author: MAHAN, P.J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Andrew Mark HARRIMAN, Defendant-Appellant.
    No. 06-1309.
    Court of Appeals of Iowa.
    May 23, 2007.
    Mark C. Smith, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
    Considered by MAHAN, P.J., and EISENHAUER and BAKER, JJ.
   MAHAN, P.J.

I.Background Facts and Proceedings.

Officer Albert Bovy stopped a vehicle in Waterloo because of a defective muffler. Andrew Harriman was sitting in the front-passenger seat of the vehicle with his hand in his pant pocket. Bovy told Harriman to remove his hand from the pocket. After discovering the driver was driving while barred, Bovy arrested the driver and placed him in the back of the patrol car. When Bovy returned to the vehicle, he asked Harriman to exit the car and place his hands on the trunk. Harriman once again put his hand in his right front pocket, and Bovy gave him a firm warning to keep his hands out of his pockets. Bovy then proceeded to frisk the outside of Har-riman’s clothing. Bovy discovered a bulge in Harriman’s right front pocket that felt like sand in a plastic bag. When Harri-man did not respond to Bovy’s inquiry about the contents of his pocket, Bovy reached into the pocket and removed two plastic bags full of narcotics. Harriman was arrested, and a subsequent search revealed a large bundle of cash and a metal container with another bag of narcotics. Later testing revealed the plastic bags contained more than nine grams of amphetamine.

Harriman filed a motion to suppress, contending the weapons frisk was an unconstitutional search of his person. The court denied this motion and, after a full jury trial, Harriman was convicted of possession of five or more grams of amphetamine with intent to deliver and failure to affix a drug tax stamp.

On appeal, Harriman claims the trial court erred in denying his motion to suppress because the weapons frisk exceeded the scope of the “plain feel” exception to the warrant requirement as articulated in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

II. Standard of Review.

In reviewing an alleged violation of a constitutional right, we review de novo the totality of the circumstances as shown by the entire record. State v. Vincik, 436 N.W.2d 350, 353 (Iowa 1989). We are not bound by the district court’s determinations, but we may give deference to its credibility findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). In reviewing the district court’s ruling, we consider both the evidence presented at the suppression hearing and that introduced at trial. Id. The adverse ruling on defendant’s motion to suppress preserved error for our review. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).

III. Merits.

Harriman does not challenge the stop or the justification for the weapons search. Instead, Harriman contends Officer Bovy exceeded the permissible scope of a weapons frisk, as set forth in Dickerson, by lingering and manipulating an object in his pocket after determining the object was not a weapon.

In Dickerson, the United States Supreme Court set forth the “plain feel” exception to the warrant requirement:

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

508 U.S. at 375-76, 113 S.Ct. at 2137, 124 L.Ed.2d at 346; cf. State v. Scott, 518 N.W.2d 347, 348 (Iowa 1994) (applying Dickerson to a factual situation where the searching officer did not immediately identify the object as contraband). The Court then applied this test to an officer’s authorized “pat down search” for weapons on Dickerson. Id. at 374, 113 S.Ct. at 2136, 124 L.Ed.2d. at 344. The search revealed no weapons, but the officer took an interest in a small lump in Dickerson’s nylon jacket. Id. at 369, 113 S.Ct. at 2133, 124 L.Ed.2d. at 341. The officer “examined” and “slid” the object with his fingers until he concluded it felt like a lump of crack cocaine. Id., 113 S.Ct. at 2133, 124 L.Ed.2d. at 341. The officer than reached into the defendant’s pocket and retrieved a small plastic bag containing one fifth of one gram of crack cocaine. Id., 113 S.Ct. at 2133-34, 124 L.Ed.2d. at 341. The Court found the plain feel exception inapplicable to the facts at hand, noting the continued exploration of the defendant’s pocket, after the officer had concluded there was no weapon, was unrelated to the “sole justification” of the search — the protection of the' police officer and others nearby. Id. at 378-79, 113 S.Ct. at 2139, 124 L.Ed.2d. at 347-48. The Court found that “squeezing, sliding, and otherwise manipulating the contents of the defendant’s pocket,” after the officer certainly knew the item was not a weapon, constituted a “further search, one not authorized by Terry or by any other exception to the warrant requirement.” Id., 113 S.Ct. at 2138-39, 124 L.Ed.2d at 347-48. Because this “further search” was constitutionally invalid, the court found the seizure of the cocaine likewise unconstitutional. Id., 113 S.Ct. at 2138-39, 124 L.Ed.2d at 347-48.

Harriman contends Officer Bovy’s actions similarly went beyond the authorized weapons search when he “manipulated” the item in his pocket after he had already determined it was not a weapon. Harri-man points to an eight-second span of the patrol car’s onboard surveillance video to support his argument that Bovy manipulated the item in his pocket. After viewing the video, we, like the district court, are unable to find evidence of such manipulation. Officer Bovy’s actions are blocked by Harriman’s body, and therefore we are unable to discern whether his hands lingered over Harriman’s front pant pocket.

While the video tape is inconclusive, Officer Bovy’s testimony at the suppression hearing is clear:

Q. And when you felt that item, what did you believe it to be? A. I believed it to be narcotics.
Q. Why is that? A. Because in my past experience that is the feel that I have run across many times in the — in the past.
Q. And did you have to manipulate or run your hand over and over again or go into that pocket to identify that object of — as being a narcotic in a bag? ... A. No, I did not.
Q. As far as that goes, the feeling of powder in a plastic baggie, did you believe it was anything else but controlled substances such as methamphetamine or cocaine at that point? A. From all the indicators, the way the defendant was acting, his actions of going into that pocket and the feel of the item in the pocket, I had no doubt in my mind that it was narcotics.

It was immediately apparent to Bovy, upon performing the pat down, that the object in Harriman’s pocket was a controlled substance. We find no evidence of “squeezing, sliding, [or] otherwise manipulating” the item in his pocket. Because the identity of the contraband was immediately apparent, there is no support for Harriman’s claim that Bovy conducted a further search after he determined the item was not a weapon. We conclude the contraband was properly discovered pursuant to the plain-feel exception to the warrant requirement. Therefore, the district court was correct in denying Harriman’s motion to suppress.

AFFIRMED.

      . In Dickerson, the lump felt by the officer was one fifth of one gram of crack cocaine. 508 U.S. at 369, 113 S.Ct. at 2133-34, 124 L.Ed.2d. at 341. In the present case, the lump felt by the officer was more than six and a half grams of amphetamine.


source: Caselaw Access Project

author: VOGEL, J.

license: Public Domain

text:
    In the Interest of K.R., Minor Child, M.R., Father, Appellant, S.R., Mother, Appellant.
    No. 07-0434.
    Court of Appeals of Iowa.
    May 23, 2007.

      Michael Carpenter, Ottumwa, for appellant father.
    John Silko, Bloomfield, for appellant mother.
    Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Mark Tremmel, County Attorney, and Seth Harrington, Assistant County Attorney, for appellee.
    Cynthia Hucks, Ottumwa, for the minor child.
    Considered by SACKETT, C. J., and VOGEL and MILLER, JJ.
   VOGEL, J.

S.R. and M.R., mother and father of K.R., born August 2005, separately appeal the order by the district court terminating their parental rights. Upon our de novo review, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), we affirm termination of the father’s rights. We dismiss S.R.’s appeal as she voluntarily dismissed a prior appeal.

I. Background Facts and Proceedings.

K.R. was born with illegal drugs in his system and briefly placed in foster care. He was returned to his mother when she entered Bridge of Hope, an intensive residential treatment program designed to assist mothers in recovering from substance abuse and in repairing their broken lives. Less than a week later, the mother left the program and voluntarily placed K.R. in foster care. He was adjudicated a Child in Need of Assistance (CINA) in October 2005, pursuant to Iowa Code sections 232.2(6)(c)(2) (child is likely to suffer harm due to parent’s failure to exercise care in supervising child); (n) (parent’s mental capacity/condition or drug or alcohol abuse results in child not receiving adequate care); and (o) (illegal drug present in child) (2005). The parents were offered a myriad of services by the Iowa Department of Human Services (DHS) over the course of nearly eighteen months. Both parents made some sporadic efforts to engage in the services, only to regress back into substance abuse, domestic violence, and criminal activity. The child remained in foster care until the termination hearing in February 2007, at which time the district court terminated both parents’ rights on two grounds, 232.116(l)(h) and (l).

Following the termination order dated February 6, the mother filed a notice of appeal. She later voluntarily dismissed the appeal pursuant to Iowa Rule of Appellate Procedure 6.12(6), which was granted on March 2 and procedendo issued March 8. On February 20, the father filed a motion to vacate the termination ruling and for a new trial based upon “newly discovered evidence” as post-hearing, the couple’s newborn was placed with the mother in Bridge of Hope. He asserted that if the mother was approved by DHS to have the newborn in her care, then DHS should have deemed her adequate to have K.R. also placed in her care and thus prevent the termination of her parental rights. After a February 27 hearing, the district court denied the motion in a ruling filed March 5, 2007. The mother and father both appeal.

II. Scope and Standards of Review.

Our review of termination cases is de novo. J.E., 723 N.W.2d at 798. The grounds for termination must be proven by clear and convincing evidence. Id. We give weight to the fact findings of the juvenile court, especially when considering the credibility of witnesses, but we are not bound by these findings. Iowa R.App. P. 6.14(g). Our overriding concern is always the best interests of the child. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001).

III. Issues on Appeal.

Grounds for Termination. The father argues the district court erred in finding clear and convincing evidence to support termination. In order to affirm a termination of parental rights, we need only find grounds sufficient to terminate under one of the statutory grounds the district court cited. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App.1999). One ground relied upon by the district court to terminate the father’s rights was section 232.116(1)(£) (child CINA, parent has substance abuse problem, child cannot be returned within a reasonable time). The father refused to cooperate with services during the six months prior to termination, upon his belief that the mother would be able to regain care of the child. He continued to use illegal substances. Although the father claimed at the termination hearing that he was ready to start all over again and wanted another chance, it is clear that K.R. could not be placed in his care in the foreseeable future. We conclude clear and convincing evidence supports termination of the father’s parental rights under 232.116(1)(Z) and affirm on this issue.

Motion to Vacate and for New Trial. The father next contends the district court erred when it denied his motion to vacate the termination order and grant a new trial pursuant to Iowa Rule of Civil Procedure 1.1004(7). The father’s motion before the district court focused solely on the mother’s then-current living situation and why her parental rights were improperly terminated. At the time of the termination hearing, the mother was facing a probation revocation hearing with incarceration as the anticipated result. However, the hearing did not result in her incarceration, but rather in placement back in the Bridge of Hope residential treatment program with the newborn child in her care. The district court considered this information in ruling on the post-termination motion and found no basis to alter the original termination order. Following our review of the district court’s ruling on the father’s motion, Jacobsen v. Halo, 255 Iowa 918, 125 N.W.2d 500, 506 (1964), we find no abuse of discretion. The father’s only basis for the motion dealt with the change in the mother’s living situation and how that should have prevented the termination of her parental rights. He did not have standing to assert that argument on her behalf in an effort to ultimately gain a benefit for himself, that is, the reversal of the termination of his parental rights. See In re D.G., 704 N.W.2d 454, 460 (Iowa Ct.App.2005) (stating that one parent cannot assert facts or legal positions pertaining to the other parent as the court makes a separate adjudication as to each parent). We affirm the denial of the father’s motion.

Best Interests. Finally, the father claims that termination is not in K.R.’s best interests. When we consider the child’s best interests, we look to his long-range as well as immediate best interests. In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). K.R. deserves stability and permanency, which his parents cannot provide. In re C.D., 509 N.W.2d 509, 513 (Iowa Ct.App.1993). K.R. has been in foster placement most of his young life and his foster family is willing to adopt him. In addition to the lack of progress in the services offered by DHS and the continued drug use, the mother alleged the father was physically abusive to her in the late stages of her recent pregnancy. A roommate of the mother’s verified the abusive conduct. The father continues to make engaging in criminal activity and use of illegal substances priorities above the needs of K.R. This child should not be made to wait any longer for his father to become a responsible parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App.1997). We agree that termination is in K.R.’s best interests and affirm.

AFFIRMED AS TO FATHER; MOTHER’S APPEAL DISMISSED.

      . We conclude that the mother's second appeal in this case is improper because her first appeal was finally adjudicated with her voluntary dismissal and the issuance of procedendo on March 8, 2007. See Iowa R.App. P. 6.12(6) (stating the issuance of procedendo from a voluntary dismissal shall constitute a final adjudication with prejudice). We therefore lack subject matter jurisdiction and dismiss her appeal.


author: PAUL H. ANDERSON, Associate Justice.

text:
    Mark J. JEFFREY, Relator, v. BANANA REPUBLIC, and American Home Assurance, adm’d by AIG Claim Services, Inc., Respondents.
    No. A07-1033.
    Supreme Court of Minnesota.
    Aug. 21, 2007.
    David C. Wulff, Law Office of David C. Wulff, Roseville, MN, for Relator.
    Nicole B. Surges, William M. Topka, Erstad & Riemer, P.A., Minneapolis, MN, for Respondents.
   ORDER

PAUL H. ANDERSON, Associate Justice.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed May 1, 2007, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that [sjummary af-firmances have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).


author: /s/Alan C. Page Associate Justice

text:
    Mary R. OLDS, Respondent, v. LUTHERAN SOCIAL SERVICES OF MINNESOTA, Self-Insured/Comp-Cost, Inc., Relators, and Twin Cities Spine Center, Intervenor.
    No. A07-932.
    Supreme Court of Minnesota.
    Aug. 21, 2007.
    David L. Christianson, Ted A. Johnson, Cronan, Pearson, Quinlivan, P.A., Minneapolis, MN, for Relator.
    Steven M. Bradt, Bradt Law Offices, P.A., Grand Rapids, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed April 9, 2007, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that “[s]ummary affirmances have no precedential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Alan C. Page Associate Justice


author: PER CURIAM. ANDERSON, PAUL H., J. PAGE, Justice

text:
    Inquiry into the Conduct of the Honorable Rex D. STACEY.
    No. A06-0305.
    Supreme Court of Minnesota.
    Aug. 23, 2007.

      Richard J. Thomas, Burke & Thomas, PLLP, St. Paul, MN, for Honorable Rex D. Stacey.
    Douglas A. Kelley, Steven E. Wolter, Kelley & Wolter, P.A., Minneapolis, MN, for Board on Judicial Standards.
   OPINION

PER CURIAM.

The Honorable Rex D. Stacey, Judge of District Court, challenges the recommendation of the Minnesota Board of Judicial Standards that he receive a public reprimand and be fined $3,000 for his ex parte handling of a traffic ticket belonging to the husband of an administrative clerk employed by the judicial district. We publicly reprimand Judge Stacey for his handling of the traffic ticket, but decline to impose a civil penalty.

On May 21, 2004, the husband of one of the senior clerks in the Dakota County Court Administrator’s Office received a petty misdemeanor citation for driving after suspension, a violation of MinmStat. § 171.24 (2006). The citation was issued in the City of Eagan. The clerk’s husband was ordered to appear on June 24, 2004, at the Apple Valley service center.

On May 24, the clerk checked her husband’s driving record, which showed his license had been suspended on February 3, 2004, for failure to pay child support. Although the child support had since been paid, neither the clerk nor her husband realized that reinstatement of driving privileges after suspension requires payment of an administrative fee.

Judge Stacey was appointed as a district judge chambered in Dakota County in 1996 and, like other judges in the district, hears cases in the various county satellite service centers several times each year. On June 2, 2004, the clerk approached Judge Stacey, who was in chambers in West St. Paul that day. The clerk testified that, despite a written county policy barring court employees from asking judges for special treatment for “themselves or people they know,” she asked Judge Stacey if there was something the judge could do so that her husband would not lose a day’s work to come to court. The clerk showed Judge Stacey her husband’s driving record, which showed no violations after the year 2000, and told Judge Stacey that the required child support had been paid.

The City of Eagan, the issuing jurisdiction, does not require that district court judges consult with municipal prosecutors before resolving traffic citations that do not require a court appearance. It is not unusual for judges in Dakota County to continue for dismissal or stay adjudication of minor traffic violations provided the driver’s record for the preceding two or three years shows no violations. Consistent with these practices, Judge Stacey continued for dismissal the citation for driving after suspension issued to the clerk’s husband.

Approximately a year later, an anonymous letter alerted Dakota County authorities to the fact that the same clerk had asked Judge Thomas Murphy to dismiss a speeding ticket for her son. The clerk was placed on administrative leave pending an investigation. Given a choice of resigning or the termination of her employment, the clerk resigned.

After learning that the clerk would lose her job over the incident, Judge Stacey contacted David Pauli, Executive Secretary to the Board on Judicial Standards, described the situation, and inquired whether the board had any experience with a similar situation in the past. After this call, the board opened an investigation of Judge Stacey.

The board filed a formal statement of complaint against Judge Stacey in February 2006. Judge Stacey responded in February 2006 and affirmatively denied that his conduct violated either the Code of Judicial Conduct or the Rules of the Board on Judicial Standards. Pursuant to Rule 10, Rules of Board on Judicial Standards, we appointed a fact finding panel consisting of Hon. Lawrence T. Collins, Hon. Lynn C. Olson, and Tom H. Swain. The panel conducted a public hearing over three days in May 2006 at which Judge Stacey and others testified. The panel issued findings of fact and conclusions of law in August 2006, finding that in dismissing the ticket for driving after suspension Judge Stacey was “reaching a legal conclusion and applying the law as he understood it.” Under Rule 4(c), Rules of Board on Judicial Standards, the board is barred from taking action against a judge “for making findings of fact, reaching a legal conclusion or applying the law as understood by the judge.” The panel recommended that the complaint against Judge Stacey be dismissed.

On December 13, 2006, the board filed its written findings, conclusions, and recommendations for discipline. Contrary to the panel’s conclusions, the board concluded that Judge Stacey’s conduct violated Canons 1, 2A, 2B, and 3A(7), Code of Judicial Conduct. The board recommended that Judge Stacey be publicly reprimanded and fined $3,000.

When we impose judicial sanctions, our purpose is not to punish but to protect the public by insuring the integrity of the judicial system. In re Miera, 426 N.W.2d 850, 858 (Minn.1988). “The sanction must be designed to announce our recognition that misconduct has occurred, and our resolve that similar conduct by this or other judges will not be condoned in the future. We act not to punish the wrongdoer but to restore public confidence in the system and its officers.” Id.

We note at the outset that this case comes to us in an unusual procedural posture, in that the findings of fact made by the board differ in key respects from the findings of fact made by the panel we appointed to hear the evidence. In particular, the panel found it was “unclear” whether in her conversation with Judge Stacey the clerk characterized the driver as her husband. In contrast, the board found that the clerk asked Judge Stacey “if there was something that he could do so that her husband would not have to take a day off from work and come to court.” In light of our decision in Murphy, whether Judge Stacey knew the ticket belonged to a family member of a court employee is significant. See Murphy, 737 N.W.2d at 365.

We have observed that the function of the fact finding panel is to develop the most complete record possible for consideration by the board and this court. In re Miera, 426 N.W.2d at 855. Rule 11(c), Rules of Board on Judicial Standards, requires the board to review the “findings and recommendations” made by the fact finding panel and allows the board to “substitute its judgment for that of the factfin-der.” Rule 11(d) requires the board to then make recommendations to us as to sanctions “[biased on clear and convincing evidence in the hearing record.” But Rule 11(c) is silent as to whether the board may make findings of fact or conclusions of law that differ from those of the fact finding panel.

Nor does Rule 13(f), Rules of Board on Judicial Standards, prescribe the standard of review we are to adopt in judicial discipline cases, particularly when we are confronted with two differing sets of findings of fact and conclusions of law. Rule 13(f) requires us to “review the record of the proceedings on the law and the facts,” to “aceept[ ], reject[ ] or modify[ ] in whole or in part, the recommendation of the board,” and to “direet[ ] such disciplinary action as [we] find[ ] just and proper.” But Rule 13(f) does not specify what, if any, deference we are to give to the findings of fact made by either the fact finding panel or the board.

In the end, we need not address these questions here. Rule 10(c)(2), Rules of Board on Judicial Standards, requires the board to prove by clear and convincing evidence the facts justifying discipline. We conclude that, regardless of the deference to be accorded to the findings of either the panel or the board, the board has proven by clear and convincing evidence that Judge Stacey’s handling of the ticket at issue here violated Canons 1 and 2A, Code of Judicial Conduct, but has failed to prove that Judge Stacey’s handling of the ticket violated any other canon.

As we did in Murphy, we place Judge Stacey’s conduct against the backdrop of standard practice in Dakota County. See Murphy, 737 N.W.2d at 362-65. Five witnesses explained to the fact finding panel how petty misdemeanor traffic tickets are handled in Dakota County. According to the undisputed testimony, petty misdemeanor traffic tickets are routinely handled by judges in Dakota County without prosecutorial input. Although most are resolved on the day on which the driver is ordered to appear, it is not unusual for tickets to be resolved on other days and in other courthouses. For example, the witnesses testified, a driver may come to the wrong service center, or on the wrong day. In such instances, judges and court personnel attempt to accommodate the driver. Nor is it unheard of for traffic tickets to be resolved without the physical presence of the driver. For example, the witnesses testified, a driver residing in another state may write to the district court requesting resolution of a ticket without a court appearance. Finally, the witnesses testified, where a driver has no other citations within the past two or three years, judges in the county routinely continue petty misdemeanor citations for dismissal (or stay adjudication) on condition that the driver commit no same or similar offenses within a prescribed period.

The board charged Judge Stacey with violating Canon 3(A)7, Code of Judicial Conduct, which bars judges from initiating, permitting, or considering ex parte communications. But Canon 3(A)7(d) expressly permits judges to confer separately with the parties, with their consent, in an effort to mediate or settle a pending matter. The testimony before the fact finding panel was undisputed that prosecutors have given judges in Dakota County wide discretion to dispose of citations, both in open court and in chambers, without prosecutorial input. As a result, we cannot conclude that the board has proven by clear and convincing evidence that Judge Stacey’s resolution of the ticket in chambers, without prosecutorial input, violated Canon 3A(7)’s prohibition against ex parte communications.

Nor can we conclude that the board has proven by clear and convincing evidence that Judge Stacey’s resolution of the ticket violated Canon 2B, either because it was done in chambers rather than in open court or because it was continued for dismissal. Canon 2B bars a judge from allowing “family, social, political or other relationships to influence judicial conduct or judgment.” Given the undisputed testimony of the witnesses before the fact finding panel that judges in Dakota County resolve similar petty misdemeanor citations in chambers rather than in open court, we conclude that the board failed to prove by clear and convincing evidence that Judge Stacey’s handling of this ticket in chambers was the product of a “family, social, political or other relationship[ ]” between the clerk and Judge Stacey. Likewise, given the undisputed testimony of the witnesses before the fact finding panel that similar petty misdemeanor citations are routinely continued for dismissal in Dakota County, we conclude that the board failed to prove by clear and convincing evidence that Judge Stacey’s continuance of this ticket for dismissal was the product of a “family, social, political or other relationship[ ]” between the clerk and Judge Stacey.

But Judge Stacey’s disposition of this ticket was unique in one key respect: it was the ticket of a family member of a Dakota County court employee, and in asking Judge Stacey to handle the ticket in chambers, the employee violated Dakota County’s prohibition against court employees approaching judges on behalf of themselves or “people they know.” As we indicate above, the fact finding panel found it was “unclear” whether the clerk referred to the driver as her husband. Judge Stacey testified he has no independent recollection of the conversation, and the clerk explicitly testified that she told Judge Stacey “it was my husband’s ticket.” We conclude that there was clear and convincing evidence submitted to the panel establishing that Judge Stacey knew, or should have known, that the ticket in question belonged to a family member of a court employee. And, although the county’s policy does not apply to district court judges, Judge Stacey knew or should have known that by asking him to handle the ticket, the clerk was violating county policy.

As Judge Stacey acknowledged in his testimony before the panel, Dakota County’s policy of continuing certain petty misdemeanors for dismissal is not well-known among members of the public. Under these circumstances, the continuance for dismissal of a ticket issued to a family member of a court employee at the request of the court employee, in chambers rather than in open court, in violation of an express policy, weakens public confidence in the integrity and impartiality of the judiciary. In this respect, Judge Stacey’s conduct violated Canons 1 and 2A, Code of Judicial Conduct.

Acknowledging, as we must, the burdens placed on the district courts by the high volume of petty misdemeanor citations, we are nonetheless compelled to note that the better practices for handling such citations include clear procedures and, absent unusual circumstances or the agreement of all parties and counsel, dispositions of disputed citations in open court with the opportunity for prosecutorial input.

The board recommended that Judge Stacey be assessed a civil penalty of $3,000. In light of Judge Stacey’s commendable decision to bring this matter to the attention of the Board on Judicial Standards, and given that the purpose of a judicial sanction is not to punish but to insure the integrity of the judicial system, we conclude that a monetary penalty is neither necessary nor warranted here.

The dissent construes Rule 11(c), Rules of Board on Judicial Standards, to allow the board to substitute its judgment for that of the fact finding panel as to conclusions of law and recommendations for discipline, but not as to findings of fact. But this is not what Rule 11(c) says. By stating specifically that the board can “substitute its judgment for that of the factfinder,” Rule 11(c) clearly indicates that the board can disagree with the panel in its role as fact finder. If Rule 11(c) were intended to grant the board only authority to disagree with the panel’s conclusions of law and recommendations for discipline but not with the panel’s factual findings, as the dissent contends, it would have said so. Also, Rule 11(b) states that “[cjounsel for the judge and board may submit written objections to the findings.” This would be a pointless exercise if the findings could not be altered after they left the panel.

Further, the factual finding of the panel that it was “unclear” whether the clerk identified the driver of the vehicle as her husband — a finding that is pivotal to the dissent — has little basis in the record. The clerk testified that she identified the driver as her husband, showed an insurance card to Judge Stacey and also advised that the required child support had been paid. This testimony by the clerk is not challenged by Judge Stacey. The dissent does not dispute that we are to carefully review the entire record, and when we do so, we conclude that the factual finding so critical to the dissent is not anchored to the record.

But ultimately neither the board’s prerogative to disagree with the panel’s factual findings nor the panel’s finding of lack of clarity as to identity is determinative of our decision to impose public discipline here. Our imposition of public discipline on Judge Stacey hinges on our conclusion that Judge Stacey should have known that the ticketed driver was the clerk’s husband, whether or not the clerk identified him as such. The dissent agrees with this conclusion, and also agrees that this behavior violated Canon 2A, Code of Judicial Conduct. Where the dissent and majority part company, however, is on the appropriateness of a public reprimand. Notwithstanding the argument of the dissent for a private warning, our purpose in imposing judicial discipline is to “restore public confidence in the system and its officers.” In re Miera, 426 N.W.2d at 858. We must impose a sanction “designed to announce our recognition that misconduct has occurred, and our resolve that similar conduct by this or other judges will not be condoned in the future.” Id. Because Judge Stacey’s conduct may have created the impression among the public that court employees and their families may use their access to judges to obtain preferential treatment for traffic violations, and despite Judge Stacey’s candor before the panel and board and his commendable conduct in bringing the matter to the attention of the board, we conclude that our obligation to preserve the integrity of the judicial system requires us to issue a public reprimand to Judge Stacey.

Based on the foregoing, it is the order and judgment of this court that Judge Rex D. Stacey be, and hereby is, publicly reprimanded.

ANDERSON, PAUL H. and PAGE, JJ., Dissenting.

ANDERSON, PAUL H., J.

(dissenting).

Clear and convincing proof will be shown where the truth of the facts asserted is “highly probable.”
In re Miera, 426 N.W.2d 850, 853 (Minn.1988) (quoting Weber v. Anderson, 269 N.W.2d 892, 895 (Minn.1978)).

I respectfully dissent. The court publicly reprimands Judge Stacey because it concludes that he either knew or should have known that by asking him to resolve her husband’s traffic ticket, the clerk was violating county policy. I conclude that the evidence is clear and convincing that Judge Stacey should have known that the clerk’s request violated county policy. But I conclude the board failed to prove, by clear and convincing evidence, that Judge Stacey actually knew the clerk’s request violated that policy. There is a significant distinction between actual knowledge and constructive knowledge in this context. Further, I am concerned that when the court publicly reprimands Judge Stacey for what he should have known about this traffic ticket, the court may, at least in part, be heightening the discipline imposed as a consequence of Judge Stacey having candidly and honestly testified about his lack of recollection of the specific facts of this case.

At the outset, we are confronted by a conundrum in the Rules of the Board on Judicial Standards. The panel that heard testimony in this matter found “[i]t is unclear whether [the clerk] referred to [the ticketed driver] as her husband.” But the Board on Judicial Standards makes no such finding. Rule 13(f), Rules of Board on Judicial Standards, provides that we are to “review the record of the proceedings on the law and the facts and * * * file a written opinion and judgment directing such disciplinary action as [we] find[ ] just and proper, accepting, rejecting or modifying in whole or in part the recommendation of the board.” But the rules do not specify how our review is to proceed.

In lawyer discipline proceedings, we uphold a referee’s factual findings and conclusions of law if they have evidentiary support in the record and are not clearly erroneous. In re Pinotti, 585 N.W.2d 55, 62 (Minn.1998). Deference to a referee in lawyer discipline proceedings is particularly appropriate when the findings are based on a witness’s demeanor, credibility, or sincerity. Id. Accordingly, we reverse findings of fact in lawyer discipline matters only if, “upon review of the entire evidence, [we are] left with the definite and firm conviction that a mistake has been made.” Id. (quoting In re Strid, 551 N.W.2d 212, 215 (Minn.1996)).

In this case, unlike lawyer discipline cases, we received two sets of findings of fact and conclusions of law: those of the three-member fact-finding panel that we appointed, and those of the board. The board’s findings differ from those of the panel on a key aspect of the case that should prove crucial to our ultimate determination of whether Judge Stacey knew or should have known the request violated county policy: whether the clerk explicitly referred to the ticketed driver as her husband.

The last time we faced a difference between the board’s findings of fact and those of a fact-finding panel, judicial discipline proceedings were governed by a different set of rules. When we decided In re McDonough, 296 N.W.2d 648 (Minn.1979), the Rules of the Board on Judicial Standards specifically allowed for fact finding by either the Commission on Judicial Standards — as it was then called — or an appointed referee. Prior to 1978, the rules were called “Rules of the Commission on Judicial Standards.” Rule G.l, Rules of Board of Judicial Standards (1978). Moreover, when fact finding was conducted by a referee, the affirmative vote of at least five commission members “who have considered the report of the referee and objections thereto, or who were present at any oral hearing before a referee” was required for a recommendation of discipline. Rule R.l (1978). Finally, the rules then provided that:

The commission shall make written findings of fact and conclusions of law along with its recommendations for action thereon with respect to the issues of fact and law in the proceedings, or may adopt the findings of the referee, in whole or in part, by reference thereto.

Rule R.2 (1978). That is, the rules explicitly allowed the commission to make factual findings different from those of the appointed referee.

In contrast, current board rules do not allow the board to conduct its own fact finding. And, current Rule 11(c) provides: “The findings and recommendations and the hearing record shall be promptly reviewed by the board. The board may substitute its judgment for that of the factfinder.” I construe the current rule to allow the board to “substitute its judgment” as to conclusions of law and recommendations for discipline, but not to make findings of fact that differ from those of the fact finding panel, particularly when those findings rely on the credibility of a witness who has testified before the panel but not the board.

We have observed that “[t]he clear and convincing standard arises from an appreciation of the gravity of a disciplinary proceeding and the magnitude of the loss to which a disciplined judge is subjected.” In re McDonough, 296 N.W.2d at 692. For the foregoing reasons, I conclude that our court must adopt the panel’s finding that it is “unclear” whether the clerk explicitly referred to the ticketed driver as her husband. Given this uncertainty, I conclude the board has not proven by the requisite clear and convincing evidence that Judge Stacey knew the clerk’s request violated county policy. That is, I cannot say that on this record, it is “highly probable” that Judge Stacey dismissed the ticket knowing it had been issued to the husband of a county employee.

I do, however, believe that the board proved by clear and convincing evidence that Judge Stacey should have known that the ticket belonged to the clerk’s husband and, therefore, should have known that the clerk’s request violated county policy. Even if the clerk did not explicitly refer to the ticketed driver as her husband, the driver’s name appeared on the ticket and on the driving record the clerk printed, and the driver’s last name was the same as the clerk’s. In addition, the clerk testified that she showed Judge Stacey an insurance card to prove that the driver carried insurance. The card itself is not in the record, but the clerk testified that “[w]e’ve always had insurance on our cars.” From that statement, I surmise that the insurance card bore the names of the clerk and her husband, as it typically would when a married couple is insured. Finally, it is significant that the panel found that the clerk told Judge Stacey that the required child support had been paid, but apparently offered no documentation of that fact. If Judge Stacey had not realized from this exchange with the clerk up to this point that the clerk and the driver were related, the clerk’s undocumented representation as to payment of the child support should have aroused enough suspicion for the judge to inquire further how the clerk knew the child support had been paid, and that inquiry should have disclosed the relationship.

Having concluded that the board proved only that Judge Stacey should have known that the driver and the clerk were related and the request therefore violated county policy, the question becomes— what is the appropriate discipline to impose? I believe that under these circumstances imposition of a public reprimand is not warranted; rather, the board should have privately warned Judge Stacey and (1) cautioned him to be more careful in the future in handling this type of case; and (2) reviewed with him what procedures he should follow when handling similar matters.

In reaching this conclusion, I note particularly that Judge Stacey testified he has no independent recollection of his conversation with the clerk, of the ticket, or of his resolution of the ticket. I find the judge’s testimony believable given the number of traffic tickets judges process on a regular basis, but this honest recounting has put Judge Stacey at a distinct disadvantage because he was unable to contradict anything to which the clerk testified. I also note that, as the court concludes, there is no evidence that Judge Stacey’s resolution of the ticket was inconsistent with the way in which minor traffic offenses are handled by the judges in Dakota County. Given these facts and circumstances, we should not impose public discipline on Judge Stacey.

But to recommend against public discipline for Judge Stacey for following court procedures is not to condone these procedures. To the contrary, the court’s procedures for resolving payables offenses are flawed in many respects. Minnesota Statutes § 631.21 (2006) allows for dismissal of a criminal action, and prescribes the following procedures to be taken:

The court may order a criminal action, whether prosecuted upon indictment or complaint, to be dismissed. The court may order dismissal of an action either on its own motion or upon motion of the prosecuting attorney and in furtherance of justice. If the court dismisses an action, the reasons for the dismissal must be set forth in the order and entered upon the minutes. The recommendations of the prosecuting officer in reference to dismissal, with reasons for dismissal, must be stated in writing and filed as a public record with the official files of the case.

I believe that it is reasonable to adapt this procedure to the resolution of payables offenses.

First, the Dakota County judges who testified in this matter all stated that prosecutors never objected to their resolution of matters without prosecutorial input. It may well be the case that prosecutors in the county do not object to judges resolving cases without prosecutorial input. But the basis for the court’s procedures should be an explicit agreement with prosecutors, not the absence of an objection from them. Second, by resolving charges in reliance even in part on a clerk’s representations, the court’s procedures leave no paper trail by which the factual basis for the judge’s disposition can be traced. No charge should be dismissed or continued without documentation. In this case, that required documentation should have included: proof of insurance, proof of an otherwise clean driving record, and proof that child support had been paid. Further, to create a paper trail, such matters should always be resolved on the record, reciting the documentation provided to justify the resolution of the charge. By resolving matters in chambers, the court creates the very problem discussed by Judge Stacey in his testimony: the appearance of impropriety because not everyone ticketed in the county knows that his or her ticket can be resolved without pleading guilty or going to trial. To avoid this problem, matters should be resolved in open court whenever possible.

Finally, while I agree that, under certain circumstances such as those in this case, it is appropriate to discipline a judge who should have known that his or her conduct violated the Canons, I believe that we must be very careful in applying this nebulous standard. Unlike the standard that requires actual knowledge, the should-have-known standard is more subjective and may be difficult for us to apply. Hence, this standard has the potential to sweep too broadly. Further, I see as the real problem in this case the Dakota County court’s standard procedures for disposition of minor traffic tickets. These procedures allowed, and may even have facilitated, Judge Stacey’s case to unfold as it has. I believe it would be most appropriate here for us to vigorously condemn the court procedures but show more understanding for the judge who, by following those procedures, committed an act that violated the Canons.

I respectfully dissent.

PAGE, Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

      . A continuance for dismissal under Minn. R.Crim. P. 27.05 and Minn.Stat. § 609.132 (2006) suspends prosecution for the cited offense for a designated period of time on certain conditions. There is no finding or admission of guilt. If the defendant has met the stated conditions, at the end of the designated period the citation is dismissed. A stay of adjudication, on the other hand, is predicated upon a guilty plea or a finding of guilt. But because the adjudication of the defendant as guilty is stayed upon certain conditions, if the defendant successfully completes the stated conditions there is no criminal conviction. See Minn.Stat. § 152.18 (2006) (describing stays of adjudication for certain first time drug offenders).

      . The clerk's request of Judge Murphy led to separate disciplinary proceedings against Judge Murphy. See In re Honorable Thomas M. Murphy, 737 N.W.2d 355, No. A06-0306 (Minn.2007).

      . Canon 1, Code of Judicial Conduct provides:
      An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and personally observe those standards in order to preserve the integrity and independence of the judiciary. The provisions of this Code should be construed and applied to further that objective.
      Canon 2A, Code of Judicial Conduct provides:
      A judge shall respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
      Canon 2B, Code of Judicial Conduct provides:
      A judge shall not allow family, social, political or other relationships to influence judicial conduct or judgment. A judge shall not lend the prestige of the office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
      Canon 3A(7), Code of Judicial Conduct provides:
      A judge shall accord to every person who has a legal interest in a proceeding, or person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except that:

      (d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
      (e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

      . It appears that when we last were confronted with a difference in factual findings between the board and the referee, in In re McDonough, 296 N.W.2d 648 (Minn.1979), the Rules of the Board of Judicial Standards expressly allowed for fact finding by both the commission (as the Board on Judicial Standards was then called) and an appointed referee. Rule G.l, Rules of Board on Judicial Standards (1971). Additionally, the rules at that time explicitly allowed the commission to make factual findings different from those of the referee. Id. at Rule R.2.


author: PER CURIAM. ANDERSON, PAUL H., J. PAGE, J.

text:
    Inquiry into the Conduct of the Honorable Thomas M. MURPHY (retired).
    No. A06-0306.
    Supreme Court of Minnesota.
    Aug. 23, 2007.

      Edward F. Kautzer, Ruvelson & Kaut-zer Chartered, St. Paul, MN, for Thomas M. Murphy.
    Douglas A. Kelley, Steven E. Wolter, Kelley & Wolter, P.A., Minneapolis, MN, for Board on Judicial Standards.
   OPINION

PER CURIAM.

The Honorable Thomas M. Murphy, retired Judge of District Court, challenges the recommendation of the Minnesota Board on Judicial Standards that he receive a public reprimand for attempting to influence the testimony of a witness in the Board’s investigation into his conduct and for his ex parte handling of a traffic ticket belonging to the son of an administrative clerk employed by the judicial district. We publicly reprimand Judge Murphy for his behavior toward the witness and for his handling of the ticket.

On April 13, 2005, the son of one of the senior clerks in the Dakota County Court Administrator’s Office received a petty misdemeanor citation for speeding in violation of Minn.Stat. § 169.14 (2006). The location where the son was stopped falls within the unincorporated area of Dakota County and prosecution of the ticket fell within the jurisdiction of the Dakota County Attorney’s Office. The son was ordered to appear on May 25 at the Hastings courthouse.

Judge Murphy was appointed as a district judge chambered in Dakota County in 1985. He was re-elected to successive judicial terms until he retired in 2004. Since then, he has served as a judge of district court pursuant to appointment under Minn.Stat. § 2.724, subd. 3 (2006) with chambers in the West St. Paul courthouse. The clerk, ticket in hand, approached Judge Murphy in his chambers on April 18. Judge Murphy was catching up on work and reviewing mail, and no one else was present. The clerk later testified that she told Judge Murphy, “[t]his is my son’s ticket. * * * [IJinstead of him taking the day off work and missing the pay, and instead of him pleading guilty to it and paying it and it going on his driving record, is there something that you could do?” Judge Murphy testified that the clerk came in and said, “[d]o we want to take care of this, or [c]an we get this resolved, or something of that extent.” He testified that the clerk did not say, and he did not know, that the cited driver was her son.

Judge Murphy looked over the ticket and the son’s driving record, noting that the driver had no moving violations for seven years. Judge Murphy continued the citation for dismissal for six months and assessed $50 in court costs. He later testified that this was a standard disposition for this type of ticket, and that the handling of a traffic ticket in chambers without a prosecutor was common in Dakota County. He gave the ticket back to the clerk for processing. No Dakota County prosecutor had an opportunity to provide input into the disposition of the ticket.

The incident cost the clerk her job. A written policy prohibits Dakota County court personnel from seeking special treatment from judges on behalf of themselves, their family, or their friends. The policy applies only to court personnel, not to judges. In response to an anonymous complaint, the district court administrator investigated and told the clerk to resign or she would be fired. She resigned.

After the Board on Judicial Standards learned of the incident, it solicited comment from Judge Murphy in a letter dated September 27, 2005. Judge Murphy answered by letter, explaining that because the clerk and her son have different last names and the clerk did not disclose their relationship, he did not know the driver was the clerk’s son. He also noted that he gave the ticket a standard disposition. Judge Murphy added that the clerk was “somewhat evasive” during the conversation and that he believed his mistake was “not inquiring further into this matter.” He also added, “[h]ad I known it was her son, I know I would not have gone ahead with the matter.” The board sent Judge Murphy a proposed public reprimand on November 28, 2005.

After receiving this proposed reprimand, Judge Murphy left the clerk a phone message at home, asking her to call him. She called back the next day. After exchanging small talk, Judge Murphy told the clerk that she never told him the cited driver was her son. The clerk insisted that she had told him. She testified that she was upset after the phone call because she felt that Judge Murphy was asking her to change her story. The clerk also recalls Judge Murphy telling her they needed to “get [their] stories straight” for the board. Judge Murphy “unequivocally” denies making that statement. According to Judge Murphy, the call ended with the understanding that “[y]ou tell your side, I’ll tell my side and away we go.”

On January 19, 2006, the board issued a formal statement of complaint against Judge Murphy for affording the clerk special treatment. On March 6, Judge Murphy left a message for the clerk at home, telling her that he hoped they were still “buddies” and that he had “no axe to grind” with her. He also stated that “everybody” was telling the board that the disposition of the ticket would have been the same no matter where it was handled. He made the call because the courthouse “rumor mill” informed him that the clerk thought he was “terribly mad with her and angry at her.”

Pursuant to Rule 10, Rules of Board on Judicial Standards, we appointed a fact finding panel consisting of Hon. Andrew W. Danielson, Hon. Spencer J. Sokolowski, and Ann M. Bailly. A public hearing was held before the panel on April 26 and 27, 2006. Judge Murphy was present throughout the hearing. On June 24, the panel submitted its proposed findings and recommendations to the board.

The panel recommended that the complaint be dismissed in its entirety and that Judge Murphy be awarded costs. The panel found that the board failed to prove that Judge Murphy afforded any special treatment to the clerk, suggested anything improper to the clerk regarding her testimony before the panel, or violated any of the Canons of Judicial Conduct as alleged in the board’s complaint. The panel found that the clerk announced that the ticket belonged to her son, but Judge Murphy was busy reviewing mail and files and did not hear her. The panel also found that “a standard-type disposition has developed in Dakota County where a traffic offender with a clean record for one (1) year would receive either a stay of adjudication or a continuance for dismissal and have costs assessed. This was the type of disposition provided to [the clerk’s son],” and therefore “[c]learly, no special treatment was rendered whether Judge Murphy knew or did not know about the relationship between [the clerk] and [the driver].” The panel further found that non-mandatory court appearance traffic citations are routinely handled by judges without the input of a prosecutor.

The board, nevertheless, recommended that Judge Murphy be publicly reprimanded and removed from the roster of retired judges eligible for assignments. It has since withdrawn the recommendation of removal. The board asserts that the phone conversation and the voicemail from Murphy to the clerk were inappropriate attempts to influence her testimony before the panel and that his in-chambers handling of the ticket was improper. The board asserts that Judge Murphy’s behavior violated Rules 4(a)(5) and 4(a)(6), Rules of Board on Judicial Standards (making “[e]onduct prejudicial to the administration of justice that brings the judicial office into disrepute” and “[c]onduct that constitutes a violation of the Code of Judicial Conduct or Professional Responsibility” grounds for discipline). With respect to Rule 4(a)(6), the board asserts that Judge Murphy’s conduct violated Canons 1, 2A, 2B, and 3A(7), Code of Judicial Conduct. We will first consider Judge Murphy’s contact with the clerk after the investigation began, and then consider his handling of the ticket.

I.

When this court imposes judicial sanctions, the purpose of the discipline is not to punish but to protect the public by insuring the integrity of the judicial system. In re Miera, 426 N.W.2d 850, 858 (Minn.1988). “The sanction must be designed to announce our recognition that misconduct has occurred, and our resolve that similar conduct by this or other judges will not be condoned in the future. We act not to punish the wrongdoer but to restore public confidence in the system and its officers.” Id.

The board must prove by clear and convincing evidence that Judge Murphy engaged in misconduct. Id. at 853. The fact finding panel’s function is to develop the most complete record possible for consideration by the board and this court. Id. at 855. “The board may substitute its judgment for that of the fact-finder.” Rule 11(c), Rules of Board on Judicial Standards. This court then independently reviews the record and the proceedings and may accept, reject or modify in whole or in part the recommendation of the board. Rule 13(f), Rules of Board on Judicial Standards; see In re Miera, 426 N.W.2d at 855 (noting that this court “makes an independent review of the record” and may consider evidence not admitted by the panel); In re Snyder, 336 N.W.2d 533, 536 (Minn.1983) (exercising our “authority to independently review the record of the proceedings before the Board on the law and on the facts” and reaching factual conclusions); In re McDonough, 296 N.W.2d 648, 691 (Minn.1979) (describing the “particularly zealous study by every member of this court of the record before us, conducted with a heightened awareness of our independent role”). We are sensitive, however, to the fact that the panel had the opportunity to view the witnesses as they testified and is therefore in a superior position to assess credibility. In re Miera, 426 N.W.2d at 854. The board argues that even if Judge Murphy did not say, as the clerk testified, that he and the clerk ought to “get [their] stories straight,” the mere act of contacting her after the board’s investigation began was improper because it may have been an attempt to ingratiate himself with the clerk and because it created the appearance of impropriety. The board directs our attention to In re Empson, 252 Neb. 433, 562 N.W.2d 817 (1997). In Empson, the Nebraska Supreme Court considered a complaint that addressed, among other things, a judge’s continuing pattern of offensive conduct, including sexual harassment of female court personnel. Id. at 822. The judge contacted two of the alleged victims before they testified in the matter, yelling at one and paying the other compliments on her legal abilities. Id. at 831-32. While the court found that the judge did not attempt to get the victims to change their testimony, it was “troubled by respondent’s contacting individuals about a future proceeding of which he is the subject, especially when respondent was aware that those persons were going to testify against him at the proceeding.” Id. at 832. The fact that one of the witnesses felt threatened by the contact and the other thought the judge was trying to ingratiate himself with her added to the court’s discomfort. Id. The court found that the judge’s actions in contacting the witnesses “brfought] into question respondent’s judgment and judicial temperament, and create[d] an appearance of impropriety” in violation of the Nebraska Code of Judicial Conduct. Id.

While Judge Murphy’s conduct was not as egregious as that in Empson, it created a similar appearance of impropriety. Judge Murphy’s statements that he and the clerk were “buddies” and that he had “no axe to grind” with her look like rather transparent attempts to ingratiate himself with her. Judge Murphy’s statement that the board was “hearing from everybody” that the disposition of the ticket was standard appears to be an attempt to foreclose the clerk from testifying otherwise.

Judge Murphy denies that he had improper contact with the clerk and states that he “[doesn’t] see the harm in talking to somebody that you know.” We note that, although Judge Murphy and the clerk apparently had a professional relationship and would sometimes smoke together outside the building, the record contains no evidence that Murphy and the clerk previously communicated outside of work hours or outside of the workplace. On this record, Judge Murphy’s assertion that he was merely carrying on his friendship with the clerk is dubious. More disturbingly, even if the phone calls were within the parameters of their friendship, Judge Murphy initiated the calls partially, if not exclusively, for the purpose of discussing a pending investigation into his own conduct, knowing that the clerk would be a witness in that investigation. He also went so far as to openly contradict her version of events.

Even assuming that Judge Murphy acted in good faith, his contacts with the clerk reflect an alarming lack of judgment. A judge’s contact with a witness in an ongoing disciplinary investigation into his conduct, outside of work hours, outside of the work setting, for the purpose of discussing the investigation, does not promote public confidence in the integrity and impartiality of the judiciary. Judge Murphy’s conduct, therefore, was a violation of Canon 2A, Code of Judicial Conduct, and Rule 4(a)(6), Rules of Board on Judicial Standards.

We must next decide what discipline to impose for this violation. The board is charged with recommending any of several sanctions. See Rule 11, Rules of Board on Judicial Standards. This court can then adopt, reject, or modify the board’s recommendation. In re Ginsberg, 690 N.W.2d 539, 548 (Minn.2004). The board recommends that Judge Murphy receive a public reprimand, and we adopt this recommendation.

II.

The board argues that Judge Murphy’s treatment of the ticket violated the canons of judicial ethics because it did not occur in a proceeding open to the public, because no prosecutor had input, and because it created the appearance that the judicial system favors those who have connections to judges. The board also suggests that Judge Murphy knew that the ticket belonged to the law clerk’s son. Judge Murphy argues that he gave the son’s ticket a standard disposition and that traffic tickets are routinely handled in a similar manner in Dakota County. He also notes that Rule 4(c), Rules of Board on Judicial Standards, prohibits imposition of discipline upon a judge who applies the law as he understands it without fraud, corrupt motive, or bad faith.

A. The disposition of the ticket

To assess the propriety of Judge Murphy’s handling of the ticket, we must place it against the backdrop of standard practice in Dakota County. The panel heard testimony as to how petty misdemeanor traffic tickets are handled in Dakota County from four witnesses: Judge Richard Spicer, Christopher Groves, Lori Hunstad, and Scott Hersey.

Judge Spicer, who was the Chief Judge of the First Judicial District from 2001 through 2005, testified that he routinely handles petty misdemeanor traffic tickets similar to the ticket at issue here without prosecutorial input. He testified that on many occasions clerks have come to his chambers with petty misdemeanor traffic tickets from individuals who came to the wrong courthouse, appeared on the wrong day, or lived out of town and mailed the ticket in. Judge Spicer testified that “a day [didn’t go] by” where he didn’t see a clerk about a petty misdemeanor and that he felt free to resolve these matters without talking to a prosecutor. He went on to testify that he “resolved 40 cases yesterday morning alone without any input from prosecutors, and at their request” and that in Apple Valley he might handle 100 petty misdemeanors in a morning, 90 of them without prosecutorial input. Judge Spicer explained that Dakota County prosecutors want judges to handle petty matters without individual input because the sheer volume of cases requires it. He also testified that the disposition of the ticket at issue was not unusual.

Christopher Grove is an attorney in private practice who formerly prosecuted misdemeanors for the City of Apple Valley and who had also defended misdemeanors in Dakota County. He testified that the courts in Apple Valley, Hastings, and West St. Paul might each handle more than 100 petty misdemeanors and misdemeanors in a morning. He testified that judges in Dakota County routinely resolved petty misdemeanors without input from prosecutors, and that he appreciated their doing so because it would be “impossible” to be involved or provide input into each petty misdemeanor case. He further testified that he would resolve cases where the defendant was not personally present, for instance where a parent would come in on behalf of a child, or a spouse on behalf of a spouse. He also testified that a stay of adjudication for six months with $50 in court costs was “consistent with what would normally happen” to a ticket for traveling fourteen miles per hour over the speed limit where the defendant had a “clean” record.

Lori Hunstad has been an Office Services Supervisor at the Dakota County District Court in Hastings for twenty-five years. She testified that tickets are sometimes handled in chambers without a prosecutor present, that judges sometimes resolve tickets for parties who show up on the wrong date or at the wrong location, and that the disposition of the ticket was not unusual.

Scott Hersey is head of the Criminal Division at the Dakota County Attorney’s Office. He testified that it was his policy to handle most matters in open court and that he would have objected to ex parte contact between a defense attorney or defendant and a judge in chambers. He conceded, however, that such contacts happen, and did not testify that he had ever complained about this practice. He testified that he prefers to resolve petty misdemeanors with a guilty plea not accepted, rather than a continuance for dismissal, to avoid possible problems of proving the violation later, and that he would not have offered a continuance for dismissal here in light of the driver’s history of license suspensions and revocations. He testified, however, that prosecutors exercise discretion and may offer a continuance for dismissal based on their review of a case, and further that any judge could have given the ticket a continuance for dismissal.

From this testimony, we conclude that ex parte disposition of traffic tickets without prosecutorial input is common in Dakota County; that it is not unusual for clerks to present traffic tickets to judges in chambers; that a continuance for dismissal with court costs is not an unusual disposition for a ticket issued to a defendant with a “clean” record for driving 79 m.p.h. in a 65 m.p.h. zone; and that tickets are sometimes resolved for a party who is not even present in the courthouse. On this record, therefore, we conclude that the disposition of the ticket was within the range of normal dispositions for similar traffic violations in Dakota County. We also conclude that ex parte resolution of similar traffic violations without prosecuto-rial input is common in Dakota County.

Thus, we cannot conclude that the board has proven by clear and convincing evidence that Judge Murphy’s resolution of the ticket violated Canon 2B, either because it was done in chambers rather than in open court or because it was continued for dismissal. Canon 2B bars a judge from allowing “family, social, political or other relationships to influence judicial conduct or judgment.” Given the undisputed testimony of the witnesses before the fact finding panel that judges in Dakota County resolve similar petty misdemeanor citations in chambers rather than in open court, we conclude the board failed to prove by clear and convincing evidence that Judge Murphy’s handling of this ticket in chambers was influenced by a “family, social, political or other relationship [ ]” between the clerk and Judge Murphy.

The Board relies on Ginsberg to argue that Judge Murphy violated Canon 3A(7), which requires him to afford all interested parties an opportunity to be heard. In Ginsberg we found, in relevant part, that a judge acted improperly by denying a prosecutor an opportunity to be heard on three occasions. 690 N.W.2d at 549. On the first two occasions, Judge Ginsberg dismissed charges at a hearing in open court without allowing the prosecutor, who was present, to be heard. Id. at 545. Here, in contrast, Judge Murphy continued the ticket for dismissal, rather than dismissed it outright, and he presented testimony that prosecutors in Dakota County did not want to be heard with regard to every petty misdemeanor ticket handled in court or in chambers. Ginsberg also involved Judge Ginsberg’s outright dismissal, for an attorney who was in his chambers on an unrelated matter, of a citation for failure to obey a traffic-control device. Id. at 546. Judge Ginsberg evidently believed that the city attorney prosecuting the case had a “problem” with the defendant’s wife, who was also an attorney, and the dismissal appears to have been, in part, an attempt at retribution against the city attorney. Id. The Panel and Board found that this conduct violated Canon 3A(7), and Ginsberg did not contest this conclusion. Id. at 548. He also did not argue or present any evidence that he simply followed standard procedures in his handling of the matter, as Judge Murphy has in this case.

Although the county or city prosecutor certainly qualifies as an interested party to a petty misdemeanor ticket issued by the county or city, it is apparently routine practice, unobjected to by prosecutors, for minor traffic violations to be handled without prosecutorial appearances in Dakota County. We conclude that the bare fact that Judge Murphy resolved the ticket in chambers without prosecutorial input does not constitute a violation of Canons 2B and 3A(7), Code of Judicial Conduct.

B. Appearance of partiality

Canon 2A, Code of Judicial Conduct, requires a judge to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” “The legal system depends on public confidence in judges, whose power rests in large measure on the ability to command respect for judicial decisions.” In re Miera, 426 N.W.2d at 855. Public confidence in the judiciary suffers if the public perceives that, by virtue of their unique access to judges, court employees can obtain preferential treatment for themselves or for their family members. Public confidence in the judiciary suffers further when matters involving court employees or their family members are resolved behind closed doors, even if the disposition would have been the same in open court. See In re Nowell, 293 N.C. 235, 237 S.E.2d 246, 257 (1977) (“The objective observer * * * would surely think he had reasonable cause to believe that those who knew the judge, or knew a deputy sheriff who knew the judge, could receive more favorable treatment than the average traffic offender.”); Cynthia Gray, Ticket-Fixing, Jud. Conduct Rep., Summer 2006, at 1, 5-6 (arguing that ticket fixing is a violation of the code of judicial conduct and ought to be discouraged).

The clerk and Judge Murphy offered dramatically different accounts of her presentation of the ticket. The clerk testified that she entered the judge’s chambers and announced, “[t]his is my son’s ticket. He got a speeding ticket and, instead of him taking the day off of work and missing the pay, and instead of him pleading guilty to it and paying it and it going on his driving record, is there something that you could do?” Judge Murphy testified that the clerk handed her the ticket, he asked her whose it was, and she provided the defendant’s name (the defendant and the clerk did not have the same last name). He testified that he did not inquire further into the defendant’s identity or the reason why the ticket was before him. He also indicated in his letter to the board and in his testimony that he remembered the incident “pretty well” because it was “unusual” and that the clerk was “somewhat evasive.” The panel found that the clerk announced that the ticket belonged to her son, but Judge Murphy was “busy reviewing mail and files” and did not hear her.

We cannot reconcile the panel’s finding with the testimony of the clerk and Judge Murphy. Either the clerk was straightforward and announced that the ticket was her son’s, or she was “evasive;” she could not have been both. We note that, although the panel made no express credibility determination, it accepted the clerk’s testimony that she announced that the ticket belonged to her son. In contrast, despite Judge Murphy’s testimony that he remembered the incident well because it was so unusual, the panel’s findings did not credit his testimony that he asked to whom the ticket belonged or his testimony that the clerk was evasive.

Perhaps more importantly, the panel only addressed the issue of whether Judge Murphy knew that the ticket had been issued to the clerk’s son; it did not address the issue of whether Judge Murphy should have known that the ticket was issued to the son. The latter issue is important because Judge Murphy’s handling of the ticket deviated even from the relaxed procedures for petty misdemeanors that are common in Dakota County. Although ex parte, in chambers resolution of petty misdemeanor traffic tickets is not unusual in Dakota County, no one testified that it is common for a Dakota County judge to resolve a ticket without knowing to whom it belongs, why it is before the judge, or what resolution the defendant seeks. Judge Spicer testified that he does not “take representations” from a clerk and that “[n]o clerk will bring you a ticket” in Dakota County without the original ticket with the police officer’s notes. Judge Murphy testified that his usual practice is to require an admission to the offense from the defendant before ordering a continuance for dismissal and that people who come to the desk at the courthouse with a ticket typically are not seeking a continuance for dismissal because they “don’t know anything about that.”

By his own account, Judge Murphy failed to make any meaningful inquiry into the circumstances surrounding an “unusual” request by an “evasive” staff member for an ex parte, in chambers disposition of a ticket. Judge Murphy deviated from standard Dakota County practice when he issued a continuance for dismissal on the ticket without obtaining an admission from the defendant, without verifying that the defendant understood the disposition, without requiring that the defendant or someone representing the defendant be present in the courthouse, and without even knowing who the defendant was. Judge Murphy indicated in his letter to the board that his mistake was “not inquiring further into this matter.” We agree and find that the evidence shows, clearly and convincingly, that Judge Murphy should have made an inquiry sufficient to determine that the defendant was the clerk’s son. We therefore hold that Judge Murphy’s conduct violated Canon 2A, Code of Judicial Conduct, because he did not avoid the appearance of impropriety and did not act in a manner that promotes public confidence in the impartiality of the judiciary.

We must decide what discipline to impose for this violation. The board recommends that Judge Murphy receive a public reprimand, and we adopt this recommendation.

The dissent concludes that Judge Murphy should not be publicly disciplined for his disposition of the traffic ticket. The dissent relies on the panel’s factual finding that the clerk announced that the ticket belonged to her son, but Judge Murphy did not hear her. As we have explained, this finding is incompatible with Judge Murphy’s own testimony before the panel. Exercising our authority to independently review the record and factual findings, we conclude that this finding cannot possibly be correct.

The dissent agrees with our conclusion that Judge Murphy should have inquired further into the identity of the ticketed driver, and presumably agrees that the failure to make such an inquiry was a violation of Canon 2A, Code of Judicial Conduct. Notwithstanding the argument of the dissent for a private warning, our purpose in imposing judicial discipline is to “restore public confidence in the system and its officers.” In re Miera, 426 N.W.2d at 858. We must impose a sanction “designed to announce our recognition that misconduct has occurred, and our resolve that similar conduct by this or other judges will not be condoned in the future.” Id. Because Judge Murphy’s conduct may have created the impression among the public that court employees and their families may use their access to judges to obtain preferential treatment for traffic violations, we conclude that our obligation to preserve the integrity of the judicial system requires us to issue a public reprimand to Judge Murphy.

Based on the foregoing, it is the order and judgment of this court that Judge Thomas M. Murphy be, and hereby is, publicly reprimanded.

Concurring in part and dissenting in part, ANDERSON, PAUL H. and PAGE, JJ.

ANDERSON, PAUL H., J.

(concurring in part and dissenting in part).

I concur with the court’s determination that Judge Murphy be publicly reprimanded for his attempt to influence the testimony of a witness in these disciplinary proceedings; but, I disagree with the court’s determination to publicly reprimand Judge Murphy for his disposition of the traffic ticket. As I did in Stacey, I rely on the three-member panel’s finding that although the clerk said the ticket belonged to her son, Judge Murphy did not hear her. See In re Stacey, 737 N.W.2d 345, at 353-54 No. A06-305 (Minn. 2006) (Anderson, Paul H., J., dissenting). I therefore conclude that the board has failed to prove by the requisite clear and convincing evidence that Judge Murphy in fact knew the ticket he was dismissing had been issued to a family member of a court employee. But I conclude that Judge Murphy should have known that the clerk’s request violated county policy, because the circumstances of the clerk’s request should have led Judge Murphy to make further inquiry. For the reasons I expressed in Stacey, I conclude that the appropriate discipline for Judge Murphy’s conduct with respect to the traffic ticket is a private warning from the Board of Judicial Standards, not a public reprimand from this court. Id. at 354.

PAGE, J.

(concurring in part and dissenting in part).

I join in the concurrence and dissent of Justice Paul H. Anderson.

      . Section 169.14 was amended in 2005, but that amendment is not relevant here.

      . A continuance for dismissal under Minn. R.Crim. P. 27.05 and Minn.Stat. § 609.132 (2006) suspends prosecution for the cited offense for a designated period of time on certain conditions. There is no finding or admission of guilt. If the defendant has met the stated conditions, at the end of the designated period the citation is dismissed. A stay of adjudication, on the other hand, is predicated upon a guilty plea or a finding of guilt. But because the adjudication of the defendant as guilty is stayed upon certain conditions, if the defendant successfully completes the stated conditions there is no criminal conviction. See Minn.Stat. § 152.18 (2006) (describing stays of adjudication for certain first time drug offenders).

      .The complaint stated that the clerk’s son had received apparently preferential treatment of his ticket and that this was "not an isolated incident.”

      . The entire message stated:
      [ ], this is Tom Murphy calling. I've called a couple times before and never left a message on the machine. I’m just calling to tell you, you know, [ ], I have no problems with you and, you know, it’s the damn board that, uh — You and I were buddies and I hope we still are. I don’t have any problem with whatever you say, and, uh, you know, the disposition of that matter would be the same in chambers, at the desk, at the counter, at the court, in the court, uh, wherever, and the damn board is hearing that from everybody. So I just wanted to let you know that, uh, my feeling is that I have no axe to grind with, uh, you [ ]. It’s that damn board, who, uh just as ruthless as hell. So that’s why I’m gonna call — that's why I wanted to call and tell you.

      . Canon 1, Code of Judicial Conduct provides:
      An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and personally observe those standards in order to preserve the integrity and independence of the judiciary. The provisions of this Code should be construed and applied to further that objective.
      Canon 2A, Code of Judicial Conduct provides:
      A judge shall respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
      Canon 2B, Code of Judicial Conduct provides:
      A judge shall not allow family, social, political or other relationships to influence judicial conduct or judgment. A judge shall not lend the prestige of the office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
      Canon 3A(7), Code of Judicial Conduct provides:
      A judge shall accord to every person who has a legal interest in a proceeding, or person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except that:

      (d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
      (e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

      . The ABA House of Delegates approved an amended Model Code of Judicial Conduct on February 12, 2007. Under this new code, Canons represent "overarching principles of judicial ethics” and to be disciplined a judge must violate one or more of the numbered Rules that comprise each Canon. ABA Model Code of Judicial Conduct February 2007 at 2, available at http://www.abanet.org/ judicialethics/ABA_MCJC_approved.pdf [hereinafter ABA Model Code]. This is a change from the current code, in which violations of canons themselves are grounds for discipline. Because we reprimand Judge Murphy for conduct that does not promote public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A, Code of Judicial Conduct, which is similar to Rule 1.2 of the new ABA Code, the changes (if accepted in Minnesota), would not affect our decision in this matter. See ABA Model Code at 10.

      . The record contains no indication that any prosecutor in Dakota County ever complained about the practice.

      . Finding 30 of the Board’s Findings, Conclusions and Recommendations states: "There was no evidence introduced at the hearing showing that any other judge in Dakota County or the First Judicial District had ordered a continuance for dismissal in a traffic case without prosecutorial authorization.” This finding, as the Board promptly and responsibly conceded at oral argument, is obviously wrong.

      . While the desirability of these practices is open to question, we are called on here to evaluate Judge Murphy's conduct, not that of the entire Dakota County district court system.


author: RANDALL, Judge.

text:
    Gary REYNOLDS, Appellant, v. MINNESOTA DEPARTMENT OF HUMAN SERVICES, Respondent, Dakota County Department of Employment and Economic Assistance, Respondent.
    No. A06-1943.
    Court of Appeals of Minnesota.
    Aug. 21, 2007.

      Paul Onkka, Jr., Southern Minnesota Regional Legal Services, Inc., Shakopee, MN, for appellant.
    James C. Backstrom, Dakota County Attorney, Suzanne W. Schrader, Assistant County Attorney, Dakota County Judicial Center, MN, for respondent Dakota County Department of Employment and Economic Assistance.
    Lori Swanson, Attorney General, Robin C. Vue-Benson, Assistant Attorney General, Saint Paul, MN, for respondent Minnesota Department of Human Services.
    Considered and decided by WILLIS, Presiding Judge; TOUSSAINT, Chief Judge; and RANDALL, Judge.
   OPINION

RANDALL, Judge.

Appellant challenges the district court’s decision that his appeal pursuant to Minn. Stat. § 256.045, subd. 7 (2004), was untimely. Appellant argues that Minn. R. Civ. P. 6.05 should have applied to extend the 30-day time limit for appeal an additional three days because he received notice of the commissioner’s decision by mail. We agree, and reverse and remand.

FACTS

Appellant applied for General Assistance Medical Care (GAMC) in April 2005, from respondent Dakota County Department of Employment and Economic Assistance (DCDEEA). The application was denied because DCDEEA found that the aggregate value of appellant’s stocks and individual retirement account exceeded the maximum asset limit permitted for GAMC. Appellant appealed the decision to respondent Department of Human Services. On September 27, 2005, a hearing was conducted before a human services judge who issued a recommended order affirming the denial, which was then approved by the commissioner’s representative.

Appellant requested reconsideration of that decision by the chief human services judge. After reviewing the earlier findings, the chief judge affirmed the denial in a letter dated November 15, 2005. The correspondence informed appellant that the decision constituted “final agency action for purposes of judicial review” and stated that an appeal to the district court must be made within 30 days of the date of the letter. Appellant appealed the decision to the district court by mailing a notice of appeal to both respondents on December 19, 2005, 34 days after the date of the letter from the chief judge, and filing a notice of appeal with the district court on the same day. Following a hearing on the matter, the district court dismissed the appeal as untimely because appellant failed to appeal within the 30-day period as required by Minn.Stat. § 256.045, subd. 7 (2004). This appeal followed.

ISSUE

Does Minn. R. Civ. P. 6.05 apply to an appeal of a decision under Minn.Stat. § 256.045, subd. 7 (2004), when the decision is issued to a party by mail, thereby extending the time for service and filing of notice of appeal by three days?

ANALYSIS

Minn.Stat. § 256.045, subd. 7 (2004), which sets forth the procedure for appealing an adverse decision by the commissioner of human services, provides:

any party who is aggrieved by an order of the commissioner of human services, or the commissioner of health in appeals within the commissioner’s jurisdiction under subdivision 3b, ... may appeal the order to the district court ... by serving a written copy of a notice of appeal upon the commissioner and any adverse party of record within SO days after the date the commissioner issued the order, the amended order, or order affirming the original order, and by filing the original notice and proof of service with the court administrator of the district court. Service may be made personally or by mail; service by mail is complete upon mailing....

(Emphasis added.)

The failure of an aggrieved party to commence an appeal of a state agency decision within the time limits in the statute governing such appeals properly results in dismissal for lack of jurisdiction. Davis v. Minn. Dept. of Human Rights, 352 N.W.2d 852, 854 (Minn.App.1984).

Appellant argues that his appeal was timely served because the 30-day appeal period was extended by three days for mailing under Minn. R. Civ. P. 6.05. Although this case involves a determination by an administrative agency, the rules of civil procedure have been applied beyond the district court arena, including situations involving a state agency. See Kenzie v. Dalco Corp., 309 Minn. 495, 497, 245 N.W.2d 207, 208 (1976) (applying rule 6.05 to extend the 30-day period for filing an appeal from a decision by the Commissioner of the Department of Employment Services); Wilkins v. City of Glencoe, 479 N.W.2d 430, 431 (Minn.App.1992) (applying rule 6.05 to removal of conciliation court proceedings to district court); E.N. v. Special Sch. Dist. No. 1, 603 N.W.2d 344, 348 (Minn.App.1999) (acknowledging that courts have applied the rules of civil procedure to cases outside of district courts). We recognize that Kenzie involved a statute that made the rules of civil procedure expressly applicable, and that Wilkins concerned removal, as opposed to an appeal, to the district court, but we believe that equity necessitates application of the rules in this context. As in Kenzie and Wilkins, this case involves a claim originally decided through informal adjudicative proceedings, but later brought before a state court for formal consideration or review. Once appellant had exhausted every available opportunity for redress at the agency level, this matter, by statute, properly came within the jurisdiction of the district court, whose procedural framework is governed by the rules of civil procedure. Minn. R. Civ. P. 1 (the “rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature”). We conclude the rules of civil procedure are applicable to the prescribed appeal period under Minn.Stat. § 256.045, subd. 7.

Having determined that the rules of civil procedure are generally applicable in this context, we next consider whether application of rule 6.05 is permitted in this case. Rule 6.05 provides in pertinent part:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party, and the notice or paper is served upon the party by mail, three days shall be added to the prescribed period.

Minn. R. Civ. P. 6.05 (emphasis added).

Appellant and respondents focus their arguments on the meaning of the term “service” utilized in the rule. Appellant contends that the word “issue” is synonymous with “service.” We agree. In D.F.C. v. State, Comm’r of Health, 693 N.W.2d 451, 453 (Minn.App.2005), this court examined the meaning of the term “issued” under Minn.Stat. § 256.045, subd. 7. We noted that “issuance” connotates some degree of communication and notice, and requires more than just the act of signing the order. Id. Instead, the commissioner issues the order by either mailing it to the person involved or having it personally served on the party. Id. at 453, 455 n. 3.

Further, previous cases involving the application of rule 6.05 have not hinged on whether the statute or rule in question explicitly required “service” upon a person, and parties have been allowed three additional days when notice of a judgment or order was required to be mailed to them. Wilkins, 479 N.W.2d at 431 (applying rule 6.05 pursuant to a statute that allowed removal of a conciliation court case to district court “within 20 days after the date the court administrator mailed notice of the judgment order to that person.” (Emphasis added) (citation and quotation marks omitted)), superseded by statute; Flame Bar, Inc. v. City of Minneapolis, 295 N.W.2d 586, 587 (Minn.1980) (applying rule 6.05 to a statute that allowed a certio-rari appeal of a city council decision to this court “within 30 days after service by mail” on the party of an adverse decision by the agency); Holm v. Casino Resource Corp., 632 N.W.2d 238, 241 (Minn.App.2001) (applying rule 6.05 where the statute referred to appeal time after “delivery,” rather than “service”).

In response, respondents make a variety of arguments to support the district court’s decision. We address each in turn. First, respondents contend that the rule is inapplicable in this case because “issuing” is analogous to filing a decision. Respondents cite 1 David F. Herr Roger S. Haydock, Minnesota Practice § 6.8 (4th ed.2002) for the proposition that “[i]f a time period runs from the date of filing or date of judgment, then Rule 6.05 does not serve to extend the time period.” But the time period to perfect an appeal in this case did not begin upon the date of filing or date of judgment, but from the time the notice of the order was mailed or personally served. See D.F.C., 693 N.W.2d at 453.

Respondents further argue that Wilkins, Flame Bar, and Holm are distinguishable because each involved a statute that expressly required notice of the decision or service of the decision by mail. Although this distinction is accurate, it ignores the holding in D.F.C., which recognized that the issuance of a decision is congruous with mailing notice or personally serving the decision on the interested party.

Next, respondents assert that Minn. R. Civ. P. 81.02 and 82 prohibit appellant from availing himself of rule 6.05. Rule 81.02 provides that the rules of civil procedure “do not supersede the provisions of statutes relating to appeals to the district courts,” and rule 82 requires that the rules “shall not be construed to extend or limit the jurisdiction of the district courts.” Respondents believe that applying rule 6.05 would both supersede the language of Minn.Stat. § 256.045, subd. 7, and extend the jurisdiction of the district courts. We disagree. Rule 6.05 does not invalidate the statutory language or extend the court’s jurisdiction. The statutory appeal time remains 30 days. Rule 6.05 only places persons served by mail on equal footing with those who receive personal service.

Respondents contend that providing three additional days under rule 6.05 is unnecessary because the commissioner’s orders are issued exclusively by mail. Respondents claim, therefore, that this uniform practice of issuance treats all parties the same, thereby obviating the need for three additional days. We decline to accept this reasoning because it attempts to circumvent the protection afforded by rule 6.05, and ignores the commissioner’s discretion in deciding whether to issue the order by mail or through personal service. See D.F.C., 693 N.W.2d at 455, n. 3 (noting that “[i]f the commissioner shows timely proof of personal service, that is as effective as mailing. The issuing person or agency chooses their method, not the courts.”).

Respondents also assert that, notwithstanding the application of rule 6.05, appellant failed to timely appeal because his notice of appeal should have been received by the commissioner on or before the last day to appeal. In this case, appellant waited until the final day of the appeal period to mail the notice. Respondents claim that allowing appellant to wait until the last day to appeal before mailing contravenes the intent behind rule 6.05 by allowing a “litigant approximately the same effective time to respond whether papers are served by hand or by mail.” See State v. Hugger, 640 N.W.2d 619, 622 n. 4, 624 (Minn.2002) (stating the purpose of Minn. R.Crim. P. 34.04, and noting that it is nearly identical to Minn. R. Civ. P. 6.05). But Minn.Stat. § 256.045, subd. 7, expressly provides that “service by mail is complete upon mailing.” Valid service by appellant did not require actual receipt of the notice by the commissioner on or before the last day of the appeal period, but that appellant place it in the mail on or before the last day.

The intent of the statute is honored by allowing appellant the additional three days before mailing the notice. Had appellant received personal, in-hand service of the order, he would have been able to accomplish effective service of his notice of appeal by placing it in the mail a full 30 days later. Rule 6.05 creates parity between recipients of mailed notice (appellant) and those who receive personal service by granting parties in appellant’s position an additional three days to compensate for any delay in delivery (mailing) time.

DECISION

The rules of civil procedure have been applied to informal adjudicative decisions appealed or removed to state courts. Minn. R. Civ. P. 6.05 has previously been employed when notice of a decision was required to be mailed or personally served on a party. Thus, the district court erred by declining to apply the rule.

Reversed and remanded.

      . Appellant did not serve his appeal until the 34th day. But the commissioner’s decision was dated November 15, 2005, which resulted in the 33rd day being Sunday, December 18, 2005. Respondents do not dispute that Minn. Stat. § 645.15 (2004), and Minn. R. Civ. P. 6.01, extend the applicable time period to the following day when the last day to appeal falls on a Sunday.