author: HARTEN, Judge. MINGE, Judge

text:
    In the Matter of QWEST’S WHOLESALE SERVICE QUALITY STANDARDS.
    No. A03-1409.
    Court of Appeals of Minnesota.
    April 13, 2004.

      Jason D. Topp and Larry D. Espel, John M. Baker, Jeanette M. Bazis, Greene Es-pel P.L.L.P., Minneapolis, MN, for relator Qwest Corporation.
    Mike Hatch, Attorney General, Steven H. Alpert, Cassandra Opperman O’Hern, Assistants Attorney General, St. Paul, MN, for respondent Minnesota Public Utilities Commission.
    Virginia K. Zeller, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Department of Commerce.
    Dan M. Lipschultz, Michael J. Bradley, Moss & Barnett, P.A., Minneapolis, MN, for respondents McLeod USA, Inc., North-Star Access, LLC, Onvoy, Inc., U.S. Link, Inc., Encore Communications L.L.C., In-tegra Telecom of Minnesota, Inc., Global Crossing Local Services, Inc., New Edge Networks, Inc., Otter Tail Telecom, and VAL-AD Joint Venture, L.L.P. d/b/a 702 Communications.

      Gregory R. Merz, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, MN; and Lesley J. Lehr, St. Paul, MN, for respondent WorldCom, Inc.
    Karen L. Clauson, Eschelon Telecom of Minnesota, Inc., Minneapolis, MN, for respondent Eschelon Telecom of Minnesota, Inc.
    Steven H. Weigler, AT & T Law Department, Denver, CO; and Thomas E. Bailey, Mark J. Ayotte, Briggs & Morgan, P.A., Minneapolis, MN, for respondent AT & T Communications of the Midwest, Inc.
    W. Patrick Judge, Briggs & Morgan, P.A., St. Paul, MN, for respondent DIECA Communications, d/b/a Covad Communications Co.
    Rebecca McElfresh Liethen, Robins, Kaplan, Miller & Ciresi, Minneapolis, MN, for respondent Time Warner.
    Considered and decided by RANDALL, Presiding Judge, HARTEN, Judge, and MINGE, Judge.
   OPINION

HARTEN, Judge.

Respondent Minnesota Public Utilities Commission (MPUC) issued an order imposing on relator Qwest Corporation, the incumbent local exchange carrier, benchmark service quality standards and an enforcement mechanism for those standards affecting wholesale transactions between Qwest and respondents competitive local exchange carriers (CLECs). Qwest unsuccessfully moved for reconsideration and a stay of the order and appeals from the denial of these motions.

FACTS

Qwest agreed to “participate and- cooperate in an expedited proceeding to establish permanent wholesale service quality (WSQ) standards” as a condition of MPUC approval of the merger of Qwest and U.S. West. In July 2000, Qwest filed proposed WSQ standards that required parity between the services Qwest provided to the CLECs and the services Qwest provided to itself and its retail customers, but the proposed WSQ standards included no means of enforcing compliance. In December 2000, the CLECs and the Department of Commerce filed proposed WSQ standards that set benchmark levels of service and included an enforcement mechanism requiring Qwest to make payments to the CLECs or the state when Qwest’s performance fell below the WSQ standards.

In March 2002, the MPUC rejected both sets of proposed standards and deferred action on the matter. In April 2002, the MPUC issued its own set of standards.

In July 2002, in connection with Qwest’s petition to the Federal Communications Commission (FCC) for approval to offer certain long distance services, the MPUC adopted a Minnesota Performance Assurance Plan (MPAP) for Qwest that included parity WSQ standards. In August 2002, the MPUC asked Qwest and the CLECs to comment on the merits of the MPAP.

In October 2002, the CLECs proposed modifications to WSQ standards of the MPAP; these modifications included benchmark service levels and payments linked to failure to meet the benchmark service levels. Ultimately, over Qwest’s objection, the MPUC adopted the CLECs’ modifications to the WSQ standards included in the MPAP.

ISSUES

1. Does the MPUC have authority to impose benchmark WSQ standards on Qwest?

2. Does the MPUC have authority to impose an enforcement mechanism on Qwest?

ANALYSIS

Standard of Review

An agency exercises a legislative as opposed to a quasi-judicial function when it balances cost and noncost factors and makes choices among public policy alternatives. Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 116 (Minn.1978). The agency acts in its legislative capacity in determining the extent to which competition should be permitted or limited. Id. at 116-17. When an agency exercises a legislative function, its decision is affirmed unless it is shown, by clear and convincing evidence, to be in excess of statutory authority or to have unjust, unreasonable, or discriminatory results. City of Moorhead v. Minn. Pub. Utils. Comm’n, 343 N.W.2d 843, 846 (Minn.1984). This court cannot substitute its judgment for that of an agency when the agency’s finding is properly supported by the evidence. Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963).

Qwest challenges the entire MPUC order and the penalty provisions in particular.

1. The MPUC Order

Qwest argues that the MPUC order exceeds its statutory authority because federal law both preempts regulation of intrastate telecommunications service and mandates parity standards and because state law, when properly construed, does not permit the MPUC order. Qwest also argues that the MPUC order is unsupported by the evidence.

a. Federal Law

Qwest argues first that the Federal Telecommunications Act of 1996 (the Act) “withdrew from states and their commissions the power to adopt their own regulations and standards for competition.” We disagree — the language of the Act itself refutes this argument. See, e.g., 47 U.S.C. § 251(d)(3) (1996) (the FCC “shall not preclude the enforcement of any regulation, order, or policy of a State commission that (A) establishes access and interconnection obligations of local exchange carriers”); 47 U.S.C. § 252(e)(3) (1996) (“[Nothing in this section shall prohibit a State commission from establishing or enforcing other requirements of State law in its review of an [interconnection] agreement, including requiring compliance with intrastate telecommunications service quality standards or requirements”); 47 U.S.C. § 253(b) (1996) (“Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this section, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.”); 47 U.S.C. § 261(c) (1996) (“Nothing in this part precludes a State from imposing requirements on a telecommunications carrier for intrastate services that are necessary to further competition in the provision of telephone exchange service or exchange access, as long as the State’s requirements are not inconsistent with this part or the Commission’s regulations to implement this part.”).

The Minnesota Federal District Court construed 47 U.S.C. § 252(e)(3) (1996) in U.S. West Communications, Inc. v. Edward A. Garvey, No. 97-913 ADM/AJB (D.Minn.1999):

[T]he Act provides that a state commission can establish “other requirements of State law in its review of an agreement, including requiring compliance with intrastate telecommunications service quality standards or requirements.” 47 U.S.C. § 252(e)(3). It is appropriate for a state commission to implement its own state’s laws during the review process so long as those laws do not conflict with or impede the federal act.

Both the Act and its construction by the federal district court defeat the argument that the Act deprives the MPUC of all authority to -regulate intrastate telecommunications service.

Qwest asserts that the MPUC order violates 47 U.S.C. § 251(d)(3)(B) (1996), providing that state orders must be “consistent with the requirements of this section,” because federal law mandates parity and the MPUC order mandates super-parity. Qwest also asserts that caselaw has construed 47 U.S.C. § 251(c)(2)(C) (1996), requiring that incumbent local exchange carriers provide interconnection “that is at least equal in quality to that provided by the [incumbent] local exchange carrier to itself,” to mandate parity standards. We disagree with both assertions.

The FCC view that this language “require[d] incumbent LECs to provide superior quality interconnection and network elements when requested” was rejected in Iowa Utils. Bd. v. F.C.C., 120 F.3d 753, 812 (8th Cir.1997), aff'd in part, rev’d in part, and remanded sub nom. AT & T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999) (loiva Utilities I). “[47 U.S.C. § 251(c)(2)(C)] does not mandate that incumbent LECs cater to every desire of every requesting carrier.” Id. at 813. The objective of Iowa Utilities I was to preclude competing carriers from forcing incumbent carriers to provide services superior to the services the incumbents provided to themselves. Here, the MPUC, not the competing carriers, is setting a minimum standard of service for Qwest; Iowa Utilities I does not preclude states from setting minimum standards.

Moreover, the MPUC order itself refutes Qwest’s claim that “[its][p]urpose and [e]ffect ... is [s]uper-[p]arity.” Its language reveals that its purpose is to remedy some of the deficiencies in parity standards:

* Parity standards are not designed to ensure high quality service. Benchmark standards are.
* Parity standards can potentially impede the development of competitive markets because they are not always competitively neutral. They place one actor in a competitive market in a position to influence the service quality provided to' all other competitors. And, because competitors may have different sensitivities to service quality fluctuations, a standard that permits fluctuations may affect carriers in an unequal way. Benchmark standards improve predictability and reduce the influence that any competitor can wield over any other.
* Parity standards can impede the development of a competitive market because they deprive competitors of the fundamental information that they need to sell their products. A benchmark standard provides that information.

Qwest argues that “Congress, the FCC and the Eighth Circuit have all decided that parity is the controlling legal standard for regulating competition.” (Emphasis added.) But, as the language of the Act indicates, parity is not the controlling legal standard; it is a controlling legal standard. In the event that the benchmark standards exceed the standards of Qwest’s wholesale service to its own retail customers, Qwest, not the MPUC, has authority to decide whether to upgrade that service.

The MPUC order does not violate federal law.

b. State Law

The MPUC order relies on Minn. Stat. § 237.16, subd. 8 (2002):

[T]he commission shall adopt rules applicable to all telephone companies and telecommunications carriers ... using any existing federal standards as minimum standards and incorporating any additional standards or requirements necessary to ensure the provision of high-quality telephone services throughout the state. The rules must, at a minimum
(7) protect against cross-subsidization, unfair competition, and other practices harmful to promoting fair and reasonable competition.

Qwest asserts that the MPUC erred in relying on Minn.Stat. § 237.16 (2002) because, if the statute is construed broadly enough to permit the MPUC order, it conflicts with the Act, which was adopted after the statute was enacted. For this assertion, Qwest relies on Martin ex rel. Hoffv. City of Rochester, 642 N.W.2d 1, 17 (Minn.2002) (when one reading of a statute conflicts with federal law, the court “will then look further to determine whether the statute is susceptible to another interpretation that does not raise a constitutional defect”), cert. denied, — U.S.—, 123 S.Ct. 2668, 156 L.Ed.2d 655 (2003). But Minn.Stat. § 237.16 (2002) unambiguously provides that the MPUC is to adopt rules, using federal standards as a minimum, that ensure high-quality telephone services and that protect against practices harmful to promoting fair competition. The MPUC order does exactly that: it does not set standards below the federal standards; its benchmark standards have the objective of ensuring high-quality service; and it promotes competition. Qwest claims that reading the statute to preclude the MPUC order is merely giving it a narrow interpretation; in fact, such a reading ignores the plain meaning of the statute. See State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701-02 (Minn.1996) (when a statute is unambiguous, the court must apply its plain meaning). The MPUC order does not contravene Minn. Stat. § 237.16 (2002).

c. Evidence

Qwest argues that, because the MPUC made no finding that Qwest’s service is poor, the benchmarks in the order are not properly supported by the evidence. But the need to establish minimum levels of service is not dependent on the existence of poor service. The MPUC is not only obligated to require improvements when the service level is unacceptable; it must also ensure that the level of service does not deteriorate. See Minn.Stat. § 237.16, subd. 8 (2002) (the MPUC is “to ensure the provision of high-quality telephone services throughout the state”).

2. The Penalty Payments

“[T]he assessment of penalties and sanctions by an administrative agency is not a factual finding but the exercise of a discretionary grant of power.” In re Haugen, 278 N.W.2d 75, 80 n. 10 (Minn.1979). “A reviewing court, therefore, may not interfere with the penalties or sanctions imposed by an agency decision unless a clear abuse of discretion is shown by the party opposing the decision.” In re Henry Youth Hockey Ass’n, 511 N.W.2d 452, 456 (Minn.App.1994), modified, 559 N.W.2d 410 (Minn.1994).

For failure to meet the benchmark standards, the MPUC order imposes on Qwest penalty payments to be made to the CLECs and to the state. Qwest argues that the penalty payments (1) exceed the MPUC’s statutory authority; (2) are unsupported by the evidence; and (3) constitute an unlawful taking of MPUC’s property.

a. Statutory Authority

The MPUC relied on the federal district court’s construction of Minn.Stat. § 237.16, subd. 8 (1998).

The MPUC’s authority to implement performance penalties can be fairly implied from its power “to ensure the provision of high quality telephone services. ...” MinmStat. § 237.16, subd. 8 (emphasis added). As the MPUC noted, penalties are necessary to give meaningful effect to the quality standards in the Agreements.... Without the penalties, an incumbent LEC, in order to gain a competitive advantage, might be inclined to cause delay in the provision of quality services to CLECs and thereby hurt the end-customer. The penalties provision prevents this behavior and ensures that high quality service reaches the customer. Possessing the requisite authority under state law, the MPUC may, under § 252(e)(3), impose the quality standards and penalty provisions at issue.

U.S. West v. Edward A. Garvey, No. 97-913 ADM/AJB (D.Minn.1999).

Qwest claims that this reliance is misplaced because Garvey does not address Minn.Stat. § 14.045, subd. 1 (1998) (an agency “may not, under authority of rule, levy a total fine or penalty of more than $700 for a single violation unless the agency has specific statutory authority to levy a fine in excess of that amount”) or Minn. Stat. § 237.462, subd. 1 (2002), (“After a proceeding under section 237.081, the commission may issue an order administratively assessing monetary penalties for knowing and intentional violations of ... (2) any standards, limitations, or conditions established in a commission order pursuant to sections 237.09, 237.121, and 237.16”). Qwest argues that, because MinmStat. § 237.462 (2002) does not specify failure to meet service quality benchmarks as one of the reasons for which the MPUC may impose penalties, the MPUC lacks authority to impose penalties for failure to meet benchmarks. But the statute states explicitly that it is not exclusive: “The imposition of administrative penalties in accordance with this section is in addition to all other remedies available under statutory or common law.” Minn.Stat. § 237.642, subd. 9 (2002).

The MPUC has the statutory authority to impose the penalties prescribed in its order.

b. Evidence

“[T]he severity of an administrative sanction must reflect the seriousness of the violation.” In re Revocation of Family Child Care License of Burke, 666 N.W.2d 724, 728 (Minn.App.2003) (reversing revocation of daycare provider’s license as overly severe sanction); see also Haugen, 278 N.W.2d at 80-81 (affirming district court’s reversal of commissioner’s revocation of real estate brokers’ licenses as overly severe sanction); Henry Youth Hockey 511 N.W.2d at 457 (affirming revocation of gambling licenses as appropriately severe sanction); In re Insurance Licences of Kane, 473 N.W.2d 869, 877-78 (Minn.App.1991) (reversing loss and revocation of license as overly severe sanction), review denied (Minn. 25 Sept. 1991); In re Minnesota Tipboard Co., 453 N.W.2d 567, 569 (Minn.App.1990) (affirming suspension of license to sell bingo equipment as statutorily approved sanction), review denied (Minn. 30 May 1999).

Qwest claims the MPUC order is unreasonable because “[t]here is no link between the penalties and any alleged harm.” The MPUC order states that

the [MPUC] has previously concluded that payments are appropriate to give meaningful effect to service quality standards.
Qwest recommends adopting the [M] PAP in its entirety whereas [the CLECs recommend] changes to tailor the plan to the purpose of the current docket. In neither case did a party propose increasing the payment schedules. Given that those payments are designed to be in the nature of stipulated damages, the [MPUC] is satisfied that they are not excessive.

Accordingly, the MPUC found that the penalty payments, as mandated in Burke, 666 N.W.2d at 728, “reflect the seriousness of the violation.” MPUC cites the MPAP as authority for the statement that the payments are designed to be in the nature of stipulated damages. Qwest has already agreed to the MPAP; Qwest cites nothing to support its view that a CLEC must show that harm occurred before a penalty can be imposed on Qwest for failing to meet a benchmark.

Qwest fails to show that the MPUC order is not properly supported by the evidence.

c. Unlawful Taking

Finally, Qwest argues that the MPUC order will result in a taking of Qwest’s property because Qwest will be required to make payments to the CLECs for missing the benchmarks without any compensation from the CLECs. The MPUC responds that Qwest’s claim is, at best, premature: Qwest has not yet been deprived of any property. “[A] takings claim cannot be based on the rate-making methodology, but rather it must be based on the rate itself.... It is not enough that a party merely speculates that a government action will cause harm.” Iowa Utils. Bd. v. F.C.C., 219 F.3d 744, 754 (8th Cir. 2000) (quotation omitted) (Iowa Utilities II).

In its taking claim, Qwest fails to consider that it controls the quality of the service it provides and that its rates can be adjusted if compliance with the MPUC’s order deprives it of “a fair and reasonable return.” But until Qwest has in fact been deprived of its property, it has no takings claim.

DECISION

We conclude that neither the MPUC order as a whole nor the penalty payments conflict with state or federal law; that adequate evidence supports the order in general and the penalty payments in particular, and that a claim that the penalty payments are an unlawful taking is premature.

Affirmed.

MINGE, Judge

(concurring specially).

I join in the opinion of the court and write to express additional views on the authority of the Minnesota Public Utilities Commission (MPUC) to include an enforcement mechanism in its order.

It is well accepted that, although administrative agencies have only the authority granted to them by law, that authority includes the incidental powers necessary to accomplish the duties conferred on them. See State ex rel. RR & Warehouse Comm’n v. Mees, 235 Minn. 42, 46, 49 N.W.2d 386, 389 (1951); cf Lenihan v. Tri-State Telephone & Telegraph Co., 208 Minn. 172, 184, 293 N.W. 601, 607 (1940). There is little or no caselaw extending this principle to the type of sanctions at issue here. See generally 2 Am.Jur.2d Administrative Law §§ 52-98 (1994). Lacking either a legislative grant of a specific power to sanction or clear caselaw granting that power, the question of an agency’s power to sanction is a legal issue of first impression. However, some guidance exists. The larger question of agency discretion to define its mandate in the course of its rulemaking was addressed in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This landmark case has been cited and analyzed in several settings. See, e.g., Note, A Pragmatic Approach to Chevron, 112 Harv. L.Rev. 1723 (1999). Although the power to define enforcement and sanctions is a different area of administrative activity than the rule-making considered in Chevron, our task is analogous.

Here, it is clear that the PUC has pervasive authority to regulate local telephone service. See Minn.Stat. § 237.16 (2002). The state and federal governments have also decided that competition in providing local telephone service should be promoted. See, e.g., 47 U.S.C. § 261(c); Minn. Stat. § 237.16. The challenging task of establishing a framework for a competitive market falls partly on the MPUC. The use of scheduled penalties, principally payable to the firms injured by violations of the order, is a creative way to streamline enforcement of the new MPUC rule. The consequences of violations are predictable. The process is simple. In this newly competitive market of local telephone service, such qualities may be important to maintaining the level playing field that the marketplace requires. Although the enforcement mechanism may be new, it is not inherently irrational. By looking at the variety of ways in which an incumbent local exchange carrier (relator Quest in this case) may fail to meet standards of service, it is innovative. By tying the size of penalty to the benchmark standard which is violated, the penalty is flexible. It is unreasonable to tie the hands of an agency that is attempting to handle its broad responsibilities in a prudent fashion by requiring it to obtain specific legislative authority for each enforcement step it takes in every new setting. I conclude that the MPUC’s efforts are a rational approach to fulfilling its mandate and are within the implied authority of the MPUC to meet its responsibilities.

Relator has challenged the sanction on the ground that the size of the penalties is inappropriate. But the size of the penalties is very difficult to evaluate on this record in a pre-enforcement proceeding and would be best determined in an enforcement proceeding.

      . Qwest also moved this court for a protective order and a stay; this court granted the motion for protective order and denied the motion for stay.

      . Because the merger document also provided that Qwest had not "waived, compromised or limited” either any rights relating to matters then before the MPUC or any rights conferred by Minnesota law, Qwest did not waive its right to challenge the MPUC order. See also TCG New York, Inc. v. City of White Plains, 305 F.3d 67, 81-82 (2d Cir.2002) (holding that provision waiving a telecommunications provider's right to challenge a franchise in court was “completely unenforceable"), cert. denied, 538 U.S. 923, 123 S.Ct. 1582, 155 L.Ed.2d 314 (2003).

      . See Nixon v. Mo. Mun. League, - U.S. -, 124 S.Ct. 1555, L.Ed.2d-(2004) (the 47 U.S.C. § 253 prohibition of "ability of any entity" to provide telecommunications services does not apply to subdivisions of states).

      . On remand, Iowa Utils. Bd. v. F.C.C., 219 F.3d 744, 748 (8th Cir.2000) (Iowa Utilities II) noted that "[t]he Supreme Court did not address the part of our opinion vacating the [FCC's] superior quality rules.”

      . Qwest does not specify what evidence is needed or omitted for any particular benchmark.

      . Qwest claims that "when asked directly by [the MPUC] to point to support in the record for doubling the billing measures penalty cap [from $5,000 to $10,000], the [CLECs] merely argued that doubling the penalty would provide greater incentive for Qwest to reduce billing errors.” But the transcript reflects a more involved explanation of why the change was made and sets forth responses to several questions from the commissioners on the topic.


source: Caselaw Access Project

author: CRIPPEN, Judge.

license: Public Domain

text:
    STATE of Minnesota Regarding the Parties: Gregory Allen JARVELA, petitioner, Appellant, v. Penny BURKE, formerly Penny Brotherton, Respondent.
    No. A03-1232.
    Court of Appeals of Minnesota.
    April 20, 2004.

      Richard E. Prebich, Law Offices of Richard E. Prebich, Hibbing, MN, for appellant.
    Patrick J. Roche, Paul D. Cerkvenik, Trenti Law Firm, Virginia, MN, for respondent.

      Considered and decided by STONEBURNER, Presiding Judge, HUDSON, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

Appellant Gregory Jarvela makes numerous flawed arguments challenging the child support magistrate’s determination that appellant’s support obligation should continue indefinitely for his mentally and physically disabled adult son. But because the magistrate erroneously failed to consider appellant’s subsequent children when ordering the indefinite support extension, we reverse and remand for reconsideration of that issue.

FACTS

The underlying facts are undisputed. In September 1984 respondent Penny Burke gave birth to D.B., a child with severe mental and physical disabilities. Though she was not married to appellant, he soon acknowledged that he was D.B.’s father and began paying child support to Burke.

Ten years later, in a hearing to determine appellant’s child-support arrearage, the district court found that D.B. would be incapable of self-support pursuant to Minn. Stat. § 518.54 because of his condition. Although the court ordered an extension of appellant’s child support obligations, the order was silent as to the duration of this “extension.”

In 1996, the court reiterated appellant’s child-support obligations but failed to readdress D.B.’s disabilities. Instead, the order merely stated that appellant’s obligation would continue until D.B. reached the age of 20, if continually enrolled in secondary education, or otherwise until he turned 18, became emancipated, “or until further Order of the Court.”

In January 2003, when D.B. was 18 years old but still enrolled in secondary education, respondent Burke moved for an extension of appellant’s support obligation. A magistrate granted this motion, indefinitely continuing appellant’s obligation based on a finding that D.B. was “incapable of self-support due to a physical or mental condition,” and therefore remained a “child” under Minn.Stat. § 518.54, subd. 2 (2002).

The magistrate noted in its order that appellant was the father of two children born after the 1996 child support order, and stated that these “subsequent children” may only be considered “as a defense to any motion to increase support” under Minn.Stat. § 518.551, subd. 5f (2002). Neither party requested a change in the amount of the obligation. Although the record does not expressly state that appellant’s other children were not factored into the magistrate’s determination, this is a necessary inference from the order as a whole.

ISSUE

Did the magistrate err in failing to consider subsequent children when ordering an indefinite extension of appellant’s child support obligations?

ANALYSIS

When reviewing a child support magistrate’s modification order, this court applies the same standard of review that would apply if the order had been issued by the district court. Ludwigson v. Ludwigson, 642 N.W.2d 441, 445-46 (Minn.App.2002). This standard affords the adjudicator broad discretion to determine and modify child support. Putz v. Putz, 645 N.W.2d 343, 347 (Minn.2002). But we are not bound by and need not give deference to a district court’s decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003).

1.

Appellant asserts that the magistrate erred as a matter of law in failing to consider the needs of his other two children, who were born after the 1996 support order. He contends the current, indefinite extension is an “increase” of his support obligation, and that needs of subsequent children must be considered in reaching this decision. Minnesota’s appellate court has not previously considered the significance of later-born children in procedural circumstances like these.

Minn.Stat. § 518.551, subds. 5-5f (2002) provides the guidelines for all child support awards and modifications. Subdivision 5f explicitly states that “[t]he fact that an obligor had additional children after the entry of a child support order is not grounds for a modification to decrease the amount of support owed.” Id., subd. 5f. But when a party moves to increase child support, the circumstances change and the adjudicator is obligated to consider the needs of after-born children. Id.

Appellant contends that indefinite extension of a child support obligation constitutes an “increase” under Minn.Stat. § 518.551, subd. 5f, even if the monthly obligation remains unchanged. The magistrate’s order briefly mentions both appellant’s subsequent children and the statute, but also notes that “[njeither party has served or filed motions to modify, either to increase or to decrease child support.” It is evident that the magistrate did not consider the indefinite extension an “increase,” and that the needs of subsequent children were not considered in the extension decision.

Although the magistrate correctly notes that the amount of appellant’s monthly obligation has not changed under the new order, this does not call for disregard of later-born children under the statute. “Increase,” using its general definition, means “to become greater in size, amount, duration, or degree.” 1 The Compact Edition of the Oxford English Dictionary 1409 (1987). A durational modification is as much an “increase” as a monetary modification, and the needs of subsequent children must be considered when determining the indefinite extension of the obligation. Under the circumstances, we must remand to the child support magistrate for reconsideration of this issue.

2.

Appellant’s additional challenges to the magistrate’s order are contradicted by statute and precedent.

Appellant asserts that Burke lacked standing to bring a motion for modification because her rights of legal and physical custody over D.B. automatically terminated on his 18th birthday. He cites no case law to support his assertion, and the argument conflicts with the governing statute. By law, “child” specifically includes in its statutory definition individuals “who, by reason of physical or mental condition, [are] incapable of self-support.” Minn.Stat. § 518.54, subd. 2 (2002). Since it is undisputed that D.B. is incapable of self-support, he remains a child under statute, and respondent retains ongoing legal custody over him. Respondent had standing to bring the present modification motion.

Appellant’s second argument is that the magistrate erred in failing to deviate from the statutory guidelines set forth in Minn.Stat. § 518.551 based solely on D.B.’s adulthood. But there is no statutory distinction between support for children under the age of 18 and other “children” defined under Minn.Stat. § 518.54. The guidelines set forth a rebuttable presumption for determining the amount of child support for any child. Minn.Stat. § 518.551, subd. 5(i). The magistrate did not abuse his discretion in applying the standard child-support guidelines.

Appellant contends that extending child support indefinitely denies him equal protection of laws governing the obligation of a married couple for a disabled adult child. But he has failed to make the threshold showings that married and unmarried persons with disabled children are similarly situated, and that there is no rational basis for the statute that creates the disparate treatment. See Lundberg by Lundberg v. Jeep Corp., 582 N.W.2d 268, 271 (Minn.App.1998). Married and unmarried persons are not similarly situated. See Zablocki v. Redhail, 434 U.S. 374, 403, 98 S.Ct. 673, 690, 54 L.Ed.2d 618 (Stevens, J., concurring) (“When a State allocates benefits or burdens, it may have valid reasons for treating married and unmarried persons differently. Classification based on marital status has been an accepted characteristic of tax legislation, Selective Service rules, and Social Security regulations.”). And the statute governing child support for unmarried couples is rationally related to the welfare of the child. Cf. Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970) (stating that minor children have a “basic right” to support from their parents and that in matters of support amount, welfare of child is paramount concern); LaChapelle v. Mitten, 607 N.W.2d 151, 163-64 (Minn.App.2000) (recognizing that parent has fundamental right to travel, but holding that conditioning sole physical custody on return to Minnesota is not violation of that right because it is justified by state’s compelling interest in protecting best interest of child), review denied (Minn. May 16, 2000). Appellant has failed to bear the heavy burden of demonstrating that this presumptively valid statute is unconstitutional. Head v. Special Sch. Dist. No. 1, 288 Minn. 496, 506, 182 N.W.2d 887, 894 (1970), rev’d on other grounds, 305 Minn. 184, 232 N.W.2d 779 (1975).

Appellant argues that the doctrines of res judicata or collateral estoppel should apply because the 1996 order “set the legal boundaries of his child support obligation as to extent and duration.” But Minnesota courts have long held that child support orders are not the traditional “final judgments” that these doctrines were intended to protect. See, e.g., Bjordahl v. Bjordahl, 308 N.W.2d 817, 819 (Minn.1981) (a child support order is “a special kind of decision which, by its own terms, creates ongoing obligations”); Atwood v. Ativood, 253 Minn. 185, 193, 91 N.W.2d 728, 734 (1958) (a motion for child support modification “is a supplementary proceeding, incidental to the original suit; it is not an independent proceeding or the commencement of a new action”). Moreover, appellant’s arguments directly contradict the express language of Minn.Stat. § 518.64, subd. 1 (2002), which provides that “[ajfter an order for ... support money, the court may from time to time, on motion of either of the parties, ... modify the order respecting the amount of ... support money ...”

Finally, appellant contends that the doctrine of laches should apply. But respondent’s claim was not stale. See State v. Mangni, 231 Minn. 457, 468, 43 N.W.2d 775, 781 (1950)(holding that doctrine of laches cuts off stale claims of those who have procrastinated unreasonably or without excuse). Appellant’s child support obligations were ongoing at the time of the motion and still subject to modification under Minn.Stat. § 518.64.

DECISION

The motion to extend appellant’s child support obligation was timely and proper, and the child support guidelines apply for the care of adults statutorily defined as “children.” But because the child support magistrate failed to consider appellant’s subsequent children when extending child support indefinitely, we must reverse and remand the child support order for further consideration.

Reversed and remanded.

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

      . We also appreciate, under the statutes, that appellant's obligation for a dependent adult is merely a continuation of his obligation for that child as a minor. What is significant about this case is the fact the previous support order does not establish this continuing obligation, which is now judicially determined by a durational modification.

      . The adjudicator, "in order to deviate from the support guidelines in subdivision 5 to consider the needs of subsequent children” must make findings stated in subdivision 5f and then "exercise discretion to fairly determine the current support obligation and the contribution left available for other children, considering that the support obligation being determined should be in an amount at least equal to the contribution for a subsequent child.” Minn.Stat. § 518.551, subd. 5f.

      . Appellant also asserts that an application of the guidelines should have been accompanied by a mandate that respondent apply for social security benefits and other governmental assistance on D.B.’s behalf, and that those benefits should be considered to offset appellant's support obligation. He cites no legal authority that would obligate respondent to take this step. And, significantly, appellant shares joint legal custody of D.B., and there is nothing suppressing his own ability to seek such benefits.


author: KAPSNER, Justice. MARING, Justice, VANDE WALLE, Chief Justice,

text:
    2004 ND 71
    STATE of North Dakota, Plaintiff and Appellee v. Stephanie Jonell GUSCETTE, Defendant and Appellant.
    No. 20030177.
    Supreme Court of North Dakota.
    April 13, 2004.

      Lisa K. Fair McEvers, Assistant State’s Attorney, Fargo, ND, for plaintiff and ap-pellee; submitted on brief.
    Mark A. Beauchene, Wold Johnson, Fargo, ND, for defendant and appellant; submitted on brief.
   KAPSNER, Justice.

[¶ 1] Stephanie Guscette appealed from a conviction for possession of drug paraphernalia. We hold there is sufficient competent evidence fairly supporting the trial court’s findings that Guscette had not been seized under the Fourth Amendment when she allowed a law enforcement officer to search her vehicle and that she voluntarily consented to the search of her vehicle and a purse in the vehicle. We affirm.

I

[¶ 2] At about 8 pm. on February 4, 2003, Fargo Police Officer Kyle Olson stopped a vehicle driven by Guscette for a broken taillight. Olson approached Gus-cette’s véhicle, informed her why she had been stopped, and asked for her driver’s license. Olson verified Guscette had a valid driver’s license, and when he returned to the vehicle, he engaged her in further conversation about automobile insurance and the whereabouts of Corey Mock. Olson ultimately asked Guscette to step out of her vehicle. After Guscette stepped out of the vehicle, Olson engaged her in further conversation about Mock and a previous encounter she had had with law enforcement officers. He ultimately informed her that he was giving her a warning and she was free to leave. Before Guscette got back into her vehicle, however, Olson asked her if she had any weapons, needles, knives, or anything else illegal in the vehicle. Guscette responded she did not, and Olson then asked her for permission to search the vehicle, which she granted. Guscette and a passenger were directed to the back of the vehicle with another officer while Olson searched the vehicle. Olson found a black purse in the front seat. Upon opening the purse, Olson found drug paraphernalia. According to Olson, after he found the drug paraphernalia, he heard Guscette tell the other officer she had consented to a search of the vehicle, but not the purse. According to Guscette, Olson found the drug paraphernalia after she objected to him searching her purse.

[¶ 3] Guscette was charged with possession of drug paraphernalia. She moved to suppress evidence seized during the search of her purse. The trial court denied Guscette’s motion to suppress, concluding Olson was authorized to ask Gus-cette to search the vehicle even though the initial stop was merely for a traffic violation. The court concluded Olson was not required to have a reasonable and articula-ble suspicion of any other wrongdoing to ask Guscette for permission to search the vehicle. The court also concluded Gus-cette’s consent to search the vehicle was voluntary under the totality of the circumstances, and Olson did not exceed the scope of her consent.

II

[¶ 4] Guscette appealed from the order denying her motion to suppress. Gus-cette’s attempted appeal from the order denying her motion to suppress is not authorized by N.D.C.C. § 29-28-06. After the denial of her motion to suppress, however, Guscette entered a conditional guilty plea to the charge of possession of drug paraphernalia in which she, the State, and the trial court acknowledged she had reserved the right on appeal to review of the adverse ruling on her motion to suppress, and a judgment of conviction was entered. Because the record contains a subsequently entered judgment consistent with the order denying Guscette’s motion to suppress and the State and the trial court approved the reservation of her right to appeal, we treat Guscette’s appeal from the suppression order as an appeal from the judgment. State v. Keilen, 2002 ND 133, ¶¶ 7-9, 649 N.W.2d 224.

III

[¶ 5] When reviewing a trial court’s ruling on a motion to suppress, we defer to the court’s findings of fact and resolve conflicts in the evidence in favor of affirmance. State v. Tognotti, 2003 ND 99, ¶ 5, 663 N.W.2d 642. We will affirm a trial court’s disposition of a motion to suppress unless, after resolving conflicting evidence in favor of affirmance, there is insufficient competent evidence fairly capable of supporting the trial court’s findings, or the decision is contrary to the manifest weight of the evidence. Id. Our deferential standard of review recognizes the importance of a trial court’s opportunity to assess the credibility of the witnesses. State v. Fields, 2003 ND 81, ¶ 6, 662 N.W.2d 242.

A

[¶ 6] Guscette argues her continued detention after the time necessary to complete the initial traffic stop violated her Fourth Amendment right to be free from an unreasonable seizure. Guscette concedes the initial stop of her vehicle for a traffic violation was proper, and once a traffic violation has occurred and a traffic stop made, an officer may temporarily detain a traffic violator at the scene of the violation. Guscette contends, however, Olson’s conduct after the time necessary to complete the traffic stop constituted an illegal seizure under the Fourth Amendment. She argues the facts and circumstances did not give Olson a reasonable suspicion she was engaged in criminal activity, and her consent to search the vehicle following the illegal seizure was tainted.

[¶ 7] The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizures. Tognotti, 2003 ND 99, ¶7, 663 N.W.2d 642. In Fields, 2003 ND 81, 662 N.W.2d 242, this Court discussed an issue similar to the one raised by Guscette. There, in the context of a concededly valid traffic stop for expired license tabs, a police officer asked Fields for consent to search his vehicle after the officer had released him from the incidents of the traffic stop and reap-proached him to inquire about drugs or weapons in the vehicle. Id. at ¶ 4. When Fields refused to consent to a search of his vehicle, the officer detained him until a drug detection dog arrived at the scene and detected drugs in the vehicle. Id. In Fields, 2003 ND 81, ¶¶ 8-13, 662 N.W.2d 242, a majority of this Court outlined standards for a traffic stop and concluded the continued detention of Fields until a drug detection dog arrived constituted a seizure under the Fourth Amendment because a reasonable person in Fields’ position would not have felt free to leave the scene:

When conducting a traffic stop, an officer can temporarily detain the traffic violator at the scene of the violation. See State v. Mertz, 362 N.W.2d 410, 412 (N.D.1985) (citing N.D.C.C. §§ 39-07-07 and 39-07-09). The constitutionality of an investigative detention is judged under the framework established in Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), requiring that an investigative detention be “reasonably related in scope to the circumstances which justified the interference in the first place.” This Court has explained that for traffic stops, “[a] reasonable period of detention includes the amount of time necessary for the officer to complete his duties resulting from the traffic stop.” Mertz, at 412. Those duties, according to the Court of Appeals for the Eighth Circuit, may include:
requesting] the driver’s license and registration, requesting] that the driver step out of the vehicle, requesting] that the driver wait in the patrol car, conducting] computer inquiries to determine the validity of the license and registration, conducting] computer searches to investigate the driver’s criminal history and to determine if the driver has outstanding warrants, and making] inquiries as to the motorist’s destination and purpose.
United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001). The investigative detention may continue “as long as reasonably necessary to conduct these activities and to issue a warning or citation.” Id. at 925; see also Mertz, at 412 (“[A] traffic violator is subject to the arresting officer’s authority and restraint until the officer completes issuance of the traffic citation and expressly releases the violator.”).
In this case, the officer issued Fields a citation for the expired tabs and expressly released Fields by saying goodbye, turning around, and starting to walk back to his vehicle. After the officer issued the traffic citation, the legitimate investigative purposes of the traffic stop were completed. See Jones, 269 F.3d at 925 (stating that once the trooper had determined that the driver was not tired or intoxicated, had verified that the driver’s license and registration were valid, and had checked for any outstanding arrest warrants, the legitimate investigative purposes of the traffic stop were completed).
Once the purposes of the initial traffic stop are completed, a continued seizure of a traffic violator violates the Fourth Amendment unless the officer has a reasonable suspicion for believing that criminal activity is afoot. See Jones, 269 F.3d at 925. Therefore, the constitutional inquiry in this case is reduced to two determinations: whether Fields was “seized” within the meaning of the Fourth Amendment when he was held awaiting the arrival of the drug detection dog, and if so, whether there was a reasonable suspicion to support the seizure. See id.

[¶ 8] Our inquiry first focuses on whether Olson seized Guscette when he asked to search her vehicle. Not every law enforcement contact with a citizen is a seizure, and law enforcement officers do not violate the Fourth Amendment merely by approaching individuals on the street or in other public places. United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). In Drayton, at 201, 122 S.Ct. 2105, the United States Supreme Court explained that as long as law enforcement officers do not induce cooperation by coercive means, they may pose questions and ask for consent to search even when they have no basis for suspecting criminal activity. A seizure does not occur simply because a law enforcement officer questions a person, and as long as reasonable persons would feel free to disregard the officer and go about their business, the encounter is consensual and a reasonable suspicion of criminal activity is not required. Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). If reasonable persons would feel free to terminate the encounter, they have not been seized under the Fourth Amendment. Drayton, at 201, 122 S.Ct. 2105. To constitute a seizure, an officer must in some way restrain an individual’s liberty by physical force or show of authority. City of Fargo v. Ovind, 1998 ND 69, ¶ 7, 575 N.W.2d 901. In Fields, 2003 ND 81, ¶ 11, 662 N.W.2d 242, we have said a person has been seized within the meaning of the Fourth Amendment, if, in view of all the surrounding circumstances, a reasonable person would have believed he or she was not free to leave the scene.

[¶ 9] The trial court found Olson gave Guscette a verbal warning, handed Gus-cette her driver’s license, and told her she was free to leave. According to Olson’s written uniform incident report, which was before the trial court by incorporation into the State’s return to Guscette’s motion to suppress and was referred to by Olson during his testimony at the suppression hearing, Olson gave Guscette a verbal warning for the taillight, returned her identification, told her she was free to leave, and she indicated she understood. Before Guscette returned to her vehicle, Olson asked her if she had any weapons, needles, knives, or anything else illegal in the vehicle, and she replied she did not. Olson then asked Guscette for consent to search her vehicle, which she granted. This is not a case where Olson detained Guscette while a drug detection dog was called to the scene. Rather, after Olson told Guscette she was free to leave, he asked her about items in the vehicle and asked her for permission to search her vehicle. Nothing in the record indicates this exchange required anything more than a minimal period of time, and Guscette testified she was not “nervous or anything” during her encounter with Olson. The trial court found Olson told Guscette she was free to leave before Olson asked for consent to search the vehicle, and there was no threat or show of force by Olson when he asked for consent to search the vehicle. The court found Guscette consented to the search “right after receiving her driver’s license back and being told she was free to go.” The trial court effectively found Guscette had not been seized when she consented to the search of her vehicle.

[¶ 10] We conclude there is sufficient competent evidence supporting the trial court’s finding Guscette was free to leave and had not been seized when she consented to the search of her vehicle, and the court’s decision is not contrary to the manifest weight of the evidence. We, therefore, conclude Guscette was not seized under the Fourth Amendment when she consented to the search of her vehicle.

B

[¶ 11] In City of Fargo v. Ellison, 2001 ND 175, ¶ 13, 635 N.W.2d 151, we outlined our standard for determining the validity of a consent to search:

“[W]hen the validity of a consent to search is called into question, the trial court must satisfy itself that the consent was given voluntarily before it can permit the use of evidence obtained from the search against the accused at trial.” State v. Discoe, 334 N.W.2d 466, 467 (N.D.1983). “[T]he way in which the trial court is to make its determination on the issue of voluntariness is by examining the totality of the circumstances which surround the giving of a confession or consent to a search to see whether it is the product of an essentially free choice or the product of coercion.” Id. “Under a ‘totality of the circumstances’ standard, although the existence or absence of certain factors concerning (1) the characteristics and condition of the accused at the time [he or she] confessed or consented and (2) the details of the setting in which the consent or confession was obtained are significant in deciding voluntariness, no one factor in and of itself is determinative.” Id. at 467-68.

[¶ 12] The trial court found Guscette voluntarily consented to the search of her vehicle under the totality of the circumstances. Guscette testified she was not nervous during her encounter with Olson. The court found there was no threat or show of force by Olson when Guscette consented to the search, and nothing in this record supports a conclusion Gus-cette’s consent was the product of coercion. The court’s findings and conclusions are supported by the record and are not contrary to the manifest weight of the evidence.

[¶ 13] In State v. Schmitz, 474 N.W.2d 249, 251 (N.D.1991), this Court discussed the scope of a consent to search:

To be valid as an exception to the warrant and probable cause requirements of the Fourth Amendment, a consent search must be “conducted according to the limitations placed upon an officer’s right to search by the consent.” State v. Huether, 453 N.W.2d 778, 782 (N.D.1990). “The scope of a search is generally defined by its expressed object.” Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The question whether a search exceeds the scope of consent is a factual one, subject to the “clearly erroneous” standard of review. Huether, 453 N.W.2d at 782; State v. Padgett, 393 N.W.2d 754, 757 (N.D.1986).

[¶ 14] In Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), the United States Supreme Court said a defendant’s general consent to search a car includes a consent to search containers within the vehicle which may contain the items sought. The trial court found Olson asked Guscette for consent to search the vehicle after asking her if there were any weapons, knives or anything else illegal in the vehicle. Guscette’s purse was in the vehicle, and weapons or knives are items that could be found in a purse. The court found Guscette put no limitations on her initial consent to search the vehicle, and by the time Guscette may have withdrawn her consent, the contraband had already been discovered. That finding is supported by Olson’s testimony he had already found the drug paraphernalia when he heard Guscette telling the other officer she had not consented to a search of her purse, but just to the search of the vehicle. Although Guscette testified she did not believe Olson had found drug paraphernalia in her purse when she objected to the other officer, there is evidence supporting the trial court’s finding. We conclude there is sufficient competent evidence fairly supporting the trial court’s findings of consent and those findings are not contrary to the manifest weight of the evidence.

IV

[¶ 15] We affirm Guscette’s conviction.

[¶ 16] DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

dissenting.

[¶ 17] I dissent from the majority because I believe that Guscette was illegally detained and that the trial court did not appropriately consider the issue of consent obtained after an illegal detention. I would reverse and remand for the trial court to properly apply the law.

I

[¶ 18] The record of this case establishes that Officer Olson stopped Guscette for a broken taillight. He approached the driver’s door and asked Guscette for her North Dakota driver’s license. He proceeded back to his squad car where he ran a driver’s license check to confirm that Guscette did have a valid driver’s license. Upon checking the in-house computer, he saw that Guscette had prior involvements with drugs and paraphernalia.

[¶ 19] Officer Olson walked back to Guscette’s vehicle and asked her for proof of insurance. Guscette had difficulty locating the current proof of insurance, and the officer did not require her to produce it. Next, Officer Olson asked Guscette if she knew the whereabouts of Corey Mock. Corey Mock was a roommate of Guscette, whom she knew law enforcement had been trying to locate. Guscette told the officer she did not know the whereabouts of Corey Mock.

[¶ 20] Officer Olson then asked Gus-cette to step out of her vehicle to visit with him. She agreed and got out of her vehicle. Officer Olson again asked Guscette if she knew the whereabouts of Corey Mock. She again stated she did not know. The officer then asked her about contact she had with Officer Erbes concerning a drug charge. Guscette said she still had to go to court on that matter. The record is unclear whether, at this point or just before questioning her about her drug charge, the officer told Guscette that he was going to give her a verbal warning and handed back her identification.

[¶21] The trial court found, and the majority agrees, that the officer then told Guscette she was free to leave. Neither Officer Olson nor Guscette testified to this fact at the suppression hearing. The only place this fact can be found is in Officer Olson’s report of the arrest which was referred to in the State’s response to the motion to suppress.

[¶ 22] Before Guscette was able to get back into her car, Officer Olson asked her if she had any weapons, needles, knives, or anything else illegal in her vehicle. She answered no. He then asked her if he could search her vehicle. She said yes.

II

[¶23] I believe that continuing to detain Guscette for questioning after her license and registration had been checked was a violation of the Fourth Amendment. See United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir.1994) (holding that continuing to detain defendants after their licenses and registration had been checked was a violation of the Fourth Amendment).

[¶ 24] “To justify a greater intrusion unrelated to the traffic stop, the totality of circumstances known to the officer must meet the requisite level of reasonable suspicion under Terry.” United States v. Ramos, 20 F.3d 348, 352 (8th Cir.1994), rev’d on other grounds, 42 F.3d 1160 (8th Cir. 1994). After a lawful stop, an officer is entitled to order the driver and the passenger out of the vehicle to -check the identity and validity of the license of the driver, to check the identity of the passenger, to request the driver sit in the patrol car, to ask the driver about his destination and purpose, to ascertain whether there are outstanding arrest warrants on the driver or passenger, and to establish whether the vehicle is stolen or otherwise involved in violations of the law. Ramos, 20 F.3d at 353 (Beam, J., dissenting) (citations omitted); United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001). The United States Court of Appeals for the Eighth Circuit has further stated:

If reasonably related questions raise inconsistent answers, or if the licenses and registration do not check out, a trooper’s suspicions may be raised so as to enable him to expand the scope of the stop and ask additional, more intrusive, questions. If, however, no answers are inconsistent and no objective circumstances supply the trooper with additional suspicion, the trooper should not expand the scope of the stop.

Ramos, at 1163.

[¶25] In my opinion, Officer Olson’s extended detention after completing the traffic stop was an unreasonable seizure and violated the Fourth Amendment. Officer Olson conducted a driver’s license and registration check, a check of Gus-cette’s criminal history, and an insurance check. At that point, he had done everything necessary to complete the traffic stop investigation and did not have reasonable or articulable suspicion of further criminal activity.

[¶ 26] Although Officer Olson had all the information he needed to complete the traffic stop investigation, he asked Gus-cette the whereabouts of Corey Mock and then asked her to exit, her vehicle. Once out of her vehicle, Officer Olson pursued his interrogation concerning the whereabouts of Corey Mock, Guscette’s pending drug charge, and the status of the drug charge. Although it is not clear exactly when he returned her identification, gave her a verbal warning, and, supposedly, told her she was free to leave, it was definitely after he asked her to exit her vehicle and after questions about Corey Mock’s ydiere-abouts. The record does not reveal that Officer Olson asked Guscette any questions relevant to the traffic.stop during their conversation outside of her-.vehicle. Officer Olson’s questions were unrelated to the .traffic stop and were unreasonable. He had no justification to expand the scope of <the traffic stop- beyond investigating Guscette for a broken taillight. .

[¶ 27] The State contends, however, following issuance of the verbal warning and return of Guscette’s identification that she could have merely gotten in her car and left. In this case. Officer Olson had just finished interrogating Guscette concerning the whereabouts of her roommate whom law enforcement was trying to locate and possibly about her own drug charge when he told her she was free to leave. Then, in the next breath, he asked if she had any illegal drugs in her vehicle and if he could search it. If Officer Olson told her she was free to leave and then contemporaneously interrogated her about her own drug charges, her consent was the fruit of an illegal detention. See State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762 (1997). I am of the opinion that at the time of her consent she was either still seized or seized a second time when the officer interrogated her about her own drug charge.

III

[¶ 28] If Guseette was still seized or seized a second time, the consent she subsequently gave to search her vehicle was tainted by her illegal detention. The State contends Guseette voluntarily consented to a search of her vehicle after being told she could leave. Our Court has stated the standard for determining the voluntariness of a consent to search includes examining the totality of the circumstances:

“Under a ‘totality of the circumstances’ standard, although the existence or absence of certain factors concerning (1) the characteristics and condition of the accused at the time [he or she] confessed or consented and (2) the details of the setting in which the consent or confession was obtained are significant in deciding voluntariness, no one factor in and of itself is determinative.”

City of Fargo v. Ellison, 2001 ND 175, ¶ 13, 635 N.W.2d 151 (quotation omitted). In this case, the trial court concluded, after applying the above standard, Gus-cette’s consent was voluntary. However, this is not the end of the inquiry. See United States v. Becker, 333 F.3d 858, 861 (8th Cir.2003).

A

[¶ 29] In Wong Sun v. United States, the Supreme Court of the United States held that statements made following an illegal detention are not admissible. 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The United States Court of Appeals for the Eighth Circuit has held that the rule announced in Wong Sun applies in circumstances such as in the present case, where evidence is obtained in a search following an illegal detention. Ramos, 42 F.3d at 1164 (stating “[t]he giving of Miranda warnings, followed by the making of a voluntary statement, does not, in and of itself, mandate a statement’s admissibility”) (citing Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)).

[¶ 30] The United States Court of Appeals for the Eighth Circuit has held that although a trial court finds a driver, who was illegally detained, subsequently consents voluntarily to a search, that is not the end of the inquiry. Becker, 333 F.3d at 861. Rather, the Court of Appeals concludes a trial court must analyze a second question, whether the consent to search was “sufficiently an act of free will to purge the taint of the preceding illegal detention.” Ramos, 42 F.3d at 1164; see Becker, at 862.

[¶ 31] In determining whether a “consent [to search] was given in circumstances that render it an independent, lawful cause of [the] discovery of [the relevant evidence]” and whether the taint of an illegal detention is purged from the evidence seized, the following factors must be considered:

(1) the temporal proximity between the illegal search or seizure and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); see also [United States v.] Moreno, 280 F.3d [898,] 900 [(8th Cir.2002)] (applying the Brown factors).

Becker, 333 F.3d at 861-62 (footnote omitted). The Court of Appeals further stated that a trial court must apply the Brown factors to determine whether a voluntary consent to search retains the taint of the illegal detention. Becker, at 861.

[¶ 32] In Ramos, the United States Court of Appeals for the Eighth Circuit, on a petition for rehearing, held that despite the illegal detention of Ramos, his consent was “sufficiently an act of free will to purge the taint of the preceding illegal detention.” 42 F.3d at 1164. In that case, the Court of Appeals noted the officer told the driver, both orally and in writing, that he did not have to sign the consent form. The Court of Appeals further noted such a warning is not required by law; therefore, the fact the officer gave the warning strongly suggested he was not attempting to exploit the traffic stop, but was acting in good faith. Id. The defendant signed a consent form, and the Court of Appeals concluded, “[w]hat happened here, really, went beyond voluntary consent. It was an affirmative waiver of Salvador Ramos’s Fourth Amendment right to prevent a search of his vehicle.” Id.

[¶ 33] In the present case, there was no written consent form or warning, but there was an intervening circumstance between the illegal detention and the consent to search Guscette’s vehicle. Officer Olson’s report states that he told Guscette at some point, either before or after he interrogated her about her own drug charges, that she was free to leave before he asked if he could search her car. Officer Olson said Guscette could leave, and in the next breath, he asked her if there were drugs in her vehicle and if he could search it. Both of those questions were asked before Gus-cette could even get back into her car and followed on the heels of illegal questioning outside her vehicle concerning the whereabouts of her roommate whom law enforcement was trying to locate and her own pending drug charge. Professor La-fave recognizes that there exists now a pervasive police practice of using traffic stops plus purported consent of those stopped as a means of conducting vehicle searches to find drugs. 3 Wayne R. La-fave, Search and Seizures § 8.2 at 169 (3d ed. & Supp.2004). He notes “that traditionally the notion of voluntariness [of consent] ‘has reflected an accommodation’ of two competing interests: (i) the ‘need for ... a tool for the effective enforcement of criminal laws’; and (ii) ‘society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness.’ ” Id. at 169 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Professor Lafave concludes: “If courts sense an element of unfairness in particular consent strategies employed by the police, that itself might prompt a more critical assessment of police claims of consent in that setting.” Id.

[¶ 34] Because the trial court failed to recognize Guscette’s illegal detention, it did not address the issue of whether Gus-cette’s consent to search her car was “sufficiently an act of free will to purge the primary taint.” The trial court did discuss the intervening factor that Officer Olson told Guscette she was free to leave. However, I conclude the trial court erred by failing to analyze the other two Brown factors which it should have considered when determining if the taint of Guscette’s illegal detention was purged.

[¶ 35] Guscette’s motion to suppress stated, “[t]his Motion is made and based upon the attached Affidavit of Stephanie Jonell Guscette together with any and all evidence or testimony adduced at the hearing of this matter.” At the suppression hearing, Guscette testified to the following:

Q: Okay. Did you ask him why he was detaining you like that?
A: Nope, I didn’t. I didn’t question it because I thought maybe he was, you know, just, you know, wanted to see if we were doing anything bad. Maybe standing face to face was a better confrontation, you know, to see if, you know, what I was like. And I wasn’t nervous or anything because, you know, I hadn’t been doing anything wrong. And the first thing he had said to me was, he asked me, so, you haven’t seen Corey Mock? And I was like, I said, no, I haven’t seen him for several days matter of fact. And then he goes, I see you had a run-in with Officer — I believe it was Erbes, he said, you had a run-in with Officer Erbes. I was — I didn’t know that my charges, you know, from being on bond and my first charge would of been on my, you know, that he could of seen that all ready. And so, I asked him if that was, you know, what I was still was going to Court for. and he—
Q: You had a previous paraphernalia charge, is that right?
A: Yeah.
Q: Okay. And somehow he had got some information—
A: Right.
Q: —that you had something to do with an Officer Erbes, is that correct?
A: Right.
Q: Do you know how he got that information?
A: I’m sure he looked in his computer or something.
Q: Okay. But, nonetheless, that didn’t bother you?
A: Well, I asked him if that was, you know, what I was still going to Court for? And he told me, well yes, it must be. And I was like, well then, yeah — you know, I did have a run-in with Officer Erbes.
Q: Uh-huh.
A: And then he goes — well he goes— considering, you know, the — you know, the — what’s on, you know, in front of me, he goes, can I search your car? And I — he goes can— will you give me consent to search your car? And I said, sure, you know. Then he directed Officer Nelson to ask Andy to get out of the car, which Andy did. And we stood at the back of my car. And I was on the driver’s side of the car standing right at the rear, right by the light, Andy was standing right next to me. And then Officer Nelson was standing, like, right behind us. And he went to — Officer Olson went to my car. And my purse was on the front — was on the front, like, in the middle between the seats and — it’s a fairly large purse — and I seen him go for it right away. And as soon as he grabbed it—

Guscette’s testimony indicates the request to search for contraband was contemporaneous with Officer Olson’s questioning regarding a run-in with Officer Erbes and a drug charge. Under the totality of the circumstances, an inference of coercion or intimidation could be drawn.

[¶ 36] The United States Supreme Court has rejected per-se rules and has emphasized that voluntariness is a fact question to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). On remand from the United States Supreme Court, the Supreme Court of Ohio in Robinette, 685 N.E.2d at 770-71 stated:

“The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. The undetectability of that transition may be used by police officers to coerce citizens into answering questions that they need not answer, or to allow a search of a vehicle that they are not legally obliged to allow.” Id. [State v. Robinette], 73 Ohio St.3d [650] at 654, 653 N.E.2d [695] at 698 [(1995)].5 When these factors are combined with a police officer’s superior position of authority, any reasonable person would have felt compelled to submit to the officer’s questioning. While Newsome’s questioning was not expressly coercive, the circumstances surrounding the request to search made the questioning impliedly coercive. Even the state conceded, at oral argument before the United States Supreme Court, that an officer has discretion to issue a ticket rather than a warning to a motorist if the motorist becomes uncooperative. See 1996 WL 587659, at 5 (Official Transcript of Oral Argument). From the totality of the circumstances, it appears that Robinette merely submitted to “a claim of lawful authority” rather than consenting as a voluntary act of free will. Under Royer, this is not sufficient to prove voluntary compliance. [Florida v.] Royer, 460 U.S. [491] at 497, 103 S.Ct. [1319] at 1324, 75 L.Ed.2d [229] at 236 [(1983)].

Robinette, at 770-71. “Other courts have on like or similar facts also concluded that an illegal second seizure occurred after termination of a lawful one, a result not at all inconsistent with the United States Supreme Court’s Robinette decision.” See 4 Wayne R. Lafave, Search and Seizure § 9.3(a) at 49 (3d ed. & Supp. 2004); Id. at 50 n. 107.12-107.13. In Reittinger v. Commonwealth, the Supreme Court of Virginia held that, although Reittinger was told by the deputy he was free to leave after the deputy gave him a verbal warning, the events that transpired immediately thereafter, namely, questioning about drugs in his vehicle and a request for permission to search, “would suggest to a reasonable person that just the opposite was the case.” 260 Va. 232, 532 S.E.2d 25, 28 (2000). The law is clear that an officer cannot exceed the scope of the traffic violation unless there is reasonable and articu-lable suspicion to believe criminal activity is afoot and an illegal detention taints any subsequent consent. Jones, 269 F.3d at 925. The law is also clear that, on the totality of the circumstances, the consent must be found “sufficiently voluntary to purge the taint of [an] illegal detention.” Becker, 333 F.3d at 861.

rv

[¶ 37] I am of the opinion that, when an officer’s queries exceed the scope of the traffic stop without reasonable and articu-lable suspicion of criminal activity, giving a verbal warning and merely uttering “you are free to leave” do not necessarily guarantee a subsequent consent to search is “sufficiently” voluntary to purge the taint of an illegal detention. This is especially true where the illegal detention and consent are integrally connected and contemporaneous and where there have been subtly coercive police questions, which possibly create a vulnerable subjective state in the person who consents.

[¶ 38] I conclude Guscette was illegally detained; therefore, a Fourth Amendment violation occurred. However, because the trial court failed to consider the illegal detention and whether Guscette’s voluntary consent was sufficiently an act of free will to purge the taint of her illegal detention or whether it was the fruit of an illegal detention, I would reverse and remand for the trial court to apply the correct legal standard regarding consent following an illegal detention.

[¶ 39] Therefore, I respectfully dissent.

[¶ 40] MARY MUEHLEN MARING

VANDE WALLE, Chief Justice,

dissenting.

[¶ 41] The trial court concluded this case is analogous to State v. Everson, 474 N.W.2d 695 (N.D.1991), and that under Everson the officer “was not required to have a reasonable and articulable suspicion of any further wrongdoing by Defendant in order to ask for her consent to search the vehicle.” But in Everson the defendant was held due to the delay in obtaining a license check on the trailer because of the mutilated condition of the license plate. It was during that delay the officer requested permission to search the automobile to which the trailer was attached.

[¶ 42] In this case, I agree with the dissent that the officer’s extended detention after completing the traffic stop was an unreasonable seizure under the Fourth Amendment to the United States Constitution. The authority to stop a vehicle for a traffic violation is not authority or justification to interrogate the driver on unrelated matters. I also agree with the dissent to the extent that if the detention is illegal, we need look closely at the circumstances to determine if there was a clear interval between the illegal detention and the request to search before we conclude the permission to search was indeed voluntary notwithstanding the illegal detention. Under the totality of the circumstances in this instance, the clear interval and the volun-tariness of the consent to search are not readily apparent. I join the dissent in concluding we should remand the matter to the trial court for that determination.

[¶ 43] GERALD W. VANDEWALLE, C.J.


author: NEUMANN, Justice.

text:
    2004 ND 76
    Jody GULLICKSON, Petitioner and Appellee v. John KLINE, Respondent and Appellant.
    No. 20030223.
    Supreme Court of North Dakota.
    April 13, 2004.

      Jody Gullickson (no appearance).
    Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for respondent and appellant.
   NEUMANN, Justice.

[¶ 1] John Kline appeals from a disorderly conduct restraining order directing him to have no contact with Jody Gullick-son. We reverse and remand, concluding that the trial court committed errors during the hearing on the restraining order which, when considered in their totality, denied Kline a full and fair hearing and violated his right to due process.

I

[¶ 2] Jody Gullickson is the mayor of the city of Max, and John Kline is a resident of Max. In June 2003, Gullickson sought a disorderly conduct restraining order against Kline based upon his actions at a city council meeting and upon several incidents involving Kline and Gullickson’s husband, Gary.

[¶ 3] In her affidavit in support of the restraining order, Gullickson alleged Kline disrupted the June 2, 2003, city council meeting by asking questions, requesting copies of ordinances, telling council members they should resign so more qualified people could serve, making a racially insensitive remark, and staring at Gullickson with “little beady eyes.” Gullickson’s remaining allegations involved three incidents between her husband and Kline regarding Gary Gullickson driving his semi-truck through town past Kline’s house. Gullickson alleged Kline twice came into the Gullicksons’ yard and shouted obscenities at her husband, and on one of these occasions made a sexually disparaging remark about her to her husband. She also alleged Kline on one occasion ran from his yard, jumped on the running board of Gary Gullickson’s semi as it passed by, pounded on the window, and hollered “like a crazed man.”

[¶ 4] The trial court issued a temporary disorderly conduct restraining order, and a hearing was held on July 2, 2008. At the hearing, Kline disputed most of Gullickson’s allegations. He denied disrupting the city council meeting, testifying that he did not glare at Gullickson at the meeting, asked only for copies of the materials being handed to the council members, and asked questions when certain topics were discussed. Regarding the incident in front of his house, Kline testified he was walking across the street when Gary Gul-lickson failed to stop at a stop sign and hit Kline, and when Gary Gullickson finally stopped his truck Kline stepped up on the running board. He denied hitting the window with his fist or yelling at Gary Gullick-son. Regarding the two incidents in the Gullicksons’ yard, Kline testified that he went to the Gullicksons’ house after Gary Gullickson had again driven his truck through the stop sign near Kline’s house and that he went to ask Gary Gullickson if he would take the truck route through town or park his truck elsewhere. Kline claimed that Gary Gullickson repeatedly yelled profanities at him. Kline also stated that he made a sexual remark about Jody Gullickson only after Gary Gullickson had dropped his pants and exposed himself to Kline.

[¶ 5] The district court issued a disorderly conduct restraining order dated July 2, 2003, to be in effect for two years. Kline was ordered to have no contact with Gullickson and to not come within 100 yards of Gullickson or her home. Kline has appealed.

II

[¶ 6] Kline asserts the trial court committed numerous procedural errors which denied him a full and fair hearing and violated due process.

[¶ 7] Under N.D.C.C. § 12.1-31.2-01, a person who has been the victim of disorderly conduct may petition for a disorderly conduct restraining order. The petition must allege facts showing that the respondent has engaged in disorderly conduct, and must be accompanied by an affidavit under oath stating the specific facts and circumstances supporting the relief sought. N.D.C.C. § 12.1-31.2-01(3). The court may issue a temporary restraining order, and must then schedule a full hearing on the petition to be held within fourteen days of issuance of the temporary order. N.D.C.C. § 12.1-31.2-01(4), (5). If, after the hearing, the court finds there are reasonable grounds to believe the respondent has engaged in disorderly conduct, it may grant a disorderly conduct restraining order effective for up to two years. N.D.C.C. § 12.1-31.2-01(5), (6).

[¶ 8] This Court has characterized the procedure under the statute as a “special summary proceeding,” intended to “quickly and effectively combat volatile situations before any tragic escalation.” Skadberg v. Skadberg, 2002 ND 97, ¶ 13, 644 N.W.2d 873. However, we have also noted the significant restraint placed upon the respondent’s liberty and the stigma resulting from a disorderly conduct restraining order. See Tibor v. Lund, 1999 ND 176, ¶ 17, 599 N.W.2d 301. The order typically restricts the respondent’s right to be in certain places and subjects the respondent to criminal penalties and arrest without a warrant. See N.D.C.C. § 12.1-32.1-01(7), (8). In addition, copies of the order are sent to local law enforcement agencies, which are authorized to disseminate the information to all of their officers. See N.D.C.C. § 12.1-31.2-01(9); Tibor, at ¶ 17. Clearly these interests create a due process right to a full and fair hearing before issuance of a disorderly conduct restraining order beyond the fourteen-day temporary order.

[¶ 9] We have reviewed the record in this case and we conclude the procedures employed by the trial court, when considered as a whole, deprived Kline of a full and fair hearing and violated his right to due process. We will briefly highlight some of the procedural problems which occurred.

A

[¶ 10] At the beginning of the hearing the court swore in Gullickson, who was not represented by counsel, but had her remain at counsel table rather than take the witness stand. The court then asked Gul-lickson if everything in her affidavit was true. Gullickson responded yes. The court then asked if Gullickson wished to add anything. Kline’s counsel objected on due process grounds, arguing they hadn’t received notice of other allegations and requesting a continuance if new matters were raised. The court overruled Kline’s objection, and Gullickson testified her husband had told her about two additional incidents between himself and Kline. She also testified about an incident where Kline allegedly took photographs of Gul-lickson’s mother while she was stopped at a stop sign after leaving Gulliekson’s house. Kline raised hearsay objections to this testimony and portions of Gullickson’s affidavit, and requested that Gullickson and the other hearsay “witnesses” be called to the stand to testify about these incidents. The court overruled the objections.

[¶ 11] There were numerous problems with this procedure. The statute gives the respondent the right to a “full hearing,” not merely one based upon the affidavits alone. We recognize that in Skadberg we allowed a procedure which was short of a full-blown trial. In Skadberg, both parties had presented affidavits, and the respondent was given a full opportunity to cross-examine the petitioner. When asked if he had anything further to present, the respondent indicated he did not. Nor did the respondent at any time during the hearing object to the procedure employed at the hearing. We concluded that the respondent had received a “full hearing” under the statute. Skadberg, 2002 ND 97, ¶ 14, 644 N.W.2d 873.

[¶ 12] Skadberg is clearly distinguishable from this case. Kline was not provided a meaningful opportunity to cross-examine Gullickson. Furthermore, much of the material in her affidavit and her “testimony” at trial was inadmissible hearsay, not based upon her personal knowledge. By failing to require other witnesses with personal knowledge of the incidents to testify, Kline had no opportunity to challenge their versions of these incidents. Finally, by allowing Gullickson to raise new allegations without notice to Kline, Kline was not allowed any meaningful opportunity to challenge or rebut that evidence. The right to a fair hearing comporting with due process includes reasonable notice or opportunity to know of the claims of opposing parties and the opportunity to rebut them. Flink v. North Dakota Workers Compensation Bureau, 1998 ND 11, ¶ 16, 574 N.W.2d 784; Municipal Servs. Corp. v. State, 483 N.W.2d 560, 564 (N.D.1992).

[¶ 13] The hearsay nature of the evidence about many of these incidents raises a further, more fundamental problem under the statute. The statute provides that the applicant for a disorderly conduct restraining order must be the “victim” of the prior disorderly conduct, or the parent or guardian of a minor who has been a victim. N.D.C.C. § 12.1-31.2-01(2). “Disorderly conduct” is defined as “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.” N.D.C.C. § 12.1-31.2-01(1). Thus, the conduct must be intended to adversely affect a person, and the statute does not authorize one person to seek a restraining order based upon disorderly conduct directed at some other person. In this case, the incidents involving Gullicksoris husband and mother could not provide the basis for a disorderly conduct restraining order by Gullickson, because the conduct was not directed toward her and she therefore was not the “victim” of the alleged disorderly conduct. In fact, in all of these incidents except one there is no evidence Gullickson was present when the conduct occurred. She stated that she was in her home when one of the incidents between her husband and Kline occurred in her yard, and that she went to the door in time to hear Kline make a sexually disparaging remark about her to her husband. However, the remark was not directed toward her, and could not have been “intended to adversely affect” her “safety, security, or privacy.” If Kline’s actions during the incidents with Gullicksoris husband or mother constituted disorderly conduct, her husband and mother, respectively, were the “victims,” and only they could seek a restraining order based upon that conduct.

B

[¶ 14] We are also concerned about the abbreviated length of the hearing. Although the transcript does not delineate the length of time of the hearing, the entire transcript is only eighteen pages long. In the middle of Kline’s testimony, the court interrupted Kline’s counsel and cut short the hearing:

THE COURT: Excuse me. Mr. McCabe, I don’t have an infinite amount of time for this hearing, so what I’m going to do is allow you to just tell me in the form of an offer of proof what the rest of any evidence you’re going to present is, cause I’ve got lots of other business on my calendar here, so.

Kline’s counsel was thus required to cut short his examination of Kline, and allowed to make only a very brief summary of the expected testimony of Kline’s wife. The court did not allow closing arguments, and when Kline’s counsel requested, “If I could just get a one last ten second thing for the record,” the court responded, “No, we’re done,” and closed the record.

[¶ 15] We recognize that a trial court has broad discretion over the conduct of a trial or hearing, including limitations on the number of witnesses. See Selzler v. Selzler, 2001 ND 138, ¶ 10, 631 N.W.2d 564; Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 580 (N.D.1991); Ward v. Shipp, 340 N.W.2d 14, 18 (N.D.1983); Merrill Iron & Steel, Inc. v. Minn-Dak Seeds, Ltd., 334 N.W.2d 652, 658 (N.D.1983); Fuhrman v. Fuhrman, 254 N.W.2d 97, 101 (N.D.1977). We have cautioned, however, that the court must exercise that discretion in a manner that best comports with substantial justice. Selzler, at ¶ 10; Slaubaugh, at 580; Ward, at 18. As this Court explained in Ward, at 18:

We are mindful of the necessity of the trial court having complete control over the proceedings before it, and of the broad discretion placed in the trial court in conducting such proceedings, but this discretion must be exercised in a manner which best comports with substantial justice. The court must balance judicial economy and convenience with the parties’ right to present all of the evidence on all of the relevant issues. Trial courts should not arbitrarily disallow testimony that is critical to the case, particularly when the only objection is a slight inconvenience to the court or to other parties.

In addition, procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case. St. Claire v. St. Claire, 2004 ND 39, ¶6, 675 N.W.2d 175; Walbert v. Walbert, 1997 ND 164, ¶ 9, 567 N.W.2d 829; In re Adoption of J.W.M., 532 N.W.2d 372, 377 (N.D.1995).

[¶ 16] We reiterate that a trial court will ordinarily have broad discretion over the conduct of a trial or hearing. We also recognize that the court may impose reasonable restrictions on the length of the hearing or the number of witnesses allowed. However, when the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues, the court has abused its discretion and violated the party’s due process rights.

[¶ 17] We are particularly concerned with the trial court’s mistaken belief that allowing counsel to make an offer of proof of what the other evidence would have been somehow substitutes for live testimony by a witness. The primary purpose of an evidentiary hearing is to allow the parties to present evidence through testimony and allow the factfinder to hear and view the witnesses, assess their credibility, and thereby resolve factual disputes. The parties presented widely divergent factual allegations and versions of the various incidents, and the case turned entirely upon the credibility of the witnesses. Requiring one party to present evidence through counsel’s abbreviated offer of proof, rather than live testimony of witnesses, was meaningless under these circumstances and provided no opportunity for the trial court to assess the credibility of the witnesses and to fairly resolve the factual disputes.

C

[¶ 18] Kline also argues the court erred in failing to specifically address his claim that some of his conduct constituted constitutionally protected activity.

[¶ 19] Under N.D.C.C. § 12.1-31.2-01(1), “[disorderly conduct does not include constitutionally protected activity.” Section 12.1-31.2-01(5)(d) N.D.C.C., requires the court to determine the validity of such a constitutional claim before granting a disorderly conduct restraining order:

If a person claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

[¶ 20] Kline argued at the hearing that some of his conduct was constitutionally protected activity. The trial court did not, however, explain its rationale for issuing the disorderly conduct restraining order or address the constitutional claims orally at the hearing, in written findings, or in the disorderly conduct restraining order itself. The court used a pre-printed, fill-in-the-blank form for the restraining order. We are unable to discern the basis for its decision to issue the restraining order, and, in particular, we cannot discern whether the court considered and determined the validity of Kline’s constitutional claims. The trial court should have explained if it disregarded evidence of constitutionally protected activity under N.D.C.C. § 12.1-31.2-01 (5)(d) or if it rejected Kline’s constitutional claims.

[¶21] We are particularly concerned about the court’s failure to address Kline’s constitutional claims because the restraining order issued by the court appears to raise related constitutional issues. On its face, the order prohibits Kline from coming within 100 yards of Gullickson. This would effectively preclude Kline from attending city council meetings.

Ill

[¶ 22] Our primary concern in this case has been the composite effect of the numerous procedural problems. We have held that “[a] person is denied due process or a fair hearing when the defects in the hearing process might lead to a denial of justice.” Stutsman County v. Westereng, 2001 ND 114, ¶ 8, 628 N.W.2d 305; Hoffman v. North Dakota Workers Compensation Bureau, 1999 ND 66, ¶ 12, 592 N.W.2d 533; Carlson v. Job Service North Dakota, 548 N.W.2d 389, 395 (N.D.1996). The overall tenor and tone of the hearing indicates that Kline was denied a meaningful and reasonable opportunity to present his evidence and challenge Gullickson’s allegations, resulting in a denial of justice. Under these circumstances, we conclude Kline was denied the full and fair hearing mandated by N.D.C.C. § 12.1-31.2-01 and due process.

[¶ 23] We reverse the disorderly conduct restraining order and remand for a new hearing.

[¶ 24] GERALD W. YANDE WALLE, C.J., DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ., concur.

I concur in the result. MARY MUEHLEN MARING.