author: ANDERSON, PAUL H„ Justice.

text:
    In the Matter of the Petition of Joshua S. COLLIER, in Relation to Property Registered in Certificate of Title No. 1596547 for an Order Directing Entry of a New Certificate and Declaratory Relief.
    No. A05-1178.
    Supreme Court of Minnesota.
    Feb. 1, 2007.

      Allen E. Christy, Jr., Timothy J. Grande, Joanne Horwood Turner, Mackall, Crounse & Moore, PLC, Minneapolis, MN, for Appellant.
    Arthur D. Walsh, A.D. Walsh & Associates, Woodbury, MN, for Respondent Wager.
    John G. Westriek, Kirk M. Anderson, Westrick & McDowall-Nix, PLLP, St. Paul, MN, for Respondent Collier.
    Edward A. Bock, Jr., Kimball Foster, Beth Asmunsen, Matthew Foli, Minneapolis, MN, for Amicus Curiae Hennepin Cty. Exam, of Titles.
   OPINION

ANDERSON, PAUL H„ Justice.

Joshua Collier purchased a parcel of Torrens property with the knowledge that M & I Bank FSB had an unregistered mortgage and purchase interest in the property. After purchasing the property, Collier filed a petition in Ramsey County District Court, seeking an adjudication and declaration of rights in the property. Collier’s petition named M & I as a party. M & I moved for summary judgment, and the district court granted its motion, concluding that M & I’s interest in the property was superior to Collier’s interest because Collier was not a good faith purchaser under Minnesota’s Torrens Act. The Minnesota Court of Appeals reversed the district court, concluding that Collier’s actual knowledge of M & I’s unregistered interest did not preclude him from being a good faith purchaser. The court of appeals then held that Collier’s interest in the property was superior to M & I’s interest. We reverse.

In September 2000, Joseph Conley obtained a loan from Great Northern Mortgage Corporation. The loan was secured by a mortgage on a parcel of Torrens property Conley owned. The Torrens property subject to Great Northern’s mortgage is located in Ramsey County, Minnesota, and was described in the mortgage as Lot 2, Stipe’s Rearrangement. It is this property that is the subject of this action. Later in September, Great Northern' assigned thfe mortgage and its rights in the loan to appellant M & I Bank FSB. M & I or its title company filed the mortgage with the Ramsey County Recorder’s office, but did not file the mortgage with the county’s Registrar of Titles.

In 2002, Conley defaulted on his loan. M & I then filed a power of attorney to foreclose on the mortgage and served notice of the foreclosure on Conley. The Ramsey County Sheriffs office held a mortgage foreclosure sale on the property and M & I purchased it for $118,000. M & I filed a Sheriffs Certificate of Sale in the Ramsey County Recorder’s office, but failed to file its purchase interest with the Registrar of Titles. Shortly thereafter, respondent Joshua Collier learned of the foreclosure sale through a notice published by the 'Ramsey County Sheriffs office. Collier contacted M & I and offered to purchase M- & I’s interest in the property on behalf of a real estate investment company. M & I declined Collier’s offer to purchase the property.

Collier subsequently conducted a title search on the property, and thereby learned that M & I had not filed its mortgage or purchase interest with the Ramsey County Registrar of Titles. Knowing that the property was Torrens property, Collier concluded that M & I did not have a validly recorded interest in it. Collier then contacted Conley on his own behalf and offered to purchase any interest Conley may have had in the property. Conley agreed to sell Collier any such interest for $5,000 and conveyed his interest to Collier by a warranty deed. On the same day he received the deed from Conley, Collier obtained a loan from Dennis Wager, repayment of which was secured by a mortgage on the property Collier had just purchased from Conley. Collier then filed the Conley warranty deed and the Wager mortgage with the Registrar of Titles.

A few months later, Collier initiated this action by filing a petition for a 'proceeding subsequent to registration with the Ramsey County District Court. In his petition, Collier acknowledged that, based on Great Northern’s assignment of its mortgage on the property to M & I and the Sheriffs Certificate of Sale, M & I claimed an interest in the property. But Collier asserted that neither the mortgage nor Great Northern’s assignment of its mortgage to M & I had been properly filed and registered with the Registrar of Titles and that neither interest appeared on the property’s certificate of title. Consequently, Collier asserted that M & I had no interest in the property and requested an adjudication and declaration of the rights of all parties in the property, including Wager.

In its answer to Collier’s petition, M & I admitted that its mortgage had not been registered on the certificate of title. But as an affirmative defense, M & I asserted that Collier and Wager were not bona fide purchasers of the property because Collier had knowledge of M & I’s interest in the property before purchasing the property from Conley.

Collier, Wager, and M & I all filed motions for summary judgment. Following' a hearing, the district court issued an interlocutory order denying Collier’s and Wager’s motions, denying M & I’s motion against Wager, and granting M & I’s motion against Collier. The district court granted M & I’s motion against Collier based on its interpretation of the term “in good faith” as used in Minnesota’s Torrens Act, Minn.Stat. ch. 508 (2004). The court cited Minn.Stat. § 508.25 (2004), which states:

Every person receiving a certificate of title pursuant to a decree of registration and every subsequent purchaser of registered land who receives a certificate of title in good faith and for a valuable consideration shall hold it free from all encumbrances and adverse claims, excepting only the estates, mortgages, liens, charges, and interests as may be noted in the last certificate of title in the office of the registrar * * *.

(Emphasis added.)

In a memorandum' accompanying its interlocutory order, the district court stated that the meaning of the good faith requirement in section 508.25 was “[a]t the heart of this case:” The' court noted that Collier had actual knowledge of M & I’s mortgage interest in the property, M & I’s foreclosure of the mortgage, and M &' I’s purchase of the property at the sheriff’s sale. The court concluded that because Collier knew of M & I’s interest in the property, Collier was not a good faith purchaser of Conley’s interest in the property. Therefore, the court held that M & I’s interest in the property was superior to any interest Collier obtained from Conley. Following the court’s order, Wager and M & I executed a stipulation for dismissal with prejudice, ending Wager’s involvement in this case.

Collier appealed to the court of appeals, arguing that his knowledge of M & I’s unregistered interest should not have affected the court’s analysis. Specifically, Collier asserted that under the Torrens Act, M & I’s failure to file its mortgage with the Registrar of Titles left M & I with no “effective” interest in the property of which Collier could have known.

The court of appeals reversed the district court, holding that Collier was a good faith purchaser under the Torrens Act and that his registered interest was superior to M & I’s unregistered interest. In re Collier, 711 N.W.2d 826, 831 (Minn.App.2006). The court’s analysis began with the premise that the Torrens Act requires a mortgage interest in registered property to be filed and registered with the registrar of titles in order to encumber the property. Id. at 830 (citing Minn.Stat. § 508.54 (2004)). The court concluded that because M & I failed to file its mortgage on Conley’s property with the Ramsey County Registrar of Titles, M & I did not have an interest in the property that affected subsequent purchasers such as Collier, and instead had only a private contract with Conley. Id. at 831. The court further concluded that “[ajctual notice of a private contract is not the type of notice that prevents a purchaser from being a good-faith purchaser.” Id. The court reasoned that Collier’s actual notice of M & I’s private contract with Conley was not inconsistent with his own purchase of Conley’s interest in the property, because under the Torrens Act, the land was unencumbered by M & I’s interest. Id.

M & I subsequently petitioned our court for review and we granted its petition. M & I asks us to resolve two issues on appeal: (1) whether Collier’s actual notice of M & I’s unregistered interest in the Torrens property precludes him from being a good faith purchaser under Minn.Stat. § 508.25; and (2) whether Collier’s purchase of Conley’s interest in the property for $5,000 constitutes “valuable consideration” under section 508.25.

On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether a party is entitled to judgment as a matter of law. Christensen v. Milbank Ins. Co., 658 N.W.2d 580, 584 (Minn.2003). When the material facts are not in dispute, we review the lower court’s application of the law de novo. Leamington Co. v. Nonprofits’ Ins. Ass’n, 615 N.W.2d 349, 353 (Minn.2000). Here, the material facts are not in dispute. The parties agree that M & I did not file its mortgage or Sheriffs Certificate of Sale with the Registrar of Titles. The parties also agree that Collier purchased Conley’s interest in the property with actual knowledge of M & I’s interest. Accordingly, we exercise de novo review.

This case involves the Minnesota Torrens Act and Torrens property, and because the Torrens property system is distinct from the abstract property system, we begin our analysis with a brief overview of the two property systems and the policy underlying the Torrens system. Until Minnesota adopted the Torrens system in 1901, all real property in the state was abstract property. Hersh Props., LLC v. McDonald’s Corp., 588 N.W.2d 728, 733 (Minn.1999). Under the abstract system, transactions that affect real property are recorded with the county recorder in the county where the property is located. Id. The documents recording the transactions become public records and are a source for prospective purchasers to ascertain the status of title. Id. These documents are typically summarized in a single document, called an abstract of title, so that prospective purchasers, mortgagors, mortgagees, and others may have a source to research the status of the title. Id. But in addition to the recorded documents, under the abstract system, a title may be affected by factors not reflected in the recorded documents. Id. Therefore, a prospective purchaser or mortgagee must carefully investigate a property’s history and condition in order to ascertain marketability of the title to that property.

In 1901, the Minnesota legislature adopted an alternative to the abstract system — the Torrens system. See Act of Apr. 11, 1901, ch. 237, 1901 Minn. Laws 348. The Torrens Act is codified at Minn.Stat. ch. 508. Under the Torrens system, a party seeking to register an ownership interest in property applies for a court adjudication of ownership and a court decree that converts abstract property into Torrens property. See Minn.Stat. § 508.22 (2004). A court-appointed officer, the examiner of titles, oversees the registration process. Minn.Stat. §§ 508.12, 508.13 (2004). After the court adjudicates ownership and any other existing interests in the property, the registrar of titles creates a certificate of title, which is issued to the owner. See Minn.Stat. §§ 508.34, 508.35 (2004). After the issuance of a certificate of title, any conveyance, lien, instrument, or proceeding that would affect the title to the now registered Torrens property must be filed and registered with the registrar of titles in the county where the property is located in order to affect the title to the Torrens property. Minn. Stat. § 508.48 (2004).

We have said that “[t]he purpose of the Torrens system was to create a title registration procedure intended to simplify conveyancing by eliminating the need to examine extensive abstracts of title by issuance of a single certificate of title.” Hersh Props., 588 N.W.2d at 733. Under the Torrens system, time-consuming and expensive title searches, which characterize the abstract system, are alleviated because the purchaser of Torrens property may, subject to limited exceptions, determine the status of title by inspecting the certificate of title. See id.

M & I argues that Collier’s actual knowledge of M & I’s unregistered mortgage and subsequent foreclosure on the property negates the good faith requirement in section 508.25, and therefore, its interest in the property is superior to Collier’s. Collier argues that his actual knowledge of M & I’s unregistered interest does not affect his status as a good faith purchaser, making his interest superior to M & I’s.

Collier correctly asserts that Minnesota’s Torrens Act places great emphasis on the acts of filing and registration. The Torrens Act provides that “[ejvery conveyance, lien, attachment, order, decree, or judgment, or other instrument or proceeding, which would affect the title to unregistered land under existing laws, if recorded * * * shall, in like manner, affect the title to registered land if filed and registered.” Minn.Stat. § 508.48 (emphasis added). “All interests in registered land, less than an estate in fee simple, shall be registered by filing with the registrar * * Minn. Stat. § 508.49 (2004) (emphasis added). When conveying, mortgaging, leasing, or otherwise dealing with registered land, “[t]he act of registration shall be the operative act to convey or affect the land.” Minn.Stat. § 508.47, subd. 1 (2004). Minnesota Statutes § 508.54, which specifically addresses mortgages, requires that mortgage interests in Torrens property “be registered and take effect upon the title only from the time of registration.”

Although the Torrens Act makes clear that the acts of filing and registration are critical in the Torrens system, M & I’s failure to file its interests in the property with the registrar of titles does not end our inquiry under the Torrens Act. Section 508.25 also provides that “every subsequent purchaser of registered land who receives a certificate of title in good faith and for a valuable consideration shall hold it free from all encumbrances and adverse claims” except from interests noted on the certificate of title. (Emphasis added.) Based on this language, we conclude that our inquiry must focus on whether Collier’s actual knowledge of M & I’s unregistered interest in the property affects his status as a good faith purchaser under section 508.25.

The relevant language of section 508.25 remains unchanged from when the Torrens Act was first codified in Minnesota. See Minn. Rev. Laws § 3393 (1905). Although the legislature never defined- the meaning of good faith in that section, we conclude that good faith must mean something; if not, the language would be rendered a nullity. See Minn.Stat. § 645.17(2) (2004) (directing courts to presume that the legislature intends an entire statute to be “effective and certain”). Our analysis indicates that since the passage of the Torrens Act, the meaning of good faith has been established through both case law and real estate practice. As far back as 1913, we presumed that the good faith language in the Torrens Act contained a notice or knowledge component, when we stated that “one who purchases from the registered owner for a valuable consideration, in reliance upon [a Torrens] judgment and without notice or anything to put him on inquiry, takes the title free from all ‘incumbrances and adverse claims.’ ” Henry v. White, 123 Minn. 182, 185, 143 N.W. 324, 326 (1913) (emphasis added) (quoting Minn. Rev. Laws § 3393).

In 1929,. we further discussed the relationship between actual notice and unregistered interests in Torrens property in In re Juran, 178 Minn. 55, 226 N.W. 201 (1929). The facts in Juran were as follows. Peterson owned Torrens property that was encumbered by a registered mortgage. 178 Minn, at 57, 226 N.W. at 201. Peterson executed a contract for deed and a warranty deed on the property to separate parties, neither of which documents was filed and registered with the registrar of titles. Id. The warranty deed grantee subsequently executed a warranty deed to Juran, subject to the contract for deed. Id. Later, Kroening registered a writ of attachment against the property with the registrar of titles pursuant to a legal action he brought against Peterson. Id. Nearly two months later, Peterson told Kroening’s attorney that he had sold the property. 178 Minn, at 60-61, 226 N.W. at 203. A few months later, Kroening filed with the registrar of titles a certified copy of a judgment rendered in the action in which the attachment had been issued, as well as a certified copy of a judgment he had obtained in a second action against Peterson. 178 Minn, at 57, 226 N.W. at 201. Kroening then bought the property at a sheriffs sale, prompting Juran and the contract for deed grantees to challenge Kroening’s rights in the property. Id. They argued that Kroening had constructive notice that Peterson no longer had a full interest in the property because others were living on it. 178 Minn, at 60, 226 N.W. at 202. As part of our decision in Juran we stated that

under [Torrens] law possession of registered land is not notice of any rights under an unregistered deed or contract for deed. [The Torrens] act abrogates the doctrine of constructive notice except as to matters noted on the certificate of title. We think however that it does not do away with the effect of actual notice, although it undoubtedly imposes the burden of proving such notice upon the one asserting it.

Id. (emphasis added) (citation omitted).

We concluded in Juran that there was no evidence in the record suggesting that Kroening had actual notice of the property’s occupation before he registered the writ of attachment, and we therefore held that Kroening’s rights under the attachment, judgment, and execution sale were superior to Juran’s and the contract for deed grantees’ interests. 178 Minn, at 60-61, 226 N.W. at 202-03. But we also concluded that Kroening’s rights in the property under the judgment in the second action were inferior and subordinate to Juran’s and the contract for deed grantees’ rights because Peterson told Kroening’s attorney that he had sold the property before the judgment in the second action was filed and registered with the registrar of titles. 178 Minn, at 60-61, 226 N.W. at 203.

Collier argues that our statement in Ju-ran that the Torrens system does not do away with the effect of actual notice is mere dictum and should be ignored. We disagree. In Juran, we relied on the actual notice rule to conclude that Kroening’s rights under the second action were inferi- or. 178 Minn, at 60-61, 226 N.W. at 202-03. Furthermore, since Juran was decided in 1929, our court has referenced and relied on Juran’s “actual notice” pronouncement to varying degrees. See, e.g., Kane v. State, 237 Minn. 261, 269, 55 N.W.2d 333, 338 (1952) (quoting the Juran syllabus, which contains actual notice language); Cook v. Luettich, 191 Minn. 6, 8, 252 N.W. 649, 650 (1934) (quoting Juran syllabus and finding appellant had actual knowledge).

In the past 20 years, three court of appeals cases have shown that court’s acceptance and reliance on Juran’s actual notice rule. While these cases do not constitute precedent for the purpose of our court’s jurisprudence, McClain v. Begley, 465 N.W.2d 680, 682 (Minn.1991), then-reasoning is relevant to the extent it informs us about the role of actual knowledge in the Torrens system as it is practiced in Minnesota. In Nolan v. Stuebner, a published opinion, the appellants bought Torrens property subject to an easement that did not appear on their warranty deed. 429 N.W.2d 918, 921-22 (Minn.App.1988), rev. denied (Minn. Dec. 16, 1988). The certificate of title made reference to the easement, but it appeared the easement may have encumbered a parcel of land conveyed to a different party. Id. The court of appeals concluded that even if the certificate was ambiguous as to the placement of the easement, the appellants had record notice of the easement through the language on the certificate and actual notice after obtaining a title opinion in which an attorney confirmed the existence of the easement. Id. at 923. The court held that the appellants were not bona fide purchasers because of their record notice, provided by the language on- the certificate, and their actual notice, provided by the title opinion. Id.

In two unpublished opinions, the court of appeals determined that the good faith requirement in Torrens law is not met if purchasers of Torrens property have actual knowledge of an unregistered interest. In 5th Street Ventures, LLC v. Frattal-lone’s Hardware Stores, Inc., ’the original owner of Torrens property that included a building agreed to allow the building’s lessee, Frattallone’s, to use a common area for storage, but the lease was never filed with the registrar of titles. No. A03-2036, 2004 WL 1878822, at ⅜1 (MinmApp. Aug. 24, 2004). 5th Street purchased the property and commenced an unlawful detainer action against Frattallone’s, arguing that Frattallone’s was not authorized to use the common area. Id. The district court granted summary judgment to Frattal-lone’s, concluding that the lease was enforceable as amended, even though it was not filed and registered with the registrar of titles. Id. at *2. The court of appeals reversed, holding that genuine issues of material fact existed. Id. at ⅜2-3. The court concluded that if 5th Street “had actual knowledge of an unrecorded lease at the time of purchase, it cannot later seek the protection of the Torrens statute as a good-faith purchaser with no notice.” Id. at *3. The case was then remanded to the district court to determine whether 5th Street had actual knowledge of the unrecorded lease. Id.

In In re Willmus, the court of appeals also concluded that actual notice of an interest in Torrens property can be determinative of the status of title. CO-95-1136, 1996 WL 33095 (MinnApp. Jan. 30, 1996), rev. denied (Minn. Mar. 28, 1996).-In Willmus, the Doughertys bought a tract of Torrens property encumbered by an easement for the benefit of the appellant, but the easement did not appear on the Doughertys’ certificate of title. Id. at *1. The appellant commenced an action, seeking an order to require the registrar of titles to enter a memorial, so that the certificate of title would reflect the easement. Id. The court of appeals recognized the easement’s existence, but held that on remand, the appellant needed to prove that the Doughertys had actual knowledge of the easement in order to overcome the good faith clause in the Torrens Act. Id. at *2-3.

It also appears that real estate practitioners in Minnesota have come to support and rely on our precedent that actual notice of another’s unregistered interest in Torrens property can negate the good faith requirement found in section 508.25. For example, in his amicus brief, Hennepin County Examiner of Titles Edward A. Bock, Jr., asserts that our precedent in Juran “has provided sound guidance for the operation of the Torrens system for over 75 years.” Bock claims that some degree of flexibility makes the Torrens Act more useful and efficient. He asserts that if a prospective purchaser could purchase Torrens property and then file his pún-chase documents with the registrar of titles when he has actual notice of another’s unregistered interest, it “would establish a pure ‘race’ situation providing no benefit to good faith purchasers.” Bock claims that such a system would “encourag[e] unscrupulous persons to seek opportunities to profit at the expense of others.” He also asserts that our failure to uphold our ruling in Juran would create business risks. He claims that in the ordinary course of business, it may be days between a real estate closing and filing of the documents with the registrar of titles. During this interval, one who knows of the closing could take advantage of the delay.

We conclude that Minnesota courts have relied on our precedent in Juran, and real estate practitioners have accepted the proposition that to be a good faith purchaser of Torrens property, a purchaser cannot have actual knowledge of previous, unregistered interests. See also 25 Julie A. Bergh, Minnesota Practice — Real Estate Law ch. 3, § 3.23(b) (Eileen M. Roberts ed., 2007 ed.) (“[An] exception to the general rule that unregistered instruments do not affect registered land arises when there is no intervening bona fide purchaser for value and there is actual knowledge of the unregistered interest.”). Thus, we conclude that the actual notice language in Juran is not merely dictum, but rather represents long-established precedent of our court.

We also note that we have applied principles of equity when a result under the Torrens Act violates notions of justice and good faith. See Finnegan v. Gunn, 207 Minn. 480, 292 N.W. 22 (1940). In Finnegan, we concluded that “[njothing in the Torrens system indicates that the ancient concepts of equity are not applicable” under certain circumstances. 207 Minn, at 482, 292 N.W. at 23. See also Mill City Heating & Air Conditioning Co. v. Nelson, 351 N.W.2d 362, 365 (Minn.1984) (requiring a subcontractor to provide prelien notice of a mechanic’s lien to purchasers of Torrens property who had not yet filed their ownership interest with the registrar of titles, because failure to do so produced an “unfair and unreasonable” result). But, because equitable concepts are not necessary to our holding in this case, we mention this precedent only as an additional point of reference for our ultimate decision.

. Collier also argues that even if we hold that the actual notice language in Juran is not mere dictum, there is other Minnesota case law that would permit us to refashion our definition of actual notice such that we can and should conclude that he is a good faith purchaser of the property in accordance with section 508.25. In support of this corollary argument, Collier relies on language from Comstock & Davis, Inc. v. G.D.S. & Associates, where the court of appeals stated that actual notice “requires conveying knowledge of a signed, enforceable agreement.” 481 N.W.2d 82, 85 (Minn.App.1992). Collier relies on this language in Comstock when he asserts that M & I’s unregistered mortgage interest is not an enforceable agreement and is consequently not capable of negating his good faith purchase. While Comstock did not involve Torrens property, the language quoted above was cited in In re Alchemedes/Brookwood, Ltd. P’ship, 546 N.W.2d 41, 42 (Minn.App.1996), rev. denied (Minn. June 7,1996). In Alchemedes, the court of appeals held that Midwest Federal, the owner of a mortgage on Torrens property, which included an apartment complex, had- neither actual notice nor actual knowledge of two leases. Id. at 42-43. The leases did not appear on the certificate of title, id. at 41, and Midwest Federal had no outside knowledge that the leases existed. Id. at 43. Accordingly, the court of appeals did not have to determine whether the leases would be enforceable if Midwest Federal had actual notice or knowledge of the leases. Because there was no actual notice at issue in these cases, we find Collier’s citation to the language and reasoning used by the court of appeals in Comstock and Alchemedes unpersuasive. - .

We conclude that under section 508.25, a purchaser of Torrens property who has actual knowledge of a prior, unregistered interest in the property is not a good faith purchaser. Here, Collier gained actual knowledge of M & I’s interest in the property through the Ramsey County Sheriffs office’s publication of the notice of foreclosure sale and through his subsequent negotiations with M & I to purchase the property. We also conclude that Collier’s knowledge constitutes actual notice, and since Juran was decided in 1929, the law in Minnesota has prevented a prospective purchaser with actual notice of a superior interest in Torrens property from becoming a good faith purchaser. In the years after Juran, the legislature has not chosen to alter the relevant language in section 508.25 or define good faith. Moreover, Minnesota courts have relied on our precedent, and real estate practitioners have accepted and applied the foregoing principles without apparent difficulties. We have stated that “[w]e are extremely reluctant to overrule our precedent under principles- of stare decisis” and require a “compelling reason” to do so. State v. Lee, 706 N.W.2d 491, 494 (Minn.2005) (citing Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn.2000)). The facts in this case offer no compelling reason to overrule our precedent. Accordingly, we conclude that M & I’s interest in the subject property is superior to Collier’s interest.

In rendering this decision, we decline any entreaty by M & I and amicus to define the outer contours of actual notice; rather, we limit our holding to the facts of this case. Also, because we conclude that Collier is not a good faith purchaser, we do not reach the issue of whether Collier’s purchase of Conley’s interest in the property for $5,000 constitutes “valuable consideration” under section 508.25.

Based on the foregoing analysis, we hold that the district court properly granted summary judgment in favor of M & I, and that the court of appeals erred when it reversed the district court’s ruling on M & I’s summary judgment motion. Therefore, we reverse 'and remand to the district court for further proceedings consistent with this opinion.

Reversed.

      . Section 508.25 also lists seven exceptions that encumber Torrens property in spite of their failure to appear on the last certificate of title. None of the exceptions applies in this case.

      . For a thorough review of the history, policy, and statutory scheme underlying Minnesota's Torrens Act, see Hersh Props., 588 N.W.2d at 733-34.

      . Our syllabus in Juran supports this conclusion. The syllabus states that "[t]he evidence will not sustain a finding that [Kroening] had actual notice of any unregistered rights before the registration of his attachment, but does sustain [a] finding that he had such notice before registering a judgment obtained in another and later action." 178 Minn, at 56, 226 N.W. at 201 (emphasis added).

      . Bock oversees the registration of Torrens property in Hennepin County, which is the largest county in the state in terms of population and has more Torrens property than any other county in the state.

      . The mortgage instrument did state that the mortgage was subject to "unrecordéd leases,” but the court of appeals concluded that Midwest Federal could not gain actual notice from the reference because Minn.Stat. § 508.60 (2004) only requires leases of three years or more to appear on a certificate of title. 546 N.W.2d at 42-43. Even though the leases in question were for more than three years, the mortgage owner could reasonably conclude that the referenced leases were for less than three years, and therefore, the court held that Midwest Federal had no actual notice. Id.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Helmut MAUER, Appellant.
    No. A05-460.
    Court of Appeals of Minnesota.
    Jan. 23, 2007.

      Lori Swanson, Attorney General, St. Paul, MN, Michael 0. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.
    Michael McGlennen, Chaska, MN, William Gatton, Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; LANSING, Judge; and KALITOWSKI, Judge.
   OPINION

LANSING, Judge.

A district court judge found Helmut Mauer guilty of possession of child pornography under Minn.Stat. § 617.247, subd. 4(a) (2002), which prohibits the possession of child pornography when the person in possession knows or has “reason to know” its content and character. In this appeal, Mauer argues that the statute is unconstitutional because it does not require actual knowledge that the persons depicted in the pornographic work are minors. We conclude that the statute meets the demands of the First Amendment as it pertains to possession of child pornography, and we affirm.

FACTS

The facts are undisputed. Following a court trial in 2004, the district court judge found that Helmut Mauer possessed compact discs with reason to know that they contained child pornography in violation of Minn.Stat. § 617.247, subd. 4(a) (2002). Mauer obtained the discs through a delivery service in a self-addressed envelope, purportedly sent' by C.R.T., a Florida business. In reality, C.R.T. had been shut down following a government investigation. The return envelope had actually been sent by U.S. postal agents as part of a sting operation that grew out of the investigation. The postal agents sent promotional materials and order forms to everyone on C.R.T.’s mailing list, which included Mauer. Mauer ordered four compact discs. The discs were described by the solicitation as containing images of girls between the ages of nine and fourteen engaged in sex acts. Mauer paid $515 in cash for the four discs. He also requested further information about a “write-your-own-script” option, which would allow him to order a videotape of a thirteen-year-old girl fulfilling his scripted fantasies.

Mauer personally signed for delivery of the compact discs. Shortly after delivery, a postal inspector, who had obtained a valid search warrant, seized the discs. Although Mauer initially denied that the images of individuals on the discs were children, he later contacted the postal inspector and, during the conversation, told the inspector that he knew the images on the discs were people who were underage. At trial he testified that he thought the children would be over eighteen years old but acknowledged that they could be as young as nine years old. The district court found Mauer guilty of three counts of possessing child pornography.

Following conviction, Mauer filed a notice of appeal and moved for a stay to pursue postconviction relief. Mauer then filed a posteonviction petition challenging the constitutionality of Minn.Stat. § 617.247, subd. 4(a). In the petition, Mauer argued that the statute was unconstitutional because it did not require the state to prove that he knew the age of the persons depicted in the sexually explicit material, only that he had “reason to know.” The distinct court denied Mauer’s petition, and Mauer now appeals.

ISSUE

Does a statute that criminalizes the possession of child pornography contain a constitutionally sufficient level of scienter when it requires that the person in possession have “reason to know” that the pornographic work uses a minor to depict actual or simulated sexual conduct?

ANALYSIS

Questions of constitutional interpretation are issues of law that we review de novo. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). In Minnesota, statutes are generally presumed constitutional. State v. Barker, 705 N.W.2d 768, 771 (Minn.2005). We will declare a statute unconstitutional “only when absolutely necessary.” State v. Behl, 564 N.W.2d 560, 566 (Minn.1997) (quotation omitted). Because of the “unique protections” afforded by the First Amendment, however, the ordinary presumption of constitutionality does not apply to a statutory provision that restricts First Amendment rights. State v. Casino Mktg. Group, Inc., 491 N.W.2d 882, 885 (Minn.1992); see also Johnson v. State Civil Serv. Dep’t, 280 Minn. 61, 66, 157 N.W.2d 747, 751 (1968) (commenting on need for presumption of constitutionality to yield to preferred First Amendment rights). Instead, in the First Amendment context, the state must demonstrate a “compelling public need to protect a substantial public interest.” Johnson, 280 Minn, at 66, 157 N.W.2d at 751.

Child pornography, whether or not it is determined to be obscene, is unprotected by the First Amendment. New York v. Ferber, 458 U.S. 747, 764-65, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982). Because of the compelling interest in protecting the physical and psychological well-being of minors, states are “entitled to greater leeway in the regulation of pornographic depictions of children.” Id. at 756, 102 S.Ct. at 3354. States may thus punish not only distribution of child pornography but also possession. Osborne v. Ohio, 495 U.S. 103, 109-11, 110 S.Ct. 1691, 1695-97, 109 L.Ed.2d 98 (1990).

Nevertheless, all speech regulation must “avoid the hazard of self-censorship of constitutionally protected material.” Mishkin v. New York, 383 U.S. 502, 511, 86 S.Ct. 958, 965, 16 L.Ed.2d 56 (1966). To protect free expression, criminal child-pornography laws must therefore include “some element of scienter on the part of the defendant.” Ferber, 458 U.S. at 765, 102 S.Ct. at 3358 (citing Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959)). A child-pornography statute “completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts.” United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 472, 130 L.Ed.2d 372 (1994). The U.S. Supreme Court has approved criminal child-pornography laws requiring knowledge or recklessness about the age of the performer. See X-Citement Video, 513 U.S. at 78, 115 S.Ct. at 472 (permitting conviction based on knowledge); Osborne, 495 U.S. at 115, 110 S.Ct. at 1699 (approving recklessness standard).

Scienter is a legal term that refers to the “degree of knowledge that makes a person legally responsible for the consequences of his or her own act or omission.” Black’s Law Dictionary 1373 (8th ed.2004). Unquestionably, the Minnesota statute at issue requires some degree of culpability as it relates to the age of the performers. The statute prohibits possessing depictions of minors involved in sexual conduct while “knowing or with reason to know its content and character.” Minn.Stat. §§ 617.246, subd. 1(f), 617.247, subd. 4(a) (2002). The phrase “knowing or with reason to know its content or character” imposes accountability in some way for knowledge that the work is pornographic, which, in turn, relates to the age of the performers. See Minn.Stat. § 617.246, subd. 1(f) (requiring that prohibited material involve minors). The question is whether the degree of culpability the statute requires is sufficient to guard against the risk of self-censorship.

Mauer argues that the statute’s culpability requirement is constitutionally insufficient for a statute regulating child pornography'. According to Mauer, the “reason to know” language creates a civil-negligence standard. Mauer’s characterization of “reason to know” as a civil-negligence standard has support in the language of some Minnesota cases. See State v. Grover, 437 N.W.2d 60, 62-63 (Minn.1989) (equating “reason to know” with criminal-negligence standard); see also D.M.S. v. Barber, 645 N.W.2d 383, 387 (Minn.2002) (interpreting “reason to know” in Minn. Stat. § 541.073, subd. 2(a), to require objective, reasonable-person standard). As we interpret the statute, however, the requirement of “knowing or with reason to know” imposes a scienter requirement that is more demanding than a civil- or a criminal-negligence standard.

In the obscenity context, the U.S. Supreme Court has considered a statute that used a similar standard. In Ginsberg v. New York, a statute criminalized the knowing sale of obscene materials to minors and defined “knowingly” to include “reason to know” or “a belief or ground for belief which warrants further inspection or inquiry.” 390 U.S. 629, 643, 88 S.Ct. 1274, 1283, 20 L.Ed.2d 195 (1968). The Court rejected a facial challenge to the statute, relying on the state court’s interpretation of the statute as applying only to “those who are in some manner aware of the character of the material they attempt to distribute.” Id. at 644, 88 S.Ct. at 1283 (emphasis omitted) (quotation omitted).

The Court has approved of the “in some manner aware” standard in other cases as well. In Mishkin the Court concluded that the “in some manner aware” standard “amply serves” the goal of protecting against the risk of suppressing protected expression and “fully meets the demands of the Constitution.” 383 U.S. at 511, 86 S.Ct. at 965. The Minnesota Supreme Court has similarly interpreted a state obscenity statute to include the “in some manner aware” standard. State v. Oman, 261 Minn. 10, 17, 110 N.W.2d 514, 520 (1961) (interpreting statute to punish only those “who are in some manner aware of the character of the material” they attempt to distribute).

In light of the similar First Amendment concerns that apply to child pornography, we conclude that Minn.Stat. § 617.247, subd. 4(a), should be similarly interpreted to require that the possessor be “in some manner aware” that the performer is a minor. See Minn.Stat. § 645.17(3) (2006) (providing that legislature “does not intend to violate the constitution of the United States or of this state”). The “in some manner aware” standard is substantially similar, if not equivalent, to the recklessness standard approved in Osborne. In this context, a person has “reason to know” only if he has knowledge of facts that subjectively lead him to believe that the performer is a child. In addition, we have found no indication, and Mauer has provided no evidence, that the legislature intended to impose liability using an objective, civil-negligence standard. See Minn. Stat. § 645.16 (2006) (providing that primary objective in statutory interpretation is to “ascertain and effectuate the intent of the legislature”). We therefore interpret “reason to know” as used in this particular statute to require a possessor to be “in some manner aware” that the performer is a child.

We recognize that. Mishkin and Ginsberg are arguably distinguishable on two grounds. First, both eases involved obscenity, not child pornography. But this distinction favors the “in some manner aware” standard because the First Amendment provides less, not more, protection to child pornography than to obscenity. See Ferber, 458 U.S. at 756, 102 S.Ct. at 3354 (concluding that states have “greater leeway” in regulating child pornography). Second, these cases involve distribution, not possession. But the private possession of child pornography, unlike the possession of obscene materials, still causes harm to the children exploited. See Osborne, 495 U.S. at 108-11, 110 S.Ct. at 1696 (distinguishing Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969)).

It is also constitutionally significant that the definition of child pornography is less ambiguous than the definition of obscenity. Robert R. Strang, “She Was Just Seventeen ... and the Way She Looked Was Way Beyond [Her Years]’’: Child Pornography and Overbreadth, 90 Colum. L.Rev. 1779, 1797 (1990); see also Mish-kin, 383 U.S. at 511, 86 S.Ct. 958 (discussing “the ambiguities inherent in the definition of obscenity”). Because the legal definition of child pornography can be more readily applied than the definition of obscenity, possessors of child pornography can fairly be held to the “in some manner aware” standard.

We are thus persuaded that, in this context, the possession of child pornography does not require any greater protection than the distribution of obscene materials. Hence, we conclude that Mishkin and Ginsberg, as well as Osborne, support the conclusion that the “in some manner aware” standard is sufficient to support a conviction for possession of child pornography.

Furthermore, as a policy matter, the state’s compelling interest in the physical and emotional well-being of minors justifies the use of “in some manner aware” as the requisite level of scienter in Minn.Stat. § 617.247, subd. 4(a). In determining the appropriate level of scienter in child-pornography statutes, courts must balance First Amendment rights against the state’s interest in protecting minors from sexual exploitation. Christina Egan, Level of Scienter Required for Child Pornography Distributors: The Supreme Court’s Interpretation of “Knowingly” in 18 U.SC. § 2252, 86 J.Crim. L. & Criminology 1341, 1377-80 (1996). The Supreme Court has indicated that the state’s interest in preventing the sexual exploitation of children is of “surpassing importance.” Ferber, 458 U.S. at 757, 102 S.Ct. at 3355. Child pornography may thus be burdened in ways that other forms of protected speech closer to the core of the First Amendment may not. Richard Fallon, Making Sense of Overbreadth, 100 Yale L.J. 853, 894-96 (1991).

The state’s substantial interest in preventing the sexual exploitation of minors amply justifies the “in some manner aware” standard. The “in some manner aware” standard would deter the possession of child pornography without placing an unconstitutional burden on protected expression. A “knowledge” standard, on the other hand, “places too high a burden on the government and is not necessary under First Amendment doctrine.” Egan, supra, 86 J.Crim. L. & Criminology at 1378. It would allow people in possession of child pornography to simply “close their eyes as to the age” of the performers. United States v. Carter, 854 F.2d 1102, 1109 (8th Cir.1988) (rejecting lack-of-knowledge defenses in case involving use of children in distribution of controlled substance). Although a “knowledge” standard would adequately guard against the risk of self-censorship, it would defeat the goal of effectively regulating child pornography because it would protect willful blindness. The “in some manner aware” standard, in contrast, both protects against the risk of self-censorship and furthers the state’s interest in combating child pornography. We therefore conclude that Minn. Stat. § 617.247, subd. 4(a), requires an adequate level of scienter and does not, on its face, violate the First Amendment.

Finally, we must decide whether Mauer’s conviction can be affirmed in light of our interpretation of the child pornography statute. We conclude that it can. Although our interpretation may be a narrowing construction, a statute as construed “may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendant ].” Dombrowski v. Pfister, 380 U.S. 479, 491 n. 7, 85 S.Ct. 1116, 1123 n. 7, 14 L.Ed.2d 22 (1965) (citations omitted). Under the circumstances, Mauer had fair warning that his conduct was criminal. The district court concluded that Mauer had “reason to know” that the performers were minors. Although the district court did not use the words “in some manner aware,” the district court made extensive findings of fact. Those findings demonstrate that Mauer undoubtedly was in some manner aware of the age of the performers. Mauer’s conviction is therefore affirmed.

DECISION

Minn.Stat. § 617.247, subd. 4(a) (2002) requires a sufficient level of scienter as to the age of the performers to satisfy First Amendment requirements.

Affirmed.


author: ROSS, Judge.

text:
    STATE of Minnesota, Respondent, v. Jeffrey David MOHS, Appellant.
    No. A06-199.
    Court of Appeals of Minnesota.
    Jan. 30, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, Anoka, MN, for respondent.
    Stephen V. Grigsby, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; PETERSON, Judge; and ROSS, Judge.
   OPINION

ROSS, Judge.

This case concerns the constitutionality of a bench warrant issued upon a district court judge’s personal observation and knowledge that the defendant failed to appear for trial. Jeffrey Mohs appeals from his conviction for a controlled-substance offense, arguing that the drugs he discarded when police attempted to execute a bench warrant for his arrest should have been suppressed as evidence because the bench warrant was constitutionally invalid. He claims that the bench warrant, which the district court issued because Mohs failed to appear for trial on a different charge, violated the federal and state constitutions because it did not rest on probable cause, because the court issued the warrant without support by oath or affirmation, and because the warrant lacked a bail provision. Because the warrant was not constitutionally deficient, we affirm.

FACTS

Jeffrey Mohs failed to appear in Anoka County District Court on November 1, 2004, for a scheduled pretrial hearing for a misdemeanor offense and for a jury trial on felony charges that the district court had previously determined were supported by probable cause. Mohs’s counsel appeared and informed the court that he had not heard from Mohs and did not know where he was. On the prosecutor’s motion, the court issued a bench warrant ordering law enforcement “to apprehend and arrest and promptly bring [Mohs] before [the] court” because of Mohs’s failure to appear for the two scheduled proceedings. The warrant, dated and signed by the issuing judge, indicated “Body Only” instead of stating a bail amount.

The next day, police observed Mohs leaving a home in Blaine and walking toward his truck. When Mohs noticed the police approaching, he reached into his pockets, threw items from his pockets onto the ground, and stomped on the discarded items. Police quickly arrested Mohs and seized the items he had discarded: a smashed glass pipe of the type commonly used to smoke controlled substances and a plastic bag containing methamphetamine.

The state charged Mohs with felony fifth-degree controlled-substance crime. The following day, the district court set bail. Mohs moved to suppress the seized evidence, asserting that the bench warrant that led to his arrest for failure to appear was constitutionally invalid because it was not facially supported by probable cause or by oath or affirmation, and because it was designated as “body only” rather than specifying bail. The district court denied the motion, finding that the prosecutor’s statements to the issuing judge on the record in open court established probable cause to support the warrant and that the state constitution does not require arrest warrants to provide for bail.

To expedite his appeal, Mohs waived his right to a jury trial and submitted the case to the district court on stipulated facts contained in the police reports under the procedure outlined in State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980). The district court found Mohs guilty and sentenced him to jail, but it stayed the sentence pending this appeal.

ISSUES
I. Does a district court have probable cause to issue a bench warrant for the defendant’s arrest when the defendant fails to appear at a scheduled trial?
II. Does a district court judge who issues a bench warrant for the arrest of a criminal defendant based solely on the judge’s own observations and personal knowledge that the defendant did not appear for his scheduled jury trial, rather than on a witness’s oath or affirmation declaring the failure to appear, violate the Fourth Amendment to the United States Constitution or article I, section 10, of the Minnesota Constitution?
III. Does a bench warrant that fails to specify an amount of bail violate article I, section 7, of the Minnesota Constitution?

ANALYSIS

We note preliminarily that the district court acted within its statutory authority when issuing the bench warrant. It is undisputed that a district court is authorized by statute to issue an arrest warrant when a defendant fails to appear for a hearing or trial of which he had notice. See MinmStat. § 629.58 (2004) (stating that when criminal defendant under bond fails to perform conditions of bond, court “shall issue process” against the person); see also id. § 629.49 (2004) (requiring that a person who is released on recognizance and who fails to appear “must be apprehended” and directing the court to order further disposition according to rule 6 of the Minnesota Rules of Criminal Procedure); State v. Mutt, 443 N.W.2d 833, 835 (Minn.App.1989) (stating that court may-issue bench warrant for defendant’s arrest when prosecutor’s affidavit alleges defendant violated conditions of release and it reasonably appears highly likely that defendant will fail to respond to summons or defendant’s whereabouts unknown), revieiv denied (Minn. Sept. 27, 1989). The rules of criminal procedure in effect when the court issued the warrant provide that “[u]pon an application of the prosecuting attorney, alleging that a defendant has violated the conditions of release, the judge ... may issue a warrant directing that the defendant be arrested and taken forthwith before such judge.” Minn. R.Crim. P. 6.03, subd. 1. The district court followed this process, but Mohs challenges the grounds on which the district court issued the warrant.

Mohs argues that the bench warrant was constitutionally invalid because it failed to recite probable cause for any offense and because it did not rely on any facts submitted under oath or affirmation. He also argues that the warrant was constitutionally defective because it did not provide for bail. We review the district court’s decisions as to constitutionality de novo. Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 344 (Minn.2005).

I

We first address Mohs’s contention that the bench warrant was unconstitutionally issued because it is unsupported by probable cause. Courts may issue warrants only upon probable cause. U.S. Const, amend. IV; Minn. Const, art. I, § 10. Mohs’s failure to appear was an offense that occurred in the presence of the judge, and the district court found that the failure constituted probable cause to support the bench warrant. Appellate courts give great deference to an issuing court’s probable cause determination. State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001). Mohs does not dispute that he was required to appear in court on November 1, 2004, and that he did not appear. The scheduling of the November criminal proceedings, the appearance of Mohs’s attorney as scheduled, and Mohs’s absence from the courtroom when the district court called his case for trial obviously support the district court’s determination that the bench warrant rests on probable cause that Mohs failed to appear.

II

Relying on the state and federal constitutional provisions that no warrant shall issue “but upon probable cause, supported by oath or affirmation,” Mohs next argues that a judge may not rely solely on his own observations to determine that probable cause exists to issue a bench warrant for a defendant who has failed to appear as ordered. U.S. Const, amend. IV; Minn. Const, art. I, § 10. Mohs urges that the federal and state constitutions require a separate oath or affirmation attesting to what the judge has personally observed and the events that occurred in the court’s presence (specifically, here, the defendant’s absence). We disagree. While the constitutionality of a bench warrant issued without oath or affirmation is a question of first impression in Minnesota, the authority for a judicial officer to issue a bench warrant for acts occurring in the court’s presence is well established in history before and after ratification of the Fourth Amendment.

Before the founding of the nation, the drafting of the Constitution, or the adoption of the Fourth Amendment, Sir William Blackstone described the recognized judicial authority to direct the arrest of persons who commit offenses in the court’s presence, but the need for testimony or affidavit for the court to direct the arrest of persons whose misconduct occurs outside the court’s presence:

If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any farther proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowle[d]ge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they [may] ... make a rule on the suspected party to sh[o]w cause why an attachment should not issue against him....

William Blackstone, 4 Commentaries *283.

Twenty years after the signing of the Constitution and- sixteen years after the Fourth Amendment’s ratification, in argument to the Supreme Court headed by Chief Justice Marshall in 1807, an attorney for the District of Columbia similarly noted the general proposition that a court has the power to “issue a bench-warrant ... for an offen[s]e committed in the presence of the court.” Ex parte Bollman, 8 U.S. (4 Crunch) 75, 115, 2 L.Ed. 554 (1807). We point this out to demonstrate only the extant commonality of the practice; the Bollman Court did not have occasion to express the authority for bench warrants in its opinion, which addressed whether a pre-indictment writ of habeas corpus would overcome allegations of treason. Id. at 134-36.

Over sixty-five years later, the Court declared the central principle, explaining that “[t]he power to punish for contempts is inherent in all courts.” Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1873). The Supreme Court soon described a court’s authority to order arrest for violations committed in the court’s presence to be “of almost immemorial antiquity, and universally acknowledged.” In re Terry, 128 U.S. 289, 307, 9 S.Ct. 77, 80, 32 L.Ed. 405 (1888). The Court recognized the “settled doctrine,” which predated the Constitution, that for “direct con-tempts committed in the face of the court, ... the offender may ... be instantly apprehended ... without other proof than [the court’s] actual knowledge of what occurred.” Id. at 313, 9 S.Ct. at 83. Although the Terry Court did not specifically refer to the Fourth Amendment, it denied a habeas petitioner’s claim that the circuit court lacked authority to commit him to prison for contempt for an act committed in the court’s presence. Implicit in Terry’s reasoning is that judicial authority to order arrest for offenses committed “in the face of the court” without additional proof is consistent with the Fourth Amendment’s liberty safeguards; the Court declared it to be a doctrine confirmed by “an unbroken chain of authorities, reaching back to the earliest times” and one that is “never supposed to be in conflict with the liberty of the citizen.” Id.

In 1927, the Supreme Court finally had occasion to consider squarely a court’s authority to issue bench warrants for failure to appear based on the court’s own knowledge and without supporting sworn testimony specifically in light of the Fourth Amendment. In McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 (1927), a habeas petitioner had been arrested on a warrant issued by a Senate committee for failing to appear in response to a subpoena. The Court relied specifically on the “settled rulings that courts, in dealing with contempts committed in their presence, may order commitments without other proof than their own knowledge of the occurrence, and ... may issue attachments, based on their own knowledge of the default, where intended witnesses ... fail to appear in obedience to process.” Id. at 157, 47 S.Ct. at 323 (footnotes omitted). Like Mohs, the petitioner in McGrain relied on the provision of the Fourth Amendment that “no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation,” arguing that the warrant was void because it was based on an unsworn report. Id. at 156, 47 S.Ct. at 322. The Court rejected this argument, reasoning that the well-settled authority that courts may rely on their own knowledge of an offender’s failure to appear without requiring further oath or affirmation beyond the oath of office should extend to legislative proceedings as well. Id. at' 156-58, 47 S.Ct. at 322-23. At least one state court has followed this approach. The Nebraska Supreme Court has held that a judge may issue a bench warrant without a supporting affidavit when the incident supporting probable cause for the warrant’s issuance occurs in the court’s presence, reasoning that “[t]he personal knowledge exception to the affidavit requirement recognizes the. commonsense notion that there is no point in. .a judge executing an affidavit when that judge has personal knowledge of facts establishing probable cause.” State v. Davidson, 260 Neb. 417, 618 N.W.2d 418, 425-26 (2000) (quotation marks omitted).

Mohs argues that we should find a constitutional violation because his failure to appear is analogous to a constructive contempt rather than a direct contempt, relying on Knajdek v. West, 278 Minn. 282, 153 N.W.2d 846 (1967). The argument is not convincing. The Knajdek court addressed a personal-injury attorney’s conviction of criminal contempt and the consequent 60-day sentence of incarceration as punishment based on his alleged willful and inexcusable failure to follow court orders in a dispute over settlement proceeds. Knajdek, 278 Minn, at 283-84, 153 N.W:2d at 847. The district court had convicted the attorney of contempt, in part, for being 20 minutes late to a scheduled hearing, and the Knajdek court considered whether the district court could convict and sentence the attorney as punishment without a jury trial. Id. It reasoned that the tardiness was “an act wholly performed” and that punishment for that act therefore “could have no remedial effect, and its only purpose was to maintain and vindicate the authority of the court.” Id. at 285, 153 N.W.2d at 848. Whether the punishment was proper turned on the statutory and common-law distinction between “direct contempts,” which may be heard and punished summarily, and “constructive con-tempts,” which may not. Id. In contrast to this case, no constitutional issue was before the Knajdek court. Here, we are asked instead to impose constitutional limits on the district court’s inherent authority to direct the sheriff to issue an arrest warrant not to punish but to “promptly bring [Mohs] before [the] court” after he failed to appear for his criminal trial. No criminal penalty was issued summarily, or at all, by the district court. The sole function of the warrant was not to incarcerate as punishment, but to return Mohs to the court to complete the criminal proceedings on charges already under prosecution. The holding and reasoning in Knajdek are inapposite to that question. We hold that the bench warrant that was issued to secure Mohs’s appearance to stand trial for a charge for which probable cause had already been established did not offend the oath-or-affirmation clause of the Fourth Amendment.

This analysis also defeats Mohs’s challenge under the state constitution. The Fourth Amendment’s language requiring an oath or affirmation is included word-for-word in the state constitution, and Mohs does not suggest that the state constitution entitles him greater protection in the issuance of a bench warrant than that afforded to him under the federal Constitution. The Supreme Court’s interpretation of a provision of the United States Constitution with language identical to a provision of the Minnesota Constitution is “of inherently persuasive” force in interpreting the state provision. State v. Fuller, 374 N.W.2d 722, 727 (Minn.1985). And our supreme court has also cautioned that a decision to interpret the Minnesota Constitution differently than the federal Constitution should not be made cavalierly. State v. Carter, 596 N.W.2d 654, 657 (Minn.1999). We therefore apply the Supreme Court’s reasoning in McGrain v. Daugherty and hold that the issuance of the bench warrant without additional oath or affirmation did not violate article I, section 10, of the Minnesota Constitution.

Ill

We last address Mohs’s contention that the bench warrant was constitutionally defective because it did not specify bail. The argument is not persuasive. Mohs relies solely on the state constitution’s provision that “[a]ll persons before conviction shall be bailable by sufficient sureties, except for capital offenses” to support his argument that every arrest warrant must provide for bail and that “body-only” warrants are prohibited. Minn. Const., art. I, § 7. This provision neither expressly states nor implies that all arrest warrants must provide for bail. And the rule requiring that an issuing judge must set the amount of bail on the warrant applies only to warrants initially issued upon a complaint. Minn. R.Crim. P. 3.02, subd. 1. Mohs does not dispute that the district court set bail for his release within 36 hours after his return to court after apprehension on the bench warrant. Mohs has not identified a constitutional violation.

DECISION

Probable cause for the bench warrant was apparent from the undisputed facts that developed in the district court’s presence and that are also indicated on the face of the warrant. Because Mohs’s failure to appear for trial occurred in the presence of the district court judge, we conclude that the judge validly issued the bench warrant for Mohs’s arrest without a separate supporting oath or affirmation attesting to what the judge already knew and personally observed. Finally, we conclude that the “body-only” bench warrant was not constitutionally required to include a bail provision. The issuance of the bench warrant was necessary to effectuate an essential judicial function to return a defendant to court for a scheduled trial on a charge for which probable cause had previously been determined. Mohs has identified no constitutional infirmity in the district court’s exercise of its authority to complete the criminal prosecution.

Affirmed.


author: HUSPENI, Judge.

text:
    STATE of Minnesota, Respondent, v. Christopher GARIBALDI, Appellant.
    No. A06-116.
    Court of Appeals of Minnesota.
    Feb. 6, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Michael 0. Freeman, Hen-nepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; HUDSON, Judge; and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

Appellant challenges his conviction for felony test refusal, arguing that the district court did not obtain an adequate waiver from him of his right to counsel before proceeding with a bench trial on stipulated facts. Appellant argues that a written waiver of the right to counsel was required and that a comprehensive inquiry on the record did not occur. Appellant also argues that the district court erred by allowing private counsel who had already filed a certificate of representation to withdraw without making any appearance in court or filing a motion. Because the record does not show that appellant had an adequate opportunity to consult with his previous counsel before the waiver, standby counsel was not appointed, and the district court failed to conduct an on-the-record inquiry of the factors listed in Minn. R.Crim. P. 5.02, subd. 1(4), we conclude that appellant’s waiver was not knowing, voluntary, and intelligent, and we reverse and remand for a new trial.

FACTS

Appellant Christopher Garibaldi was charged with felony first-degree driving while impaired (DWI), felony first-degree refusal to submit to chemical testing, and gross-misdemeanor driving after license cancellation. The charges arose from an incident in February 2005, when police found Garibaldi slumped in the driver’s seat of a car with the motor running, stopped in the middle of the street. Paramedics on the scene reported that the driver smelled strongly of alcohol and police noticed a strong odor of marijuana coming from inside the vehicle. Responding police, who assisted Garibaldi out of the vehicle, observed that his eyes were glassy and bloodshot, that his movements were slow and lethargic, and that he appeared to have urinated in his pants. Because he was unable to stand or walk without assistance, they did not administer field sobriety tests.

Police arrested Garibaldi, read him the implied consent advisory, and gave him about one-half hour to contact an attorney. He refused to take a breath test. He was released, but charged four months later.

Garibaldi made his first appearance in district court on June 21, 2005. He was represented by Richard Enga, a private attorney who filed a certificate of representation with the district court on the same day. Enga stated that this was allegedly Garibaldi’s fourth qualifying offense. An omnibus hearing and trial date were scheduled.

On July 18, Garibaldi appeared without an attorney at a pretrial hearing before a different district court judge. The following exchange took place:

COURT: Mr. Garibaldi, Rick Enga doesn’t represent you anymore?
DEFENDANT: No, Your Honor. I— we couldn’t come to an agreement. Actually, I couldn’t afford him and that was pretty much the nature of the—
COURT: Was there a certificate of representation filed or did someone just put that on there?
DEFENDANT: You know, Rick was supposed to show up today.
PROSECUTOR: Yes, there was. I have a copy of it.
CLERK: Back on June 21st.
COURT: Well, he technically still should be on the case but you say no?
DEFENDANT: Yeah. Like I said, it was a financial situation. I have a lot of other things. That’s pretty much what’s going on.
COURT: So you’re going to represent yourself?
DEFENDANT: Yes. I’m going to do the best I can, Your Honor.
COURT: Okay.

The district court informed Garibaldi that he would “be better off if [he] had an attorney for trial.” The court did not question Garibaldi further on his decision to represent himself, mention the possibility of applying for a public defender, or offer a form for Garibaldi to sign to waive representation by an attorney.

On August 11, Garibaldi appeared pro se for a stipulated-facts trial before a third district court judge. A prosecutor who was making his first appearance in the case stated to the district court that “Mr. Garibaldi is presently] representing himself. He was formerly represented, according to my notes, by Rick Enga of the Public Defender’s Office [sic].- That was back in his first appearance on January 21[sic].” The prosecutor stated that before the hearing, he had advised Garibaldi of his right to an attorney or the right to apply for a public defender. He stated that he “went into additional detail” with Garibaldi about the waiver of his right to an attorney. He indicated that he would defer to the district court to proceed with whatever waivers the court thought necessary. The following exchange took place:

COURT: Mr. Garibaldi, first of all, do you understand everything that Mr. My-ren said here today?
DEFENDANT: Yes, I do.
COURT: Okay. And I guess the first thing we need to address is, do you wish to proceed, whether with a trial or some variation on a trial, without having a lawyer to represent you?
DEFENDANT: Yes, I would.
COURT: Okay. And you understand, although Mr. Myren has talked with you today and because you are pro se, he’s dealing directly with you and explained some things to you, do you understand he’s not your lawyer?
DEFENDANT: I do.
COURT: In fact, he’s the prosecutor who is on the other side; do you understand that?
DEFENDANT: Yes, I do.

The district court then explained to Garibaldi his rights to a jury trial, confrontation of witnesses, and the burden of proof at trial, as well as the procedure for a stipulated-facts trial, to which Garibaldi agreed. The district court did not question Garibaldi further on the record concerning the waiver of counsel or provide a written waiver form to him. The prosecutor then further questioned Garibaldi:

PROSECUTOR: Do you understand that you’re waiving your right to an attorney of any kind in this case by representing yourself, correct?
DEFENDANT: Yes, I do.
PROSECUTOR: Do you understand that you’re entitled to the services of a public defender because you qualified before, would probably qualify again?
DEFENDANT: Yes.
PROSECUTOR: Okay. But you’re waiving that right even to a public defender?
DEFENDANT: Yes, I do.

At the stipulated-facts trial Garibaldi introduced exhibits of medical records showing that at- the time of the offense, he had a prescription for valium for back and leg muscle pain and headaches arising from his injury in a 2004 vehicle accident. He argued that this pain caused him to use alcohol after a period of abstinence following his last DWI conviction in about 1998. He testified that on the night of the offense, he made a bad decision by attempting to get to the emergency room under the influence of drugs.

The district court found Garibaldi guilty of test refusal and driving after cancellation and not guilty of DWI. The district court sentenced him to 42 months, stayed, and 240 days served, with 30 days in the workhouse and the remainder on electronic home monitoring and probationary conditions including remaining law abiding and not using alcohol or illegal or nonpres-cribed drugs. This appeal followed.

ISSUE

Was Garibaldi’s waiver of his right to counsel at his stipulated-facts trial knowing, voluntary, and intelligent when the record does not reflect the extent of his opportunity to consult with previous counsel, no standby counsel was appointed, and the district court did not conduct an adequate on-the-record inquiry of the elements of waiver in Minn. R.Crím. P. 5.02, subd. 1(4)?

ANALYSIS

The United States and Minnesota constitutions guarantee a criminal defendant the right to the assistance of counsel. U.S. Const, amend. VI; Minn. Const, art. I, § 6. A defendant may waive the right to counsel if the waiver is competent and intelligent. State v. Worthy, 583 N.W.2d 270, 275 (Minn.1998) (citing John son v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). “[T]he court must ‘satisfy itself that the [defendant’s] waiver ... is knowing and voluntary.’ ” State v. Camacho, 561 N.W.2d 160, 171 (Minn.1997) (alteration in original) (quoting Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993)); see also State v. Krejci, 458 N.W.2d 407, 412 (Minn.1990) (stating that the district court has the duty to ensure that a defendant’s waiver of the right to counsel is knowing and intelligent). To determine whether a waiver of the right to counsel is knowing, voluntary, and intelligent, district courts “should comprehensively examine the defendant regarding the defendant’s comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant’s understanding of the consequences of the waiver.” Camacho, 561 N.W.2d at 173.

Since 1965, in order to assure that a defendant’s waiver of counsel comports with constitutional requirements, Minnesota law has stated a requirement that “[w]here counsel is waived by a defendant, the waiver shall in all cases be made in writing, signed by the defendant, except that in such situation if the defendant refuses to sign the written waiver, then the court shall make a record evidencing such refusal of counsel.” Minn.Stat. § 611.19 (2006); see 1965 Minn, laws ch. 869, § 6, at 1633. Effective in 1999, rule 5.02 of the Minnesota Rules of Criminal Procedure was also amended to add the requirement that the district court obtain a written waiver, or make an oral record of waiver after the defendant refuses to sign a written waiver. See Minn. R.Crim. P. 5.02, subd. 1(4) (stating that “[i]f a defendant ... does not request counsel and wishes to represent himself or herself, the court shall ensure that a voluntary and intelligent written waiver of the right to counsel is entered in the record.”). Minn. R.Crim. P. 5.02, subd. 1(4), additionally states that before accepting a waiver, the district court “shall” advise the defendant of

the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel.

In the decade before rule 5.02 was revised, the Minnesota Supreme Court decided a series of cases dealing with the validity of a defendant’s waiver of counsel. In 1990, that court concluded that a defendant’s waiver was knowing and intelligent when the record showed that the defendant had delayed trial, interacted with 12 different judges, had various conversations with two public defenders, and had refused to accept representation from the public defender’s office. Krejci, 458 N.W.2d at 412-13. The district court also appointed standby counsel to assist the defendant at trial. Id. at 413.

In State v. Brodie, 532 N.W.2d 557, 557 (Minn.1995), the supreme court held that a defendant knowingly and voluntarily waived his right to counsel when he was given counsel but fired his attorney, and the original public defender assisted the defendant at trial.

In Camacho, the supreme court upheld a defendant’s waiver of counsel when the record showed that the defendant extensively discussed the issue of waiver with his attorney, who told the defendant he disagreed with the decision to proceed pro se. 561 N.W.2d at 173. Standby counsel also assisted the defendant at trial by consulting on evidentiary issues and developing the record on legal and strategic questions. Id. at 167.

Finally, in Worthy, the supreme court upheld two defendants’ waivers of their right to counsel when they had previously been given competent counsel who made pretrial motions, including motions to suppress evidence, and represented the defendants until they unequivocally fired their attorneys the morning of the scheduled trial. 583 N.W.2d at 274. The Worthy court concluded that the waivers were valid even though the district court had failed to make an on-the-record inquiry, including a recitation of the charges or the potential punishments. Id. at 276. In so doing, the court stated the importance of “ ‘the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused-.’ ” Id. at 275-76 (quoting Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023).

The waivers of the right to counsel in Krejci, Brodie, Camacho, and Worthy were all declared valid, despite being challenged on appeal. But each of these cases differed in some aspect from the one we now consider. First, each predates the amendment of rule 5.02. Second, in each case the appellants had either extensive contact with defense attorneys or stand-by counsel or both. Garibaldi here had neither.

We rely most strongly for guidance on a case released a year after the change in rule 5.02, wherein the Minnesota Supreme Court held that a parent’s statutory waiver of counsel in a termination of parental rights (TPR) proceeding was voluntary and intelligent. In re G.L.H., 614 N.W.2d 718, 724 (Minn.2000). The supreme court rejected the argument that rule 5.02 applied by analogy in TPR proceedings, rejecting the claim that the waiver was not valid because the district court had failed to follow the procedures specified in the rule. Id.; see In re G.L.H., 604 N.W.2d 97, 101 (Minn.App.1999), rev’d, 614 N.W.2d 718 (Minn.2000). The supreme court stated:

The [TPR] statute is silent as to any substantive correlation between the juvenile and criminal rules.
An analogy between waiver of the right to counsel in TPR proceedings and in criminal proceedings fails to recognize that the creation of a statutory right, while deserving of protection, is not necessarily the equivalent of a constitutional right.

G.L.H., 614 N.W.2d at 722 (footnote omitted). Despite the distinction drawn between criminal and juvenile rules, and between statutory and constitutional rights, the court observed that

even in the context of a criminal defendant’s waiver of his constitutional right to counsel, we have held waivers valid even though the district court failed to follow a particular procedure. See State v. Worthy, 583 N.W.2d 270, 275-76 (Minn.1998); State v. Brodie, 582 N.W.2d 557, 557 (Minn.1995). In doing so, we have considered “ ‘the particular facts and circumstances surrounding [a] case, including the background, experience, and conduct of the accused.’ ” Worthy, 583 N.W.2d at 275-76 quoting Zerbst, 304 U.S. at 464, 58 S.Ct. 1019, 82 L.Ed. 1461; see Brodie, 532 N.W.2d at 557 (Minn.1995). While Brodie preceded Camacho and the adoption of Minn. R.Crim. P. 5.02, subd. 1(4), it occurred after the United States Supreme Court decided Zerbst and Godinez, and Worthy was decided subsequent to Camacho.
Based on the inherent and historical differences between constitutional and statutory rights, and ease precedent relating to each, we conclude that the determination of a parent’s valid waiver of the statutory right to counsel in TPR proceedings does not necessitate the application of the procedure set forth in Minn. R.Crim. P. 5.02, subd. 1(4).... In addition, we are guided by our holdings in Worthy and Brodie, and hold that the determination of whether a parent’s waiver of counsel in a TPR proceeding is voluntary and intelligent can be based on the surrounding circumstances of the case.

Id. at 723.

Ultimately, the supreme court concluded that the parent’s waiver of the right to counsel was voluntary and intelligent after she had been provided with counsel for one-and-one-half years, she had previous experience with the criminal justice system, and she was told that if she fired her attorney she would have to cross-examine her own witnesses. Id. at 724. Nonetheless, she chose to fire her attorney the morning of the TPR trial. Id. Thus, in G.L.H., the supreme court endorsed the importance of a fact-specific examination in determining whether a defendant’s waiver of the right to counsel was knowing, voluntary, and intelligent.

Although we recognize that the supreme court in G.L.H. extended its analysis beyond the precise issue presented, we follow that guidance and, consistent with all previous opinions addressing the issue of waiver, examine the specific facts of this case. We note initially that here the district court did briefly question Garibaldi about his waiver of counsel. But, after careful consideration of both all of the facts in this case and all of the guidance of case law, we cannot conclude that this record supports a determination that Garibaldi knowingly, voluntarily, and intelligently waived his right to counsel. First, in contrast to many of the cases cited to guide us, the record is silent regarding whether Garibaldi was sufficiently informed by previous counsel of the consequences of representing himself. Cf. Worthy, 583 N.W.2d at 276 (indicating that the district court could reasonably presume that defendants were fully advised by then-previous attorney on the consequences of proceeding pro se when they “were provided with competent legal representation for over a month before trial and took full advantage of that representation up until the morning of their scheduled trial date”). Even though Garibaldi, like the defendants in Worthy, had previous experience with the criminal justice system, his previous attorney made only a brief scheduling appearance before the district court and did not continue to represent Garibaldi at the pretrial hearing a month later, nor during the time leading up to the stipulated-facts trial two months after that. Second, unlike the defendants in Worthy and Brodie, Garibaldi did not unequivocally fire his attorney shortly before trial. Cf. Worthy, 583 N.W.2d at 274; Brodie, 532 N.W.2d at 557. Rather, he merely indicated at a pretrial hearing that he “couldn’t afford” his attorney, but that the attorney was “supposed to show up” at the hearing. Third, again unlike the defendants in Worthy and Brodie, Garibaldi was not offered the benefit of standby counsel to assist him before or during trial.

Further, we recognize that even after G.L.H., an opinion issued after modification of Minn. R.Crim. P. 5.02, subd. 1(4), that rule must have some continuing role in the process of evaluating whether a defendant validly waived his right to counsel, especially as the trial itself draws close. See Iowa v. Tovar, 541 U.S. 77, 88-89, 124 S.Ct. 1379, 1387, 158 L.Ed.2d 209 (2004) (stating that “[a]s to waiver of trial counsel, we have said that before a defendant may be allowed to proceed pro se, he must be warned specifically of the hazards ahead.”) (citing Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)). We conclude that, here, the district court’s cursory examination of Garibaldi on the record at his stipulated-facts trial did not meet the “heightened degree of caution in waiver procedure” noted by the supreme court in G.L.H. and codified in rule 5.02. See G.L.H., 614 N.W.2d at 723; cf Camacho, 561 N.W.2d at 173 (stating that “[tjhere is no question that the [district] court conducted a very thoughtful and comprehensive examination ... regarding the facts relevant to [the defendant’s] understanding of his waiver of the right to counsel.”).

On the day of the stipulated-facts trial, the prosecutor stated that he had advised Garibaldi of his right to an attorney of his choosing or a public defender and the waiver of that right. But this discussion does not appear on the record. The prosecutor then stated that he would “defer to the [c]ourt at this time with respect to whatever waivers [the court] think[s] are necessary.” The district court asked Garibaldi whether he wished to proceed to trial without having an attorney to represent him, and Garibaldi replied that he did. The court then replied, “Okay.” The court asked Garibaldi whether he understood that the prosecutor was representing “the other side,” whether he had “any questions about the various options that [the prosecutor] ha[d] laid out” and whether he understood that he was charged with a felony. Garibaldi responded, “Yes, ma’am.” The court thén again stated, “Okay.” To the extent that Garibaldi’s answer is ambiguous, the record does not resolve the ambiguity.

But the district court never questioned Garibaldi further about his waiver of the right to counsel, proceeding instead to explain Garibaldi’s right to trial and the different kinds of trials, including the procedure in a stipulated-facts trial. The prosecutor then asked Garibaldi again whether he waived his right to an attorney; he indicated that he did. But the record contains no indication that the district court conducted any further on-the-record examination, such as informing Garibaldi of the range of possible punishments for his offense and the advantages and disadvantages of his decision to waive counsel.. Although one may “tease” from the record an implication that the prosecutor may have informed Garibaldi of these matters, the failure to create an adequate on-the-record inquiry under these circumstances falls short of -the compliance with rule 5.02 that even a 1⅜-eral reading of G.L.H. would require. And we are unwilling to treat an off-the-record conversation with the prosecutor, counsel for the adverse party, as remedying the lack of a rule 5.02 inquiry by the court.

In deciding as we have in this case, we are keenly aware of both the specific requirements of the rule and the policy reasons for accepting less than strict adherence to those requirements. We are not insensitive to the very real time pressures present each day in the trial courts of the state. And a temptation to cynicism might lead a reviewing court to be reluctant to provide a defendant with “two bites at the apple,” a chance to retry a case based on a contention that a previous waiver of counsel was not voluntary, knowing, and intelligent. But adherence to the mandates of the rule should be required when addressing the issue of waiver, especially when, as here, the record is unclear on the extent of Garibaldi’s previous representation, and standby counsel was not appointed. Further, a thorough and careful waiver procedure will ultimately result in conservation of time and treasure, and will reduce the emotional toll extracted from all participants in the judicial system. Conversely, acceptance of an inadequate waiver invites not only appeal, but reversal and remand for a new trial.

Because we reverse and remand for a new trial on the basis that Garibaldi’s waiver of counsel was not knowing, voluntary, and intelligent, we need not address his further argument' that the district court erred by allowing his previous counsel to withdraw without approval of the district court.

DECISION

The record does not support a determination that Garibaldi’s waiver of counsel was knowing, voluntary, and intelligent. The record does not show that he had sufficient opportunity to consult with counsel regarding his desire to represent himself, he was not offered the benefit of standby counsel, and the district court failed to conduct, an adequate on-the record examination on the waiver of his right to counsel.

Reversed and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to ' Minn. Const, art. VI, § 10.

      . Enga never made another appearance on Garibaldi's behalf or sought court approval to withdraw from the case. He died after an illness in early September 2005.

      . Although the parties agreed to a stipulated-facts trial, the district court permitted Garibaldi to testify in his own defense.

      . The prior version of Minn. R.Crim. P. 5.02 did not reflect a defendant’s right to waive counsel in gross misdemeanor and felony cases, although the comments to that rule acknowledged a defendant’s right to represent himself and waive counsel as long as counsel remains available for assistance. Minn. R.Crim. P. 5.02 cmt.; see Minn. R.Crim. P. 5.02 cmt. (1998) (amended 1998, effective Jan. 1, 1999). Both the current and prior versions of the rule contemplate a waiver procedure at the defendant’s first district court appearance but have also been applied at later proceedings. ,

      . After G.L.H., this court held that a defendant’s constitutional right to counsel was violated when no record of his waiver of counsel was made. State v. Hawanchak, 669 N.W.2d 912, 915 (Minn.App.2003). This court in Ha-wanchak cited rule 5.02 and stated that when no record existed of a defendant’s waiver of counsel, it was impossible to determine whether a waiver was knowing and intelligent. Id. at 914-15.

      . Despite Garibaldi’s statement to the district court at the pretrial hearing that he was no longer represented because he "couldn’t afford” his previous attorney, the record contains no indication that the district court offered him an application for a public defender. The prosecutor at the stipulated-facts trial mistakenly informed the court that Garibaldi had been previously represented by a public defender.