author: TOUSSAINT, Chief Judge.

text:
    Larry WAJDA, et al., Respondents, v. Jonathan KINGSBURY, et al., Appellants.
    No. C2-02-90.
    Court of Appeals of Minnesota.
    Sept. 10, 2002.

      Jay M. Heffern, Minneapolis City Attorney, William C. Dunning, Assistant City Attorney, Minneapolis, MN, for appellant.
    Michael A. Zimmer, Tina M. Dobbe-laere, Tewksbury, Kerfeld, Zimmer, Minneapolis, MN, for respondents.
    Considered and decided by STONEBURNER, Presiding Judge, TOUSSAINT, Chief Judge, and SCHUMACHER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This action arose out of a collision between a police squad car and a tow truck. An issue at trial was whether the squad car’s siren had been activated. The jury returned a verdict for the tow truck operator, and the district court denied appellants’ motion for new trial. Appellants contend that the district court erroneously instructed the jury that it could make an adverse inference from appellants’ failure to produce a tape that might have corroborated evidence as to the siren because (1) no evidence that has been shown to exist has been destroyed; (2) there was no finding that the tape, if it existed, was critical to respondents’ case; and (3) respondents did not suffer prejudice because they were not placed at an evidentiary disadvantage. Because the district court did not abuse its discretion, we affirm.

FACTS

This action arose out of a May 1997 collision between a police squad car and a tow truck, resulting in personal injuries and property damage. Appellant Jonathon Kingsbury, a Minneapolis police officer, was driving a squad car, accompanied by Officer Gary Nelson. Terrance Wojtow-icz was driving the tow truck, owned by respondents Larry Wajda and L & L Towing. In 1999, Officer Nelson and his wife brought a personal injury lawsuit against Wojtowicz and Wrecker Services for injuries sustained in the collision. Wojtowicz and Wrecker Services brought a third-party action against appellant City of Minneapolis, seeking contribution for any damages awarded to the Nelsons, and the city counterclaimed for damages to the squad car and for workers’ compensation benefits paid to Officer Nelson. L & L Towing and Wajda filed a complaint against the city and Officer Kingsbury for property damage to the tow truck, alleging negligence by Kingsbury. The district court consolidated the cases.

The city moved for summary judgment, claiming official immunity for itself and Officer Kingsbury, and the district court granted the city’s motion. This court reversed the district court’s grant of summary judgment and remanded for trial. Nelson v. Wrecker Servs., Inc., 622 N.W.2d 399 (Minn.App.2001). The case proceeded to trial, where the only claim remaining for trial was Wajda’s claim against the city and Officer Kingsbury for property damages and lost income.

At trial, a primary issue was whether the squad car’s siren had been activated. Wojtowicz testified that he was traveling eastbound on 10th Avenue toward the intersection of 10th Avenue and Washington, with the truck windows open, and that the traffic light was green as he entered the intersection. Wojtowicz stated that he noticed a car to his right, facing north, that was stopped inside the northbound lane on Washington. He noticed overhead lights when the squad car was “almost hitting” him. Wojtowicz did not hear a siren and was never cited for any traffic violations in connection with the incident.

Officer Kingsbury testified that after receiving a radio dispatch that a knife fight was taking place nearby, the officers responded to the call, activating the squad car’s red lights and siren. Kingsbury stated that he traveled northbound on Washington Avenue, and as he approached the intersection of Washington and 10th Avenues, he noticed a car stopped at the intersection in the left-hand lane. Kingsbury also testified that the light turned green, he changed lanes to go around the right side of the stopped car, entered the intersection, and “[a]ll of a sudden there was a collision.” Kingsbury testified that he had activated the siren. Officer Nelson did not testify at trial, but portions of his deposition were read to the jury. Nelson testified that the squad car’s emergency lights and siren were activated when the officers proceeded through the intersection. Nelson stated that he observed the traffic light change from red to green when the squad car was about a block to one-and-one-half blocks from the intersection.

The driver and passenger of the vehicle that was stopped at the light on Washington Avenue testified at trial. The driver testified that he stopped at the light because it had just turned red, he saw emergency lights approach from behind, and he did not hear a siren. The passenger testified that he had his window cracked and first saw the squad car as it passed them, and that “there was definitely no siren there at all.”

The parties do not dispute that the Minneapolis Emergency Communications Center records radio transmissions between officers in squad cars and the dispatch center and that the city’s policy is to reuse or tape over the tapes after 60 days. The tapes only record what is broadcast by radio to and from police officers. Kings-bury agreed that it was “very possible” that Nelson spoke to dispatch again between the time of the initial call and the time they reached the intersection where the accident occurred. Kingsbury agreed that if Nelson spoke with dispatch during the period and a tape were made of the conversation, a person might be able to hear the siren if it had been activated. Kingsbury testified that Nelson contacted the dispatcher to report the accident after it occurred.

At the conclusion of trial, the district court instructed the jury that

[t]estimony has been introduced indicating that a police dispatch tape recording existed which may have shown whether a siren was activated and, if so, when it would have been activated. The tape recording was in the possession and control of the City of Minneapolis. The tape recording no longer exists. You are permitted (but are not required) to infer from this fact that the, quote, “siren evidence” is favorable to plaintiff. Weigh this along with all other, quote, “siren testimony” in this case.

The jury returned a verdict for the tow truck operator, finding Kingsbury to be 80% at fault and Wojtowicz to be 20% at fault. The jury specifically found that the siren was not activated. Appellants moved for a new trial, arguing that the district court erroneously instructed the jury that it could take an adverse inference from appellants’ failure to produce a tape that might have corroborated evidence as to the siren. The court denied appellants’ motion for new trial. This appeal follows.

ISSUE

Did the district court abuse its discretion by imposing sanctions for spoliation of evidence?

ANALYSIS

Spoliation is the destruction of evidence. Federated, Mut. Ins. Co., v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn.1990). The district court has broad authority in determining what, if any, sanction is to be imposed for spoliation of evidence. Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn.1995). On review, an appellate court considers whether the district court is authorized to impose a sanction for spoliation of evidence and, if so, whether it abused its discretion by imposing such a sanction. Id. at 118. A party challenging the district court’s choice of sanction must meet the difficult burden of convincing an appellate court that the district court abused its discretion; the burden is met “only when it is clear that no reasonable person would agree [with] the trial court’s assessment of what sanctions are appropriate.” Id. at 119 (quotation omitted). The appropriateness of a sanction for spoliation of evidence is determined by the prejudice to the opposing party. Hoffman v. Ford Motor Co., 587 N.W.2d 66, 71 (Minn.App.1998).

First, appellants argue that the district court improperly imposed the sanction of a jury instruction because no evidence shown to exist has been destroyed. But the district court found that credible evidence from the city’s witness established that a recording or recordings were likely to have existed. See Jorschumb v. Jorschumb, 390 N.W.2d 806, 812 (Minn.App.1986) (stating that district court is given discretion to determine credibility of witness testimony), review denied (Minn. Aug. 27, 1986). The transcript shows that Officer Kingsbury agreed that it was “very possible” that Officer Nelson spoke with the dispatcher during the time period from when the officers received the call to reaching the intersection of the accident. Based on that testimony, we cannot conclude that the district court clearly erred in finding that evidence likely existed. See Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999) (stating that district court’s factual findings must be clearly erroneous to warrant reversal).

Second, appellants argue that the district court failed to make a specific finding that the tapes were critical to respondents’ case. But in its order denying appellants’ motion for new trial, the district court stated that “there was testimony * * * that it was likely that an audio recording or recordings were made of events central to the facts of the trial” and that “[t]his testimony demonstrated the relevance of the recording,” whether it supported respondents’ or appellants’ position. Minnesota law requires that officers activate the emergency siren

when responding to an emergency call, upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety, but may proceed cautiously past such red or stop sign or signal after sounding siren and displaying red lights.

Minn.Stat. § 169.03, subd. 2 (2000). As the district court correctly recognized, a “central part” of appellants’ case was the contention that the squad car’s siren was activated during a particular time. Accordingly, the tape was “critical,” and the district court’s finding was not clearly erroneous.

Third, appellants assert that respondents did not suffer prejudice because the city did not obtain an evidentiary advantage over respondents, as it was equally likely that the tape would favor the police officers and not respondents. We disagree. The “workable standard by which to test the impact of the spoliation” is to consider the prejudice to the opposing party. Patton, 538 N.W.2d at 119. This consideration requires an examination of the nature of the item lost and the potential for remediation of the prejudice. Id. An appellate court considers whether the district court’s finding of prejudice was clearly erroneous. Hoffman, 587 N.W.2d at 71.

The parties do not dispute that it is unknown what the tapes would reveal; the tapes could favor either party, depending on whether a siren could be heard in the background. But Minnesota “permits an unfavorable inference to be drawn from failure to produce evidence in the possession and under the control of a party to a litigation.” Federated Mutual Ins., 456 N.W.2d at 436 (quotation omitted). The jury may infer that “the evidence, if produced, would have been unfavorable to that party.” Id. at 437 (quotation omitted). Additionally, the doctrine of spoliation applies where the party responsible for the evidence’s destruction had exclusive control and possession of the evidence. Kmetz v. Johnson, 261 Minn. 395, 403, 113 N.W.2d 96, 101 (1962). The city had exclusive control and possession of the tapes. Because (1) the city had exclusive possession of the tapes, (2) testimony established that the evidence likely existed, and (3) the law permits an adverse inference to be drawn from the failure to produce evidence, the district court was not clearly erroneous in concluding that respondents were prejudiced.

Appellants, citing several extra-jurisdictional cases and treatises to support their position, argue that an adverse inference may be taken from the destruction or failure to produce evidence only when the record shows that the evidence was intentionally withheld or destroyed. See e.g., State by Comm’n. of Transp. v. Council in Div. of Resource Dev., 60 N.J. 199, 202, 287 A.2d 713, 715 (N.J.1972) (stating that conscious awareness of dispute with another and conscious awareness that an act done will destroy evidence is prerequisite to permitting adverse inference); Berthold-Jennings L. Co. v. St. Louis, I.M. & S.R. Co., 80 F.2d 32 (8th Cir.1935), cert. denied 297 U.S. 715, 56 S.Ct. 591, 80 L.Ed. 1001 (1936) (stating that spoliation rule can be applied only where there was intentional conduct indicating fraud and a desire to destroy); 29 Am.Jur.2d. Evidence § 244 (stating that adverse inference permitted only where act was intentional and indicates fraud and desire to suppress truth). But see Anderson v. Litzenberg, 115 Md. App. 549, 561, 694 A.2d 150, 156 (Md.App.1997) (disagreeing with State, by Comm’n of Transp. and Berthold-Jennings and listing authorities that recognize that bad faith is not prerequisite to drawing adverse inference against spoliator). Minnesota appellate courts have never cited the cases on which appellants rely; those cases do not express the law in Minnesota and are not persuasive in this appeal.

The law in Minnesota is that spoliation of evidence need not be intentional to warrant sanctions. See Patton, 538 N.W.2d at 119; Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 471 (Minn.App.1997) (concluding that imposition of sanctions was not an abuse of discretion where evidence was destroyed through inadvertence or negligence), review denied (Minn. Aug. 26, 1997). In Patton, the supreme court considered the negligent or inadvertent destruction of evidence that was critical to a party’s design-defect products liability case, namely a motor home and several removed parts. Patton, 538 N.W.2d at 117. In concluding that the district court did not abuse its discretion by imposing spoliation sanctions that ultimately resulted in dismissal of plaintiffs’ case, the supreme court adopted the standard set forth in Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263 (8th Cir.1993), for use in spoliation cases where evidence critical to a party’s claims has been destroyed by inadvertence or negligence. Dillon recognized that “the destruction of evidence that a party knew or should have known was relevant to imminent litigation certainly justifies a sanction under the court’s inherent power.” Dillon, 986 F.2d at 268.

Here, the district court exercised its inherent power to impose the sanction of a jury instruction, concluding that the impact of spoliation was prejudice to the opposing party. The district court found that the city and officers should have known that “litigation or the possibility of litigation was imminent fairly soon after the incident” because the accident involved injuries. Officers Kingsbury and Nelson hired an attorney to pursue their personal injury claims four days after the accident. This was well within the city’s 60-day policy for reusing tapes. The district court denied appellants’ motion for new trial in a ten-page order and memorandum, and, at the hearing on appellants’ motion for new trial, the court discussed at length its intent to deny appellants’ motion and its reasons for doing so. The district court recognized that the record did not reflect any intentional attempt to hide evidence, but the court stated that it “could not ignore, if you will, and I don’t want to make it sound like the Watergate tapes, but could not ignore the missing tape.” The court further gave ample and sound reasons for using its broad authority in determining what, if any, sanction is to be imposed:

I do And, however, that as a matter of policy that the City does have to be held to the same standard as every other litigant that comes in here. And I say that with all due respect realizing some of the burdens that they undertake because of the public nature of their business and the important nature of their business, and especially the importance of the police officers ⅜ * *.
But it is also my opinion that we have to be fair and we have to be held to the same standard. And where you have a car accident such as this with what might have been even more severe injuries * * * [f]rom the fact of an accident alone I think one can anticipate litigation. And at the point where one is anticipating litigation, I think we have to take steps to preserve evidence that’s relevant to the inquiry that may take place, not only of the pictures of the scene and the drawings and the injuries and the medical records and the eyewitness testimony, but also any evidence such as the tape recordings here or any other if you will, any other matters that are helpful to the trier of fact in deciding fault, liability, and/or criminal conduct. * * *
So I think the City should consider changing its policy. And I think that I can understand why they have a policy and the expense to the taxpayers of tape recordings and the difficulty when one combines all the work ⅞ * *, one understands why one might erase at the end of sixty days. I still think we have to be mindful of anticipated litigation in certain areas, and I think steps should be taken to preserve that type of evidence, especially where a squad car might be involved in an accident and we do know that the mere presence of a siren may change the legal status of a party in terms of the immunity available to them.

Not only did the district court express ample reasoning for its decision to exercise its inherent power, but it also chose the least severe of available sanctions. Moreover, we note that because Wojtowicz and two independent witnesses testified that the siren was not activated, any prejudice to appellants as a result of the sanctions, if any, was minimal. See Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn.1997) (stating that new trial only warranted when complaining party demonstrates prejudicial error). The district court’s findings are not clearly erroneous. Because the district court extensively discussed its reasons for imposing sanctions, appellants have failed to establish that “no reasonable person would agree” with the district court’s assessment of what sanctions are appropriate. See Patton, 538 N.W.2d at 119. Accordingly, we conclude the district court did not abuse its discretion by instructing the jury on spoliation of the evidence.

Finally, appellants argue that Patton is limited to spoliation of evidence in product liability cases. But we find no authority limiting Patton to product liability cases. Patton applies to any case where critical evidence has been destroyed. See Patton, 538 N.W.2d at 119 (stating that standard to test impact of spoliation is to consider prejudice to opposing party, including an examination of nature of item lost and potential.for remediation of prejudice). We hold that when evidence critical to a party’s claim is under the exclusive control of an adverse party and the evidence is destroyed, whether accidentally or otherwise, the district court has discretion to permit the jury to make an unfavorable inference from that fact.

DECISION

The district court did not abuse its discretion by imposing sanctions in the form of a jury instruction permitting an adverse inference against the city for failure to produce the tape recording when the city had exclusive control and possession of the tape, when the tape was critical to the case, and when the destruction prejudiced respondents.

Affirmed.

       The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal. Due to Judge Foley’s untimely death before the filing of the opinion, Chief Judge Tous-saint has been assigned as a substitute, and now joins the panel in issuing this decision.

      . Larry Wajda was the principal owner of L & L Towing, which was a subcontractor for Wrecker Services, Inc., at the time of the accident.

      . Appellant asserts that the abuse-of-discretion standard of review is inappropriate where a district court misstates the law in jury instructions. See Apache Plaza, Ltd. v. Midwest Sav. Assn, 456 N.W.2d 729, 733 (Minn.App.1990) (stating that new trial should be granted where instruction is erroneous and appellate court is unable to determine if error affected jury). But the district court’s instruction resulted from imposition of sanctions, and Patton sets forth the standard of review for spoliation sanctions.

      . Appellant also cites the unpublished case, Falde v. Bush Bros. & Co., 2001 WL 1117801 (Minn.App.2001). But Patton remains the law on spoliation of evidence in Minnesota, and Falde is distinguishable on its facts and is not determinative of this appeal. See Minn. Stat. § 480A.08, subd. 3 (2000) (stating "[u]n-published opinions of the court of appeals are not precedential”). In Falde, plaintiff sued defendant alleging she suffered chemical burns after eating beans manufactured by defendant. Plaintiff threw away the can of beans on the same evening she ate a spoonful of the beans. We agreed that the issue of sanctions was moot because the lack of physical evidence affected both parties equally and neither party had access to the evidence. But unlike Palde where neither party had access to the evidence almost immediately after the injury, the city had exclusive and unlimited access to the tape for 60 days. And unlike Palde, where an expert was required to examine the beans, no expert was required here. Anyone could have listened to the tape and ascertained whether a siren could be heard in the background.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2002 ND 170
    STATE of North Dakota, Plaintiff and Appellee, v. Larry FITTERER, Defendant and Appellant.
    No. 20020076.
    Supreme Court of North Dakota.
    Nov. 5, 2002.
    Rehearing Denied Dec. 4, 2002.

      Michael R. Hoffman, Bismarck, NJX, for defendant and appellant.
    Leann K. Bertsch, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Larry Fitterer appeals the trial court’s dismissal of his motion to suppress and the subsequent judgment based on a jury’s verdict finding him guilty of driving under the influence of intoxicating liquor. We reverse and remand with instructions.

I

[¶ 2] On September 14, 2001, the North Dakota Highway Patrol stopped’ Larry Fitterer at a sobriety checkpoint and charged him with driving under the influence of intoxicating liquor. Before trial, Fitterer moved to suppress evidence as a result of the checkpoint. Fitterer claimed he was not stopped for committing a traffic violation or for an apparent vehicle safety defect, and the checkpoint stop was illegal under Article I, Section 8, of the North Dakota Constitution and under the Fourth Amendment of the United States Constitution. He requested discovery under N.D.R.Crim.P. 16, seeking documents and tangible objects material to the preparation of his defense. The State responded and moved to dismiss, arguing that because Fitterer did not specify in his motion which of his rights were violated or provide evidence of what was wrong with the checkpoint stop, his motion was inadequate on its face, and should be dismissed. In response to the discovery request, the State argued Fitterer had full means of obtaining the information from the Highway Patrol and, therefore, the State was not obliged to provide it.

[¶ 3] At a hearing on the motion, the trial court dismissed Fitterer’s motion to suppress evidence, riding sobriety checkpoints are per se constitutional, and that before a hearing would be conducted, it was Fitterer’s burden to show as part of his moving papers how and why the checkpoint was unconstitutional. At trial, the jury returned a guilty verdict. Fitterer appeals, arguing the trial court erred in dismissing his motion to suppress because (1) the motion provided adequate notice of alleged constitutional violations; (2) the State failed to comply with his request for discovery.

II

[¶ 4] Fitterer argues his motion to suppress evidence should not have been dismissed because he sufficiently stated his grounds for suppression providing adequate notice to the trial court and the State of the claimed constitutional violations. Fitterer claims he was neither stopped for committing an offense nor stopped for any apparent safety defect on his vehicle. Relying on City of Bismarck v. Uhden, 513 N.W.2d 373, 379 (N.D.1994), Fitterer maintains that checkpoint stops are not per se constitutional and, therefore, once the issue was identified and raised with sufficient clarity, the State had the burden to present record evidence to show the checkpoint was constitutionally valid.

[¶ 5] The State argues Fitterer’s motion to suppress was properly dismissed because it lacked authority and specificity to support his constitutional claim. See Wisdom v. North Dakota Real Estate Comm’n, 403 N.W.2d 19, 22 (N.D.1987); N.D.R.Ct. 3.2. The State argues our case law requires parties raising constitutional claims to articulate the specific constitutional provision being violated. See Menz v. Coyle, 117 N.W.2d 290, 302 (N.D.1962).

[¶ 6] At the motion hearing, the trial court essentially dismissed Fitterer’s motion to suppress because it lacked specificity or particularity. While we defer to a trial court’s findings of fact on a motion to suppress, questions of law are fully reviewable. State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995). Prima facie evidence to support a motion to suppress is not required in a party’s moving papers. Cohen v. United States, 378 F.2d 751, 761 (9th Cir.1967) (stating a motion may be supported by affidavit, however, “in the absence of a court order or local rule such affidavits are not necessary ....”). In North Dakota, motions to suppress evidence require neither exquisite particularity nor supporting affidavits or other evidence. N.D.R.Crim.P. 47. Rule 47, N.D.R.Crim.P., states:

An application to the court for an order shall be made by motion which, unless made during a hearing or trial, shall be made in writing, state the grounds therefor, and set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. The motion may be supported by affidavit.

According to the explanatory note, Rule 47, N.D.R.Crim.P., is an adaptation of Rule 47 of the Federal Rules of Criminal Procedure. N.D.R.Crim.P. 47, Explanatory Note. The language is based on N.D.R.Civ.P. 7(b), with two exceptions. N.D.R.Crim.P. 47, Explanatory Note. First, N.D.R.Crim.P. 47, unlike N.D.R.Civ.P. 7(b), does not require the grounds for the motion be stated with particularity, and second, the use of affidavits is permissive. N.D.R.Crim.P. 47, Explanatory Note; United States v. Edgar Jones, 766 F.2d 994, 999 (6th Cir.1985) (stating Rule 47 does not specify the grounds for the motion be presented with particularity). A moving party “shall serve and file a brief and other supporting papers.” N.D.R.Ct 3.2. However, N.D.R.Ct. 1.1 “makes Rule 3.2 apply to all motion practice unless there is a conflicting rule governing the matter.” Duncklee v. Wills, 542 N.W.2d 739, 741 (N.D.1996). Because N.D.R.Crim.P. 47 conflicts with N.D.R.Ct. 3.2, Rule 47 controls the case at bar. See Duncklee, at 741.

[¶ 7] Furthermore, the rule is not intended to permit “speaking motions.” N.D.R.Crim.P. 47, Explanatory Note; United States v. William Allan Jones, 542 F.2d 661, 665 n. 7 (6th Cir.1976) (stating Rule 47 does not sanction the use of “speaking motions”). “Speaking motions” are motions supported by affidavits attempting to establish facts that are properly to be established only at trial or at a hearing where evidence is introduced. N.D.R.Crim.P. 47, Explanatory Note (citing Advisory Committee Note to Fed. R.Crim.P. 47). We conclude Fitterer was not required to present an affidavit or evidence in his motion to suppress.

[¶ 8] A defendant’s motion, however, must provide adequate notice to the trial court and the prosecution of the issues being raised. United States v. Love, 189 F.R.D. 557, 558-59 (D.Minn.1999) (stating while the Eighth Circuit “has not articulated a general rule allocating the burden of proof in suppression motions,” the District of Minnesota “has for its convenience followed the practice of placing the burden of raising suppression issues on the defendant.... ”); People v. Williams, 20 Cal.4th 119, 83 Cal.Rptr.2d 275, 973 P.2d 52, 58 (1999) (stating the defendant bears the burden of raising an issue in a motion to suppress). To satisfy N.D.R.Crim.P. 47, Fitterer’s motion need only provide adequate notice of the issues raised to the trial court and the prosecution. See Love, 189 F.R.D. at 559.

[¶ 9] Our case law confirms Fit-terer need only provide adequate notice of the issues raised in order to reach a hearing on his motion. As we have held, when a defendant challenges the validity of a checkpoint stop or how it was conducted, the State is on notice it has to produce evidence such as checkpoint guidelines, protocol, and testimony from officers verifying the checkpoint was validly performed. Uhden, 513 N.W.2d at 379; State v. Everson, 474 N.W.2d 695, 700 (N.D.1991); State v. Wetzel, 456 N.W.2d 115, 118-19 (N.D.1990); and State v. Goehring, 374 N.W.2d 882, 888 (N.D.1985). When Fitterer moved to suppress evidence obtained because he was not stopped for a violation or safety defect and he claimed the checkpoint stop was illegal, he either meant that the checkpoint was set up in violation of the Fourth Amendment or that law enforcement performed the checkpoint stop in violation of the Fourth Amendment. Additional pleading or evidence in Fitterer’s motion to suppress was not required. We conclude the trial court and the State had sufficient notice of the stated suppression grounds raised by Fitterer. To conclude otherwise would exalt form over substance. See Goehring, 374 N.W.2d at 886.

[¶ 10] However, our ruling here does not relieve a defendant of the burden of establishing a prima facie case at the motion hearing before the State is required to put on evidence. City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478; State v. Glaesman, 545 N.W.2d 178, 182 n. 1 (N.D.1996). Had the trial court conducted a hearing, the initial burden would have been Fitterer’s to show that he was not stopped for committing a traffic violation or for a vehicle safety defect, that in fact he was stopped merely because a checkpoint was being conducted. Because we have held checkpoint stops are neither per se constitutional nor per se unconstitutional, Uhden, 513 N.W.2d at 379, such an evidentiary showing, if made at the hearing, would constitute a sufficient prima facie case to shift to the State the burden of proving the checkpoint stop was in fact conducted appropriately and pursuant to protocols that did not violate the Fourth Amendment. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478.

[¶ 11] Fitterer sufficiently stated his grounds for suppression to provide the trial court and the State adequate notice of the constitutional issues he raised. He should have been afforded an opportunity to submit evidence of a prima facie case at the motion hearing. The trial court, therefore, erred when it granted the State’s motion and dismissed Fitterer’s motion to suppress for lack of specificity, without permitting him an opportunity to submit evidence of a prima facie case.

Ill

[¶ 12] Fitterer also argues his motion to suppress should have been granted because the State failed to provide discovery regarding the information related to the checkpoint in violation of N.D.R.Crim.P. 16. In light of the discussion above, we do not reach this issue and need not address it.

IV

[¶ 13] For the foregoing reasons, the trial court’s judgment of conviction entered on the jury’s verdict is reversed, and this matter is remanded with instructions to conduct a hearing on the motion to suppress, and for such other proceedings as may then be appropriate.

[¶ 14] GERALD W. VANDE WALLE, C.J., MARY MUEBLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

DALE V. SANDSTROM, J.

I concur in the result.


author: SANDSTROM, Justice.

text:
    2002 ND 178
    In the Matter of the ADOPTION OF S.A.L., a Minor Child. K.E.L., Petitioner and Appellee v. S.S.M., a minor child, C.L., his mother, Carol K. Olson, Executive Director of the North Dakota Department of Human Services, Respondents, D.B.M., his putative father, Respondent and Appellant.
    No. 20020027.
    Supreme Court of North Dakota.
    Nov. 5, 2002.

      Mary E. Nordsven, Hardy, Maus & Nordsven, P.C., Dickinson, for petitioner and appellee.
    Eugene F. Buresh, Dickinson, for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] D.B.M. appeals from a Southwest Judicial District Court judgment terminating his parental rights to S.A.L., formerly known as S.S.M., concluding he abandoned his child, the child was deprived, and it was in the best interest of the child to grant a petition for adoption by S.A.L.’s stepfather, K.E.L. We affirm, concluding the district court properly denied D.B.M.’s last-minute request for court-appointed counsel, and the evidence supports the termination of D.B.M.’s parental rights.

I

[¶ 2] D.B.M. and C.L. are the biological parents of S.A.L., a minor child born in October 1991. They were never married but cohabited during the months of December 1990 and January 1991. During their time together, D.B.M. was arrested in the State of Nevada for sexual assault, kidnapping, attempted murder, and robbery. While C.L. was pregnant, a jury convicted D.B.M. of sexual assault and kidnapping and sentenced him to serve two consecutive life terms at the Lovelock Correctional Center in Lovelock, Nevada. He was acquitted on the counts of attempted murder and robbery. While incarcerated in the State of Nevada, D.B.M. has violated prison rules and has admitted to past use of controlled substances. It is unlikely he will be paroled before S.A.L. reaches the age of majority.

[¶ 3] C.L. and D.B.M. communicated occasionally during S.A.L.’s first three years, and D.B.M. sent two gifts to C.L. for the child. There had been no communication between D.B.M. and C.L. for approximately five years until D.B.M. sent a letter to C.L.’s mother, making no mention of the child. D.B.M. has never seen or talked to the child and has never developed any type of parent-child bond or relationship. D.B.M. has never paid any financial support.

[¶ 4] On March 31, 1997, C.L. married K.E.L., who has known S.A.L. since the child was three and has supported him since he was four. The child has resided with C.L. and K.E.L. since their marriage.

[¶ 5] D.B.M. was advised of his right to counsel in the summons personally served upon him in December of 2000. The court notified D.B.M. of his right to court-appointed counsel in its January 26, 2001, order for continuance. D.B.M. filed, on his own behalf, an opposition to petition for termination of parental rights, discovery documents, and various motions. In a September 20, 2001, memorandum opinion, the court again informed D.B.M. of his right to counsel, encouraging him to apply and pointing out that the court files contained numerous examples of D.B.M.’s unfamiliarity with North Dakota law and court procedures.

[¶ 6] Six days before the hearing, D.B.M. mailed an application for counsel. The application, however, was not received by either the trial judge or the opposing counsel prior to the January 9, 2002, hearing. At the hearing, D.B.M. appeared telephonically and orally requested to be represented by counsel. The court denied the request, and D.B.M. represented himself. Under N.D.C.C. § 14-15-19(3)(a)-(c), the district court terminated D.B.M.’s parental rights. The district court said there was no doubt D.B.M. was entitled to court-appointed counsel, but denied his request because it was untimely. The district court held D.B.M.’s delay was an effective waiver of his right to counsel under State v. Dvorak, 2000 ND 6, ¶ 15, 604 N.W.2d 445.

[¶ 7] D.B.M. appeals, represented by counsel, arguing the trial court’s failure to appoint counsel violated his rights under N.D.C.C. § 14-15-06 and under article I, section 21, of the North Dakota Constitution.

[¶ 8] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06, 27-20-44, and 14-15-19. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 9] Whether the district court’s non-appointment of counsel violated D.B.M.’s due process rights is a constitutional question. In reviewing a district court’s denial of a request for appointed counsel, we inquire whether the district court acted arbitrarily, unconscionably, or unreasonably. State v. DuPaul, 527 N.W.2d 238, 240 (N.D.1995).

[¶ 10] A parent’s relationship with a biological child is entitled to constitutional protection, but that relationship is neither absolute nor unconditional. See, e.g., Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter v. Dep’t of Social Services, 452 U.S. 18, 26-27,101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Adoption of K.A.S., 499 N.W.2d 558, 567 (N.D.1993). A court, however, cannot irrevocably sever a parent’s relationship with a biological child without first granting the parent certain procedural protections afforded by due process. See, e.g., Santosky, at 747-48, 102 S.Ct. 1388; Lassiter, at 24-25, 101 S.Ct. 2153. An incarcerated parent’s due process rights are generally satisfied if the “prisoner is represented at the termination hearing by counsel and has an opportunity to appear by deposition or other discovery technique.” Adoption of J.W.M., 532 N.W.2d 372, 376 (N.D.1995).

[¶ 11] However, “the very nature of procedural due process ‘negates the concept of inflexible procedures universally applicable to every imaginable situation; instead, the requirements imposed by [due process] are flexible and variable and dependent upon the particular situation being examined.’” Id. at 376-77 (quoting Jensen v. Satran, 332 N.W.2d 222, 227 (N.D.1983)). The United States Supreme Court held in Mathews v. Eldridge that procedural due process must be analyzed under a balancing test, which:

generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

[¶ 12] In Santosky and Lassiter, the United States Supreme Court expanded the flexible contours of procedural due process in termination of parental rights after analyzing each case under the El-dridge balancing test. Santosky, 455 U.S. at 758, 102 S.Ct. 1388; Lassiter, 452 U.S. at 27, 101 S.Ct. 2153. In Santosky, the Court held due process requires any allegations against the parent be supported by at least clear and convincing evidence before a state can sever parental rights. Santosky, at 769, 102 S.Ct. 1388. Such a heightened standard of proof is needed to avoid factual determination errors. Id.

[¶ 13] In Lassiter, the Court considered whether the federal due process clause required appointment of counsel for indigent parents in every parental termination proceeding. Lassiter, 452 U.S. at 31, 101 S.Ct. 2153. The Court balanced the Eldridge factors against each other and against the presumption that an indigent litigant is entitled to appointed counsel only in cases in which deprivation of physical liberty is involved. Id. In Lassi-ter, the Court held that the Constitution does not mandate the appointment of counsel for indigent parents in every proceeding to terminate parental rights. Id. at 32, 101 S.Ct. 2153. Instead, under the federal due process clause, a district court, in the exercise of sound judicial discretion and subject to review on appeal, must decide whether, under the circumstances of the case, due process requires the appointment of counsel for an indigent parent. Id.

[¶ 14] D.B.M. argues his state equal protection rights have been violated. Under North Dakota law, involuntary termination of parental rights may be accomplished under three separate provisions: (1) the Uniform Juvenile Court Act (see N.D.C.C. § 27-20-4:5); (2) the Uniform Parentage Act (see N.D.C.C. § 14-17-24); or (3) the Revised Uniform Adoption Act (see N.D.C.C. § 14-15-19). Under the Revised Uniform Adoption Act, which applies to this case:

parental rights may be terminated if any ground exists for termination under the Juvenile Court Act or the Parentage Act; if the child has been abandoned by the parent; if the child is suffering or probably will suffer serious harm because of the misconduct, faults, habits, or physical or mental incapacity of the parent; or, if the parent who does not have custody of the child unreasonably withholds consent to the termination, contrary to the best interests of the child.

Adoption of K.A.S., 499 N.W.2d 558, 560-61 (N.D.1993).

[¶ 15] This Court has recognized that our state constitution grants rights to parents in termination proceedings that are broader than the rights granted under the federal constitution. See, e.g., K.A.S., 499 N.W.2d at 563. Under N.D.C.C. § 14-15-19(6), in a proceeding under the Revised Uniform Adoption Act, our equal protection provision requires appointment of counsel for an indigent parent who faces termination of parental rights. Id. at 563. However, “[i]f the trial court determines that the party is indigent, the court must appoint counsel to represent that person, unless the right is waived.” Id. at 567 (emphasis added).

[¶ 16] We have not adopted a standard for determining waiver of counsel in the context of parental termination cases. Waiver of counsel in criminal cases, however, may provide helpful guidance in evaluating the validity of a waiver in a parental rights termination proceeding. In comparing parental termination cases to criminal cases, this Court has noted that the serious threat to a fundamental interest of a parent is not so different from the serious threat to the physical liberty of a criminal defendant. K.A.S., 499 N.W.2d at 563.

[¶ 17] Under our criminal caselaw, defendants who represent themselves must voluntarily, knowingly, and intelligently relinquish the benefits of counsel. State v. Dvorak, 2000 ND 6, ¶ 10, 604 N.W.2d 445. "Whether a defendant’s waiver of the right to counsel was knowing and intelligent depends on the facts and circumstances of each case. State v. Har mon, 1997 ND 233, ¶22, 575 N.W.2d 635. To intelligently and knowingly choose self-representation, a defendant should be aware of the dangers and disadvantages of proceeding without the skill and experience of counsel. Dvorak, at ¶ 10. The record must establish that the choice was made “with eyes open.” Id. (citing Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)).

[¶ 18] A defendant need not make unequivocal statements indicating a voluntary desire for self-representation. Harmon, 1997 ND 233, ¶¶15, 21, 575 N.W.2d 635. The defendant’s conduct may be the functional equivalent of a voluntary waiver of the right to counsel. Id. at ¶ 15. We have concluded that a manipulative pattern of obstructing the legal process is the functional equivalent of a voluntary waiver of right to counsel. Dvorak, 2000 ND 6, ¶ 15, 604 N.W.2d 445.

[¶ 19] D.B.M.’s actions were a functional equivalent of a voluntary waiver. In August 2001, eight months after having been admonished by the district court in its January 2001 memorandum opinion for not being familiar with North Dakota law and court procedures, D.B.M. continued to represent himself. D.B.M. continued to file numerous documents with the court and did not mail an application for counsel until six days before the hearing. D.B.M.’s late request and prior actions give the appearance of manipulation to delay the hearing and obstruct the legal process. D.B.M.’s excuse that he did not have time to use the prison library is not persuasive. The forms for appointment of counsel sent to D.B.M. in January 2001 did not require library assistance to complete. Even if D.B.M. believed he needed library assistance, it is not plausible that he could not have found time to use the prison library during the entire year prior to the hearing. D.B.M. also claimed he could not request counsel because he was dealing with another appeal. That D.B.M. had another pending appeal is more reason to conclude he had knowledge that a timely application for counsel would better serve his interests in this civil case.

[¶ 20] We next analyze the record, facts, and circumstances of each case to determine whether the functional waiver was knowing and intelligent. Dvorak, 2000 ND 6, ¶ 16, 604 N.W.2d 445. The district court not only sent D.B.M. an application and twice advised him of his right to counsel, but went further and admonished him in its September 20, 2001, memorandum opinion, stating:

[D.B.M.] is not even on the same page as the Court or other parties in this proceeding. [D.B.M.] has been applying the federal rules of procedure which is completely inappropriate. This action is a state court action that will be decided according to North Dakota laws and court rules and procedures. The Court rejects [D.B.M.’s] contention that petitioner has somehow stipulated or agreed that federal law and the federal rules of procedure would apply to this case. In order to put to rest any doubt in this area the Court hereby ADMONISHES and advises [D.B.M.] that North Dakota law and the North Dakota rules of court apply to this proceeding. It is inappropriate to rely on federal law or federal rules of procedure or to argue that they are determinative in this case.
The Court in its order dated January 26, 2001, informed [D.B.M.] of his right to counsel under North Dakota law, including his right to court appointed counsel, and instructed that an application be sent to [D.B.M.] by the clerk of court. Despite this information, no application for counsel has ever been received from [D.B.M.].
In the event there has been some misunderstanding, the Court reiterates that [D.B.M.] has a right to be represented by counsel in this proceeding, including court appointed counsel if he is indigent. (It appears obvious that [D.B.M.] is indigent.) See N.D.C.C. § 14-15-19.1.
[D.B.M.] has demanded a jury trial. Assuming [D.B.M.] was serious about his request, it is difficult to understand how [D.B.M.] would conduct such a jury trial representing himself. First of all, [D.B.M.] would be unfamiliar with court procedures. Second, [D.B.M.] would not be physically present, making it difficult to conduct such a trial over the phone. If [D.B.M.] was indeed serious about his request and not filing such a demand for the purpose of harassment or delay, would he not want the assistance of local counsel?

[¶ 21] The district court concluded, “In addition, the Court as outlined above, again advises the Respondent, [D.B.M.], of his right to counsel and strongly encourages him to take advantage of the same.” D.B.M. was fully aware of his right to court-appointed counsel and was warned of the dangers and disadvantages in representing himself. When D.B.M. decided to continue to represent himself, he did so knowingly and intelligently.

[¶ 22] The district court did not abuse its discretion by denying D.B.M.’s motion for court-appointed counsel. A review of the district court record makes clear that D.B.M. was fully aware of his right to court-appointed counsel, understood the dangers and disadvantages of self-representation, and proceeded with eyes wide open. The district court did not act arbitrarily, unconscionably, or unreasonably. Under these circumstances, the district court did not refuse D.B.M. court-appointed counsel; rather, the district court properly held his motion was untimely and concluded he voluntarily and knowingly waived his right.

Ill

[¶ 23] The district court’s judgment terminating D.B.M.’s parental rights to S.A.L. is affirmed.

[¶ 24] VANDEWALLE, C.J., and NEUMANN, MARING and KAPSNER, JJ., concur.


author: PER CURIAM.

text:
    2002 ND 181
    In the Matter of DISCIPLINARY ACTION AGAINST Jonathan T. GARAAS, a Member of the Bar of the State of North Dakota. Paul W. Jacobson, Disciplinary Counsel, Petitioner v. Jonathan T. Garaas, Respondent. Jonathan T. Garaas, Petitioner v. Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent.
    Nos. 20020103, 20020113.
    Supreme Court of North Dakota.
    Nov. 15, 2002.

      Paul W. Jacobson, Bismarck, ND, for petitioner.
    Ronald H. McLean (argued) and Timothy G. Richard (on brief), Serkland Law Firm, Fargo, ND, for respondent.
   PER CURIAM.

[¶ 1] Jonathan T. Garaas and Disciplinary Counsel have both petitioned for review of a hearing panel’s report and order of reprimand, which found Garaas had violated the North Dakota Rules of Professional Conduct and ordered that Garaas be publicly reprimanded and pay costs of the disciplinary proceeding. We conclude Ga-raas has violated N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e), and we order that he be publicly reprimanded and pay the costs of the disciplinary proceedings in the amount of $7,312.42.

I

[¶ 2] Garaas has represented TAG Investments in lengthy and contentious litigation with Matrix Properties Corporation over a disputed option to purchase real estate. That litigation has spawned numerous appeals. See Matrix Properties Corp. v. JCG Investments, L.L.C., 2002 ND 99, 647 N.W.2d 706; Matrix Properties Corp. v. TAG Investments, 2002 ND 86, 644 N.W.2d 601; Matrix Properties Corp. v. TAG Investments, 2001 ND 128, 636 N.W.2d 674; Matrix Properties Corp. v. TAG Investments, 2000 ND 213, 622 N.W.2d 432; Matrix Properties Corp. v. TAG Investments, 2000 ND 88, 609 N.W.2d 737. This disciplinary proceeding arose out of Garaas’s conduct at post-judgment proceedings in the Matrix litigation occurring in November 2000 and January 2001.

[¶ 3] At a November 7, 2000, hearing on Matrix’s motion to compel transfer of the real estate, Garaas made repeated assertions that opposing counsel was making false representations of fact and had lied to the court. Garaas at one point stated:

Your Honor, I cannot let it go by one more time because Mr. Spaeth just lied to you one more time.... That representation by Mr. Spaeth is an absolute falsehood and he can’t get away with it anymore.... And we will never accept Mr. Spaeth’s false representation in violation of the Canons and in violation of every concept of due process that I know.

[¶ 4] At status conference on January 2, 2001, Garaas argued the court lacked jurisdiction in the matter because there was an appeal pending in this Court. The trial judge asked Garaas if his client would sign deeds conveying the disputed property if ordered to do so by the court at a court-supervised closing scheduled for January 5, 2001. In responding to the court’s question, Garaas suggested that the trial judge was placing himself “at risk”:

There is a lot of things that are going to have to be resolved, and I guess frankly I have a question in my mind as to whether or not the Court wants to enter into a course of action that places the trial court judge and the State of North Dakota at risk....
So when you ask me a question as to whether or not we are going to sign a deed, there are so many things that still have yet to be resolved that why would the Court want to put this Court and the State of North Dakota at risk when we are guaranteed to have another lawsuit, guaranteed to have another trial to determine whether or not there has been damages or a quiet title action and establish what the record is for this property.

[¶ 5] On January 5, 2001, the court held a “Court Overseen Closing” to convey the disputed property. At the outset of that proceeding, the trial court stated it was acting pursuant to this Court’s December 12, 2000, opinion in Matrix Properties, 2000 ND 213, 622 N.W.2d 432, in which we summarily affirmed an earlier post-judgment order and directed the trial court “to order specific performance requiring TAG and Grettum to convey the subject property upon tender by Matrix of the purchase price set in the 1996 option agreement.” Garaas again argued the trial court lacked jurisdiction to order conveyance of the property, and asserted this Court had falsely represented the issues in the prior appeal:

The first issue was that the North Dakota Supreme Court has wrongfully identified the issue on appeal. Actually they made a false representation of what the issue was being appealed.

[¶ 6] At the January 5 hearing Garaas was allowed to argue at length, challenging jurisdiction of the trial court and whether Matrix had complied with the terms of the option. The court ultimately determined Matrix was prepared to tender payment of the purchase price and indicated it was TAG’S “last chance” to execute deeds conveying the property or it would be judicially conveyed. The court then asked Garaas and his client, “Do you wish to comply with the order of the Court to convey this property?” After Garaas again reiterated his argument that Matrix had failed to comply with the option and the option had expired, the following colloquy occurred between Garaas and the court:

THE COURT: The Defendant — the Defendant’s counsel [Garaas] in the presence of the Court has informed the Court that they’ll not comply with the Court’s order. Proceed.
MR. GARAAS: Which Court order are you talking about, Your Honor?
THE COURT: The order to convey it’s [sic] property.
MR. GARAAS: Which one was that, Your Honor?
THE COURT: The one they just made.
MR. GARAAS: At this point in time?
THE COURT: Yes.
MR GARAAS: On what legal basis, Your Honor?
THE COURT: Enough. Sit. Enough.
MR. GARAAS: On what legal basis? I only ask that this Court identify on what legal basis it acts, because my client has a right to know. My client has a right to due process of law, Your Honor.
THE COURT: Proceed.
MR. GARAAS: You will not answer my question, Your Honor?
THE COURT: Mr. Garaas, I’ve already put on the record that we’re proceeding pursuant to the Supreme Court’s directive of December 12th.
MR. GARAAS: And how does the court get around the fact that it isn’t a final Supreme Court order and the mandate has not been returned to you and jurisdiction still is at the Supreme Court, Your Honor? How can this Court act in derogation of it’s [sic] duties to honor the fact that jurisdiction is now at the Supreme Court level not back here. This Court can’t act, Your Honor, on the basis of the December 12, 19 — of the year 2000 decision of the Supreme Court. How can the Court act when it doesn’t have jurisdiction based upon that order, Your Honor? My client would like to know.
THE COURT: The Court’s been directed by the Supreme Court to proceed. The Supreme Court directs the District Court what to do. I am proceeding under that directive.
MR. GARAAS: Is there a directive that’s different than the December 12, 2000, order, Your Honor? Has there been direct communication between the Supreme Court and this Court that is not of record and not reported on December 12th. Because there is no such directive other than the December 12th and that’s not a final order. Is there a directive from the Supreme Court to this Court to proceed today that is not placed of record, Your Honor? Have you had telephone conversations with any member of the Supreme Court?
THE COURT: Mr. Garaas, of course not. But this now is getting to be ridiculous. You’ve tried these arguments now in front of eight different judges, five in the Supreme Court, Judge Erickson, this Court, Judge Webb. It’s over now so we’re gonna proceed. Go ahead.
MR. GARAAS: Has there been communications with any representative of the Supreme Court of North Dakota?
THE COURT: Sit down now, Mr. Garaas. Proceed.
MR. GARAAS: May I — my client and I would like to know, Your Honor.
THE COURT: Mr. Garaas, this is the last time now before I ask you to be removed from the Court. We’re gonna proceed with the hearing. Your partner will have to sit in your place. But this is beyond any appropriate measure of conduct for an attorney.
MR. GARAAS: I merely wanted to know what jurisdiction the Court was exercising, Your Honor.
THE COURT: Proceed.

[¶ 7] The court ultimately ordered judicial conveyance of the property. At the conclusion of the January 5 hearing, the trial court stated:

The Court’s repeatedly heard arguments as to deficiencies in the Plaintiffs attempt to close this matter but these matters have been adjudicated or have no merit. The Defendants’ arguments from the Court’s perspective are for the purposes of delay....
This has been a case that’s involved a lot of patience I guess on all parties involved. The Court’s been disappointed in some of the conduct exhibited here with the way other officers of the Court have been treated, the way this Court and the Supreme Court has been referred to in these proceedings as doing or considering anything inappropriate.

[¶ 8] At the disciplinary hearing, the trial judge characterized Garaas’s behavior as “threatening,” “defiant,” and “obstructionist,” and stated “I didn’t view him as attempting to help the Court resolve the matter on a legal basis.” When asked about Garaas’s comment that the judge might be putting himself “at risk,” the judge testified he perceived it “as a threat to sue me personally” and “viewed it as an attempt to stop or delay the process of the Court’s attempt to enforce the judgment.”

[¶ 9] A petition for discipline was served charging Garaas with violations of N.D.R. Prof. Conduct 3.5(a), 3.5(b), 4.4, and 8.4(e), and N.D.R. Lawyer Discipl. 1.2(A)(8). The hearing panel concluded Garaas’s “at risk” comments and the lengthy colloquy with the trial court during the January 5 hearing violated the disciplinary rules. The hearing panel further concluded Garaas’s statement that Mr. Spaeth had lied did not constitute a breach of N.D.R. Prof. Conduct 4.4, and that Ga-raas’s statement that this Court had made a false representation, while improper, had not been pleaded as a basis for discipline. Taking into consideration substantial mitigating circumstances, the hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings in the amount of $7,312.42. Both Garaas and Disciplinary Counsel petitioned for review of the hearing panel’s report and order of reprimand. We granted the petitions for review.

[¶ 10] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Garaas and Disciplinary Counsel timely filed petitions for review under N.D.R. Lawyer Discipl. 3.1(F)(1). This Court has jurisdiction under N.D.R. Lawyer Discipl. 3.1(F)(1).

II

[¶ 11] We review disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. We accord due weight to the findings and conclusions of the hearing panel, but we do not act as a mere rubber stamp. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.

[¶ 12] Rule 3.1(F)(1), N.D.R. Lawyer Discipl., requires the petition for review of a hearing panel’s order of reprimand to contain “a clear statement of the reasons petitioner believes the panel’s decision is arbitrary, capricious, or unreasonable.” That language is relevant only to our initial determination whether to grant the petition for review. If the petition is granted, and briefing and oral argument are ordered under N.D.R. Lawyer Discipl. 3.1(F)(1), we employ our traditional de novo review in determining whether discipline is warranted and the appropriate sanctions to be assessed. See Toth v. Disciplinary Board, 1997 ND 75, ¶¶ 10-11, 562 N.W.2d 744 (the “arbitrary, capricious, or unreasonable” standard under N.D.R. Lawyer Discipl. 3.1(D)(8) governs only the initial determination whether to grant leave to appeal from an informal disposition, and this Court will review the substantive evidence and the merits de novo on the record).

[¶ 13] Disciplinary Counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. Each disciplinary case must be considered on its own facts to decide what discipline is warranted. Edwardson, at ¶ 9; Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.

Ill

[¶ 14] Disciplinary Counsel argues the hearing panel erred in concluding that Garaas’s statements about this Court making false representations “were not part of the petition for discipline.”

[¶ 15] The hearing panel did not explain the basis for its conclusion these statements were not part of the petition for discipline. The petition for discipline quoted Garaas’s statements that this Court had “wrongfully identified the issue on appeal” and had “made a false representation of what the issue was being appealed.” The petition alleged Garaas’s conduct violated N.D.R. Prof. Conduct 8.4(e), which provides it is professional misconduct to engage in conduct that is a basis for revocation or suspension of a lawyer’s certificate of admission, and N.D.C.C. § 27-13-01(1), which provides that an attorney shall maintain respect for courts of justice and judicial officers.

[¶ 16] Although there is no dispute that the petition alleges that Garaas made the statements about this Court, Garaas contends that the petition failed to specifically detail the statutes and rule that would make his conduct sanctionable. Garaas claims the pleading is defective because it fails to specifically enumerate N.D.C.C. § 27-14-02(3), which is a necessary middle step between Rule 8.4(e) and N.D.C.C. § 27-13-01(1).

[¶ 17] In order to place Garaas’s argument in context, a brief overview of the interplay between the rule and statutes is helpful. Rule 8.4(e) provides that it is professional misconduct for a lawyer to “engage in other conduct that is enumerated in the North Dakota Century Code as a basis for revocation or suspension of a lawyer’s certificate of admission.” Section 27-14-02(3), N.D.C.C., provides that a lawyer’s certificate may be revoked or suspended if he willfully violates any of the duties of an attorney or counselor at law. Section 27-13-01(1), N.D.C.C., enumerates the duties of attorneys, and provides that every lawyer and counselor at law shall “[m]aintain respect for courts of justice and judicial officers.” Thus, an attorney may be sanctioned for failing to maintain respect for the court.

[¶ 18] Garaas contends the petition failed to properly plead a violation based upon Garaas’s statements because it did not specifically refer to N.D.C.C. § 27-14-02(3). Our rules for pleading in disciplinary proceedings are not so strict and arcane. Rule 3.1(E)(1), N.D.R. Lawyer Dis-cipl., provides that the petition must be “sufficiently clear and specific to inform the lawyer of the alleged misconduct.” In addition, N.D.R. Lawyer Discipl. 3.5(B) provides that, except as otherwise provided and insofar as appropriate, the North Dakota Rules of Civil Procedure apply in disciplinary proceedings. See In re Howe, 2001 ND 7, ¶ 7, 621 N.W.2d 361. Under the civil rules, a pleading is sufficient if it contains (1) a short, plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for the relief the pleader seeks. N.D.R.Civ.P. 8(a); Kaler v. Kraemer, 1998 ND 56, ¶ 7, 574 N.W.2d 588; In re Estate of Hill, 492 N.W.2d 288, 296 (N.D.1992).

[¶ 19] Both N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.Civ.P. 8(a) adopt notice pleading, where the purpose is to place the party on notice as to the nature of the pleader’s claim, and pleadings that indicate generally the type of claim that is involved are sufficient. See Estate of Hill, 492 N.W.2d at 296; Jablonsky v. Klemm, 377 N.W.2d 560, 565 (N.D.1985). Pleadings are to be liberally construed to do substantial justice. See N.D.R.Civ.P. 8(f); Kaler, 1998 ND 56, ¶ 7, 574 N.W.2d 588; Estate of Hill, at 296. Under these liberal pleading rules, a pleading need not specifically allege every element of the claim. Kaler, at ¶ 7; Jablonsky, at 565.

[¶ 20] The petition for discipline in this case unambiguously placed Garaas on notice of the nature of the “claim” against him. The specific facts were alleged, including quotation of the exact statements alleged to have violated the rules. The petition further specified that Garaas’s conduct violated N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e). Any doubt whether violation of a duty of an attorney under N.D.C.C. § 27-13-01 was a sanctionable offense is dispelled by the Comment to N.D.R. Prof. Conduct 8.4, which specifically enumerates N.D.C.C. § 27-13-01 as one of the statutes providing the basis for revocation or suspension of a lawyer’s certificate of admission, and thus for sanctions under the rule. Furthermore, this Court has explicitly stated that failure to maintain respect for the court under N.D.C.C. § 27-13-01(1) will provide the basis for sanctions under N.D.R. Prof. Conduct 8.4(e). See In re Gronneberg, 2001 ND 158, ¶ 12, 634 N.W.2d 491.

[¶ 21] We conclude the petition adequately placed Garaas on notice of the nature of the allegations against him and satisfied the requirements of N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.CivP. 8(a).

IV

[¶ 22] There is no real factual dispute about Garaas’s conduct. All of the alleged misconduct consisted of statements made in open court, and Garaas does not dispute the accuracy of the transcripts of what he said. The dispositive issue is whether Ga-raas’s conduct constituted ethical violations. Garaas contends that his conduct during the hearings did not violate the disciplinary rules, but was merely zealous representation of his client.

[¶ 23] Garaas argues that his conduct, while perhaps at times impolite, was merely zealous representation of his client. “[A] lawyer is not always protected by following the client’s specific directions.” In re Boulger, 2001 ND 210, ¶27, 637 N.W.2d 710 (Sandstrom, J., concurring). Not every lawyer excess is justified by the mantra of zealous representation.

[¶ 24] The Comment to N.D.R. Prof. Conduct 3.5 explains:

The lawyer’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the lawyer’s right to speak on behalf of litigants.... A lawyer can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

Similarly, the Supreme Court of Minnesota has stated:

Respondent asserts he has a right, indeed an obligation, to represent his clients vigorously, aggressively, and zealously. To be vigorous, however, does not mean to be disruptively argumentative; to be aggressive is not a license to ignore the rules of evidence and decorum; and to be zealous is not to be uncivil.

In re Williams, 414 N.W.2d 394, 397 (Minn.1987).

[¶ 25] There is a line of demarcation between zealous representation of a client and unethical conduct.

V

[¶ 26] Garaas argues the statements he made are protected under the First Amendment and he cannot be sanctioned for exercising his right to free speech. Relying upon Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991), Garaas argues “an attorney may not be disciplined based solely on his/her speech unless such speech becomes so extreme as to become prejudicial to the administration of justice.”

[¶ 27] Garaas has misread Gentile. While the Court concluded that a lawyer’s out-of-court speech could be the basis for disciplinary sanctions if it creates a “substantial likelihood of material prejudice” in a pending case, see id. at 1074-75, 111 S.Ct. 2720, the Court noted that a lawyer’s free speech rights in a courtroom are even more limited:

It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to “free speech” an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.

Id. at 1071, 111 S.Ct. 2720.

[¶ 28] The First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding. Addressing Gentile in a disciplinary proceeding, the Supreme Court of Missouri concluded:

An attorney’s free speech rights do not authorize unnecessary resistance to an adverse ruling.... Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge.

In re Coe, 903 S.W.2d 916, 917 (Mo.1995).

[¶ 29] The United States Court of Appeals for the First Circuit, addressing a lawyer’s claim of free speech rights in the courtroom, noted:

A courthouse — and, especially, a courtroom — is a nonpublic forum. A courtroom’s very function is to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum. In carrying out this responsibility, the judge must ensure “that [the] courthouse is a place in which rational reflection and disinterested judgment will not be disrupted.”

Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir.1997) (citations omitted) (quoting Ryan v. County of DuPage, 45 F.3d 1090, 1095 (7th Cir.1995)).

[¶ 30] A lawyer’s right to exercise free speech does not permit a lawyer appearing in a judicial proceeding in open court to call opposing counsel a liar, to threaten a judge with personal liability if he rules a certain way, to accuse an appellate court of false misrepresentation, or to engage in a lengthy, disruptive, belligerent, and disrespectful exchange with the court. We conclude that sanctioning Garaas for his statements during the post-judgment proceedings does not violate his right to free speech.

VI

A

[¶ 31] At the November 7, 2000, hearing, Garaas accused opposing counsel of lying to the court. Disciplinary Counsel argues this conduct violated N.D.R. Prof. Conduct 3.5(b) and 4.4.

[¶ 32] Rule 4.4, N.D.R. Prof. Conduct, requires that, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person.” Rule 3.5(b), N.D.R. Prof. Conduct, states that a lawyer “shall not ... engage in conduct intended to disrupt a tribunal.” The commentary to Mod. R. Prof. Conduct 3.5(c), which is identical to N.D.R.Prof. Conduct 3.5(b), indicates that, “[although there is no bright-line rule defining conduct viola-tive of Rule 3.5(c), disruptive conduct is commonly evaluated in light of the totality of the circumstances.” American Bar Association Center for Professional Responsibility, Annotated Model Rules of Professional Conduct 343 (3d ed.1996).

[¶ 33] Garaas’s conduct in accusing opposing counsel of lying to the court was reprehensible. See Johnson v. Johnson, 544 N.W.2d 519, 522 (N.D.1996). Viewing this conduct in light of the totality of the circumstances, however, we do not conclude there was a violation of N.D.R. Prof. Conduct 3.5(b) or 4.4, and Disciplinary Counsel has not argued the conduct violated other provisions.

B

[¶ 34] At the January 2, 2001, status conference, Garaas warned the trial judge that he would be placing himself “at risk” if he continued with the proceedings and ordered Garaas’s client to sign the deeds. Garaas’s statement was a clear threat to sue the judge personally. At the disciplinary hearing, the trial judge testified he perceived Garaas’s statements “as a threat to sue me personally” and “viewed it as an attempt to stop or delay the process of the Court’s attempt to enforce the judgment.” Rule 3.5(a), N.D.R. Prof. Conduct, states that a lawyer shall not “seek to influence a judge ... by means prohibited by law.” A judge must be free to determine cases based upon the evidence and applicable law, without threats of potential personal liability. See N.D.Code Jud. Conduct Canon 3(B)(2). Garaas’s threat that the judge was placing himself “at risk” violated N.D.R. Prof. Conduct 3.5(a).

C

[¶ 35] At the January 5, 2001, hearing, Garaas stated that this Court had “made a false representation of what the issue was” in an earlier appeal. Section 27-13-01(1), N.D.C.C., provides that a lawyer must “[m]aintain respect for courts of justice.” As previously discussed, a violation of a lawyer’s duty under N.D.C.C. § 27-13-01(1) is sanctionable under N.D.R. Prof. Conduct 8.4(e). While a lawyer is certainly free to register his disagreement with a court’s ruling, he must do so without showing disrespect to the court. Garaas’s statement that this Court made a “false representation” carries a connotation of intentional wrongful conduct. We conclude Garaas’s statement crossed the line beyond criticism to disrespectful assertion of wrongdoing by the Court, and constitutes a violation of N.D.R. Prof. Conduct 8.4(e).

D

[¶ 36] During the January 5 hearing, Garaas also engaged in the lengthy colloquy with the court in which Garaas repeatedly questioned the court on what basis it was proceeding and accused the court of having ex parte contacts with the Supreme Court. Garaas’s conduct can be characterized as disruptive, belligerent, and disrespectful. Rule 3.5(b), N.D.R. Prof. Conduct, provides a lawyer shall not “engage in conduct intended to disrupt a tribunal.” Under N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e), a lawyer is also prohibited from engaging in conduct that fails to maintain proper respect for the court. Garaas’s conduct was disruptive, belligerent, and disrespectful to the court and violated N.D.R. Prof. Conduct 3.5(b) and 8.4(e).

VII

[¶ 37] Civility is not too much to expect in a civilized society’s alternative to brute force, stealth, and deception. In the final analysis, we will not allow this lawyer to drag to a new low the baseline of acceptable courtroom conduct. Garaas’s conduct went beyond acceptable zealous representation and constituted violations of the disciplinary rules.

[¶ 38] We have determined Garaas violated various disciplinary rules by his conduct at the post-judgment proceedings. The hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings. The hearing panel found substantial mitigating factors on Garaas’s behalf.

[¶ 39] We have considered the nature of Garaas’s conduct, the multiple violations, Garaas’s prior disciplinary record, and the substantial mitigating factors. We conclude that under the circumstances of this case, a public reprimand and payment of costs are appropriate sanctions.

[¶ 40] We order that Garaas be publicly reprimanded for violating N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e). We further order that Garaas pay the costs of the disciplinary proceedings in the amount of $7,312.42.

[¶ 41] VANDEWALLE, C.J., SANDSTROM, NEUMANN and MARING, JJ., and JAMES H. O’KEEFE, Surrogate Judge, concur.

[¶ 42] The Honorable JAMES H. O’KEEFE, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.


text:
    2002 ND 165
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST the Honorable Mary C. BERG, Judge of the Devils Lake, North Dakota Municipal Court. Judicial Conduct Commission, Petitioner, v. Mary C. Berg, Respondent.
    No. 20020302.
    Supreme Court of North Dakota.
    Nov. 4, 2002.
   PER CURIAM.

[¶ 1] Mary C. Berg was judge of the Devils Lake Municipal Court at all times material to these disciplinary proceedings, and in that capacity was responsible for the administration of the Devils Lake Municipal Court.

[¶ 2] Berg was served with Formal Charges on July 19, 2002, and submitted her Answer to the Hearing Panel on August 1, 2002. Berg and Paul W. Jacobson, Disciplinary Counsel, filed an Agreement and Affidavit which was accepted by the Hearing Panel on October 25, 2002. The Agreement and Affidavit were submitted to the Supreme Court for consideration under R. Jud. Conduct Comm. 14.

[¶ 3] Berg admits that in 2000, the Municipal Court did not forward demands for change of judge to the District Court which resulted in several criminal cases being dismissed for lack of speedy trial.

[¶ 4] Berg further admits that in early 2002, the City of Devils Lake filed a number of demands for change of judge but no action was taken by the Municipal Court. Additionally, between September 2001 and February 2002, approximately nineteen other Municipal Court cases were not processed by the Court.

[¶ 5] Berg further admits that between July 1, 2001, and January 31,' 2002, the Municipal Court failed to notify the Devils Lake Police Department of dispositions of traffic citations, and failed to report violations to the State licensing authority. Additionally, the Municipal Court did not dispose of approximately. 145 cases involving “long form” complaints processed by the Devils Lake Police Department for the year 2001.

[¶ 6] Berg admits that she did not properly supervise the municipal court clerk in the performance of her duties, thereby allowing the clerk to steal in excess of ten thousand dollars from funds held by the Devils Lake Municipal Court.

[¶ 7] Berg resigned as judge of the Devils Lake Municipal Court on August 30, 2002.

[¶ 8] Berg admits that her conduct violated Canon 3C(1) and (2), North Dakota Code of Judicial Conduct, which provides that a judge shall diligently discharge the judge’s administrative responsibilities, and require staff to observe the standards of fidelity and diligence that apply to the judge.

[¶ 9] Berg agrees to a censure by the Supreme Court, and to the sanction of not serving in the future as a municipal judge.

[¶ 10] ORDERED, the Affidavit and Agreement are accepted and Mary C. Berg is hereby censured.

[¶ 11] FURTHER ORDERED, Mary C. Berg will not be permitted to serve as a municipal judge in the future.

[¶ 12] VANDEWALLE, C.J., and NEUMANN, SANDSTROM, MARING and KAPSNER, JJ., concur.