author: LARSON, Justice.

text:
    In the Matter of PROPERTY SEIZED FROM Parker Vaughn TERRELL. Parker Vaughn Terrell, Appellant.
    No. 97-1245.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Maggi Moss of Parrish, Kruidenier, Moss, Dunn & Montgomery, Des Moines, and Christopher L. Hartley, Milwaukee, Wisconsin, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Jamie Bowers, Assistant County Attorney, for appellee.
   LARSON, Justice.

Parker Terrell was adjudicated a delinquent in connection with his attempted burglary of stereo equipment from a parked car and possession of burglary tools. The State brought a separate action to forfeit the vehicle Terrell was using, and the district court ordered the forfeiture. Terrell appealed, and we now affirm.

I. Facts and Prior Proceedings.

Following Terrell’s arrest, the State filed a delinquency petition charging him with attempted third-degree burglary and possession of burglar’s tools. The juvenile court adjudicated Terrell delinquent as to both charges, but that adjudication is not involved in this appeal. The State, in separate proceedings, sought forfeiture of the car Terrell was using, and the court granted the forfeiture under Iowa Code chapter 809A (1997). On Terrell’s appeal, he claims this was error because (1) a juvenile delinquency adjudication cannot provide the basis for a forfeiture and (2) the value of his vehicle was so disproportionate to the severity of his conduct as to infringe his rights under the United States and Iowa Constitutions.

II. Juvenile Delinquency Adjudication as Basis for Forfeiture.

Under Iowa Code section 809A.3,

[t]he following conduct may give rise to forfeiture:
1. An act or omission which is a public offense and which is a serious or aggravated misdemeanor or felony.

Terrell argues that he was adjudicated a delinquent under Iowa Code chapter 232; he was not found guilty of a misdemeanor or felony under section 809A.3(1). The statute is therefore inapplicable on its face, according to him. He relies on Iowa Code section 232.55, which states a delinquency adjudication “shall not be deemed a conviction of a crime.” The district court rejected this argument and ruled that chapter 809A applies to juvenile as well as adult conduct and does not require a conviction.

While Terrell contends his adjudication as a delinquent does not amount to a conviction, it is clear a conviction is not required in order to forfeit. See Iowa Code § 809A.12(14) (“An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this chapter.”). Attempted third-degree burglary and possession of burglary’s tools are both aggravated misdemeanors. See Iowa Code §§ 713.6B, 713.7. Therefore, Terrell’s acts are sufficient bases for forfeiture, even though he was processed in a manner different from adult prosecutions because of his age. We believe it is the nature of the acts committed by the offender, not the forum (adult or juvenile court) in which the offender is prosecuted, that we look to under section 809A.3 to determine if forfeiture is authorized.

Other states have applied forfeiture statutes in juvenile cases. See, e.g., People ex rel. Burmila v. One 1983 Oldsmobile, 239 Ill.App.3d 1011, 180 Ill.Dec. 417, 607 N.E.2d 311, 313 (1993) (holding only issue is whether the forfeitable property was used in the commission of the offense; juvenile status not determinative). The Nevada Supreme Court observed:

We see no reason why juveniles need to be protected from this incidental adverse result. Our court system is more lenient with juveniles because they lack life experience, and because youth is a formative time that should not be spent paying for past crimes. However, the punitive result of forfeiture does not deprive the former owner of time or of life experience. Instead, it plainly teaches that crime does not pay.

City of Sparks Police Dep’t v. Nason, 107 Nev. 202, 807 P.2d 1389, 1390 (1991).

For the reasons discussed, Terrell’s conduct, even though it was prosecuted in juvenile court, was “an act or omission which is a public offense” covered by Iowa Code section 809A.3 and therefore a proper basis for forfeiture. Terrell does not challenge the nexus between the use of his vehicle and the commission of the offenses under Iowa Code section 809A.4(2)(a)(2) (property “[u]sed or intended to be used in any manner or part to facilitate conduct giving rise to forfeiture” may be forfeited). We reject Terrell’s argument that the forfeiture statute is inapplicable on its face and proceed to the second issue: whether forfeiture may constitutionally be applied under these facts.

III. The Constitutional Arguments.

The Eighth Amendment to the United States Constitution provides that “[excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. The United States Supreme Court has held that civil forfeiture statutes may violate the Excessive Fines Clause because, while such statutes are said to be remedial, they are also intended to deter and punish unlawful activity. Austin v. United States, 509 U.S. 602, 622, 113 S.Ct. 2801, 2812, 125 L.Ed.2d 488, 505-06 (1993). The Court in Austin declined to establish a test for determining whether a forfeiture is constitutionally excessive, but the Eighth Circuit has developed a test that has been adopted by our court. See In re Property Seized from Chiodo, 555 N.W.2d 412, 416 (Iowa 1996). We said in that case:

Under the Eighth Circuit’s test, the defendant must first make a prima facie showing of “gross disproportionality.” [United States v. Bieri, 68 F.3d 232, 236 (8th Cir.1995) ] (citations omitted). To constitute a violation of the Eighth Amendment, such disproportionality must be so excessive that “in justice the punishment is more criminal than the crime.” Id. (citations omitted). Dispro-portionality is assessed by examining several factors:
To determine whether the facts indicate gross disproportionality, the district court must consider multiple factors, including the extent and duration of the criminal conduct, the gravity of the offense weighed against the severity of the criminal sanction, and the value of the property forfeited.... “Other helpful inquiries might include an assessment of the personal benefit reaped by the defendant, the defendant’s motive and culpability and, of course, the extent that the defendant’s interest and the enterprise itself are tainted by criminal conduct.”
Id. (citations omitted).

Chiodo, 555 N.W.2d at 416-17.

Our review of the constitutional issue is de novo, and we apply the test of Chiodo accordingly. The defendant has the burden of making a prima facie showing of gross disproportionality. Bieri, 68 F.3d at 236. In Chiodo we held that forfeiture of an $11,000 vehicle used in drug dealing was not shown to be an excessive fine. 555 N.W.2d at 416. We recognized that mathematical exactitude in the analysis is not required. Id.

Terrell notes that other states have held forfeiture of a car constitutes an excessive fine in cases of mere drug possession. See In re Forfeiture of 1990 Chevrolet Blazer, 684 So.2d 197, 199 (Fla.Dist.Ct.App.1996) (car in which owner had marijuana could not be forfeited if value of car double the maximum fine to which owner was subject); One Charter Arms, Bulldog Special v. State ex rel. Moore, 721 So.2d 620, 625-26 (Miss.1998) (car in which an owner drove to purchase cocaine may not be forfeited when owner was caught with cocaine on his person but only sentenced to three years probation and fined $2500).

In his delinquency-disposition order, Terrell was required to pay $35.81 in restitution and was placed on probation. He contends that forfeiture of his vehicle, which he claims is worth between $8850 and $9050, is grossly disproportionate to the sanctions imposed. While Terrell compares the loss of his vehicle to the $35.81 restitution order, we believe the comparison in a disproportionality analysis must be made between the value of the property to be forfeited and the severity of the offense as viewed by the legislature, not the actual sanction imposed. In this case, if Terrell had been tried as an adult, each offense would carry a maximum of $5000 in fines or a total of $10,000. If Terrell’s view were adopted, that the actual punitive sanction applied is the basis for the dispro-portionality analysis, a defendant who received only probation could not lose any property to forfeiture because any value attached to the property would be disproportionate to the criminal sanction. It would also be poor public policy because a prosecutor who has an eye toward possible forfeiture would naturally press for the imposition of the maximum punishment in order to make a forfeiture less subject to a claim of disproportionality. Further, as a criminal conviction is not a prerequisite to a forfeiture action, in some cases there may not even be a sentence or other sanction to consider.

In this case, each offense carries a maximum of $5000 in fines or a total of $10,000, which exceeds Terrell’s own valuation of his property. Terrell has therefore failed to establish a prima facie case that the loss of his property, when compared to the severity of the offenses, is grossly disproportionate under the Chiodo test. We therefore affirm.

AFFIRMED.

      . While Terrell contends the forfeiture violates the Iowa, as well as the United States Constitution, he makes no separate argument with regard to the Iowa Constitution, and we treat that issue in the same manner as his claim under the United States Constitution.


source: Caselaw Access Project

author: NEUMAN, J.

license: Public Domain

text:
    Kathleen A. GRAVES, Appellant, v. IOWA LAKES COMMUNITY COLLEGE, Linda Wiegman, Tom Herbst, and Dale Simon, Appellees.
    No. 99-0863.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Victoria L. Herring, Des Moines, for appellant.
    Stephen F. Avery of Cornwall, Avery, Bjornstad & Scott, Spencer, for appellee.
   NEUMAN, J.

After an auspicious beginning, the employment relationship between a community college and a project coordinator soured and failed. This suit was brought to sort out the employee’s claims that the college and its administrators were responsible and liable for her discharge. All parties have appealed but we think the trial court’s rulings were correct and therefore affirm.

I. Background Facts and Proceedings.

The suit was brought on a number of theories, though not all reached jury consideration, and only one resulted in a modest recovery. Important facts were hotly disputed but, in view of our holding, they will be recited and considered in accordance with the plaintiffs version. Balmer v. Hawkeye Steel, 604 N.W.2d 639, 640-41 (Iowa 2000).

Plaintiff Kathy Graves began working for defendant Iowa Lakes Community College at its Estherville campus in September 1994 as coordinator for the Women Work project. This new grant-funded project was designed to provide unemployed, low-income women with the personal and employment skills necessary to return to the work force. As the first coordinator, Graves was responsible for creating the program from scratch. She wrote curriculum, enlisted program presenters and recruited eligible participants. She originally worked part-time under the supervision of the project’s director, defendant Linda Wiegman. Wiegman’s direct supervisor was defendant Dale Simon, dean of the college’s Estherville campus. Defendant Tom Herbst was the college’s director of human resources.

The first eight-week program seems to have been a resounding success. Wieg-man gave Graves a highly favorable evaluation and offered her a position for the 1995-96 fiscal year, elevating her compensation from an hourly wage to a contracted amount. The success of the initial program led to additional ones, carrying substantial grants over a two-year period.

The relationship between Graves and Wiegman, however, did not flourish. According to Graves’ showing, Wiegman intruded into her personal affairs by “counseling” her how to “recover” from a recent divorce, urging her to focus exclusively on her work and to avoid starting a new relationship. Graves nevertheless believed her performance continued to be exemplary. Wiegman’s subsequent unsatisfactory evaluations were not made known to her, either in writing or orally. Although the defendants offered sharply conflicting testimony, we assume these uncommunicated negative evaluations were calculated to make Graves a scapegoat when failures by other employees led to difficulty in complying with guidelines required for continued funding of the program. Throughout the winter and spring of 1996, Wiegman documented concerns about Graves and discussed these concerns with Simon. But Graves insists she was never told of any problems or complaints.

At a meeting on April 9th, Wiegman gave Graves a written copy of her recent highly negative evaluation, which ranked her performance as unsatisfactory in all areas. Simon gave Graves a memo informing her that her contract would not be renewed and that she was no longer employed after that date. The memo also directed her not to have any contact with “agencies, clients, and staff that have been involved in the [Women Work] program” for the remainder of the contract period.

Graves was shocked at this turn of events, claiming she had no idea there were problems with her performance. She believed that even if Wiegman no longer wanted her to work as the program coordinator there were other positions at Iowa Lakes for which she was qualified and should have been considered. She filed a grievance pursuant to Iowa Lakes’ employee handbook. Herbst responded by letter, indicating Wiegman’s decision not to renew her contract was justified. Herbst told Graves he had discussed his conclusion with the college president who agreed with his decision. The grievance decision process was over and Graves commenced this suit.

Graves sued the defendants for negligent supervision, defamation, tortious breach of contract, interference with prospective business advantage and breach of contract. A jury found Iowa Lakes liable for breach of contract, awarding Graves no actual damages but granting $1200 in nominal damages. The jury also awarded punitive damages against the individual defendants, but the district court vacated this award and, because of evident confusion over the instructions, ordered a new trial on damages for breach of contract. This appeal by Graves and cross-appeal by the defendants followed.

II. Issues on Appeal.

A. Negligent supervision. A count in negligent supervision against Herbst and Simon survived a pretrial motion but was dismissed at the close of evidence. In assigning dismissal of this claim as error, Graves relies on our holding in Godar v. Edwards, 588 N.W.2d 701, 709 (Iowa 1999) in which we recognized a cause of action for negligent hiring as well as for negligent supervision and retention. Our decision in Godar rested on Restatement (Second) of Agency section 213, which would permit a third party claim against an employer who breached a duty of reasonable care in the supervision and retention of an employee who posed a threat to the public. Graves would have us extend such an action beyond injuries inflicted on a third party, to also include those inflicted upon another employee.

There is some support for such an expansion, but it does not extend to cases such as this where there are no physical injuries. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442 (Minn.Ct.App. 1996) (allowing recovery by fellow employee for negligent supervision but only for physical injuries); see Piper Jaffray Cos. v. Nat’l Union Fire Ins. Co., 967 F.Supp. 1148, 1157 (D.Minn.1997) (no recovery for negligent supervision based solely on economic loss); Sibley v. Kaiser Found. Health Plan, 998 S.W.2d 399, 403-04 (Tex.Ct.App.1999) (recovery for negligent supervision extends only to physical injuries). Because Graves does not assert any physical injury it is unnecessary for us to decide whether a negligent supervision claim is available to a fellow employee. Theisen v. Covenant Med. Ctr., Inc., 636 N.W.2d 74, 82-83 (Iowa 2001). Therefore, we affirm the dismissal of Graves’ claim.

B. Interference with prospective business relationships. Graves’ separate claim for tortious interference with a business relationship was dismissed on a pretrial motion. At the close of evidence she sought to have it reinstated and assigns error in the trial court’s refusal to do so.

Graves’ showing on this claim goes no further than a routine claim for breach of contract. Lacking is the essential element for this intentional tort: an improper purpose on defendants’ part “to financially injure or destroy the plaintiff.” Fischer v. UNIPAC Serv. Corp., 519 N.W.2d 793, 800 (Iowa 1994). We think the dismissal was correct.

C. Defamation. Graves’ defamation claim was rejected by the jury. She claims she was slandered by false comments Wiegman made to program participants and others in the community about her performance as program coordinator. One woman testified Wiegman told her Graves left Iowa Lakes because she no longer wanted to work at the college. Another participant stated Wiegman told her a state grant monitor reviewed the program files and, upon finding errors or incomplete reporting, demanded that Graves be terminated as program coordinator. There was no evidence that either of these statements was true.

In submitting the claim, the trial court adopted Iowa Civil Jury Instruction 2100.2, which, after listing the other requirements for recovery, requires a showing that the statements “injure the plaintiff in the maintenance of her occupation.” Graves’ challenge is to this jury instruction. She contends the word “injure” should have been changed to “affect,” the word we used in Lara v. Thomas, 512 N.W.2d 777, 785 (Iowa 1994). In Lara this court defined statements which are slanderous per se as “attack[s] on the integrity and moral character of a party,” and “imputations affecting a person in his or her business, trade, [or] profession.” Lara, 512 N.W.2d at 785 (emphasis added). Graves contends that but for the use of “injure” rather than “affect” in the jury instruction, the jury would have found Wiegman’s statements slanderous per se.

Our use of the word “affect” in Lara was not intended to allow recovery in a defamation action where there is no injury. Spoken words are actionable as slander because they injure a person’s reputation and good name. Id. There must be some harm to a person’s reputation. This requirement is suggested by the use of the word “injured” in uniform instruction 2100.2 and Restatement (Second) of Torts sections 570 and 573 (1977). Section 570(6) states spoken defamatory matter is actionable without any showing of special harm if it imputes to its victim “matter incompatible with his business, trade, profession, or office, as stated in section 573.... ” Restatement (Second) of Torts § 570(6), at 186. Slanderous statements affecting a business or occupation “ascribe[] to another conduct, characteristics or a condition that would adversely affect his fitness for the proper conduct of his lawful business.... ” Id. § 573, at 191 (emphasis added). Such concepts of harm to reputation are not conveyed by mere use of the word “affect.”

The word “affect” in Lara should be understood to connote an injury by way of being adversely affected. The court committed no error by submitting the uniform instruction.

D. Appeal and cross-appeal on order for new trial on damages. The jury found for Graves on her breach of contract claim, but there was considerable confusion over the damage award. All parties and the trial court agree that, if an award can stand, there should be a new trial to fix the amount.

Preliminarily we must address Iowa Lakes’ challenge to the court’s subject matter jurisdiction. We will then discuss the college’s substantive disagreements with Graves’ breach of contract claim before turning to the court’s rationale for granting a new trial on contract damages only.

1. Jurisdiction. Iowa Lakes contends in its cross-appeal that the district court lacked subject matter jurisdiction because the college is a “state agency” for purposes of Iowa Code chapter 669 (State Tort Claims Act). Thus, the argument continues, the college cannot be sued because Graves failed to exhaust her administrative remedies before the state appeal board as required in Iowa Code section 669.5 (1999).

Section 669.2(5) defines state agency and lists at least some of them, but does not include community colleges. We think the legislature’s failure to include community colleges with the listed entities was deliberate. In Stanley v. Southwestern Community College Merged Area, 184 N.W.2d 29, 33-34 (Iowa 1971), we said that, for purposes of incurring indebtedness or pledging credit, community colleges are not agencies of the state. In Graham v. Worthington, 259 Iowa 845, 853, 146 N.W.2d 626, 633 (1966), we held school districts are not agencies of the state. We now hold that community colleges likewise do not qualify as state agencies.

Iowa Code chapter 260C establishes community colleges in fifteen designated areas when “two or more school systems or parts of school systems merge resources to operate a community college ...Iowa Code § 260C.2(4). Iowa Lakes Community College is such a merged area, in northwest Iowa. Code section 260C.16 provides that community colleges “shall be a body politic as a school corporation for the purpose of exercising powers granted under the chapter, and as such may sue and be sued, hold property, and exercise all the powers granted by law....”

Because community colleges do not qualify as state agencies for purposes of Iowa Code section 669.5, Graves was not obliged to seek review before the state appeal board before bringing this suit.

2. Breach of contract. Iowa Lakes also claims there can be no recovery for breach, as a matter of law, because Graves’ employment contract was for only one year and she was employed and compensated for that long. The contention fails because it stands only on defendants’ view of the evidence. Although the college paid Graves her full salary for the year, it summarily discharged her three months before the contract was due to expire. Graves contended, and the jury found, that she was terminated without just cause. By way of actual damages, Graves tendered proof that her early discharge resulted in a loss of fringe benefits to which she would have otherwise been entitled as an employee. This claim included, among other things, use of the college racquetball courts, discount movie tickets and access to the computer lab.

The jury also found that Graves proved the Iowa Lakes Employee Handbook was part of her employment contract. Graves claimed that, contrary to the handbook, her employment was terminated without prior warning or an opportunity to meet the requirements deemed lacking by her supervisors. The record supports this claim. The district court did not instruct the jury to consider consequential damages, if any, arising from such breach, and Graves does not contend on appeal that it should have done so. In no event would damages for emotional or reputational harm be recoverable for breach of this kind of contract. Bossuyt v. Osage Farmers Nat’l Bank, 360 N.W.2d 769, 777 (Iowa 1985); see generally Dan B. Dobbs, The Law of Remedies § 12.5(1), at 107-08 (2d ed.1993). Graves’ claim for alleged harm to her future economic prospects was tied to legal theories discussed elsewhere in this opinion which, as noted, were ultimately rejected by the court or jury.

We reject the defense contention that there can be no recovery of actual damages on retrial because of the jury finding there were no actual damages. This jury finding was reached after instructions the trial court later considered to have been flawed. We affirm the court’s order for retrial because of the extremely wide discretion accorded trial courts in ruling favorably on motions for a new trial. Cowan v. Flannery, 461 N.W.2d 155, 157 (Iowa 1990).

The real question is whether Graves suffered actual or only nominal damages related to the breach, a matter to which we now turn.

3. Damage verdicts. The jury first returned verdicts on the breach of contract claim, awarding $500 in actual damages and $6300 for nominal damages. It awarded punitive damages in the amount of $1000 against Wiegman and $250 against Herbst. After the court told the jury it could not award both actual and nominal damages, the jury deliberated further and transferred the $500 actual damage award to the nominal damage award, making it $6800. The court also rejected these amended verdicts, informing the jury that nominal damages were not to be awarded as compensation, only to declare legal rights. The jury once again retired and returned a third time, finally awarding no actual damages and $1200 in nominal damages. It also modified the punitive damage award, awarding $2500 against Wieg-man, $1250 against Herbst, and $625 against Simon.

On post-trial motions, the district court ruled that liability on the breach of contract claim was clearly proven, but would not support an award for punitive damages, and vacated that award. Because it determined it had erred in its instructions, confusing the jury, the court ordered a new trial on compensatory and nominal damages. On appeal, both sides address nominal damages, but because a new trial was ordered on this issue, we need consider only Iowa Lakes’ contention that Graves is not entitled to any nominal damages.

Nominal damages may be properly recoverable for breach of contract. Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co., 510 N.W.2d 153, 156 (Iowa 1993); Restatement (Second) of Contracts § 346, at 110 (1981). The trial court was correct in observing that, although nominal does not mean small in this context, courts generally award a dollar or other small amount. Nominal damages have been described as “the smallest appreciable quantity,” and only “a trivial or trifling sum.” 22 Am.Jur.2d Damages § 11, at 40 (1996). On retrial the jury should be so instructed, and judgment should not be entered for nominal damages in excess of $1.

E. Punitive damages. Punitive damages for breach of contract are only upheld if the “breach (1) constitutes an intentional tort, and (2) is committed maliciously.... ” Magnusson Agency v. Pub. Entity Nat’l Co. — Midwest, 560 N.W.2d 20, 29 (Iowa 1997). Because the jury did not find any of the defendants committed an intentional tort, there was no basis for an award of any punitive damages. Id.; Hockenberg, 510 N.W.2d at 156. Dismissal of that claim is therefore affirmed.

III. Disposition.

The judgment of the trial court is affirmed on both appeals, and the case is remanded for a new trial. Liability having been established on Graves’ breach of contract claim, the only issue on retrial is defendants’ liability for either actual or nominal damages, but not both.

AFFIRMED AND REMANDED.

      . Subject matter jurisdiction is a statutory requirement which cannot be waived by consent or estoppel. State v. Mandicino, 509 N.W.2d 481, 482 (Iowa 1993). Lack of subject matter jurisdiction may be asserted at any time during the proceedings. Id.


author: CARTER, Justice.

text:
    Valentino MAGHEE, Appellant, v. STATE of Iowa, Appellee. David Munz, Plaintiff, v. Iowa District Court for Jones County, Defendant.
    No. 99-1478.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Philip B. Mears of Mears Law Office, Iowa City, for appellant and plaintiff.
    Thomas J. Miller, Attorney General, and Forrest Guddall and H. Loraine Wallace, Assistant Attorneys General, for appellee and defendant. .
   CARTER, Justice.

We have consolidated an appeal and an original certiorari action, each raising the same issue. That issue is whether prison inmates challenging disciplinary action reducing good time pursuant to Iowa Code section 822.2(6) (1999) are entitled to counsel at state expense. In each of the two cases before us, the district court ruled that (1) a 1998 amendment to Iowa Code section 822.5 abrogated any statutory right to counsel at state expense in this type of litigation, and (2) no constitutional right to publicly compensated counsel exists in litigation challenging prison discipline. After reviewing the record and considering the arguments presented, we affirm the judgment on appeal and annul the writ of certiorari.

The period of time for which these post-conviction applicants claim the right to appointed counsel at state expense is after July 1, 1998. Prior to July 1, 1998, Iowa Code section 822.5 provided, in part:

If an applicant confined in a state institution seeks relief under section 822.2, subsection 6 [a claim that good time has been unlawfully forfeited], and the court finds in favor of the applicant, or when relief is denied and costs and expenses referred to in subsection 1 [stenographic, printing, and legal services] cannot be collected from the applicant, these costs and expenses initially shall be paid by the county in which the application was filed.

Thereafter, the statute was amended so as to read, in part:

If the applicant is unable to pay court costs and stenographic and printing expenses, these costs and expenses shall be made available to the applicant in the trial court, and on review. Unless the applicant is confined in a state institution and is seeking relief under section 822.2, subsections 5 [challenge to probation revocation or claim that sentence has expired] and 6 [a claim that good time has been unlawfully forfeited], the costs and expenses of legal representation shall also be made available to the applicant in the preparation of the application, in the trial court, and on review if the applicant is unable to pay.

1998 Iowa Acts ch. 1132, § 1.

Statutory words are presumed to be used in their ordinary and usual sense and with the meaning commonly attributable to them. State v. Rohm, 609 N.W.2d 504, 510 (Iowa 2000); State v. Walker, 574 N.W.2d 280, 289 (Iowa 1998). An amended statute is to be interpreted as if it originally read as amended. Chappell v. Bd. of Keokuk Indep. Sch. Dist., 241 Iowa 230, 235, 39 N.W.2d 628, 630 (1949); Neidermyer v. Neidermyer, 237 Iowa 685, 693, 22 N.W.2d 346, 350 (1946). Following the 1998 amendment, which we have set forth, the language of the statute clearly precludes the furnishing of counsel at state expense in proceedings under section 822.2(6). That is the type of proceeding initiated in both of the cases under consideration.

The postconviction applicants argue that the failure of the State to afford them counsel at state expense violates their right to due process of law and equal protection of the law under both the state and federal constitutions. Both the United States Supreme Court and this court have held that prison inmates do not have a due process right to counsel in disciplinary proceedings at either the administrative level or a later proceeding for judicial review. Baxter v. Palmigiano, 425 U.S. 308, 315, 96 S.Ct. 1551, 1556-57, 47 L.Ed.2d 810, 819 (1976); Williams v. State, 421 N.W.2d 890, 892 (Iowa 1988). The applicants have failed to convince us that we should reach a different conclusion in the application of the Iowa Constitution. The applicants’ equal-protection argument also fails under both state and federal constitutions because they fail to identify any disparate treatment that impacts a class of persons to which they belong. The district court correctly determined that there was neither a statutory nor a constitutional basis for providing counsel to these postconviction applicants at state expense.

As an alternative argument, the applicants urge that this court in Larson v. Bennett, 160 N.W.2d 303 (Iowa 1968), recognized that the trial courts have discretion to appoint counsel in some cases in which no statutory right to counsel is provided. That conclusion was reached with respect to habeas corpus actions in state courts. We stated in regard to such actions:

Waldon v. District Court, [256 Iowa 1311, 130 N.W.2d 728 (1964),] is modified only to the extent of vesting in the trial court the discretion of appointing counsel when the facts in a particular case make such appointment desirable.

Larson, 160 N.W.2d at 306.

Assuming that a discretion similar to that recognized in Larson exists in challenges brought under section 822.2(6), we are not convinced that the inherent power to appoint counsel to assist the court in conducting a proceeding carries with it the power to order the state to compensate counsel thus appointed. At the time the Larson case was decided, the courts had a readily available funding source at their disposal for court-appointed counsel pursuant to Iowa Code section 444.10 (1966). That statute established a special tax levy to maintain this expense source. However, as we recognized in State Public Defender v. Iowa District Court, 594 N.W.2d 38, 39 (Iowa 1999), this funding source no longer exists. As a result of the elimination of that fund, we noted our inclination “to resort to section [815.7] as the benchmark for the payment of compensation to attorneys appointed by the court.” Id. at 40. That statute makes no provision for providing counsel at public expense in actions brought under section 822.2(6) and, as previously noted, section 822.5 precludes doing so.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed and the writ of certiorari annulled.

AFFIRMED; WRIT ANNULLED.


author: NEUMAN, Justice.

text:
    GRINNELL SELECT INSURANCE CO., Appellant, v. CONTINENTAL WESTERN INSURANCE COMPANY and/or Continental Western Casualty Company, Appellee.
    No. 99-1798.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Richard D. Stochl of Elwood, O’Dono-hoe, O’Connor & Stochl, New Hampton, for appellant.
    Frederick G. White of White Law Office, Waterloo, for appellee.
   NEUMAN, Justice.

This is a dispute between insurers over the coverage afforded — or not afforded— under an auto insurance policy. The district court denied recovery by appellant, Grinnell Select Insurance Co. (hereinafter “Grinnell”), against appellee, Continental Western Insurance Company (hereinafter “Continental Western”), based on a provision in Continental Western’s policy that excludes liability coverage for any person “[u]sing a vehicle without a reasonable belief that that person is entitled to do so.” Although we disagree with the court’s rationale, we agree the policy affords no coverage. We therefore affirm.

I. Background Facts and Proceedings.

Continental Western issued a personal auto insurance policy to Darlene Rapping for the period March 11, 1992 to September 11, 1992. The “covered auto” named on the declarations page of the policy was Darlene’s 1979 Mercury Marquis. At the time the policy was issued, Darlene’s seventeen-year old daughter, Darcy, lived with her and, from time to time, drove the Mercury.

Darlene died in July 1992. Darcy continued to drive the vehicle during the policy period. On August 28, 1992, while driving four friends to a dance, Darcy let one of her passengers, Jason Jepperson, take the wheel on a gravel country road. Jason drove the Mercury at a high rate of speed and failed to stop at an intersection, colliding with another vehicle and seriously injuring its passengers.

Amy Schwartzhoff, one of the injured passengers in the other vehicle, sued Jep-person. Jepperson had no insurance, and Continental Western denied coverage under the Rapping policy, so Schwartzhoff proceeded against her uninsured motorist carrier, Grinnell. Grinnell named Darcy Rapping as a third-party defendant. The suit ultimately ended in a $135,700 judgment in Schwartzhoff s favor against Grin-nell, and a similar judgment in favor of Grinnell and against Darcy on the third-party petition.

That brings us to the present controversy. After Grinnell satisfied its obligation to Schwartzhoff, and after unsuccessfully executing on the property of Darcy Rapping, it commenced this direct action against Continental Western under Iowa Code section 516.1 (1997). Grinnell claimed that Darcy, as an insured under the policy issued by Continental Western to Darlene Rapping, authorized Jepperson to drive the vehicle, thereby obligating Continental Western to the extent of its $50,000 policy limits for damages sustained by Schwartzhoff and paid by Grinnell. Continental Western denied coverage, challenging Darcy’s insured status under the policy and urging that, even if Darcy were insured, the consent she gave Jep-person was revoked before the accident. The district court found in favor of Continental Western on the latter ground, and this appeal by Grinnell followed.

Further facts will be detailed as they relate to the issues on appeal.

II. Scope of Review.

Because this action was tried at law, our review is on assigned errors only. At issue is the construction and interpretation of the auto liability policy issued by Continental Western. Construction of a contract involves the determination of its legal effect, always a question of law. LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 803, 307 (Iowa 1998). Interpretation — discerning the meaning of contractual language — is likewise a question of law for the court unless the meaning of disputed terms turns on extrinsic facts or choices among reasonable inferences. Id. at 306. Thus we are not bound by the district court’s conclusions regarding the construction of the Continental Western policy but, to the extent its interpretation of contractual terms depends on extrinsic evidence, we are bound by those factual findings supported by substantial evidence in the record. Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999).

III. The Policy.

The ultimate question on appeal is whether the judgment against Darcy for the accident caused by Jason Jepperson is covered by the Continental Western policy. We begin our analysis by looking at the policy’s provisions.

According to the insuring agreement, Continental Western “will pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident.” The term “insured” has three contractual meanings pertinent here:

1. You [the named insured] or any “family member” for the ownership, maintenance or use of any auto or “trailer.”
2. Any person using “your covered auto.”
3. For “your covered auto,” any person or organization but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part.

Darlene Kapping was the named insured on the policy. “Family member” as defined by the policy is “a person related to you [the named insured] by blood, marriage or adoption who is a resident of your household.” (Emphasis added.) ‘Tour covered auto” means “[a]ny vehicle shown in the Declarations,” i.e., the 1979 Mercury Marquis.

Two other policy provisions are arguably pertinent to our analysis. First, the contract contains an exclusion from liability coverage “for any person ... [u]sing a vehicle without a reasonable belief that that person is entitled to do so.” Second, under the heading “TRANSFER OF YOUR INTEREST IN THIS POLICY,” the contract states:

Your rights and duties under this policy may not be assigned without our written consent. However, if a named insured shown in the Declarations dies, coverage will be provided for:
1. The surviving spouse if resident in the same household at the time of death. Coverage applies to the spouse as if a named insured shown in the Declarations; and
2. The legal representative of the deceased person as if a named insured shown in the Declarations. This applies only with respect to the representative’s legal responsibility to maintain or use “your covered auto.”

At this point, we think some fundamental observations about these policy provisions deserve comment. First, the named insured and qualified family members are insured under the Continental Western policy for the use of any auto. Pertinent to this appeal, the policy also provides coverage for any person, but only while using the “covered auto.” Thus, irrespective of whether Darcy was a member of Darlene’s household on the date of the accident, she fit the definition of “[a]ny person using [the] ‘covered auto.’ ” And, while driving the Mercury, so did Jason Jepperson. The question is whether other factual or legal obstacles prevent coverage, a matter to which we now turn.

IV. Consent.

The district court rested its judgment for Continental Western on a finding that at the time of the accident, “Jason no longer had a reasonable belief that he was entitled to use the car.” So, the court concluded, Jason’s conduct came within the exclusion from coverage under the policy. On appeal, Grinnell contests the legal and factual bases for this conclusion. For the reasons that follow, we find Grinnell’s argument persuasive.

To begin, we must relate some additional facts. Darlene died intestate and without a surviving spouse. So title to what little property she owned, including the Mercury, vested immediately in her three daughters, including Darcy. See Sanderson v. Kisner, 477 N.W.2d 96, 98 (Iowa 1991) (ownership and title to vehicle passes immediately to heirs-at-law on death). Darcy, as the new one-third owner of the Mercury, inherited'not only the responsibility for its operation but the right to consent to its use. See Iowa Code section 321.493 (fixing liability for damages on owner when motor vehicle operated with owner’s consent).

There is no dispute under this record that Darcy consented to Jason’s operation of the Mercury on the night of the accident. The question is whether at some point Darcy revoked her consent. The answer turns, as a matter of law, on whether Darcy’s direction to Jason evinced her intent to terminate his driving privilege or merely sought to control his manner of driving. The distinction is a crucial one, as this court has observed:

An owner can limit [her] liability for the negligence of the driver of [her] motor vehicle by making [her] consent conditional. By prescribing the time, place, or purpose for which the vehicle can be used, the owner can escape liability if the driver deviates materially from the-scope of the consent. However, the owner generally cannot avoid such liability for a mere deviation from instruction on the manner which the vehicle is used. For example, the owner cannot escape liability by stating that if the driver exceeds the speed limit he is then driving without permission. Any other conclusion would allow the owner to escape liability in nearly every case by showing that some authority was violated.
We conclude that under section 321.493 it is justifiable to distinguish violations of restrictions on time, place, or purpose of the use of the vehicle from a restriction on manner of use. The purpose of the statute is to protect an innocent third party from the careless operation of a motor vehicle and to make the owner responsible for the negligence of one to whom the owner entrusted its operation. This entrustment can reasonably be conditioned on time, place, or purpose without undermining the purpose of section 321.493. However, if we allowed the owner to terminate [her] consent solely on the basis of the manner of driving we would subvert the purpose of the statute.

Briner v. Hyslop, 337 N.W.2d 858, 869-70 (Iowa 1983) (citations omitted.)

Here, the district court concluded that Jason should have known he no longer had authority to use the Mercury when Darcy began “hitting him and telling him to stop.” The problem with the court’s reliance on this one deposition statement by Darcy is that it completely overlooks the context in which it was made. There is no dispute that Darcy asked Jason to drive the car because she preferred not driving on gravel roads. The record reveals that the group was in a hurry to get to the dance. Jason, however, drove faster on the gravel than the other passengers thought he should. He evidently ignored their requests to slow down. When the passengers saw a car approaching the intersection ahead they all yelled at Jason to stop but it was too late. As Jason tried to stop, the car began fishtailing. So one or more of the passengers urged him to “floor it” in an attempt to avoid the oncoming car. That maneuver was unsuccessful and so the collision occurred.

Considered in context, Darcy’s direction to Jason was not “stop, pull over, you are done driving.” It was a frantic “stop at the stop sign ahead because a car is coming the other way.” This was not a “time, place or purpose” restriction on his driving. It was a last-ditch attempt to impact Jason’s manner of driving. The district court erred in failing to draw this distinction. See id. at 870 (allowing owner to terminate consent solely due to manner of driving would subvert owner consent statute). Because its decision cannot stand on this ground, we turn to the other arguments urged in support of the judgment.

Y. Coverage after Death of Named Insured.

Continental Western argues that even if the district court erred on the consent issue, its decision may be upheld because coverage after death of the named insured would in any event be limited to a surviving spouse or the decedent’s legal representative. Grinnell counters that even if that is the general rule, the doctrine of reasonable expectations would have permitted the court to find coverage for Darcy under this record. We are convinced Continental Western has the better argument.

It is indeed the general rule that, in the absence of language to the contrary, an automobile liability policy terminates with the death of the named insured. Oroian v. Allstate Ins. Co., 62 Md.App. 654, 490 A.2d 1321, 1323 (1985); Wilkins v. Inland Mut. Ins. Co., 253 F.2d 489, 490 (4th Cir.1958); see generally 7 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 110:7, at 110-14 (3d ed. 2000 Supp.) [hereinafter “Couch ”]; 7 Am. Jur.2d, Automobile Insurance § 12, at 456 (1980); P.G. Guthrie, Annotation, Automobile Insurance: Coverage as Extending Beyond Death of Named Insured, 30 A.L.R.3d 1047,1073 (1970).

As the court noted in Wilkins, however, insurers tend to recognize the “preoccupations of bereavement” by including policy language extending coverage under limited circumstances following death. Wilkins, 253 F.2d at 491. Continental Western concedes that is the case here. But while the policy discussed in Wilkins (and others cited by the treatises) includes coverage for “any person having proper temporary control and custody of the vehicle,” see id., the policy before us extends coverage in only two circumstances: to a surviving spouse who is resident of the same household at the time of death and(to the deceased’s legal representative.

As found by the district court, the record before us reveals no facts obligating Continental Western under the extended coverage provisions of the Rapping policy. Darlene Rapping was a divorced person who died without a surviving spouse. Moreover, she had no will and her modest estate evidently warranted no administration. Thus, at the time of the accident, no one had been officially appointed “legal representative” of her intestate estate. Cf. Federated Mut. Implement & Hardware Ins. Co. v. Eng, 178 N.W.2d 321, 324 (Iowa 1970) (deceased’s auto policy covered executor while driving on estate business).

We note that at least one court has found the term “legal representative” to have “no fixed meaning in the law” and therefore sufficiently broad to include a sole heir not yet appointed administrator. See Merchant’s Mut. Cas. Co. v. Egan, 91 N.H. 368, 20 A.2d 480, 482 (1941) (where policy language inconsistent with statute, spouse qualifies as “legal representative” prior to appointment during term of policy). Such a broad reading of Continental Western’s policy, however, would not avail Darcy or Grinnell here. Neither Darcy nor her consent driver was using the vehicle for anything remotely involving “estate” business. At the time of the accident, they were on their way to a dance. We know of no case permitting qualification under the extended-coverage provision in these circumstances. Compare Eng, 178 N.W.2d at 324 (finding coverage where executor operating vehicle to collect sales price for hogs owned by estate), with Oroian, 490 A.2d at 1325 (no coverage for executor’s consent driver who operated estate pickup on personal business).

Grinnell nevertheless claims the district court properly applied the reasonable expectations doctrine to reach the consent issue and avoid this “unjust result.” We are not so convinced. The doctrine is a narrow one, employed by courts only “when the insurance coverage provided eviscerates terms explicitly agreed to or is manifestly inconsistent with the purpose of the transaction for which the insurance was purchased.” Monroe County v. Int’l Ins. Co., 609 N.W.2d 522, 526 (Iowa 2000). Applicability of the doctrine turns on proof that (1) an ordinary layperson would misunderstand the policy’s coverage, or (2) circumstances attributable to the insurer fostered coverage expectations. Krause v. Krause, 589 N.W.2d 721, 728 (Iowa 1999); Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 357 (Iowa 1995).

The district court recognized the record contains no proof whatsoever concerning Darlene’s purchase of the policy or her coverage expectations. It decided, however, that an ordinary person would expect an insurance policy naming a particular vehicle to provide coverage throughout the policy period despite the named insured’s death. The problem with the court’s reasoning is that it overlooks plain language in the policy to the contrary, as well as settled law. Neither payment of the premium for the full term nor continued use of the vehicle consistent with the named insured’s former practice will burden an insurer, on equitable grounds, with coverage outside the contract’s terms. Collins v. Northwest Cas. Co., 180 Wash. 347, 39 P.2d 986, 990 (1935); see 7 Couch § 110:7, at 110-14 (fact that premium has been paid for full term does not, on equitable grounds, permit extension of coverage beyond insured’s death during policy term).

VI. Conclusion.

In short, the district court was right for the wrong reason. The record does not support the court’s application of the reasonable expectations doctrine to find coverage for Darcy and her consent driver, so the court should not have reached the consent issue. Grinnell fails in its bid to recover from Continental Western because, upon the death of Continental Western’s named insured, neither Darcy nor anyone else qualified as an insured under the extended coverage provision of the policy. We therefore affirm the district court’s judgment for Continental Western.

AFFIRMED.

      . The record reveals that around the end of August 1992, Darcy moved from the rented residence she had shared with her mother to an apartment of her own. Both in district court and on appeal, the parties devote much attention to Darcy’s precise address on the date of the accident and the separate but related question of whether she continued to be a member of Darlene's "household” following Darlene’s death. Given the insuring agreement that provides coverage for "any" person using the "covered auto,” we think Darcy’s status as a member of Darlene's household on the date of the accident is largely irrelevant.

      . We address this question because the parties have framed the appeal this way. We entertain some doubt as to whether or not Jason's belief about his driving privilege is relevant to the case. It is Darcy’s coverage that is at issue.


author: Kathleen A. Blatz Chief Justice

text:
    In re the CODE OF JUDICIAL CONDUCT.
    No. C4-85-697.
    Supreme Court of Minnesota.
    Jan. 29, 2002.
   ORDER

In Republican Party of Minnesota v. Kelly, 247 F.3d 854 (8th Cir.2001), cert. granted, 122 S.Ct. 643 (U.S. Dec. 3, 2001) (No. 01-521), the United States Court of Appeals for the Eighth Circuit held that the provision in the Minnesota Code of Judicial Conduct that prohibits a candidate for judicial office from announcing “his or her views on disputed legal or political issues,” Canon 5(A)(3)(d)(i) (the announce clause), as construed by the district court in Republican Party of Minnesota v. Kelly, 63 F.Supp.2d 967 (D.Minn.1999), is narrowly tailored to further compelling state interests. It has come to the attention of this court that the interpretation of the announce clause by the federal district and appeals courts has given rise to questions about the interpretation of the announce clause by this court. We issue this order adopting the interpretation of the federal court of appeals to clarify our position to the Board on Judicial Standards and the Lawyers Board of Professional Responsibility, which have the first level of responsibility for enforcement of the Canon.

IT IS HEREBY ORDERED that the announce clause of Canon 5(A)(3)(d)® shall be enforced in accordance with the interpretation of that clause by the United States Court of Appeals for the Eighth Circuit in Republican Party of Minnesota v. Kelly, 247 F.3d 854 (8th Cir.2001).

BY THE COURT:

Kathleen A. Blatz Chief Justice


author: /s/ PAUL H. ANDERSON, Associate Justice

text:
    Terry RAATZ, Respondent, v. UNITOG RENTAL SERVICES and Specialty Risk Services, Relators, and Walgreen Company, Intervenor.
    No. C6-01-1975.
    Supreme Court of Minnesota.
    Jan. 30, 2002.
    Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, for relators.
    Russell J. LaCourse, LaCourse Law Office, P.A., Duluth, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 16, 2001, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ PAUL H. ANDERSON, Associate Justice


author: G. BARRY ANDERSON, Judge.

text:
    Gary SCHIFF, et al., Appellants, v. Susanne GRIFFIN, City of Minneapolis Director of Elections, Respondent.
    No. C9-01-1291.
    Court of Appeals of Minnesota.
    Feb. 12, 2002.

      Alan W. Weinblatt, Weinblatt & Gay-lord, PLC, St. Paul, MN, for appellant.
    Jay M. Heffern, Minneapolis City Attorney, Larry F. Cooperman, Assistant City Attorney, Kristi M. Lassegard, Assistant City Attorney, Minneapolis, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellants, candidates for council member in the Minneapolis primary election of September 11, 2001, challenge the district court order denying their petition for correction of ballot error, arguing that (1) they had standing by legislative conferral to seek judicial review of the alleged error; and (2) the phrases “DFL/Labor Endorsed” and “DFL-Endorsed” are lawful designations of political party or political principle under applicable election law. Respondent argues that appellants’ challenge is moot because the election is over. Although appellants’ claim is justiciable, the district court correctly denied the petition. We affirm.

FACTS

On July 3, 2001, appellants Gary Schiff and Dean Kallenbach filed affidavits of candidacy for the office of council member in the September 11, 2001 Minneapolis city primary election. Affidavits of candidacy for council member in Minneapolis must include the candidate’s “political party or political principle, stated in three words or less.” Minneapolis, Minn., Code of Ordinances (MCO) ch. 2, § 5 (2001). The political party or political principle is placed on the ballot with the candidate’s name. Id. Each appellant wrote “DFL/Labor-Endorsed” as his political party or political principle. Respondent Susanne Griffin, the acting Minneapolis Director of Elections, received the affidavits.

On July 12, 2001, respondent informed appellants that “DFL/Labor-Endorsed” is not an appropriate designation of political party or political principle under the MCO. Respondent notified Schiff and Kallenbach that

since you have selected “Democratic-Farmer-Labor” as your party choice, I intend to place those three words on the ballot as your designation of “party or principle.”

Respondent noted that appellants could refile their affidavits of candidacy by July 17, 2001 if they wished to confirm or change the “party or principle” designation. Appellants did not refile their affidavits of candidacy.

On July 31, 2001, appellants filed a petition for correction of ballot error and an application for order to show cause in district court, pursuant to the “errors and omissions” provision of Minn.Stat. § 204B.44 (2000). That provision authorizes the court, upon the petition of “any individual,” to act to prevent an error or omission in the placement or printing of the name or description of any candidate or any question on any official ballot.

In their petition and application, appellants challenged respondent’s refusal to place the words “DFL/Labor Endorsed” as their political principle on the primary election ballot. Appellants argued that (1) a factual statement of endorsement is a lawful expression of political principle; (2) “DFL” and “Democratic-Farmer-Labor” should be considered one word for the purpose of the three-word maximum mandated by MCO ch. 2, § 5; and (3) respondent’s decision to designate appellants’ political principle as “Democratic Farmer Labor” was an arbitrary, capricious, and illegal abuse of her essentially “ministerial” duty to place each candidate’s political principle on the ballot as the principle is stated on the affidavit. Appellants requested a court order compelling respondent to place the words “DFL-Endorsed” next to their names on the ballot.

The district court issued an order for respondent to show cause for refusing to grant appellants’ request. Respondent argued that (1) the phrase “DFL/Labor-Endorsed” is not a lawful expression of political principle under MCO ch. 2, § 5; (2) the phrase “DFL/Labor-Endorsed” violates MinmStat. § 204B.35 (2000) by giving appellants an unfair advantage over other candidates; (3) appellants lacked standing to request that “DFL-Endorsed” be placed on the ballot because they had not written “DFL-Endorsed” on their affidavits of candidacy; and (4) because “Democratic-Farmer-Labor” and “DFL” consist of three words, the phrase “DFL-Endorsed” violates MCO ch. 2, § 5’s three-word limit.

The district court denied appellants’ petition to correct ballot error, finding that (1) appellants lacked standing to challenge respondent’s actions; (2) the designation “DFL-Endorsed” is not a lawful political principle under MCO ch. 2, § 5; and (3) the designation “DFL-Endorsed” confers an unfair advantage on candidates so designated under Minn.Stat. § 204B.35. The district court did not address the issue of whether “DFL” or “Democratic Farmer Labor” is one word or three words for the purpose of MCO ch. 2, § 5. This appeal follows.

ISSUES

I. Did the district court err by finding that appellants lacked standing to file a petition to correct ballot error?
II. Did the district court err by finding that the phrases “DFL/Labor-Endorsed” and “DFL-Endorsed” are not legitimate designations of political party or political principle under Minneapolis, Minn., Code of Ordinances ch. 2, § 5 (2001) or Minn.Stat. § 204B.35?
III. Did respondent lawfully refuse to place appellants’ designation of political principle, as stated on their affidavits of candidacy, on the primary ballot?
IV. Was appellants’ petition to correct ballot error rendered moot after the election was held?

ANALYSIS

I.

Appellants challenge the district court’s finding that they lacked standing to bring the petition for correction of ballot error, arguing that Minn.Stat. § 204B.44 (2000) broadly confers standing “on any individual” to allege ballot error, and that the district court impermissibly considered the merits of the petition and the nature of the relief sought in determining standing. We agree, and now hold that appellants had standing to bring the petition.

Whether a party has standing to sue is a question of law, which we review de novo. See Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984); Joel v. Wellman, 551 N.W.2d 729, 730 (Minn.App.1996), review denied (Minn. Oct. 29, 1996).

Standing is an aspect of justicia-bility that requires a party to have “a sufficient stake in a justiciable controversy to seek relief from a court.” State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn.1996) (citation omitted). A determination of standing properly focuses on the party seeking to have a court decide the merits of a dispute “and not on the issues [the party] wishes to have adjudicated.” Sundberg v. Abbott, 423 N.W.2d 686, 688 (Minn.App.1988) (quoting Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968)), review denied (Minn. June 29,1988).

The legislature may confer standing on parties who might not otherwise meet judicially imposed standards for establishing standing. See Minn. Pub. Interest Research Group v. Minn. Dept. of Labor & Indus., 311 Minn. 65, 72, 249 N.W.2d 437, 441 (1976). When the legislature

has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.

Id. (quoting Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364-65, 31 L.Ed.2d 636, (1972)).

Minn.Stat. § 204B.44 provides:

Any individual may file a petition * * * for the correction of * * *
(a) An error or omission in the placement or printing of the name or description of any candidate or any question on any official ballot; * * *
The petition shall be filed with * * * any judge of the district court in that county in the case of an election for county, municipal, or school district office.

This grant of standing has been broadly construed. See Clifford v. Hoppe, 357 N.W.2d 98, 100 n. 1 (Minn.1984) (“a registered voter has a sufficient interest in the election” to petition the court to correct a ballot error under Minn.Stat. § 204B.44 (citation omitted)); Moe v. Alsop, 288 Minn. 323, 325, 180 N.W.2d 255, 257 (1970) (“a person qualified to vote” can invoke the court’s jurisdiction to hear a petition to correct ballot error); State ex. rel. Olson v. Scott, 105 Minn. 513, 516, 117 N.W. 1044, 1045 (1908) (“a candidate at a primary election” has a sufficient interest in the election to request an order to show cause concerning alleged errors or omissions in placing names on the official ballot).

Respondents correctly cite to Schroeder v. Johnson, 311 Minn. 144, 252 N.W.2d 851 (1976), for the proposition that the § 204B.44 does not authorize courts to correct candidates’ errors, but only errors attributable to election officials. See id. at 145-46, 252 N.W.2d at 852 (holding that the legislature did not intend the statute to “correct errors or omissions resulting only from the candidate’s inadvertence during the filing procedure”). But appellants are challenging respondent’s alleged error, not asking to rectify their own, so Schroeder does not apply here.

The district court also denied appellants standing after concluding that their petition was substantively flawed and their requested remedy prohibited by Minn.Stat. § 204B.44. The court found that appellants did not have standing to seek placement of “DFL-Endorsed” on the ballot since they had not used that designation on their affidavits of candidacy. The court concluded that it lacked authority to revise the ballots when no error had occurred.

But a determination of standing must not be based on the substantive merits or prospective success of a claim. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 226, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974) (describing as “manifestly untenable” the “view that the inadequacy of the presentation on the merits would be an appropriate basis for denying standing”); Flast, 392 U.S. at 101, 88 S.Ct. at 1953 (noting that “in deciding the question of standing, it is not relevant that the substantive issues in the litigation might be nonjustieiable”). Here, appellants alleged ballot error, and the district court improperly denied standing by evaluating the merit of the claim and the propriety of the requested remedy.

Minn.Stat. § 204B.44 confers standing on appellants to challenge respondent’s actions.

II.

A Minneapolis, Minn., Code of Ordinances ch. ¾ § 5

Appellants challenge the district court’s conclusion that “DFL-Endorsed” is not a lawful political principle under MCO ch. 2, § 5 (2001). The district court concluded that “DFL-Endorsed” (1) imper-missibly expresses the DFL’s preference, not the candidate’s political principle, and (2) impermissibly designates both a political party and a political principle.

Issues of statutory construction and interpretation present questions of law, which we review de novo. See Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (Minn.1978).

Candidates for council member in Minneapolis must include “the name of their political party or political principle, stated in three words or less, on their affidavits of candidacy.” MCO ch. 2, § 5. When an ordinance is clear and unambiguous, we are not permitted to look beyond its plain meaning. See Erickson v. State, 599 N.W.2d 589, 590 (Minn.App.1999), review denied (Minn. Dec. 14, 1999). MCO ch. 2, § 5 plainly authorizes candidates to state their political party or political principle, not the principles of others.

Appellants argue first that “DFL-Endorsed” is a shortened form of the political principle, “I support only DFL-Endorsed candidates,” and not a shortened form of “I am DFL-endorsed.” This argument is not convincing. By its only reasonable interpretation, “DFL-Endorsed” describes appellants in terms of the DFL’s preference; it does not describe other candidates in terms of appellants’ preference. “DFL-Endorsed” does not express a principle held or advocated by appellants.

Appellants’ claim that “DFL-Endorsed” means “I support only DFL-endorsed candidates” is also inconsistent with affidavits appellants themselves submitted in support of their petition. In the affidavits, appellants stated that “DFL-Endorsed” expresses the principle that “voters should know which candidates have their political party’s support and which do not.” Appellants thereby acknowledged that the purpose of the designation “DFL-Endorsed” is to express the DFL’s preference, and not to state appellants’ political principle.

The district court did not err by concluding that “DFL-Endorsed” is not a lawful expression of appellants’ political principle.

Appellants also argue that the district court erred by concluding that “DFL-Endorsed” violates MCO ch. 2, § 5’s “political party or political principle” language by expressing both a political party and a political principle. Appellants claim that an expression of political principle may lawfully include a political party name. We disagree.

“DFL” is indisputably the name of a political party. If, as appellants claim, “DFL-Endorsed” expresses a political principle, it also designates a political party, since it contains the term “DFL.” But “DFL-Endorsed” is neither a simple expression of political party nor a lawful designation of political principle. It is an improper designation of both political party and political principle, and as such, violates MCO ch. 2, § 5.

The district court did not err by concluding that “DFL-Endorsed” expresses both a political principle and a political party.

B. MinnStat. § 20JpB.S5

Appellants argue that the district court erred by concluding that the words “DFL-Endorsed” confer an unfair advantage on them in violation of MinmStat. § 204B.35 (2000). That statute provides that

[t]he name of a candidate shall not appear on a ballot in any way that gives the candidate an advantage over an opponent, including words descriptive of the candidate’s occupation, qualifications, principles, or opinions, except as otherwise provided by law.

Minn.Stat. § 204B.35, subd. 2. The supreme court has written in dicta that

a premeditated attempt * * * to arrange the names of the candidates on the ballots in such a way as to group the endorsed candidates in opposition to the candidates who were not endorsed [might raise] an inference of unfairness sufficiently serious to constitute an “error” within the meaning of [the errors and omissions statute].

Mattson v. McKenna, 301 Minn. 103, 106, 222 N.W.2d 273, 276-77 (1974). The Matt-son court held that no ballot error results when the positioning of names on a ballot so that endorsed candidates (not identified as such) are grouped opposite non-endorsed candidates “is the fortuitous result of alphabetical alignment.” Id. at 107, 222 N.W.2d at 277.

Mattson suggests that appellants would gain a prohibited unfair advantage by their premeditated attempt to distinguish themselves on the ballot as endorsed candidates. Id. Appellants attempt to distinguish Mattson, arguing they are not asking that their names be given special placement on the ballot. Mattson does not restrict the physical placement of names on a ballot, but proscribes deliberate designations of party endorsement that confer an unfair advantage on a candidate.

MinmStat. § 204B.35 prohibits ballot designations “descriptive of the candidate’s occupation, qualifications, principles, or opinions, except as otherwise provided by law.” The description “DFL-Endorsed” would give appellants an unfair advantage in violation of the statute. See Clifford, 357 N.W.2d at 102 (holding that the statute prohibits a candidate from using the description “Prolife” as her middle name on a ballot). Under Mattson, Minn.Stat. § 204B.35 prohibits appellants’ attempt to place their party endorsement next to their names.

III.

Appellants argue that respondent lacked statutory authority to reject their choice of political principle. Because respondent is only bound to accept otherwise lawful designations of political principle, we disagree.

Appellants cite to Lind v. Scott, 87 Minn. 316, 92 N.W. 96 (1902), for the proposition that an election official may not alter a candidate’s designated political principle. In Lind, the supreme court described the duty of the public officer preparing the official ballot as

purely ministerial. He is not authorized to create or adopt a name for a candidate, but to accept the [political party] name suggested in the nomination papers, which must be a proper one * * *.

Id. at 317, 92 N.W. at 97.

Here, the Minneapolis city attorney reviewed the affidavits of candidacy and informed respondent that appellants’ political-principle designation violated applicable election law and could be subject to legal challenge.

Lind does not support appellants’ argument. In Lind, after a political party changed its name, an election official refused to place the new name on the ballot next to the party’s candidates. See id. The supreme court held that the election official lacked discretion to use the party’s “abandoned designation.” Id. at 318, 92 N.W. at 97. Lind held that an election official may not reject an otherwise proper designation; it did not hold that an election official must accept an unlawful designation.

Respondent’s rejection of appellants’ unlawful political principle designation was not an abuse of discretion, but a fulfillment of her legal duty to certify only those ballots in formal compliance with applicable election laws. See Clifford, 357 N.W.2d at 101-02 (refusing to certify a name on a ballot in a form that violates Minnesota election laws).

IV.

Respondents argue that appellants’ challenge is moot because the petition to correct ballot error concerned only the September 11 primary election, not the November 6 general election. We disagree.

The doctrine of mootness dictates that this court will hear only live controversies and will not pass on the merits of a particular question merely for the purpose of setting precedent.

In re Inspection of Minn. Auto. Specialties, Inc., 346 N.W.2d 657, 658 (Minn.1984).

Mootness can be described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 709, 145 L.Ed.2d 610 (2000) (quotation omitted). If this “court is unable to grant effectual relief,” the issue will be deemed moot. In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989) (citation omitted).

In Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), the Supreme Court recognized that passage of an election does not necessarily render an election-related case moot; such cases may be exceptions to the mootness doctrine because they are “capable of repetition, yet evading review.” Id. at 737 n. 8, 94 S.Ct. at 1282 n. 8 (quotation and citations omitted); see also Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621, 628 (2d Cir.1989) (a case is “capable of repetition, yet evading review” where “[t]he issues properly presented, and their effects ⅜ * * will persist in future elections, and within a time frame too short to allow resolution through litigation”) (quotations and citation omitted) (alteration in original).

Judicial review of a petition timely filed before a primary election under Minn. Stat § 204.B44 will typically not be complete before the general election. But the issue of whether candidates may use the word “endorsed” to designate their political party or principle on a ballot will likely arise in connection with future elections, and is therefore capable of repetition, yet evading review. Appellants’ petition was not moot.

DECISION

Appellants had standing by legislative conferral to file a petition to correct ballot error. The director of elections properly rejected as unlawful appellants’ designation of political principle. The district court properly denied appellants’ petition, because appellants’ designated political principle is not authorized by applicable election law. Although the election has passed, this matter is capable of repetition, yet evading review, and is therefore not moot.

Affirmed.


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Clyde (NMN) CALDWELL, Appellant.
    No. C3-01-430.
    Court of Appeals of Minnesota.
    Jan. 29, 2002.
    Review denied March 27, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and ANDERSON, Judge.
   OPINION

CRIPPEN, Judge.

Appellant disputes the trial court’s refusal to suppress evidence obtained after an officer made a preliminary inquiry about the location of appellant’s gun without first administering a Miranda warning. The trial court concluded that the police officer’s limited questioning of appellant was appropriate because the police believed the gun was in the area and posed a threat to the police and the public. Because we find legal support for the application of the public-safety exception to the facts of the case, we affirm the trial court’s determination.

FACTS

On June 7, 2000, the Minneapolis police received a complaint from victim M.J. that an African-American male had assaulted him and threatened him with a gun. It is unclear if a dispatch went out on the call, but the record reflects that the police did not respond to M. J’s initial complaint. Another call was made notifying the Minneapolis police that the “person with the gun” was back. Officer Mark Sletta and other Minneapolis police officers responded to the second call; the dispatch notified officers that a “black male,” who had earlier assaulted and threatened M.J. with a gun, had returned.

When the officers arrived, they encountered three or four African American males and two females standing in front of the suspect’s residence. Based on the dispatch’s description of the assailant and for their own safety, the police officers handcuffed and frisked the men, including M.J. and appellant Clyde Caldwell. The officers did not find a gun on appellant, but Officer Sletta asked appellant if he had a gun. Appellant responded that he had three guns inside his residence and described the guns to the officer. Based on appellant’s response, Officer Sletta obtained a search warrant, executed the warrant, and found three guns. After the police drove appellant to the Hennepin County Jail, the officer read appellant his Miranda rights and interviewed him. Appellant admitted that he owned the three guns and that he had been convicted of burglary, but he denied assaulting M.J. and threatening him with a gun. The state subsequently charged appellant with possession of a firearm by an ineligible person; a second-degree assault charge was stated but later dismissed.

At the omnibus hearing in September 2000, appellant’s attorney moved to suppress appellant’s pre-Miranda statements. The trial court denied appellant’s motion, finding the statement admissible under the public-safety exception to Miranda — the doctrine whereby a police officer has freedom to inquire about the location of the gun for the sake of protecting himself or the public.

There was a clear concern of the police — not to protect their safety, that had been accomplished through the pat search, but to protect the public safety by locating a gun in the area. And the court concludes that under [relevant precedent], the limited questioning of the defendant as to whether he had a gun, even though the Miranda warnings had not been given, was not a violation of the principles articulated in Miranda and therefore the motion to exclude the statements made at the scene is denied based on the exigent circumstances exception to the Miranda requirement.

The first day of trial, appellant requested a continuance to hire private counsel. Appellant alleged that the public defender was not properly representing him. Appellant informed the trial court that he was not employed and that he had not made an effort to contact new counsel. The trial court acknowledged that appellant had a right to choose his own counsel, but concluded that appellant had not exercised this right within a reasonable period of time. The court found appellant’s counsel highly competent and denied appellant’s request for a continuance.

ISSUES

1. Were appellant’s pre-Miranda statements regarding the location of the guns admissible under the public-safety exception to the Miranda requirements?

2. Did the trial court abuse its discretion by denying appellant’s request for a continuance?

ANALYSIS

1.

When the facts are not in dispute, this court makes a de novo review of a pretrial order on a motion to suppress evidence; we are to review independently the facts and determine, as a matter of law, whether the evidence need be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992).

Appellant argues that the trial court erred by denying his motion to suppress his pre-Miranda statements because he was in custody when the officers asked him if he owned a gun and because there was no threat to public safety warranting an exception to the Miranda rule. Appellant contends that his Fifth Amendment rights were “flatly violated” and that his conviction should be reversed because the statements and evidence of the guns should have been suppressed.

Statements made during a custodial interrogation cannot be admitted into evidence unless the suspect is given the Miranda warning and intelligently waives the right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612-13, 16 L.Ed.2d 694 (1966). A suspect does not have a constitutional right to a Miranda warning, but the warning serves as a device to protect the right against compulsory self-incrimination. Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974). The United States Supreme Court recognizes limited exceptions to the Miranda warning. One of these narrow exceptions, based on protection of a police response to exigent circumstances, allows police officers faced with an immediate threat to public safety to ask questions necessary to protect the public or themselves before giving a Miranda warning. New York v. Quarles, 467 U.S. 649, 655-56, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984).

In Quarles, the victim told police that she had been raped and her assailant had just entered a nearby grocery store with a gun. Id. at 651-52, 104 S.Ct. at 2629. The police officers drove to the store, identified the suspect, and chased him through the store. Id. When an officer apprehended the suspect in the store, he discovered that the suspect was wearing an empty shoulder holster. The officer handcuffed the suspect and asked him where the gun was. Id.Based on the suspect’s answer, the officer located the gun in an empty carton, arrested him, and read him the Miranda warning. Id.

The Court held that, based “on these facts,” the public-safety exception applied but warned that this narrow exception should only be applied in exigent circumstances.

[WJhere spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer.

467 U.S. at 656, 104 S.Ct. at 2631. The Court found that the circumstances in Quarles posed a threat to public safety because the gun was concealed somewhere in the grocery store where an accomplice might use it or where a customer or employee might discover it. Id. at 657, 104 S.Ct. at 2632. The Court reasoned that if the police are required to give the Miranda warning before asking necessary questions to ensure public safety, “suspects in Quarles’ position might well be deterred from responding.” Id. The Court further noted that the officer only asked the question necessary to locate the missing gun and continued the investigatory questions after giving the suspect the Miranda warnings. Id. at 659, 104 S.Ct. at 2633. The Court’s focus in Quarles was on the police officer’s immediate necessity to look for a weapon because the officer believed that the suspect has just disposed of it in a public place. Id at 657, 104 S.Ct. at 2632. In circumstances where the police or the public’s safety is in immediate danger, the Court will depart from Miranda because of the need for a police officer’s spontaneous judgment and because of the personal risks that are involved. Id. at 659, 104 S.Ct. at 2683.

This court acknowledged that the narrow public-safety exception should only be used in exigent circumstances and declined to apply it in State v. Hendrickson, 584 N.W.2d 774 (Minn.App.1998). In Hendrickson, the police received a report of a stolen gun, and the gun-owner’s daughter told police that the defendant admitted to her that he had taken the gun. Id. at 775. The police arranged for the daughter to meet with the defendant at a nearby apartment building, and at this meeting the police handcuffed and'pat-searched the defendant. Id. The police did not find a gun on the defendant, but without first giving a Miranda warning, a police officer asked the defendant about the location of the gun. Id. This court held that the public-safety exception did not apply in Hendrickson because (1) the police did not have reason to believe that Hendrickson had just discarded the gun due to the eight hours that had passed since he stole the loaded gun; and (2) the officers’ questioning about the location of the gun was “not reasonably prompted by an immediate threat to public safety.” Id. at 777-78.

Hendrickson dealt with a legitimate police concern of getting the loaded gun off the streets, but the gun was not necessarily discarded in a public place as in Quarles.

The concern for the public safety that the Supreme Court spoke of in Quarles was not a concern about the inherent danger posed by any loaded handgun somewhere in the community; it was a concern about the danger posed by a gun discarded in a public place where an unknown passerby could discover it.

Id. at 777.

We do not believe the application of the public-safety exception pronounced in Quarles turns on whether the police have reason to believe that the suspect has just discarded a gun in a building or on the street. Rather, the application of this narrow exception must be decided on a case-by-case basis, and the facts here, as the trial court determined, permit the use of the public-safety exception. The police officers responded to a call that the African American male suspect, who had assaulted and threatened the victim with a gun earlier that day, had returned. The officers found the victim, the suspect, and additional persons, who may have been companions of the suspect, in front of the suspect’s house. Based on the police dispatch, the officers had reason to believe that the suspect, later identified as appellant, was carrying a gun or had just discarded it. Unlike the officers in Hen-drickson, who were questioning a suspect eight hours after the gun had appeared in public, police here were acting within minutes of being called. After the police did not find any weapons on appellant, they were faced with the immediate necessity of locating the gun because appellant could have discarded it in a nearby public area, where an accomplice or a neighbor could have discovered it, putting their safety and the public’s safety at risk. The officer here asked only the necessary question to retrieve the gun and to ensure police and public safety, and he did not continue with investigatory questions until after he gave the Miranda warning to appellant. The fact that appellant’s response dispelled any immediate concern for public safety does not affect justification for the question.

Unlike Hendrickson, the police here wei*e confronted with an uncontrolled situation and were working with limited facts. The situation posed a threat to the public safety that outweighed “the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” Quarles, 467 U.S. at 657, 104 S.Ct. at 2632. Because the facts here warrant the use of the public-safety exception to Miranda, the trial court did not err in denying appellant’s motion to suppress his pre-Miranda statements to the police.

2.

A ruling on a request for a continuance is within the trial court’s discretion and a conviction will not be reversed for denial of a motion for a continuance unless the denial is a clear abuse of discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn.1987).

Appellant argues that the trial court abused its discretion in denying his request for a continuance to hire a private attorney because he had a right to seek counsel of his own choice and he was not attempting to delay the trial. Appellant also claimed that there was no prejudice in granting the continuance because the trial was “relatively simple with only police officers” as witnesses.

The federal and state constitutions guarantee the criminal defendant the right to the assistance of counsel. U.S. Const., amend. VI; Minn. Const, art. 1, § 6; Powell v. Alabama, 287 U.S. 45, 63, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932); State v. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970). “This right includes a fair opportunity to secure counsel of his own choice.” Fagerstrom, 286 Minn. at 298, 176 N.W.2d at 264 (citing Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954)). A defendant cannot demand a continuance for the purpose of delay or for “arbitrarily choosing to substitute counsel at the time of trial.” State v. Vance, 254 N.W.2d 353, 358 (1977).

The trial court denied appellant’s request for a continuance because appellant’s attorney was highly competent and because appellant did not exercise his right to obtain an attorney of his choice within a reasonable period of time. The record demonstrates that the court did not abuse its discretion in denying appellant’s request for a continuance because (1) he had not made an effort to retain a private attorney of his choice within the three months before his trial; (2) he did not attempt to show a basis for asserting that his court-appointed attorney was not properly representing him; and (3) he was not employed and failed to demonstrate how he could pay for a private attorney.

3.

Appellant raises two additional issues in his pro se brief: (1) whether he was denied the right to a fair trial; and (2) whether his conviction of attempted burglary is an appropriate predicate offense for the charge that he was a felon in possession of a firearm.

Appellant argues that, because he stipulated to the facts at trial, the court found him guilty without reviewing the facts. But there is no evidence in the record to support appellant’s contention that he did not receive a fair trial.

Appellant contends that, because his conviction of attempted burglary in the first degree was reduced to a misdemeanor offense, the court cannot convict him of being a felon in possession of a firearm. The trial court ruled that appellant’s conviction of attempted burglary in the first degree was an appropriate predicate offense for charging appellant as a felon in possession of a firearm. The Minnesota Supreme Court has held that the elements of the convicted offense, rather than the subsequent sentence, dictate the basis for the imposition of the 10-year firearm restriction.

We hold that the definitions of the offenses listed as crimes of violence in section 624.712, subdivision 5, relate to the elements of the offense for which the defendant was originally convicted rather than the disposition subsequently imposed by the trial judge.

State v. Moon, 463 N.W.2d 517, 521 (Minn.1990). Furthermore, appellant’s counsel conceded that the Moon case applies here because his earlier charge stated a crime of violence. Pursuant to Moon, the trial court properly held that appellant’s conviction of attempted burglary in the first degree was an appropriate predicate offense for charging appellant as a felon in possession of a firearm.

DECISION

Because the facts warrant the use of the public-safety exception to the Miranda mandate, we affirm the trial court’s denial of appellant’s motion to suppress his pre-warning statements to the police. We also affirm the trial court’s denial of appellant’s continuance motion because appellant cannot arbitrarily decide to substitute counsel at the time of trial.

Affirmed.

      . "No person * * * shall be compelled in any criminal case to be a witness against himself * * U.S. Const, amend. V.