author: KAPSNER, Justice.

text:
    2004 ND 93
    Thad James WETSCH, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20030254.
    Supreme Court of North Dakota.
    May 5, 2004.

      Justin D. Roness (argued), Timothy Q. Purdon (appeared), and Thomas A. Dickson (on brief), Dickson & Purdon, Bismarck, ND, for petitioner and appellant.
    Andrew Moraghan, Assistant Attorney General, Bismarck, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Thad James Wetsch appeals from a district court judgment affirming an administrative hearing officer’s revocation of Wetsch’s driving privileges for one year. We affirm.

I.

[¶ 2] On May 10, 2003, Officer Tim Bleth of the Mandan Police Department clocked Wetsch’s vehicle driving 36 miles per hour in a 25 mile per hour zone. Officer Bleth continued to follow the vehicle, which reached speeds of over 50 miles per hour. The vehicle eventually stopped. When Officer Bleth approached, both driver and passenger were standing outside the vehicle. Bleth recognized Wetsch as the driver.

[¶ 3] As the officer questioned Wetsch, he detected an odor of alcohol coming from his breath. Wetsch admitted he had consumed alcohol that evening. Officer Bleth had Wetsch perform three field sobriety tests, all of which Wetsch failed. Officer Bleth issued the implied consent advisory. Wetsch refused to submit to an onsite screening test, but agreed to submit to a blood test. Officer Bleth placed Wetsch under arrest for driving under the influence of intoxicating liquor and transported him to the Morton County Law Enforcement Center.

[¶ 4] Mandan Police Department policy requires a registered nurse or other medically qualified individual draw blood at the Morton County Law Enforcement Center in the Intoxilyzer room. At the time of Wetsch’s arrest, a registered nurse was present at the Law Enforcement Center capable of administering the test. Wetsch refused to allow the nurse to draw blood stating he preferred to have the blood drawn in a medical environment such as a hospital.

[¶ 5] At the administrative hearing, the hearing officer found reasonable grounds existed for the officer to believe Wetsch had committed a moving violation, and Wetsch had been driving under the influence of intoxicating liquor. The hearing officer concluded Wetsch refused to submit to an onsite screening test. The hearing officer concluded it was reasonable for the Mandan Police Department to draw Wetsch’s blood at the Law Enforcement Center because the procedure was to be performed by a registered nurse who was medically qualified to draw blood. The hearing officer further concluded Wetsch did not have a proper basis to refuse to submit to the blood test and revoked his driving privileges for one year.

[¶ 6] Wetsch appealed the hearing officer’s decision to the district court. The district court affirmed the hearing officer’s decision. Wetsch appeals to this Court.

II.

[¶ 7] The first issue is whether Wetsch’s refusal to submit to an onsite screening test justifies revocation of his license for one year. At the time of his arrest, Wetsch refused to submit to an onsite screening test, the SD-2 test. Under the plain language of N.D.C.C. § 39-20-14, refusal to submit to a field screening test violates North Dakota’s implied consent law:

Any person who operates a motor vehicle upon the public highways of this state is deemed to have given consent to submit to an onsite screening test or tests of the person’s breath for the purpose of estimating the alcohol content of the person’s blood upon the request of a law enforcement officer who has reason to believe that the person committed a moving traffic violation or was involved in a traffic accident as a driver, and in conjunction with the violation or the accident the officer has, through the officer’s observations, formulated an opinion that the person’s body contains alcohol.

The punishment for refusing consent to any of the chemical tests is revocation of an individual’s license for one year on a first offense. N.D.C.C. § 39-20-04(l)(a). The plain language of the statute provides a basis for revoking Wetsch’s license. An individual’s refusal to submit to a chemical screening is a violation of the statute. Wetsch’s initial refusal to submit to an onsite chemical screening is alone sufficient to revoke his license for one year. Based on Wetseh’s refusal to submit to the SD-2 test, the hearing officer had sufficient grounds to revoke Wetsch’s driver’s license for one year.

III.

[¶ 8] The next issue raised by Wetsch is whether his refusal to submit to a blood test when drawn by a medical profession in a law enforcement environment, rather than in a hospital, was unreasonable. We hold his refusal was unreasonable under these circumstances.

[¶ 9] An appeal from the district court’s review of a hearing officer’s decision of license suspension is governed by the Administrative Agencies Practice Act. N.D.C.C. ch. 28-32. This Court does not review the district court’s decision, but reviews the record and decision rendered by the agency. Kouba v. N.D. Dep’t of Transp., 1999 ND 233, ¶ 4, 603 N.W.2d 696 (citing Dworshak v. Moore, 1998 ND 172, ¶ 6, 583 N.W.2d 799). The North Dakota Century Code provides for judicial review of agency decisions:

A judge of the district court must review an appeal from the determination of an administrative agency based only on the record filed with the court. After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court must affirm the order of the agency unless it finds that any of the following are present:
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.
If the order of the agency is not affirmed by the court, it must be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the order of the court.

N.D.C.C. § 28-32-46.

[¶ 10] This Court’s review of an agency decision is limited. Larson v. N.D. Dep’t of Transp., 1997 ND 114, ¶ 9, 564 N.W.2d 628 (citing McPeak v. Moore, 545 N.W.2d 761, 762 (N.D.1996)). A hearing officer’s findings of fact are supported by a preponderance of the evidence if they were reasonably made from the weight of the entire evidence. Larson, at ¶ 9 (citing Pavek v. Moore, 1997 ND 77, ¶4, 562 N.W.2d 574).

[¶ 11] In this case, Wetsch claims that his request to have blood drawn at a medical facility, rather than at the Intoxilyzer room at the Morton County Law Enforcement Center, is reasonable and supported by case law. The applicable North Dakota statute provides:

Only an individual medically qualified to draw blood, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcohol, drug, or combination thereof, content therein. The state toxicologist shall determine the qualifications or credentials for being medically qualified to draw blood, and shall issue a list of approved designations including medical doctor and registered nurse. This limitation does not apply to the taking of breath, saliva, or urine specimen. The person tested may have an individual of the person’s choosing, who is medically qualified to draw blood, administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer with all costs of an additional test or tests to be the sole responsibility of the person charged. The failure or inability to obtain an additional test by a person does not preclude the admission of the test or tests taken at the direction of a law enforcement officer. Upon the request of the person who is tested, a copy of the operational checklist and test record of a breath sample test or analytical report of a blood, urine, or saliva sample test taken at the direction of the law enforcement officer must be made available to that person by the law enforcement agency that administered the test or tests.

N.D.C.C. § 39-20-02. The plain language of the statute provides that a medically qualified person may draw blood for the purpose of determining the alcohol content and further indicates a registered nurse is medically qualified to make the draw. Id.

[¶ 12] Wetsch argues the United States Supreme Court decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) supports his right to have blood drawn in a medical facility rather than at the Law Enforcement Center. We disagree.

[¶ 13] In Schmerber, an individual was arrested for suspicion of driving under the influence, but had to be taken immediately to a hospital for medical treatment. Id. at 758-59, 86 S.Ct. 1826. Upon arrival at the hospital, the arresting officer requested the physician draw a blood sample for alcohol testing. Id. at 759, 86 S.Ct. 1826. The defendant argued the blood draw was an unreasonable search and seizure because it was completed without a warrant. Id. The Court held that the draw was reasonable because extraction of blood for alcohol testing is effective and the procedure involves little to no risk. Id. at 771-72, 86 S.Ct. 1826.

[¶ 14] Wetsch relies heavily on the Schmerber case to argue it is reasonable to demand that blood may be drawn only in a medical facility and may not be drawn in a law enforcement setting. This reliance is misplaced. In Schmerber, the Court ultimately held that extracting a blood sample from an individual suspected of driving under the influence was proper because it was performed in a reasonable manner. Schmerber, at 771, 86 S.Ct. 1826. Wetsch argues the Court held that for an extraction to be reasonable it must take place in a medical facility. This is an improper characterization of the ruling. In Schmer-ber, the Court stated:

[T]he record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

Schmerber, at 771-72, 86 S.Ct. 1826.

[¶ 15] Wetsch attempts to use the suggestion by the Schmerber Court that if a police officer took the blood in a police facility, such procedure may have an effect on whether an individual’s objection to the withdrawal is reasonable. However, this suggestion does not provide the requisite inference for Wetsch to successfully argue the Supreme Court established a two-prong test for reasonable blood extraction. The Court merely speculated that if blood were to be drawn in a law enforcement setting by a police officer, not a medical professional, then personal risk of infection and pain may be too great. Schmerber, at 771-72, 86 S.Ct. 1826.

[¶ 16] Wetsch argues Schmerber holds there is a two-step process which must be followed when law enforcement officials collect blood. First, the blood must be drawn by a person medically qualified. Second, the blood must be drawn in a medical setting, such as a hospital. However, other jurisdictions have considered this issue in the context of Schmerber and expressly rejected the notion that blood must be drawn in a hospital setting. See State v. Sickler, 488 N.W.2d 70, 73 (S.D.1992) (rejecting the argument that blood tests must be performed in a hospital in order to qualify as reasonable); see also State v. Daggett, 2002 WI App 32, ¶ 15, 640 N.W.2d 546 (holding that drawing blood in a non-medical environment is reasonable under Schmerber).

[¶ 17] Wetsch’s reliance on Schmerber to argue that a blood draw incident to arrest must be performed by a medically qualified individual in a hospital is incorrect. In Schmerber, the Court did not establish a requirement that blood be drawn in a hospital in order to be reasonable. The Schmerber Court merely recognized that there may be circumstances where a blood draw may be unreasonable because of an “unjustified element of personal risk of infection and pain.” Schmerber, at 772, 86 S.Ct. 1826. This record is lacking any suggestion that such risks existed. Wetsch testified at the hearing and the hearing officer asked him to “be more specific about what concerned [him].” Wetsch responded, “[t]he entire process. The entire process of it not being a hospital, sanitary condition.” Our legislature has addressed the concerns announced in Schmerber for risk of infection and pain by requiring a medically qualified person make the draw. When a medically qualified person is available and the record shows no other evidence of a justifiable reason to refuse a blood test, the demand to be taken to a hospital as a condition for the draw constitutes a refusal under N.D.C.C. ch. 39-20.

IV.

[¶ 18] We affirm.

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


source: Caselaw Access Project

author: KAPSNER, Justice. SANDSTROM, Justice,

license: Public Domain

text:
    2004 ND 90
    STATE of North Dakota, Plaintiff and Appellant v. Darin TWEETEN, Defendant and Appellee.
    No. 20030151.
    Supreme Court of North Dakota.
    May 5, 2004.

      Brandi Sasse Russell, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellant.
    Wayne D. Goter of Goter Law Office, Bismarck, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] The State appeals from an Order of Dismissal of Information with Prejudice. We reverse the district court ruling and remand for further proceedings.

I.

[¶ 2] On December 10, 2002, Darin Tweeten was served with criminal information alleging he committed felony child abuse and neglect of his minor child. The trial was originally set for May 28, 2003. On May 27, 2003, the district court contacted the State’s Attorney’s office and notified it that scheduling conflicts necessitated the trial be moved to May 29, 2003. The State released its witnesses. The district court moved the trial to May 29, 2003, and notified the parties. The State informed the district court it could not comply with the May 29, 2003, trial date.

[¶ 3] Subpoenas issued to the State’s witnesses specified the date and time set for trial as May 28, 2003. Some of the witnesses were members of Tweeten’s family and uncooperative. Upon notification that the trial would have to be moved, the State moved the district court to reconsider its scheduling. The State notified the district court it was unable to re-issue subpoenas to the witnesses for May 29, 2003, because the sheriff could not deliver the subpoenas in such a short time. In addition to the difficulty in re-issuing subpoenas to the witnesses, the State informed the district court there were no State’s Attorneys available on May 29, 2003, to present the case due to other hearings and court obligations. The district court denied the motion to reconsider on May 28, 2003, and notified the State it would conduct the trial on May 29, 2003.

[¶ 4] On May 28, 2003, after the district court’s denial of the original motion to reconsider, the State filed a motion to dismiss the charges without prejudice so the State could drop the charges and recharge the defendant at a later date. On May 28, 2003, the district court denied the motion to dismiss and the district court informed the State it would only dismiss the charges with prejudice. Upon the district court’s denial of the motion to dismiss without prejudice, the State requested a supervisory writ to this Court on May 29, 2003, for a ruling on the issue. This Court did not take any action on the State’s petition for supervision.

[¶ 5] On May 29, 2003, the State refused to proceed at trial due to the premature release of its witnesses. The district court granted the defendant’s request and dismissed the case with prejudice. The State filed this appeal.

II.

[¶ 6] The State contends it was an abuse of discretion for the court to dismiss the case with prejudice as a sanction for the state being unable to proceed on the rescheduled court date. Dismissal of a criminal case is governed by N.D.R.Crim.P. 48, which provides:

(a) By Prosecuting Attorney. No criminal case pending in any court shall be dismissed by any prosecuting attorney except upon motion and with the court’s approval. Such a motion shall be supported by a written statement concisely stating the reasons for the motion. The statement shall be filed with the record of the case and be open to public inspection. A dismissal may not be ordered during the trial without the defendant’s consent.
(b) By the Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information, or complaint.

Although North Dakota’s Rule 48 follows Fed.R.Crim.P. 48, it was adapted from Rule 48 of Colorado Rules of Criminal Procedure (1964). N.D.R.Crim.P. 48 (explanatory note). Accordingly, this Court has previously looked to Colorado for guidance. State v. Graff, 484 N.W.2d 855, 858 (N.D.1992).

[¶ 7] A district court’s dismissal with prejudice is reviewed for an abuse of discretion. People v. Lichtenstein, 630 P.2d 70, 72 (Colo.1981). A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable way. Healy v. Healy, 397 N.W.2d 71, 75 (N.D.1986). At common law, the general rule was that a prosecuting attorney had full discretion to determine whether it would prosecute a criminal case. Graff, at 858 (citing United States v. Ammidown, 497 F.2d 615, 620 (D.C.Cir.1973)). However, with the introduction of the federal rule and similar state rules, courts have some supervisory power over the prosecution of a case. Lichtenstein, at 72-73.

[¶ 8] “Generally, the prosecuting attorney is considered to be in the best position to evaluate the charges and the evidence to determine if prosecution should continue.” Graff, at 858 (citing United States v. Salinas, 693 F.2d 348, 350 (5th Cir.1982)). The prosecutor is presumed to be acting in good faith when requesting a dismissal. Graff, at 858. A prosecutor’s decision to move forward with charges is not absolute but is subject to review by the district court. See Graff, at 858; United States v. Greater Blouse, Skirt & Neckwear Contractors Ass’n, 228 F.Supp. 483, 486 (S.D.N.Y.1964) (explaining the rule exists to prevent abuse).

[¶ 9] Although the district court has some supervisory control over dismissals, the district court should not dismiss a case with prejudice unless the court has had an opportunity to determine issues of bad faith, harassment, or misconduct. Graff, at 859. In Graff, the prosecution was unwilling to move forward because one of the witnesses was found to be unreliable and the defendant had recently disclosed an alibi witness. Id. at 856. The State requested the district court dismiss the case without prejudice so that the prosecution could bring charges at a later date. Id. The district court denied the motion and the State appealed to the North Dakota Supreme Court for a supervisory writ. Id. This Court determined that even though the transcript indicated a potential basis for harassment, the district court should have held a hearing or made explicit findings to determine whether the State’s request to dismiss without prejudice was made in bad faith. Id. at 859.

[¶ 10] A finding of harassment would justify a dismissal with prejudice; however, the finding of harassment must be clearly supported with clear and convincing evidence. Graff, at 858. In this case, the district court did not make any specific findings about whether there was bad faith or harassment on the part of the prosecution. The transcript of a conference in chambers provides the basis for the motion to dismiss:

THE COURT: Miss Russell, are you prepared to start picking the jury?
MS. RUSSELL: As I indicated, the State is not prepared to continue in this matter at this time.
THE COURT: You are not going to proceed at 9:00 o’clock when we have the jury?
MS. RUSSELL: We cannot proceed at this time.
THE COURT: You are not going to proceed is that it?
MS. RUSSELL: What I am saying is that we can’t because our witnesses are not present at this time.
THE COURT: Why aren’t they?
MS. RUSSELL: Because we were [unable]—
THE COURT: Did you try to call any of them?
MS. RUSSELL: Yes, we did, Your Honor.
THE COURT: Do you have some record of calling these people? Who wouldn’t appear, Miss Russell? Would you place that on the record?
MS. RUSSELL: That I haven’t had actual voice contact with these people.
THE COURT: Do you make personal voice contact or do you allow a secretary to do that?
MS. RUSSELL: Generally both.
THE COURT: What would happen in this case?
MS. RUSSELL: Generally both. Generally our secretary would call and cancel the witnesses and we would get the subpoena to re-subpoena.
THE COURT: Why did she cancel the witnesses in this case when they knew they were due for the second? Why? Why do you have to reserve [a] new subpoena? I don’t understand that? Why isn’t a subpoena good until they’re released from the subpoena?
MS. RUSSELL: It’s my understanding it’s for that date.
THE COURT: What happened for that day? Is there some case law that you know that a subpoena is only good for the day that you subpoena them to come?
MS. RUSSELL: I guess that’s just been the practice that it’s on that date. That’s what one would assume.
THE COURT: They weren’t required to show up yesterday. Apparently there was messages left that the trial was being cancelled for that date and time so in other words you released the people from the subpoena.
MS. RUSSELL: That’s correct.
THE COURT: Voluntarily. The State did that voluntarily?
MS. RUSSELL: Once we were notified that there was not going to be a trial on that date.
THE COURT: That is you were notified the trial was the next day, correct. But no you don’t [have to] re-subpoena. Show me some case law that says—
MS. RUSSELL: I guess my understanding is if there was no subpoena reissued we could.
THE COURT: Actually, if they did — if they when they showed up couldn’t you hand them another subpoena, counsel?
MS. RUSSELL: I would submit that’s misuse of process.
THE COURT: The Judge has moved the trial date. Why is that a misuse?
MS. RUSSELL: Because we are having them appear for a time.
THE COURT: And then you can cite me for ethically violating my standards instead of worrying about you misusing process. You can blame it on the Judge. You people are looking for an excuse and that’s all for letting your secretary release people when you had nothing to do with it. You have someone out in the secretarial office who makes the decisions for the State’s Attorney’s office. That’s what you have and I don’t think you released any of them personally.
MS. RUSSELL: I personally did not release any of these.
THE COURT: We will close the record. I will expect you down there in two minutes. If you are not going I will honor whatever motion it is that Mr. Goter wishes to make.

[¶ 11] At the start of the trial, the State did not appear and Tweeten’s attorney made a motion to dismiss the case with prejudice. The district court granted the motion.

[¶ 12] Tweeten argues Graff is inapplicable to the one at bar, because it was an application for a writ, rather than an appeal from an actual dismissal with prejudice. We fail to see the distinction.

[¶ 13] The rule from Gratis still applicable to the current case, because Tweeten argues the State is acting in bad faith with an intent to harass the defendant. This Court’s ruling in Graff was that a dismissal with prejudice should only be used in extraordinary cases where the district court has clearly found evidence of prosecutorial abuse. No such finding has been made in this case nor has prosecutorial abuse been demonstrated by clear and convincing evidence.

[¶ 14] In State v. Bolen, 270 Kan. 337, 13 P.3d 1270 (2000), the Kansas Supreme Court held a trial court may only dismiss a case with prejudice when interests of justice require such action. Bolen, at 1274. In Bolen, the prosecutor refused to comply with a court discovery order. Id. at 1271. The trial court then dismissed the charges with prejudice as a sanction for the State being unable to proceed. Id. at 1272. The Kansas court held such power should be exercised with great caution and only in cases where dismissal was the only remedy to protect against prosecutorial abuse. Id. at 1274. The Bolen court warned that dismissal with prejudice may serve to punish the public and provide a windfall for the defendant. Id. (citing State v. Davis, 266 Kan. 638, 972 P.2d 1099 (1999)). It is an abuse of discretion to dismiss a case with prejudice when there has been no showing of a prosecutor’s misconduct, and alternative means of sanctioning the prosecutor exist. Bolen, at 1274.

[¶ 15] Tweeten argues Bolen is distinguishable from this case because the dismissal in Bolen occurred during the pretrial stages, at a suppression hearing. Tweeten argues allowing the prosecution to re-enter charges and force the defendant to repeat the booking and pretrial processes would cause a burden and constitute harassment. Tweeten argues there is a basis for harassment and prosecutorial misconduct. We disagree. No finding of harassment, abuse, or prosecutorial misconduct was made by the district court at any time prior to its dismissal pf the charges with prejudice.

[¶ 16] Dismissal with prejudice is a remedy that should only be used in extreme circumstances. Bolen, at 1274. The district court did not make a finding of harassment or prosecutorial misconduct as required by case law. State v. Graff, 484 N.W.2d 855, 858 (N.D.1992). The district court’s dismissal of the case was an abuse of discretion because the court did not make the requisite finding of bad faith or harassment on the part of the prosecution by clear and convincing evidence.

[¶ 17] This opinion is not intended to condone the State’s failure to cooperate with the district court on scheduling. Attorneys should be prepared to re-schedule trials on short notice; however, under these circumstances there was no determination by the district court that the State had acted in bad faith. Absent a finding of prosecutorial misconduct, a district court’s dismissal of a case with prejudice constitutes an abuse of discretion.

[¶ 18] We reverse the district court ruling and remand, for further proceedings.

[¶ 19] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

SANDSTROM, Justice,

concurring specially.

[¶ 20] As I understand the majority opinion, it reverses solely because the district court did not make an explicit finding of bad faith on the part of Burleigh County State’s Attorney Richard Riha, his Assistant State’s Attorney Brandi Sasse Russell, or the Burleigh County State’s Attorney’s secretarial staff (collectively, “the state’s attorney”).

[¶ 21] The majority opinion obscures the facts, making the state’s attorney’s misconduct appear less egregious than it appears on the face of the record.

[¶ 22] The record reflects this is not a case in which the state’s attorney could not secure the presence of the state’s witnesses. This is a case in which the state’s attorney chose not to secure the presence of the state’s witnesses. The witnesses were all under subpoena to appear at the Burleigh County Courthouse on the day of the original trial. — the day before the rescheduled trial. As the district court pointed out to the state’s attorney, any witnesses who were not served with a new subpoena “in the field” could have been served with a new subpoena when they appeared at the courthouse on the originally scheduled trial day. Instead, the state’s attorney contacted the witnesses and told them they did not have to appear. The state’s attorney has asserted that subpoenaing witnesses in this manner would be unethical, but has presented no authority either to the district court or to this Court to support the assertion.

[¶ 23] In addition, after the in-chambers hearing, the district court directed the attorneys to proceed directly to the courtroom. The state’s attorney failed to appear, and the district court dismissed the case with prejudice.

[¶ 24] The United States Court of Appeals for the Fourth Circuit appears to suggest that an explicit finding of bad faith may not be required. “The court did not, however, find that the government had acted in bad faith, nor does the record indicate a basis for such a finding. Accordingly, we conclude that the district court abused its discretion in turning aside the government’s Rule 48(a) motion and inviting a motion to dismiss from the defendant....” United States v. Goodson, 204 F.3d 508, 513 (4th Cir.2000) (emphasis added).

[¶ 25] Although I believe a strong case can be made that the record here reflects bad faith and willful misconduct by the state’s attorney, I believe the better practice is for the district court to make an explicit finding.

[¶ 26] The Court of Appeals noted in Goodson:

Under both Rule 48(b) and its supervisory power, a district court has broad discretion to manage its docket and to impose a wide range of sanctions against parties who violate the court’s scheduling orders. The sanction of dismissal with prejudice, however, is a harsh remedy for enforcement of those powers, and, indeed, its use becomes a significant event. For in dismissing ... with prejudice, the court allows its interest in the orderly administration of justice to override the interests of victims and the public interest in the enforcement of the criminal law.

Id. at 514 (citations omitted).

[¶ 27] I concur in the result, somewhat reassured by the district court’s ability to make an explicit finding of bad faith where appropriate and to impose a “wide range of sanctions” if the problem recurs in the future.

[¶ 28] I understand the further proceedings on remand are that the district court is to enter an order dismissing without prejudice — the remedy requested by the state’s attorney. As provided in State ex rel. Koppy v. Graff, 484 N.W.2d 855, 859 (N.D.1992), reinstated criminal proceedings would be subject to an evidentia-ry hearing on the issues of bad faith or misconduct by the state’s attorney.

[1129] DALE V. SANDSTROM


author: HANSON, Justice.

text:
    WANZEK CONSTRUCTION, INC., a North Dakota corporation, Respondent, v. EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, a Wisconsin corporation, Appellant.
    No. C4-03-165.
    Supreme Court of Minnesota.
    April 29, 2004.

      Leon R. Erstad, Erstad & Riemer, P.A., Minneapolis, for appellant.
    Paul T. Meyer, Jennifer A. Thompson, Hammargren & Meyer, P.A., Minneapolis, Patrick J. Wielinski, Cokinos, Bowien & Young, Arlington, TX, for respondent.
   OPINION

HANSON, Justice.

Respondent Wanzek Construction, Inc. (Wanzek) was the general contractor for the construction of a municipal swimming pool. It incurred costs to replace coping stones that were manufactured by Aquatic Designs, Inc. (Aquatic). It brought this action against its insurer, appellant Employers Insurance of Wausau (Wausau), for indemnity under a comprehensive general liability insurance policy (CGL). Wausau moved for summary judgment under the business-risk doctrine, arguing that the risk that an insured’s product will not meet.contractual standards is a business risk that is not covered by a general liability policy. It relied on two policy exclusions that preclude coverage for damage to “your property” and “your work.” The district court granted summary judgment to Wausau, concluding that Aquatic was not a “subcontractor” and therefore the “your work” exclusion applied. The court of appeals reversed, holding that Aquatic fulfilled the “subcontractor exception” to the “your work” exclusion. Wanzek Construction, Inc. v. Employers Ins. of Wausau, 667 N.W.2d 473, 475 (Minn.App.2003). We affirm.

Wanzek was awarded a contract by the City of St. Louis Park to construct a new swimming pool. The architect’s specifications required Wanzek to provide materials, labor, equipment, and services needed to furnish and install precast pool coping stones to cover perimeter overflow. The specifications detailed the required density, strength, size, pattern, and color of the coping stones, and also mandated that the “manufacturer” of the coping stones have:

[N]o less than 5 years continuous experience in the fabrication of such units with required polymer materials and must demonstrate evidence of 10 successful deck-level coping installations of similar scope with at least 3 years of service.

Wanzek’s contract with the City specified that the “manufacturer” of the coping stones must be either “Aquatic Design” or “Kinematics, Ltd.”

Wanzek entered into a Standard Purchase Agreement with Aquatic requiring Aquatic to “furnish and pay for all supervision, labor, materials, tools, equipment, services, and all other items necessary or required to fully * * * prepar[e], design, fabricate], treat[ ], stor[e], and deliver[ ] * * * overflow coping stones.” An attachment to the purchase agreement required Aquatic to create shop drawings, specified a delivery date for the coping stones, and required Aquatic to provide onsite supervision of Wanzek employees for either 3 days of installation or until the Wanzek employees felt capable of installation.

When the swimming pool opened for use, patrons were injured as a result of the cracking of a large number of the coping stones. The City demanded that Wanzek replace the failed stones. Wanzek made the same demand of Aquatic, but when Aquatic refused, Wanzek was forced to replace the coping stones at a cost of $164,162.24. When Aquatic filed for bankruptcy, Wanzek submitted a claim under its CGL policy with Wausau.

Wausau denied Wanzek’s claim, contending that the insurance did not cover the cost of remedying defects in workmanship because the exclusion for damage to “your work” in the CGL insurance policy precluded coverage. Wanzek, 667 N.W.2d at 476. Wanzek then brought a declaratory judgment action against Wausau to determine coverage. Id. The district court granted summary judgment in favor of Wausau, holding that Aquatic was not a subcontractor and therefore the “your work” exclusion applied. The court of appeals reversed, holding that Aquatic was a subcontractor and the “your work” exclusion did not apply. Wanzek, 667 N.W.2d at 475.We granted Wausau’s petition for review.

I.

On review of a grant of summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in applying the law. Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn.2002). The interpretation of an insurance policy is a question of law reviewed de novo. Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn.2001). When insurance policy language is clear and unambiguous, “the language used must be given its usual and accepted meaning.” Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn.1998) (citing Bobich v. Oja, 258 Minn. 287, 294, 104 N.W.2d 19, 24 (1960)). If policy language is ambiguous, it must be interpreted in favor of coverage. Nordby v. Atlantic Mut. Ins. Co., 329 N.W.2d 820, 822 (Minn.1983). Exclusions are read narrowly against the insurer. Atwater Creamery Co. v. Western Nat. Mut. Ins. Co., 366 N.W.2d 271, 276 (Minn.1985).

We must first determine what role the business-risk doctrine should play in interpreting the CGL policy. Consequently, it is necessary to undertake a brief review of CGL standard-coverage forms, the complicated history of the business-risk doctrine, and this court’s jurisprudence with respect to the business-risk doctrine and the policy exclusions that reflect that doctrine.

The business-risk doctrine was first made popular in a law review article by Roger C. Henderson. He articulated the business-risk doctrine as follows:

The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished and completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. The insured, as a source of goods or services, may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable because it is lacking in some capacity. This may even extend to an obligation to completely replace or rebuild the deficient work or product. This liability, however, is not what the coverages in question are designed to protect against. The coverage is for tort liability for physical damages to others and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained.

Roger C. Henderson, Insurance Protection for Products Liability and Completed Operations: What Every Lawyer Should Know, 50 Neb. L.Rev. 415, 441 (1971).

The first court to adopt the business-risk doctrine was the Supreme Court of New Jersey in Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788 (1979). The court held that the insurer was not obligated, under the terms of the CGL standard-coverage form of its general automobile liability policy, to defend claims against a masonry contractor for the faulty workmanship where the damages claimed were the cost of correcting the work itself. Id. at 789. The court stated:

The insured-contractor can take pains to control the quality of the goods and services supplied. At the same time he undertakes the risk that he may fail in this endeavor and thereby incur contractual liability whether express or implied. The consequence of not performing well is part of every business venture; the replacement or repair of faulty goods and works is a business expense, to be borne by the insured-contractor in order to satisfy customers.

Id. at 791 (citations omitted).

We endorsed the business-risk doctrine in Bor-Son Bldg. Corp. v. Employers Commercial Union Ins. Co. of Am., 323 N.W.2d 58 (Minn.1982), and reaffirmed the Bor-Son holding in Knutson Constr. Co. v. St. Paul Fire & Marine Ins. Co., 396 N.W.2d 229 (Minn.1986). In Bor-Son, we said, “We are convinced that the standard comprehensive general liability policy does not provide coverage to an insured-contractor for a breach of contract action grounded upon faulty workmanship or materials, where the damages claimed are the cost of correcting the work itself.” Bor-Son, 323 N.W.2d at 64 (quotations omitted). In Knutson, we expanded on the policy considerations underpinning the business-risk doctrine, stating:

Even though it cannot be conclusively demonstrated that [a departure from Bor-Son and the business risk doctrine] would promote shoddy workmanship and the lack of exercise of due care, undoubtedly it would present the opportunity or incentive for the insured general contractor to be less than optimally diligent in these regards in the performance of his contractual obligations to complete a project in a good workmanlike manner.

Knutson, 396 N.W.2d at 234.

Bor-Son and Knutson each involved the 1973 CGL standard-coverage form, which gave the insured the option of purchasing the basic exclusion for “work performed by or on behalf of the named insured” or the narrower exclusion simply for “work performed by the named insured.” (Emphasis added.) The latter was called the “broad form property damage endorsement,” or “BFPD.” The Bor-Son opinion does not identify which form of the exclusion was in the policy. Knutson presented the BFPD. Although the BFPD was generally thought to provide coverage to a general contractor for work by a subcontractor, in Knutson we ruled to the contrary, applying a more generalized notion of the business-risk doctrine. 396 N.W.2d at 234-35.

After Bor-Son and Knutson, the CGL standard-coverage form was revised in 1986 to provide the “your product” and “your work” exclusions as follows:

This insurance does not apply to:
* * * *
k. Damage to Your Product.
“Property damage” to “your product” arising out of it, or any part of it.
l. Damage to Your Work.
“Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.” This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.

The two features of the 1986 CGL standard-coverage form that are most relevant here are the exception to the definition of “your product” for “real property” and the exception to the “your work” exclusion for the work of a “subcontractor.”

The 1986 CGL standard-coverage form has been considered in two Minnesota appellate decisions. First, the court of appeals determined that the change in the 1986 form narrowed the Bor-Son and Knutson holdings. O’Shaughnessy v. Smuckler Corp., 543 N.W.2d 99 (Minn.App.), review denied (Minn. March 28, 1996). The court held that the plain language of the subcontractor exception in the 1986 CGL standard-coverage form was not overridden by the business-risk doctrine but, in fact, was intended to narrow that doctrine. O’Shaughnessy, 543 N.W.2d at 105. Second, in Thommes, we clarified the scope of the business-risk doctrine in Minnesota, stating:

While the distinction set out in Knutson and Bor-Son [between uncovered business risks arising from contractual liability for defective materials and workmanship and covered risks arising from tort liability to third persons] is useful for exploring the fundamental purpose of CGL insurance, it is not dispositive because the parties to an insurance contract may agree to coverage that is different in scope. Parties are free to contract as they desire, and so long as coverage required by law is not omitted and policy provisions do not contravene applicable statutes, the extent of the insurer’s liability is governed by the contract entered into.

Thommes, 641 N.W.2d at 882 (quotations and citations omitted).

Consequently, the suggestion by Wausau that the principles of Bor-Son and Knutson, in combination with the general principles of the business-risk doctrine, should drive the interpretation of the words of the 1986 standard-form exclusions, is incorrect. We conclude that the extent to which Wausau’s CGL policy covers the business risk of Wanzek must be determined by the specific terms of the insurance contract. In that connection, the parties do not dispute that the failure of the coping stones falls generally under the insurance policy. Specifically, the parties agree that the failure constituted an “occurrence” resulting in “property damage.” The parties disagree about whether coverage is precluded by either the “your product” or the “your work” exclusion.

II.

Wausau argues that the failure of the coping stones was damage to Wanzek’s “product” which was specifically excluded from coverage. While acknowledging that the Bor-Son and Knutson cases did not specifically address the “your product” exclusion, Wausau argues that both cases stand for the proposition that a completed construction project that has been constructed by a general contractor is that contractor’s “product.” Bor-Son, 323 N.W.2d at 63 (stating the purchaser “had not received the product — the buildings— for which it had bargained”); Knutson, 396 N.W.2d at 236, n. 12 (stating “[cjonsis-tent with the majority of the courts which have addressed the issue, we held in Bor-Son that the buildings were a ‘product’ ”). The court of appeals did not reach this issue.

An examination of the CGL policy undermines Wausau’s argument. The policy defines “your product” as “any goods or products, other than real property, manufactured, sold, handled, distributed, or disposed of by * * * you.” (Emphasis added.) As previously noted, when insurance policy language is clear and unambiguous, the language must be given its usual and accepted meaning. Lobeck, 582 N.W.2d at 249. “Real property” is generally defined as “[l]and and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land. * * * Real property can be either corporeal (soil and buildings) or incorporeal (easements).” Black’s Law Dictionary 1234 (7th ed.1999).

We hold that the exclusion for property damage to “your product” does not apply to the failure of the coping stones because of the exception for “real property.”

III.

Wausau argues that if this court concludes that the pool is not Wanzek’s “product,” then the “your work” exclusion would be applicable. The policy definition of “your work” appears to be clear and unambiguous, as “work or operations performed by you or on your behalf; and ⅜ * * materials, parts or equipment furnished in connection with such work or operations.” The parties agree that this definition applies to the swimming pool and includes the coping stones. The question we must determine is whether Aquatic was a “subcontractor” of Wanzek within the “subcontractor” exception to the “your work” exclusion.

Wausau takes a position on one extreme by arguing that if we allow a material supplier like Aquatic to qualify as a subcontractor, coverage will be awarded for the failure of almost all materials supplied to a construction project. At oral argument, Wanzek took a position on the other extreme by proposing that all material suppliers, except those merely providing materials “off the shelf,” should be considered subcontractors for purposes of the exception to the “your work” exclusion in the CGL standard-coverage form.

Wausau supports its interpretation by referring to the definition of “subcontractor” in Sterling Custom Homes Corp. v. Comm’r of Revenue, 391 N.W.2d 523 (Minn.1986), a sales tax case. We were asked in Sterling to determine whether the sales of prefabricated custom-home component packages to contractors were retail sales and therefore subject to the state sales tax. Sterling, 391 N.W.2d at 523. Sterling claimed that it was a subcontractor and could only be taxed on raw materials and not on the completed project. Id. at 524. We distinguished between “suppliers” and “subcontractors,” stating “suppliers are those who sell building materials. Contractors and subcontractors erect and construct the material into a building on site.” Id. at 525.

■ Wanzek supports its interpretation by referring to the definition of “subcontractor” in Weyerhaeuser Co. v. Twin City Millwork Co., 291 Minn. 293, 191 N.W.2d 401 (1971), a surety bond dispute. The general contractor in Weyerhaeuser was hired to construct an addition to a university building, requiring it to furnish doors of a variety of sizes, styles, and materials. Id. at 295, 191 N.W.2d at 402. The general contractor hired Twin City Millwork Co. (TCM) to furnish shop drawings and obtain the doors, and TCM in turn hired Weyerhaeuser to manufacture the doors in accordance with the shop drawings. Id. Weyerhaeuser manufactured the doors and delivered them to TCM, TCM delivered the doors to the job site, and the general contractor installed them. Id. The issue was whether TCM was a subcontractor who would be entitled to protection under the contractor’s bond. Id. at 294, 191 N.W.2d at 402. In holding that TCM was a subcontractor, we reasoned:

While the amount of Watson’s contract with TCM did not represent a substantial portion of the overall project, it was a significant part of the construction. The contract called for 1,107 specially made doors, built with a variety of materials and designs. They were not items that were readily available through ordinary building suppliers. ⅜ * * installation by the prime contractor rather than the subcontractor is only one element to be considered and is not decisive. * * * There is no conclusive evidence either of the intention of the parties or of the practice in the trade which would prevent a finding that TCM was a subcontractor.

Id. at 301, 191 N.W.2d at 406.

The district court relied upon the Sterling definition, that a subcontractor is one who installs the product and does not include a party who merely supplies the material. The court of appeals relied on the broader definition in Weyerhaeuser, that a subcontractor is one who “constructs a definite, substantial part of the work of improvement in accord with the plans and specifications of such contract,” whether or not “he enters upon the job site and does the construction there.” 667 N.W.2d at 480.

We conclude that neither Sterling nor Weyerhaeuser is controlling because neither deals with the language of the “your work” exclusion in Wausau’s policy. The policy language governs. If the policy language is ambiguous, it must be interpreted in favor of finding coverage. Nordby, 329 N.W.2d at 822. Because there is no statutory or regulatory definition of subcontractor that is incorporated into the “your work” exclusion, and the policy does not define the term, we hold that the term “subcontractor” in the exception to the “your work” exclusion of the CGL insurance policy is ambiguous and we will construe it liberally in favor of coverage.

In that context, we need not reach Wanzek’s proposed definition that would include all material suppliers except those who provide “off the shelf’ materials because the facts in this record satisfy an even narrower definition. We hold that where, as here, a supplier custom fabricates the materials to the owner’s specifications and provides on-site services in connection with the installation, the supplier meets the definition of subcontractor under the exception to the “your works” exclusion.

At oral argument, Wausau asserted a narrower argument, suggesting that even if Aquatics met the definition of a subcontractor, the “your work” exclusion would still apply because Aquatic did not perform its work on behalf of Wanzek. Wausau argues that Aquatic performed work on behalf of the owner, not Wanzek, because Aquatic supplied materials that had been manufactured to the specifications of the owner. Wausau argues that the onsite supervision by Aquatic is irrelevant because the failure of the stones was caused by faulty manufacture, not by installation or supervision.

But Aquatic had no agreement with the City for the work. Instead, it contracted directly with Wanzek and that contract obligated Aquatic to “furnish and pay for all supervision, labor, materials, tools, equipment, services, and all other items necessary or required to fully * * * prepare], design, fabricate], treat[ ], stor[e], and deliver[ ]” the coping stones. Aquatic’s performance of its obligations to Wan-zek contributed to the performance by Wanzek of its obligation to the City to furnish and install the coping stones. Accordingly, we hold that Aquatic performed work as a subcontractor on.behalf of Wan-zek.

Because neither the “your product” or the “your work” exclusions apply to Wan-zek’s claims under the CGL policy, the court of appeals appropriately reversed the grant of summary judgment to Wau-sau and remanded.

Affirmed.

      . Throughout this opinion, the insurance policy entered into between Wausau and Wanzek will be referred to as the "CGL policy,” while CGL policies in general will be referred to as "CGL standard-coverage forms.” However, there is no evidence that the CGL policy entered into between Wausau and Wanzek differs from the CGL standard-coverage form in any material way.

      . Bor-Son and its progeny have been criticized by some courts. See Keith A. Dotseth, et al., Evolution or Revolution: Thommes' Role in the Development of the Business Risk Doctrine, 29 Wm. Mitchell L.Rev. 597, 604-05 (2002).

      . In Weyerhaeuser, we quoted with approval a definition of "subcontractor'' used by the California Supreme Court:

        In our opinion the essential feature which constitutes one a subcontractor rather than a materialman is that in the course of performance of the prime contract he constructs a definite, substantial part of the work of improvement in accord with the plans and specifications of such contract, not that he enters upon the job site and does the construction there. * * * [W]e conclude that one who agrees with the prime contractor to perform a substantial specified portion of the work of construction which is the subject of the general contract in accord with the plans and specifications by which the prime contractor is bound has “charge of construction” of that part of the work of improvement * * * and is a subcontractor although he does not undertake to himself incorporate such portion of the projected structure into the building.

        Id. at 300-01, 191 N.W.2d at 405 (citing Theisen v. County of Los Angeles, 54 Cal.2d 170, 5 Cal.Rptr. 161, 352 P.2d 529, 537 (1960)).


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST William C. FLYNN, a Minnesota Attorney, Registration No. 155044.
    No. A04-708.
    Supreme Court of Minnesota.
    May 12, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent William C. Flynn committed professional misconduct warranting public discipline, namely, respondent was convicted of illegally possessing pornographic work involving minors in violation of Minn. Stat. § 617.247, subd. 4(a) (2002). Respondent’s criminal conviction violates Minn. R. Prof. Conduct 8.4(b).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a five-year suspension from the practice of law with reinstatement conditioned upon (1) payment of $900 in costs under Rule 24, RLPR; (2) compliance with Rule 26, RLPR; (3) successful completion of the professional responsibility bar examination; (4) satisfaction of continuing legal education requirements; and (5) successful completion of criminal probation.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent William C. Flynn is suspended from the practice of law for five years effective immediately, with reinstatement subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: /s/Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard J. COLEMAN, a Minnesota Attorney, Registration No. 136141.
    No. A03-1451.
    Supreme Court of Minnesota.
    May 12, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Richard J. Coleman committed professional misconduct warranting public discipline, including, leaving a courtroom while trial was in session, failing to adequately supervise a nonlawyer assistant, failing to appear in court on time, failure to deposit advance retainers in trust, failing to return client property and failing to cooperate with the Director’s investigation in violation of Minn. R. Prof. Conduct 1.3, 1.4, 1.5(b),. 1.15(a), 1.15(d), 3.2, 3.4(c), 3.5(h), 5.3(c), 8.1(a)(3) and 8.4(d) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and supervised probation for two years subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct (MRPC).
c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date of execution of the stipulation. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his or her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis. Procedures shall also be instituted to ensure respondent regularly reviews his calendar or appointment book to determine court scheduling conflicts. Respondent shall promptly notify all affected tribunals and opposing counsel of scheduling conflicts and make efforts to resolve the conflicts as far in advance of the scheduled hearings as is reasonably possible.
f. Within 30 days from the execution of this stipulation, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
g. Respondent shall enter into a written retainer agreement, signed by both respondent and the client, with all clients on matters in which respondent is retained in a private (non-public defender) capacity that comply with Rule 1.5(b), MRPC, and Rule 1.15(b), MRPC, as further interpreted by Opinion No. 15 of the Lawyers Professional Responsibility Board. Respondent shall maintain a copy of the retainer agreement in the client file and shall maintain a separate file containing copies of all retainer agreements executed on or after the date respondent signs this stipulation.

The Director and respondent also agree that respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Richard J. Coleman is publicly reprimanded and placed on supervised probation for a period of two years subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: /sdPaul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Scott K. GOLDSMITH, a Minnesota Attorney, Registration No. 35956.
    No. C8-03-41.
    Supreme Court of Minnesota.
    May 12, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Scott K. Goldsmith committed professional misconduct warranting public discipline. Respondent entered into a stipulation admitting that he failed to file or failed to timely file state and federal individual income tax returns in 1998,1999, 2000 and 2001 and failed to pay taxes due thereon, and that as the responsible agent for Goldsmith & Associates, respondent failed to timely file state and federal employer withholding tax returns in 1998, 1999, 2000 and 2001 and pay the withholding tax liability due thereon.

Respondent admits his conduct violated Rule 8.4(d), Minnesota Rules of Professional Conduct (MRPC), waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 30-day suspension from the practice of law followed by two years of unsupervised probation. The parties recommend that the reinstatement hearing provided for in Rule 18, RLPR, be waived and that reinstatement be conditioned upon (1) payment of $900 in costs and $340.35 as disbursements under Rule 24(d), RLPR; (2) compliance with Rule 26, RLPR; (3) satisfaction of the continuing legal education requirements pursuant to Rule 18(e)(4), RLPR; (4) written proof that respondent is current with his filing obligations with the Internal Revenue Service (IRS) and the Minnesota Department of Revenue (DOR); and (5) that respondent provide tax authorizations to verify compliance with his filing obligations with the IRS and the DOR. The parties further recommend that respondent’s probation be subject to the following conditions:

a.Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall enter into agreements satisfactory to the IRS and the DOR for the payment of all unpaid taxes, penalties and interest that are not disputed. Respondent shall provide the Director with copies of the payment agreements and shall remain in compliance with the agreements entered into with the IRS and the DOR. Respondent shall provide the Director with proof of continued compliance upon request.
d. Respondent shall timely file all required state and federal tax returns, including individual and employer withholding returns, and timely pay the taxes due thereon. Respondent shall affirmatively report to the Director, on or before the due date of the required returns, his compliance with filing and payment requirements. Such reports shall include copies of the required returns. On or before the filing deadline, respondent shall provide the Director with copies, if any, of all applications for filing extensions and proof of approval of such applications. Respondent shall provide all of the documents and information required herein without specific reminder or request.
e. Respondent shall employ a qualified tax preparer to assist him in preparing and filing required annual tax returns. Respondent shall make timely quarterly estimated payments to the state and federal tax authorities. On or before the filing deadline, respondent shall provide proof of such filing and payment to the Director without specific reminder or request.
f. Respondent shall successfully complete the professional responsibility part of the state bar examination within one year of the date of this court’s order, g. Respondent shall initiate or continue current treatment by a licensed consulting psychologist or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by the therapist.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Scott K. Goldsmith is suspended for 30 days effective 14 days after the filing of this order, with reinstatement subject to the terms set forth above. Upon reinstatement, respondent shall be placed on unsupervised probation for a period of two years subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs and $340.35 as disbursements under Rule 24, RLPR.

BY THE COURT:

/sdPaul H. Anderson Associate Justice


author: ANDERSON, RUSSELL A., Justice.

text:
    Timothy John O’MEARA, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. CO-02-1982.
    Supreme Court of Minnesota.
    May 13, 2004.

      Mark D. Nyvold, St. Paul, MN, for Appellant.
    Mike A. Hatch, Minnesota Attorney General, Thomas Rolf Ragatz, Assistant Attorney General, Tricia Lynne Matzek, Assistant Attorney General, St. Paul, MN, Joseph A. Evans, Becker County Attorney, Detroit Lakes, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

In this case, we consider the circumstances under which a criminal defendant is entitled to benefit from a new rule of federal constitutional criminal procedure announced by the United States Supreme Court. The precise question we face is whether appellant Timothy John O’Meara’s criminal case was “pending” when the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), thus entitling him to the benefit of the rule announced in that decision, namely, that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. The state concedes that if O’Meara is entitled to benefit from the Apprendi rule, his sentence was imposed in violation of Ap-prendi, and must therefore be reduced. We hold that if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, a criminal defendant is entitled to benefit from that new rule.

Our holding today implicitly requires us to determine when a case is pending on direct review. We further hold that a case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied. Because we conclude that O’Meara’s case was pending when Apprendi was decided, he is entitled to benefit from the rule announced in that decision. We reverse and remand for imposition of the statutory maximum sentences of two consecutive 25-year terms under Minn.Stat. §§ 609.108, subd. 1, and 609.343, subd. 2 (1998), plus the conditional release term of 10 years mandated by Minn.Stat. § 609.109, subd. 7(a) (1998).

The underlying facts of this case are not in dispute. O’Meara waived his right to a jury trial and agreed to submit his case to the district court based on stipulated facts. See Minn. R.Crim. P. 26.01, subds. l(2)(a) and 3; State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). O’Meara stipulated that in May 1999, he and N.H., who was then age 10, were alone together at O’Meara’s home and that a video camera was used to record his activities with N.H. O’Meara also stipulated that in June 1999, he was similarly alone at his house with B.K., who was then age 9, and that a video camera was also used to record his activities with B.K. Pursuant to a valid search warrant, police seized the videotape used to record the encounters. The videotape showed the two boys naked and showed O’Meara instructing them to masturbate. Detective John Sieling, who had watched the videotape, testified that O’Meara had put his hands on B.K.’s penis “three to four times.” Detective Sieling also testified that O’Meara had put his hands on N.H.’s penis. O’Meara was convicted of two counts of second-degree criminal sexual conduct under Minn.Stat. § 609.343, subd. 1(a)(2) (1998).

The state requested that O’Meara be sentenced as a patterned sex offender pursuant to MinmStat. '§ 609.108, subd. 2. The state further requested that O’Meara be sentenced to the “maximum term allowed by law,” or 40 years for each conviction pursuant to the same statute. The state also requested consecutive sentences. At O’Meara’s sentencing hearing, Dr. Rick Ascano, the licensed psychologist who examined O’Meara, testified that (1) he has experience assessing sex offenders; (2) he conducted a clinical interview with O’Meara, performed a battery of psychological tests on him, and reviewed various documents related to his history of sexual misconduct; (3) he is familiar with the statutory definition of “patterned sex offender”; and (4) in his opinion, O’Meara is a patterned sex offender and a risk to public safety.

Specifically, Dr. Ascano testified that O’Meara (1) attempts to rationalize and justify his actions, and therefore attempts at rehabilitation will be hindered; (2) “is the type of individual who feel[s] more comfortable reaching out to vulnerable individual[s], i.e., children, in order to meet his emotional needs”; (3) has the “fairly significant or severe sexual problem of having psychosexual abnormality”; (4) is self-indulgent; (5) is passive-aggressive and resistant to dynamics imposed on him; (6) admitted to Dr. Ascano. that “Deep down it excites me” in regard to having contact with children; (7) premeditatedly tries to access young children by dating or socializing with their mothers; (8) “is in need of a long-term treatment intervention and preferably in a structured environment, meaning not outpatient”; and (9) has a “significantly high” risk of reoffend-ing.

Dr. Ascano testified that O’Meara required a minimum of 3 to. 5 years of treatment and that rehabilitation might be impossible. He further testified that a prison term of 5 years would be inadequate to rehabilitate O’Meara if he lacked the “proper motivation.” Dr. Ascano also testified that it was “questionable” that the presumptive sentence would be adequate because of O’Meara’s 20-year history of sexual misconduct. Furthermore, the Pre-sentence Investigation Report received by the district court included a victim impact statement which detailed the extensive trauma both minor victims have suffered.

The district court found that O’Meara is a danger to public safety because (1) he has two prior felony convictions for criminal sexual conduct; (2) he committed the acts with the two boys “shortly after [he] was released and while he was: on parole” for the prior convictions; and (3) he “violated a position of trust in committing the acts perpetrated upon” the boys because “he was entrusted with the safekeeping of the victims while they spent the night at his house.” The court also found that, based on Dr. Ascano’s report, O’Meara is “in need of long-term treatment * * * beyond the presumptive term of the imprisonment and supervised release.” The court further found that O’Meara’s . offenses “were motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration.” Based on these findings, the court concluded that O’Meara is a patterned sex offender and sentenced him under the provisions of Minn.Stat. § 609.108, subds. 1 and 2, to two consecutive 40-year prison terms with a conditional release period of 10 years upon completion of the prison sentence.

In August 2000, O’Meara filed a notice of appeal of his conviction and sentence, but this notice was filed 3 days after the appeal deadline had passed, and thus was dismissed. In April 2002, O’Meara petitioned for postconviction relief. He argued that (1) his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the factors supporting the sentence were not submitted to a jury and proven beyond a reasonable doubt; (2) Dr. Ascano’s testimony does not support a finding that O’Meara is a patterned sex offender; (3) his sentence violates due process and equal protection; (4) his sentence is unreasonable, inappropriate, and excessive; (5) the imposition of consecutive sentences under the patterned-sex-offender statute requires the presence of “severe aggravating factors,” which he contended were not present; (6) the district court failed to use a zero criminal-history score when it imposed a consecutive sentence for his second conviction; and (7) his sentence constitutes cruel and unusual punishment.

The district court denied O’Meara’s petition and the court of appeals affirmed, relying on the federal rule of nonretroac-tivity for new constitutional rules of criminal procedure. See O’Meara v. State, No. C0-02-1982, 2003 WL 21743557, at *3 (Minn.App. July 29, 2003) (applying rule from Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) that, subject to two narrow exceptions, a new constitutional rule of criminal procedure is not applied retroactively to cases on collateral review). We granted O’Meara’s petition for further review, directing the parties to address the question of the appropriate test to be applied for determining when a new constitutional rule should be retroactively applied on review of a conviction under the Post-conviction Remedy Act, Minn.Stat. ch. 590 (2002).

I.

The determination of whether a decision applies retroactively or nonretroac-tively is a legal question that we review de novo. State v. Costello, 646 N.W.2d 204, 207 (Minn.2002). O’Meara claims that, like Grossman, he is entitled to benefit from the Apprendi rule, because Apprendi was decided prior to the expiration of his direct appeal period. O’Meara urges us to ignore the fact, however, that unlike Gross-man, he failed to perfect a direct appeal. O’Meara essentially argues that his case was not final, because he still had time to appeal when Apprendi was decided.

It is axiomatic that as Minnesota’s highest court we determine whether our decisions on state law are given retroactive or prospective effect. American Trucking Associations v. Smith, 496 U.S. 167, 177, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990). In this capacity, we have applied retroactive treatment to cases which are pending when a new rule is announced. See State v. Baird, 654 N.W.2d 105, 110 (Minn.2002) (holding that our ruling in State v. Glowacki, 630 N.W.2d 392 (Minn.2001) that there was no duty to retreat from one’s own home even if the aggressor is a co-resident, applied retroactively because Baird’s appeal was pending at the time Gloivacki was decided); State v. Misquadace, 644 N.W.2d 65, 72 (Minn.2002) (stating that our holding in that case — that a plea agreement, standing alone, is not a sufficient basis to depart from the sentencing guidelines — applied to pending cases).

In this case however, we are called upon to determine whether O’Meara is entitled to benefit from a new rule of federal constitutional criminal procedure. In this context, we are compelled to follow the lead of the Supreme Court in determining when a decision is to be afforded retroactive treatment. American Trucking Associations, 496 U.S. at 177-78, 110 S.Ct. 2323. In Griffith v. Kentucky, the United States Supreme Court held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (emphasis added) (applying decision from Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to all cases not final as of date Batson was decided). If the conviction is not yet final (i.e., is “pending”) when the Supreme Court announces the rule, then inferior courts must apply that rule to the defendant’s case. Id.

If a defendant’s conviction is already final at the time the new rule is announced, then the defendant ordinarily may not avail himself of the new rule. Teague, 489 U.S. at 310-11, 109 S.Ct. 1060 (holding that the United States Constitution does not mandate that decisions enunciating “new rules of law” apply to convictions that have become final). “Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect.” Id. at 309, 109 S.Ct. 1060.

Pursuant to Teague, a court’s decision enunciates a “new rule of law” when the decision was not dictated by precedent existing at the time the defendant’s conviction became final. Id. at 301, 109 S.Ct. 1060. “A holding constitutes a ‘new rule’ within the meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060) (emphasis in original). Because “Apprendi unmistakably altered the legal landscape [it] is easily categorized as a new rule.” United States v. Moss, 252 F.3d 993, 998 (8th Cir.2001), cert. denied, 534 U.S. 1097, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002). A case is final when a “judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.” Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708. Conversely, a case is pending until such time as the availability of appeal has been exhausted, the time for a petition for certio-rari has elapsed or a petition for certiorari with the Supreme Court has been filed and finally denied. Id.

In accordance with Griffith and Teague, we hold that if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule. But if the defendant’s conviction is already final at the time the new rule is announced, then the criminal defendant ordinarily may not avail himself of the new rule.

Having settled on the proper methodology for determining retroactivity, we next turn to the question of when O’Meara’s conviction became final. O’Meara’s appeal period expired on August 6, 2000. Having failed to perfect a direct appeal, his conviction became final on that date. Apprendi was decided on June 26, 2000. Because the Apprendi decision was handed down before O’Meara’s conviction became final, O’Meara is entitled to benefit from the Apprendi rule, as we applied it in Grossman. The state has conceded that if O’Meara is entitled to benefit from the Apprendi rule, his sentence was imposed in violation of Appren-di and must therefore be reduced. We agree with the state. The effect of the district court’s findings, when coupled with the jury’s finding of sexual contact, was to increase by 15 years for each conviction the prison sentence to which O’Meara was exposed. Due process, however, requires that each of these findings be made by a jury based on proof beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Therefore, Minn.Stat. § 609.108, subd. 2, as applied to O’Meara is unconstitutional and his sentences must be reduced. Grossman, 636 N.W.2d at 551.

II.

We now turn our attention to the appropriate sentence duration for O’Meara’s offenses. O’Meara contends that his sentence, even if reduced to two consecutive 25-year terms, is violative of Minn.Stat. § 244.11, subd. 2(b) (2002), as it is “unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.” We disagree.

Under the patterned-sex-offender statute, a person convicted of certain patterned and predatory sex offenses “shall” be sentenced to “not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum” if the court determines that the person (1) was motivated by sexual impulses or the crime “was part of a predatory pattern of behavior that had criminal sexual conduct as its goal”; (2) endangers public safety; and (3) “needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.” Minn.Stat. § 609.108, subd. 1(a) (2002). The district court made all of these required findings on the record.

Given its findings under Minn.Stat. § 609.108, subd. 1(a), and O’Meara’s criminal history score of 5, the district court, if sentencing consecutively, was required to impose minimum sentences of 102 months for the first conviction and 42 months for the second. The maximum permissible sentence for second-degree criminal sexual conduct, however, is 25 years for each conviction. See Minn.Stat. § 609.343, subd. 2(a) (1998). Consecutive sentences are permissive for multiple current felony convictions of crimes against separate individuals, and consecutive sentencing under these circumstances is not a departure from the sentencing guidelines. See Minnesota Sentencing Guidelines II.F.2.

At sentencing, the district court stated that its intent was to impose the statutory maximum sentences and to impose those sentences consecutively. As outlined above, the court made extensive findings regarding (1) O’Meara’s abuse of a position of trust; (2) his unamenability to treatment; and (3) the serious threat he poses to public safety. On the basis of this record, we conclude that the court did not abuse its discretion in departing upward and sentencing O’Meara to the maximum sentences permitted by law. We therefore remand to the district court for the imposition of the statutory maximum sentences. Grossman, 636 N.W.2d at 551.

Reversed and remanded for imposition of the statutory maximum sentences of two consecutive 25-year terms under Minn. Stat. §§ 609.108, subd. 1, and 609.343, subd. 2, plus the conditional release term of 10 years mandated by Minn.Stat. § 609.109, subd. 7(a).

PAGE, J., took no part in the consideration or decision of this case.

      . In State v. Grossman, 636 N.W.2d 545 (Minn.2001), we applied the Apprendi holding to Minnesota's patterned sex offender sentence enhancement statute, Minn.Stat. § 609.108 (2002), and held that subdivision 2 of that statute was unconstitutional as applied to Grossman.

      . The state contends that this rule would apply "to everyone, or at least to every defendant who has not taken a direct appeal.” This contention is incorrect, as this rule only benefits a criminal defendant when a new constitutional rule is announced prior to the expiration of his direct appeal period.

      .The two exceptions to Teague’s general rule that new rules of law do not apply* to convictions that have become final are (1) new rules that "place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense”; and (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding.” Sawyer v. Smith, 497 U.S. 227, 241-42, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (citations omitted).

      . O’Meara concedes that imposition of the 10-year conditional release term does not violate Apprendi. See also State v. Jones, 659 N.W.2d 748, 753 (Minn.2003).

      . Because Minn.Stat. § 609.108, subd. 1(a), limits the maximum sentence to the statutory maximum, in this case 25 years, it is not unconstitutional under Apprendi/Grossman, and O'Meara makes no claim to the contrary.

      . In order to avoid exaggerating the impact of previous criminality, the guidelines require that a zero criminal history score be used when computing the presumptive duration of the second (consecutive) sentence. Minnesota Sentencing Guidelines II.F.