author: GILBERTSON, Justice AMUNDSON, Justice

text:
    2000 SD 52
    STATE of South Dakota, Plaintiff and Appellee, v. Moyad Abdullah ALIDANI, Defendant and Appellant.
    No. 20965.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 14, 2000.
    Decided April 19, 2000.

      Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Steven K. Rabuck of Nichols & Rabuck, PC, Sioux Falls, for defendant and appellant.
   GILBERTSON, Justice

[¶ 1.] Moyad Abdullah Alidani was convicted by a jury of violating SDCL 22-22-7, sexual contact with a minor. He appeals from this judgment of conviction raising issues primarily involving the child as a witness at his trial. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Alidani lived with his brother, Mansour Alidani, in an apartment in Sioux Falls. Roxanne Helm, her husband, and her children (victim and her younger brother) had lived in the apartment directly/above the Alidanis since August 1997. In October 1997, following an argument with her husband, Roxanne and her children moved into the Alidanis’ one-bedroom apartment after knowing the brothers approximately one month.

[¶ 3.] Roxanne soon developed a romantic relationship with Mansour. On or about November 1, 1997, the Alidani brothers, Roxanne, and her children moved into another apartment building in Sioux Falls. Alidani’s abuse of the victim took place in the living room and in Alida-ni’s bedroom when Roxanne allowed victim to stay alone with Alidani while she went to the grocery store and ran errands. Roxanne would later testify she left victim alone with Alidani in this manner once a week. The victim was then seven years old. Alidani was twenty-nine.

[¶ 4.] In April 1998, victim was visiting her step-grandmother [hereinafter Grandmother] when Grandmother noticed her continually scratching her vaginal area. Grandmother asked her if there was a problem and victim indicated she wanted to show Grandmother. Grandmother took victim into the bathroom and noted victim’s vaginal area was chapped and raw, “almost to the point of bleeding.” Grandmother asked if someone had been touching her there and victim reluctantly told Grandmother that Alidani had. Victim hid behind the shower curtain and expressed that now her mother would be angry with her and would make her and Mansour move out and that Alidani would be angry with her and wouldn’t play with her anymore. Grandmother then called her son, victim’s step-father, into the bathroom and victim told him what she told her Grandmother. Victim’s claim was reported to the Department of Social Services. Victim was then moved out of the Alidani apartment. Roxanne and her son continued to reside with the Alidanis.

[¶ 5.] Alidani went to trial on the charge of sexual contact with a minor. He was found guilty and sentenced to serve fifteen years in the state penitentiary, with eight years suspended. Alidani appeals from the judgment of that conviction raising the following issues:

1. Whether the trial court abused its discretion in denying Alidani’s motion for mistrial based on the court’s statement to the victim in front of the jury that, “I know you are going to tell the truth.”
2. Whether the trial court abused its discretion in permitting the victim-witness assistant to sit by and hold victim’s hand during her testimony.
3. Whether the trial court abused its discretion in overruling Alidani’s objections to victim’s statements and to State’s Exhibit 7.
4. Whether the trial court abused its discretion in permitting statements to be admitted under SDCL 19-16-38 as an exception to the hearsay rule.

ANALYSIS AND DECISION

[¶ 6.] 1. Whether the trial court abused its discretion in denying Alidani’s motion for mistrial based on the court’s statement to the victim in front of the jury that, “I know you are going to tell the truth.”

[¶ 7.] Victim testified in the State’s case-in-chief and was called by the State to testify on rebuttal. By this time, she had twice testified under oath - once at a pretrial hearing to determine her capacity for truthfulness and once at trial in the State’s case-in-chief. When she took the witness stand on rebuttal, the day after she had previously testified, she immediately stuck her hand in the air to take the oath again. The trial court did not deem it necessary to again render the oath to her. The trial court stated to the victim:

When you were here yesterday we gave you an oath to tell the truth, and remember, that just means that everything that you saw with your eyes and that you heard with your ea’’s.
Are you all set? You don’t have to do it again. I know you’re going to tell the truth.

The victim’s rebuttal testimony was not directed at the issue of the sexual contact but whether anyone had made any promises to her. Victim testified her mother had promised that if Alidani did not go to jail, Mansour would buy her “lots of toys.” There was no cross-examination or surre-buttal by the defense and no objection to the court’s comments.

[¶ 8.] The next morning, however, prior to submission of the case to the jury, Ali-dani moved for a mistrial based on these comments, stating the jury could interpret them as the court’s vouching for the truthfulness of the victim. The trial court denied the motion putting the previous day’s events in context of an eight-year-old child who was taking the witness stand for a second time in the trial and need not take another oath. The court indicated its comment was one it would make to any witness in terms of the court’s expectation that the witness will tell the truth, but particularly to a young child taking the stand again. The court stated it wanted this victim to know the courtroom was not an aggressive unpleasant place but one in which she should be comfortable. The court noted it did not believe its comments infringed on Alidani’s right to a fair trial.

[¶ 9.] The denial of a motion for mistrial will not be overturned unless there is an abuse of discretion. Motions for mistrial are within the discretion of the trial judge and will not be granted unless there is a showing of actual prejudice to the defendant. State v. Oster, 495 N.W.2d 305, 310 (S.D.1993), overruled on other grounds by State v. DeNoyer, 541 N.W.2d 725 (S.D.1995); State v. Bogenreif, 465 N.W.2d 777 (S.D.1991); State v. McDowell, 391 N.W.2d 661 (S.D.1986).

[¶ 10.] On appeal, Alidani argues that as no medical evidence was presented, this case relied primarily on credibility, pitting the victim’s word against his. Under these circumstances, according to Alidani, the court’s comments were especially harmful as the jury was charged with determining which witness was telling the truth. According to Alidani, the comments put the court’s stamp of authority on victim’s testimony.

[¶ 11.] The context of these comments must not be forgotten in the analysis of this issue. Victim had already testified in the State’s case-in-chief that the sexual contact had occurred. Anatomical drawings on which victim had indicated the places she had been touched by defendant had previously been entered as State’s ex-Mbits, as had an explicit drawing made by the victim herself of defendant’s penis and testicles. Testimony from John Schulte, social worker with the Department of Social Services, who interviewed victim at her elementary school and day care center, and Colleen Brazil, forensic investigator, who interviewed her at Child’s Voice, had also been received. The challenged comments by the trial court were made on rebuttal, the day after the State rested its case, and immediately preceded testimony from victim, not about the sexual contact, but about a promise made to her by her mother. The comments were made in the context of the court’s explaining to the victim that she need not take the oath again and, in this context, were nothing more than a reminder to the child that she is still under oath to tell the truth.

[¶ 12.] This is a contrast from the Illinois appellate court case cited by Alidani in his brief. In People v. Rush, 250 Ill.App.3d 530, 190 Ill.Dec. 1, 620 N.E.2d 1262 (1993), the court’s comment was made during the child’s testimony that there had been sexual abuse by defendant. The child became hesitant in his testimony and the trial court interrupted questioning with several inquiries of its own, stating, “I know you were telling the truth.” Id. at 1264. (emphasis added). A motion for mistrial was denied, however, the conviction was reversed on appeal on grounds that the trial court’s comments improperly bolstered the credibility of the witness “even where the judge might have intended his acts only to relax a frightened minor witness.” Id. at 1266. In State v. Chappell, 26 Kan.App.2d 275, 987 P.2d 1114, 1117 (1999), addressing this same issue, the court cautioned that:

the mere possibility of prejudice from a remark will not result in a reversal where an interpretation can reasonably be given to the remark that would render it unobjectionable.

(citing Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 535 P.2d 865 (1975)).

[¶ 13.] Considering the timing and context of the court’s comments regarding its expectation that the victim tell the truth, there is no showing that they prejudiced Alidani. While the comments could have been phrased with more judicial clarity, there has not been shown any intent by the trial court to remove the question of victim’s credibility from the jury or to enhance her status with the jury. The court merely failed to clearly articulate what it meant and subsequently presented Alidani and this Court with a reasonable interpretation that would render the remarks unobjectionable. Chappell, 987 P.2d at 1117. Moreover, the judge gave the jury two cautionary instructions about his comments during the trial and the jury’s role:

My actions during the trial in ruling on objections by counsel, or in comments to counsel, or in setting' forth the law in these instructions are not to be taken by you as my opinion as to how this jury should determine the issues of fact. What the verdict shall be is your sole and exclusive responsibility.
Two judges preside over this case; the judge of the facts - you, the jury and the judge of the law, who is I. My function will be to preside over this trial to see that it proceeds in a fair, orderly, and efficient manner. I must also rule on questions of law arising during the trial and instruct you as to the law of the case. I am neutral in this case. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

(emphasis added). Alidani did not request any special instruction to the jury regarding the trial court’s comments.

[¶ 14.] The trial court was present and had the opportunity to note whether its comments had any apparent effect on the jury. It specifically found in denying the motion for mistrial that it believed its comments had no effect. We defer to the trial court’s judgment in the absence of any showing on the part of the defense of actual bias or prejudice. State v. Stetter, 513 N.W.2d 87, 90 (S.D.1994) cert. denied, 511 U.S. 1146, 114 S.Ct. 2173, 128 L.Ed.2d 894. Under this record and in this factual context, Alidani has not met his burden of proving reversible error.

[¶ 15.] 2. Whether the trial court abused its discretion in permitting the victim-witness assistant to sit by and hold victim’s hand during her testimony.

[¶ 16.] The trial court made several adjustments to make the courtroom and court proceedings less frightening for the then eight-year-old victim. The trial court permitted the victim-witness assistant, Gail Scott, to sit beside the victim and hold her hand during victim’s testimony. Outside the presence of the jury, the court heard Alidani’s objections to this request by the State and overruled them.

[¶ 17.] SDCL 22-1-11 permits the victim-witness assistant to accompany the victim in any criminal proceeding. The trial court has broad discretion to determine the mode and manner of witness’ testimony and will be reversed only for abuse of that discretion. State v. Kietzke, 85 S.D. 502, 186 N.W.2d 551, 554 (1971). The majority of courts having examined this question have found no reversible error in permitting a parent, relative, friend, guardian ad litem, school employee, clergyman, prosecutor, or other support person to accompany a child victim during her testimony. Carol A. Crocca, Propriety and Prejudicial Effect of Third Party Accompanying or Rendering Support to Witness During Testimony, 82 A.L.R.4th 1038, 1041-51 (1990). A balancing test has often been applied in which the State’s interest in protecting the witness and hearing the testimony is weighed against the possible prejudice to the defendant. Id. at 1041. “[T]he common thread running through the[se] holdings is that when the accompanying party does not speak, prompt the witness, or in any manner attempt to disrupt or influence the trial, the trial judge’s discretion is not abused in permitting an adult support person to be in close proximity to a minor while the minor testifies.” State v. Rowray, 18 Kan.App.2d 772, 860 P.2d 40, 44 (1993).

[¶ 18.] Here, the court balanced the defendant’s objections against the court’s desire to make testifying “the least frightening situation” for the minor victim. In overruling Alidani’s objection that Ms. Scott’s presence would appear to be a “stamp of approval” by the State on the victim’s testimony, the trial court reminded Alidani that the jury understands the State endorses its witnesses; otherwise it would not have brought the charges and called these witnesses. The trial court ruled Alidani’s reasons were not sufficient to overcome the court’s desire to make the victim’s courtroom experience less frightening.

[¶ 19.] In the present case, the record reveals (and Alidani admits), that victim testified in a straightforward manner; neither exhibiting fear of the court proceedings nor of him. AJidani argues this shows the accompanying third party was not required and only served to bolster the victim’s testimony with the jury. However, it may also show that the trial court was successful in making the courtroom as comfortable an environment as possible for the minor victim so that she could testify freely. Moreover, there is no evidence in the record of any influence on victim’s testimony attributable to Ms. Scott’s presence. Alidani does not claim any hesitation by victim or glances at Ms. Scott for confirmation during her testimony. It appears from this record that Ms. Scott acted properly in solely being present in the courtroom as support for the victim and did not act or speak in a suggestive manner in any way. Rowray, 860 P.2d at 44. As no abuse of discretion has been shown, we affirm.

[¶ 20.] 3. Whether the trial court abused its discretion in overruling Alidani’s objections to victim’s statements and to State’s Exhibit 7.

[¶ 21.] Alidani claims the trial court abused its discretion in admitting victim’s statements and victim’s drawing describing his genitals. Evidentiary rulings by the trial court are presumed correct and reviewed under an abuse of discretion standard. State v. Walton, 1999 SD 80, ¶ 9, 600 N.W.2d 524, 528 (citing State v. Larson, 1998 SD 80, ¶ 10, 582 N.W.2d 15, 17).

[1122.] At trial, victim testified that Ali-dani touched her “privacy” and asked her to touch his “privacy” in an up and down motion she made with her hand until “milk” (she stated the term was told to her by Alidani) came out and he wiped it up with a towel. She also testified regarding a detailed drawing of Alidani’s genitals made earlier in the prosecutor’s office when the prosecution had asked her what they looked like. Victim herself asked for a piece of paper so she could draw her response to this question. She then described the drawing for the jury in detail. Testimony regarding this drawing drew an objection from Alidani on grounds of hearsay, which the trial court overruled.

[¶ 23.] Alidani claims victim’s statements and drawing constitute inadmissible hearsay. The rules defining hearsay, of which there are many exceptions, first require “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” SDCL 19-16-1(3). Victim’s testimony about Alidani’s sexual contact with her were made in court and constituted admissible evidence, not hearsay. Victim’s drawing was not a statement, it was an illustration. Also, her description and explanation of that drawing was made at trial and was subject to cross-examination, and therefore was not hearsay. We affirm.

[¶ 24.] 4. Whether the trial court abused its discretion in permitting statements to be admitted under SDCL 19-16-38 as an exception to the hearsay rule.

[If 25.] SDCL 19-16-38 provides in part that:

A statement made by a child under the age of ten ... describing any act of sexual contact or rape performed with or on the child by another ..., not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings against the defendant or in any proceeding under chapters 26-7A, 26-8A, 26-8B and 26-8C in the courts of this state if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content and circumstances of the statement provide sufficient indi-cia of reliability; and
(2) The child ...:
(a) Testifies at the proceedings ...
No statement may be admitted under this section unless the proponent of the statement makes known his intention to offer the statement and the particulars of it, including the name and address of the declarant to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.

The trial court in this case held a pretrial hearing pursuant to this statute and found sufficient reliability for victim’s statements that Alidani had sexual contact with her. The court further found that the questions asked of her by the three who had questioned her about the contact, her Grandmother, Schulte, and Brazil, as well as the questions asked by the attorneys at the hearing, were non-directive, non-suggestive questions that further offered guarantees of trustworthiness of the victim’s responses. The trial court considered on the record all the factors we have previously recognized as foretelling reliability.

The factors for determining whether hearsay statements by a sexually abused minor are sufficiently rehable for admissibility under SDCL 19-16-38 are: the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, the consistency of repetition and the reliability of the assertions, and the reliability of the child witness.

State v. Buller, 484 N.W.2d 883, 886 (S.D.1992), cert. denied, 506 U.S. 887, 113 S.Ct. 248, 121 L.Ed.2d 181 (citing State v. Floody, 481 N.W.2d 242, 251 (S.D.1992)).

[¶ 26.] Testimony regarding this contact was presented at trial by victim, Grandmother, Schulte, and Brazil. Alidani was provided the opportunity to cross-examine all of these witnesses. Although at trial, he objected to the playing of the videotaped interview made by Brazil at Child’s Voice, he made no objection to testimony from the victim, Grandmother or Schulte based on hearsay. On appeal, he fails to persuade us that the trial court abused its discretion in admitting this testimony, only claiming that the degree of reliability required by State v. Thompson, 379 N.W.2d 295 (S.D.1985) was not met. However, in Buller, we stated that “Thompson requires only that ‘the determination of reliability must be made prior to the admission of the hearsay.’ ” 484 N.W.2d at 886 (quoting Thompson, 379 N.W.2d at 298). The trial court made this determination prior to trial and no error has been shown.

[¶ 27.] We affirm on all issues.

[¶ 28.] MILLER, Chief Justice, and SABERS and KONENKAMP, Justices, concur.

[¶ 29.] AMUNDSON, Justice, concurs in part and dissents in part.

AMUNDSON, Justice

(concurring in part, dissenting in part).

[¶ 30.] I dissent on issue one.

[¶ 31.] Had the trial court concluded its comments after the first paragraph, as shown in paragraph seven of the majority opinion, there would have been no problem. On the other hand, when you state in open court in front of the jury “I know you’re going to tell the truth” (referring to the victim), the trial court lends its position to the testimony of the victim. That causes a problem in my mind.

[¶ 32.] I find the rationale and logic in the decision set forth in People v. Rush, 250 Ill.App.3d 530, 190 Ill.Dec. 1, 620 N.E.2d 1262 (1993), to be applicable to the present case. In Rush, the court stated,

Defendant contends that the trial court prejudicially invaded the province of the jury by stating to complainant, in the presence of the jury, “I know you were telling the truth.” The appellate court recently rested the principles applicable to review of trial court comments:
“[T]he trial judge himself must ... not make any comments or insinuations indicative of an opinion on the credibility of a witness. [Citation.]
One of the reasons behind the rule that the trial judge must exercise a high degree of care to avoid influencing the jury in any way [citation] is based on the belief that the trial judge has immense influence over the jury. [Citation.] Another very fundamental reason is that every defendant is entitled to a trial that is free from improper and prejudicial comments on the part of the trial judge.... For the comments or questioning by a trial judge to constitute reversible error, the defendant must demonstrate that they were a material factor in the conviction or that prejudice appears to have been the probable result.” People v. Brown (1990), 200 Ill.App.3d 566, 576-77, 146 Ill.Dec. 346, 558 N.E.2d 309.
These principles apply even when the witness is a minor. (See People v. Bradley (1984), 128 Ill.App.3d 372, 378, 83 Ill.Dec. 701, 470 N.E.2d 1121.) Although Illinois courts have not confronted trial court behavior possibly intended to calm a frightened testifying child, courts in other states have held that in these cases, as in any other criminal case, the trial judge must not, either by her words or acts, give the jury the impression that the judge finds the child’s testimony credible. (See State v. Suttles (Tenn.1989), 767 S.W.2d 403; State v. Zamorsky (1978), 159 N.J.Super. 273, 387 A.2d 1227.) We agree. The defendant has a right to a trial free from a judge’s comments bolstering the credibility of the State’s witnesses even where the judge might have intended his acts only to relax a frightened minor witness.
The State does not argue that the trial court’s comment was proper. Instead the State contends that the remark could not have prejudiced the jury against defendant.
In People v. Crane (1976), 34 Ill.App.3d 850, 341 N.E.2d 97, the State’s key witness in a burglary case was the defendant’s accomplice. On cross-examination the witness admitted that the State agreed to recommend probation for him in exchange for his guilty plea and his testimony against defendant, and he agreed to testify to escape incarceration. The trial court then asked the witness:
“[Y]ou understand the penalties of perjury, do you not?
A. Yes.
Q. And the answer which you have given to all questions put to you have been true and correct to the best of your knowledge?
A. Yes.
Q. Notwithstanding the reasons for the questions or the answers or the reasons for your giving this testimony, what you have said is absolutely true and correct?
A. Yes.” Crane, 34 Ill.App.3d at 853-54, 341 N.E.2d 97.
The appellate court held that the questions served to rehabilitate the witness “and lend the exalted weight of the court” to his credibility. (Crane, 34 Ill.App.3d at 854, 341 N.E.2d 97.) We find that the questioning by the trial court in this case, together with the comment that it knew the victim was telling the truth, improperly lent the exalted weight of the trial court to the victim’s testimony.
The State contends that the trial court in this case cured any error with his later comment that he did not intend to express any opinion on credibility, and the jury was to evaluate the credibility of the witnesses. In People v. Black (1970), 130 Ill.App.2d 996, 266 N.E.2d 458, aff'd (1972) 52 Ill.2d 544, 288 N.E.2d 376, the trial court recognized that he had made an improper remark and immediately admonished the jury to ignore it. The appellate court affirmed the conviction, finding that the immediate reaction partially cured the effect of the improper comment, and the error was not prejudicial because the evidence of guilt was overwhelming.

190 Ill.Dec. 1, 620 N.E.2d at 1266-67.

[¶ 33.] The trial court’s comments “rang the bell” and no admonition by the court thereafter can unring it. Therefore, I would remand this case for a fair retrial, which in my opinion, was not the case on this maiden voyage.

[¶ 34.] I concur on the remaining issues.

      . At trial it became known victim may have suffered from vaginal itching due to yeast infection which would recur approximately once per year, according to testimony of victim's aunt. Grandmother would testify the conditions she observed on victim's vaginal area in April 1998 were much more severe and pervasive than that of a yeast infection.

      . The factual circumstances of the present case also stand in stark contrast to that which occurred in State v. Raymond, 540 N.W.2d 407 (S.D.1995) (Raymond I) (reversed and remanded due to the State’s improper bolstering of the victim’s credibility). There, the State directly asked a social worker for her opinion as to the credibility of the victim after it had assured the trial court it would not do so as it did not believe the law permitted such inquiry. Id. at 408, n. 3-4. The State also referred to bolstering of the victim’s credibility by victim’s therapist during rebuttal closing argument. Id. at 410, n. 5.

      . Victim was unable to look to her mother for support at trial. Roxanne did not believe her daughter and testified for the defense.

      . See Baxter v. State, 522 N.E.2d 362 (Ind.1988) cert. denied, 501 U.S. 1255, 111 S.Ct. 2900, 115 L.Ed.2d 1064 (1991) (no showing of prejudice and no error when mother of 9-year-old victim of sexual abuse held victim’s hand during testimony); People v. Kabonic, 177 Cal.App.3d 487, 223 Cal.Rptr. 41 (1986) (harmless error to permit 6-year-old victim to sit on mother's lap while testifying even though statutory procedural requirements had not been met); State v. Rogers, 213 Mont. 302, 692 P.2d 2 (1984) (no prejudice shown and no abuse of court's discretion in permitting 4-year-old victim of sexual assault to sit on prosecuting attorney’s lap while testifying), overruled on other grounds by State v. Olson, 286 Mont. 364, 951 P.2d 571, 577 (1997) (child victim’s testimony does not need to be corroborated to support a conviction of sexual assault); but see State v. Rulona, 71 Haw. 127, 785 P.2d 615 (1990) (conviction reversed where statute permitted victim-witness assistant to accompany victim to court proceedings and trial court permitted 8-year-old victim to testify from lap of sexual abuse counselor without a showing of compelling necessity).

      . All four also testified at the SDCL 19-16-38 hearing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Harlan P. KLEIN, an Attorney at Law of the State of Minnesota.
    No. C5-88-1968.
    Supreme Court of Minnesota.
    April 20, 2000.

      Edward J. Cleary, Director, Candice M. Hojan, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for petitioner.
    Harlan P. Klein, Barnes, WI, for respondent.
   OPINION

PER CURIAM.

Respondent Harlan P. Klein has been licensed to practice law in Minnesota since 1973. The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action against Klein on December 18, 1998, alleging several instances of professional misconduct. The Director alleged violations that included misrepresenting continuing legal education (CLE) attendance in affidavits to the Director, fading to deposit client funds into a trust account, client neglect and lack of communication with clients. We appointed- the Honorable Peter A. Hoff as referee and respondent filed an answer to the charges on January 4, 1999. Respondent then appeared pro se at the referee’s hearing on August 2 and 3, 1999. The referee issued findings of fact and conclusions of law on August 23, 1999, and recommended that respondent be indefinitely suspended with no opportunity to apply for reinstatement for at least two years. The Director filed a brief on December 8, 1999, in which he agreed with the referee’s recommendation. Respondent did not file a brief or appear at oral argument.

Klein has a disciplinary record dating back to 1983, when he received an admonition for failing to pay a judgment against him for a court reporter’s bill. See In re Klein, 442 N.W.2d 317, 318 (Minn.1989). In 1986, Klein was admonished for assisting a client in creating “a wage assignment as a subterfuge to avoid” paying court-ordered child support. See id. In 1988 the Director filed a petition alleging that Klein misrepresented facts to both the district court and opposing counsel, and filed fraudulently notarized documents with the court. See id. at 320. We suspended Klein indefinitely with the opportunity to apply for reinstatement after six months. See id. at 322. On October 10, 1989, Klein and the Director agreed to a third admonition for Klein’s conduct in failing to communicate with clients, failing to file an appeal for a client, and failing to cooperate with the Director’s new investigation. Klein was reinstated to practice on March 4, 1991. See In re Klein, 465 N.W.2d 920 (Minn.1991).

The conduct at issue in this petition began in 1993 when David Ritt retained Klein to reduce child support payments in Ramsey and Dakota Counties. Although Klein did some work on Ritt’s case, he did not file a motion to reduce payments. In March of 1995, Ritt filed a motion pro se in Dakota County to reduce his payments. Klein subsequently attended a motion hearing in June of 1995 where Ritt’s payments were temporarily reduced. The Dakota County District Court directed Klein to file a motion by December 1995 to reduce Ritt’s Ramsey County support payments. Klein did not comply with that directive. Based upon the inaction in Ramsey County, Dakota County increased Ritt’s child support payments in February 1996. In April 1996, Klein finally filed a motion to reduce payments in Ramsey County. This neglect of Ritt’s case violated Rule 1.3 of the Minnesota Rules of Professional Conduct (MRPC), which requires a lawyer to “act with reasonable diligence and promptness in representing a client.”

In 1994, Klein scheduled a hearing for client David Jack on a child support cost-of-living adjustment motion. Klein neither informed Jack of the hearing nor attended the motion hearing himself. After the nonattendance at the July 6,1994, hearing, the court increased Jack’s child support payments. It was not until March 1996, after Jack filed a. complaint with the Director, that Klein filed a motion to reduce the child support payments. This conduct violated Rules 1.3 and 1.4(a), MRPC, the latter requiring a lawyer to “keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” Klein also violated Rule 3.2, MRPC, which requires a lawyer to “make reasonable efforts to expedite litigation consistent with the interests of the client.”

In September 1996, Klein deposited a $2,000 check from North Star Transport, made payable to his client Jeff Trapp, into Klein’s own business account. Klein distributed funds ($1,450) to Trapp after deducting attorney fees, but Klein did not use his trust account for this transaction. In October 1996, Klein deposited funds into his business account, instead of his client trust account, from checks received per a settlement agreement on behalf of client John Richardson. This conduct violated Rule 1.15(a), MRPC, which requires that “[a]ll funds of clients paid to a lawyer or law firm shall be deposited in one or more identifiable interest bearing trust accounts.”

On September 3, 1996, Klein filed an affidavit stating that he had attended the required number of CLE hours for the reporting period ending in June 1996. In August 1997, a complaint was filed with the Director alleging that Klein misrepresented his CLE attendance. The Director investigated and determined that Klein misrepresented attendance at five Minnesota CLE (MCLE) events.

On December 17, 1997, Klein supplied a sworn statement to the Director in which he maintained that he had attended the CLE events. Klein asserted that MCLE waived registration and fees for the seminars. MCLE records indicate Klein did not attend the events. This conduct violated Rule 8.1(a)(1), MRPC, prohibiting a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter; Rule 8.4(c), MRPC, making it professional misconduct for a lawyer to engage in dishonest conduct; and Rule 8.4(d), MRPC, making it professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice.

The Director filed a petition for disciplinary action on December 18, 1998. Klein filed his answer on January 4, 1999. Klein attended the August 2-3, 1999, hearing and testified on his own behalf. Klein stated he had attended the CLE seminars but failed to retain course materials or register for the classes. Klein explained that the neglect of client Jack was a misunderstanding with Jack but admitted he did not attend the July 1994 hearing that he had scheduled. Klein stated that client Ritt did not retain him for direct representation but instead only to explore Ritt’s options regarding support payments. Finally, Klein stated he deposited client funds into his business account for the convenience of his clients. Because the allegations of the petition are deemed conclusive, we only address the appropriate discipline. See Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR); In re Klein, 442 N.W.2d 317, 317 (Minn.1989).

The purpose of sanctions is to protect the public and to deter future misconduct. See In re Klein, 442 N.W.2d at 320. In considering appropriate sanctions for attorney misconduct, we consider the following factors: the nature of the misconduct, the cumulative weight of disciplinary violations, the harm to the public, and the harm to the legal profession. See id. at 320-21. We look to similar cases to assist us in determining proper discipline for attorney misconduct. See In re Sigler, 512 N.W.2d 899, 901 (Minn.1994). Because each case has a unique factual setting, prior case law is helpful “only through analogy and the facts of each individual case must be carefully examined.” In re Boyd, 430 N.W.2d 663, 665 (Minn.1988) (citations omitted).

In determining the proper discipline, we afford great weight to the referee’s recommendation, but we retain ultimate responsibility for determining the proper discipline. See In re Moeller, 582 N.W.2d 554, 560 (Minn.1998). Both the Director and the referee recommend a minimum two-year suspension from the practice of law based upon respondent’s misconduct and lack of remorse.

We have warned the bar of the importance of honest conduct and of the severity of the sanction to be imposed for dishonest conduct. See, e.g., In re Ruffenach, 486 N.W.2d 387, 391 (Minn.1992) (“Honesty and integrity are chief among the virtues the public has a right to expect of lawyers. Any breach of that trust is misconduct of the highest order and warrants severe discipline.”).

Where the intentional misrepresentations have risen to the level of a pattern of dishonesty or deceit, we have given very long suspensions and even disbarred attorneys. See, e.g., Moeller, 582 N.W.2d at 560 (attorney disbarred); In re La-Chapelle, 491 N.W.2d 17, 21 (Minn.1992) (attorney disbarred). In LaChapelle, the attorney was disbarred for: failing to maintain and supervise trust accounts; intentional misappropriation of client funds; and misrepresentation to the Ethics Committee and the Supreme Court regarding the funds. See 491 N.W.2d at 18-19.

We have emphasized that “[t]he maintenance of proper trust account records is vital to the practice of the legal profession, since it serves to protect the client and avoid even the appearance of professional impropriety.” In re Beal, 374 N.W.2d 715, 716 (Minn.1985). Although isolated trust fund violations have been addressed with admonitions, in In re Isaacs we ordered an attorney disbarred for his repeated and continuing violations of the trust fund account rules, where the violations were coupled with the attorney’s dishonesty during the discipline investigation. See 451 N.W.2d 209, 212 (Minn.1990).

Similarly, we recently stated that in examining “our prior discipline cases, we have decided that an attorney’s pattern of neglect and failure to communicate with clients coupled with a failure to cooperate in the disciplinary investigation or proceedings typically warrants an indefinite suspension.” In re Orren, 590 N.W.2d 127, 129 (Minn.1999). Although Klein participated in the disciplinary investigation, the referee found that during the hearing Klein continued to misrepresent his attendance at CLE seminars. Klein neither filed a brief with this court nor appeared at oral argument.

The Director characterizes Klein’s conduct in repeatedly lying to the Director, the CLE Board and the referee about CLE' attendance as “without precedent.” Aggravating Klein’s misconduct is the fact that he has already been disciplined with suspension since his admission to the bar and been admonished three times. We have said that “it is the general rule that the discipline to be imposed must be reviewed in light of the earlier misconduct.” In re Getty, 452 N.W.2d 694, 698 (Minn.1990). Furthermore, “[o]nce disciplined, this court expects a renewed commitment to comprehensive ethical and professional behavior from attorneys.” In re Jensen, 542 N.W.2d 627, 632 (Minn.1996). We have also said that the similarity of misconduct is evidence of a lack of renewed commitment. See In re Haugen, 543 N.W.2d 372, 375 (Minn.1996).

In considering mitigating factors in assessing discipline, we look for “an appreciation by [the attorney] of the harm he has caused others and evidence that he considers himself obligated to conform to the canons of ethics.” In re Franke, 345 N.W.2d 224, 229 (Minn.1984). Also relevant are “cooperation with the investigation of the misconduct, the lack of any attempt to conceal the misconduct, and the attorney’s attempts to ameliorate the problem(s).” In re Singer, 541 N.W.2d 313, 316 (Minn.1996).

Klein showed neither remorse nor truthful cooperation with the Director in the investigation. The referee found no mitigating factors in this case and Klein chose not to participate beyond the referee’s hearing. Klein was previously suspended for misrepresenting facts to the court and filing fraudulent documents. This suspension began in 1989 and ended in 1991. Klein also has three prior admonitions from the Director. Klein’s current misconduct occurred from 1993 through 1996.

In reaching the appropriate discipline determination, we are mindful of Klein’s pattern of repeated instances of dishonesty and client neglect in both his past discipline and the conduct before us today. Based upon Klein’s prior admonitions and suspension for similar professional misconduct, we agree with the referee and the request by the Director that Klein should be indefinitely suspended with leave to reapply for active status in two years. We therefore order that Harlan P. Klein:

1. Be indefinitely suspended from the practice of law pursuant to Rule 15(a)(2), RLPR, with no right to apply for reinstatement for a period of two years; and

2. Comply fully with the requirements of Rule 18, RLPR, should he apply for reinstatement; and

3. Pay to the Director appropriate costs and disbursements pursuant to Rule 24, RLPR.

Indefinite suspension ordered.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael G. SINGER, an Attorney at Law of the State of Minnesota.
    No. C7-93-318.
    Supreme Court of Minnesota.
    April 20, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Michael G. Singer has committed professional misconduct warranting public discipline, namely, respondent obtained $13,000 in loans from his client which he failed to repay, and obtained an additional $50,000 from the same client in a fiduciary capacity through misrepresentations. Respondent misappropriated the $50,000 to his own use. Further, respondent made representations to the client to avoid repayment or an accounting, and failed to repay any portion of a judgment for the debt, in violation of Minn. R. Prof. Conduct 1.8(a), 1.15(a), 3.4(c) and 8.4(b) and (c).

Respondent waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is disbarment and payment of $900 in costs pursuant to Rule 24, Rules on Lawyers Professional Responsibility.

This court has independently reviewed the file and approves the jointly-recommended disposition.

IT IS HEREBY ORDERED that respondent Michael G. Singer is disbarred from the practice of law and that he pay $900 in costs pursuant to Rule 24, Rules on Lawyers Professional Responsibility.

BY THE COURT:

Alan C. Page Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST James T. HANVIK, an Attorney at Law of the State of Minnesota.
    No. C3-99-815.
    Supreme Court of Minnesota.
    April 27, 2000.

      Edward J. Cleary, Director, Eric T. Cooperstein, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for appellant.
    Michael J. Hoover, Minneapolis, for respondent.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent James T. Hanvik on May 19, 1999. Han-vik responded on May 25, 1999, admitting most of the allegations in the petition. A hearing was held on August 20, 1999, where Hanvik presented mitigation evidence and evidence as to the few contested factual matters. The referee filed his Findings of Fact, Conclusions of Law and Recommendations for Discipline on September 30, 1999, in which he rejected Hanvik’s mitigation claims of psychological disorder, remorse, pro bono work, and volunteer activities, and recommended that Hanvik be indefinitely suspended. We agree and order an indefinite suspension from the practice of law without leave to apply for reinstatement for two years.

James T. Hanvik was admitted to the practice of law in Minnesota on October 17, 1984. He has no prior disciplinary history. In December 1996, the Director of the Office of Lawyers Professional Responsibility (director) received a complaint from Sharon Henke, a client of Hanvik’s, charging that he was withholding funds from her. An investigation of the complaint led to an audit of Hanvik’s trust account for the period of November 1994 through August 1998. The audit discovered numerous misappropriations from Han-vik’s trust account, as well as a general failure to maintain trust account records. The referee’s findings of fact about the misconduct, which were not contested by either party, are summarized here.

Hanvik’s misconduct primarily arose in three separate legal matters. The first count of misconduct involved Hanvik’s actions while handling a legal matter for Sharon Henke from February 1995 to December 1996. Henke retained Hanvik to pursue a dram shop action and to handle the estate of her son, Kevin Conrad, who died on November 25, 1994, in á car accident after leaving a bar. Hanvik’s representation violated a number of the Minnesota Rules of Professional Conduct (MRPC). First, Hanvik endorsed Conrad’s last paycheck for $887.78 (Conrad paycheck), which was made out to Henke as the personal representative of his estate, without Henke’s authorization. Then Hanvik deposited it in his trust account and disbursed the proceeds to himself, thus misappropriating the funds. Then, when Henke repeatedly inquired about the status of the check from March 1995 to November 1996, Hanvik failed to respond to her inquiries.

Hanvik settled the dram shop action, with Henke’s authorization, for $8,500 in the fall of 1995. Shortly after negotiating the settlement, but prior to receiving a settlement check, Hanvik disbursed a portion of his share of the settlement to himself, thus misappropriating $2,000 of other clients’ funds in his trust account to do so. Upon receiving the check, Hanvik gave Henke $5,000, deducting $264 for filing fees he had never incurred and retaining $328.97 to “take care of any final expenses that might arise.”

Hanvik decided to withdraw from his representation of Henke in December 1996, prompted in part by her threats to complain about his mishandling of the Conrad paycheck. In his withdrawal letter, he told Henke that her accusations of “some sort of ethical lapse are entirely unfounded.” He falsely stated “[njotwith-standing the fact that we had, and have, every right to pay out those funds for services and costs, in reviewing my trust account records, I discovered that I have not expended any funds from the deposit of Kevin’s check.” Hanvik enclosed a check for $1,216.75 to cover the $887.78 Conrad paycheck and the $328.97 he had retained from the settlement.

Henke filed a complaint with the director’s office a few days before receiving Hanvik’s letter and check, which prompted an investigation. In response to a request by an investigator, Hanvik produced a ledger purporting to detail the trust account activity for the Henke representation. The ledger did not reflect Hanvik’s disbursement of the Conrad paycheck, did not comport with Hanvik’s other trust account records, and was not prepared contemporaneously with the documented transactions. Hanvik did not disclose to the investigator that the ledger was not accurate and he did not respond to the investigator’s request for additional information about the ledger.

Based on these facts, the referee concluded that Hanvik violated Rules 1.4, 1.15(a), 1.15(b), 1.15(h), 4.1, 8.1(a)(1), and 8.4(c) of the MRPC during his representation of Henke and the subsequent investigation. Specifically, Hanvik misappropriated the Conrad paycheck, made false statements to Henke, failed to respond to Henke’s inquiries about the Conrad paycheck, misappropriated trust account funds by distributing $2,000 to himself prior to receipt of the settlement check, falsely billed Henke for filing fees not incurred, and provided an incomplete and inaccurate ledger to the District Ethics Committee investigator. The referee found, however, that “notwithstanding Hanvik’s misconduct,” ultimately Henke did not suffer any loss “except for the use of the funds and interest on money she should have received earlier.”

The second count of misconduct involved Hanvik’s representation of J.B. in a personal injury claim. The claim was settled on November 17, 1994, for $5,000 with J.B.’s consent. Medicare held a subrogation claim of $1,934.46 on the settlement. Knowing this, Hanvik falsely told a Medicare claims agent, Karen Holst, that the case was settled for $3,500, inducing Medicare to reduce its claim to one-third of the purported settlement amount, or $1,166.67. Then, although Hanvik gave J.B. her share of the settlement and wrote a check to himself for his fees, he did not forward the $1,166.67 subrogation amount to Medicare.

Holst wrote Hanvik in August 1995 and again in January 1997 inquiring about the status of the settlement. In response to these inquiries, Hanvik first falsely claimed that the delay was due to his inability to contact J.B. regarding the settlement of the Medicare claim. Then, in April 1997, Hanvik sent Medicare a check for $912.29 rather than the entire $1,166.67 that Medicare believed it was owed, explaining that he had deducted $150 for a knee brace purchased by J.B. in 1993, and $104.38 for one-half of the costs of the lawsuit J.B. had paid to him. Hanvik claimed that J.B. was entitled to that part of Medicare’s share, but he did not forward the money to J.B., and never held those funds in his trust account in anticipation of forwarding them to J.B.

At the time Hanvik paid Medicare the $912.29, he did not have sufficient funds in his trust account from J.B.’s settlement- to pay the entire subrogation claim. This was due to the fact that he had made additional disbursements totaling $750 to himself out of the account in March 1996 that he attributed to the J.B. case. Han-vik had issued the checks to himself as “cost reimbursements” and “fees” even though he was not entitled to any additional fees from the case and had been reimbursed for all costs.

On the eve of his disciplinary hearing, Hanvik sent a check for $500 to Medicare, a portion of the money he wrongfully kept by falsely representing the extent of J.B.’s settlement. Hanvik also brought to the hearing a check for $254.38 made out to J.B., claiming that he was unable to locate J.B. to reimburse her for those amounts he deducted from Medicare’s claim. The referee concluded that Hanvik violated Rules 1.15(a), 8.4(c), and 8.4(d) of the MRPC for making false statements to Medicare and for misappropriating $750 in March 1996.

The third count of misconduct stems from Hanvik’s meeting with T.K. on May 8, 1996, to discuss representing T.K. in a divorce. At the meeting, T.K. gave Han-vik a $500 retainer and told Hanvik not to, proceed with an action until further contact. T.K. specifically instructed Hanvik not to contact him because he did not want his wife to know he was considering a divorce.

Hanvik deposited the retainer from T.K. in his trust account, but never heard from T.K. again about the divorce. While there were no withdrawals corresponding to T.K’s funds during the audit period, the trust account balance fell to $108.23 in April 1998 indicating the retainer had been misappropriated. In an attempt to explain this discrepancy, Hanvik falsely claimed in a letter to the director on July 14, 1998, that he had earned all of T.K’s retainer. In support of that claim, Hanvik produced a billing statement, dated June 15, 1996, which falsely represented that he had met with T.K. and prepared the necessary documents to initiate divorce proceedings. Although Hanvik may have been entitled to keep some of the retainer and T.K. never asked for the retainer to be returned, on the day of the hearing Hanvik returned the entire $500 to T.K. plus $130 in interest. The referee concluded that Hanvik violated Rules 1.15(a), 8.1(a)(1), and 8.4(c) of the MRPC by preparing a false billing statement and providing it to the director, and failing to hold T.K.’s retainer in his trust account.

Count four of the director’s petition for disciplinary action identified various other misappropriations discovered during the investigation of Hanvik’s trust account records. First, the trust account should have had a minimum balance of $2,000 through May 1996 corresponding to funds held on behalf of a client, Land Office Realty, Inc. (LORI), that were the subject of a bankruptcy action. However, from November 1994 to May 1996 the trust account held no more than $297.71. In May 1996, after the bankruptcy court determined that LORI was entitled to the money, Hanvik issued a trust account check to LORI for $2,000. In addition, in 1996 Hanvik over-disbursed $75 to himself from one client’s fund, causing misappropriation of other client funds. He also received payments totaling $1,025 from a debtor on behalf of another client, T.H.-, but paid out to T.H. only $950.

Finally, between November 1994 and August 1998, Hanvik failed to maintain trust account records or client ledgers, performed no reconciliations of his trust account with his bank statements, and made additional misappropriations. Thus Hanvik’s certifications on his 1995, 1996, 1997, and 1998 attorney registration statements that he properly maintained trust account books and records were false. The referee concluded these actions violated Rules 1.15(a)-(b), (g)-(h), and 8.4(c) of the MRPC.

Hanvik’s misconduct with respect to the trust account was not limited to his lack of records and related misappropriations. During the audit, Hanvik wrote a letter to the director on April 13, 1998, falsely stating he never deliberately took money from the trust account when it was not actually owing to him, was aware at all relevant times what the balance in the account should be, and that the closing balance was what he expected it to be. On July 14, 1998, Hanvik repeated these false statements, and also falsely stated that he had reviewed the balances of all clients for whom he held funds in his trust account, and falsely described the delay in payment to Medicare. The referee concluded these false statements violated Rules 8.1(a)(1) and 8.4(c) of the MRPC.

Because Hanvik admitted most of the misconduct in the director’s petition, his evidence at the hearing primarily went to establishing mitigating factors. Hanvik testified that he was remorseful, and presented evidence of his pro bono work and volunteer activities for the bar and in the community. Hanvik also claimed his depression was a psychological disorder that should be a mitigating factor. In support of this claim, Hanvik testified at the hearing and also submitted the deposition testimony of Dr. Harold Steiger, a licensed psychologist. Hanvik has been seeing Dr. Steiger since June 1998, and is on antidepressant medication. At the deposition, Dr. Steiger testified that when Hanvik came to him, Hanvik was in a major depressive episode and that Hanvik described other major depressive episodes that he had experienced. Dr. Steiger characterized Hanvik’s depression as “serious,” preferring to use that term rather than the “mild, moderate, or severe” DSM-4 classifications. However, on cross-examination, Dr. Steiger admitted that he would place Hanvik “in the fifties” on a recognized diagnostic scale, indicating a moderate level of depression.

Following the hearing, the parties submitted post-trial briefs and proposed findings of fact and conclusions of law, including recommendations for sanctions, to the referee. The director requested Hanvik be disbarred. Hanvik conceded that his misconduct warranted at least a suspension, but argued that disbarment was too severe a result in light of mitigating factors.

The referee rejected much of Hanvik’s mitigation evidence. In his Findings of Fact, Conclusions of Law and Recommendations for Discipline, the referee noted that Hanvik only made restitution to Henke after a number of demands and a complaint to the director; that restitution to T.K. was made the day of the hearing; and that restitution to Medicare was not made until after the disciplinary proceedings were commenced. He found that Hanvik was not remorseful and did no more pro bono or volunteer work “than is generally expected of any attorney.” In addition, the referee determined that while Hanvik has a moderate form of depression it does not rise to the level of a severe psychological disorder, and that the depression did not cause Hanvik’s misconduct. Finally, the referee found that Han-vik’s false statements to an investigator, to the director, and to Medicare while under investigation for the Henke complaint were aggravating factors.

Even so, the referee recommended that Hanvik be suspended indefinitely rather than disbarred. He credited Hanvik for his lack of prior disciplinary history and noted the small amounts of money involved in the misappropriations. He also concluded that ultimately there was no loss to Henke, T.K., or Medicare, and there was only a small loss to J.B.

Because neither the director nor Hanvik disputes the referee’s findings of facts or conclusions of law that Hanvik’s actions constitute professional misconduct, the only issue before this court is the appropriate level of discipline to impose. Although the director asked the referee for disbarment, the director now accepts the referee’s recommendation of suspension and only asks this court that the suspension be without leave to apply for reinstatement for three years. The director argues that Hanvik’s pattern of misappropriations is a serious concern, and the small sums involved do not lessen the gravity of the misconduct. The director adds that similar misconduct has led to disbarment even when misappropriations totaled less than $5,000, and here Hanvik committed additional misconduct.

Hanvik agrees that he should be suspended, but asks for leave to apply for reinstatement after one year. Hanvik claims that his misconduct did not result in substantial losses to anyone, and he has made restitution “to the best of his ability, sometimes to the extent of depriving himself of compensation to which he is legitimately entitled.” He also requests this court to consider his remorse, depression, pro bono work, and volunteer activities as mitigating factors even though the referee rejected this evidence.

A referee’s findings of fact will not be set aside unless they are clearly erroneous or not supported by the evidence. See In re LaChapelle, 491 N.W.2d 17, 20 (Minn.1992). In particular, this court “accords deference to a referee’s findings when they are based on conflicting testimony or in part on a respondent’s demean- or, credibility, or sincerity.” In re Hartke, 529 N.W.2d 678, 679-80 (Minn.1995). Upon review of the record before us, we conclude that the referee’s findings as to Hanvik’s remorse, pro bono work, and volunteer activities, are adequately supported by the record.

Likewise, we agree with the referee that Hanvik’s depression does not rise to the level of a severe psychological disorder. When a respondent attorney

raises psychological disability as a mitigating factor, he must prove that he indeed has a severe psychological problem, that the psychological problem was the cause of the misconduct, that he is undergoing treatment and is making progress to recover from the psychological problem which caused or contributed to the misconduct, that the recovery has arrested the misconduct, and that the misconduct is not apt to recur.

In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983). One advancing a claim of psychological disability must show by clear and convincing evidence each of these five requirements. See In re Pyles, 421 N.W.2d 321, 324-25 (Minn.1988). Hanvik’s evidence of his depression consisted of his own testimony and that of Dr. Steiger, who preferred to characterize Hanvik’s depression as serious. We have previously rejected the argument that a serious disorder is equivalent to a severe disorder. See In re Shoemaker, 518 N.W.2d 552, 554 (Minn.1994). In addition, Dr. Steiger admitted on cross-examination that Hanvik’s depression was at a moderate level on a recognized diagnostic scale, and that his own characterization of a severely depressed person did not describe Hanvik. Thus, we agree with the referee that Han-vik’s depression is not a mitigating factor.

Having so concluded, we now turn to a determination of the appropriate discipline to be imposed. The purpose of attorney discipline is not to punish the attorney. See In re Madsen, 426 N.W.2d 434, 435 (Minn.1988). In determining the appropriate sanction, this court weighs “the nature of the misconduct, the cumulative weight of the disciplinary rule violations, and the potential harm to the public, to the legal profession, and to the administration of justice.” Pyles, 421 N.W.2d at 325. We may look to cases involving similar misconduct as guides to reaching a conclusion. See In re Margolis, 570 N.W.2d 688, 691 (Minn.1997). However, while this court strives for consistency in disciplinary matters, “each ease is unique and must be examined on its own facts.” In re Dvorak, 554 N.W.2d 399, 403 (Minn.1996).

Hanvik failed to maintain trust account records, misappropriated client funds, and made false statements to clients, the director, and a Medicare representative. Depending on the facts of a particular case, this court has used a variety of disciplinary sanctions for such misconduct. See, e.g., In re Szymialis, 557 N.W.2d 554, 555-56 (Minn.1997) (indefinite suspension without leave to apply for reinstatement for two years); LaChapelle, 491 N.W.2d at 21 (disbarment); Pyles, 421 N.W.2d at 327 (indefinite suspension without leave to apply for reinstatement for two years); In re Heffeman, 351 N.W.2d 13, 15 (Minn.1984) (three-month suspension and three-year probation).

Several cases are particularly instructive to us in determining the appropriate sanction in light of the facts here. In Pyles, an attorney misappropriated approximately $60,000 of client funds deposited in his trust account to repay other clients whose trust funds had been misused and for his own personal and family use. See Pyles, 421 N.W.2d at 323. Pyles also made false statements to a client, failed to maintain trust account records, handled a matter where he had a conflict of interest, and failed to file income tax returns. See id. at 323-24. Pyles’ serious misconduct raised the specter of disbarment, but it was mitigated by his exemplary life outside the profession. See id. at 326. The court also determined that Pyles’ full restitution of the funds, his extensive work for his church, and his significant pro bono work, which had a detrimental effect on his personal finances and thus led him to misappropriate client funds, were special circumstances warranting consideration. See id. at 323, 326. Pyles’ depression was rejected as a mitigating factor because it was not a severe psychological disability, was not a cause of the misappropriations, and he had not shown sufficient recovery to arrest the conduct. See id. at 325. The court concluded that Pyles should be indefinitely suspended without leave to apply for reinstatement for two years. See id. at 327.

In contrast to Pyles, Hanvik misappropriated less than $5,000, an amount that compares more closely to that in Heffer-nan, where an attorney misappropriated between $7,000 and $9,000 from an estate, failed to keep “even rudimentary” trust accounts and records, and commingled personal and client funds. See Heffernan, 351 N.W.2d at 14. This court noted that Heffeman “devoted substantial time to pro bono work,” made restitution to his clients, and Heffernan’s personal and professional life were in turmoil at the time of the misappropriation, which was an isolated occurrence. See id. at 14-15. Heffeman was suspended for only three months and placed on supervised probation for three years. See id. at 14.

Clearly Hanvik’s misconduct, involving not only misappropriations but also misrepresentations to the director, clients, and Medicare, requires a greater sanction than that imposed in Heffeman. In addition, Hanvik’s only mitigating factors are that he has no prior disciplinary history and has made restitution in nearly all of the cases.

We conclude that the sanction imposed in Pyles is also appropriate here - an indefinite suspension without leave to apply for reinstatement for two years. While Hanvik does not have the mitigating circumstances described in Pyles, Hanvik’s misconduct is not as egregious as that in Pyles, which involved substantially greater sums of money, a conflict of interest, and a failure to pay taxes. See Pyles, 421 N.W.2d at 323-24. In other words, while Hanvik has fewer mitigating factors than noted in Pyles, when this is coupled with Hanvik’s lesser misconduct we arrive at the same sanction imposed in Pyles.

Other cases also support this sanction. See Szymialis, 557 N.W.2d at 555-56 (imposing indefinite suspension for at least two years for misconduct including violations of fees rules, failure to maintain account records, misrepresentations to a client, misuse of the legal process, failure to communicate with clients, and failure to cooperate with the director’s investigation); In re Kinnunen, 502 N.W.2d 773, 773-75 (Minn.1993) (imposing indefinite suspension without leave to apply for reinstatement for 18 months for neglect of legal matters, allowing trust account balance to fall below zero, and failing to cooperate with the disciplinary process); In re Stockman, 502 N.W.2d 209, 212 (Minn.1993) (holding that respondent’s conduct in committing numerous trust account violations, making false representations, neglecting client files, practicing law while suspended, and failing to cooperate with the director required an indefinite suspension for at least two years).

As in the cases cited above, Hanvik has engaged in a pattern of misconduct involving misappropriations, misrepresentations, and trust account record keeping violations. For these reasons, we order that James T. Hanvik:

1. Be indefinitely suspended from the practice of law pursuant to Rule 15(a)(2), Rules on Lawyers Professional Responsibility (RLPR), with no right to apply for reinstatement for a period of two years;
2. Contact Medicare regarding the J.B. settlement and fully satisfy any remaining claims by Medicare;
3. Comply fully with the requirements of Rule 18, RLPR, should he apply for reinstatement; and
4. Pay to the Director a sum of $900 for costs and disbursements pursuant to Rule 24, RLPR.

Indefinite suspension ordered.

      . We are unable to find any information in the record indicating that the $264 improperly retained from the dram shop settlement to cover nonexistent filing fees was ever paid to Henke.

      . The parties and referee identified the subro-gation amount as $3,090.80 throughout the proceedings and in their briefs. However, the affidavit of Medicare agent Karen Holst, states that the subrogation amount was $1,934.46.

      . Hanvik states that Medicare has now received one-third of the actual settlement, or $1,666.67 (minus the $254.38 he deducted for J.B.). He claims that it is not uncommon for Medicare to agree to a one-third division in such cases, and therefore suggests that Medicare has been fully compensated. In contrast, Holst stated in her affidavit that Medicare will only reduce its claim when requested in writing under certain circumstances, and that no such request was ever received from Hanvik even when Medicare believed the settlement to be $3,500 and orally agreed to reduce its claim, contingent on receiving a written request. By our calculations, if Medicare’s original claim was $1,934.46, and assuming Hanvik's deductions totaling $254.38 are valid, then after the $912.29 and $500 payments, there remains $267.79 unpaid on the claim.


author: PETERSON, Judge

text:
    STATE of Minnesota, Respondent, v. Erwin Carl MORRIS, Appellant.
    No. C5-99-864.
    Court of Appeals of Minnesota.
    April 18, 2000.
    Review Denied May 23, 2000.

      Mike Hatch, Attorney General, St. Paul and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, MN (for respondent).
    John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Minneapolis, MN (for appellant).
    Considered and decided by PETERSON, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

PETERSON, Judge

In this appeal from the sentence imposed for his terroristic threats conviction, appellant Erwin Carl Morris argues that there are not substantial and compelling circumstances to support the trial court’s durational departure decision. We affirm.

FACTS

At about 6:00 a.m. on December 12, 1998, the St. Paul police received a call reporting a domestic incident that involved a knife and a gun. WThen the police arrived at the scene, Deangelo Williams told them that a man with a .22 rifle had cut him on the hand and robbed him. Williams said that the suspect, Morris, had retreated to an upstairs bedroom and closed the door. The police found a large amount of ammunition in the house but no firearms. When the police tried to talk to Morris through the closed bedroom door, he told them that if they came in, he would shoot them and then shoot himself. After hearing two shots from a small-caliber weapon, the police retreated from the house and at about 6:30 a.m., called in the Critical Incident Response Team (CIRT).

The CIRT is a highly trained tactical team composed of 28 officers, 7 sergeants, and a lieutenant. CIRT officers are trained to deal with hostage situations and barricaded suspects. When the CIRT arrived, they set up a command post and evacuated the residents from nearby homes.

A crisis negotiator first tried to communicate with Morris by telephone, but Morris did not respond. Sometime after 9:00 a.m., two negotiators entered the house and spoke to Morris from the stairwell. During the next several hours, Morris refused to give up and repeatedly stated, “I’m not going to talk to you,” “I want crack,” “Bring on the body bag,” “Come on, give me a head shot,” and “I’m not coming out.” He also said several times that he had a surprise for the officers and that if any officer were to enter the bedroom, that officer should bring two body bags. He boasted that he had military tactical training that would enable him to hold off the CIRT.

Around 1:00 p.m., after negotiations failed and Morris still refused to surrender, the CIRT shut off the electrical power and broke upstairs windows to let in cold air. Morris responded by covering the windows with mattresses. Police used fire hoses to knock down the mattresses, and Morris put them up again. The CIRT shot canisters of tear gas into the house. When the tear gas failed to draw Morris out, CIRT officers entered the house. On the first floor, they found an empty handgun box, some 30.06 rifle ammunition, some .357 cartridge casings, and a .22 rifle.

As the afternoon wore on, Lieutenant Timothy Leslie felt that the situation was beginning to seriously jeopardize public safety. The police perimeter started to break down and people appeared on nearby rooftops to watch the standoff. In response, the CIRT decided to enter the bedroom.

As the team attempted to enter the barricaded bedroom door, one of the officers ordered Morris to give up. Morris told the officer that he would not give up and that if they came into the room, he would shoot them. A CIRT officer on a roof near the bedroom window could see that Morris was beneath a blanket in the corner and was pointing what appeared to be a shotgun or rifle directly toward the door.

Fearing that members of the CIRT were in imminent danger, a sergeant gave the order to shoot Morris. A CIRT officer shot into the bedroom and Morris was wounded in the head and the left elbow. When CIRT officers entered the bedroom, they discovered that what the officer had believed was a gun barrel sticking out from under the blanket was really the grip end of a golf club.

Morris was convicted on one count of making terroristic threats in violation of Minn.Stat. § 609.713, subd. 1 (1998). A presentence investigation report recommended that Morris be sentenced to the presumptive guideline sentence of 24 months. The trial court found that severe aggravating circumstances existed and sentenced Morris to serve 60 months, the statutory maximum.

ISSUE

Did the trial court abuse its discretion by departing from the presumptive guideline sentence and imposing a 60-month statutory-maximum sentence?

ANALYSIS

A reviewing court will not interfere with the district court’s decision regarding sentencing unless there has been a clear abuse of discretion. State v. Lundberg, 575 N.W.2d 589, 591 (Minn.App.1998), review denied (Minn. May 20, 1998). The trial court may depart from the presumptive guideline sentence only if “substantial and compelling circumstances” exist. Minn. Sent. Guidelines II.D; see also State v. Best, 449 N.W.2d 426, 427 (Minn.1989) (trial court has discretion to depart from presumptive sentence only if aggravating or mitigating circumstances are present). Substantial and compelling circumstances are those that make the facts of a particular case significantly more or less serious than a typical case involving the same crime. State v. Back, 341 N.W.2d 273, 276 (Minn.1983).

Generally, when aggravating circumstance are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration.

State v. Glaraton, 425 N.W.2d 831, 834 (Minn.1988). However, severe aggravating circumstances may justify a sentence greater than double the presumptive sentence. Id. When severe aggravating circumstance exist, the only absolute limit on an upward departure is the statutory-maximum sentence. Id. But only in a “rare” case will aggravating circumstances be so severe as to justify a greater-than-double durational departure. State v. Weaver, 474 N.W.2d 341, 343 (Minn.1991).

[Tjhere is no clear line that marks the boundary between “aggravating circumstances” justifying a double departure and “severe aggravating circumstances” justifying a greater than double departure.

State v. Norton, 328 N.W.2d 142, 146 (Minn.1982). Whether the circumstances justify a greater-than-double departure ultimately must be based upon “our collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts.” Id. at 146^47.

Appellant argues that the trial court abused its discretion by not imposing the presumptive 24-month sentence under the sentencing guidelines. He contends that his conduct is not more serious than the typical terroristic threats offense and that there are not substantial and compelling circumstances to support a durational departure. Appellant argues further that if there are substantial and compelling circumstances to support a sentencing departure, they are not the severe aggravating circumstances necessary to support a greater-than-double departure.

Morris was convicted of making terroristic threats in violation of Minn.Stat. § 609.713, subd. 1 (1998), which provides:

Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such terror or inconvenience may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.

The trial court determined that appellant’s offense is more serious than a typical terroristic threats offense “because it involves multiple victims over a long period of time and risk to others than the immediate victims.”

Morris argues that the trial court’s reasons for departing are not sufficient to support the trial court’s sentencing departure. He contends that the fact that there were multiple victims is not a proper basis for departing in this case because he did not determine the number of victims involved in the offense. Rather, the number of officers present was determined by the tactical decisions of the commander of the CIRT. Morris also contends that the risk of danger to others is not a proper basis for departing because any increased risk was not a direct result of his conduct, but was instead caused by police actions.

We do not agree that the trial court should not have considered the number of victims and the risk of danger to others simply because these factors were attributable in part to the decisions and actions of police officers that responded to Morris’s actions. When determining whether a defendant’s conduct was more or less serious than that typically involved in the commission of the crime in question,

generally it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced.

Back, 341 N.W.2d at 276.

In State v. McClay, 310 N.W.2d 683, 685 (Minn.1981), the supreme court allowed a durational departure because

looking at the overall course of conduct, the robbery was a more aggravated kind of armed robbery than the typical one, with defendants putting more people in fear, kidnapping one person, and assaulting several others during their escape. That is, the conduct underlying the offense was particularly serious and represented a greater than normal danger to the safety of other people.

Thus, multiple victims and a greater than normal danger to the safety of people other than the victims have both been recognized as aggravating factors that will support a durational departure.

The course of conduct underlying the terroristic threats charge against Morris included his standoff against dozens of police officers. And as a result of the standoff, residents of nearby homes had to be evacuated. Morris did not make the police respond to his threats or determine how many police responded. But the police actions were a direct response to his threats, and Morris continued the standoff after it was readily apparent that many officers had responded. The increased risk presented by the standoff situation was a direct result of Morris’s threats.

Morris also argues that the length of the standoff was not a basis for departure because there was no evidence that the standoff was longer than normal. And even if the standoff was unusually long, he argues, that fact does not necessarily mean that his offense was more serious than the typical standoff because the tactical commander of the CIRT set the pace of the standoff. We disagree..

In State v. Schenk, 427 N.W.2d 12, 15 (Minn.App.1988), this court affirmed an upward durational departure on a sentence for receiving and concealing stolen property. One factor the trial court cited as a basis for the departure was that the appellant’s conduct occurred over an extended period of time. This court expressly recognized that factor as a basis for its conclusion that the durational departure was justified. Id. at 14-15. Thus, the fact that an offense continued for a longer period of time than a typical offense has been recognized as a permissible basis for a sentencing departure.

Here, the issue before the trial court was not whether the facts of this case were significantly more serious than a typical standoff. The issue was whether the facts were significantly more serious than a typical case of terroristic threats. The facts in a typical terroristic threats case do not include either a standoff with dozens of police officers that lasts through much of a day or an evacuation of several residences. And we see no basis to conclude that the standoff lasted as long as it did because of decisions made by the commander of the CIRT. The standoff continued because Morris refused to surrender and continued threatening the police. There would not have been a standoff if Morris had not begun threatening police when they arrived.

The last argument that Morris makes is that even if an upward durational departure was warranted, a statutory-maximum sentence was not justified. Morris contends that his conduct does not even come close to the conduct of the defendant in State v. Murphy, 545 N.W.2d 909 (Minn.1996), in which the supreme court affirmed a greater-than-double departure for multiple terroristic threats convictions.

In Murphy, the supreme court succinctly described the defendant’s conduct as follows:

Murphy’s conduct was directed against those persons who have taken action adverse to him in criminal cases in which he was the defendant. Those subject to Murphy’s conduct include judges, prosecutors, witnesses, co-defendants, police, state and federal probation employees, and halfway house employees. The nature of Murphy’s conduct extends from the heinous to the puerile, including placing dead animals and animal parts-birds, cats, rabbits, deer, and squirrels-at his victims’ houses; planting fake bombs; dumping oil and blood on houses; spraypainting epithets and obscenities such as “slut whore,” “slut bitch,” and “fag, queer, homo,” as well as messages such as “I’ll come back,” “I be back,” and “I will be back,” on houses and garages; puncturing over 150 tires, breaking car windows, “keying” or scratching cars and damaging car interiors; cutting telephone wires; throwing rocks, bricks, concrete chunks, beer and pop cans and other objects through windows; egging houses and garages; placing broken beer bottles in front of a garage; and calling in fictitious pizza orders and placing fictitious want ads. The conduct alleged in the complaint took place in Ramsey and Dakota Counties and was often committed by stealth under the cover of darkness.

Id. at 912.

We agree with Morris that Murphy’s conduct was more egregious than his in some respects. As the supreme court specifically noted, Murphy’s conduct occurred over a ten-year period, was committed by guile and concealment in the night, was an invasion of the victims’ zones of privacy, and evinced the likelihood of repetitive behavior. Id. at 917. These egregious factors were not present in Morris’s conduct. But Murphy does not purport to establish a minimum standard for imposing a sentence that is a greater-than-double departure. The fact that Murphy’s conduct was more serious than Morris’s conduct does not mean that the trial court abused its discretion by imposing the statutory-maximum sentence.

Furthermore, Morris’s conduct was more serious than Murphy’s in at least one significant way. Murphy’s threats terrorized his victims and caused them great inconvenience. But with the exception of throwing objects through windows, Murphy did not create an immediate risk of physical injury to his victims. In contrast, Morris’s threats caused a standoff situation that was fraught with the risk of serious physical injury to police officers and residents of the surrounding neighborhood.

In making his threats, Morris went well beyond a risk of causing terror and public inconvenience. Morris created a situation that posed a threat of serious physical injury, and by continuing his threats, he sustained this situation until police ultimately had to subdue him due to a reasonable concern for public safety.

DECISION

Because Morris’s threats caused a standoff situation that involved dozens of police officers, lasted for several hours, forced the evacuation of residences in the surrounding neighborhood, and created an immediate risk of physical harm to police officers and residents of the surrounding neighborhood, the trial court did not clearly abuse its discretion by imposing a 60-month, statutory-maximum sentence.

Affirmed.


author: HARTEN, Judge.

text:
    Craig DACHTERA, et al., Respondents, v. Donald WHITEHOUSE, et al., Appellants.
    No. C5-99-1741.
    Court of Appeals of Minnesota.
    April 18, 2000.
    Robert B. Bauer, Staci L. Herr, Michael G. Dougherty, Severson, Sheldon, Dough-erty & Molenda, Apple Valley, MN (for appellants).
    John Harper, III, Terrance J. Wagener, Krass Monroe, Minneapolis, MN (for respondents).

      Considered and decided by HARTEN, Presiding Judge, DAVIES, Judge, and FOLEY, Judge.

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

   OPINION

HARTEN, Judge.

After respondents terminated the contract between the parties, appellants sought to arbitrate pursuant to Minn.Stat. § 325E.37 (1998). Respondents brought this declaratory judgment action to determine the statute’s application and to stay arbitration. Appellants now challenge the summary judgment and the stay of arbitration granted to respondents. Because we conclude that appellants have no statutory right to arbitration, we affirm.

FACTS

Respondent Craig Dachtera is the sole shareholder, president, and employee of respondent Dachtera Sales, Inc. (DSI). DSI’s business involves entering into sales representative agreements with manufacturers of components to sell the components to equipment manufacturers.

DSI entered into a contract with appellants Donald Whitehouse and Whitehouse & Assoc., Inc. (WAI), who were also in the business of entering into sales representative agreements with component manufacturers. The contract provided that WAI, as DSI’s agent, would service specific accounts on behalf of DSI and would be compensated $2,000 per month plus 70% of the commissions received by DSI on sales made by WAI. DSI later terminated its contract with WAI.

ISSUE

Does Minn.Stat. § 325E.37 (1998) apply to the parties?

ANALYSIS

Statutory construction is a question of law, which we review de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990). The application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. Boubelik v. Liberty State Bank, 553 N.W.2d 393, 402 (Minn.1996).

Minn.Stat. § 325E.37, subd. 1 (1998) provides that:

(d) “Sales representative” means a person who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission.
Sales representative does not include a person who:
(1) is an employee of the principal;
(2) places orders or purchases for the person’s own account for resale;
(3) holds the goods on a consignment basis-for the principal’s account for resale; or
(4) distributes, sells, or offers the goods, other than samples, to end users, not for resale.
(e) “Sales representative agreement” means a contract or agreement, either express or implied, whether oral or written, for a definite or indefinite period, between a sales representative and another person or persons, whereby a sales representative is granted the right to represent, sell, or offer for sale a manufacturer’s, wholesaler’s, assembler’s, or importer’s goods by use of the latter’s trade name, trademark, service mark, logotype, advertising or other commercial symbol or related characteristics, and in which there exists a community of interest between the parties in the marketing of the goods at wholesale, by lease, agreement, or otherwise. ‘Wholesale orders” means the solicitation of orders for goods by persons in the distribution chain for ultimate sale fit retail.

(Emphasis added.) Subdivision 5 provides that:

(a) The sole remedy for a manufacturer, wholesaler, assembler, or importer who alleges a violation of any provision of this section is to submit the matter to arbitration. A sales representative may also submit a matter to arbitration, or in the alternative, at the sales representative’s option prior to the arbitration hearing, the sales representative may bring the sales representative’s claims in a court of law, and in that event the claims of all parties must be resolved in that forum.
(c) The decision of any arbitration hearing under this subdivision is final and binding on the sales representative and the manufacturer, wholesaler, assembler, or importer. The district court shall, upon application of a party,- issue an order confirming the decision.

Appellants claim that subdivision 5 entitles them to arbitrate their dispute with respondents.

At the threshold, appellants contend that the district court lacked subject matter jurisdiction because the issue of arbitrability is to be determined in the first instance by an arbitrator, not a court. They rely on Minnesota Educ. Ass’n. v. Independent Sch. Dist. No. 495, 290 N.W.2d 627 (Minn.1980). But appellants’ reliance is misplaced. Minnesota Educ. Ass’n. is distinguishable on two grounds.

First, Minnesota Educ. Ass’n sets forth procedures for three situations: (1) when the parties have evinced a clear intent to arbitrate a controversy arising out of a specific provision of a contract, the matter is for the arbitrators to determine; (2) if the parties’ intent as to the scope of the arbitration clause is reasonably debatable, the issue of arbitrability is to be determined by the arbitrators; and (3) if there is no agreement to arbitrate either in fact or because the controversy sought to be arbitrated is not within the scope of the arbitration clause of the contract, the court may interfere and prevent a party from being compelled to arbitrate. Id at 629. In Minnesota Educ. Ass’n, the parties’ intent was reasonably debatable, and arbi-trability was therefore to be determined by the arbitrators. Id. at 629-30. Here, because the dispute is between a sales representative and its subagent, also a sales representative, the controversy is not within the scope of the statutory arbitration clause, and the district court was correct in refusing to compel arbitration.

Second, in Minnesota Educ. Ass’n the arbitration clause at issue was part of a contract. The clause at issue here is statutory, Minn.Stat. § 325E.37, subd. 5. The Uniform Declaratory Judgments Act, Minn.Stat. § 555.01-02 (1998), provides that any person whose rights are affected under a statute may obtain a declaration of those rights from a court. Therefore, the district court had subject matter jurisdiction over the issue of arbitrability.

Appellants go on to argue that respondents waived their right to object to arbitration by not filing their declaratory judgment action until arbitration had progressed through payment of filing fees and selection of an arbitrator. Appellants rely on Helmerichs v. Bank of Minneapolis & Trust Co., 349 N.W.2d 326, 327 (Minn.App.1984), review denied (Minn. Dec. 20, 1984), holding that a party waived the right to object where the party did not object to arbitration until after the hearing and the final decision. Here, respondents filed their action before the hearing; they did not waive their right to oppose arbitration.

Finally, appellants argue that respondents are “principals” within the meaning of Minn.Stat. § 325E.37. The term “principal” is not defined in the statute. It is used in subdivision 1(d), which defines a “sales representative” as one “who contracts with a principal to solicit wholesale orders.” “Sales representative agreement” is defined in subdivision 1(e) as a contract “between a sales representative and another person or persons, whereby a sales representative is granted the right to represent, sell, or offer for sale a manufacturer’s, wholesaler’s, assembler’s, or importer’s goods.” Thus, the “person or persons” with whom the sales representative contracts in subdivision 1(e) is the “principal” referenced in subdivision 1(d) and is also the manufacturer, wholesaler, assembler, or importer of goods that the sales representative may represent, sell, or offer for sale, pursuant to subdivision 1(e).

The agreement between respondents and appellants did not involve the manufacturing, wholesaling, assembling, or importing of goods; it involved respondents hiring appellants to service some accounts. It was not a sales representative agreement within the meaning of the statute, and the arbitration clause therefore does not apply to it.

DECISION

Minn.Stat. § 325E.37 applies to agreements between a sales representative and a principal, not to agreements between two sales representatives. Because the parties’ agreement was not a “sales representative agreement” within the meaning of Minn.Stat. § 325E.37, appellants had no statutory right to arbitration.

Affirmed.

      . Appellants also allege three procedural errors on the part of the district court. First, they claim the district court erred in failing to rule on their motions to dismiss respondents’ complaint. But although the summary judgment did not explicitly address appellants' motions, it rendered them moot. Second, appellants contend that they were unable to file a reply brief because respondents’ brief responding to appellants' motion to dismiss was untimely. But in effect, the parties filed cross-motions for summary judgment, and when cross-motions are involved, a decision may be rendered even though one motion is not timely filed. See, e.g., Kabanuk Diversified Invs., Inc. v. Credit Gen., Ins. Co. 553 N.W.2d 65, 69 (Minn.App.1996), review denied (Minn. Oct. 28, 1996). Third, appellants contend they were prejudiced because they could not refute in writing respondents’ arguments. But appellants neither used the time available to submit a reply brief, nor sought an extension, nor addressed respondents’ arguments orally. They show no prejudice.