author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Edward F. ROONEY, a Minnesota Attorney, Registration No. 9321X.
    No. A04-1959.
    Supreme Court of Minnesota.
    Feb. 16, 2006.

      Patrick R. Burns, St Paul, MN, for Lawyers Professional Responsibility Board.

      Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for Respondent Edward F. Rooney.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Edward F. Rooney, alleging that Rooney misappropriated $27,700 of his clients’ funds. Rooney answered and admitted the misappropriation, but offered several mitigating circumstances. After a hearing, the referee concluded that Rooney had violated Minn. R. Prof. Conduct 1.15 (safekeeping of client funds) and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee recommended that Rooney be suspended from the practice of law for 8 months with a 3-year probationary period following his reinstatement, and that he be permanently prohibited from maintaining a client trust account in the future. The Director appealed, disputing the referee’s disciplinary recommendation and arguing that disbarment is warranted. We conclude that an 18-month suspension is the appropriate discipline in this case.

Rooney was admitted to the practice of law in Minnesota in October 1972 and has practiced as a sole practitioner since October 1973. Rooney has not previously been the subject of professional discipline.

Rooney’s misconduct involves a client trust account that he maintained at M & I Bank in connection with his practice of law. From July 7, 2003, through June 30, 2004, Rooney, without his clients’ knowledge or permission, withdrew from his client trust account a total of $27,700 in 17 separate withdrawals ranging in amount from $350 to $4,000. Rooney kept accurate records of these withdrawals and maintained accurate trust account records throughout the period of the misappropriations. Rooney admits that he misappropriated these funds, using them for various personal and business expenses. At the time of the withdrawals, Rooney was not entitled to the funds and knew that he was not entitled to them.

On July 30, 2004, Rooney’s client trust account became overdrawn due to his misappropriations. As a result, M & I Bank sent the Director’s Office a notice of the overdraft. The Director then contacted Rooney, requesting an explanation of the overdraft. In his response, Rooney admitted that the overdraft was the result of his misappropriation of client funds.

Through four separate deposits into his client trust account, Rooney repaid all of the funds that he had taken. He made the first two deposits, in the amounts of $4,850 and $500, during the period in which he was still misappropriating client funds. His last two deposits into the trust account, made on August 2, 2004, and August 5, 2004, repaid the balance of the $27,700 that he had misappropriated. These final two deposits occurred after M & I Bank had contacted Rooney regarding the overdraft, but before the Director sent his inquiry letter to Rooney.

The referee held a hearing on March 30, 2005. At the hearing, Rooney testified and presented four character witnesses on his behalf. Because Rooney admitted the misappropriation, his evidence at the hearing primarily went to establishing mitigating factors. Rooney testified that his law practice has long been financially unstable because he often takes clients who are unable to pay him. Rooney testified that he experienced serious financial difficulties in 2003 and that he misappropriated his clients’ money because he felt it was the only way to keep his practice afloat. Rooney also detailed numerous personal problems that he suffered during 2003, including his mother’s stroke in December 2002 and his subsequent responsibilities as her primary caretaker, his wife’s emergency surgery, and his sister-in-law’s death from brain cancer. At the hearing, Rooney expressed remorse and apologized for his misconduct.

On April 26, 2005, the referee issued findings of fact, conclusions of law, and a recommendation for discipline. The referee found that Rooney had misappropriated $27,700 in client funds over the span of a year. ■ The referee also found that Rooney had repaid all of the funds taken and had cooperated fully with the disciplinary investigation. In addition, the referee determined that Rooney was suffering from serious personal and financial stress during the time when the misconduct occurred and that, over the course of his legal career, Rooney has made substantial contributions to the community. The referee concluded that Rooney’s conduct violated Minn. R. Prof. Conduct 1.15 and 8.4(c). The referee recommended that Rooney be suspended from the practice of law for 8 months followed by a 3-year probationary period and that he be permanently prohibited from maintaining a client trust account.

The Director appealed the referee’s disciplinary recommendation, , arguing that Rooney should be disbarred. The Director timely ordered a transcript of the referee hearing, thereby preserving his right to challenge the referee’s findings of fact and conclusions of law pursuant to Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). However, the Director does not actually challenge any of the referee’s factual findings.

The Director argues that we should reject the referee’s recommendation on discipline and should instead disbar Rooney. The Director contends that the recommended sanction is insufficient to fulfill the purposes of attorney discipline. In addition, the Director argues that the referee incorrectly determined that the existence of several mitigating factors warrants a sanction less than disbarment.

In opposition, Rooney argues that we should adopt the referee’s recommended discipline, or a lesser sanction. Rooney contends that the significant mitigating factors in his case, including his lack of prior disciplinary history, his restitution and remorse, his cooperation with the Director’s investigation, his attempt to rectify the problems that led to the misconduct, and his substantial community involvement, warrant a sanction less than disbarment. Further, Rooney argues that suspension, rather than disbarment, would be consistent with this court’s previous attorney discipline cases involving misappropriation!

The only issue before us is the appropriate discipline to impose. While a referee’s recommendation for discipline carries great weight, we have final responsibility for determining the appropriate discipline. In re Edinger, 700 N.W.2d 462, 467 (Minn.2005).

We have established that “[t]he purposes of disciplinary sanctions for professional misconduct are to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). When determining the appropriate sanction for attorney misconduct, we consider four factors: “1) the nature of the misconduct, 2) the cumulative weight of the violations of the rules of professional conduct, 3) the harm to the public, and 4) the harm to the legal profession.” Id. (quoting In re Singer, 541 N.W.2d 313, 316 (Minn.1996)). Sanctions are determined on a case-by-case basis after considering both aggravating and mitigating circumstances. In re Wentzell, 656 N.W.2d 402, 408 (Minn.2003). Because we strive for consistency in attorney discipline, we look to similar cases for guidance in setting the proper sanction. See In re Thedens, 557 N.W.2d 344, 347 (Minn.1997); In re Wyant, 533 N.W.2d 397, 401 (Minn.1995).

Misappropriation of client funds constitutes serious misconduct that generally warrants disbarment. In re Olson, 577 N.W.2d 218, 220-21 (Minn.1998); see, e.g., In re Vaught, 693 N.W.2d 886, 891 (Minn.2005); In re Samborski, 644 N.W.2d 402, 409 (Minn.2002); In re LaChapelle, 491 N.W.2d 17, 21 (Minn.1992). “Maintenance of public confidence in the legal profession requires the strictest discipline in misappropriation cases.” In re Austin, 333 N.W.2d 633, 635 (Minn.1983). Yet, while misappropriation alone may merit disbarment, many of the misappropriation cases in which we have ordered disbarment involved other misconduct in addition to the misappropriation, particularly misrepresentations and noncooperation with the disciplinary investigation. See, e.g., Vaught, 693 N.W.2d at 887; Samborski, 644 N.W.2d at 405; In re Ruttger, 566 N.W.2d 327, 328-31 (Minn.1997).

We have not always disbarred attorneys who have misappropriated client funds. See, e.g., In re Hanvik, 609 N.W.2d 235, 242 (Minn.2000); In re Pyles, 421 N.W.2d 321, 327 (Minn.1988). “In cases where this court has not imposed disbarment for extensive misappropriation of client funds, substantial mitigating circumstances were present.” In re Weems, 540 N.W.2d 305, 308 (Minn.1995). However, even in such cases, severe sanctions, typically lengthy suspensions, generally have been imposed. See, e.g., Pyles, 421 N.W.2d at 327; In re Bernstein, 404 N.W.2d 804, 805 (Minn.1987).

Both Rooney and the Director cite numerous misappropriation cases they feel are analogous to Rooney’s situation to provide us guidance as to the appropriate sanction to impose. But none of these cases is precisely on point. As we have often noted, attorney discipline cases are decided on a case-by-case basis, making the specific factual circumstances of each case particularly important. See In re Brooks, 696 N.W.2d 84, 88 (Minn.2005); see also In re Cutting, 671 N.W.2d 173, 174 (Minn.2003). In the cases most heavily relied on by the Director to support disbarment, the attorney’s misconduct was more severe than Rooney’s misconduct, typically involving active concealment of the misappropriation, failure to cooperate with the disciplinary investigation, fraud, or other misconduct in addition to misappropriation. See, e.g., Vaught, 693 N.W.2d at 887 (disbarring an attorney for misappropriation, noncooperation, and false statements to clients); Samborski, 644 N.W.2d at 405 (disbarring an attorney for misappropriation, neglect, noncooperation, lack of diligence, unreasonable fees, false statements to a court, and other misconduct); Ruttger, 566 N.W.2d at 328-31 (disbarring an attorney for misappropriation, fraud, lying under oath, and false statements to the Director); In re Shoemaker, 518 N.W.2d 552, 553 (Minn.1994) (disbarring an attorney for misappropriation, submitting false expense reports, and active concealment of the theft); In re Olsen, 487 N.W.2d 871, 872-73 (Minn.1992) (disbarring an attorney for misappropriation, failure to file tax returns, false statements to law partners, and receiving a prohibited loan from a client). Further, in many of the cases in which we have disbarred attorneys for misappropriation the attorney wrongfully took clients’ funds with the intent to permanently deprive the clients of their money, while Rooney’s misappropriation was temporary and was done with full intent to return the funds taken. See, e.g., Vaught, 693 N.W.2d at 888-89; Samborski, 644 N.W.2d at 407; Shoemaker, 518 N.W.2d at 553.

In many of the cases cited by Rooney, however, the misappropriation was either a single, isolated event or took place over a very short period of time, unlike Rooney’s misappropriations. See, e.g., In re Gubbins, 380 N.W.2d 810, 810-11 (Minn.1986); In re Simonson, 365 N.W.2d 259, 260, 262 (Minn.1985); In re Shaw, 298 N.W.2d 133, 134-35 (Minn.1980). In addition, several of the cases that Rooney cites as support for the referee’s recommended discipline involved discipline stipulated to by the Director and the attorney. See, e.g., In re Basiago, 660 N.W.2d 124, 125 (Minn.2003); In re Young, 491 N.W.2d 655, 656 (Minn.1992). Thus, while our prior cases suggest a range of appropriate discipline for misappropriation — from public reprimand to suspension to disbarment — they do not dictate a particular sanction in this case. See, e.g., Hanvik, 609 N.W.2d at 242; Shoemaker, 518 N.W.2d at 555; Simonson, 365 N.W.2d at 262.

In addition to the nature of the misconduct, we look to the cumulative weight of the violations when determining the appropriate sanction. Oberhauser, 679 N.W.2d at 159. In this case, the misappropriation was Rooney’s only misconduct. But even standing alone, intentional misappropriation of client funds usually warrants disbarment. Weems, 540 N.W.2d at 308. Further, Rooney misappropriated funds on 17 separate occasions over the course of a year, taking money from nearly all of his clients. Thus, Rooney’s misconduct was not a single, isolated incident or a brief lapse in judgment.

This court also considers the harm caused to the public and the legal profession by the attorney’s misconduct. Oberhauser, 679 N.W.2d at 159. Here, Rooney’s clients did not suffer any harm due to his misappropriations, and he fully restored their funds. However, “Misappropriation of client funds, by its very nature, harms * * * the public at large, the legal profession, and the administration of justice.” Ruttger, 566 N.W.2d at 331. Misappropriation of funds entrusted to an attorney as a fiduciary for his clients is a breach of trust that reflects poorly on the entire legal profession and erodes the public’s confidence in lawyers.

Finally, we assess mitigating and aggravating circumstances to determine the appropriate sanction. Vaught, 693 N.W.2d at 890. There are several mitigating factors in this case. The parties, however, dispute the impact these mitigating factors should have on the discipline to be imposed. The Director contends that the only mitigating factor that can ever allow an attorney to avoid disbarment in a misappropriation case is a showing that the misappropriation was unintentional — that is, all intentional misappropriation merits disbarment. Because Rooney admits that he intentionally misappropriated client funds, the Director argues that Rooney must be disbarred, despite the existence of other mitigating circumstances.

To support his argument, the Director cites this court’s oft-repeated statement: “Disbarment is the usual discipline for attorney misappropriation of client funds except in instances when the attorney presents clear and convincing evidence of substantial mitigating circumstances which show that the attorney did not intentionally convert the funds.” LaChapelle, 491 N.W.2d at 21; see also In re Keller, 656 N.W.2d 398, 402 (Minn.2003); In re Graham, 609 N.W.2d 894, 896 (Minn.2000). However, this statement does not preclude our consideration of mitigating factors other than lack of intent because the statement merely indicates that disbarment is the usual discipline for intentional misappropriation, leaving open the possibility that mitigating factors may render the usual discipline inappropriate. See LaChapelle, 491 N.W.2d at 21. Indeed, in the case in which this statement originated, we considered mitigating factors other than lack of intent and as a result imposed a public reprimand instead of more severe discipline. See In re Fling, 316 N.W.2d 556, 558 (Minn.1982).

Despite the statement in LaChapelle, we frequently have considered mitigating factors other than lack of intent in misappropriation cases and at times have concluded that the presence of such mitigating factors supports the imposition of discipline other than disbarment. See, e.g., Hanvik, 609 N.W.2d at 241-42 (imposing indefinite suspension due to lack of prior disciplinary history and substantial restitution); Pyles, 421 N.W.2d at 326-27 (imposing indefinite suspension due to significant pro bono work and otherwise exemplary life); Bernstein, 404 N.W.2d at 805 (imposing indefinite suspension due to small amount of money taken, full restitution, contrition, and general good character); In re Heffeman, 351 N.W.2d 13, 14-15 (Minn.1984) (imposing 3-month suspension due to extensive pro bono work, personal turmoil at the time of the misconduct, and full restitution). Further, the ABA Standards for Imposing Lawyer Sanctions expressly contemplate the consideration of mitigating factors in cases of intentional misappropriation and suggest that mitigating factors may render disbarment an inappropriate sanction for intentional misappropriation. ABA Standards for Imposing Lawyer Sanctions § 4.1 (1991) (“Absent aggravating or mitigating circumstances * * ⅜ [disbarment is generally appropriate when a lawyer knowingly converts client property.” (emphasis added)). Thus, we conclude that we are free to consider mitigating circumstances in cases involving intentional misappropriation of client funds and that in certain cases such mitigating factors may result in a sanction less severe than disbarment. See In re De Rycke, 707 N.W.2d 370, 374 (Minn.2006).

There are several mitigating factors in this case: (1) Rooney’s lack of prior disciplinary history; (2) his full restitution before the Director contacted him about the overdraft; (3) his remorse; (4) his cooperation with the Director; (5) his good character and significant contributions to the community through pro bono legal work and other volunteer activities, such as law student mentorship and participation on the boards of several nonprofit organizations; (6) the extraordinary stress in Rooney’s personal life at the time of the misconduct; and (7) that Rooney is receiving counseling for his problems.

An attorney’s lack of prior disciplinary history is a mitigating factor that can contribute to the imposition of a sanction less than disbarment. See Hanvik, 609 N.W.2d at 241. “However, in a case of extensive misappropriation of client funds, the lack of prior discipline is not enough to prevent the imposition of disbarment.” Olsen, 487 N.W.2d at 875.

Restitution has also been considered a mitigating factor that may result in a sanction less than disbarment. See Hanvik, 609 N.W.2d at 241; In re Sampson, 408 N.W.2d 574, 577 (Minn.1987). To mitigate, however, the restitution must not be prompted by fear of getting caught. In re Stromwall, 481 N.W.2d 60, 62 (Minn.1992). Further, restitution does not preclude disbarment for substantial misappropriation of client funds. Olsen, 487 N.W.2d at 875.

An attorney’s remorse for his misappropriation is also a mitigating factor to be considered by the court. See Bernstein, 404 N.W.2d at 805; Gubbins, 380 N.W.2d at 812. “Because one purpose of attorney discipline is to protect the public, an attorney’s remorse or lack of it is an important factor.” In re Nora, 450 N.W.2d 328, 330 (Minn.1990) (citation omitted). In addition, cooperation with the Director’s Office is a mitigating factor in misappropriation cases that can contribute to a sanction less severe than disbarment. See, e.g., In re Field, 506 N.W.2d 631, 631 (Minn.1993); Gubbins, 380 N.W.2d at 812.

An attorney’s pro bono legal work, volunteer activities, and good character can also be mitigating factors in misappropriation cases. See, e.g., Pyles, 421 N.W.2d at 326; In re Parks, 396 N.W.2d 560, 563 (Minn.1986). Nonetheless, community service and other good works generally “do not militate against the imposition of discipline in matters of serious ethical misconduct.” Stromwall, 481 N.W.2d at 62 (quoting In re Franke, 345 N.W.2d 224, 229 (Minn.1984)). But see Pyles, 421 N.W.2d at 326-27 (determining that an attorney’s exemplary life and pro bono work mitigated enough to avoid disbarment for three instances of misappropriation, false statements to a client, failure to maintain trust account records, handling a tax matter despite a conflict of interest, failure to file a tax return, and misrepresentations to the Director).

In addition, extraordinary stress in an attorney’s personal life, such as the serious illness of a loved one, is a mitigating factor that can lead to a sanction less than disbarment in a misappropriation case. See, e.g., Gubbins, 380 N.W.2d at 812; Heffeman, 351 N.W.2d at 15. Turmoil in an attorney’s personal life has been considered a mitigating factor even without proof that the turmoil caused the misconduct. See Heffeman, 351 N.W.2d at 15. The fact that an attorney has acknowledged the personal problems that led to his misconduct and has obtained counseling to deal with them can also be a mitigating factor. See In re Olkon, 324 N.W.2d 192, 196 (Minn.1982). An attorney’s personal financial difficulties, however, do not mitigate in misappropriation cases and can never justify the misappropriation of client funds. See Parks, 396 N.W.2d at 563.

Whether the presence of mitigating circumstances will allow an attorney to avoid disbarment for misappropriation depends on the severity, of the misconduct and the strength of the mitigating factors. See Hanvik, 609 N.W.2d at 241. Thus, in misappropriation cases involving substantial amounts of money, a large number of affected clients, or numerous misappropriations over a long period of time, mitigating circumstances often will not permit the attorney to avoid disbarment. See, e.g., Shoemaker, 518 N.W.2d at 555; Olsen, 487 N.W.2d at 875-76; In re Stroble, 487 N.W.2d at 871. Further, when the misconduct includes other ethical violations in addition to the misappropriation, particularly misrepresentations to conceal the misappropriation, mitigating factors usually will not militate against disbarment. See, e.g., Shoemaker, 518 N.W.2d at 555; LaChapelle, 491 N.W.2d at 21.

Here, Rooney misappropriated $27,700, taking money from all of the clients who had funds in his client trust account. His misconduct occurred over the span of 1 year and involved 17 separate instances of misappropriation. However, Rooney did not lie to the Director or to his clients or otherwise attempt to conceal his misconduct, and he fully cooperated with the disciplinary investigation. In addition, Rooney’s clients suffered no harm from his misappropriations. Further, Rooney intended only to temporarily borrow his clients’ funds, not to permanently defraud his clients. Cf. ABA Standards for Imposing Lawyer Sanctions § 9.32 (1991) (listing the lack of a dishonest or selfish motive as a possible mitigating factor).

The presence of numerous mitigating circumstances, none of which alone would suffice to avoid disbarment, persuades us that disbarment in this case is not necessary to achieve the goals of attorney discipline. Rooney’s sincere remorse, strong evidence of good character, and lack of prior disciplinary history suggest that he is unlikely to commit such misconduct again. Further, Rooney made full restitution of his clients’ funds before the Director contacted him regarding the trust-account overdraft. In addition, the extraordinary turmoil in Rooney’s pérsonal life at the time of the misconduct, while certainly not an excuse for the misconduct, is a “circum-stanee[ ] to be considered in imposing discipline.” Heffeman, 351 N.W.2d at 15.

. While we give great deference to the recommendation of the referee and agree with his conclusion that disbarment is not warranted here, we conclude that the 8-month suspension recommended does not adequately take into account the duration and magnitude of Rooney’s -misappropriation. Balancing the severity of Rooney’s misconduct against the numerous significant mitigating factors present in his case, we hold that the appropriate sanction for Rooney’s misconduct is an 18-month suspension from the practice of law. An 18-month suspension is a severe sanction that reflects the seriousness of the misconduct in this case and conveys to attorneys and the public the message that misappropriation, even temporary misappropriation, will not be tolerated. Moreover, an 18-month suspension falls squarely within the range of appropriate discipline for misappropriation set by our precedent. Accordingly, we order that:

1. Respondent Edward F. Rooney is suspended from the practice of law for 18 months, commencing 1 week from the date of this decision;
2. Upon readmission, Rooney shall be placed on supervised probation for a period of 3 years;
3. Rooney is permanently prohibited from maintaining a client trust account in the future. Rooney’s client trust account shall be maintained by an outside accountant or a licensed attorney.

Eighteen-month suspension ordered.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      .Rooney disputes this finding, arguing that the amount misappropriated was instead $22,350. Rooney appears to reach this number by off-setting the amount that he withdrew from the trust account against the amount that he paid into the trust account during the time period of the misappropriations. Essentially, Rooney argues that, after his payment of $4,850 into the trust account in January 2004, the next $4,850 that he withdrew from the account was merely a recouping of his own funds, not a misappropriation of client funds. He applies the same argument to the $500 that he paid into the account in June 2004. This argument is flawed. First, such an argument would suggest that a client trust account may be used by an attorney as a personal bank account in which the attorney’s own funds may be stored separately from his clients’ funds, a practice clearly prohibited by the Minnesota Rules of Professional Conduct. See Minn. R. Prof. Conduct 1.15(a). Second, if Rooney’s deposits into the trust account were truly an effort to return misappropriated client funds, as he asserts, the money so returned was no longer Rooney’s money, and he was not free to later withdraw it. Therefore, the referee’s finding that Rooney misappropriated $27,700 is not clearly erroneous.

      . Rule 14(e), RLPR, provides that if either party orders a transcript of the referee hearing, the referee’s findings of fact and conclusions of law are not conclusive, and either party may challenge them.

      . Instead, the Director explained at oral argument that he challenges the referee’s implicit legal conclusion that the mitigating factors present in this case warrant a sanction less than disbarment. We interpret this argument to be essentially a reiteration of the Director’s primary contention that the referee's recommended discipline is inappropriate.

      . Of course, attorneys are expected to express remorse for their misconduct and to cooperate with disciplinary investigations. In fact, failure to cooperate with a disciplinary investigation is itself misconduct warranting discipline. In re Flanery, 431 N.W.2d 115, 119 (Minn.1988). Similarly, an attorney’s lack of remorse is an aggravating factor in attorney discipline cases. In re Stanbury, 614 N.W.2d 209, 214 (Minn.2000).


source: Caselaw Access Project

author: STONEBURNER, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Randy RAINES, Appellant.
    No. A04-1481.
    Court of Appeals of Minnesota.
    Jan. 10, 2006.

      Mike Hatch, Attorney General, St. Paul, MN and John Carlson, Pine County Attorney, Steven C. Cundy, Assistant County Attorney, Pine City, MN, for respondent.
    John M. Stuart, Minnesota Public Defender, Cathryn Middlebrook, Assistant Public Defender, Minneapolis, MN, for appellant.

      Considered and decided by TOUSSAINT, Presiding Judge; STONEBURNER, Judge; and HUSPENI, Judge.

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

   OPINION

STONEBURNER, Judge.

Appellant challenges his conviction of controlled-substance crimes in the first degree, arguing that the district court erred by denying his motion to suppress evidence gathered pursuant to a warrant that he argues was defective because procedures for obtaining a warrant based on oral testimony were not followed. Because we conclude that the procedural defects were not serious violations that subverted the purpose of the procedures for obtaining a warrant based on oral testimony, we affirm.

FACTS

In the very early morning hours, the police found methamphetamine-manufacturing paraphernalia in a vehicle legally stopped for a traffic violation. The driver was arrested and provided information that he was assisting appellant in the manufacturing of methamphetamine and intended to return to appellant’s residence later that day to complete the “cook.” Appellant had been under investigation for alleged methamphetamine manufacturing for months. Based on information from the driver and information previously received from a confidential informant, an officer (applicant) prepared a search-warrant application for appellant’s residence. Applicant then telephoned a judge at 3:10 a.m. and requested that the warrant be issued by telephone request. The applicant read the prepared application and provided additional information requested by the judge, which was added to the written application. The judge approved the issuance of a nighttime, no-knock warrant, but never signed the warrant. The applicant recorded the entire telephone request.

The warrant was executed at 5:00 a.m. The police seized evidence of “cooked” methamphetamine, ingredients, and equipment used to manufacture methamphetamine. After attempting to flee, appellant was arrested and transported to jail. The inventory of his personal possessions at the jail listed “mise papers” among other possessions. Appellant was charged with first-degree controlled-substance crimes.

The recording of the warrant application was transcribed approximately 49 days after the warrant was executed. The original search warrant, the original application, the applicant’s affidavit, and a copy of the transcript were filed with the district court on the day of appellant’s omnibus hearing. Appellant moved to suppress the evidence seized under the warrant due to numerous violations of the procedures for obtaining a telephonic warrant under Minn. R.Crim. P. 36. Appellant also contended that he was not given a copy of the warrant when it was executed. Two days after the omnibus hearing, a copy of the warrant was found among appellant’s possessions at the jail despite the fact that appellant’s attorney was told by a jailer immediately after the omnibus hearing that a warrant was not among appellant’s possessions.

The district court denied appellant’s motion to suppress. Appellant submitted the matter to the court for trial pursuant to State v. Lothenbach, 296 N.W.2d 854 (1980), and was found guilty of first-degree controlled-substanee crimes. Appellant, was sentenced to 81 months in prison and now appeals his conviction based on the denial of his motion to suppress.

ISSUES

I. Did the district court err in denying appellant’s motion to suppress evidence seized pursuant to the execution of a telephonic warrant when several violations of the procedures set forth in Minn. R.Crim. P. 36 for warrants based on oral testimony occurred?

II. Is the district court’s finding that appellant received a copy of the warrant when it was executed clearly erroneous?

ANALYSIS

I. Rule 36 violations

When reviewing pretrial orders regarding suppression motions, an appellate court “may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

All of the cases relied on by the parties and the district court on this issue predate promulgation of Minn. R.Crim. P. 36 in 1994. In State v. Andries, 297 N.W.2d 124 (Minn.1980), the supreme court upheld a warrant based on information obtained by the judge in a three-way telephone call with the judge, county attorney, and police officer. Id. at 125. The supreme court noted that the procedures followed were “remarkably similar” to the procedures established by Fed.R.Crim.P. 41(c). Id. The court concluded that the issuing judge’s failure to sign the warrant did not require suppression of the evidence seized under the warrant, stating it was a “purely ministerial task that ... may be delegated to the applicant.” Id. The supreme court also noted the demonstrated need for the oral request, that the statutory procedures requiring the issuing judge to sign the warrant were “substantially followed,” and that the recordation of the oral request provided the defendant with a means of later challenging the issuance of the warrant. Id. at 126.

In State v. Lindsey, 473 N.W.2d 857 (Minn.1991), the defendant moved to suppress evidence seized pursuant to a telephonic warrant in which the oral request was not recorded. The supreme court identified the issue as “whether the noncompliance with Minnesota statutes, which do not provide for or anticipate the use of telephone warrants, requires the suppression of evidence obtained through the execution of this type of warrant.” Id. at 860. The supreme court noted the lack of any guidance at that time to police officers or courts in the issuance of telephonic search warrants. Id. at 861. The supreme court reiterated its prior holding that “whether or not to suppress evidence because police obtained the evidence in violation of a statute or rule is ‘quintessentially a judicial issue.’ ” Id. at 863 (quoting State v. Mitjans, 408 N.W.2d 824, 830 (Minn.1987)). And the court noted that a number of cases already made clear its “judicial intent that a violation of a procedure such as that set forth in Fed. R. Crim P. 41 will not necessarily result in the suppression of evidence seized.” Id. The court noted that this is the approach it has “taken in deciding whether to suppress evidence seized in searches that, though constitutional, involve statutory violations.” Id. at 863-64 (citing State v. Smith, 367 N.W.2d 497, 504-05 (Minn.1985) (refusing to suppress because the violation was a technical violation of a statute where there was little doubt a court order would have been issued on request); State v. Schinzing, 342 N.W.2d 105, 108-09 (Minn.1983) (citing other cases to the same effect); State v. Mollberg, 310 Minn. 376, 386-87, 246 N.W.2d 463, 470 (1976) (agreeing with the approach adopted by federal courts for violations of Fed.R.Crim.P. 41)). The supreme court concluded that the failure to record the oral application did not require suppression and urged police officers, prosecutors, and judges to consider the procedures contained in the federal rules until regulation of telephonic warrants was addressed by statute or rule in Minnesota. Id. at 864, 246 N.W.2d 463.

In State v. Cook, 498 N.W.2d 17 (Minn.1993), no contemporaneous record of the telephonic application for a warrant was made, and the supreme court upheld the suppression of the evidence seized in the search. Id. at 18-19. Revisiting the procedures of the federal rule, the supreme court reiterated that “[pjroeedural defects which are minor and relatively insignificant need not require suppression,” but that “serious violations which subvert the purpose of established procedures will justify suppression.” Id. at 20. The supreme court stated that the purpose of the telephonic-request procedure

is to have a record made contemporaneously with the authorization of the search warrant that will show both probable cause for a search and a reasonable need for the warrant to be issued tele-phonically, so that later, if need, be, there is a basis for challenging the warrant that is not dependent solely on after-the-fact recollections.

Id. (citing Lindsey, 473 N.W.2d at 865 (Wahl, J., dissenting)). “There are two judicial concerns in connection with obtaining a search warrant by telephone: (1) Was there a demonstrated need for a telephone warrant in lieu of the traditional written application? and (2) Were the procedural requirements for obtaining a warrant by telephone duly followed?” Id.

In the Cook opinion, the supreme court specifically requested that the Advisory Committee on Criminal Rules prepare and submit for the court’s consideration a rule covering the application for warrants based on oral testimony. Id. at 22. Rule 36, governing the issuance of telephonic warrants, became effective in 1994. This is the first case that we are aware of involving a challenge to the validity of such a warrant based on violations of the procedures set out in the rule. Appellant argues that there was no need for a telephonic warrant in this case, and that even if need is conceded, violations of the procedural rules for obtaining and filing such a warrant require that evidence obtained under the warrant be suppressed.

a. Demonstrated need

“An oral request for a search warrant may only be made in circumstances that make it reasonable to dispense with a written warrant. The judge or judicial officer should make this determination the initial focus of the oral warrant request.” Minn. R.Crim. P. 36.02; see also Lindsey, 473 N.W.2d at 863 (stating that under the federal rules for obtaining a telephonic warrant, “a showing of need ought to be made as part of the telephonic search warrant application process”). General criteria for determining the need for a telephonic warrant include (1) whether the officer can reach the judge in her office during regular court hours, (2) whether a significant distance exists between the officer and the judge, (3) whether the situation makes it unreasonable for a substitute officer located near the judge to present a written affidavit in person, and (4) whether the need for the warrant is such that without the telephonic procedure a warrant could not be obtained and there would be significant risk that evidence would be destroyed. Minn. R.Crim. P. 36 rant, (citing Lindsey, 473 N.W.2d at 863).

In this case, the applicant informed the judge that an accomplice, who had been arrested after leaving appellant’s residence, was planning to return to appellant’s residence “to help [appellant] complete the cook.” The applicant expressed concern to the judge that appellant would learn of the accomplice’s arrest over a police scanner that appellant was known to possess. The applicant also told the judge that the accomplice could not be kept from using the telephone in the jail for an extended period because he had expressed a desire to call his mother. The judge responded “okay” to this information but did not make any further inquiry into the circumstances that made it reasonable to dispense with a written warrant.

The application occurred at 3:10 a.m., but the judge’s home was less than ten miles from the sheriffs department where the applicant had already prepared a written search-warrant- application to use in the event that the judge declined to issue the warrant on oral testimony. In fact, the applicant read the written application to the judge over the telephone. The application expressed the concern about destruction of evidence if the search was not conducted immediately. ■ The judge did not find that concern sufficient to establish the need for a nighttime, no-knock warrant and obtained additional information from the applicant about appellant’s history of violence and the applicant’s personal knowledge that appellant carried a knife. At the judge’s request, this additional information was added to the written application. The applicant testified at the suppression hearing that obtaining the warrant on written application would have added approximately thirty minutes to the process.

The state argues that despite the lack of a direct discussion about the necessity of obtaining the warrant on oral testimony, the transcript of the oral request demonstrates that the need for the telephonic warrant was expressed to and accepted by the judge. At the suppression hearing, the applicant testified that the accomplice’s statement led him to believe that the manufacture of methamphetamine was in progress at appellant’s residence-when the accomplice was arrested. The applicant, who is also a certified clandestine-lab technician, testified about his investigative experience that, “.often times as soon as the [methamphetamine] is manufactured and completed, if parties are involved they all split the product and they leave.” He further testified about the general mobility of methamphetamine labs, that an oral request for the warrant was more expedient and less inconvenient for the judge given the early morning hour, and that producers endanger'themselves when manufacturing methamphetamine because of the toxicity and explosive nature of the ingredients.

Appellant argues that because the judge did not make a “contemporaneous determination” of the reasonableness of the telephonic warrant, the evidence obtained as a result of the search should have been suppressed, and that even if the failure to make a determination of need is overlooked, the evidence did not establish the need for a telephonic warrant. We conclude that a sufficient contemporaneous record existed to allow appellant to challenge the warrant on a basis not dependent solely-on after-the-fact recollections, fulfilling the purpose of the procedural requirement of demonstrated need. We also conclude that the expressed need was sufficient under the circumstances to make issuance of the telephonic warrant reasonable. Furthermore, based on the supreme court’s historic refusal to suppress evidence for minor violations, we conclude that even if failure to make a determination of need on the record violated rule 36.02, and even if this record was insufficient to establish need for a telephonic warrant, the violations were minor and did not require suppression of evidence seized under the warrant. There can be little doubt that the warrant would have been issued if the written application had been personally presented to the judge.

b. Other procedural defects

Appellant argues that other “pervasive non-compliance” with rule 36 requires that the warrant be declared defective and the evidence seized as a result of the warrant be suppressed. Appellant first argues that although the telephone conversation between the applicant and the judge was properly recorded, it was not timely transcribed and filed with the district court. When the recording is made by the applicant, as in this case, the tape “shall be submitted to the issuing judge or judicial officer as soon as practical, and in any event, not later than the time for filing as provided by Rule 33.04.” Minn. R.Crim. P. 36.04(1). Rule 33.04(b) provides that search warrants and related documents “need not be filed until after execution of the search or the expiration of ten days.” The record of an oral warrant request must be transcribed “[a]s soon after the testimony is received as practical,” and the judge or judicial officer shall certify the accuracy of the transcription. Minn. R.Crim. P. 36.04(3). The recording in this case was transcribed 49 days after the warrant was executed and was filed on the date of the omnibus hearing. The district court found that it was “unclear whether [the transcript] had been filed with the Court in a timely fashion, as required by [rule 36.04] clause (1).”

Although appellant asserts that the lack of timeliness “left the process subject to manipulation and/or destruction of evidence,” and that the late filing denied him the opportunity to preview the evidence and to prepare and question the sufficiency of evidence until the day of the hearing, he has not provided any factual support for these assertions or any authority that he is entitled to suppression of the evidence as a result of an untimely filing. Appellant also complains that the applicant never submitted the original search warrant for the judge’s signature as required by rule 36.05, but does not assert that the filing of an unsigned warrant prejudiced him in any manner. The district court concluded that these procedural defects were minor and did not require suppression of evidence seized under the search warrant. We agree and hold that minor violations of rule 36 in the issuance of a warrant based on oral testimony which do not subvert the purpose of the procedures do not require suppression of evidence seized under the warrant.

II. Minn.Stat. § 626.16

We find no merit in appellant’s assertion that the district court’s finding that he was provided with a copy of the warrant when it was executed, as required by Minn.Stat. § 626.16 (2004), was clearly erroneous. The record supports the finding. And, even if appellant had not received a copy of the warrant when it was executed, the supreme court has rejected the argument that suppression of evidence is required for such a failure. See Mollberg, 310 Minn, at 385, 246 N.W.2d at 469 (labeling the failure to leave a copy of the warrant with the defendant a “minor and technical” defect).

DECISION

The district court’s determination that minor violations of Minn. R.Crim. P. 36 in the issuance of a telephonic warrant which occurred in this case do not require suppression of evidence seized under the warrant is affirmed.

Affirmed.

      . Appellant's brief refers to Minn.Stat. § 626.09 (allowing the district court to examine under oath any person seeking a warrant). But because appellant argues that he did not receive a copy of the search warrant at the time of its execution, we assume he means Minn.Stat. § 626.16 (2004) (requiring an officer conducting the search to leave a copy of the warrant with a person in possession of the premises or property).


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. James Anthony HOUX, Appellant.
    No. A05-1934.
    Court of Appeals of Minnesota.
    Jan. 17, 2006.
    Samuel A. McCloud, Carson J. Heefner, Shakopee, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN and Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Ass’t County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; HALBROOKS, Judge; and WRIGHT, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This is an expedited appeal from a pretrial bail order. The district court denied appellant James Anthony Houx’s motion to modify the conditions of release by setting money bail at which Houx could obtain pretrial release without nonmonetary conditions. We reverse and remand.

FACTS

Houx has three prior DWI convictions or implied-consent revocations within the past 10 years. After being charged with first-degree driving while impaired (DWI), he made his first appearance on August 22, 2005. The district court set bail at $20,000, with various non-monetary conditions, including electronic home monitoring, random Alcosensor testing, and random urinalysis tests. Houx posted a $20,000 bond on August 24 and obtained his release. But his attorney later filed a motion asking the court to set bail at which Houx could obtain release without any non-monetary conditions.

Although Houx obtained his release, he experienced problems with his electronic-home-monitoring bracelet and the Alcosen-sor woke him up at night. He moved for an alternative money-only bail. The prosecutor, noting that Houx had five prior DWI offenses and that his chemical-dependency treatment had failed to prevent a reoccurrence, opposed the motion. The district court ordered that bail remain the same. Houx filed this appeal.

ISSUE

Did the district court err in declining to set money-only bail?

ANALYSIS

The district court has discretion in setting the appropriate amount of bail, and its decision is reviewed under a clear-abuse-of-discretion standard. State v. Chamblee, 407 N.W.2d 721, 722 (Minn.App.1987). But the issue presented here involves the interpretation of the DWI bail statute and the rules of criminal procedure, which we review de novo. See State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

Minn.Stat. § 169A.44, subd. 2(a) (2004), provides that, unless the maximum authorized bail is imposed, the court may release a repeat offender such as Houx from pretrial detention only on certain non-monetary conditions, including abstention from alcohol and random alcohol tests, as well as weekly reporting to a probation agent. Houx is charged with felony DWI, for which there is no maximum authorized bail. See Minn.Stat. § 629.471, subd. 4 (2004) (providing that statutory bail máxi-mums for misdemeanors and gross misdemeanors do not apply to felony DWI).

Minn. R.Crim. P. 6.02, subd. 1, requires the district court, in considering conditions of pretrial release, to set “monetary bail” without other conditions of release. Minn. Stat. § 169A.44, in conjunction with Minn. R.Crim. P. 6.02, subd. 1, requires district courts to set bail as either (1) the statutory maximum monetary bail, without additional conditions, or (2) .a-lower monetary bail amount with non-monetary conditions. State v. McMains, 634 N.W.2d 733, 735 (Minn.App.2001). “By means of such alternative bail settings, the district court may comply with Minn. R.Crim. P. 6.02, subd. 1 as well as with the DWI bail statute, Minn.Stat. § 169A.44(b) [2000].” Id.

McMains involved a gross-misdemeanor DWI, for which there was a statutory maximum bail amount. Id. at 734. Although the felony DWI law was then in effect, the defendant in McMains was not charged with a felony offense, nor did the opinion discuss money-only bail in felony cases. See id.

In setting bail for a felony DWI offense, a district court was not strictly bound by McMains because there is no statutory maximum bail amount to be set without non-monetary conditions. But, since McMains, the legislature added Minn.Stat. § 169A.44, subd. 2(b) (2004), providing that: “In addition to setting forth conditions of release under paragraph(a), if required by court rule, the court shall also fix the amount of money bail without other conditions upon which the defendant may obtain release.” This provision recognizes the rule requiring courts to set money-only bail and eliminates any conflict between the rule and the statute. The provision also moots the state’s argument that, under a separation-of-powers analysis, the statute controls over the rule because bail is a matter of substantive law. See generally State v. Johnson, 514 N.W.2d 551, 554 (Minn.1994) (stating that, in matters of procedure rather than substance, the rules control over the statutes in the event of inconsistency). Therefore, we need not address that argument nor decide whether bail is a matter of substantive or procedural law.

Houx argues that under rule 6.02, subd. 1, and this court’s opinion in McMains, he is entitled to a setting of money bail, without other conditions, on which he can obtain release. We agree that the requirement of money-only bail in rule 6.02, subd. 1, applies to felony DWI offenders. It is not necessary, however, to rely on McMains to accommodate the rule requirement of a money-only bail setting and the DWI bail statute’s requirement of non-monetary conditions. The legislature has made that accommodation in the DWI bail statute itself. See id.

Minn.Stat. § 169A.44, subd. 2(b), mandates the money-only alternative bail setting sought by Houx. Therefore, we remand to the district court for an alternative setting of money-only bail.

DECISION

The district court’s order maintaining bail with non-monetary conditions is reversed, and the matter is remanded for an alternative setting of money-only bail.

Reversed and remanded.


author: SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Nathan Dean SCHUSTER, Appellant (A04-2278), Wade William Little Owl, Appellant (A05-41).
    Nos. A04-2278, A05-41.
    Court of Appeals of Minnesota.
    Jan. 31, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Lisa Nelson Borgen, Clay County Attorney, Jenny M. Samarzja, Assistant County Attorney, Moorhead, MN, for respondent.
    John M. Stuart, State Public Defender, Leslie J. Rosenberg, Bridget Kearns Sabo, Assistant State Public Defenders, Minneapolis, MN, for appellants.
    Considered and decided by PETERSON, Presiding Judge; TOUSSAINT, Chief Judge; and SHUMAKER, Judge.
   OPINION

SHUMAKER, Judge.

Appellants in these consolidated appeals challenge the district court’s refusal to prohibit the use of North Dakota impaired driving convictions to enhance Minnesota impaired driving offenses. Because the prior convictions arise from violations of appellants’ Minnesota constitutional rights, the prior convictions cannot be used to enhance Minnesota offenses, and we reverse.

FACTS

The Minnesota Impaired Driving Code presents a scheme of penalties and enhanced penalties for driving, operating, or being in physical control of a motor vehicle while impaired from alcohol or other specified chemical substances. MinmStat. § 169A (2004). Certain qualified prior impaired driving incidents can be considered aggravating factors that permit enhancement of an impaired driving penalty. See Minn.Stat. § 169A.03, subd. 3(1) (stating that “a qualified prior impaired driving incident within the ten years immediately preceding the current offense” is an aggravating factor.).

Appellants Nathan Dean Schuster and Wade William Little Owl were arrested for driving while impaired (DWI) from alcohol in Minnesota in separate and unrelated incidents. Appellants’ charges were enhanced based on prior driving while impaired convictions in North Dakota.

The state charged Schuster with two counts of second-degree DWI and one count of reckless driving. The state alleged that Schuster had two qualified prior impaired driving offenses that permitted enhancement of the current DWI charges to the second-degree level. See MinmStat. § 169A.25, subd. 1(a) (stating a person is guilty of second-degree DWI if two or more aggravating factors were present when the violation was committed).

Schuster had been convicted of DWI in Minnesota in March 1995. He does not challenge the use of this conviction as an enhancement factor. Schuster challenges the use of his North Dakota DWI conviction from October 1998, as an enhancement factor as applied to the current charges. During pretrial, Schuster moved to dismiss the charges, challenging the constitutionality of using North Dakota DWI convictions as the basis for enhanced charges because North Dakota violated his right to assistance of counsel prior to chemical testing. Schuster provided an affidavit with the motion, stating that he does not recall being advised of his right to counsel prior to chemical testing.

After the district court denied the motion in a pretrial order, Schuster waived his right to a jury trial and submitted the matter to the court under a Lothenbach stipulation to preserve for appeal the constitutional issue. See State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The district court counted the North Dakota conviction as an enhancement factor and found Schuster guilty of an enhanced count of DWI in the second-degree in violation of Minn.Stat. §§ 169A.20, subd. 1(5), 169A.25. The court stayed Schuster’s jail sentence and placed him on probation, pending the outcome of this appeal.

Little Owl was charged with two counts of first-degree DWI, one count of disobeying a semaphore, and one count of driving after revocation. The state alleged that Little Owl had four qualified prior impaired driving offenses that permitted enhancement of the DWI charges from misdemeanor level offenses to felony offenses. See Minn.Stat. § 169A.24, subd. 1(1) (stating a person who has an impaired driving offense within ten years of three or more impaired driving incidents commits first-degree impaired driving).

Little Owl had four prior convictions for DWI or test refusal within the last ten years, one in Minnesota and three in North Dakota. Two of the North Dakota convictions were used to enhance the charges against Little Owl to felonies. Little Owl moved the district court to dismiss the charges because the use of the North Dakota convictions violated his Minnesota constitutional right to consult with an attorney before deciding whether to submit to chemical testing. Along with the motion, Little Owl submitted an affidavit stating that he was not informed of his right to counsel prior to chemical testing.

The district court denied the motion, and Little Owl submitted the matter to the court under a Lothenbach. stipulation to preserve for appeal the constitutional issue. The district court counted the North Dakota convictions as impaired driving incidents and found Little Owl guilty of one count of first-degree DWI pursuant to Minn.Stat. §§ 169A.20, subd. 1, 169A.24. Little Owl was sentenced to a prison term of 42 months, with execution stayed for seven years on the condition that Little Owl serve one year in the Clay County Jail. Little Owl received credit for time served and was allowed to serve the remainder of his sentence on electronic home monitoring.

These appeals followed and were subsequently consolidated.

ISSUE

May an uncounseled North Dakota DWI conviction be used in Minnesota to enhance DWI charges when Minnesota’s constitutional right to pretest counsel, unlike that of North Dakota, requires that motorists be informed of their right to pretest counsel?

ANALYSIS

I.

Appellants challenge the use of prior North Dakota DWI convictions to enhance their current DWI charges. The district court’s denial of appellants’ motion to prohibit the use of their North Dakota convictions to enhance their current charges raises an issue of law that this court reviews de novo. State v. Bergh, 679 N.W.2d 734, 737 (Minn.App.2004).

In- Minnesota, a motorist has a limited right to consult with an attorney before deciding whether to submit to chemical testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991). An integral part of this right is notice of its existence. “A police officer not only must inform the driver of the right to counsel but also must assist in vindicating this right[,]” including providing a telephone and a reasonable amount of time to contact an attorney. Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App.1996), review denied (Minn. Aug. 6, 1996); see also Jones v. Comm’r of Pub. Safety, 660 N.W.2d 472, 475 (Minn.App.2003). This right to counsel is guaranteed under article I, section 6, of the Minnesota Constitution. Friedman, 473 N.W.2d at 833-34.

Under North Dakota law, a motorist has a qualified statutory right to consult with counsel prior to consenting to a blood test. Kuntz v. State Highway Comm’r, 405 N.W.2d 285, 290 (N.D.1987); see also N.D. Cent.Code § 29-05-20 (2004). Specifically, the North Dakota Supreme Court held that “if an arrested person asks to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test.” Kuntz, 405 N.W.2d at 290. But officers are not required to advise a motorist of the right to consult an attorney before taking a chemical test. See McNamara v. Dir. of North Dakota Dep’t of Transp., 500 N.W.2d 585, 591 (N.D.1993). In McNamara, a license suspension was upheld even though, prior to blood-alcohol testing, the motorist was not informed of his right to counsel by the officer, through the implied consent advisory, or by recitation of Miranda warnings. Id. at 592. The court noted that it recognized a limited right to pretesting consultation with an attorney, but that the right is triggered only if a suspect unilaterally requests an attorney. Id. at 591, n. 4.

An out-of-state conviction or revocation obtained in violation of Minnesota’s limited constitutional right to pretest counsel cannot be used to enhance Minnesota DWI charges. Bergh, 679 N.W.2d at 737; see also State v. Nordstrom, 331 N.W.2d 901, 905 (Minn.1983) (holding that a criminal conviction in which defendant was not represented could not be used to enhance subsequent DWI offense if the right to counsel was not properly waived). In Bergh, this court held that a DWI revocation obtained in Colorado was not in accord with Minnesota’s constitutional right to pretest counsel because, under Colorado law, a motorist has no right to confer with counsel before deciding whether to consent to chemical testing. Id.

Because North Dakota does not require that motorists be informed of their right to counsel prior to chemical testing, the right loses its meaningful purpose in practical application. See McNamara, 500 N.W.2d at 593 (Levine, J., dissenting) (‘What good is a statutory right to consult with counsel before deciding to take a chemical test [citing Kuntz ], if a driver is not told of that right?”). The purpose of the right to counsel generally “is to protect the lay person who ‘lacks both the skill and knowledge’ to defend him- or herself.” Friedman, 473 N.W.2d at 833 (citing Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932)). In the context of pretest consultation, the right to counsel is critical because “the person suspected of drunk driving is generally an average citizen in a totally new, confusing, and uncomfortable situation.” Id. at 834. Given that the purpose of the right to counsel is to protect individuals unfamiliar with the legal system, it is implicit that those individuals first be informed that such a right exists.

Consequently, North Dakota’s right to pretest counsel without an accompanying obligation to inform the motorist of such a right violates the Minnesota constitution. Thus, appellants’ North Dakota convictions, depending as they did on the results of chemical tests to which appellants submitted without notice of their right to pretest counsel, cannot be used to enhance appellants’ current Minnesota DWI charges.

II.

Respondent contends that the “right to counsel” prior to chemical testing created by Friedman and applied by Bergh is inconsistent with Sixth Amendment jurisprudence, public policy, and the impaired driving statutes. Respondent further argues that it is improper to apply Minnesota constitutional protections to crimes occurring wholly outside of this state pursuant to State v. Heaney, 689 N.W.2d 168 (Minn.2004).

A. Inconsistency of Friedman

Essentially, respondent argues that this court should overturn Friedman. But this court has no authority to overrule decisions of the supreme court. Mueller v. Theis, 512 N.W.2d 907, 912 (Minn.App.1994), review denied (Minn. Apr. 28, 1994). The Friedman decision has been applied both by this court and the supreme court. And the principle of stare decisis binds this court to follow its own decisions. See State v. DeShay, 645 N.W.2d 185, 189 (Minn.App.2002), affd 669 N.W.2d 878 (Minn.2003).

Additionally, respondent’s concerns of inconsistency were addressed in the Friedman decision. In regard to respondent’s contention that the right to pretest counsel is overly broad and therefore inconsistent with the Sixth Amendment of the United States Constitution, the Friedman court stated “[courts] are free to interpret- their own law, however, so as to provide greater protection for individual rights than that which the federal Constitution minimally mandates.” Friedman, 473 N.W.2d at 830 (citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980)). The supreme court also addressed respondent’s public policy argument, noting that while drunk driving is a serious problem, “[t]he rights of all citizens' embodied in our Minnesota Bill of Rights, however, are so important that they cannot be overridden for temporary expediency in building statistics.” Id. at 835. Further, the interstate Driving License Compact and the Impaired Driving Statutes were enacted in 1989 and 2000, respectively, well before the decision in Bergh. See 1989 Minn. Laws ch. 307, § 5; 2000 Minn. Laws ch. 478, art. 1, § 2.

B. State v. Heaney

-Respondent also argues that the Minnesota Supreme Court’s recent holding in Heaney rendered the application of Friedman and the Minnesota Constitution to DWIs occurring outside the State of Minnesota improper. 689 N.W.2d at 177. Specifically, respondent contends that because the supreme court refused to apply the Minnesota physician-patient privilege to acts occurring out-of-state in Heaney, it is improper to apply Minnesota constitutional protections to crimes occurring wholly outside Minnesota.

In Heaney, a motorist had an accident in Minnesota and was transported to Wisconsin where blood-alcohol testing was performed. Id. at 170-71. The tests showed that the motorist’s alcohol concentration was more than .10 within two hours after the accident. Id. The district court granted, and the court of appeals affirmed, the driver’s motion to suppress the alcohol-concentration evidence obtained at the Wisconsin medical center on grounds that it violated Minnesota’s physician-patient-privilege statute. Id. at 171. On appeal, the state argued that the exclusionary rule of State v. Lucas, 372 N.W.2d 731 (Minn.1985), should- be applied to the circumstances, permitting the forum state to admit the evidence, even though it would have been unlawfully obtained in the forum state, because the seizure of the evidence was valid in the search state. Heaney, 689 N.W.2d at 172. Ultimately, the Heaney court reversed, but agreed with the lower courts that an exclusionary-rule analysis was not appropriate for the facts in Heaney, stating:

Where the police have engaged in illegal conduct in obtaining evidence or where, as in Lucas, police conduct was lawful but a statute concerning privacy interests renders the evidence inadmissible, an exclusionary rule analysis is appropriate. But where, as here, there is neither conduct by police that is illegal under the statutes or constitution of either the forum or search jurisdictions, nor any statute or constitutional principle in the search jurisdiction that would make the evidence inadmissible, an exclusionary rule analysis does little to determine which state’s law should be applied.

Id. at 172. The supreme court held that a traditional conflict-of-law analysis was appropriate to determine the admissibility of evidence obtained in another state in a criminal case. Id.

This court recently addressed the application of Heaney to out-of-state DWI convictions. State v. Schmidt, 701 N.W.2d 313 (Minn.App.2005), review granted (Minn. Oct. 26, 2005). In Schmidt, the state argued that because the South Dakota police officers’ performance of uncoun-seled tests was not illegal in the search state, but such conduct is illegal in the forum state rendering the evidence inadmissible, the court should perform an exclusionary-rule analysis and conclude that the prior South Dakota DWI convictions and license revocations are admissible to enhance respondent’s current Minnesota offense. Id. at 318. This court found the state’s argument flawed because neither of the two appropriate situations for the exclusionary-rule was present. Id. The South Dakota police did not engage in illegal conduct in obtaining evidence and the case did not involve state statutes. Id. This court determined that the exclusionary rule did not apply when an individual’s limited constitutional right to counsel in a pretesting situation is implicated. Because this case presents the same circumstances addressed in Schmidt, respondent’s reliance on Heaney necessarily fails.

DECISION

Because appellants’ prior North Dakota convictions resulted from chemical tests administered without appellants being informed of their pretest right to counsel, they violate appellants’ Minnesota constitutional rights and may not be used to enhance their current Minnesota offenses.

Reversed.

      . Appellant Little Owl submitted a pro se supplemental brief; however, it reiterates the argument raised in the formal brief and, therefore, need not be addressed separately.

      . Minnesota’s Implied Consent Advisory informs impaired driving suspects that they have a right to consult with an attorney. North Dakota's Implied Consent Advisory, N.D. Cent.Code § 39-20-01, does not reference the suspect's pretest right to counsel.


author: PETERSON, Judge.

text:
    In the Matter of the WELFARE OF J.L.P., Child.
    No. A05-67.
    Court of Appeals of Minnesota.
    Jan. 31, 2006.

      Felix J. Sahlin, St. Paul, MN, for appellant J.L.P.
    Mike Hatch, Attorney General, St. Paul, MN, and Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, Anoka, MN, for respondent State of Minnesota.
    Considered and decided by PETERSON, Presiding Judge; STONEBURNER, Judge; and HUSPENI, Judge.

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

   OPINION

PETERSON, Judge.

Appellant was charged with three felony offenses, and the prosecutor designated that the case should be an extended jurisdiction juvenile (EJJ) prosecution. Appellant pleaded guilty to two felony charges, and the district court sentenced appellant to a juvenile disposition and two stayed adult sentences subject to the terms of appellant’s juvenile disposition. Appellant violated a disposition condition, and the district court revoked appellant’s EJJ status, continued the stay of the adult sentences, placed appellant on probation for ten years, and as a condition of probation, ordered appellant to serve 180 days in jail. Appellant violated his probation, and the district court revoked the stay and executed the adult sentences. On appeal from the sentence, appellant argues that the imposition and execution of both a juvenile disposition and an adult criminal sentence, as required by Minn.Stat. § 260B.130, subd. 4 (2004), constitutes double punishment for the same offense and, therefore, violates the Double Jeopardy and Equal Protection clauses of the state and federal constitutions. We affirm.

FACTS

A delinquency petition was filed in Goo-dhue County alleging that appellant J.L.P. committed one count each of criminal vehicular operation resulting in death, criminal vehicular operation resulting in great bodily harm, and criminal- vehicular operation resulting in substantial bodily harm. Because appellant was 17 years old at the time of the offenses and because criminal vehicular operation resulting in death is a felony offense for which commitment to prison is presumed under the Minnesota Sentencing Guidelines, the prosecutor designated that the case should be an EJJ prosecution. Appellant pleaded guilty to criminal vehicular operation resulting in death and criminal vehicular operation resulting in great bodily harm. The plea agreement provided that a juvenile disposition would be imposed, along with two stayed adult felony sentences. By order filed July 5, 2001, the district court accepted the plea and adjudicated appellant an EJJ delinquent.

Venue was transferred to Anoka County for disposition. The juvenile disposition granted custody of appellant to Anoka County Juvenile Corrections, under conditions prescribed by the court, until appellant’s 21st birthday and placed appellant in the Juvenile Center. The district court also imposed two stayed adult felony sentences of 48 and 18 months to run consecutively.

At a hearing on August 20, 2003, appellant admitted violating a disposition condition by entering a liquor store and trying to buy alcohol using false identification. Based on findings that appellant willfully violated probation and was no longer amenable to treatment in the juvenile system, the district court revoked appellant’s EJJ status. The district court continued the stay of execution of the adult sentences and placed appellant on probation for ten years. As a probation condition, appellant was required to serve 180 days in the Anoka County adult correctional facility, with work-release privileges.

A March 8,- 2004 Anoka County corrections department report alleged that appellant had violated probation; the violations included failing to complete chemical-dependency treatment. An addendum filed October 7, 2004 alleged additional violations, including that appellant had used alcohol and failed to remain law abiding. Appellant appeared before the district court and admitted the violations, but the hearing was continued to give appellant an opportunity to challenge the constitutionality of the EJJ prosecution statute, Minn.Stat. § 260B.130 (2004). The district court rejected appellant’s constitutional challenge and executed the adult sentences. The district court- gave appellant credit for a total of 360 days served in juvenile and adult detention facilities.

This appeal followed. By special term order, this court denied the state’s motion to dismiss the appeal as untimely. In re Welfare of J.L.P., 701 N.W.2d 282, 285 (Minn.App.2005).

ISSUES

1. Do the dual-sentencing provisions of MinmStat. § 260B.130 violate state and federal constitutional prohibitions against double jeopardy?

2. Does Minn.Stat. § 260B.130 violate the equal-protection clauses of the state and federal constitutions?

ANALYSIS

1. Whether a district court correctly applied the law of double jeopardy is a question of law, which this court reviews de novo. Freeman v. Residence Located at 1215 East 21st St., 552 N.W.2d 275, 276 (Minn.App.1996), review denied (Minn. Oct. 15, 1996).

A person may not be put twice in jeopardy for the same offense. U.S. Const, amend. V; Minn. Const, art. I, § 7. “The double jeopardy clauses of both constitutions protect criminal defendants from three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” State v. Calmes, 632 N.W.2d 641, 649 (Minn.2001) (footnote and quotation omitted). The prohibition against double jeopardy applies to delinquency proceedings that are based on violations of criminal statutes. In re Welfare of E.R.D., 551 N.W.2d 238, 240 (Minn.App.1996). When a defendant pleads guilty, jeopardy attaches, at the latest, when sentencing occurs. State v. Shellito, 456 N.W.2d 470, 472 (Minn.App.1990), review denied (Minn. Aug. 23, 1990).

Minn.Stat. § 260B.130, subd. 4(a) (2004), states:

If an extended jurisdiction juvenile prosecution results in a guilty plea or finding of guilt, the court shall:
(1) impose one or more juvenile dispositions under section 260B.198; and
(2) impose an adult criminal sentence, the execution of which shall be stayed on the condition that the offender not violate the provisions of the disposition order and not commit a new offense.

Citing Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), appellant argues that imposing a juvenile disposition and an adult criminal sentence as required under MinmStat. § 260B.130, subd. 4(a), violates the prohibition against double jeopardy. In Breed, following an adjudicatory hearing at which the juvenile court heard witness testimony, the juvenile court sustained the petition alleging respondent delinquent based on its findings that respondent violated a criminal statute and was subject to the juvenile court’s jurisdiction. Breed, 421 U.S. at 521-22, 95 S.Ct. at 1781-82. At the dispositional stage of the proceeding, the juvenile court found respondent unamenable to treatment as a juvenile and ordered that he be

prosecuted as an adult. Id. at 523-24, 95 S.Ct. at 1782-83. Respondent was then tried as an adult and convicted of robbery. Id. at 525, 95 S.Ct. at 1783. Respondent filed a petition for a writ of habeas corpus alleging that his transfer to adult court and his subsequent trial placed him in double jeopardy. Id. at 525-26, 95 S.Ct. at 1783-84.

The Supreme Court concluded:

We cannot agree with petitioner that the trial of respondent in Superior Court on an information charging the same offense as that for which he had been tried in Juvenile Court violated none of the policies of the Double Jeopardy Clause. For, even accepting petitioner’s premise that respondent never faced the risk of more than one punishment, we have pointed out that the Double Jeopardy Clause ... is written in terms of potential or risk of trial and conviction, not punishment.... The policy of avoiding multiple trials has been regarded as so important that exceptions to the principle have been only grudgingly allowed ....
Respondent was subjected to the burden of two trials for the same offense; he was twice put to the task of marshaling his resources against those of the State, twice subjected to the heavy personal strain which such an experience represents. We turn, therefore, to inquire whether either traditional principles or the juvenile court’s assumed ability to function in a unique manner supports an exception to the constitutional policy of finality to which respondent would otherwise be entitled.

Id. at 532-33, 95 S.Ct. at 1787-88 (quotations and citations omitted). The Court then rejected the argument “that giving respondent the constitutional protection against multiple trials in this context will diminish flexibility and informality to the extent that those qualities relate uniquely to the goals of the juvenile-court system” and agreed that granting constitutional protection to respondent would require, in most cases, that a transfer decision be made before an adjudicatory hearing and concluded that this would not impose an undue burden on the juvenile-court system. Id. at 535-39, 95 S.Ct. at 1789-90. The Court held “that the prosecution of respondent in Superior Court, after an adjudicatory proceeding in Juvenile Court, violated the Double Jeopardy Clause[.]” Id. at 541, 95 S.Ct. at 1791.

Appellant argues that it follows from Breed “that once a youth has been adjudicated a delinquent, imposing an adult sentence (or transferring to adult court) violates the double jeopardy clause.” Appellant contends that he is being subjected to multiple punishments because he was given a single juvenile disposition for both offenses that he admitted committing, and he was also given consecutive adult sentences for the same two offenses. But appellant’s argument ignores the fact that the concern in Breed was multiple trials. Here, the state designated appellant’s case as an EJJ prosecution when the delinquency petition was filed, which meets the requirement that a transfer decision be made before an adjudicatory hearing; and there was a single adjudication of delinquency upon the district court’s acceptance of appellant’s guilty plea.

The issue in this case is whether imposing a juvenile disposition and adult sentences at the same time, as required under Minn.Stat. § 260B.130, subd. 4(a), constitutes multiple punishments. We conclude that it does not. We agree with the district court’s description of the juvenile disposition and the adult sentences as “all part of one integrated statutory framework,” which is consistent with the supreme court’s explanation of the EJJ prosecution statute in State v. Garcia, 683 N.W.2d 294 (Minn.2004). In Garcia, the supreme court explained:

The EJJ designation was conceived to provide a more graduated juvenile justice system based on age and offense with a new transitional component between the juvenile and adult systems. The intent of the EJJ designation is to give juveniles one last chance at success in the juvenile system, with the threat of adult sanctions as an incentive not to reoffend. An initial juvenile disposition reinforced by the possibility of adult sanctions gives juveniles a certainty of punishment combined with an opportunity to be successful in the juvenile system. Thus, unlike certified juveniles, EJJs are given one last chance at rehabilitation-in the juvenile system before being subjected to adult sanctions.

Id. at 300 (citations and quotations omitted).

The juvenile disposition and the adult sentence imposed under Minn.Stat. § 260B.130, subd. 4(a), following delinquency adjudication in an EJJ prosecution are not separate, independently imposed punishments. They are a single punishment that has multiple components, with the juvenile disposition being essentially a probation condition of the stayed adult sentence. The actual consequences that a juvenile experiences may increase as a result of the juvenile’s failure to comply with the juvenile disposition, but any additional consequences are set forth as a component of the single EJJ disposition. Because the juvenile disposition and the adult sentence are components of a single EJJ disposition, they do not violate the multiple-punishment prong of the prohibition against double jeopardy.

2. Appellant argues that the EJJ disposition imposed under Minn.Stat. § 260B.130, subd. 4(a), violates his right to equal protection because it is a longer sentence than would have been imposed if he had been an adult or a juvenile certified as an adult. Statutes are presumed constitutional and may only be declared unconstitutional when “the challenger bears the very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional.” State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990). The “power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” Id. (quotation omitted).

The Equal Protection Clause of the Fourteenth Amendment provides, in relevant part, “No state shall ... deny to any person within its jurisdiction equal protection of the laws.” U.S. Const, amend. XIV, § 1. Article I, Section 2, of the Minnesota Constitution provides, “No member of this state shall be disenfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Both clauses have been analyzed under the same principles and begin with the mandate that all similarly situated individuals shall be treated alike, but only invidious discrimination is deemed constitutionally offensive. This court reviews an equal protection challenge to a statute under a rational basis standard unless the challenge involves a suspect classification or a fundamental right.

Garcia, 683 N.W.2d at 298 (quotation omitted).

Appellant argues that the deprivation of his liberty involves a fundamental right, and, therefore, a strict-scrutiny standard applies to his equal-protection challenge. But in addressing an equal-protection challenge to the EJJ prosecution statute’s disparate treatment of juveniles who are designated as EJJs by different means, this court applied a rational-basis standard because the fundamental right to liberty is not affected when a stayed adult sentence is imposed concurrently with a juvenile disposition that requires commitment to a juvenile facility. In re Welfare of T.C.J., 689 N.W.2d 787, 795 (Minn.App.2004), review denied (Minn. Jan. 26, 2005).

As in T.C.J., which also involved an EJJ disposition imposed under Minn.Stat. § 260B.130, subd. 4(a), appellant is challenging the length of his sentence rather than the deprivation of his liberty. Appellant does not argue that he has the right to be free from any commitment to a juvenile or correctional facility. He argues that his sentence violates his right to equal protection because it is a longer sentence than would have been imposed if he had been an adult or a juvenile certified as an adult. Because appellant’s challenge goes to the length of his sentence, the rational-basis test applies to determine the constitutionality of the sentence.

Appellant does not argue that no rational basis exists for sentencing EJJs differently than adults or juveniles certified as adults. Accordingly, appellant has failed to meet his burden of showing beyond a reasonable doubt that MinmStat. § 260B.130, subd. 4(a), is unconstitutional.

DECISION

Because an EJJ disposition imposed under Minn.Stat. § 260B.130, subd. 4(a) (2004), that includes a juvenile disposition and an adult sentence is a single punishment, imposing a juvenile disposition and an adult sentence under Minn.Stat. § 260B.130, subd. 4(a), does not violate state or federal constitutional prohibitions against double jeopardy. Appellant has not shown that MinmStat. § 260B.130, subd. 4(a), violates the Equal Protection Clause of the federal or state constitutions.

Affirmed.


author: WRIGHT, Judge.

text:
    FIRST NATIONAL BANK OF the NORTH, et al., Appellants, v. MILLER SCHROEDER FINANCIAL, INC., et al., Defendants, State of Minnesota, Respondent.
    No. A05-705.
    Court of Appeals of Minnesota.
    Jan. 31, 2006.

      Vernon J. Vander Weide, Thomas V. Seifert, Head, Seifert & Vander Weide, Minneapolis, MN; and John A. Cochrane, Cochrane & Bresnahan, P.A., St. Paul, MN, for appellants.
    Mike Hatch, Attorney General, Gary R. Cunningham, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; KLAPHAKE, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellants sued the State of Minnesota for damages based on tort liability and the Minnesota Consumer Fraud Act, alleging that the state improperly registered certain debt securities. The district court dismissed appellants’ suit for failure to state a claim on which relief can be granted. We affirm.

FACTS

On November 14, 1997, the Minnesota Department of Commerce (the department) issued a notice of registration by coordination for debentures offered by United Homes, Inc. (UHI). See Minn. Stat. § 80A.10 (2002) (allowing registration of securities in coordination with federal registration). This registration authorized UHI to sell its debentures in Minnesota. Appellants First National Bank, Prairie National Bank, Centennial National Bank, Alan Stearns, and Clare Gallagher acquired UHI debentures. UHI filed for bankruptcy in March 2000 and currently has insufficient assets to pay a return on the debentures sold to appellants.

The department is charged with regulating securities sold in Minnesota. As part of the process of registering debt securities, such as UHI’s debentures, the department reviews the proposed offering for compliance with several statutory and regulatory criteria. When it reviewed UHI’s request for coordinate registration, the department did not strictly comply with some of its regulatory requirements for registration of securities. In their complaint, appellants claim that this noncompliance gave rise to several tort and statutory causes of action against the State of Minnesota, including negligence, negligent misrepresentation, fraud, aiding and abetting, and violation of the Minnesota Consumer Fraud Act.

The state moved to dismiss for failure to state a claim on which relief can be granted. In doing so, the state asserted statutory immunity from liability for appellant’s tort claims under Minn.Stat. § 3.736 (2002). The state also argued that appellants failed to state a claim under the Minnesota Consumer Fraud Act because the department had not made any false representations regarding the registration of the debentures. The district court dismissed appellants’ claims under Minn. R. Civ. P. 12.02(e). This appeal followed.

ISSUES

I. Does statutory immunity bar appellants’ tort claims based on the registration of UHI’s debentures?

II. Does the Minnesota Consumer Fraud Act authorize suits against the state as an entity?

ANALYSIS

We review de novo a dismissal for failure to state a claim on which relief can be granted to determine whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). We accept the facts alleged in the complaint as true and construe all reasonable inferences in favor of the nonmoving party. Marquette Nat’l Bank v. Norris, 270 N.W.2d 290, 292 (Minn.1978).

I.

Appellants argue that the state is liable in tort because the department failed to follow its own regulations when it registered UHI debentures for sale in Minnesota. Specifically, appellants allege that the UHI registration was approved despite the department’s knowledge that the UHI offering would not meet the registration requirements without including cash flow from borrowing, which is prohibited by Minn. R. 2875.3500, subp. 2A (1997).

Generally, under the Minnesota Tort Claims Act, the state will pay damages for torts caused by state employees acting within the scope of their employment “where the state, if a private person, would be liable to the claimant.” Minn.Stat. § 3.736, subd. 1 (2002). But the Minnesota Tort Claims Act includes several exclusions under which the state is immune from tort liability. Under subdivision 3(k), for example, the state is not liable for “a loss based on the failure of a person to meet the standards needed for a license, permit, or other authorization issued by the state or its agents.” Id., subd. 3(k) (2002). In considering whether this exclusion applies to the state in this case, our analysis focuses on whether registration of UHI debentures is “a license, permit, or other authorization issued by the state.” Thus, we are presented with an issue of statutory interpretation, which we review de novo.

The object of statutory interpretation is to give effect to the intention of the legislature. Educ. Minn.-Chisholm v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn.2003). If the meaning of a statute is clear, then it shall be given effect according to the plain meaning of the words used. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004); see also Minn.Stat. § 645.08(1) (2004) (stating canons of statutory construction).

A “license” is defined as an “official or legal permission” to perform a specified act. American Heritage Dictionary 1038 (3d ed.1985). “Authorization” is synonymous with “permission.” Id. at 124. The state does not permit the sale of securities to the public unless the securities have been registered by the department. Minn. Stat. § 80A.08 (2002). As such, the department’s registration of securities is an act of “license, permit, or other authorization” governed by MinmStat. § 3.736, subd. 3(k). Appellants’ tort claims derive from the fact that, although the UHI debentures failed to meet the requisite standard to authorize their sale in Minnesota, the state registered them for sale. This type of failure is precisely what the legislature excluded under MinmStat. § 3.736, subd. 3(k).

Citing Gertken v. State, 493 N.W.2d 290 (Minn.App.1992), review denied (Minn. Feb. 9, 1993), appellants argue that the state is not immune from liability under the licensing exclusion in this case. Appellants’ reliance on Gertken is misplaced. In Gertken, we held that the state was immune from liability for the deaths of two individuals from carbon-monoxide poisoning after a homeowner asked an inspector during a daycare-licensing inspection about fireplace cleaning. Id. at 291-93. The homeowner alleged that the inspector failed to notice dangerous conditions that violated the licensing standards and that the homeowner had detrimentally relied on the inspector’s advice about whether fireplace cleaning was needed, which led to the deaths of her husband and daughter. Id. at 291. Our analysis in Gertken turned on whether the inspector’s representations were directly related to the scope of the subject matter considered in licensing. Id. at 292. We determined that, because the inspector’s representations to the homeowner about fireplace cleaning were related to the subject matter involved in the licensing decision, the state was immune from suit. Id. at 292-93.

Appellants’ allegations here are analogous to those in Gertken. Appellants allege that the department erroneously concluded, in violation of its own regulations, that UHI would be able to fund its debentures. While the department’s conclusion may have been erroneous, as was the conclusion of the inspector in Gertken, any representation made by the department as a result of the registration certainly was directly related to the subject matter considered in registering the securities.

Appellants argue that Gertken contains an “express representation” exception to the licensing exclusion that applies in this case. Indeed, in Gertken we noted that the holding was “confined to the facts” and did not “address the issue of an express representation which differs from the representations implied by licensing.” Id. at 292 n. 3. But here, the department made no express representation to appellants apart from the issuance of the registration itself. That representation comprised only the fact that the UHI debentures had been registered for sale in Minnesota. Any representation implied by registration of a security is outside the scope of the Gertken exception. Thus, under Minn.Stat. § 3.736, subd. 3(k), the state is immune from tort liability premised on its registration of the UHI securities.

Appellants maintain for the first time on appeal that interpreting the Minnesota Tort Claims Act so as to bar their- tort claims against the state would render the Act unconstitutional. Citing Minn. Const. art. 1, § 8, appellants assert that applying statutory immunity to bar their claims unconstitutionally abrogates a common-law remedy for willful wrongs committed by government officials. Because this issue was neither considered nor decided by the district court, we decline to rule on that issue here. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (holding that appellate court generally will not consider matters not decided by district court). Moreover, appellants’ constitutional claim is without merit. First, there has never been a common-law remedy for an injury arising from a violation of Minnesota’s securities regulations, which were not enacted until 1973. Second, enactment of the Minnesota Tort Claims Act was an exercise of the state’s sovereign-immunity authority. When the Minnesota Supreme Court abolished the judicial regime of sovereign immunity, it specifically left room for the legislature to adopt an immunity statute. See Nieting v. Blondell, 306 Minn. 122, 132, 235 N.W.2d 597, 603 (1975) (abolishing sovereign immunity prospectively to allow legislature to act before elimination of defense). Far from declaring that it is unconstitutional for the state to limit its own liability, the Minnesota Supreme Court expressly recognized the state’s power to do so. Id.

II.

Appellants also argue that, when the department registered the UHI debentures, it violated the Minnesota Consumer Fraud Act. The Minnesota Consumer Fraud Act prohibits the “act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise.” Minn.Stat. § S25F.69, subd. 1 (2002).

Our analysis of the plain language of the statute establishes that the Minnesota Consumer Fraud Act does not apply to the state as an entity. Although neither party raised this argument on appeal, we may properly decide a case based on arguments not raised by the parties when our reasoning is neither novel nor questionable. State v. Hannuksela, 452 N.W.2d 668, 673-74 n. 7 (Minn.1990).

The Minnesota Consumer Fraud Act prohibits “any person” from engaging in fraudulent conduct. MinmStat. § 325F.69, subd. 1. The term “person” is defined as “any natural person or a legal representative, partnership, corporation (domestic and foreign), company, trust, business entity, or association, and any agent, employee, salesperson, partner, officer, director, member, stockholder, associate, trustee, or cestui que trust thereof.” Minn.Stat. § 325F.68, subd. 3 (2002). This definition does not encompass the state as an entity. Moreover, interpreting the Minnesota Consumer Fraud Act to authorize a suit against the state for registering the UHI debentures is contrary to the Act’s purpose, which is to “address the unequal bargaining power often present in consumer transactions.” Ly v. Nystrom, 615 N.W.2d 302, 308 (Minn.2000). Appellants do not allege that the state is a party to any sale of merchandise in this case; nor are there allegations to support a claim that the state wielded unequal bargaining power over appellants who purchased UHI’s debentures. Moreover, as discussed above, the department made no express representation to appellants apart from the issuance of the registration itself. Finally, our extensive research has not disclosed any other instance in which the state has been sued for a violation of the Minnesota Consumer Fraud Act.

Because the Minnesota Consumer Fraud Act does not authorize suits against the state, appellants failed to state a claim on which relief can be granted.

DECISION

Because the state’s action in registering securities for sale in Minnesota is an act of licensing “or other authorization” to which statutory immunity under Minn.Stat. § 3.736, subd. 3(k) (2002), applies, and because the state is not subject to suit under the Minnesota Consumer Fraud Act, the district court properly dismissed appellants’ claims.

Affirmed.

      . The securities regulations specifically indicate that "the fact that a security is effectively registered ... [does not constitute] a finding by the commissioner that any document filed under this chapter is true, complete and not misleading.” Minn.Stat. 80A.18.