author: MAKING, Justice.

text:
    2008 ND 92
    Shawn M. WALBERG, Plaintiff v. Michael Duane WALBERG, Defendant and Appellee v. State of North Dakota, Intervenor and Appellant.
    No. 20070259.
    Supreme Court of North Dakota.
    May 15, 2008.

      Mark A. Meyer (on brief), Meyer Law Firm, Wahpeton, N.D., for defendant and appellee.
    John Douglas Waller (argued), Special Assistant Attorney General, Fargo, N.D., and James Conner Fleming (on brief), Special Assistant Attorney General, Bismarck, N.D., for intervenor and appellant.
   MAKING, Justice.

[¶ 1] The State of North Dakota, as an intervenor in a child support proceeding, appeals from a sixth amended judgment modifying child support obligations of Shawn and Michael Walberg and from an order denying the State’s post-judgment motion. The State argues the amended judgment violates N.D.C.C. § 14-09-09.33 because the judgment allows an offset of Shawn Walberg’s current or future child support obligation against Michael Wal-berg’s child support arrearages. We hold our child support statutes authorized Shawn Walberg, with court approval, to consent to an agreement about past-due child support. We affirm.

I

[¶2] In June 2006, after Shawn Wal-berg pled guilty to criminal charges and was incarcerated, Michael Walberg moved for a change of custody of the parties’ two minor children. In October 2006, with counsel and court approval, Shawn and Michael Walberg stipulated to a fifth amended judgment that changed primary-physical custody of the Walbergs’ two minor children to Michael Walberg; eliminated his child support obligation, which had been accruing at $875 per month; established Shawn Walberg’s child support obligation for the two minor children at $252 per month, effective June 1, 2006, based upon income imputed to her at a minimum wage; provided that Shawn Walberg’s $252 per month child support obligation would be offset against Michael Walberg’s total child support arrearage, which the district court said was $9,943.33 as of March 2, 2007; and limited Michael Wal-berg’s obligation for arrearages to the offset.

[¶ 3] The State moved to intervene and sought to remove language in the fifth amended judgment that offset Shawn Wal-berg’s future child support obligation against Michael Walberg’s arrearages, claiming N.D.C.C. § 14-09-09.33 specifically limited any offset to past-due support. A judicial referee granted the State’s motion to intervene, but denied the State’s request to . eliminate the offset. The referee said eliminating the offset would be contrary to the best interests of the children because Shawn Walberg would have difficulty making her $252 per month future child support payments and collections against Michael Walberg’s ar-rearages would have the practical effect of taking resources from the custodial parent. The referee said the offset was an alternative arrangement for assuring the regular payment of child support and denied the State’s motion to remove the offset.

[¶ 4] The State sought district court review of the referee’s decision. The court decided N.D.C.C. § 14-09-09.30(2)(b) authorized it to set Michael Walberg’s obligation to pay his arrearages at an amount the court deemed proper because he was an obligor with primary custody of the children, and the court set his obligation to pay his child support arrearages at $300 per month. The court rejected the State’s request to remove the offset for future child support under N.D.C.C. § 14-09-09.33, concluding its decision did not mandate an offset of future support obligations but set Michael Walberg’s obligation for arrearages under N.D.C.C. § 14-09-09.30(2)(b). The court then considered the method of payment under N.D.C.C. § 14-09-09.24(2) and decided there was good cause not to require immediate income withholding because immediate income withholding would not be in the children’s best interests and the parties had previously reached an agreement for an alternative arrangement for the regular payment of child support. The court adopted an alternative pay plan that set Michael Wal-berg’s child support obligation at $300 per month to be applied toward his arrearages and reduced his obligation by Shawn Wal-berg’s $252 per month obligation for current child support. The court said that alternative arrangement resulted in Michael Walberg paying $48 per month to Shawn Walberg through the State Disbursement Unit and decreased his total arrearages by $300 per month until his arrearages were paid in full.

[¶ 5] The State moved for reconsideration, claiming the court did not address the prohibition on the use of other enforcement tools to collect Michael Walberg’s existing arrearages. The court denied the State’s motion.

II

[¶ 6] The State argues the district court erred as a matter of law in allowing an offset of Shawn Walberg’s current or future support against Michael Walberg’s past-due support under N.D.C.C. § 14-09-09.33, which provides that an “obligor’s child support obligation for the current month or for a future month may not be offset by past-due child support.” The State argues the court erred in using the income withholding provisions in N.D.C.C. § 14-09-09.24 to offset current or future support because (1) N.D.C.C. § 14-09-09.33 is a specific statute that precludes offsets of current or future support and prevails over the general provisions of N.D.C.C. § 14-09-09.24; (2) N.D.C.C. § 14-09-09.33 is the more recently enacted statute; (3) N.D.C.C. § 14-09-09.24 addresses a narrow question of whether a child support obligation should be subject to immediate income withholding even if the obligor is not delinquent; and (4) nothing in N.D.C.C. § 14-09-09.24(5) authorizes an alternative arrangement that violates other statutes. The State asserts the court’s finding of good cause not to require immediate withholding under N.D.C.C. § 14-09-09.24(4) is not controlling because any finding of good cause requires proof of timely payment of previously ordered support and the court made no finding here. The State contends N.D.C.C. § 14-09-09.24 does not authorize parents to enter into child support agreements that violate other statutes.

[¶ 7] Michael Walberg responds the court did not err or abuse its discretion in ordering an alternative arrangement for child support. He claims the result in this case is not less money going to the children; rather, the elimination of the offset would result in less money going to the children because of Shawn Walberg’s incarceration and unemployment. Michael Walberg claims all of his arrearages are owed directly to Shawn Walberg and not to the State as reimbursement for past benefits provided by the State to her, and he argues “it appears that the State is engaging in an academic exercise to prove it is right,” contrary to the best interests of the children.

[¶ 8] “Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.” Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. A court errs as a matter of law when it fails to comply with child support requirements. Id. “When a district court may do something, it is generally a matter of discretion.” Id. A district court abuses its discretion if it acts arbitrarily, capriciously, or unreasonably. Id.

[¶ 9] The issue in this case involves an analysis and interpretation of our statutory provisions for child support. Statutory interpretation is a question of law, fully reviewable on appeal. GO Comm. ex rel. Hale v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865. Our primary objective in interpreting a statute is to determine legislative intent. Amerada Hess Corp. v. State ex rel. Tax Comm’r, 2005 ND 155, ¶ 12, 704 N.W.2d 8. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. §§ 1-02-07 and 1-02-38(2). If the language of a statute is clear and unambiguous, “the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. The language of a statute must be interpreted in context and according to the rules of grammar, giving meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1-02-03 and 1-02-38(2). We presume the legislature did not intend an unreasonable result or unjust consequences. N.D.C.C. § 1-02-38(8). We construe statutes to give effect to all of their provisions, so no part of a statute is rendered inoperative or superfluous. N.D.C.C. § 1-02-38(2) and (4). A statute is ambiguous if it is susceptible to different, rational meanings. Amerada, at ¶ 12. If the language of a statute is ambiguous or doubtful in meaning, a court may consider extrinsic aids to determine legislative intent. N.D.C.C. § 1-02-39.

[¶ 10] Section 14-09-09.33, N.D.C.C., authorizes child support offsets for past-due child support in limited circumstances and, at the time of the proceedings in the district court, provided, in part:

1.Notwithstanding section 14-09-09.31, a court may order that a specific amount of past-due child support owed by an obligor to an obli-gee be offset by an equal amount of past-due child support owed to the obligor by the obligee. Au order for an offset is permitted under this subsection only if:
a. The proposed offset is limited to past-due child support and does not apply to child support owed in the current month or owed in any future month;
b. The proposed offset does not include any past-due child support that has been assigned;
c. Neither party whose past-due child support obligation will be reduced or eliminated by the proposed offset owes past-due child support to another obligee; and
d. The opportunity to offset past-due child support under this section has not been used by either party as an incentive to avoid paying child support in the month in which it is due.
2. The order must include a specific finding that the proposed offset serves the best interests of the children to whom the obligor and obli-gee owe a duty of support.
3. Past-due child support owed by an obligor to an obligee may not be offset by past-due child support owed to the obligor by the obligee except as permitted in this section.
4. An obligor’s child support obligation for the current month or for a future month may not be offset by past-due child support or other debts owed to the obligor by an obligee unless the court orders the offset as a method of satisfying an overpayment of child support that results from the establishment or reduction of a child support obligation.

[¶ 11] The State’s argument tracks language of N.D.C.C. § 14-09-09.33, which, literally and by itself, provides some support for the State’s position. However, our child support statutes and guidelines also require a district court to decide the level of child support required in each case. See N.D.C.C. §§ 14-09-09.7 and 14-09-09.30. As relevant to this case, N.D.C.C. § 14-09-09.30 deals with monthly child support obligations and provides:

1. If there is a current monthly support obligation, the total amount of child support due in each month is the sum of the obligor’s current monthly support obligation; and
a. The amount the obligor is ordered to pay toward any outstanding ar-rearage; or
b. If no order to repay an arrearage exists, an amount for application to any arrearage equal to twenty percent of the obligor’s current monthly support obligation; or
2. If there is no current monthly support obligation, the total amount of child support due in each month is:
a. An amount equal to the greater of:
(1) The amount the obligor is ordered to pay toward any outstanding arrearage; or
(2) The sum of the obligor’s most recent monthly support obligation and twenty percent of the obligor’s most recent monthly support obligation;
b. An amount the obligor is ordered to pay toward an arrearage during periods when the supported child resides with the obligor pursuant to a court order; or
c. An amount the obligor is ordered to pay toward an arrearage if that amount is included in an order issued when there is no current monthly support obligation.
3. The total amount of child support due in each month under this section may be increased at the request of the obligor to repay an arrearage or by agreement with the child support agency.

[¶ 12] After the change in custody and elimination of Michael Walberg’s “current monthly support obligation,” he had “no current monthly support obligation” within the meaning of N.D.C.C. § 14-09-09.30(2), and the court had authority to order a monthly support obligation under N.D.C.C. § 14-09-09.30(2)(a),(b), or (c). The use of “or” in a statute is disjunctive and indicates an alternative between different things or actions. State ex rel. Stenehjem v. FreeEats Com, Inc., 2006 ND 84, ¶ 14, 712 N.W.2d 828. Here, the district court ordered Michael Walberg to pay $300 per month toward his arrearages under N.D.C.C. § 14-09-09.30(2)(b). The court also decided Shawn Walberg’s current child support obligation was $252 per month based upon income imputed to her at a minimum wage.

[¶ 13] After deciding the parties’ respective child support obligations, the court addressed the method of payment in the context of immediate income withholding under N.D.C.C. § 14-09-09.24, which provides:

1. Except as provided in subsection 2 or 3, each judgment or order which requires the payment of child support, issued or modified on or after January 1,1990, subjects the income of the obligor to income withholding, regardless of whether the obligor’s support payments are delinquent.
2. If a party to a proceeding, who would otherwise be subject to immediate income withholding under subsection 1, demonstrates, and the court finds that there is good cause not to require immediate withholding, or if the parties, including any assignee of support rights, reach a written agreement that provides for an alternative arrangement for assuring the regular payment of child support, the court need not subject the income of the obligor to immediate withholding.
3. If an obligor, who would otherwise be subject to immediate income withholding under subsection 1 in at least one case in which services are being provided by a child support agency under title IV-D, demonstrates, and a child support agency finds there is good cause not to require immediate income withholding, the child support agency may enter into a written agreement with an obligor that provides for an alternate payment arrangement in lieu of immediate income withholding. Notwithstanding section 14-09-09.13, any failure to comply with an agreement under this subsection subjects the income of the obligor to income withholding under this section. Any obligee aggrieved by a finding of a child support agency under this subsection may seek review of the finding under subsection 2 of section 50-09-14.
4. A finding that there is good cause not to require immediate income withholding under subsection 2 or 3 must be based on at least:
a. A written determination that, and an explanation of why, implementing immediate income withholding would not be in the best interests of the child;
b. Proof of timely payment of previously ordered support, if any; and
c. A requirement that the obligor keep the clerk and the child support agency informed of any employment-related health insurance to which the obligor has access.
5. A written agreement for an alternative arrangement for assuring the regular payment of child support is effective only if the agreement at least, in addition to other conditions the parties agree to:
a. Provides that the obligor shall keep the clerk and the child support agency informed of any employment-related health insurance to which the obligor has access;
b. Describes the provisions by which regular payment of child support is assured; and
c. Is reviewed and approved by the court and entered into the court’s records.

[¶ 14] The district court decided the exception to income withholding in N.D.C.C. § 14-09-09.24(2), which authorizes “an alternative arrangement for assuring the regular payment of child support,” applied and there was good cause not to require immediate income withholding because it would not be in the best interests of the minor children in view of the unemployed status of Shawn Walberg and the parties’ written agreement that provided for an alternative arrangement for assuring the regular payment of child support. Under N.D.C.C. § 14-09-09.24(5), a court must review and approve a written agreement for an alternative arrangement for assuring regular payment of child support, subject to the restrictions in that subsection. As relevant to the parties’ agreement, the plain language of N.D.C.C. § 14-09-09.32 authorizes parental agreements and provides “[a]n agreement purporting to waive past-due child support is void and may not be enforced unless the child support obligee and any assignee of the obligee have consented to the agreement in writing and the agreement has been approved by a court of competent jurisdiction.” Here, Michael and Shawn Walberg, with counsel and with court approval, agreed to the collection and payment options for their child support obligations. The State does not dispute that Michael Walberg’s child support arrearag-es are owed directly to Shawn Walberg without any assignment to the State, and the State has not demonstrated that it is, or should be, in a better position than the mother regarding the parties’ agreement.

[¶ 15] Moreover, during proceedings before the referee, Michael Walberg expressed concern about Shawn Walberg’s ability to pay $252 per month for her current child support obligation. The State argued N.D.C.C. § 14-09-09.33 was clear that offset of current or future support was inappropriate and

If for some reason [Shawn Walberg] goes a couple of months without paying, the statute does authorize with some limitations or some-some thresholds to meet, offset of arrears. So, for instance, if she goes a couple of months without paying, there would be the opportunity to appear before the Court and then offset arrearages. However, offsetting current support is clearly violative of the statute.

Although N.D.C.C. § 14-09-09.33 generally prohibits an offset of current or future child support against past-due support, under the circumstances of this case where the current obligor is incarcerated and income is imputed to that obligor at a minimum wage, the State’s argument would effectively implement an additional layer of proceedings to achieve the practical effect of the court-approved agreement by the parties in this case. The State’s argument would require Michael Walberg to pay a sum of money for arrearages and, after some administrative delay for arrear-ages to accrue against Shawn Walberg, give part of that payment back to him. We decline to sanction an interpretation of our child support statutes that would require an unnecessary layer of bureaucracy at the expense of the children.

[¶ 16] We construe statutes to harmonize them and avoid unreasonable results and unjust consequences. When N.D.C.C. §§ 14-09-09.24, 14-09-09.30, 14-09-09.32, and 14-09-09.33 are construed together to harmonize those statutes and avoid the absurd and ludicrous result of taking resources from a custodial parent and the children under the circumstances of this case, we conclude those statutes authorize the court to approve a written agreement by the parties and any assignee of an obligee for payment for arrearages and alternative pay arrangements that encompass the result reached in this case. Under the circumstances of this case, we conclude the district court did not err in its interpretation and application of the child support statutes.

Ill

[¶ 17] We affirm the amended judgment and the order denying the State’s post-judgment motion.

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

      . Section 14-09-09.33, N.D.C.C., was amended in 2007 to add a new subsection (3) and renumber the remaining subsections. See 2007 N.D. Sess. Laws ch. 148, ¶ 9.


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2008 ND 93
    STATE of North Dakota, Plaintiff and Appellee v. Edward Dana CURTIS, Defendant and Appellant.
    No. 20070249.
    Supreme Court of North Dakota.
    May 15, 2008.

      Cherie LaVonne Clark, Assistant State’s Attorney, Fargo, ND, for plaintiff and ap-pellee.
    Daniel James Borgen, Grand Forks Public Defender Office, Grand Forks, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Edward Curtis appeals the district court’s judgment entered after a jury found him guilty of harassment. Curtis argues there was insufficient evidence to support the conviction and the offending communication is constitutionally protected free speech. We affirm the district court’s judgment.

I

[¶ 2] The facts are undisputed by the parties. On November 22, 2006, Edward Curtis sent a facsimile to many North Dakota attorneys and judges. The heading of the facsimile indicates it is “To: Jeanette Boechler.” Boechler, an attorney in Fargo, received the facsimile and understood that it was intended solely for her. She was disturbed by the content of the facsimile, including the statement:

‘You might be a wall trophy for a screwed victim. It is 100% In your court on when or how I get paid but It will be cash and In your best interest, BEFORE CHRISTMAS. The system has destroyed your minds and it will cost 20 million dollars to fix them BEFORE Christmas or a lot more after. You have 2 choices on how this overthrow happens, It can be peaceful and the money put to good use for the reeducation of this state or It can go another way until you people are trophy mounts on your victims walls.”

Boechler testified she felt threatened with physical harm. The facsimile also included a six page “decloration of eveloution” (sic), an incomprehensible statement ostensibly denouncing the legal system and the government. The facsimile indicated it was from Curtis, though Boechler was not acquainted with anyone by that name.

[¶ 3] After examining the facsimile, Boechler locked the doors to her law practice and called law enforcement. A Fargo police officer met with Boechler. Boechler requested and received a photograph of Curtis so she and other staff members could identify him in case he took further action. The officer telephoned Curtis, who admitted he had sent the facsimile and acknowledged the facsimile could be perceived as threatening. Curtis stated he sent the facsimile to numerous people, not just to Boechler. The officer advised Curtis not to send any additional facsimiles to Boechler. Nonetheless, on January 11, 2007, Boechler received another facsimile from Curtis. The second facsimile was addressed “To: Boechler, Jeanette ... From: Ed Curtis.” This facsimile stated, “You put more in prison than any country in the world. YOU should think on this. YOU will be held personally accountable for it.... I do not care what happens to you.... When this $$ system falls, YOU WILL be under the pile.” Boechler testified she again felt threatened.

[¶ 4] Curtis was charged with harassment under N.D.C.C. § 12.1-17-07. Curtis pleaded not guilty, but was found guilty by a jury. Curtis appeals the judgment, arguing insufficient evidence exists to support the conviction and claiming the facsimile was constitutionally protected speech.

II

[¶ 5] “When reviewing challenges to the sufficiency of the evidence, this Court draws all inferences in favor of the verdict.” State v. Barendt, 2007 ND 164, ¶ 9, 740 N.W.2d 87. We reverse criminal convictions only when, “after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Id. Section 12.1-17-07, N.D.C.C., states: “A person is guilty of an offense if, with intent to frighten or harass another, the person ... [c]ommuni-cates in writing or by telephone a threat to inflict injury on any person, to any person’s reputation, or to any property.” Threats are “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). Jurisdictions differ when considering how this standard is applied. Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 622 (8th Cir.2002). Some determine whether the communication would be considered a threat by a “reasonable person standing in the shoes of the speaker” while others take the point of view of a “reasonable person standing in the recipient’s shoes.” Id. This conflict has not been resolved in North Dakota, but our case law suggests the reasonable recipient test should be used. DeMers v. DeMers, 2006 ND 142, ¶ 13, 717 N.W.2d 545 (victim’s perspective considered in situations of domestic violence).

[¶ 6] Curtis’ communication rises to the level of a threat regardless of whether the reasonable recipient or reasonable sender perspective is used. The language “[y]ou have 2 choices on how this overthrow happens, It can be peaceful ... or It can go another way until you people are trophy mounts on your victims walls” may be reasonably construed as “a threat to inflict injury” on a person. A reasonable person receiving this facsimile could reasonably be frightened particularly when the facsimile appears specifically directed to that person. Even under the reasonable speaker standard, the facsimile could be found threatening. Curtis admitted the facsimile could be perceived as threatening and acknowledged his intention was to “rattle,” “humiliate,” “frighten,” “poke and prod.” Curtis sent a second facsimile after being warned not to send additional facsimiles to Boechler because she felt threatened by them. Drawing all inferences in favor of the verdict, a rational fact-finder could have found Curtis guilty beyond a reasonable doubt. See Barendt, 2007 ND 164, ¶ 9, 740 N.W.2d 87.

Ill

[¶ 7] Whether speech is constitutionally protected is a question of law and should not be submitted to the jury. See Wren v. Spurlock, 798 F.2d 1813, 1818 (10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987); N.D.C.C. § 12.1-31-01(2) (In disorderly conduct cases, the court is charged with determining the validity of a constitutionally protected activity argument. Constitutionally protected evidence shall be excluded.). Generally, a defendant wanting to advance a “constitutionally protected activity” argument must raise it through a motion in limine. State v. Barth, 2005 ND 134, ¶ 10, 702 N.W.2d 1. Evidence found to be constitutionally protected by the court is inadmissible and should be held from the jury. Id. In Barth, a defendant was ultimately allowed to raise his constitutional argument through a Rule 29, N.D.R.Crim.P., motion for judgment of acquittal. Barth, at ¶ 10. This Court, however, noted a motion in limine to exclude the evidence would have been “more effective.” Id.

[¶ 8] Here, Curtis failed to make a motion in limine to the district court. Curtis made a Rule 29 motion at trial, but did not support the motion by arguing the communication was constitutionally protected. Instead, in reference to his Rule 29 motion, Curtis argued, “I think any person rationally reading the entire document would not take it as a threat.” Sev-. eral cursory remarks were made to the jury evoking Curtis’ “entitle[ment] to express his opinion” that “in this country, speech is protected” and that the facsimile contained “protected speech.” The record does not show Curtis made any effort to properly raise the issue to the court or to explain why the facsimile should be designated constitutionally protected speech and withheld from the jury.

[¶ 9] “[Ijssues not raised below, even constitutional issues, generally will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).” State v. Parisien, 2005 ND 152, ¶ 17, 703 N.W.2d 306. “To establish obvious error, the defendant has the burden of establishing plain error that affects substantial rights. Only constitutional error that is ‘egregious’ or ‘grave’ is subject to the obvious error rule.” Id. Because there is little indication in the record that Curtis’ facsimile would be considered constitutionally protected speech, the district court did not egregiously err by failing to raise Curtis’ constitutional argument sua sponte.

[¶ 10] Curtis argues the appellate courts are obligated to review all issues involving constitutionally protected speech on appeal. We disagree. The standard of review for constitutionally protected speech appeals states, “When Free Speech arguments are made, the reviewing court must independently scrutinize the record to see if the charged conduct is protected.” City of Fargo v. Brennan, 543 N.W.2d 240, 243 (N.D.1996). “[A] reviewing court has a constitutional duty to independently examine the record as a whole to assure that the ‘judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Id. This standard of review indicates that a lower court’s determination of whether speech is constitutionally protected is fully reviewable on appeal. This standard does not, however, excuse the defendant from his burden to raise the defense to the lower court so the original determination can be made. See Vallancey v. Hunt, 20 N.D. 579, 585, 129 N.W. 455, 458 (1910) (“If the defendant sets up any independent defense outside the issue raised by the pleadings of the plaintiff, then he assumes the burden of proving that distinct and independent allegation.”).

[¶ 11] Curtis cites several cases he claims support our full review of his free speech claim. These cases, however, exhibit a distinct procedural posture from that here. In Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), for example, Hill was criminally charged with “wilfully or intentionally interrupt[ing] a city policeman” under a city ordinance. Id. at 454, 107 S.Ct. 2502. After his acquittal, Hill brought a separate suit in federal district court challenging the constitutionality of the ordinance. Id. at 455, 107 S.Ct. 2502. Unlike Curtis, Hill was not raising his constitutional claim for the first time on appeal. See also Hurley v. Irishr-American Gay, 515 U.S. 557, 563, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (First Amendment claims raised at trial level); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 892, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (constitutional claims raised, but rejected, at trial court level). Curtis did not raise constitutionally protected speech as a defense before the lower court and, therefore, did not preserve his constitutional argument for review by this Court.

IV

[¶ 12] We conclude sufficient evidence exists to support the jury’s verdict and affirm the district court’s judgment.

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


text:
    2008 ND 95
    Roland C. RIEMERS, Plaintiff and Appellant v. Rick MAHAR, Defendant and Appellee.
    No. 20070232.
    Supreme Court of North Dakota.
    May 15, 2008.

      Roland C. Riemers (pro se), Emerado, N.D., plaintiff and appellant, submitted on brief.
    Nicholas B. Hall, Hodny Currie Lawyers, Grafton, N.D., for defendant and ap-pellee, submitted on brief.
   CROTHERS, Justice.

[¶ 1] Roland Riemers appeals from a summary judgment dismissing his defamation action against Rick Mahar. We conclude Riemers failed to raise genuine issues of material fact about his claim, and we affirm the summary judgment.

I

[¶ 2] The Shared Parenting Initiative was an initiative on the state ballot in the November 2006 general election, which proposed changes to child custody and child support laws. The Family Law Reform Initiative proposed changes to child custody, divorce, domestic violence, and child support laws, but it did not receive enough signatures to be placed on the state ballot for the November 2006 general election. Riemers helped draft the Family Law Reform Initiative and was a proponent of both initiatives.

[¶ 3] Riemers sued Mahar for defamation after Mahar wrote an article published in the Walsh County Record, on September 20, 2006, criticizing the Shared Parenting Initiative and the Family Law Reform Initiative. Mahar’s article also included statements about Riemers and his support of the initiatives:

“I have been following with considerable interest the progress of the Shared Parenting Initiative (SPI) and the Family Law Reform Initiative authored by Mitchell Sanderson and Roland Riemers respectively. Voters may recall that Messrs. Riemers and Sanderson ran for North Dakota Governor/Lt. Governor on the Libertarian ticket in the 2004 election. Mr. Riemers, who ran for Governor, and Mr. Sanderson, who ran for Lt. Governor, lost that one having received a paltry one percent of the votes.
“I have spent hours and hours on the internet, reading blogs, reading newspaper articles, listening to radio talk shows, reading the initiatives, etc. I’ve even heard Mr. Sanderson present at the Walsh County Commission meeting on two occasions. The conclusion that I have reached is that neither Mr. Riem-ers nor Mr. Sanderson have any interest whatsoever in children or families. They are self-absorbed zealots who will stop at nothing to avenge what they perceive to be their ill-treatment by a court system who didn’t happen to see things their way. These initiatives are about power, control, and winning at any cost. They are not about families and children.
“The reader can learn all about Mr. Riemers motives by simply going on line, Googling “Roland Riemers Court Case” and then follow the links to the N.D. 2001 Supreme Court ruling and the 2004 N.D. (Riemers v. Peters-Riemers) Supreme Court ruling.... If one reads, for example, the 2004 Supreme Court decision on his appeals and then the Family Law Reform Initiative one will no longer wonder what might have inspired the Initiative. His success at the Supreme Court was similar to his level of success in his bid for Governor. His attitude seems to be ‘if I do something and it is against the law then the answer is simple — change the lav/. Again, this is opinion.”

Rick Mahar, Kissing the High Ground Goodbye, Walsh County Record, Sept. 20, 2006. Mahar also criticized both initiatives, argued they would hurt families and the state and said, “Perhaps the system needs to be tweaked a little. It does not, however, need to be demolished. These initiatives are not the answer. They are the products of rage and vengeance and are truly the fruit of the poison tree.” The article was submitted to the Associated Press and appeared in various other newspapers throughout the state.

[114] Riemers publicly supported both initiatives. Riemers wrote an article in support of the Family Law Reform Initiative, published in the Grand Forks Herald on May 17, 2006. He was interviewed for an article about the two initiatives, which was published in the Grand Forks Herald on July 24, 2006. Riemers responded to Mahar’s article in a letter published in the Walsh County Record on October 4, 2006, in which he promoted the Shared Parenting Initiative and addressed Mahar’s arguments and criticism. Riemers was also a candidate for the United States Senate in 2006 and wrote about his support for the two initiatives in an article about his candidacy, which was published in the Cavalier County Republican on October 30, 2006.

[¶ 5] Mahar moved for summary judgment, arguing his article does not contain defamatory statements about Riemers, the statements in the article are privileged political speech protected from defamation actions by the federal and state constitutions, and Riemers is a public figure who must show the alleged defamatory statements were made with malice. In support of his motion, Mahar submitted an affidavit explaining his position, a copy of his article, copies of newspaper articles Riem-ers authored, copies of the two initiatives, answers to interrogatories from both Riemers and Mahar, and other evidence.

[¶ 6] Riemers opposed the motion for summary judgment. He argued Mahar’s motion was lacking in substance, summary judgment is not appropriate in defamation cases, Mahar’s article was not privileged communication, Riemers is not a public figure, and Mahar’s statements in the article were defamatory and not merely hyperbole. Riemers did not submit any evidence in support of his argument.

[¶ 7] The district court granted Ma-har’s motion for summary judgment and dismissed the suit. The court considered each statement Riemers claimed was defamatory and concluded the statements either were true or were Mahar’s opinion. The court concluded even if Mahar’s statements could be considered false, the statements are privileged political speech, Riemers is a public figure and was required to provide evidence the defamatory statements were made with actual malice, Riemers failed to present any evidence of malice, and Mahar did not abuse the privilege extended to his statements. The court also noted that Riemers did not present any evidence Mahar’s article caused him to experience hatred, contempt, ridicule or obloquy, that he was shunned or avoided, or that he was injured in his occupation.

II

[¶ 8] Riemers argues the district court erred in accepting Mahar’s motion for summary judgment because the motion was defective and “totally lacking in substance.” Riemers contends the motion denied him a clear direction about what he needed to respond to because the motion states, “This Motion is based upon the accompanying Memorandum Brief, Affidavits, and Exhibits attached herewith, as well as the record on file.” Riemers contends the motion failed to comply with the specificity requirements of the Rules of Civil Procedure.

[¶ 9] Rule 7(b)(1), N.D.R.CivJP., states that a motion “shall be made in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought.” However, a motion may be valid even though it fails to meet the particularity requirement on its face, if supporting papers or briefs filed contemporaneous with the motion detail grounds with specificity. Schaan v. Magic City Beverage Co., 2000 ND 71, ¶ 15, 609 N.W.2d 82; Eisenbarth v. Eisenbarth, 91 N.W.2d 186, 188 (N.D.1958).

[¶ 10] While Mahar’s motion failed to meet the particularity requirement on its face, his accompanying brief detailed the grounds for the motion with specificity. We conclude the district court did not err in accepting Mahar’s motion for summary judgment.

Ill

[¶ 11] Whether summary judgment was properly granted “is a question of law subject to de novo review.” Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 4, 688 N.W.2d 167. “Summary judgment is appropriate if, after viewing the evidence in the light most favorable to the party opposing the motion, there are no genuine issues of material fact or conflicting inferences that can reasonably be drawn from undisputed facts or if the only issues to be resolved are questions of law.” Id. We have explained the burden on the parties when there is a motion for summary judgment:

“Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
“In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.”

Fish v. Dockter, 2003 ND 185, ¶ 15, 671 N.W.2d 819 (quoting Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46).

[¶ 12] Riemers argues the district court erred in concluding that he is a public figure and that he had to prove Mahar’s statements were made with malice because Mahar’s article never identified Riemers as a political candidate or sponsor of the initiatives and because Ma-har was not attacking him as a public figure, and therefore the public figure defamation standard does not apply. He argues the court did not apply North Dakota statutory defamation laws, because North Dakota statutes do not restrict defamation suits against public figures, and if the court had correctly applied the statutory defamation provisions, Riemers met the requirements. He claims the court erred in ruling that it was important Riemers did not present any evidence establishing any facts in dispute, because the only evidence that was necessary was Mahar’s article. Riemers contends the district court erred in making findings of fact about the truthfulness of Mahar’s statements because it made credibility determinations and weighed evidence not appropriate in summary judgment and because whether the statements were made with malice is a question for the jury.

[¶ 13] “Every [person] may freely write, speak and publish his opinions on all subjects, being responsible for the abuse of that privilege.” N.D. Const. Art. I, § 4. However, “[e]very person, subject to the qualifications and restrictions provided by law, has the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to the person’s personal relations.” N.D.C.C. § 14-02-01. Under N.D.C.C. § 14-02-02, defamation includes libel or slander. “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in the person’s occupation.” N.D.C.C. § 14-02-03. Slander is a false and unprivileged publication, other than libel, which:

“1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes to the person the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure the person in respect to the person’s office, profession, trade, or business, either by imputing to the person general disqualifications in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to the person’s office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to the person impotence or want of chastity; or
5. By natural consequence causes actual damage.”

N.D.C.C. § 14-02-04. A publication is not defamatory unless it is false. Bertsch v. Duemeland, 2002 ND 32, ¶ 11, 639 N.W.2d 455. There is no liability for privileged communications because “ ‘some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake.’ ” Riemers, 2004 ND 192, ¶5, 688 N.W.2d 167 (quoting Fish, 2003 ND 185, ¶ 10, 671 N.W.2d 819). A privileged communication is a communication made:

“1. In the proper discharge of an official duty;
2. In any legislative or judicial proceeding or in any other proceeding authorized by law;
3. In a communication, without malice, to a person interested therein by one who also is interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information; and
4. By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof.”

N.D.C.C. § 14-02-05.

[¶ 14] Riemers is correct that there are no special restrictions on defamation actions involving public figures in the North Dakota statutory defamation provisions; however, we can not read our statutes in isolation. The United States Supreme Court has held the First and Fourteenth Amendments of the United States Constitution limit state defamation law in several respects, including defamation actions for statements made about public figures. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Milkovich v. Lorain Journal Co., 497 U.S. 1, 14-15, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990).

[¶ 15] The limits on defamation actions for statements made about public figures exist because of concerns for free speech. False statements are bound to be made in the course of vigorous public debate. Price v. Viking Penguin, Inc., 881 F.2d 1426, 1430 (8th Cir.1989). “ ‘One of the prerogatives of American citizenship is the right to criticize public men and measures.’ Such criticism, inevitably, will not always be reasoned or moderate; public figures ... will be subject to ‘vehement, caustic, and sometimes unpleasantly sharp attacks.’ ” Hustler Magazine v. Falwell, 485 U.S. 46, 51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) (citations omitted). While false assertions have little value, imposing liability for all false statements relating to public figures would have a chilling effect on speech about public figures, and freedoms of expression require breathing room. Id. at 52, 108 S.Ct. 876. Without limitations on defamation actions, destructive self-censorship would occur limiting free speech. Price, 881 F.2d at 1430. Given the importance of the free and open exchange of ideas, a public figure is prohibited from

recovering damages for defamatory criticism unless there is clear and convincing evidence the defamatory statement was made with actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Whether someone is a private or a public figure is a question of law. Lundell Mfg. Co. v. American Broadcasting Companies, Inc., 98 F.3d 351, 362 (8th Cir.1996) (“determination of plaintiffs status is a question of law governed by federal constitutional law”).

[¶ 16] Public figures include nonpublic persons who are ‘“intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.’ ” Gertz, 418 U.S. at 337, 94 S.Ct. 2997 (quoting Curtis Pub. Co. v. Butts, 388 U.S. 130, 162, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)). Public figures generally “enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy”; therefore the state’s interest in protecting private individuals is greater because they lack effective opportunities for rebuttal and are more vulnerable to injury. Gertz, at 344, 94 S.Ct. 2997. Public figures often have assumed roles of special prominence in society’s affairs. Id. at 345, 94 S.Ct. 2997. Some are public figures for all purposes because they occupy positions of such persuasive power and influence. Id. More commonly they have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Id. In either case they invite attention and comment. Id. Because they inject themselves in public controversies, “public figures have voluntarily exposed themselves to increased risk of injury [for] defamatory [statements].” Id.

[¶ 17] There are two types of public figures: an individual who has achieved such “fame or notoriety that he [is] a public figure for all purposes and in all contexts,” and an individual who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” Gertz, 418 U.S. at 351, 94 S.Ct. 2997. An individual should not be deemed a public figure for all purposes unless there is clear evidence of general fame or notoriety in the community and pervasive involvement in society’s affairs. Id. at 352, 94 S.Ct. 2997. To determine an individual’s public figure status we look at the nature and extent of the individual’s participation in the controversy giving rise to the alleged defamation. Id.

[¶ 18] In this case, Riemers is at least a limited purpose public figure. While Riemers may not have sponsored either initiative, he drafted the Family Law Reform Initiative and was one of its main proponents. He voluntarily assumed a role of special prominence in the controversy and sought to influence its outcome. Riemers also had access to channels of effective communication. After Mahar’s article was published, Riemers published an article rebutting Mahar’s allegations and criticism. Riemers also wrote and published various other newspaper articles and gave interviews about the Family Law Reform Initiative and the Shared Parenting Initiative before and after Ma-har’s article was published. The controversy existed prior to Mahar’s article and continued to exist at the time the article was published. Mahar’s article was limited to discussing the controversy and Riemers’ role in the controversy. We conclude Riemers was, as a matter of law, a limited purpose public figure.

[¶ 19] Because Riemers was a public figure, he was required to present clear and convincing evidence Mahar’s statements were false and were made with actual malice. Actual malice is knowledge that the statements are false or that the statements were made with reckless disregard for whether they were false. Gertz, 418 U.S. at 334, 94 S.Ct. 2997. The plaintiff must demonstrate the author had serious doubts about the truth of his publication or had “a high degree of awareness of [the] probable falsity.” Masson, 501 U.S. at 510, 111 S.Ct. 2419. The standard for actual malice “should not be confused with the concept of malice as an evil intent or a motive arising from ... ill will.” Id. There is no genuine issue and the court must grant summary judgment “if the evidence presented ... is of insufficient caliber and quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “ ‘The question whether the evidence in the record in a [public figure] defamation case is sufficient to support a finding of actual malice is a question of law[,]’ ” because in cases raising First Amendment issues, the appellate court has an obligation to examine the whole record and to ensure the judgment does not constitute a forbidden intrusion on free expression. Milkovich, 497 U.S. at 17, 110 S.Ct. 2695 (quoting Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)).

[¶ 20] “Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of their claim and on which they will bear the burden at trial.” Bertsch, 2002 ND 32, ¶ 9, 639 N.W.2d 455. Riemers failed to present any evidence of malice and relied only on the statements in the article. Because Riemers failed to present any evidence of malice, it is presumed such evidence does not exist. See Riemers, 2004 ND 192, ¶ 6, 688 N.W.2d 167. We conclude Riemers failed to raise a genuine issue of material fact about whether the alleged defamatory statements in Mahar’s article were made with actual malice. Therefore the district court properly granted summary judgment.

[¶ 21] Riemers raises several other issues; however, those issues do not affect the outcome of this case, and we will not address them.

IV

[¶ 22] We conclude Riemers was a limited purpose public figure and was required to present evidence raising a genuine issue of fact about actual malice. Riemers failed to meet his burden. We affirm the district court’s summary judgment dismissing Riemers’ defamation action against Mahar.

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


author: VANDE WALLE, Chief Justice.

text:
    2008 ND 98
    Annie M. REOPELLE, Claimant and Appellee v. WORKFORCE SAFETY AND INSURANCE, Appellant and The City of Fargo, Respondent.
    No. 20070240.
    Supreme Court of North Dakota.
    May 15, 2008.

      David A. Garaas, Garaas Law Firm, Fargo, N.D., for claimant and appellee.
    Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, N.D., for appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Workforce Safety and Insurance (“WSI”) appealed from a district court judgment reversing WSI’s decision to deny Annie Reopelle further partial disability benefits arising from a 1990 work-related injury. WSI argues Reopelle’s right to further disability benefits is limited to five years under the version of N.D.C.C. § 65-05-10 enacted in 1991. We conclude Reo-pelle’s right to partial disability benefits is not controlled by the five-year limit because she has incurred a continuous loss of earnings capacity that occurred before July 1,1991. We affirm.

I

[¶ 2] On June 15, 1990, Reopelle suffered a cardiac arrest while employed as a patrol officer by the Fargo Police Department. Reopelle filed a claim for workers compensation benefits in June 1990, which WSI accepted, and she received temporary total disability benefits, effective June 15, 1990. In August 1990, Reopelle was released to return to work “restricted to situations where there is no chance of physical injury. Particularly, she should not return yet to active duty on the street but is cleared for other less potentially dangerous situations.” She returned to work at a desk job with the Fargo Police Department on September 4,1990, and her temporary total disability benefits were terminated, effective September 4, 1990.

[¶ 3] In October 1991, Reopelle was referred to Mayo Clinic for “a second opinion regarding need for long term anti-ar-rhythmie therapy following an episode of sudden cardiac death in June of 1990” and “a second opinion regarding whether she should resume duty on the streets as a police officer.” In November 1991, Reo-pelle underwent implantation of a defibrillator at Mayo Clinic. In February 1992, her treating physician recommended she “should not be assigned to police work involving active duty (‘on the street’).” In February 1992, Reopelle informed WSI that the Fargo Police Department did not have any permanent positions for officers unable to work patrol activities and she had decided to take a medical retirement from the Fargo Police Department. Reo-pelle’s temporary total disability benefits were reinstated, effective January 24, 1992.

[¶ 4] After an October 1992 work tolerance assessment and functional capacities assessment, Reopelle’s treating physician indicated Reopelle could return to work in a “clerical position or desk job if one could be identified,” but she could not return to work “in the capacity of a police officer.” In April 1993, Reopelle was offered a position as an “office associate I-water billing/payroll” with the City of Fargo. According to Reopelle, she refused the position due to her pregnancy and her claim about stress at that job. Based upon the offered position, WSI awarded Reopelle partial disability benefits on July 26, 1993, finding the offered position was her first appropriate rehabilitation option and her refusal was for reasons unrelated to her work injury. WSI awarded Reo-pelle partial disability benefits under N.D.C.C. § 65-05-10, based upon the difference between her pre-injury earnings of $514 per week and her post-injury earnings capacity of $286.15 per week. On February 24, 1994, WSI also awarded Reopelle permanent partial impairment benefits under N.D.C.C. § 65-05-12, based upon WSI’s determination that Reo-pelle had suffered a permanent partial impairment of “70% Whole Body for Cardiac.”

[¶ 5] In May 1996, WSI reopened vocational rehabilitation services for Reopelle, and she underwent a functional capacities assessment that determined she was capable of “light work.” Reopelle’s treating physician agreed with the results of that assessment. On February 10, 1997, WSI issued an order awarding Reopelle partial disability benefits under N.D.C.C. § 65-05-10, based upon her pre-injury earnings of $514 per week and her post-injury retained earnings capacity of $298.40 per week.

[¶ 6] In December 2005, WSI issued a notice of intent to discontinue Reopelle’s partial disability benefits, effective January 5, 2006, which stated WSI had paid her partial disability benefits for longer than the five-year limit provided by a 1991 amendment to N.D.C.C. § 65-05-10. Reo-pelle requested reconsideration, claiming the five-year limit for partial disability benefits was not applicable to her claim because that limit was enacted after her 1990 work injury. WSI issued an order denying Reopelle further partial disability benefits, and she requested an administrative hearing.

[¶ 7] After an administrative hearing, an administrative law judge (“ALJ”) recommended affirming WSI’s decision. The ALJ said N.D.C.C. § 65-05-10 placed a five-year limit on temporary disability benefits for loss of earning capacity occurring after June 30, 1991. The ALJ concluded that although Reopelle was initially injured in June 1990, her right to disability benefits was not vested on the date of her injury because that right was dependent on future events that were not certain. The ALJ said Reopelle did not establish a loss of earning capacity until after the effective date of the statutory enactment of the five-year limit for claims occurring after June 30, 1991. WSI adopted the ALJ’s recommendation, and Reopelle appealed to the district court.

[¶ 8] The district court reversed WSI’s decision, citing three factors for deciding entitlement to partial disability benefits under Wendt v. North Dakota Workers Comp. Bureau, 467 N.W.2d 720, 727 (N.D.1991) and stating that, at the time of her injury, Reopelle had a physical disability, was able to work subject to the disability, and had an actual loss of earnings capacity. The court concluded Reopelle had a right to partial disability benefits that had vested before the 1991 enactment of the five-year limit for partial disability benefits and WSI erred in applying the five-year limit retroactively to deny Reopelle continued partial disability benefits.

II

[¶ 9] On appeal from the district court’s decision, we review an administrative agency’s decision in the same manner the district court reviewed the agency’s decision, giving due respect to the analysis and review by the district court. Swenson v. Workforce Safety & Ins. Fund, 2007 ND 149, ¶ 21, 738 N.W.2d 892. We must affirm the agency order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46. We exercise restraint in deciding whether WSI’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings of fact or substitute our judgment for that of WSI. Swenson, at ¶ 22. Rather, we determine only whether a reasoning mind reasonably could have decided WSI’s findings were proven by the weight of the evidence from the entire record. Id. Questions of law, however, are fully réviewable on appeal from an administrative decision. Tedford v. Workforce Safety & Ins., 2007 ND 142, ¶ 7, 738 N.W.2d 29. The interpretation of a statute is a question of law. Rojas v. Workforce Safety & Ins., 2006 ND 221, ¶ 13, 723 N.W.2d 403.

Ill

[¶ 10] WSI argues the district court erred in its application of the five-year limit for partial disability benefits in N.D.C.C. § 65-05-10. WSI asserts application of the five-year limit does not abrogate a vested right because Reopelle’s right to partial disability benefits was not vested at the time of her injury and could change over time. Reopelle responds that her right to receive partial disability benefits is governed by the law in effect at the time of her 1990 injury, which did not include a five-year limit on the duration of partial disability benefits.

[¶ 11] Unless otherwise provided, statutes in effect on the date of injury govern a claimant’s right to collect workers compensation benefits. Sjostrand v. North Dakota Workers Comp. Bureau, 2002 ND 125, ¶ 14, 649 N.W.2d 537; Tangen v. North Dakota Workers Comp. Bureau, 2000 ND 135, ¶ 12, 613 N.W.2d 490; Saari v. North Dakota Workers Comp. Bureau, 1999 ND 144, ¶ 10, 598 N.W.2d 174. That rule is an outgrowth of the requirement that statutory provisions are not retroactive unless “expressly declared to be so.” N.D.C.C. § 1-02-10; White v. Altru Health Sys., 2008 ND 48, ¶ 20, 746 N.W.2d 173 (applying N.D.C.C. § 1-02-10 and Reiling v. Bhattacharyya, 276 N.W.2d 237 (N.D.1979) and stating statutory directive is clear that “[i]f a statute is to be retroactive, the Legislature must expressly declare it to be so”). However, a statutory provision may not operate retroactively to abrogate a vested right or a valid obligation. N.D.C.C. § 1-02-30; Tedford, 2007 ND 142, ¶ 17, 738 N.W.2d 29; Sjostrand, at ¶ 14; Saari, at ¶ 10; Gregory v. North Dakota Workers Comp. Bureau, 1998 ND 94, ¶¶ 32-33, 578 N.W.2d 101. A vested right is an immediate or fixed right to present or future enjoyment that does not depend upon an event that is uncertain. Sjostrand, at ¶ 14; Saari, at ¶ 10; Jensen v. North Dakota Workers Comp. Bureau, 1997 ND 107, ¶ 11, 563 N.W.2d 112. A common thread connecting our cases about retroactive application of statutes and vested rights is that statutes may not be retroactively applied to discontinue or reduce benefits that a claimant had been receiving, or already had a vested right in receiving. Saari, at ¶ 17.

[¶ 12] At the time of Reopelle’s 1990 work injury, there was not a five-year limit on the length of time an injured worker could receive partial disability benefits, and an injured worker’s disability compensation was set at a percentage of the difference between the worker’s pre-injury average weekly wages and the worker’s post-injury wage earning capacity in the same or other employment. N.D.C.C. § 65-05-10 (1989). In 1991, the legislature amended N.D.C.C. § 65-05-10 to enact a five-year limit for partial disability benefits “effective for partial loss of earnings capacity occurring after June 30, 1991.” 1991 N.D. Sess. Laws ch. 714, § 47. The 1991 version of N.D.C.C. § 65-05-10 provided, in relevant part:

If the injury causes temporary partial disability resulting in decrease of earning capacity, the compensation is sixty-six and two-thirds percent of the difference between the injured employee’s average weekly wages before the injury and the employee’s wage earning capacity after the injury in the same or another employment.
7. Benefits must be paid during the continuance of partial disability, not to exceed a period of five years. The bureau may waive the five-year limit on the duration of partial disability benefits in cases of catastrophic injury as defined in section 65-05.1-06. This subsection is effective for partial loss of earnings capacity occurring after June 30, 1991.

Section 65-05-10, N.D.C.C., currently provides, in part:

If the injury causes temporary partial disability resulting in decrease of earning capacity, the disability benefit is sixty-six and two-thirds percent of the difference between the injured employee’s average weekly wages before the injury and the employee’s wage-earning capacity after the injury in the same or another employment. Partial disability benefits are subject to a maximum of one hundred ten percent of the average weekly wage in the state. The combined partial disability benefits, dependency allowance, and postinjury wage-earning capacity may not exceed the preinjury weekly wage of the employee after deductions for social security and federal income tax.
2. Benefits must be paid during the continuance of partial disability, not to exceed a period of five years. The organization may waive the five-year limit on the duration of partial disability benefits in cases of catastrophic injury as defined in section 65-05.1-06.1 or when the injured worker is working and has long-term restrictions verified by clear and convincing objective medical and vocational evidence that limits the injured worker to working less than twenty-eight hours per week because of the compensable work injury. This subsection is effective for partial loss of earnings capacity occurring after June 30,1991.

[¶ 13] The issue in this case is the meaning and effect of the language in N.D.C.C. § 65-05-10 that the five-year limit for partial disability benefits “is effective for partial loss of earnings capacity occurring after June 30, 1991.” Our primary goal in interpreting a statute is to ascertain legislative intent. Witcher v. North Dakota Workers Comp. Bureau, 1999 ND 225, ¶ 11, 602 N.W.2d 704. We initially seek to ascertain legislative intent from the language of the statute itself, giving the words in the statute their plain, ordinary, and commonly understood meaning. N.D.C.C. § 1-02-02; Witcher, at ¶ 11. Statutes are construed as a whole to harmonize them and give meaning to each word and phrase, if possible. N.D.C.C. § 1-02-07; Witcher, at ¶ 11. If a statute is ambiguous, extrinsic aids may be used to construe the statute to determine legislative intent, including the object sought to be obtained, the legislative history, and the administrative construction of the statute. N.D.C.C. § 1-02-39; Olson v. Workforce Safety & Ins., 2008 ND 59, ¶ 14, 747 N.W.2d 71. A statute that is susceptible to different but rational meanings is ambiguous. Ash v. Traynor, 2000 ND 75, ¶ 6, 609 N.W.2d 96.

[¶ 14] The plain language of N.D.C.C. § 65-05-10 authorizes partial disability for decreased earning capacity, calculated as the difference between the injured worker’s pre-injury average weekly wage and the worker’s post-injury wage earning capacity and provides that the five-year limit for partial disability benefits is “effective for partial loss of earnings capacity occurring after June 30, 1991.” Although N.D.C.C. § 65-01-02(14) defines “disability” to mean “loss of earnings capacity and may be permanent total, temporary total, or partial,” the relevant language of N.D.C.C. § 65-05-10 explicitly refers to “loss of earnings capacity” and earnings capacity itself is not defined by our statutes. We have recognized, however, that earnings capacity is different from actual earnings or wages and is a more theoretical concept that is based on a claimant’s capacity or ability to earn wages. Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶ 13, 658 N.W.2d 337; see also Arthur Larson, Larson’s Workers’ Compensation Law § 81.01[1] (2007). The plain language of N.D.C.C. § 65-05-10 also requires the loss of earnings capacity to occur after June 30, 1991. When those statutory requirements are construed together, we conclude the plain language of N.D.C.C. § 65-05-10 requires application of the five-year limit on disability benefits when an injured worker’s partial loss of capacity to earn wages happens after June 30,1991.

[¶ 15] Although WSI may review disability claims at any time, the plain language of N.D.C.C. § 65-05-10 does not textually refer to determinations regarding entitlement to disability benefits. See Sjostrand, 2002 ND 125, ¶ 15, 649 N.W.2d 537 (stating WSI may review disability determinations at any time under N.D.C.C. § 65-05-04 to decide whether a recipient remains disabled and entitled to benefits and holding determination of continuing disability should be based on the law in effect when the determination is made and not in effect at the time of the injury). Neither does the plain language of N.D.C.C. § 65-05-10 textually refer to disability determinations “irrespective of the date of injury.” See N.D.C.C. § 65-05-08(5) (“provisions of this section apply to any disability claim asserted against the fund on or after July 1, 1991, irrespective of injury date”). Moreover, the language of N.D.C.C. § 65-05-10 also does not textually refer to when WSI issues a decision establishing a recipient’s earning capacity. Rather, the five-year limit of N.D.C.C. § 65-05-10 is explicitly “effective for partial loss of earnings capacity occurring after June 30, 1991.” We construe the plain language of the five-year limit for partial disability benefits to apply when the partial loss of earnings capacity occurs after June 30,1991. If a claimant has a continuous partial loss of earning capacity that occurs before July 1, 1991, the five-year limit on partial disability benefits is not applicable. That interpretation is consistent with the common thread in our jurisprudence about vested rights that a statute may not be retroactively applied to discontinue or reduce benefits that a claimant has been continuously receiving, or already has a vested right in receiving. Saari, 1999 ND 144, ¶ 17, 598 N.W.2d 174.

[¶ 16] Here, the evidence indicates that Reopelle sustained a loss of earnings capacity in June 1990. Reopelle returned to work at a modified position with work restrictions in September 1990, and her condition and earnings capacity could have changed after her work injury without abrogating a vested right. See Sjostrand, 2002 ND 125, ¶ 15, 649 N.W.2d 537 (discussing WSI’s continuing jurisdiction to review claimant’s condition). There is no evidence in this record, however, that after Reopelle’s June 1990 work injury, she ever regained the capacity to earn what she was earning as a police officer at the time of her June 1990 work injury. WSI issued orders in July 1993, and in February 1996, which reflected her post-injury earnings capacity was less than her pre-injury wages, and WSI’s decisions belie any conclusion that, after her work injury, Reopelle ever regained her capacity to earn what she had been earning as a police officer at the time of her work injury.

[¶ 17] We conclude Reopelle did not have a loss of earnings capacity occurring after June 30, 1991, within the meaning of N.D.C.C. § 65-05-10. We therefore conclude the five-year limit of N.D.C.C. § 65-05-10 does not apply to Reopelle’s continuing entitlement to partial disability benefits, and we hold the district court did not err in reversing WSI’s order.

IV

[¶ 18] Because of our resolution of this issue, we need not address Reopelle’s separate argument that N.D.C.C. § 65-05-08 requires WSI to pay disability benefits for the entire duration of her injury, or her argument about attorney fees.

V

[¶ 19] We affirm the district court judgment.

[¶ 20] ROBERT 0. WEFALD, D.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.

[¶ 21] The Honorable ROBERT O. WEFALD, D.J., sitting in place of CROTHERS, J., disqualified.

      . As originally introduced in 1989, proposed amendments to N.D.C.C. § 65-05-10 imposed a five-year limit on partial disability benefits; however, that limit was deleted during the legislative process. Hearing on H.B. 1128 Before House Industry, Business and Labor, 51st Legis. Sess. (Feb. 15, 1989); see 1989 N.D. Sess. Laws ch. 770, § 3.


text:
    2008 ND 87
    Kenneth Paul HOOVER, Petitioner and Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20070258.
    Supreme Court of North Dakota.
    May 15, 2008.

      Michael Ray Hoffman, Bismarck, N.D., for petitioner and appellant.
    Michael Trent Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appel-lee.
   CROTHERS, Justice.

[¶ 1] Kenneth Paul Hoover appeals from a judgment affirming the Department of Transportation’s suspension of his driving privileges for 180 days for driving under the influence of alcohol. We conclude there was sufficient evidence to establish that Hoover was the driver of a vehicle involved in a hit and run accident and that a police officer did not violate Hoover’s Fourth Amendment rights by making a warrantless entry into Hoover’s bedroom. We affirm.

I

[¶ 2] At 9:50 p.m. on March 3, 2007, Nicole Heintz was driving south on north Washington Street in Bismarck and stopped in the left turn lane to turn east on Boulevard Avenue. While Heintz was stopped, a “little red ... kind of a sports car” turning north from Boulevard Avenue struck the front of her vehicle and continued north until it became stuck in snow along the side of the road. Heintz noted the license plate number, called police with her cell phone, and then saw that the red car was leaving, heading north. It was dark at the time, and Heintz and a witness to the accident were unable to identify the driver of the red car or ascertain whether the car contained any other occupants. The witness saw the red car turn east on Sioux Avenue. Officer Jerry Stein from the Bismarck Police Department arrived on the scene at 9:55 p.m. Heintz and the witness told Stein what had happened and gave him the license plate number. Stein ran the license plate number through dispatch and learned the vehicle was a 1993 Ford Probe registered to Hoover who lived on north Washington Street about one and one-half blocks from the scene of the accident. Stein went to Hoover’s address but did not see the red car.

[¶ 3] Stein knocked on the door of the house, and Hoover’s son answered. Hoover’s son’s girlfriend was also in the room. Hoover soon came to the door. Stein told him he was investigating a motor vehicle accident and asked him if he was okay. Stein believed Hoover was “very intoxicated” because:

“[Hoover] [h]ad a difficult time standing. Kept leaning against the walls, doors, to maintain his balance, almost falling over several times. His speech was very slurred. He had a hard time understanding my questioning. His eyes were glazed over and bloodshot. I could detect a strong odor of alcohol ... respi-rated alcohol coming from his breath.”

Hoover told Stein he had not been driving that evening. Stein asked Hoover if he could see the car, and Hoover “invited me into the house to look at the vehicle,” which was parked in an attached garage. According to Stein, Hoover “actually opened the door, ... and he stepped aside and said ... motioned for me to come on in.”

[¶ 4] At the administrative hearing, Stein described what followed:

“OFFICER STEIN: [B]oth he and I walked over to the garage, and then the garage was about five steps down to the garage that were steep. And he couldn’t walk down them due to his intoxication, so he stayed at the top of the steps, while I looked at the vehicle and could see damage to the front driver’s side portion. I touched the hood, and it was warm to the touch, and I could feel steam radi ... or heat radiating from it. There was also mist in the garage, as though, I believe it was radiator fluid that was leaking and then dispersing into the air.
MS. VARVEL: Any other observations? [OFFICER STEIN]: I continued to ask him what was going on, and if he was hurt, and he kept on trying to get away from me to get to his bedroom. That’s when he told me he was at Los Amigos and had a couple of shots. So then he said he had to get his registration card out of his bedroom, which was up about five steps from where the entrance to the garage is.
MS. VARVEL: Then what happened? OFFICER STEIN: As we got to his bedroom, he stumbled over to his dresser, grabbed a bottle of whiskey off the top of the dresser, which was ... it was on the other side from the bedroom, ten to twelve feet away. Took the cork off the bottle of whiskey, and at that time I grabbed the bottle out of his hand, and he pulled away from me. And I took the bottle of whiskey from him before he had a chance to drink anything from it and forcibly took him to the ground in straight arm bar.
MS. VARVEL: What happened next? OFFICER STEIN: I was able to achieve compliance through a pressure-point control tactic, and I handcuffed Mr. Hoover and told him he was under arrest for DUI. That’s when he stated that he’d F’d up.”

Hoover consented to a blood test which was taken at 10:56 p.m. The results showed a blood-alcohol concentration of .26 percent.

[¶ 5] Following the administrative hearing, the Department suspended Hoover’s driving privileges for 180 days. The hearing officer concluded Stein had reasonable grounds to believe Hoover had been driving under the influence of alcohol in violation of N.D.C.C. § 39-08-01 at “the time he was involved in a two-vehicle accident as a driver.” Hoover appealed to district court, arguing there was insufficient evidence he was driving and arguing Stein illegally entered his bedroom without a warrant. The district court ruled Stein had probable cause to arrest Hoover for driving under the influence and Hoover’s constitutional rights were not violated when Stein entered his bedroom.

II

[¶ 6] Our review of an administrative suspension of a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Brewer v. Ziegler, 2007 ND 207, ¶ 4, 743 N.W.2d 391. We will affirm the agency’s decision unless:

“1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do “not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.”

N.D.C.C. § 28-32-46.

[¶ 7] This Court “review[s] an appeal from the determination of an administrative agency based only on the record filed with the court.” N.D.C.C. § 28-32-46. We do “ ‘not make independent findings of fact or substitute our judgment for that of the agency’ when reviewing an administrative agency’s factual findings.” Sayler v. North Dakota Dep’t of Transp., 2007 ND 165, ¶ 7, 740 N.W.2d 94 (quoting Kiecker v. North Dakota Dep’t of Transp., 2005 ND 23, ¶ 8, 691 N.W.2d 266). “We determine only whether a reasoning mind reasonably could have determined the factual conclusions reached were proved by the weight of the evidence from the entire record.” Sayler, at ¶ 7. “ ‘If the hearing officer’s findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law, we will not disturb the decision.’ ” Brewer, 2007 ND 207, ¶ 4, 743 N.W.2d 391 (quoting Borowicz v. North Dakota Dep’t of Transp., 529 N.W.2d 186, 187 (N.D.1995)). “[W]e ... review questions of law de novo.” Sayler, at ¶ 7.

A

[¶ 8] Hoover argues the Department erred in concluding Officer Stein had reasonable grounds to believe that Kenneth Hoover had been driving under the influence.

[¶ 9] One of the determinations the Department must make to suspend a driver’s license under N.D.C.C. § 39-20-05(2) is “whether the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle” while under the influence of alcohol. The term “reasonable grounds” used in N.D.C.C. § 39-20-05 is synonymous with the term “probable cause.” Rist v. North Dakota Dep’t of Transp., 2003 ND 113, ¶ 15, 665 N.W.2d 45; Henderson v. Dir., North Dakota Dep’t of Transp., 2002 ND 44, ¶ 8, 640 N.W.2d 714. “ ‘Probable cause to arrest exists when the facts and circumstances within police officers’ knowledge and of which they have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed.’ ” Rist, at ¶ 15 (quoting Henderson, at ¶ 8). Knowledge of facts sufficient to establish guilt is not necessary to establish probable cause. State v. Berger, 2004 ND 151, ¶ 11, 683 N.W.2d 897. The totality of the circumstances must be considered. Id. “[T]he hearing officer’s ultimate determination that the facts found meet the legal standard that the arresting officer had reasonable grounds to believe [a person] had been driving a vehicle in violation of section 39-08-01 is a question of law fully reviewable on appeal.” Stanton v. Moore, 1998 ND 213, ¶ 10, 587 N.W.2d 148.

[¶ 10] Hoover argues the evidence is insufficient because the witnesses to the accident were unable to identify the driver and because he told Stein he had not been driving that evening. However, eyewitness testimony is not necessary to establish reasonable grounds to believe a person was driving under the influence; circumstantial evidence is sufficient. See Stanton, 1998 ND 213, ¶¶ 14-16, 587 N.W.2d 148; State v. Rieger, 281 N.W.2d 252, 255 (N.D.1979); State v. Emmil, 172 N.W.2d 589, 591 (N.D.1969).

[¶ 11] Here, the witnesses described the vehicle involved in the accident and told Stein the vehicle’s license plate number and where the vehicle was driven after the accident. Stein was aware the vehicle was being driven erratically because the driver failed to negotiate a right turn at the intersection without hitting another vehicle and subsequently became stuck in snow. The vehicle was registered to Hoover, who lived close to the scene of the accident. Arriving at the house, Stein found Hoover to be extremely intoxicated. There is no evidence the other persons in the house were intoxicated. Stein saw the freshly damaged vehicle in the garage. Although Hoover denied driving that evening, neither his son nor his son’s girlfriend claimed to have driven the vehicle, and Hoover presented no evidence who the driver may have been. See Stanton, at ¶ 15.

[¶ 12] Hoover told Stein he had consumed alcohol at a restaurant that evening, indicating he had to have returned home in some manner. After Stein viewed the damaged vehicle, Hoover told him he would retrieve his vehicle registration card which he claimed was located in his bedroom, an unlikely place to store a registration card. See N.D.C.C. § 39-04-55 (“The registration card issued for a vehicle must be carried in the driver’s compartment of the vehicle ... at all times while the vehicle is being operated upon a highway in this state.”). Hoover attempted to get away from Stein. Once Hoover reached the bedroom, he attempted to drink from a whiskey bottle. A reasonable person could interpret Hoover’s effort to ingest more alcohol as an attempt to mask his blood-alcohol level at the time of the accident. See, e.g., State v. Miller, 530 N.W.2d 652, 656 (N.D.1995); City of Bismarck v. Preston, 374 N.W.2d 602, 603 (N.D.1985); State v. Falk, 434 N.W.2d 364, 365-66 (N.D.Ct.App.1989).

[¶ 13] We conclude the totality of the circumstances in this case supports the hearing officer’s determination that Stein had reasonable grounds to believe Hoover was driving the vehicle under the influence of alcohol at the time of the accident.

B

[¶ 14] Hoover argues Stein’s warrant-less entry into his bedroom violated his Fourth Amendment rights.

[¶ 15] Unreasonable searches and seizures are prohibited by the Fourth Amendment. U.S. Const, amend. IV; State v. Mitzel, 2004 ND 157, ¶ 11, 685 N.W.2d 120. “ ‘[Warrantless searches and seizures inside a home are presumptively unreasonable.’ ” State v. Kochel, 2008 ND 28, ¶ 7, 744 N.W.2d 771 (quoting State v. Kitchen, 1997 ND 241, ¶ 13, 572 N.W.2d 106). Consent and exigent circumstances are exceptions to the warrant requirement. City of Fargo v. Lee, 1998 ND 126, ¶¶ 9-10, 580 N.W.2d 580. To be effective, consent must be voluntarily given under the totality of the circumstances and “must not be coerced by explicit or implicit means or by implied threat or covert force.” State v. Avila, 1997 ND 142, ¶ 16, 566 N.W.2d 410. We have defined exigent circumstances as “ ‘an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.’ ” State v. Matthews, 2003 ND 108, ¶ 14, 665 N.W.2d 28 (quoting City of Jamestown v. Dardis, 2000 ND 186, ¶ 15, 618 N.W.2d 495). The Department has the burden of establishing an exception to the warrant requirement. State v. Graf, 2006 ND 196, ¶ 9, 721 N.W.2d 381.

[¶ 16] Hoover does not dispute he consented to Stein’s entry into his home. Indeed, Hoover opened the door, stepped aside, and motioned for Stein to “come on in.” Hoover argues, however, that he gave Stein permission to enter his home only to view his car in the garage and that his permission did not extend to having Stein follow him and enter his bedroom. Although the Department did not argue the scope of Hoover’s consent to Stein to enter the home to view the vehicle in the garage included following him to his bedroom, the - district court concluded, “[h]aving observed Hoover and having been invited into Hoover’s house by Hoover, the officer did not violate any constitutional right of Hoover as the officer was legally in the house.” But see Mitzel, 2004 ND 157, ¶ 15-18, 685 N.W.2d 120 (defendant’s invitation to officers to enter apartment did not necessarily constitute voluntary consent to go to back bedroom). Rather, the Department argues exigent circumstances authorized Stein to follow Hoover and to enter his bedroom. We need not decide whether the scope of Hoover’s consent extended to the bedroom or whether exigent circumstances existed, because under the circumstances, there is an independent basis that justified Stein’s actions.

[¶ 17] In Washington v. Chrisman, 455 U.S. 1, 3, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982), the United States Supreme Court considered “whether a police officer may, consistent with the Fourth Amendment, accompany an arrested person into his residence and seize contraband discovered there in plain view.” In Chrisman, a police officer observed an apparently under-aged college student leave a dormitory carrying a half-gallon bottle of gin, in violation of state law. Id. The officer stopped him and asked for identification; the student said he would have to retrieve it from his dormitory room. Id. The officer said he would have to accompany the student, and the student replied, “OK.” Id. The officer accompanied the student to his room, eventually entered the room, and discovered drugs in plain view. Id. at 3-4, 102 S.Ct. 812. The Washington Supreme Court held, although the student had been placed under lawful arrest and the officer could properly accompany the student to his room, the officer had no right to enter the room and examine or seize contraband without a warrant. Id. at 5, 102 S.Ct. 812.

[¶ 18] The Supreme Court reversed, concluding “the officer had placed [the student] under lawful arrest, and therefore was authorized to accompany him to his room for the purpose of obtaining identification. The officer had a right to remain literally at [the student’s] elbow at all times; nothing in the Fourth Amendment is to the contrary.” Chrisman, 455 U.S. at 6, 102 S.Ct. 812 (footnote omitted). The Supreme Court rejected the contention that exigent circumstances were required for the officer to enter the dormitory room:

“We disagree with this novel reading of the Fourth Amendment. The absence of an affirmative indication that an arrested person might have a weapon available or might attempt to escape does not diminish the arresting officer’s authority to maintain custody over the arrested person.” See Pennsylvania v. Mimms, 434 U.S. 106, 109-110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Robinson, 414 U.S. 218, 234-236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Nor is that authority altered by .the nature of the offense for which the arrest was made.
“Every arrest must be presumed to present a risk of danger to the arresting officer.” Cf. United States v. Robinson, supra, at 234, n. 5, 94 S.Ct. 467. There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger. Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious. Although the Supreme Court of Washington found little likelihood that [the student] could escape from his dormitory room, an arresting officer’s custodial authority over an arrested person does not depend upon a reviewing court’s after-the-fact assessment of the particular arrest situation. Cf. New York v. Belton, 453 U.S. 454, 458-460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); United States v. Robinson, supra, at 235, 94 S.Ct. 467.
“We hold, therefore, that it is not ‘unreasonable’ under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer’s need to ensure his own safety — as well as the integrity of the arrest — is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested.”

Id. at 6-7, 102 S.Ct. 812 (footnote omitted). Although the defendant in Chrisman had been formally arrested, several courts have since applied Chrisman’s reasoning to allow a police officer to accompany a suspect into dwellings in situations in which probable cause existed but formal arrests had not yet occurred. See, e.g., State v. Mayfield, 10 Kan.App.2d 175, 694 P.2d 915, 918 (1985) (although defendant had not been formally arrested, he had been “seized” for Fourth Amendment purposes when asked for his identification, and officers could lawfully accompany him into his apartment); State v. Diercks, 674 S.W.2d 72, 79 (Mo.Ct.App.1984) (although defendant had not been formally placed under arrest, officers had identified marijuana plants and read defendant his Miranda rights and therefore “had a right and a duty to monitor the defendant’s movements” in home where bag of marijuana was found); Washington v. Commonwealth, 29 Va.App. 5, 509 S.E.2d 512, 516 (1999) (once officer has reasonable suspicion of criminal activity to stop and identify defendant, the officer may stay with defendant to keep him in sight, including accompanying defendant into rooms or premises); Conway v. Commonwealth, 12 Va.App. 711, 407 S.E.2d 310, 314-15 (1991) (same); Servis v. Commonwealth, 6 Va.App. 507, 371 S.E.2d 156, 161-62 (1988) (same); cf. State v. Overby, 1999 ND 47, ¶ 8, 590 N.W.2d 703 (warrantless search preceding arrest is reasonable under the Fourth Amendment “so long as probable cause to arrest existed before the search, and the arrest and search are substantially contemporaneous”).

[¶ 19] In this case, Stein crossed the threshold of the home with Hoover’s consent and had the opportunity to view Hoover’s actions and demeanor at all times. Hoover invited Stein into his home to view the damaged vehicle through the home’s entrance to the garage. Hoover appeared to Stein to be intoxicated and Hoover admitted drinking that evening at a restaurant. Hoover remained at the top of the stairs and acted suspiciously. Stein was becoming apprehensive. According to Stein, Hoover “kept on wanting to go back in the house, and I didn’t want to lose contact with him.” Hoover told Stein he needed to retrieve the vehicle registration card from the bedroom, which is not a normal place to keep the registration card. We conclude that, at this point in the encounter, Stein had probable cause to believe Hoover had been driving under the influence of alcohol. Whether Stein believed probable cause existed is irrelevant. “ ‘An officer’s subjective intent plays no role in ordinary probable cause Fourth Amendment analysis.’ State v. Washington, 2007 ND 138, ¶ 17, 737 N.W.2d 382 (quoting State v. Leher, 2002 ND 171, ¶ 11, 653 N.W.2d 56). When probable cause exists to arrest a suspect and all that remains is the imminent formality of the arrest, the principles of Chrisman should apply. Cf. Overby, 1999 ND 47, ¶ 8, 590 N.W.2d 703 (“ ‘if the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested ..., there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest’ ” (citation omitted)). Because Stein had probable cause to arrest Hoover, Stein “had a right to remain literally at [Hoover’s] elbow at all times.” Chrisman, 455 U.S. at 6, 102 S.Ct. 812. Consequently, Stein did not violate Hoover’s Fourth Amendment rights by following him into the bedroom without a warrant.

Ill

[¶ 20] The judgment is affirmed.

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