author: PER CURIAM.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Daniel J. MOULTON, a Minnesota Attorney, Registration No. 136888.
    No. A05-1865.
    Supreme Court of Minnesota.
    Sept. 28, 2006.

      Martin A. Cole, Director Office of Lawyers Professional Responsibility, Betty M. Shaw, Senior Assistant Director, St. Paul, MN, for Appellant.
    Edward F. Kautzer, Ruvelson & Kaut-zer, Ch., St. Paul, MN, for Respondent.
   OPINION

PER CURIAM.

Daniel J. Moulton was admitted to practice law in Minnesota on May 7, 1982. His disciplinary history includes a September 11, 1992, admonition for violating Rules 1.6, 3.4(c), 4.4, 5.3(c), and 8.4(a) and (d) of the Minnesota Rules of Professional Conduct; a September 15, 1992, admonition for violating Rule 1.8(j); an April 14, 1995, admonition for violating Rules 1.15 and 1.16; a February 25, 2000, admonition for violating Rule 3.7; and a March 22, 2002, stipulation to a two-year probationary period for violating Rules 1.1, 1.3, 1.4(a), 1.6(a), 1.15(c)(2), 5.3(c), 7.1, 7.5, and 8.4(a). This current disciplinary matter arises from a June 1, 2005, Petition for Disciplinary Action filed by the Director of the Office of Lawyers Professional Responsibility, which alleges generally that Moulton failed to file federal and state income taxes and failed to file employer withholding returns. More specifically, the petition alleges that Moulton failed to file certain state employer withholding tax returns, failed to timely pay certain state employer withholding taxes even when the withholding tax returns were timely filed, and failed to timely file certain federal employer withholding tax returns and failed to timely pay certain federal employer withholding taxes in violation of Minn. R. Prof. Conduct Rule 8.4(d).

The Honorable Bruce W. Christopher-son was appointed as referee in this matter and, after an evidentiary hearing, concluded that Moulton’s conduct violated Minn. R. Prof. Conduct 8.4(d). In his Findings of Fact and Conclusions of Law and Recommendation for Discipline, the referee recommended that Moulton be

suspended from the practice of law for 90 days, that reinstatement pursuant to Rule 18(e) and (f), Rules on Lawyers Professional Responsibility (RLPR), be conditioned upon entering into and remaining in compliance with a repayment agreement or making an offer in compromise acceptable to the IRS, and compliance with Rules 24 and 26, RLPR.

The referee also recommended that, upon reinstatement, Moulton be placed on unsupervised probation for the longer of:

1. Two years from the date of the disciplinary order from the Supreme Court, during which period Respondent shall have timely filed all employer withholding tax returns due in the future and timely paid the taxes due thereon from the Moulton Law Office and any other businesses for which he is personally so responsible; or
2. Until Respondent has fully paid, or fully paid any lesser amount agreed by the taxing authorities, all past due employer withholding tax liabilities for the Moulton Law Office or any other business for which he is responsible for payment.

Moulton timely ordered a transcript to contest the referee’s Findings and Conclusions and, as a result, pursuant to Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR), the referee’s findings and conclusions are not conclusive. Further, while conceding that he failed to timely file some quarterly employer withholding tax returns and failed to timely pay some employer withholding taxes, Moulton argues that the appropriate sanction is a stayed 30-day suspension.

From 1998 through 2005, Moulton engaged in a pattern of noncompliance with the Internal Revenue Service (IRS) during which he failed to timely file and pay employer withholding taxes for several of his businesses, including his law firm. The total past-due liability for his businesses, including fees and penalties, exceeds $600,000.

According to the referee’s findings, Moulton owns and operates Moulton Law Office as a sole proprietorship and employs personnel to assist in its operation. In conjunction with the law office, Moulton operates two other sole proprietorships, a chinchilla ranch and a storage rental business. Each of these entities uses the same tax identification number as the law office, Although Moulton deducted employee withholding taxes from his employees’ pay between 1998 and 2005, he failed to timely file quarterly employer withholding tax returns 11 times for these entities and failed to timely pay the required taxes 28 times.

In addition to the three sole proprietor-ships, Moulton is the sole corporate officer of two corporations, Southern Minnesota Air Freight (SMAF) and Rochester Express (LAGNAF). As the sole corporate officer, he is responsible for filing the federal employer withholding tax returns and paying the tax liabilities.

The referee calculated that from 1998 through July 31, 2005, Moulton’s three sole proprietorships accrued unpaid tax liabilities for employer withholding taxes totaling $184,249.71, not including penalties and interest. In addition, the referee calculated that SMAF owed $100,768 and LAG-NAF owed $236,107.36 in outstanding federal employer withholding tax liabilities.

The referee found that an IRS lien on Moulton’s assets mitigated his misconduct because the lien adversely affected his ability to repay the delinquent taxes. The referee also found mitigation in the fact that Moulton made some payments on his tax obligations during 2005; paid court-ordered child support for his three minor children; made organizational changes to his business that, according to the referee, are “intended to result in more positive cash balances”; and was reasonably cooperative with the disciplinary proceedings. The referee also found, however, that Moulton’s misconduct was aggravated by his disciplinary history; the fact that, in addition to the tax liabilities for his sole proprietorship, he also had employer withholding tax liabilities for his two corporations; and the fact that the misconduct involved relatively large amounts of money over a long period of time. An aggravating factor not addressed by the referee is the fact that some of Moulton’s misconduct took place while he was on probation between March 22, 2002, and March 2004. One condition of that probation required that Moulton abide by the Minnesota Rules of Professional Conduct. While on probation, Moulton filed one quarterly employer withholding return late and failed to file one at all. Further, although Moulton made some payments on his tax liabilities during his probationary period, he never once paid the entire quarterly balance due and paid nothing at all for six quarters.

Here, Moulton challenges findings of fact 7 and 13, in addition to the referee’s conclusion that his conduct violated Minn. R. Prof. Conduct 8.4(d). We will uphold a referee’s findings and conclusions in attorney discipline proceedings if they have evidentiary support in the record and are not clearly erroneous. In re Pinotti, 585 N.W.2d 55, 62 (Minn.1998). Deference to the referee is particularly appropriate when the findings are based on a respondent’s demeanor, credibility, or sincerity. Id. Accordingly, this court will only reverse findings of fact if, “upon review of the entire evidence, a reviewing court is left with the definite and firm conviction that a mistake has been made.” Id. (quoting In re Strid, 551 N.W.2d 212, 215 (Minn.1996)).

A careful review of the record before us leads us to conclude that findings 7 and 13 and the referee’s conclusion that Moulton violated Rule 8.4(d) are amply supported by evidence in the record and are not clearly erroneous. In reaching that conclusion, we note that the referee’s findings and conclusion are based at least in part on credibility determinations.

Having concluded that findings 7 and 13 and the referee’s conclusion that Moulton violated Rule 8.4(d) are supported by the evidence in the record and are not clearly erroneous, we are left with the question of the appropriate sanction. The referee recommended that Moulton be suspended for 90 days with conditions for reinstatement. “The purpose of disciplinary sanctions for professional misconduct is not to punish the attorney, but rather ‘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 Vaught, 693 N.W.2d 886, 890 (Minn.2005) (quoting In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004)). When considering the appropriate sanction, we place great weight on a referee’s recommendation, but the final responsibility for determining the appropriate discipline is ours. In re Gurstel, 540 N.W.2d 838, 841-42 (Minn.1995). In determining the appropriate sanction, we consider “the nature of the misconduct, the cumulative weight of disciplinary violations, the harm to the public and the harm to the legal profession.” Id. at 841-42 (citing In re Jagiela, 517 N.W.2d 333, 335 (Minn.1994)). In addition, we consider any aggravating or mitigating circumstances, and also look to similar cases for guidance. Vaught, 693 N.W.2d at 890. The failure to timely file and pay employer withholding taxes is serious misconduct warranting suspension or disbarment. Gurstel, 540 N.W.2d at 842.

As we said in Gurstel, “the failure to pay employer’s withholding taxes is tantamount to taking employees’ money for the attorney’s own use, breaches the trust established between employer and employee, and calls on governmental resources to enforce compliance with the law by those who are sworn to uphold it.” Id. Further, violation of our disciplinary rules while on probation is a factor that warrants more significant punishment. See, e.g., In re Graham, 609 N.W.2d 894, 897 (Minn.2000) (explaining that, “[t]he fact that the current misconduct occurred while Graham was on probation is also a significant aggravating factor”); In re Ylitalo, 420 N.W.2d 615, 617 (Minn.1988) (discussing probation versus suspension and stating, “[suspension is particularly appropriate where the failure to file occurs while an attorney is already on probation”).

Moulton argues that a 30-day stayed suspension conditioned upon his payment of court costs, continued cooperation with the Director’s office, and the prompt payment of outstanding tax liabilities is adequate punishment for his misconduct. Moulton contends that his misconduct is less severe than conduct for which this court has previously imposed 30- and 90-day suspensions and that “there is nothing in the record to show any legitimate aggravating circumstances that would suggest an unstayed suspension.” He further contends that his conduct is mitigated by his cooperation with the IRS, the effect of his bookkeepers’ poor performance, the effect that a fire and burglary at his office had on his ability to file and pay employer withholding taxes, the fact that he has expressed an attitude of understanding of the importance of filing and paying his tax obligations, that he has made progress in keeping current with his tax filings and payments, and that he has not lived a lavish lifestyle characteristic of one living outside his means. Thus, Moulton contends that a stayed suspension would better serve the public and profession, and would safeguard against future violations by allowing him to continue working and paying down his tax liability.

The Director responds that the “referee correctly assessed and recommended the appropriate sanction” and argues that a stayed suspension would be inappropriate because “in effect, [it would be] equivalent to reprimand and probation.” With respect to Moulton’s mitigation arguments, the Director contends that this court should afford them little weight. The Director asserts that Moulton’s cooperation with the disciplinary proceedings should be afforded little weight because his cooperation is required by Rule 25 of the Rules on Lawyers Professional Responsibility and ordinary compliance should not be considered mitigation. The Director further asserts that this court should not afford much weight to the fact that Moulton pays child support given that the support is court ordered and thus required by state and federal law. The Director also contends that the changes Moulton made to his business practices should be given little or no weight because “they are no more remarkable or reasonable than ordinarily prudent conduct.” Finally, the Director urges this court not to give great weight to the impact of the tax liens filed by the IRS on Moulton’s ability to pay his withholding taxes. The Director contends that the liens should not be given great weight because Moulton continued late filing of his returns after the IRS filed the liens in July 2004 and continued using assets from his law office to pay the expenses of his other businesses, instead of paying the employer withholding taxes.

We agree with the Director that not much weight should be given to Moul-ton’s mitigation arguments. In that cooperation with disciplinary proceedings is required by Rule 25 of our Rules on Lawyers Professional Responsibility and that payment of court-ordered child support is required by law, we do not believe they qualify as mitigating factors. As for Moulton’s changes in his business practices, the Director is correct — “they are no more remarkable * * * than ordinarily prudent conduct.” As for the contention that the IRS liens somehow mitigate Moulton’s misconduct, they do not. First, we note that it appears that after the liens Moulton continued to use money withheld from employees for withholding tax purposes to pay business expenses instead of paying the withholding taxes. Second, the liens presumably resulted in a reduction of Moulton’s unpaid tax liabilities and therefore arguably reduced their burden on Moulton’s operations. Finally, with respect to Moulton’s mitigation claims based on cooperation with the IRS and the impact that his bookkeepers’ performance, the fire, and the burglary had on his ability to file and pay employer withholding taxes, it is enough to note that the referee, as discussed above, considered and rejected these claims.

In support of his argument that the appropriate discipline should be a stayed 30-day suspension, Moulton directs our attention to a number of cases, including In re Ranum, 611 N.W.2d 344 (Minn.2000) (imposing a three-month suspension for various violations, including the failure to timely file state and federal income taxes), and In re Tyler, 495 N.W.2d 184 (imposing a 30-day suspension for failure to timely file and pay individual income taxes and employer withholding taxes). Moulton argues that his misconduct was significantly less severe than the misconduct of the lawyers in those cases and therefore his discipline should be less than theirs. The Director relies on, among other cases, In re Gurstel, 540 N.W.2d 838, and In re Oberhauser, 679 N.W.2d 153, in support of the argument that the discipline recommended by the referee is appropriate in this case.

Based on our review of the record, the misconduct found by the referee, Moul-ton’s disciplinary history, the aggravating and mitigating factors, and our case law, we conclude that the appropriate sanction for Moulton’s misconduct is a 90-day suspension with conditions as recommended by the referee.

IT IS HEREBY ORDERED THAT:

1. Respondent Daniel J. Moulton is hereby suspended from the practice of law for a minimum of 90 days, commencing 14 days from the date of this opinion, with reinstatement subject to the conditions below. Respondent shall comply with the provisions of Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals).

2. The provisions of Rule 18(a)-(d), RLPR (requiring a petition and hearing before this court for reinstatement), are hereby waived. Respondent shall comply with Rule 18(e), RLPR (requiring that respondent be current in continuing legal education requirements and successfully complete the professional responsibility portion of the state bar examination) as a condition of reinstatement, except that respondent shall have one year from the date of this opinion in which to successfully complete the professional responsibility portion of the state bar examination. Respondent may apply for reinstatement under Rule 18(f), RLPR, after 90 days from the date of this opinion by filing an affidavit with the Clerk of Appellate Courts and the Director attesting that: (1) respondent either has made an offer in compromise acceptable to the IRS or has entered into and remained in compliance with a repayment agreement with respect to the outstanding tax liabilities; (2) respondent has complied with the provisions of Rule 26, RLPR; (3) respondent has complied with the provisions of Rule 18(e)(2), RLPR (continuing legal education requirements); and (4) respondent has complied with the provisions of Rule 24, RLPR (requiring payment of costs and disbursements).

3. Following reinstatement respondent shall be placed on unsupervised probation for the longer of two years from the date of this opinion or until respondent has fully paid either: (1) all past-due employer withholding tax liabilities for the Moulton Law Office and any other businesses for which he is required to collect, account for, and pay over taxes under 26 U.S.C. §§ 6672 or 7202 (2000), or is personally liable for payment under Minn.Stat. § 270.101, subd. 1 (2004); or (2) any lesser amount agreed to by the applicable taxing authority.

4. Respondent shall remain current on all tax obligations to federal and state taxing authorities arising in the future, and on any payment agreements with such federal and state taxing authorities, until all past-due tax liabilities for which he is personally responsible have been paid.

5. Respondent shall cooperate fully with the Director’s office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.

6. Respondent shall affirmatively report to the Director, on or before the due date of the required return, his compliance with tax filing and payment requirements. Such reports shall include copies of the required returns. On or before the filing deadline, respondent shall provide the Director with copies of any applications for filing extensions. Respondent shall provide all of the documents and information required herein without specific reminder or request.

7. Respondent shall abide by the Minnesota Rules of Professional Conduct.

8. Respondent shall pay the sum of $900 in costs and disbursements.

So ordered.

      . Rule 8.4(d) states that it is professional misconduct to "engage in conduct that is prejudicial to the administration of justice.” The referee found that Moulton also violated Rules 8.4(b) and (c); however, the Director only pled a violation of Rule 8.4(d) and requests that this court limit the referee’s conclusion accordingly.

      . The following chart summarizes the Moulton Law Office's employer withholding tax filings and payments: ,
      Quarterly Filing''.. Timely Federal Tax Deposit Amount Due Credited to Quarter
      March 1998 Láte — filed 9/9/98 $ 8,539.66 $ 8,539.66
      June 1998 Late — filed 12/13/98 $ 8,878.38 $ 8,878.38
      September 1998 Late — filed 2/3/99 $10,046.29 $10,046.29
      December 1998 Timely — filed 1/31/99 $12,337.30 None
      March 1999 Timely — filed 4/30/99 $ 9,303.49 $ 9,303.49
      June 1999 Late — filed 8/8/99 $ 8,036.28 None
      September 1999 Timely — filed 10/31/99 $ 7,790.82 None
      December 1999 Timely — filed 1/31/00 $ 7,893.44 None
      March 2000 Timely — filed 4/30/00 $ 7,364.44 $ 7,364.44
      June 2000 Timely — filed 7/31/00 $ 8,091.94 $ 8,091.94
      September 2000 Timely — filed 10/31/00 $ 8,159.46 $ 66.47
      December 2000 Timely — filed 1/31/01 123.13 None
      March 2001 Timely — filed 4/30/01 $ 7,112.91 $ 240.68
      June 2001 Timely — filed 7/31/01 $ 6,308.14 None
      September 2001 Timely — filed 10/31/01 $ 7,589.38 None
      December 2001 Late — filed 2/19/2002 $10,417.79 None

         March 2002 Timely — filed 4/30/2002 $ 8,157.96 None

         June 2002 Timely — filed 7/31/2002 $ 8,161.58 None

         September 2002 Timely — filed 10/31/2002 6,589.57 None

         December 2002 Prepared by IRS, Filed 3/25/04 $10,980.32 None

         March 2003 Timely — filed 4/30/2003 $ 8,607.00 None

         June 2003 Late — filed 8/18/03 $10,094.04 $ 1,582.36

         September 2003 Timely — filed 10/31/03 $10,737.37 $ 400.00

         December 2003 Timely — filed 1/31/04 $ 9,780.09 None

         March 2004 Timely — filed 4/30/04 $ 8,352.61 $ 2,206.66
      June 2004 Late — filed 10/8/04 $ 7,356.00 None
      September 2004 Late — filed 12/1/04 $ 9,098.21 None
      December 2004 Late — filed 6/27/05 $ 6,267.00 None
      March 2005 Late — filed 6/6/05 $ 4,202.64 $ 3,407.16
      June 2005 Timely — filed 7/31/05 $ 4,768.90 $ 4,768.90

       Indicates the period during which Moulton was on probation.

      . Finding 7 is as follows:
      At the hearing, Respondent attributed many of his failures to file certain returns and pay the taxes to two factors. First, Respondent alleged that for several years, in varying manner, three successive bookkeepers he hired to prepare tax returns and pay the taxes, and particularly Steven Fuchs from 1998 to 2003, failed to file some of the returns after Respondent signed them, and failed to send checks Respondent signed to the IRS for the taxes. Even though Respondent believed that at least Fuchs embezzled some of the money, he did not attempt to have Fuchs prosecuted criminally, explaining at the hearing that he did not want to "spend good money after bad.” Respondent denied timely knowledge of wrongful actions. The referee does not find Respondent’s claims credible.
      Secondly, Respondent alleged that his business records were damaged or stolen, thus interfering with his ability to file tax returns. In August 2002, an arson-caused fire at Respondent’s office destroyed some of his office records. In February 2003, there was a burglary at Respondent's office. The referee finds that both events did occur, but that no significant loss of relevant business records resulted from the burglary. Some significant loss of relevant business records likely did result from the fire. While that result could have temporarily caused difficulty in the filing and payment of taxes for the quarter in which the fire occurred, the referee finds that the fire did not cause any significant effect upon the filing and payment of taxes for all other prior and subsequent periods.

      . The first sentence of finding 13 reads, "Respondent failed to fully and substantially cooperate with the IRS (Exhibit 8).”


source: Caselaw Access Project

author: PER CURIAM. PAGE, Justice

license: Public Domain

text:
    Louis H. REITER, Petitioner, v. Mary KIFFMEYER, individually and as Secretary of State of Minnesota, Respondent, Gil Gutknecht, Intervenor, Respondent.
    No. A06-1508.
    Supreme Court of Minnesota.
    Sept. 28, 2006.

      Christine Bennett Eller, Asst. Atty. Gen., St. Paul, for Respondent.
    Alan W. Weinblatt, Weinblatt & Gay-lord, PLC, St. Paul, for Petitioner.
    Tony P. Trimble, Trimble & Associates, Ltd., Minneapolis, for Intervenor.
   OPINION

PER CURIAM.

Petitioner Louis H. Reiter filed a petition under Minn.Stat. § 204B.44 (2004) for an order directing respondent Secretary of State, Mary Kiffmeyer, to remove the name of Gil Gutknecht from the ballot for the primary election to be held on September 12, 2006. Reiter alleged that Gut-knecht failed to pay the $300 filing fee and that the petition filed by Gutknecht in place of the filing fee was deficient because the required number of signatures on the petition had not been affixed during the 14-day filing period, which began on July 4 and ended on July 18, 2006. Gutknecht intervened and moved to dismiss the petition. This opinion confirms our order filed on August 22, 2006, denying the petition.

On July 5, 2006, Gutknecht filed with the secretary of state an affidavit of candidacy for the office of United States Representative for the First Congressional District, comprising 22 counties in southeastern Minnesota. In lieu of paying the $300 filing fee for that office, Gutknecht filed a petition that purported to bear the names of 1,626 eligible voters representing all 22 counties in the First Congressional District. Only about 300 signatures were dated between July 4 and July 18, 2006. The secretary of state accepted Gutknecht’s affidavit of candidacy and, on July 20, 2006, certified Gutknecht as a candidate for the Republican Party nomination in the 2006 state primary election.

On August 10, 2006, Reiter filed a petition with this court seeking an order directing the secretary of state to omit Gut-knecht’s name from the primary election ballot. We ordered Reiter to serve a copy of the petition and supporting documents on Gutknecht and on any other individuals who filed for the Republican Party nomination for First Congressional District representative. Thereafter, Gutknecht moved to intervene as a respondent, a motion we granted. Gutknecht also moved to dismiss Reiter’s petition for failure to state a claim upon which relief could be granted.

Reiter argues that the signatures on a petition in place of the filing fee must be affixed during the filing period. Reiter bases this argument on an interpretation of Minn.Stat. § 204B.11, subd. 2 (2004), which sets forth the requirements for a petition in place of the filing fee.

I.

We approach the construction of a statute as a question of law. Camacho v. Todd and Leiser Homes, 706 N.W.2d 49, 53 (Minn.2005) (as modified). We begin with the language of the statute, inquiring first whether the statute is ambiguous. Zurich American Ins. Co. v. Bjelland, 710 N.W.2d 64, 68 (Minn.2006). If the statute is plain and unambiguous, we apply the words of the statute according to their plain meaning and engage in no further construction. Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn.1998). We conclude that section 204B.11, subd. 2, is plain and not ambiguous: it does not require that signatures on a petition in place of the filing fee be affixed during the filing period.

Minnesota election laws provide different filing requirements depending on whether a candidate seeks the nomination of a major political party. Candidates for elective office who seek the nomination of a major political party compete for that nomination in the primary election. Minn. Stat. § 204B.03 (2004). Partisan candidates who do not seek the nomination of a major political party (minor party or independent candidates) must file a nominating petition under Minn.Stat. §§ 204B.03, .07, and .08 (2004). All candidates, whether seeking the nomination of a major party or not, must also pay a filing fee, which for the position of congressional representative is $300. MinmStat. § 204B.11, subd. 1(b) (2004). But any candidate is allowed to avoid the filing fee by filing a “petition in place of the filing fee.” Id., subd. 2. For a congressional office, the minimum number of signatures required on such a petition is 1,000. Id., subd. 2(b).

For a nominating petition for a candidate who does not seek the nomination of a major political party, the specified number of signatures must be affixed within the 14-day filing period. See Minn.Stat. § 204B.08, subd. 1 (“Nominating petitions shall be signed during the period when petitions may be filed as provided in section 204B.09.”). But the provisions for a petition in place of the filing fee do not specify any time period for affixing the signatures. MinmStat. § 204B.11, subd. 2. The only requirement for a petition in place of the filing fee is that the signatures on the petition be of “any individual eligible to vote for the candidate.” Id.

Reiter argues that section 204B.11, subd. 2, should be read as incorporating the time requirements of section 204B.08 for nominating petitions into the requirements for petitions in place of the filing fee. Reiter suggests that this reading is supported by consideration of the legislative history of the petition in place of the filing fee, the canons of statutory construction, the secretary of state’s interpretation of the statute, and the “absurd consequences” that -will result if petitions in place of the filing fee need not be signed within the 14-day filing period. But we consider these extrinsic aids in determining legislative intent only if the statute is ambiguous. Christopherson v. Fed. Land Bank of St. Paul, 388 N.W.2d 373, 374 (Minn.1986). Indeed, use of extrinsic aids to determine legislative intent where there is no ambiguity in the express language of the statute would be unnecessary and improper. Feick v. State Farm Mut. Auto. Ins. Co., 307 N.W.2d 772, 775 (Minn.1981). And we will not read into a statute a provision that the legislature has omitted, either purposely or inadvertently. Metro. Sports Facilities Comm’n v. County of Hennepin, 561 N.W.2d 513, 516-17 (Minn.1997).

Had the legislature intended to limit the period during which signatures on a petition in place of the filing fee could be obtained, it would have expressly done so. Although the statute would appear to permit the use of signatures obtained at any time before the filing of the petition, including signatures obtained many months or even years before, this case does not test those outer limits because all of the signatures on Gutknecht’s petition were obtained after the last election for this office, between February 7 and July 18, 2006. We conclude that there is nothing in section 204B.11, subd. 2, that bars the use of signatures obtained prior to the 14-day filing period.

II.

We also reject Reiter’s argument that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution requires that we construe section 204B.11, subd. 2, as imposing the same time limitation on affixing signatures to a petition in place of the filing fee that section 204B.08 imposes on nominating petitions. This comparison between a petition in place of the filing fee and a nominating petition is not an appropriate equal protection analysis.

First, the two different petitions serve different purposes. The nominating petition substantiates the nomination of a minor party or independent candidate, whereas the petition in place of the filing fee only releases a candidate from the obligation to pay the filing fee. As a result, there is no logical reason to assume that the legislature intended that the requirements of one be applicable to the other.

Moreover, the relevant question for equal protection purposes is whether a minor party or independent candidate is held to different standards than a major party candidate when submitting a petition in place of a filing fee. All candidates are subject to the filing fee and the authorization to file a petition in place of the filing fee applies equally to major party, minor party, and independent candidates. Minn. Stat. § 204B.11, subd. 2. Minor party and independent candidates may submit a petition in place of a filing fee by simply placing an additional legend on their nominating petition. Id. Because Gutknecht was not eligible to file a nominating petition, he faced an additional burden of obtaining the required number of signatures on a separate petition in place of the filing fee.

Because the petition in place of the filing fee is equally available to all candidates, this case does not present an equal protection issue. And, even if Reiter’s premise were correct, that greater burdens are placed on minor party and independent candidates, we could not adopt Reiter’s proposed remedy because it would increase the burdens on major party candidates rather than reduce the burdens on minor party and independent candidates.

Motion to dismiss petition granted; petition denied.

PAGE, Justice

(concurring).

CONCURRENCE

I concur in the result.

      . See Minn.Stat. § 204B.09, subd. 1 (2004) (stating that the filing period begins not more than 70 days before the primary and ends not less than 56 days before the primary).

      . At oral argument, Reiter referenced Burkstrand v. Burkstrand, 632 N.W.2d 206 (Minn.2001), as providing a different rule of construction where the statute is silent on a particular matter. But Burkstrand did not apply a different rule because it resorted to extrinsic sources to determine the legislative intent behind that silence only after determining that the statute was ambiguous. Id. at 210.

      . Minnesota Statutes § 204B.03 requires candidates for nomination by a major political party to be nominated by party primary rather than by nominating petition.

      . Because Reiter’s equal protection argument is not based on a comparison of the requirement of a nominating petition for a minor party or independent candidate with the requirement of the primary ballot process for a major party candidate, we do not address any equal protection issues that might be suggested by such a comparison.


text:
    Brian SMITH, Petitioner, v. Mary KIFFMEYER, in her official capacity as Secretary of State, Respondent, Jill Alverson, in her official capacity as Hennepin County Auditor, Respondent.
    No. A06-1527.
    Supreme Court of Minnesota.
    Sept. 28, 2006.

      Michael B. Padden, Padden & Associates, P.L.L.C., David Schultz, Hamline University Graduate School of Management, St. Paul, MN, for Appellant.
    Mike Hatch, Attorney General, Christie B. Eller, Assistant Attorney General, Greg P. Huwe, Assistant Attorney General, St. Paul, MN, Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant Anoka County Attorney, Anoka, MN, for Respondent.
   OPINION

PER CURIAM.

In this case we are asked to decide whether a candidate who files an affidavit of candidacy with the wrong election official is entitled to have his or her name placed on the primary election ballot. We conclude that when a candidate fails to file an affidavit of candidacy in the proper place before the filing deadline, the affidavit is ineffectual.

Brian Smith filed a petition, pursuant to MinmStat. § 204B.44(d) (2004), asking this court to direct that his name be placed on the ballot for the September 12, 2006, state primary election. By order of August 22, 2006, we denied the petition and stated that a written opinion would follow.

The facts are undisputed. On the afternoon of July 18, 2006, the last day of filing, Smith went to the secretary of state’s office to file as an Independence Party candidate for legislative House District 58B. Smith completed an affidavit of candidacy and submitted it along with the filing fee at about 3:30 p.m. After Smith left, employees in the secretary of state’s office discovered that Smith had filed with the wrong election official. House District 58B is located entirely within Hennepin County, and by statute, affidavits and petitions for an office to be voted on in only one county are to be filed with the county auditor. Minn.Stat. § 204B.09, subd. 1(d) (2004). The only contact information Smith had provided with his petition was his campaign website, and efforts to obtain a telephone number for him were unsuccessful. At about 4:30 p.m. personnel in the secretary of state’s office sent an email to the electronic address listed on the website. The e-mail was entitled “URGENT — FILED IN WRONG PLACE” and had the following message: “YOU NEED TO FILE IN HENNEPIN COUNTY BY 5PM TODAY.”

The following day, the secretary of state delivered Smith’s affidavit and filing fee to the Hennepin County Auditor. A representative of the auditor subsequently informed Smith that the auditor’s office could not accept his affidavit of candidacy because it had not received the affidavit before the close of filing. Smith’s affidavit and filing fee were returned to the secretary of state, who returned the fee to Smith.

Minnesota Statutes § 204B.09, subd. 1(d) (2004) provides:

Affidavits and petitions for offices to be voted on in only one county shall be filed with the county auditor of that county. Affidavits and petitions for offices to be voted on in more than one county shall be filed with the secretary of state.

Subdivision 1(c) states: “No affidavit or petition shall be accepted later than 5:00 p.m. on the last day for filing.” Minn.Stat. § 204B.09, subd. 1(c) (2004). The county auditor is responsible for placing on the state primary ballot the name of each candidate “who has properly filed an affidavit of candidacy with the auditor” and of each candidate certified by the secretary of state. Minn.Stat. § 204D.07, subd. 1 (2004). The secretary of state certifies to the county auditors the names of candidates “who have properly filed affidavits of candidacy with the secretary of state.” Minn.Stat. § 204D.06 (2004). It is clear from section 204B.09, subdivision 1, and our case law that for an affidavit of candidacy to be “properly filed,” it must be both filed before the deadline and filed with the appropriate election official.

More than 80 years ago this court held that the statutory deadline for filing an affidavit of candidacy is mandatory, and an affidavit of candidacy filed after expiration of the filing period “is ineffectual for any purpose.” State ex rel. O’Hearn v. Erickson, 152 Minn. 349, 349, 351, 188 N.W. 736, 736-37 (1922). The date of filing is the date the affidavit is received in the proper official’s office. Id. at 350, 188 N.W. at 736. Thus, we have twice held that depositing an affidavit of candidacy in the mail within the filing period does not constitute filing within the meaning of the statute when it does not reach the proper office until after the deadline has passed. Harris v. Donovan, 269 Minn. 574, 129 N.W.2d 797 (1964); O’Hearn, 152 Minn. at 350, 188 N.W. at 736.

Like the statutory filing deadline, the requirement of Minn.Stat. § 204B.09, subd. 1, that an affidavit of candidacy “shall be filed with” a particular election official is mandatory. See Minn.Stat. § 645.44, subd. 16 (2004) (providing that “shall” is mandatory). We agree with the reasoning of the Wisconsin Supreme Court, which held:

The time and place of filing nomination papers cannot be separated. In order to be timely, the papers must be filed in the proper place. If the papers are initially filed in the wrong place, the error must be corrected and the papers filed in the right place within the filing deadline. * * ⅜ [W]e view [the statute] governing the time of filing and [the statute] governing the place of filing nomination papers * * * to be mandatory. Failure to timely file the papers in the proper place prevents the candidate’s name from being placed on the ballot.

State ex rel. Ahlgrimm v. State Elections Bd., 82 Wis.2d 585, 263 N.W.2d 152, 157 (1978). Accord Tobin v. May, 72 A.D.2d 648, 421 N.Y.S.2d 441, 441-42 (1979); State v. Jensen, 662 N.W.2d 643, 649 (S.D.2003) (quoting Ahlgrimm);. See also O’Donaghue v. Cook County Officers Electoral Bd., 295 Ill.App.3d 493, 229 Ill.Dec. 781, 692 N.E.2d 770, 773 (1998) (holding that candidate was properly excluded from primary ballot for failure to timely file statement of economic interest with proper official).

Smith acknowledges that he mistakenly believed he was to file for office with the secretary of state but argues that when he submitted his affidavit, the secretary of state should have ensured that he was filing it with the proper election official. Alternatively, Smith contends that when the error was discovered after he left, either (1) the secretary of state could have forwarded his affidavit to the Hennepin County Auditor, electronically or by courier, or (2) the auditor could have accepted the filing in the secretary of state’s office as timely so long as it reached the auditor within a short time.

Minnesota Statutes § 204B .44(d) only provides a remedy, however, for a “wrongful act, omission, or error” of an election official. We have held that in enacting the statute:

[T]he legislature intended to protect potential candidates for public office from the errors and omissions of those enumerated persons charged with properly completing the procedural and mechanical duties attendant to the election process. Nowhere, either expressly or by implication, does it appear that the legislature contemplated the use of this remedy to correct errors or omissions resulting only from the candidate’s inadvertence during the filing procedure.

Schroeder v. Johnson, 311 Minn. 144, 145, 252 N.W.2d 851, 852 (1976) (denying relief when auditor withheld from primary ballot name of candidate who inadvertently designated wrong legislative district on affidavit of candidacy). See also O’Hearn, 152 Minn, at 351, 188 N.W. at 737 (distinguishing between duties imposed upon election officials and “acts made necessary to initiate a valid candidacy for office”). We have also said that state election laws do not authorize or require the secretary of state to police the form of names to appear on election ballots. Clifford v. Hoppe, 357 N.W.2d 98, 100 n. 3 (Minn.1984).

The statutes prescribing the duties of the secretary of state concerning affidavits of candidacy do not include ensuring that the affidavit is filed with the proper election official. Minn.Stat. §§ 204B.10; 204D.06 (2004). Minnesota Statutes § 204B.03 (2004) makes it the obligation of the candidate to file an affidavit of candidacy, and it follows that as with the obligation to timely file, it is the candidate’s obligation to file the affidavit with the proper official as prescribed by section 204B.09, subdivision 1(d). Smith makes no claim that he was actively misinformed or misled by the secretary of state as to where to file his affidavit of candidacy. With respect to Smith’s alternative argument, there is no statutory authority to support his claim that the secretary of state is an agent of the Hennepin County Auditor for the purpose of accepting affidavits of candidacy that are required to be filed with the auditor. See Ahlgrimm, 263 N.W.2d at 157 (rejecting similar claim).

We conclude that a candidate’s failure to file an affidavit of candidacy with the proper election official before the filing deadline prevents the candidate’s name from being placed on the primary election ballot. Therefore, we hold that petitioner Brian Smith is not entitled to have his name placed on the primary election ballot for House District 58B.

Petition denied.

      . We note that a brochure issued by the Secretary of State’s Office regarding filing for office recites the place of filing as provided by Minn.Stat. § 204B.09, subd. 1(d).


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Appellant, v. Edward Richard KRASKY, Respondent.
    No. A04-2011.
    Court of Appeals of Minnesota.
    Oct. 3, 2006.
    Mike Hatch, Attorney General, St. Paul, MN; and Boyd Beecue, Kandiyohi County Attorney, C.J. Crowell, Assistant County Attorney, Willmar, MN, for appellant.
    Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, MN, for respondent.

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

CRIPPEN, Judge.

This appeal from a pretrial order excluding evidence is before this court on remand from the supreme court. State v. Krasky, 696 N.W.2d 816 (Minn.App.2005), review granted (Minn. Aug. 16, 2005), remanded (Minn. May 16, 2006). The district court excluded prosecution evidence of the child-victim’s statement to a nurse practitioner, concluding that it was testimonial evidence that would violate the Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). On this remand, which follows two recent Minnesota Supreme Court decisions on the admissibility of such statements, we must decide whether the child’s statement was testimonial when it occurred as part of a police investigation approximately two years after the suspected sexual abuse, after the suspect’s parental rights had been terminated, and two months after the child had been placed in foster care. We affirm the district court’s exclusion of the evidence.

FACTS

In April 2004, then-six-year-old T.L.K. and her then-four-year-old sister, M.R.K., were living with their foster parents. Their foster mother suspected T.L.K. of inappropriately touching M.R.K. and asked T.L.K. if anyone had ever touched her that way. T.L.K. responded by describing acts suggesting that her father, respondent Edward Krasky, had inappropriately touched both her and M.R.K. A few days later, Houston walked in on T.L.K. intimately kissing M.R.K., apparently against M.R.K’s will. These incidents, as well as a previous comment by T.L.K. that Krasky had licked her “all over,” prompted Houston to contact the authorities.

On May 12, 2004, the Willmar Police Department received a child-protection report regarding T.L.K. and Krasky. The report indicated that the sexual abuse had occurred on multiple occasions and involved both T.L.K. and her sister. The parental rights of both Krasky and his wife had been terminated some time before the report was received. The termination of parental rights appears to have been based, at least in part, on Krasky’s physical assault of T.L.K. in July 2001, for which he was convicted of domestic assault, and his assault against his four-month-old son in November 2002, for which he was convicted of second-degree assault.

Detective Timothy Manuel and Charlotte Hand, the child-protection worker assigned to the case, decided to have T.L.K. interviewed at Midwest Children’s Resource Center (MCRC). On May 20, 2004, a nurse practitioner at MCRC interviewed and examined T.L.K. The interview was monitored from another room by Charlotte Hand. Hand’s affidavit states that she and an adoption social worker observed the examination from the observation room, and the district court made a finding to that effect. It appears that Detective Manuel was not in the observation room but watched the interview on videotape later.

During the interview, T.L.K. had difficulty focusing and gave disjointed answers that were difficult to understand; she was able to provide more direct answers in the subsequent physical examination. In both the interview and the examination, T.L.K. described several occasions when Krasky touched her with his fingers, tongue, and penis.

Shortly after a record of the interview was delivered to Detective Manuel, Krasky was charged with six counts of first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342 (2002), and six counts of second-degree criminal sexual conduct, in violation of Minn.Stat. § 609.343 (2002). After a pretrial hearing on Krasky’s motions to suppress the state’s evidence, the district court ruled that T.L.K’s statements in the interview and examination were testimonial and therefore inadmissible under Crawford. The district court also ruled that the state’s Spreigl evidence was inadmissible.

The state appealed from the district court’s order suppressing both T.L.K’s statements at MCRC and the Spreigl evidence. On May 24, 2005, this court reversed the suppression of T.L.K’s examination statements and affirmed the suppression of the state’s Spreigl evidence. State v. Krasky, 696 N.W.2d 816, 820-21 (Minn.App.2005). Krasky filed a petition for review with the Minnesota Supreme Court, and on May 16, 2006, the supreme court remanded the case to this court. Id., review granted (Minn. Aug 16, 2005), & remanded (Minn. May 16, 2006). It vacated section I of this court’s May 24, 2005 opinion, with instructions to reconsider the Crawford issue in light of the supreme court’s opinions in State v. Bobadilla, 709 N.W.2d 243 (Minn.2006), and State v. Scacchetti, 711 N.W.2d 508 (Minn.2006).

Both Bobadilla and Scacchetti determine whether statements made by three-year-old victims of sexual abuse are testimonial by considering factors articulated in State v. Wright, 701 N.W.2d 802, 812-13 (Minn.2005), and applying the overall principle that a “substantial purpose” of the testimonial statement is “producing evidence for trial.” Bobadilla, 709 N.W.2d at 252; see Scacchetti, 711 N.W.2d at 513. But after this case was remanded, Wright was vacated by the United States Supreme Court and remanded for reconsideration in light of Davis v. Washington, — U.S. -, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Wright v. Minnesota, — U.S. -, 126 S.Ct. 2979, — L.Ed.2d - (2006). In Davis, the Supreme Court held that statements made in the course of police interrogation are testimonial, and thus may violate the Confrontation Clause, when the “primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” 126 S.Ct. at 2274 (footnote omitted). We must consider the application of Bobadilla and Scacchetti to this case in light of the Supreme Court’s opinion in Davis.

ISSUE

Did the district court err in ruling that evidence of T.L.K’s statements during the interview and examination at MCRC is inadmissible?

ANALYSIS

On appeal from a pretrial order suppressing evidence, the state “must clearly and unequivocally show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (quotation omitted). As we determined in our earlier opinion, the state has shown critical impact. Krasky, 696 N.W.2d at 818. Whether the district court erred by suppressing T.L.K’s statements at MCRC is a question of law, which we review de novo. Id.

I. Scacchetti & Bobadilla

In Scacchetti, the supreme court held that a statement made by a three-year-old girl to a pediatric nurse practitioner at MCRC was not testimonial and was therefore admissible as against a Confrontation Clause challenge. 711 N.W.2d at 510. Scacchetti involved a mother who suspected her boyfriend of sexually abusing her three-year-old daughter. Id. at 510-11. The mother went to a women’s shelter, where she was encouraged to take the daughter to the hospital. Id. at 511. At the hospital, concern of sexual abuse prompted assessment of the daughter at the hospital by a MCRC pediatric nurse practitioner, and a follow-up assessment at MCRC, where the daughter was again interviewed and examined. Id. at 511-12.

The Scacchetti court held that the MCRC nurse practitioner was not a government actor and that because the police did not arrange and were not present during the interview, the nurse practitioner was not acting in concert with the government. Id. at 514. Because the interviewer was neither a government actor nor “acting in concert with” the government, the supreme court held that the daughter’s statements were not testimonial. Id. at 514-15. But it noted that even if the nurse practitioner were acting in concert with the government, the statements would not be testimonial because the nurse practitioner’s purpose was to assess the daughter’s medical condition, “to determine whether the child has been abused and, if necessary, to connect the child and family to appropriate services.” Id. at 515.

Here, the nurse practitioner who interviewed T.L.K. did so at the request of the child protection worker and the investigating officer, Detective Manuel. These two “government officers” had determined that the interview was “the best way to proceed with the investigation.” The child protection worker monitored the interview, a videotape was provided to Detective Manuel who reviewed it shortly thereafter, and the prosecution followed almost immediately. We conclude that the nurse practitioner was at least “acting in concert with” the government in conducting the interview. There was no identified medical reason for the interview, and there was no imminent threat to the safety or welfare of T.L.K., who had been in foster care for two months.

In Bobadilla, the Minnesota Supreme Court held that statements made by a three-year-old victim of sexual abuse to a child-protection worker were not testimonial, despite inquiries regarding what wrongdoing had occurred and police involvement in arranging the interview— that neither the child-protection worker nor the three-year-old victim was acting to preserve testimony for trial. 709 N.W.2d at 255-56. The child-protection worker interviewed the victim at a police station five days after the victim’s mother brought him to the emergency room on suspicion that the child recently had been sexually abused. Id at 246-47. The supreme court noted that producing evidence for trial must be at least a substantial purpose of the statement and that “[i]f part of the purpose of this interview was to produce a statement for use at a future trial, such a purpose was at best incidental to the main purpose: assessing and responding to imminent risks to [the victim’s] health and welfare.” Id at 254-55.

This case is distinguishable from Boba-dilla. At the time T.L.K. was brought to MCRC for the interview, the events under investigation were at least two years old, and T.L.K. had been removed from Kra-sky’s home. There is no evidence of any ongoing concern, arising from the past abuse, for the child’s safety or welfare. This case is a police investigation of a crime, without evidence that the interview was prompted or affected by a medical or protective aim.

II. Davis

Although the supreme court remanded this appeal for reconsideration in light of Scacchetti and Bobadilla, the United States Supreme Court has since further shaped the law of the case, elaborating on Crawford, in another seminal Confrontation Clause opinion. Davis v. Washington, - U.S. -, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The Davis opinion affects the analysis of both Scacchetti and Bobadilla. Enlarging its impact, we also note that the Supreme Court has remanded for reconsideration in light of Davis our supreme court’s decision in Wright, which set out the analysis relied on in both Scacchetti and Bobadilla. 701 N.W.2d 802 (Minn.2005), remanded, — U.S. -, 126 S.Ct. 2979, -L.Ed.2d - (2006).

A. Davis & Wright

The supreme court in Wright determined that statements made to police by a domestic-violence victim and her sister in a field investigation shortly after the offense were non-testimonial. 701 N.W.2d at 814. The court held that such statements should be analyzed on a case-by-case basis taking into account eight considerations. Id at 812. The court expressed concern that Crawford might be read to categorize “virtually every out-of-court statement made by a declarant to a police officer as testimonial.” Id at 814. The court expressed instead its preference for “an analysis of the interrogative qualities of interactions between declarants and the police.” Id.

The United States Supreme Court in Davis held that a statement taken from a suspected domestic-violence victim, in circumstances resembling those in Wright, was testimonial. See Davis, 126 S.Ct. at 2278-79. Although the facts of Wright may well be distinguishable, application of the Davis analysis to those facts leads in a direction that differs from the approach taken in Wright. Instead of broadly analyzing the circumstances surrounding the statement, the Davis Court acted on the observation simply that the police officer was eliciting facts about “what happened” or “how potentially criminal past events began and progressed.” Id at 2278. The Court did not inquire into the purpose of the declarant in answering the police officer’s questions but merely noted that the questioning “took place some time after the events described were over” and that there “was no emergency in progress.” Id.

Both Scacchetti and Bobadilla cite Wright’s list of eight relevant considerations and study competing interview purposes. Scacchetti, 711 N.W.2d at 513-15; Bobadilla, 709 N.W.2d at 250-55. Neither opinion reflects the more direct approach of Davis, which examines only whether police are seeking information about past events that may relate to a future prosecution and that is not sought for a purpose of rendering emergency assistance. See Davis, 126 S.Ct. at 2273-74 (holding that statements in response to police interrogation are “testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution”) (footnote omitted). Thus, we must assess the impact of Davis on both Scacchetti and Bobadilla, and on the reconsideration of this appeal.

B. Davis & Bobadilla

In Bobadilla, the supreme court, after citing the eight considerations listed in Wright, noted that the declarant’s purpose in speaking and the government officer’s purpose in questioning were “the central considerations.” 709 N.W.2d at 250. The court examined the government questioner’s prospective aims and, drawing from Wright and Craiuford, considered that the purpose of producing evidence for a later trial was determinative only if this explained the interview “to a substantial degree.” Id. at 252. But in Davis, singularly looking at aims of the government questioner when examining the “purpose of the interrogation,” 126 S.Ct. at 2274, the court narrowly examines the fact that the interview was “part of an investigation into possibly criminal conduct” and the police officer was seeking to determine “what happened.” Id. at 2278.

Davis makes evident, when the government questioning concerns past events potentially relevant to later criminal prosecution, that there is no occasion for a broad inquiry into competing possible future uses of the information other than prosecution. As long as the information is not needed to make an immediate decision, evident when attempting to meet an ongoing emergency, the primary purpose of the interrogation is investigative. The difference is one between finding out “what is happening,” as in the case of an emergency, and finding out “what happened,” which occurs in the course of any investigation. See id.

This characterization of purposes, either immediate or investigative, is uncomplicated — “a much easier task.” Id. In the circumstances of Davis, even though the interview occurred shortly after the offense and at the same site, the court found it “entirely clear” from the circumstances that this was an investigation into possibly criminal past conduct, an inquiry into “what happened.” Id. And there is no suggestion in Davis that the court should inquire into the declarant’s state of mind or her purpose in speaking with police, if, as the record makes clear in the immediate case, the declarant was interviewed “as the best way to proceed with the investigation.”

Davis makes more evident what Crawford may have left uncertain, that the Confrontation Clause is implicated when government officers, engaged in an investigation aimed at learning what happened in the past, ask questions with full awareness that the inquiry is likely to produce evidence of past criminal conduct. Davis would appear to preclude such an inquiry when the witness’s statement was, as T.L.K.’s statement was here, “a weaker substitute for live testimony.” Id. at 2277 (quoting United States v. Inadi, 475 U.S. 387, 394, 106 S.Ct. 1121, 1126, 89 L.Ed.2d 390 (1986)).

The Davis Court also noted the significance of the level of formality prevailing in a government officer’s interview. Id. at 2276-77. Davis considered a statement “formal enough” for purposes of the Confrontation Clause when the witness was separated from the suspected offender, “some time” had elapsed since the events she described, and she “deliberately recounted” facts in response to official interrogation. Id. at 2278. In those circumstances, which accurately describe T.L.K. ⅛ interview at MCRC, there is no room for inquiry into what other non-investigative and non-prosecutorial uses the government officials may in the future have had for the statement.

In Bobadilla the supreme court held that a statement made by a three-year-old child to a child protection worker in a “risk assessment interview” was not testimonial. 709 N.W.2d at 256-57. The court recognized a child-protection purpose despite evidence that the interview was conducted at the law enforcement center, under the observation of a police officer, after the police investigation had begun, and after the occurrence of abuse had been confirmed by a hospital physician. 709 N.W.2d at 246-47, 255.

The Bobadilla court noted the statutory scheme for child-abuse reporting, the purpose of which is “to protect the health and welfare of children.” Id. at 254-55 (citing Minnesota’s statutory scheme for reporting, investigation, and responding to threats to children’s health and welfare, Minn.Stat. § 626.556 (2004)). Under the analysis presented in Davis, the statutory policy for a mandatory “investigation” of child-abuse reports takes on added importance. It becomes significant that the statute requires the coordination of investigative efforts with police authorities, the taking of a single statement in a joint effort of police and other responsible agencies, and the preservation of a record of the child’s statements. Minn.Stat. § 626.556, subd. 1.

In addition, in light of the analysis in Davis, the non-criminal purpose inherent in child-abuse reporting is not significant to the Confrontation Clause analysis when the child’s health and welfare are no longer at risk and the nature of the interview is an “investigation into possibly criminal past conduct,” 126 S.Ct. at 2278, an investigation into past events — and the overriding purpose under Davis, for Confrontation Clause purposes, is to obtain evidence for a criminal prosecution.

C. Davis & Krasky

This case is more heavily affected by the holding of Davis than Bobadilla or Scac-chetti The Davis Court held a statement to be testimonial when it was made to police who had responded to a report of a domestic disturbance made by the victim in the house, but sometime after she had been separated from the suspected perpetrator, her husband. Davis, 126 S.Ct. at 2272, 2278. Bobadilla involved a statement made by a suspected victim of child abuse four days after the suspected offense, alleged to have been committed by a perpetrator with whom his father, who still had visitation rights, was residing. 709 N.W.2d at 246. In this case, T.L.K. had been removed from Krasky’s home, Kra-sky’s parental rights had been terminated, and the interview did not occur until eight days after police received the child-protection report. Moreover, the suspected offense was reported after T.L.K. was seen engaging in inappropriate conduct with her sister. There was no suspicion that the reported sexual abuse by Krasky was committed in the recent past. Thus, the conclusion that the MCRC interview was “part of an investigation into possibly criminal past conduct,” Davis, 126 S.Ct. at 2278 (emphasis added), is much more compelling than in Bobadilla.

We recognize that the United States Supreme Court in Crawford and Davis has dealt only with interviews of adults, a context in which the expectations of the de-clarant, as well as the mission of the government interviewer, may be relevant. But the Minnesota Supreme Court, now confirmed in Davis, has emphasized that the expectations of the declarant are not determinative:

However, in Wright we rejected an approach that did not consider both the perspective of the government questioner and the perspective of the declarant. We do not think that an approach that makes the declarant’s perspective dis-positive gives adequate consideration to Crawford’s fear of governmental abuses.

Bobadilla, 709 N.W.2d at 252 n. 3 (citations omitted).

We recognize also that the United States Supreme Court has not dealt with interviews by medical staff, such as the nurse practitioner in this case. But to fully consider the role of this interviewer, we must take into account that the interview was arranged by a police detective, as well as a child-protection worker, to further a criminal investigation of the child’s accusation. As the police report states, these two government officers had “decided that [the MCRC interview was] the best way to proceed with the investigation.” After preliminary questions regarding identifications, truth-telling, and terminology relevant to sexual acts, the nurse practitioner immediately turned T.L.K’s attention to the topic of appellant’s alleged criminal acts.

As discussed earlier, because the nurse practitioner was not a government employee, “we must determine whether [she] was acting in concert with or as an agent of the government.” Scacchetti, 711 N.W.2d at 514. Although medical staff will in many cases not be acting in concert with, or as agents of, the government, even in interviewing children about suspected child abuse, we have concluded that the nurse practitioner at MCRC was at least acting in concert with the government in this case. In Scacchetti, a nurse practitioner at MCRC was held not to be “acting in concert with or as an agent of the government” because police were not involved in organizing the interview and were not present during the interview, which occurred at the hospital rather than a law enforcement center. Id. Here, although the interview also occurred at MCRC, police organized it, the child-protection worker who coordinated it with police observed the interview, and a videotape of the interview was provided to the investigating officer, who used it to complete his offense report less than two weeks after the interview. The officer was also furnished with a written narrative summary of the interview.

The Supreme Court opinions in Crawford and Davis suggest a broad reading of the term “testimonial” statements even in this context of interviews of children conducted by medical staff. The Crawford Court expresses skepticism about the admissibility of statements “elicited by ‘neutral’ government officers.” 541 U.S. at 66, 124 S.Ct. at 1373. Although the reference in Crawford was to questioning by police officers, the skepticism about government neutrality applies as strongly to private staff enlisted to investigate reports of child sexual abuse. Neither Crawford nor Davis suggests in this context that a medical professional who is acting in concert with police or child-protection workers will be sufficiently “neutral” or have a sufficiently non-investigative purpose merely because the interview is a medical procedure.

III. Conclusion

Based on the supreme court’s opinions in Scacchetti and Bobadilla, as affected by the United States Supreme Court’s recent decision in Davis, we determine, as the district court concluded, that T.L.K’s interview at MCRC was testimonial in nature. It has become evident under Crawford and Davis that the Supreme Court has deliberately abandoned a prior, vague Confrontation Clause test in favor of a new approach that focuses on an uncomplicated study of the purpose of an interviewer who takes a statement that is later introduced as trial evidence.

There is, unquestionably, a unique public interest in support of criminal prosecution of child abusers. But we may not, as the Supreme Court noted in Davis, “vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.” 126 S.Ct. at 2280. We must follow the rule of law and trust that innovative investigative approaches will maximize the use of civil-law remedies and forms of testimony in criminal trials that conform to the mandates of the Confrontation Clause.

We also recognize the problem of child-abuse perpetrators intimidating their young victims. But as the Supreme Court stated in Davis, the rule of forfeiture by wrongdoing imposes on criminal defendants “the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system.” Id. No evidence of witness coercion or intimidation is presented here. And although we recognize the state’s argument that a waiver of the right of confrontation should be found when a perpetrator selects a victim who is likely too young to testify at trial, the state cites no authority to support a doctrine of implied waiver, and we do not have the prerogative to develop such a doctrine in this case.

DECISION

The district court did not clearly err in ruling that statements made by T.L.K. during her interview at MCRC were testimonial and therefore inadmissible as against a Confrontation Clause challenge.

Affirmed.

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

      . The supreme court quoted Crawford’s statement that "[¡Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.” Scacchetti, 711 N.W.2d at 514 (quoting Crawford, 541 U.S. at 56 n. 7, 124 S.Ct. at 1367 n. 7) (emphasis added). The court stated that "the fact that the questioner is a government officer is probative of the questioner’s purpose for eliciting the statements[.]” Id. The Supreme Court in Crawford, in turn, had focused on "government officers," not solely police officers, as those who, in eliciting "formal statement[s],” obtain "testimony.” 541 U.S. at 51, 124 S.Ct. at 1364. The Court expressed its concern for those who performed "investigative functions,” id. at 53, 124 S.Ct. at 1365, who produced testimony "with an eye toward trial,” id. at 57 n. 7, 124 S.Ct. at 1367 n. 7, and the court disparaged the notion that "ex parte testimony could be admitted against a criminal defendant because it was elicited by 'neutral' government officers.” Id. at 66, 124 S.Ct. at 1373.

      . The state has not suggested that ex parte interviews of children serve their best interests in a fashion constituting cause to limit Confrontation Clause rights. Similarly, we are unable to locate any authority to establish such a doctrine. But see Geske v. Marcolina, 642 N.W.2d 62, 68-70 (Minn.App.2002) (holding that child's best interests in being spared a specific harm serve as a compelling state interest supporting a narrowly tailored prior restraint of speech.)


author: WILLIS, Judge.

text:
    Rocelyn Tuburan BRAEND and obo MINOR CHILDREN, Respondent, v. Kevin BRAEND, Appellant.
    No. A05-2522.
    Court of Appeals of Minnesota.
    Oct. 3, 2006.

      James J. Street, Southern Minnesota Regional Legal Services, Inc., Saint Paul, MN, for respondent.
    James S. Silen, Isanti, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge; WILLIS, Judge; and WRIGHT, Judge.
   OPINION

WILLIS, Judge.

This is an appeal from the issuance of a subsequent order for protection. Appellant argues that the district court abused its discretion by making inadequate findings and by misapplying the Domestic Abuse Act, Minn.Stat. § 518B.01 (2004). Appellant also argues that the order for protection prejudices him in the parties’ dissolution proceeding and is against public policy. Because we find no abuse of discretion, we affirm.

FACTS

Appellant Kevin Braend and respondent Rocelyn Braend married in February 1998 and have two children together. It appears from the record available to us that respondent brought an action for legal separation, and appellant petitioned for dissolution. In September 2005, at a hearing for temporary relief in one of those proceedings, a referee granted respondent temporary sole legal and physical custody of the parties’ children. Over the three days following the hearing, appellant repeatedly called respondent and left ten voicemail messages on her cellular telephone.

Respondent filed a petition for an order for protection (OFP) against appellant in the Ramsey County District Court. Because respondent had previously obtained OFPs against appellant, the district court issued a two-year subsequent OFP under Minn.Stat. § 618B.01, subd. 6a(2), (3) (2004). This appeal follows.

ISSUE

Did the district court abuse its discretion by issuing a two-year subsequent order for protection under Minn.Stat. § 518B.01, subd. 6a(2), (3) (2004), without specific duration-related findings to support the order?

ANALYSIS

Appellant challenges the district court’s decision to grant respondent’s petition for an OFP. The decision to grant an OFP under the Minnesota Domestic Abuse Act, Minn.Stat. § 518B.01 (2004), is within the district court’s discretion, Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn.App.2005), so we will not reverse absent an abuse of that discretion. A district court abuses its discretion if its findings are unsupported by the record or if it misapplies the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985). We review the record in the light most favorable to the district court’s findings, and we will reverse those findings only if we are “left with the definite and firm conviction that a mistake has been made.” Chosa, 693 N.W.2d at 489. We review de novo the district court’s construction and application of a statute. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

Appellant first argues that the district court erroneously issued a subsequent OFP without finding that appellant had violated a prior or existing OFP. A district court “may extend the relief granted in an existing order for protection or, if a petitioner’s order for protection is no longer in effect when an application for subsequent relief is made, grant a new order” upon a demonstration that

(1) the respondent has violated a prior or existing order for protection;
(2) the petitioner is reasonably in fear of physical harm from the respondent;
(3) the respondent has engaged in acts of harassment or stalking within the meaning of section 609.749, subdivision 2; or
(4) the respondent is incarcerated and about to be released, or has recently been released from incarceration.

Minn.Stat. § 518B.01, subd. 6a. The plain language of the statute requires a showing of only one of these four alternatives. The district court found that two exist here: respondent was reasonably in fear of physical harm from appellant, and appellant made “repeated and intrusive telephone calls.” Section 609.749 provides that making repeated telephone calls is an act of harassment. Minn.Stat. § 609.749, subd. 2(4) (2004). The record supports the district court’s findings.

Appellant next argues that the district court committed “reversible error” by issuing the subsequent OFP without a showing of “present harm or intent to do present harm.” Appellant’s argument is based on the standard required to issue an initial OFP under section 518B.01. A petitioner need not “show that physical harm is imminent to obtain an extension or a subsequent order.” Minn.Stat. § 518B.01, subd. 6a. It is enough that “the petitioner is reasonably in fear of physical harm from the respondent.” Id., subd. 6a(2). And harassment, as defined by section 609.749, requires no showing of specific intent. Minn.Stat. § 609.749, subd. la (2004).

Appellant also challenges the district court’s finding that respondent was “reasonably in fear of physical harm from the [appellant].” Appellant argues that the district court “committed a reversible error” by considering respondent’s subjective fear rather than applying an objective, reasonable-person standard. But the district court found that appellant’s repeated telephone calls, when considered in light of the circumstances supporting the previous OFPs, were sufficient to cause respondent to be reasonably in fear of physical harm from appellant, which is the finding required by section 518B.01, subdivision 6a(2). The district court observed that there is a finding in one of the previous OFPs issued against appellant that “[a]cts of domestic abuse have occurred, including the following: [appellant] hit and punched and choked [respondent] while their child ... was in [respondent’s] arms. [Their child] was struck by [appellant].” In light of facts supporting respondent’s previous OFPs against appellant, we conclude that the district court’s finding that appellant’s repeated telephone calls caused respondent to be reasonably in fear of physical harm from appellant is supported by the record.

Appellant also argues that the district court abused its discretion by adding, sua sponte, the parties’ children to the subsequent OFP. Respondent petitioned for an OFP on her own behalf, but the district court modified the caption on the subsequent OFP to add the parties’ two children. The district court may issue an OFP that “restrain[s] the abusing party from committing acts of domestic abuse.” Minn.Stat. § 518B.01, subd. 7(1). And domestic abuse is defined as abuse “against a family or household member by a family or household member”; “family or household members” expressly includes children. Minn.Stat. § 518B.01, subd. 2(a), (b)(2). Appellant provides no legal authority to support his argument that the district court abused its discretion by adding the children to the OFP. Because the record shows that appellant’s past abusive behavior has been directed at his children as well as respondent and that respondent was concerned for the children’s present safety, we conclude that the district court did not abuse its discretion by adding the parties’ children to the subsequent OFP.

Appellant claims that the record does not support the district court’s decision to issue a subsequent OFP for a fixed period of two years. The district court based the term of the subsequent OFP on appellant’s “continuing acts of abuse and intimidation” and on the fact that the respondent has had several previous OFPs against appellant. The Domestic Abuse Act provides that “[a]ny relief granted by the order for protection shall be for a fixed period not to exceed one year, except when the court determines a longer fixed period is appropriate.” Minn.Stat. § 518B.01, subd. 6(b). Nothing in the statute suggests that the district court must make specific duration-related findings when determining that an OFP with a fixed period of more than one year is appropriate. This court “cannot supply what the legislature purposely omits or inadvertently overlooks.” Ullom v. Indep. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994) (quotation omitted). Here, the legislature did not require a district court to make duration-related findings to issue an OFP for a fixed period of more than one year, and we cannot read that requirement into the statute. We conclude that the district court did not abuse its discretion by issuing the subsequent OFP for a fixed period of two years.

Appellant also argues that the district court erred when it did not apply dictum from Chosa, 693 N.W.2d at 490, in which this court stated, “Past abusive behavior is a factor in determining cause for protection, though not dispositive.” The language to which appellant refers appears in the Chosa court’s analysis of whether the record in that case supported the district court’s finding of domestic abuse under section 518B.01. Id. This court determined that past incidents of abuse are not dispos-itive when determining intent to do physical harm. Id. The issue here is whether respondent had a reasonable fear of physical harm, not whether appellant intended to inflict or actually inflicted physical harm. Therefore, Chosa is inapposite.

Appellant argues finally that the subsequent OFP will prejudice him in the parties’ dissolution proceedings and that the subsequent OFP is against public policy. Appellant’s argument suggests that the pendency of a dissolution proceeding should preclude the issuance of an OFP. But the Domestic Abuse Act specifically provides, “A petition for relief may be granted, regardless of whether there is a pending action between the parties.” Minn.Stat. § 518B.01, subd. 4(d). Because appellant cites no authority for his public-policy argument, it is waived. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (“An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”).

DECISION

Because (1) a subsequent OFP can be issued without a finding that appellant violated a prior or existing OFP; (2) a showing of “present harm or intent to do present harm” is not required to support a subsequent OFP; (3) appellant’s conduct caused respondent to be reasonably in fear of physical harm; (4) specific duration-related findings of fact are not required to support an OFP with a fixed period of more than one year; and (5) the district court did not abuse its discretion by adding the parties’ children to the OFP, we affirm.

Affirmed.