author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. David Wayne HEARN, Appellant.
    No. C3-01-1318.
    Court of Appeals of Minnesota.
    July 2, 2002.

      Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant Hennepin County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart,' State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, WILLIS, Judge, and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant challenges the sufficiency of the evidence used to sustain convictions of criminal-sexual-conduct crimes and kidnapping. He also contends that the district court abused its discretion in imposing a. life sentence, concurrent sentences for two crimes that were part of a single behavioral incident, and a consecutive sentence unsupported by aggravating circumstances. He further argues that the imposition of statutory maximum sentences exaggerated the criminality of his crimes and, thus, was improper. We affirm in part, reverse in part, and remand.

FACTS

B.A.M. met appellant David Wayne Hearn in a bar at closing time on May 12,-2000. She accepted Hearn’s offer to give her a ride home. During the ride, Hearn asked if it would be all right if they stopped at the office building where he was employed as a maintenance worker. B.A.M. agreed.

When they arrived at the building, Hearn said he needed to go inside and that B.A.M. could also come in and use the restroom. B.A.M. agreed. While B.A.M. was inside a restroom stall, Hearn entered the stall, forcefully unfastened B.AM.’s pants, lifted her shirt and bra, and put his hands and mouth on her breasts. B.A.M. resisted and struggled with Hearn. He' then choked her, held her down, and demanded that she. give him her purse. When B.A.M. attempted to escape by crawling under the partition, Hearn grabbed her feet and pulled her back.

B.A.M. then said she had heard a noise. When Hearn turned his back, B.A.M. hit him with her wooden clog and got away. She hid in an office. When she thought she heard Hearn leave the building and drive away, she also left. Outside the building, Hearn drove, his ear up to her and demanded that she get in. She refused, and Hearn grabbed her and forced her into • the car. They struggled, and B.'A.M. was able to get out of the car. Hearn followed, struck B.A.M. in the face, choked her, and pushed her to the ground. Hearn then grabbed her purse and returned to the car. B.A.M. returned as well because she wanted to retrieve her property. Hearn emptied the purse onto the pavement, and when another car came into the area, he drove away.

Hearn admitted driving B.A.M. to the office building, but contended that he did so because he and B.A.M. were going to smoke crack cocaine together. He also admitted searching through B.A.M.’s purse, but claims he did so only because he thought B.A.M. had stolen something from the building. He denied assaulting B.A.M. The grand jury returned indictments against Hearn on two criminal-sexual-conduct offenses and on kidnapping.

On December 1, 2000, a jury found Hearn guilty of attempted criminal sexual conduct in the first degree, in violation of Minn.Stat. ■§§ 609.342, subds; l(e)(i), 2; .101, subd. 2;, ,109, subds. 3, 7; .17 (1998); criminal sexual conduct in the second degree, in violation of Minn.Stat. §§ 609.343, subds. l(e)(i), 2, .101, subd. 2, .109, subd. 7 (1998); and kidnapping, in violation of Minn.Stat. § 609.25, subds. 1(2), 2(2) (1998).

The district court séntenced Hearn to life imprisonment for attempted first-degree criminal sexual conduct; to the statutory maximum of 25 years for second-degree criminal sexual" conduct, concurrently with the life sentence; and to the statutory maximum of 40 years for kidnapping, consecutively to the sentences for the sex crimes. The sentence for second-degree criminal sexual conduct was a fivefold upward durational departure and for kidnapping a tenfold upward durational departure. On appeal, Hearn challenges the propriety of all the sentences as well as the sufficiency of the evidence.

ISSUES

1. Were appellant’s convictions sufficiently supported by the evidence?

2. Did the district court misinterpret Minn.Stat. § 609.109 (1998) and therefore mistakenly sentence appellant to a mandatory life sentence?

3. Did the district court mistakenly apply Minn.Stat. § 609.035, subd. 6 (2000), by imposing concurrent sentences for both of appellant’s criminal sexual conduct convictions?

4. Did the district court abuse its discretion by imposing the statutory maximum sentences for appellant’s second-degree criminal sexual conduct and kidnapping convictions?

5. Did the district court abuse its discretion by relying on the same "grounds used to impose statutory maximum sentences for criminal sexual conduct and kidnapping to impose consecutive sentences?

ANALYSIS

1. Sufficiency of the Evidence

Hearn contends that because B.A.M.’s testimony contained inconsistencies and was uncorroborated, it was too incredible to support his convictions. When considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989).

The credibility of individual witnesses and the weight to be given each witness’s testimony are issues for the jury to decide. State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990). “Inconsistencies in testimony and conflicts in evidence do not automatically render the testimony and evidence false and are not bases for reversal.”. State v. Bakken, 604 N.W.2d 106, 111 (Minn.App.2000) (citation omitted), review denied (Minn. Feb. 24, 2000). The inconsistencies in B.A.M.’s testimony involved tangential details about what occurred. On both direct and cross-examinations her testimony as to the sexual assault and kidnapping was consistent. We conclude that there was sufficient credible evidence to support the verdicts, and the jury reasonably could have found that the inconsistencies did not impair B.A.M.’s credibility as to the essential elements of the crimes.

Although B.A.M.’s testimony as to the criminal sexual conduct and kidnapping is not 'corroborated by direct evidence, it need not be. See Minn.Stat. § 609.347, subd. 1 (1998) (stating that “the testimony of a victim need not be corroborated”); Dale v. State, 535 N.W.2d 619, 624 (Minn.1995) (same); State v. Burns, 524 N.W.2d 516, 521 (Minn.App.1994) (same), review denied (Minn. Jan. 13, 1995). But there was corroborating evidence in the record to support B.A.M.’s testimony regarding the surrounding circumstances. Hearn admitted virtually all the circumstances except the crimes. He even admitted that he followed B.A.M. into the office restroom. B.A.M.’s blood was found inside Hearn’s car. Police found a baseball cap that likely belonged to Hearn, and items belonging to B.A.M., along the road outside the office building. The security log from the office building confirms that Hearn’s key card was used to enter the building around 1:30 a.m. A taxi driver testified that he picked up B.A.M. and drove her home on the morning of the attack. Police, photographed B.A.M.’s injuries. B.A.M.’s landlord testified that B.A.M. described the events to him one day following the attack, and his testimony was consistent with B.A.M.’s. Finally, Hearn’s wife testified that she detected no signs of drug use when Hearn returned home the morning following the attack. Because the evidence is sufficient to find Hearn guilty, we affirm the convictions.

2. Sentencing

Hearn contends on appeal that the district court made numerous errors in sentencing him.

a. Mandatory Life Sentence

Hearn contends that the district court erred in its interpretation of the mandatory-life-sentence provision of Minn. Stat. § 609.109 (1998). The state agrees with Hearn’s analysis. Whether the district court properly construed a statute is a question of law, which this court reviews de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

A person who has been indicted and convicted of a crime under Minn.Stat. § 609.342 (1998), and who has “two previous sex offense convictions” under sections 609.342, .343, or .344 (1998), must be sentenced to life imprisonment. Minn.Stat. § 609.109, subd. 3.

To meet the definition of “previous sex offense convictions” 15 years must not have elapsed since the offender was discharged from the sentence for the second conviction. Minn.Stat. § 609.109, subd. 5.

Hearn had been convicted of aggravated rape in 1971, third-degree criminal sexual conduct in 1978, and fourth-degree criminal sexual conduct in 1989. He was discharged from the sentence on the .second conviction in 1984, more than 15 .years before the current conviction. Although the 15-year limit does not bar consideration of Hearn’s conviction of fourth degree criminal sexual conduct, that offense is governed by Minn.Stat. § 609.345 (1998), which is not one of the provisions that qualifies a crime as a “previous sex offense” for purposes- of the mandatory-life-sentence provision. Thus, the district court erred in imposing a life sentence under Minn.Stat. § 609.109, and Hearn is entitled to be resentenced.

Furthermore, it does not appear that the mandatory-life-sentence provision of Minn.Stat. § 609.109 contemplates a conviction for an attempted crime as a qualifying offense.

We reverse and remand as to this sentence.

b. Concurrent Sentences for Criminal Sexual Conduct Crimes

Hearn also argues, and the state concedes, that the district court erred when it sentenced Hearn for both attempted first-degree criminal sexual conduct and second-degree criminal sexual conduct, in violation of Minn.Stat. § 609.035, subd. 1 (Supp.1999) (disallowing sentencing for more than one offense arising out of one course of conduct). The district court found the sex crimes to have been part of a single behavioral incident and apparently relied on Minn.Stat. § 609.035, subd. 6 (2000), which specifically permits sentencing for multiple criminal-sexual-conduct convictions arising out of one course of conduct. However, this provision was not in effect at the time of Hearn’s offenses. See Minn.Stat. § 609.035 (Supp.1999) (containing no subdivision six). Because the district court’s sentencing of both sex offenses violates the law in effect at the time of the crime, we reverse and remand. ' Although’ both convictions may stand, only one sentence may be imposed. Hearn is entitled to be resentenced.

c. Durational Departures

The district court imposed the statutory maximum sentences for second-degree criminal sexual conduct, a fivefold departure from the presumptive 58-month sentence, and for kidnapping a tenfold departure from the presumptive 48-month sentence. Hearn contends that the sentences exaggerate the criminality of his conduct and thus constitute an abuse of the court’s discretion. A reviewing court will reverse the district court’s decision to depart from the presumptive sentence only if the district court has abused its discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996).

The district court based its departure for criminal sexual conduct in the second degree on its finding that Hearn is a patterned sex offender. See Minn.Stat. § 609.108, subds. 1, 5 (1998). The statute permits the imposition of the maximum statutory sentence if the court finds that the defendant’s crime “was part of a predatory pattern of behavior that had criminal sexual conduct as its goal.” Minn.Stat. § 609.108, subd. 1(1) (1998). The imposition of the statutory maximum sentence is a departure from the sentencing guidelines. Minn.Stat. § 609.108, subd. 5 (1998).

Hearn does not dispute the district court’s finding that he is a patterned sex offender, but argues only that the imposition of the statutory maximum sentence exaggerated the criminality of his conduct. We hold that the court did not abuse its discretion in sentencing Hearn to the statutory maximum sentence for second-degree criminal sexual conduct.

Hearn has a 30-year history of predatory sex crimes. He has undergone sex-offender treatment twice without success. He has demonstrated the clear likelihood that he will reoffend. See State v. Stirens, 506 N.W.2d 302, 305 (Minn.1993) (the patterned sex-offender statute seeks to extend an offender’s sentence based on his potential for reoffending). In Stirens, id. at 306, the supreme court upheld a sixfold departure for criminal sexual conduct in the second degree; and in State v. McCoy, 631 N.W.2d 446 (Minn.App.2001), we upheld a fourfold departure for criminal sexual conduct in the second degree. In light of Hearn’s current conduct, his past predatory history, and caselaw approving substantial departures for similar crimes, the sentence did not exaggerate the criminality of Hearn’s offense, and we affirm.

In departing from the presumptive sentence for kidnapping, the court found Hearn to be a dangerous and repeat felon under Minn.Stat. § 609.1095, subd. 2 (2000). Hearn has not contested that finding. The statute allows the court to impose “an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum * * Id. The court imposed the statutory maximum sentence of 480 months, a tenfold departure from the presumptive sentence of 48 months.

The record supports the court’s finding that Hearn has a long history of repeat violent crimes. That history coupled with his current kidnapping crime support the conclusion that Hearn is a danger to public safety. Although a tenfold durational departure is greater than reported in the caselaw, Hearn’s dangerousness is well documented, as is his recidivism. Accordingly, we hold that the sentence was within the district court’s discretion, and we affirm.

d. Consecutive Sentence for Kidnapping

The district court sentenced the kidnapping offense consecutively to the sex-offense sentences. Hearn contends that there was no proper basis for a consecutive sentence.

In sentencing the sex offenses, the court departed durationally, using as departure grounds Hearn’s status as both a patterned sex offender and a dangerous offender. These are appropriate grounds for a durational departure, but they cannot be used to also support a consecutive sentence for kidnapping. See State v. Halvorson, 506 N.W.2d 331, 339-40 (Minn.App.1993) (although patterned sex-offender statute supports durational departure, that status is alone insufficient to also support a departure by consecutive sentencing for kidnapping); see also Minn. Sent. Guidelines cmt. II.F.04 (stating that additional aggravating circumstances are required to impose an upward departure and a consecutive sentence for circumstances that involve one victim and a single course of action).

The state concedes that consecutive sentencing for kidnapping is proper only if additional aggravating circumstances exist. Hearn argues that there are no additional aggravating circumstances here.

The district court did not identify the aggravating factors on which it relied in imposing a consecutive sentence, but it did refer generally to B.A.M.’s vulnerability because of intoxication, Hearn’s cruel treatment of B.A.M., and the injuries Hearn inflicted on B.A.M.

We held in' Halvorson, 506 N.W.2d at 340, that

[e]ven when status as a patterned sex offender is one of the aggravating circumstances present in a case, a [district] court may not depart durationally and with respect to consecutive service unless severe aggravating circumstances are present that would justify imposition of a term longer than twice. the presumptive sentence.

The alleged vulnerability of B.A.M. is not supported by the record and cannot constitute a departure factor. B.A.M. testified that, although she had been intoxicated earlier .in the day, by the time she left the bar with Hearn she was only “buzzed” and not drunk. Additionally, nothing in the record supports an inference that B.A.M. was physically or mentally impaired from alcohol or drugs at the time of Hearn’s crimes.

Force and injury cannot be used as departure grounds because they are elements of the sex offenses. See Minn.Stat. §§ 609.342, subd. 1(e)(i); .343, subd. 1(e)(i) (elements of the crimes include whether defendant caused victim personal injury or whether defendant used force). See also State v. Ahem, 349 N.W.2d 838, 841 (Minn.App.1984) (holding that departure cannot be based on factors included in elements of offense). At oral argument the state conceded that B.A.M.’s injuries, inflicted with force, are improper departure grounds. ,

The court noted that Hearn left B.A.M. in an unsafe place. This factor cannot be relied upon for departure because it is an element of kidnapping. See Minn.Stat. § 609.25, subd. 2(2) (1998) (absence of release to “safe .place” is element of kidnapping).

Finally, the court noted that Hearn treated B.A.M. with particular cruelty by threatening to kill her and by playing a “cat and mouse game” with her. We hold that, in light of caselaw, this conduct alone does not constitute a severe aggravating factor.

There is no clear line past which some aggravating circumstances become severe, and “[t]here is no easy-to-apply test to use in making this decision.” State v. Norton, 328 N.W.2d 142, 146 (Minn.1982). The difference between “aggravating” and “severe aggravating” circumstances is based on an assessment of “collective collegial experience in reviewing a large number of criminal appeals.” Id.

In light of caselaw in which severe aggravating circumstances were found, we hold that the purported particular cruelty in this case does not rise to the level of severe aggravating circumstances. Compare Rairdon v. State, 557 N.W.2d 318, 327 (Minn.1996) (finding multiple forms of sexual abuse inflicted on a young child, vulnerability of victim, and particular cruelty constituted severe aggravating circumstances); State v. Butterfield, 555 N.W.2d 526, 531-32 (Minn.App.1996) (finding multiple penetrations each of three types, allowing victim to lie unclothed on the ground in 45-degree weather for more than two hours, threatening the victim with a knife constituted severe aggravating circumstances), review denied (Minn. Dec. 17, 1996), with State v. Branson, 529 N.W.2d 1, 5 (Minn.App.1995) (in conviction of assault and kidnapping finding no severe aggravating circumstances where victim grabbed at knife point, threatened but broke free before she was harmed further), review denied (Minn. Apr. 18, 1995). Thus, we reverse and remand for resen-tencing.

3. Pro se Issues

We have also considered appellant’s pro se issues regarding his right to be present while jurors are questioned, his right to a jury of his peers, his right to present evidence, and his claim of ineffective assistance of counsel. On this record and on applicable law, we find no merit in appellant’s pro se arguments.

DECISION

The evidence supports appellant’s convictions, and the district court did not abuse its discretion by departing upwardly to impose maximum sentences for second-degree criminal sexual conduct and kidnapping. But the district eourt erred by imposing a mandatory life sentence, concurrent sentences for appellant’s criminal-sexual-conduct convictions, and consecutive sentences for kidnapping.

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: HUSPENI, Judge.

license: Public Domain

text:
    Sandra D. MADSEN, Relator, v. ADAM CORPORATION, Respondent, COMMISSIONER OF ECONOMIC SECURITY, Respondent.
    No. C9-01-2246.
    Court of Appeals of Minnesota.
    July 2, 2002.

      Sandra D. Madsen, Waseca, MN, pro se relator.
    Adam Corporation, Waseca, MN, respondent.’
    Philip B. Byrne, St. Paul, MN, for respondent commissioner.
    Considered and decided by RANDALL, Presiding Judge, STONEBURNER, Judge, and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

Relator seeks reversal of the decision of the Department of Economic Security that relator voluntarily quit her employment. She contends that because a medical condition prevented her from standing for her entire shift, and because she discussed that condition with her supervisor and sought to change to a job within the company that did not require constant standing, the medical necessity exception contained in Minn.Stat. § 268.095, subd. 1(7) (2000), applies and she is entitled to unemployment benefits. We agree that the medical exception set forth in the statute has been met, and we reverse.

PACTS

Relator Sandra D. Madsen worked at respondent' Adam Corporation, a printing company, from the fall of 1997 to June 1, 2001. At the time of the termination of her employment, she worked full-time in the pressroom. Her job required her to stand for her entire shift, and she suffered from varicose veins.

On April 24, 2001, Madsen’s personal physician told her she was a candidate for surgery to correct her varicose veins. Her physician also recommended that she remain off her feet as much as possible, wear support stockings, and take an aspirin each day.

On April 24. or 27, 2001, Madsen met with her supervisor, Mark Tobin, and told him that her physician had recommended that she remain off her feet as much as possible. She also told him that she was quitting, effective June 1, 2001, due to the contemplated surgery. She also told To-bin that she wanted to spend the summer with her children and that she did not want to punch a clock.

Tobin testified that he put a note in Madsen’s file recording her -resignation and indicating that her reasons for resigning were that the job was not what she wanted to be doing for the rest of her life, she needed time off for surgery on her legs, she did not like punching in for work, she was going to work with her mother at an auction house, and she wanted to spend the summer with her children.

Madsen testified that at the April 2001 meeting, she and Tobin had discussed that there were no jobs with the employer that would allow her to sit except in the binding department. Neither thought that the binding job would be appropriate because it was not full-time and .would require a pay cut. Tobin testified that he told Mad-sen at the April 2001 meeting that he would allow her a week to, change her mind about resigning. Tobin testified that he had discussed the bindery job with Madsen at the April meeting with .her, hut stated at the hearing that Madsen’s request for “accommodation” of her health condition occurred only after Tobin received a written note, on May 81, 2001, from Madsen’s physician setting forth her work restrictions.

On approximately May 15, 2001, Madsen visited a surgeon who advised her that she was not a surgery candidate. Shortly thereafter, she again spoke with Tobin and asked him for a leave of absence instead of a resignation. Tobin indicated that he would investigate, and later' reported to her that the company’s president had already accepted her written resignation. Tobin and Madsen agreed that her last day of work would be June 1, 2001.

On May 31, 2001, Madsen provided To-bin a doctor’s note stating that she “should be off her feet as much as possible.” (Emphasis in original.) Tobin testified that he had assigned Madsen to the bindery that day, thereby accommodating her medical needs.

Madsen worked her last day on June 1, 2001. Respondent Department of Economic Security denied her subsequent application for unemployment benefits. That denial was affirmed by both the unemployment law judge and the commissioner’s representative.

The commissioner’s representative stated in part:

[Madsen] gave her notice of quitting on April 27-,'2001,'well before she requested any sort of accommodation and well before she submitted to the employer any specific medical evidence that she, be assigned other work. * * * She submitted a notice of resignation before she * * * submitted anything from her physician to the employer. The exception to disqualification is, therefore, not applicable.

ISSUE

Did relator, who discussed an alternate position within the company with her immediate supervisor, while offering her resignation due to a serious illness or injury that made it medically necessary for her to quit, make reasonable efforts to remain in her employment?

ANALYSIS

Our review in economic security cases is narrow. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn.1988). When reviewing a decision of the commissioner’s representative, we consider whether there is reasonable support in the evidence to sustain the decision.. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn.1995). We will not disturb the findings of the commissioner’s representative when, viewed in the light most favorable to the decision, the findings are reasonably supported by the evidence. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn.1996). However, the com struction of a statute is a question of law and we are not bound by the agency’s conclusions. Id. at 375.

Applicants for unemployment benefits who quit their employment “shall be disqualified from all unemployment benefits.” Minn.Stat. § 268.095, subd. 1 (Supp.2001). An exception exists where

the applicant’s serious illness or injury made it medically necessary that the applicant quit, provided that the applicant made reasonable efforts to remain in that employment in spite of the serious illness or injury.
Reasonable efforts to remain in that employment are those a reasonable individual would make if interested in remaining with the employer and require that the applicant inform the employer of the serious illness or injury and request accommodation.

Minn.Stat. § 268.095, subd. 1(7).

Madsen argues that she would have continued in her employment had there been a job she could have performed consistent with her medical restrictions. Respondent argues that Madsen quit,- disqualifying her from unemployment benefits, and that no statutory exemption prevents her disqualification. While respondent presents no cognizable argument that Madsen does not suffer from a serious illness or injury that made it medically necessary for her to quit, respondent argues that Madsen did not make reasonable efforts to remain in her employment or request accommodations, or that if she did, her only request for accommodations, her doctor’s note provided on May 31, 2001, occurred after she had submitted her resignation.

Contrary to the commissioner’s representative’s determination that Madsen gave her notice of quitting well before she requested any sort of accommodation, the record reflects that Madsen made reasonable efforts to remain in her employment during the April 2001 meeting with Tobin. At that meeting, the unrefuted evidence shows that Madsen told Tobin that she had varicose veins, that -her physician had told her to stay off her feet as much as possible, and that she intended to have surgery to correct the problem. She thus provided notice of her illness. The statute requires only notice to an employer that an employee is quitting for medical reasons; it does not require written notice from a physician. Furthermore, once being notified, the employer here did not ask for written proof.

Importantly, Tobin himself testified that he and Madsen had discussed transferring her to the bindery, but that she would work part-time and receive a pay cut if she did so. Madsen testified that the bindery position was the only one at the facility where she could be off her feet.

The commissioner’s representative failed to address this unrefuted testimony when concluding that Madsen did not request any accommodations. Madsen’s efforts to discuss the alternate positions with her supervisor constitute, in these circumstances, “those a reasonable individual would make if interested in remaining with the employer.” Although Madsen did not explicitly ask for a work “accommodation,” it is evident from both parties’ testimony that she and Tobin had discussed her condition, the problems she had standing all day, that the condition was severe enough to warrant surgery, and the possibility of a job in the bindery that required less standing. Both parties recognized that Mad-sen’s job required her to stand all day. The only job in the facility, for which she was qualified, that did not require such standing would have constituted a cut in pay and hours. The statute requires “reasonable efforts,” not exhaustive efforts. From these circumstances, the testimony reveals that the only possible accommodation that she and her supervisor felt was open to her was the bindery job. The law does not require her to ask for more.

Respondent also argues that because Madsen did. not purchase compression stockings, which were recommended by her physician at the end of April, and because she quit before going through all the tests and procedures available to her, she did not use reasonable efforts under the circumstances to remain with her employer. However, the unrefuted evidence shows that at the end of April, Madsen’s physician recommended that she remain off her feet as much as possible and that her condition was serious enough by that point to warrant surgery. There was no evidence that she could have remained on her feet for the entire shift if she wore compression stockings.

The commissioner’s representative also noted that in addition to quitting to have surgery, Madsen also quit for various personal reasons, including spending more time with her children and non-medical work conditions. Madsen, while not disputing that there is evidence in the record to support the determination of the commissioner’s representative as to these other reasons, argues that they are “more or less inflated conversational] tidbits that are being tu[r]ned around to make me look as if I never told him of my medical condition.”

While we recognize the existence of possible non-medical reasons . for Madsen’s termination of her employment, respondent points to no authority for the proposition that a resignation must have been solely due to a medical condition in order for the serious-illness exception to apply. The statute states that the exception applies where the applicant quits “because the applicant’s serious illness or disability made it medically necessary that the applicant quit.” Minn.Stat. § 268.095, subd. 1(7). The statutory exception applies, despite the fact that Madsen may have had other reasons for quitting. See Baker v. Fanny Farmer Candy Shops No. 15k, 394 N.W.2d 564, 566 (Minn.App.1986) (holding that employee had good cause to resign when employer breached, agreement that employee would not have to work nights even though employee’s stated reason for quitting was that she wished to work closer to home). The commissioner’s representative did not find that Madsen quit for personal reasons alone.

DECISION

Madsen- notified her employer in April 2001 of her diagnosis, her physician’s orders, and that she was contemplating surgery to correct her problems. At that meeting, Madsen and her -supervisor also discussed the only available alternate position that would accommodate her need to remain off her feet, but that job would have mandated a pay cut and reduced hours; Madsen did not accept that position. These efforts constituted reasonable efforts to remain in her job. Madsen, therefore, falls within the medical necessity exception and is entitled to unemployment benefits.

Reversed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . In August 2001, Madsen visited the Mayo Clinic and was subsequently found to be eligible for limited corrective surgery.

      . Madsen states in her reply brief that she is not making an argument on appeal regarding the effectiveness of her attempt to rescind her resignation. Neither is there an argument on appeal regarding whether Madsen’s decision to quit was based on serious illness. Respondent’s only reference to that question is to observe in its appellate brief that:
      If one would assume (not conceding its support by the record), that [Madsen’s] decision to quit was based on a serious illness, the statute requires that [Madsen] have made "reasonable efforts” to remain in the employment, which reasonable efforts also by statute require that [she] ask the employer for a reasonable accommodation.

      . Had she been required to have taken that job, she would have'had good cause to quit. See Minn.Stat. § 268.095, subd. 3(c) (2000) (good cause includes "substantial adverse change in the wages, hours, or other terms of employment by the employer”).'


author: STONEBURNER, Judge.

text:
    In the Matter of the WELFARE OF B.N.S., Child.
    No. C2-01-1665.
    Court of Appeals of Minnesota.
    July 9, 2002.
    John M. Stuart, Minnesota Public Defender, Charlann E. Winking, Assistant Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Terry Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, Fairmont, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, ST0NEBURNER, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

STONEBURNER, Judge.

Appellant B.N.S. contends that the district court erred as a matter of law by designating the prosecution against him an extended jurisdiction juvenile (EJJ) prosecution because respondent Martin County failed to prove by clear and convincing evidence that an EJJ designation would serve public safety. Because the record does not establish by clear and convincing evidence that an EJJ designation would sérve the public safety in this case, we reverse.

FACTS

The Minnesota License Bureau in Fair-mont was burglarized on or about April 9 or 10, 2000, resulting in property damage to a door and a safe in the amount of $857.44, theft of $2000 in cash, and theft of some checks. Appellant became a suspect in a separate burglary leading to a search of his home and his car pursuant to a warrant. During the searches, police found a pry-bar tool that appeared to match the tool marks on the safe at the license bureau. They also found an oxygen cylinder, valued at $92.91, that had been stolen from Moore Medical Services; a Nokia cellular telephone that had been stolen from the registered owner’s daughter; nine containers of hair care products that had been taken during a burglary at the Main Image Hair Salon in Fairmont; and seven credit cards that had been stolen from the church of St. John Vianney.

The pry-bar tool and the safe that had been broken into at the license bureau were sent to the Bureau of Criminal Apprehension. On December 15, 2000, the BCA reported that the pry bar tool found in appellant’s room was the tool used to pry open the safe at the license bureau.

On dates not disclosed in the record, appellant pled guilty to a number of property crimes he committed around the same time as the license bureau incident and was committed to the Red Wing Correctional Facility on December 26, 2000, for those offenses. Appellant successfully completed the Red Wing program and returned to the community on May 29, 2001, under continued supervision by a corrections agent.

On April 20, 2001, as a result of the license bureau burglary, respondent filed a juvenile-delinquency petition in juvenile court alleging that appellant is a juvenile delinquent by reason of committing burglary in the third degree, a felony, in violation of Minn.Stat. § 609.582, subd. 3; felony theft, in violation of Minn.Stat. § 609.52, subds. 2(1), 3(3)(a); criminal damage to property in the third degree, a gross misdemeanor, in violation of Minn. Stat. § 609.595, subd. 2(a); and possession of stolen property, a felony, in violation of Minn.Stat. §§. 609.53, subd. 1 and 609.52, subd. 3(3)(a). The county attorney requested the district court to designate the four counts in the petition as EJJ proceedings.

An EJJ study was prepared by a corrections agent who recommended EJJ designation to “provide [appellant] with a greater opportunity at rehabilitation by extending * * * jurisdiction until [appellant’s] twenty-first birthday.” . The public defender’s dispositional advisor submitted a report recommending against EJJ designation, citing appellant’s recent completion of the program at the Red Wing Correctional facility, cooperation with community services since release, and the consensus of all of the professionals recently or currently involved with appellant that probation appeared to be a valid option and preferable to placement in a residential or correctional setting. The dispositional report asserted that the victim (license bureau) seeks only restitution and no additional punishment for appellant’s involvement in the burglary. At the August 28, 2001 hearing on respondent’s request for EJJ designation, both parties relied on their respective studies and neither presented additional evidence. The district court ordered the matter to proceed as an EJJ prosecution based on its conclusion that no further programming was available, to appellant in the juvenile system because he was within four months of his nineteenth birthday. This appeal followed.

ISSUE .

Is designation of the proceeding against appellant as an EJJ prosecution error where there is no finding by the district court and no clear and convincing evidence on the record that public safety is served by EJJ designation?

ANALYSIS

An appellate court reviews a district court’s designation of a proceeding as an EJJ prosecution under a clearly erroneous standard. In re Welfare of D.M.D., 607 N.W.2d 432, 437 (Minn.2000).

The juvenile court has original and exclusive jurisdiction over a child who is alleged to have committed a criminal offense before the age of eighteen. Minn. Stat. § 260B.101, subd. 1 (2000). An EJJ prosecution is a blending of juvenile and adult criminal dispositions that extends jurisdiction over a' young person to age twénty-one and permits the court to impose both a juvenile disposition and a criminal sentence. See Minn.Stat. § 260B.130, subd. 4 (2000). Execution of the adult sentence is stayed so long as the offender does not violate the provisions of the juvenile disposition and does hot commit a new offense. Id.

EJJ designation can occur in three ways. First, the district court can designate an EJJ prosecution as a result of a certification hearing for a child who was 14 to 17 years old at the time of the alleged offense. Minn.Stat. § 260B.130, subd. 1(1) (2000). Second, the prosecutor can designate an EJJ prosecution without a hearing if a child was 16 or 17 at the time of an alleged offense for which the sentencing guidelines and applicable statutes presume a commitment to prison, or the offense was a felony and the child allegedly used a firearm. Minn.Stat. § 260B.130, subd. 1(2) (2000). Third, the child was 14 to 17 at the time of the alleged offense, the prosecutor requests EJJ designation, and the court so designates, after a hearing. Minn.Stat. § 260B.130, subd. 1(3) (2000). Here the prosecutor requested the designation, pursuant to Minn.Stat. § 260B.130, subd. 1(3).

When a prosecutor requests that a proceeding be designated an [EJJ] prosecution, the court shall hold a hearing * * * to consider the request. * * ⅜ If the prosecutor shows by clear and convincing evidence that designating the proceeding an [EJJ] prosecution serves public safety, the court shall grant the request for designation. In determining whether public safety is served, the court shall consider the factors specified in section 260B.125, subdivision 4.

Minn.Stat. § 260B.130, subd. 2 (2000).

The factors the district court is required to consider in determining whether public safety is served are:

(1) the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm, and the impact on any victim;-
(2) the culpability of the child in committing the alleged offense, including the level of the child’s participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the sentencing guidelines;
(3) the child’s prior record of delinquency;
(4) the child’s programming history, including the child’s past willingness to participate meaningfully in available programming;
(5) the adequacy of the punishment or programming available in the juvenile justice system; and
(6) the dispositional options available for the child.
In considering these factors, the court shall give greater weight to the seriousness of the alleged offense and the child’s prior record of delinquency than to the other factors listed in this subdivision.

Minn.Stat. § 260B.125, subd. 4 (2000).

The EJJ study, dated July 18, 2001, noted that appellant earned his GED at Red Wing, was working full time, was participating in counseling, was taking prescribed medications, and was complying with the requirement that he attend AA twice a week and provide his correction’s agent with verification of attendance. Addressing the public safety factors, the study notes that (1) there are no aggravating factors regarding the alleged offenses; (2) appellant admitted his culpability; (3) appellant was on probation for three offenses at the time of the study, had committed two burglaries and a gross misdemeanor theft in the fall of 1997, and had committed tobacco and alcohol violations, a curfew violation, and a no-bicycle-license violation; (4) appellant “has not participated meaningfully in any of his former placements;” (5) appellant would not qualify for the- majority of treatment and consequential juvenile placements due to the nature of his offense, his age, mental health issues, and resistance to treatment.

Despite consideration of the appropriate factors, the study does not relate any of the factors to public safety. The summary states that appellant

has an extensive history of chemical dependency and burglaries ⅜ ⅜ * [He] is unwilling to' address his issues. * * * Without properly addressing these matJ ters [appellant] will likely continue to be inyolved with the criminal system. * * * Red Wing appeared to minimally address [appellant’s] issues due to .their lack of mental health resources.

The study recommends EJJ designation to provide “a greater opportunity at rehabilitation” by extending jurisdiction to appellant’s twenty-first birthday, but the study notes the lack of facilities to address appellant’s problems and does not recommend any programs or rehabilitation not being pursued by appellant at the time of the study.

At the hearing, the parties agreed that appellant has never committed a crime of violence. Respondent described appellant as a chronic offender, not a violent offender. The district court expressed some concern that the current charges had not been made part of the procedure that resulted in appellant’s commitment to Red Wing. On the record, the district court noted that there was no further programming available in the juvenile system for appellant but supported extending jurisdiction to provide further rehabilitative services. In its written order, the district court found that (1) appellant was seventeen at the time he allegedly committed the offenses alleged, three of which are felonies; (2) appellant has “a history of committing delinquent offenses, including a number of felonies;” and (3) appellant had been previously detained at the Red Wing Correctional Facility. The district court failed to address at the hearing or in its written order whether there is clear and convincing evidence that public safety will be served by the EJJ designation. The record does not contain any evidence that appellant poses a danger to public safety other than the speculation in the EJJ study that appellant will continue to be involved with the criminal system if he fails to address his “issues.” The record does not support a finding that the prosecutor has established by clear and convincing evidence that EJJ designation will serve public safety; therefore the EJJ designation is clear error.

Because appellant is nineteen years old, the juvenile court no longer has jurisdiction to impose a disposition absent EJJ designation, but the district court retains jurisdiction to conduct a trial or receive a plea. See Minn.Stat. § 260B.193, subd. 5 (c)(2) (2000) (permitting jurisdiction to hold a trial or receive a plea in a juvenile prosecution if the adult committed the offense prior to the adult’s 18th birthday). In re the Welfare of 636 N.W.2d 155,157 (Minn.App.2001)

DECISION

Designating the proceeding against appellant an EJJ prosecution, without clear and convincing evidence that an EJJ designation serves the public safety as required by Minn.Stat. §§ 260B.130, subd. 2 and 260B.125, subd. 4 (2000), was clear error. We reverse and remand to the district court for trial or, if appellant elects to plead guilty, to receive the plea pursuant to Minn.Stat. § 260B.193, subd. 5(c)(2).

Reversed and remanded.

      . Apparently neither appellant nor respondent contemplated additional charges when appellant entered the guilty pleas that resulted in the Red Wing placement. Restitution for the license bureau’s loss appears to be the only additional consequence that would have resulted had the current charges been included in the earlier plea agreements.


author: PER CURIAM.

text:
    2002 ND 106
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Debra K. EDWARDSON, 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. Debra K. Edwardson, Respondent.
    No. 20020068.
    Supreme Court of North Dakota.
    July 11, 2002.

      Loralyn Kay Hegland (argued), Assistant Disciplinary Counsel, Bismarck, ND, for petitioner.
    Debra K. Edwardson, pro se, Edward-son Law Office, Union Annex Building, Minot, ND, (no brief or argument).
   PER CURIAM.

[¶ 1] Disciplinary counsel filed a petition for discipline against Debra K. Ed-wardson. Edwardson contested the allegations of misconduct and was granted a hearing before a hearing panel. Although Edwardson filed an answer to the petition she did not appear at the hearing. The hearing panel found-professional misconduct by Edwardson and recommended she be suspended from the practice of law for 60 days and be required to pay the costs of the disciplinary proceedings. Edwardson filed objections to the hearing panel’s report, but she did not file a brief or appear at the. oral argument before this Court.

[¶ 2] We conclude Edwardson violated N.D.R. Prof. Conduct 3.2, by failing to make reasonable efforts to expedite litigation consistent with the interests of her client; violated N.D.R. Lawyer Discipl. 1.2(A)(8), by engaging in conduct prejudicial to the administration of justice; violated N.D.R. Prof. Conduct 3.3(a)(1), by making false statement to the court; and violated N.D.R. Prof. Conduct 1.16(a)(1), by failing to withdraw from representation when she should have reasonably known her representation would result in violation of the rules of professional conduct. For this professional misconduct we order Edwardson be suspended from the practice of law for 60 days, commencing September 1, 2002. We further order that Edwardson pay the costs of these disciplinary proceedings in the amount of $2,169.24, as certified in an affidavit of costs and expenses by disciplinary counsel, and that she also pay the costs of this review, to be determined and certified to this Court by the Disciplinary Board.

I

[¶ 3] Edwardson was admitted to practice law in North Dakota on September 22, 1995. During the period relevant to this case, Edwardson was practicing law in Minot.

[¶4] Donald Fraser is a former sales representative of Maintenance Engineering (“M.E.”) He describes himself as an independent contractor, who stopped selling products for M.E. and was later sued by M.E. in 1996 for allegedly violating agreements regarding the use of customer lists. Fraser retained an attorney and filed an answer and a counterclaim against M.E. About a year later, Fraser’s attorney advised Fraser that due to illness he was no longer able to represent him, and the attorney suggested Fraser retain Edward-son. Although Edwardson contended she informed Fraser she would not represent him in defense of the M.E. lawsuit, but would only represent him and others similarly situated in a class action, Edwardson in her written response did not deny an attorney-client relationship existed and that she received fees of $3,000 from Fraser.

[¶ 5] On September 9, 1999, M.E. served a request for production of documents. Edwardson failed to respond, and on November 2, 1999, M.E.’s attorney wrote to Edwardson stating the responses were delinquent and requesting production of the documents no later than November 4, 1999. Edwardson immediately responded that she had been preoccupied by family matters and the documents would be submitted no later than November 10, 1999. Edwardson failed to produce the documents as promised.

[¶ 6] On December 23, 1999, M.E. filed a motion to compel discovery and requested the court to impose sanctions against Fraser. Edwardson did not advise Fraser of M.E.’s motion or that it had been set for hearing on January 10, 2000. Edwardson did not appear at the hearing or file a response to the motion. The court entered an order directing Fraser to respond to the discovery request within ten days and ordering Fraser to pay sanctions in the amount of $500. Edwardson did not advise Fraser of the court’s order and did not respond to it. On January 20, 2000 M.E. moved to strike Fraser’s answer and counterclaim in the underlying lawsuit, as a sanction for failure to comply with the court’s discovery order. Edwardson did not inform Fraser about the motion or the hearing date, but she responded by facsimile and appeared telephonically at the hearing. Upon conclusion of the hearing, the district court entered an order dismissing Fraser’s counterclaim with prejudice. Edwardson did not notify Fraser of the court’s action.

[¶ 7] In explanation of her conduct, Edwardson argues that, prior to her representation of Fraser, he responded to a request for document production by providing limited information and he knowingly failed to produce documents which were in his possession. She argues that if she had asked Fraser to produce all of the documents in his possession in response to the later discovery request, Fraser would have, thereby, revealed he had committed perjury or.fraudulent conduct in his earlier responses. Edwardson claims, therefore, she was forced to not respond to the motion .for production of documents, was forced to have her client accept sanctions for not responding, and was forced to allow her client’s case to be dismissed with prejudice. She further asserts that, as a matter of trial tactics, having the ease dismissed was advantageous to Fraser because it resulted in M.E. also dismissing its claim against him.

[¶ 8] Fraser testified at the disciplinary hearing that Edwardson had told him she needed to get his case dismissed so he could join the class action lawsuit against M.E. After Fraser’s counterclaim was dismissed he sought to join as a plaintiff in a class action lawsuit against M.E., but counsel advised Fraser that the dismissal with prejudice of his counterclaim against M.E. precluded him from joining the class action lawsuit. Fraser then filed a complaint with disciplinary counsel alleging misconduct by Edwardson in her representation of him.

II

A.

[¶ 9] We review disciplinary proceedings de novo on the record. In re Disciplinary Action Against Howe, 2001 ND 86, ¶ 6, 626 N.W.2d 650. We accord due weight to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a mere “rubber stamp.” In re Disciplinary Action Against McDonald, 2000 ND 87, ¶ 13, 609 N.W.2d 418. Disciplinary counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. In re Disciplinary Action Against Seaworth, 1999 ND 229, ¶24, 603 N.W.2d 176. Each disciplinary case must be considered upon its own facts to decide what discipline is warranted. In re Disciplinary Action Against Howe, 2001 ND 7, ¶ 4, 621 N.W.2d 361.

B.

[¶ 10] On the morning scheduled for the disciplinary hearing, Edwardson sent an e-mail to the panel asserting possible bias against her by the panel chairman and requesting he disqualify himself from the case. In support of her request, Edward-son asserted that she had previously sued the chairman’s law firm on behalf of a client, alleging members of the firm committed fraud, fraudulent inducement, and breach of fiduciary duty. Upon receiving the e-máil communication, the panel recessed and met off the record about the issue of disqualification. Following that off-record discussion the chairman stated on the record:

[I]t is the conclusion of the panel that there exists no conflict of interest and that the hearing panel can be fair and impartial in evaluating the evidence and reaching a decision on this matter.

[¶ 11] Rule 2.3(c), N.D.R. Lawyer Dis-cipl., provides that a hearing panel member “shall refrain from taking part in any proceedings in which a judge, similarly situated, would be required to disqualify.” Under N.D.Code Jud. Conduct Canon 3(E)(1), a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” In her e-mail transmission, Edwardson made factual allegations which might reasonably place into question the panel chairman’s impartiality; We need not, however, decide whether Edwardson presented sufficient evidence to require disqualification, because our review in disciplinary proceedings is de novo. See Reems v. St. Joseph’s Hospital, 536 N.W.2d 666, 671 (N.D.1995) (code of judicial conduct does not specify reversal as a remedy for a canon violation as such remedy is not required where this Court can review the record for instances of actual bias). While we can accord weight to the findings and recommendations of a hearing panel, on disciplinary matters we make the determination of wrongdoing and of warranted sanctions, if any. Furthermore, we find on this record that the professional misconduct violations are unmistakable and are supported by clear and convincing evidence. It is unnecessary for us to place significant weight upon the findings of the panel to conclude violations were committed. Consequently, it is not necessary to resolve the allegation of disqualifying circumstances regarding the panel chairman to resolve the disciplinary issues.

Ill

A.

[¶ 12] Disciplinary counsel alleged Edwardson violated N.D.R. Prof. Conduct 3.2, which provides:

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

The hearing panel found that Edwardson violated this rule:

The Hearing Panel finds, by clear and convincing evidence, that Edwardson violated this rule. Edwardson failed to assert any reasonable steps to promote the interests of her client’s claim. She failed to respond to discovery requests. She failed to respond to orders of a District Judge. As a result, her. client’s case was ultimately dismissed. Furthermore, she failed to inform the client of the status of his case, or the consequences of her inaction resulting in the dismissal of his case. Finally, she failed to inform the client that his case was dismissed. The client learned of the result at a much later date, from another attorney.

[¶ 13] We conclude there is clear and convincing evidence to support this allegation of professional misconduct. In spite of assertions to M.E.’s attorney that she would comply with the discovery requests, Edwardson failed to do so. Edwardson claims that by complying with the request she would have jeopardized her client by revealing that in a prior request her client withheld documents. It is not clear under the circumstances how honestly and fully complying with this discovery request would have necessarily demonstrated prior wrongdoing by her client or would have resulted in negative consequences to him. What is certain, however, is that Edward-son failed to expedite litigation by failing to comply with the discovery rules and her noncompliance resulted in dismissal of her client’s counterclaim and imposition of sanctions against him. Edwardson should have fully complied with the discovery process after advising Fraser about all of the possible ramifications of compliance.

B.

[¶ 14] Disciplinary counsel alleged Edwardson violated N.D.R. Lawyer Dis-cipl. 1.2(A)(8), which provides:

A lawyer may be disciplined for the following misconduct:
(8) Engaging in conduct prejudicial to the administration of justice, including willful violation of a valid order of the court or board imposing discipline,, or willfully failing to respond to a lawful demand from a disciplinary authority, except that this rule does not require disclosure of information otherwise protected by applicable rules of privilege or confidentiality.

The hearing panel found Edwardson violated this rule:

[T]he rules for lawyer discipline state that a lawyer may be disciplined for engaging in “conduct prejudicial to the administration of justice.” This would include the willful violation of a valid order of the court. Here, Edwardson clearly violated the court’s order. If she couldn’t respond to the court’s'order to produce documents, she should have availed herself of other rules. She should have removed herself from the situation. This she did not do. We find, by clear and convincing evidence that N.D.R. Lawyer Discipline 1.2[A](8) was violated.

[¶ 15] We conclude there is clear and convincing evidence to support this allegation of professional misconduct. Edward-son admits she did not comply with the court’s order. Fraser testified at the disciplinary hearing that Edwardson never told him about M.E.’s motion to compel discovery and never informed him that the court had entered an order imposing a $500 sanction against him for noncompliance. Edwardson not only disobeyed the court’s order, but she failed to keep her client informed about the circumstances and consequences of her actions. This is outrageous and egregious conduct by an attorney and is clearly a violation of this rule which prohibits conduct prejudicial to the administration of justice.

C.

[¶ 16] Disciplinary counsel alleged Edwardson violated N.D.R. Prof. Conduct 1.16(a)(1), which provides:

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall seek to withdraw from the representation of a client if:
(1) The lawyer reasonably believes that the representation will result in violation of the rules of professional conduct or other law.

The hearing panel found that Edwardson violated this rule:.

By her own admission, Edwardson believed that Fraser hád previously, and fraudulently, failed to provide complete discovery responses.... Under the circumstances Rule 1.16 requires that she withdraw from representing Fraser. Edwardson made no attempt to do so. Instead, she remained silent, both to the court and her client. She sat silent and watched as her client’s claim was dismissed, with prejudice. A reasoned attorney would not do so. A reasoned attorney would have assessed the situation, consulted.the rules, and acted to remove herself from the situation to the least detriment of her client. Edward-son’s conduct not only proves flawed judgment, but a direct violation of the Rules of Professional Conduct.

[¶ 17] We conclude there is clear and convincing evidence that Edwardson assumed representation of Fraser and received fees of $3,000 to do so. We further conclude there is clear and convincing evidence to support this allegation of professional misconduct. If Edwardson honestly believed she could not respond to the discovery request without jeopardizing her client, she should have reasonably known that her failure to comply would violate the rules of professional conduct and, rather than violating those rules, she should have sought to withdraw her representation under N.D.R. Prof. Conduct 1.16(a)(1) quoted above. Edwardson’s willful violation of the professional conduct rules requiring that a lawyer expedite litigation consistent with her client’s interests and requiring that she not engage 'in conduct prejudicial to the administration of justice, rather than seeking td withdraw her representation, constituted a violation of N.D.R. Prof. Conduct 1.16(a)(1).

D.

[¶ 18] Disciplinary counsel alleged Edwardson violated N.D.R. Prof. Conduct 3.3(a), which provides, in part:

(a) A lawyer shall not:
(1) Make a statement to a tribunal of fact or law that the lawyer knows to be false.

The hearing panel concluded disciplinary counsel failed to prove this violation by clear and convincing evidence. We disagree with the panel’s finding and conclusion on this allegation of professional misconduct.

, [¶ 19] M.E. filed a motion to strike Fraser’s answer and counterclaim and for a default judgment. The motion was scheduled for hearing on January 24, 2000. Edwardson filed a written response to the motion about one-half hour before the hearing began, and she also appeared tele-phonically at the hearing. In her written response Edwardson stated:

The Defendant is not unjustifiably resisting discovery. See Affidavit of Debra K. Edwardson. The delay was unintentional due to numerous factors including illness of counsel.

Edwardson has made it clear on this record that her failure to comply with the discovery request and the court’s order for compliance was not unintentional or due to illness, but rather was a calculated trial strategy to avoid revealing that her client had previously withheld documents in his possession. We concludé there is clear and convincing evidence that Edwardson made statements to the lower court that she knew to be false and by that conduct she violated N.D.fe. Prof. Conduct 3.3(a).

E.

[¶ 20] Disciplinary counsel alleged Edwardson violated N.D.R. Lawyer Dis-cipl. 3.1(D)(3), by failing to serve a written response to the allegations made against her in the informal complaint brought by her client. Disciplinary counsel asserts Edwardson’s failure to respond resulted in a violation of N.D.R. Lawyer Discipl. 1.2(A)(8), which prohibits “willfully failing to respond to a lawful demand from a disciplinary authority.” Disciplinary counsel explains that Edwardson, by failing to respond to the informal complaint, violated this rule because she, in effect, failed to respond “to a lawful demand from a disciplinary authority.” We recognize there is some ambiguity in the interplay of these two rules as applied to these circumstances, i.e., whether the failure to provide a written response to an informal complaint as required by N.D.R. Lawyer Dis-cipl. 3.1(D)(3) thereby constitutes a failure to respond to a lawful demand from a disciplinary authority in violation of N.D.R. Lawyer Discipl. 1.2(A)(8). The hearing panel did not find a violation of N.D.R. Lawyer Discipl. 3.1(D)(3), and under these circumstances, we conclude there is not clear and convincing evidence of a violation of this rule.

IV

A.

[¶ 21] The hearing panel recommended that Edwardson be suspended from the practice of law for a period of 60 days. In determining the appropriate sanction for violation of rules of professional conduct this Court is directed by the North Dakota Standards for Imposing Lawyer Sanctions. In re Disciplinary Action Against Seaworth, 1999 ND 229, ¶ 35, 603 N.W.2d 176. Standards 6.2 and 6.22 provide:

6.2 Abuse of the Legal Process. Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving failure to expedite litigation or bring a meritorious claim, or failure to obey any obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists:
6.22 Suspension is generally appropriate when a lawyer knows that he or she is violating a court order [or] rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.

[¶ 22] Standard 9.22 provides that the presence of a prior disciplinary offense is an aggravating factor, and Standard 9.21 provides that an aggravating factor may justify an increase in the degree of discipline to be imposed.

[¶23] Previously, on November 6, 2000, Edwardson was admonished for violating N.D. Prof. Conduct 1.3 for failing to act with reasonable diligence and promptness in representing a client by failing to timely submit briefs in .three separate appeals to this Court.. Considering Edward-son’s professional misconduct and the aggravating factor of her having had a prior disciplinary offense, we concur with the hearing panel’s recommendation, and we order that Edwardson be suspended from the practice of law for a period of 60 days, commencing September 1, 2002. Although Edwardson asserts this sanction is excessive, we believe it is fully warranted under the circumstances.

B.

[¶ 24] Under N.D.R. Lawyer Discipl. 1.3(A)(9) the assessment of costs and expenses of proceedings against the lawyer is an appropriate form of discipline. See In re Disciplinary Action Against Howe, 2001 ND 86, ¶ 40, 626 N.W.2d 650. Disciplinary counsel has filed an affidavit of costs and expenses in the amount of $2,169.24. That amount does not include the costs for this review. Consequently, we order Edwardson pay $2,169.24 for the costs and expenses of the disciplinary proceedings- and that she also pay the" costs and expenses for this review. We, therefore, order the matter be remanded to the Disciplinary Board for determination and certification to this Court of the costs for this review.

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


author: SANDSTROM, Justice.

text:
    2002 ND 113
    NODAK MUTUAL INSURANCE COMPANY and Phillip Puls, Plaintiffs and Appellees, v. Scott STEGMAN, Jeana Stegman, personal representatives of the Estate of Dennis Stegman, Jeana Stegman, Shane Stegman, Cory Stegman, Deborah Dearinger, ás parent and natural guardian of Shane Stegman and Cory Stegman, Albert Stegman, Jean Steg-man, Sharon Gratton, Defendants, and Altru Health System, Defendant and Appellee, Deborah Dearinger, as parent and natural guardian of Shane Stegman and Cory Stegman, Defendant and Appellant.
    No. 20010225.
    Supreme Court of North Dakota.
    July 11, 2002.

      Duane H. Ilvedson and Jacqueline S. Anderson, Nilles, Hansen & Davies, Ltd., Fargo, for plaintiffs and appellees. Submitted on brief.
    Gordon W. Myerchin, Camrud, Mad-dock, Olson & Larson, Ltd., Grand Forks, for defendant and appellee.
    H. Patrick Weir, Jr., Lee Hagen Law Office, Ltd.; Fargo, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Shane Stegman and Cory Steg-man, through their parent and natural guardian Deborah Dearinger, appeal from a judgment disbursing the proceeds of an automobile liability insurance policy. We affirm, concluding we have jurisdiction over the appeal and the trial court did not err in concluding Altru Health System had a valid hospital lien for the value of medical services provided to Dennis Stegman.

I

[¶ 2] On September 27, 1998, Dennis Stegman was seriously injured when the vehicle he was driving collided with one driven by Phillip' Puls. Dennis Stegman was transported to Pembina County Memorial Hospital (“Pembina”) and then to Altru Health System (“Altru”) in Grand Forks. On October 6,1998, during Dennis Stegman’s hospitalization, Altru filed a notice of hospital lien for the medical services provided to Dennis Stegman. Dennis Stegman never regained consciousness and died on October 11,1998.

[¶ 3] On May 17, 1999, Puls and his insurer, Nodak Mutual Insurance Company (“Nodak”), filed an interpleader action requesting that the district' court determine who was entitled to the proceeds of Puls’s $100,000 automobile liability policy. Altru claimed its lien was valid and sought payment for Dennis Stegman’s medical services from the insurance proceeds. Dennis Stegman’s four children, Scott, Jeana, Shane, and Cory Stegman, disputed the validity and priority of the hospital lien and argued they should collect the full $100,000 for their father’s wrongful death.

[¶ 4] The trial court concluded Pembi-na and Altru had valid hospital liens, which took 'pNoNty over the wrongful death claims of Dennis Stegman’s children. The court ordered Pembina and Altru were entitled to recover for the medical services provided to Dennis Stegman, and the Steg-man children were to split the remainder of the $100,000. After the Stegman children stipulated how the remainder would be split among them, judgment was entered ordering Puls and Nodak to pay Altru $18,103.74 and Pembina $1,687,30, with the Stegman children dividing the remainder.

[¶ 5] After judgment was entered, No-dak tendered checks to each of the claimants. The claimants accepted the payments, and the attorneys for each of the claimants -signed acknowledgments that the judgment had been paid. The acknowledgments of payment of the judgment were filed on August 27, 2001, and Shane and Cory Stegman’s notice of appeal was filed on September 17, 2001.

II

[¶ 6] Although not raised by the parties, we must first consider whether we have jurisdiction of the appeal. The right of appeal is a jurisdictional matter that we will consider sua sponte. E.g., Treiber v. Citizens State Bank, 1999 ND 130, ¶ 4, 598 N.W.2d 96; Raboin v. North Dakota Dep’t of Human Servs., 552 N.W.2d 329, 331 (N.D.1996). Before we consider the merits of an appeal, we must have jurisdiction, and we will dismiss an attempted appeal that fails for lack of jurisdiction. Raboin, at 331; State v. Schindele, 540 N.W.2d 139, 141 (N.D.1995).

[¶ 7] A judgment that has been paid and satisfied of record ceases to have any existence. Lyon v. Ford Motor Co., 2000 ND 12, If 10, 604 N.W.2d 453. A satisfaction of judgment on the record extinguishes the claim, and the controversy is deemed ended, leaving an appellate court with nothing to review. DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 10, 636 N.W.2d 432; Lyon, at ¶ 10. An appellate court is without jurisdiction if there is no actual and justiciable controversy. Gregory v. North Dakota Workers Comp. Bureau, 1998 ND 94, ¶22, 578 N.W.2d 101. Thus, an attempted appeal from a judgment that has been satisfied of record fails for lack of jurisdiction.

[¶ 8] Satisfaction of judgment is governed by N.D.C.C. § 28-20-24:

Satisfaction of judgment. Any judgment rendered or docketed in any district court of this state may be canceled and discharged by the clerk thereof, upon the filing with him of an acknowledgment of the satisfaction thereof signed by the party in whose favor the judgment was obtained, or by his attorney of record, his executor or administrator, or his assignee, and duly acknowledged in the manner required to admit a deed of real property to record.

[¶ 9] The last phrase of the statute indicates an acknowledgment of satisfaction of judgment must be sighed by the party or by his attorney, executor, administrator, or assignee, and must be duly acknowledged in the manner required to record a deed. Under our record title statutes, a deed generally must be acknowledged before a notary public or other public official, or by proof by a subscribing witness.- See N.D.C.C. § 47-19-03 (instruments, other than in certain limited circumstances, must be acknowledged or proved by a subscribing witness before they can be recorded); N.D.C.C. § 47-19-13 (acknowledgment of an instrument may be made before a judge, the clerk of the supreme court, or a notary public); N.D.C.C. . § 47-19-14 (acknowledgment may be made before certain public officials); N.D.C.C. § 47-19-14.1 (authorizing certain officials to perform “notarial acts,” including acknowledgments of instruments). Thus, an acknowledgment of satisfaction of judgment must be notarized or otherwise witnessed and authenticated by a public official.

[¶ 10] The attorneys for each of the claimants in this case signed an “Acknowledgment” indicating receipt from Nodak and Puls of the respective amount due the claimant under the judgment. These “Acknowledgments” were not, however, notarized or otherwise witnessed, acknowledged, or authenticated. Accordingly, they do not meet the requirements of N.D.C.C. § 28-20-24, and the judgment has not been formally satisfied of record. The rule of Lyon therefore does not apply, and the appeal is not jurisdictionally barred.

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

Ill

[¶ 12] Section 35-18-01, N.D.C.C., creates a lien in favor of any hospital that provides services to any person injured in an accident:

Any charitable association, corporation, or other institution maintaining a hospital in this state is entitled to a lien for the reasonable value of hospitalization services rendered to a person injured in any accident. The lien attaches to all claims for relief, claims, demands, and judgments recovered on account of the injuries against persons or corporations liable to the injured person in tort for damages occasioned by negligence causing the injuries, and attaches to the ■proceeds of the settlement of such claims or demands, and to insurance of the tort-feasor payable by reason of the liability occasioned by such injury, and to any insurance or indemnity payable to the injured person by any insurer.

Under this statute, a hospital acquires a lien upon the tortfeasor’s insurance for the value of services “rendered to a person injured in any accident.”

A

[¶ 13] Shane and Cory Stegman argue the hospital lien statute does not apply in this case because Dennis Stegman was not an “injured person” under the statute. This argument is premised upon their contention that, because Dennis Stegman never regained consciousness after the accident and did not suffer conscious pain and suffering, he was not an “injured person” and had no personal injury action against Puls. In their brief on appeal, Shane and Cory Stegman summarize their argument:

Because Mr. Stegman did not experience conscious pain and suffering prior to his death and is not therefore considered an “injured party” under N.D.C.C. § 35-18-01, only the wrongful death claim of the surviving children was valid against the liability policy tendered to the district court. Without consciousness, neither Mr. Stegman nor his heirs or his estate would have been able to recover any damages for his personal injury. Any potential injury claim absent consciousness ended with Mr. Steg-man’s death.

[¶ 14] Shane and Cory Steg-man’s argument is based upon a serious misconception of tort law. They argue neither Dennis Stegman nor his estate could have brought a personal injury action against Puls because Dennis Stegman never suffered conscious pain and suffering. Conscious pain and suffering, however, is only one permissible element of damages in a personal injury action. There are several other types of damages that are recoverable and will support a personal injury action:

Economic and noneconomic damages for wrongful death or injury to person. In any civil action for damages for wrongful death or injury to a person and whether arising out of breach of contract or tort, damages may be awarded by the trier of fact as follows:
1. Compensation for economic damages, which are damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings and earning capacity, loss of income or support, burial costs, cost of substitute domestic services, loss of employment or business or employment opportunities and other monetary losses.
2. Compensation for noneconomic damages, which are damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, loss or illness, loss of society and companionship, loss of consortium, injury to reputation, humiliation, and other nonpecuniary damage.

N.D.C.C. § 32-03.2-04; see also Albrecht v. Metro Area Ambulance, 2001 ND 61, ¶¶ 11-14, 623 N.W.2d 367; Barta v. Hinds, 1998 ND 104, ¶¶ 7-11, 578 N.W.2d 553; Fontes v. Dixon, 544 N.W.2d 869, 871-72 (N.D.1996); cf. N.D.C.C. § 26.1-41-01(1) and (8) (defining an injured person as one “who sustains accidental bodily injury,” which is defined as “bodily injury ..., including death resulting therefrom, arising out of the operation of a motor vehicle”).

[¶ 15] Clearly a personal injury action existed on behalf of Dennis Stegman against Puls for various damages, including the medical expenses occasioned by the accident, and that action survived Dennis Stegman’s death. See N.D.C.C. § 28-01-26.1. Either Dennis Stegman’s estate or Dennis Stegman himself, had he lived, could have brought a personal injury action against Puls for those damages, and Puls’s liability insurance would have covered the claim. Thus, Dennis Stegman was an “injured person” under N.D.C.C. § 85-18-01, and Altru had a lien against Puls’s liability insurance.

B

[¶ 16] In their reply brief, Shane and Cory Stegman argue Altru could not collect upon any lien because the lien attaches only to claims against persons liable to the “injured person” and “may be executed only if an insurance carrier or tort-feasor pays monies to the injured person.” Thus, they argue, Altru cannot satisfy its hen because Dennis Stegman never, received proceeds from Puls’s insurance policy.

[¶ 17] Shane and Cory Stegman have misconstrued the hospital lien statute. The lien attaches not only to claims for relief, judgments, and settlement proceeds, but also attaches directly to the tortfeasor’s liability insurance. See N.D.C.C. § 35-18-01; see also In re Dueis, 130 B.R. 83, 85 (Bankr.D.N.D.1991). Section 35-18-01, N.D:C.C., provides the lien attaches “to insurance of the tort-feasor payable by reason of the liability occasioned by such injury, and to any insurance or indemnity payable to the injured person by any insurer.” The statute does not say the lien attaches only to insurance proceeds “paid” to the injured person. The plain language of the statute creates a lien on any insurance that would be “payable” for the injury,- and does not require actual payment of the insurance proceeds to the injured person before the lien attaches. As this Court has previously held, the lien attaches immediately upon rendering of the medical services. Rolla Cmty. Hosp., Inc. v. Dunseith Cmty. Nursing Home, Inc., 354 N.W.2d 643, 650 (N.D.1984); see also Dueis, 130 B.R. at 85; In re Smith, 119 B.R. 714, 722 (Bankr. D.N.D.1990); Robert T. Laurence, A Survey of Statutory Liens in North Dakota, 1 U.N.D. Fac. J. 100, 109 (1982) (“the hospital lien is in the nature of an assignment of a cause of action”). Furthermore, N.D.C.C. § 35-18-05 provides that after a hospital files a notice of hospital lien, an insurer that makes any payment to the injured person in settlement of the injured person’s claims remains liable to the hospital for the full amount of the lien. The statutory scheme creates a lien on the insurance policy itself, and not only upon the proceeds after they are paid to the injured person.

C

[¶ 18] Shane and Cory Stegman argue the hospital lien statute must be construed so it does not conflict with the wrongful death statute. They argue allowance of a hospital lien under the facts in this case would violate N.D.C.C. § 32-21-04, which provides that in a wrongful death action “[t]he amount recovered shall not be liable for the debts of the decedent,' but shall inure to the exclusive benefit of the decedent’s heirs at law.” By its terms, the statute applies only to amounts “recovered” in a wrongful death action. It does not apply to defeat the hospital’s lien against Puls’s liability insurance, which attached before Dennis Stegman died. There was no attempt to enforce the hospital’s lien against amounts which had been “recovered” in a wrongful death action.

D

[¶ 19] We conclude the trial court, did not err- in holding Altru had a valid, enforceable hospital lien against Puls’s liability insurance.

IV

[¶ 20] Shane and Cory Stegman argue that assuming Altru had a valid lien, the trial court erred in allowing Altru to collect the full amount of its liep rather than equitably allocating the insurance proceeds among the various claimants.

[¶ 21] The very nature of a lien is to identify specific property as to which the lienholder will have priority over other creditors. See N.D.C.C. §§ 35-01-02 and 35-01-14; 53 C.J.S. Liens § 14 (1987). When there are multiple liens against thé same property, they take priority according to the time of their creation — the “first in time, first in right” rule. N.D.C.C. § 35-01-14; see also Robert T. Laurence, A Survey of Statutory Liens in North Dakota, 1 U.N.D. Fac. J. 100 (1982).

[¶ 22] When the legislature creates statutory liens, it makes a policy decision that certain creditors will have a preference over other creditors as to certain property. In Rolla Cmty. Hosp., Inc. v. Dunseith Cmty. Nursing Home, Inc., 354 N.W.2d 643, 647-48 (N.D.1984), this Court concluded the obvious reason the legislature created the hospital lien is that “a hospital in an emergency situation involving a person requiring medical treatment has very little recourse but to admit the person and render the necessary services.”

[¶ 23] This Court addressed the public policy reasons for creating preferences in favor of certain creditors in Thompson v. Danner, 507 N.W.2d 550, 559 (N.D.1993):

As the trial court reasoned, allowing a farmer a first priority lien for the expense of harvesting his own crops would result in the farmer defeating the rights of the lender who advanced the funds to finance the farming operation in the first instance. Lenders would be understandably reluctant to advance operating funds. We do not believe the legislature intended such a result.

The same rationale applies to a hospital lien. The legislature created the hospital lien to encourage medical providers to render necessary emergency medical treatment to all parties, see Rolla Cmty. Hosp., 354 N.W.2d at 647-48, and the lien gives the hospital some assurance of receiving payment for those services.

[¶ 24] Further support for the conclusion that Altru is entitled to recover the full amount of the medical services rendered to Dennis Stegman is provided by N.D.C.C. § 35-18-05:

The filing of a hospital statement, from the time of filing thereof, is constructive notice to all persons of the claim of the hospital and of its right to a lien upon any claim or demand or claim for relief against the tort-feasors and the insurer or insurers of the tort-fea-sors, or an insurer of the injured person, . and no release of any judgment, claim, or demand by the injured person is valid or effective as against the lien. The person, corporation, or limited liability company making any payment to the injured person, or to his legal representative, as compensation for injuries sustained, in settlement of a claim for relief claimed to exist for negligence causing such injuries, or out of insurance carried by the tort-feasor, shall remain liable to the hospital for the amount of the reasonable charges due at the time of such payment to the extent of the full amount so paid or given to the injured person.

(Emphasis added). Under this statute, an insurer that settles a claim with an injured person after the hospital has filed notice of its hospital lien remains liable to.the hospital for the amount of the medical services provided. This provision indicates there is to be no equitable allocation among claimants to the insurance proceeds, but rather the hospital’s lien has priority.

' [¶ 25] We also note the hospital lien statute establishes a priority to the insurance proceeds, but does not bar heirs from otherwise collecting the full amount of their damages from the tortfeasor. Although Shane and Cory Stegman argue it is inequitable that they will recover less than their full damages occasioned by the wrongful death of their father, the record does not indicate they have attempted to recover additional damages from Puls. Their inability to fully recover is ultimately caused not by the lien given to the hospital but by the fact the tortfeasor was underin-sured and perhaps judgment-proof, or by Shane and Cory Stegman’s decision not to pursue additional claims against Puls. Otherwise, the heirs would be able to collect their full damages from the party who actually caused the harm.

[¶ 26] We conclude the trial court did not err in allowing Altru to recover the full amount of its lien from the insurance proceeds.

V

[¶ 27] We conclude Altru had a valid hospital lien and was entitled to collect the value of the medical services rendered to Dennis Stegman from the proceeds of Puls’s liability insurance. The judgment is affirmed.

[¶ 28] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER and WILLIAM A. NEUMANN, concur.

MARY MUEHLEN MARING, J.: I concur in the result.

      . Pembina’s lien is not in issue on appeal.

      . The full value of the medical services rendered by Altru to Dennis Stegman was $44,603.74. Altru received $26,500.00 in payments from the no-fault insurance carrier, leaving a balance of $18,103.74.

      . The parties did not allege Shane and Cory Stegman waived their right to appeal by accepting substantial benefits under' the judgment. See, e.g., Bangen v. Bartelson, 553 N.W.2d 754, 757-58 (N.D.1996).