author: SANDSTROM, Justice.

text:
    2003 ND 175
    Melissa Ann HANSON, Plaintiff and Appellant, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.
    No. 20030136.
    Supreme Court of North Dakota.
    Nov. 17, 2003.

      Michael R. Hoffman, Bismarck, ND, for plaintiff and appellant.
    Andrew Moraghan, Assistant Attorney General, Office of the Attorney General, Bismarck, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Melissa Hanson is appealing a South Central Judicial District Court judgment affirming an administrative suspension of her driving privileges for driving under the influence of alcohol. Hanson argues that reasonable, articulable suspicion did not exist for an investigative stop of her vehicle. Because the evidence supports the hearing officer’s conclusion that the arresting officer had reasonable and articulable suspicion to stop Hanson’s vehicle, we affirm.

I

[¶ 2] On December 29, 2002, at approximately 12:00 a.m., Officer Norman Ruud stopped Hanson while she was driving on 1-94. After Hanson failed the horizontal gaze nystagmus test, the ABC test, and the Breathalyzer test, Ruud arrested her for driving under the influence of alcohol. Hanson agreed to submit to a blood test, which indicated her blood alcohol concentration had been .12 percent by weight within two hours after Ruud stopped her vehicle. Hanson was notified of the Department of Transportation’s intent to suspend her driving privileges.

[¶ 3] An administrative hearing was held on February 4, 2003. The officer testified that he was traveling eastbound on 1-94 and observed Hanson’s vehicle weaving on the roadway. Ruud estimated the vehicle was about a quarter of a mile ahead. He testified that he then increased his speed to observe Hanson more closely and saw the vehicle cross over the broken white dividing line. He activated his video camera in the patrol car and observed the vehicle cross over the line a second time before it pulled onto the off-ramp at exit 159. Ruud activated his lights as Hanson was exiting the interstate. Ruud approached the vehicle and smelled the odor of alcohol coming from inside.

[¶ 4] The hearing officer concluded that although slight weaving would not have been enough to have stopped Hanson’s vehicle, the evidence showed the weaving was more than slight and therefore Ruud had a sufficient basis for stopping it. She concluded Hanson’s vehicle was weaving not only within its lane, but also onto the dividing line. The hearing officer also concluded Ruud had reasonable grounds to believe Hanson had been driving under the influence of alcohol in violation of N.D.C.C. § 39-08-01. The hearing officer suspended Hanson’s driving privileges for one year.

[¶ 5] Hanson appealed the administrative decision to the district court. The district court issued its memorandum opinion and order on April 16, 2003, affirming the administrative decision. The judgment was entered on April 28, 2003.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 7] “We review an administrative suspension of a driver’s license under N.D.C.C. ch. 28-32, the Administrative Agencies Practice Act.” Isaak v. Sprynczynatyk, 2002 ND 64, ¶ 10, 642 N.W.2d 860. “This Court exercises a limited review in appeals involving drivers’ license suspensions or revocations.” Henderson v. Director, N.D. Dep’t of Transp., 2002 ND 44, ¶ 6, 640 N.W.2d 714. On appeal, we review the administrative agency’s decision. Rist v. N.D. Dep’t of Transp., 2003 ND 113, ¶ 6, 665 N.W.2d 45. We give deference to the administrative agency’s findings and will not make independent findings or substitute our judgment for that of the agency. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161. We instead determine only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. Id. Our review also “ ‘defers to the hearing officer’s opportunity to hear the witnesses’ testimony and to judge their credibility.’ ” Henderson, 2002 ND 44, ¶ 6, 640 N.W.2d 714 (quoting Houn v. N.D. Dep’t of Transp., 2000 ND 131, ¶ 6, 613 N.W.2d 29). The conclusion of whether the facts support a reasonable and articulable suspicion, however, is a question of law, fully reviewable on appeal. Salter v. N.D. Dep’t of Transp., 505 N.W.2d 111, 112 (N.D.1993). “Although our review is limited to the record before the administrative agency, ‘the district court’s analysis is entitled to respect if its reasoning is sound.’ ” Id. (quoting Obrigewitch v. Director, N.D. Dep’t of Transp., 2002 ND 177, ¶ 7, 653 N.W.2d 73). We affirm the agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

Ill

[¶ 8] Hanson argues Ruud did not have reasonable, articulable suspicion for an investigative stop of her vehicle.

A

[¶ 9] Hanson argues the hearing officer’s finding that Ruud observed her vehicle weaving within its lane was not supported by a preponderance of the evidence, because the officer did not testify that he observed weaving within the lane but rather that the vehicle appeared to be weaving. Hanson also argues the hearing officer’s finding that the weaving was more than slight, because her vehicle was weaving not only within its lane but also onto the lane-dividing line, was not sustained by the findings of fact for the same reason. Hanson argues that Ruud’s vehicle was a substantial distance behind hers when he noticed her vehicle weaving and that Ruud needed to catch up to her vehicle.

[¶ 10] Although Ruud did not testify that the weaving he observed was limited to weaving within the lane, he did testify that Hanson’s vehicle appeared to be weaving on the roadway. Although Ruud testified that he sped up to get closer, he was only a quarter of a mile away and observed weaving twice after getting closer to Hanson’s vehicle. This testimony supports the evidence that Hanson was weaving, and was weaving onto the dividing line, and there was no evidence presented to refute this. Whether the weaving was initially within the lane is of little consequence to the outcome. We affirm, concluding the evidence supports the hearing officer’s finding that Hanson’s vehicle was weaving and that the weaving was more than slight because her vehicle also was weaving onto the lane-dividing line.

B

[¶ 11] Hanson further argues that under the circumstances, weaving twice onto the lane-dividing line does not constitute more than just slight weaving. She claims that because there was no evidence of erratic movement or sharp veering, the weaving was slight or minimal and thus was insufficient to stop her vehicle. Hanson cites Salter v. N.D. Dep’t of Transp. for this proposition. 505 N.W.2d 111, 113 (N.D.1993).

[¶ 12] In Salter, this Court held that slight weaving would not serve as a valid basis for a vehicle stop. Id. In Salter, however, the officer continually characterized the movement of the vehicle as having been slight and minimum, and the officer did not consider the movement significant enough to include in his report. Id. Hanson’s situation is different in that Ruud did not classify the weaving as slight or minimum and did include the weaving in his report. We are not persuaded by this argument and conclude that the finding of fact on this issue supports the hearing officer’s conclusion.

C

[¶ 13] Hanson also argues that there were no traffic violations or other driving facts raising the level of this case to a reasonable and articulable suspicion of driving under the influence and that the hearing officer did not conclude she was engaged in criminal activity.

[¶ 14] “To stop a moving vehicle for investigative purposes, an officer must have a reasonable and articulable suspicion that a law has been or is being violated.” State v. Corum, 2003 ND 89, ¶ 10, 663 N.W.2d 151. Reasonable suspicion requires more than a “mere hunch.” Id. In determining whether an investigative stop is valid, an objective standard is used. Id. (citing City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466). This standard considers the inferences and deductions that an investigating officer would make. State v. Fields, 2003 ND 81, ¶ 13, 662 N.W.2d 242. We also consider the totality of the circumstances when deciding whether reasonable suspicion exists. Id.‘The question is whether a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity.’ ” Id. (quoting State v. Kenner, 1997 ND 1, ¶ 8, 559 N.W.2d 538 (citation omitted)).

[¶ 15] “It is well settled, traffic violations, even if considered common or minor, constitute prohibited conduct which provide officers with requisite suspicion for conducting investigatory stops.” Zimmerman v. N.D. Dep’t of Transp. Director, 543 N.W.2d 479, 482 (N.D.1996). The reasonable suspicion standard, however, “does not require an officer to see a motorist violating a traffic law or to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation.” Kappel v. Director, Dep’t of Transp., 1999 ND 213, ¶ 10, 602 N.W.2d 718. There can be circumstances in which lawful conduct might justify the suspicion that criminal activity is afoot. Id. (citing United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citation omitted)). Law enforcement officers are permitted to formulate certain common-sense conclusions about human behavior. Id. (citing United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). In a prior decision, this Court held that a vehicle’s weaving within its own lane may be enough to justify the stop of that vehicle. State v. Dorendorf 359 N.W.2d 115, 117 (N.D.1984).

[¶ 16] Ruud observed Hanson’s vehicle weaving on the roadway and observed her cross onto the dividing line twice. Even if these circumstances do not amount to any traffic violations, Ruud made a commonsense conclusion that Hanson was impaired, sufficiently justifying his suspicion that criminal activity was afoot.

[¶ 17] Considering the totality of the circumstances and considering the deductions and inferences a trained officer would make, we conclude that Ruud had the reasonable and articulable suspicion necessary to stop Hanson’s vehicle.

IV

[¶ 18] We affirm the district court judgment suspending Hanson’s license.

[¶ 19] GERALD W. VANDE WALLE, C.J., EVERETT NELS OLSON, S.J., CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.

[¶ 20] The Honorable EVERETT NELS OLSON, Surrogate Judge, sitting in place of NEUMANN, J., disqualified.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2003 ND 177
    Rosella ELSHAUG, Claimant and Appellee, v. WORKFORCE SAFETY AND INSURANCE, Appellant, and Ashley Medical Center, Respondent.
    No. 20030100.
    Supreme Court of North Dakota.
    Nov. 18, 2003.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, for claimant and appellee.
    Leo F.J. Wilking, Special Assistant Attorney General, Fargo, for appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Workforce Safety and Insurance (“WSI”) appealed from a district court judgment ordering it to provide benefits to Rosella Elshaug. We conclude the agency properly denied Elshaug further benefits, and we reverse and remand for entry of a judgment affirming WSI’s orders.

I

[¶ 2] On July 14, 1994, Elshaug filed a claim alleging an injury on May 12, 1994, when she had a physical reaction to chemicals mixed by a coworker in the Ashley Medical Center laundry room. WSI awarded benefits because Elshaug “sustained an injury by accident arising out of and in the course of employment.” On November 7, 1996, Elshaug filed a claim for a reaction to chemicals at work on November 4, 1996. WSI awarded benefits for that incident.

[¶ 3] On June 25, 1997, WSI issued an order denying further benefits after April 15,1997, finding:

V.
After the claimant returned to work, she continued to complain of headaches and a multitude of symptoms which she believes are related to the work injury of November 4,1996.
X.
The greater weight of the evidence indicates that the claimant has fully recovered from her exposure injury of November 4, 1996, and is therefore, no longer entitled to benefits in connection with that injury.”

Elshaug requested reconsideration and a formal hearing. On December 8, 1997, Elshaug filed a notice of reapplication. On January 28, 1998, WSI issued an order denying Elshaug’s reapplication, finding:

V.
The claimant filed a written reapplication for benefits on December 8, 1997, indicating that her condition worsened as of November 22, 1997, due to repeated exposures while on the job on August 19, 20, and 21, 1997. The claimant stated that she has severe stomach and chest pain, swelling in the throat, inability to breathe, flu symptoms, and severe headache. The claimant further stated that Dr. Jacqueline Krohn advised her not to work.
IX.
The Bureau requested that Dr. Mendoza review the report from Dr. Krohn and he stated that he does not believe in chemical sensitivities as described by Dr. Krohn and that this is well stated in the literature, especially the immunological literature to that effect. Dr. Mendoza further stated that in his opinion, Dr. Krohn’s evaluation should not be of value in view of the fact that he does not consider this disease a real entity.
XI.
The Bureau finds that the claimant has not established that she is entitled to additional benefits in connection with the reapplication dated December 8, 1997.

WSI ordered payment of medical expenses related to the November 4, 1996, injury and denied any disability benefits beyond those already awarded.

[¶ 4] On February 26, 1998, Elshaug requested reconsideration and a formal hearing. An administrative law judge (“ALJ”) conducted a hearing on June 11, 1998. He stated Elshaug’s contention:

Elshaug disputes the Bureau’s determinations, contending that her present medical condition, perhaps best described as “multiple chemical sensitivities” or “MCS,” is the result of exposure to chemicals ... in the course of her employment in the laundry at Ashley Medical Center on May 12, 1994, and November 4,1996, as the result of which she continues to experience symptoms, and that the condition worsened as a result of other and further exposures to chemicals in the course of her employment on various occasions after May 12, 1994, until she discontinued working at Ashley Medical Center on November 22, 1997.

The ALJ concluded, among other things:

3. There is little reason to doubt that Elshaug reacts adversely to the odors and fumes of laundry cleaning agents and other chemical compounds. But the question is not whether she has an adverse reaction to various odors and fumes of laundry cleaning agents, and certainly not whether that was her first experience with the reaction, but whether she has developed, as a disease fairly traceable to her employment, a “chemical sensitivity,” a disease which may be fairly described as chemical sensitivity or MCS, as a “compensable injury” within the meaning of 65-01-02(9) (1993), and whether there has been a worsening of that disease after June 25, 1997, such as to constitute a significant change in her medical condition within the purpose and intent of 65-05-08(1) (1997).

In his August 5, 1998, recommended findings of fact, conclusions of law, and order, the ALJ recommended WSI’s June 25, 1997, order denying further benefits and its January 28, 1998, order denying reapplication be affirmed. WSI adopted the ALJ’s recommended findings of fact, conclusions of law, and order as its order on August 21,1998.

[¶ 5] Elshaug petitioned for reconsideration on September 16, 1998. Elshaug appealed WSI’s August 21, 1998, order to the district court on October 15, 1998. WSI denied Elshaug’s September 16, 1998, petition for consideration on October 16, 1998. The district court order entered on July 27, 1999, reversed WSI’s orders of August 21, 1998, and October 16, 1998 and ordered WSI to provide Elshaug “with the benefits to which she is entitled.” WSI appealed on September 21,1999.

[¶ 6] This Court concluded “there were improper ex parte contacts between the Bureau’s outside counsel and the Bureau under N.D.C.C. § 28-32-12.1.” Elshaug v. N.D. Workers Comp. Bureau, 2000 ND 42, ¶1, 607 N.W.2d 568. We affirmed the district court’s reversal of WSI’s denial of Elshaug’s petition for reconsideration, reversed that part of the district court’s judgment directing WSI to award benefits, and remanded with directions to grant El-shaug’s petition for reconsideration and rehearing. Id. at ¶ 11.

[¶ 7] After a hearing and the reception of additional evidence, the ALJ issued recommended findings of fact, conclusions of law, and order on September 19, 2001. In discussing the rationale for his decision, the ALJ stated:

[T]he threshold question must be whether MCS is a disease (for which workers’ compensation benefits must be provided if the medical evidence, supported by objective medical findings, establishes that it is a compensable injury within the meaning of the statute) or a mental disorder (a “mental injury” for which workers’ compensation benefits are not provided).
In response to the mandate of the supreme court, Elshaug obtained additional medical evidence from Dr. Singer and returned to Dr. Krohn for additional information and her further advice and opinions.... But the Bureau also offers additional medical evidence by an expert witness, Dr. McCrary, which countervails ... the information, advice and opinions offered by Dr. Krohn.... Dr. Krohn has concluded that MCS is a disease, and provides treatment accordingly to persons having the symptoms which have been identified as indicative of the disease. Dr. Krohn’s findings, advice and opinion are grounded upon the premise that MCS is a disease. Conversely, Dr. McCrary has concluded that MCS is not a disease, and his advice and opinion are based on that conclusion. Therefore, a decision whether to accept the testimony of Dr. Krohn or Dr. McCrary for the determination of this matter first requires a decision whether MCS is a disease.
In my judgment, there is not enough evidence of record to determine whether or not MCS is a disease.... But neither do I find the contentions of Dr. Mendoza and Dr. McCrary sufficiently persuasive to convince me that Elshaug’s medical condition is psychosomatic as a specific mental disorder.....
While I appreciate the extraordinarily heavy burden of proving a proposition which is so controversial that professional associations do not agree, it is nonetheless Elshaug’s burden in this case. Failing to carry that burden, Elshaug has not established her entitlement to workers’ compensation benefits for her medical condition.

The ALJ concluded:

7. Whatever the nature of Elshaug’s medical condition, she has failed to establish by a preponderance of the evidence that her medical condition is a disease that can be fairly traceable to her employment as a compensable injury within the meaning of N.D.C.C. § 65-01-02(9) (1995) for which she is entitled to workers’ compensation benefits.

The ALJ recommended an order affirming WSI’s June 25,1997, and January 28,1998, orders denying further benefits. With the exception of one sentence in a finding of fact, WSI adopted the ALJ’s recommended findings, conclusions, and order, on November 16, 2001.

[¶ 8] By letter of December 12, 2001, Elshaug sought reconsideration. On January 9, 2002, WSI remanded the matter to the ALJ to consider additional information. On May 3, 2002, the ALJ recommended an order affirming WSI’s November 16, 2001, final order. WSI adopted the ALJ’s recommended order as its final order on June 28, 2002.

[¶ 9] Elshaug appealed to the district court. The district court found “Elshaug continues to suffer from a chemical exposure at the laundry which has sensitized her to numerous other chemicals in her environment and leaves her unable to perform her job because of a work related condition.” The district court judgment entered on January 28, 2003, ordered WSI to recognize the compensability of El-shaug’s medical condition, accept her reapplication for disability benefits, and provide appropriate benefits.

II

[¶ 10] Section 65-01-02(9), N.D.C.C., in effect when Elshaug’s claims arose, defined a compensable injury, in part, as “an injury by accident arising out of and in the course of employment which must be established by medical evidence supported by objective medical findings,” including “(a]ny disease that can be fairly traceable to the employment.”

[¶ 11] A claimant has the burden of proving a right to receive workers compensation benefits or to continued benefits if they are terminated after liability for a claim has been accepted. Unser v. N.D. Workers Comp. Bureau, 1999 ND 129, ¶ 22, 598 N.W.2d 89. A claimant must establish by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to a work injury. Rush v. N.D. Workers Comp. Bureau, 2002 ND 129, ¶ 6, 649 N.W.2d 207. Confronted with a classic “battle of the experts,” a factfinder may rely upon either party’s expert witness. Byron v. Gerring Indus., Inc., 328 N.W.2d 819, 822 (N.D.1982). We have said, however, that “[t]hough the Bureau may resolve conflicts between medical opinions, the authority to reject medical evidence selectively does not permit the Bureau to pick and choose in an unreasoned manner.” Negaard-Cooley v. N.D. Workers Comp. Bureau, 2000 ND 122, ¶ 19, 611 N.W.2d 898.

[¶ 12] On appeal from a district court’s review of an administrative agency’s decision, we review the agency decision. The district court’s analysis is entitled to respect if its reasoning is sound, because the legislatively-mandated district court review cannot be ineffectual. Kraft v. State Bd. of Nursing, 2001 ND 131, ¶ 10, 631 N.W.2d 572. We exercise a limited review in appeals involving WSI decisions. Rush v. N.D. Workers Comp. Bureau, 2002 ND 129, ¶ 5, 649 N.W.2d 207. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

We exercise restraint in deciding whether an agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶9, 668 N.W.2d 290. “We decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record.” Id. “Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision.” Id.

[¶ 13] The opinions of El-shaug and her physicians are based on their view that multiple chemical sensitivity is a disease. The physicians’ opinions upon which WSI relies are based on their view that multiple chemical sensitivity is not a disease. Elshaug’s “claim involved a credibility choice between the expert medical opinions” of the physicians upon whom she relied and those of the physicians upon whom WSI relied. Otto v. N.D. Workers Comp. Bureau, 533 N.W.2d 703, 707 (N.D. 1995). “The bureau is responsible for weighing the credibility of medical evidence.” Id.

[¶ 14] In his September 19, 2001, recommended findings of fact, conclusions of law, and order, the ALJ found “I am not convinced that it is more likely than not that Elshaug’s medical condition, diagnosed as MCS, is a disease.” The ALJ found “there is not enough evidence of record to determine whether or not MCS is a disease,” and concluded:

7. Whatever the nature of Elshaug’s medical condition, she has failed to establish by a preponderance of the evidence that her medical condition is a disease that can be fairly traceable to her employment as a compensable injury within the meaning of N.D.C.C. § 65-01-02(9) (1995) for which she is entitled to workers’ compensation benefits.

[¶ 15] The ALJ and WSI found there was not enough evidence to determine if MCS is a disease. We have some concern about WSI’s position before the ALJ that the claim should be denied in reliance on one expert witness who “does not consider this disease a real entity.” But on this appeal, we need not resolve whether MCS is a disease, because, on this record, we conclude a reasoning mind could reasonably find, as WSI also did, that, whatever the nature of her medical condition, El-shaug failed to prove it is fairly traceable to her employment. Here, as in Halseth v. N.D. Workers Comp. Bureau, 514 N.W.2d 371, 374 (N.D.1994), “[t]he Bureau explained its reasons for relying on medical evidence supporting a denial of benefits and for not relying on the evidence supporting” Elshaug’s claim. “We believe the Bureau fairly and reasonably construed the evidence in the record to reach a conclusion which we may not overturn under our standard of review.” Id.

HI

[¶ 16] The district court judgment is reversed and the matter is remanded for entry of a judgment affirming WSI’s orders of June 28, 2002, and November 16, 2001, affirming its earlier orders denying further benefits.

[¶ 17] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ. and JAMES M. BEKKEN, District Judge, concur.

[¶ 18] The Honorable JAMES M. BEKKEN, District Judge, sitting in place of KAPSNER, J., disqualified.

      . PDR Medical Dictionary, p. 1619 (2d ed.2000) defines multiple chemical sensitivity:
      a symptom array of variable presentation attributed to recurrent exposure to known environmental chemicals at dosages generally below levels established as harmful; complaints involve multiple organ systems. SYN environmental illness.

        See also 3B Lawyers' Medical Cyclopedia, § 24.70a (5th ed.2003), describing symptoms:
      Multiple chemical sensitivity syndrome (MCS) is thought to be an acquired disorder characterized by recurrent symptoms that may include fatigue, respiratory problems, memory loss, difficulty in concentrating, dizziness, gastrointestinal complaints, depression, headaches, muscle aches, chest pain, nausea and irritability. The symptoms usually appear after exposure to environmental chemicals, including pesticides, solvents, combustion products, indoor air pollutants, drugs, or anesthetics.
      The array of literature cited by the experts in this case reveals there is a significant controversy among physicians about whether MCS is a valid medical diagnosis.


text:
    2003 ND 182
    In the Interest of L.D. Beverly Martell, Petitioner and Appellee, v. L.D., Respondent and Appellant.
    No. 20030305.
    Supreme Court of North Dakota.
    Dec. 2, 2003.

      Julie A. Lawyer, Assistant State’s Attorney, Bismarck, ND, for petitioner and ap-pellee.
    Gregory I. Runge, Bismarck, ND, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] L.D. appealed a district court order requiring him to undergo treatment for chemical dependence. We affirm.

I

[¶ 2] L.D.’s mother (“Petitioner”) petitioned the district court to have L.D. involuntarily treated because he was chemically dependent and posed a serious risk of harm to himself. The petition stated L.D. had previously been in treatment for alcohol abuse, had been drinking daily to intoxication, and had not been taking his medication for diabetes and Wernicke’s Syndrome. Petitioner was worried L.D. would “die or go into a diabetic coma” without treatment.

[¶ 3] On October 8, 2003, an emergency treatment order was issued requiring L.D. to be detained at St. Alexius Medical Center until his treatment hearing on October 14, 2003. When L.D. was admitted to St. Alexius, he had a blood alcohol level of .430 and his blood tested positive for cannabis. Sheri Knutson, a licensed addiction counselor, examined L.D. at St. Alexius. She interviewed L.D., and he admitted to a binge drinking problem — consuming eighteen beers over a three-day period — but Ms. Knutson determined he minimized or withheld information concerning his alcohol use.

[¶ 4] At the treatment hearing, Ms. Knutson was the only witness. Based on L.D.’s own statements and collateral sources, she recommended L.D. undergo inpatient treatment at the West Central Human Service Center (“WCHSC”). She based her conclusion on L.D.’s history of alcohol abuse and its effect on his physical ailments. The district court found L.D. was chemically dependent and there was a substantial likelihood of substantial deterioration in his physical health if he did not undergo treatment. The court ordered L.D. to undergo treatment at WCHSC for a period not to exceed ninety days.

II

[¶ 5] Appellate review of an involuntary treatment order is governed by N.D.C.C. § 25-03.1-29 and is “limited to a review of the procedures, findings, and conclusions of the lower court.” In Interest of R.N., 1997 ND 246, ¶9, 572 N.W.2d 820. A petition for involuntary treatment must be supported by clear and convincing evidence. N.D.C.C. § 25-03.1-19. Whether clear and convincing evidence was presented in support of the petition is a question of fact and will not be reversed unless it is clearly erroneous. R.N., at ¶ 9. “We will affirm an order for involuntary treatment unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence.” Id.

Whether a person requires treatment needs a two-step analysis. First, the court must find the person is mentally ill [or chemically dependent], and second, the court must find there is a reasonable expectation that, if the person is not hospitalized, there exists a serious risk of harm to himself, others, or property.

R.N., at ¶ 11. It is not enough that a person would benefit from treatment, the person must require treatment. See In Interest of M.B., 467 N.W.2d 902, 904 (N.D.1991).

[¶ 6] Chapter 25-03.1, N.D.C.C., governs commitment procedures for mental illness or chemical dependence, N.D.C.C. § 25-03.1-01(1), and case law relating to commitment of a person with a mental illness is relevant in cases involving commitment of a person for chemical dependence. Section 25-03.1-02(12), N.D.C.C., defines a “person requiring treatment” as

a person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. “Serious risk of harm” means a substantial likelihood of:
c. Substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care....

Ill

[¶ 7] As a preliminary matter, L.D. urges this Court to consider whether the district court’s finding that he required treatment should be fully reviewable on appeal as a matter of law. We have previously addressed this issue. “[I]t is established that a majority of our court has held that the trial court’s determination of clear and convincing evidence that the respondent is a person requiring treatment is a finding of fact subject to a more probing ‘clearly erroneous’ standard of review by this court.” In Interest of K.J.L., 541 N.W.2d 698, 700 (N.D.1996) (citing In Interest of J.S., 530 N.W.2d 331, 333 (N.D. 1995)). “Our standard is well settled,” R.N., 1997 ND 246, ¶ 9, 572 N.W.2d 820, and we see no reason to depart from it in the present case.

IV

[¶ 8] L.D. argues the district court’s order should be reversed because Petitioner did not testify at the treatment hearing. He claims Ms. Knutson’s testimony was based on information that never would have been obtained had there not been a petition filed. Therefore, L.D. claims her testimony was equivalent to “fruit of the poisonous tree” because there was no testimony establishing a foundation for the petition.

[¶ 9] “At the hearing, evidence in support of the petition must be presented by the state’s attorney, private counsel, or counsel designated by the court.” N.D.C.C. § 25-03.1-19. This does not require the petitioner to testify, but merely requires evidence to be presented in support of the petition. As long as the evidence presented at a treatment hearing supports the underlying allegations of the petition, the petitioner does not have to be present to testify regarding all the allegations in the petition. The North Dakota Rules of Evidence govern all relevant and material evidence received by the court in an involuntary treatment hearing. N.D.C.C. § 25-03.1-19.

[¶ 10] In this case, the underlying allegations in the petition were that L.D. was chemically dependent and posed a substantial risk of physical danger to himself. Ms. Knutson’s testimony supported these allegations. She testified L.D. was admitted to St. Alexius with a blood alcohol level of .430. Her report indicated L.D.’s medical history included “Depression; Wer-nicke’s Encephalopy secondary to chronic alcohol use; Cirrhosis; Peptic Ulcer Disease; Alcohol Abuse/Dependence; Diabetes Mellitus-Type II; GI Bleeding (1996); Psoriasis; and questionable history of Hepatitis C.” She testified L.D.’s drinking affects his ability to ambulate, and in combination with Wernicke’s Syndrome, this increases his risk of injury. She further testified L.D. has diabetes which is left untreated when he drinks, and his drinking causes his liver condition to get worse. According to Ms. Knutson, this could lead to a substantial deterioration of L.D.’s health.

[¶ 11] L.D. claims this information is hearsay and should not have been admitted into evidence because it would not have been obtained but for the petition. He relies on In Interest of D.H., 507 N.W.2d 814 (N.D.1993) and R.N., 1997 ND 246, 572 N.W.2d 820. D.H. involved an appeal from an order for involuntary commitment of D.H. for a mental illness. 507 N.W.2d at 314. The only witness at the treatment hearing, D.H.’s psychiatrist, testified D.H. had schizophrenia and was a person requiring treatment. Id. at 315. We observed there was sufficient evidence D.H. was mentally ill, but concluded there was not sufficient evidence he required treatment because the psychiatrist only knew of D.H.’s dangerous activities through statements in the petition that were hearsay. Id. at 315-16. The petition alleged D.H. was a danger to himself because he had been walking down the middle of the street, jumping out in front of cars, and stated he would open himself up with a knife. This Court held,

In the absence of evidence that the underlying allegations are true, the basis for [the psychiatrist’s] opinion is weak, if not nonexistent, rather than clear and convincing. That [the psychiatrist] assumes the allegations to be true is not sufficient. The commitment petition does not serve as proof that D.H. must be committed.

Id. at 316 (footnotes omitted).

[¶ 12] In R.N., this Court reviewed the testimony of a doctor, who was the only witness at the hearing, when evaluating whether there was clear and convincing evidence of a substantial likelihood R.N.’s health would substantially deteriorate if she was not hospitalized. 1997 ND 246, ¶ 13, 572 N.W.2d 820. We concluded the doctor based his testimony on the assumption all the allegations in the petition were true and held “[u]nder the North Dakota Rules of Evidence ... a doctor may consider [allegations in a petition] when forming an expert opinion. N.D.R.Ev. 703. However, ‘[t]he commitment petition does not serve as proof that [the respondent] must be committed.’ Instead, the allegations must be proven by evidence.” Id. (quoting D.H., 507 N.W.2d at 316).

[¶ 13] The present case is distinguishable from D.H. and R.N. In those cases, the allegations in the petition were necessary to establish D.H. and R.N. were persons requiring treatment. Here, Ms. Knutson determined L.D. was chemically dependent and required treatment from information she gleaned from his medical records and his own statements. Her testimony was not based solely upon the allegations in the petition, rather she confirmed the allegations through independent sources. The trial court properly relied on Ms. Knutson’s testimony regarding L.D.’s medical records and her assessment of L.D. It was not dearly erroneous for the trial court to find her testimony provided clear and convincing evidence to support the allegations in the petition as required under N.D.C.C. § 25-03.1-19.

[¶ 14] The order requiring L.D. to undergo treatment is affirmed.

[¶ 15] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE W SANDSTROM, JJ., concur.


author: NEUMANN, Justice.

text:
    2003 ND 188
    Ronald PAUL, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE, Appellee.
    No. 20030199.
    Supreme Court of North Dakota.
    Dec. 2, 2003.

      Steven L. Latham, Wheeler Wolf, Bismarck, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, for appellee.
   NEUMANN, Justice.

[¶ 1] Ronald Paul appealed from a district court judgment, entered upon remand by this Court, affirming orders of February 13, 2001 and August 7, 2001 by Workforce Safety and Insurance (“WSI”), approving a vocational rehabilitation plan for Paul and denying him further disability and vocational rehabilitation benefits. We hold WSI’s proceedings were in accordance with this Court’s directions in remanding the case, its findings of fact are supported by the evidence, and its decisions are in accordance with the law. We, therefore, affirm the district court judgment upholding both WSI orders.

I

[¶ 2] Many of the relevant facts are set forth by this Court in Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, 644 N.W.2d 884, and will be reiterated here only as necessary to an understanding of this appeal. In August 1985 Paul sustained a low back injury during the course of his employment as a construction worker. WSI accepted liability and paid disability benefits and medical expenses to him. He has not worked since his 1985 injury. Paul underwent a functional capacity evaluation which indicated his lifting capabilities were 17.5 pounds “rarely” and 12.5 pounds “occasionally.” The results of this evaluation indicated Paul was qualified for sedentary and light categories of work as defined by the United States Department of Labor’s Dictionary of Occupational Titles (“DOT”).

[¶ 3] Under N.D.C.C. § 65-05.1-01, WSI’s vocational rehabilitation consultant developed a rehabilitation plan for Paul to return to work in the Phoenix area, where he currently resides. The rehabilitation consultant concluded there were sufficient job opportunities in the Phoenix area as a sales attendant, service establishment counter attendant, and automobile rental clerk which satisfied Paul’s physical restrictions and the requirements of the statute. WSI accepted the rehabilitation consultant’s plan and issued an order on February 13, 2001, denying Paul further disability and vocational rehabilitation benefits. Paul requested and received a formal hearing before an administrative law judge (“ALJ”). After holding a formal rehearing, the ALJ found the job descriptions for sales attendant, service establishment counter attendant, and automobile rental clerk required a person to lift up to 20 pounds, which exceeded Paul’s lifting abilities. The ALJ stated that, because of the number of openings for those jobs in the Phoenix area and because the descriptions did not describe lifting as a principle or significant activity, it was presumed job opportunities existed for Paul and the burden was on him to show there were not. The ALJ concluded Paul had not met the necessary showing and, therefore, the rehabilitation plan was appropriate and Paul was not entitled to further disability benefits.

[¶4] In Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶¶ 11-12, 644 N.W.2d 884, this Court rejected the ALJ’s decision process:

The ALJ erroneously relied on a presumption there were sufficient job opportunities in the Phoenix area within Paul’s physical limitations, and erroneously shifted the burden of proof to Paul to show there were not job opportunities. The presumption and burden shifting are not in accordance with the law and adversely impacted the Bureau’s ultimate findings about the rehabilitation plan. The Bureau’s decision must be based on evidence presented at the hearing which establishes a rehabilitation plan that provides Paul with a reasonable opportunity for employment within his restrictions and without the aid of a presumption or shifting the burden of proof to Paul. We conclude the Bureau’s ultimate decision was affected by its erroneous reliance on the presumption that there were employment opportunities for Paul in the Phoenix area, and the shifting of the burden of proof to him to show there were not employment opportunities.
We reverse the judgment and remand for proceedings consistent with this opinion.

[¶ 5] In separate but related proceedings, Paul reapplied on January 2001 for disability benefits, explaining that he had experienced increased back and hip pain and was about to go undergo lumbar surgery. Dr. James H. Maxwell performed back surgery upon Paul on January 29, 2001 and as of that date WSI reinstated temporary total disability payments. Paul recuperated and Dr. Maxwell released him to full-time work at a light level. As of July 2, 2001, WSI discontinued disability benefits for Paul, and he submitted a request for reconsideration. On August 7, 2001 WSI issued an order denying further benefits, concluding that Paul had been medically released and returned to work at the same level as the job goals outlined in the initial rehabilitation plan which was affirmed by the February 13, 2001 order. Paul requested a formal hearing to contest the August 7, 2001 order.

[¶ 6] A hearing was held on October 10, 2002 at which the ALJ reconsidered the evidence relating to the initial order denying further disability benefits and also took additional evidence in considering the August 7, 2001 order denying Paul further disability benefits after they had been reinstated in January 2001. The ALJ decided the initial rehabilitation plan was appropriate because it offered Paul a reasonable opportunity to obtain substantial gainful employment. The ALJ also decided that, because Paul had recovered from his latest surgery to a level of functioning at least equivalent to his abilities when the initial order was entered, the rehabilitation plan remained appropriate for Paul. The ALJ recommended that the rehabilitation plan be approved and disability benefits be discontinued. WSI adopted the ALJ’s recommendations, Paul appealed to the district court, and that court, after hearing, upheld WSI’s orders denying benefits. Paul then appealed to this Court.

II

[¶ 7] On appeal Paul asserts WSI did not properly follow this Court’s instructions in Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶¶ 11-12, 644 N.W.2d 884. Paul argues this Court’s remand required WSI to invalidate the initial rehabilitation plan and develop a new one after holding a new evidentiary hearing to test the validity and appropriateness of the plan. The ALJ rejected Paul’s interpretation of this Court’s remand, stating:

[Paul’s] interpretation of this quoted language is that the Court implicitly found the vocational rehabilitation plan to be invalid because the ALJ was able to sustain its validity only by employing an impermissible “presumption” that there were sufficient job opportunities in the Phoenix area within Paul’s physical limitations. I am unable to agree with that interpretation.... I interpret the Court’s opinion as simply requiring a reassessment of the evidence without invoking the impermissible presumption, followed by such recommended findings of fact and conclusions of law as that evidence, free from such presumption and burden-shifting, should produce.

[¶ 8] WSI adopted the ALJ’s reasoning and we concur with it. In remanding the case, this Court stated in Paul, 2002 ND 96, ¶ 11, 644 N.W.2d 884 “the Bureau’s decision must be based on evidence presented at the hearing which establishes a rehabilitation plan that provides Paul with a reasonable opportunity for employment within his restrictions and without the aid of a presumption or shifting the burden of proof to Paul.” We did not specifically remand for an evidentiary hearing but, rather, remanded for further proceedings, wherein we directed WSI to make its decision based upon the evidence and not upon an erroneous presumption which would shift the burden for Paul to prove that appropriate jobs did not exist for him in the Phoenix area. We conclude the process used by WSI upon remand was appropriate and in accordance with our directions.

Ill

[¶ 9] The vocational rehabilitation legislation under N.D.C.C. § 65-05.1-01 was designed to return an injured employee to substantial gainful employment as quickly and with as little retraining as possible. Lueier v. N.D. Workers Comp. Bureau, 556 N.W.2d 56, 59 (N.D.1996). The critical factual issue in this case is whether the rehabilitation plan identified jobs within Paul’s physical limitations for lifting so as to provide Paul with a reasonable opportunity for employment. Following the October 10, 2002 hearing, the ALJ made extensive findings and conclusions on this issue:

Vocational consultant, Kelly Kraus testified at Mr. Paul’s January 3, 2001 hearing, consistent with her March 15, 2000 Vocational Consultant’s Report ... that in developing a vocational rehabilitation plan for Mr. Paul, she ultimately identified three occupations, sales attendant, service establishment counter attendant, and automobile rental clerk, that she determined to be performable by him, and which otherwise fulfilled the statutory criteria for “substantial gainful employment.”
Ms. Kraus ... wrote Dr. Shapiro on March 15, 2000, enclosing the pertinent DOT occupational description and occupation demands information and asked whether he approved Mr. Paul performing the occupations of sales clerk, counter attendant, and rental clerk.... Dr. Shapiro responded on March 27, 2000, checking “yes” for each occupation.
Ms. Kraus testified again at Mr. Paul’s October 10, 2002 hearing.... With regard to the occupation of sales attendant, she testified that she had called five retail businesses, and that four of the five indicated that they didn’t have a lifting requirement and that there was assistance available for employees who might have difficulty lifting, and that one business indicated that it did not provide accommodation for lifting and carrying.... With regard to the occupation of automobile rental clerk, she stated that she had called one business, and was told that lifting was basically paperwork and that they had assistance available.... With regard to the occupation of counter attendant, she testified that she had called three dry cleaners and was told that the job involves lifting between 10 and 40 pounds, that only on rare occasion is anything over 20 pounds lifted, and that there is assistance available from co-workers for lifting activities.
[Bjecause Dr. Maxwell’s opinion is that Mr. Paul is capable of returning to work with restrictions that are no greater than those established before his January 2001 back surgery, and there is no contrary medical evidence in the record, the greater weight of the evidence supports a finding that Mr. Paul’s functional capacity has not significantly changed since the August 1999 FCE, the existing vocational rehabilitation plan, as found in Ms. Kraus’s March 15, 2000 Vocational Consultant’s Report ... and approved by the Bureau, remains viable and appropriate for him.

The ALJ made the following specific findings and recommendations which were adojpted by WSI:

The greater weight of the evidence shows that most jobs in the occupations of sales attendant, service establishment counter attendant, and automobile rental clerk in the Phoenix, Arizona area would not entail lifting that exceeds Mr. Paul’s FCE lifting máximums, and that employers of persons in those occupations in the Phoenix, Arizona area regularly accommodate workers with lifting restrictions such as those of Mr. Paul.
The greater weight of the evidence shows that Mr. Paul’s physical capacity and work limitations since July 2, 2001 are essentially the same as they were at the time his vocational rehabilitation plan was developed, and, therefore, that plan, including the occupations identified for him, remains viable. Therefore, the Bureau’s August 7, 2001 “Order Denying Further Benefits,” finding that he was able to return to work at the same level as the job goals outlined in the Vocational Rehabilitation Report of March 15, 2000, and terminating Mr. Paul’s disability benefits after July 2, 2001, is found to be supported by a preponderance of the evidence on that issue.
The vocational plan developed for Mr. Paul met, and continues to meet, the goal of returning him to “substantial gainful employment” within the scope and intent of NDCC § 65-05.1-01(3).
The evidence shows, by a preponderance thereof, that the occupations identified in the vocational rehabilitation plan developed for Mr. Paul and approved by the Bureau, satisfied, and continue to satisfy, his physical limitations for lifting.

[¶ 10] Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

The district court concluded WSI’s findings were supported by a preponderance of the evidence and upheld the decision to terminate benefits.

IV

[¶ 11] On appeal from the district court ruling on an administrative agency decision, this Court reviews the agency’s order in the same manner. N.D.C.C. § 28-32-49. We review the decision of the administrative agency, rather than that of the district court, although the district court’s analysis is entitled to respect. Bachmeier v. N.D. Workers Comp. Bureau, 2003 ND 63, ¶ 10, 660 N.W.2d 217. We exercise restraint in deciding whether the agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Id. We decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record. Id. Questions of law, including the interpretation of a statute, are fully renewable on appeal from an administrative decision. Id.

[¶ 12] WSI, upon remand by this Court, held further proceedings and reviewed the appropriateness of Paul’s rehabilitation plan, without using an erroneous presumption that there must be jobs which fit within Paul’s functional capacity. WSI found there are jobs which Paul is capable of performing, relying on testimony of its vocational consultant, who contacted specific employers and identified available jobs which did not require lifting or other functions beyond those which Paul’s doctors had released him to perform. In addition, there was evidence of available job opportunities for positions which could require lifting in excess of Paul’s capacities, but specific employers indicated a willingness to make accommodations for an employee so that excessive lifting would not be required. WSI expressly found the greater weight of the evidence shows that most jobs in the occupations of sales attendants, service establishment counter attendant, and automobile rental clerk in the Phoenix area would not entail lifting that exceeds Mr. Paul’s lift máximums and that Paul’s treating doctor, William Shapiro, approved Paul’s ability to perform in those occupations. We conclude WSI’s findings on this issue are supported by the record evidence.

[¶ 13] In addition, WSI accepted additional evidence at the October 10, 2002 hearing regarding Paul’s functioning and work capabilities subsequent to the worsening of his condition and his latest surgery. WSI found that following recuperation from the surgery, Paul’s surgeon approved of Paul returning to light duty work, stating that he was capable of working on a full-time basis with no repetitive bending or lifting of more than 20 pounds. WSI found that the available job opportunities in the initial plan were within Paul’s existing work capabilities following his recuperation from the latest surgery, and, therefore, the rehabilitation plan remained viable and appropriate for Paul. We also conclude those findings by WSI are supported by the record evidence.

[¶ 14] WSI decided the vocational plan developed for Paul meets the goals of returning him to substantial gainful employment within the meaning and intent of N.D.C.C. § 65-05.1-01(3). That conclusion is supported by its findings. We conclude, therefore, WSI’s orders approving WSI’s rehabilitation plan for Paul and denying him further disability benefits are based upon findings supported by a preponderance of the record evidence, its conclusions are supported by the findings, and its decisions are in accordance with the law. We, therefore, affirm the district court judgment upholding WSI’s orders.

[¶ 15]GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ„ concur.

      . The 2003 Legislature changed the title of the North Dakota Worker's Compensation Bureau to Workforce Safety and Insurance. See 2003 N.D. Sess. Laws ch. 561; N.D.C.C. § 65-02-01.1.


author: SANDSTROM, Justice. NEUMANN, Justice, MARING, Justice,

text:
    2003 ND 186
    Gerald August CHRISTIANSON, Plaintiff and Appellant, v. Cecelia Marie CHRISTIANSON, Defendant and Appellee.
    No. 20030123.
    Supreme Court of North Dakota.
    Dec. 2, 2003.

      Anne E. Summers, Dyer & Summers, P.C., Bismarck, N.D., for plaintiff and appellant.
    Suzanne M. Schweigert, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Gerald Christianson is appealing a Northwest Judicial District Court judgment awarding Cecelia Christianson $900.00 per month in spousal support. Gerald Christianson argues that the district court erred in imputing income to him when determining his ability to pay, that Cecelia Christianson’s needs as a disadvantaged spouse were not supported by the evidence, that temporary support should have been awarded, and that equalizing their income was inappropriate. Because we are unable to fully review the district court’s finding that Cecelia Christianson is a disadvantaged spouse entitled to permanent support, we affirm that portion of its decision. Concluding the district court improperly calculated the amount of spousal support, we reverse and remand for proper calculation.

I

[¶ 2] Gerald and Cecelia Christianson married in June 1968. Gerald Christian-son sued Cecelia Christianson for divorce in January 2001. At the time of trial, Gerald Christianson was 56 and Cecelia Christianson was 58. Gerald Christianson has a Bachelor of Science Degree in Biology, a Master’s Degree in School Administration, and a Specialist’s Degree in Educational Leadership.

[¶ 3] Gerald Christianson had been working as a Superintendent at Parshall High School in Parshall, North Dakota. Following the 1999-2000 school year, he retired and began drawing benefits from the North Dakota Teachers’ Fund for Retirement. He gave up his position in anticipation of obtaining a “state job” as a grant administrator, but the job never materialized. Before retiring, Gerald Christianson had an annual salary of $56,000, and with benefits, his compensation was close to $65,000.

[¶ 4] Gerald Christianson enrolled at North Dakota State University in Fargo, North Dakota, in August of 2000 to pursue a Specialist’s Degree in Educational Leadership. The salary range for a person with this degree is between $50,000 and $90,000. While attending school at North Dakota State University, Gerald Christian-son earned $692,00 per month as a graduate teaching assistant and $800.00 per month as a sales associate at Marshall Field’s. Gerald Christianson’s retirement income at the time gave him $2,273.86 per month. He forwarded $1,050.00 of that amount to Cecelia Christianson. Gerald Christianson is in good health, aside from occasional back pain.

[¶ 5] Cecelia Christianson has a Bachelor of Science Degree in Elementary Education. She is employed as an elementary school teacher at Plaza School in Plaza, North Dakota, earning $24,500. She also works part-time at the Cenex Convenience Store in Parshall, earning from $300 to $350 per month.

[¶ 6] On October 15, 2001, the district court awarded 60 percent of the marital property to Cecelia Christianson and 40 percent to Gerald Christianson. The district court found Cecelia Christianson to be a disadvantaged spouse and determined she could not be rehabilitated. The court awarded her permanent support in the amount of zero ($0.00) dollars. Given the fact that Gerald Christianson did not have full-time employment and was pursuing a degree, the court deferred setting the amount of spousal support until October 15, 2002.

[¶ 7] The district court found Cecelia Christianson had low job security; the school where she teaches has declining enrollment, and at some point it may no longer be feasible to keep the school open. It found that she may find it difficult to obtain other employment as a teacher because there are many elementary school teachers and she is 58 years old and does not have a portfolio, which is required by many schools.

[¶ 8] The district court also found the parties moved to different communities nine times during their marriage. It found these moves were made solely to advance Gerald Christianson’s career, and little consideration was given to whether Cecelia Christianson could obtain a teaching job. It also found Cecelia Christian-son’s teaching career was interrupted by these moves; extended time away from the classroom does not look good on a resume. The district court found that being away from teaching also made it difficult for Cecelia Christianson to build retirement. Because the parties dipped into her retirement fund on four occasions, her retirement is a fraction of what it could have been. It also found that Cecelia Christian-son has heel spurs in both feet and will eventually require surgery. Judgment was entered November 6, 2001.

[¶ 9] On January 16, 2003, the district court again reviewed the issue of support. The court found Cecelia Christianson’s needs as a disadvantaged spouse had become more pronounced since the divorce judgment had been entered; the A.G. Edwards stock portfolio awarded to her as part of the property division had sharply declined in value. The court also found that despite a concerted and good-faith attempt to obtain employment, Gerald Christianson has been unable to secure a position in the field of school administration. The court recognized that Gerald Christianson voluntarily gave up a $56,000 job, that the salary range for an individual possessing his type of degree is $50,000 to $90,000, and that his present earnings are significantly less than the prevailing amounts earned in the community by persons with a similar work history and occupational qualifications. The court found Gerald Christianson to be underemployed. The court used an equalization-of-income approach and imputed income to Gerald Christianson to set the support award at $900.00 per month. The amended judgment was entered on April 3, 2003.

[¶ 10] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 11] Gerald Christianson argues the district court erred in finding Cecelia Christianson a disadvantaged spouse entitled to permanent spousal support.

[¶ 12] Cecelia Christianson argues that because Gerald Christianson failed to order a transcript of the trial, he cannot challenge the district court’s finding that she is a disadvantaged spouse entitled to permanent spousal support.

[¶ 13] We note that had the “disadvantaged spouse, permanent spousal support” issue been reviewable, Gerald Christianson would have been largely foreclosed from meaningful review because of his failure to provide a transcript of the proceedings leading to the November 6, 2001, judgment. In a divorce case, a district court “may require one party to pay spousal support to the other party for any period of time.” N.D.C.C. § 14-05-24.1. “A determination on spousal support is treated as a finding of fact which will not be set aside on appeal unless clearly erroneous.” Sommers v. Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586. Rule 10(b), N.D.R.App.P., requires an appellant to file the trial transcript with this Court on appeal. Sabot v. Fargo Women’s Health Organization, Inc., 500 N.W.2d 889, 891 (N.D.1993). When the appellant fails to file a transcript, he or she assumes the consequences. If the record on appeal does not allow a meaningful and intelligent review of the error, we decline to review it. Id. at 892. See also Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 8, 660 N.W.2d 558; Wagner v. Squibb, 2003 ND 18, ¶ 5, 656 N.W.2d 674.

[¶ 14] 'Here, the lack of a transcript precludes meaningful review. We affirm on this issue.

Ill

[¶ 15] Gerald Christianson argues that no authority exists for imputing income to him for the purpose of calculating spousal support, that equalization of income was inappropriate for this case, and that the district court improperly assessed his ability to pay.

A

[¶ 16] He argues spousal support is not the same as child support, in which the imputation of income is authorized, and claims no such authority exists in the case of spousal support.

[¶ 17] “Spousal support awards must be made in consideration of the disadvantaged spouse’s needs and of the supporting spouse’s needs and ability to pay.” Shields v. Shields, 2003 ND 16, ¶ 10, 656 N.W.2d 712.

[¶ 18] Cecelia Christianson can point to no North Dakota statutory or case law providing for the imputation of income in spousal support cases. Other states have permitted imputing income in some cases. See, e.g., Moore v. Moore, 242 Mich.App. 652, 619 N.W.2d 723, 724-25 (2000); In re Marriage of Carrick, 560 N.W.2d 407, 410 (Minn.Ct.App.1997); Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77, 78-79 (1988). Even if it were allowed, it would not be appropriate for this case. See id. The district court found that despite a concerted and good-faith attempt on Gerald Christianson’s part to obtain employment, he has come up empty-handed in his job search.

B

[¶ 19] Gerald Christianson claims that the use of an income-equalization approach to spousal support was not appropriate.

[¶ 20] Equalization is not a goal of spousal support, and equalization of income between divorcing spouses is not a measure of spousal support although it is a factor that can be considered. Sommers, 2003 ND 77, ¶ 17, 660 N.W.2d 586. The amount of support ordered greatly exceeds Gerald Christianson’s ability to pay and is not justified by “equalization of income.”

[¶ 21] We reverse, concluding the district court improperly imputed income to Gerald Christianson when it sought to equalize the parties’ incomes. We remand to the district court for proper calculation of spousal support based upon the parties’ needs and ability to pay.

IV

[¶ 22] Cecelia Christianson argues she should be awarded attorney fees on appeal because Gerald Christianson’s actions have unreasonably increased the time and effort spent on the dispute.

[¶ 23] “The principal factors to be considered for deciding the amount of attorney fees are need and ability to pay.” Mahoney v. Mahoney, 1997 ND 149, ¶ 40, 567 N.W.2d 206. “An award of attorney’s fees in litigation about marital obligations between former spouses does not depend entirely on the merits of each position, although whether one party’s actions unreasonably increased the time and effort spent on the dispute can be a factor.” Id.

[¶ 24] Section 14-05-23, N.D.C.C., states that “during any time in which an action for separation or divorce is pending, the court, upon application of a party, may issue an order requiring ... payment of attorney fees.” Under this section we have concurrent original jurisdiction with the district court to award attorney fees on appeal. Severson v. Severson, 482 N.W.2d 594, 596 (N.D.1992).

[A]s we are an appellate court and exercise original jurisdiction rarely, as attorney’s fees and costs involve the necessity of determining facts, and as we ordinarily do not determine facts, we prefer that the district court initially make the determination of attorney’s fees even in conjunction with an appeal to our Court. McIntee v. McIntee, 413 N.W.2d 366, 367 (N.D.1987). When a party to a divorce action makes a motion in this Court for an award of attorney’s fees on appeal, we generally remand the issue to the district court for a determination. Roen v. Roen, 438 N.W.2d at 174.

Severson, at 596.

[¶ 25] We remand this case to the district court for a determination of whether attorney fees should be awarded to Cecelia Christianson and, if so, for what amount.

V

[¶ 26] We reverse the district court’s judgment as to the amount of spousal support and remand for further proceedings.

[¶ 27] CAROL RONNING KAPSNER, J., concurs. GERALD W. VANDE WALLE, C.J., I concur in the result remanding this case for further proceedings.

NEUMANN, Justice,

concurring specially.

[¶ 28] I concur in the result. I agree with Justice Maring that imputation of income is appropriate for spousal support purposes, if supported by the evidentiary record, but I cannot affirm the imputation in this case. The trial court found Gerald Christianson had made a concerted and good faith attempt to obtain employment as a school superintendent, but made no findings as to his earning ability in any other area.

[¶ 29] Even though the trial court found that, despite his good faith effort, Gerald Christianson could not obtain employment as a school superintendent, the trial court also effectively found that the salary of a school superintendent is an appropriate measure of Gerald Christian-son’s current earning ability. The two findings are simply inconsistent. I do not think our law permits an imputation of income for spousal support purposes based only on the obligor’s prior employment, without some reason to believe his prior employment is an appropriate measure of his current earning ability.

[¶ 30] I would remand for additional proceedings to determine Gerald Chris-tianson’s earning ability, and for an award of spousal support based on that earning ability.

[¶ 31] WILLIAM A. NEUMANN concurs.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 32] I respectfully dissent from that part of the majority opinion holding that no authority exists allowing imputation of income for the purpose of calculating spousal support and that part holding equalization of income is inappropriate in this case. I concur in the remaining parts of the opinion, but would affirm the judgment of the trial court.

[¶ 33] Gerald and Cecelia were married 33 years before divorcing and in dispute is the ultimate amount of the trial court’s award of permanent spousal support to Cecelia. Gerald worked as superintendent at Parshall High School for the 1999-2000 school year and earned a total compensation package of $65,000. He voluntarily quit his position at the end of the school year in anticipation of a “state job” as a grant administrator. However, the “state job” never materialized and he enrolled at North Dakota State University (“NDSU”) in August of 2000 to pursue a Specialist’s Degree in Educational Leadership, which he obtained in May of 2002.

[¶ 34] During his advanced degree education, Gerald, who was then 56 years of age, began drawing from his teacher’s retirement fund. Gerald testified the salary range for an Education Leader in this area of the country is $50,000 to $90,000. He testified at trial that he had already applied for forty positions region-wide and had not been able to secure one.

[¶ 35] The trial court found that while attending NDSU, Gerald was receiving $692 a month as a Graduate Teaching Assistant, $800 a month as a part-time salesperson at Marshall Fields, and $2,273.86 a month of retirement funds. Gerald testified he was sending Cecelia $1,050 a month. The trial court also found Gerald had voluntarily relinquished his superintendent position and that the decision was not a “truly joint decision” by Gerald and Cecelia. The trial court concluded Gerald’s actions constituted economic fault. Additionally, the trial court determined Gerald spent $22,704.18 of the proceeds from annuities, in part, on costs associated with obtaining his advanced degree from NDSU. Accordingly, marital funds were used by Gerald to obtain his advanced education.

[¶ 36] Cecelia is 58 years old and earns a salary of $24,500 a year as an elementary teacher plus $300 to $350 a month as a part-time worker at the Parshall Cenex Convenience Store. The trial court found that Cecelia supported Gerald’s career advancement to the detriment of her own. They moved nine times to advance Gerald’s career with little or no consideration for Cecelia’s teaching career. Due to the frequent moves, Cecelia could not build her retirement, and what retirement she did have, was invaded on four separate occasions to help pay moving expenses or to pay for Gerald’s advanced education. The trial court concluded that Cecelia is a disadvantaged spouse and is entitled to spousal support, but declined to set the amount until Gerald finished at NDSU and obtained full-time employment and, “in any event (i.e., whether Gerald obtains full-time employment or not) ... no later than October 15, 2002.”

[¶ 37] On October 15, 2002, Cecelia requested that the trial court review the spousal support award and alleged Gerald had a greater ability to pay than he did at the time of trial. On review, the trial court found that Cecelia’s needs have become even more pronounced since the divorce judgment. It also found that “[d]e-spite a concerted and good faith attempt ...,” Gerald has come up empty in his job search, “... at least in the field of school administration.” (Emphasis added.) The trial court further found:

Realistically, Cecelia cannot wait any longer to begin receiving support from Gerald. Recognizing that: 1. Gerald voluntarily gave up a $56,000.00 per year (plus benefits) superintendent’s position at Parshall High School in order to obtain his advanced degree; 2. the salary range for an individual possessing this degree is $50,000.00 to $90,000.00; and, 3. Gerald’s present earnings are significantly less than prevailing amounts earned in the community (of Bismarck, ND) by persons with similar work history and occupational qualifications, Gerald is “underemployed”- and equity dictates that the Court impute annual income of $50,000.00 to Gerald in calculating his spousal support obligation. When this is done, it can readily be seen that there is a substantial disparity between the incomes of Cecelia and Gerald-a disparity which the property division ordered by the Court did not ameliorate and which the Court believes cannot be- readily adjusted by rehabilitative support given Cecelia’s circumstances.

[¶ 38] Our Court has held that the trial courts must consider the Ruff-Fischer guidelines in determining both the amount and duration of spousal support. Sommer v. Sommer, 2001 ND 191, ¶ 9, 636 N.W.2d 423. The factors include:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Id. (citation omitted).

[¶ 39] The trial court in this case very carefully considered all the Ruff-Fischer factors including the needs of each party and the ability of the supporting spouse to pay. The trial court imputed income of $50,000 to Gerald based on Gerald’s testimony that the salary range for an individual with his degree was $50,000 to $90,000 and that Gerald last earned a total compensation package of $65,000.

[¶ 40] The majority opinion states that spousal support awards are to be made in consideration of need and ability to pay, without ever mentioning the Ruff-Fischer guidelines; that there is no authority to impute income; and that even if it were allowed the trial court found Gerald made a good faith attempt to obtain employment. The majority opinion overlooks that the trial court found Gerald had “voluntarily” quit his job and that this act constituted economic fault. The majority opinion also overlooks that the trial court noted Gerald may need to find full-time employment in another field and that he made no attempt to do this. With regard to Gerald’s good faith attempt to find a job, the trial court clearly referenced only Gerald’s attempt to find a school administration job as being made in “good faith.” Implicitly the trial court found Gerald was “voluntarily” underemployed, and after having given him one year to resolve his employment status, the court, imputed income.

[¶ 41] A number of jurisdictions have found that where a party has voluntarily reduced his income, the court may impute income to arrive at an amount for spousal support. See, e.g., Moore v. Moore, 242 Mich.App. 652, 619 N.W.2d 723, 724-25 (2000) (citing Healy v. Healy, 175 Mich. App. 187, 437 N.W..2d 355 (1989)) (holding that a court can consider a voluntary reduction of income to determine the proper amount of alimony, and that if a court finds a party voluntarily reduced the party’s income, the court may impute additional income to arrive at an appropriate alimony award); Weller v. Weller, 2002 Ohio 7125, ¶ 47, 2002 WL 31862681, *8 (Ohio Ct.App.2002) (quoting Motycka v. Motycka, 2001 Ohio 2162, 2001 WL 688886 *14) (holding that a trial court has the discretion to impute income to parties for purposes of spousal support, “even if it is determined that a party has no income”); Cox v. Cox, 877 P.2d 1262, 1267 (Utah Ct.App.1994) (holding that after first determining a spouse is voluntarily unemployed or underemployed, it is appropriate to impute income) (citations omitted); Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77, 78-79 (1988) (holding, in the proper circumstances, a trial court may impute income to a supporting spouse who voluntarily changes employment); Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16, 20 (1991) (holding that a trial court may impute income); In re Marriage of Stephenson, 39 Cal.App.4th 71, 46 Cal.Rptr.2d 8, 14 (1995) (holding that if a “supporting spouse elects to retire early and to not seek reasonably remunerative available employment under the circumstances, then the court can properly impute income to that supporting spouse ... ”); Kovar v. Kovar, 648 So.2d 177, 178 (Fla.Dist.Ct. App.1994) (holding that when a supporting spouse voluntarily reduces his income, it is in the trial court’s discretion to impute income); Bronson v. Bronson, 793 So.2d 1109, 1111 (Fla.Dist.Ct.App.2001) (same); In re Marriage of Carrick, 560 N.W.2d 407, 410 (Minn.Ct.App.1997) (holding that a trial court may impute a party’s income to set maintenance, if it first finds that the party was underemployed in bad faith); In re Marriage of Warwick, 438 N.W.2d 673, 677 (Minn.Ct.App.1989) (extending earning capacity determination as an appropriate measure of income from child support to spousal support and concluding the rationale for child support is persuasive for maintenance).

[¶ 42] In the present case, the trial court did not err in imputing income where it found Gerald was voluntarily underemployed; had only attempted a good faith search for employment as a school superintendent and not for other full-time employment; and the imputed amount of income was within the range of Gerald’s testimony as to what he could earn as well as the history of his earnings.

[¶ 43] To the extent that the majority opinion stands for the proposition that equalization of income is never appropriate when setting spousal support, I dissent. We have stated that “[a] valid consideration in awarding spousal support is balancing the burden created by divorce.” Marschner v. Marschner, 2001 ND 4, ¶ 10, 621 N.W.2d 339. We also have stated that “[r]elevant to a spousal support determination is the distribution of marital property, the liquid nature of the property, and the income-producing nature of property.” Id. at ¶ 13. In this case, the parties net marital estate was minimal being only $38,885. Here, the evidence is that the award of $14,000 in the AG Edwards Account had been reduced to $7,000 and would provide little income to Cecilia.

[¶ 44] Cecelia significantly contributed to Gerald’s increased earning ability over a period of 33 years. Cecelia’s earning ability will never approach Gerald’s. Our Court has stated that a valid consideration in an award of spousal support is:

whether there is a need to equitably balance the burdens created by the divorce where the parties cannot maintain the same standard of living apart as they enjoyed together. See Wald v. Wald, 556 N.W.2d 291, 297 (N.D.1996) (“We recognize a court must balance the burden created by a divorce when it is impossible to maintain two households at the pre-divorce standard of living.”); Wiege v. Wiege, 518 N.W.2d 708, 712 (N.D.1994) (“The trial court’s award of permanent support, combined with the rehabilitative support, eqidtably shares the overall reduction in the parties’ separate standards of living and is not clearly erroneous.”) (internal quotation marks omitted); Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D.1992) (“Continuance of a standard of living is a valid consideration in spousal support determinations, e.g., Bagan v. Bagan, 382 N.W.2d 645 (N.D.1986), as is balancing the burdens created by the separation when it is impossible to maintain two households at the pre-divorce standard, e.g., Weir v. Weir, 374 N.W.2d 858 (N.D. 1985).”).

Sommer, 2001 ND 191, ¶ 10, 636 N.W.2d 423 (emphasis added).

[¶ 45] Although, as in property division, equitable does not need to mean equal, equitable can mean equal. In Glan-der v. Glander, 1997 ND 192, ¶¶ 17, 18, 569 N.W.2d 262, our Court upheld an equalization of income between divorcing spouses. We noted that some jurisdictions reject equalization of income while others “have approved indefinite spousal support that resulted in equalizing post-divorce income.” Id. at ¶ 17. Our Court concluded that “[w]hile arbitrary equalization of income between parting spouses would be questionable, we conclude the circumstances here justified it. In determining support, a court must ‘balance the burden created by a divorce when it is impossible to maintain two households at the pre-divorce standard of living.’ ” Id. at ¶ 18 (citations omitted).

[¶ 46] In Riehl v. Riehl, 1999 ND 107, ¶ 17, 595 N.W.2d 10, our Court stated “[w]hile we have not endorsed the ‘equalization of income between divorcing spouses,’ (citation omitted) we conclude the period of spousal support in this case does not adequately address the burdens of the divorce.” We reversed and remanded for the trial court to consider whether permanent spousal support would be equitable to offset the permanent economic disadvantage suffered by the wife in that case. Id. at ¶¶ 19, 20.

[¶ 47] I believe the trial court did not clearly err in equalizing the incomes through an award of spousal support under the facts and circumstances of this case. If Gerald wishes to decrease his spousal support payments upon his retirement, he may bring a motion for modification of the amount at that time. See Som-mer, 2001 ND 191, ¶ 18, 636 N.W.2d 423. [¶ 48] I respectfully dissent and would affirm the judgment of the trial court.

[¶ 49] MARY MUEHLEN MARING

      . That Cecelia Christianson was a disadvantaged spouse entitled to permanent spousal support was established by the district court's October 15, 2001, findings, conclusion, and order, and the November 6, 2001, judgment. That judgment was not appealed. If the judgment was final and appealable, it would be res judicata, and we normally would not review it. See Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶ 23, 583 N.W.2d 377. We need not decide whether it was res judicata, because res judicata was not raised by the parties and our resolution of the issue has the same result as if it were res judicata.

      . Contrary to the concurring and dissenting opinion’s statement, at ¶ 36, the district court did not implicitly or explicitly find Gerald Christianson was "voluntarily underemployed.”


text:
    2003 ND 179
    Abdul KAMARA, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20030180.
    Supreme Court of North Dakota.
    Dec. 2, 2003.

      Coral Joan Mahler, Sheyenne, for petitioner and appellant. Submitted on brief.
    Lonnie Olson, State’s Attorney, Devils Lake, for respondent and appellee. Submitted on brief.
   VANDE WALLE, Chief Justice.

[¶ 1] Abdul Kamara appealed from an order denying his motion for post-conviction relief. We affirm.

I

[¶ 2] Kamara was tried and convicted for three drug-related crimes. The judgments were entered and Kamara was sentenced on August 28, 2001. Thereafter, Kamara filed a motion for post-conviction relief claiming ineffective assistance of his trial counsel. He requested to be re-sentenced and allowed to file an appeal. A hearing was held on the matter, and the district court denied Kamara’s request. The only issue Kamara raises on appeal is whether his trial counsel was ineffective because he failed to file an appeal of the criminal judgments.

[¶ 3] There is a factual dispute regarding whether, or to what extent, Kamara’s trial counsel discussed appealing with him. Kamara claims the only time the issue was discussed was when the jury announced its verdict, at which time he indicated he wished to appeal. According to Kamara, his trial counsel responded “it is not timely” and told Kamara’s wife “he doesn’t have a ghost of a chance.” Kamara’s trial counsel testified at the hearing that he consulted with Kamara regarding an appeal when the jury was deliberating, at which time Kamara indicated he did not wish to appeal. The trial counsel testified he also consulted with Kamara regarding an appeal both before and after the sentencing hearing, and Kamara again indicated he did not wish to appeal. In regard to whether Kamara requested an appeal at the sentencing or at any other time within the time to appeal, the district court found, “[t]he attorney’s testimony is more believable than [Kamara’s] or his other witness.”

II

[¶ 4] Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. McMorrow v. State, 516 N.W.2d 282, 283 (N.D.1994); Varnson v. Satran, 368 N.W.2d 533, 536 (N.D.1985). “This court applies the ‘clearly erroneous’ standard set forth in Rule 52(a), N.D.R.Civ.P., when reviewing a trial court’s findings of fact on an appeal from a final judgment.or order under the Uniform Post-Conviction Procedure Act. However, ineffectiveness of counsel is a mixed question of law and fact and we have held such questions are fully reviewable by this court without the restraints of Rule 52(a), N.D.R.Civ.P.” State v. Foster, 1997 ND 8, ¶ 18, 560 N.W.2d 194 (citing State v. Skaro, 474 N.W.2d 711, 716-17 (N.D.1991)).

[¶ 5] The Sixth Amendment of the United' States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution, guarantee a defendant effective assistance of counsel. DeCoteau v. State, 1998 ND 199, ¶ 6, 586 N.W.2d 156. The United States Supreme Court has developed a two-part test for allegedly ineffective assistance of counsel, and we use this test to assess claims based on the state constitution. Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D.1992). To succeed on a claim for ineffective assistance of counsel, a person must show counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Robertson, 502' N.W.2d 249, 251 (N.D. 1993). This test applies to claims counsel was ineffective for failing to file a notice of appeal. Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Whiteman v. State, 2002 ND 77, ¶ 10, 643 N.W.2d 704.

[¶ 6] There are three types óf cases regarding counsel’s failure to file a notice of appeal. First, “a lawyer who disregards specific instructions ... to file a notice of appeal acts in a manner that is professionally unreasonable.” Whiteman, 2002 ND 77, ¶ 10, 643 N.W.2d 704 (quoting Flores-Ortega, 528 U.S. at 477, 120 S.Ct. 1029). Second, an attorney cannot be found to have performed deficiently by not filing an appeal when a defendant explicitly tells him not to do so. Id. The final situation is “when the defendant has not clearly conveyed his wishes one way or another.” Id. at ¶ 11.

[¶ 7] In Whiteman, we reversed and remanded a district court judgment summarily dismissing Whiteman’s application for post-conviction relief because Whiteman had presented enough evidence to warrant an evidentiary hearing. Id. at ¶ 1. This case is distinguishable from Whiteman because an evidentiary hearing was held and the trial court found Kamara did not request an appeal. See id. at ¶ 23 (“If, after the evidentiary hearing, the trial court finds that [counsel] did not fail to follow Whiteman’s instructions regarding a direct appeal, Whiteman’s claim of ineffective assistance of counsel should be dismissed”). “The credibility of witnesses is left to the trial court to determine.” Cue v. State, 2003 ND 97, ¶ 15, 663 N.W.2d 637. Although our standard of review for a claim of ineffective assistance of counsel is a mixed question of law and fact, the trial court’s findings of fact are subject to a clearly erroneous standard of review under N.D.R.Civ.P. 52(a). See DeCoteau v. State, 2000 ND 44, ¶¶9-10, 608 N.W.2d 240. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made.” Id. at ¶ 10. We will not second guess the trial court’s determination that trial counsel was more credible than Kamara and his other witness. See id. at ¶ 11. There was evidence to support the trial court’s order and we are not convinced a mistake has been made.

[¶ 8] We affirm the order denying Ka-mara’s request for post-conviction relief.

[¶ 9] DALE Y. SANDSTROM, CAROL RONNING KAPSNER, MARY MUEHLEN MARING and WILLIAM A. NEUMANN, JJ., concur.


text:
    2003 ND 181
    CRANE JOHNSON LUMBER COMPANY, and Swanston Equipment, Inc., Plaintiffs and Appellants, v. CITY OF FARGO, North Dakota, a municipal corporation, Defendant and Appellee.
    No. 20030146.
    Supreme Court of North Dakota.
    Dec. 2, 2003.

      Daniel J. Crothers, Nilles, Hansen & Davies, Ltd., Fargo, for plaintiffs and appellants.
    Garylle B. Stewart, Fargo, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Crane Johnson Lumber Company (“Crane Johnson”) and Swanston Equipment, Inc., (“Swanston”) appealed from a district court judgment dismissing their action against the City of Fargo, challenging assessments for a street improvement project. We affirm.

I

[¶ 2] In 1998, the Fargo City Commission created Special Improvement District # 4837 to pave a portion of 34th Street Southwest in Fargo between Main Avenue and 4th Avenue South. Crane Johnson and Swanston own property abutting 34th Street Southwest within the improvement district. The City sent notices of the creation of the improvement district to Crane Johnson and Swanston, and they did not protest creation of the district.

[¶ 3] The Special Assessment Commission subsequently assessed the costs of the project to the properties within the district on a front foot basis. After receiving notice of the specific assessments on their properties, Crane Johnson and Swanston protested the amounts of the assessments. The City Commission ultimately confirmed the assessments.

[¶ 4] Crane Johnson and Swanston brought this action against the City, claiming the Special Assessment Commission acted arbitrarily, capriciously, and unreasonably in setting the assessments on their property, and seeking an order that the matter be remanded for reassessment. The district court concluded the Special Assessment Commission did not act arbitrarily, capriciously, or unreasonably, and dismissed the action.

II

[¶ 5] The primary argument raised by Crane Johnson and Swanston on appeal is that the Special Assessment Commission erred in failing to assess a portion of the costs of the project to property lying outside of the improvement district, alleging that those properties were substantially benefited by the improvement. This argument ignores the statutory procedure for creation of special improvement districts and misinterprets the authority of the Special Assessment Commission.

[¶ 6] Special improvement districts are created by ordinance or resolution of the governing body of a municipality, after consultation with the city engineer. N.D.C.C. §§ 40-22-08, 40-22-09. The governing body of the municipality, in creating the improvement district, must “include all properties which in the judgment of the governing body ... will be benefited by the construction of the improvement project.” N.D.C.C. § 40-22-09. After the improvement district is created, the Special Assessment Commission determines the particular lots and parcels within the improvement district which are especially benefited by the project and assesses the costs of the project against those properties. See N.D.C.C. § 40-23-07; Serenko v. City of Wilton, 1999 ND 88, ¶20, 593 N.W.2d 368. Property lying outside the limits of the improvement district is not subject to assessment. Dakota Land Co. v. City of Fargo, 224 N.W.2d 810, 812 (N.D.1974).

[¶ 7] If Crane Johnson and Swanston wished to challenge the failure to include other nearby properties within the special improvement district, they could have protested the creation of the district. See N.D.C.C. § 40-22-17. Crane Johnson and Swanston concede they did not challenge creation of the district. Because the Special Assessment Commission was without authority to assess properties lying outside the limits of the district, its failure to do so was not arbitrary, capricious, or unreasonable.

[¶ 8] We have considered the remaining issues raised by Crane Johnson and Swanston and find them to be without merit. The judgment is affirmed.

[¶ 9] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.