source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    Louis BUGGS, Appellant, v. STATE of Minnesota, Respondent.
    No. A06-1058.
    Supreme Court of Minnesota.
    June 28, 2007.

      Louis Buggs, Bayport, MN, Pro Se Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, Michael 0. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

In 1998, we affirmed Louis Buggs’ first-degree murder conviction. State v. Buggs, 581 N.W.2d 329, 332 (Minn.1998). On December 1, 2004, Buggs filed a petition for postconvietion relief. In his petition, Buggs asserts that he is entitled to postconvietion relief because the “systematic exclusion of members of his race from participation in the grand, or petit, jury body” in his case denied him equal protection of the law. Despite his reference to the petit jury in the petition, Buggs’ arguments to the postconvietion court focused entirely on the alleged race discrimination in the selection of his grand jury. On April 13, 2006, the postconvietion court issued its order denying Buggs relief without a hearing. In its order, the postcon-viction court focused, as did Buggs, on Buggs’ claim of race discrimination in the selection of his grand jury. Based on its review of Buggs’ trial court file, the post-conviction court concluded that “Buggs knew or should have known of the facts that form the basis of his petition for post-conviction relief.” As a result, the court also concluded that Buggs was not entitled to “re-consideration of those issues.” In addition, the court found that Buggs failed to make a prima facie case that his claims had merit and failed to explain why he waited six years to file his petition. We affirm.

When reviewing a postconvietion court’s denial of relief, we examine whether the postconvietion court’s findings are supported by sufficient evidence. Russell v. State, 562 N.W.2d 670, 672 (Minn.1997). We will only reverse a postconvietion court’s decision if that court abused its discretion. Id. Under State v. Knaffla, all claims raised by the defendant in a direct appeal and all claims known at the time of that appeal are barred from review in a subsequent petition for postconviction relief. 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). “The Knaffla rule [also] bars ‘all claims that the appellant should have known at the time of direct appeal.’ ” Schleicher v. State, 718 N.W.2d 440, 447 (2006) (quoting Koslcela v. State, 690 N.W.2d 133, 134 (Minn.2004)). There are two exceptions to Knaffla: (1) when “a claim is so novel that the legal basis was not available on direct appeal or (2) [when] fairness requires [that the claim be heard] and the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on appeal.” Mckenzie v. State, 707 N.W.2d 643, 644 (Minn.2005).

On appeal to this court, Buggs renews his arguments but now focuses entirely on the process used to select his petit jury. Buggs asserts that the process used to select his petit jury violated his right to equal protection because: (1) he is African American and African Americans are “singled out for different treatment under the law”; (2) African Americans were substantially underrepresented because none were selected to participate in his grand or petit jury; and (3) although the venire is selected at random, the inclusion of a race indicator on the jury questionnaire makes it susceptible to abuse and racial discrimination. Buggs, in essence, claims that the low number of minorities who actually serve on petit juries is evidence that the jury questionnaire is being used to discriminate.

The state asserts that we should affirm the postconviction court’s denial of relief because Buggs’ petition is untimely, procedurally barred, and without merit given Buggs’ failure to come forward with any facts to support his allegations.

We conclude that, at the time of his direct appeal, Buggs either knew or should have known of any claims available to him based on the procedures used to select the grand jury that indicted him and the petit jury that convicted him. Information relating to those procedures was at the time, and continues to be, publicly available. Indeed, those procedures have been the subject of decisions by this court. See State v. Perry, 561 N.W.2d 889, 896 (Minn.1997) (discussing the grand jury selection process used in Hennepin County); State v. Roan, 532 N.W.2d 563, 569 (Minn.1995) (discussing the petit jury selection process used in Hennepin County). Information relating to the racial composition of the grand jury that indicted him and the petit jury that convicted him was also publicly available at the time of his direct appeal. Therefore, Buggs’ claims relating to the racial composition of his grand jury and petit jury were either known or should have been known to him at the time of his direct appeal.

Because all of the claims raised in Buggs’ petition for postconviction relief were either known to him or should have been known to him at the time of his direct appeal, they are Knaffla-harred. Therefore, the postconviction court did not abuse its discretion when it denied Buggs’ petition for postconviction relief without a hearing.

Affirmed.

      . The facts underlying Buggs’ conviction can be found in our decision affirming his conviction on direct appeal.

      . Having carefully reviewed Buggs’ claims and the record presented, we are satisfied that none of the claims come within either exception of the Knaffla rule.


author: DIETZEN, Judge.

text:
    Arnold M. JOHNSON, Appellant, v. Shannon PETERSON, Defendant, Bankers Life and Casualty Company, et al., Respondents.
    No. A06-1403.
    Court of Appeals of Minnesota.
    June 26, 2007.

      George L. Duranske, III, Duranske Law Firm, Bemidji, MN, for appellant.
    Bradley J. Betlach, David A. James, Halleland Lewis Nilan & Johnson, P.A., Minneapolis, MN, for respondents.
    Considered and decided by STONEBURNER, Presiding Judge; DIETZEN, Judge; and WORKE, Judge.
   OPINION

DIETZEN, Judge.

Appellant challenges the district court’s dismissal of his claims for negligent hiring, training, and supervision against respondents, the employer and supervisor of an employee who allegedly defrauded him. Because the district court properly applied the law, we affirm.

FACTS

Appellant Arnold Johnson is a vulnerable adult as defined by Minn.Stat. § 609.232 (2006). Defendant Shannon Peterson was an insurance agent for respondent Bankers Life and Casualty Company (Bankers). Respondent Richard Groom was responsible for training and supervising Peterson.

In 2003, Johnson brought an action against Peterson, alleging that she made false representations while employed as an insurance agent for Bankers to induce him to transfer $104,000 to her. The complaint alleged that Peterson represented that the money was to be used for medical emergencies that Peterson or members of her family faced and that it “was necessary because of her dire financial situation.”

In January 2006, Johnson amended the complaint to join Bankers and Richard Groom, alleging negligent hiring, training, and supervision. Along with economic damages, the complaint alleged that “as a result of the stress and anxiety of these events [Johnson] ha[d] developed medical complications including heart problems and anxiety related disorders.”

Bankers moved for a judgment on the pleadings under Minn. R. Civ. P. 12.02(e) for failure to state a claim. Groom brought a similar motion. Bankers and Groom argued that Minnesota does not recognize a claim for negligent hiring or negligent supervision absent actual or threatened physical injury. Johnson opposed the motion for judgment on the pleadings. Following a hearing, the district court granted the motion. This appeal followed.

ISSUE

Did the district court err by dismissing on the pleadings the claims of negligent hiring, negligent training, and negligent supervision against respondents?

ANALYSIS

Johnson argues that the district court erred by dismissing on the pleadings his claims against Bankers and Groom. We examine a dismissal under Minn. R. Civ. P. 12.02(e) de novo, to determine whether the complaint sets forth a legally sufficient claim for relief. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn.2003). In doing so, we consider only the facts alleged in the complaint, accepting those facts as true and construing all reasonable inferences in favor of the nonmoving party. Id; Marquette Nat’l Bank v. Norris, 270 N.W.2d 290, 292 (Minn.1978). Rule 12.02(e) permits dismissal on the basis of “failure to state a claim upon which relief can be granted.” This court “will not uphold a rule 12.02(e) dismissal ‘if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.’ ” Radke v. County of Freeborn, 694 N.W.2d 788, 793 (Minn.2005) (quoting N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963)).

A. Negligent Training

Johnson’s complaint asserts, among other things, that Bankers and Groom “negligently failed to properly train” defendant Shannon Peterson. But current Minnesota law does not recognize a cause of action for negligent training. See M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn.App.1995) (identifying negligent hiring, negligent retention, and negligent supervision as the only causes of action “where a claimant sues an employer in negligence for injuries caused by one of its employees”), review denied (Minn. July 20, 1985). Therefore, as a matter of law, the dismissal of Johnson’s negligent-training claim for failure to state a claim was proper.

B. Negligent Supervision or Negligent Hiring

Johnson’s complaint asserts that Bankers and Groom “negligently failed to properly screen Defendant Shannon Peterson for employment shortly before the theft from [Johnson], and failed to properly ... supervise Defendant Shannon Peterson, which said acts contributed to the embezzlement and theft of money from [Johnson].”

Negligent-supervision claims are premised on an employer’s duty to control employees and prevent them from intentionally or negligently inflicting personal injury. See Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 534 (Minn.1992); Restatement (Second) of Torts § 317 (1965). The Restatement “unambiguously” limits an employer’s duty to the prevention of bodily harm. Semrad, 493 N.W.2d at 534. Thus, it is well established that a viable negligent-supervision claim must allege physical injury. See Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 443 (Minn.App.1996) (holding that physical injury, or apprehension of physical injury, is a required element of a claim for negligent supervision). Economic harm alone is not enough to support negligent-supervision actions. Semrad, 493 N.W.2d at 534; see also Piper Jaffray Cos., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 967 F.Supp. 1148, 1157 (D.Minn.1997) (stating that Minnesota courts have made clear that the tort of negligent supervision may not be predicated solely on economic loss).

Negligent-hiring claims are likewise predicated on the fact that it should be foreseeable that an employee posed a threat of physical injury to others. Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 911 (Minn.1983). Negligent hiring does not rely on the scope of employment, but rather on the “risks created by exposing members of the public to a potentially dangerous individual.” Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn.App.1993). Under this theory, liability for intentional torts is imposed when the employer knows or should have known that the employee was “violent or aggressive and might engage in injurious conduct.” Id.

Semrad, Bruchas, and Yunker support our conclusion that a negligent hiring claim, like a negligent supervision claim, requires that the employer knew or should have known that the employee was violent or aggressive and might engage in injurious conduct. Economic injury is not sufficient. Our conclusion is supported by the underlying purpose of section 317 of the Restatement of Torts to “unambiguously limitf ] the scope of section 317 to a duty to prevent an employee from inflicting personal injury upon a third person or to prevent the infliction of bodily harm by use or misuse of the employer’s chattels.” Bruchas, 553 N.W.2d at 443 (quotations omitted). Thus, a complaint for negligent hiring must allege that it was foreseeable either that the employee posed a threat of physical injury, or that the employee inflicted a physical injury.

In his complaint, Johnson alleged misconduct that was economic, that is, the “embezzlement and theft of money,” and that “as a result of the stress and anxiety of these events [he] developed medical complications including heart problems and anxiety related disorders.” Johnson did not allege that Peterson was “violent or aggressive and might engage in injurious conduct” and did not allege a physical injury or that Peterson posed a threat of a physical injury. The complaint only alleges emotional distress that may have caused heart problems and anxiety disorders. But emotional distress is not a physical injury. See, e.g. Ludwig v. Northwest Airlines, Inc., 98 F.Supp.2d 1057, 1072 (D.Minn.2000) (applying Minnesota law and concluding that appellant had “not alleged the type of injury necessary to maintain such claims, namely, bodily injury or the threat of bodily injury,” despite allegations that she experienced emotional distress and resulting physical symptoms). Thus, the complaint fails to state a claim for which relief can be granted and dismissal was proper.

DECISION

Because Minnesota does not recognize a claim for negligent training, that claim was properly dismissed. To set forth a legally sufficient claim for negligent hiring or negligent supervision, the complaint must allege actual physical injury or that the employee posed a threat of physical injury. A complaint that alleges employee misconduct that causes emotional distress but does not involve actual physical injury or that the employee posed a threat of physical injury, does not state a claim for which relief can be granted. Johnson’s claims for negligent hiring and negligent supervision were properly dismissed.

Affirmed.

      . Because this is a review of a rule 12 motion to dismiss, we rely on the factual allegations set forth in the complaint.

      . Johnson’s complaint does not allege that Bankers and Groom are vicariously liable for Peterson's actions through respondeat superi- or.


author: KALITOWSKI, Judge.

text:
    David TORGELSON, Renville County Attorney, Respondent, v. REAL PROPERTY KNOWN AS 17138 880TH AVE, RENVILLE COUNTY, Minnesota, Defendant, Kent Feigum, Appellant, and Thomas G. Kramer, Yellow Medicine County Attorney, Respondent, v. Property Located at 860 10th Avenue, Granite Falls, Minnesota 56241, (Lot 7, Block Eighteen 18, Lathrop’s First Addition to the City of Granite Falls, Yellow Medicine County, Minnesota), Defendant, Luverne W. Johnson, owner, Appellant.
    Nos. A06-1507, A06-1757.
    Court of Appeals of Minnesota.
    July 10, 2007.

      Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN, for respondents David Torgel-son and Thomas G. Kramer.
    Keith Ray Helgeson, Yellow Medicine County Attorney, Granite Falls, MN, for respondent Thomas G. Kramer.
    John E. Mack, Mack & Daby P.A., New London, MN, for appellants Kent Feigum and Luverne W. Johnson.
    Considered and decided by KALITOWSKI, Presiding Judge; KLAPHAKE, Judge; and MINGE, Judge.
   OPINION

KALITOWSKI, Judge.

Appellants Kent Feigum and Luverne W. Johnson argue that their homestead property is exempt from forfeiture under Minn.Stat. § 609.5311, subd. 2 (2004), because Minn. Const, art. I, § 12, as implemented by Minn.Stat. § 510.01 (2004), exempts an individual’s homestead property from seizure for the payment of any debt or liability.

FACTS

On March 16, 2006, appellant Kent Fei-gum admitted to possessing approximately 23 pounds of marijuana on his homestead property and pleaded guilty to a controlled-substance crime in the third degree in violation of MinmStat. § 152.023 (2004). Respondent Renville County Attorney then commenced an in rem forfeiture action against appellant’s homestead property pursuant to Minn.Stat. § 609.5311, subd. 2. Feigum stipulated that respondent has produced, or would be able to produce, evidence to meet the statutory requirements for forfeiture under Minn.Stat. § 609.5311, subd. 2 (2004), and that none of the limitations on forfeiture under Minn. Stat. § 609.5311, subd. 3 (2004), apply. The parties also stipulated that the property value is less than $200,000, the maximum homestead value under Minn.Stat. § 510.02 (2004).

On February 14, 2006, appellant Lu-verne W. Johnson pleaded guilty to a charge of controlled-substance crime in the first degree stemming from a controlled sale of methamphetamine which took place on appellant’s homestead property. Respondent Yellow Medicine County Attorney then commenced an in rem forfeiture action against appellant’s homestead property pursuant to MinmStat. § 609.5311, subd. 2. Appellant Johnson and respondent Yellow Medicine County Attorney agreed at the district court that the property meets the constitutional and statutory definition of homestead property and appellant Johnson did not raise any claims based on the statutory limitations on forfeiture set forth in Minn.Stat. § 609.5311, subd. 3.

In both cases, appellants answered the forfeiture actions, claiming that their homestead property was exempt from forfeiture because Minn. Const, art. I, § 12, as implemented by MinmStat. § 510.01, exempts from seizure an individual’s homestead property for the payment of any debt or liability. Both district courts ruled that appellants’ property was subject to forfeiture. These consolidated appeals follow.

ISSUE

Does forfeiture of homestead property based on the criminal acts of the property owner violate article I, section 12, of the Minnesota Constitution?

ANALYSIS

Whether homestead property may be forfeited under the drug forfeiture statute, MinmStat. § 609.5311, subd. 2, is an issue of first impression in Minnesota, although the question has been addressed by appellate courts in nine other states.

The states that allow homestead property to be forfeited have provisions that limit their exemptions to obligations stemming from the owner’s debt. See Lot 39, Section C v. Texas, 85 S.W.3d 429, 431-32 (Tex.App.2002) (holding that homestead property is not exempt from forfeiture under exemption which protects the homestead from “forced sale, for the payment of all debts”); Colorado v. Allen, 767 P.2d 798, 800 (Colo.Ct.App.1988) (holding that homestead property is not exempt from forfeiture under exemption which protects the homestead from execution or attachment “arising from any debt, contract, or civil obligation”); In re 1632 N. Santa Rita, 166 Ariz. 197, 801 P.2d 432, 437 (1990) (holding that homestead property is not exempt from forfeiture because the homestead exemption is only applicable to forced sales to satisfy the debts of the property owner); Tellevik v. 6717 100th Street S.W., 83 Wash.App. 366, 921 P.2d 1088, 1094 (1996) (holding that homestead property is not exempt from forfeiture under exemption which protects the homestead from “attachment and ... execution or forced sale for the debts of the owner”).

In contrast, states which do not allow the forfeiture of homestead property have broader homestead exemptions. See In re Bly, 456 N.W.2d 195, 200 (Iowa 1990) (holding that homestead property may not be forfeited under exemption which states “the homestead of every person is exempt from judicial sale”); Kansas ex rel. Braun v. 918 N. County Line Rd., 251 Kan. 685, 840 P.2d 453, 454 (1992) (holding that homestead property may not be forfeited under homestead exemption which states that homestead property “shall be exempted from forced sale under any process of law” (Kan. Const, art. XV, § 9)); Butterworth v. Caggiano, 605 So.2d 56, 58-60 (Fla.1992) (holding the forfeiture of homestead property unconstitutional under exemption protecting the homestead from “forced sale under process of any court”); Oklahoma ex rel. McCoy v. Lot One, Block Seven of Oakhurst Addition, 831 P.2d 1008, 1009-10 (Okla.App.1992) (holding that homestead property may not be forfeited based on the criminal acts of the owner under exemption which exempts the homestead from “attachment or execution and every other species of forced sale for the payment of debts”); Illinois v. 1403 East Parham, Street, 251 Ill.App.3d 198, 190 Ill.Dec. 573, 621 N.E.2d 1026, 1030-31 (1993) (holding that the homestead exemption may not be taken away by the owner’s commission of a criminal act under exemption which states that the homestead is “exempt from attachment, judgment, levy or judicial sale for the payment of his or her debts or other purposes”).

The relevant language in the Minnesota Constitution provides that:

A reasonable amount of property shall be exempt from seizure or sale for the payment of any debt or liability. The amount of such exemption shall be determined by law. Provided, however, that all property so exempted shall be liable to seizure and sale for any debts incurred to any person for work done or materials furnished in the construction, repair or improvement of the same, and provided further, that such liability to seizure and sale shall also extend to all real property for any debt to any laborer or servant for labor or service performed.

Minn. Const, art. I, § 12. This provision has been implemented as a homestead exemption by Minn.Stat. § 510.01, which provides:

The house owned and occupied by a debtor as the debtor’s dwelling place, together with the land upon which it is situated to the amount of area and value hereinafter limited and defined, shall constitute the homestead ... and be exempt from seizure or sale under legal process on account of any debt.

The statute places limitations on the area and value of homestead property, but all parties acknowledge that the properties at issue here fall within the statutory homestead limitations. See Minn.Stat. § 510.02.

The drug forfeiture statute provides that:

Ail property, real and personal, that has been used, or is intended for use, or has in any way facilitated, in whole or in part, the manufacturing, compounding, processing, delivering, importing, cultivating, exporting, transporting, or exchanging of contraband or [an illegal] controlled substance ... is subject to forfeiture under this section, except as provided in subdivision 3.

Minn.Stat. § 609.5311, subd. 2. Neither appellant alleges that any of the statutory exceptions contained in subdivision 3 apply to their property. See Minn.Stat. § 609.5311, subd. 3.

A district court’s decision whether a statute is constitutional is reviewed de novo. State v. Rewitzer, 617 N.W.2d 407, 412 (Minn.2000). Minnesota’s forfeiture statutes are to be liberally construed, Minn.Stat. § 609.531, subd. la (2006), but the homestead exemption is also subject to liberal construction, Denzer v. Prendergast, 267 Minn. 212, 217, 126 N.W.2d 440, 444 (1964).

We presume that Minnesota statutes are constitutional. State v. Barker, 705 N.W.2d 768, 771 (Minn.2005). The “power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). We invoke every presumption in favor of constitutionality and exercise our power to declare a statute unconstitutional with extreme caution and only when absolutely necessary. Walker v. Zuehlke, 642 N.W.2d 745, 750 (Minn.2002); Reed v. Bjornson, 191 Minn. 254, 257, 253 N.W. 102, 104 (1934). Where possible, a reviewing court must interpret a statute to uphold its constitutionality. Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 344 (Minn.2005).

“The decisions of [the Minnesota Supreme Court] reflect a disposition to protect the person claiming homestead exemption as against those asserting the right to reach his assets in satisfaction of claims.” Denzer, 267 Minn, at 216, 126 N.W.2d at 443. The Minnesota Supreme Court has declared that the “overriding policy sought to be served by the homestead exemption” was clearly expressed in the following quote from a 1932 supreme court case in which the homestead owner entered into possession of the homestead in violation of state statute:

It would not be wholesome to construe the [homestead] statute as conserving lawful homes only. To do so would tend to increase the burdens of the community chest; destroy homes; divide families; and increase the population of our orphan asylums.... [The homestead exemption] does not prescribe personal qualifications touching the moral character of the debtor; and upon principle and reason we see no justification for excluding from its protection the vicious, the criminal, or the immoral.... Our established policy is not restricted to right-thinking or right-acting persons; but sounds in hope for the future both as to the debtor and his children.

Id. at 217-18, 126 N.W.2d at 444 (quoting Ryan v. Colburn, 185 Minn. 347, 350, 241 N.W. 388, 389 (1932)); see also In re Johnson, 207 B.R. 878, 881 n. 6 (Bankr.D.Minn.1997) (“The Minnesota homestead exemption laws have the underlying objective of preventing the destitution and dependency of families, and of promoting their stability, self-sustenance, and independence over the generations.”).

Appellants argue that the forfeiture statute cannot be applied to a homestead because allowing homestead property to be forfeited based-on the criminal acts of the homestead owner imposes a liability on the owners, and therefore forfeiture of the homestead is a seizure for the payment of a liability, which is prohibited by Minn. Const, art. I, § 12. We agree.

When a homestead owner’s criminal acts on homestead property subject such property to forfeiture, the homestead owner is held accountable for his criminal acts and is legally obligated to relinquish possession of the homestead. This accountability and legal obligation creates liability on behalf of the homestead owner. See Black’s Law Dictionary 932 (8th ed.2004) (defining liability as “[t]he quality or state of being legally obligated or accountable”). Because article I, section 12, prohibits the sale or seizure of homestead property for any debt or liability, it must necessarily prohibit the sale or seizure of a home based on the homestead owner’s criminal acts. See Tuttle v. Strout, 7 Minn. 465 (1862) (stating that article I, section 12, prohibits the sale or seizure for the payment of “debts or liabilities of every kind or description, without exception”). Because article I, section 12, prohibits the sale or seizure of homestead property for “liabilities of every kind or description without exception” and the forfeiture statute creates a liability by holding the homestead owner accountable for his criminal acts through forfeiture, we conclude that the forfeiture statute cannot constitutionally authorize forfeiture of homestead property in satisfaction of the homestead owner’s liability.

Respondents argue that forfeiture is not a seizure or sale for the payment of a liability, because forfeiture is an in rem action against the property itself, and is not based on any personal liability of the property’s owner. We disagree.

We agree that the forfeiture of property under the drug forfeiture statute is in rem and proceeds against the property itself and not the owner of the property. See Minn.Stat. § 609.5313 (2004). But the analytical foundation of in rem proceedings, the premise that the res itself has violated the law, has long been considered a legal fiction. See, e.g., Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2584, 53 L.Ed.2d 683 (1977) (“The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair.”); Waterloo Distilling Corp., v. United States, 282 U.S. 577, 581, 51 S.Ct. 282, 284, 75 L.Ed. 558 (1931) (stating that in an in rem proceeding, “[i]t is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious.”); Riley v. 1987 Station Wagon, 650 N.W.2d 441, 443 (Minn.2002) (stating that in an in rem forfeiture action “[t]he property seized becomes the defendant based on the legal fiction that it is the inanimate object itself, not its possessor or owner, that is guilty of wrongdoing.”); Aaron Xavier Fellmeth, Challenges and Implications of a Systemic Social Effect Theory, 2006 U. Ill. L.Rev. 691, 732 (2006) (“By depriving the owner of his or her property, in rem actions that are not strictly necessary to end a threat to public health or safety or terminate an ongoing illegality are ineluctably in per-sonam with respect to the owner of the property.”); James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L.Rev. 1049, 1106 (1994) (“[AJfter the fiction of in rem jurisdiction has been drained of any force in the personal jurisdiction context, one can hardly take seriously a rule that can be explained only by recourse to the in rem-in personam distinction.” (footnote omitted)).

The policy of the homestead exemption is the protection of the homestead so as to avoid “increas[ing] the burdens of the community chest; destroy[ing] homes; [and] dividing] families” and extends to the vicious, criminal, or immoral homestead owner. Ryan, 185 Minn, at 350, 241 N.W. at 389. Here, the in rem nature of the proceeding forfeiting the homestead does not mitigate the result sought to be avoided by exempting homestead property from sale or seizure; namely, the destruction of home, the division of family, and increased burdens on the community. Because the policy of the homestead exemption is not served by resort to the legal fiction that the homestead itself has violated the law, we reject respondents’ argument.

DECISION

Minnesota’s forfeiture statute, Minn. Stat. § 609.5311, subd. 2 (2004), may not constitutionally be applied to homestead property, as defined by law, because it permits the forfeiture of homestead property in satisfaction of the homestead owner’s liability, as proscribed by Minn. Const, art. I, § 12.

Reversed.


author: PETERSON, Judge.

text:
    In re the Marriage of Carolyn Sue MOORE, petitioner, Respondent, v. Randall Scott MOORE, Appellant.
    No. A06-1504.
    Court of Appeals of Minnesota.
    July 10, 2007.
    Susan A. Daudelin, A. Larry Katz, Katz, Manka, Teplinsky, Due & Sobol, Ltd., Minneapolis, MN, for respondent.
    Richard D. Goff, Richard D. Goff & Associates, Minneapolis, MN, for appellant.

      Considered and decided by PETERSON, Presiding Judge; SHUMAKER, Judge; and ROSS, Judge.
   OPINION

PETERSON, Judge.

In this maintenance-modification dispute, appellant-husband Randall Moore argues that the district court lacked authority to address a motion to modify maintenance that was served and filed by respondent-wife Carolyn Moore after husband made his last maintenance payment as required. Husband also challenges the award of attorney fees to wife, arguing that the record does not show that wife lacks the ability to pay her own attorney fees. Because we conclude that the district court lost authority to modify maintenance by the time wife made her motion to modify maintenance and that the district court’s finding that wife is unable to pay her attorney fees is not clearly erroneous, we affirm in part and reverse in part.

FACTS

The 2001 judgment dissolving the parties’ marriage awarded wife $2,990 in temporary monthly maintenance through May 2005, required husband to make his maintenance payments on the first and fifteenth of each month, “reserve[d] jurisdiction” to “revisit” maintenance, and stated that the reservation was not intended to preclude the parties from moving to modify maintenance under Minn.Stat. § 518.64. The judgment also stated that if the matter had not come back to the court at an earlier date, “a motion to revisit the maintenance award shall be properly noticed and served by [wife], with a hearing scheduled prior to June 1, 2005,” and that “[ijf the matter does not come back before the Court prior to June 1, 2005, the maintenance ordered herein shall cease and the Court’s reservation of jurisdiction shall end.” The memorandum accompanying the judgment stated that wife needed more maintenance than was awarded to her to meet her reasonable monthly needs at the marital standard of living and that if adequate funds had been available, the dissolution judgment would have awarded wife four years of child support and spousal maintenance totaling a net monthly amount of $8,000, plus an additional year at a net monthly amount of $5,000.

In 2002, husband’s annual income increased and, in a September 2002 order, the district court granted wife’s modification motion and increased husband’s maintenance obligation to $4,000 per month. Husband’s employer stopped paying husband in November 2004, but husband still made all of his maintenance payments through May 15, 2005. On May 31, wife moved the district court to “extend” husband’s maintenance obligation, but her motion did not indicate whether she sought to modify maintenance under Minn.Stat. § 518.64, or to “revisit” maintenance under the relevant judgment provision. Wife also sought attorney fees. Husband moved to dismiss wife’s motion as untimely, arguing that when he made his last maintenance payment on May 15, the district court lost authority to address maintenance. The district court granted husband’s motion to the extent that wife had moved to “revisit” maintenance, but denied husband’s motion to the extent that wife had moved to “modify” maintenance under Minn.Stat. § 518.64 (2004).

In October 2005, the district court denied wife’s motion to increase husband’s maintenance obligation, denied wife’s motion to extend husband’s maintenance obligation, and suspended husband’s maintenance obligation. The memorandum accompanying the order indicated that it appeared that there was a reasonable chance that husband would, in the future, be paid his deferred salary, and the order required husband to make an irrevocable assignment to wife of an after-tax portion of the salary his employer had not paid him since November 2004. The amount of the assignment was to be $4,000 per month for each month from November 2004 to the date that husband’s employer started paying husband again, capped at an amount equal to the difference between what wife had received from husband since the dissolution and what she would have received if, at the time of the judgment, funds had been available to award her the amounts necessary to allow her to meet her reasonable monthly expenses. The district court further stated that if husband proved that his employer was not going to pay him the unpaid salary, the district court would reserve maintenance.

Husband sought reconsideration, arguing that he did not owe maintenance arrears for the period November 2004 through May 2005 when wife made her motion. The district court denied that motion, stating that it was aware that husband did not owe arrears. After the district court resolved other matters, including awarding wife need-based attorney fees, husband appealed.

ISSUES

1. Did the district court lack authority to modify maintenance?

2. Did the district court abuse its discretion by awarding wife need-based attorney fees?

ANALYSIS

I.

Initially, we observe that because the district court’s order increased both the amount of maintenance owed by husband and the period during which husband was liable for maintenance, the order modified husband’s maintenance obligation.

Caselaw states that where there is no existing maintenance award and no reservation of “jurisdiction” over maintenance, the district court lacks “jurisdiction” to address maintenance. See, e.g., Loo v. Loo, 520 N.W.2d 740, 745 (Minn.1994) (stating that “[ojnce maintenance payments end, the court is without jurisdiction to modify maintenance”); Karon v. Karon, 435 N.W.2d 501, 506 (Minn.1989) (Coyne, J., dissenting) (stating that “it is well settled that where there is neither an award of maintenance nor a reservation in the decree of jurisdiction of the issue of maintenance for later determination pursuant to section 518.55, the district court cannot thereafter award maintenance” (citing Eckert v. Eckert, 299 Minn. 120, 123, 216 N.W.2d 837, 839 (1974))); Eckert, 299 Minn, at 125, 216 N.W.2d at 840 (stating “that there cannot be modification of something that has ceased to exist”). Husband argues that under Eckert and its progeny, the district court lacked authority to address wife’s motion to modify maintenance because, among other reasons, his maintenance obligation expired on May 15 when he made his last maintenance payment, rather than on May 31, the last day of the period to which the funds paid to wife on May 15 were to be applied and the date on which wife moved to modify maintenance.

The dissolution judgment does not address whether husband’s maintenance obligation expires on the date he makes his last payment or on the last day of the month for which the last payment is made. And while each case cited by husband includes language that could be construed to support his argument that the district court loses authority to modify maintenance on the date of the last scheduled payment, none of the cases he cites specifically addresses the impact of a motion to modify maintenance made after the last maintenance payment is made as required but before the end of the month for which the last payment was made. See Loo, 520 N.W.2d at 745 (addressing maintenance provision that stated that “[ajfter the last of the payments required ... the obligation for spousal maintenance shall terminate irrevocably. Thereafter neither of the parties shall be entitled to alimony then or in the future ” (emphasis added in Loo)); Santillan v. Martine, 560 N.W.2d 749, 750 (Minn.App.1997) (stating that motion to extend temporary maintenance was made “two days before the expiration of [the] maintenance obligation”); Wibbens v. Wibbens, 379 N.W.2d 225, 226-27 (Minn. App.1985) (refusing, on appeal from dissolution judgment awarding temporary maintenance, to address whether district court abused its discretion by not reserving authority over maintenance, noting that “[s]ince the trial court here awarded temporary maintenance, no reservation of the issue was required” and that “[the recipient] could bring a motion to reserve maintenance ... before the obligation ceased”). Thus, we cannot say that the cases that husband cites require a particular result here. See Skelly Oil Co. v. Comm’r of Taxation, 269 Minn. 351, 371, 131 N.W.2d 632, 645 (1964) (stating that “ ‘the language used in an opinion must be read in the light of the issues presented’ ” (quoting Sinclair v. United States, 279 U.S. 749, 767, 49 S.Ct. 471, 477, 73 L.Ed. 938 (1929))); Stageberg v. Stageberg, 695 N.W.2d 609, 613 n. 2 (Minn.App.2005) (applying Skelly Oil in a family-law case), review denied (Minn. Jul. 19, 2005).

While existing caselaw has not resolved the issue that is raised in this case, we are persuaded that husband’s argument is a logical extension of the language and principles found in the existing cases, especially the principle expressed in Loo, Karon, and Eckert that once a final maintenance payment has been made, there is no maintenance obligation to modify. Loo, 520 N.W.2d at 745; Karon, 435 N.W.2d at 506; Eckert, 299 Minn, at 125, 216 N.W.2d at 840. Therefore, we hold that when a dissolution judgment requires spousal-maintenance payments to be made on the first and the fifteenth day of each month for a specified period and does not otherwise reserve maintenance and the ob-ligor makes the payments as required, the maintenance obligation expires when the last payment is made and the district court has no authority to address a motion to modify maintenance that is made after the maintenance obligation expires. Because wife did not move to modify husband’s maintenance obligation until more than two weeks after husband made his last maintenance payment, and because the last payment was made in accord with the schedule for maintenance payments, the district court lacked authority to address wife’s motion, and we need not address whether the record shows that wife satisfied the threshold for modifying maintenance set out in Minn.Stat. § 518.64 (2004).

II.

The district court awarded wife $12,000 in need-based attorney fees. Under Minn.Stat. § 518.14, subd. 1 (2004), a district court “shall” award need-based attorney fees if, among other things, the recipient of the fees lacks the ability to pay them. Husband challenges the attorney-fee award, arguing that the record lacks evidence showing that wife does not have the ability to pay her own attorney fees. But consistent with the findings in the dissolution judgment, the maintenance order states that wife previously lacked the financial ability to provide for herself and the children at the marital standard of living and that, currently, “even with the receipt of spousal maintenance and child support, [wife] would remain unable to meet her needs. Nothing has changed in the interim to suggest that [wife] has been anywhere close to meeting her needs.... ” Neither husband nor the record shows that this finding is clearly erroneous, and while husband cites wife’s failure to provide discovery as the basis for his inability to show that the finding is clearly erroneous, we cannot say that the record even suggests that wife would have sufficient funds to meet reasonable monthly expenses at the marital standard of living and also pay her attorney fees. See Minn. R. Civ. P. 52.01 (stating that findings of fact not altered unless clearly erroneous). Therefore, we reject husband’s challenge to the district court’s award of attorney fees.

DECISION

Because wife did not move to modify her maintenance award until after husband made his last scheduled maintenance payment, and because maintenance was not otherwise reserved, the district court lacked authority to modify husband’s maintenance obligation. Because the record does not show that the district court clearly erred in ruling that wife lacked the ability to pay her attorney fees, we affirm the district court’s attorney-fee award.

Affirmed in part and reversed in part.

      . Numerous Minnesota appellate opinions refer to the fact that a district court can address maintenance only if a maintenance obligation exists or if the district court reserved the maintenance question. Many of those opinions further state that this limitation is a limitation on the district court’s "jurisdiction.” Recently, however, the United States Supreme Court, the Minnesota Supreme Court, and this court have all acknowledged that courts and parties often use concepts and language associated with "jurisdiction” imprecisely to refer to, among other things, non-jurisdictional claims-processing rules or non-jurisdictional limits on a court’s authority to address a question. See e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1242, 163 L.Ed.2d 1097 (2006) (noting that ”[j]uris-diction ... is a word of many, too many, meanings” and giving examples of imprecise use of the term (quotation omitted)); Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 405, 163 L.Ed.2d 14 (2005) (discussing distinction between jurisdictional rules and "claims-processing rules”); Rubey v. Vannett, 714 N.W.2d 417, 422 (Minn.2006) (noting same distinction as Eberhart); In re Civil Commitment of Giem, 727 N.W.2d 198, 202-03 (Minn.App.2007) (discussing imprecise use of term "jurisdiction”), review granted (Minn. Apr. 25, 2007). The outcome of this appeal will be the same whether the district court lacked subject-matter jurisdiction to address wife's motion to modify maintenance or lacked authority to address her motion. Therefore, we need not decide whether the existence of an obligation to pay spousal maintenance or a reservation of maintenance goes to a district court’s subject-matter jurisdiction to address maintenance, and this opinion simply refers to the district court's authority to address maintenance.

      . On this record, we decline to address whether a maintenance schedule is honored if an obligor makes an early payment of the final maintenance payment of a maintenance obligation. Nor do we address questions involving lump-sum maintenance awards, property awarded in lieu of maintenance, or a maintenance obligor’s (alleged) waiver of the district court’s inability to modify an expired maintenance obligation.


author: SANDSTROM, Justice.

text:
    2007 ND 96
    Kevin Deon MOORE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20060224.
    Supreme Court of North Dakota.
    June 26, 2007.

      Jay Ryan Greenwood, North Dakota Public Defenders’ Office, Dickinson, N.D., for petitioner and appellant.
    Michael T. Pitcher (argued), Legal Intern and third-year law student, under the Rule on Limited Practice of Law by Law Students, and Mark Jason McCarthy (appeared), Assistant State’s Attorney, Grand Forks, N.D., for respondent and appellee.
   SANDSTROM, Justice.

[¶ 1] Kevin Deon Moore appeals from a district court order denying his application for post-conviction relief under N.D.C.C. ch. 29-32.1. We affirm, concluding the district court did not err in denying Moore’s application for post-conviction relief.

I

[¶ 2] In March 2004, Moore was charged with attempted murder and terrorizing for allegedly entering the kitchen at a Grand Forks restaurant where his wife was working and repeatedly stabbing her. In February 2005, Moore pled guilty to attempted murder as a part of a plea agreement in which the State agreed to drop terrorizing charges against him. Under the plea agreement, Moore was sentenced to forty years in prison, with fifteen years suspended. In March 2005, Moore moved to withdraw his guilty plea, claiming he had been unable to work with his trial counsel and he was under the influence of medication when he pled guilty to attempted murder. The court denied his motion. Moore appealed his criminal judgment, arguing the district court erred by not allowing him to withdraw his guilty plea. We summarily affirmed. State v. Moore, 2005 ND 183, ¶ 3, 709 N.W.2d 21.

[¶ 3] On March 6, 2006, Moore, without assistance of counsel, applied for post-conviction relief under N.D.C.C. ch. 29-32.1, claiming he was “denied his right to due process of law as well as other constitutional rights according to the Sixth Amendment guarantees to effective, competent, and adequate representation of counsel.” Moore simultaneously moved for appointment of counsel. On April 26, 2006, the State filed a brief in opposition to Moore’s application and moved for summary disposition, arguing Moore raised no genuine issue of material fact regarding his claim for ineffective assistance of counsel.

[¶ 4] On May 5, 2006, Moore, through appointed counsel, filed a motion and supporting brief for a continuance, asserting the discovery of new potentially exculpatory evidence in the form of medical records that had yet to be obtained from the North Dakota State Penitentiary. Moore thereafter filed a brief and an amended brief in support of his application for post-conviction relief. Moore claimed that since his incarceration, he had been diagnosed with post-traumatic stress disorder. Moore argued that had he known about or been diagnosed with post-traumatic stress disorder at the time of his guilty plea and sentencing, or had his case gone to a jury, he could have been found not guilty of attempted murder because he did not have the requisite intent for that crime. In both his initial brief and his amended brief, Moore argued that he should be allowed to withdraw his guilty plea and receive a trial because he lacked the necessary criminal intent.

[¶ 5] On July 18, 2006, the State filed another brief in opposition to Moore’s application for post-conviction relief. The State argued Moore still had not raised any genuine issue of material fact on his claims of ineffective assistance of counsel or of newly discovered evidence. After an evidentiary hearing, the district court denied Moore’s application for post-conviction relief, finding that the evidence presented at the hearing, which included testimony from the prison psychiatrist who diagnosed Moore with post-traumatic stress disorder, from Moore’s prison clinical counselor, and from Moore himself, would not likely change the result. The court concluded that testimony would not lead to a finding of not guilty by a trier of fact. The court concluded there was nothing in the “newly discovered” diagnosis that would have changed the outcome if that evidence had been initially offered. Moore appeals from the order denying his application for post-conviction relief.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 29-32.1-03. Moore’s appeal was timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 7] Moore argues the district court abused its discretion in denying his application for post-conviction relief because his post-traumatic stress disorder diagnosis is newly discovered evidence that meets the requirements for a new trial under N.D.C.C. § 29-32.1-01(l)(e) and N.D.R.Crim.P. 33. Moore also argues the district court misinterpreted and misapplied the testimony presented at the evi-dentiary hearing and erroneously applied results from a previous psychological examination.

[¶ 8] Proceedings on applications for post-conviction relief are civil in nature and governed by the North Dakota Rules of Civil Procedure. Rummer v. State, 2006 ND 216, ¶ 9, 722 N.W.2d 528. The petitioner has the burden of establishing grounds for post-conviction relief. Flanagan v. State, 2006 ND 76, ¶ 10, 712 N.W.2d 602. The district court’s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845.

[¶ 9] Post-conviction relief may be granted under N.D.C.C. § 29-32.1-01(l)(e) when “[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice.” (Emphasis added.) In previous cases, this Court has explained this statutory ground for post-conviction relief is similar to a request for new trial based on newly discovered evidence under N.D.R.Crim.P. 33. Syvertson v. State, 2005 ND 128, ¶ 9, 699 N.W.2d 855; Greywind v. State, 2004 ND 213, ¶ 18, 689 N.W.2d 390; Breding v. State, 1998 ND 170, ¶ 19, 584 N.W.2d 493. Under N.D.R.CrimJP. 33, a district court may grant a defendant a new trial on the ground of newly discovered evidence if required in the interest of justice. To prevail on a new trial motion on the ground of newly discovered evidence, the defendant must show:

(1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.

Syvertson, at ¶ 9 (citations omitted). We review a district court’s decision on a new trial motion for an abuse of discretion. State v. Klose, 2003 ND 39, ¶ 18, 657 N.W.2d 276.

[¶ 10] We have also explained, however, that when a defendant applies for post-conviction relief to withdraw a guilty plea, the application is generally treated as a motion made under N.D.R.Crim.P. 32(d). Greywind, 2004 ND 213, ¶ 7, 689 N.W.2d 390; Houle v. State, 482 N.W.2d 24, 25 (N.D.1992). After a court has accepted a defendant’s plea and imposed sentence, the defendant cannot withdraw the plea unless withdrawal is necessary to correct a manifest injustice. State v. Bates, 2007 ND 15, ¶ 6, 726 N.W.2d 595; see also Greywind, at ¶7. Whether there has been a manifest injustice supporting withdrawal of a guilty plea lies within the district court’s discretion. Bates, at ¶ 6; Greywind, at ¶ 7. Under this rule, an abuse of discretion occurs when the court’s legal discretion is not exercised in the interest of justice. Bates, at ¶ 6; Kaiser v. State, 417 N.W.2d 175, 179 (N.D.1987).

[¶ 11] On appeal, Moore argues that his post-traumatic stress disorder diagnosis after his incarceration met the requirements for a “new trial” under N.D.C.C. § 29-32.1-01(1)(e) and N.D.R.Crim.P. 33. Moore’s conviction, however, did not result from a trial, but rather from a guilty plea. Of course, there cannot be a “new trial” when no trial was held because of a guilty plea. See United States v. Miller, 197 F.3d 644, 648 n. 3 (3rd Cir.1999); United States v. Graciani 61 F.3d 70, 78 (1st Cir.1995); United States v. Collins, 898 F.2d 103, 104 (9th Cir.1990) (per curiam); United States v. Lambert, 603 F.2d 808, 809 (10th Cir.1979); Williams v. United States, 290 F.2d 217, 218 (5th Cir.1961) (per curiam).

[¶ 12] When a defendant has pled guilty and no trial was held, the appropriate analysis is for “manifest injustice” under N.D.R.Crim.P. 32(d). A defendant who has previously pled guilty and then seeks post-conviction relief under N.D.C.C. § 29-32.1-01(l)(e) must demonstrate a manifest injustice, justifying withdrawal of the guilty plea. We nevertheless believe the analysis for a Rule 32 manifest injustice, based on a ground of newly discovered evidence, is similar to the Rule 33 analysis: The defendant must show (1) the evidence was discovered after the guilty plea, (2) the failure to learn about the evidence before the plea was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to what would have been the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal at trial. See Greywind, 2004 ND 213, ¶¶ 3, 17-22, 689 N.W.2d 390. Cf State v. Truman, 187 Wis.2d 622, 523 N.W.2d 177, 178-79 (Ct.App.1994).

[¶ 13] Here, Moore’s initial pro se application for post-conviction relief sought to vacate his conviction and order a new trial on the grounds he received ineffective assistance of counsel. In briefs by appointed legal counsel in support of Moore’s application, Moore requested to withdraw his guilty plea, arguing his “newly discovered” post-traumatic stress disorder diagnosis was material to his culpability. At the evidentiary hearing, Moore’s counsel argued that Moore’s “sentence or guilty plea should be vacated” to permit a jury to decide whether he was suffering from a flashback consistent with post-traumatic stress disorder at the time of the crime. By his guilty plea, however, Moore waived the right to have that issue presented to a jury and admitted all of the essential elements of the charged crime, including the element of his intent. Because Moore waived his right to a jury trial, he cannot now argue such new evidence would persuade a trier of fact unless he first overcomes the waiver and admission encompassed by his guilty plea by demonstrating a manifest injustice.

[¶ 14] Both N.D.R.Crim.P. 32(d) and 33 effectively require the district court to exercise its discretion “in the interest of justice.” See N.D.R.Crim.P. 33(a) (“court may vacate any judgment and grant a new trial ... if the interest of justice so requires”); Bates, 2007 ND 15, ¶6, 726 N.W.2d 595 (“abuse of discretion under N.D.R.Crim.P. 32(d) occurs when the court’s legal discretion is not exercised in the interest of justice”). Moore’s court-appointed counsel specifically sought to withdraw Moore’s guilty plea, and the district court, relying on Breding, 1998 ND 170, 584 N.W.2d 493, and Syvertson, 2005 ND 128, 699 N.W.2d 855, denied Moore’s application for post-conviction relief using an analysis under N.D.R.Crim.P. 33. On this record, we conclude the result is the same under N.D.R.Crim.P. 32(d) because Moore failed to present newly discovered evidence of such weight and quality that would likely result in an acquittal at trial.

[¶ 15] In this case, the district court concluded that the testimony presented at the hearing would not change the outcome of the case to a finding of not guilty by a trier of fact. Moore presented evidence of the post-traumatic stress disorder diagnosis he received after being incarcerated, but he has presented no medical expert testimony that he was actually suffering from post-traumatic stress disorder when he repeatedly stabbed his wife. Moore’s psychiatrist testified that he made the post-traumatic stress disorder diagnosis on the basis of symptoms Moore reported to him after incarceration, which included flashbacks, nightmares, anxiety, and problems with sleep. Although Moore testified that he had no recollection of stabbing his wife and was suffering from a flashback, Moore’s psychiatrist based his diagnosis solely on the symptoms Moore said he experienced while he was in the state penitentiary. Moore’s clinical counselor in prison testified that she had worked with Moore on his reported post-traumatic stress disorder symptoms and his past trauma, but she also conceded that she did not make Moore’s post-traumatic stress disorder diagnosis, that her job was not to determine whether someone was competent to stand trial, and that she could not speak to Moore’s mental state at the time of the crime because her treatment of Moore focused on his prior trauma rather than the crime.

[¶ 16] Moreover, Moore’s psychiatrist specifically testified that he did not make any assessment or diagnosis regarding whether Moore was competent to stand trial or whether he could have formed the requisite intent to commit the crime. There is also no expert medical testimony that Moore was suffering from post-traumatic stress disorder when he entered his guilty plea or that the post-traumatic stress disorder somehow affected the vol-untariness of his plea.

[¶ 17] Here, Moore pled guilty to the attempted murder charge and waived his right to a jury trial, and he has not presented any new evidence demonstrating a manifest injustice to permit withdrawal of his guilty plea. Moore therefore has not met his burden to establish a right to post-conviction relief under N.D.C.C. § 29-32.1-01(l)(e). On this record, we conclude the district court did not err in denying Moore’s application for post-conviction relief.

[¶ 18] We have considered Moore’s remaining issues and find them to be without merit or unnecessary to our decision. See State v. Longhead, 2007 ND 16, ¶29, 726 N.W.2d 859; City of Bismarck v. Witzke, 2005 ND 170, ¶ 2, 709 N.W.2d 21.

Ill

[¶ 19] The district court order is affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


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

text:
    2007 SD 54
    STATE of South Dakota, Plaintiff and Appellant, v. Wayne R. STEVENS, Defendant and Appellee.
    No. 23898.
    Supreme Court of South Dakota.
    Argued on March 21, 2007.
    Decided June 13, 2007.

      Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Brandy M. Rhead, Pennington County Public Defender’s Office, Rapid City, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] Law enforcement officers in Rapid City conducted a trash pull of defendant’s garbage over five months after obtaining information that led them to believe he was committing a crime. After finding evidence of a controlled substance in the trash, the officers obtained a warrant to search defendant’s home. The search revealed more evidence, and defendant was indicted. Defendant moved to suppress the evidence claiming that he had a protected privacy interest in his trash and the officers did not have reasonable suspicion to search it. The circuit court suppressed the evidence. The State appeals, and we reverse.

Background

[¶ 2.] In July 2004, Officer Kraig Wood received information that Wayne Stevens (defendant) had an altercation with Troy Klug, who shortly thereafter went missing. Officer Wood believed that this altercation was related to drugs and to Klug’s disappearance. On July 28, 2004, Officer Wood interviewed defendant about the altercation and his association with Klug. The officer also asked defendant about his association with Troy Tiegen and Cynthia Kindall, who knew Klug through their use and sale of methamphetamine. Defendant admitted to Officer Wood that approximately two weeks earlier he and Klug had a disagreement over $800 that Klug owed him. Defendant, however, denied any involvement in Klug’s disappearance. He also denied knowing Kindall, but admitted to having a limited association with Tiegen. Officer Wood did not investigate defendant any further after the July 28 interview. The missing persons’ investigation on Klug, however, continued.

[¶ 3.] Over five months later, on January 14, 2005, Officer Wood decided to conduct a search of defendant’s trash, which was set out by the curb for collection in front of his residence. The officer told the city-employed garbage collector to empty his trash hopper before picking up defendant’s trash. After defendant’s trash was collected, the officer instructed the employee to drive a few blocks where he would obtain it from the employee. Officer Wood took the trash to a county shop where he and another investigator sorted through it looking for drug-related items. The officers found an empty pen body containing a white substance, which was later determined to be methamphetamine hydrochloride. The officers also found two pieces of mail with defendant’s name and address, thus validating that the trash was collected from his residence.

[¶ 4.] Based on the trash search and the information from the July 28 interview, Officer Wood obtained a warrant to search defendant’s home. During the search, the officers found drug paraphernalia and methamphetamine. Defendant was indicted for possession of a controlled substance and possession of drug paraphernalia. He moved to suppress the evidence alleging that Officer Wood had no reasonable suspicion to search his trash. He also claimed that because the trash search lacked reasonable suspicion there was no probable cause to issue the search warrant. The circuit court suppressed the evidence, concluding that (1) defendant had a limited privacy interest in his trash, (2) the officers lacked reasonable suspicion for the trash search, and (3) the search of defendant’s home lacked probable cause.

Standard of Review

[¶ 5.] “ ‘A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review.’ ” State v. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d 314, 319 (quoting State v. Herrmann, 2002 SD 119, ¶ 9, 652 N.W.2d 725, 728 (citations omitted)); State v. Tofani, 2006 SD 63, ¶24, 719 N.W.2d 391, 398. Findings of fact are reviewed under the clearly erroneous standard. Tofani, 2006 SD 63, ¶24, 719 N.W.2d at 398. Yet, “the application of a legal standard to those facts” is reviewed de novo. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d at 319 (citing State v. Lamont, 2001 SD 92, ¶ 12, 631 N.W.2d 603, 607 (citation omitted)).

Analysis and Decision

[¶ 6.] In its appeal, the State contends that defendant had no expectation of privacy in the trash searched, based on our holding in State v. Schwartz, 2004 SD 123, ¶ 17, 689 N.W.2d 430, 435-36. The State further asserts that the circumstances here are analogous to those in Schwartz, in that defendant has failed to present sufficient evidence to satisfy the two-part test for recognizing a privacy interest deserving of constitutional protection. See id. Defendant, on the other hand, claims that Schwartz is distinguishable because law enforcement officers here did not have reasonable suspicion before searching his trash, and the citizens of Rapid City would recognize a limited privacy interest in their trash.

[¶ 7.] In Schwartz, we examined whether a privacy interest exists in one’s trash based on the language of the South Dakota Constitution and the United States Constitution. 2004 SD 123, ¶¶ 13-16, 689 N.W.2d at 434-35. We recognized that the Fourth Amendment to the United States Constitution and Article VI, section 11 of our constitution “prohibit unreasonable searches and seizures by government officials.” Id. ¶ 11. However, to implicate these constitutional protections, “[a]n individual must have a reasonable expectation of privacy in the place searched or article seized.... ” State v. Christensen, 2003 SD 64, ¶ 11, 663 N.W.2d 691, 694 (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

[¶ 8.] In Schwartz, we acknowledged that the United States Supreme Court, in California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1625, 100 L.Ed.2d 30 (1988), declined to extend constitutional protection to trash unless people manifest “ ‘a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.’” 2004 SD 123, ¶ 14, 689 N.W.2d at 434 (citation omitted). In light of Greenwood and the language of our constitution, this Court also declined “to adopt a blanket rule extending the constitutional protection against unreasonable searches and seizures to trash.” Id. ¶ 17. We used a two-part test to determine whether persons had a recognized privacy interest in their searched trash, similar to the test adopted by the United States Supreme Court. Id.; see also Greenwood, 486 U.S. at 39, 108 S.Ct. at 1625, 100 L.Ed.2d 30. To establish a protected privacy interest in trash, a person (1) must have “ ‘exhibited an actual subjective expectation of privacy’ ” and (2) society must be “willing to honor this expectation as being reasonable.’ ” Schwartz, 2004 SD 123, ¶ 17, 689 N.W.2d at 435 (quoting Cordell v. Weber, 2003 SD 143, ¶ 12, 673 N.W.2d 49, 53 (quoting State v. Lowther, 434 N.W.2d 747, 754 (S.D.1989) (citation omitted))). In Schwartz, we concluded that the defendants failed to meet both prongs of the test and upheld the search. Id. ¶ 19.

[¶ 9.] Here, the circuit court, in ruling that defendant’s trash was deserving of constitutional protection, interpreted certain language from Schwartz and construed the Rapid City Ordinances related to trash collection to hold that reasonable suspicion must exist before law enforcement officers can conduct a trash search. The ordinances, the court declared, granted each citizen of Rapid City, “at minimum, a limited privacy interest” in their trash, because the ordinances “not only control how the garbage is collected, but how an individual citizen must leave or present his or her garbage for collection[.]” Then, because in both Schwartz and Greenwood law enforcement officers had articulable reasons for searching the particular defendant’s trash, the circuit court held that such suspicion was required before defendant’s trash could be searched. See 2004 SD 123, ¶ 19, 689 N.W.2d at 436 (“Agent Even had articula-ble reasons for focusing on the Schwartzes’ trash”); 486 U.S. at 37, 108 S.Ct. at 1627, 100 L.Ed.2d 30 (before the search the investigator received information that the defendant was engaged in narcotics trafficking). The circuit court also found particularly persuasive the rationales in Litchfield v. State, 824 N.E.2d 356, 363-64 (Ind.2005) and State v. A Blue in Color, 1993 Chevrolet Pickup (A Blue Pickup), 328 Mont. 10, 116 P.3d 800, 805 (2005), which both held that articulable individualized suspicion was required before a trash search.

[¶ 10.] Although we noted in Schwartz that the law enforcement officers had articulable reasons to believe that the defendants were committing a crime, this fact does not necessarily mean that reasonable or articulable individualized suspicion is required before any trash search. See 2004 SD 123, ¶ 19, 689 N.W.2d at 436. Rather, a defendant must satisfy the two-part test identified in Schwartz before this Court will find that there is a “sufficient privacy interest in the area searched for constitutional protection to apply[.]” Id. ¶ 17. Absent satisfying these elements, such reasonable expectation of privacy does not exist and there is no “search” subject to constitutional scrutiny under the Fourth Amendment or the South Dakota Constitution.

[¶ 11.] Even if we assume that defendant can satisfy the first prong, establishing that he had an actual subjective expectation of privacy in his trash, the Rapid City Ordinances do not support the contention that there exists an objective expectation of privacy that society is willing to recognize as reasonable. While city ordinances may, in some cases, be reflective of societal expectations of privacy, they do not manifest such an expectation simply because they dictate how persons are to place their trash for collection or how the trash is to be collected. Nothing in these ordinances suggests that Rapid City enacted them to protect a citizen’s interest in garbage privacy. These ordinances were obviously enacted solely to maintain society’s interest in sanitation.

[¶ 12.] Nevertheless, defendant asks that we “find at least a limited, constitutionally protected privacy interest in trash” sitting at the curb because other courts recognize a limited privacy interest. In particular, defendant relies on Litchfield, 824 N.E.2d at 363-64 and A Blue Pickup, 116 P.3d at 805. In Litchfield, the Indiana Supreme Court interpreted its state constitution to conclude that articulable individualized suspicion is required before a trash search. 824 N.E.2d at 360; 363-64. However, Indiana’s state constitutional jurisprudence is distinctly different than South Dakota’s. More than a decade ago, Indiana abandoned the expectation of privacy test used by the United States Supreme Court and our Court to construe Fourth Amendment protections. See id. at 359. Thus, the Indiana Supreme Court declared that trash searches without reasonable suspicion are simply “unreasonable,” without dealing with the expectation of privacy question. Id. at 363-64. And, the Montana Supreme Court, in the case of A Blue Pickup, appended Indiana’s reasonableness test onto its own constitution, without constitutional analysis. 116 P.3d at 805. It held that to “guide the conduct of police in the future,” “articulable individualized suspicion” would be required. Id. But here, except to note an insignificant difference in wording from its federal counterpart, defendant has not identified anything in South Dakota’s constitution that would require reasonable suspicion before a trash search.

[¶ 13.] Defendant does not argue that we should abandon the expectation of privacy test. He simply asks us to adopt the reasoning from the Indiana and Montana courts. This we decline to do. Under our law, defendant has not presented evidence to satisfy the two-part test from Schwartz to establish a privacy interest in his trash deserving of constitutional protection. See 2004 SD 123, ¶ 17, 689 N.W.2d at 435.

[¶ 14.] Reversed.

[¶ 15.] ZINTER, Justice, concurs.

[¶ 16.] GILBERTSON, Chief Justice, concurs in result.

[¶ 17.] SABERS and MEIERHENRY, Justices, dissent.

GILBERTSON, Chief Justice

(concurring in result).

[¶ 18.] I join in the opinion of the Court except for its declaration that a municipality in South Dakota has the legal authority, by ordinance, to create an objective expectation in the privacy of one’s trash. Under the South Dakota Constitution, it would appear to me that the power to take such action rests solely with the South Dakota Legislature.

[¶ 19.] Article IX, section 1 of the South Dakota Constitution vests plenary power over municipal corporations with the Legislature. Both prior to and immediately following the adoption of this provision, it was recognized that a municipal corporation only possessed those powers expressly granted to it by the Legislature, those powers that are fairly implied or incidental thereto and those powers essential to the declared objects and purposes of being a municipal corporation, “not simply convenient, but indispensable.” Treadway v. Schnauber, 1 Dak 236, 46 N.W. 464, 464 (1876); see also City of Sioux Falls v. Kirby, 6 S.D. 62, 62, 60 N.W. 156, 157 (1894) (citation omitted). This continues to be the law in this State. Donovan v. City of Deadwood, 538 N.W.2d 790, 792 (S.D.1995). “Counties, like cities, lack inherent authority and derive their power from the legislature.” Pennington County v. State ex rel Unified Judicial System, 2002 SD 31, ¶10, 641 N.W.2d 127, 131 (citing City of Marion v. Schoenwald, 2001 SD 95, ¶ 6, 631 N.W.2d 213, 216; Welsh v. Centerville Township, 1999 SD 73, ¶ 10, 595 N.W.2d 622, 625; Donovan, 538 N.W.2d at 792 (citations omitted)).

ll 20.] The authority granted by the Legislature to municipalities over garbage is contained in SDCL 9-32-10 and SDCL 9-32-11. A review of these statutes shows no granting of authority to a municipality to place with its citizens an objective expectation of privacy in one’s trash when it has been put on the curb for city collection. To the contrary, it appears that the responsibility, and thus control over the garbage, by mandate, is placed on the municipality once the garbage is in the municipality’s possession. See SDCL 34A-6-1.9.

[¶ 21.] According to the South Dakota Secretary of State, there are approximately 309 municipalities in this State. See generally 2005 South Dakota Legislative Manual, 605-14. Thus, under the theory of the circuit court and this Court, each of these 309 municipalities can deny, create in part or in total, some type of objective expectation of privacy in one’s trash. Given that drugs are a state-wide problem and the response in part is on a state-wide basis, I do not think the Legislature intended for law enforcement to research each municipality’s ordinances on garbage before commencing a trash inspection for illegal drugs. The Legislature did not intend trash to be objectively protected from search by law enforcement in Pierre while potentially not so protected across the bridge in Ft. Pierre.

[¶ 22.] California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) and State v. Schwartz, 2004 SD 123, 689 N.W.2d 430 set the constitutional parameters for police inspection of a person’s garbage placed on the curb for collection. In South Dakota, the Legislature has not authorized municipalities to intercede.

[¶ 23.] For the above reasons, I respectfully concur in result.

SABERS, Justice

(dissenting).

[¶ 24.] Consistent with my rationale expressed in State v. Schwartz, I dissent. 2004 SD 123, ¶¶ 58-69, 689 N.W.2d 430, 445-449 (Sabers, J., dissenting). Specifically, a person has an expectation of privacy in his garbage that society recognizes as reasonable. That is why people place their garbage in closed, opaque garbage bags inside closed garbage cans to be hauled to the dump, and not messed with. This is especially so where city ordinances direct how and where garbage will be placed for disposal and the police have no reasonable suspicion or probable cause.

[¶ 25.] People have an expectation of privacy in their garbage that society recognizes as reasonable. The ordinances required Stevens to leave the garbage container “in a location suitable and readily accessible for collection by the automated collection truck on the scheduled collection day.” Rapid City Ordinance 8.08, Garbage and Refuse. The garbage was collected by an “automated collection truck” not a person, leading one to believe no one would even touch his garbage before it was commingled at the city landfill.

[¶ 26.] There is no way, short of hauling the garbage yourself, that one can protect his or her garbage from potential search by the police. In theory, Stevens could have stood on the curb with his garbage to prevent anyone from looking into it and waited until the automated collection truck picked it up. However, even in this scenario, his garbage would still have been susceptible to the search as the police were waiting to get the garbage after pickup.

[¶ 27.] At oral argument, the author of the plurality opinion stated, “I think we can all assume that each one of us might be offended personally [by someone going through our trash].” If each one of us has an expectation of privacy in their garbage, then logically society would recognize that right as reasonable. After all, society consists of individuals. By placing our garbage next to the curb we may be saying, “we do not want this anymore,” but we are not saying, “we do not care who sees it or goes through it.” Sometimes our garbage contains very private materials; materials that we do not want people to see and we expect these matters will remain private. See Schwartz, 2004 SD 123, ¶ 59, 689 N.W.2d at 445 (Sabers, J., dissenting) (“Information that may be gleaned from a household’s waste is so deeply personal that an average South Dakotan would be mortified to know that their local police or sheriffs department was examining its contents.”). Things such as prescription labels, credit card statements, saving and checking account balances, letters, the food we eat, the things we read, and so on. Many details of our lives can be gleaned from the contents of our garbage. Surely, society recognizes that it is reasonable to have an expectation of privacy in the details of our lives discoverable in garbage.

[¶ 28.] Professor Anthony Amsterdam’s definition of reasonable expectation of privacy has been adopted by several courts. He explains:

The ultimate question, plainly, is a value judgment. It is whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.

Stephen E. Henderson, Learning From All Fifty States: How to Apply the Fourth Amendment and its State Analogs to Protect Third Party Information From Unreasonable Search, 55 Cath U L Rev 373, 420-21 (quoting Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 403 (1974)). See also People v. Oates, 698 P.2d 811, 816 (Colo.1985) (en banc) (adopting Amsterdam’s formulation); State v. Hempele, 120 N.J. 182, 576 A.2d 793, 802 (N.J.1990) (same); State v. Nagel, 320 Or. 24, 880 P.2d 451, 454 (1994) (en banc) (same); State v. Morris, 165 Vt. 111, 680 A.2d 90, 93-94 (1996) (same); 1 Wayne R. LaFave, Search and Seizure § 2.1(d) (4th ed 2004) (same). Surely our rights and freedoms as citizens are diminished by allowing suspicionless trash searches.

[¶29.] Because Stevens had an expectation of privacy that society recognizes as reasonable, the search of this trash violated the Fourth Amendment and the trial court should be affirmed.

[¶ 30.] At the VERY LEAST, the police should have probable cause before rummaging through someone’s garbage. Under no circumstances should they be allowed to simply choose a neighborhood during garbage day and wander up and down the street to see what may or may not be happening. Under the plurality opinion, this is exactly what the police could do. The plurality opinion concludes that it is not enough to allow trash pulls when police have articulable suspicion but no warrant. Now, it permits trash searches where the officer has no suspicion whatsoever. The holding of this case vitiates the Fourth Amendment’s protection against unreasonable searches and diminishes our rights “inconsistent with the aims of a free and open society.” Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev at 403.

[¶ 31.] During oral argument, much was made about the fact that no legislation had been enacted since Schwartz. That the Legislature has not yet acted is not the point. In several cases where the United States Supreme Court has found the expectation of privacy in question is not one society is willing to accept as reasonable, Congress has overruled that decision by enacting legislation protecting the privacy right. See Henderson, Learning From All Fifty States: How to Apply the Fourth Amendment and its State Analogs to Protect Third Party Information From Unreasonable Search, 55 Cath U L Rev at 374-75 (citing United States v. Miller, 425 U.S. 435, 437, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (no expectation of privacy in bank records); Right to Financial Privacy Act of 1978, 12 USC §§ 3401-3422 (2000), amended by 12 USCA §§ 3401-3422 (West Supp 2005); Smith v. Maryland, 442 U.S. 735, 745, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (no privacy in dialed phone numbers); 18 USC §§ 3121-3127 (2000 & Supp 2002) (providing statutory protection for dialed phone numbers)). Therefore, at least in those cases, society recognized an expectation of privacy, even where the Court said one did not exist. One day, the Legislature may decide that the details of our private lives contained in our garbage should remain private and there is a societal expectation of privacy in our garbage. As indicated, that the Legislature has not yet acted does not mean society does not recognize the expectation of privacy as reasonable.

[¶ 32.] The plurality opinion places substantial reliance on the United States Supreme Court case of California v. Greenwood, which was decided in 1988. Reasonable expectation of privacy has advanced since then. I respectfully submit that the plurality opinion is placing itself in a position similar to those following the United States Supreme Court cases of Dred Scott and Plessy v. Ferguson, both of which were wrong when written. Dred Scott v. Sanford, 60 U.S. 393, 19 How. 393, 15 L.Ed. 691 (1856); Plessy, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896).

[¶ 33.] There is an objectively reasonable expectation of privacy in our garbage. The trial court properly suppressed the evidence and should be affirmed. Therefore, I dissent.

[¶ 34.] MEIERHENRY, Justice, joins this dissent.

      . Along with his motion to suppress, defendant presented four Rapid City Ordinances for the circuit court to review. The ordinances are located in Title 8 "Health and Safety.” The first ordinance is chapter 8.36 entitled "Smoke Abatement," and pertains to "Restrictions on solid fuel burning devices.” The ordinance prohibits persons from burning inappropriate fuel in any solid fuel burning device.
      The next ordinance in the same chapter pertains to "Open burning rules.” This ordinance contains restrictions on open burning, conditions for open burning approval, and basis for approval.
      Still within Title 8, "Health and Safety,” defendant submitted chapter 8.08 entitled "Garbage and Refuse.” This ordinance addresses “Collection and containers — Family domestic units.” It states that the "city shall be solely responsible for all residential garbage and trash collection within new subdivisions in the city.” Those subject to this ordinance will "be issued one automated collection container from the city,” which shall be the "only” container used. Garbage must be placed in the container, bagged and tied. Loose garbage is not permitted and violators can be penalized. The container must be placed "in a location suitable and readily accessible for collection by the automated collection truck on the scheduled collection day.”
      Finally, defendant submitted chapter 8.12, entitled "Litter”, which addresses the "Violation — Penally.” In this ordinance, "[v]iolation of any provision of this chapter may be punishable by not more than thirty days in jail or a fine not more than one hundred dollars, or both.”

      . SDCL 9-32-10 states:
      Every municipality shall have power to regulate and prevent the placing of ashes, dirt, garbage, or any offensive matter in any street or public ground or in any body or stream of water, within the municipality.

      . SDCL 9-32-11 states:
      Every municipality shall have power to collect and dispose of and regulate the manner of handling of garbage and other waste material and for such purpose to acquire, establish, maintain, operate, and regulate equipment and garbage disposal plants, bicinerators, and dumping grounds and to fix and collect charges for such services, and to contract with one or more persons for the collection and hauling of garbage and other waste material from the municipality or districts established therein.

      .SDCL 34A-6-1.9 states:
      Any nation, state, or first or second class municipality, county or political subdivision which has solid waste generated within its boundaries disposed of in this state shall be responsible in perpetuity for the solid waste and liable in perpetuity for any pollution or other deleterious effect caused by it.

      . It is not clear that hauling one’s garbage is even an option. The ordinance says "the city shall be solely responsible for all residential garbage and trash collection.” Participation appears to be mandatory. At any rate, as argued in Schwartz, the city garbage collector is the agent of the homeowner, and the homeowner has a reasonable expectation of privacy to have the garbage hauled to the dump. 2004 SD 123, ¶ 67, 689 N.W.2d at 448.

      . University Professor and Professor of Law, New York University School of Law.

      . I realize that the plurality opinion concludes a trash puli is not a search under the Fourth Amendment. However, I contend the expectation of privacy in our garbage is one that society recognizes and does constitute a search.