author: KAPSNER, Justice. VANDE WALLE, Chief Justice,

text:
    2007 ND 111
    In the Interest of J.C., a child. Jeanette Wetch, LSW, Cass County Social Services, Petitioner and Appellee, v. Z.C., Respondent and Appellant and J.C. and F.C., Respondents.
    No. 20060341.
    Supreme Court of North Dakota.
    July 25, 2007.

      Constance Louise Cleveland (argued), Assistant State’s Attorney, Fargo, N.D., for petitioner and appellee.
    Dennis D. Fisher (submitted on brief), Fargo, N.D., for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] Z.C. appeals from a juvenile court order finding her in default for failing to appear at a hearing to terminate her parental rights and terminating her parental rights to J.C. We hold the juvenile court did not abuse its discretion in denying Z.C.’s motion for a continuance, but erred in terminating her parental rights without hearing any evidence to support the termination. We reverse the order terminating Z.C.’s parental rights and remand.

I

[¶ 2] In June 2006, a social worker for Cass County Social Services filed a petition for the termination of Z.C.’s parental rights to her 11-year-old son, J.C. The petition alleged the juvenile court had found J.C. to be a deprived child in October 2004, add placed him in the custody of Cass County Social Services. The petition also alleged that numerous services had been offered to Z.C.’s family since 1996 and Z.C. had entered into a family preservation treatment plan in October 2004, but her compliance with the plan had been “minimal” and her “behaviors alarming”; that an August 2004, family assessment report stated Z.C. believed social services was involved in a conspiracy to remove her child from her care; that in January 2005, Z.C. was found guilty of child abuse or neglect and ordered to comply with social services’ recommendations; that at a scheduled February 2005, permanency planning meeting, Z.C.’s “behavior was inappropriate and out of control”; that in February 2005, Z.C. was notified that her visitation hours would be changed based upon her behavior and safety concerns and Z.C. did not attempt to schedule a meeting to discuss visitation and has not participated in visitation since February 2005; that Z.C. completed a psychological and parental capacity evaluation in April 2005, which resulted in a conclusion that her behavior would continue over the next several years; that Z.C. had failed to make sufficient progress towards reunification with J.C.; that J.C. had been diagnosed with “depressive disorder NOS,” “attention deficit disorder,” “enursis is noeturnal/eneo-presis improved,” “history of selective mu-tism,” and “problems with primary support group/sibling relationship problems”; that in May 2005, Z.C. admitted the aims and goals of a previous order had not been met and the order was extended for four months; that in August 2005, Z.C. displayed signs of paranoia; that by August 2005, Z.C. had made no progress in therapy, was unwilling to accept responsibility for her children being in foster care, and had missed one appointment and failed to reschedule; and that in March 2006, the juvenile court ordered that social services need not make further reasonable efforts under N.D.C.C. § 27-20-32.2. to reunite Z.C. and J.C.

[¶ 3] Z.C. answered the petition with a pro se “motion to put the true facts as have been testified to repeatedly.” Counsel was appointed to represent Z.C., and on August 14, 2006, Z.C. was mailed an order setting September 29, 2006, as the date for the trial on the petition. Z.C. failed to appear at the scheduled September 29, 2006, trial, and her court-appointed counsel moved for a seven to ten day continuance for appointment of new counsel and asked to be discharged as counsel, explaining that Z.C. “qualified her appearance today on activities of which contradict what I believe the — as an officer of the Court, court-appointed to represent her, that I don’t think I could have as a legal and ethical issue.” Z.C.’s counsel also informed the court that he had told Z.C. that he “could not guarantee a continuance” and “her absence would be at her own peril.”

[¶ 4] A juvenile court referee denied Z.C.’s motion for a continuance and found her in default, stating:

This matter, in a deprivation format, has already been going on for two years. There have been numerous court appearances. I don’t mean anything derogatory to [Z.C.] by my observation that every attorney knows that various clients present greater or lesser challenges. [Z.C.] is a challenging client, based upon the fact that, I believe [counsel] is, by my knowledge, at least the fourth attorney assigned in the course of these proceedings. In general and specific to this file, I know of nothing to indicate that [counsel] has provided ineffective assistance. And whether that is subsequently alleged is something we can’t control today.
One of the issues, there has been a determination of deprivation here. So one of the issues that the Court is to consider, is whether that deprivation is likely to continue. In other words, providing some sort of finality is one of the fundamental purposes of a termination of parental rights petition.
The time frame here isn’t seven to ten days, but more likely seven to ten weeks if we don’t make some sort of resolution today. Because if I did continue the matter for appointment of new counsel, that appointment may take seven to ten days, but whomever may be appointed, then needs to learn the extensive history and become familiar with the client. And then we have to deal with the scheduling of witnesses, the scheduling of the various attorneys, the scheduling of the time for the Court. Realistically, I think we are seven to ten weeks away. And there is no indication that whatever issues gave rise to the absence of [Z.C.] today would be different in seven to ten weeks.
I’ve read the allegations in the Petition, which among other things, allege a lack of progress in the issues that bring us here today. The bottom line is the best interest of this child, and I don’t believe the best interests of the child are served by a continuance, nor do I believe a continuance would substantially improve the ability of [Z.C.] to present a case....

The court finds [Z.C.] to be in default. Later at that hearing, J.C.’s father, with counsel, consented to termination of his parental rights. The juvenile court referee thereafter terminated both parents’ parental rights to J.C.

II

[¶ 5] Z.C. argues the juvenile court abused its discretion in denying her motion for a continuance to allow appointment of new counsel. Z.C. asserts even if the continuance would have been longer than seven to ten days due to calendaring and scheduling matters, the juvenile court abused its discretion in denying her motion because this proceeding involved the termination of her parental rights.

[¶ 6] In In re A.S., 2007 ND 83, ¶ 6, 733 N.W.2d 232 (citations omitted), we recently said:

The juvenile court’s decision to grant or deny a motion for continuance will not be reversed on appeal unless there was an abuse of discretion. There is an abuse of discretion when the juvenile court acts unreasonably, arbitrarily, or unconscionably. This Court looks to the particular facts and circumstances of each case when reviewing the juvenile court’s decision on a motion for continuance because there is not a mechanical test to determine whether the juvenile court abused its discretion.

[¶ 7] This record reflects that on July 31, 2006, Z.C. appeared at a pre-trial hearing on the petition, on August 14, 2006, Z.C. was mailed an order setting September 29, 2006, as the date for trial on the termination petition, and there was no further action by Z.C. until the day of the scheduled trial. Z.C.’s June 2006, application for court-appointed counsel further reflects she indicated she had had at least two previous court-appointed attorneys removed from the proceedings culminating in this case. In its oral decision denying Z.C.’s request for a continuance, the juvenile court referee said Z.C.’s current court-appointed counsel was “at least the fourth attorney assigned in the course of these proceedings.” Indigents have no right to court-appointed counsel of their choice. See State v. Lang, 463 N.W.2d 648, 650 (N.D.1990) (criminal proceeding); Interest of J.B., 410 N.W.2d 530, 532 (N.D.1987) (civil commitment proceeding). On this record, we conclude the juvenile court referee’s decision to deny Z.C.’s request for a continuance was not unreasonable, arbitrary, or unconscionable and was not an abuse of discretion.

Ill

[¶ 8] Z.C. argues the juvenile court referee erred in deciding she was in default and terminating her parental rights without hearing any evidence to support the allegations in the petition. She claims the court relied upon the allegations in the petition and asserts pleadings are not proof. The State responds that the procedural history of this case cannot be viewed in a vacuum and the evidence clearly and convincingly supported the three requirements for termination under N.D.C.C. § 27-20-44(l)(b)(l). The State also argues termination can be sustained under N.D.C.C. § 27-20-44(l)(b)(2), because the child has been out of the parental home for 450 of the previous 660 nights.

[¶ 9] Under N.D.C.C. § 27-20-44(l)(b)(l), a juvenile court may terminate parental rights if the State establishes by clear and convincing evidence: (1) the child is deprived; (2) the causes and conditions of that deprivation are likely to continue; and (3) the child is suffering, or is likely to suffer, serious physical, mental, moral, or emotional harm. In re D.M., 2007 ND 62, ¶ 7, 730 N.W.2d 604. A deprived child is a child “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health ... and the deprivation is not due primarily to the lack of financial means of the child’s parents.” N.D.C.C. § 27-20-02(8)(a). We have defined “proper parental care” as the minimum standards of care the community will tolerate. D.M., at ¶ 8. In order to show the conditions and causes of deprivation are likely to continue, or will not be remedied, the State cannot rely on past deprivation alone, but must provide prognostic evidence that the deprivation will continue. Id. at ¶ 11. The State may also use prognostic evidence to show the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm. Id. at ¶ 25. We have said that in parental termination proceedings, due process and notice requirements prohibit a juvenile court from taking judicial notice of testimony in proceedings where termination is not an issue, but where termination is a culmination of prior proceedings the court need not operate in a vacuum regarding the results of those proceedings and may take judicial notice of orders in prior proceedings. See In re T.T., 2004 ND 138, ¶ 12, 681 N.W.2d 779; In re K.S., 2002 ND 164, ¶ 9, 652 N.W.2d 341.

[¶ 10] Under N.D.C.C. § 27-20-44(l)(b)(2), a juvenile court also may terminate parental rights if the child is deprived and in foster care or in the control, care, and custody of the state for 450 of the previous 660 nights. In re F.F., 2006 ND 47, ¶ 18, 711 N.W.2d 144.

[¶ 11] This record essentially consists of the State’s petition and Z.C.’s “motion to put the true facts as have been testified to repeatedly.” This Court has broadly defined an appearance to include any response sufficient to give the other parties or their attorneys notice of an intent to contest a claim. Throndset v. Hawkenson, 532 N.W.2d 394, 397 (N.D.1995); Hatch v. Hatch, 484 N.W.2d 283, 285 (N.D.1992); Wallwork Lease & Rental Co., Inc. v. Schermerhorn, 398 N.W.2d 127, 129-30 (N.D.1986); Federal Land Bank v. Lillehaugen, 370 N.W.2d 517, 519 (N.D.1985). The record establishes that Z.C. had appeared in the termination proceeding and counsel had been appointed to represent her. Z.C.’s pro se answer to the petition indicates an intent to contest the State’s claims. Although a juvenile court may take judicial notice of orders in prior proceedings, a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice. N.D.R.Ev. 201. This record does not include the record from the prior proceedings and does not establish that the procedural requirements for judicial notice were satisfied.

[¶ 12] Moreover, the record does not include any other evidentiary basis for terminating Z.C.’s parental rights under N.D.C.C. § 27-20-44(l)(b)(l) or (2). We have recognized that parents have a fundamental natural right to their children, which is of constitutional dimension, but that right is not absolute nor unconditional. E.g., State v. Ehli, 2003 ND 133, ¶ 7, 667 N.W.2d 635. In parental termination proceedings, due process requires clear and convincing evidence before parental rights may be terminated. Santosky v. Kramer, 455 U.S. 745, 769,102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In Interest of V.J.R., 387 N.W.2d 499, 501-02 (N.D.1986). Parents do not have a constitutional due process right to appear at proceedings to terminate their parental rights, and their due process rights are satisfied if they are represented by counsel and have an opportunity to appear by deposition or other discovery technique. Adoption of S.AL., 2002 ND 178, ¶ 10, 652 N.W.2d 912; Adoption of 1997 ND 99, ¶ 18, 564 N.W.2d 623.

[¶ 13] Although this Court has not yet adopted specific procedural rules for juvenile proceedings, in other contexts our procedures for default against parties who have appeared require sufficient proof to enable a court to determine and grant the relief, if any, to which the plaintiff may be entitled. See N.D.R.Civ.P. 55(a)(2). Minnesota has implemented rules for defaulting parties in termination proceedings, which authorize the court to receive evidence in support of the petition or reschedule the hearing, and if the petition is proved by the applicable standard of proof, the court may enter an order granting the relief sought. Minn.R.Juv.Prot.P. 18.01 and 18.02.

[¶ 14] Here, there was no evidentiary basis for termination presented to the juvenile court referee, and we conclude the court erred in treating this proceeding as a default and terminating Z.C.’s parental rights without any evidentiary support in the record to meet the requirements for termination under N.D.C.C. § 27-20-44(l)(b)(l) or (2). We reverse the order terminating Z.C.’s parental rights and remand for proceedings consistent with this opinion. We further direct the juvenile court to hold a hearing within 30 days after the mandate in this case.

IV

[¶ 15] We reverse and remand.

[¶ 16] MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 17] I concur in the opinion of the Court written by Justice Kapsner. Rule 201 of the Rules of Evidence, Judicial Notice of Adjudicative Facts, applies to proceedings involving termination of parental rights. Rule 201 as well as Rules 101 and 1101 leave no doubt on that score.

[¶ 18] I write separately to note that language in some of our prior opinions may have left an impression that a less formal procedure than that set forth in Rule 201 allowed the trial court to consider prior proceedings. For example, in McBeth v. 343 N.W.2d 355, 358 (N.D.1984), we observed that although due process prohibits a court from taking judicial notice of testimony of proceedings pri- or to the termination of parental rights if the parents did not receive the notice required for termination, the juvenile court does not need to operate in a vacuum as to the results of the previous proceedings. We went on to say:

At a termination hearing a trial court necessarily considers prior proceedings and the events that followed when determining if the conditions and causes of the deprivation are likely to continue or will not be remedied, one of the elements to be established in terminating parental rights.

Similar language may be found in other cases and to the extent such language misled trial judges and lawyers, the opinion in this case should remedy that misconception.

[¶ 19] Nor, as this case illustrates, is the application of Rule 201 simply a mechanistic exercise. There was a time when one trial judge heard all the proceedings leading up to termination, and the judge and the parties were well aware of what preceded the termination hearing. In some instances the records were all in one file. Today, it is not unusual for different judges to preside at different hearings with different files involving a deprived child and the judge hearing the final termination proceeding is not aware of the prior proceedings without having reviewed the prior record.

[¶ 20] More significantly, unless the trial judge takes formal notice of the prior proceedings under Rule 201, those prior proceedings will not become part of the record for review on appeal. That is what happened in this case. While on appeal the prior history of the case was argued in support of the trial court’s decision, that history is not part of the record certified to us in this appeal. Rule 10(g)(2), N.D.R.App.P., authorizes this Court, on its own motion, to “direct an omission or misstatement be corrected, and, if necessary, that a supplemental record be certified and transmitted.” Because it is not clear on the record before us that the trial court considered the record of prior proceedings leading to termination, I believe it would be improper to use this rule to bring the record of the prior proceedings before us.

[¶ 21] Gerald W. Vande Walle, C.J.

      . This Court's Juvenile Policy Board is currently considering procedural rules for juvenile proceedings. See N.D. Const, art. VI, § 3 (authorizing supreme court to promulgate rules of procedure for all courts of this state); N.D.C.C. § 27-20-57 (authorizing supreme court to adopt rules of procedure for juvenile proceedings).


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2007 ND 123
    Randal R. STEEN, Applicant and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20060349.
    Supreme Court of North Dakota.
    July 25, 2007.

      Randal R. Steen (pro se), Bismarck, N.D.
    Cynthia M. Feland, Assistant State’s Attorney, Bismarck, N.D., for respondent and appellee.
   CROTHERS, Justice.

[¶ 1] Randal R. Steen appeals from an order denying his second application for post-conviction relief under N.D.C.C. ch. 29-32.1. We affirm, concluding Steen’s claims for post-conviction relief are barred by res judicata and misuse of process, Steen failed to establish a factual basis for his claim for ineffective assistance of post-conviction counsel, and the district court properly refused to enjoin the State from certain prison disciplinary procedures.

I

[¶ 2] The underlying factual basis for this appeal is set forth in State v. Steen, 2004 ND 228, 690 N.W.2d 239 (“Steen I”) and State v. Steen, 2005 ND 199, 709 N.W.2d 21 (“Steen II), and will not be repeated here except as necessary to assist in resolving the issues raised in this appeal. In October 2002, a jury convicted Steen of manufacturing methamphetamine, possession of methamphetamine, and two counts of possession of drug paraphernalia. On December 12, 2002, Steen appealed from the criminal judgment entered upon that verdict.

[¶ 3] On July 1, 2003, while his direct appeal was pending, Steen filed his first application for post-conviction relief in the district court, and this Court stayed his direct appeal. In that application, Steen claimed he received ineffective assistance of trial counsel and was denied due process. He asserted his trial counsel permitted him to appear at trial in prison attire, failed to object to certain testimony regarding outstanding warrants, failed to object adequately to alleged evidence contamination at the State laboratory, failed to object to or reject certain jurors, and failed to object to alleged prosecutorial misconduct in closing argument.

[¶ 4] Steen was subsequently appointed counsel for his first post-conviction proceeding, and in September 2003, Steen filed an addendum to his post-conviction application, asserting he received ineffective assistance of trial counsel based upon counsel’s failure to raise an alleged Miranda violation and to contradict or challenge other specific testimony. On December 11, 2003, Steen filed a second addendum to his application, arguing ineffective assistance of trial counsel in failing to attempt to suppress evidence seized under a search warrant.

[¶ 5] A hearing was held on Steen’s first application for post-conviction relief in December 2003. In January 2004, the district court denied Steen’s first application for post-conviction relief. Based upon the record provided, the court ruled Steen did not receive ineffective assistance of trial counsel and was not denied due process. The court stated it had not been furnished transcripts of the trial and other proceedings relevant to the application and there was no justification for the failure to provide those transcripts despite permitting Steen and his post-conviction counsel additional time after the hearing to file those transcripts. The district court thereafter denied Steen’s motion for reconsideration of the order denying him post-conviction relief. Steen appealed from the order denying his first application for post-eonvietion relief on February 19, 2004. Steen’s separate appeals from the criminal judgment and from the order denying him post-conviction relief were consolidated, and Steen elected to represent himself in those appeals.

[¶ 6] In those appeals, Steen argued the district court erred in denying post-conviction relief “based on warrantless entry, search, seizure and arrest,” and “based on ineffective assistance of counsel.” In Steen I, 2004 ND 228, ¶21, 690 N.W.2d 239, this Court affirmed Steen’s conviction and the order denying him post-conviction relief. This Court addressed his arguments within the context of the post-conviction proceeding, because “[a]l-though Steen filed appeals from both the criminal judgment and the order denying his motion for post-conviction relief, his arguments on appeal all relate[d] solely to the post-conviction proceeding.” Id. at ¶ 6. This Court concluded the district court did not err “in determining that trial counsel’s failure to move to suppress evidence did not constitute ineffective assistance of counsel” and “did not err in concluding Steen had failed to establish that counsel’s alleged errors were prejudicial or probably affected the result of the trial.” Id. at ¶¶ 15, 20-21. We also considered the remaining issues and arguments, holding them to be either without merit or unnecessary to our decision. Id. at ¶ 21.

[¶ 7] In May 2005, Steen moved the district court for a new trial under N.D.R.Crim.P. 33(d), submitting evidence which he claimed showed he was actually innocent of the charges for which he was convicted. The district court denied his motion, and we summarily affirmed the district court’s denial of his motion for a new trial. Steen II, 2005 ND 199, 709 N.W.2d 21.

[¶ 8] In July 2006, Steen, again representing himself, filed his second application for post-conviction relief which is at issue in this case. In this application, Steen asserted nine grounds for post-conviction relief, including the State failed to carry its burden of proving that he manufactured methamphetamine, that he used the paraphernalia to inhale or ingest methamphetamine, that he intended to use paraphernalia, that he possessed the methamphetamine, and that he possessed the various items found in the search of a motel room. Steen also asserted “constructive” possession is not forbidden under the law and the legal definition for possession is insufficient to state an offense. Steen further asserted he was forced to be a witness against himself because he was compelled to appear at trial in prison attire due to ineffective assistance of trial counsel. He also asserted he received ineffective assistance of trial counsel, appellate counsel, and post-conviction counsel for not effectively pursuing the aforementioned issues at trial, on appeal, or in the first post-conviction relief proceeding.

[¶ 9] The State responded to Steen’s application asserting res judicata and misuse of process. In August 2006, Steen moved to enjoin the State from interfering with his ability to prosecute his second application for post-conviction relief. In September 2006, Steen filed a “motion for judgment on the pleadings/summary disposition,” referencing his second application, asserting that the State’s response to his application was insufficient, that judgment on the pleadings was appropriate, and that “a default evidentiary hearing [was] not needed because the State [had] confessed to the merits of the post-conviction application.” The State again responded by asserting res judicata and misuse of process.

[¶ 10] In October 2006, the district court summarily denied Steen’s application, holding Steen’s claims were barred by res judicata because his application and motions previously had been addressed and adjudicated by the court. The court also held it was without jurisdiction to address Steen’s request to enjoin the State from certain disciplinary procedures within the Department of Corrections because that request was not within the purview of N.D.C.C. ch. 29-32.1. Steen appeals from the order denying his second application for post-conviction relief.

II

[¶ 11] Steen argues the district court improperly applied the doctrine of res judi-cata in denying his second application for post-conviction relief.

[¶ 12] “Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.” Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845. A petitioner for post-conviction relief has the burden of establishing grounds for post-conviction relief. Steen I, 2004 ND 228, ¶ 9, 690 N.W.2d 239.

[¶ 13] An application for post-conviction relief may be denied under N.D.C.C. § 29-32.1-12 on grounds of res judicata or misuse of process. Relief may be denied as res judicata under N.D.C.C. § 29-32.1-12(1) if the same claim or claims were “fully and finally determined in a previous proceeding.” Under N.D.C.C. § 29-32.1-12(2), misuse of process occurs when a post-conviction relief applicant “[presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding,” or if the applicant “[f]iles multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.” See, e.g., Jensen v. State, 2004 ND 200, ¶ 9, 688 N.W.2d 374. “Post-conviction proceedings are not intended to allow defendants multiple opportunities to raise the same or similar issues, and defendants who inexcusably fail to raise all of their claims in a single post-conviction proceeding misuse the post-conviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding.” Id. (citing Johnson v. State, 2004 ND 130, ¶ 13, 681 N.W.2d 769). This Court has explained that “[defendants are not entitled to post-conviction relief when their claims are merely variations of previous claims that have been rejected.” Id. (citing Garcia v. State, 2004 ND 81, ¶ 22, 678 N.W.2d 568). Generally, the applicability of res judicata is a question of law and is fully reviewable on appeal. See Ungar v. North Dakota State Univ., 2006 ND 185, ¶ 10, 721 N.W.2d 16.

Ill

A

[¶ 14] Although the district court denied Steen’s claims only on the ground of res judicata, Steen’s application could have been rejected under both res judicata and misuse of process. See, e.g., Flanagan v. State, 2006 ND 76, ¶ 7, 712 N.W.2d 602 (res judicata precluded claim of trial court’s failure to instruct jury on element of criminal offense); Jensen, 2004 ND 200, ¶¶ 10-11, 688 N.W.2d 374 (res judicata and misuse of process precluded issues or variations of issues which were either raised in previous proceedings or, if not previously raised, offered no excuse for justification for failing to raise those claims in the prior proceedings); Murchison v. State, 2003 ND 38, ¶ 16, 658 N.W.2d 320 (res judicata precluded speedy trial claim or variation raised in prior post-conviction proceeding); Red Paint v. State, 2002 ND 27, ¶¶ 10-11, 639 N.W.2d 503 (res judicata and misuse of process precluded self-incrimination claim raised in previous appeal).

[¶ 15] Steen argues the district court erred in applying res judicata to his claims because the underlying criminal judgment is void. Steen then contends essentially that the criminal judgment is void based upon seven grounds which he asserts constitutes insufficiency of evidence and the failure of the State to carry its burden, and on two grounds which assert ineffective assistance of counsel. However, Steen’s arguments regarding the validity of the criminal judgment are simply variations of the issues of insufficiency of evidence and ineffective assistance of counsel, which we now address.

[¶ 16] In his application, Steen presents grounds alleging insufficiency of evidence and the State’s alleged failure to meet its burden of proof. These issues could have and should have been raised in prior proceedings, including his previous direct appeal, but were not. These claims and variations thereof are therefore barred as a misuse of process. To the extent Steen argues these issues were raised, but not “effectively” pursued, they are barred by res judicata.

[¶ 17] Likewise, Steen’s assertion in this appeal that he received ineffective assistance of trial counsel is barred by res judicata. Issues regarding alleged ineffective assistance of trial counsel were raised, considered, and adjudicated in the first post-conviction proceeding and in his previous appeal. See Steen I, 2004 ND 228, ¶¶ 15, 20-21, 690 N.W.2d 239. Steen also appears to claim ineffective assistance of his trial counsel based upon an alleged failure to pursue issues regarding insufficiency of evidence or the State’s alleged failure to carry its burden of proof. However, these claims are barred as a misuse of process because they also could have been raised in the prior proceedings in which ineffective assistance of trial counsel was at issue.

[¶ 18] To the extent Steen also argues he received ineffective assistance of appellate counsel, his claim fails because he represented himself in the consolidated appeals of the criminal judgment and the denial of his first application for post-conviction relief. See, e.g., State v. Longhead, 2007 ND 16, ¶ 22, 726 N.W.2d 859 (self-representation waived argument of ineffective assistance of counsel).

[¶ 19] To the extent Steen raises an issue regarding ineffective assistance of post-conviction counsel during his first post-conviction relief proceeding, his claim is also without merit. A defendant claiming ineffective assistance of counsel must prove: “(1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance.” Flanagan, 2006 ND 76, ¶ 10, 712 N.W.2d 602 (citation omitted). To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different, and the defendant must specify how and where counsel was incompetent and the probable different result. Heckelsmiller v. State, 2004 ND 191, ¶ 4, 687 N.W.2d 454.

[¶ 20] In pursuing the present post-conviction relief application, Steen told the district court there were no fact issues to resolve and so he did not seek an eviden-tiary hearing. Based on this record, Steen has not carried his burden of establishing that any alleged errors by his counsel in the first post-conviction proceeding were prejudicial and that the result of the proceeding would have been different. We conclude Steen failed to carry his burden of establishing ineffective assistance of his post-conviction counsel.

B

[¶ 21] Steen asserts the district court’s order is insufficient with respect to its res judicata decision because the court failed to find “why and where each ground had been previously addressed and adjudicated” or that the “grounds had been actually decided.”

[¶ 22] This Court has said the failure to make explicit findings of fact and conclusions of law may be harmless. See, e.g., Johnson v. State, 2006 ND 122, ¶ 23, 714 N.W.2d 832 (holding record demonstrated that the lack of more specific findings of fact and conclusions of law was harmless); State v. Raulston, 2005 ND 212, ¶ 19, 707 N.W.2d 464 (stating that “[w]hile we do not encourage district courts to engage in such a ‘minimalist’ approach, we conclude based on the record before us that the failure to make more explicit findings and conclusions was harmless error”).

[¶ 23] The court’s order denying Steen’s second application for post-conviction relief was succinct, but did take judicial notice of Steen’s prior petition for post-conviction relief and stated that the issues raised by Steen in the present application had been previously considered by the district court and by this Court. Although we conclude the district court’s legal conclusions that all of Steen’s claims were barred by res judicata were overly broad, his remaining claims are appropriately denied on grounds of misuse of process and his failure to show ineffective assistance of his post-conviction counsel. Therefore, the district court did not err in denying Steen’s application for post-conviction relief.

IV

[¶ 24] Steen argues the district court erred in concluding it lacked jurisdiction in this proceeding to enjoin the State from certain prison disciplinary procedures.

[¶ 25] We have explained that “[o]ur statutory law gives the warden authority and control over the penitentiary and its inmates.” Larson v. Schuetzle, 2006 ND 78, ¶ 7, 712 N.W.2d 617 (discussing N.D.C.C. §§ 12-47-11 and 12-47-12).

“[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “ ‘[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.’ ” Id. at 546-47, [441 U.S. 520] 99 S.Ct. 1861 [60 L.Ed.2d 447]. “Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry.” Id. at 547, [441 U.S. 520] 99 S.Ct. 1861 [60 L.Ed.2d 447]. Prison administrators are entitled to deference in the adoption and execution of policies intended “to preserve internal order and discipline and to maintain institutional security.” Id.

Larson, 2006 ND 78, ¶ 8, 712 N.W.2d 617.

[¶ 26] Within the context of an application for post-conviction relief, N.D.C.C. § 29-32.1-01(2) specifically states, “A proceeding under this chapter is not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence.” Here, Steen’s motion essentially claims that by disciplining another inmate who was providing legal assistance to Steen, the State interfered in the prosecution of his application for post-conviction relief. Steen’s motion for relief was part of his second application for post-conviction relief. On appeal, Steen asserts the district court had subject-matter jurisdiction to consider his motion and to issue a “writ in aid of [its] post-conviction jurisdiction,” enjoining the State “from obstructing Steen’s ability to appear and prosecute his post-conviction action.”

[¶ 27] Section 29-32.1-01(2), N.D.C.C., precludes a challenge to prison disciplinary matters in a post-conviction proceeding, and we affirm the district court’s refusal to consider Steen’s motion to énjoin the State within this post-conviction proceeding.

V

[¶ 28] The order denying Steen’s application for post-conviction relief is affirmed.

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


author: VANDE WALLE, Chief Justice.

text:
    2007 ND 119
    Joan MANN, Ken Danks d/b/a TEK Industries, Tracy Wilkie, Christa Monette, and other persons similarly situated, Plaintiffs and Appellants v. NORTH DAKOTA TAX COMMISSIONER, Cory Fong, Defendant and Appellee and North Dakota Treasurer, Kelly Schmidt, Defendant.
    No. 20060366.
    Supreme Court of North Dakota.
    July 25, 2007.

      Vance Gillette (argued), Minot, ND, for plaintiffs and appellants.
    Daniel Lucian Rouse (argued) and Don-nita Ann Wald (appeared), Special Assistant Attorneys General, Tax Department, Bismarck, ND; and Robert W. Wirtz (on brief), Special Assistant Attorney General, Bismarck, ND, for defendants and appel-lee.
   VANDE WALLE, Chief Justice.

[¶ 1] Joan Mann, Ken Danks, doing business as TEK Industries, Tracy Wilkie, and Christa Monette (“plaintiffs”) appealed from an order denying reconsideration, and from an underlying judgment denying their motion to declare the state fuel tax refund process unlawful, denying their request for class certification, and granting their motion for summary judgment to the extent the court found a six year statute of limitations applies. We conclude the statutory refund process is not unlawful, the district court did not abuse its discretion in denying class certification, and the court did not abuse its discretion in denying the plaintiffs’ request for attorney’s fees. We modify the statute of limitations look-back period for the plaintiffs’ refund claims, and we affirm the judgment as modified.

I

[¶ 2] The plaintiffs are Native Americans. Mann is a member of the Three Affiliated Tribes, owns Mann Enterprises, and lives on the Fort Berthold Indian Reservation. Danks is also a member of the Three Affiliated Tribes, owns TEK Industries, and lives on the Fort Berthold Indian Reservation. Wilkie and Monette are members of the Turtle Mountain Band of Chippewa Indians and reside on the Turtle Mountain Indian Reservation.

[¶ 3] In August 2003, the plaintiffs sued the State under federal and state law, seeking a declaration that it is illegal for the State to impose a motor vehicle fuel tax under N.D.C.C. ch. 57-43.1 on fuel they purchased on their respective reservations and seeking a refund of the taxes they already paid. They also requested the district court certify the action as a class action. The plaintiffs sought declaratory and injunctive relief, requesting a permanent injunction barring imposition of the motor vehicle fuels tax on their reservations. The State moved to dismiss, arguing the fuels tax could lawfully be imposed and collected on the reservations under the Hayden-Cartwright Act, 4 U.S.C. § 104.

[¶ 4] In January 2004, the district court rejected the State’s argument and declared the fuels tax imposed under N.D.C.C. § 57-43.1-02 was illegally imposed on Native Americans who reside on North Dakota Indian reservations and purchase motor vehicle fuel on reservation lands. The court granted a permanent injunction prohibiting the collection of the illegal fuels tax. The district court dismissed the plaintiffs’ federal claims and dismissed, without prejudice, all of the plaintiffs from the action except Danks because he had claimed a refund of taxes paid from the State and had complied with N.D.C.C. § 32-12-03. The court reserved the questions on certification and refunds until a later date.

[¶ 5] The State asked the court to reconsider the order and also sought a stay of the order pending appeal. The plaintiffs also moved for reconsideration challenging the dismissal of the federal claims and the dismissal of all the plaintiffs except Danks. The plaintiffs reinstituted their claims for refunds and for certification of a class action. In April 2004, the district court denied the State’s motion for reconsideration, but granted the motion for a stay pending appeal. The court also denied the plaintiffs’ motion for reconsideration and postponed determination of refunds and class certification. The court consolidated its rulings into “findings of fact, conclusions of law and order for judgment,” but a judgment was not entered.

[¶ 6] The plaintiffs appealed and the State cross-appealed from the various orders. In February 2005, we dismissed the appeals concluding that in the absence of a final judgment we did not have jurisdiction. Mann v. North Dakota Tax Comm’r, 2005 ND 36, ¶¶ 13, 19, 692 N.W.2d 490. We also declined to exercise our supervisory authority. Id. at ¶ 24. But we said:

The district court’s ruling that the Hayden-Cartwright Act does not authorize imposition of the state motor vehicle fuels tax on Indian reservations is in accord with every federal and state court decision that has addressed the issue. The risk that the district court committed error in its construction of the Hayden-Cartwight (sic) Act is negligible.
The plaintiffs have conceded that the injunction prohibits collection of the motor vehicle fuels tax only from enrolled Native Americans on their own respective Indian reservations. Although the feasibility of enforcing the injunction prohibiting collection of the motor vehicle fuels tax from Native Americans on their own reservations is questionable, the plaintiffs have indicated they would be satisfied if a refund procedure similar to the procedure provided in N.D.C.C. ch. 57-43.1 were made available to them. We urge the Legislature to address this problem.

Id. at ¶¶ 22-23 (citations omitted).

[¶ 7] During the 2005 legislative session, the legislature enacted N.D.C.C. § 57-43.1-03.2, a refund provision, which provides:

1. A native American may file a claim with the tax commissioner for a refund of motor vehicle fuel taxes paid by that person under this chapter or special fuel taxes paid under chapter 57-43.2 if the motor vehicle fuel or special fuel was purchased from a retail fuel dealer located on the Indian reservation where the native American is an enrolled member and the fuel was delivered to the native American on that reservation. The refund provisions of this chapter apply to refund claims made under this section. 2. A fuels tax refund reserve fund is created as a special fund in the state treasury. The tax commissioner shall deposit in that fund such amounts from motor vehicle fuel tax and special fuel tax collections as the attorney general determines necessary to be expended for refunds to which native American government entities may be entitled under qualifying circumstances and conditions determined by the attorney general. There is appropriated as a continuing appropriation out of funds set aside under this subsection so much of the funds as the attorney general determines is necessary to meet the expenditures authorized under this subsection and such funds may be expended for that purpose.

2005 N.D. Sess. Laws ch. 40, § 13. Section 57-43.1-03.2, N.D.C.C., by its terms, specifically applies to all qualifying fuel purchases made after December 31, 2004. 2005 N.D. Sess. Laws ch. 40, § 16. The legislature also included a statement of its intent regarding the interpretation of the statute:

A new section to Senate Bill No. 2012, as approved by the fifty-ninth legislative assembly, is created and enacted as follows: “LEGISLATIVE INTENT REGARDING INTERPRETATION. Sections 13[, § 57-43.1-03.2,] and 16[, providing for an effective date,] of this Act may not be construed to preclude claims for motor vehicle and special fuel tax refunds by tribal members or tribal entities for taxes on purchases made before January 1, 2005.”

2005 N.D. Sess. Laws ch. 15, § 39.

[¶ 8] In June 2005, the plaintiffs filed an amended motion for summary judgment and class action, questioning whether and how far back the State could be held liable for fuel tax refunds, requesting class certification, and requesting attorney’s fees. The plaintiffs also moved to declare the refund process unlawful claiming it violates equal protection and due process.

[¶ 9] The district court denied the plaintiffs’ claim that the N.D.C.C. ch. 57-43.1 refund process is unlawful, concluding the process does not violate due process and equal protection because the refund process provides claimants with a meaningful opportunity to secure relief for taxes already paid. The court granted the plaintiffs’ motion for summary judgment to the extent the court found a six-year statute of limitations applies to retrospective applications for refunds and to the extent the court found interest was payable on refunds. The court denied the plaintiffs’ request for class certification after deciding a class action was not necessary to ensure a fair and efficient adjudication of the controversy. The court did not take any action on the plaintiffs’ request for attorney’s fees. The plaintiffs moved for reconsideration arguing the statutory refund process could not be applied retroactively and claiming they were entitled to attorney’s fees. The court denied the plaintiffs’ motion for reconsideration and the plaintiffs’ request for attorney’s fees and a final judgment was entered.

II

[¶ 10] The plaintiffs argue the statutory fuel tax refund process contained in N.D.C.C. ch. 57-43.1 violates due process because the refund process does not allow a claimant to request a hearing to challenge a denial. They also argue the refund process is imposed on Native American claimants in a manner that violates equal protection by denying a refund claim unless the claimant provides original receipts with fuel tax listed as a separate item and requiring claims to be for fuel purchased for use in non-licensed equipment.

[¶ 11] The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Payment of a tax constitutes a deprivation of property, and therefore the state must provide either predeprivation or postdeprivation procedural safeguards to satisfy the requirements of the Due Process Clause. McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 36, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990); Service Oil, Inc. v. State, 479 N.W.2d 815, 821 (N.D.1992). Due process requires a state to provide meaningful backward-looking relief to rectify any unconstitutional deprivation that occurs when a state requires a taxpayer to pay a tax without an opportunity to challenge whether the tax is illegal before payment. McKesson, 496 U.S. at 31, 110 S.Ct. 2238. A state has flexibility in responding to a determination that it imposed an unlawful tax, so long as the taxpayer is provided with “an opportunity to contest the validity of the tax and a ‘clear and certain remedy’ designed to render the opportunity meaningful by preventing any permanent unlawful deprivation of property.” Id. at 39-40, 110 S.Ct. 2238.

[¶ 12] The district court found the refund process provides claimants with a meaningful opportunity to secure postde-privation relief for taxes unlawfully collected and the refund process was reasonable and was not unduly burdensome.

[¶ 13] Native Americans are entitled to a refund of fuel taxes paid under N.D.C.C. chs. 57-43.1 and 57-43.2 if the fuel was purchased from a retail fuel dealer located on the Indian reservation where the Native American is an enrolled member. N.D.C.C. § 57-43.1-03.2. Native Americans may claim refunds for fuel taxes paid using the procedure set out in N.D.C.C. ch. 57-43.1. N.D.C.C. § 57-43.1-03.2. In order to claim a refund, the claimant must submit a claim on a form provided by the tax commissioner. N.D.C.C. § 57-43.1-04. The claimant must submit the original invoices or sales receipts, which include the seller’s name and address, the date the fuel was purchased, the type of product, the number of gallons of fuel purchased, and the name of the claimant. N.D.C.C. § 57-43.1-04. Although N.D.C.C. § 57-43.1-04 requires the fuel not be used in a licensed motor vehicle, when N.D.C.C. § 57-43.1-03.2, which applies to all Native American fuel tax refunds, is read together with N.D.C.C. § 57-43.1-04, the provision of the statute about licensed motor vehicles does not apply to Native American claimants requesting refunds under N.D.C.C. § 57-43.1-03.2. Section 57-43.1-04, N.D.C.C., also requires the claimant provide the original invoice or sales receipt with state tax listed as a separate item, but if that receipt is not available, the claimant must provide a certified statement from the fuel seller stating the receipts include tax in the price. We take judicial notice the 2007 Legislative Assembly amended and reenacted N.D.C.C. § 57-43.1-04 to remove the requirement that tax be listed as a separate item on receipts submitted for refund claims. 2007 N.D. Sess. Laws ch. 538, § 1. The new version of N.D.C.C. § 57-43.1-04 becomes effective on August 1, 2007, and applies to all refund claims filed after that date. If the claimant no longer has the original receipts he may substitute copies of the receipts if he provides a separate affidavit completed by the fuel seller on a form provided by the tax commissioner, or the claimant may submit a certified history prepared by the fuel seller providing the required details of each fuel purchase. N.D.C.C. § 57-43.1-04. Within thirty days of the receipt of a claim, the tax commissioner must examine the claim and a check will be issued for the amount due unless there are any discrepancies. N.D.C.C. § 67-43.1-07.

[¶ 14] The refund claimant may protest the denial of a refund under rules adopted by the tax commissioner and in the manner provided in N.D.C.C. ch. 28-32. N.D.C.C. § 57-43.1-17(7). The claimant is entitled to a hearing to contest the denial of his refund claim. N.D.C.C. § 28-32-21. The agency must issue a final order. N.D.C.C. § 28-32-39. If the agency’s final order denies the refund claim, the claimant may petition for reconsideration or may appeal to the district court. N.D.C.C. §§ 28-32-40 and 28-32-42. The judgment of the district court in an appeal from the agency’s order may be reviewed by the Supreme Court on appeal. N.D.C.C. § 28-32-49.

[¶ 15] Native Americans who have been unlawfully deprived of their property by paying fuel taxes under N.D.C.C. chs. 57-43.1 and 57-43.2 are entitled to meaningful backward-looking relief to rectify the unlawful deprivation. See McKesson, 496 U.S. at 31, 110 S.Ct. 2238. We conclude the statutory refund process contained in N.D.C.C. ch. 57-43.1 provides meaningful backward-looking relief with a clear and certain remedy to rectify the unlawful deprivation, and therefore complies with due process requirements.

[¶ 16] Citing Reich v. Collins, 513 U.S. 106, 115 S.Ct. 547, 130 L.Ed.2d 454 (1994), the plaintiffs also claim the State engaged in a “bait and switch” by holding out a “clear and certain” postdeprivation remedy, N.D.C.C. § 57-43.1-32, and then after the taxes are paid declared that no such remedy existed. But this case is different from Reich. In Reich, a Georgia tax scheme exempting retirement benefits paid by the state from state personal income tax but not exempting retirement benefits paid by the Federal Government was found unconstitutional. Id. at 108, 115 S.Ct. 547. Reich sued Georgia in state court seeking a refund based on a Georgia statute which stated a taxpayer was entitled to a refund of all taxes illegally assessed and collected. Id. at 109, 115 S.Ct. 547. The Georgia Supreme Court refused to grant a refund after finding the refund statute did not apply, and concluding any predeprivation procedures available were ample safeguard against unlawful deprivations. Id. at 109-10, 115 S.Ct. 547. The United States Supreme Court concluded Georgia engaged in a “bait and switch” by holding out what appeared to be a “clear and certain” postdeprivation remedy, the refund statute, and then after the disputed tax was paid declared the remedy did not exist and any predeprivation procedures available to challenge the tax were the exclusive remedy. Id. at 111, 115 S.Ct. 547. The Court remanded for the provision of meaningful backward-looking relief consistent with due process and McKesson. Id. at 114, 115 S.Ct. 547.

[¶ 17] A “bait and switch” has not occurred in this case. Taxpayers are entitled to a refund of an illegal or erroneously collected fuels tax under N.D.C.C. § 57-43.1-32, which provides:

If any taxes, penalties, or interest imposed by this chapter have been erroneously or illegally collected from any person, the commissioner may permit that person to take credit against a subsequent tax return for the amount of the erroneous or illegal overpayment. In the alternative, the commissioner shall present a voucher to the office of management and budget for payment of the amount erroneously or illegally collected and a warrant-check must be prepared by that office drawn on the state treasurer payable to that person. The refund must be paid to the person from undistributed funds received from the tax imposed by this chapter and any credit or refund may not be approved or paid unless it is an amount which is in excess of five dollars.

The State has not argued the plaintiffs are not entitled to a refund, rather the State argues the plaintiffs must comply with the statutory refund procedure set out in N.D.C.C. ch. 57-43.1. As stated above, we conclude the plaintiffs and other Native Americans who purchase fuel on their reservations and pay fuel taxes have been provided with meaningful backward-looking relief with a clear and certain remedy to obtain refunds of unlawful taxes and prevent any permanent unlawful deprivation of property. But we also caution that an overly strict construction or technical application of the refund requirements in N.D.C.C. § 57-43.1-04 may deprive claimants of a clear and certain postdeprivation remedy resulting in a “bait and switch” and violating due process.

[¶ 18] Moreover, this is the remedy the plaintiffs requested. The plaintiffs’ complaint states, “plaintiffs request relief as follows: ... 3. to require the defendants to set up a speedy refund process which allows documents or oral testimony to establish the amount of fuel purchased or taxes paid;.... ” When this case was previously argued before this Court, the plaintiffs’ attorney was questioned about whether his clients would be satisfied with a statutory refund process and he said they would. In Mann, 2005 ND 36, ¶ 23, 692 N.W.2d 490, we said, “[although the feasibility of enforcing the injunction prohibiting collection of the motor vehicle fuels tax from Native Americans on their own reservations is questionable, the plaintiffs have indicated they would be satisfied if a refund procedure similar to the procedure provided in N.D.C.C. ch. 57-43.1 were made available to them.” The plaintiffs requested a statutory refund provision, similar to that provided in N.D.C.C. ch. 57-43.1. They received the remedy they requested, and we conclude that remedy does not violate due process.

[¶ 19] The plaintiffs also claim the refund process violates their equal protection rights because refunds are only allowed for fuel used in non-licensed vehicles and claims are denied unless the original receipts list tax as a separate item. The plaintiffs claim receipts with tax as a separate item do not exist, and most Native American’s refund claims are for fuel used in a licensed vehicle.

[¶ 20] As we said in our discussion of the due process issue, we have taken judicial notice of the amendment to N.D.C.C. § 57-43.1-04, removing the requirement that receipts for fuel purchases list tax as a separate item. Although that amendment does not become effective until August 1, 2007, N.D.C.C. § 57-43.1-04 already provides that a claimant may submit a certified statement from the fuel seller stating the receipts include tax in the price. As for the plaintiffs’ claims that Native Americans are not allowed refunds on fuel purchased for use in a licensed vehicle, when N.D.C.C. § 57-43.1-03.2, which applies to all Native American fuel refunds, is read together with N.D.C.C. § 57-43.1-04, it is clear the requirement that the purchased fuel must be used in a non-licensed vehicle does not apply to Native Americans seeking refunds under N.D.C.C. § 57-43.1-03.2. We conclude the statutory refund process does not violate the plaintiffs’ equal protection rights.

[¶ 21] We affirm the district court’s decision finding the statutory refund process is lawful, complies with due process requirements, and does not violate the plaintiffs’ equal protection rights.

III

[¶ 22] The plaintiffs argue N.D.C.C. § 57-43.1-03.2, the Native American fuels tax refund provision, does not apply retroactively to claims for refunds of taxes paid prior to January 1, 2005, the effective date of the statute. They claim the language of the statute is clear, the statutory refund process only applies to fuel tax paid after January 1, 2005, and that N.D.C.C. § 57-43.1-32, the provision for erroneously or illegally collected taxes, applies.

[¶ 23] The district court addressed the retroactivity of the Native American fuel tax refund statute, N.D.C.C. § 57-43.1-03.2, and said:

Given the Supreme Court’s directive (in Mann v. ND Tax Commissioner) to the North Dakota Legislature, and bearing in mind what is set forth in the Note to newly-enacted N.D.C.C. 57-43.1-03.2, it appears that the Legislature intended to allow enrolled tribal members/tribal entities to obtain tax refunds for motor vehicle fuel purchases made prior to the effective date of the statute.

(Emphasis in the original). The court found the statutory refund process, contained in N.D.C.C. ch. 57-43.1, applies to all claims for fuel tax refunds by Native Americans, including refund claims for taxes paid before 2005. We agree.

[¶24] ‘“A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute.’ ” Smith v. Baumgartner, 2003 ND 120, ¶ 11, 665 N.W.2d 12 (quoting State v. Cummings, 386 N.W.2d 468, 471 (N.D.1986)). Generally, statutes are not applied retroactively unless we can rationally infer the legislature intended retroactive application of the statute. Smith, at ¶ 14.

[¶ 25] In this case the legislature’s intent is clear, the note following the statute states, ‘“LEGISLATIVE INTENT REGARDING INTERPRETATION. [Section 57-43.1-03.2 and the effective date] of this Act may not be construed to preclude claims for motor vehicle and special fuel tax refunds by tribal members or tribal entities for taxes on purchases made before January 1, 2005.’” N.D.C.C. § 57-43.1-03.2. The legislature intended Native Americans to be able to claim refunds for all fuel taxes paid, including those paid before January 1, 2005, and to apply the statutory fuel tax refund process, provided in N.D.C.C. ch. 57-43.1, to those claims.

[¶ 26] The plaintiffs also asked the district court to decide what the statute of limitations was for refund claims. The State argued N.D.C.C. § 57-43.1-05 provides a specific statute of limitations for fuel tax refund claims, and states, “[a] refund claim must be filed, for all motor vehicle fuel purchases during a calendar year, on or after January first and before July first of the next year following the year during which the purchase was made, or the claim for refund is barred unless the commissioner grants an extension of time for cause.” The court considered the relevant statutes and found the legislature intended to allow enrolled tribal members to obtain tax refunds for motor vehicle fuel purchases made prior to January 1, 2005, but concluded the legislative intent on how far back to allow claims was not clear. The court found a general six-year statute of limitations governing contract actions applies, under N.D.C.C. § 28-01-16(1), and Native Americans may claim refunds for taxes paid six years prior to January 1, 2005, the effective date of the statute allowing refunds.

[¶ 27] The State argues the district court erred in finding Native Americans could request refunds for six years prior to the enactment of the statute under a contract-theory-based statute of limitations, because there are specific statutes of limitations set out in N.D.C.C. §§ 57-43.1-05 and 57-01-19 barring claims filed by individual Native Americans for all time periods prior to those specifically provided. Section 57-01-19, N.D.C.C., also enacted in 2005, provides:

Notwithstanding any provision relating to claims for refund or credit of state taxes paid contained in title 57, any claim for a refund or credit of taxes paid based upon a claim that the tax or any provision thereof is unconstitutional under the federal or state constitution must be made within one hundred eighty days of the due date of the return or payment of the tax, whichever occurs first, for which the refund or credit is claimed. A claim for refund or credit of taxes paid before January 1, 2005, based upon a claim that the tax or any provision thereof is unconstitutional that is not filed with the commissioner before July 1, 2005, must be denied. This section does not apply to ad valorem property taxes.

But the State did not cross-appeal, and therefore it cannot challenge the court’s findings and seek a more favorable result than it received from the district court. See McCollum v. North Dakota Workers Comp. Bureau, 1997 ND 163, ¶ 4 n. 3, 567 N.W.2d 811.

[¶ 28] The plaintiffs argue the court erred in finding the six-year statute of limitations restricted refunds to taxes paid on or after January 1, 1999. They claim the statute of limitations was tolled upon the commencement of the action, and therefore the look-back period begins six years from the date the suit was filed, September 22, 2003.

[¶ 29] A statute of limitations tolls while a suit is pending, including through the appeal. See N.D.C.C. § 28-05-10; Finch v. Backes, 491 N.W.2d 705, 707 (N.D.1992). The district court found the plaintiffs are entitled to a six-year look-back period to obtain fuel tax refunds, and we conclude the look-back period starts six years from when the suit was commenced. We therefore conclude the plaintiffs are entitled to refunds for fuel taxes paid after September 21, 1997, and we direct the judgment be modified accordingly.

IV

[¶ 30] The plaintiffs argue the requirements to certify a class action under N.D.R.Civ.P. 23 were met and the district court erred in denying class certification. They claim the court erred in finding a class action was not necessary because the statutory refund process applies to claims for refunds of taxes paid prior to 2005 and is more appropriate to adjudicate Native Americans’ claims for refunds.

[¶ 31] The district court has broad discretion in deciding whether to certify a class action under N.D.R.Civ.P. 23, and that decision will not be reversed on appeal unless the court abused its discretion. Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶ 6, 598 N.W.2d 820. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law. Id.

[¶ 32] Four requirements must be met in order to certify a class action under N.D.R.Civ.P. 23:

1. The class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable;
2. There is a question of law or fact common to the class;
3. A class action should be permitted for the fair and efficient adjudication of the controversy; and
4. The representative parties fairly and adequately mil protect the interests of the class.

Werlinger, 1999 ND 173, ¶ 8, 598 N.W.2d 820.

[¶ 33] If the court finds the first two requirements have been met, it must decide whether a class action should be permitted for a fair and efficient adjudication of the controversy, and in doing so N.D.R.Civ.P. 23(c) lists thirteen factors for the court to consider. Werlinger, 1999 ND 173, ¶ 26, 598 N.W.2d 820. The factors will either weigh in favor or against certification. Id. The district court has broad discretion in weighing the factors and deciding whether a class action will provide a fair and efficient adjudication of the controversy. Howe v. Microsoft Corp., 2003 ND 12, ¶ 9, 656 N.W.2d 285.

[¶ 34] The district court found the first and second requirements to certify a class action were arguably met, finding the class was sufficiently numerous and there was a common question of law or fact. In deciding whether a class action should be permitted for a fair and efficient adjudication of the controversy, the court considered the thirteen factors in N.D.R.Civ.P. 23(c), and said:

The Court finds that other means of adjudicating the claims and defenses are not impracticable or inefficient. In fact, because the very nature of the refund process dictates that each refund claimant prove his/her entitlement to a refund with information that only he/she possesses, other means (than a class action) of adjudicating the claims and defenses are more practical and efficient here.
It has already been judicially determined that imposition of the State’s fuel tax in connection with on-reservation purchases of motor fuel by enrolled Native Americans is illegal. With this threshold determination having been made, those persons seeking refunds of taxes already paid should logically be required to resort to the refund process specifically designed by the Legislature in response to Mann v. N.D. Tax Commissioner, 2005 ND 36, 692 N.W.2d 490.
Recognizing that the Legislature has now provided enrolled Native Americans with what appears to be a very straightforward, relatively uncomplicated, method of making claims for refunds of fuel taxes erroneously paid, refund claimants should be able to process their individual claims with minimal difficulty—outside the court system.

(Emphasis in original). The court concluded a class action was not necessary for a fair and efficient adjudication of the controversy. The court found the members of the class have other means of adjudicating their claims, specifically the statutory refund process, and a class action was not the most appropriate means.

[¶ 35] We agree. The fuel tax has already been declared unlawful as applied to Native Americans who purchase fuel on the reservation they are a member of, and therefore the only part of the controversy left to resolve is how to refund the unlawfully collected taxes. Whether a class action is certified or individual claimants are required to file claims for refunds, the claimants must prove their individual damages. The legislature has provided a statutory refund process to allow individual claimants to get refunds. We have said this remedy is sufficient because it provides meaningful backward-looking relief with a clear and certain remedy to rectify any unlawful deprivation that has occurred. The plaintiffs claim a class action is necessary for the fair and efficient adjudication of the controversy because the district court erred in finding the statutory refund process applies to claims for refunds of taxes paid prior to 2005, but we have already addressed this argument and held the statutory refund process applies to all Native American claims for fuel tax refunds, including claims for taxes paid prior to 2005. When the only remaining controversy is the remedy to be imposed and parties can obtain the same relief without class certification, then a class action may not be necessary for a fair and efficient adjudication. See State v. Buckley Powder Co., 945 P.2d 841, 848 (Colo.1997) (an adequate refund program is certainly relevant to a court’s class certification decision when the only remaining controversy is the remedy to be imposed); Buckley Powder Co. v. State, 70 P.3d 547, 554-55 (Colo.Ct.App.2002) (affirming trial court’s decision to grant class certification because refund program was not adequate). Because the statutory refund process applies to all Native American claims for fuel tax refunds and we have held the refund process is an adequate remedy, the statutory refund process is the more appropriate means to adjudicate refund claims.

[¶ 36] We conclude the district court did not abuse its discretion in denying class certification and finding a class action is not necessary for the fair and efficient adjudication of the controversy.

V

[¶ 37] The plaintiffs also claim they are entitled to an award of attorney’s fees under the common fund doctrine, and they argue the district court erred in denying their request.

[IT 38] North Dakota applies the American rule that every litigant is responsible for his own attorney’s fees, and therefore successful litigants are not entitled to recover attorney’s fees unless authorized by statute or contract. Deacon’s Development, LLP v. Lamb, 2006 ND 172, ¶ 11, 719 N.W.2d 379. The common fund doctrine is a recognized exception to the general principle that every litigant should bear his own attorney’s fees, and the doctrine provides that a litigant who recovers a common fund for the benefit of others is entitled to reasonable attorney’s fees from the fund as a whole. Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980). The purpose of the common fund doctrine is to spread out the attorney’s fees proportionately among those who benefit from the suit, recognizing “that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense.” Id. The common fund doctrine is consistent with the American rule because the expense is spread out among those who benefit from the suit rather than requiring the losing party to pay the cost of the litigation. Id. at 481, 100 S.Ct. 745.

[¶ 39] The district court concluded the common fund doctrine did not apply because:

1. The responsibility for paying any attorney’s fees awarded by the Court will not be shared by all who benefit from the litigation. 2. Because each fuel tax refund claimant who qualifies for a refund will be paid the fall amount to which he/she can prove he/she is entitled, plus interest, no portion of any recovery will be used to pay attorney’s fees. 3. Any attorney’s fees awarded by the Court will be paid by the State, not by those who will benefit from the litigation efforts of Plaintiffs’ counsel.

The court denied the plaintiffs’ request for attorney’s fees.

[¶ 40] We conclude there is no statutory basis to award attorney’s fees and the common fund doctrine does not apply. The purpose of the common fund doctrine would not be fulfilled in this case because the costs of the litigation would not be spread out equally among those who will benefit from the litigation, rather the attorney’s fees awarded would be paid by the State. We affirm the denial of attorney’s fees.

VI

[¶ 41] We affirm the district court’s judgment denying the plaintiffs’ request for class certification, and denying their motion to declare the statutory refund process unlawful. We modify the statute of limitations look-back period for the plaintiffs’ refund claims, we dissolve the permanent injunction, and we affirm the judgment as modified.

[¶ 42] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ., concur.


author: Maring, Justice.

text:
    2007 ND 118
    Lyle J. NOORLUN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20070009.
    Supreme Court of North Dakota.
    July 25, 2007.

      Lyle J. Noorlun (submitted on brief), pro se, Marina Del Rey, CA, petitioner and appellant.
    Birch Peterson Burdick, State’s Attorney, Fargo, N.D., for respondent and ap-pellee.
   Maring, Justice.

[¶ 1] Lyle J. Noorlun appeals from a judgment denying his claims for post-conviction relief with the exception of his request for a restitution hearing, which was granted. We hold that Noorlun’s claims about the denial of a speedy trial, a double jeopardy violation, and imprisonment for failure to pay a debt are barred by misuse of process and that Noorlun failed to establish his trial attorney provided ineffective assistance of counsel. We affirm.

I

[¶ 2] Before her death in May 2002, Norma Jordee had made investments with Noorlun, including three promissory notes totaling $250,000, which were renewed at various times. The State claimed the promissory notes were securities and charged Noorlun with three counts of selling or offering to sell unregistered and nonexempt securities, three counts of acting as a security salesman without registering in North Dakota, and three counts of violating a cease and desist order to stop selling securities in North Dakota issued by the North Dakota Securities Commissioner. A jury found Noorlun guilty on all nine counts, and he was given identical concurrent sentences on all nine counts and ordered to pay $250,000 in restitution to Jordee’s estate.

[¶ 3] In State v. Noorlun, 2005 ND 189, 705 N.W.2d 819, cert, denied, — U.S. -, 126 S.Ct. 2869, 165 L.Ed.2d 902 (2006), we affirmed Noorlun’s convictions, concluding the district court did not err in refusing to give Noorlun’s requested jury instruction on the renewal of a promissory note, the court did not abuse its discretion in admitting five typewritten letters with his signature at the bottom of the letters, the evidence was sufficient to support his convictions, the prosecutions for all nine counts were not barred by the statute of limitations, and the record on direct appeal did not support his claims of ineffective assistance of counsel. We affirmed Noor-lun’s convictions without prejudice to him to pursue an ineffective assistance of counsel claim at a post-conviction proceeding. Id. at ¶ 31.

[¶ 4] In March 2006, Noorlun filed a pro se application for post-conviction relief under N.D.C.C. ch. 29-32.1, and counsel was appointed to represent him in the district court proceeding. In his pro se application, Noorlun essentially claimed the promissory notes were loans, he intended to repay the loans, his acts were not intentional, and the “[j]ury did not hear any of the truth because of incompetent [cjourt [ajppointed [ajttorney.” He asserted his court-appointed counsel was ineffective because counsel failed to move to quash the criminal information, which would have caused the statute of limitations to run, counsel failed to call several fact witnesses to establish Noorlun’s lack of intent, counsel failed to retain and call a handwriting expert to establish that Noor-lun had not signed a receipt for the cease and desist order, and both his trial and appellate counsels failed to move for a mistrial. Noorlun also claimed he was denied his right to a speedy trial, the state charges constituted double jeopardy because federal charges based on the same facts had been dismissed, he was imprisoned for failure to pay a debt, he was denied a change of venue, he was denied a restitution hearing, and he was denied appointment of a different court-appointed attorney.

[¶ 5] After a hearing, the district court denied most of Noorlun’s claims for post-conviction relief, but granted his request for a hearing on the amount of his restitution. The court decided Noorlun’s trial counsel had not provided ineffective assistance of counsel for failing to move to quash the criminal information, because Noorlun was not in North Dakota for several periods of time leading up to the prosecutions and the statute of limitations was tolled during those periods under N.D.C.C. § 29-04-04. The court thus concluded trial counsel’s failure to raise the issue would not have changed the result of the criminal prosecution. The court decided Noorlun’s claims about jury instructions and the law regarding promissory notes were decided on direct appeal and were barred by claim and issue preclusion. The court decided it was not ineffective assistance of counsel to refuse to ask for a change of venue because the request would have been futile. The court decided it was not ineffective assistance of counsel to refuse to ask for a mistrial because the defense’s strategy was to seek a direct appeal, the appeal was promptly filed at Noorlun’s request, and Noorlun did not ask counsel to file a motion for mistrial until after the notice of appeal was filed. The court decided trial counsel’s representation was not ineffective for failing to call certain fact witnesses, which Noorlun claimed would have shown his lack of intent, because intent to defraud was not an element of the charges and those witnesses’ testimony would have been irrelevant. The court further decided trial counsel’s representation was not ineffective for failing to call a handwriting expert to testify that Noorlun did not sign the receipt for the cease and desist order, because his signature was not required to convict him for violating that order and the failure to adduce that evidence was part of trial strategy. Finally, the court decided trial counsel’s failure to have Noorlun testify was trial strategy and did not constitute ineffective assistance of counsel. The court, however, granted Noorlun’s request for a restitution hearing.

II

[¶ 6] In the appeal in which he represented himself, Noorlun argues he was denied his right to a speedy and public trial, his state court conviction violated double jeopardy because the federal district court dismissed fraud charges against him relating to the same conduct, and he was imprisoned for failure to pay a debt.

[¶ 7] Under N.D.C.C. § 29-32.1-12(2), an application for post-conviction relief may be denied on the ground of misuse of process. In Clark v. State, 1999 ND 78, ¶ 23, 593 N.W.2d 329 (citations omitted), we explained misuse of process:

[Mjisuse of process under N.D.C.C. ch. 29-32.1 occurs (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings; and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application.

[¶ 8] Noorlun’s claims about the denial of a speedy trial, a double jeopardy violation, and imprisonment for failure to pay a debt could have been raised in his direct appeal, and he has not demonstrated any reason for not raising them then. We therefore conclude Noorlun’s attempt to raise those issues after failing to pursue them in his direct appeal constitutes a misuse of process, and the district court did not err in denying his request for post-conviction relief on those issues.

Ill

[¶ 9] Noorlun claims he was denied effective assistance of counsel during his criminal trial, and but for his counsel’s failures, he would have been acquitted. He argues the criminal prosecution was about his failure to repay loans, and his trial counsel provided ineffective assistance of counsel because counsel failed to call certain “fact witnesses to demonstrate that the unpaid debt was due to accidental happenings.” Noorlun also argues trial counsel provided ineffective assistance because counsel did not retain and call a handwriting expert to challenge Noorlun’s signature on the return receipt on the cease and desist order to show that he had not received that order. Noorlun also asserts trial counsel provided ineffective assistance because counsel did not call Noorlun to testify on his own behalf. In the context of his argument about ineffective assistance of trial counsel, Noorlun also claims he did not receive a hearing before the North Dakota Securities Commissioner on the cease and desist order and also mentions the lack of a change of venue and the denial of a speedy trial.

[¶ 10] Proceedings for post-conviction relief are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. A petitioner for post-conviction relief has the burden of establishing grounds for relief. Id. at ¶ 10. A district court’s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). Flanagan, at II9. Ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Id.

[¶ 11] In Flanagan, at ¶ 10 (citations omitted and quoting Heckelsmiller v. State, 2004 ND 191, ¶¶ 3-4, 687 N.W.2d 454), we outlined the “heavy burden” required for a petitioner to prevail on a post-conviction claim for ineffective assistance of trial counsel:

The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel. In accord with the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] ... (1984), a defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” The defendant must first overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.
The prejudice element requires a defendant to “establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Not only does a criminal defendant have “the heavy, demanding burden of proving counsel’s assistance was ineffective,” a defendant claiming ineffective assistance of counsel “must specify how and where trial counsel was incompetent and the probable different result.” A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”

[¶ 12] On appeal, we do not second guess matters of trial tactics, such as the decision to call certain witnesses, hire private investigators, or how to question certain witnesses. State v. Austin, 2007 ND 30, ¶ 32, 727 N.W.2d 790; Rummer v. State, 2006 ND 216, ¶ 12, 722 N.W.2d 528. “Strategic choices by trial counsel ‘made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable’.” Rummer, at ¶ 12 (quoting State v. Schlickenmayer, 364 N.W.2d 108, 112 (N.D.1985)). As to the matters of trial strategy, courts do not impose their collective judgment upon trial counsel, or apply the distorting effect of hindsight. Rummer, at ¶¶ 10, 13. Merely because a defendant does not prevail in a criminal prosecution that involves strategic choices by trial counsel does not mean those choices constitute ineffective assistance of counsel.

[¶ 13] Here, the district court decided it was not ineffective assistance of counsel to refuse to ask for a change of venue because that request would have been futile. The court decided it was not ineffective assistance of counsel to refuse to ask for a mistrial because it was the defense’s strategy to seek a direct appeal, the appeal was promptly filed at Noorlun’s request, and Noorlun did not ask counsel to file a motion for mistrial until after the notice of appeal was filed. The court also decided trial counsel’s representation was not ineffective for failing to call fact witnesses, which Noorlun claimed would have shown his intent to repay Jordee, because that intent was not an element of the crime in this state prosecution and those witnesses’ testimony would have been irrelevant. The court thus decided trial counsel’s failure to call those witnesses did not fall below an objective standard of reasonableness and could not have been prejudicial to Noorlun. The court decided trial counsel’s representation was not ineffective for failing to call a handwriting expert to testify that the signature for the receipt of the cease and desist order was not Noorlun’s signature, because the failure to adduce that evidence was part of a trial strategy, explaining:

[Trial counsel] testified that while the State’s handwriting expert had testified concerning several documents, that he had not testified concerning the receipt at issue. At the time the decision not to retain an expert on this issue was made by [trial counsel], it was anticipated that Noorlun was going to testify at the trial (and, hence, could testify the signature was not his). However, because the State was not able to introduce certain evidence in its case [in] chief, it was decided that Noorlun would not take the stand and would not be subject to cross-examination. The State would not then have a right to present a rebuttal case. This is a clear case of trial strategy. It is a trial strategy that is common. It was a legitimate strategy in this case. Clearly, based upon the transcript of the proceedings, and the numerous and successful objections to evidence raised by [trial counsel], it appeared, at the time, that the strategy was working. This Court cannot and will not engage in hindsight to second guess this strategy at this point.

The court also decided the failure to have Noorlun testify involved trial strategy.

[¶ 14] The evidence supports the district court’s findings that the errors Noor-lun claims his trial counsel committed were attributable to trial strategy. On appeal, we do not second guess matters of trial strategy, or impose upon trial counsel the distorting effect of hindsight. Rummer, 2006 ND 216, ¶¶ 10, 13, 722 N.W.2d 528. We conclude Noorlun failed to establish his trial counsel’s performance fell below an objective standard of reasonableness. We therefore affirm the district court’s decision that Noorlun did not receive ineffective assistance of counsel.

IV

[¶ 15] Noorlun argues he was denied a restitution hearing. However, the district court granted Noorlun’s request for a restitution hearing, and the record reflects a restitution hearing had been scheduled for January 2007, but was cancelled after Noorlun appealed from the judgment on his post-conviction application. On appeal, the State has not contested Noorlun’s right to a restitution hearing after the issuance of the mandate in this case, and we conclude Noorlun’s argument about the denial of a restitution hearing is meritless.

V

[¶ 16] We affirm the judgment denying Noorlun’s application for post-conviction relief.

[¶ 17] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.