author: LAVORATO, Chief Justice. SNELL, Justice CADY, Justice

text:
    STATE of Iowa, Plaintiff-Appellee, v. John CASTANEDA, Defendant-Appellant.
    No. 98-0835.
    Supreme Court of Iowa.
    Jan. 18, 2001.

      Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Pahl E. Kittredge, Jr., Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

A jury convicted John Castaneda of sexual abuse in the second degree of his ten-year-old adopted daughter. He appealed from the judgment of conviction and sentence, contending that the district court abused its discretion in admitting damaging testimony from his former wife. He also contends the district court violated his Sixth Amendment right to confrontation when it allowed into evidence a videotaped interview of the daughter and a transcript of that interview. We transferred the case to the court of appeals, which affirmed. On further review of the court of appeals decision, we vacate that decision, reverse the judgment of conviction and sentence, and remand for a new trial.

I. Background Facts and Proceedings.

In the early 1990s, Castaneda and his former wife, Patricia Johnson, moved to Sioux City, Iowa, from California. In Sioux City, Castaneda worked as a substitute teacher and later became a full-time teacher at a Sioux City elementary school.

In 1992 Castaneda and Johnson became foster parents to S.C. and her brother, M.C. Johnson worked at night, leaving Castaneda alone with the children. On occasions when Johnson returned from work, she found S.C. sleeping in Castaneda’s room, sometimes while Castaneda was sleeping there too.

On several occasions, Johnson saw Castaneda and S.C. together in bed. This angered Johnson, and she talked to Castaneda about it. The practice, however, continued.

In 1994 Castaneda and Johnson were in the process of adopting S.C. and M.C. During this time, Johnson moved out of .the home, and eventually she divorced Castaneda. Castaneda, however, went forward with the adoption, which the district court finalized in 1995.

Before the adoption became final, S.C. told a grade-school friend that Castaneda had raped her. As a foster care parent, Castaneda was a mandatory reporter. As such, he felt legally bound to report the allegation to the Iowa Department of Human Services, which he did. The department determined the accusation was unfounded.

Later, the department received a complaint that Castaneda had physically abused S.C. It was during this investigation that the allegations of sexual abuse in question surfaced. The department reported the complaint to the police, after which S.C. and M.C. were removed from Castaneda’s home.

On May 8, 1996, the police had the Marion Health Center Child Protection Center interview S.C. Janet Kircher, a social worker employed at the center, conducted the interview, which was videotaped. During the interview, S.C. related that over the past two years, beginning when she was eight years old, Castaneda had on five to seven occasions committed various sex acts upon her or looked at her while she was naked.

Dr. Patrick James Duey conducted a medical examination of S.C. and determined the examination was consistent with a Class 3 examination. A Class 3 examination is classified as one that is suspicious for abuse.

Based on the interview and the medical examination, the State charged Castaneda on June 3 with three counts of sexual abuse in the second degree, see Iowa Code §§ 702.17, 709.1, 709.3(2) (1995), a class B felony, and one count of indecent contact with a child, see Iowa Code § 709.12, an aggravated misdemeanor.

On December 3 Castaneda’s attorney attempted to depose S.C. During the deposition, S.C. was uncooperative and frequently tried to evade answering the attorney’s questions. She said she did not want to talk about the alleged sexual abuse. S.C. referred the attorney to her videotaped interview. Although she often said that she did not remember, S.C. did answer some of the attorney’s questions about the alleged sex acts that Castaneda supposedly had committed.

On February 17, 1997, the State filed a “Notice of Intent to Use Videotape” pursuant to Iowa Rules of Evidence 803(24) and/or 804(b)(5), and Iowa Code section 910A.14(3) (providing that recorded statements of a child describing sexual contact with or on the child may be admitted if the statements substantially comport with the requirements for admission under Iowa Rule of Evidence 804(b)(5), the residual hearsay exception). In its motion, the State noted that a probability existed that S.C. would be deemed “unavailable” pursuant to Iowa Rule of Evidence 804(a).

Castaneda argued that the State had not shown that S.C. was “unavailable” to testify. For that reason, Castaneda insisted that, if the court allowed the State to use the videotaped interview, such use would violate his Sixth Amendment right to confrontation.

Following a hearing, district judge Dew-ie J. Gaul found the videotaped interview met the requirements of the rule regarding the residual hearsay exception. The judge also found that the videotaped interview was more probative than the deposition testimony that was filled with the child’s reluctance to talk and unwillingness to give answers. However, the judge declined to rule on the admissibility of the videotaped interview at this time, pending a determination at the time of trial as to whether S.C. was unavailable to give live testimony.

On April 3 district judge Michael S. Walsh presided over a second hearing on the admissibility of the videotaped interview. The judge reviewed the videotape, a report from Dr. Richard C. Brown — a doctor who had interviewed S.C. — and the deposition. The judge, over Castaneda’s objections, concurred with judge Gaul’s ruling. Judge Walsh also found that S.C. was “unavailable” to testify at trial and ruled that the State would be allowed to admit the videotaped interview to the extent it was otherwise admissible.

On April 27 the parties tried the case to the jury. Because the jury was unable to reach a unanimous verdict, the court granted Castaneda’s motion for mistrial.

On January 13, 1998, before the start of the second trial, Castaneda filed a motion asking the district court to reconsider whether S.C. was unavailable to testify. Castaneda also asked the court to rule that the proposed testimony of Patricia Johnson concerning sex acts she allegedly performed on him while he was observing children was irrelevant, as well as unfairly prejudicial, and therefore inadmissible.

District judge Phillip S. Dandos presided over the hearing on Castaneda’s motion and the second trial. The hearing on the motion was held immediately prior to the beginning of the second trial on March 16, 1998. In addition to the previous rulings by judges Gaul and Walsh, judge Dandos considered a letter from S.C.’s therapist, social worker Doreen M. Loeffelholz. Based upon this letter and the previous findings of judges Gaul and Walsh, judge Dandos held that S.C. was “currently unavailable to testify at trial; that were she brought in to testify that this would be damaging to her and that it would add little, if anything, to the evidence in this case.” Judge Dandos ruled the videotaped interview and transcript of that interview were admissible.

At the hearing, Castaneda’s attorney did not object to the therapist’s letter and, in fact, waived any objection to the admission of the videotaped interview and transcript.

Over Castaneda’s objections, judge Dan-dos also ruled that Patricia Johnson’s testimony was admissible. Judge Dandos concluded that Johnson’s testimony was admissible only to the extent that it “goes to intent.”

On March 24 the jury returned verdicts of not guilty on all charges except as to one count of sexual abuse in the second degree. The court sentenced Castaneda to an indeterminate twenty-five-year term.

This appeal presents two issues. First, did the district court abuse its discretion in allowing Johnson’s testimony about the sex acts she allegedly performed upon Castaneda? Second, did the district court violate Castaneda’s Sixth Amendment right to confrontation when it admitted into evidence S.C.’s videotaped interview and a transcript of that interview?

II. Evidence of Prior Sexual Acts With One Other Than the Victim.

A. The parties’ contentions. In a hearing on a pretrial motion, Castaneda objected to Johnson’s testimony about the alleged oral sex acts she performed upon Castaneda on two different occasions while he was allegedly observing children playing. He contended that the testimony was irrelevant under Iowa Rules of Evidence 401 and 402. He contended further that, even if relevant, the probative value of this evidence was outweighed by its unfairly prejudicial nature under Iowa Rule of Evidence 403. Finally, he contended such testimony constituted character evidence governed by Iowa Rule of Evidence 404 and not admissible.

The State contended that the testimony was admissible under rule 404(b) to show intent. Over Castaneda’s objections, the district court allowed the testimony.

Specifically, the court ruled that the testimony would be “strictly limited to the purpose of showing any intent on the part - of the defendant to commit the crimes alleged.”

On appeal, Castaneda reasserts the objections to Johnson’s testimony that he made in the district court. The State asserts that the district court did not abuse its discretion in admitting her testimony because the activity Johnson described indicated that Castaneda was fantasizing about having sexual activity with children. The State therefore asserts that Johnson’s testimony was relevant as to intent to have indecent contact with S.C. Additionally, the State asserts that, even if prejudicial, Johnson’s testimony was not unfairly prejudicial.

B. Applicable law. Iowa Rule of Evidence 404(b) provides that

[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The rule is a codification of our common-law rule that one crime cannot be proved by proof of another. The purpose of the common-law rule was to “exclude from the jury’s consideration evidence which has no relevancy except to show that the defendant is a bad person and thus likely committed the crime in question.” State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979). Under the common law, evidence that was “relevant to prove some fact or element in issue other than the defendant’s criminal disposition escapefd] the rule’s prohibition.” Id. This court accordingly recognized certain categories of permissible objectives for proof of prior criminal acts. Id. These categories included:

“(1) motive, (2) intent, (3) absence of mistake -or accident, (4) a common scheme or system of criminal activity embracing the commission of two or more crimes so related that proof of one tends to prove the other, (5) identity of the person charged with the commission of a crime.”

Id. (quoting State v. Folkens, 281 N.W.2d 1, 5 (Iowa 1979)).

Under rule 404(b), we continue to recognize that there must be some factual issue raised to permit evidence of other crimes, wrongs, or acts under the noted exceptions. See State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988). If the evidence meets this test, it is prima facie admissible, even though the evidence’s tendency is to demonstrate the defendant’s bad character. Plaster, 424 N.W.2d at 229.

In determining whether the challenged evidence is admissible, the district court must employ a two-step analysis. Id. The court must first decide whether the evidence is relevant. Id. If it is not relevant, then the challenged evidence is inadmissible. Iowa R. Evid. 402 (“Evidence which is not relevant is not admissible.”). However, if the court finds that the challenged evidence is relevant, the court must then decide whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice....”); Plaster, 424 N.W.2d at 231; see also Cott, 283 N.W.2d at 328-29 (employing a similar two-step analysis under the common-law rule). “An affirmative finding in this balancing process precludes admissibility of even relevant evidence.” Plaster, 424 N.W.2d at 231. In employing the two-step analysis, the district court must exercise its discretion. Id. at 229. We will reverse its decision only when we find a clear abuse of discretion. Id.

C. Analysis. We assume without deciding that Johnson’s testimony was relevant. However, for reasons that follow, we believe the testimony was unfairly prejudicial, and the district court abused its discretion in admitting it into evidence.

Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R. Evid. 401 (emphasis added). All relevant evidence is admissible except for certain exceptions not applicable here. Iowa R. Evid. 402.

Even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice....’’ Iowa R. Evid. 403. Probative value gauges the strength and force of relevant evidence. Plaster, 424 N.W.2d at 231.

“Unfair prejudice” in rule 403 is defined as “ ‘an undue tendency to suggest decisions on an improper basis, commonly though not necessarily, an emotional one.’ ” Id. (quoting Fed.R.Evid. 403 advisory committee’s note). Evidence, therefore, that

“appeals to the jury’s sympathies, arouses its sense of horror, provokes its instincts to punish, or triggers other mainsprings of human action may cause a jury to base its decision on something other than the established propositions in the case. The appellate court may conclude that ‘unfair prejudice’ occurred because an insufficient effort was made below to avoid the dangers of prejudice, or because the theory on which the evidence was offered was designed to elicit a response from the jurors not justified by the evidence.”

Id. at 231-32 (quoting 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 403[03], at 403-33-40 (1986)).

As mentioned, the State charged Castaneda with three counts of sexual abuse in the second degree and those counts included the following acts: (1) contact between his finger or hand and S.C.’s genitalia (count I), (2) contact between his genitalia and her genitalia (count II), and (3) contact between his mouth and her genitalia (count III). The State also charged Castaneda with indecent contact with a child (count IV) in that he “fondled or touched the breast” of S.C. “with the specific intent to arouse or satisfy” his sexual desires or those of S.C.

As to count IV (indecent contact with a child), the district court instructed the jury that the State was required to prove that Castaneda “fondled or touched the breast” of S.C. “with the specific intent to arouse or satisfy” his sexual desires or those of S.C. (Emphasis added.) As to the remaining three counts, the court instructed the jury that the State was required to prove that Castaneda “performed a sex act with [S.C.] by the conduct specified in counts I, II, and III. In the specific intent instruction, the court instructed the jury that “specific intent” means doing an act “with a specific purpose in mind.” Additionally, in this instruction, the court told the jury that “[i]t is only necessary to prove specific intent regarding the crime of indecent contact with a child under count IV and is not necessary under counts I, II, and III.”

In support of its contention that Johnson’s testimony was admissible under rule 404(b), the State argues that it had to prove Castaneda’s specific intent in order to convict him of indecent contact with a child. The State further argues that Johnson’s testimony “had significant probative value to prove Castaneda’s intent and to allay any doubt that Castaneda touched S.C.’s breast accidentally, or that S.C. misinterpreted an innocent action.” Finally, the State argues that “although Johnson’s testimony may have prejudiced Castaneda’s case, it bore on a legitimate issue and was not unfairly prejudicial.”

Johnson’s testimony, to the extent it had any probative value, bore on Castaneda’s specific intent — the consequential fact — an element in count IV.

The jury did not convict Castaneda of count IV, the count requiring specific intent. Rather the jury convicted Castaneda of only one count — count III (contact between his mouth and her genitalia) and found him not guilty on the remaining counts. This is significant because this act is similar to the act Johnson claimed she performed on Castaneda while he was observing children. The jury likely inferred from this testimony that Castaneda (1) was sexually fantasizing about children at the same time he was relieving himself sexually and (2) would therefore be prone to engage in similar acts with a child, in this case, S.C. While it is tempting to draw such an inference, it is precisely this kind of character inference that rule 404(b) was designed to prevent a jury from drawing. Obviously, Johnson’s testimony — which was in the context of children — would arouse a jury’s sense of horror and would provoke its instinct to punish and base its decision on this testimony rather than on the issue of specific intent.

As one court wisely observed concerning prior acts evidence:

When jurors hear that a defendant has on earlier occasions committed essentially the same crime as that for which he is on trial, the information unquestionably has a powerful and prejudicial impact. That, of course, is why the prosecution uses such evidence whenever it can. When prior acts evidence is introduced, regardless of the stated purpose, the likelihood is very great that the jurors will use the evidence precisely for the purpose it may not be considered[:] to suggest that the defendant is a bad person, a convicted criminal, and that if he “did it before he probably did it again.”

United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir.1994).

In the same vein, one writer suggests that when prosecutors rely on uncharged conduct to prove intent

there is a grave risk that the jurors will be tempted to return a guilty verdict on an improper basis. Evidence of the accused’s uncharged misconduct is potentially prejudicial because the jurors perceive the uncharged conduct as immoral and consequently react adversely to the accused. For the most part, it is the accused’s wrongful intent which gives the conduct its perceived immoral quality. As Shakespeare wrote, “[T]here is nothing either good or bad, but thinking makes it so.” When a writer wants to express the thought that a person has a criminal disposition, the writer frequently describes the person as a “criminal mind”- — -rather than a criminal arm or leg. Suppose that the jury concludes that the accused has a warped mind inclined to criminal intent. That conclusion can cause the jurors to experience the very type of revulsion which the character evidence prohibition is designed to guard against.

Edward J. Imwinkelried, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575, 583 (1990).

The State contends there was no prejudice. In support of its contention, the State points out the following. First, the district court’s limiting instruction told the jury that they could use Johnson’s testimony only to determine Castaneda’s intent. Second, the court also instructed the jury that the State had to prove intent with respect to the charge of indecent contact, but not with respect to the three charges of second degree sexual abuse. Last, because the jury found Castaneda not guilty of indecent contact, the State argues that under the court’s instruction the jurors could not make any further use of Johnson’s testimony.

The specific intent instruction did advise the jury that the State only had to prove specific intent regarding the crime of indecent contact with a child under count IV and it was not necessary to prove such intent under counts I, II, and III. Contrary to the State’s assertion, however, nowhere in the instructions, did the court tell the jury that it could not consider Johnson’s testimony on the other three charges under counts I, II, and III. In fact, the district court’s limiting instruction as worded actually permitted the jury to consider her testimony on all the charges. One of those charges included the very one of which Castaneda was convicted. On this point, the limiting instruction stated: “You may use [Johnson’s testimony] only for the purpose of determining the defendant’s intent to commit the crimes alleged.”

Moreover, even had the district court given a correct limiting instruction, we think it would not have removed the unfairly prejudicial nature of Johnson’s testimony. Her testimony was so inherently prejudicial that no amount of admonition by the court was sufficient to remove the prejudice.

In State v. Marvin, 197 Iowa 443, 197 N.W. 315 (1924), the State had charged the defendant with lascivious acts with a child. The trial court withdrew from the jury’s consideration evidence of similar prior bad acts with another child. Id. at 444, 197 N.W. at 315-16. On appeal, this court granted a new trial, holding that, given the nature of the testimony, the trial court’s action was not enough to remove the harmful effect of such testimony to the defendant. Id. at 444, 445, 197 N.W. at 316. On this point, the court said:

Did the withdrawal of the questioned testimony from the consideration of the jury cure the error of its admission in the first instance? We think not, and the reason is obvious. The evidence would leave in the minds of the jurors the impression of the defendant’s proneness to do such things, and the knowledge which the jury had received in relation to the acts of the defendant with another girl could not be erased by a mere direction on the part of the trial court, when it was determined that such evidence should be held inadmissible.

Id. at 445, 197 N.W. at 316. We think the same can be said here. See also State v. Hardy, 492 N.W.2d 230, 234 (Iowa App.1992) (holding that because of substantial unfairly prejudicial nature of prior assault convictions, curative instruction that the jury could consider the evidence for the limited purpose of showing defendant’s intent was inadequate to alleviate the unfair prejudice).

Because the probative value of Johnson’s testimony was substantially outweighed by the danger of unfair prejudice, we reverse Castaneda’s conviction and remand for new trial. As this case must be retried, we address another issue that may arise on retrial.

III. The Sixth Amendment Right to Confrontation: The Videotaped Interview and Interview Transcript.

A. The parties’ contentions. Castaneda contends the district court denied him his constitutional right to confront witnesses against him when the court ruled that the jury would be allowed to view S.C.’s videotaped interview and consider the transcript of that interview.

Because Castaneda’s trial counsel did not object to the admission of the videotaped interview and the transcript, Castaneda’s appellate counsel has argued the confrontation issue in the context of an ineffective-assistance-of-eounsel claim. As mentioned, this case must be retried. We therefore dispense with an analysis of the ineffective-assistanee-of-eounsel claim and proceed to consider the issue for guidance on retrial.

The State concedes that the videotaped interview was hearsay. However, the State contends no constitutional violation occurred. In support of its contention, the State relies on the residual exception for hearsay found in Iowa Rule of Evidence 804(b)(5).

Our review of Castaneda’s constitutional right to confrontation is de novo. See State v. Rojas, 524 N.W.2d 659, 662 (Iowa 1994).

B. Applicable law.Iowa Rule of Evidence 802 provides that “[hjearsay is not admissible except as provided by the Constitution of the State of Iowa, by statute, by [the rules of evidence], or by other rules of [this court].”

Iowa Rule of Evidence 804(b)(5) provides:

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(5) A statement not specifically covered by any of the foregoing exceptions but having the equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known 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 it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

(Emphasis added.) The State contends S.C. was “unavailable” under Iowa Rule of Evidence 804(a)(4), which provides that a declarant is unavailable when the declar-ant “is unable to be present or to testify at the trial or hearing because of death or then existing physical or mental illness or infirmity." (Emphasis added.) The district court concluded that S.C. was unavailable because the evidence showed she suffered from posttraumatic stress disorder related to the alleged sexual abuse.

The Sixth Amendment to the Federal Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Sixth Amendment is binding on the states through the Fourteenth Amendment to the Federal Constitution. Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638, 651 (1990).

Although the Supreme Court has recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, the Court does not equate the Confrontation Clause’s prohibitions with the general rule prohibiting the admission of hearsay statements. Id. at 814, 110 S.Ct. at 3146, 111 L.Ed.2d at 651; Rojas, 524 N.W.2d at 664. In other words, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. Id.

In Ohio v. Roberts, the Court recognized that, if the clause were read literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial. 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597, 605 (1980). The Court also recognized that, if the clause were applied in this manner, every hearsay exception would be abrogated, a result the Court has “long rejected as unintended and too extreme.” Id. at 63, 100 S.Ct. at 2537, 65 L.Ed.2d at 605-06. Relying on prior precedent and policies supporting the clause, the Court, however, noted that the clause was intended to exclude some hearsay. Id. at 63, 100 S.Ct. at 2537, 65 L.Ed.2d at 606. The two important policies underlying the clause, according to the Court, was a preference for face-to-face confrontation at trial and the right of cross-examination. Id.

Nevertheless, the Court recognized that competing interests “may warrant dispensing with confrontation at trial.” Id. at 65, 100 S.Ct. at 2538, 65 L.Ed.2d at 607; accord Rojas, 524 N.W.2d at 664. To accommodate these competing interests, the Court adopted “a general approach” for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. Roberts, 448 U.S. at 65, 100 S.Ct. at 2538, 65 L.Ed.2d at 607; Rojas, 524 N.W.2d at 664. The Court noted that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.” Id. “First, in conformance with the Framers’ preference for face-to-face accusation, ... the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Roberts, 448 U.S. at 65, 100 S.Ct. at 2538, 65 L.Ed.2d at 607; accord Rojas, 524 N.W.2d at 664.

Second, once a witness is shown to be unavailable, the witness’ statement is admissible only if the statement “bears adequate ‘indicia of reliability.’ ” Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608; Rojas, 524 N.W.2d at 664. Reliability, according to the Court, “can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id. In other cases, the Court insisted, “the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Id.

Applying this general framework of analysis, the Court in Roberts held that the admission of testimony given at a preliminary hearing, in which the declarant failed to appear at trial despite the State’s issuance of five separate subpoenas to her, did not violate the Confrontation Clause. 448 U.S. at 66-77, 100 S.Ct. at 2540-45, 65 L.Ed.2d at 609-15. The Court found that, (1) the State had carried its burden of showing that the declarant was unavailable to testify at trial, and (2) the testimony at the preliminary hearing bore sufficient in-dicia of reliability because defense counsel had an adequate opportunity to cross-examine the declarant. Id.

In Wright, the Supreme Court applied the Roberts framework of analysis to hearsay statements of a three-year-old victim of sexual abuse. The trial court found, and defense counsel agreed, that the child was incapable of communicating with the jury. For that reason, the Supreme Court assumed the child was an unavailable witness within the meaning of the Confrontation Clause. Wright, 497 U.S. at 816, 110 S.Ct. at 8147, 111 L.Ed.2d at 652.

The remaining question in Wright was whether the child’s incriminating statements to a doctor bore sufficient indicia of reliability to withstand scrutiny under the Confrontation Clause. The trial court had admitted the statements under the residual hearsay exception. As to the issue of “indicia of reliability” the Court first noted that the residual exception is not a firmly rooted hearsay exception for Confrontation Clause purposes. Wright, 497 U.S. at 817, 110 S.Ct. at 8147-48, 111 L.Ed.2d at 653; Rojas, 524 N.W.2d at 664. For that reason, the child’s incriminating statements were therefore “ ‘presumptively unreliable and inadmissible for Confrontation Clause purposes.’” Wright, 497 U.S. at 818, 110 S.Ct. at 3148, 111 L.Ed.2d at 654 (quoting Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 2063, 90 L.Ed.2d 514, 528 (1986)). The State was therefore required to show that the child’s incriminating statements had “particularized guarantees of trustworthiness” that must be shown from “the totality of the circumstances.” Id. at 819, 110 S.Ct. at 3139, 3148, 111 L.Ed.2d at 655; Rojas, 524 N.W.2d at 664.

According to the Court, the relevant circumstances include “only those that surround the making of the statement and that render the declarant particularly worthy of belief.” Id. The Court noted that its precedents recognized that statements admitted under a “firmly rooted” hearsay exception (for example an excited utterance and dying declaration) are so trustworthy that adversarial testing would add little to their reliability. Wright, 497 U.S. at 820-21, 110 S.Ct. at 3149, 111 L.Ed.2d at 656. By adversarial testing, the Court obviously meant face-to-face confrontation and cross-examination. The Court then imposed the condition that “evidence possessing ‘particularized guarantees of trustworthiness’ ... must similarly be so trustworthy that adversarial testing would add little to its reliability.” Id. at 821, 110 S.Ct. at 3149, 111 L.Ed.2d at 656.

The Court went on to identify several nonexclusive factors that relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable but declined to endorse a mechanical test for assessing trustworthiness. Rather, the Court decided that trial courts should have considerable leeway to consider other appropriate factors on a case-by-case basis. Id. at 822-23, 110 S.Ct. at 3150, 111 L.Ed.2d at 656-57; Rojas, 524 N.W.2d at 664. These factors (1) bear on “whether the child declarant was particularly likely to be telling the truth when the statement was made” and (2) do not include corroborating evidence. Wright, 497 U.S. at 822, 110 S.Ct. at 3150, 111 L.Ed.2d at 656-57; Rojas, 524 N.W.2d at 664-65. Of the factors the trial court relied on, the Supreme Court found only two relevant: “whether the child had a motive to ‘make up a story of this nature,’ and whether, given the child’s age, the statements are of the type ‘that one would expect a child to fabricate.’ ” Wright, 497 U.S. at 826, 110 S.Ct. at 3151, 111 L.Ed.2d at 659.

Based on the decision in Wright, we conclude that, if a trial court finds that (1) a residual hearsay statement has particularized guarantees of trustworthiness, and (2) the declarant is unavailable to testify, the statement is admissible even in the absence of face-to-face confrontation and cross-examination. We reached the same conclusion in Rojas, 524 N.W.2d at 663.

C. Analysis. Here, the district court had to decide two issues. One, was S.C. unavailable under rule 804(a)(4) (providing that declarant is “unable to be present or to testify at trial or hearing because of death or then-existing physical or mental illness or infirmity”)? Two, did the videotaped interview have the “particularized guarantees of trustworthiness” required of a residual hearsay statement?

As mentioned, just before the second trial started, judge Dandos ruled that S.C. was unavailable to testify at trial. He based his ruling in part on a recent letter from social worker Doreen M. Loeffelholz, S.C.’s therapist. Loeffelholz noted that Castaneda’s alleged sexual abuse of S.C. was being addressed in therapy, but that S.C.

remains very resistive to talking about this.... She becomes very anxious when I approach the subject. Consistently, [S.C.’s] mood, attitude, and behavior clearly convey her extreme uncomfortableness with any conversation or questions related to sexual abuse, John Castaneda, or even the basic subject of sex. She reacts very strongly to the terms “sexual abuse,”' “sex,” and even to Mr. Castaneda’s name. She has asked if I would refer to them by other “code words.” Her overall preference would be that we not even talk about “it” at all.
The various times that I have approached [S.C.] about testifying ... she consistently verbalizes that she does not want to do so because (1) she’s “mad” that people want to make her do something she’s not comfortable with, (2) she’s “mad” and “sad” about how her life has been affected by “all of this,” and (3) she feels “icky” (i.e.: violated and taken advantage of by John Castaneda), and (4) she is scared to see John Castaneda, describing that her stomach gets upset and she feels like she “could throw up.”
It seems clear that [S.C.] would suffer trauma from having to testify either in John Castaneda’s presence, or by closed circuit camera where he is observing, but not present. [S.C.’s] intense feelings would create tremendous difficulty with testifying in court and Mr. Castaneda’s presence would likely retraumatize her in the emotionally vulnerable state that she is in. It is also unlikely that she would be able to communicate the offenses that occurred, and as stated previously, she has expressed her unwillingness to talk about these offenses. If forced, additional physiological and psychological harm would occur.

The State relies on cases from several jurisdictions which have held that a “psychologically unavailable” witness is unavailable for purposes of the Confrontation Clause. We discussed several of these cases in State v. Gregg, 464 N.W.2d 431 (Iowa 1990). However, we ultimately concluded that the facts made that case “an inappropriate case to decide whether to adopt a ‘psychologically unavailable’ justification for substituting a deposition for trial testimony.” Gregg, 464 N.W.2d at 433.

We noted in Gregg that “those jurisdictions that subscribe to the theory apply it with some reluctance, and only in rare circumstances.” Id. at 432. We also noted one court held that “ ‘psychological unavailability must exist to such a degree as to render the witness’ attendance, or his testifying, relatively impossible and not merely inconvenient.’ ” Gregg, 464 N.W.2d at 432-33 (quoting People v. Gomez, 26 Cal.App.3d 225, 230, 103 Cal.Rptr. 80, 83-84 (1972)).

The United States Supreme Court has not articulated specific requirements for the determination of “psychological unavailability.” Nevertheless, we think it is certain, given the serious constitutional implication of the potential loss of a fundamental right, that the standard must necessarily be high. However, one cannot dispute that it is extremely difficult to accurately predict a person’s response to psychological trauma. Therefore, while we must closely guard a defendant’s rights, we must carefully balance those rights against the real potential for harm to tender, and as yet not fully developed, psyches. With this concern in mind, we adopt the stringent Gomez standard of “relatively impossible and not merely inconvenient.” In applying this standard, trial judges should take into consideration the following factors set forth in Warren v. United States:

(1) the probability of psychological injury as a result of testifying, (2) the degree of anticipated injury, (3) the expected duration of the injury, and (4) whether the expected psychological injury is substantially greater than the reaction of the average victim of a rape, kidnapping or terrorist act.... The factors should be weighed in the context of each other, as well as in the context of the nature of the crime and the preexisting psychological history of the witness.

436 A.2d 821, 830 n. 18 (1981).

In Warren, the trial court excused a rape victim from testifying because the medical experts agreed that she “would undergo far greater mental anguish than normally accompanies court appearances of the victims of rapes ... and that her appearance in court ... would be likely to lead to severe psychosis, even possible suicide.” Id, at 828. There was ample record evidence that the witness had suffered severe depression that had reached suicidal levels. Id. Additionally, independent psychiatric evaluation of the witness supported the trial court’s decision, and this independent witness concurred with the opinion of the State’s expert witness. Id. at 828-29.

We think the following passage in Warren aptly sums up our feeling as to when it is appropriate to apply the theory of psychological unavailability:

We do not intend to sanction a new category of medical unavailability in all cases where witnesses are likely to suffer adverse emotional or psychological effects as a result of testifying against their assailants. But in the extreme circumstances presented here, we agree that the grave risks to the witness’ psychological health justify excusing her live in-court testimony. The expert testimony relating to [the victim’s] mental health established that there was both a high likelihood of temporary psychological injury, perhaps even psychosis, and a possibility of permanent psychological injury. We are also persuaded of the correctness of the trial court’s ruling because of the expert’s agreement on the comparative severity of the victim’s probable reaction to testifying again.

Id. at 829-30 (footnote omitted).

At the time of trial in March 1998, S.C. was twelve. She is now fourteen. Two years have passed since Loeffelholz’s examination and letter. By now, S.C. is perhaps able to testify about what allegedly happened to her. On remand, the State will again have the burden to prove S.C. is unavailable if it wants to use the videotaped interview and the transcript of that interview at the retrial of this case. This time the State will be obliged to prove S.C.’s condition meets the test for unavailability we have set out.

Given the lapse of time and the fact that we now have adopted a standard for determining psychological unavailability, prudence dictates a new examination of S.C. The examination should cover the Warren factors and be detailed enough to allow the district court to determine whether S.C. is psychologically unavailable under the standard we have adopted.

If the district court, in applying the standard, determines S.C. is unavailable, the court will then need to determine if the videotaped interview meets the “particularized guarantees of trustworthiness” according to the factors the Supreme Court in Wright found appropriate.

We do not imply the factors in Wright are the only factors a court may consider. We mentioned some additional factors in Rojas. See 524 N.W.2d at 663.

IV. Disposition. Because we conclude the district court erred in admitting the challenged testimony of Castaneda’s former wife, we vacate the decision of the court of appeals, reverse the judgment of conviction and sentence, and remand for a new trial.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED FOR NEW TRIAL.

All justices concur except SNELL and NEUMAN, JJ., who concur specially, and CADY, LARSON, and TERNUS, JJ., who dissent.

SNELL, Justice

(concurring specially).

I concur with the majority opinion holding the case must be reversed and remanded for a new trial. The evidence of the defendant’s prior sexual acts with one other than the victim should have been excluded as inadmissible evidence of a character trait under Iowa Rule of Evidence 404(b), and as unfairly prejudicial evidence under Iowa Rule of Evidence 403.

In addition, the evidence should have been excluded as not relevant under the standards established by Iowa Rule of Evidence 401. The prior-acts evidence is dissimilar to the charged offense to which relevancy is claimed. Defendant’s engaging in a sex act with his wife was not only legal but did not involve children in any illegal act. The State’s assertion of relevancy stretches the word “relevant” in a fashion that would unreasonably admit remotely connected subject matter having sex as a nexus.

NEUMAN, J., joins this special concurrence.

CADY, Justice

(dissenting).

I respectfully dissent from the conclusion reached by the majority that the trial court abused its discretion in admitting the evidence of Castaneda’s prior sex act. I would conclude the trial court acted within its discretion to admit the evidence.

The majority assumes the disputed evidence was relevant to the specific intent element of the crime of indecent contact with a child. This assumption is correct because the intent or state of mind associated with the prior sex act makes it more probable than not that Castaneda would have had the specific intent to arouse or satisfy his sexual desire if other evidence at trial showed he engaged in the prohibited contact with a child. See Iowa Rs. Evid. 401, 404(b). Thus, the fighting question is whether this relevant evidence is nevertheless inadmissible because “its probative value is substantially outweighed by the danger of unfair prejudice.” Iowa R. Evid. 403.

I acknowledge a danger of prejudice exists by permitting the jury to hear evidence of Castaneda’s prior sex act. However, the danger of unfair prejudice is not enough to exclude evidence under rule 403. The rule requires the probative value of the evidence to be substantially outweighed by the danger of unfair prejudice. This means the evidence arouses “hostility or sympathy for one side without regard to the probative value of the evidence.” 1 John W. Strong, McCormick on Evidence § 185, at 780 (4th ed.1992). Yet, we cannot assume prejudice will occur based simply on the nature of the evidence. Instead, rule 403 requires an assessment of the probative value of the evidence and the degree of danger, followed by a comparison of the two. 2 Clifford S. Fishman, Jones on Evidence § 11:12, at 290 (7th ed.1994).

I agree with the majority that the probative value of the prior act evidence is diminished in this case because the specific intent to engage in the prohibited contact with a child is secondary to whether or not the act occurred. Nevertheless, specific intent remains an element of the crime that the State is required to prove.

On the other hand, the degree of danger posed by the evidence is also diminished. The prior act was not illegal and was factually dissimilar from the act charged. Generally, the greater similarity between the prior act and the crime charged gives rise to a greater risk of unfair prejudice. 3 Clifford S. Fishman, Jones on Evidence § 17:93, at 618 (7th ed.1998). In this case, the factual dissimilarity makes it less likely the jury would misuse the evidence to conclude Castaneda committed the crime charged simply because he may have fantasized about children while committing a sex act with an adult. When evidence is dissimilar, there is less likelihood the jury will misuse it to infer guilt.

Additionally, the likelihood that the pri- or act evidence in this case would generate disgust or shock in such a way to render the jury unable to return a rational verdict is far less than it would be if the prior evidence consisted of an actual sexual abuse of a child. The crime charged in this case is shocking, and most of the evidence to support it will necessarily be shocking. Yet, there is nothing to suggest the jury will react in a particularly strong manner to the particular prior act evidence.

A comparison of the value of the prior act evidence with the fear of prejudice does not produce a clear conclusion that the prior act evidence should be excluded. This conclusion is reinforced by the cautionary instruction given to the jury by the district court and a lack of any indication that the prior act evidence was improperly used in argument.

Our role on appeal in an issue of this nature is not to substitute our judgment for the decision made by the trial judge but to look for a clear abuse of discretion of that decision. We must recognize that the balancing task under rule 403 is difficult, and “[w]ise judges may come to differing conclusions in similar situations.” 1 Strong, § 185, at 782. Thus, trial judges are in the best position to make such decisions and should be given “much leeway.” Id. at 783. The majority has failed to follow this important precept.

LARSON and TERNUS, JJ., join this dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Joyce M. BOHLIN, Relator, v. ST. LOUIS COUNTY/NOPEMING NURSING HOME, Self-Insured, Respondent.
    No. C5-00-1827.
    Supreme Court of Minnesota.
    Jan. 16, 2001.
    Patrick M. Spott, Orman & Nord Law Offices, Duluth, for Plaintiff.
    Alan L. Mitchell, St. Louis County Attorney, Timothy O. Lee, Assistant County Attorney, Duluth, for Defendant.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 20, 2000, be, and the same is, affirmed without opinion. See Minn.R.Civ.App.P. 136.01, subd. 1(b).


author: PER CURIAM.

text:
    Roger D. CLAUSEN, Relator, v. The DOTSON COMPANY, and American Mutual Liability Ins. Co./Minn. Insurance Guaranty Association/MIGA, Respondents, Continental Machines, Inc., and Reliance Insurance Company, Respondents, D.C. Hey Company, and Liberty Mutual Insurance Company, Respondents, and Special Compensation Fund.
    No. C0-00-1864.
    Supreme Court of Minnesota.
    Jan. 17, 2001.
    Rehearing Denied Feb. 14, 2001.
    Roger D. Calusen, Mankato, MN, Pro Se.
    Cousineau, McGuire & Anderson, John T. Thul, Minneapolis, for Respondents Continental Machines’ and Reliance Ins. Co.’s.
    Abrams & Smith, Paul R. Smith, Minneapolis, for Respondents Dotson Company’s and MIGA.
    Conley & Borgeson, Steven C. Gilmore, St. Paul, for Respondents D.C. Hey Co.’s and Liberty Mut. Ins. Co.’s.
    Special Compensation Fund, Workers’ Compensation Division, St. Paul, for Respondent Special Compensation Fund’s.
   ORDER

PER CURIAM.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 26, 2000, be, and the same is, affirmed without opinion. See Minn.R.Civ.App.P. 136.01, subd. Kb).


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Donald Bedelle FULLER, an Attorney at Law of the State of Minnesota.
    No. CX-99-2061.
    Supreme Court of Minnesota.
    Jan. 25, 2001.

      Edward J. Cleary, Director, Patrick R. Burns, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for Petitioner.
    Donald Bedelle Fuller, Pro Se.
   OPINION

PER CURIAM.

In 1999, the Director of the Office of Lawyers Professional Responsibility requested that the Lawyers Professional Responsibility Board find that probable cause existed for either public discipline or a transfer to disability inactive status for attorney Donald Fuller. A Board panel found probable cause for public discipline, but declined to find probable cause for the transfer to disability inactive status. A petition for disciplinary action was then filed and we referred the matter to a referee for a hearing. The referee recommended that Fuller be suspended indefinitely from the practice of law for a minimum of one year, that he complete a psychological evaluation, and that he follow any recommendations of the evaluation. Fuller challenges the referee’s recommendations. We indefinitely suspend Fuller from the practice of law with no minimum term and place conditions on his reinstatement.

Donald Fuller has had a long legal career marked by many achievements. In 1971, Fuller graduated from the University of Illinois Law School and was admitted to the practice of law in Illinois. He entered the Marine Corps in 1972 and served on active duty until June 1976. In 1974, Fuller was certified as a military judge, which certification is still current. From 1976 through 1983, Fuller practiced law in Illinois and remained a reserve officer with the Marines. Fuller then re-entered the Marines on active duty until he was discharged in 1986. He remained in the Marine Reserves until he retired in 1994 as a full colonel. Fuller moved to Minnesota in 1987. He passed the Minnesota bar exam and was admitted to the practice of law in Minnesota in 1990. In addition to his Minnesota attorney license, Fuller is licensed to practice law in the state of Illinois, the Military Court of Appeals, and the United States District Courts for the Districts of Minnesota and Eastern Illinois.

Fuller’s prior disciplinary history consists of two admonitions. On April 12, 1993, he was admonished for violating Minn.R.Prof.Conduet 1.9 for filing a suit for a current client against a former client without obtaining the former client’s consent. On May 20, 1996, he was admonished for failing to pay bad faith attorney fees arising from a March 1995 district court order. In the memorandum issued with the admonition, the Office of Lawyers Professional Responsibility (OLPR) noted that Fuller had conducted a voluminous and irritating letter-writing campaign, which the OLPR stated illustrated poor judgment, but did not cross the line of proper conduct. Fuller disputes this second admonition, asserting that he had signed a note to pay the fees.

Fuller’s current disciplinary problems stem from his representation of Brett Hanson, Hanson’s businesses, and Hanson’s business associates. Fuller began representing Hanson and his businesses in bankruptcy and tax proceedings in 1990. In September 1995, Fuller prepared a Chapter 11 bankruptcy filing for one of Hanson’s businesses, Imprint Technologies, Inc. Fuller maintains that when he agreed to represent Imprint and Hanson in the 1995 Chapter 11 filing, he conditioned his representation on Hanson receiving chemical dependency treatment.

Hanson paid Fuller weekly cash payments as compensation for his work on the Imprint bankruptcy. Fuller testified that before the establishment of this payment method, he learned that Hanson had paid Imprint’s former bankruptcy attorney cash and that the payments were not reported to or approved by the bankruptcy court. Fuller asserts that when he learned of this arrangement, he reported it to the supervising attorney in the U.S. Trustees’ Office and the OLPR, but neither of these entities took action or informed Fuller that the arrangement was illegal. The record is silent as to whether the Trustees’ Office or the OLPR received such a report. When Hanson’s filing check was not honored and Hanson threatened to bring a disciplinary action against Fuller, Fuller asserts that he agreed to accept $290 per week in cash from Hanson and not disclose the payments to the bankruptcy court. Hanson, however, testified that the cash payments were made at Fuller’s request.

In February 1996, at Hanson’s request, Fuller began representing Pamela Jordan in a Chapter 13 bankruptcy proceeding. Jordan was an employee of Imprint and a “partner” of J.D., Inc., Imprint’s predecessor company. The Chapter 13 bankruptcy was filed to protect Jordan from levies against her wages for unpaid withholding taxes due from J.D., Inc. during Jordan’s tenure as a “partner” of the corporation.

On May 2, 1996, the bankruptcy court issued an order confirming Imprint’s reorganization plan and requiring Imprint to file objections to proofs of claim within 30 days of the order date or of the date the claim was filed. In another order issued the same day, the court ordered Imprint to report within 10 days on payments to be made under the reorganization plan.

At this same time in 1996, Fuller was representing Imprint in an unlawful de-tainer action. Fuller had been negotiating with Imprint’s landlords for a number of months in an attempt to obtain a new lease for Imprint and to pay the debt owed for past rent. Despite these efforts, a district court hearing on the unlawful detainer action was scheduled for Tuesday, June 4, 1996. Fuller asserts that 6 days before this hearing, during a conversation with Imprint’s CPA, he learned that Hanson planned to take “up to the $40,000’s” out of Imprint, despite the bankruptcy proceedings. Two days later, on May 31, Jordan and another employee asked Fuller about receiving their payments from Imprint’s 401(k) plan. Fuller asserts that even though he knew some of Imprint’s 401(k) funds were missing, prior to this date he believed that all the money in the 401(k) plan was Hanson’s.

On Saturday, June 1, Fuller received a fax from Hanson essentially stating that Imprint’s landlords should “shove it.” On the next day, Sunday, June 2, Fuller wrote a letter to Hanson about the lease in which, despite the tone of Hanson’s fax, he “gave Imprint the benefit of the doubt.” In the letter, Fuller blamed the delay in obtaining a new lease on the landlords and their attorney. Fuller testified that he then met with Imprint’s CPA and Hanson on Monday, June 3, and learned that the company was moving and Imprint was not going to pay the landlords the money owed as rent. That same day, Fuller also confronted Hanson about the missing 401(k) funds.

On the evening of June 3, after numerous telephone conversations with Hanson, Fuller withdrew from representing Imprint on both the bankruptcy and the unlawful detainer matters. In a letter to Hanson dated June 3, Fuller stated that the reason for the withdrawal was Hanson’s refusal to seek chemical dependency treatment. Fuller did not attend the June 4 unlawful detainer hearing, nor did he file a motion to withdraw from the bankruptcy action. Fuller testified that he did not file any of the required objections to proofs of claims in the bankruptcy proceedings, some of which were due on June 3, because Hanson ordered and threatened him not to do anything. Fuller also testified that he did not take certain other actions because he was afraid of Hanson. At Fuller’s disciplinary hearing, neither Fuller nor the OLPR attorney questioned Hanson about his involvement in or his reaction to Fuller’s withdrawal as his and Imprint’s attorney.

On June 4, Hanson attended the unlawful detainer hearing. Hanson did not inform the court or Imprint’s landlords about Fuller’s withdrawal as the attorney of record, but instead explained Fuller’s absence by telling the court that Fuller had been in a car accident. Following the unlawful detainer hearing, Hanson and the landlords signed a new lease agreement and a past-due payment schedule. Imprint did not comply with either the new lease terms or the payment schedule. At his disciplinary hearing, Fuller attempted to use Imprint’s noncompliance with the new agreement as evidence of the necessity for his withdrawal. He attempted to do this by offering testimony of the landlords, but the referee did not allow the landlords to answer questions on this topic.

On June 6 and 11, Fuller, by letter, notified the attorney for the committee of unsecured creditors and the attorney for the landlords that he had withdrawn from representing Imprint and Hanson due to Hanson’s failure to receive chemical dependency treatment and Hanson’s propensity for writing worthless checks. On June 11, Hanson wrote a letter to Fuller, reminding Fuller that Hanson’s treatment plans were confidential.

Fuller eventually wrote letters about Hanson to over 25 individuals and government agencies, such as Vice President Al Gore, Attorney General Janet Reno, the FBI, the IRS, Hanson’s former attorney, the Minnesota Attorney General’s office, the OLPR, judges involved with Imprint litigation, and creditors of Imprint. In these letters, Fuller accused Hanson of chemical dependency, fraud, intimidation, and murder. In a letter to federal and state tax authorities, Fuller alleged that Hanson had underreported the sale price of some Imprint assets, despite the fact that Fuller had drafted the sale documents and knew the actual sale price, which price was subsequently confirmed by the buyer. Fuller asserts that Hanson told him the price was higher than reported in the documents. Fuller sent letters to some of Hanson’s creditors disclosing Hanson’s pri- or bankruptcies and his conviction for converting Imprint’s 401(k) funds. Fuller also alleged in his letters that Hanson had threatened Fuller and had converted funds to his personal use. Hanson testified that at least one of Imprint’s creditors received such a letter and contacted Hanson about it. In September 1999, Fuller filed a complaint with the bankruptcy court, on behalf of Jordan and himself, objecting to the discharge of Hanson’s debts in his personal bankruptcy. This complaint was dismissed because it was not timely filed.

Hanson filed a disciplinary complaint against Fuller with the OLPR and on September 5,1997, Fuller appeared before the Fourth District Ethics Committee of the Hennepin County Bar Association to respond to Hanson’s allegations. The Committee found the conduct of both Fuller and Hanson, a nonattorney, to be troubling and recommended a further investigation of Fuller by the Lawyers Professional Re-: sponsibility Board (LPRB).

In December 1997, the OLPR requested copies of all letters Fuller had sent regarding Hanson and Imprint and a list of all persons Fuller had contacted. In a reply letter, Fuller listed many of the persons he had contacted, but stated that he did not keep any letters or files relating to Hanson. In August 1998, the OLPR requested additional information from Fuller about his reasons for withdrawing as counsel from Imprint. In response to this request, Fuller sent the OLPR copies of letters dated September 1996 and July 1997 in which he alleged that Hanson made death threats, committed fraud, and abused alcohol. At Fuller’s disciplinary hearing, the addressees of these letters were questioned and neither of them could recall receiving the letters nor could they find the letters in their files.

In February and March 1999, at the suggestion of the OLPR, Fuller agreed to submit to evaluations to be conducted by a psychologist and a psychiatrist. The psychologist who tested Fuller noted in his report that Fuller expressed “pervasive paranoid traits” and that Fuller based his explanations of his conduct on his “ethics, morality, and truth.” The psychiatrist reviewed the psychologist’s report in addition to Fuller’s civilian and military medical records and met with Fuller for four hours. The psychiatrist concluded that Fuller suffered from a Paranoid Personality Disorder. The psychiatrist clarified that this disorder is not one in which the individual is delusional, but instead the disorder can lead to the types of difficulties Fuller has had, such as problems in interacting with clients or interpreting professional regulations. The psychiatrist was not certain that Fuller’s disability would warrant placement on disability status, but the psychiatrist did state that Fuller would benefit from professional help.

In May 1999, the Director of the OLPR requested that a panel of the LPRB find probable cause existed for public discipline or a transfer to disability inactive status. On November 4, 1999, the LPRB panel found probable cause for public discipline, but declined to find probable cause for Fuller’s transfer to disability inactive status. On December 2, 1999, the OLPR filed a petition for disciplinary action. According to the OLPR, the petition, which contains two counts, was based on the complaint filed by Hanson. Count one relates to Fuller’s representation of Imprint and Hanson and alleges improper withdrawal from representation, improper disclosure of client confidences, and failure to disclose the source of Imprint attorney fees in violation of Minn. R. Prof. Conduct 1.16(c), 1.16(d), 1.5(a), 1.6, 3.3(a), 3.4(c), 4.1, 4.4, 8.4(c), and 8.4(d). Count two alleges that Fuller submitted false evidence in a disciplinary investigation in violation of Minn. R. Prof. Conduct 3.3(a)(4), 3.4(b), 8.1(a), and 8.4(c).

On January 10, 2000, we referred the matter to a referee to make findings and conclusions and to recommend a disposition. A hearing on the petition was held before the referee in April 2000. The referee issued his findings, conclusions, and recommendations on May 23, 2000, and recommended that we indefinitely suspend Fuller with a 1 year minimum term, that we require Fuller to successfully complete a mental health evaluation, and that he follow all recommendations of the evaluation. Fuller timely ordered a transcript of the hearing and challenges the findings, conclusions, and recommendations of the referee.

I.

Fuller ordered a transcript of the referee’s hearing under Rule 14(e) of the Rules on Lawyers Professional Responsibility (RLPR) and therefore the findings and conclusions of the referee are not conclusive. See Rule 14(e), RLPR. Nevertheless, we will overturn the findings and conclusions of a referee in a disciplinary proceeding only if they are clearly erroneous. See In re Reiter, 567 N.W.2d 699, 701 (Minn.1997). The referee’s findings on disputed facts are given great deference. See In re Wyant, 533 N.W.2d 397, 400 (Minn.1995). In this appeal, Fuller does not directly dispute most of the factual findings of the referee, but instead argues that his actions were necessary in order for him to fulfill his higher duty to the court and his other clients.

The referee found three separate categories of violations of the Rules of Professional Conduct in Fuller’s handling of his representation of Hanson and Imprint: improper withdrawal from representation, misrepresentations and improper disclosure of client confidences, and failure to disclose fees. The referee found as a fourth violation that Fuller provided false information to the OLPR during the disciplinary investigation. We will proceed to discuss each of the four violation categories separately.

Improper Withdrawal

The referee found that Fuller’s withdrawal from representing Imprint on June 3, 1996 violated Rule 9010-3 of the Local Rules of Bankruptcy Court for the District of Minnesota. Rule 9010 — 3(e) requires that an attorney in Fuller’s position make a motion to withdraw or file the proper substitution papers. See Minn. R.Bankr.P. 9010-3(e). Until an attorney complies with this requirement, he will remain the attorney of record. See id. The referee found that Fuller’s withdrawal from representing Imprint also violated Minn. R. Prof. Conduct 1.16(c) & (d). Rule 1.16(c) requires that an attorney follow any local rules for withdrawal employed by a tribunal and Minn. R. Prof. Conduct 1.16(d) requires that an attorney continue to operate in the interests of the client while withdrawing. Fuller does not dispute that he failed to comply with the bankruptcy court rules for withdrawal as the attorney of record. However, he asserts that he could not continue to represent Hanson and Imprint because doing so would expose him to liability for Hanson’s fraudulent activity. Additionally, Fuller testified that after he notified Hanson of his withdrawal, Hanson stated that he had found alternate counsel and ordered Fuller not to do anything else.

Fuller is correct that he was required to withdraw from representing Imprint once he discovered Hanson’s fraud. See Minn. R. Prof. Conduct 1.16(a)(1). However, despite this duty to withdraw and the pressures applied by Hanson, Fuller is still required to conform to the tribunal’s procedural requirements and the Rules of Professional Conduct. Without furthering any fraud by Hanson or Imprint, Fuller could have appeared in court and made a motion to withdraw without a substitution or he could have withdrawn upon the filing of a substitution of attorney signed by the appropriate parties. See Minn. R. Bankr.P. 9010-3(e). Therefore, we conclude that the referee did not clearly err when he concluded that Fuller’s conduct in withdrawing from the representation of Imprint was improper.

Misrepresentations and Improper Disclosures

The referee made a number of findings in support of his conclusion that Fuller violated Minn. R. Prof. Conduct 1.6(a) & (d) by revealing confidences and secrets gained during representation of Imprint and Hanson. Fuller first argues that Hanson’s chemical dependency and treatment plans were not a client secret because he did not gain the information from his professional relationship with Hanson and that Hanson had given him permission to disclose the treatment plans. Fuller also asserts that referring to Hanson’s need for treatment was much less harmful to Hanson than stating that the reason for his withdrawal was due to an extensive number of improper and fraudulent activities. Hanson testified at Fuller’s disciplinary hearing that he did not recall ever discussing his treatment plans with Fuller and that he never authorized Fuller to disclose his plans. The referee concluded that Fuller disclosed Hanson’s treatment plans, which were a client secret as defined by Minn. R. Prof. Conduct 1.6(d).

The referee also concluded that Fuller had violated Minn. R. Prof. Conduct 1.6(d) when he disclosed that Hanson had written worthless checks. Fuller alleges that although he represented Hanson in the criminal action relating to his worthless checks, Hanson’s conviction for theft by check was a public record, so it cannot be a client secret. The referee agreed with Fuller that disclosure of Hanson’s conviction for theft by check did not violate the Rules of Professional Conduct; however, Fuller did not give any justification for his disclosures that Hanson continually wrote Fuller worthless checks, which the referee concluded to be disclosure of a client secret.

Fuller responds to all the charges of improper disclosure of client confidences by asserting that he was required to disclose the information so he would not be assisting Hanson in illegal activity. Minn. R. Prof. Conduct 1.6(b) provides six circumstances in which an attorney may disclose client confidences. The first exception is that an attorney may disclose a client confidence if he has the consent of the client. See Minn. R. Prof. Conduct 1.6(b)(1). The other exceptions relevant to this petition are that an attorney may reveal “the intention of a client to commit a crime and information necessary to prevent a crime” and “confidences and secrets necessary to rectify the consequences of a client’s criminal or fraudulent act in the furtherance of which the lawyer’s services were used.” Minn. R. Prof. Conduct 1.6(b)(3) & (4). Fuller maintains that his duty to the bankruptcy court required him to disclose: (1) Hanson’s inability to operate due to his alcoholism, (2) Hanson’s continuing practice of issuing worthless checks, and (3) Hanson’s intent to defraud Imprint’s landlords. Fuller explains that throughout his representation of Hanson; parties to the actions relied on Fuller’s integrity, even though they doubted Hanson’s. Therefore, Fuller argues that he was required to disclose that he was not representing Hanson and that the parties should not rely on past representations of Fuller about Hanson’s stability and commitment to pay his debts.

Fuller relies on Minnesota law and federal bankruptcy law for the proposition that he was required to make disclosures to all others in the bankruptcy action. See, e.g., Hoppe v. Klapperich, 224 Minn. 224, 240-241, 28 N.W.2d 780, 791 (1947); In re Rivers, 167 B.R. 288, 301 (Bkrtcy.N.D.Ga.1994). In Hoppe, we concluded that an attorney is a “quasi judicial” officer and that when a client’s interests conflict with the public’s interests, the attorney must first fulfill his duties to the public as an officer of the court. See Hoppe, 224 Minn. at 240-41, 28 N.W.2d at 791. In Rivers, the bankruptcy court explained that when the interests of the debtor in possession conflict with those of the court and the bankruptcy estate, “it is the estate and the court to which the attorney owes his highest allegiance.” 167 B.R. at 301. Fuller argues that his duties to the bankruptcy court and the bankruptcy estate overrode any state law duty to maintain Hanson’s confidences. Additionally, Fuller argues, our pronouncements in Hoppe also dictate that he has a duty to the public to stop the ongoing fraud by his client.

While federal and state law may require-and the Rules of Professional Conduct may authorize-an attorney to disclose the ongoing fraud by a client, it is the scope and methods taken by Fuller that have created the disciplinary problem. Fuller is correct that he could have potential liability for Hanson’s wrongdoing if he provided any assistance to Hanson’s alleged scheme. See Hoppe, 28 N.W.2d at 792. However, Fuller overcompensated and disclosed more information to more persons than the law requires or the Rules of Professional Conduct authorizes.

The referee found that Fuller made unsubstantiated allegations of death threats, underreporting the sale price of some Imprint assets, gambling, and murder. Fuller testified that he believes all of his statements were truthful and that most were based on statements Hanson made to him, but Fuller is unable to provide substantiating factual support. As a result, the referee found that the disclosures by Fuller were not made for any legitimate purpose. The referee then concluded that Fuller’s statements in many of the letters violated Minn. R. Prof. Conduct 3.3(a), 4.1, 4.4, 8.4(c), and 8.4(d).

Even if Fuller could prove the allegations he made in his letters, these disclosures would still need to be justified under Minn. R. Prof. Conduct 1.6(b), which limits the circumstances under which an attorney can reveal client confidences. Although it is plausible for Fuller to argue that he was required to notify the attorney for Imprint’s landlords that Hanson intended to defraud them, it is less plausible for Fuller to argue he was required to notify persons, such as the Vice President and the U.S. Attorney General, of Hanson’s alleged death threats to Fuller, of Hanson’s “serial” bankruptcies, or of Hanson’s theft of the Imprint 401(k) monies. We agree with the referee’s conclusion that Fuller made improper disclosures; therefore, we conclude the referee’s findings and his conclusion that Fuller violated Minn. R. Prof. Conduct 3.3(a), 4.1, 4.4, 8.4(c), and 8.4(d) are not clearly erroneous.

Failure to Disclose Attorney Fees

The referee found that Fuller failed to disclose his attorney fee arrangement on the Imprint bankruptcy and concluded that this failure violated Fed. R. Bankr.P. 2014. Rule 2014 requires that when a bankruptcy petitioner wishes to employ a professional to assist with the bankruptcy, the petitioner must apply to the court and disclose, among other things, “any proposed arrangement for compensation.” Fed.R.Bankr.P.2014. The referee also concluded that Fuller violated Minn. R. Prof. Conduct 1.5(a), 3.3(a), 3.4(c), and 8.4(c) & (d). To support these conclusions, the referee found that Fuller knowingly failed to disclose the source of his Imprint fees, lied to the bankruptcy court in asserting that he was not requesting fees, and misled the bankruptcy court by failing to disclose that he had a relationship with Hanson because Hanson was paying his attorney fees. Fuller does not deny that he failed to disclose his fee arrangement. However, he justifies his conduct on the ground that the prior course of conduct of Hanson’s other attorney, together with the bankruptcy court’s and the OLPR’s tacit acceptance of that arrangement, satisfied him that it must be acceptable. Regardless of any tacit acceptance of the practice, Fuller’s failure to disclose the source of his Imprint attorney fees violated the bankruptcy rules and the Rules of Professional Conduct. We agree with the referee’s findings that Fuller failed to disclose or obtain approval for his bankruptcy fees and, therefore, we conclude that the referee’s conclusion that Fuller violated Minn. R. Prof. Conduct 3.3(a), 3.4(c), and 8.4(c) & (d) was not clearly erroneous.

Minn. R. Prof. Conduct 1.5(a) requires that attorney fees be reasonable and provides a number of factors to be considered, including time and labor required, the customary fee for such service, time limitations, and the expertise required. See Minn. R. Prof. Conduct 1.5(a). The referee made no factual findings to support his conclusion that Fuller’s fee was unreasonable. The only related finding was that Hanson paid Fuller $290 a week for his services on the Imprint bankruptcy, but there is nothing in the record explaining the work performed in exchange for the fee. Therefore, we find no basis for the referee’s conclusion that Fuller’s fee violated Minn. R. Prof. Conduct 1.5(a).

Disciplinary Investigation

The referee concluded that Fuller submitted false or falsified evidence in the course of a disciplinary investigation in violation of Minn. R. Prof. Conduct 8.3(a)(4), 3.4(b), 8.1(a) and 8.4(c). The referee found that Fuller misled the OLPR when he provided it with letters he purportedly wrote and sent before Hanson filed the disciplinary complaint against Fuller. Fuller provided the letter to the OLPR in an effort to prove that his charges against Hanson were not in retaliation for Hanson’s complaint to the OLPR. Fuller asserts that he never told the OLPR that he had mailed the letters, but his correspondence to the OLPR suggests the letters were mailed. We conclude that the referee did not clearly err when he found that Fuller misled the OLPR with these letters.

II.

The referee has recommended that Fuller be suspended from the practice of law indefinitely, with a 1-year minimum term of suspension, and that Fuller successfully complete a mental health evaluation and follow all recommendations of the evaluation. Although we afford great weight to the referee’s recommendation for attorney discipline, we alone bear the final responsibility to determine what discipline is appropriate. See In re Klein, 442 N.W.2d 317, 321 (Minn.1989). In light of the purposes of attorney discipline-to protect the public, to protect the legal profession, and to guard the administration of justice-we determine the appropriate discipline by considering: “(1) the nature of the misconduct, (2) the cumulative weight of the rule violations, (3) the harm to the public, and (4) the harm to the legal profession.” In re Madsen, 426 N.W.2d 434, 436 (Minn.1988). We also consider mitigating and aggravating circumstances. See In re Haugen, 543 N.W.2d 372, 375 (Minn.1996).

The referee found some aggravating factors when reaching his recommended disposition. Fuller had been “warned that his letter-writing campaigns could form the basis for serious discipline.” Further, Fuller acknowledged at his hearing that persons had asked him if he would like to have Hanson “whacked,” to which he responded, “Not yet.” However, Fuller did attempt to clarify this statement by explaining that he never would have harmed Hanson.

The referee also found mitigating circumstances. The referee stated that Fuller obviously suffers from a mental illness or disability that impairs his judgment. The referee based this conclusion on the opinion of the psychiatrist who evaluated Fuller and Fuller’s conduct during the disciplinary proceedings. The referee noted that Hanson may be a “scalawag,” but Fuller appears unable to make rational judgments when they involve Hanson.

Our general rule is that mental illness is a mitigating factor that an attorney must raise. See In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983). An attorney who raises a psychological disability must prove five factors: (1) that the attorney has a severe psychological problem; (2) that the psychological problem was the cause of the misconduct; (3) that the attorney is seeking treatment; (4) that the treatment has arrested the misconduct; and (5) that the misconduct is not likely to recur. See id. Although Fuller has not acknowledged having a psychological disorder and is not seeking treatment, the OLPR admits in its brief that Fuller meets the first two requirements of the Weyhrich test.

For guidance in determining the appropriate sanction, we turn to cases involving similar misconduct. See In re Madsen, 426 N.W.2d at 436. With the exception of a possible unrecognized psychological issue, we were faced with similar ethics violations in In re Nelson, 327 N.W.2d 576, 578-79 (Minn.1983). In Nelson, we suspended an attorney for 6 months because he exposed confidential client information and fabricated information in letters to the probate court, tax authorities, and the Minnesota Securities Division. See id. at 580. The referee in Nelson found that the violations were intentional and cost the attorney’s clients thousands of dollars. See id. at 579. While Fuller also acted intentionally, the present case is different because there are no allegations or findings that Fuller’s actions caused any financial loss to Imprint or Hanson.

We also have reviewed cases which involve harassment of a client by the client’s attorney, but generally in such cases there also have been additional unrelated violations. For example, in In re Mueller, 540 N.W.2d 77, 78 (Minn.1995), we imposed a public reprimand and 2 years of probation on an attorney who was making harassing phone calls to a client, which conduct resulted in a misdemeanor conviction. See id. Mueller entered into a stipulation with the OLPR that involved ongoing therapy and other conditions. See id. We accepted the stipulation and ordered the recommended sanction because Mueller’s sanction included the psychological treatment necessary to arrest his inappropriate behavior. See id.

In In re Selmer, we suspended an attorney, who was already on probation, for 1-year when it was discovered that over a 12-year period he had instituted harassing and frivolous litigation and had made false and misleading statements in response to discovery requests. See 568 N.W.2d 702, 704-05 (Minn.1997). Selmer is different from Fuller’s case because Selmer instituted a number of frivolous suits and frivolous defenses to benefit himself. See id. However, the cases are similar in that both involve a variety of Rules of Professional Conduct violations and evaluating the cumulative effect of such violations. See id. In concluding that Selmer should be suspended from the practice of law for a minimum 1-year term, we were convinced that his abuse of the litigation process and lack of candor with the tribunal required such a sanction. See id. When we look to Selmer for guidance, we conclude that although Fuller has multiple violations, he has not shown the disrespect for the integrity of the judicial system that Selmer did.

Our review of prior discipline cases shows that we have not yet addressed a situation where there is misconduct similar to Fuller’s that may be accompanied by an unacknowledged psychological problem. Further, even though Fuller has not acknowledged having a psychological problem, the OLPR has admitted that Fuller’s misconduct was caused by an unacknowledged psychological problem. In a situation such as this, we see no reason not to consider a psychological problem in determining the appropriate sanction. Although Fuller did not assert that his psychological condition is a mitigating circumstance, his failure to do so should not bar us from considering the role the condition played in the misconduct because we conclude that if Fuller addresses the symptoms that suggest he may have a psychological problem, he may be able to competently and diligently serve his clients. Therefore, we not only conclude that Fuller has committed misconduct that warrants imposition of a sanction, but we also conclude that Fuller’s possible psychological problem needs to be addressed in the sanction.

We conclude that the appropriate discipline is indefinite suspension with reinstatement conditioned on providing adequate psychological or other medical evidence establishing that Fuller has no psychological problem that would prevent him from practicing law competently, diligently, and within the rules of conduct for attorneys at law. Fuller may petition for reinstatement at any time upon an adequate showing that the problem that led to his misconduct has been treated such that it no longer interferes with his ability to practice law. Accordingly, we order that:

1. Fuller is hereby suspended from the practice of law indefinitely with no minimum term of suspension, commencing 14 days from the date of this order;

2. Fuller comply with the requirements of Rule 26, RLPR;

3. Before reinstatement, Fuller must provide the director with adequate psychological or other medical evidence establishing that he has no psychological problem that would prevent him from practicing law competently, diligently, and within the rules of conduct for attorneys at law;

4. Fuller must comply with the procedures for reinstatement under Rule 18, RLPR;

5. Fuller shall pay to the Director the sum of $900 in costs and disbursements pursuant to Rule 24, RLPR.

So ordered.

BLATZ, C.J., and GILBERT, J., took no part in the consideration or decision of this case.

      . The bankruptcy was originally filed for a company called Safety Line, Inc. It was later amended to Imprint Technologies, Inc. There were actually a number of Imprint bankruptcy filings, but the September 1995 filing is the one relevant to this petition.

      . Hanson was eventually convicted of improper allocation of 401 (k) funds.

      . While it is the conduct of Fuller that is the issue before the court, some of Hanson's actions warrant mention. Hanson has been involved in disciplinary proceedings against his previous attorney and threatened to file a disciplinary complaint against the attorney for Imprint's landlord. According to an affidavit by Pamela Jordan, Hanson was "quite pleased or rather smug” when he filed ethics charges against Fuller. As recently as May 2000, Hanson was requesting to be listed as an interested party on all bankruptcy proceedings in which Fuller was the attorney of record. Hanson copied Fuller on each of these requests and noted that until Fuller obtained a court order requiring Hanson to cease this activity, he would continue to seek out all of Fuller’s clients and send them copies of the OLPR’s petition and recommendations.


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Thomas J. LYONS, Jr., an Attorney at Law of the State of Minnesota.
    No. C7-00-2011.
    Supreme Court of Minnesota.
    Jan. 26, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Thomas J. Lyons, Jr., has committed professional misconduct warranting public discipline, namely, prosecuting frivolous claims or litigation in three cases and failing to follow proper affidavit procedures in another case, all of which resulted in sanctions which have been satisfied, in violation of Rules 1.1, 3 .1, 3.4(c) and 8.4(c) and (d), Minn. R. Prof. Conduct.

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and two years of unsupervised probation. Respondent acknowledges that this court may impose any discipline it deems appropriate.

This court has independently reviewed the file and accepts respondent’s admission of misconduct. However, based on respondent’s disciplinary history and the nature of the present misconduct, we conclude that the appropriate discipline is two years of supervised rather than unsupervised probation, subject to the following conditions:

(1) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(2) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation. (3) Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date of this order. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph 4 below. Respondent shall make active client files available to the Director upon request.
(4) Respondent shall cooperate fully with the supervisor’s efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall discuss with his supervisor proposed litigation and proposed motions in connection to that litigation. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.

IT IS HEREBY ORDERED that respondent Thomas J. Lyons, Jr., is publicly reprimanded and placed on two years of supervised probation subject to the conditions set forth above, and that he pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

Alan C. Page Associate Justice


author: KALITOWSKI, Judge.

text:
    Travis BRUA, Plaintiff, Jason Breckel, Defendant and Third-Party Plaintiff, Appellant, v. Larry OLSON, et al., etc., Third-Party Defendants, Respondents.
    No. C3-00-1082.
    Court of Appeals of Minnesota.
    Jan. 16, 2001.
    Review Denied March 27, 2001.

      Richard C. Mollin, Fosston, MN, for appellant.
    Patrick D. Reilly, Erstad & Riemer, Minneapolis, MN, for respondents.
    Considered and decided by RANDALL, Presiding Judge, KALITOWSKI, Judge, and FORSBERG, Judge.

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

   OPINION

KALITOWSKI, Judge.

Appellant challenges the district court’s application of the two-year statute of limitations provision in the Civil Damages Act to his contribution and indemnity claim.

FACTS

On February 4, 1997, Travis Brua, James Nichols, and appellant Jason Breck-el drove snowmobiles to respondent Ticket Bar a/k/a Hen House where, despite being under 21 years of age, they were served alcohol. Soon after leaving the bar, Brua fell off his snowmobile and was struck by appellant’s snowmobile. On April 3, 1997, appellant served a “notice of injury” on respondent bar in compliance with Minn. Stat. § 340A.802 (2000).

Over two and one half years after the accident, on August 11, 1999, Brua commenced an action against appellant for the injuries he sustained. Appellant served a third'-party complaint against respondents seeking contribution and indemnity on October 14, 1999. Applying the statute of limitations in the Civil Damages Act, the district court dismissed appellant’s third-party action because it was brought more than two years after the date of injury.

ISSUE

Did the district court err in determining that appellant’s third-party contribution and indemnity claim was procedurally barred by the two-year statute of limitations provision in the Civil Damages Act?

ANALYSIS

On appeal from summary judgment, this court reviews the record to determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Schulte v. Corner Club Bar, 544 N.W.2d 486, 488 (Minn.1996). When, as here, the district court applies statutory language to undisputed facts, this court reviews the district court’s conclusions de novo. Id.

Relevant Statutory Provisions

The Civil Damages Act (CDA) creates a cause of action for a person who is injured by the intoxication of another against the person who caused the intoxication by illegally selling alcoholic beverages. Minn.Stat. § 340A.801, subd. 1 (2000). The remedy provided by the CDA is purely a statutory creation. Beck v. Groe, 245 Minn. 28, 33-34, 70 N.W.2d 886, 891 (1955). A person injured by an intoxicated person has no common-law claim against a liquor vendor for illegally selling alcohol to the intoxicated person. Id. Causes of action created by statute in derogation of common law are generally strictly construed. Id. at 43-44, 70 N.W.2d at 897.

The CDA also provides that a person who is sued for causing the injury of another while intoxicated may bring an action against a liquor vendor for contribution and indemnification if the person serves written notice to the vendor within 120 days from the date of the injury. Minn.Stat. § 340A.802, subd. 2 (2000) (barring an action for contribution and indemnity if notice is not provided within 120 days of the injury); Oslund v. Johnson, 578 N.W.2d 353, 357 (Minn.1998) (holding that a tortfeasor seeking contribution and indemnification is required to follow the 120-day notice provision in the CDA and not the 60-day notice provision).

Finally, the CDA contains a statute of limitations provision stating that “[n]o action may be maintained under section 340A.801 unless commenced within two years after the injury.” Minn.Stat. § 340A.802, subd. 2. The CDA defines injury as “the initial injury caused by the intoxicated person, and not to the ensuing claim for contribution or indemnity.” Oslund, 578 N.W.2d at 357.

Application of CDA

Alleging negligence, Brua commenced a lawsuit against appellant more than two years after the date of his injury. When appellant attempted to bring a third-party contribution and indemnity claim against respondents the district court concluded that the CDA bars any cause of action against a liquor vendor commenced two years after the date of injury and dismissed appellant’s claim on procedural grounds notwithstanding appellant’s argument that it was impossible for him to comply with the statute of limitations because of Brua’s delay in commencing his lawsuit.

Respondents argue that the decisions in Oslund and Whitener v. Dahl, 612 N.W.2d 188 (Minn.App.2000), review granted (Minn. Aug. 22, 2000), compel the dismissal. We disagree. Oslund stands for the proposition that a tortfeasor seeking contribution and indemnity is required to follow the 120-day notice provision in the CDA. Oslund, 578 N.W.2d at 357. Here, appellant complied with the CDA’s notice provisions. Whitener is not controlling because, unlike the situation with appellant, it was possible for the plaintiff in Whitener to comply with the two-year statute of limitations, but the plaintiff failed to do so. See Whitener, 612 N.W.2d at 189.

Appellant contends the district court’s interpretation of the CDA renders an absurd result. We agree. When ascertaining the intent of the legislature, this court assumes that the legislature did not intend an absurd or unreasonable result. Minn.Stat. § 645.17(1) (2000). Here, if the CDA’s two-year statute of limitations applies to appellant’s contribution and indemnity claim against respondents, appellant, through no fault of his own, is procedurally barred from pursuing this legislatively created remedy. The Minnesota Supreme Court has discussed, in dicta, a situation similar to these facts:

We do not believe the legislature can pass a statute allowing a substantive remedy and yet, by adopting a procedural statute of limitations, make the remedy impossible to achieve and meaningless by barring the suit from being brought before it has matured.

Calder v. City of Crystal, 318 N.W.2d 838, 843 (Minn.1982); see In re Estate of Bush, 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974) (stating that supreme court dicta is entitled to “considerable weight” if it contains “an expression of the opinion of the court”).

Applying the principle enunciated in the Colder dicta leads us to conclude that it would be unfair and unreasonable to construe the statute of limitations in the CDA in such a way as to make it impossible for appellant to pursue his contribution and indemnity claim simply because Brua chose to wait more than two years to sue appellant. See, e.g., City of Willmar v. Short-Elliott-Hendrickson, Inc., 512 N.W.2d 872, 875 (Minn.1994) (stating that a “statute of limitations defense is frequently dependent on when the plaintiff decides to commence suit, a decision outside the control” of the party seeking contribution and indemnity). Thus, we examine the statute to determine whether it can be construed in such a way as to avoid an absurd result. See In re Estate of Ablan, 591 N.W.2d 725, 727 (Minn.App.1999) (stating that if the language of the statute reasonably permits an alternative construction the court should construe a statute to avoid an absurd result). We conclude that an alternative construction is appropriate here.

Section 340A.801, subdivision 1, establishes the right of an injured person to sue a liquor vendor for damages sustained as a result of the liquor vendor illegally selling alcohol to the person causing the injury. This section does not specifically refer to the intoxicated person’s right to bring a suit for contribution and indemnity against a liquor vendor. Rather, contribution and indemnity are only discussed in section 340A.802. But the statute of limitations provision at issue here, which is in section 340A.802, subdivision 2, states “[n]o action may be maintained under section 31f.0A.801 unless commenced within two years after the injury.” (Emphasis added.) Because the legislature could have but did not make the statute of limitations applicable to “any action brought under this act,” we read the two-year limitation as only applying to direct actions against the liquor vendor brought under section 340A.801. And we note that this interpretation is consistent with a prior Minnesota Supreme Court decision dealing with statute of limitation bars to contribution and indemnity claims. See City of Willmar, 512 N.W.2d at 877 (holding that the U.C.C.’s four-year statute of limitations provision, which barred an action by the plaintiff, did not bar a third-party contribution and indemnity claim).

In conclusion, to avoid the absurd result of appellant being procedurally barred from bringing a contribution and indemnity claim because he was not sued until two years after the injury, we hold that the two-year statute of limitations in the CDA does not apply to appellant’s contribution and indemnity action against respondents. This holding does not unfairly prejudice a liquor vendor because a tortfeasor seeking contribution and indemnity is subject to the applicable notice requirements of the CDA, and therefore the liquor vendor will be put on notice of the need to gather evidence and obtain witnesses.

DECISION

Appellant’s contribution and indemnity claim is not barred by the two-year statute of limitations provision in the Civil Damages Act. Because appellant properly complied with the act’s notice provision, the district court erred in granting summary judgment in favor of respondents.

Reversed and remanded.