ 52-125 to 159; Marion W. Benfield, Jr., The Uniform Construction Lien Act: What, Whither, and Why, 27 Wake Forest L.Rev. 527 (1992).

[¶ 20] We are persuaded that the plain language of North Dakota’s mechanic’s hen statute does not require consideration for a signed writing waiving an individual’s right to a mechanic’s lien to be effective.

III.

[¶ 21] Hermanson argues his mechanic’s hen waiver is void, because Brown fraudulently induced Hermanson to file the waiver based on promises he would pay Hermanson from the proceeds from refinancing or sale of the hotel. Generally, fraud may destroy the validity of a waiver or release of a mechanic’s lien. 53 Am.Jur.2d Mechanics’ Liens § 294 (2003). In order for an individual to allege a waiver was fraudulently induced, he must plead sufficient facts which demonstrate a false representation and prove the required intent. Id.

[¶ 22] The burden is on the party asserting fraud to establish the elements of fraud. See Hablas v. Armour and Co., 270 F.2d 71, 77 (8th Cir.1959) (applying North Dakota to a case involving allegations of fraud in an employment situation). “Among such elements is an intent to deceive.” Id. An individual asserting fraud must prove it by clear and convincing evidence. Id. Fraud is never presumed, even under circumstances that give rise to suspicion of fraud. Id.

[¶ 23] In this case, Hermanson failed to plead facts sufficient to demonstrate fraud at the district court level. Hermanson argues Brown fraudulently induced Her-manson to file the release when Brown promised to pay him from the proceeds collected through refinancing efforts. In order to determine fraud prevented the lien waiver from being effective, Herman-son would have to show Brown never intended to pay Hermanson from the proceeds of his refinancing efforts. See Mid-West Eng’g and Constr. Co. v. Campagna, 397 S.W.2d 616, 626-27 (Mo.1965) (holding fraud exists where lien waivers were elicited based on documentary evidence misrepresentation). Hermanson presented no evidence which would allow this Court to infer Brown never intended to pay Her-manson out of the proceeds of his refinancing efforts.

[¶ 24] Hermanson’s own evidence does not reflect the necessary intent by Brown to commit fraud on Hermanson. In an affidavit of Brown submitted by Herman-son, Brown states, “[t]he intent at all times being that payment would be made at such time as refinancing and/or sale of the hotel property occurred.” Brown further stated, “RPB2, LLC, throughout the contract period, had promised Hermanson that payment would be forthcoming upon refinancing and/or sale of the property.” These statements indicate that at the time of his promise to Hermanson, Brown intended to pay Hermanson when he was able to secure refinancing or sale of the hotel.

[¶ 25] If fraud was present in this case, Hermanson admits the fraud was committed by Brown against Hermanson and not by First Union. When Herman-son signed the lien waiver he knew he was relinquishing a legal right. Hermanson relied on Brown’s assurances he would be paid from funds secured through refinancing or sale of the hotel. This may be relevant as to securing a judgment against Brown, but does not assist Hermanson as to his claim to priority over the mortgage of First Union. There is no evidence First Union perpetrated fraud or fraudulently induced Hermanson to sign the waiver.

[¶ 26] We affirm the district court’s summary judgment dismissal of Herman-son’s mechanic’s lien.

[¶ 27] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

concurring specially in the result.

[¶ 28] I concur in the result. I am of the opinion that adequate consideration is required for the waiver of a lien to be valid. 53 Am.Jur.2d Mechanics’ Liens § 289 (1996). North Dakota has not adopted the Uniform Construction Lien Act. I am also of the opinion that an increased expectation of payment for work performed and materials supplied is sufficient legal consideration to support a waiver of lien rights. Bialowans v. Minor, 209 Conn. 212, 550 A.2d 637, 639 (1988); Dayside Inc. v. First Judicial Dist. Court, 75 P.3d 384, 387 (Nev.2003).

[¶ 29] Hermanson signed a release of mechanic’s lien based on the representation by Brown that the release was necessary for Brown to obtain refinancing and that Hermanson would be paid thereafter from the refinancing funds. Accordingly, Hermanson received adequate consideration from Brown for the release of the mechanic’s lien.

[¶ 30] Therefore, I would affirm the judgment of the trial court.

[¶ 31] Mary Muehlen Maring.

      . "The idea of an agreement binding without consideration is not new to the law.” Uniform Construction Lien Act § 215, cmt. 1 (1987). The Uniform Commercial Code § 2-209 and the Uniform Land Transactions Act § 1-310 do not require consideration for agreement modifications to be' binding. Id.

      . On June 10, 2003, Nevada's lien statute was substantially revised to include provisions strictly circumscribing attempts to waive or impair the lien rights of a contractor, subcontractor, or supplier, except where the claimant has executed a signed release. S.B. 206, § 26, 72d Leg. (Nev.2003). This statute did not apply because it is applicable only to contracts made on or after October 1, 2003.


author: NEUMANN, Justice. VANDE WALLE, Chief Justice, MARING, Justice,

text:
    2004 ND 21
    Gary WINER, Plaintiff and Appellant v. PENNY ENTERPRISES, INC., Jerrid Mudgett, Sr., individually and as the next friend and guardian of his minor son, Jerrid Mudgett, Jr., Defendants and Appellees.
    No. 20030114.
    Supreme Court of North Dakota.
    Jan. 28, 2004.
    Rehearing denied Feb. 25, 2004.

      Peter K. Halbach, Haugland, Halbach and Halbach, Devils Lake, N.D., for plaintiff and appellant.
    Daniel M. Traynor, Traynor, Rutten & Traynor, P.C., Devils Lake, N.D., for defendants and appellees.
   NEUMANN, Justice.

[¶ 1] Gary Winer appealed from an order and judgment dismissing, without prejudice, his personal injury action against Jerrid Mudgett, Sr., and Jerrid Mudgett, Jr., for lack of subject-matter jurisdiction, and against Penny Enterprises, Inc., for nonjoinder of the Mudgetts as indispensable parties. We conclude the district court correctly ruled it lacked subject-matter jurisdiction over this action brought by a non-Indian plaintiff against Indian defendants for damages resulting from a motor vehicle accident occurring on a state highway within the exterior boundaries of the Spirit Lake Indian Reservation. We affirm.

I

[¶ 2] Jerrid Mudgett, Sr., and his minor son Jerrid Mudgett, Jr., live in Benson County and are enrolled members of the Spirit Lake Tribe. Jerrid Mudgett, Sr., is employed by Penny Enterprises, Inc., which is a domestic corporation organized under North Dakota law with its principal place of business at St. Michael, within the exterior boundaries of the Reservation. Gary Winer is not an Indian but lives in St. Michael. On August 25, 2000, the Mudgetts and Winer were involved in a motor vehicle accident on North Dakota Highway 20 within the exterior boundaries of the Reservation.

[¶ 3] In December 2000, Winer sued Jerrid Mudgett, Sr., individually and as guardian of his son, and Penny Enterprises in state district court for his personal and bodily injuries received in the collision. Winer alleged Jerrid Mudgett, Sr., negligently entrusted the driving and operation of a semi truck tractor owned by Penny Enterprises to his 12-year-old son, Jerrid Mudgett, Jr., who stalled or stopped the tractor on the shoulder of the highway, where it was struck by Winer’s vehicle. Winer also alleged Penny Enterprises was negligent in its training, supervision or control of its employees and was negligent in its care and maintenance of the semi truck tractor involved in the collision. Winer sought more than $50,000 in damages.

[¶ 4] The Mudgetts and Penny Enterprises moved to dismiss for lack of subject-matter jurisdiction because the Mudgetts are enrolled members of the Spirit Lake Tribe and the incident occurred within the exterior boundaries of the Reservation. The court granted the motion in May 2001 and dismissed without prejudice the action against the Mudgetts, but did not dismiss the action against Penny Enterprises.

[¶ 5] Penny Enterprises moved for summary judgment in December 2001, arguing Jerrid Mudgett, Sr., was an independent contractor and was not acting within the scope of employment. In July 2001, the court denied the motion, but concluded Mudgett was an independent contractor and Winer had no claim of vicarious liability against Penny Enterprises. The court limited Winer’s recovery against Penny Enterprises to breach of duties arising from ownership of the semi truck tractor. In December 2002, Penny Enterprises moved to dismiss for nonjoinder of the Mudgetts as indispensable parties. Winer did not resist the motion to dismiss Penny Enterprises, and the district court dismissed the remainder of the action without prejudice in February 2003. Winer appealed.

II

[¶ 6] Ordinarily, an order dismissing a complaint without prejudice is not appealable because either side may commence another action after the dismissal. State v. Gwyther, 1999 ND 15, ¶ 10, 589 N.W.2d 575. However, a dismissal without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiffs chosen forum. Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, ¶ 12, 632 N.W.2d 407; Triple Quest, Inc. v. Cleveland Gear Co., 2001 ND 101, ¶ 8, 627 N.W.2d 379. In this case, the order and judgment effectively foreclose litigation of Winer’s action in the courts of this state. Consequently, we conclude the dismissal is appealable.

III

[¶ 7] Winer argues the district court erred in ruling it did not have subject-matter jurisdiction over his personal injury action against the Mudgetts. Winer does not argue the court erred in dismissing Penny Enterprises from the action, so we do not address that issue.

[¶ 8] There is no dispute about the jurisdictional facts relied upon by Win-er in this case. When the jurisdictional facts are not in dispute, we review the district court’s dismissal for lack of subject-matter jurisdiction de novo. Allied Mut. Ins. Co. v. Dir. of N.D. Dep’t of Transp., 1999 ND 2, ¶ 5 n. 1, 589 N.W.2d 201. The accident occurred within the exterior boundaries of the Reservation on Highway 20, which, at that location, runs on the section line of a township. The 66 foot section line right-of-way was expanded to 80 feet in 1930, and to 200 feet in 1955.

[¶ 9] Winer relied on the United States Supreme Court’s decision in Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997), where the Court held a tribal court in North Dakota did not have jurisdiction over an action brought by a non-Indian plaintiff against a non-Indian defendant seeking damages arising out of an auto accident on a state highway within the exterior boundaries of a reservation. Winer argued that, based on Strate, the accident actually occurred on state land, Highway 20, rather than on the Reserva^ tion, thus giving the state court subject-matter jurisdiction. The district court rejected this argument, concluding “a North Dakota state district court lacks subject-matter jurisdiction over an action brought by a non-Indian plaintiff against an individual Indian defendant for damages resulting from a collision on a state highway within the exterior boundaries of Indian country,” and “[t]he land ownership analysis of the accident site as asserted by Plaintiff does not usurp the status of parties’ (sic) analysis.”

[¶ 10] Some basic Indian law background is helpful to understand the positions of the parties. “Within Indian country state jurisdiction is preempted both by federal protection of tribal self-government and by federal statutes on other subjects relating to Indians, tribes, their property, and federal programs.” F. Cohen, Handbook of Federal Indian Law 349 (1982) (footnotes omitted). Civil cases where a non-Indian plaintiff seeks to sue an Indian are subject to this rule. Id. “A major step toward the transfer of federal jurisdictional responsibility over Indian affairs to the States was the passage of Public Law 280 [codified at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326, 28 U.S.C. § 1360] in 1953,” which “transferred criminal and civil jurisdiction over Indian lands from the federal to state governments in five states and allowed for future assumptions of jurisdiction by the remaining states.” Airvator, Inc. v. Turtle Mountain Mfg. Co., 329 N.W.2d 596, 599 (N.D.1983) (footnotes omitted). “In 1968 Congress passed Public Law 90-284 [codified at 25 U.S.C. § 1322] requiring Indian consent to subsequent transfers of jurisdiction.” Airvator, 329 N.W.2d at 599 (footnote omitted). In 1963, the Legislature had enacted N.D.C.C. ch. 27-19, which permits state courts to take jurisdiction over all civil causes of action which arise on an Indian reservation upon the acceptance of jurisdiction by the Indian citizens. Airvator, 329 N.W.2d at 600. “As a result, this Court has consistently held that state courts have no jurisdiction over” civil causes of action involving Indians, arising within the exterior boundaries of an Indian Reservation, unless a majority of the enrolled residents of the Reservation vote to accept jurisdiction.” Id. The Spirit Lake Tribe has not consented to civil jurisdiction of state courts. See Devils Lake Sioux Law and Order Code § 2-2-102 (“Nothing in this Code shall be deemed to constitute acceptance or waiver of jurisdiction to the State of North Dakota over any matter criminal or civil, over which the Tribal Court has jurisdiction as previously enumerated.”).

[¶ 11] Although the United States Supreme Court has held North Dakota’s disclaimer of pre-existing jurisdiction for suits brought by Indian plaintiffs is preempted by federal law, the Court has said that state court assumption of jurisdiction in cases against Indian defendants arising in Indian country is impermissible. See Three Affiliated Tribes v. Wold Eng’n, P.C., 476 U.S. 877, 880, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986) (Three Tribes II); Three Affiliated Tribes v. Wold Eng’n, P.C., 467 U.S. 138, 148, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) (Three Tribes I). In Roe v. Doe, 2002 ND 136, ¶ 8, 649 N.W.2d 566, we recently pointed out:

There are two categories of claims over which the United States Supreme Court has held tribal courts have exclusive civil jurisdiction under the infringement test. Included in the first category are those claims in which a non-Indian asserts a claim against an Indian for conduct occurring on that Indian’s reservation. See Williams [v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)]. In the second category, are those claims in which all the parties are members of the same Indian tribe and the claim involves conduct occurring on that tribe’s reservation. See Fisher v. District Court, 424 U.S. 382, 387-89, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam).

Under the infringement test of Williams v. Lee, 358 U.S. at 223, 79 S.Ct. 269 state courts have no jurisdiction over claims if it “would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves.”

[¶ 12] This Court relied upon Williams v. Lee in Schantz v. White Lightning, 231 N.W.2d 812 (N.D.1975), a case the district court found indistinguishable from the present case. In Schantz, two non-Indian plaintiffs sued in state court an Indian and the administratrix of a deceased Indian’s estate for damages resulting from a motor vehicle accident occurring “on a state highway within the boundaries of the Standing Rock Indian Reservation.” Id. at 813. When the defendants failed to answer, the plaintiffs notified the Attorney General of their intent to apply for payment of any judgment from the Unsatisfied Judgment Fund. The district court granted the Attorney General’s motion to dismiss for lack of jurisdiction, and this Court affirmed:

The Williams case involved an action by a non-Indian against a Navajo Indian for money on goods sold to the Indian on credit. The court ruled that such action would undermine the authority of the tribal courts over reservation affairs and infringe on the right of the Indians to govern themselves in accordance with the treaty between American Indian Tribes and the United States. We fail to understand how the Williams case can serve as a basis for this State to assume jurisdiction. If such supposition is correct it would follow that if an action to recover money for goods sold on credit would interfere and infringe on the right of the Indians to govern themselves, certainly an action to collect money for an injury sustained as a result of an accident would likewise infringe on the rights of the Indians to govern themselves.
In Gourneau v. Smith, 207 N.W.2d 256 (N.D.1973), this court had under consideration an almost identical situation, except the parties to the action were both enrolled Indians residing on the Indian reservation in which the accident occurred. This court pointed out that highways within an Indian reservation still constituted Indian country as defined by Federal law. See 18 U.S.C.A. Section 1151. We held that the state courts did not have jurisdiction. We have no reason to conclude otherwise in the instant case.

Id. at 814-15 (footnote omitted). See also Nelson v. Dubois, 232 N.W.2d 54, 56 (N.D.1975) (holding state court had no jurisdiction to entertain personal injury action by lion-Indian plaintiffs against Indian defendant arising out of motor vehicle accident on state highway within the exterior boundaries of reservation).

[¶ 13] Winer essentially argues that the- Supreme Court’s decision in Strate has changed the law and supports state court jurisdiction under the circumstances. In Strate, 520 U.S. at 442, 117 S.Ct. 1404 the Supreme Court held “tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question.” Strate involved a traffic accident between two non-Indians on a portion of a North Dakota state highway running through the Fort Berthold Indian Reservation, which the State maintained under a right-of-way granted by the United States. The highway was located on land held by the United States in trust for the Three Affiliated Tribes. After the tribal court ruled it had authority to adjudicate the lawsuit, the defendants sought a declaratory judgment and an injunction against further proceedings in tribal court. The Eighth Circuit Court of Appeals ruled the tribal court lacked subject-matter jurisdiction over the dispute, and the Supreme Court affirmed in a unanimous opinion.

[¶ 14] In ruling the tribal court had no jurisdiction, the Supreme Court applied the test set forth in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), “the path-marking case concerning tribal civil authority over nonmembers.” Strate, 520 U.S. at 445, 117 S.Ct. 1404. Montana holds “that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe’s political integrity, economic security, health, or welfare.” Id. at 446, 117 S.Ct. 1404. The Court rejected the argument that Montana did not govern because the land underlying the scene of the accident was held in trust for the tribe and its members, concluding the “right-of-way North Dakota acquired for the State’s highway renders the 6.59-mile stretch equivalent, for nonmember governance purposes, to alienated, non-Indian land.” Strate, 520 U.S. at 454, 117 S.Ct. 1404 (footnote omitted).

Forming part of the State’s highway, the right-of-way is open to the public, and traffic on it is subject to the State’s control. The Tribes have consented to, and received payment for, the State’s use of the 6.59 mile stretch for a public highway. They have retained no gatek-eeping right. So long as the stretch is maintained as part of the State’s highway, the Tribes cannot assert a landowner’s right to occupy and exclude.... We therefore, align the right-of-way, for the purpose at hand, with land alienated to non-Indians. Our decision in Montana, accordingly, governs this case.

Id. at 455-56, 117 S.Ct. 1404 (footnote omitted). The Court concluded that a car accident on a public highway does not meet either of Montana’s two exceptions, and concluded the tribal court had no jurisdiction.

[¶ 15] We are not convinced that Strate heralds a new analysis' for determining whether a state court has jurisdiction over an action brought against an Indian arising from conduct occurring within the exterior boundaries of an Indian reservation. In W. Canby, Jr., American Indian Law in a Nutshell, 175-76 (3rd ed.1998), the author offered the following observations about the Supreme Court’s decision in Strate:

Strate involved only nonmenabers on both sides, but it phrased the question for decision as whether a tribal court could “entertain a civil action against” nonmembers when the claim arose on a state right-of-way. Strate, 117 S.Ct. at 1407, 117 S.Ct. 1404. It also described tribal interests very narrowly. Consequently, one court of appeals has held that a tribal court could not entertain an action by a tribal member against a nonmember when the claim arose on a state highway within the reservation. Wilson v. Marchington, 127 F.3d 805 (9th Cir.1997), cert. denied, 523 U.S. 1074, 118 S.Ct. 1516, 140 L.Ed.2d 669 (1998). The state accordingly had jurisdiction. If the tribal member were the defendant, however, Williams v. Lee would require the action to be brought in tribal court. It is not yet clear whether Strate forecasts erosion of that rule for non-fee lands and state rights-of-way.

[¶ 16] We believe Strate does not govern this case for several reasons. Foremost, Strate analyzed a tribal court’s jurisdiction, rather than a state court’s jurisdiction, involving an action between non-Indians. When stating the highway right-of-way was equivalent to alienated, non-Indian land, the Court was careful to limit its description as applicable only for “nonmember governance purposes.” Strate, 520 U.S. at 454, 117 S.Ct. 1404. See also Strate, at 456, 117 S.Ct. 1404 (stating “[w]e therefore align the right-of-way, for the purpose at hand, with land alienated to non-Indians”) (emphasis added). Tribal court jurisdiction is dependent upon application of the Montana test, which governs an “Indian tribes’ regulatory authority over nonmembers.” Nevada v. Hicks, 533 U.S. 353, 358, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001). Since Strate was decided, the Supreme Court has even noted that the “ownership status of land, in other words, is only one factor to consider in determining whether [tribal] regulation of the activities of nonmembers is ‘necessary to protect tribal self-government or to control internal relations.’ ” Hicks, at 360, 121 S.Ct. 2304. Williams v. Lee is “[t]he seminal United States Supreme Court decision concerning state civil-adjudicatory authority in Indian country,” Conference of Western Attorneys General, American Indian Law Deskbook, 154 (2nd ed.1998), and state court jurisdiction was not an issue in Strate. The interests implicated when a non-Indian is sued are “very different from those present” when a non-Indian sues an Indian in state court over an incident occurring in Indian country. Three Affiliated Tribes I, 467 U.S. at 148, 104 S.Ct. 2267. The United States Supreme Court has “formulated a comprehensive pre-emption inquiry in the Indian law context which examines not only the congressional plan, but also ‘the nature of the state, federal, and tribal interests at state, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.’ ” Three Affiliated Tribes II, 476 U.S. at 884, 106 S.Ct. 2305 (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980)).

[¶ 17] Moreover, all of the cases relied upon by Winer which have applied the Strate analysis have involved situations testing tribal court jurisdiction over non-Indian defendants where the conduct occurred on a right-of-way. See Burlington N.R.R. Co. v. Red Wolf, 196 F.3d 1059, 1062 (9th Cir.1999); Wilson v. Marchington, 127 F.3d 805, 807 (9th Cir.1997); Chiwewe v. Burlington N. & Santa Fe Ry. Co., 239 F.Supp.2d 1213, 1215 (D.Ct.N.M. 2002); Austin’s Express, Inc. v. Arneson, 996 F.Supp. 1269, 1271 (D.Mont.1998). We have not found any case wherein the Strate analysis has been used to determine whether a state court has jurisdiction over a tort action brought against an Indian arising on a right-of-way within the exteri- or boundaries of a reservation. Rather, courts have refused to apply Strate beyond the context in which it was decided. See Williams v. Board of County Comm’rs, 125 N.M. 445, 963 P.2d 522, 526 (Ct.App.1998) (summarily rejecting plaintiffs argument that Strate “dictates that a state court must consider the merits of his claims” because “Strate addressed tribal court jurisdiction” and “was independent of case law holding that Indian nations may not be sued in state courts”).

[¶ 18] If Strate signals a drastic departure from the state court jurisdictional principles enunciated in Williams v. Lee and its progeny, it is well hidden in the Strate decision. Strate is distinguishable from the situation in this case, and until the United States Supreme Court declares otherwise, we conclude Strate does not govern our analysis here.

[¶ 19] Winer also argues state jurisdiction over claims arising on Highway 20 within the Reservation exists because “Highway 20 runs on the section lines granted as public highways prior to there even being a reservation.” Winer relies on Faxon v. Lallie Civil Township, 36 N.D. 634, 163 N.W. 531 (1917), for this proposition. Faxon involved an appeal from a judgment affirming a township board of supervisors’ decision to establish public highways on reservation land now known as the Spirit Lake Indian Reservation. The appellant unsuccessfully argued he was entitled to be compensated for the strip of land used for the highway. The township claimed “an easement or right to use the road” under the Public Highway Act of 1866, which granted the “right of way for the construction of highways over public lands.” Id. at 635, 163 N.W. at 532. The territorial legislature in 1871 accepted the grant and declared “all section lines in this territory” to be “public highways.” Id. The issue was whether the subsequent setting apart of the land as an Indian reservation in 1874 “reserved the land for a public use, and repealed the prior grant.” Id. at 636, 163 N.W. at 532. After noting that under an 1874 treaty with the Sisse-ton and Wahpeton Band of Sioux Indians, the Indians were paid “$80,000 for a relinquishment of all of their claims in the basin of the Red river and Devils Lake, and were granted the right to the use of the reservation,” the Court stated:

It is clear that when the reservation was accepted by the Indians, the Highway Act had been in effect over eight years and had been accepted for three years. It is also clear that the right granted to the state was not in the nature of a license, revocable at the pleasure of the grantor, but that highways once established over the public domain under and by virtue of the act became vested in the public, who had an absolute right to the use thereof which could not be revoked by the general government, and that whoever thereafter took the title from the general government took it burdened with the highways so established. Township v. Skauge, 6 N.D. 382, 71 N.W. 544.

Id. at 637, 163 N.W. at 533. The court concluded the State’s right to construct section line roads vested prior to the setting aside of the land as an Indian reservation.

[¶ 20] Faxon does not help Winer in this case. Contrary to Winer’s suggestion, the State did not receive fee simple title to the section line roads at issue. The Court specifically referred to the grant as an “easement,” Faxon, 36 N.D. at 640, 163 N.W. at 534, and this has been the description used by courts in later references to it. See, e.g., Bird Bear v. McLean County, 513 F.2d 190 (8th Cir.1975); King v. Stark County, 67 N.D. 260, 264, 271 N.W. 771, 773 (1937). In Small v. Burleigh County, 225 N.W.2d 295, 297 (N.D.1974), this Court said, “[i]n North Dakota the rights of the public to section line highways and to streets are easements only, limited to the right to travel and other rights incident thereto, and the owner of the adjoining land owns the fee title to the property included in the 33 foot easement up to the section line.” North Dakota does not have a fee simple ownership interest in Highway 20.

[¶ 21] Moreover, as the Supreme Court explained in Three Tribes I, 467 U.S. at 142-43, 104 S.Ct. 2267 (footnote omitted):

Long before North Dakota became a State, this Court had recognized the general principle that Indian territories were beyond the legislative and judicial jurisdiction of state governments. Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832); see generally Williams v. Lee, 358 U.S., at 218-222, 79 S.Ct., at 269, 271. That principle was reflected in the federal statute that granted statehood to North Dakota. Like many other States in the Midwest and West, North Dakota was required to “disclaim all right and title ... to all lands lying within [the State] owned or held by any Indian or Indian tribes” as a condition for admission to the Union. Enabling Act of Feb. 22, 1889, § 4, cl. 2, 25 Stat. 677. The Act further provided that all such Indian land shall “remain subject to the disposition of the United States, and ... shall remain under the absolute jurisdiction and control of the Congress of the United States.” Ibid. North Dakota’s original Constitution contained, in identical terms, the required jurisdictional disclaimers. See N.D. Const., Art. XVI, § 203, cl. 2 (1889).

North Dakota has disclaimed jurisdiction over Indian reservation lands.

[¶ 22] We conclude, as did the district court, that Schantz remains valid law. The exercise of state court jurisdiction over Winer’s personal injury action against the Mudgetts would infringe on the rights of the Spirit Lake Tribe to govern themselves. The district court did not err in concluding it lacked subject-matter jurisdiction over the action against the Mud-getts.

IV

[¶ 23] The order and judgment are affirmed.

[¶ 24] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, JJ., concur.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 25] If we were visiting the issue for the first time I would probably agree with Justice Maring’s analysis and conclusions. However, we are not visiting the issue for the first time. On identical facts in Nelson v. Dubois, 232 N.W.2d 54 (N.D.1975) and Schantz v. White Lightning, 231 N.W.2d 812 (N.D.1975), the Court reached a contrary conclusion. The Court did not have the benefit of Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) in reaching those decisions. However, neither is Strate on point factually since both parties in the lawsuit were non-Indian. If we were writing on a clean slate, Justice Maring’s analysis appears to be a logical interpretation of the law. However, I am not inclined to so quickly abandon a nearly 30 year precedent of this Court based on a case that is factually dissimilar, particularly when the dissimilar facts concern the tribal membership of the parties.

[¶ 26] Having served on this Court during the saga of Three Affiliated Tribes v. Wold Eng’n, P.C., 467 U.S. 138, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) and Three Affiliated Tribes v. Wold Eng’n, P.C., 476 U.S. 877, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986), it is plain to me that in matters involving jurisdiction on Indian reservations, we often are unable to know what the law is until the United States Supreme Court tells us what it is. I am unwilling to abandon our precedent unless the United States Supreme Court in a factually similar case, tells us our precedent is wrong.

[¶ 27] Gerald W. Vande Walle, C. J.

MARING, Justice,

dissenting.

[¶ 28] I respectfully dissent. Under the infringement test of Williams v. Lee, state court jurisdiction is not allowed over certain claims if it “would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the. Indians to govern themselves.” 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). The majority opinion concludes state court jurisdiction violates the Williams infringement test when asserted in an action brought by a nonmember against an Indian because of an automobile accident which occurred on a portion of a state highway running through a reservation. I disagree.

[¶ 29] “There are two categories of claims over which the United States Supreme Court has held tribal courts have exclusive civil jurisdiction under the infringement test. Included in the first category are those claims in which a non-Indian asserts a claim against an Indian for conduct occurring on that Indian’s reservation. In the second category are those claims in which all the parties are members of the same Indian tribe and the claim involves conduct occurring on that tribe’s reservation.” Roe v. Doe, 2002 ND 136, ¶ 8, 649 N.W.2d 566 (citations omitted). The operative phrase in the first category is “occurring on that Indian’s reservation.” Id. at ¶ 22 (quoting Hornell Brewing Co. v. The Rosebud Sioux Tribal Court, 133 F.3d 1087, 1091 (8th Cir.1998)).

[¶ 30] In Strate v. A-1 Contractors, the United States Supreme Court held that a tribe’s adjudicatory jurisdiction over nonmembers does not exceed its legislative jurisdiction over nonmembers. 520 U.S. 438, 453, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). In A Primer on Tribal Court Practice, B.J. Jones discussing tribal court civil jurisdiction states:

The distinction between the subject matter jurisdiction of a tribal court over a particular type of dispute and the personal jurisdiction over a particular person or entity has often been a murky one. This has been clarified somewhat by the recent United States Supreme Court Decision in A-1 Contractors v. Strate, wherein the Supreme Court postulated that Indian tribal courts can only exercise subject matter jurisdiction over disputes involving subject matter which the tribe can regulate under federal law. Therefore, when the tribal court exercises civil jurisdiction over non-Indians, that exercise of jurisdiction must comport with the United States Supreme Court’s pronouncements regarding the authority of a Tribe to regulate the conduct of a non-Indian within Indian country, especially Montana v. United States. Apparently, if the Tribe cannot regulate the activity, the tribal court cannot adjudicate a case questioning the activity.

B.J. Jones, A Primer on Tribal Court Civil Practice at http://www.court.state.nd.us/court/re-source/tribal.htm (footnotes omitted).

[¶ 31] Strate concerned the adjudicatory authority of tribal courts over personal injury actions against defendants who are not tribal members when the accident occurs on a portion of public highway maintained by the state under a federally granted right-of-way over Indian reservation land. 520 U.S. at 442, 117 S.Ct. 1404. The United States Supreme Court held such cases fall within state or federal regulatory and adjudicatory governance and “tribal courts may not entertain claims against nonmembers arising out of accidents on state highways.... ” Id. The Court noted that it expressed no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation. Id. I am of the opinion that such language suggests that if the automobile accident involved a nonmember on a tribal road within the reservation, the tribal court may have jurisdiction over the subject matter because of its right to regulate those roads. I am, therefore, of the opinion that the location of the accident is important to whether the tribal court has civil jurisdiction. The United States Supreme Court held in Strate that its decision in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), was the “pathmarking case” concerning tribal regulatory and adjudicatory authority over nonmembers. Strate, at 445, 117 S.Ct. 1404. “Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe’s political integrity, economic security, health, or welfare.” Strate, at 446, 117 S.Ct. 1404 (emphasis added). With regard to the second exception, the United States Supreme Court observed that “state courts may not exercise jurisdiction over disputes arising out of on-reservation conduct-even over matters involving non-Indians-if doing so would ‘infringe on the right of reservation Indians to make their own laws and be ruled by them.’ ” Id. at 452-53, 117 S.Ct. 1404 (quoting Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 386, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (citation omitted)). The United States Supreme Court held in Strate that “[t]he right-of-way North Dakota acquired for the State’s highway renders the 6.59 mile stretch equivalent, for nonmember governance purposes to alienated, non-Indian land.” Id. at 454, 117 S.Ct. 1404 (footnote omitted). The Court further held that as part of the State’s highway, “the right-of-way is open to the public, and traffic on it is subject to the State’s control.” Id. at 455, 117 S.Ct. 1404. The tribe’s loss of exclusive use and occupation implies a loss of regulatory jurisdiction over the use of land by others, and thus, the United States Supreme Court’s decision in Montana controls. Id. at 456, 101 S.Ct. 1245. The general rule set out in Montana precludes tribal court civil jurisdiction, requiring an examination of whether either of the two exceptions apply. The United States Supreme Court explains why the first and second exceptions in Montana do not apply. Id. at 457-58, 117 S.Ct. 1404. With regard to the first exception, the United States Supreme Court concludes the “Fredericks Stockert highway accident presents no ‘consensual relationship’ of the qualifying kind.” Id. at 457, 117 S.Ct. 1404. With regard to the second exception, the Court concludes: “Neither regulatory nor adjudicatory authority over the state highway accident at issue is needed to preserve ‘the right of reservation Indians to make their own laws and be ruled by them.’ The Montana rule, therefore, and not its exceptions, applies to this case.” Id. at 459, 117 S.Ct. 1404 (citation omitted).

[¶ 32] The majority opinion in this case cites Nelson v. Dubois, 232 N.W.2d 54 (N.D.1975), and Schantz v. White Lightning, 231 N.W.2d 812 (N.D.1975), to support its position that the exercise of jurisdiction by the state court infringes on tribal rights to make their own laws and be ruled by them, but these cases were decided by our Court before Montana and Strate were decided by the United States Supreme Court. It is now clear that the second Montana exception’s proper application is: “Indian tribes retain their inherent power [to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.... But [a tribe’s inherent power does not reach] beyond what is necessary to protect tribal self-government to control internal relations.” Strate, 520 U.S. at 459, 117 S.Ct. 1404 (quoting Montana, 450 U.S. at 564, 101 S.Ct. 1245).

[¶ 33] In Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), the United States Supreme Court held that a tribal court did not have civil jurisdiction to adjudicate state officers’ alleged tortious conduct in executing a search warrant on reservation land for an off-reservation crime. In responding to Justice Stevens’ opinion concurring in the judgment, the United States Supreme Court noted that Justice Stevens thinks Strate “ ‘merely concerned the circumstances under which tribal courts can exert jurisdiction over claims against nonmembers.’ But Strate’s limitation on jurisdiction over nonmembers pertains to subject-matter, rather than merely personal, jurisdiction, since it turns upon whether the actions at issue in the litigation are regula-ble by the tribe.” Id. at 368 n. 8, 121 S.Ct. 2304 (citation omitted).

[¶ 34] I am of the opinion that Winer can pursue his case in state court, “open to all who sustain injuries on North Dakota’s highway[s].” Strate, 520 U.S. at 459, 117 S.Ct. 1404.

[¶ 35] I would reverse and remand for further proceedings.

[¶ 36] CAROL RONNING KAPSNER, J., concurs.

      . "Indian country” is defined in 18 U.S.C. § 1151(a) as including "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.”


author: SABERS, Justice.

text:
    2003 SD 150
    STATE of South Dakota, Plaintiff and Appellee, v. Scott MOLLMAN, Defendant and Appellant.
    No. 22697.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided Dec. 23, 2003.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    Jeremiah J. Davis, Pennington County Public Defender’s Office, Rapid City, SD, for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Scott Mollman appeals his conviction for vehicular homicide after a jury trial. Mollman was sentenced to fifteen years in the state penitentiary. He appeals his conviction asserting the trial court abused its discretion in 1) excluding evidence that the decedent did not have a motorcycle operator’s endorsement; 2) allowing the State to show the jury a picture of the decedent and his wife; and 3) denying Defendant’s motion for mistrial. He also appeals his sentence, arguing 4) the sentence was grossly disproportionate and violated the Eighth Amendment prohibition against cruel and unusual punishment. We affirm the conviction and sentence.

FACTS

[¶ 2.] On May 28, 2002, Mollman and Gary Severson were involved in a collision near the intersection of West Main and Whitewood Streets in Rapid City. Sever-son was riding a motorcycle, Mollman was driving a car. At the time of collision, Mollman was making a left turn and Sev-erson was approaching on the inside lane from the opposite direction. Severson had the right-of-way. When they collided, Sev-erson was thrown from his motorcycle. Severson suffered massive head injuries and never recovered consciousness before his death two days later.

[¶ 3.] Officer Amanda Dubridge of the Rapid City Police Department was the first officer to arrive on the scene. After seeing that Severson was being cared for, Dubridge began questioning witnesses. She quickly discovered that Mollman was the other driver. She testified that when she approached him she noted a “moderate” odor of alcohol and that Mollman failed all of the field sobriety tests she administered. The chemist who tested Mollman’s blood samples estimated that his blood alcohol level at the time of the accident was between .128 and .13. Moll-man was originally charged with vehicular battery, driving or control of a vehicle while under the influence of alcohol or alternatively, driving or control of a vehicle while having .10 percent or more of alcohol in his blood. When Severson passed away, the complaint was amended to change the first count from vehicular battery to vehicular homicide under SDCL 22-16-41. A jury found Mollman guilty of vehicular homicide. The trial court sentenced Moll-man to fifteen years in the state penitentiary. Mollman appeals his conviction and sentence raising four issues:

1. Whether the trial court abused its discretion by granting the State’s motion to preclude evidence that the decedent did not have a motorcycle endorsement.
2. Whether the trial court abused its discretion by permitting the State to show the jury a photo of the decedent and his wife.
3. Whether the trial court abused its discretion by denying Defendant’s motion for a mistrial.
4. Whether Mollman’s sentence violates the Eighth Amendment prohibition against cruel and unusual punishment.

We affirm.

[¶ 4.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE STATE’S MOTION TO PRECLUDE EVIDENCE THAT THE DECEDENT DID NOT HAVE A MOTORCYCLE ENDORSEMENT.

[¶ 5.] The State filed a motion in limine requesting that Mollman be prohibited from referring to the fact that the decedent did not have a valid motorcycle endorsement on his driver’s license at the time of the accident. The trial court granted that motion after the defense made an offer of proof on the issue.

[¶ 6.] In its offer of proof, the defense argued that the lack of endorsement was evidence that the decedent was not a competent motorcycle rider. The defense planned to offer this evidence as part of a larger trial tactic of showing that the decedent was an inexperienced and incompetent rider. The Defendant intended to introduce this evidence coupled with testimony that the decedent may have been driving very slowly, that he may have been wearing sunglasses for eye protection, that the motorcyclé had low mileage and that he may have “darted” into traffic from a casino parking lot.

[¶ 7.] Mollman argues on appeal that granting the State’s motion in limine denied him a fair trial because it “invaded the province of the jury by virtually finding, as a matter of law,- that the State had satisfied the element of proximate cause.” The State responds that evidence of the lack of endorsement was not relevant to the decedent’s ability to ride and-had no connection to the question whether Defendant’s driving proximately caused the decedent’s death. We review the court’s decision under the abuse of discretion standard. State v. Knecht, 1997 SD 53, ¶ 7, 563 N.W.2d 413, 417 (additional citation omitted).

[¶ 8.] To prove that Mollman was guilty of vehicular homicide, the State was required to prove beyond a reasonable doubt that Mollman:

1. was under the influence of an alcoholic beverage;
2. did not have a “design to effect death”;
3. drove his vehicle in a negligent manner; and
4. thereby caused Severson’s death.

SDCL 22-16-41. This statute requires a showing by the State that Defendants negligence was a proximate cause of the decedents death. See generally, State v. Two Bulls, 1996 SD 53, 547 N.W.2d 764.

[¶ 9.] This Court first addressed the issue of proximate causation under the vehicular homicide statute in Two Bulls, 1996 SD 53, 547 N.W.2d 764. We noted that a finding of ordinary negligence is sufficient to establish vehicular homicide and therefore the appropriate standard of causation is “that employed by tort law.” Two Bulls, 1996 SD 53 at ¶ 12, 547 N.W.2d at 766 (citing Commonwealth v. Berggren, 398 Mass. 338, 496 N.E.2d 660, 661-62 (1986)). Under tort law, the negligence of two or more can combine to cause the injury and each of the negligent actors may be held liable for the injury. Two Bulls, 1996 SD 53 at ¶ 13, 547 N.W.2d at 766 (citing W. Page Keeton, et al, Pros-ser and Keeton on Torts § 52 at 347-349 (5th Ed. 1984)) (additional citations omitted). Therefore, we held:

The negligence of another does not prevent conviction for vehicular battery or homicide, so long as the defendant’s negligence is also a proximate cause of the victim’s injuries or death.

Id. (citing State v. Theuring, 46 Ohio App.3d 152, 546 N.E.2d 436, 438 (1988)). We accepted the proposition that:

[T]he negligence or unlawful acts of another driver which proximately contributed to the death, as distinguished from an independent intervening cause thereof, [are] not a defense if the evidence is sufficient to sustain a conclusion beyond a reasonable doubt that the defendant’s negligence or unlawful acts were also a proximate cause of the death of another.

Id. (quoting State v. Rotella, 196 Neb. 741, 246 N.W.2d 74, 76 (1976) (additional citations omitted)). Simply stated, “The deceased’s negligence is irrelevant absent evidence that would support a finding that [it] amounted to an independent intervening cause[.]” State v. Lamont, 2001 SD 92, ¶ 17, 631 N.W.2d 603, 609 n2 (quoting State v. Dionne, 442 A.2d 876, 887 (R.I.1982)). However, the defense is certainly entitled to present evidence that the decedent’s actions constituted an independent intervening cause of death. Lamont, 2001 SD 92 at ¶ 15, 631 N.W.2d at 608 (citations omitted).

[¶ 10.] This Court has defined independent intervening cause, stating:

When the natural and continuous sequence of causal connection between the negligent conduct and the injury is interrupted by a new and independent cause, which itself produces the injury, that intervening cause operates to relieve the original wrongdoer of liability. However, the intervening cause must be a superseding cause. It must so entirely supersede the operation of the defendants negligence that it alone, without his negligence contributing thereto, produces the injury.

Braun v. New Hope Township, 2002 SD 67, ¶ 10, 646 N.W.2d 737, 740 (citing Schmeling v. Jorgensen, 77 S.D. 8, 18, 84 N.W.2d 558, 564 (1957) (internal citations omitted)).

[¶ 11.] After the State made its motion to prohibit evidence of the lack of a motorcycle endorsement, the trial court requested that the defense present an offer of proof on the issue. The trial court instructed the defense attorney:

Now, Mr. Davis (defense counsel), in Lamont the Supreme Court remanded the case to the trial court and indicated that it was necessary to present authority [], it wasn’t a remand with direction to allow it, but rather requiring the defense to make an offer of proof. Now, in your response to the plaintiffs motions in limine, the Court wants a very specific offer of proof from you regarding the expert testimony you intend to present and how it would be appropriately introduced at trial.

After argument, the court inquired of defense counsel “how could failure to have a motorcycle endorsement [] be an independent intervening cause in this case?” Defense counsel responded, “a motorcycle endorsement in and of itself suggests that an individual is competent to operate a motorcycle.” Defense counsel then concluded that without a motorcycle endorsement, “negligent and uninformed operation of that vehicle would likely be a proximate cause of' any accidentf.]” The trial court found:

[A]s presented in the offer of proof [lack of an endorsement], is completely speculative as to this individual decedents ability and as to the facts that occurred on the evening in question. It provides no relevant testimony. It has no connection to the element that the negligent conduct of — the negligent driving of Mr. Mollman was the proximate cause of the death of Gary Severson.

(Emphasis supplied.) On the second day of trial, Defendant made a second offer of proof on the endorsement issue and was again denied. In the second offer of proof, the defense argued that allowing the decedents wife to testify that the decedent “did love that bike” in response to a question about his hobbies, led the jury to the conclusion that he was a competent rider. The defense argued that the statement by the decedent’s wife opened the door to the question of decedent’s competence as a rider and therefore the defense should be entitled to “correct this misleading impression.”

[¶ 12.] In Lamont, this Court remanded the case to the trial court with the instruction that it was “incumbent upon Lamont to present authority and clearly state why such questioning should be allowed.” Lamont, 2001 SD 92 at 17, 631 N.W.2d at 609. We went on to require that “Lamont must show that the victim’s intoxication level is related to the issue of proximate cause, not contributory negligence.” Id. In this case, Defendant was allowed to make two offers of proof. At neither time did counsel show how decedent’s lack of endorsement constituted “a new and independent cause, which itself produce[d] the injury.” Braun, 2002 SD 67 at ¶ 10, 646 N.W.2d at 740 (citing Schmeling, 77 S.D. at 18, 84 N.W.2d at 564). There simply was no evidence of any negligence on the part of Severson to affect proximate cause. In addition, it can be argued that the trial court did not abuse its discretion in this ruling because it had previously ruled that Mollman’s driving on a shspended license was also inadmissible. Nor did counsel show that the lack of endorsement so “entirely supersede[d] the operation of the defendant’s negligence that it alone, without his negligence contributing thereto, produce[d] the injury.” Id. Unlike Lamont, if this case were reversed and remanded on this issue, Defendant would be given another “bite at the apple,” for he was given ample opportunity to show that the lack of endorsement was an intervening/superseding cause of the decedents death and he failed to do so.

[¶ 13.] Defendant failed to establish that the trial court abused its discretion in granting the State’s motion to preclude evidence of the lack of motorcycle endorsement.

[¶ 14.] 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE STATE TO SHOW THE JURY A PHOTO OF THE DECEDENT AND HIS WIFE.

[¶ 15.] Prior to trial, Mollman filed a motion in limine requesting the State be prohibited from showing the jury a photo of the decedent and his wife. Mollman argued that the photograph was irrelevant and that its prejudicial impact outweighed its probative value. The trial court denied Defendant’s motion. Mollman asserts the trial court abused its discretion.

[¶ 16.] Photographs are admissible if they “accurately portray anything that a witness may describe in words” or they are “helpful in clarifying a verbal description of objects and conditions.” State v. Owens, 2002 SD 42, 89, 643 N.W.2d 735, 756-757. The photographs must be relevant to a material issue. Id. (citing State v. Holland, 346 N.W.2d 302, 307 (S.D.1984)). As long as they are relevant, photographs are not rendered inadmissible “merely because they incidentally tend to arouse passion or prejudice.” Id. (additional citations omitted).

[¶ 17.] Mollman argues that the photograph of the decedent and his wife was not relevant because he offered to stipulate to the identity of the decedent. The State counters that the defense is not entitled to stipulate the State’s case away and that the State was still required to prove every element of the crime beyond a reasonable doubt. The trial court agreed with the State and held that the photograph was relevant to the issue of identity and that the State was entitled to show that the decedent was “imbued with a spark of life” and to “present the victim as a human being.” State v. Carney, 649 N.W.2d 455, 463 (Minn.2002) (citing State v. Graham, 371 N.W.2d 204, 207 (Minn.1985)).

[¶ 18.] We review the trial court’s admission of the photograph under the abuse of discretion standard. Owens, 2002 SD 42 at ¶ 88, 643 N.W.2d at 756 (additional citations omitted). In determining whether a photograph should be admitted, the trial court is to weigh the probative value of the picture against the “danger of prejudice to the [defendant] through needless arousal of the passions of the jurors.” State v. Kane, 266 N.W.2d 552, 558 (S.D.1978) (overruled on other grounds). Among the elements the State must prove is the identity of the decedent. The State chose to do so through introduction of the photograph during direct examination of the decedent’s widow. We have consistently held that the State is not bound by a defendant’s offer to stipulate to facts. Owens, 2002 SD 42 at ¶ 91, 643 N.W.2d at 757 (citing State v. Eagle Star, 1996 SD 143, ¶ 26, 558 N.W.2d 70, 75-76; State v. Muetze, 368 N.W.2d 575, 586 (S.D.1985)). Mollman’s argument that the photograph lost its relevance based on his offer to stipulate to the decedent’s identity fails.

[¶ 19.] Furthermore, Mollman fails to show how the photograph prejudiced him. The photograph merely depicts the decedent and his wife. The jury was already aware that the decedent was married because the widow was testifying and there was nothing about the photograph that could be considered inherently prejudicial. We agree with the Minnesota Supreme Court’s determination that even though the victim’s personal life is not per se relevant to Defendant’s negligence, the State is entitled to show the victim as a living human being. See Carney, 649 N.W.2d at 463. Mollman has not shown that the trial court abused its discretion in allowing the picture of the decedent to be shown to the jury, nor has he shown that he was prejudiced by introduction of the picture. The trial court’s decision to permit the picture to be shown is affirmed.

[¶ 20.] 3. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR A MISTRIAL.

[¶ 21.] Mollman was in custody during his trial because he was unable to post bond. A deputy was assigned to accompany Mollman through the proceedings and to escort him to and from court. During jury voir dire, the trial court took a recess. As jurors and potential jurors were leaving the room, the deputy approached Defendant, told him that the deputy needed to use the restroom and required Defendant to accompany him. The deputy and Defendant left the courtroom together. The defense moved for a mistrial on the basis that some potential jurors saw the interaction between the deputy and Defendant and were presumably prejudiced by this “indicia of incarceration.” The trial court heard the motion and held:

Well, the court is going to deny the motion for a mistrial. The jurors were filing out of the courtroom. There were just a couple of jurors that even saw the deputy approach from the side here.
Mr. Mollman, the court certainly has no reason to believe there was any conversation overheard by any prospective juror and the court believes that in fact no prejudice has been created here in the minds of any potential juror and that there [are] no just grounds for a mistrial.

Mollman asserts the holding was error because the deputy’s action made Defendant’s “captive status” apparent to the jurors and therefore prejudiced his right to a fair trial.

[¶22.] Mollman relies on cases which hold that, as a general rule, a criminal defendant has the right to appear before a jury “free from shackles or other physical restraints.” State v. Weatherford, 416 N.W.2d 47, 52 (S.D.1987) (additional citations omitted). Mollman was not dressed in prison garb, nor was he in shackles or other physical restraints. There is no evidence in the record, and Mollman does not argue that the deputy physically guided him out of the courtroom or even touched him. Mollman argues that he was nonetheless prejudiced because the potential jurors could have been led to believe that he was in custody.

[¶ 23.] We review the trial court’s denial of a mistrial under the abuse of discretion standard. State v. Anderson, 2000 SD 45, ¶ 36, 608 N.W.2d 644, 655. In order to justify a mistrial, the defendant must make an actual showing of prejudice. For purposes of determining whether there are grounds for a mistrial, there must be error “which, in all probability, [ ] produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.” Id. (citations omitted).

[¶ 24.] Courts , must, guard against the prejudice that can arise when a defendant is compelled to appear before the jury either physically restrained or in prison garb. However, the defendant’s right to be free from restraint is not absolute. The trial court must balance the interest of the court in maintaining security of the court officers, defendant and jury against the interest of the defendant in appearing free of physical restraint. Weatherford, 416 N.W.2d at 53. Mollman was not compelled to appear before the jury with any physical restraints. However, a defendant is presumed innocent and this presumption can be effective only if “courts guard against practices which unnecessarily mark the defendant as a dangerous character or suggest that his guilt is a foregone conclusion.” Weatherford, 416 N.W.2d at 53. Therefore, the use of physical restraints or prison garb are not the only instances where an indication to the jury that a defendant is in custody may lead to prejudice. Defendant urges the Court to hold that inadvertently allowing potential jurors to see the deputy escort Defendant out of the courtroom was per se prejudicial.

[¶ 25.] We have held that when a courtroom arrangement has been challenged as being inherently prejudicial, the question is “not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an unacceptable risk is presented of impermissible factors coming into play.’ ” Id. (citing Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)). Mollman failed to establish that the facts here led to an unacceptable risk that the jury considered impermissible factors.

[¶ 26.] Apparently, the trial court observed the interaction between the deputy and Defendant and came to the conclusion that the potential jurors did not overhear their conversation. Assuming the potential jurors saw the interaction, all they saw was the deputy approaching Defendant, speaking briefly, and the two leaving the courtroom together. There is no indication that Defendant was handcuffed or that the deputy physically compelled him from the courtroom.

[¶ 27.] The United States Supreme Court has held that the “conspicuous [] deployment of security personnel in a courtroom during the trial is [not] the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest[.]” Holbrook, 475 U.S. at 568-69, 106 S.Ct. at 1346, 89 L.Ed.2d at 534. The court noted that there was a wide range of inferences a jury could draw from the deployment of security in the courtroom. We believe this case is more analogous to Holbrook than to those cases dealing with bringing a shackled prisoner before the jury. In this instance, any number of inferences could be drawn from Defendant leaving the courtroom with the deputy. Even assuming the potential jurors came to the conclusion that Defendant was in custody based on this encounter, this would be insufficient to show prejudice. For example, courts have consistently held that brief, inadvertent meetings between jurors and a shackled defendant are insufficient to show prejudice. Harrell v. Israel, 672 F.2d 632, 637 (7th Cir.1982) (citing United States v. Figueroa-Espinoza, 454 F.2d 590 (9th Cir.1972); United States v. Leach, 429 F.2d 956 (8th Cir.1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971); Hardin v. United States, 324 F.2d 553 (5th Cir.1963)). If a juror sighting of a shackled prisoner is insufficient to amount to prejudice, then certainly this brief encounter where the officer exercised nothing but verbal control over Defendant is insufficient to establish the prejudice necessary to warrant a mistrial. Finally, as the Supreme Court noted in Holbrook, the defendant’s right to be free from restraints:

[D]oes not mean [] that every practice tending to single out the accused from everyone else in the courtroom must be struck down. Recognizing that jurors are quite aware that the defendant appearing before them did not arrive there by choice or happenstance, we have never tried, and could never hope, to eliminate from trial procedures every reminder that the State has chosen to marshal its resources against a defendant to punish him for allegedly criminal conduct.

Holbrook, 475 U.S. at 567, 106 S.Ct. at 1345, 89 L.Ed.2d at 533-534. The trial courts refusal to grant a mistrial is affirmed.

[¶ 28.] 4. WHETHER MOLLMAN’S SENTENCE VIOLATES THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.

[¶ 29.] Mollman argues that the unique facts of this case mitigate against the 15-year sentence imposed by the trial court. Specifically, he asserts that negligence, proximate cause and intoxication were “all very close questions” and that it is “difficult to justify a sentence that is at that harshest end of the spectrum.” The State counters with the assertion that the trial court properly considered mitigating and aggravating factors, that Defendants BAC was .13 per cent and that he failed several field sobriety tests. The State also points to the fact that Defendant has a long history of alcohol and drug abuse and driving offenses involving alcohol.

[¶ 30.] In reviewing sentences for violations of the Eighth Amendment, we utilize the “grossly disproportionate” standard. We determine whether a sentence is grossly disproportionate by considering the conduct involved in the crime, relevant past conduct of the defendant and we give “utmost deference to the Legislature and the sentencing court.” State v. Pugh, 2002 SD 16, ¶ 19, 640 N.W.2d 79, 85. Vehicular homicide is a class three felony. SDCL 22-16-41. As such, it is punishable by a sentence up to 15 years in the penitentiary and/or a $15,000 fíne. SDCL 22-6-1(5). Mollman’s 15-year sentence was therefore within statutory limits and this Court will give extreme deference to that sentence. State v. Jensen, 1998 SD 52, ¶ 62, 579 N.W.2d 613, 624.

[¶ 31.] In making its sentencing determination, the court looked at the mitigating and aggravating circumstances. The trial court noted that there were a number of aggravating factors. First, throughout much tragedy in his life, Mollman continued using illegal drugs and alcohol. He has a long history of drug and alcohol related offenses. At the time of this accident, Defendant was driving on a suspended license. The trial court stated, “the victim in this case was tragically and senselessly slaughtered by the conduct of Mr. Mollman.” Recognizing that “slaughtered” was a “strong word,” the court noted that it had “presided over the trial and viewed the photographic evidence which showed this vehicle and this motorcycle striking with tremendous force.” The court stated that victim had “no notice, no preparation, no defense, no way to avoid impending death and this taking of the human life, the court finds, to be an aggravation.” Based on these circumstances and the court’s concern with protecting Defendant and members of the public, the court came to the conclusion that Defendant should be sentenced to 15 years. We also note that Defendant will be eligible for parole in 3.8 years. The Defendant has failed to show that the sentence was grossly disproportionate. Affirmed.

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

       SDCL 32-20-2 provides in part:
      No person may operate a motorcycle Q on the public streets or highways without a motor vehicle driver's license or permit upon which a state testing officer has certified that such person is qualified to operate such motorcycle. 0 The department may waive the testing requirements upon completion of a motorcycle safety course approved pursuant to 32-20-14. A violation of this section is a Class 2 misdemeanor.