author: LAVORATO, Chief Justice.

text:
    EXPLORE INFORMATION SERVICES, a Division of Ram Center, Inc., Appellant, v. The IOWA COURT INFORMATION SYSTEM, the Judicial Department, and the Iowa Department of Transportation, Appellees.
    No. 98-2264.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      James Carney, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Pamela Griebel, Assistant Attorney General, and David Ferree, Special Assistant Attorney General, for appellees.
   LAVORATO, Chief Justice.

Explore Information Services appeals from a district court ruling on its application for adjudication of law points and its motion to reconsider pursuant to Iowa Rule of Civil Procedure 179(b). Because we conclude the rule 179(b) motion was not an appropriate challenge to the adjudication of law points ruling, Explore’s filing of the rule 179(b) motion did not toll the time for appeal. The time for appeal expired long before the rule 179(b) ruling, resulting in an untimely appeal. We therefore must dismiss the appeal.

I. Background Facts and Proceedings.

Explore Information Services (Explore), a division of RAM Center, Inc., is a Minnesota corporation. Since 1992, Explore has provided insurance companies with information related to convictions for driving violations in fifteen states. Insurance companies use this information to determine whether they should issue or renew policies.

Before 1995, Explore employees would take laptop computers to the clerk’s offices in the ninety-nine Iowa county courthouses, look up the actual citations given to drivers, and enter into their computers data on adjudicated citations. The open records law gave Explore’s employees free access to the records.

In 1995, Explore began receiving driving conviction information electronically from each county’s district court clerk, via the Iowa Court Information System (ICIS). According to Explore, it and ICIS entered into an “agreement” whereby ICIS would provide the compiled conviction data from all Iowa counties once a month in an electronic format, charging a fee of $100 to $200 per month.

Iowa Code section 321.491 requires district court clerks to create abstracts of driving convictions and forfeitures of bail and forward the records to the Iowa Department of Transportation (IDOT) within ten days after the conviction or forfeiture of bail. Iowa Code § 321.491 (1997). A 1994 amendment to section 321.491 authorized clerks to create and forward the information in electronic format. 1994 Iowa Acts ch. 1074, § 2. Before 1997, section 321.491 did not impose a fee on public requests for copies of driving conviction records. But once the records were forwarded to the IDOT, that agency charged fifty cents per record. Iowa Code § 321.10 (1997) (authorizing the IDOT to provide upon request a certified copy of any record of the department, charging a fee of fifty cents per document).

In 1997, the legislature amended section 321.491 to require district court clerks to collect a fifty-cent fee “for each copy of any record of conviction or forfeiture of bail furnished to any requestor except the [IDOT] or other local, state or federal government entity.” 1997 Iowa Acts ch. 104, § 23. Money collected by the clerks of court would be transferred to the IDOT. Id. According to a fiscal note, the fee collected would “be used to enhance the efficiency of processing records and information” between the IDOT and ICIS.

The 1997 amendment went into effect July 1 of that year. Shortly thereafter, the judicial branch, pursuant to the amendment, began charging Explore fifty cents for each copy of a driving conviction record. Explore’s bills increased from between $100 and $200 per month to between $20,000 and $30,000 per month.

Several months later, this court denied Explore’s application for a supervisory order and request for a temporary injunction. Thereafter, on November 12, 1997, Explore filed a petition for declaratory judgment and immediate temporary injunction in the district court. Explore alleged that since the 1997 amendment to section 321.491, the IDOT “has insisted that ICIS collect” the fifty-cent fee from Explore. Explore claimed the billing practices

insisted upon by the IDOT and carried out by ICIS are: (a) not authorized or required by Iowa law ...; (b) in violation of Iowa public records law ...; (c) in violation of Iowa’s long standing public policy to provide public records for the reasonable cost of reproduction; and (d) ... unconstitutional.

Explore requested an immediate temporary injunction restraining ICIS and the IDOT from demanding payment in excess of the reasonable cost of reproduction of the driving conviction records in an electronic format. It also requested the court enter a declaratory judgment (1) holding Iowa law does not authorize or require billing “in the manner done by ICIS, at the direction of the IDOT,” (2) directing ICIS and the IDOT to provide driving conviction records at a cost of no more than the reasonable cost of reproduction of the records, and (3) directing ICIS and the IDOT to refund to Explore all sums paid in excess of reasonable costs of reproduction.

On November 25, ICIS filed a motion to dismiss or, alternatively, to correct or recast the petition. ICIS claimed because it was not a legal entity subject to suit, it must be dismissed as a defendant, or Explore must replace it with a defendant with the capacity to be sued. This motion prompted Explore to amend its petition by adding the judicial branch as a defendant. The record does not show that the district court ever ruled on ICIS’s motion to dismiss. (For convenience we hereinafter refer to ICIS and the judicial branch collectively as “the judicial branch.”)

Following a hearing on December 12, the district court granted Explore’s motion for temporary injunction. The court ordered the judicial branch to continue providing Explore with conviction information as it had since passage of the 1997 amendment. However, the court enjoined the judicial branch from collecting the fifty-cent per record fee if Explore posted a sufficient bond. Explore posted the bond.

On June 17, 1998, Explore filed an application for adjudication of law points, which the judicial branch resisted. Explore asked the district court to answer the following:

Whether Iowa Code section 321.491, unnumbered paragraph 2, Code Supp. 1997, authorizes or directs the judicial branch to collect a fee of [fifty cents] for each copy of any record of conviction or forfeiture of bail, when such records are provided through the Iowa Court Information System, in electronic format, on a monthly basis, in bulk.

Explore submitted a statement of uncon-troverted facts with its application.

Meanwhile, the legislature again amended Iowa Code section 321.491. See 1998 Iowa Acts ch. 1178, § 9. The 1998 amendment became effective July 1, 1998, and distinguished between individual copies of driving conviction records furnished at the clerk’s office and records supplied in bulk electronic form. It required district court clerks to collect the fifty-cent fee for each individual copy of conviction records furnished to requestors at the clerk’s office.

The 1998 amendment added the following language to paragraph 2 of section 321.491:

Notwithstanding any other provision in this section or chapter 22, the judicial department shall be the provider of public electronic access to the clerk’s records of convictions and forfeitures of bail through the Iowa court information system and shall, if such records are provided monthly to a vendor, ... collect a fee from such vendor which is the greater of three thousand dollars per month or the actual direct cost of providing the records.

1998 Iowa Acts ch. 1178, § 9.

On September 10, 1998, the district court filed its ruling on Explore’s motion to adjudicate law points. The court discussed the 1997 and 1998 amendments to section 321.491. The court concluded that the 1998 amendment was a material change to the statute and as a result was presumed to alter the law. The court further concluded that the 1997 amendment did not create an exemption for records provided by the judicial branch, and refused to read such an exemption into the 1997 amendment. Finally, the court concluded:

Iowa Code section 321.491, unnumbered paragraph 2, Code Supp.1997, authorized the judicial branch to collect a fee of fifty cents for each copy of any record of conviction or forfeiture of bail when such records are provided through the IDOT, any clerk of court office, or through ICIS, in electronic form or otherwise, from July 1, 1997 through June 30, 1998. Because of this conclusion, no other pending motions need be ruled upon. This ruling disposes of the case, which is hereby dismissed, with court costs to be paid by plaintiff.

Explore filed a motion for reconsideration pursuant to Iowa Rule of Civil Procedure 179(b), requesting that the court consider the transcript of the temporary injunction proceedings. Explore attached to its motion for reconsideration a transcript of the temporary injunction proceedings, portions of a deposition, answers to interrogatories, and a response to a request for the production of documents. Explore asked the court to examine the attached materials, reconsider its ruling, and either rule in Explore’s favor or, in the alternative, set the matter for oral hearing in order to take additional evidence.

The judicial branch resisted, arguing in part that a rule 179(b) motion was not the proper vehicle to challenge the court’s ruling on the application to adjudicate law points.

The district court denied Explore’s rule 179(b) motion on November 30, 1998. The court did not determine whether its prior ruling could be challenged by a rule 179(b) motion, concluding that it was “not convinced its prior decision was in error.”

Explore appealed. The judicial branch moved to dismiss the appeal as untimely. Later, we ordered the motion to dismiss be submitted with the appeal and instructed the parties to address the issue of timeliness of Explore’s appeal. Although Explore has raised several issues, we limit our discussion to the motion to dismiss because our decision on this issue is dis-positive of the appeal.

II. Jurisdiction: Motion to Dismiss — Timeliness of Appeal.

The judicial branch’s motion to dismiss raises a jurisdictional question. The jurisdictional question arises from the failure of Explore to appeal within thirty days of the district court’s ruling on Explore’s application to adjudicate law points. The district court’s ruling was filed on September 10, 1998. Eight days later, on September 18, Explore filed its motion to reconsider pursuant to Iowa Rule of Civil Procedure 179(b). The district court denied that motion on November 30, 1998. Explore filed its notice of appeal on December 21, 1998, within thirty days of the order denying its motion to reconsider but 102 days after the ruling on its application to adjudicate law points.

Iowa Rule of Appellate Procedure 5(a) prescribes the time for appeal. The rule provides in relevant part that

appeals to the supreme court must be taken within, and not after, thirty days from the entry of the order, judgment, or decree, unless a motion ... as provided in R.C.P. 179(b) is filed, and then within thirty days after the entry of the ruling on such motion....

Iowa R.App. P. 5(a). We have held this rule is mandatory and jurisdictional, requiring us to dismiss a case not meeting these deadlines even if the parties do not raise the issue. Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa 1985); Kunau v. Miller, 328 N.W.2d 529, 530 (Iowa 1983).

Because Explore did not appeal within thirty days of the order overruling its application to adjudicate law points, we have jurisdiction of the appeal only if the motion to reconsider was appropriate to challenge the ruling on the application for adjudication of law points. If the motion was not appropriate, then Explore’s notice of appeal, filed more than thirty days after the ruling on the application to adjudicate law points, was late and this court is without jurisdiction. Osborne v. Iowa Natural Resources Council, 336 N.W.2d 745, 747 (Iowa 1983). If the motion was appropriate, then the thirty-day period provided for filing appeal was tolled. Id.

The critical question then is whether a rule 179(b) motion is appropriate to challenge an adjudication of law points ruling. Rule 179(b) provides in relevant part:

On motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly or a different judgment or decree substituted....

In Osborne and Kunau, this court discussed situations where a rule 179(b) motion is authorized and effective. Osborne, 336 N.W.2d at 747; Kunau, 328 N.W.2d at 530. Except as provided by separate rule, not applicable here, such a motion is restricted to a nonjury ruling on an issue of fact. Id.

Iowa Rule of Civil Procedure 116 (formerly Rule 105, amended and redesignat-ed, effective January 24, 1998), regarding applications for adjudication of law points, provides:

The court may in its discretion, and must on application of a party, made after issues are joined and before trial, separately hear and determine any point of law raised in any pleading which goes to the whole or any material part of the ease. It shall enter an appropriate final order before trial of the remaining issues, adjudicating the point so determined, which shall not be questioned on the trial of any part of the case of which it does not dispose. If such ruling does not dispose of the whole case, it shall be deemed interlocutory for purposes of appeal.

Iowa R. Civ. P. 116.

In State ex rel. Miller v. Hydro Mag, Ltd., we described the purpose and use of an application for adjudication of law points:

Generally, an application for separate adjudication of law points is only considered when the questions of law arise from uncontroverted pleadings. If the pleadings reveal fact issues with respect to the law points, disposition under rule 105 is generally inappropriate unless the parties stipulate the facts. No facts,' other than stipulated facts, which are established outside the pleadings may be examined and no evidence may be taken to either support or resist the application. We will not assume or speculate on controverted facts, this being contrary to a rule 105 ruling.
We have, however, adjudicated purely legal issues under a rule 105 application when the facts were controverted or disputed .... But we still decline to adjudicate a rule 105 application that requires a court answer speculative and abstract legal questions which may become moot by the time the facts are finally determined. Therefore, we will adjudicate a rule 105 application, despite the existence of controverted pleadings or unsti-pulated facts, only when the trial court is presented a legal issue that is independent of a disputed factual issue and a ruling favorable to the applying party will necessarily be dispositive of the case in whole or in part.

379 N.W.2d 911, 913 (Iowa 1986) (citations omitted) (second emphasis added).

In Easter Lake Estates, Inc. v. Polk County, we addressed the issue of a rule 179(b) motion following an adjudication of law points. 444 N.W.2d 72 (Iowa 1989). In that case, the district court entered judgment for Polk County on its application for adjudication of law points pursuant to rule 105. Id. at 73. The plaintiff moved to enlarge and amend the district court’s findings pursuant to rule 179(b). Id. at 73-74. Eight months later, the district court ruled on the motion. In its ruling, the court rescinded the prior order and entered judgment against Polk County, even though the plaintiff had not asked for such relief. Id. at 74. We held that the plaintiffs use of a rule 179(b) motion was ineffective to challenge the district court’s ruling on the county’s application for adjudication of law points or to delay appeal from the ruling. Id. The district court, we said, was therefore “without authority to reverse itself eight months later after the ruling and reinstate Polk County as a party.” Id. We then reversed the district court’s 179(b) ruling and reinstated its previous ruling. Id.

We explained our holding this way:

Neither by its terms nor by its purpose ... is a rule 105 adjudication amenable to [a rule 179(b)] challenge. Ordinarily, an adjudication under rule 105 is appropriate only when a question of law arises from uncontroverted pleadings. Given the underlying purpose of the rule — to dispose of a case on a point of law where the facts are undisputed — -a motion to enlarge or amend findings would have no application. Moreover, the rule itself provides that such an adjudication is a “final order ... which shall not be questioned on the trial of any part of the case of which it does not dispose.” Thus we have said that “[w]here a ruling on an application to adjudicate law points under Iowa Rule of Civil Procedure 105 disposes of the entire case, it is an appealable final order.”

Id. (citations omitted).

In its application for adjudication of law points, Explore alleged:

The following point of law goes to the whole or material part of this case, and has been raised in the pleadings filed in this case: Whether Iowa Code section 321.491, unnumbered paragraph 2, Code Supp.1997, authorizes or directs the judicial branch to collect a fee of [fifty cents] for each copy of any record of conviction or forfeiture of bail, when such records are provided through the Iowa Court Information System, in electronic format, on a monthly basis, in bulk.

Explore further alleged that this point of law “involves the interpretation of a statute, which is a legal issue that may be raised by a Rule 116 application.” Finally, Explore alleged that this point of law “arises from uncontroverted facts contained on the record or in the pleadings of this case or, in the alternative, if there is a disputed fact, the legal issue is independent of such disputed facts.”

In support of its application, Explore submitted a statement of uncontroverted facts. Those facts included the language of section 321.491 before the 1997 amendment, after the 1997 amendment, and after the 1998 amendment. The statement further stated that (1) Explore purchased records in electronic format from ICIS monthly at a fee based on the reasonable cost of reproduction and (2) after the 1997 amendment the charge was fifty cents per record, at a fee of more than $20,000 per month.

The judicial branch resisted the application, arguing that (1) ICIS is not a lawful custodian of clerk of court records and (2) the 1998 amendment materially changed the law. In its reply to this resistance, Explore argued in part: “[T]he court is required to rule on the application for adjudication of law points, and is precluded from considering additional evidence for this question of pure statutory interpretation.” As Explore urged, the district court treated the issue as one of statutory interpretation. The court concluded the 1997 amendment authorized the judicial branch to collect the fifty-cent fee for driving records.

Clearly, as Explore argued to the district court and as the district court correctly recognized, the only issue raised by the application for adjudication of law points was one of statutory interpretation: whether the 1997 amendment authorized the judicial branch to collect the fifty-cent fee for driving records. The district court could decide this issue based on uncontro-verted pleadings as restated in Explore’s statement of uncontroverted facts. The ruling, favorable to the judicial branch, disposed of the whole case. Therefore, under our Easter Lake holding, Explore’s 179(b) motion was ineffective to challenge the district court’s rule 116 ruling.

While a rule 179(b) motion may concern factual disputes or legal conclusions, it is necessary to preserve error only when the district court fails to resolve an issue, claim, or legal theory properly submitted for adjudication. Arnold v. Lang, 259 N.W.2d 749, 753 (Iowa 1977). Here, the district court resolved the issue submitted to it for adjudication. As the judicial branch points out, “Explore admits in its brief that the basis for its challenge to the district court’s ruling on the rule 179(b) motion is ‘substantively identical’ to its challenge to the district court’s final ruling on the merits.” Explore’s rule 179(b) motion therefore “amounted to no more than a rehash of legal issues raised— and decided adversely to it — by way of’ the district court’s ruling on Explore’s application for adjudication of law points. See Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998).

Because it was ruling on an application to adjudicate law points, the district court was limited to the uncontroverted facts found in the pleadings. See Reynolds v. Nowotny, 213 N.W.2d 648, 651 (Iowa 1973). The court could not consider the facts Explore presented in its rule 179(b) motion, because it could not have considered them in conjunction with its initial ruling on Explore’s rule 116 application. A rule 179(b) motion was not the proper vehicle to challenge the adjudication of law points ruling. That ruling was a final order which could only be challenged by an appeal filed within the time limits of Iowa Rule of Appellate Procedure 5(a). We must accordingly sustain the motion to dismiss and dismiss the appeal as untimely.

We agree with the judicial branch that the three cases Explore relies on to distinguish its rule 179(b) motion from the motion we found inappropriate in Easter Lake fail in that respect. The rule 179(b) motions in Woody v. Machin, 380 N.W.2d 727 (Iowa 1986), and Beck addressed fact issues that arose during posttrial hearings before the district court following jury trials. Woody, 380 N.W.2d at 729 (party challenged the court’s fact findings concerning costs and the scope of an abatement order); Beck, 376 N.W.2d at 596 (factual dispute arose over a party’s opportunity to object to jury instructions). We held in both cases that the rule 179(b) motion extended the deadline for appeal because the motion raised factual issues tried to the court. Woody, 380 N.W.2d at 729; Beck, 376 N.W.2d at 596.

In the third case, Bellach, the rule 179(b) motion challenged the court’s denial of numerous posttrial motions. 573 N.W.2d 903, 904 (Iowa 1998). We concluded that the rule 179(b) motion “amounted to no more than a rehash of legal issues” previously raised by the proponent of the motion. Id. at 905. For that reason, we concluded the motion did not toll the time for appeal and dismissed the appeal as untimely. Id. Contrary to Explore’s assertions, Bellach actually is consistent with Easter Lake. Additionally, the three cases Explore cites do not address the procedure a party must follow to challenge a ruling on an adjudication of law points.

III. Disposition.

Because the rule 179(b) motion was not an appropriate challenge to the district court’s adjudication-of-law-points ruling, Explore’s filing of the rule 179(b) motion did not toll the time for appeal. For this reason, the appeal wás untimely and we must therefore dismiss it.

APPEAL DISMISSED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2001 ND 198
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Fintan L. DOOLEY, 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. Fintan L. Dooley, Respondent.
    No. 20010278.
    Supreme Court of North Dakota.
    Dec. 14, 2001.
   SUSPENSION ORDERED

PER CURIAM.

[¶ 1] On November 6, 2001, a Hearing Body of the Disciplinary Board submitted its Report to the Supreme Court, recommending that Fintan L. Dooley be suspended from the practice of law for a period of 30 days and pay all costs associ-atéd with this matter. On November 15, 2001, Loralyn K. Hegland, Assistant Disciplinary Counsel, filed an Affidavit of Costs and Expenses in the amount of $1, 638.94. Hegland filed a Supplemental Affidavit on November 27, 2001, for $845.00, which was the expense for preparing and filing the transcript The Supreme Court considered the matter under N.D.R. Lawyer Discipl. 3.1(F)(2).

[¶ 2] Fintan L. Dooley was admitted to practice law in North Dakota on January 2, 1976, and his name has appeared since that date on the roll of attorneys admitted to the Bar of North Dakota as maintained by the Supreme Court of North Dakota.

[¶ 3] In July of 1999, Jeanine Kersey-Russell retained Dooley to assist with her husband’s adoption of her son. During Dooley’s representation of Kersey-Russell, Dooley communicated information concerning the adoption to Vernon Kersey, father of Kersey-Russell, without specific authorization to do so.

[¶ 4] During his representation of Ker-sey-Russell, Dooley also communicated, without first obtaining her consent, with Kersey-Russell’s son, concerning matters of abuse that were subsequently included in a petition for termination of parental rights published in the local paper. Additionally, Kersey-Russell asked Dooley to explain his services by providing her an itemized bill. Dooley did not give her an itemized bill.

[¶ 5] On March 26, 2001, Dooley was personally served the Summons and Petition for Discipline, which alleged the above actions violated N.D.R. Prof. Conduct 1.4(b), which provides that a lawyer shall explain matters related to the representation to the extent reasonably necessary to permit the client to make informed decisions, and N.D.R. Prof. Conduct 1.6, which provides that unless required to do so, a lawyer shall not reveal information relating to the representation of a client.

[¶ 6] Dooley’s Answer to the Petition for Discipline was filed April 6, 2001. Dooley admits in his Answer that he sent correspondence to both Kersey-Russell and her father, who had engaged Dooley. He also admitted that after Kersey requested all correspondence go to his daughter, one letter was inadvertently sent to Kersey. Dooley further explains that both Kersey-Russell and her husband “signed off’ on the petition which became a matter of public record when it was printed in the newspaper because of lack of personal service on the son’s natural father. He further explains that he had a generic discussion with Kersey-Russell about the matter with her son being present.

[¶ 7] Dooley also admitted that Ker-sey-Russell requested an itemized statement of costs and that he sent an explanation of costs and fees she requested. Dooley asserts that he acted appropriately in representing the client, and appropriately informed her of the process and proof necessary to successfully present the petition for termination of parental rights and adoption to the court. Dooley further asserts that his past disciplinary actions should not be used as aggravating factors as they are not of a nature that justify any degree of discipline.

[¶ 8] A hearing before a three-member panel of the Disciplinary Board was set and the Notice of Hearing was mailed to Dooley’s counsel, John Olson, on June 29, 2001. Notice of Rescheduled Hearing was subsequently mailed August 16, 2001. The Hearing Panel heard witnesses, received exhibits, and heard arguments on behalf of Dooley and from Assistant Disciplinary Counsel.

[¶ 9] Dooley and his counsel were informed on November 6, 2001, in writing, by certified mail return receipt requested, that the Report of the Hearing Panel had been filed in the Supreme Court. They were advised under N.D.R. Lawyer Dis-cipl. 3.1(F)(2) that objections must be filed within 20 days of service of the Report, and that if timely objections were filed, briefs limited to those objections would be due 50 days after service of the Report.

[¶ 10] No objections to the Report of the Hearing Panel were filed by Olson, Dooley or Hegland, and the matter was referred to the Supreme Court. Notwithstanding our de novo on the record standard of review, see Disciplinary Board v. Howe, 2001 ND 86 ¶ 25, 626 N.W.2d 650, 656, in the absence of objections by the lawyer or disciplinary counsel, we are more inclined to accept the findings and recommendation of the Hearing Panel.

[¶ 11] Dooley’s actions violate N.D.R. Prof. Conduct 1.6 which provides that unless required or permitted to do so, a lawyer shall not reveal information relating to the representation of a client, as Dooley communicated confidential information concerning the adoption to the father of his client. No violation is found for Dooley’s discussion of the details of the published petition with the minor child, with his mother present. There is also no violation of N.D.R. Prof. Conduct 1.4(b) found.

[¶ 12] Under N.D. Stds. Imposing Lawyer Sanctions 4.22, suspension is generally appropriate when a lawyer knowingly reveals information relating to the representation of a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury or potential injury to a client.

[¶ 13] On July 20, 2000, Dooley was admonished for his violation of N.D.R. Prof. Conduct 3.1, when Dooley sued an individual for attorney’s fees when the individual had no obligation to pay the fees; and on September 22, 1999, Dooley was publicly reprimanded for violating N.D.R. Prof. Conduct 1.16(e) when he failed to promptly return funds to a former client and her new attorney in a workers compensation matter. Under N.D. Stds. Imposing Lawyer Sanctions 9.22, Dooley’s prior disciplinary offenses are considered aggravating factors.

[¶ 14] ORDERED, the Report of the Hearing Panel is approved.

[¶ 15] FURTHER ORDERED, Dooley is suspended from the practice of law for 30 days effective January 1, 2002.

[¶ 16] FURTHER ORDERED, Dooley pay the costs and expenses of the disciplinary proceedings in the amount of $2,483.94, payable to the Secretary of the Disciplinary Board.

[¶ 17] Dated at Bismarck, North Dakota, December 6, 2001.

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

[¶ 19] Justice WILLIAM A. NEUMANN, deeming himself disqualified, did not participate in this decision.


author: VANDE WALLE, Chief Justice,

text:
    2001 ND 199
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 6, With Chambers in Minot, North Dakota, Northwest Judicial District.
    No. 20010229.
    Supreme Court of North Dakota.
    Dec. 14, 2001.
   ORDER

[¶ 1] The sad occasion of the death of our colleague The Honorable Glenn Dill III on September 12, 2001, and the subsequent notice received from Governor John Hoeven of the vacancy of Judgeship No. 6 chambered in Minot require this Court to consider the judgeship under § 27-05-02.1, N.D.C.C., which provides:

1. Notwithstanding section 44-02-03, when a vacancy occurs in the office of district court judge, the supreme court shall determine, within ninety days of receiving notice of the vacancy from the governor and in consultation with the judges and attorneys in the affected judicial district, whether that office is necessary for effective judicial administration or whether a district judgeship may be transferred to the location to fulfill a need for judicial services. The supreme court may, consistent with that determination, order that:
a. The vacancy be filled in the manner provided pursuant to chapter 27-25;
b. The vacant office be abolished, with or without transfer of a district judgeship as provided by subsection 5; or
c. The vacant office be transferred to a judicial district in which an additional judge is necessary for effective judicial administration, and that the vacancy be filled in the manner provided pursuant to chapter 27-25 with respect to that judicial district.

[¶ 2] Under § 27-17-03, N.D.C.C., and N.D. Sup.Ct. Adrain. R. 7.2, the Court designated the Honorable James H. O’Keefe, Surrogate Judge, Hearing Officer to conduct a hearing and to receive written comments in this matter. . Judge O’Keefe conducted a public hearing in Minot, North Dakota, in the Ward County Courthouse, on November 5, 2001. The written comments received by the Hearing Officer included the Statement of Presiding Judge Robert W. Holte in support of retaining the judgeship in Minot; a Request for the Transfer/Relocation of the judgeship to the Southeast Judicial District with chambers in Jamestown, submitted by Presiding Judge John T. Paulson; and a Request for the Transfer/Relocation of the judgeship to the East Central Judicial District, submitted by Presiding Judge Michael 0. McGuire. Judge O’Keefe’s written report of the hearing and his recommendations, together with the written comments and a transcript of the hearing held in Minot, were submitted to the Court on November 19, 2001. Judge O’Keefe recommended the judgeship be retained in Minot.

[¶ 8] For purposes of consultation with the judges and attorneys in the affected judicial districts, the Court conducted a hearing in the Ralph J. Erickstad Courtroom of the Supreme Court in Bismarck on November 27, 2001.

[¶ 4] Section 4 of N.D. Sup.Ct. Admin. R. 7.2 provides the criteria for consideration on the retention or transfer of the judgeship:

The hearing officer or hearing panel, or the Supreme Court, or both, shall consider evidence regarding the following criteria concerning disposition of the vacancy:
1. Population;
2. Caseloads and unusual case types;
3. Trends in 1 and 2;
4. Impact of proposed vacancy disposition on travel requirements;
5. Age or possible retirement of remaining judges in the affected judicial district; and
6. Availability of facilities (e.g., law enforcement, correctional, and court facilities).

[¶ 5] Under these criteria, the Court has considered all of the submissions received by the Court and submitted to the Hearing Officer. The Court has also considered its own administrative records and public information pertaining to the criteria available from other public agencies of government. Because Ward County, Stutsman County and Cass County each have adequate and appropriate law enforcement, correctional and court facilities, we have determined criterion 6 is not a factor in our determination. Criterion 5 is not a significant consideration in this decision.

[¶ 6] Applying criteria 1 through 4, we determine that retention of Judgeship No. 6 in Minot is not necessary for the effective judicial administration in that district and the judgeship shall be transferred to the East Central Judicial District to be chambered in Fargo where an additional judge is necessary for effective judicial administration. The judgeship shall be designated Judgeship No. 8 and the vacancy in this judgeship shall be filled in the manner provided in chapter 27-25 with respect to the East Central Judicial District.

[¶7] In arriving at this decision we have considered the following information pertaining to criteria 1 through 4:

I. Population and Trends.

[¶ 8] We have considered population and trends on a district wide basis and also for the specific county in or to which it has been proposed the judgeship be retained or transferred. To examine trends in population changes, we have reviewed data assembled by the U.S. Census Bureau and the North Dakota State Data Center at North Dakota State University (“State Data Center”). The population changes from 1990 to 2000 in the districts under review are reflected in the following graph based on data assembled by the State Data Center and the U.S. Census Bureau in its Profiles of General Demographic Characteristics: 2000:

[¶ 10] This population data illustrates clearly discernible trends. Over the past two census periods, the East Central Judicial District has experienced a steady increase in population. The increase is projected to continue for the next decade. Over the last two census periods, the population in the Northwest and Southeast Judicial Districts has generally declined and population projections for the next decade indicate marginal change. The impact of these population dynamics is reflected in the relationship between available or potential judicial resources and the population within the districts. Based on the 2000 population, the East Central Judicial District, with 7 judges and 2 referees, has a population per judge/referee of 14,875. An additional judge in the district reduces the population per judge/referee to 13,387. The Northwest Judicial District, with 7 judges and 1 referee, has a population per judge/referee of 11,931. The loss of a judge in that district increases the population per judge/referee to 13,636. The Southeast Judicial District, with 6 judges and no referees, has a population per judge of 14,461. An additional judge in the district would reduce the population per judge/referee to 12,395. Thus, based on 2000 population figures, the transfer of the vacant judgeship to the East Central Judicial District results in relative parity in population per judge/referee. This relative parity remains constant when considering projected district populations over the next fifteen years. Based on the projected 2010 population, the East Central Judicial District with an additional judge would have a population per judge/referee of 13,892. The Northwest Judicial District after a transfer would have a population per judge/referee of 13,907. The Southeast Judicial District, with the current complement of 6 judges, would have a population per judge of 13,838. When considering the projected 2015 population, the East Central Judicial District with an additional judge would have a population per judge/referee of 14,327. The Northwest Judicial District after a transfer would have a population per judge/referee of 13,-929, and the Southeast Judicial District, with 6 judges, would have a population per judge of 13,673.

[¶ 11] Because the location of the main population centers within a district also affects the amount of travel required of judges in the district, we also note the population changes in the specific county-in which it is proposed that the judgeship be retained or transferred. The following graph based on information from the State Data Center and the U.S. Census Bureau Profiles reflects county populations.

[¶ 12] County-specific population data over the last two census periods and projections for the next fifteen years confirm the district-wide trend noted above.

[¶ 13] The ten-year period from 1990 to 2000 also shows a significant change in the' population age spread as reflected in the changes in the population aged 0 to 17 years in the counties in the districts under consideration. The following graphs based on the U.S. Census Bureau Decennial Censuses show this population change.

14] Age distribution within a district affects the need for judicial services. As discussed below in the description of the weighted caseload study, juvenile dependency and juvenile delinquency proceedings are assigned great weight in the caseload study because of significant demands on judicial time for each case type. Therefore, a district with a significantly higher proportion of minors will place greater demand on judicial services than the same population with older members.

[¶ 15] Conversely, an increasingly elderly population makes fewer demands on the judicial system than the same number of younger citizens. This is particularly true with respect to age and the commission of criminal offenses. Statistics prepared by the Office of Attorney General’s Bureau of Criminal Investigation shows a significant drop in arrests of persons over the age of 44.

[¶ 16] The Profiles of General Demographic Characteristics: 2000 prepared by the U.S. Census Bureau indicates that North Dakota has 233,342 people or 36.33% of the state’s population over the age of 44.

[¶ 17] For the districts under consideration, the following graphs based upon the U.S. Census Bureau Profiles show the percentage of population over age 44 by county:

II. Caseload and Trends.

[¶ 18] The Court has reviewed the weighted caseload studies for 1997 through 2000. A weighted caseload study allocates the amount of judicial resources (including judges and judicial referees) needed to handle cases in the district after weighting each type of case by the amount of time required to process an average case of that type. The study adjusts each district for travel time depending on whether that district requires high travel, moderate travel, or low travel time from the judicial officers serving the district. In 1997 through 2000, the East Central Judicial District was designated a low travel district, the Northwest Judicial District was designated a moderate travel district, and the Southeast Judicial District was designated a high travel district. The study also allocates time not available for handling cases but which is required in each district for the presiding judge to handle administrative matters. The resulting computation is the minimum judicial resources (expressed as a “judicial FTE”, which includes both judges and judicial referees) to meet the needs of the district based upon weighted case filings. The study does not include juvenile dismissals, which occur either when a state’s attorney declines to file a juvenile petition or when a judge or judicial referee dismisses a petition. Juvenile dismissals are omitted from the study because they have a negligible impact on judicial workload.

[¶ 19] When the minimum judicial FTE’s required are compared to the judicial FTE’s currently available in a district, the difference is expressed as a positive number, indicating there are more judicial resources available than current weighted case filings require, or a negative number, indicating there are fewer judicial resources than are needed to serve that district’s weighted case filings. Ideally, each district would show a small positive number, indicating judicial resources available for that district have a margin for contingencies such as the prolonged illness of a judge, absence for continuing judicial education, judicial committee assignments, and similar circumstances that are not currently accounted for in the caseload study. The weighted caseload study does reflect the mental health filings which constitute an unusual caseload in the Southeast Judicial District. The weighted caseload study does not at present reflect the impact of judicial resources committed in judicial districts to juvenile and adult drug courts.

[¶ 20] The 1997 through 2000 weighted caseload studies show the following allocation of judicial resources:

[¶ 21] In the 1997 through 2000 weighted caseload studies, the Northwest Judicial District has consistently appeared as having more judicial resources available than weighted case filings require, while the East Central and Southeast Judicial Districts are shown as having fewer judicial resources than the weighted filings would require.

III. Impact of Proposed Vacancy Disposition on Travel Requirements.

[¶ 22] As noted above, the weighted caseload study allocates travel time variously to the districts, with the East Central Judicial District assigned a low travel time adjustment, the Southeast Judicial District assigned a high travel time adjustment, and the Northwest Judicial District assigned a medium travel time adjustment. The Northwest Judicial District argues the loss of a judge in Minot will make the district a high travel district. The Southeast Judicial District argues placement of a judge in Jamestown would greatly reduce the travel time required of all the judges in the district, thereby making their time more available for the duties of judging. The East Central Judicial District does not argue the addition of a judge would significantly affect the travel adjustment of the district because the judges, with or without an addition, would be concentrated where the major population of the district resides.

[¶ 23] A review of the actual travel mileage of the judges in the Northwest and Southeast Judicial Districts over the last biennium (July 1999 to June 2001) supports the allocation of travel time adjustments under the caseload study.

[¶ 24] The Northwest Judicial District is comprised of 6 counties totaling 11,013 square miles. The district population under the 2000 census was 95,449. Until the death of Judge Dill, the district was served by seven judges and one referee. The judges and referee traveled 40,477 miles in the first year of the biennium or an average of 5,072 miles per judge/referee. In the second year of the biennium the judges and referee traveled 45,970 miles or an average of 5,746 miles per judge/referee. The weighted caseload study allocates 6,150 minutes per year for travel time per judge/referee in this district.

[¶ 25] The Southeast Judicial District is comprised of 11 counties totaling 12,395 square miles. The population of the district under the 2000 census was 86,767. During the last two years the district has been served by 6 judges and no referees. During the last biennium, the judges traveled 73,137 miles or an average of 12,190 miles per judge during the first year and 69,135 miles or an average of 11,523 miles per judge during the second year. The weighted caseload study allocates 12,300 minutes per year for travel for each judge in this district.

[¶ 26] We recognize that travel in both the Northwest and Southeast Judicial Districts is greater than would be required if the distribution of judges reflected the distribution of the population. In each district, travel would be reduced by the relocation of one chambers within the district. In addition we recognize the loss of Judgeship No. 6 in Minot would have a greater impact on the district than the loss of a judgeship in another location simply because the largest population resides in Minot. However, we do not consider at this time the transfer of chambers under N.D. Sup.Ct. Admin. R. 7.1, and we are mindful of the directive of subsection 1 of § 27-05-08, N.D.C.C., which results in inefficiencies relating to travel.

[¶ 27] Assuming the computation submitted by the Northwest Judicial District of the anticipated average annual travel required is accurate at 36,672 minutes per year, the district will not become a high travel district even if the judgeship is not retained in Ward County. The average travel time per judge/referee is 5,239 minutes based upon the district’s projection. The loss of a judgeship in Minot will cause a greater need for travel adjustments. If the computation submitted by the district were adjusted by doubling the projected trips to Minot by all judges not chambered there, the total travel minutes would be 49,952 or an average of 7,136 minutes per judge/referee. This is substantially less than the average miles currently traveled by the judges in the Southeast Judicial District.

[¶ 28] We recognize this order results in 2 judges and a judicial referee remaining in Minot to meet the demands for judicial services in Ward County, with the attendant concern for the possible impact on the provision of timely judicial services. And we recognize the continuing effort by the Southeast Judicial District to provide effective judicial services to the citizens of that district.

[¶ 29] We conclude, however, that the clear trends in population generally, the impact of a younger population on the need for judicial services, and the weighted caseload studies illustrate effective judicial administration is best served by transfer of the vacant judgeship to the East Central Judicial District. We will make available to the Northwest and Southeast Judicial Districts assistance to optimize the use of judicial resources.

[¶ 30] IT IS HEREBY ORDERED, the unexpired term in vacant Judgeship No. 6 shall be transferred to the East Central Judicial District. The judgeship shall be designated as Judgeship No. 8, with chambers in Fargo. The vacancy in this judgeship shall be filled in accordance with ch. 27-25, N.D.C.C. and N.D. Const, art. VI, § 13, as amended effective June 9, 1998.

[¶ 31] Dated at Bismarck, North Dakota, this 14 day of December, 2001.

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

VANDE WALLE, Chief Justice,

concurring.

[¶ 33] I agree with the findings of the order and I reluctantly agree with the conclusion that the vacant judgeship be transferred from the Northwest to the East Central Judicial District. I write to explain my concern.

[¶ 34] During the Court’s consultation with the judges and attorneys of the affected judicial district on November 27, 2001, one of the participants urged us to first consider the need for the judgeship in the Northwest Judicial District and only if it is not needed in that district should we consider transfer to another district. Although this procedure appears logical, it ignores the reality that we are presently required to operate the judicial system with 42 trial judges and that the comparative needs of the districts must be considered when a vacancy occurs. I believe the Court’s order today does exactly that.

[¶ 35] Nevertheless, that comparative need must be kept in perspective, and it is this comparison which causes my concern. I have confidence in our weighted caseload statistics. I believe they generally reflect the need for judges in the State and in the districts, but they concededly contain some subjective measurements. They may not account for all the factors. For example, there may be an economy of scale of having all the judges in one location, such as in the East Central Judicial District, which is not offset by the travel-time adjustment for the other districts. The weighted caseload statistics are not, nor were they intended to be, precise mathematical measurements of need for judicial services. Therefore, when the “spread” in the need for judicial positions between the districts is as narrow as the current statistics reflect, I am not convinced there is a need to transfer the judgeship from the Northwest Judicial District. I suggest that the “spread” be greater than evidenced in this order before the Court considers the transfer on the basis of the weighted caseload statistics alone. Thus, if all other factors were nearly equal I would not vote to transfer this judgeship on the sole basis of the weighted caseload statistics.

[¶ 36] But, I agree with the findings that all other factors are not equal. The demographics clearly portend a greater need for future judgeships in the East Central Judicial District than in the Northwest and the Southeast Judicial Districts. These demographics include not only projected population trends but the age categories within that population. In each instance the inescapable conclusion is that the East Central Judicial District will have an increasing need for judges that exceeds the need of the Northwest Judicial District and the Southeast Judicial District. When that need would cause sufficient “spread” to satisfy my concern about the preciseness of the weighted caseload statistics I do not know. Nor do I know when or where the next vacancy which might be transferred will occur. If I could order the judgeship transferred some period of years in the future, assuming the continuation of the current trends, I would do so. The statutes do not permit — and perhaps should not permit — that solution. I therefore concur in the order transferring the judgeship from the Northwest Judicial District and I concur in the transfer to the East Central Judicial District.

[¶ 37] GERALD W. VANDE WALLE, C.J., concur.


author: VANDE WALLE, Chief Justice. CAROL RONNING KAPSNER, J.

text:
    2001 ND 202
    STATE of North Dakota, Plaintiff and Appellant, v. Richard C. BAUMGARTNER, Defendant and Appellee.
    No. 20010169.
    Supreme Court of North Dakota.
    Dec. 20, 2001.

      Donald R. Becker, State’s Attorney, Linton, ND, for plaintiff and appellant.
    Donavin L. Grenz, Linton, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] The State appealed from an order dismissing two counts of criminal conspiracy to take game in excess of the legal limit charged against Richard C. Baumgartner. The State contends the district court erred in its decision that two undercover wardens were co-conspirators and accomplices to the crime charged. The State further contends the district court erred in its decision Baumgartner was entrapped as a matter of law. We conclude the wardens are not accomplices and Baumgartner was not entrapped as a matter of law. Therefore, we reverse and remand.

[¶ 2] On October 31, 2000 two undercover game wardens, working in cooperation with the North Dakota Game and Fish Department, met with Richard C. Baum-gartner. The wardens discussed State game laws with Baumgartner and hired him to act as a hunting guide for the following two days. On November 1, Baumgartner led the two undercover wardens on a hunt as promised. The wardens had each taken three birds (the legal hunting limit) by 1:30 p.m. For the next three hours, however, Baumgartner further guided the" hunting party; together the wardens took three more birds, thereby exceeding the legal limit. At the end of the day, one of the wardens recorded the day’s bounty with a photograph showing Baumgartner with nine pheasants and three grouse.

[¶ 3] The following day, Baumgartner again guided the two undercover wardens on a hunt. As they did the day before, the wardens took their daily limit of three pheasants each. Also, as before, Baum-gartner continued to guide the hunting party. One of the wardens killed an additional pheasant and again exceeded the legal limit.

[¶4] Baumgartner was charged with two counts of conspiracy to take pheasants in excess of the legal daily limit. He was not charged with illegally taking game. The matter was slated for trial. But at a pretrial telephonic conference, the trial court dismissed the charges.

[¶ 5] The trial court found the wardens were co-conspirators and accomplices. As a result, Baumgartner could only be convicted if, in addition to the testimony of the two wardens, the State presented corroborating evidence. The trial court determined the State was unable to produce such evidence. Further, the trial court found as a matter of law the State had entrapped Baumgartner. The trial court then asked the defense counsel: “I presume you are going to make a motion to dismiss on that basis?” To which the defense counsel responded simply: “Yes.” In turn, the trial court dismissed the case with prejudice.

I

[¶ 6] The North Dakota Century Code authorizes the State to appeal “[a]n order quashing an information or indictment or any count thereof.” N.D.C.C. § 29-28-07(1). "We have consistently held that an order dismissing a criminal complaint, information, or indictment is the equivalent of an order quashing an information or indictment and is therefore appealable under the statute.” State v. Gwyther, 1999 ND 15, ¶ 11, 589 N.W.2d 575. See also State v. Howe, 247 N.W.2d 647, 652 (N.D.1976). A trial court’s decision to dismiss a conspiracy charge, however, will not usually be disturbed unless the trial court abused its discretion. Gwyther at ¶ 12. But questions of law are fully reviewable on appeal. State v. Kenner, 1997 ND 1, ¶ 7, 559 N.W.2d 538.

A

[¶ 7] The State first asserts the trial court erred in finding the wardens were co-conspirators in the effort to take game in excess of the daily limit! Section 12.1-06-04(1), N.D.C.C., provides:

A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy. The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.

[¶ 8] When an undercover law enforcement agent feigns agreement to a course of conduct, he or she is not a co-conspirator. See State v. Rambousek, 479 N.W.2d 832 (N.D.1992). This is because the criminal conspiracy statute requires “an agreement to engage in conduct which constitutes an offense,” as well as the “commission of an overt act to effect an objective of the conspiracy.” State v. Burgard, 458 N.W.2d 274, 279 (N.D.1990). But the term accomplice is not synonymous with co-conspirator, and there is no rule requiring corroboration of a co-conspirator’s testimony. State v. Lind, 322 N.W.2d 826, 842 n. 6 (N.D.1982). Accordingly, whether or not the wardens were accomplices is dispositive of the appeal, and we need not determine whether or not the officers were co-conspirators.

B

[¶ 9] The State argues the wardens were not accomplices to Baumgartner’s alleged crime; therefore, the wardens’ testimony need not be corroborated. This question is fully reviewable on appeal, for when “the facts as to the witness’ culpability are neither disputed nor susceptible of different inferences, then [whether or not one is an accomplice] is a question of law for the court.” State v. Thorson, 264 N.W.2d 441, 442 (N.D.1978).

[¶ 10] Section 29-21-14, N.D.C.C., prohibits the conviction of an accused person on the testimony of an accomplice unless the testimony is corroborated by other evidence. Section 12.1-03-01, N.D.C.C., provides a person is an accomplice when:

a. Acting with the kind of culpability required for the offense, he causes the other to engage in such conduct;
b. With intent that an offense be committed, he commands, induces, procures, or aids the other to commit it, or, having a statutory duty to prevent its commission, he fails to make proper effort to do so; or
c. He is a coconspirator and his association with the offense meets the requirements of either of the other subdivisions of this subsection.

Therefore, one cannot be an accomplice without having the requisite criminal intent for the underlying offense, even if he or she is a co-conspirator. See N.D.C.C. § 12.1-03-01; see also C. Torcia, Wharton’s Criminal Law § 38 at 255 (15th ed.1993). Accordingly, this Court concluded in State v. Currie, 13 N.D. 655, 661, 102 N.W. 875, 877 (1905), that law enforcement officers who feign complicity in a crime in the pursuit of evidence are not accomplices. See also C. Torcía, Wharton’s Criminal Law § 38 at 255 (15th ed.1993).

[¶ 11] In Currie, an undercover detective assisted in burglarizing a business, but with the hidden motive of ferreting out a larger criminal enterprise. 13 N.D. at 661, 102 N.W. at 878. The detective did not induce the criminal activity, but did assist in its commission. Id. Nonetheless, the Court concluded the detective was not an “accomplice in fact” to the crime. Id. The Court explained: “[w]ithout commending this practice, or commenting upon it as dangerous and generally of doubtful propriety, we will say that, if the defendant is shown to have committed the crime in its completeness, the feigned complicity of a detective in the crime should not be a shield to the defendant.” Id.

[¶ 12] The courts of many of our sister States have reached the same result. E.g., Cohea v. Texas, 845 S.W.2d 448, 451-52 (Tex.Ct.App.1993); Oregon v. Hancock, 111 Or.App. 92, 825 P.2d 648, 652 (1992); Marshall v. Arkansas, 27 Ark.App. 287, 770 S.W.2d 177, 177-78 (1989); see also C. Torcia, Wharton’s Criminal Law § 38 at 255 (15th ed.1993).

[¶ 13] In the present case, Baumgart-ner was charged with criminal conspiracy to take game in excess of the legal daily limit. The trial court held the game wardens were accomplices; as a result, the wardens’ testimony must be corroborated if it were to be used at trial. During the conspiracy to take game in excess of the legal limit, the wardens were engaged in an undercover operation to discover crime. The wardens were without criminal intent and thus were not accomplices. Corroborating evidence is therefore unnecessary.

II

[¶ 14] The State also argues the district court erred in finding entrapment as a matter of law. Questions of law are fully reviewable on appeal. State v. Kenner, 1997 ND 1, ¶ 7, 559 N.W.2d 538.

[¶ 15] Section 12.1-05-11(2), N.D.C.C., creates the affirmative defense of entrapment:

A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

[¶ 16] Whether or not one has been entrapped “is almost invariably a question of fact, and a court can only ‘find entrapment as a matter of law where the facts and their inferences supporting a finding of entrapment are undisputed.’ ” State v. Murchison, 541 N.W.2d 435, 441 (N.D.1995) (quoting State v. Nehring, 509 N.W.2d 42, 45 (N.D.1993)). Accordingly, when undisputed facts show that the police used unlawful means to induce the crime, there is entrapment as a matter of law. State v. Kummer, 481 N.W.2d 437, 438 (N.D.1992). The district court found such facts to exist in the present case. But, it is not clear upon the facts before this Court that the police used unlawful means to induce the crime so as to enable us to conclude there is entrapment as a matter of law.

[¶ 17] In State v. Tester we reiterated “ ‘the purpose of a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered.’” 1999 ND 60, ¶ 29, 592 N.W.2d 515 (quoting State v. Howe, 247 N.W.2d 647, 652 (N.D.1976)). In the instant case not only was there a summary trial, there was no motion to dismiss pending when the finding was made by the trial court, thereby, “depriving the fact-finder of its exclusive function of determining factual questions.” State v. Tester, 592 N.W.2d 515, 1999 ND 60, ¶ 29. The question of entrapment was a question of fact for the jury to decide.

[¶ 18] We reverse and remand for further proceedings.

[¶ 19] DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

CAROL RONNING KAPSNER, J.

I concur in the result.

      . Further, even if the wardens were co-conspirators "[i]t is no defense to a prosecution under [the conspiracy statute] that the person with whom such person is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice." N.D.C.C. § 12.1-06-04(4).


author: SABERS, Justice KONENKAMP, Justice GILBERTSON, Chief Justice

text:
    2001 SD 30
    2001 SD 136
    Kelly Lynn JACKSON, Applicant and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Appellee.
    No. 21364.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 25, 2000.
    Reassigned Jan. 17, 2001.
    Decided March 7, 2001.
    Considered on Briefs on Rehearing Oct. 2, 2001.
    Rehearing Decided Nov. 14, 2001.
    Rehearing Denied Jan. 9, 2002.

      Steven R. Binger, Binger Law Office, Sioux Falls, for applicant and appellant.
    Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, for appellee.
   SABERS, Justice

(reassignment on rehearing).

[¶ 1.] The facts underlying this habeas corpus proceeding are set forth in Jackson v. Weber, # 21364, 2001 SD 30, 623 N.W.2d 71 (2001). The state filed a petition for rehearing which was granted on April 18, 2001.

[¶2.] Upon rehearing and rebriefing by the parties, we determine that the second habeas court held a hearing and determined against ineffective assistance of counsel in the first habeas, and that there is not a sufficient showing to overcome that determination. Therefore, we affirm the order of the habeas court which denied the petition.

[¶ 3.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and MILLER, Retired Chief Justice, concur.

SABERS, Justice (on reassignment).

[¶ 4.] Jackson appeals the denial of his petition for habeas corpus relief, which was denied pursuant to SDCL 21-27-16.1 because he failed to raise the jurisdictional issue in his first habeas petition. Jackson claims his initial habeas counsel was ineffective in not raising said issue. Since a person is entitled to effective assistance of counsel under South Dakota law to determine on habeas on one occasion whether he received effective assistance of counsel in the main event, we reverse and remand for a hearing.

FACTS AND PROCEDURE

[¶ 5.] Jackson was convicted of aggravated assault on December 23, 1988. The trial court sentenced him to fifteen years in the state penitentiary. That sentence was suspended and Jackson was placed on three years of probation. On three separate occasions, for various infractions, the State filed motions to revoke Jackson’s suspended sentence. Each time, Jackson was ordered to serve time in the county jail. A fourth motion to revoke was filed on January 29, 1991. As a result of this motion, Jackson was sentenced to 15 years in the State penitentiary on April 1, 1991. At a hearing to modify the sentence on December 9, 1991, the trial court stated:

I’ll stay execution on the balance of his sentence on condition that he abide by the standard probation agreement with the Court Services for a period of three years, that he pay restitution in all cases here in Minnehaha County, that he repay Minnehaha County for his court appointed attorney fees through Court Services.
I’m not positive — I might — I might even stick him on intense [probation], but I’m not sure yet. I haven’t made up my mind. But I’ll let you know before the first if I do that, of course. He’ll have to be accepted and successfully complete intense probation.

On December 31, 1991, the trial court issued a written order suspending the remainder of Jackson’s sentence and placing him into intensive probation, and upon completion of that program, three years of standard probation. On January 17, 1992, Jackson signed a form entitled “Conditions of Intense Probation,” which referenced the December 31, 1991 order. That form provided that the period of probation would be for three years, without mention of an initial period of intense probation.

[¶ 6.] On May 23, 1992, the State moved to revoke Jackson’s probation based on numerous violations. Because of these violations, the trial court ordered Jackson to serve 90 days in the county jail and to remain out of the State of South Dakota for five years from the date of his release. On March 3, 1995, the State moved to revoke Jackson’s suspended sentence, alleging that he had violated his probation when he committed the offenses of false impersonation and resisting arrest. At a hearing on April 24, 1995, the trial court revoked Jackson’s suspended sentence, and reimposed the original fifteen-year sentence. Jackson’s sentence was later reduced to ten years.

[¶ 7.] On March 12, 1997, Jackson filed an application for a writ of habeas corpus. He alleged the revocation of his suspended sentence in 1995 was unconstitutional as a violation of due process. Jackson claimed that the 1992 order revoked the prison sentence, rather than merely suspending it, therefore, no suspended prison sentence remained that could be re-imposed in 1995. This habeas petition was denied on December 9, 1997. The habeas court also denied Jackson’s request for a certificate of probable cause.

[¶ 8.] The present habeas petition was filed on July 20, 1999. This petition alleged that the original trial court lacked jurisdiction to revoke Jackson’s suspended sentence because Jackson’s probation expired on January 1, 1995 and the original habeas counsel was ineffective for failing to assert this jurisdictional error. This allegation of jurisdictional error rested upon the trial court’s statement at the December 1991 hearing that it would stay the balance of Jackson’s sentence, if he completed three years of probation. Jackson claimed that this oral pronouncement was clear and unambiguous as to the length of probation (three years), and that the court’s subsequent written order of three years probation plus intense probation invalidly contradicted its prior oral sentence. The State filed a motion to dismiss the petition based on SDCL 21-27-16.1, which provides as follows:

All grounds for relief available to a petitioner under this chapter shall be raised in his original, supplemental or amended application. Any ground not raised ... may not be the basis for a subsequent application, unless the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original, supplemental or amended application, (emphasis added).

The habeas court granted the State’s motion on December 15, 1999 and Jackson appeals.

STANDARD OF REVIEW

[¶ 9.] Our standard of review for a habeas appeal is well established. Habeas corpus is not a substitute for direct review. Because habeas corpus is a collateral attack upon a final judgment, our scope of review is limited. On habeas review, the petitioner has the initial burden of proof. We review the habeas court’s factual findings under the clearly erroneous standard. Weddell v. Weber, 2000 SD 3, ¶ 13, 604 N.W.2d 274, 279 (quoting Sund v. Weber, 1998 SD 123, ¶ 12, 588 N.W.2d 223, 225) (other citations omitted). Questions of law, however, are reviewed de novo. Jenner v. Dooley, 1999 SD 20, ¶ 11, 590 N.W.2d 463, 468.

[¶10.] UNDER SOUTH DAKOTA LAW, A PERSON IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL TO DETERMINE ON HA-BEAS ON ONE OCCASION WHETHER HE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL IN THE MAIN EVENT. THEREFORE, INEFFECTIVE ASSISTANCE OF COUNSEL ON STATE HABEAS OVERCOMES THE PROCEDURAL BAR OF SDCL 21-27-16.1.

[¶ 11.] To escape the mandate of SDCL 21-27-16.1, a habeas petitioner must generally show “reasonable cause.” To clarify the definition of reasonable cause, we adopted the federal “cause and prejudice” test in Gregory v. Solem, 449 N.W.2d 827, 831 (S.D.1989). Before relief will be granted under that test, a petitioner must show:

1. Cause for his omission or failure to previously raise the grounds for ha-beas relief; and
2. Actual prejudice resulting from the alleged constitutional violation.

To show “cause,” the petitioner “must show that some objective factor external to the defense impeded counsel’s efforts to comply with [SDCL 21-27-16.1].” Id. at 830. The “prejudice” prong requires the petitioner to show “ ‘that [the errors] worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” Id. at 831 (quoting Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397, 412 (1986)) (emphasis in original).

[¶ 12.] It is beyond dispute that our legislature has required that counsel be appointed for indigent prisoners in habeas proceedings. SDCL 21-27-4. Our legislature has spoken in spite of the fact that the United States Constitution does not mandate this requirement. See Coleman v. Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 2567, 115 L.Ed.2d 640, 672 (1991). In light of our legislature’s pronouncement, we must determine the standard to govern an ineffectiveness claim in a habeas appeal.

[¶ 13.] In Krebs v. Weber, there was dicta which indicated that the Strickland standard was not appropriate for determining if the statutory right to counsel had been fulfilled. The State asserts that this dicta mandates that the Gregory, “cause and prejudice test” should govern instances when the right to counsel was statutorily granted.

[¶ 14.] The effective assistance of counsel standard announced in Strickland is well established. As recognized by at least one other court, “it would be absurd to have the right to appointed counsel who is not required to be competent.” Lozada, 613 A.2d at 821; Iovieno v. Comm. of Correction, 242 Conn. 689, 699 A.2d 1003, 1010 (1997). We will not presume that our legislature has mandated some “useless formality” requiring the mere physical presence of counsel as opposed to effective and competent counsel. Lozada, 613 A.2d at 821.

[¶ 15.] The actual holding in Krebs supports this position. As the majority in Krebs noted, “no attorney, even one mounting a textbook perfect all-out effort let alone one who meets the Strickland standard of competence, could have produced a different result.” Krebs, 2000 SD 40, at ¶ 12, 608 N.W.2d at 326; see also Id. at ¶ 21 (Sabers, J., concurring specially in part and dissenting in part). A position that a statutory right to counsel does not mean effective assistance of counsel is at odds with commonsense and our prior analytical framework. In other words, if the appointment of incompetent counsel was adequate in Krebs, there would have been no reason to even consider Strickland, ineffectiveness, or prejudice. To the extent the dicta in Krebs is inconsistent with this opinion, it is overruled.

[¶ 16.] We agree with the rationale employed by the Appellate Court of Illinois when addressing the statutory right to counsel. In the Matter of Carmody, 274 Ill.App.3d 46, 210 Ill.Dec. 782, 653 N.E.2d 977, 983 (1995). In addressing this statutory right, the court concluded that providing a right to counsel implicitly included effective counsel, as required by Strickland. Id. “[T]he legislature could not have intended to provide an individual ... with the right to counsel and to permit that counsel to be prejudicially ineffective.” Id. at 984. After being granted a state right “it would be a hollow gesture serving only superficially to satisfy due process requirements.” Id. (citations omitted). We agree with those courts that have held that than an independent right to effective assistance of counsel arises by statute in post-conviction hearings. See Young v. State, 724 So.2d 82, 83 (Ala.Cr.App.1998); Bejarano v. Warden, 112 Nev. 1466, 929 P.2d 922, 926 (1996); McKague v. Whitley, 112 Nev. 159, 912 P.2d 255, 258 n.5 (1996).

[¶ 17.] We recognize that if habe-as counsel must meet the same competency standards as trial counsel, then more than one claim of ineffective assistance of counsel may be brought on occasion. However, ineffective assistance of counsel at a prior habeas proceeding is not alone enough for relief in a later habeas action. Any new effort must eventually be directed to error in the original trial or plea of guilty. A refusal to acknowledge that the requirement of counsel means constitutionally effective counsel would weaken the habeas mechanism to ensure “as a bulwark against convictions that violate fundamental fairness.” Lozada v. Warden, 223 Conn. 834, 613 A.2d 818, 822 (1992). Jackson’s decision to exercise his right, as provided by state statute, requires this Court to recognize his constitutional substantive due process right to effective assistance of counsel.

[¶ 18.] Our holding must be that the counsel mandated by SDCL 21-27-4 makes it “implicit that this means competent counsel.” Lozada, 613 A.2d at 822. Therefore, the decision to dismiss Jackson’s petition pursuant to SDCL 21-27-16.1 is reversed. Jackson is entitled to a hearing to determine whether his initial habeas counsel was deficient, and, if so, whether it resulted in prejudice under Strickland.

[¶ 19.] Therefore, we reverse and remand for a hearing consistent with this opinion.

[¶ 20.] AMUNDSON, Justice, concurs.

[¶ 21.] KONENKAMP, Justice, concurs specially.

[¶ 22.] GILBERTSON, Chief Justice, and MILLER, Retired Chief Justice, dissent.

KONENKAMP, Justice

(concurring specially).

[¶ 23.] I agree with the majority that when a habeas corpus applicant is statutorily entitled to mandatory appointment of counsel, the appointment implicitly includes the right to effective assistance of counsel. To the extent that my concurrence in Krebs can be understood to say the opposite, then I must regretfully confess my oversight. Like so many judges have said in the past in acknowledging a mistake, all I can say is that having now realized it, I choose not to remain in error.

[¶24.] Although the Strickland standard was created in the Sixth Amendment context, it can adequately serve as a benchmark where the right to counsel is mandated by statute. Strickland provides a rational and practical method for reviewing the performance of habeas counsel. I see no reason to create some new standard to evaluate claims of “statutorily ineffective assistance” as opposed to claims of “constitutionally ineffective assistance.” Strickland has been employed in other types of civil proceedings to evaluate ineffective assistance claims. See e.g., Cogan v. KAL Leasing, Inc., 190 Ill.App.3d 145, 137 Ill.Dec. 396, 546 N.E.2d 20, 25 (1989).

[¶ 25.] Why a right to effective assistance of counsel in habeas proceedings? Perhaps the most important reason is that the Legislature provided a statutory right to counsel for indigent applicants in SDCL 21-27-4. Several courts have held that there is an independent right to effective assistance of counsel in post-conviction proceedings if appointment of counsel is mandated by statute. See e.g., Bejarano v. Warden 112 Nev. 1466, 929 P.2d 922, 925 (1996); McKague v. Warden, 112 Nev. 159, 912 P.2d 255, 258 n.5 (1996) (citations omitted). Cf. Follinus v. State, 127 Idaho 897, 908 P.2d 590, 595-96 (Idaho App.1995)(because Idaho law no longer mandates appointment of post-conviction counsel, there can be no statutory right to effective counsel).

[¶ 26.] I recognize the difficulty presented when habeas counsel must meet the same competency standards as trial counsel: claims of ineffective assistance in earlier proceedings might be raised repeatedly. This problem is mitigated, however, because Krebs still stands for the proposition that ineffective assistance of counsel at a prior habeas proceeding is not by itself grounds for relief in a later habeas proceeding. Incompetence in a habeas case cannot make the original conviction invalid. The habeas remedy is addressed solely to the original conviction. Any new efforts must be directed to error in the criminal trial or plea of guilty. Because a habeas petition challenges the validity of the conviction, the ineffectiveness of habe-as counsel is only germane to the extent that habeas counsel may have failed to elicit the original invalidity.

[¶ 27.] There is one other reason why, when the statute mandates the appointment of habeas counsel, we must require the attorney to be effective. If the defense attorney was ineffective in the original criminal proceeding and habeas counsel was thereafter ineffective in ferreting out the invalidity of the conviction, we may never know if the convicted person had a fair trial or, God forbid, was actually innocent. Our criminal justice system has little value if it cannot differentiate the guilty from the innocent with a high degree of certainty. Successive incompetence can create disaster. We need only consider the recent revelations in Illinois to show how disastrous it can be: half the persons on death row were later proven innocent. I am confident that South Dakota will have no repetition of what happened there. We have a long and honorable tradition of appointing only the most capable and experienced lawyers to represent criminal defendants in capital and other serious cases. We should encourage that tradition.

GILBERTSON, Chief Justice

(dissenting).

[¶28.] Less than one year ago, this Court by a four to one vote in Krebs v. Weber, 2000 SD 40, 608 N.W.2d 322, held that there is no constitutional or statutory right to evaluate the performance of habe-as counsel under the standard set forth solely for criminal actions in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Since that time, there have been no relevant amendments to the applicable constitutional provisions nor state or federal statutes. Neither has there been any decision in the federal courts that would mandate an overturn of Krebs. Yet today, this Court overturns Krebs without any proper basis to do so. Bottom line-nothing has changed except the bottom line.

[¶ 29.] I agree with the Court that there is no federal constitutional or statutory mandate that Strickland is applicable to South Dakota habeas proceedings. Krebs, 2000 SD 40, at ¶¶ 7-9, 608 N.W.2d at 324-5. Likewise, there is nothing in the South Dakota Constitution to support such a claim. Thus, to justify the thesis of the Court, the sole potential source of authority is SDCL 21-27-4. As such, this case is one of statutory construction. SDCL 21-27-4 states:

If a person has been committed, detained, imprisoned or restrained of his liberty, under any color or pretence whatever, civil or criminal, and if upon application made in good faith to the court or judge thereof, having jurisdiction, for a writ of habeas corpus, it is satisfactorily shown that the person is without means to prosecute the proceeding, the court or judge shall appoint counsel for the indigent person pursuant to chapter 23A-40. Such counsel fees or expenses shall be a charge against and be paid by the county from which the person was committed, or for which the person is held as determined by the court. Payment of all such fees or expenses shall be made only upon written order of the court or judge issuing the writ, (emphasis added).

Clearly, no reference to Strickland or anything similar to its holding can be gleaned from the pertinent portions of the statute. The reason is obvious. The relevant part of what is now SDCL 21-27-4 was enacted in 1943. See SL 1943, ch. 126. Portions of the statute not pertinent to this issue were amended in 1969 (SL 1969 ch. 163) and 1983 (SL 1983 ch. 169 § 5). Strickland was not decided by the United States Supreme Court until May 14, 1984. The Court does not explain how the 1943 South Dakota Legislature was able to foresee the 1984 Strickland decision and further intended that it be incorporated into the civil habeas corpus statute it was enacting.

[¶ 30.] As was further pointed out in Krebs, the Legislature’s lack of action since 1984 to incorporate Strickland standards into the habeas statutes is also consistent with the premise it did not want to do so. Krebs, 2000 SD 40, at ¶ 9, 608 N.W.2d at 325. The case is well-known in the criminal area and has fostered numerous cases within this Court as well as nation-wide. Yet, the reaction of the Legislature has been silence. Its 1943 statutory language remains intact.

[¶ 31.] Philosophically, the theory of the Court to apply Strickland to habeas cases obviously has its supporters. It is a rational alternative. However, that policy decision is not one to be made by this Court under the guise of statutory interpretation — it is constitutionally the sole prerogative of the Legislature. This Court has been a champion of upholding the doctrine of separation of powers in guarding against improper encroachments upon its constitutional duties and obligations. We should be equally as zealous to insure we do not fail to grant the same constitutional deference to the Legislature in this instance.

[¶ 32.] Moreover, we are not blowing the dust off of an ancient decision of the earliest days of this Court that can no longer be upheld based on current rules of statutory construction. Rather, we overrule a case upon which the ink is barely dry and in which the same five jurists participated that participate in this case today. I respectfully argue that this Court got it right the first time less than one year ago in Krebs. We would do well to heed the words of Justice Wollman in Daugaard v. Baltic Co-op., 349 N.W.2d 419, 428 (S.D.1984) (Wollman, J., dissenting):

If we were free to strike down statutes willy-nilly on the basis of our personal feelings, the result of the proposed opinion might be justifiable. Once this court, or any other court for that matter, starts down that road, however, I see no end in sight. Although it might well be a heady, enjoyable experience to correct what we may perceive to be unwise, ill-conceived legislation, I see no warrant for us to do so in the absence of palpably unconstitutional legislative action.
[This] decision will do nothing to add to this court’s reputation for constancy, consistency and reasoned elaboration.

[¶ 33J For the above reasons I respectfully dissent.

[¶ 34.] MILLER, Retired Chief Justice, joins this dissent.

      . The dissent's accusation that we are overturning Krebs on a mere whim is absurd. The light in which the dissent reads Krebs evidences the very reason it must be overruled. The dicta in Krebs compromises its real holding.

      . The statute as originally enacted in 1943 stated:
      In any case where a person shall have been committed, detained, imprisoned or restrained of his or her liberty, under any color or pretense whatever, civil or criminal, and where upon application made in good faith to the Court or Judge thereof, having jurisdiction, for a Writ of Habeas Corpus, it is satisfactorily shown that such person is without means to prosecute the proceeding, the Court or Judge shall appoint counsel for such indigent person, and such counsel so appointed, after the disposition of such proceeding, shall be paid a reasonable and just compensation for his services .... (emphasis added).

      . The Court today declares our holding in Krebs to be mere dicta. In so doing it focuses on one sentence taken out of context at the end of the Krebs opinion. However, placed in context, that sentence: "no attorney, even one mounting a textbook perfect all-out effort let alone one who meets the Strickland standard of competence, could have produced a different result” is in reference to the preceding paragraph which discussed the lack of prejudice that resulted from the failure of counsel to file an Anders/Sweeney brief. Krebs, 2000 SD 40, at ¶¶ 11-12, 608 N.W.2d at 325-6. The issue in Krebs, as framed by the Court, stated: "Krebs argues Thompson rendered ineffective assistance of counsel per Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) during his first habeas proceeding_" Id. at ¶ 7, 608 N.W.2d at 324. To claim our decision that Krebs was not entitled to constitutionally effective counsel in his initial habeas petition to be dicta, provides a convenient, yet unpersuasive, explanation to escape the unavoidable conclusion that Krebs had been overruled in its entirety.


author: GORS, Acting Justice.

text:
    2001 SD 139
    ESTATE OF Charles A. FOUNTAIN, Plaintiff and Appellee, v. Ellen (Fountain) SCHROEDER, Defendant and Appellant.
    No. 21859.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2001.
    Decided Nov. 14, 2001.
    Michael A. Hauck of Bangs, McCullen, Butler, Foye & Simmons, Sioux Falls, for appellee.

      Gregory P. Grajczyk of Boos & Grajc-zyk, Milbank, for appellant.
   GORS, Acting Justice.

[¶ 1.] Ellen Schroeder (Ellen) appeals from a judgment ordering her eviction from the property on which she was living and in favor of the Estate of Charles A. Fountain (Estate) for $3,500 for unpaid rent plus interest and costs. We reverse.

FACTS

[¶ 2.] Ellen, Charles Fountain (Charles) and Kevin Fountain (Kevin) are siblings. Ellen moved to Brandon, South Dakota, to care for her parents in 1991. In 1994, Ellen moved her mobile home to an adjacent vacant lot owned by her father (Father) who allowed Ellen to use the lot if she would pay one half of the real estate taxes on both his home and the vacant lot.

[¶ 3.] Mother died in 1995 and Father died April 26, 1999. Father’s will provided that Ellen could buy the lot and Father’s house from the Estate on a contract for deed under specific terms. After Father’s death, Charles became the personal representative of Father’s estate. Charles allowed Ellen to stay on the lot during the probate of the estate under the existing agreement to pay one half of the taxes on both properties.

[¶ 4.] Negotiations between Ellen and the Estate dragged on following Father’s death. Kevin was appointed successor personal representative to Charles. Kevin served Ellen notice on September 28, 2000, demanding $200 per month rent on the lot where her mobile home was located retroactive to Father’s death seventeen months earlier, and $500 per month rent on Father’s house. A total of $3,900.00 was claimed to be due on October 1. When Ellen did not pay, Kevin served a three-day notice to quit on October 13, and commenced an action for forcible entry and detainer (eviction) on October 20.

[¶5.] The trial court held that after Father’s death, Ellen had a month-to-month tenancy but denied the Estate’s claim for retroactive rent. The trial court found Ellen owed $700 per month for the two properties beginning October 1, and gave the Estate a judgment for five months rent in the amount of $3,500.00 plus interest and costs. The trial court also ordered Ellen evicted.

STANDARD OF REVIEW

[¶ 6.] This Court reviews a trial court’s findings of fact under the clearly erroneous standard and will overturn a trial court’s conclusions of law only when the trial court erred as a matter of law. In re Estate of O’Keefe, 1998 SD 92, ¶ 7, 583 N.W.2d 138, 139. “The question is not whether this Court would have made the same finding that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed.” Century 21 Associated Realty v. Hoffman, 503 N.W.2d 861, 864 (S.D.1993) “This Court interprets statutes under a de novo standard of review without deference to the decision of the trial court.” In re Estate of Jetter, 1997 SD 125, ¶ 10, 570 N.W.2d 26, 28. When the issue involves a question of mixed law and fact requiring the application of a legal standard, the court will treat the issue as a question of law subject to de novo review. Permann v. Dep’t of Labor, 411 N.W.2d 113, 119 (S.D.1987).

ANALYSIS AND DECISION

EVICTION

[¶ 7.] Prior to Father’s death, Ellen and Father agreed that Ellen could park her mobile home on the adjacent lot if she cared for Father (and Mother when she was alive) and paid one half of the real estate taxes on both the lot and Father’s house. After Father’s death, Charles, who was the first personal representative of Father’s estate, agreed that Ellen could continue to park her mobile home on the premises during the probate of the estate.

[¶ 8.] The trial court found a month-to-month tenancy under SDCL 43-32-4, which relates to hiring of lodgings. If the trial court was correct, then Ellen was entitled to thirty days notice of any modification of the month-to-month tenancy under SDCL 43-32-13 which provides:

In all leases of lands or tenements or of any interest therein from month to month the landlord may, upon giving notice in writing at least thirty days before the expiration of the month, modify the terms of the lease to take effect at the end of the month....

(emphasis added). Under the trial court’s conclusion that this was a month-to-month tenancy, Ellen was entitled to thirty days notice. She was only given three days notice.

[¶ 9.] We believe the trial court incorrectly concluded that a month-to-month tenancy existed. The lot upon which Ellen placed her mobile home was bare. The tenancy was a hiring of real property, other than lodgings, under SDCL 43-32-3, not a hiring of lodgings under SDCL 43-32-4. Under SDCL 43-32-3 there is a presumption that a hiring of real property, other than lodgings, is for one year, unless otherwise expressed.

[¶ 10.] Before Father’s death, the rental agreement was one half of the real estate taxes and caring for Father. Since Ellen was no longer required to care for Father after his death, Charles told Ellen that she could stay during the probate of the estate if she continued to pay one half of the real estate taxes. This modification of the agreement by the parties changed the tenancy and expressed something other than the statutorily presumed one year. SDCL 43-32-3. The length of time it takes to probate an estate is not definite enough to characterize the tenancy as weekly, monthly or yearly. Therefore, after the modification, the tenancy was for an indefinite period. Under a tenancy for an indefinite period, Ellen was entitled to a one-month notice. SDCL 43-32-15. She was only given three days notice.

[¶ 11.] Under either a month-to-month tenancy or an indefinite tenancy, Kevin’s modification of the rent could not be effective for thirty days. The three-day notice to quit served on October 13, 2000, was based on non-payment of modified rent that could not be due until November 1, 2000. Therefore, the notice was defective and the court could not order Ellen evicted. SDCL 21-16-2; Meservy v. Stoner, 50 S.D. 147, 149, 208 N.W. 781, 782 (1926). We reverse the judgment of eviction.

RENT

[¶ 12.] Ellen was the only witness at trial. On direct examination, she testified:

Q: In addition there is a house?
A: Yes.
Q: You don’t reside there?
A: No.

On cross-examination by the Estate’s attorney, Ellen testified:

Q: [W]hen did you first take possession of the house?
A: We have never taken possession of the house.

Ellen changed the locks and heated the house to protect the contents. She also had some personal items in the house. There was no other evidence that Ellen occupied Father’s house. Therefore, the trial court’s finding that Ellen occupied her Father’s house after his death and should have paid $500 per month rent on her Father’s house is clearly erroneous. SDCL 15-6-52(a).

[¶ 13.] Since Ellen was entitled to one month notice of the modification of rent on the adjacent lot where Ellen’s mobile home was located, the $200 monthly rent could not take effect until November 1, 2000. Once Kevin legally modified the rent, Ellen owed $200 per month rent from November 1, 2000, through February 28, 2001, for a total of $800. We reverse and remand for entry of a money judgment in favor of Estate and against Ellen for $800 plus costs and interest and for further proceedings consistent with this opinion.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

      . SDCL 43-32-4 provides:
      A hiring of lodgings for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of rent. Thus a hiring at a weekly rate of rent is presumed to be for one week. In the absence of any agreement respecting the length of time of the rent, the hiring is presumed to be monthly.