author: ANDERSON, RUSSELL A., Chief Justice. ANDERSON, PAUL H., Justice ANDERSON, G. BARRY, Justice GILDEA, Justice

text:
    In re CHARGES OF UNPROFESSIONAL CONDUCT INVOLVING FILE NO. 17139, a Minnesota Attorney, in Panel Case No. 20783.
    No. A05-1955.
    Supreme Court of Minnesota.
    Sept. 7, 2006.

      Martin A. Cole, Patrick R. Burns, Office of Lawyers Professional Responsibility, St Paul MN, for Lawyers Professional Responsibility Board.
    William F. Mohrman, Charles R. Shref-fler, Mohrman & Kaardal, P.A., Minneapolis MN, for Respondent Attorney in File No. 17139.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

On October 12, 2004, the Director of the Office of Lawyers Professional Responsibility issued charges against respondent alleging a violation of Minn. R. Prof. Conduct 8.2(a), which prohibits knowingly or recklessly making false statements about the qualifications or integrity of, inter alia, a judge. In response, respondent asserted that he made the statement in question in good faith, relying on information obtained from two credible and reliable sources. However, respondent refused to disclose to the director the identities of his sources. Consequently, the director brought a motion in Ramsey County District Court seeking an order finding that his request for disclosure of respondent’s sources was a “reasonable request” under Rule 25(a), Rules on Lawyers Professional Responsibility (RLPR), and that respondent therefore must comply with the request. The district court denied the motion, finding the request to be unreasonable. We granted review and now reverse.

On July 16, 2002, respondent filed as a candidate for a Minnesota state district court seat. According to respondent, on the evening of July 16, he received a telephone call from “an individual who [he] knew to be a credible and reliable source of information regarding the work habits of judges on the bench in [the relevant] [c]ounty.” Respondent claims that this source told him that his opponent in the election, the incumbent judge, “consistently ranked as one of the highest judges in terms of absenteeism for the district bench” and that the incumbent judge’s backlog of cases under advisement “exceeded that of the other judges in the District combined.” The source also allegedly told respondent that “issues surrounding excessive absenteeism and case backlog” had been discussed at a district court judges’ meeting in March 2002. Respondent asserts that “another credible and reliable source” verified the original source’s statement about the topics discussed at the March district court judges’ meeting. Respondent claims that he attempted to verify the information about the incumbent judge’s case backlog, but was denied access to the cases-under-advisement records at the Minnesota Supreme Court.

On August 15, 2002, respondent’s campaign issued the following statement:

The problem with my opponent’s performance as a judge is that she doesn’t show up, and she doesn’t do the work. She has one of the highest rates of absenteeism for judges in the district, and, worse, her backlog of undecided and unfinished cases is larger than all of the other district judges combined.

As a result of this statement, an ethics complaint was filed with the Office of Lawyers Professional Responsibility (OLPR), alleging that respondent violated Minn. R. Prof. Conduct 8.2(a), which provides, “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

As part of the director’s investigation, the director repeatedly asked respondent to disclose the identities of the sources who he claimed provided him with the information on which he based his statement, but respondent refused to do so. The director then brought a motion in Ramsey County District Court pursuant to Rule 25(a), RLPR, which requires lawyers to comply with the director’s “reasonable requests” for information, seeking an order finding that his request for disclosure of respondent’s sources was reasonable.

The district court denied the motion on the grounds that the request was “unreasonable and disproportionate to the complexity and gravity of the alleged ethical violation.” The court faulted the director for focusing on the “singular issue” of respondent’s sources, which the court characterized as simply one of many defenses raised by respondent. The court concluded that “[t]he OLPR is exaggerating the proceedings in attempting to make this something beyond what it actually is, a lawyer disciplinary action.” We granted the director’s petition for discretionary review.

We have not before determined the appropriate standard for reviewing a district court’s ruling on a Rule 25(a) request. The parties suggest that we apply an abuse of discretion standard, analogizing to review of a district court’s ruling on a discovery motion, and we agree. In the context of civil litigation, “[a] district court has broad discretion ‘to issue discovery orders’ and will be reversed on appeal only upon an abuse of such discretion.” Minn. Twins P’ship v. State ex rel. Hatch, 592 N.W.2d 847, 850 (Minn.1999) (quoting Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn.1990)). Rule 25(a) requests are analogous to civil discovery requests in that both provide a method for a party to obtain information relevant to its claim from another party. In light of the similarities between Rule 25(a) requests and discovery motions and in view of our delegation of oversight of Rule 25(a) requests to another court, we conclude that review for abuse of discretion is appropriate. See In re N.P., 361 N.W.2d 386, 392 (Minn.1985). Applying this standard of review, the issue presented in this case is whether the district court abused its discretion by concluding that the director’s request that respondent reveal the identities of his sources was not a reasonable request under Rule 25(a), RLPR.

Rule 25(a) requires a lawyer subject to investigation or proceedings under the Rules on Lawyers Professional Responsibility to cooperate with the director by complying with reasonable requests for information:

It shall be the duty of any lawyer who is the subject of an investigation or proceeding under these Rules to cooperate with * ⅜ * the Director * * * by complying with reasonable requests, including requests to:
(1) Furnish designated papers, documents or tangible objects;
(2) Furnish in writing a full and complete explanation covering the matter under consideration;
(3) Appear for conferences and hearings at the times and places designated;
(4) Execute authorization and releases necessary to investigate alleged violations of a conditional admission agreement.
Such requests shall not be disproportionate to the gravity and complexity of the alleged ethical violations. The District Court of Ramsey County shall have jurisdiction over motions arising from Rule 25 requests.

(Emphasis added.) We have not previously defined “reasonable requests” for purposes of Rule 25(a), nor does the rule itself define that phrase. Instead, the rule gives a nonexclusive list of requests that are considered reasonable and indicates that requests that are disproportionate to the gravity or complexity of the charges are unreasonable. Rule 25(a), RLPR; see also N.P., 361 N.W.2d at 394.

To define “reasonable requests” for purposes of Rule 25(a), we look to the plain meaning of the word “reasonable.” The American Heritage Dictionary defines “reasonable” as “being in accordance with reason,” “being within the bounds of common sense,” and “not excessive or extreme.” American Heritage Dictionary of the English Language 1506 (3d ed.1992); see also Black’s Law Dictionary 1293 (8th ed.2004) (defining “reasonable” as “[flair, proper, or moderate under the circumstances”).

In addition, the civil discovery rules provide guidance by analogy. Minnesota Rule of Civil Procedure 26.02(a) provides that in civil litigation “[pjarties may obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense of any party.” For good cause, a party to a civil case may obtain discovery “of any matter relevant to the subject matter involved in the action.” Rule 26.02(a) also provides that a court may deny discovery requests that are unreasonably cumulative or unduly burdensome relative to the likely benefit to the party seeking discovery, in light of “the needs of the case, * * * the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.”

Given the plain meaning of “reasonable” and the context in which the phrase “reasonable requests” is used in Rule 25(a), we interpret “reasonable requests” to mean requests that are rationally related to the disciplinary charges or to a defense raised by a lawyer undergoing investigation, so long as the requests are not unduly burdensome or unnecessarily cumulative. Accordingly, we hold that in ruling on motions under Rule 25(a) the Ramsey County District Court should ascertain whether the information sought is rationally related to the charges of professional misconduct or to a defense to those charges and should weigh the director’s need for the information against the burden imposed on the lawyer.

In this case, the district court failed to perform the appropriate analysis when assessing the reasonableness of the director’s request. The court did not analyze whether the requested information was rationally related to the charges of professional misconduct, nor did it consider the director’s need for the information in light of his burden of proving a violation of Rule 8.2(a) by clear and convincing evidence. By failing to consider these pertinent factors and by failing to apply the correct standard, the district court abused its discretion. Further, language in the court’s memorandum suggests that the court may have thought that the director was attempting to prevent respondent from raising a defense of good faith reliance on credible sources. This appears to have led the court improperly to focus on respondent’s ability to assert particular defenses, rather than on the director’s need for the information or its relevance to the charges.

The director’s burden of proof in a disciplinary proceeding alleging a violation of Minn. R. Prof. Conduct 8.2(a) informs the reasonableness of the director’s Rule 25(a) request in this case. To establish a violation of Minn. R. Prof. Conduct 8.2(a), the director must prove by clear and convincing evidence that the lawyer (1) made a false statement (2) concerning the qualifications or integrity of a judge, and (3) that the lawyer either knew the statement was false or acted with reckless disregard as to its truth or falsity. See In re Gherity, 673 N.W.2d 474, 480 (Minn.2004); Minn. R. Prof. Conduct 8.2(a). Rule 8.2(a) parallels the United States Supreme Court’s holding in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), that a public official may not constitutionally recover damages for a defamatory falsehood regarding his official conduct unless the statement was made with “ ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. 710. Proof of actual malice requires a showing that the defendant made the statement with a “high degree of awareness of [its] probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), or that he “entertained serious doubts as to the truth of his publication,” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Actual malice is thus a subjective standard. See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989).

Unlike the subjective actual malice standard for defamation, we have held that an objective standard applies under Rule 8.2(a). In re Graham, 453 N.W.2d 313, 321 (Minn.1990). In Graham, we reasoned that the different societal interests underlying lawyer rules of professional conduct and defamation laws justified interpreting Rule 8.2(a) as enunciating a standard other than subjective actual malice. 453 N.W.2d at 322. We observed:

“Defamation is a wrong directed against an individual and the remedy is a personal redress of this wrong. On the other hand, the Code of Professional Responsibility encompasses a much broader spectrum of protection. Professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations.”

Id. (quoting In re Terry, 271 Ind. 499, 394 N.E.2d 94, 95 (1979)). Consequently, we concluded that the standard embodied in Rule 8.2(a) “must be an objective one dependent on what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.” Id.

Respondent contends that application of an objective standard under Rule 8.2(a) to statements made during a political campaign is unconstitutional because such a standard permits punishment of speech protected by the First Amendment of the United States Constitution. Respondent argues that the subjective actual malice standard instead must be applied. However, given the procedural posture of this appeal, we need not address the merits of respondent’s constitutional challenge to the objective standard we have read into Rule 8.2(a). Whether the standard under Rule 8.2(a) should be objective or subjective is relevant only insofar as it affects the narrow inquiry presented in this appeal — was the director’s request reasonable under Rule 25(a)? In this case, we conclude that the reasonableness of the director’s request does not turn on whether the director must prove objective or subjective recklessness.

As discussed above, a court evaluating the reasonableness of a Rule 25(a) request should ask whether the request is rationally related to the charges of professional misconduct or to a lawyer’s defense to those charges and whether the request is unduly burdensome in light of the gravity and complexity of the charges. In this case, the identities of respondent’s sources are extremely relevant — indeed, critical— to the ethical violation alleged. To prove a violation of Rule 8.2(a), the director must establish that respondent either knew his statement to be false or acted with reckless disregard as to the falsity of the statement. Minn. R. Prof. Conduct 8.2(a). Under either an objective or subjective standard, the identities of respondent’s sources and the information they conveyed to him are crucial to determining whether respondent acted with reckless disregard as to the falsity of his statement. Under an objective standard, the director must prove that a reasonable lawyer in respondent’s situation would have had serious doubts about the truth of respondent’s statement. See Graham, 453 N.W.2d at 322. To do so, the director must know what information respondent had at the time he made the statement and from whom he obtained that information. Similarly, to determine whether respondent himself had serious doubts about the truth of his statement — the subjective actual malice standard — the director must assess the information available to respondent when he made the statement, including the identities of his sources and what those sources told him. Under either standard, evidence that respondent had no sources, that his sources were unreliable or uninformed, or that he misrepresented the information conveyed by his sources would be critical to proof of the requisite mental state.

Lawyer discipline cases involving Rule 8.2(a) and defamation cases applying the subjective actual malice standard confirm the relevance of the identities of respondent’s sources and the content of their communications to him. In Graham, we recognized the significance of the identity of a lawyer’s source and the information the source conveyed to the lawyer in evaluating an alleged violation of Rule 8.2(a). See id., 453 N.W.2d at 324. Similarly, defamation cases routinely acknowledge a plaintiffs need to discover the identity of a defendant’s source to establish actual malice. See Price v. Time, Inc., 416 F.3d 1327, 1346 (11th Cir.2005) (concluding that knowledge of the identity of a defendant’s source is necessary for the plaintiff to prove its case); Star Editorial, Inc. v. U.S. Dist. Court for the Cent. Dist. of Cal., 7 F.3d 856, 861 (9th Cir.1993) (“Proof of malice may be supported by establishing that the informant is unreliable, or that no informant even exists. Without knowing the identity of the informant, such proof is difficult to establish.”); Zerilli v. Smith, 656 F.2d 705, 714 (D.C.Cir.1981) (“Proof of actual malice will frequently depend on knowing the identity of the [defendant’s] informant, since a plaintiff will have to demonstrate that the informant was unreliable * * *.”); Carey v. Hume, 492 F.2d 631, 637 (D.C.Cir.1974) (noting that a plaintiff may prove actual malice by establishing that the defendant “had no reliable sources, that he misrepresented the reports of his sources, or that reliance upon those particular sources was reckless”). The United States Supreme Court, too, has noted that the identity of a defendant’s source bears directly on the issue of actual malice. See St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (“[R]ecklessness may be found where there are obvious reasons to doubt the veracity of the [defendant’s] informant or the accuracy of his reports.”). Thus, the identities of respondent’s sources are highly relevant to a central issue in the disciplinary investigation.

Furthermore, the director’s request is not disproportionate to the gravity or complexity of the ethical violation alleged. Respondent asserts that a violation of Rule 8.2(a) “verges on being a de mini-mus ethical violation.” But our conclusion in an earlier case, that a lawyer’s statements impugning the integrity of a judge in violation of Rule 8.2(a) warrant “at the very least a public reprimand,” belies respondent’s assertion. Graham, 453 N.W.2d at 325. Indeed, violation of Rule 8.2(a) has warranted suspension in the past. See In re Nathan, 671 N.W.2d 578, 586 (Minn.2003); Graham, 453 N.W.2d at 325.

In this case, the director does not seek cumulative information, nor would compliance with his request cause respondent undue hardship. The information sought is critical to the director’s investigation of charges of serious ethical misconduct and is not unnecessarily burdensome. Contrary to the district court’s observation, the director is not “exaggerating the proceedings” by seeking this information. If courts were routinely to deny the director discovery of a lawyer’s source when a credible source is asserted as a defense to charges of a violation of Rule 8.2(a), enforcement of the rule would become extremely difficult.

In support of his argument that the director’s request is unreasonable, respondent appears to assert a qualified journalist’s privilege against compelled disclosure of his sources based on the freedom of the press guaranteed by the First Amendment of the United States Constitution. Because respondent’s asserted privilege involves a question of constitutional law, we apply de novo review. See State v. Shattuck, 704 N.W.2d 131, 135 (Minn.2005).

A threshold question is whether respondent qualifies as a “journalist” for purposes of a First Amendment journalist’s privilege. Courts attempting to define the scope of the class benefiting from the journalist’s privilege have interpreted the class expansively to include anyone who “at the inception of the investigatory process, had the intent to disseminate to the public the information obtained through the investigation.” von Bulow ex rel. Auersperg v. von Bulow, 811 F.2d 136, 143 (2d Cir.1987); accord Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir.1993). Applying this standard, the Northern District of Illinois has held that an advocacy organization that publishes a report in support of legislation may assert a journalist’s privilege. Builders Ass’n of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702, at *4-5 (N.D.Ill. March 12, 1998) (concluding that “information gathered for political purposes is not outside the protections of the privilege if it was gathered with the intent to disseminate the information to the public”). Given this broad interpretation of the press, respondent may be entitled to assert a First Amendment journalist’s privilege because it appears that he contemplated public dissemination of the information conveyed by his sources at the time he received it.

Turning to the substance of the privilege itself, we note at the outset that the Supreme Court has never expressly held that journalists enjoy a First Amendment privilege against compelled disclosure of their sources. See Weinberger v. Maplewood Review, 668 N.W.2d 667, 671 n. 5 (Minn.2003). Nonetheless, the Court has recognized that the First Amendment affords some protection for news gathering because without such protection “freedom of the press could be eviscerated.” Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). In Branzburg, the Court held that a journalist does not possess a First Amendment privilege to refuse to answer questions posed during a good-faith grand jury investigation. Id. at 667, 707, 92 S.Ct. 2646. Seven years later, in Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), the Court held that the First Amendment does not provide a journalist a privilege against discovery of the editorial process when the journalist is a defendant in a defamation case and such discovery is relevant to the issue of actual malice. Id. at 155, 169-70, 175, 99 S.Ct. 1635.

Despite the Supreme Court’s holdings in Branzburg and Herbert, a majority of federal circuit courts have held that journalists have a qualified First Amendment privilege against compelled disclosure of their sources. See Shoen, 5 F.3d at 1292, 1292 n. 5. Courts have noted that the Supreme Court in Branzburg limited itself to the narrow issue of a reporter’s obligation to answer questions before a grand jury and did not decide whether reporters have a privilege against compelled disclosure in civil proceedings. See Zerilli, 656 F.2d at 712 n. 42; Baker v. F F Inv., 470 F.2d 778, 784 (2d Cir.1972). Courts recognizing the privilege have not settled on a single test, however, and the standard for overcoming the privilege varies significantly from court to court.

Respondent cites Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir.1972), in support of his assertion of a qualified journalist’s privilege. In Cervantes, the Eighth Circuit articulated a test for determining when a defendant journalist may be compelled to disclose confidential sources in a libel suit prior to a summary judgment ruling. Id. at 994. The court concluded that a plaintiff in a libel action must first show “cognizable prejudice” before a court will compel disclosure of a journalist’s sources. Id. The court indicated that cognizable prejudice exists, and compulsory disclosure is appropriate, when a plaintiff discovers evidence showing that the allegedly defamatory statements are “so inherently improbable that there are strong reasons to doubt the veracity of the defense informant or the accuracy of his reports” or uncovers evidence indicating that the defendant entertained serious doubts about the truth of his statements. Id.

We have not before recognized a First Amendment journalist’s privilege and have never adopted the standard set forth in Cervantes. However, resolution of this case does not require that we decide whether a First Amendment journalist’s privilege exists. Assuming, without deciding, that a First Amendment journalist’s privilege exists and that respondent is entitled to assert that privilege, we conclude that the director has overcome the privilege under the Cervantes standard— the sole journalist’s privilege test urged by respondent — by making a “concrete demonstration that the identity of [respondent’s] news sources will lead to persuasive evidence on the issue of malice.” Cervantes, 464 F.2d at 994. The director has presented evidence showing the inherent improbability of respondent’s statement that the incumbent judge’s case backlog was greater than that of all of the other judges in the district combined. In Cervantes, the Eighth Circuit noted that a showing of inherent improbability strengthens the case for compulsory disclosure of a journalist’s sources. Id. Here, the director notes that there were between 29 and 33 judges in the incumbent judge’s district when respondent’s statement was released. For the statement to have been true, the incumbent judge’s case backlog would have to have been approximately 30 times greater than the average case backlog of the other judges, an inherently improbable proposition.

Given the showing of inherent improbability and the “cognizable prejudice” to the director’s case if disclosure of respondent’s sources is not ordered, the director has satisfied the Cervantes standard for compelled disclosure of a journalist’s sources. We note that courts facing the assertion of a First Amendment journalist’s privilege by a defendant in a defamation case — a position analogous to that of the director in this case — have often emphasized the plaintiffs need for disclosure of the journalist’s sources and have frequently held that the plaintiff has overcome the privilege. E.g., Miller v. Trans-american Press, Inc., 621 F.2d 721, 727 (5th Cir.1980); Carey, 492 F.2d at 637-39; Garland v. Torre, 259 F.2d 545, 550 (2d Cir.1958). Because any First Amendment journalist’s privilege that respondent may be entitled to assert has been overcome by the director under the Cervantes standard, we decline to break new ground in our jurisprudence by, recognizing a First Amendment journalist’s privilege in this case. We are reluctant to articulate a new principle of constitutional law without the benefit of thorough briefing by the parties, particularly where the principle has not been firmly established by the Supreme Court, and federal courts of appeals differ as to the appropriate standard.

Our decision today does not leave journalists without any protection against compelled disclosure of their sources. The Minnesota Free Flow of Information Act, Minn.Stat. §§ 595.021-.025 (2004), provides a statutory privilege against compelled disclosure of a journalist’s sources. See Weinberger v. Maplewood Review, 668 N.W.2d 667, 672 (Minn.2003). However, respondent does not assert the statutory privilege, and we therefore do not analyze its application in this case.

In conclusion, we hold that the district court abused its discretion by finding that the director’s request was not reasonable under Rule 25(a) because the court did not consider the appropriate factors in evaluating the reasonableness of the request. Because the director seeks information that is rationally related to the charges of professional misconduct and because the request is not disproportionate to the severity of the charges, the director’s request is reasonable. ■ .

Reversed.

Concurring, ANDERSON, PAUL H., J.

Dissenting, ANDERSON, G. BARRY, and GILDEA, JJ.

ANDERSON, PAUL H., Justice

(concurring).

I concur in the decision of the majority, but write separately to note only a qualified agreement with the majority’s discussion of a First Amendment journalist’s privilege. I agree that within the procedural context of this case, respondent is not entitled to prevail upon assertion of a First Amendment journalist’s privilege. Nevertheless, I concur because I conclude that in a different context, I may well construe the First Amendment journalist’s privilege more broadly than does the majority. My need to concur is further amplified by the fact that, in light of our decision in Weinberger v. Maplewood Review, 668 N.W.2d 667 (Minn.2003) (Justice Helen Meyer dissenting, joined by Justice Paul H. Anderson), I do not share the majority’s confidence that the Minnesota Free Flow of Information Act as construed by our court leaves journalists sufficiently protected against improper demands to compel disclosure of their sources.

ANDERSON, G. BARRY, Justice

(dissenting).

The majority holds that the district court abused its discretion when analyzing whether to grant the director’s request that respondent reveal the identities of his sources. Furthermore, the majority concludes that the director’s request was reasonable and should have been granted. I agree with the standard the majority sets out for analyzing requests under Rule 25(a), Rules on Lawyers Professional Responsibility (RLPR) and that the district court’s analysis of this issue was flawed. Despite this, I respectfully dissent because my review of the record leads me to conclude that the director’s request was unreasonable.

As the majority states, when a court evaluates whether a Rule 25(a) request is reasonable, it “should ask whether the request is rationally related to the charges of professional misconduct or to a lawyer’s defense to those charges and whether the request is unduly burdensome in light of the gravity and complexity of the charges.” The director’s request for the identity of respondent’s sources must therefore be analyzed in light of the nature of the charges of professional misconduct against respondent. I agree with the majority that, in order to demonstrate that respondent violated Minn. R. Prof. Conduct 8.2(a), the director must show by clear and convincing evidence that respondent (1) made a false statement, (2) which concerned the qualifications or integrity of a judge, and (3) that respondent either knew this statement was false or acted with reckless disregard to its truth or falsity. The identity of respondent’s sources is principally related to the third element of a Rule 8.2(a) violation.

While I concede that the identity of the sources is clearly rationally related to the charges against respondent and respondent’s potential defenses, in light of information already available to the director for a case against respondent, I conclude that the director’s request is unreasonable and “disproportionate to the gravity and complexity of the alleged ethical violation! ].” See Rule 25(a), RLPR. Whether an objective standard or a subjective “actual malice” standard is used for Rule 8.2(a) violations, on this record the director has ample evidence to allege a violation of Rule 8.2(a). Respondent’s August 2002 statement, alleging that the incumbent judge had a “backlog of undecided and unfinished cases * * * larger than all of the other district judges combined” can be construed as inherently incredible in light of the fact that between 29 and 33 judges were in the incumbent judge’s district when the statement was released. Moreover, respondent concedes that he “modified” this statement the next month in a subsequent press release stating “[t]he problem with my opponent’s performance as a judge is that she doesn’t show up, and she doesn’t do the work. She has a high rate of absenteeism, and has a history of not making timely decisions and carrying a load of unfinished cases on her desk.” This modification provides further evidence to support an allegation of respondent’s knowledge or reckless disregard of the falsity of the August statement. Given this evidence, the district court did not err in denying the director’s request to learn the identity of respondent’s sources. I would affirm the district court although on other grounds.

GILDEA, Justice

(dissenting).

I join the dissent of Justice G. Barry Anderson.

      . Pursuant to Rules 25 and 20(a), Rules on Lawyers Professional Responsibility, respondent's identity has been kept confidential.

      . Respondent was denied access to the cases-under-advisement records pursuant to Rule 5 of the Rules of Public Access to Records of the Judicial Branch (amended 2005).

      . Much of respondent’s brief is directed at the merits of the allegation that he violated Rule 8.2(a). However, the merits of the charges against respondent are not before us because no petition for disciplinary action has been filed. Thus, we do not address respondent's arguments regarding whether his statement is punishable under Rule 8.2(a).

      . While Rule 8.2(a) does not actually specify that a statement must be false to be punishable, the comments to the rule and our case law clearly indicate that the rule was meant to prohibit only false statements. See Minn. R. Prof. Conduct 8.2(a) cmt. — 2005; In re Graham, 453 N.W.2d 313, 320-21 (Minn. 1990).

      . Other jurisdictions have similarly concluded that the appropriate standard for disciplining an attorney for making false statements about a judge or a candidate for judicial office is an objective one. See, e.g., U.S. Dist. Court for the E. Dist. of Wash. v. Sandlin, 12 F.3d 861, 867 (9th Cir.1993); In re Chmura, 461 Mich. 517, 608 N.W.2d 31, 44 (2000); In re Holtzman, 78 N.Y.2d 184, 573 N.Y.S.2d 39, 577 N.E.2d 30, 34 (1991).

      . We note that Graham did not involve core political speech during an election campaign. We have never held that an objective standard applies under Rule 8.2(a) to statements made during a political campaign. Because resolution of this issue is not necessary in this case, we leave decision of the issue for another day.

      . It is perhaps possible that the director could meet his burden of proof simply by demonstrating the inherent incredibility of respondent’s statement. We agree that certain statements may be so incredible that no one could believe them to be true, even if assured of their veracity by inside sources. However, on this record we cannot conclude that respondent's statement falls into this narrow category of wildly implausible statements.

      . See, e.g., Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir.2000) ("[W]e adopted the following three-part test: '(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.’ ”) (quoting LaRouche v. Nat’l Broad. Co., 780 F.2d 1134, 1139 (4th Cir.1986)); Gonzales v. Nat’l Broad. Co., 194 F.3d 29, 33 (2d Cir.1999) (" '[Djisclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.' ”) (quoting In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir.1982)); Bruno Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-97 (1st Cir.1980) (setting forth a balancing test in which a court weighs "the potential harm to the free flow of information * * * against the asserted need for the requested information"); Riley v. City of Chester, 612 F.2d 708, 716-17 (3d Cir.1979) (articulating a balancing test in which a court examines the relevance and necessity of the information, the type of case in which the information is sought, and the availability of other sources of the information); Mitchell v. Superior Court of Marin County, 37 Cal.3d 268, 208 Cal.Rptr. 152, 690 P.2d 625, 632-34 (1984) (describing a balancing test in which a court weighs (1) "the nature of the litigation and whether the reporter is a party," (2) the relevance of the information to the plaintiff's case, (3) whether the plaintiff has exhausted alternative sources of the information, (4) the importance of protecting confidentiality in the particular case, and (5) whether the plaintiff has made a pri-ma facie showing of falsity).

      . Rather, we have expressed disagreement with those courts that have interpreted Branz-burg as articulating a First Amendment journalist’s privilege in the context of criminal proceedings. State v. Turner, 550 N.W.2d 622, 627 (Minn.1996).

      . Respondent does not urge our adoption of, or even discuss, the journalist's privilege tests formulated by courts other than the Eighth Circuit in Cervantes. Without briefing on these tests, we cannot properly analyze their application in this case.

      . Respondent himself admits that this interpretation of his statement is "something no one would believe." However, respondent urges a different interpretation of the statement. Respondent argues that, for purposes of his statement, "combined” means "average," and, thus, his statement simply indicated that the incumbent judge's case backlog was greater than the average case backlog of other judges in the district. Respondent does not cite any authority for the proposition that "combined” means "average,” nor does he explain why he did not simply use the word "average," if that was his intended meaning.

      . Our conclusion that respondent’s statement is inherently improbable such that . disclosure of his sources is proper under Cervantes should not be equated with a conclusion that respondent's statement is so incredible that , he necessarily must have entertained serious doubts about its accuracy.

      . Although I conclude that the evidence here is sufficient for the director to allege a violation of the applicable rule, that conclusion should not be construed as an endorsement of the wisdom of disciplinary action under these facts. The decision to pursue disciplinary action is a discretionary decision by the director, see Rule 7(d), RLPR, and that discretion is informed by many factors including but not limited to the gravity of the alleged offense, likely defenses, and the appropriate use of office resources.

      . At oral argument, respondent requested that this matter be remanded to the district court with instructions for the court to conduct an examination, in camera, of respondent’s two sources. After the district court has determined whether the sources were credible, respondent suggests that the district court would decide, or at least recommend to this court, whether the investigation against respondent should be dismissed. Because no petition for disciplinary action has been filed, it is premature to address whether an in camera review of respondent’s sources is appropriate. Similarly, because it is premature, I would decline to address respondent's challenges based on First Amendment freedom of speech grounds.


source: Caselaw Access Project

author:
PAGE, Justice.
      HANSON, Justice MEYER, Justice

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Margaret THOMPSON, Respondent.
    No. A04-1808.
    Supreme Court of Minnesota.
    Sept. 7, 2006.

      Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for Appellant.
    Glen P. Bruder, Mitchell, Bruder, & Johnson, Edina, MN, for Respondent.
    John M. Stuart, State Public Defender, Benjamin J. Butler, Roy G. Spurbeck, Assistant State Public Defenders, Minneapolis, MN, for Amicus Curiae, Minnesota State Public, Defender’s Office.
   OPINION

PAGE, Justice.

Respondent Margaret Louise Thompson pleaded guilty to nine counts of theft by swindle over $35,000. The district court sentenced Thompson to an executed term of 114 months in prison. One hundred and fourteen months is a double durational upward departure from the presumptive sentence under Minnesota’s Sentencing Guidelines. Thompson challenged her sentence on appeal, arguing the upward sentencing departure violated her right to a jury trial on sentencing enhancement factors as required under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The court of appeals agreed and reversed Thompson’s sentence. We granted the state’s petition for further review. Because we conclude that Thompson voluntarily and knowingly waived her right to have a jury make findings on sentencing enhancement factors supporting the upward departure based on proof beyond a reasonable doubt, we reverse the court of appeals.

Thompson worked at Rueben Lindh Family Center, a nonprofit public service agency, for eight years and became its finance manager. On August 7, 2003, Rue-ben Lindh terminated Thompson’s employment for embezzling over $600,000. On February 3, 2004, the state filed a complaint against Thompson, charging her with nine counts of “theft by swindle aggregated over $35,000” in violation of Minn.Stat. § 609.52, subds. 2(4), 3(1), (5) (2002). Each count alleged that Thompson had “obtained property or services in the aggregated value in excess of Thirty-Five Thousand Dollars ($35,000) from [Rueben Lindh] by swindling the company using artifice, trick, device or other means.”

According to the complaint, Thompson stole the money by manipulating terminated employees’ payroll accounts and by obtaining fraudulent health care expense reimbursements. The complaint also contained detailed descriptions of Thompson’s schemes and a chart itemizing specific transactions related to each count charged.

On April 14, 2004, as a result of an agreement reached between Thompson and the state, Thompson submitted a petition to enter a plea of guilty. The petition stated that Thompson had entered into a “straight plea” with no agreement on sentencing. In the petition, Thompson acknowledged that she had been informed by her attorney and understood, among other things, “[t]hat the maximum penalty the court could impose for this crime * * * is imprisonment for 20 years and/or a fine of $100,000 (per count).” Thompson further acknowledged that she understood that she had the right to either a jury trial or a court trial and that at such a trial she had the right to confront the witnesses against her, the right to subpoena witnesses on her behalf, the right to testify or to refuse to testify as she so chose, and the right to request the suppression of certain evidence. With that knowledge, she indicated that she was waiving her right to a trial.

At the plea hearing, Thompson pleaded guilty to each of the counts in the complaint. In doing so, she again acknowledged, after inquiry by counsel and by the district court, that she had been informed of her rights, that she understood those rights, and that she was voluntarily waiving her right to a jury trial and pleading guilty to each of the counts charged.

With respect to the factual basis for her plea, Thompson admitted that she had been employed as the finance manager at Rueben Lindh, that she had control over the employee payroll, and that during the relevant time period she “us[ed] payroll accounts for discharged employees and processed] payroll checks under those employee accounts but funnelled] the money into [her] own bank accounts,” as well as “overpaid] [her]self cafeteria plan benefits.” She further acknowledged that she had reviewed each allegation in the complaint, including the chart itemizing the specific transactions and amounts detailed in each count of the complaint, and that the chart correctly reflected her thefts related to counts 1 through 8. With respect to count 9, Thompson stated that she disagreed with the total amount of the thefts alleged, but acknowledged that the amount she took exceeded the $35,000 statutory amount required for conviction on that count. Thompson also explained to the court how she took the money and admitted that she took the money with the intent to defraud Rueben Lindh by using a swindle.

At the conclusion of the plea hearing, the prosecutor informed the district court that the state would be seeking an upward sentencing departure to Í14 months. Counsel for Thompson indicated that Thompson would oppose an upward departure. Thompson’s sentencing hearing took place on June 25, 2004, the day after the United States Supreme Court issued its decision in Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. At the start of the hearing, the following exchange occurred:

THE COURT: The first issue is a legal issue with respect to the Supreme Court decision — United States Supreme Court decision that was issued yesterday, Blakely [v.] Washington, and there the Supreme Court declared unconstitutional a sentence' — a determinant [sic] sentencing system where there was an upward departure where the defendant had not acknowledged or put in a factual basis or waived jury trial rights essentially. It’s hard to summarize that decision in one sentence, but essentially what the Supreme Court decision written by Justice Scalia said is that defendants, if they wish to have a jury trial right on the question of whether there is proof beyond a reasonable doubt for a factual basis or a state’s request or — in the Blakely case or the Court’s request — Court’s decision for an upward departure, they are entitled — defendant is entitled to have that matter decided by a jury. We have discussed this matter quite extensively in chambers this afternoon.
[Counsel], do you wish to address that question?
[COUNSEL FOR THOMPSON]: Yes, I do, Your Honor. Following our discussion in chambers, I had an opportunity to discuss the Blakely decision with Ms. Thompson. Quite frankly, I think it’s a somewhat complicated concept to explain in [a] simple manner[ ] to — fashion to a lay person, but Ms. Thompson has — I believe that I have been able to do so, and Ms. Thompson has indicated to me that she does not wish to have a jury finding as to the elements that we discussed that she has already admitted to as part of her guilty plea and that, to the extent she needs to waive that right in this proceeding, she is willing to do so.
THE COURT: Ms. Thompson, do you have any questions about this particular issue that you discussed with your attorney?
[THOMPSON]: No, your honor.
THE COURT: Do you wish a jury to decide the question of whether there is a factual basis for a sentencing departure, or do you wish me to decide that question?
[THOMPSON]: I would wish you to decide it, not the jury.
THE COURT: Do you understand you have a right for a jury to decide that proof beyond [sic] a reasonable doubt, and you are waiving that right or giving up that right, is that correct?
[THOMPSON]: Yes, that’s correct.

After hearing victim impact statements from several of Thompson’s former coworkers and the arguments from counsel for Thompson and the state, the district court sentenced Thompson to 114 months’ imprisonment. The court, explaining the aggravating sentencing factors supporting the upward durational sentencing departure, stated as follows: “the record and the proof establishes beyond a reasonable doubt that this is a major economic offense as defined by the sentencing guidelines and by Minnesota Statute.” The court further noted that: (1) the counts for which Thompson was charged involved hundreds of incidents, including many more than those necessary to aggregate the offenses beyond the $35,000 threshold; (2) the amount taken in each of the counts for which there was a departure was substantially greater than the $35,000 threshold — more than double in all but one instance; (3) Thompson’s actions demonstrated a “high degree of sophistication and planning”; and (4) Thompson’s actions violated “trust and confidence” in the “fiduciary relationship as the person who managed the books and handled the money and was entrusted to do that by the organization.”

In reversing Thompson’s sentence, the court of appeals concluded that Thompson did not knowingly, voluntarily, and intelligently waive her right to a jury trial on the aggravating sentencing factors. State v. Thompson, 694 N.W.2d 117 (Minn.App.2005). Specifically, the court stated that under Minn. R.Crim. P. 26.01, subd. 3, which governs the waiver of a jury trial on stipulated facts, a defendant must explicitly acknowledge and waive, either in writing or orally on the record, her right to testify, to have prosecution witnesses testify in open court in her presence, to question the prosecution witnesses, and to require any favorable witnesses to testify in her behalf. Thompson, 694 N.W.2d at 122. The court held that, although Thompson orally waived the right to a jury trial, she did not waive either in writing or orally on the record the specific rights set out in Rule 26.01, subdivision 3, and, as a result, the sentence imposed violated Thompson’s right to a jury trial on the aggravating factors. 694 N.W.2d at 123.

On appeal to this court, the state makes a number of arguments. The state argues that Thompson failed to preserve any claim under Blakely because she did not raise a Blakely claim in the district court. The state also argues that Thompson waived her right to have a jury determine the existence of sentencing enhancement factors supporting the upward durational departure. Finally, the state argues that Thompson’s sentence as imposed by the district court was constitutional and did not violate Thompson’s right to have a jury trial under Blakely because the sentencing departure was based solely on facts admitted by Thompson as part of her guilty plea.

I.

We first address the state’s argument that Thompson failed to preserve the Blakely issue because she did not raise it in the district court. We find this argument both curious and lacking in.merit. At the sentencing hearing, before the district court imposed its sentence, an issue arose with respect to compliance with the Supreme Court’s Blakely decision, which had been issued the day before. The issue was resolved by Thompson’s on-the-record waiver of her right to have a jury determine sentencing enhancement factors. Thus, the Blakely issue was squarely before the district court. In that the Blakely issue was squarely before the , district court, it is sufficiently preserved for appeal.

II.

We next address the state’s argument that Thomson’s on-the-record waiver of her right to have a jury determine the existence of sentencing enhancement factors supporting the upward sentencing departure was valid. According to the state, this issue is governed by Rule 26.01, subdivision l(2)(a), of the Minnesota Rules of Criminal Procedure, which provides that a criminal defendant with court approval “may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.” In response, Thompson argues that a jury trial for purposes of establishing sentencing enhancement factors is more akin to a trial on stipulated facts and therefore the waiver of the right to a jury trial is governed by Minn. R.Crim. P. Rule 26.01, subd. 3, which provides that for such trials

the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and waiver shall be in writing or orally on the record.

Minn. R.Crim. P. 26.01, subd. 3. Relying on Rule 26.01, subdivision 3, Thompson argues, and the court of appeals held, that because she did not, either in writing or orally on the record, acknowledge and waive the rights set out in that rule, her waiver of the right to a jury trial on sentencing enhancement factors was invalid.

As we explained in State v. Verschelde, 595 N.W.2d 192, 195 (Minn.1999), a trial on stipulated facts is a limited procedure that allows a “defendant to enter a plea of not guilty, waive his right to a jury trial, and then stipulate to the prosecution’s case.” (Emphasis added.) In explaining the rationale for allowing that procedure, we stated that:

The Lothenbach court recognized that Minnesota, unlike some other states, did not allow a defendant to make a conditional guilty plea. Therefore, to preserve the right to appeal a pretrial issue, a defendant was required to plead not guilty, and then put himself and the state through a jury trial, even if no material facts were in dispute. To respond to this inefficient use of judicial resources, the Lothenbach court set forth a procedure that preserves a defendant’s right of appeal and avoids an otherwise unnecessary jury trial. The Lothenbach procedure calls “for the defendant to enter a plea of not guilty, waive his right to a jury trial, and then stipulate to the prosecution’s case.” Thus, a Lothenbach stipulation can benefit a defendant by preserving the defendant’s right of appeal.

Verschelde, 595 N.W.2d at 194-95 (discussing State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980)) (internal citations omitted). That rationale does not carry over to situations such as here in which the defendant has admitted sufficient facts to establish the elements of the charged offense, pleaded guilty, and waived all nonjurisdic-tional claims.

Here, Thompson informed the district court that she wanted the court, and not a jury, to decide whether there was a factual basis for a sentencing departure. Thompson, however, did not stipulate to facts for the purpose of determining sentencing enhancement factors. Consequently, the district court engaged in judicial fact-finding and found several aggravating factors, which led it to the conclusion that Thompson’s offense was “a major economic offense.” This procedure of determining sentencing enhancement factors is more akin to a bench trial regarding the elements of an offense than to a trial based on stipulated facts. We therefore conclude Thompson’s waiver of her right to a jury trial on sentencing enhancement factors is governed by Minn. R.Crim. P. 26.01, subd. l(2)(a).

Having concluded that Rule 26.01, subdivision l(2)(a), governs, we now turn our attention to whether Thompson’s waiver in this case complied with that rule. In State v. Dettman, we held that a defendant’s waiver of the right to a jury determination of aggravating sentencing factors must be made knowingly, voluntarily, and intelligently. 719 N.W.2d 644, 651, 2006 WL 2290986, at *5 (Minn. 2006). A waiver made in compliance with Rule 26.01, subdivision l(2)(a), meets the knowing, voluntary, and intelligent requirement.

Specifically, at the beginning of her sentencing hearing, the court informed Thompson of the Blakely decision and of her right to a jury trial on sentencing enhancement factors. Thompson’s counsel then informed the court that he was able to successfully explain the Blakely issue to Thompson and that she was willing to waive her right to a sentencing jury “to the extent she needs to waive that right in this ;proceeding.” (Emphasis added.) The court then asked Thompson, on the record in open court, if she had any questions about the Blakely issue. Thompson responded that she did not. Thompson was then asked whether she wanted a jury or the court to decide whether there was a factual basis for a sentencing departure. She responded that she wanted the court to decide that question, not a jury. The court then asked, “Do you understand you have a right for a jury to decide that proof [sic] beyond a reasonable doubt, and you are waiving that right or giving up that right, is that correct?” to which Thompson replied, ‘Tes. That’s correct.” Based on the above record, we conclude that Thompson’s waiver of the right to a jury trial on sentencing enhancement factors complied with Rule 26.01, subdivision l(2)(a), and was therefore knowing, voluntary, and intelligent.

We turn our attention next to whether the enhanced sentence imposed by the sentencing court comports with the requirements of the sentencing guidelines. We review a trial court’s decision to depart from the guidelines’ presumptive sentence for an abuse of discretion. State v. Shattuck, 704 N.W.2d 131, 140 (Minn.2005). “Substantial and compelling circumstances must be present in the record to justify departures from the applicable presumptive sentences in the Minnesota Sentencing Guidelines.” State v. McIntosh, 641 N.W.2d 3, 8 (Minn.2002); see also State v. Geller, 665 N.W.2d 514, 516 (Minn.2003).

Under the sentencing guidelines, a court may impose an upward sentencing departure on a defendant who commits a major economic offense. “Major economic offense” is defined as a nonphysical economic offense that includes two or more of the five listed aggravating factors found in the sentencing guidelines. Minn. Sent. Guidelines II.D.2.b(4); State v. Carr, 361 N.W.2d 397, 402 (Minn.1985). The listed aggravating factors are:

(a)the offense involved multiple victims or multiple incidents per victim;
(b) the offense involved an attempted or actual monetary loss substantially greater than the usual offense or substantially greater than the minimum loss specified in the statutes;
(c) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;
(d) the defendant used his or her position or status to facilitate the commission of the offense, including positions of trust, confidence, or fiduciary relationships; or
(e) the defendant has been involved in other conduct similar to the current offense as evidenced by the findings of civil or administrative law proceedings or the imposition of professional sanctions.

Minn. Sent. Guidelines II.D.2.b(4).

Here, in explaining its upward sentencing departure, the sentencing court stated:

This is a departure with respect to counts 5, 6, 7, 8 and 9, all of the 57-month commitment-to-prison offenses. * * * The reason I am doing that is that the record and the proof establishes beyond a reasonable doubt that this is a major economic offense as defined by the sentencing guidelines and by Minnesota Statute, that here there were multiple incidents beyond what was necessary for the aggregation to the theft over $35,000. * * * [I]n the last count there were hundreds of incidents that could have been charged as many, many thefts over-2500s. There were many, many, many incidents beyond what was needed either for theft over 2500 or theft over 35,000. That’s true in each of these counts even without the multiple incidents. I mean, I think where matters are aggravated, to take it up to the next level of seriousness, there have to be more incidents than are necessary to aggravate — aggregate the matter.
And while the statute doesn’t say that, I think that it’s necessary and required under the law since the Court is required to consider factors other than what the state has to prove at sentencing, and I think that there are many incidents beyond what was needed to be proved at sentencing in each of the counts where there is a departure.
The amount taken is substantially greater than $35,000 incident [sic]. In most of the matters — counts where there is a departure the amount taken was more than * * * double, the amount that was taken was well into the $70,000 range.
Secondly, there was a high degree of sophistication and planning used in this incident. * ⅜ * by putting people on the payroll, former employees, and then immediately taking them off and hiding that and having it evade auditors’ or anybody else’s detection for a six-year period, that that level of sophistication and planning is well beyond a standard theft by swindle.
And lastly, I think there is a sufficient basis to establish beyond a reasonable doubt this was a violation of trust and confidence in your fiduciary relationship as the person who managed the books and handled the money and was entrusted to do that by the organization.

(Emphasis added.) Thus, the sentencing court relied on four of the aggravating factors specified in the guidelines — multiple incidents, monetary loss substantially greater than the minimum loss specified in the statute, high degree of sophistication or planning, and use of position of trust to facilitate the commission of the offense — to support its conclusion that Thompson committed a major economic offense. We will address each of the factors in turn. Under the guidelines, if any two of the guidelines’ factors relied on by the sentencing court for its major economic offense finding are supported by the record, we must affirm the sentence imposed by the sentencing court. See Minn. Sent. Guidelines II. D.2.b(4) (stating that a “major economic offense” includes “two or more of the circumstances listed”) (emphasis added).

With respect to multiple incidents, the sentencing court found that Thompson committed “multiple incidents beyond what was necessary for the aggregation to the theft over $35,000.” Thompson was charged by complaint with nine counts of theft by swindle, each over $35,000 in the aggregate. Each count set out in detail each incident of theft. Attached to the complaint was a chart itemizing each specific transaction underlying each of the nine theft counts with which Thompson was charged. With the exception of the total amount alleged in count 9, Thompson admitted to the accuracy of each transaction alleged in each count and pleaded guilty based on the specific facts alleged in each count. The district court found Thompson guilty and convicted and sentenced her on each count as alleged in the complaint.

In State v. Osborne, 715 N.W.2d 436 (Minn.2006), we pointed out that “conduct underlying one conviction for which a defendant was sentenced cannot be used to support an upward sentencing departure for a separate conviction.” Id. at 446. This is because “a defendant should not be punished twice for the same conduct.” Id. In this case, Thompson’s convictions and sentences were based on all of the individual transactions. Accordingly, the sentencing court’s use of these transactions again to support its major economic offense finding amounted to using the underlying conduct from one conviction for which Thompson was convicted to support the upward departures for separate convictions. Therefore, it was an abuse of discretion for the sentencing court to rely on multiple incidents as a guidelines’ aggravating factor.

For the same reason, it was also an abuse of discretion for the district court to use, as a guidelines’ aggravating factor, the fact that the monetary loss involved was substantially greater than the minimum specified in the statute. Moreover, a sentencing court may not base an upward durational departure on factors that the legislature has already taken into account in determining the degree of seriousness of the offense. Shattuck, 704 N.W.2d at 140. In other words, “elements of an offense cannot be used as aggravating factors to impose an upward sentencing departure for that same offense.” Osborne, 715 N.W.2d at 446 (citing State v. Peterson, 329 N.W.2d 58, 60 (Minn.1983)). Here, Thompson pleaded guilty to nine counts of “theft by swindle aggregated over $35,000” as alleged in the complaint. Because of the detailed nature of each count within the complaint and because the district court found Thompson guilty beyond a reasonable doubt on each count as alleged in the complaint, use of this factor amounted to using a factor necessarily used in convicting Thompson on each count to support the finding that Thompson engaged in a major economic offense. That sort of double counting is impermissible. Id.

The district court did not err, however, when it based its major economic offense finding on its findings that Thompson’s offense involved a “high degree of sophistication and planning” and that Thompson used a position of “trust” and “confidence” and her “fiduciary relationship” to commit the offenses. First, as discussed earlier, because Thompson waived her right to a jury trial on sentencing enhancement factors and consented to the court making findings on those factors, the sentencing court here had the authority to make such findings. Moreover, there was ample evidence from which the judge, as fact-finder, could find beyond a reasonable doubt that Thompson’s offenses involved a high degree of sophistication and planning and that she used a position of trust, confidence, or fiduciary relationship to facilitate her offenses. Thompson acknowledged during her guilty plea that she had been employed as a finance manager at Rueben Lindh and was responsible for the employee payroll. Further, Thompson admitted that she “us[ed] payroll accounts for discharged employees and processed] payroll checks under those employee accounts but funnel[ed] the money into [her] own bank accounts,” as well as “overpaid] [herjself cafeteria plan benefits.” As the district court correctly pointed out, “putting people on the payroll * * * and then immediately taking them off and hiding that and having it evade auditors’ or anybody else’s detection for a six-year period, that that level of sophistication and planning is well beyond a standard theft by swindle.”

Because the sentencing court’s findings that Thompson’s offenses involved a high degree of sophistication or planning and that Thompson used a position of trust, confidence, or fiduciary relationship to commit the charged offenses are fully supported by the record, we conclude that the sentencing court did not abuse its discretion when it found, under the sentencing guidelines, that Thompson committed a major economic offense. Therefore, the sentence imposed by the trial court must be affirmed.

Reversed,

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

HANSON, Justice

(dissenting).

Although I agree with the conclusion of the majority that Thompson waived her right to a jury trial on sentencing factors, I conclude that Thompson’s consent to have the district court determine those factors was ineffective to the extent that it did not include the possibility that this court could later reject some of the factors relied on by the district court but nevertheless affirm the same sentencing departure by an independent review of the record and a weighing of other sentencing factors. Accordingly, I would vacate Thompson’s sentence and remand for resentencing to allow the district court to determine the appropriate weight to be given to the remaining departure factors and to determine the appropriate level of departure.

I recognize that our pre-Blakely case law reflected a willingness by this court to independently examine the record to determine whether there are legitimate reasons for a departure where the reason given by the district court is inadequate or improper. Williams v. State, 361 N.W.2d 840, 844 (Minn.1985). But I believe that Blakely has changed the landscape sufficiently to require us to reconsider that practice, both in general and in this case.

As to the general use of the practice, Blakely has perhaps sharpened our appreciation of the dynamics of a sentencing departure. When we assumed that the district court could perform the fact finding function, we had no occasion to reflect on the additional discretion that the district court possesses to determine whether and precisely how to depart after finding that there were aggravating facts. Now that Blakely has clarified that the fact finding function must be done by the jury, unless waived by the defendant, the other function of the district court, to exercise discretion in determining whether and how to depart, comes into clearer focus.

In other words, even if a sentencing jury is used and it finds aggravating facts, the decisions to depart and by how much to depart are not automatic, but call upon the district court to exercise discretion, based on the court’s broader experience in sentencing and ability to compare the facts of the current case, as found by the jury, with the facts of other similar cases. Of course, the district court has no discretion to depart unless the jury finds aggravating facts, but conversely the district court has discretion not to depart, or to decide precisely how much to depart, where the jury finds aggravating facts. In my view, this discretion was not altered by Blakely.

Given this better clarity on the discretionary role of the district court, I conclude that the practice of this court of independently examining the record and weighing the facts to sustain a particular departure that was based on both proper and improper factors is generally unwise and should be discontinued. Instead, where this court concludes that some of the aggravating factors relied on by the district court were erroneous or improper, it should remand for resentencing to allow the district court to exercise the necessary discretion to decide on the proper sentence, based on the district court’s evaluation of the remaining aggravating factors.

It is true, as noted by the majority, that the district court’s finding that Thompson committed a major economic offense, which we conclude was supported by the minimum of two qualified aggravating factors, conferred on the district court the discretion to impose a double upward sentencing departure. But that departure was not made mandatory or automatic under the Minnesota Sentencing Guidelines. Thus, although the district court could have reached the same departure decision for a major economic offense supported by two qualified aggravating factors as it did when it believed its finding of a major economic offense was supported by four qualified aggravating factors, we cannot be sure that it would have because that decision is left to the district court’s discretion. In other words, the finding of a major economic offense, whether made by the court or a jury, does not end the matter, and the district court must then exercise discretion to decide whether to depart and, if so, by how much.

Moreover, where, as here, the defendant has waived the right to a sentencing jury, the question arises whether the defendant’s consent to fact finding by the district court includes an independent review of the record and the exercise of discretion by this court. The advisory given to Thompson by the district court, to enable her to make a knowing, intelligent, and voluntary waiver, did not include any mention of that possibility. And the consent given by Thompson was specific to the district judge — “I wish you to decide it, not the jury.”

On this record, Thompson’s consent was not broad enough to encompass our independent weighing of the aggravating factors. Further, her consent contemplated that the district court, after finding the facts, would exercise discretion in deciding whether and how to depart. Because we can only speculate about how the district court might have exercised that discretion, based on two instead of four aggravating factors, and because we are not engaged in the day to day function of criminal sentencing, we should not presume that the district court would exercise its discretion in precisely the same manner, but should remand to the district court for resentenc-ing.

MEYER, Justice

(dissenting).

I join in the dissent of Justice Hanson.

      . Specifically, the district court sentenced Thompson as follows: count 1 — 21 months; count 2 — 27 months; count 3 — 39 months; count 4 — 45 months; count 5 — 114 months; count 6' — 114 months; count 7 — 114 months; count 8 — 114 months; and count 9 — 114 months. The district court imposed each of the sentences to run concurrent to the others.

      . The state’s failure-to-preserve argument also fails based on our recent decision in State v. Osborne, 715 N.W.2d 436 (Minn.2006). In Osbome, we held that a defendant's rights under Blakely cannot be forfeited by mere silence. 715 N.W.2d at 443.

      . While Thompson did not, at her sentencing hearing, acknowledge that she was waiving each of the rights set out in Minn. R.Crim. P. 26.01, subd. 3, it should be noted that at her plea hearing, which took place less than three months before the sentencing hearing, Thompson acknowledged in the plea petition and/or orally on the record: that she was represented by counsel; that her counsel had explained her rights to her; that she had read the complaint and understood the charges against her; that she was mentally competent; that she knew the maximum sentence she was facing; and that she was aware of and understood her right to either testify or remain silent as she chose. She also indicated that she understood that her right to a jury trial included the right to: a trial by a 12-person jury; the presumption of innocence; confront the witnesses against her; call witnesses on her own behalf; and have guilt proved beyond a reasonable doubt. Although our conclusion that Thompson’s waiver of her right to a jury trial on sentencing enhancement factors was knowing, voluntary, and intelligent, is not based on Thompson’s acknowledgments and understanding of her rights at the time of her guilty plea, her ac-knowledgements and understanding at that time, on the record presented here, further support that conclusion.

      . The dissent's concern that Blakely calls into question the practice we adopted in Williams v. State, 361 N.W.2d 840 (Minn.1985), which permits appellate courts to examine the record to determine whether the reasons given by the trial court justify the departure, although legitimate, is not implicated by our decision in this case. And, while we agree with the dissent that, in light of Blakely, we may need, at some point, to consider our past "willingness * * * to independently examine the record to determine whether there are legitimate reasons for a departure where the reason given by the district court is inadequate or improper,” we need not do so here because our decision in this case does not involve such a practice. Contrary to the dissent’s assertion, in affirming Thompson's sentence we have not engaged in any "independent weighing of the aggravating factors” or "exercise of discretion.” Rather, we affirm the sentence because, as a matter of law, the sentencing court, properly applying the sentencing guidelines, found that Thompson committed a major economic offense.
      We have consistently held that an upward sentencing departure is appropriate if the trial court's reason for departure was based on the factors specified in the sentencing guidelines and if the extent of the departure was "limited to that justified by the reason for departure.” State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981); see also State v. Evans, 311 N.W.2d 481, 483 (Minn.1981). In this case, the sentencing court imposed the upward sentencing departure based on the major economic offense sentencing factor, and not, as the dissent asserts, on the underlying individual aggravating factors. Absent an abuse of discretion by the sentencing court in finding that Thompson’s offense constituted a major economic offense, we will not reverse the court’s sentence. See State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). Further, because the departure imposed is within the general permissible range, the sentencing court did not abuse its discretion in setting the length of departure. See Perkins v. State, 559 N.W.2d 678, 692 (Minn.1997) (stating that our court has followed a general rule that when aggravating factors justify upward departure "the upper limit will be double the presumptive sentence length”) (quoting Evans, 311 N.W.2d at 483). Thus, the dissent's proposition that we should "vacate Thompson's sentence and remand for resentencing to allow the district court to determine the appropriate weight to be given to the remaining departure factors and to determine the appropriate level of departure” is inconsistent with our case law and not mandated by Blakely.

      We also note that, because Thompson knowingly, voluntarily, and intelligently waived her right to a jury trial on the sentencing enhancement factors and because our conclusion that the sentencing court's finding that Thompson had committed a major economic offense is supported by the record and did not involve the "independent weighing of the aggravating factors” or "the exercise of discretion” by this court, the dissent's concern as to whether Thompson consented to "our independent weighing of the aggravating factors” is unfounded. Here, there simply is no question that as defined under II.D.2.b(4) of the guidelines, the presence of the two factors found by the sentencing court — the high degree of sophistication and planning, and the use of a position of trust, confidence, and the fiduciary relationship — is sufficient to support the conclusion that Thompson's offense constitutes a major economic offense.
      Moreover, from the guidelines' inception, we have reviewed sentencing departures to determine whether there is adequate record support for a finding that a particular departure factor- — here, commission of a major economic offense — exists. This appellate function remains the same after Blakely, whether the finding is made by a jury or, as here, by a judge following the defendant’s valid waiver of a jury trial on the issue. It would be curious indeed to hold, as the dissent suggests, that a defendant who validly waives a jury as to sentencing enhancement factors and appeals from the district court's imposition of an enhanced sentence is insulated from an appellate court performing this basic kind of sufficiency review on the ground that
      she did not consent to it.


author: TOUSSAINT, Chief Judge.

text:
    Darrell T. PETERSON, Respondent, v. Arthur B. JOHNSON, et al., defendants and third party plaintiffs, Appellants, All heirs and devisees of any of the above named persons who are deceased, et al., Defendants, v. Lake State Federal Credit Union, f/k/a Moose Lake Federal Credit Union, et al., Third Party Defendants.
    No. A05-1450.
    Court of Appeals of Minnesota.
    Aug. 8, 2006.

      William T. Helwig, John M. Gassert, Rudy Gassert, Yetka & Pritchett, Cloquet, MN, for respondent.
    Gary A. Van Cleve, Molly McKee, Lar-kin Hoffman Daly & Lindgren Ltd., Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; PETERSON, Judge; and MINGE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellants Arthur B. Johnson and Mary Ann Johnson argue that the district court erred in failing to rule that respondent Darrell T. Peterson’s claim that the transaction between the parties constitutes an equitable mortgage is time barred and in granting summary judgment on the claims. Peterson argues that the district court erred by failing to recalculate the balance and interest due on the mortgage. The Johnsons moved to strike portions of Peterson’s brief and appendix; Peterson moved to supplement the record with the materials in question.

Because Minn.Stat. § 541.03 (2004) governs a claim to have a conveyance absolute on its face declared an equitable mortgage and because the district court did not err by finding an equitable mortgage, we affirm on those claims. Because the district court did not calculate the balance due and the applicable interest on the mortgage, we remand for that calculation. Peterson’s motion to supplement is granted; the Johnsons’ motion to strike is denied.

FACTS

In 1986, Peterson and his then-wife Kathleen Peterson owed debts on their farm homestead property. In August 1986, Peterson’s uncle and aunt, the John-sons, wrote Peterson a letter proposing to give Peterson $9,200 to pay the debts. The letter states that the Johnsons would require title to 320 acres of Peterson’s land “as surety” for the money. The Johnsons also noted that they would agree to sell the land back to Peterson at any time within five years. The Johnsons asked an attorney to draft an agreement and the necessary paperwork to accomplish the transfer.

Peterson and his wife signed a deed transferring the land in September 1986. Later that year, they and the Johnsons executed an agreement to convey to the Johnsons certain property “as security and surety for the payoff of the loan of said $9500 to them.” The agreement further states that “when said $9500 is repaid to [the Johnsons] they in turn will reconvey the land to [Peterson and his wife].” Peterson agreed to pay back the $9,500 “within a five (5) year period, in five (5) annual installments, together with interest on the unpaid balance ... at the rate of eleven percent (11%) per annum.” The balance was due by November 1, 1991. Finally, the agreement provided that “the deed from [Peterson and his wife] to [the Johnsons] shall not be recorded at this time.”

Thereafter, Peterson and his wife took out a mortgage on the entire homestead property, including the land involved in this dispute. When Peterson and his wife divorced, the land was awarded to Peterson as part of the property division. Peterson continuously exercised control over the land, including logging and haying it.

In October 1991, Peterson made the only payment, $3,200, to the Johnsons. In January 1994, Peterson received a letter from the Johnsons’ attorney seeking to collect the balance due. In late 1996, the Johnsons recorded the 1986 deed. Peterson claims that he was unaware that the Johnsons had recorded the deed until shortly before filing this suit. The parties exchanged letters regarding the situation in late 2002, when the Johnsons informed Peterson that, if he wanted to repurchase the land, they would offer him “the ‘right of first’ refusal when it [was] offered for sale.”

Peterson filed a complaint seeking a declaration that he is the rightful owner of the property, that the 1986 agreement constitutes an equitable mortgage, and that the Johnsons’ interest should be limited to that arising under an equitable mortgage, thus requiring foreclosure for the Johnsons to take legal ownership of the property. Peterson also alleged that the interest rate evinced in the agreement was usurious and that the contract should either be voided or that the interest owed should be recalculated at the statutory maximum rate. Finally, Peterson alleged that the John-sons had been unjustly enriched by recording the deed.

The district court granted in part and denied in part the parties’ cross-motions for summary judgment. The district court ruled that the 15-year statute of limitations set forth in Minn.Stat. § 541.03 (2004) applies to a claim to have a conveyance absolute on its face declared an equitable mortgage, that the parties’ agreement constituted an equitable mortgage, that the Johnsons’ relief was therefore limited to a foreclosure action, and that any foreclosure action must be initiated by November 1, 2006. The district court also denied Peterson’s motion to void the agreement and the Johnsons’ motion to dismiss Peterson’s claim for an equitable mortgage as barred by the statute of limitations contained in Minn.Stat. §§ 559.18, .19 (2004), and granted the Johnsons’ motion for summary judgment dismissing Peterson’s unjust enrichment claim because an adequate remedy existed.

ISSUES

1. Does the 15-year statute of limitations prescribed in Minn.Stat. § 541.03 (2004) apply to a claim to have a conveyance absolute on its face declared an equitable mortgage?

2. Did the district court err in finding an equitable mortgage?

3. Did the district court err by failing to determine the applicable interest rate on the equitable mortgage?

4. Is Peterson entitled to supplement the record?

ANALYSIS

I.

This court “review[s] de novo whether the district court erred in applying the law to determine the accrual of the cause of action and the running of the statute of limitations.” Broek v. Park Nicollet Health Servs., 660 N.W.2d 439, 441 (Minn.App.2003), review denied (Minn. July 15, 2003).

The district court ruled that Minn.Stat. § 541.03 (2004) applies to a claim to have a deed absolute on its face declared an equitable mortgage. The statute provides in relevant part: “No action or proceeding to foreclose a real estate mortgage, whether by action or advertisement or otherwise, shall be maintained unless commenced within 15 years from the maturity of the whole of the debt secured by the mortgage.” Minn.Stat. § 541.03, subd. 1. It further provides that the “time within which any such action or proceeding may be commenced shall begin to run from the date of such mortgage, unless the time of the maturity of the debt or obligation secured by such mortgage' shall be clearly stated in such mortgage.” Id., subd. 2. The district court ruled that, because the agreement clearly states that the balance of the debt became due on November 1, 1991, Peterson has until November 1, 2006, to bring a redemption action.

The Johnsons argue that, because they are not the mortgagees but the fee owners of the property, Peterson’s action to have the 1986 agreement declared an equitable mortgage is really an action to determine an adverse claim to the property under Minn.Stat. § 559.01 (2004), providing that a person in possession of real property or having title to unoccupied real property “may bring an action against another who claims an estate or interest therein, or a lien thereon, adverse to the person bringing the action.... ” Because this is “a liability created by statute,” it is governed by the six-year limitation period prescribed in MinmStat. § 541.05, subd. 1(2) (2004). The Johnsons contend that Peterson’s right of action accrued when they recorded the deed in 1996 and is now time-barred. But Peterson’s suit to declare an equitable mortgage does not concern a liability created by statute; an equitable mortgage, by its very name, is an equitable creation. The limitation period prescribed by Minn.Stat. § 541.05, subd. 1(2) does not apply to Peterson’s claim.

In the alternative, the Johnsons argue that Minn.Stat. §§ 559.18, .19 (2004), apply. Minn.Stat. § 559.18 provides:

No conveyance absolute in form between parties sustaining the relation of mortgagor and mortgagee, whereby the mortgagor or the mortgagor’s successor in interest conveys any right, title or interest in real property theretofore mortgaged, shall be presumed to have been given as further security, or as a new form of security, for the payment of any existing mortgage indebtedness, or any other indebtedness, or as security for any purpose.

And Minn.Stat. § 559.19 provides: “No action to declare any such conveyance a mortgage shall be maintained unless commenced within 15 years from the time of execution thereof.” The Johnsons argue that Peterson’s claim is barred because he failed to assert it within 15 years of its 1986 execution.

But Minn.Stat. § 559.18 applies only to certain conveyances between “parties sustaining the relation of mortgagor and mortgagee.” The parties were not in a mortgagor-mortgagee relationship prior to the 1986 transaction; thus there was no mortgagor-mortgagee relationship to sustain. Therefore, Minn.Stat. §§ 559.18 and 559.19 do not apply.

The 15-year limitations period prescribed in Minn.Stat. § 541.03 applies to a claim to have a deed absolute on its face declared an equitable mortgage. Its application is particularly appropriate in light of the reciprocal nature of the rights of redemption and foreclosure. The “limitation upon the right to redeem ... is the statutory limitation on foreclosure by action.” Browning v. Browning, 246 Minn. 327, 337, 76 N.W.2d 100, 106 (1956) (quotation omitted); see also Jentzen v. Pruter, 148 Minn. 8, 14, 180 N.W. 1004, 1006 (1921) (noting “familiar rule that the right to foreclose and the right to redeem are reciprocal and that the right to redeem expires with the expiration of the right of foreclosure”).

The district court did not err by concluding that Peterson’s claim is not time-barred.

II.

The district court determined on summary judgment that the parties’ 1986 conveyance and agreement constitute an equitable mortgage. On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The construction and effect of a contract are questions of law, which an appellate court reviews de novo. Logan v. Norwest Bank, 603 N.W.2d 659, 662 (Minn.App.1999).

In general, “a deed absolute in form is presumed to be, and will be treated as, a conveyance unless both parties in fact intended a loan transaction with the deed as security only.” Ministers Life & Cas. Union v. Franklin Park Towers Corp., 307 Minn. 134, 137-38, 239 N.W.2d 207, 210 (1976). But, “when the real nature of the transaction between the parties is that of a loan, advanced upon the security of realty granted to the party making the loan, it may be treated as an equitable mortgage, without regard to the actual form of the instrument of conveyance.” Fraser v. Fraser, 702 N.W.2d 283, 287 (Minn.App.2005) (quotation omitted), review denied (Minn. Oct. 18, 2005).

[B]efore a court will hold a deed absolute on its face to be an equitable mortgage, it must appear that both parties so intended ... [because] even if one party actually intended to enter into a mortgage agreement, unless the other party had the same intention, the transaction should not be construed to be an equitable mortgage.

Ministers Life, 307 Minn, at 140, 239 N.W.2d at 211. “The relevant intention is that of the parties at the time of conveyance.” Fraser, 702 N.W.2d at 288. To determine intent, courts look to “the written memorials of the transaction and the attendant facts and circumstances.” Westberg v. Wilson, 185 Minn. 307, 309, 241 N.W. 315, 316 (1932).

The Johnsons claim that the evidence shows their intent was not a mortgage but an absolute conveyance with an option to repurchase or, in the alternative, that genuine issues of material fact exist as to the parties’ intent. Specifically, they rely on four points: (1) the conveyance preceded the October 1 agreement; (2) the agreement demonstrates such an intent; (3) they later recorded the deed and paid taxes on the property, and (4) Peterson waited 17 years to assert his claim to the property.

But the Johnsons’ reliance is unsupported on this record and under Minnesota law. First, the fact that the conveyance preceded the agreement does not present a factual issue as to whether the parties intended the conveyance to be absolute. Second, there is no question that the language of the agreement itself indicates that the parties intended a loan with the conveyance as a security. It provided that Peterson and his then-wife agreed to convey to the Johnsons certain property “as security and surety for the payoff of the loan” and that, when the loan was repaid, the Johnsons would “reconvey the land to [the Petersons].”

The third and fourth points concern the parties’ conduct after the 1986 agreement.

The subsequent conduct of the parties is often persuasive evidence of what they intended to accomplish by the transaction. Among the circumstances held to be evidence that they intended to convey the title instead of creating a mortgage are the following: That the grantor relinquished possession; that he allowed a long period of time to elapse without asserting a claim to the land or exercising any act of ownership over it; that he paid no taxes or incumbrances; that the grantee took possession and exercised dominion over the land as owner; that he paid taxes and incumbrances; and that he sold and conveyed the land as owner.

Citizens’ Bank of Morris v. Meyer, 149 Minn. 94, 99, 182 N.W. 913, 915 (1921).

Most of these indicia of intent to convey do not appear here. Peterson never relinquished possession; he continuously exercised acts of ownership including logging and haying the property. The Johnsons never took possession or exercised dominion of the land, nor did they purport to sell or convey the land as owners. The John-sons have not produced sufficient evidence of an intent to convey.

Nor have they created a genuine issue of material fact because the evidence they produced is not substantial. A genuine issue of material fact must be established by substantial evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn.1997). Although payment of taxes is supportive of the Johnsons’ claim, standing alone it is not enough to withstand the summary judgment motion. We conclude that the district court did not err in deciding that the 1986 conveyance and agreement constitute an equitable mortgage. Absent a genuine issue of material fact and an erroneous application of the law, we affirm summary judgment.

III.

Peterson moved the district court to declare the agreement void as usurious and to divest the. Johnsons of all interest in the property or, in the alternative, to recalculate the interest and the balance due, using the statutory maximum rate of eight percent per year. Although the district court denied the motion to void the agreement on the ground that “it would be unjust to void the entire agreement based on interest that was never paid[,]” Peterson’s alternative motion for a recalculation of the balance and interest due was not addressed. Peterson now asks this court to perform that recalculation. But the role of this court is to correct errors, not to find facts. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988). We therefore remand to the district court for a recalculation.

IV.

In the appendix to his brief, Peterson provided a copy of a subsequent mortgage allegedly concerning the land at issue. The Johnsons moved to strike this document and its related references in Peterson’s brief because the document was not part of the district court file. Peterson replied with a motion to supplement the record, requesting that this court exercise its discretion to consider certain uncontro-verted documentary evidence.

“The papers filed in the trial court or agency, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ.App. P. 110.01. An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988).

“However, when the evidence is documentary evidence of a conclusive nature (uncontroverted) which supports the result obtained in the lower court,” this court may consider it. In re Livingood, 594 N.W.2d 889, 895-96 (Minn.1999) (quotation omitted). The mortgage has been referred to numerous times throughout this litigation. We conclude that Peterson’s failure to introduce the mortgage into the district court file was inadvertent, grant his motion to supplement the record, and deny the Johnsons’ motion to strike.

DECISION

We affirm the determinations that Minn. Stat. § 541.03 (2004) applies to a claim to have a conveyance absolute on its face declared an equitable mortgage and that the parties’ agreement constituted an equitable mortgage. We remand to the district court for a recalculation of the balance and interest due on the mortgage. Finally, we grant Peterson’s motion to supplement the record and deny the John-sons’ motion to strike.

Affirmed in part and remanded in part; motion to strike denied and motion to supplement granted.

      . Moreover, holding that Peterson could bring a claim against the Johnsons only under Minn.Stat. § 559.01, governed by the six-year limitation in Minn.Stat. § 541.05, subd. 1(2) but that the Johnsons could bring a foreclosure claim against Peterson governed by the 15-year limitation in Minn.Stat. § 541.03 would be inherently inequitable. While Peterson would not be able to pursue the declaration of an equitable mortgage after the six-year limitation expired, the Johnsons would ostensibly be able to wait the full 15-year statutory foreclosure period to pursue such a declaration.