author: VANDE WALLE, Chief Justice.

text:
    2002 ND 25
    In the Interest of M.B.K. Brian D. Grosinger, Petitioner and Appellee, v. M.B.K., Respondent and Appellant.
    No. 20010108.
    Supreme Court of North Dakota.
    Feb. 20, 2002.

      Brian D. Grosinger, Assistant State’s Attorney, Mandan, ND, for petitioner and appellee.
    Wayne D. Goter, Goter Law Office, Bismarck, ND, for respondent and appellant.
    Jean R. Mullen, Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for amicus curiae.
   VANDE WALLE, Chief Justice.

[¶ 1] M.B.K. appealed from an order committing him to the care, custody, and control of the executive director of the North Dakota Department of Human Services for treatment as a sexually dangerous person. M.B.K. contends the State failed to establish he was “likely to engage in further acts of sexually predatory conduct” as required for commitment by N.D.C.C. § 25-03.3-13, and as a result, the evidence was insufficient to sustain the order of commitment. We conclude the district court’s order was sufficiently supported by the evidence. Therefore, we affirm.

I

[¶ 2] M.B.K. was convicted by his plea of guilty to a class B felony of Gross Sexual Imposition in district court. M.B.K. was sentenced to six years imprisonment, of which three years were suspended upon certain conditions. As M.B.K. ⅛ release date drew near, the State filed a petition alleging M.B.K. is a sexually dangerous individual within the definition of Chapter 25-03.3 of the North Dakota Century Code and, as a result, he should be civilly committed.

[¶ 3] The district court conducted a preliminary hearing on the petition for committal, and found probable cause to believe M.B.K. was a sexually dangerous individual. Upon this finding, the district court ordered M.B.K. to be transported to the North Dakota State Hospital for evaluation.

[¶ 4] At the State Hospital Joseph Be-langer, a psychologist, and Joanne Roux, a psychiatrist, both employed by the executive director of the North Dakota Department of Human Services at the State Hospital, evaluated M.B.K. Additionally, M.B.K. exercised his right under the Chapter to request an independent evaluator. Accordingly, Myron J. Veenstra, a psychologist employed by the executive director at the Northeast Human Service Center, conducted a third evaluation.

[¶ 5] At the hearing on the petition, testimony from each of the three evaluators was received. The trial court found the individual opinions of these experts were supported by the record. Accordingly, the district court found by clear and convincing evidence M.B.K. is a sexually dangerous individual. As a result, the district court, as required by N.D.C.C. § 25-03.3-13, for committal as a sexually dangerous person, committed M.B.K. to the care, custody, and control of the executive director of the North Dakota Department of Human Services.

[¶ 6] M.B.K. asserts the State failed to establish he was “likely to engage in further acts of sexually predatory conduct” as required by N.D.C.C. § 25-03.3-13 for commitment of a sexually dangerous person, and as a result, the evidence was insufficient to sustain the order of commitment.

[¶ 7] All three experts based their opinions upon interviews each conducted with M.B.K., a review of M.B.K’s history, and a review of the results of a battery of risk assessment tests. All three experts ultimately diagnosed M.B.K. with the disorder of Pedophilia, Non-exclusive, Opposite Sex, as well as an Anti-Social Personality Disorder. Additionally, all three of the experts agreed M.B.K. is likely to engage in further acts of sexually predatory conduct. Dr. Belanger and Dr. Roux agreed that M.B.K’s disorders would predispose any individual to further acts of sexually predatory conduct, even in the absence of the risk factors unique to M.B.K., which were analyzed by the risk assessment tests. At least one of the experts, Dr. Belanger, reasoned M.B.K’s risk of re-offending was better than 50%, or more likely than not.

[¶ 8] The risk assessment inventories were relied upon by all three experts, though Dr. Veenstra thought some of the results were too high because some events in M.B.K.⅛ past were included that Dr. Veenstra would not have included. The tests used were the Rapid Risk Assessment for Sexual Offense Recidivism (RRA-SOR), the Static-99, the Violence Risk Appraisal Guide (VRAG), and the Psychology Check List Revised (PCL-R). The results of the RRASOR placed M.B.K. at a 37% risk of re-offending within ten years. The results of the VRAG placed M.B.K. at an 82% risk of committing some kind of violent offense within 10 years. The PCL-R placed M.B.K. at a 37% risk of re-offending among all male prison inmates and at a 52% risk of re-offending among male forensic patients. The results of the Static-99 placed M.B.K. at a 39% risk of re-offending within five years, 45% risk of re-offending within ten years, and 52% risk of re-offending within fifteen years.

II

[¶ 9] Our standard of review for appeals from commitments of sexually dangerous individuals under N.D.C.C. ch. 25-03.3 is “a modified clearly erroneous” standard. In the Interest of M.D., 1999 ND 160, ¶ 34, 598 N.W.2d 799. That is, we affirm a trial court’s order of committal “unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence.” Id.

[If 10] Section 25-03.3-13, N.D.C.C., provides in part:

An individual may not be committed [as a sexually violent individual] unless evidence is admitted establishing that at least two experts have concluded the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct.

[¶ 11] Therefore, the State must produce two experts to independently establish two elements: (1) that the respondent has some sort of disorder and (2) that disorder makes him or her “likely to engage in further acts of sexually predatory conduct.”

[¶ 12] It is clear the State produced two experts and M.B.K. produced a third, and all concluded M.B.K. “has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes [him] likely to engage in further acts of sexually predatory conduct.” N.D.C.C. § 25-03.3-13. M.B.K. contends, however, the phrase “likely to engage,” as used in N.D.C.C. ch. 25-03.3 is unclear, and should be construed by this Court to mean “much more likely than not” rather than merely likely. It is M.B.K’s position that such a definition would raise the standard sufficiently so he would escape committal.

[¶ 13] Our legislature has not defined what “likely to engage” means, so we are to interpret its meaning. As we have explained by undertaking statutory interpretation:

Our primary goal is to ascertain legislative intent. We look first to the language of the statute. We read statutes as a whole to give meaning to each word and phrase, whenever fairly possible. If the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. If the language of a statute is ambiguous, the court may resort to extrinsic aids to interpret the statute. A statute is ambiguous if it is susceptible to differing rational meanings.

N.D. Securities Com’r v. Juran and Moody, Inc., 2000 ND 136, ¶ 6, 613 N.W.2d 503 (citations omitted).

[¶ 14] The meaning of the phrase “likely to engage” is susceptible to differing rational meanings. Several states have enacted sexual predator civil commitment statutes, and several of those states have also used “likely to engage” language in their statutes. In these states the phrase has been given various meanings. For example, the Arizona code uses the phrase “likely to engage in acts of sexual violence,” Ariz.Rev.Stat. § 36-3701(7)(b), and' while there is no definition of these terms elsewhere in the Arizona code, Arizona case law has defined them to mean “probable rather than merely possible.” Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779, 800 (CtApp.1999).

[¶ 15] The State of Missouri takes another approach. The Missouri code uses the phrase by way of defining who is a sexually dangerous person. The Missouri code provides: a “[s]exually violent predator, [is] any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility....” Mo.Rev. Stat. § 632.480(5).

[¶ 16] The fact that among the states we surveyed there exists different interpretations of the “likely to engage” language, illustrates the term is susceptible to varied interpretation. Because the statute is ambiguous, we may consider extrinsic evidence to interpret it. N.D. Securities Com’r v. Juran and Moody, Inc., 2000 ND 136, ¶ 8, 613 N.W.2d 503. Section 1-02-39, N.D.C.C., provides a list of aids in determining the intention of legislation. This list includes laws upon the same or similar subjects. N.D.C.C. § 1-02-39(4).

[¶ 17] As discussed above, several states have recently enacted a sexual predatory statute, and some also used the “likely to engage” language. The Kansas code uses the phrase “likely to engage in repeat acts of sexual violence” and provides that this language means “the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.” Kan. Stat. Ann. § 59-29a02(c). Similarly, the New Jersey statute provides: “Likely to engage in acts of sexual violence means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others.” N.J.Rev.Stat. § 30:4-27.26. Additionally, the Florida code uses the phrase and defines it as follows: “[l]ikely to engage in acts of sexual violence means the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.” Fla. Stat. Ch. 394.912(4). Significantly, the Florida Court of Appeals, while concluding this language was not unconstitutionally vague, further explained “the term ‘likely’ as used in the terminology ‘likely to engage in acts of sexual violence’ is a widely used term that is commonly understood by men and women of common intelligence to mean highly probable or probable and having a better chance of existing or occurring than not.” Westerheide v. Florida, 767 So.2d 637, 652-53 (Fla.Dist.Ct.App.2000).

[¶ 18] We find these cases persuasive and we conclude the phrase “likely to engage in further acts of sexually predatory conduct” as used in N.D.C.C. § 25-03.3-13 means that the respondent’s propensity towards sexual violence is of such a degree as to pose a threat to others. This definition prevents a contest over percentage points and the results of other actuarial tools, and allows experts to use the fullness of their education, experience and resources available to them in order to determine if an individual poses a threat to society.

[¶ 19] Under our interpretation of the statute, the trial court’s finding was supported by clear and convincing evidence and therefore is not clearly erroneous. Accordingly, we affirm the order of commitment.

[¶ 20] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ„ concur.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2002 ND 34
    CITY OF JAMESTOWN, Plaintiff and Appellee, v. Brenda L. JEROME, Defendant and Appellant.
    No. 20010219.
    Supreme Court of North Dakota.
    Feb. 20, 2002.

      Charles J. Gilje, City Prosecutor, Jamestown, for plaintiff and appellee.
    William A. Mackenzie, Jamestown, for defendant and appellant. Submitted on brief.
   MARING, Justice.

[¶ 1] Brenda Jerome appealed from a judgment of conviction and an order of the district court denying her motion to suppress evidence in a prosecution for driving while under the influence of intoxicating beverages. We hold the arresting police officer’s request to talk with Jerome was not a stop and did not implicate Jerome’s Fourth Amendment rights, and we affirm.

I

[¶ 2] On June 18, 2000, Jamestown Police Officer Russ Shahin received a dispatch about 9:00 p.m. relaying an anonymous tip that Brenda Jerome had been drinking since morning, was intoxicated, and was driving her vehicle. The informant identified Jerome’s vehicle by its white color and license plate number. Shahin located Jerome’s vehicle traveling on a Jamestown street, and he followed it in his patrol car for about six blocks. Shahin observed the vehicle drift slightly within its own lane, but he did not observe any other driving abnormalities or law violations. After driving through an alley, Jerome parked her vehicle on her driveway. Shahin parked his car to the side of the street, and Jerome and Shahin exited their vehicles at about the same time. As Shahin stepped out of his patrol car he asked, “hey Brenda, can I speak to you for a minute?” Jerome turned, recognized Shahin as a Jamestown police officer, and responded, “yes.” During the conversation, Shahin arrested Jerome, and she was later formally charged with class B misdemeanor DUI in violation of Jamestown City Ordinance § 21-04-06.

[¶ 3] Jerome filed a motion to suppress evidence against her “based upon a lack of articulable facts leading to a reasonable conclusion for a legal stop of the defendant’s person.” The trial court concluded Shahin’s approach to talk to Jerome constituted a valid caretaking function which did not implicate Jerome’s Fourth Amendment rights. The court denied the motion, and Jerome entered a conditional guilty plea to the charges, reserving the right to appeal the denial of her motion to suppress evidence.

II

[¶ 4] On appeal, Jerome asserts the trial court erred in failing to conclude Shahin committed an unreasonable seizure by stopping Jerome without having a reasonable and articulable suspicion she had committed a crime.

[¶ 5] The Fourth Amendment of the United States Constitution guarantees “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” A temporary restraint of a person’s freedom, or a “Terry stop,” is a seizure within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To make a legal investigative stop of a vehicle, an officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law. State v. Miller, 510 N.W.2d 638, 640 (N.D.1994). An arrest is a seizure and must be supported by probable cause. State v. Boline, 1998 ND 67, ¶ 24, 575 N.W.2d 906; Lapp v. Dep’t of Transp., 2001 ND 140, ¶ 8, 632 N.W.2d 419. In evaluating the factual basis for an investigative stop or an arrest, we consider the totality of the circumstances. City of Fargo v. Ovind, 1998 ND 69, ¶ 8, 575 N.W.2d 901. However, not all personal intercourse or communications between law enforcement officers and citizens involve seizures implicating Fourth Amendment rights. Terry, 392 U.S. at 19, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889. For example, a community caretaking encounter does not constitute a seizure within the meaning of the Fourth Amendment. State v. DeCoteau, 1999 ND 77, ¶¶ 19-20, 592 N.W.2d 579. Also, a police officer’s approach of a parked vehicle is not a seizure if the officer “inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response.” State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992). We have recognized also it is not a seizure for an officer to walk up to and talk to a person in a public place. State v. Steinmetz, 552 N.W.2d 358, 359 (N.D.1996). A seizure occurs within the context of the Fourth Amendment only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. State v. Boline, 1998 ND 67, ¶ 25, 575 N.W.2d 906.

[¶ 6] A person alleging her rights have been violated under the Fourth Amendment has the initial burden of establishing a prima facie case of illegal seizure. City of Fargo v. Sivertson, 1997 ND 204, ¶ 6, 571 N.W.2d 137. After the person alleging a Fourth Amendment violation has made a prima facie case, the burden of persuasion is shifted to the State to justify its actions. Id. We affirm the decision of a trial court on a motion to suppress, after resolving conflicting evidence in favor of affirming the decision, unless we conclude there is insufficient evidence to support the decision or the decision goes against the manifest weight of the evidence. State v. Loh, 2000 ND 188, ¶ 4, 618 N.W.2d 477. Recognizing the importance of the trial court’s opportunity to observe witnesses and assess their credibility, we accord great deference to the trial court’s findings of fact in suppression matters. Id.

[¶ 7] The relevant facts in this case are not in dispute. Upon receiving the dispatch of an anonymous tip that Jerome was intoxicated and driving her vehicle, Shahin located and followed Jerome’s vehicle. He did not, however, make any attempt to pull over or stop Jerome. After Jerome voluntarily parked her vehicle in her driveway and exited from it, Shahin asked, in a conversational and nonthreatening manner, if he could speak with her for a minute. Jerome turned, recognized the officer, and without hesitation or condition responded, “yes.” In denying the motion to suppress evidence, the trial court found Shahin was merely conducting a caretaking activity when he talked with Jerome, and the court concluded Shahin did not, therefore, “stop” Jerome within the Fourth Amendment context of search and seizure.

[¶ 8] We disagree with the trial court’s finding that Shahin, in talking with Jerome, was conducting a community caretaking function. The community care-taking function is an activity “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992). Shahin’s request to talk with Jerome does not fall within the “community caretaking” role, because his objective was to investigate the possibility of a law violation, not to help a person in possible need of assistance. In circumstances where it is obvious that a citizen is neither in need of nor desires assistance there is no community caretaking role to fill. State v. DeCoteau, 1999 ND 77, ¶ 21, 592 N.W.2d 579.

[¶ 9] We agree, however, with the trial court’s conclusion that, under these circumstances, Shahin’s approach toward and conversation with Jerome was not a stop within the context of the Fourth Amendment and did not implicate Jerome’s rights against unreasonable search and seizure. When Shahin approached Jerome he requested permission to speak with her and she readily agreed to talk with him. Shahin did not escalate this casual encounter into a seizure by ordering Jerome to do something, by demanding a response, or by threatening her with a show of authority or command. There is no assertion or evidence that Jerome’s consent was based upon any show of authority by Shahin or demand by him that she talk to him. Only when an officer by means of physical force or show of authority has in some way restrained the liberty of a citizen may we conclude that a Fourth Amendment seizure has occurred. State v. Halfmann, 518 N.W.2d 729, 731 (N.D.1994). Consequently, the trial court correctly concluded Shahin’s actions in approaching and conversing with Jerome did not constitute a seizure or stop and did not implicate Jerome’s Fourth Amendment rights.

Ill

[¶ 10] We affirm the judgment and the trial court’s order denying Jerome’s motion to suppress evidence.

[¶ 11] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ.

      . The notice of appeal was filed after entry of the order denying the suppression motion but prior to entry of the judgment of conviction. We treat the attempted appeal as being from the subsequently entered consistent judgment. See, e.g., Schuck v. Montefiore Public School Dist. No. 1, 2001 ND 93, ¶ 1 n. 1, 626 N.W.2d 698.


text:
    2002 ND 26
    CITY OF FARGO, Plaintiff and Appellee, v. Jeremy Robert STEFFAN, Defendant and Appellant. City of Fargo, Plaintiff and Appellee, v. Christopher N. Zarak, Defendant and Appellant.
    Nos. 20010175, 20010176.
    Supreme Court of North Dakota.
    Feb. 20, 2002.

      Stephen R. Dawson, Assistant City-Prosecutor, Fargo, for plaintiff and appel-lee.
    Cash H. Aaland, Fargo, for defendant and appellant Jeremy Robert Steffan.
    L. Patrick O’Day, Fargo, for defendant and appellant Christopher N. Zarak.
   VANDE WALLE, Chief Justice.

[¶ 1] Jeremy Robert Steffan and Christopher Neil Zarak appealed from judgments of conviction entered on conditional pleas of guilty. On appeal they challenge the denial of their motions to suppress evidence found as a result of an entry of an apartment made by Fargo Police. Steffan and Zarak contend the police entered an apartment, at which Steffan and Zarak were social guests, without a warrant or an exception to the warrant requirement, thus violating their right to be free from unreasonable search and seizure. Accordingly, Steffan and Za-rak contend all evidence produced by the entry should have been suppressed by the trial court. We disagree and affirm.

[¶ 2] Officers of the Fargo Police Department responded to a report of a loud party. Upon arriving at the scene the police heard loud talking, laughing and music coming from a particular apartment. The police knocked on the apartment’s door and it was opened. The police did not enter the apartment, and no one exited the apartment. Through the open doorway of the apartment, however, the police spoke to two residents of the apartment. During this conversation the two residents admitted to being under twenty-one years of age and to having recently consumed alcohol. The police requested entry into the apartment, but did not have a search warrant and were refused permission to enter by the residents.

[¶ 3] A police officer then placed the two residents under arrest and reached into the apartment to effect the arrest. The police officer pulled the two renters across the threshold and out from the apartment to handcuff them.

[¶ 4] Steffan, a social guest at the apartment, then came to the open door, but did not exit the apartment, nor did he close the door. The police who were still outside the apartment asked Steffan his age and if he had been drinking alcohol. Steffan answered he was twenty and that he had recently consumed alcohol. The police then arrested Steffan. The police reached into the apartment, pulled Stefan from the apartment and handcuffed him outside the apartment.

[¶ 5] Zarak, also a social guest, approached the door. He too was asked his age and if he had been drinking. Like Steffan, Zarak answered that he was twenty and that he had recently consumed alcohol. The police arrested Zarak. To effect the arrest police again reached into the apartment, pulled Zarak from the apartment, and handcuffed Zarak outside of the apartment.

[¶ 6] Steffan and Zarak were charged with possessing and or consuming alcohol in violation of Fargo N.D., Municipal Ordinance art. 10-01 § 01 (2000). Steffan and Zarak appeared in Fargo Municipal Court and requested that the cases be transferred to district court. After the charges were transferred, as allowed by N.D.C.C. § 40-18-15.1, Steffan and Zarak filed motions to suppress all evidence discovered by police after the arrest of the two residents. The district court denied the motions.

[¶ 7] Steffan and Zarak argue the seizure of the two apartment residents was an unreasonable invasion into a private home, which led to the discovery of evidence of Steffan’s and Zarak’s consuming and possessing alcohol. Steffan and Zarak contend had the residents not been arrested Steffan and Zarak themselves would never have come to the door, and thus in contact with the police.

[¶ 8] “The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, as well as Article I, Section 8, of the North Dakota Constitution prohibit unreasonable searches and seizures.” City of Jamestown v. Dardis, 2000 ND 186, ¶ 8, 618 N.W.2d 495. ■

[¶ 9] In United States v. Watson, however, the United States Supreme Court held the warrantless arrest of an individual in a public place upon probable cause was not an unreasonable seizure and thus did not violate the Fourth Amendment. See 423 U.S. 411, 423-24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (holding “we decline to transform [a] judicial preference [for a warrant] into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrant-less public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like”).

[¶ 10] Likewise, the North Dakota Century Code authorizes a law enforcement officer to arrest a person without a warrant, “[f]or a public offense, committed or attempted in the officer’s presence.” N.D.C.C. § 29-06-15(l)(a). In such a circumstance the officer personally senses the completion or attempt of the offense and as a result, the officer has at least probable cause to believe an offense has occurred. See, e.g., State v. Hensel, 417 N.W.2d 849, 852 (N.D.1988) (explaining “[t]o establish probable cause, it is not necessary that the officer possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred”).

[¶ 11] Therefore, the arrest of a person in a public place for a public offense committed in the officer’s presence is neither a violation of the United States’ or North Dakota’s Constitution.

[¶ 12] Steffan and Zarak urge they were not in a public place, but rather in a private home and the police entry without a warrant was unreasonable. It is true warrantless searches and seizures in a home are “presumptively unreasonable.” City of Jamestown v. Dardis, 618 N.W.2d 495, 2000 ND 186, ¶ 8 (explaining “[a] physical entry into a home is a chief evil against which the Fourth Aanendment protects”). The United States Supreme Court has held, however, that a person standing within the open doorway of a house is in a public place, and hence may be arrested without a warrant permitting police entry into the house. Illinois v. McArthur, 531 U.S. 326, 335, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001); U.S. v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976)(citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which explained: “[w]hat a person knowingly exposes to the public, even in [his/her] own house or office, is not a subject of Fourth Amendment protection”).

[¶ 13] This Court has also suggested this outcome. In State v. Ackerman, 499 N.W.2d 882, 885 (N.D.1993), we observed:

A guest present in a trailer house in which music is played so loudly as to cause complaints to the police and in which the odor of burning marijuana is allowed to escape through an open window and become detectable by neighbors, passersby, or police officers responding to a loud music complaint, may expect a knock at the door. And, if the door is opened to a police officer, such a guest may expect to be arrested for a crime being committed in the officer’s presence at the time the door is opened.

Therefore, under the search and seizure jurisprudence of both the United States Supreme Court and the North Dakota Supreme Court, an open doorway is a public place.

[¶ 14] Steffan and Zarak rely heavily upon City of Jamestown v. Dardis, 618 N.W.2d 495, 2000 ND 186, and City of Fargo v. Lee, 1998 ND 126, 580 N.W.2d 580. These cases are readily distinguishable however. In both Dardis, at ¶¶ 4-6 and Lee, at ¶¶3-6, police officers passed through doorways, entered homes and subsequently made arrests. Here the police did not enter a home, but rather stood at an open doorway, or in other words in a public place, when they effected the arrests.

[¶ 15] The Fargo Municipal Ordinance, under which Steffan and Zarak were arrested, prohibits, among other things, minors having “recently consumed ... alcoholic beverages.” See Fargo N.D., Municipal Ordinance art. 10-01 § 01 (2000). See also N.D.C.C. § 5-01-08 (“consuming or having recently consumed alcoholic beverages” by a minor is a class B misdemeanor). It is undisputed that before they were arrested Steffan and Zarak, as well as the residents of the apartment, each admitted to police he was under the age of twenty-one and that each had recently consumed alcohol.

[¶ 16] The police arrested the apartment residents and ultimately Steffan and Zarak, for committing an offense in their presence. The offense being that of having recently consumed alcohol.

[¶ 17] Accordingly we affirm the decisions below.

[¶ 18] SANDSTROM, NEUMANN, MARING, and KAPSNER, JJ„ concur.


text:
    2002 ND 33
    In the Matter of the ESTATE OF Irene HOWSER, Deceased. Kevin G. Connole and Kim P. Connole, Petitioners and Appellants, v. Jerry Anderson, Personal Representative of the Estate of Irene Howser, Respondent and Appellee.
    No. 20010185.
    Supreme Court of North Dakota.
    Feb. 20, 2002.
    Rehearing Denied March 12, 2002.

      Carol K. Larson, Pringle & Herigstad, P.C., Minot, for petitioners and appellants.
    Terence P. Devine, Lakota, for respondent and appellee.
   MARING, Justice.

[¶ 1] The contestants of Irene How-ser’s 1999 will appealed a judgment upholding the will and refusing to remove Jerry Anderson as personal representative of Howser’s estate. We hold the trial court did not clearly err in finding that a presumption of undue influence in the drafting of Howser’s will had been rebutted, and in refusing to remove Jerry Anderson as personal representative of Howser’s estate. We affirm.

I

[¶ 2] Howser died on January 6, 2000 at the age of 96. Her husband predeceased her, and they had no children. Howser’s surviving relatives consisted of a niece, a nephew, and thirteen grandnieces and grandnephews. From February 3, 1999, until her death, Howser resided at the Good Samaritan Nursing Home in Lakota. In February 1999, Howser met with attorney Jeffry Anderson regarding changes to her will. According to Jeffry Anderson, Howser sought to delete certain beneficiaries from her will, to include specific charitable bequests, and to devise the residue of her estate for the benefit of the Lakota community. Jeffry Anderson testified Howser had no specific vehicle in mind for devising the residue of her estate, and the idea of a charitable foundation was developed. Jeffry Anderson testified Howser wanted the State Bank of Lakota involved with the management of the charitable foundation because that bank handled her accounts.

[¶ 3] On March 11, 1999, Howser executed a will prepared by Jeffry Anderson, which left a substantial residue to the State Bank of Lakota as trustee for the Irene Howser Foundation. When Howser executed the will, Jeffry Anderson was employed as an officer at the State Bank of Lakota. He was also a shareholder in a holding company that owned the State Bank of Lakota, and the holding company was exclusively owned by his family. Jeffry Anderson also served on the board of directors of the State Bank of Lakota. According to Jeffry Anderson, he discussed this possible conflict of interest with Howser and informed her that she should get another attorney involved with drafting her revised will. Jeffry Anderson testified Howser declined to seek counsel from another attorney.

[¶ 4] After Howser died, her 1999 will was admitted to probate. Howser’s will named Jerry Anderson personal representative of the estate. Jerry Anderson was a long-time friend of Howser and is not related to Jeffry Anderson. Two of How-ser’s grandnephews contested her will, contending a presumption of undue influence existed against the drafting attorney, Jeffry Anderson, because of his business and family ties to the State Bank of Lakota. The contestants also sought to remove Jerry Anderson as personal representative of Howser’s estate, because of his involvement in certain transactions regarding Howser’s property.

[¶ 5] The trial court applied the statutory presumption of undue influence in N.D.C.C. § 59-01-16 to the will drafted by Jeffry Anderson. The court found, however, the presumption of undue influence had been rebutted. The court also found Jerry Anderson had rebutted the presumption of undue influence regarding his involvement in the transactions with Howser’s property. The contestants appealed.

II

[¶ 6] The contestants argue the trial court correctly found the presumption of undue influence in N.D.C.C. § 59-01-16 applies to attorneys who prepare a will for a client and receive a substantial benefit under the will, but claim the court clearly erred in finding the presumption of undue influence had been rebutted.

[¶ 7] This Court has previously refused to apply the presumption of undue influence in N.D.C.C. § 59-01-16 to will contests. See Estate of Wenzel-Mosset by Gaukler v. Nickels, 1998 ND 16, ¶ 23, 575 N.W.2d 425; Matter of Estate of Mickelson, 477 N.W.2d 247, 250 (N.D.1991); Matter of Estate of Ambers, 477 N.W.2d 218, 222-23 (N.D.1991); Matter of Estate of Polda, 349 N.W.2d 11, 15 (N.D.1984). Here, the contestants argue Jeffry Anderson was undeniably acting in a fiduciary relationship of personal confidence when he drafted Howser’s 1999 will, see N.D.C.C. 59-01-08, and the presumption in N.D.C.C. § 59-01-16 applies to an attorney who actively participates in the preparation of a will and receives a substantial benefit under the will. However, we conclude it is not necessary to decide whether the presumption of undue influence in N.D.C.C. § 59-01-16 applies to an attorney who drafts a will and receives a benefit under the will, because, assuming the presumption applies, the trial court’s finding that the presumption had been rebutted is not clearly erroneous.

[¶ 8] We do not condone the conduct of attorneys who draft a will and receive a substantial benefit under the will, and we have established a bright line that prohibits attorneys from drafting a will for non-relatives and receiving a substantial benefit under the will. See Disciplinary Board v. Crary, 2002 ND 9, ¶ 19, 638 N.W.2d 23; In re Boulger, 2001 ND 210, ¶ 7, 637 N.W.2d 710. However, this action is a will contest, not a disciplinary proceeding, and the trial court found the presumption of undue influence had been rebutted.

[¶ 9] We have defined undue influence in the context of a will contest as the substitution of the purpose and intent of one exercising influence for the purpose and intent of the testator. Matter of Estate of Robinson, 2000 ND 90, ¶ 10, 609 N.W.2d 745. We have recognized four elements of undue influence in a will contest: 1) a testator subject to undue influence; 2) the existence of the opportunity to exercise undue influence; 3) a disposition to exercise undue influence; and 4) a result that appears to be the effect of undue influence. Id. The determination of whether undue influence exists is a question of fact and is ordinarily established by circumstantial evidence. Id. at ¶¶ 10-11.

[¶ 10] In Moen v. Thomas, 2001 ND 95, ¶ 19-20, 627 N.W.2d 146 (citations omitted), we outlined our standard of review of a trial court’s findings of fact:

A trial court’s findings of fact will not be reversed on appeal unless they are clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. On appeal, the trial court’s findings of fact are presumed to be correct, and the complaining party bears the burden of demonstrating a finding is clearly erroneous.
In a bench trial, the trial court is “the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.” We do not reweigh evidence or reassess credibility, nor do we reexamine findings of fact made upon conflicting testimony. We give due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous.

[¶ 11] Here, the trial court’s findings cited testimony that Howser was a feisty little lady who could not be influenced, she was all business and not swayed by others, she did what she wanted to do, she was not easily persuaded, and she did not delegate authority to make decisions. The court found Howser was “a strong-willed, independent, decisive and mentally competent lady during the February-March 1999 time frame when she was discussing her desired testamentary changes with Jeffry Anderson,” and even after Howser executed the will, “she continued to personally manage some of her financial affairs.” The court found “Jeffry Anderson was not attempting to exert undue influence upon [Howser] to utilize either the Lakota State Bank as Trustee or himself as her attorney, despite his conflict of interest.” The court found that although Jeffry Anderson had the opportunity to exert undue influence upon Howser, the presumption of undue influence had been rebutted and Howser’s 1999 will was not the result of undue influence exerted on her by Jeffry Anderson or anyone else. Giving due regard to the court’s opportunity to assess the credibility of the witnesses, we are not left with a definite and firm conviction the court made a mistake in finding the presumption of undue influence had been rebutted. We therefore conclude the court’s finding the presumption had been rebutted is not clearly erroneous.

Ill

[¶ 12] The contestants argue the trial court erred in not removing Jerry Anderson as personal representative of Howser’s estate because of his participation in two transactions regarding her property.

A

[¶ 13] In February 1999, Howser executed a durable power of attorney which authorized Jerry Anderson to rent or lease Howser’s land upon terms and conditions he deemed proper. The contestants argue Jerry Anderson breached a fiduciary duty to Howser while acting under the power of attorney in November 1999 when he entered into a three-year lease of 880 acres of her farm land and personally received $4,400 annually from the rent proceeds.

[¶ 14] The trial court decided N.D.C.C. § 59-01-08 and the presumption of undue influence applied to Jerry Anderson’s relationship with Howser, but he had rebutted the presumption of undue influence. According to Jerry Anderson, after Howser entered the nursing home, she delegated payment of certain bills to him and directed him to take $5 per acre from the cash rent lease for management of the land. Jerry Anderson testified Howser continued to conduct her own financial affairs, and he described her as having a real good mind and being very, very independent. Jerry Anderson further testified that when Howser gave direction she expected no debate, and she had specific ideas, followed her own mind, and did not delegate authority to make decisions. The trial court found Jerry Anderson was a long-time family friend of Howser, and he had successfully rebutted the statutory presumption of undue influence and did not breach any fiduciary duty to Howser regarding the lease of the farm land. Viewing the evidence in light most favorable to the court’s finding and giving due regard to its opportunity to assess the credibility of the witnesses, we are not left with a definite and firm conviction the court erred in finding Jerry Anderson did not breach a fiduciary duty to Howser and the evidence rebutted the presumption that he exercised undue influence regarding the lease. The court’s findings about Jerry Anderson’s involvement with the lease before he was appointed personal representative of Howser’s estate are not clearly erroneous, and they do not require his subsequent removal as personal representative of her estate.

B

[¶ 15] The contestants argue Jerry Anderson breached his fiduciary duty to Howser’s estate when he purchased her car from the estate. The contestants do not seek to void the transaction; rather, they seek to remove Jerry Anderson as personal representative of the estate.

[¶ 16] Under N.D.C.C. § 30.1-17-11, a person interested in an estate may petition for removal of a personal representative for cause, which exists when removal would be in the best interest of the estate, or the personal representative has mismanaged the estate or failed to perform any duty pertaining to the office. The removal of a personal representative for cause involves the exercise of discretion by a trial court, and the court’s decision will not be set aside on appeal absent an abuse of discretion. Jarmin v. Shriners Hosps., 450 N.W.2d 750, 752 (N.D.1990).

[¶ 17] Section 30.1-18-13, N.C.C.C., strictly prohibits a personal representative from engaging in transactions with the estate in which the personal representative has a conflict of interest or derives a personal benefit. Matter of Estate of Thomas, 532 N.W.2d 676, 687 (N.D.1995). A transaction between a personal representative and an estate must be scrutinized in light of that proscription, and a court may void the transaction. See Cudworth v. Cudworth, 312 N.W.2d 331, 335 (N.D.1981). Jerry Anderson acknowledged buying Howser’s car from her estate approximately six months after she died. He testified he paid the estate $4,000 for the vehicle even though the “bluebook” value was $3,400. The court recognized the vehicle was valued at $3,900 on an inventory and appraisal of estate property. The court found Jerry Anderson did not use his position as personal representative for personal gain at the expense of Howser’s estate. Although we do not condone Jerry Anderson’s purchase of Howser’s vehicle without court approval or consent by persons interested in her estate, see N.D.C.C. § 30.1-18-13, under these circumstances we are not persuaded the court abused its discretion in refusing to remove him as personal representative of Howser’s estate.

[¶ 18] We affirm the judgment.

[¶ 19] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ.


text:
    2002 ND 23
    Deanna Lynn BUCHHOLZ, Plaintiff and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellant.
    No. 20010211.
    Supreme Court of North Dakota.
    Feb. 20, 2002.

      Andrew Moraghan, Assistant Attorney General, Bismarck, ND, for defendant and appellant.
    Deanna Lynn Buchholz (no appearance), plaintiff and appellee.
   MARING, Justice.

[¶ 1] The North Dakota Department of Transportation (“Department”) appeals from a district court judgment reversing the Department’s decision to suspend Deanna Buchholz’s driving privileges for ninety-one days. We reverse the judgment of the district court and reinstate the hearing officer’s suspension of Buchholz’s license.

I

[¶ 2] On March 11, 2001, North Dakota Highway Patrol Officer Trevor Wahlen arrested Deanna Lynn Buchholz for driving under the influence of alcohol. After arresting Buchholz, Officer Wahlen transported her to the Morton County Law Enforcement Center where she consented to an Intoxilyzer test. The Intoxilyzer test administered by Officer Wahlen recorded Buchholz’s blood alcohol concentration at .22 percent. Officer Wahlen then issued Buchholz a temporary operator’s permit and a Report and Notice. Buch-holz requested and received an administrative hearing on the suspension of her driving privileges.

[¶ 3] During the hearing, Officer Wah-len testified he allowed Buchholz to use the restroom when they arrived at the Morton County Law Enforcement Center. Buchholz was not supervised while she was in the restroom. Officer Wahlen further testified that Buchholz emerged from the restroom at 1:43 a.m. According to the Intoxilyzer test report, Buchholz provided her first breath sample at 2:05 a.m. On the checklist submitted with the test report, Officer Wahlen indicated Buchholz had nothing to eat, drink, or smoke in the twenty minutes prior to the administration of the Intoxilyzer test, as required by the State Toxicologist’s approved method for operating the Intoxilyzer. However, at the hearing, he testified he did not physically look into Buchholz’s mouth at any time prior to administering the test. Officer Wahlen also stated that, although he routinely instructs arrestees not to place anything in their mouths, he could not recall if he asked Buchholz if she had anything in her mouth prior to administering the Intoxilyzer test.

[¶ 4] After hearing Officer Wahlen’s testimony, Buchholz objected to the admission of the Intoxilyzer test results on the ground that Officer Wahlen did not comply with the twenty-minute waiting period of the method approved by the State Toxicologist for conducting a breath test. The hearing officer overruled the objection and suspended Buchholz’s driving privileges for ninety-one days.

[¶ 5] Buchholz appealed the hearing officer’s decision to the district court. The district court found Officer Wahlen “made no notes and does not have a recollection of ‘ascertain(ing) that the subject had nothing to eat, drink, or smoke within 20 minutes prior to the collection of the breath sample.’ ” Therefore, the court concluded the Intoxilyzer results were inadmissible and reversed the decision of the hearing officer. The Department appealed the district court’s decision to this Court.

II

[¶ 6] The Administrative Agencies Practices Act, N.D.C.C. ch. 28-32, governs our review of administrative license suspensions. Houn v. N.D. Dept. of Transp., 2000 ND 131, ¶ 5, 613 N.W.2d 29. We limit our review to the record before the administrative agency, and we do not review the decision of the district court. Ringsaker v. Director, N.D. Dept. of Transp., 1999 ND 127, ¶5, 596 N.W.2d 328. We are required to affirm the agency’s decision unless:

1) the decision is not in accordance with the law; 2) the decision violates the constitutional rights of the appellant; 3) provisions of the Administrative Agencies Practices Act were not complied with in the proceedings before the agency; 4) the agency’s rules or procedures have not afforded the appellant a fair hearing; 5) the agency’s findings are not supported by a preponderance of the evidence; or 6) the conclusions of law and the agency’s decision are not supported by its findings of fact.

N.D. Dept. of Transp. v. DuPaul, 487 N.W.2d 593, 595 (N.D.1992). The findings of fact made by the Department at an administrative hearing are entitled to great deference. Houn, at ¶ 6. In reviewing the Department’s findings, “we determine only whether a reasoning mind reasonably could have concluded the Department’s findings were supported by the weight of the evidence from the entire record.” Id.

Ill

[¶ 7] “Section 39-20-07(5), N.D.C.C., governs the admissibility of In-toxilyzer test results.” Ringsaker, 1999 ND 127, ¶ 7, 596 N.W.2d 328. The statute provides, in pertinent part:

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist.

N.D.C.C. § 39-20-07(5). Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed. See McPeak v. Moore, 545 N.W.2d 761, 764 (N.D.1996). “However, ‘scrupulous’ compliance does not mean ‘hypertechnical’ compliance.” City of West Fargo v. Hawkins, 2000 ND 168, ¶ 16, 616 N.W.2d 856.

[¶ 8] The portion of the State Toxicologist’s approved method at issue in this case provides “[bjefore proceeding, the operator must ascertain that the subject has had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample.” Approved Method to Conduct Breath Test ivith Intoxilyzer 5000 KB, dated September 1, 2000. At the administrative hearing, Buchholz argued Officer Wahlen failed to comply with this portion of the approved method because he acknowledged he did not check Buchholz’s mouth and could not recall if he asked her if she had anything in her mouth or if he told her not to put anything in her mouth. The hearing officer rejected this argument and concluded “Intoxilyzer testing was done in accordance with the state toxicologist’s approved method, with results showing an alcohol concentration of .22 percent.” On appeal, the Department contends the In-toxilyzer test results were properly admitted at the administrative hearing because the hearing officer could have reasonably concluded Officer Wahlen followed the approved method by observing Buchholz for twenty minutes after she emerged from the restroom. Thus, at issue is whether the State Toxicologist’s approved method requires Intoxilyzer operators to ask subjects if they have anything in their mouths or to look in their mouths prior to administering the Intoxilyzer test.

[¶ 9] While this is a question of first impression in North Dakota, the Oregon Court of Appeals has addressed related questions under a requirement very similar to the portion of the approved method at issue in this case. The requirement at issue in State v. Kacalek, 34 Or.App. 967, 580 P.2d 205 (1978) provided: “The operator must make certain the subject has not taken anything by mouth (drinking, smoking, eating, taking medications, etc.,) vomited, or regurgitated liquid from his stomach into his mouth for at least fifteen minutes before taking the test.” Id. at 206 (quoting Or. Admin. R., ch. 333, § 13-020(l)(b)). The operator of the breathalyzer testified he observed the defendant in a small room for twenty minutes during which time the defendant did not take anything into his mouth, vomit, or regurgh tate. See id. On cross-examination the operator testified he did not examine the inside of the defendant’s mouth. See id. The defendant contended in order for an operator to comply with the “make certain” portion of the regulation, the operator must examine the inside of the defendant’s mouth prior to administering the test. See id. The court rejected this argument reasoning “[t]he rule imposes no such requirement and we decline to amend the rule by holding, as a matter of law, it must be required.” Id.; see also State v. Snuggerud, 153 Or.App. 300, 956 P.2d 1015, 1021 (1998) (“The officer’s continuous observation of defendant ... satisfied the rule’s requirement.”); State v. Balderson, 138 Or.App. 531, 910 P.2d 1138, 1142 (1996) (noting that absolute certainty is not required by the rule that the test operator “make certain” the subject has not taken anything by mouth).

[¶ 10] We find the Oregon Court of Appeal’s opinions consistent with our prior interpretations of the approved method. In Bickler v. N.D. State Highway Comm’r, 423 N.W.2d 146, 147-48 (N.D.1988), this Court stated:

Under the Approved Method, ... an officer must ascertain whether a subject has smoked, eaten or drunk anything before obtaining a sample of the subject’s breath. The duty to assure the integrity of the sample requires the officer to maintain observation of the subject, and necessarily limits the extent of the privacy reasonably available under the circumstances.

In State v. Chihanski, 540 N.W.2d 621, 624 (N.D.1995), our Court noted that “observing” the subject is not the only manner of “ascertaining” that the subject had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample. In Chihanski, the defendant argued the “operator” must have himself observed Chihanski for twenty minutes prior to the collection of the breath sample. Chihanski, at 624. After her arrest, Officer Schiller handcuffed Chihanski and checked her mouth. Id. at 623. He then transported her to the police station where she submitted to an Intoxilyzer test given by Sergeant Johnson. Id. Sergeant Johnson determined twenty minutes had passed before administering the test by asking Officer Schiller the time of arrest and noting the current time on the Intoxi-lyzer machine. Id. Sergeant Johnson also noticed the defendant’s handcuffs were in place and continued to be in place throughout the testing process. Id.

[¶ 11] On these facts, we concluded the approved method’s requirement that “[b]e-fore proceeding, the operator must ascertain that the subject has had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample,” was scrupulously followed. Id. at 625. We reached this conclusion independent of the defendant’s statement to Sergeant Johnson that she had not put anything in her mouth since the time of the arrest. See id. at 624 and 625. Furthermore, although Officer Schiller may have determined there was nothing in the defendant’s mouth at the time of the arrest, nothing in our opinion indicated this information was relayed to the test operator, Sergeant Johnson. See id. at 623. Nor did we suggest Sergeant Johnson checked Chihanski’s mouth before administering the test. See id. Thus, we implied in Chihanski that the approved method does not require operators to look into subjects’ mouths or to ask subjects if they have anything in their mouths prior to administering an Intoxilyzer test. See id. at 625. In addition, it is clear that an operator’s observation that a subject did not eat, drink, or smoke in the twenty minutes prior to the test satisfies the approved method. See id. at 624 (citing Bidder, 423 N.W.2d at 147-48).

[¶ 12] We conclude the State Toxicologist’s approved method does not require test operators to ask subjects if they have anything in their mouths or to check their mouths prior to administering the test. Although test operators are encouraged to take such precautions, the approved method imposes no such requirements, and we decline to amend it by holding that it does. See Kacalek, 580 P.2d at 206. In this case, the evidence established Officer Wahlen continuously observed Buchholz for twenty minutes prior to administering the Intoxi-lyzer test, during which time she had nothing to eat, drink, or smoke. Buchholz presented no evidence to rebut this. Based on this evidence, the hearing officer could have reasonably concluded the approved method was scrupulously followed. See Horn, 2000 ND 131, ¶ 6, 613 N.W.2d 29. Thus, the Department established the Intoxilyzer test was fairly administered and the test results were properly received in evidence.

IV

[¶ 13] We, therefore, reverse the judgment of the district court and reinstate the hearing officer’s suspension of Buchholz’s license.

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

      . The North Dakota Prosecutor's Manual for DUI cases makes the following recommendation:
      In order to avoid allegations of insufficient observation and examination concerning the 20-minute waiting period, the breath test operator should actually check the driver's mouth before the administration of the test in addition to asking the driver concerning the contents of his mouth for the previous 20 minutes. The operator can then record the driver’s comments and his own investigation on the remarks portion of the Intoxilyzer Test Record and Checklist, Form 106-1. Some prosecutors recommend a visual check at the time of the arrest and just prior to administration of the test, coupled with asking the driver if he or she has placed anything in his or her mouth within the twenty minute period. This may be asked at the time of arrest and at the time the test is conducted.
      Bruce D. Quick, I Only Had Two Beers: A North Dakota Prosecutor’s Manual for DUI Cases 2-9 (1984, revised 1999) (published by the North Dakota Attorney General’s Office).


author: SANDSTROM, Justice. MARING, Justice,

text:
    2002 ND 29
    Jacqueline KNUTSON, Plaintiff and Appellant, v. Richard D. KNUTSON, Defendant and Appellee.
    No. 20010238.
    Supreme Court of North Dakota.
    Feb. 20, 2002.

      Bruce A. Schoenwald, Stefanson, Plam-beck, Foss & Fisher, Moorhead, MN, for plaintiff and appellant.
    Robert J. Schultz, Conmy Feste, Ltd., Fargo, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Jacqueline Knutson appealed from an order denying her motion to vacate a divorce decree entered upon a stipulated settlement agreement. We hold the trial court did not abuse its discretion in ruling that sufficient grounds for disturbing the finality of the divorce decree were not established, and we therefore affirm the order denying the motion to vacate.

I

[¶ 2] Richard and Jacqueline Knutson were married in 1989. They have a daughter of their marriage, Ashley, who was born on March 26, 1990. Problems developed in the Knutson’s marriage, and, after securing the services of a lawyer, Jacqueline Knutson filed a divorce action on August 7, 2000. The parties entered into a stipulated agreement in November 2000, dividing the marital property and providing for joint physical and legal custody of Ashley, with each party having custody of Ashley for an equal amount of time. The stipulation provided that neither party would receive spousal support or child support from the other party. After a hearing, attended by Richard Knutson but not by Jacqueline Knutson, the trial court entered a decree dissolving the marriage and setting the terms of the divorce in accordance with the parties’ stipulation.

[¶ 3] On May 18, 2001, Jacqueline Knutson filed a motion with the trial court, under N.D.R.Civ.P. 60(b), seeking to vacate the divorce decree on the grounds that the stipulated agreement was unconscionable and that it was signed by her as a result of her husband’s undue influence. The trial court denied the motion to vacate.

[¶ 4] The district court had jurisdiction under. N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Jacqueline Knut-son’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 5] On appeal, Jacqueline Knutson asserts the trial court abused its discretion in refusing to vacate the divorce decree. She claims the decree is unconscionable and the parties’ stipulation, upon which the terms of the decree were based, was signed by her as a result of Richard Knut-son’s undue influence.

[¶ 6] Under N.D.R.Civ.P. 60(b)(iii), the court can set aside a judgment for fraud, misrepresentation, or other misconduct of an adverse party. Also, under N.D.R.Civ.P. 60(b)(vi), the court can set aside a judgment for any other reason justifying such relief. This rule provides the ultimate safety valve to avoid enforcement by vacating a judgment to accomplish justice. Kopp v. Kopp, 2001 ND 41, ¶ 10, 622 N.W.2d 726.

[¶ 7] A trial court’s decision to deny relief under N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion. Krizan v. Krizan, 1998 ND 186, ¶ 13, 585 N.W.2d 576. We do not determine whether the court was substantively correct in entering the judgment from which relief is sought, but determine only whether the court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not established. Terry v. Terry, 2002 ND 2, ¶ 4, 638 N.W.2d 11. An abuse of discretion occurs only when the trial court acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id. Rule 60(b) attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done, and, accordingly, the rule should be invoked only when extraordinary circumstances are present. Kopp, 2001 ND 41, ¶ 9, 622 N.W.2d 726.

[¶ 8] This Court encourages peaceful settlements of disputes in divorce matters, and the strong public policy favoring prompt and peaceful resolution of divorce disputes generates judicial favor of the adoption of a stipulated agreement of the parties. Toni v. Toni, 2001 ND 193, ¶ 10, 636 N.W.2d 396. If the judgment sought to be set aside is entered based on a stipulation of the parties, the party challenging the judgment has the additional burden of showing that under the law of contracts there is justification for setting aside the stipulation. Terry, 2002 ND 2, ¶ 4, 638 N.W.2d 11. A district court, in considering whether a settlement agreement between divorcing parties should be enforced, should make two inquiries: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence; and (2) whether the agreement is unconscionable. Weber v. Weber, 1999 ND 11, ¶¶ 12-13, 589 N.W.2d 358.

Ill

[¶ 9] Jacqueline Knutson asserts the parties’ stipulation was the product of Richard Knutson’s undue influence upon her. More specifically, she asserts she was suffering from depression at the time these proceedings occurred, and her husband, taking advantage of her mental state, verbally pressured her to sign the stipulation. In its order denying the motion to vacate the original divorce decree, the trial court found:

[A]t all times during the dissolution proceedings, Jacqueline was represented by attorney Wayne Anderson who advised her against agreeing to joint custody and not to waive child support and spousal support.... [Tjhere is no evidence in the record to suggest that Anderson provided inadequate or inappropriate legal advice or should have done more with respect to his representation of Jacqueline. In addition, Jacqueline is intelligent and has financial acumen based on her bookkeeping and business experience. Thus, at a minimum, she was fully capable of understanding the financial ramifications of the settlement agreement.
. In addition, the record also shows that Jacqueline and her attorney requested that the proposed settlement agreement be revised as to paragraphs 11 and 25. This fact shows that Jacqueline, through her attorney’s assistance, was capable of expressing her dissatisfaction with certain terms of the settlement agreement.

[¶ 10] There is no evidence Jacqueline Knutson was so suffering from depression or stress during the proceedings that she was incapable of making rational decisions or of entering into a valid contractual agreement. She testified that she was not taking any medications in the year 2000 or when the stipulation was negotiated and signed. When she decided to end the marriage, she withdrew a considerable amount of cash from a joint account and purchased a new home for herself and Ashley, while her husband was out of town. Jacqueline Knutson then retained an attorney and filed for divorce. With the assistance of her attorney, she sought and obtained an interim court order awarding her spousal support of $2,000 per month and child support of $1,000 per month. Although Richard Knutson tried to persuade his wife that she should fire her attorney because he was charging too much money and was not needed to resolve the divorce, she retained her attorney throughout the entire proceedings. She also discussed the stipulated agreement with her attorney prior to signing it. He advised her that the property distribution provisions were reasonable but she should not sign, because the stipulation contained no provision for her to receive spousal support and because it included a provision for the parties to have joint physical custody of Ashley. Acting on her attorneys’ advice, Jacqueline Knut-son had two provisions of the stipulation amended to her liking. Acting against her attorney’s advice, however, she decided to sign the agreement without changing the custody or support provisions.

[¶ 11] Black’s Law Dictionary 1529 (7th ed.1999) defines “undue influence” as “the improper use of power or trust in a way that deprives a person of free will and substitutes another’s objective.” In the similar context of a will contest, this Court has defined the term “undue influence” as “the substitution of the purpose and intent of the one exercising influence for the purpose and intent of the testator.” In re Estate of Robinson, 2000 ND 90, ¶ 10, 609 N.W.2d 745. The evidence does not show Jacqueline Knutson’s signing of the stipulation was the product of Richard Knut-son’s will or purpose rather than her own.

[¶ 12] Jacqueline Knutson concedes she has a college degree in business and has experience in maintaining records in accounting for business enterprises. Based partly on these factors, the district court concluded “Jacqueline is intelligent and has financial acumen” and is “fully capable of understanding the financial ramifications of the settlement agreement.”

[¶ 13] In denying the request to vacate the divorce decree, the trial court concluded Jacqueline Knutson’s signing of the stipulated agreement, although “not entirely free from duress or undue influence by Richard,” was not the product or result of his influence or coercion. The trial court did not find that under the circumstances Richard Knutson’s purpose and will had been substituted in place of Jacqueline Knutson’s purpose and will. We conclude the trial court’s findings on this issue are not clearly erroneous. N.D.R.Civ.P. 52(a). We further conclude the trial court’s refusal to vacate the divorce decree under N.D.R.Civ.P. 60(b)(iii), on the ground the stipulation was the product of undue influence or coercion, was not an abuse of discretion.

IV

[¶ 14] Jacqueline Knutson asserts the trial court should have vacated the original divorce decree because it is unconscionable. Richard Knutson’s financial statement shows total marital assets of $2,143,500. Under the decree, Jacqueline Knutson received property worth over $500,000, including a certificate of deposit valued at $350,000; a home free of debt, valued at $143,500; a 1997 Suburban free of debt, valued at $28,000; and some significantly valued personal property. She did not receive spousal support under the decree, but she earned $25,000 in the year 2000 and expected to earn at least $40,000 in the year 2001. She also asserts that her husband would earn about $120,000 in the year 2001. Richard Knutson claims his self-employed business selling fish locators has experienced a substantial economic downturn, and he disagrees with his wife’s estimate of his earning potential. Jacqueline Knutson does not dispute that between $1,200,000 and $1,400,000 of the marital property was inherited by Richard Knutson from his relatives during the marriage.

[¶ 15] This case is clearly distinguishable from the circumstances in Crawford v. Crawford, 524 N.W.2d 833, 835 (N.D.1994), wherein this Court held a divorce judgment should be vacated because “the stipulation is so one-sided and creates such hardship that it is unconscionable.” In Crawford the husband was a doctor who was earning $130,000 per year while the wife was working as a meat wrapper for $300 per month. The parties split their personal property, but the husband received the home and was awarded custody of the four children. The wife was given visitation rights, but was ordered to pay $15 per month in child support. In this case, Jacqueline Knutson’s income is significantly higher than the wife’s income in Crawford. Under the parties’ stipulation, Jacqueline Knutson has received more than one-half million dollars in property and she has been awarded equal custodial rights.

[¶ 16] In its order denying the motion to vacate, the trial court stated, in part:

Anderson [Jacqueline’s trial attorney] stated in his deposition that the property distribution of more than $500,000 to Jacqueline was within reason, although he advised her not to sign the stipulated agreement as to the child support and custody terms....
As a whole, the Court does not find that the settlement agreement as to property distribution and waiver of spousal support is so one-sided that no rational, undeluded person would agree to its terms. Thus, the Court concludes that the distribution of property and waiver of spousal support was not unconscionable.

(Citation omitted.) Although the question of unconscionability is one of law, factual findings are necessary for the determination. Weber, 1999 ND 11, ¶ 8, 589 N.W.2d 858. We conclude the trial court’s findings on this issue are not clearly erroneous. N.D.R.Civ.P. 52(a). While Jacqueline Knutson might have received more favorable terms if she had followed her attorney’s advice, we cannot conclude, as a matter of law, the stipulation and decree involved such blatant, one-sided terms that they are unconscionable and unenforceable. See Terry, 2002 ND 2, ¶ 12, 638 N.W.2d 11. We further conclude, therefore, the trial court did not abuse its discretion in refusing to vacate the divorce decree on the ground the parties’ stipulation and the divorce decree based upon it are unconscionable.

Y

[¶ 17] Jacqueline Knutson asserts the decree should be set aside because the provision giving the parties joint physical custody of Ashley and awarding neither party child support renders the decree unconscionable.

[¶ 18] The parties each have custody of Ashley on alternating weekends, from Friday after school until Monday morning. Jacqueline Knutson has custody of Ashley on Mondays and Wednesdays and Richard Knutson has custody of Ashley on Tuesdays and Thursdays. The parties alternate custody on holidays, and each has an uninterrupted period of custody for four weeks during the summer. In its order denying the motion to vacate, the trial court found, in part:

When determining custody, the Court must consider what is in the best interest of the child_Although the existing custody arrangement and schedule may not be the most stable, the record shows that Ashley is thriving under the current arrangement. Ashley continues to succeed in school and her extracurricular activities, while at the same time maintaining her individual relationship with each parent. In addition, there do not appear to be any difficulties between Richard and Jacqueline in complying with the custody schedule. Based on these facts, the Court concludes that the custodial arrangement as it currently exists serves Ashley’s best interests. Thus, the Court finds no reason to vacate the settlement agreements (sic) as to custody. Accordingly, Jacqueline’s motion to vacate the settlement agreement as to custody of Ashley is denied. Based on these findings, the Court need not consider whether Jacqueline is entitled to child support because Ashley will continue to reside with each party fifty percent of the time.
The Court concludes that neither the custody arrangement nor the waiver of child support are unconscionable.

[¶ 19] It is not generally in the best interest of a child to be bandied back and forth between parents in a rotating physical custody arrangement. Peek v. Berning, 2001 ND 34, ¶ 19, 622 N.W.2d 186. However, rotating custody arrangements are not per se erroneous when supported by findings that alternating custody is in the best interest of the child. Id. at ¶ 20. Generally, rotating custody is only in the child’s best interest if parents are able to cooperate and set aside their differences and conflicts in their roles as parents. Id. at ¶ 22. The evidence supports the trial court’s findings that Ashley is “thriving” under the current custody arrangement and that Richard and Jacqueline Knutson have fully cooperated in their roles as parents, making the rotating custody arrangement work.

[¶ 20] Child support determinations involve questions of law subject to the de novo standard of review, findings of fact subject to the clearly erroneous standard of review, and, in some limited areas, matters of discretion subject to the abuse of discretion review. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor’s child support obligation. Id. The child support guidelines provide a schedule of child support to be paid by the noncustodial parent to the custodial parent. However, the guidelines do not address the issue of support when parents jointly share physical custody of their child for equal amounts of time. When the guidelines do not address a situation, the trial court must enter an order appropriate to the needs of the child and the ability of the parent to pay. See Montgomery v. Montgomery, 481 N.W.2d 234, 235 (N.D.1992).

[¶ 21] Under N.D.C.C. § 14-05-24, the trial court retains continuing jurisdiction to modify child support and child custody upon a showing of changed circumstances. Tony 2001 ND 193, ¶¶ 9, 11, 636 N.W.2d 396. We conclude the trial court did not abuse its discretion in refusing to vacate the divorce decree on the ground that the child custody and child support provisions are unconscionable. The decree need not be vacated for the court to revisit those issues.

VI

[¶ 22] The district court’s order denying Jacqueline Knutson’s motion to vacate the November 27, 2000, divorce judgment is affirmed. Both parties have requested an award of attorney fees for the appeal, without specifying a reason, statute, or rule upon which their requests are based. Neither party is awarded attorney fees for the appeal. Costs are taxed against appellant, Jacqueline Knutson, as provided under N.D.R.App.P. 39.

[¶ 23] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN and CAROL RONNING KAPSNER, JJ., concur.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 24] I concur in parts IV and V of the majority opinion, but must respectfully dissent from the remainder of the opinion.

[¶ 25] In Weber II, we said a trial court should make two inquiries when considering to vacate a judgment based on a stipulation between divorcing parties: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence; and (2) whether the agreement is unconscionable. Weber v. Weber, 1999 ND 11, ¶ 12, 589 N.W.2d 358. This means the trial court must examine the agreement to determine if it is the product of duress or undue influence. If it is, then the agreement must be rescinded, because it was not entered into voluntarily. If the agreement was not a product of duress or undue influence under N.D.C.C. § 9-09-02(1), then the trial court must determine whether the agreement is so one-sided that it is unconscionable. Weber, at ¶ 13.

[¶ 26] The trial court, in its findings of fact, notes that Jacqueline felt “threatened and coerced” when she met alone with Richard on November 9; that Jacqueline stated “Richard threatened to use their daughter ‘during all of this’ and that he threatened to put her on the stand and have her testify that she wanted to live with him”; that Jacqueline stated she was “in an extremely weakened state, and that she felt like [she] had to comply with the terms proposed by Richard”; that Jacqueline stated that “Richard was calling every day and he was trying to convince her to agree to the settlement agreement”; and that Jacqueline stated when she told Richard she wanted to seek another attorney’s opinion on Richard’s proposed stipulation he told her if she did that she “ ‘could forget about settling out of court’ and that it ‘would take too much time.’ ”

[¶27] Contrary to what the majority opinion states, the trial court does not state the agreement was not the product of Richard’s undue influence or coercion. The trial court in its application of the law to the facts stated:

The Court is mindful of the fact that Jacqueline was likely depressed and distraught during the dissolution proceedings and that she may have agreed to settlement to avoid Ashley’s involvement in the proceedings and because of Richard’s coercive behavior. Although the settlement agreement teas not entirely free from duress or undue influence by Richard, the Court finds, however, that the agreement is not unconscionable as to distribution of property.

(Emphasis added.) .The trial court’s analysis is unclear in my opinion. Did the trial court conclude the agreement was a product of “duress or undue influence”? If it did, then the agreement must be rescinded. Or did the trial court conclude that even if the agreement was a product of “duress or undue influence,” it was not unconscionable and, therefore, not void? In the latter case, the trial court would have incorrectly applied the law and, consequently, abused its discretion. Because I am unable to ascertain the trial court’s rationale and legal analysis, I would reverse and remand for the trial court to clarify its findings and conclusions of law.

[¶ 28] I respectfully dissent.

[¶ 29] MARY MUEHLEN MARING.


author: KAPSNER, Justice.

text:
    2002 ND 27
    Darrell Wayne RED PAINT, a/k/a Darrell Wayne Clifford Red Paint, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20010245.
    Supreme Court of North Dakota.
    Feb. 20, 2002.
    Rehearing Denied March 12, 2002.

      Darrell W. Clifford, pro se, Bismarck, ND, for petitioner and appellant.
    Mary K. O’Donnell (on brief), State’s Attorney, Rolla, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Darrell Red Paint, also known as Darrell Clifford, appeals from the dismissal of his application for post-conviction relief. Finding the application is without merit, we affirm the district court’s dismissal.

I

[¶ 2] Red Paint was convicted of two counts of murder in 1981. Red Paint appealed the conviction, arguing the district court committed reversible error in allowing testimony regarding a conversation he had with Franklin Bell at the Rolette County sheriffs office in which he admitted the killings. We affirmed the conviction, holding the challenged testimony was not a privileged confidential communication. State v. Red Paint, 311 N.W.2d 182, 185 (N.D.1981).

[¶ 3] In June of 2001 Red Paint sought post-conviction relief, alleging two issues. First, he argues his conversation with Bell was inadmissible at trial as a privileged confidential communication. Second, he argues his conviction was obtained through a violation of his constitutional right against self-incrimination. Specifically, Red Paint asserts he did not receive Miranda warnings. Red Paint filed his application without an attorney, and declined court appointed representation. The district court dismissed Red Paint’s application for post-conviction relief, determining the issues had previously been decided on direct appeal. Red Paint appealed the district court’s decision.

[¶ 4] Red Paint represented himself at oral argument before this Court. During his argument Red Paint stated: “See, there’s nothing I can say with, uh, about this because I was actually the little Indian that did pull the trigger back then.” Testimony at Red Paint’s trial had previously established shotgun wounds were the cause of death for both victims.

II

[¶ 5] Red Paint’s first claim is Bell’s testimony was inadmissible as privileged confidential communications. North Dakota Century Code § 29-32.1-12(1) states “[a]n application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding.” On direct appeal we identified the sole issue as “whether the district court committed reversible error in allowing Frank Bell to testify at trial regarding his conversation with Red Paint at the Rolette County sheriffs office.” Red Paint, 311 N.W.2d at 183. We held “Bell’s testimony was not a privileged confidential communication and the district court did not commit error in allowing Bell to testify.” Id. at 185.

[¶ 6] “When an issue has been raised on a direct appeal of a conviction the issue cannot be raised again in a subsequent post-conviction relief proceeding.” DeCoteau v. State, 1998 ND 199, ¶ 5, 586 N.W.2d 156. Because Red Paint raised the issue of admissibility of Bell’s testimony on direct appeal, it cannot be raised again. The district court was correct in denying this portion of the application for post-conviction relief because it was fully and finally determined in the direct appeal, thereby making the issue res judicata.

[¶ 7] It must be noted that even if a valid privilege had existed regarding Red Paint’s admission to Bell, Red Paint waived any privilege he could assert when he volunteered the statement about the double homicide before this Court. The holder of a privilege waives the right to assert the privilege if he voluntarily discloses any significant part of the privileged matter. N.D.R.Ev. 510. Red Paint’s admission to this Court constitutes a waiver of the privilege which he might have asserted regarding the content of Bell’s testimony.

III

[¶ 8] Red Paint’s second claim is his right against self-incrimination was violated because he did not receive Miranda warnings. The State argues the issue of self-incrimination was fully and finally determined in the direct appeal. See N.D.C.C. § 29-32.1-12(1). Alternatively, the State argues the claim is barred as a misuse of process under N.D.C.C. § 29-32.1-12(2).

[¶ 9] In addition to deciding the issue of whether the communications between Red Paint and Bell were privileged, we addressed the issue of self-incrimination on direct appeal:

Although the issue was not raised by the parties in their briefs, at oral argument it was pointed out that Red Paint was not given Miranda warnings prior to his admission to Bell at the Rolette County sheriffs office. In Miranda v. Arizona, ..., the Supreme Court held that the prosecution may not use statements stemming from “custodial interrogation” of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. The Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”....
There is no evidence indicating that Bell’s conversation with Red Paint constituted “questioning initiated by law enforcement officers”, and, therefore, the failure to give Miranda warnings did not affect the admissibility of Bell’s testimony. Other courts presented with similar fact situations have also held that Miranda does not apply to interrogations conducted by private individuals.

Red Paint, 311 N.W.2d at 183-84 n. 1.

[¶ 10] The constitutional triggers requiring Miranda warnings are custody and interrogation. State v. Helmenstein, 2000 ND 223, ¶ 13, 620 N.W.2d 581 (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “When a person is in custody and being interrogated by law enforcement, the individual must be apprised, or warned, of his or her rights.” State v. Eldred, 1997 ND 112, ¶ 10, 564 N.W.2d 283. .Following other courts, we have noted “Miranda does not apply to interrogations conducted by private individuals.” Red Paint, 311 N.W.2d at 183-84 n. 1. On direct appeal we determined “the failure to give Miranda warnings did not affect the admissibility of Bell’s testimony.” Id. The district court was correct in denying this portion of the application for post-conviction relief because the self-incrimination issue was fully and finally determined in a previous proceeding, thereby making the issue res judi-cata.

[¶ 11] In addition to being res ju-dicata, raising the issue of self-incrimination at this time is a misuse of process. Red Paint failed to raise the issue in his brief on direct appeal in 1981. The issue of whether Red Paint’s right against self-incrimination was violated because he did not receive Miranda warnings is appropriate for review on direct appeal. See Sy- vertson v. State, 2000 ND 185, ¶ 17, 620 N.W.2d 362. Red Paint has not provided a reason why he should be excused from failing to raise this issue on direct appeal. See id.

[¶ 12] Finally, Red Paint’s right against self-incrimination was not violated because Miranda warnings were not required. We determined Bell “was not serving as a law enforcement officer in any capacity.” Red Paint, 311 N.W.2d at 184. Miranda warnings need only be given in a custodial interrogation setting. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. Bell was not a law enforcement officer. Consequently, Miranda warnings need not be given when the interrogation is conducted by a private individual. Red Paint, at 183-84 n. 1.

IV

[¶ 13] The issues raised in Red Paint’s motion for post-conviction relief are barred under the doctrine of res judicata and are a misuse of process. We affirm the district court’s dismissal.

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

      . North Dakota Century Code § 29-32.1-12(2) provides:
      A court may deny relief on the ground of misuse of process. Process is misused when the applicant:
      a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous post-conviction proceeding; or
      b. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.


text:
    2002 ND 22
    Daphne GHORBANNI, Plaintiff and Appellant, v. NORTH DAKOTA COUNCIL ON THE ARTS and the State of North Dakota, Defendants and Appellees.
    No. 20010164.
    Supreme Court of North Dakota.
    Feb. 20, 2002.
    Rehearing Denied March 12, 2002.

      Albert A. Wolf (argued) and Steven L. Latham (on brief), Wheeler Wolf, Bismarck, for plaintiff and appellant.
    Tag C. Anderson, Assistant Attorney General, Attorney General’s Office, Bismarck, for defendants and appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Daphne Ghorbanni appealed from a summary judgment dismissing her claims for retaliatory discharge and defamation against the North Dakota Council on the Arts and the State of North Dakota. We conclude Ghorbanni failed to properly give notice of her claims as required by statute, and we affirm.

I

[¶ 2] The North Dakota Council on the Arts (“the Council”) is a statutorily created body made up of members appointed by the governor. N.D.C.C. § 54-54-02. Daphne Ghorbanni was hired as Executive Director of the Council by its chairman, David Trottier, in August 1999. See N.D.C.C. § 54-54-04 (the council chairman may employ officers and other employees of the Council, and “[s]uch persons shall serve at the pleasure of the chairman”).

[¶ 3] In reviewing the Council’s budget, Ghorbanni discovered several discrepancies, including alleged misuse of public funds. Ghorbanni reported these financial discrepancies to the Office of Management and Budget and submitted a written report for consideration by the Council at its meeting scheduled for May 5-6, 2000. Before Ghorbanni could present her allegations to the Council, Trottier terminated her employment on April 28, 2000. On May 1, 2000, Trottier gave a radio interview explaining alleged reasons for Ghor-banni’s termination. On May 6, 2000, the governor issued a press release stating he supported Trottier’s decision to terminate Ghorbanni and indicating Ghorbanni did not have the management skills the position required.

[¶ 4] On May 12, 2000, Ghorbanni’s attorney wrote to Trottier requesting written reasons for the termination and asking that Ghorbanni be allowed to attend the May 20, 2000, meeting of the Council to present a response to the stated reasons for termination. Ghorbanni was not allowed to appear at the meeting. On May 22, 2000, assistant attorney general Tag Anderson wrote to Ghorbanni’s attorney, stating: “The Council directed Mr. Trottier and myself as council [sic] for the North Dakota Council on the Arts to enter into a dialog with you to ascertain specifically what it is that you are requesting.” Following further discussions between the attorneys, Ghorbanni’s attorney on June 26, 2000, sent a letter to Anderson outlining Ghorbanni’s claims against the State.

[¶ 5] Ghorbanni commenced this action against the Council and the State on October 2, 2000, alleging retaliatory discharge and defamation. Ghorbanni alleged that she was fired for reporting alleged misuse of public funds by members of the Council, including Trottier, and that she was defamed by the May 6, 2000, press release. After the Council and the State filed an answer alleging Ghorbanni had failed to comply with procedural prerequisites, Ghorbanni on November 18, 2000, presented written notice of her claims to the Office of Management and Budget (“OMB”). The Council and the State moved for summary judgment, arguing Ghorbanni had faked to give timely notice of her claims to the Director of OMB as required by N.D.C.C. § 32-12.2-04(1). Ghorbanni moved to amend her complaint to include allegations that she had complied with the notice-of-claim requirements. The trial court concluded Ghor-banni had failed to give the statutorily required notice, and therefore ordered dismissal of the complaint and denial of Ghor-banni’s motion to amend the complaint. Ghorbanni then moved to amend the judgment. Ghorbanni’s motion to amend the judgment was denied, and she appealed from the summary judgment dismissing her complaint and from the order denying her motion to amend the judgment.

II

[¶ 6] Ghorbanni argues the trial court erred in concluding she failed to comply with N.D.C.C. § 32-12.2-04(1), which provides, in part:

A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded.

For purposes of this section, an “injury” includes “injury to a person’s rights or reputation.” ■ N.D.C.C. § 32-12.2-01(2) and (4); see also State v. Haskell, 2001 ND 14, ¶ 9, 621 N.W.2d 358.

[¶ 7] Ghorbanni was terminated on April 28, 2000, and the allegedly defamatory press release was issued on May 6, 2000. Ghorbanni presented formal written notice to OMB on November 13, 2000, more than 180 days after the “injuries” had occurred. Ghorbanni does not assert the November 13, 2000 notice was timely or satisfied the requirements of N.D.C.C. § 32-12.2-04(1). Rather, Ghorbanni contends that the June 26, 2000 letter from her attorney to Anderson constituted timely notice of her claims to OMB under the statute. Ghorbanni argues that Anderson had made an appearance on behalf of the State, that Anderson was statutorily required to communicate the content of the June 26, 2000 claim letter to OMB, and that the purpose of the statute was thereby met.

[¶ 8] Our prior cases indicate strict compliance with the requirements of N.D.C.C. § 32-12.2-04(1) is a prerequisite to bringing an action against the State or its employees. Absent the timely filing of a notice of claim under N.D.C.C. § 32-12.2-04(1), the court lacks subject matter jurisdiction to entertain the lawsuit. Kautzman v. McDonald, 2001 ND 20, ¶ 11, 621 N.W.2d 871; Haskell, 2001 ND 14, ¶ 9, 621 N.W.2d 358; Cooke v. University of N.D., 1999 ND 238, ¶ 9, 603 N.W.2d 504; Earnest v. Garcia, 1999 ND 196, ¶ 7, 601 N.W.2d 260; Allied Mut. Ins. Co. v. Director of the N.D. Dep’t of Transp., 1999 ND 2, ¶ 16, 589 N.W.2d 201. The plain language of the statute requires explicit •written notice of the claim; actual notice is insufficient. Kautzman, at ¶ 11; Earnest, at ¶ 6; Allied Mut. Ins. Co., at ¶¶ 10, 15-16; Messiha v. State, 1998 ND 149, ¶ 21, 583 N.W.2d 385.

[¶ 9] The statute explicitly requires that the notice of claim must be presented to the director of OMB. Presenting a claim letter to an assistant attorney general does not satisfy the statute. See Kautzman, 2001 ND 20, ¶ 13, 621 N.W.2d 871; see also J. James Fraiser III, Annotation, Persons or Entities Upon Whom Notice of Injury or Claim Against State or State Agencies May or Must Be Served, 45 A.L.R. 5th 173, § 2[a] (1997) (“When a claim-notice statute mandates service upon only a specific person ... the courts will often require strict compliance therewith.”).

[¶ 10] We conclude the trial court did not err in determining Ghorbanni had failed to comply with N.D.C.C. § 32-12.2-04(1) and the court therefore lacked subject matter jurisdiction over her claims.

Ill

[¶ 11] Ghorbanni argues that her retaliatory discharge action sounds in contract and should therefore be governed, not by N.D.C.C. § 32-12.2-04(1), but by the notice of claim provision contained in N.D.C.C. § 32-12-03, which provides:

No action upon a claim arising upon contract for the recovery of money only can be maintained against the state until the claim has been presented to the department, institution, agency, board, or commission to which claim relates for allowance and allowance thereof refused. The neglect or refusal of the office to act on such claim for a period of ten days after its presentation for allowance must be deemed a refusal to allow the claim.

Ghorbanni contends the June 26, 2000 letter to Anderson satisfied this statute, and her retaliatory discharge action was therefore properly before the district court.

[¶ 12] Ghorbanni argues “[h]er claims are for recovery of money as a result of the retaliatory actions of the State, based upon her termination for revealing information related to the Council’s chairman’s misuse of public funds.” She argues her dismissal violated public policy, as expressed in N.D.C.C. § 34-11.1-04, which expressly prohibits an employer from terminating a public employee for reporting job-related misuse of public resources, and N.D.C.C. § 34-01-20(l)(a), which prohibits an employer from terminating an employee for reporting a suspected violation of the law.

[¶ 13] We have previously recognized that an action for retaliatory discharge in violation of public policy is a tort. See Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 794-95 (N.D.1987). The “overwhelming majority” of courts which have considered whether a retaliatory discharge case grounded upon violation of public policy is actionable in contract or in tort have concluded such actions sound in tort, not in contract. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380, 385 (1988); see also, e.g., Batey & Sanders, Inc. v. Dodd, 755 So.2d 581, 583 (Ala.Civ. App.1999); Burke v. Board of Dirs., 709 N.E.2d 1036, 1041-42 (Ind.Ct.App.1999), modified in part on other grounds, 711 N.E.2d 1288 (Ind.Ct.App.1999); Stebbings v. University of Chicago, 312 Ill.App.3d 360, 244 Ill.Dec. 825, 726 N.E.2d 1136, 1140 (2000); Murphy v. City of Topeka-Shawnee County Dep’t of Labor Servs., 6 Kan.App.2d 488, 630 P.2d 186, 190 (1981); Firestone Textile Co. v. Meadows, 666 S.W.2d 730, 733 (Ky.1983); Phillips v. Butterball Farms Co., 448 Mich. 239, 531 N.W.2d 144, 147-48 (1995); Hartbarger v. Frank Paxton Co., 115 N.M. 665, 857 P.2d 776, 782, n. 5 (1993); Townsend v. Living Centers Rocky Mountain, Inc., 947 P.2d 1297, 1299 (Wyo.1997). The Supreme Court of Michigan explained in Phillips, 531 N.W.2d at 147 (footnotes omitted):

[T]he source of this right against retaliatory discharge does not stem from any term agreed upon by the contracting parties, but from public policy now expressed in a statute. The duty not to retaliate against an employee for filing a worker’s compensation claim arises independently from the employment contract. In Lathrop v. Entenmann’s, Inc., 770 P.2d 1367, 1373 (Colo.App., 1989), a Colorado appellate court said: “[t]he duty of the employer to refrain from retaliation in violation of a state’s public policy does not find its source in any private contract; it is a duty imposed by the state’s legislative body; and it is one that cannot be adjusted or modified by the private actions of an employer and a collective bargaining agent.”

[¶ 14] We agree with the majority view that an action for retaliatory discharge based upon public policy sounds in tort, not contract. Accordingly, the notice-of-claim statute governing contract claims against the State, N.D.C.C. § 32-12-03, is inapplicable. As we noted in State v. Haskell, an action alleging wrongful termination in violation of the Human Rights Act:

Smith has not specified any relief sought other than money damages for lost income, damage to her reputation and attorney’s fees. Smith’s complaint therefore, seeks only money damages for the very kind of claim for which N.D.C.C. § 32-12.2-04 requires a person to present a notice to the director of the office of management and budget within 180 days. Under Ch. 32-12.2, injury includes personal injury, which is defined as including “... injury to a person’s rights or reputation.” N.D.C.C. § 32-12.2-01(2) and (4).

Haskell, 2001 ND 14, ¶ 9, 621 N.W.2d 358.

[¶ 15] We conclude Ghorbanni’s retaliatory discharge claim sounded in tort, and N.D.C.C. § 32-12.2-04(1) was the applicable notice-of-claim statute.

IV

[¶ 16] The summary judgment dismissing the complaint and the order denying Ghorbanni’s motion to amend the judgment are affirmed.

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

      . Section 34-01-20(3), N.D.C.C., specifically authorizes a civil action for injunctive relief, actual damages, and attorney’s fees for a violation of N.D.C.C. § 34-01-20.