text:
    2005 ND 106
    Henry D. KLINDT, Carlton Heck, Joseph E. Phillips, Dennis Berg, Alfred Byron, Mary Ridley, Orville Simundson, Bill Hardy, Terry Busse, Shane Heck, Grace Busse, Allan Smith, Laurel Brusseau, Laurel Smith, Wade Klindt, Rosanna Carignan, Ronald Carignan, Bonnie Carignan, Randy Carignan, Richard Heck, Eggert J. Einarson, Floyd Simundson, Elden Syrup, Tim Smith, Arni Johnson, Dick Simundson, Petitioners, Appellees and Cross-Appellants v. PEMBINA COUNTY WATER RESOURCE BOARD, Respondent, Appellant and Cross-Appellee and Pembina Board of County Commissioners, Respondent.
    No. 20040299.
    Supreme Court of North Dakota.
    June 2, 2005.
    Rehearing Denied July 13, 2005.

      Joseph J. Cichy, Olson Cichy Bliss, Bismarck, ND, for petitioners, appellees and cross-appellants.
    Neil W. Fleming, Fleming, DuBois & Fleming, P.L.L.P:, Cavalier, ND, for respondent, appellant and cross-appellee.

      . Section 61-16.1-09.1, N.D.C.C., was substantially amended by the legislature in House Bill No. 1399, which was passed as an emergency measure and signed by the Governor on March 15, 2005. The amendment sets forth procedures governing situations in which a water resource board finds a project would benefit lands outside the water resource district's boundaries.

   SANDSTROM, Justice.

[¶ 1] The Pembina County Water Resource Board (“Board”) appealed from a district court order dissolving the Tongue River Snagging and Clearing Project No. 1, and from an order awarding costs, disbursements, and attorney fees to Henry D. Klindt and other landowners. Klindt and the other landowners cross-appealed from the orders dissolving the project. We conclude the district court did not err in ruling there was sufficient evidence for the Board to reasonably determine the entire watershed would benefit from the proposed project. We also conclude the court did not err in ruling the Board was arbitrary and unreasonable in deciding to assess the costs of the project only against landowners living within that part of the Tongue River drainage basin located in Pembina County after finding the entire watershed would benefit from the project. We conclude the court erred, however, in ordering dissolution of the project as the proper remedy for the Board’s error and in awarding the landowners their attorney fees from the Board. We affirm in part, reverse in part, vacate the assessment, and remand to the Board for reassessment of the costs of the project.

I

[¶ 2] The Tongue River watershed includes the entire drainage area of the Tongue River, which has its source in east central Cavalier County and flows east and northeast in a winding course across Pem-bina County to its confluence with the Pembina River near Pembina. The area of controversy in this case, referred to as the “loop,” is located where the river bends in a southerly direction for a short distance and then bends again in a northerly direction. During the 1950s, a straight-line diversionary channel was cut in the vicinity where the river bends southward, allowing overflow water to bypass the loop and continue straight eastward where the water reconnects with the Tongue River as it flows north. A large assessment drain, Drain # 16, is located south of the loop. Water from Drain # 16 flows into the loop and flows north to where it eventually meets and flows north with water diverted by the straight-line channel.

[¶ 3] The Board received a complaint that there were numerous blockages in the Tongue River causing water to flow through the straight-line diversionary channel rather than through the original river channel. After investigating the matter and holding a public hearing, the Board decided to establish a snagging and clearing project beginning in the loop at the end of Drain # 16 and extending five miles downstream in a northerly direction. On August 5, 2003, the Board passed a resolution establishing the “Tongue River Snagging & Clearing Project No. 1,” estimating its cost at $75,000, outlining the benefited area, and approving an assessment on the affected landowners. On the same day, the Pembina County Board of County Commissioners (“Commissioners”) adopted a resolution approving the project outlined by the Board and authorizing the County Auditor to assess a levy on the affected landowners.

[¶ 4] On September 3, 2003, Klindt and other affected landowners (“landowners”) appealed the resolutions authorizing the project to district court, alleging the project and assessment violated .state law. The court ordered the Board “based upon its record in this matter to develop Findings of Fact and Conclusions of Law establishing the basis of why the Tongue River Snagging Clearing Project No. 1 was created and why the Appellants in this case were included in the district.” The subsequent findings signed by the chairman of the Board explained:

1. The Tongue River as it flows through Sections 8, 9, 10, and 17— 162-52 is a natural water course.
2. There were obstructions in the Tongue River at Sections 8, 9, 10, and 17 — 162-52 that required the Water Board to undertake a snagging and clearing project.
3. Various federal government agencies had earlier determined that the lands described in the attached Appendix A consisted of The Tongue River Watershed (see attached Appendix A).
4. All of the lands both agricultural and non-agricultural in the Tongue River Watershed contribute waters to the Tongue River and would benefit from a snagging and clearing project at the location mentioned.
5. In accordance with 61-16.1-15 of the North Dakota Century Code, upstream landowners must share with downstream landowners the responsibility to provide for the proper management of surface waters.
6. The proposed project is necessary to properly manage the service waters in the Tongue River Watershed.
7. The estimated costs of the project was $75,000.

The findings also included a list of the assessments for the project by name, property description, and amount.' Although landowners within the drainage basin located in Pembina County were assessed the cost of the project, Cavalier County landowners within the watershed were not assessed.

[¶ 5] The district court ruled “the record is sufficient for the water board to find that the entire watershed is benefitted by the snagging and clearing project.” However, the court further ruled:

[T]he decision to assess only that portion of the Tongue River drainage basin within Pembina County is arbitrary and unreasonable. The Appellees to this action cannot assert that the entire watershed is benefitted by the snagging and clearing project then create an assessment district that does not include the entire watershed. Confining the assessment district to Pembina County is an arbitrary act not consistent with the water board’s findings of fact.
The law requires that when a special assessment is imposed it is to be “levied against the land and premises benefitted by the project!.]” NDCC 61-16.1-09.1.

[¶ 6] The court ordered that “the ‘Pem-bina County Tongue River Snagging and Clearing Project No. 1 and approving assessments’ adopted August 5, 2003 by the Pembina County Commission be dissolved” and that the landowners be “awarded their costs and fees including attorney fees as allowed by statute.”

[¶ 7] The board appealed, and the landowners cross-appealed. The Commissioners did not file an appeal.

II

[¶ 8] The Board argues the landowners were required to appeal its determination of the benefited land to the state engineer rather than to the district court.

[¶ 9] The right of appeal is governed solely 'by statute,' and without any statutory basis to hear an appeal, a court must take notice of the lack of jurisdiction and dismiss the appeal. Mann v. North Dakota Tax Comm’r, 2005 ND 36, ¶ 7, 692 N.W.2d 490. Under N.D.C.C. § 61-16.1-54, “[a]m appeal may be taken to the district court from any order or decision of the water resource board by any person aggrieved.” However, N.D.C.C. § 61-16.1-23 provides:

After the hearing provided for in section 61-16.1 -22, affected landowners and any political subdivision subject to assessment, having not less than twenty-five percent of the possible votes* as determined by section 61-16.1-20, who believe that the assessment had not been fairly or ■ equitably made* "or that the project is not properly located or designed,' may appeal to the state engineer by petition, within ten days after the hearing on assessments, to make a review of the assessments and to examine the location and design of the proposed project.... Upon filing a bond for two hundred fifty dollars with the board for the payment of the costs of the state engineer in the matter, any landowner or political subdivision who or which claims that the landowner or political subdivision will receive no benefit at all from the construction of a new project may appeal to the state engineer within ten days after the hearing on assessments, the question of whether there is any benefit. The state engineer may not determine the specific amount of benefit upon an appeal by an individual landowner or political subdivision, but shall only determine if there is any benefit to the landowner or political subdivision, and the determination of the state : engineer upon such question is final.

Although appeals are not authorized from state engineer decisions regarding the benefits of a proposed drainage project, water resource board decisions regarding assessments for drainage projects may be appealed to district court under the general appeal provisions of N.D.C.C. § 61-16.1-54. Investment Rarities, Inc. v. Bottineau County Water Res. Dist., 396 N.W.2d 746, 748 (N.D.1986).

[¶ 10] The cost of the Tongue River Snagging and Clearing Project No. 1 was $75,000. Section 61-16.1-09.1(l)(b), N.D.C.C., provides that “[i]f the assessment is for a project costing less than one hundred thousand dollars, no action is required for the establishment of the assessment district or the assessments except the board must approve the project and assessment by a vote of two-thirds of the members and the board of county commissioners of the county must approve and levy the assessments to be made by a vote of two-thirds of its members.” Under this statute, projects costing less than $100,000 are not subject to the assessment procedures required by N.D.C.C. § 61-16.1-22. Because N.D.C.C. § 61-16.1-23 applies only after the provisions of N.D.C.C. § 61-16.1-22 have been followed, N.D.C.C. § 61-16.1-23 does not apply under the circumstances. Therefore, the landowners were not required to appeal the benefits question to the state engineer to exhaust administrative remedies in this case.

[¶ 11] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 11-11-39, 27-05-06, 28-34-01 and 61-16.1-54. The appeals are 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, 28-27-02 and 28-34-01. •

III

[¶ 12] Our standard of review in appeals from decisions of water resource districts is outlined in Douville v. Pembina County Water Res. Dist., 2000 ND 124, ¶ 5, 612 N.W.2d 270 (quoting Graber v. Logan County Water Res. Bd., 1999 ND 168, ¶ 7, 598 N.W.2d 846):

In an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, our scope of review is the same as the district court’s and is very limited. Our function is to independently determine the propriety of the decision, without according any special deference to the .district court’s decision, and unless the Board acted arbitrarily, capriciously or unreasonably, or there is not substantial evidence to support the decision, it must be affirmed. A decision is not arbitrary, capricious or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.

A

[¶ 13] We first address the landowners’ claim in their cross-appeal that the Board’s determination that all lands in the watershed would benefit from the project is arbitrary and unreasonable because there is no factual basis to support it.

[¶ 14] The landowners’ argument is premised on 2003 legislative amendments to N.D.C.C. § 61-16.1-09.1 that were in effect at the time the Board and the Commissioners approved the resolutions authorizing the project. Section 61-16.1-09.1(1), N.D.C.C., currently provides, in relevant part:

A water resource board may undertake the snagging, clearing, and maintaining of natural watercourses and the débrisment of bridges and low water crossings. The board may finance the project in whole or in part with funds raised through the collection of a special assessment levied against the land and premises benefited by the project.

Before this provision was amended in 2003, the second sentence provided the “board may finance the project in whole 'or in part with funds raised through the collection of a special assessment levied against the land and premises within the watershed benefited by the' project.” 2003 N.D. Sess. Laws ch. 552, § 1 (emphasis added). The landowners argue the legislature’s removal of the phrase, “within the watershed,” from the statute was intended to prevent water resource boards from automatically assessing the landowners in the entire watershed for the .costs of a project because not all land within a particular watershed will necessarily benefit from a proposed project. See Hearing on S.B. 2278 Before the House Natural Resources Comm., 58th N.D. Legis. Sess. (March 14, 2003) (testimony of Sen. Fischer). According to the landowners, the amendment and its history establish that assessing the entire watershed, without an investigation and specific findings that the land within the watershed will be benefited, is contrary to law.

[¶ 15] We see nothing in the language of N.D:C.C. § 61-16.1-09.1(1) or in the legislative history of the 2003 amendment that precludes a water resource board from finding that an entire watershed would be benefited by a snagging and clearing project, even if the legislative intention of the amendment was to allow assessments of less than all of the land within a watershed. The Board specifically found the entire watershed would be benefited by the project, and this finding is not contrary to law;

[¶ 16] The landowners, relying on Stanley v. City of Salem, 247 Or. 60, 427 P.2d 406, 407 (1967), also argue that property benefited by a project should be interpreted as property that will be enhanced in value, and that there is no evidence to support an assessment on all of the land within the watershed. Stanley is distinguishable because N.D.C.C. § 61-16.1-21 directs that “[i]n determining benefits the board shall consider, among other factors, property values, 'degree of improvement of properties, productivity, and the water management policy as expressed in section 61-16.1-15.” (Emphasis added). Moreover, this Court has refused to provide an all-encompassing definition for determining “benefit” in the context of water resources law.' In Anderson v. Richland County Water Res. Bd., 506 N.W.2d 362, 367 (N.D.1993), a township was not originally assessed for a drain established in 1961, but the water resource board reapportioned benefits and assessments in 1991, determined the township benefited from the drain, and assessed landowners within the township. Because their land had not changed since the flood control district’s 1961 decision that their land was not benefited by the drain, the.landowners argued the water resource board’s determination that the land is presently benefited by the drain was based on. an arbitrary and capricious standard. This Court rejected the landowners’ argument:

The landowners’ contention that the Board is using an arbitrary and capricious standard for determining benefit, implicitly asks us to determine “benefit.” The legislature has left the task of determining “benefit” to Water Resource Districts. Accordingly, we will not substitute our judgment for that of the Richland County Water Resource Board.

Anderson, 506 N.W.2d at 367.

[¶ 17] As in Anderson, the record in this case establishes that the Board and the Commissioners extensively discussed and investigated the proposed project, and the question of benefit to the land was contested during the process leading to the adoption of the resolutions. The question was also a focus of attention at the public hearing, where landowners voiced their concerns to the Board. We conclude the decision of the Board and the Commissioners that all land within the watershed would benefit from the project is neither arbitrary nor unreasonable and is supported by the evidence.

B

[¶ 18] The Board argues that the district court erred in ruling the Board’s decision to confine the assessment district to the area of the watershed located in Pem-bina County after finding the entire watershed would be benefited by the project was arbitrary and inconsistent with the Board’s findings of fact.

[¶ 19] The statutes governing water resource districts demonstrate a strong water management policy encouraging the assessment of all land that will be benefited by a water project. Section 61-16.1-15, N.D.C.C., provides, in part:

Whenever a water resource board decides to acquire property or interests in property to construct, operate, alter, repair, or maintain a project with funds raised in whole or in part through special assessments, such assessments shall be apportioned to and spread upon lands or premises benefited by the project in proportion to and in accordance with benefits accruing thereto. The board shall assess the proportion of the cost of the project, or the part of the cost to be financed with funds raised through levy and collection of special assessments which any lot, piece, or parcel of land shall bear in proportion to the benefits accruing thereto and any county, city, or township which is benefited thereby. In determining assessments the water resource board shall carry out to the maximum extent possible the water management policy of this chapter that upstream landowners must share with downstream landowners the responsibility to provide for the proper management of surface waters.

(Emphasis added). See also N.D.C.C. § 61-16.1-09.1(1) (providing the “board may finance the project in whole or in part with funds raised through the collection of a special assessment levied against the land and premises benefited by the project”); N.D.C.C. § 61-16.1-21 (providing “[b]enefited property belonging to counties, cities, school districts, park districts, and townships shall not be exempt from such assessment and political subdivisions whose property is so assessed shall provide for the payment of such assessments, installments thereof, and interest thereon, by the levy of taxes according to law”); N.D.C.C. § 61-16.1-26 (permitting reassessment of benefits after “a hearing for the purpose'of determining-the benefits of such project to each tract of land affected”); N.D.C.C. § 61-16.1-38 (authorizing proceedings for reassessment of lands originally assessed for the cost of a project “[w]henever a water resource board discovers or ascertains that the county, a township, or city therein, or that any tract, parcel, or piece of land is being benefited by a project and that -the county or such township, municipality, tract, piece, or parcel of land was not included in the project area assessed for the cost of construction and maintenance of the project when established”).

[¶ 20] The Board’s findings of fact provide no explanation why the Board chose not to assess all of the land it had determined would be benefited by the project. Although the Board argues on appeal that the reason it chose not to assess landowners in the watershed located within Cavalier County was the “difficulty of dealing with another Water Resource District,” a water resource board has a duty to cooperate with other water resource boards having a common river basin, see N.D.C.C. § 61-16.1-10, and two or more water resource districts may, by agreement, “jointly or cooperatively exercise any power which is authorized a board by this title.” N.D.C.C. § 61-16.1-11(1). It does not appear from the evidence that the Board made any attempt to cooperate with another water resource board in assessing the benefited area.

[¶ 21] The Board provided no rational explanation to the court for assessing less than all of the land it found would be benefited by the project. We agree with the district court and conclude the Board’s decision to confine the assessment area to the watershed located in Pembina County is arbitrary and inconsistent with its findings of fact.

C

[¶ 22] The district court ruled dissolution of the project was the proper remedy for the Board’s improper assessment in this case. The Board argues that rather than dissolve the project, the court should have remanded the matter to the Board and the Commissioners for reassessment of the costs.

[¶ 23] We agree with the Board that the court’s order dissolving the project is too harsh a remedy. We have concluded, as did the district court, that the Board’s finding that all of the land within the watershed would be benefited by the project is not arbitrary or unreasonable and is supported by the evidence in the record. The project has been completed. Under these circumstances, the court’s order dissolving the project is as logically inconsistent as the Board’s assessing fewer than all of the -landowners benefited by the project. We believe the proper remedy is to remand to the Board and the Commissioners for reassessment of the costs of the project in accordance with the law.

IV

[lf-24] .The landowners argue the Board’s attorney and its chairman owned assessed land within Drain # 16 and therefore the Board’s action should be nullified because of their personal interests in the matter.

[¶ 25]. The Board’s attorney had no voting rights on the Board. Consequently, the landowners’ argument that the attorney’s involvement should nullify the project is without merit. However, with regard to the Board’s chairman, N.D.C.C. § 61-16-08.1 provides:

When a member of a water resource board has a conflict of interest in a specific issue before the board or is unable to fulfill the duties of a board member because of physical or mental illness, the county commissioners may appoint a person to serve as an alternate to the disqualified board member. If the disqualification is for a conflict of interest, the alternate board member is to serve only for the purpose of deciding the particular issue causing the conflict. If the disqualification is for physical or mental illness, the alternate board member is to be appointed by the county commissioners only for one meeting at a time.

[¶ 26] Ownership of land benefited by the project qualifies as a conflict of interest covered by N.D.C.C. § 61-16-08.1. See Larson v. Wells County Water Res. Bd., 385 N.W.2d 480, 483-84 (N.D.1986) (applying rule of necessity before N.D.C.C. § 61-16-08.1 became effective in situation in which chairman of water resource board leased land within area to be benefited by drain). The Board argues the chairman’s participation should not nullify the proceedings, because there was a unanimous vote to approve the project and the assessment. The record shows that the resolution passed “by a vote of 4 for, 0 against, 1 absent.” The chairman’s presence was not necessary to constitute a quorum, and the chairman’s vote was not determinative in establishing the project.

[¶ 27] In Schumacher v. City of Bozeman, 174 Mont. 519, 571 P.2d 1135, 1141-42 (1977), the Montana Supreme Court summarized the positions courts have taken when a disqualified member of a local governing body votes on a proposed project:

All courts that have considered the issue are agreed if a disqualified commissioner’s vote was necessary to constitute the number required for passage, such a vote renders the entire proceeding void. Not all jurisdictions, however, are agreed as to what effect a vote by a disqualified commissioner has on the proceedings where his vote is not necessary to pass the issue. Some jurisdictions hold that such a vote has no effect on the validity of the proceedings. Others hold that such a proceeding is void, while still others hold that it is only voidable. 62 C.J.S. Municipal Corporations § 402.
New York, New Jersey and Iowa hold that a vote cast by a commission member who is disqualified renders the proceeding either void or voidable, even though the disqualified member’s vote was not needed to pass the issue. Baker v. Marley, 8 N.Y.2d 365, 208 N.Y.S.2d 449, 170 N.E.2d 900 (1960); Aldom v. Borough ofRoseland, 42 N.J.Super. 495, 127 A.2d 190, 197 (App.Div.1956); Wilson v. Iowa City, Iowa 1969, 165 N.W.2d 813, 820. These decisions do not clearly distinguish between whether the action of the commission is void or merely voidable. Often such a decision is governed by statute.
Numerous reasons are given for declaring such action void or voidable. Pyatt v. Mayor & Council of Borough of Dunellen, 9 N.J. 548, 89 A.2d 1, 5 (1952), states:
“Public policy forbids the sustaining of municipal action founded upon the vote of a member of the municipal governing body in any matter before it which directly or immediately affects him individually.”
Other courts hold that when a municipal body passes on resolutions and ordinances, it acts in a quasi-judicial manner. If any of the council members who participated as a quasi-judge were at the time disqualified by reason of private interest at variance with impartial performance of his public duty, such proceedings are void. Aldom v. Borough of Roseland, supra; Pyatt v. Mayor & Council of Borough of Dunellen, supra. The bias of the interested person taints the action of the whole body: Pyatt v. Mayor & Council of Borough of Dunel-len, supra. In Piggott v. Borough of Hopetuell, 22 N.J.Super. 106, 91 A.2d 667, 670 (1952), this was found to be so for two reasons:
“ ‘First, the participation of the disqualified member in the discussion may have influenced the opinion of the other members; and, secondly, such participation may cast suspicion on the impartiality of the decision. [Citing cases.] It being impossible to determine whether the virus of. self-interest affected the result, it must needs be assumed that it dominated the body’s deliberations, and that the judgment was its product.’ ”
The cases which have held the vote of a disqualified commissioner does not vitiate the proceedings where his vote was not needed to pass the issue have rejected the two factors considered in Piggott. See: Singewald v. Minneapolis Gas Company, 274 Minn. 556, 142 N.W.2d 739 (1966); Eways v. Reading Parking Authority, 385 Pa. 592, 124 A.2d 92 (1956); Marshall v. Ellwood City Borough, 189 Pa. 348, 41 A. 994 (1899). The rationale behind Eways and Marshall is that the “illegal” vote does not affect the “legal” votes. The Marshall court downplays the influence the “illegal” voter may have on the “legal” voters, particularly when there is a large group-of voters and only one illegal voter. -

[¶ 28] This Court has reached different results when assessing whether a disqualified person’s participation renders proceedings void. Compare Graves v. State Bd. of Law Exam’rs, 2004 ND 64, ¶ 17, 677 N.W.2d 215 (looking to judicial and quasi-judicial rules and holding disqualification of board member was necessary because her impartiality might reasonably be questioned and remanding for a new hearing before a different hearing panel), and Sargent County Bank v. Wentworth, 500 N.W.2d 862, 879-80 (N.D.1993) (reversing judgment and remanding for new trial before a different judge When first judge should have disqualified himself because a reasonable person could question his impartiality), with State ex rel. Danger v. Kositzky, 38 N.D. 616, 616, 166 N.W. 534, 534, Syll. ¶ 1 (1918) (holding “[t]he mere presence of, and participation by, a member of the Supreme Court in a case in which he may be disqualified on account of his interest in the result, does not render the proceedings and judgment of the court in that case void, where his presence is not necessary to constitute a quorum, and his vote does not determine the result”). In this case, two reasons persuade us to hold that the chairman’s participation and vote did not nullify the proceedings.

[¶ 29] First, prior to the enactment of N.D.C.C. § 61-16-08.1 and other similar statutes, this Court had held “[t]he fact that one of the members of a board of drainage commissioners owns land in the drainage district that will be benefited by the drain will not disqualify such member from acting, nor render the proceedings in which he participated void or subject to attack by a court of equity.” State ex rel. Dorgan v. Fisk, 15 N.D. 219, 219, 107 N.W. 191, 191, Syll. ¶ 3 (1906). This is merely a restatement of the majority rule that “the interest which one or all of the members of a body charged with the making or rectifying of assessments for a public improvement may have, arising from the fact of their ownership of property directly affected by the proposed improvement, does not create such a disqualification to sit or act in the premises as to render their action void, as not constituting due process of law.” Annot., Qualifi cation of owner of property affected by public improvement to act in making assessment, 2 A.L.R. 1207, 1207-08 (1919). The reasons for the majority rule are summarized in Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197, 201 (1986):

Three principal considerations support this general rule. First, to the extent any special benefit accrues to property within a [local improvement district], there is a special assessment imposed to pay the cost thereof. To the extent a council member who owns property in an improvement district receives any benefit as the result of his or her vote in favor thereof, he or she must pay for it once assessments are levied. Second, the council member is not the sole beneficiary of the improvements. Rather, special benefits accrue to each and every property owner in the district. Third, disqualification of public officials who own property in a proposed [local improvement district] would often have the effect of prohibiting a governing body from performing its statutory functions because of the absence of a necessary quorum or majority. The construction of beneficial and desirable or necessary public improvements would thereby be inhibited.

[¶ 30] Second, N.D.C.C. § 61-16-08.1 states that county commissioners “may” appoint a person to serve as an alternate in the case of a conflict of interest, indicating a discretionary rather than mandatory duty, see City of Devils Lake v. Corrigan, 1999 ND 16, ¶ 12, 589 N.W.2d 579, and does not address the consequences attendant to improper participation by a disqualified board member. The legislative history of N.D.C.C. § 61-16-08.1 indicates the disqualification feature of the statute was intended as an accommodation for water resource board members to enable them to disqualify themselves in situations where they did not feel “comfortable” voting on a matter. Hearing on H.B. 1235 Before the Senate Natural Resources Comm., 49th N.D. Legis. Sess. (Feb. 15, 1985) (testimony of Rep. L. Hanson and Rep. Melby). We do not believe the legislature envisioned nullification of a.proceeding where a disqualified board member casts a non-determinative vote. Id. (testimony of Sen. Wogsland) (“He also indicated that he does not feel an entire board would be allowed to disqualify themselves. He does not think that county commissioners would let that happen”).

[¶ 31] The chairman’s presence was not necessary to constitute a quorum, and the chairman’s vote was not determinative in establishing the project. Cf. Stahl v. Board of Supervisors of Ringgold County, 187 Iowa 1342, 175 N.W. 772, 776-77 (Iowa 1920) (reversing establishment of drainage district when disqualified board member cast deciding vote). We therefore conclude the Board chairman’s participation does not require dissolution or nullification of the project. On remand, Board members should consider the provisions of N.D.C.C. § 61-16-08.1.

V

[¶ 32] The Board argues the district court had no authority to award the landowners their attorney fees from the Board.

[¶ 33] Successful litigants are not entitled to attorney fees unless authorized by contract or statute. E.g., Danzl v. Heidinger, 2004 ND 74, ¶ 6, 677 N.W.2d 924. The landowners rely on N.D.C.C. § 11 — 11— 39 as authorizing attorney fees from the Board in this case. Section 11-11-39, N.D.C.C., provides, in relevant part:

An appeal may be taken to the district court from any decision of the board of county commissioners by any aggrieved person.... The district court may at its discretion award costs- and reasonable attorney’s fees to appellants when three or more aggrieved persons have joined in an appeal from a decision of the board of county commissioners and the court rules in favor of the appellants.

[¶ 34] Although this statute authorizes an award of attorney fees from a board of county commissioners,. it does not authorize an award of attorney fees from a water resource board. The landowners have cited no other authority allowing an award of attorney fees against the Board, and we have found none. Therefore, the award of attorney fees to the landowners is reversed insofar as it is assessed against the Board.

VI

[¶ 35] We affirm in part, reverse in part, vacate the assessment, and remand the case to the Board for reassessment of the costs of the project.

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

[¶ 37] The Honorable William A. Neu-mann, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2005 ND 105
    STATE of North Dakota, Plaintiff and Appellee v. Michelle Renae DRISCOLL, a/k/a Michelle Pricilla Driscoll, Defendant and Appellant.
    No. 20040292.
    Supreme Court of North Dakota.
    June 2, 2005.

      Tracy J. Peters, Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.
    Dennis D. Fisher, Stefanson, Plambeck, Foss & Fisher, Moorhead, MN, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Michelle Driscoll appealed from an order denying a motion to suppress evidence, a criminal judgment and cpmmitment, and an order denying a motion for a new trial, all of which arise from drug-related charges brought against her. We affirm the district court’s orders and the criminal judgment and commitment.

[¶ 2] A confidential informant (“Cl”) worked with Fargo Police to buy cocaine and methamphetamine from an individual named Williams. During two separate drug buys, Williams met the Cl at a Fargo location to arrange the drug purchase and obtain money from the CL On one occasion, Williams, who was being tracked by police, proceeded alone to a Fargo apartment building to obtain the drugs. On the other' occasion, both Williams and the Cl proceeded to the Fargo apartment building in the Cl’s automobile. The Cl remained in the automobile while Williams once again entered the apartment building. During the first buy, Williams called' the Cl from a phone number later traced to a specific apartment unit in the building. The purpose of the phone call was to tell the Cl that the drug source wanted more money for the drugs. The apartment unit in question was rented to Scott Alan Olson and a search of the Fargo Police computing system revealed Olson had been named with several other individuals in cocaine trafficking in the Fargo/Moorhead area. Police also learned Olson previously had been involved in a verbal dispute with a female, Michelle Driscoll, at this apartment unit. During the second buy, police, who were listening to the conversation between Williams and the Cl via a listening device, heard Williams refer to his drug soured as a female and also as “they.”

[¶ 3] Police obtained and executed a search warrant for the unit and discovered Scott Alan Olson and Michelle Driscoll in the apartment. Driscoll, who was wearing pajamas, ran into the bathroom and attempted to flush large quantities of methamphetamine down the toilet. Police secured both occupants of' the residence. During a search of a bedroom, police discovered a purse belonging to Driscoll. The purse contained, among other items, methamphetamine, a large quantity of cash, an address book, an advertisement for a scale, and six pages of letters. Police also found marijuana in a nightstand in the bedroom. Olson told police Driscoll had been staying at the apartment six nights a week for approximately five months. Driscoll told police she had a purse, computer, and clothes at the apartment. The State charged Driscoll with four drug-related offenses: possession of a controlled substance with intent to deliver, methamphetamine; possession of a controlled substance, methamphetamine; possession of a controlled substance, marijuana; and possession of drug paraphernalia. A jury convicted Driscoll on all four counts.

I.

[¶ 4] Driscoll argues there was insufficient probable cause to justify issuance of the search warrant. Driscoll’s arguments revolve around an affidavit made by Detective Daniel T. Hudson of the Fargo Police Department in support of the application for the search warrant. In his affidavit, Detective Hudson set forth the circumstances surrounding the two drug buys and that Williams twice proceeded to the same apartment building to obtain the drugs. Detective Hudson noted Williams’ telephone call from the apartment unit in question. Finally, Detective Hudson relayed that, “through researching the Fargo Police computer system,” he learned “Scott Alan Olson has been named with several other individuals in cocaine trafficking in the Fargo/Moorhead area.”

[¶ 5] Driscoll argues a sufficient nexus did not exist between the apartment unit and the contraband sought. Specifically, Driscoll points out Williams never identified a specific apartment unit or any person in an apartment unit as the source of the drugs. Williams did not offer a physical description of his supplier. And, even though Driscoll concedes the existence of the phone call from Olson’s apartment during the first buy, Driscoll claims there is no evidence Williams was using Olson’s phone for “anything other than a phone call.” Driscoll also labels the attempt to tie Olson to narcotics trafficking as “so sketchy and innocuous as to render it totally and completely unreliable.” Driscoll asserts that police intelligence files are not proof of any criminal wrongdoing and should have been discounted by the magistrate. Driscoll also finds fault with police for failing to apprehend Williams to obtain additional credible evidence concerning the source of the contraband.

A.

[¶ 6] The U.S. Constitution provides “no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV; see also N.D. Const, art. I, § 8 (same). We very recently discussed the topic of probable cause to search in State v. Nelson, 2005 ND 59, 693 N.W.2d 910, where we stated:

The existence of probable cause to issue a search warrant is a question of law. Probable cause to search exists if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched. Probable cause to search does not require the same standard of proof necessary to establish guilt at a trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place. All of the information presented to establish probable cause should be taken together, not analyzed in a piecemeal fashion, and the magistrate is to make a practical commonsense decision whether probable cause exists to search that particular place.
On appeal,. we use the totality-of-the-circumstances test to review the sufficiency of the information before the magistrate independent of the court’s decision. The magistrate is to make a practical, commonsense decision whether probable cause exists to search that particular place. We generally defer to a magistrate’s determination of probable cause, and will not disturb a magistrate’s conclusion that probable cause exists if there is a substantial basis for the conclusion.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought, and circumstantial evidence may be enough to establish the nexus.

Id. at ¶¶ 3, 16-17 (internal quotations and citations omitted).

B.

[¶ 7] The affidavit in support of the search-warrant application contained sufficient probable cause to justify issuance of a search warrant for the apartment unit. Under the totality-of-the-circumstances test, there is a substantial basis for the magistrate’s determination that contraband and drug evidence would probably be found in the apartment unit. Police observed Williams enter the apartment building on two separate occasions, to obtain drugs. ■ During one of these excursions, Williams placed a telephone call to the Cl from Olspn’s apartment unit.. The purpose of this call was not to engage in idle chitchat, but to inform the Cl that the drug source wanted more money to. complete the transaction. . These circumstantial facts, standing entirely on their own, would allow a person of reasonable caution to believe there was a nexus between the drugs purchased by the. Cl and the apartment unit. Cf. Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (noting that even “innocent behavior frequently will provide the basis- for a showing of probable cause”).

[¶ 8] Although arguably part of the totality of the circumstances, we specifically decline to rely on Detective Hud^ son’s statement that, “through researching the Fargo Police computer system,” he learned “Scott Alan Olson has been named with several other individuals in cocaine trafficking • in the Fargo/Moorhead area.” These brief statements comprise the entire explanation provided by Detective Hudson on this matter. In State v. Handtmann, 437 N.W.2d 830 (N.D.1989), we refused to find probable cause to issue a search warrant based on a detective’s statement that the defendant was “suspected of trafficking narcotics.” Id. at 832, 835. • These types of statements are unsupported and conclusory in nature and, without further elaboration and explanation, are insufficient to establish' .probable cause. Id. at 835; State v. Thompson, 369 N.W.2d 363 (N.D.1985); State v. Schmeets, 278 N.W.2d 401 (N.D.1979); cf. State v. Ringquist, 438 N.W.2d 207 (N.D.1988) (statements regarding reputation, which are illuminated by specific underlying circumstances, can support a determination of probable cause if combined with other evidence); State v. Ronngren, 361 N.W.2d 224 (N.D.1985) (statements regarding reputation can support a determination of probable cause if combined with other evidence).

[¶ 9] Here, Detective Hudson’s statements about Olson being “named ... in cocaine trafficking” are conclusory and unsupported by specific, underlying facts. Similarly, Detective Hudson’s assertions cannot qualify as statements regarding Olson’s reputation because it is unknown who “named” Olson. They add no weight to a determination of probable cause. However, there is no indication in the record whether the magistrate found this statement relevant in making her decision and there was sufficient other evidence to support the magistrate’s issuance of the search warrant.

[¶ 10] Driscoll’s other complaints go to the manner in which Fargo Police conducted their investigation. Although police could have continued their investigation before applying for a search warrant, and police could have apprehended Williams and questioned him regarding his drug source, that they did not do so is irrelevant to the question of whether probable cause to search existed at the time the warrant was issued.

II.

[¶ 11] Driscoll also asserts the contents of her purse should be suppressed because police needed to obtain a second warrant to validly inspect the purse. Driscoll claims the search was a violation of her reasonable expectation of privacy because the purse and certain items contained therein were not sufficiently particularized in the detective’s affidavit. Also, Driscoll argues certain items are so private and personal that the law should afford these items significantly more protection under the Fourth Amendment, thereby requiring a greater degree of particularization. Driscoll labels herself a “visitor to the Scott Olson apartment” deserving of heightened protection. Finally, Driscoll challenges the search warrant on its face as an example of police overreaching.

[¶ 12] The search warrant is not invalid on its face. The search warrant was limited to the specific apartment unit that police had probable cause to search. The objects of the search revolved around suspected drug trafficking at the apartment unit. As the magistrate provided in the search warrant:

Affidavit having been made before me ■ by Det. Daniel T. Hudson, Fargo Police Department, that they have reason to believe that at the property located at 1444 32nd St. SW #210 Fargo, Cass County, North Dakota, there is now being concealed property more particularly described on the attached “Exhibit A” which constitutes evidence of the commission of a criminal offense, contraband, the fruits of crime, or things otherwise criminally possessed, or property designed or intended for use or which is or has been used as the means of committing a criminal offense, and as I am satisfied that there is probable cause to believe that the property so described is being concealed at the premises above described [the application for search warrant is granted].

[¶ 13] Given the facts of this case, a search for controlled substances, drug paraphernalia, drug money, records of drug transactions, numerical data found on electronic devices, and indicia of residence of the apartment unit, all of which were specifically enumerated in Exhibit A, is neither indicative of police overreaching, nor the equivalent of a general police search.

[¶ 14] The search warrant made no mention of Driscoll or her personal property. When the application for the search warrant was made, however, police had no knowledge of exactly who was responsible for the drug activity. But, police had probable cause to believe drug activity was taking place in the apartment unit, which provided the requisite justification to search. Further, it was not necessary that the search warrant particularize exactly where the drug evidence would be found in the apartment unit. See 2 Wayne R. LaFave, Search and Seizure § 4.10(b), at 742-43 (4th ed.2004). We have noted the reason for the particularity requirement:

The purpose of the particularity requirement is to prevent exploratory rummaging in a person’s belongings by a general search. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. A search warrant must particularly describe the things to be seized.

State v. Schmitz, 474 N.W.2d 249, 251 (N.D.1991) (internal quotations and citations omitted). • It is “generally recognized that the degree of particularity required is flexible and will vary depending upon the circumstances presented, including the purpose for which the warrant was issued, the place to be searched, the type of crime involved, and the nature of the items sought.” State v. Dallmann, 441 N.W.2d 912, 914 (N.D.1989). As we observed in State v. Gronlund, 356 N.W.2d 144 (N.D.1984):

The proper inquiry is whether or not the search was reasonable under the circumstances. It is essential that the particularity requirement be applied with some degree of flexibility, depending on the type of property to be seized. The purpose of the particularity requirement is to minimize the chances that the executing officer will exceed the scope of the permissible search because of confusion or uncertainty. A rigid and unrealistic reading of a search warrant is not mandated. What constitutes reasonable particularity must be determined in light of practicality, necessity and common sense.

Id. at 146 (internal citations and quotations omitted).

[¶ 15] In State v. Iverson, 187 N.W.2d 1, 31 (N.D.1971), we quoted the particularly relevant language from United States v. Robinson, 287 F.Supp. 245, 254 (N.D.Ind.1968):

Instead of preferring search warrants, a rule limiting seizure under them to the items enumerated in the description would relegate them to a secondary status, if not an anachronism in the law. What law enforcement officer would resort to a warrant where there was the possibility of making the search incident to a valid arrest? One who did would be justly chastised by his superiors and the public for incompetence. While it might be possible to describe some of the things sought with sufficient particularity to satisfy a conscientious magistrate, it will never be possible to forecast with any exactitude the items which such a search might reveal. The only reasonable rule, the one which this Court adopts, is that officers conducting a lawful search pursuant to a search warrant may seize any fruits, instruments or evidence of crime which they might uncover. A warrant must still specifically describe the place to be searched and the things to be seized, and the search must be directed toward the things so described, but if in the course of that search they discover items not named in the warrant which might have been seized in a search incident to an arrest, they may also be seized in a search pursuant to a search warrant.

[¶ 16] We said in State v. Erickson, 496 N.W.2d 555, 560 (N.D.1993)¡ that “[a] search conducted pursuant to a search warrant may extend to the entire area covered by the warrant’s description.”

[IT 17] Further:

A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, ,or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.

United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

[¶ 18] Here, police were searching for, among other items, drugs and money, both of which. are relatively small and easily concealed. It is quite possible that these objects would be found in a purse. Although there was conflicting testimony as to whether Driscoll’s purse was open or closed, the resolution of this dispute is immaterial to our decision as, pursuant to the warrant, police were permitted to search the purse, or any other item that could reasonably house the objects of the search, whether these items be open or closed. Moreover, that a separate act of entry or opening might have been required to search the purse does not trigger a constitutional violation. Id.

[¶ 19] Driscoll’s argument that an additional degree of particularization is required when dealing with private and personal items is unavailing. If, in the course of executing a valid search warrant, police come across an item,, be it particularized in the warrant or not, that could reasonably contain the object of their search, they are authorized to search regardless of whether the item is arguably “private” or “personal.” . The language from Ross stands for no less a proposition. Id.; see also 2 Wayne R. LaFave, Search and Seizure § 4.10(b), at 742-43 (4th ed.2004) (noting that officers executing a warrant for marijuana may search a wallet, as this is a plausible repository for marijuana).

[¶ 20] But, special constitutional concerns arise when dealing with visitors or guests located at a residence subject to a search warrant. See Ybarra v. Illinois, 444 U.S. 85, 91-92, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). However, we do not believe Driscoll’s argument that she was a “visitor” to the Olson apartment renders the search of her purse invalid. First, it is debatable whether Driscoll was a visitor to the apartment unit or an actual resident. The district court specifically found that Driscoll “was a resident of this apartment even though her name was not listed on the lease agreement.” This finding is not clearly erroneous. Olson told police Dris-coll had been staying at the apartment six nights a week for approximately five months and Driscoll told police she had a purse, computer, and clothes at the apartment. If we examine only what police knew at the time of the search, it was still reasonable for police to conclude Driscoll was more than a mere visitor or guest. Police knew Olson and Driscoll had previously been in a verbal altercation at the apartment unit and, thus, police knew Driscoll had a prior connection to the apartment. Police heard Williams identify his drug source as both a female and as “they.” Driscoll was in her pajamas when police arrived. When police entered the unit, Driscoll ran to the bathroom and attempted to flush methamphetamine down the toilet. Officers found Driscoll’s purse in a bedroom containing drugs, drug paraphernalia, and cash. Viewing these facts as a whole, it was not only reasonable for police to believe the purse could contain evidence of narcotics activity, but it was also reasonable for police to view Dris-coll, and her property, as being intimately involved with the apartment unit and the drug activity apparently occurring there. Accordingly, a search of Driscoll and her property is no more remarkable than a search, of Olson and his property.

[¶ 21] Second, if we were to view Dris-coll as a casual overnight guest or visitor to the apartment unit, we reach the sáme result. The district court noted the following regarding the law applicable to overnight guests:

At a minimum, [Driscoll] was an overnight guest on numerous occasions át this apartment, including the day this search warrant was executed.
It seems that there are two approaches used among jurisdictions in dealing with overnight guests and the search of their possessions pursuant to a search warrant for a residence at which they are found during a search. One approach is the “physical possession” test. Minnesota v. Wills, 524 N.W.2d 507, 510 (Minn.Ct.App.1994). Under this approach, the search of personal effects is generally upheld where the item that is searched is not in thé immediate possession of the defendant. Id. The other approach is the “relationship” test. Id. Using this approach, courts focus on the relationship between the person whose personal effects are being searched and the place that is the subject of the search. Id.

This issue is undecided in our.prior case-law. Despite the district court’s comments and the existence of secondary materials discussing this, topic, see, ,e.g., 2 Wayne R. LaFave, Search and Seizure § 4.10(b), at 743-48 (4th ed.2004), neither the State nor the defense discussed the appropriate law to apply in this situation. Without the benefit of adequate briefing, we decline to select a specific test because, regardless of the test used, we believe the search of Driscoll’s, purse was valid. Driscoll was not in “physical possession” of the purse, which was located in a back bedroom, at the time of the search. And, for the. reasons outlined above, Driscoll had a close “relationship” to the apartment unit and the drug activity occurring there.

III.

[1122] Driscoll argues the trial court erred in refusing to grant her a new trial on the basis of newly discovered evidence. Specifically, Driscoll points to recent statements in which Williams denies that Driscoll was his drug source. Williams’ recent affidavit states he was coerced by police into incriminating Dris-coll as his drug source. Williams now states he did not go into the specified apartment unit to buy drugs from Driscoll. Rather, he claims, he met his drug sources, two unrelated individuals, behind the apartment building. When Williams learned that the price of the drugs had increased, one of these unrelated individuals climbed an outside balcony and entered Olson’s apartment through an unlocked patio door. This individual then admitted Williams into the vacant apartment unit, and Williams proceeded to call the Cl. Williams also claimed he never identified his drug source as being female. Before trial, Williams told Driscoll’s attorneys and the State he would assert his Fifth Amendment privilege if called as a witness during Driscoll’s trial.

[¶23] In State v. Steinbach, 1998 ND 18, 575 N.W.2d 193, we outlined the standard regarding a motion for a new trial based on newly discovered evidence:

Under N.D.R.Crim.P. 33(a), the trial court may grant, a new trial to the defen: dant if required in the interests of justice. To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show (1) tlie evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal. A motion for new trial based upon newly discovered evidence rests within the discretion of the trial court, and we will not reverse the court’s denial of the motion unless the court has abused its discretion. If the newly discovered evidence is of such a nature that it is not likely to be believed by the jury or to change the results of the original trial,-the co'urt’s denial of the new trial motion is not an abuse of discretion.

Id. at ¶ 22 (internal citations omitted).

[¶ 24] - There are several problems with Driscoll’s argument. Initially, there are credibility concerns with Williams’ statements. According to Supplementary Offense Reports prepared by Detective Hudson and Sergeant Lynk, the serial numbers on $260.00 found during the search of the apartment unit matched the serial numbers on the police buy money used during the second drug purchase. Notably, the second drug purchase occurred on the same day police applied for and executed the search warrant for the apartment unit. If, as Williams states, Driscoll had nothing to do with the two controlled purchases orchestrated by police, it is odd, to say the least, that she came to possess nearly all of the money from the second buy in less than a day’s time.

[¶ 25] Assuming Williams is telling the truth, however, it does not change our conclusion that the 'district court did not abuse its discretion in denying the motion for a new trial. Viewed in the most favorable light, Williams’ statements only work to undermine the “theory” of probable cause posited by police, namely, that the apartment unit'in question was responsible for providing the drugs obtained during the controlled buys. As its name suggests, probable cause deals in probabilities. See Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). Those dealing in the probable-cause universe might act reasonably, yet, when viewed through the prism of hindsight, find their beliefs to have been in error. But, if an accepted, reasonable “theory” of probable cause subsequently proves to be untrue or unfounded, it does not retroactively undermine a previously correct conclusion that probable cause to search existed, invalidate a properly issued search warrant, or release a criminal actor from culpability for crimes uncovered during the execution of the search warrant.

[¶ 26] Professor LaFave has noted “[i]t is axiomatic that hindsight may not be employed in determining whether a prior ... search was made upon probable cause” and that “an otherwise valid search is not rendered illegal by the fact that it turns out that the objects sought are not in the place searched.” 2 Wayne R. LaFave, Search and Seizure § 3.2(d), at 47, 50 (4th ed.2004); see also Hudson v. Arkansas, 316 Ark. 360, 872 S.W.2d 68 (1994) (probable cause based on a tip the defendant possessed cocaine is not rendered invalid when cocaine is not discovered and conviction based on discovery of other contraband upheld); Idaho v. Lewis, 107 Idaho 616, 691 P.2d 1231, 1235-36 (1984) (probable cause to believe marijuana existed on the premises is not destroyed by the after-the-fact discovery that, although large quantities of narcotics were seized, marijuana was not present, and suppression of the other narcotics is inappropriate); Miskovsky v. Oklahoma, 31 P.3d 1054, 1066 n. 59 (Okla.Crim.App.2001) (“fact that the evidence sought was not found does not lessen the validity of the magistrate’s determination of probable cause”); cf. Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) (discussing the plain-view doctrine, which “authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification” and “is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost”); State v. Harris, 286 N.W.2d 468, 472 (N.D.1979) (holding that “where the police have probable cause to make an arrest for one reason, and in fact do make an arrest, they may thereafter prosecute for another offense and choose not to prosecute on the charge on which the arrest was initially made if in the search incident to the arrest they learn of other bases for prosecution”).

[¶ 27] Furthermore, given that the U.S. Supreme Court has refused to apply the exclusionary rule to evidence obtained in reasonable reliance on a search warrant ultimately found to be unsupported by probable cause, see United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), we see no justification for excluding the evidence from' Driscoll’s purse, which was discovered pursuant to a valid search warrant supported by probable cause. If a previously invalid probable-cause determination can fail to result in exclusion, a previously valid probable-cause determination, which in hindsight has purportedly shown itself to be misconceived, certainly should not trigger exclusion.

[¶ 28] Having determined that Williams’ information does not cast any legal doubt on the validity of the search warrant or the evidence presented to the jury, Williams’ statements -are factually irrelevant to the crimes with which Driscoll was charged and the verdicts reached by the jury. Driscoll was never charged with any crime stemming from the two controlled drug buys. Rather, she was charged with possession of drugs and drug paraphernalia and possession of drugs with intent to deliver, crimes directly stemming from the search of the apartment unit. Williams’ affidavit has no factual bearing on these crimes.

[¶ 29] We affirm the district court’s orders and the criminal judgment and commitment.

[¶ 30] CAROL RONNING KAPS-NER, MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ„ concur.


text:
    2005 ND 103
    CITY OF GRAND FORKS, Plaintiff and Appellee, v. Timothy C. LAMB, Defendant and Appellant.
    No. 20040196.
    Supreme Court of North Dakota.
    June 2, 2005.
    Rehearing Denied June 22, 2005.

      Gary E. Euren, City Prosecutor, Grand Forks, N.D., for plaintiff and appellee.
    Timothy C. Lamb, pro se, Grand Forks, N.D., defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Timothy Lamb appealed from a judgment of conviction finding him in violation of a city ordinance requiring an owner of rental property to have a Certificate of Occupancy issued by the City. We affirm.

I

[¶ 2] In 1997, Lamb purchased a residential lot in Grand Forks. He subsequently moved a house onto the lot, with the intent to use it as a rental property. The Grand Forks Building Inspections Department conducted inspections of the building and noted numerous items to be corrected. Ultimately, Lamb made the required repairs and alterations except for a non-complying stairway. Lamb eventually obtained a variance for the non-complying stairway.

[¶ 3] Although at that point the previously discovered Building Code violations had been resolved, Lamb did not apply for a Certificate of Occupancy. The City sent several letters to Lamb, the last dated October 20, 2003, notifying him that the building needed to be reinspected and that he needed a Certificate of Occupancy to rent the property. In February 2004, when Lamb still had not contacted the City to schedule a reinspection or request a Certificate of Occupancy, the City issued a summons and complaint charging him with violating the ordinance requiring a Certificate of Occupancy.

[¶ 4] After a trial in municipal court, the court found Lamb guilty and imposed a fine. Lamb appealed to the district court, which, after a trial de novo, also found Lamb guilty of violating the ordinance and fined him the same amount as the municipal court had imposed.

II

[¶ 5] Before we consider the merits of an appeal, we must have jurisdiction. Choice Fin. Group v. Schellpfeffer, 2005 ND 90, ¶ 6. The right of appeal in a criminal case is statutory and is a jurisdictional matter which we will consider sua sponte. State v. Steen, 2003 ND 116, ¶5, 665 N.W.2d 688; State v. Gwyther, 1999 ND 15, ¶ 17, 589 N.W.2d 575. If there is no right to appeal we are without jurisdiction to consider the merits and must dismiss the appeal. Gwyther, at ¶ 17, 589 N.W.2d 575; State v. Owens, 1997 ND 212, ¶ 6, 570 N.W.2d 217.

A

[¶ 6] The City contends there is no appeal to this Court from a district court order affirming a municipal court conviction for violation of an infraction under a city ordinance.

[¶7] The City has misconstrued the nature of the district court’s review of the municipal court conviction. When a defendant appeals to the. district court from a conviction in municipal court, the action is transferred to the district court for trial anew. N.D.C.C. § 40-18-19; N.D.R.Crim.P. 37(j). The district court does not review the record and decision of the municipal court, but holds an entirely new trial and independently determines whether the defendant has violated the ordinance. See City of Bismarck v. Uhden, 513 N.W.2d 373, 380 (N.D.1994) (although the appeal procedure under N.D.C.C. § 40-18-19 is “cumbersome and duplicative,” appeals must be for trial anew because municipal courts are not courts of record). If the district court finds a violation it enters a judgment of conviction, which is appealable to this Court under N.D.C.C. § 29-28-06.

[¶ 8] The City argues that we should extend by analogy the law relating to appeals in cases involving noncriminal traffic violations, and deny an appeal from the district court. The City cites N.D.C.C. § 39-06.1-03(5)(a), which allows appeals of traffic violations to district court, but expressly provides “there may be no further appeal.” The City also relies upon State v. Walch, 499 N.W.2d 602, 603 (N.D.1993), in which this Court construed N.D.C.C. § 39-06.1—03(5)(a) and held that it had no jurisdiction in an appeal from a county court judgment of conviction for speeding.

[¶ 9] In Bland v. Commission on Med. Competency, 557 N.W.2d 379, 384 (N.D.1996), this Court construed Walch and held that a prohibition on appeals to this Court will not be inferred unless the statute expressly states that appellate jurisdiction is conferred upon' the district court and expressly prohibits any further appeal. The Court concluded that the statute at issue in that case did not prohibit an appeal to this Court, noting that, “[w]hen the legislature wants to prohibit appeals to this Court, the legislature will expressly include that language in the statute.” Bland, at 384. The City has not directed our attention to any statutory provision which prohibits appeals to this Court from a district court conviction for violation of a city ordinance, and this Court therefore has jurisdiction of such appeals.

B

[¶ 10] Although not raised by the parties, we note an additional potential jurisdictional problem arising from the procedure employed in the district court.

[¶ 11] The trial in district court was held on May 25, 2004. At the conclusion of the trial the court ruled orally from the bench, finding Lamb guilty of violating the ordinance and imposing a fine. The court then advised Lamb that if he intended to appeal to the Supreme Court he would have to file a notice of appeal within thirty days. When the court thereafter failed to issue a written judgment or order, Lamb on June 25, 2004, filed a notice of appeal from “the district court’s judgment of May 25, 2004.” On September 2, 2004, the court entered a written decision consistent with its prior oral ruling.

[¶ 12] Although the September 2 written decision is captioned “Order Affirming Municipal Court Decision,” it is actually a judgment of conviction. The district court did not merely review the record and decision of the municipal court, but, in accordance with N.D.C.C. § 40-18-19 and N.D.R.Crim.P. 37(j), held a full-blown trial anew. See Uhden, 513 N.W.2d at 380. The court then expressly found that Lamb had violated the ordinance and imposed a fine. The September 2 decision is therefore a judgment of conviction, which is appealable under N.D.C.C. § 29-28-06.

[¶ 13] Lamb’s June 25, 2004, attempt to appeal from the judgment of the district court was premature. This Court has previously held that when a party attempts to appeal before a final written judgment or order has been entered, we will treat the appeal as being from the subsequently entered consistent judgment. See, e.g., State v. Keilen, 2002 ND 133, ¶ 8, 649 N.W.2d 224; State v. Ritter, 472 N.W.2d 444, 447 (N.D.1991). This rule applies to an attempted appeal from an oral ruling of the trial court. See, e.g., State v. Gwyther, 1999 ND 15, ¶ 20, 589 N.W.2d 575; Ritter, at 447; State v. Hogie, 424 N.W.2d 630, 631 (N.D.1988). Furthermore, N.D.R.Crim.P. 37(c) specifically provides that “[a] notice of appeal filed after the municipal court announces a decision, sentence, or order, but before: the entry of the judgment or order, is treated as filed on the date of and after the entry.” We therefore treat Lamb’s appeal as an appeal from the subsequently entered consistent judgment of conviction, and the appeal is properly before us.

Ill

[¶ 14] Lamb contends the district court misapplied the law in finding he had violated the municipal ordinance.

[¶ 15] ■ Section 19-0116 of the Grand Forks City Code (“G.F.C.C.”) provides that no dwelling house, apartment, or other similar premises may be occupied by a renter unless a Certificate of Occupancy has been issued by the City Building Inspector. A property owner- desiring to rent premises “for living purposes shall make application for a certificate of occupancy to the building inspector upon forms furnished by the city.” G.F.C.C. § 19-0117. Section ' 19-0118, G.F.C.C., delineates the procedure for obtaining a Certificate of Occupancy:

Upon the filing of such application the building inspector, subject to the approval of the health officer, shall issue a certificate of occupancy to such owner or lessee or agent thereof stating that the premises in question are fit for occupancy, if after inspection it is found that such premises complies with the provisions of the public health laws of the State of North Dakota, with the rules and regulations of the state department of health, with the rules and regulations of the city board of health and all other requirements of laws or ordinances per- ■ tabling to sanitation and safety.

[¶ 16] In this case, Lamb never submitted an application for a Certificate of Occupancy, but the City conducted a series of inspections after Lamb moved the house onto the lot in 1997. These inspections revealed numerous problems that Lamb was required to correct. An inspection in February 2000 showed- that Lamb had corrected all of the previously discovered violations except one, a non-complying stairway. Rather than bring the stairway into compliance with the Building Code, Lamb sought a variance, which was granted in November 2000.

[¶ 17] Lamb did not thereafter apply for a Certifícate of Occupancy or request reinspection of the premises. The City sent Lamb a series of letters indicating a reinspection was necessary, but Lamb did not respond. Finally, on October 20, 2003, the City sent a “Final Notice Letter” to Lamb stating that there was no Certifícate of Occupancy for the property and that a mandatory inspection of the property was required. The letter also warned that failure to reply would result in a citation for violation of the ordinance. Lamb did not reply, and in February 2004 the City issued a summons and complaint charging Lamb with violating the ordinance.

[¶ 18] Lamb contends that once he received the variance for the stairway in November 2000, all of the prior violations were resolved and the Building Inspector should have automatically issued a Certificate of Occupancy. Lamb’s argument ignores the plain language of the ordinance, which requires an application by the property owner on forms supplied by the City and an inspection to verify compliance with all applicable laws, regulations, and codes. Lamb’s contention that he believed he had done all he was required to do is belied by the series of letters the City sent to Lamb which, at least by October 2003, clearly and unambiguously advised him a reinspection and issuance of a Certificate of Occupancy was necessary.

[¶ 19] The language of the ordinance indicates the proper chronology for issuance of a Certificate of Occupancy is that the owner files an application, the property is inspected, and the Building Inspector then issues the Certificate if the property complies with all laws, rules, and regulations relating to public health, sanitation, and safety: “Upon the filing of such application the building inspector ... shall issue a certificate of occupancy ... if after inspection it is found that such premises complies with” all laws, rules, and regulations. G.F.C.C. § 19-0118. The City housing inspector who inspected Lamb’s property testified that the reason a rein-spection is required is to verify that all listed problems have been corrected and to make certain that no new violations have occurred since the prior inspection. In a case such as this, where the prior inspection occurred nine months before the variance was granted, it is certainly a reasonable interpretation of the ordinance to require a reinspection before issuing the Certificate of Occupancy. The City is not required to accept a piecemeal method of approval such as Lamb would have us impose here.

[¶ 20] We conclude the district court did not misapply the law in finding that Lamb had violated the ordinance.

TV

[¶ 21] Lamb claims that the ordinance setting the penalty for violating the City Building Code, including the Certificate of'Occupancy provisions, is arbitrary and unreasonable.

[¶ 22] Municipal ordinances are presumed to be valid:

Once it is determined that a city has the general authority to regulate a certain subject matter, the burden is upon the party challenging an ordinance to demonstrate how that authority was exceeded. The ordinance is presumed valid, and a court will not declare the ordinance invalid unless it is “clearly arbitrary, unreasonable and without relation to public health, safety, morals or public welfare.”

A & H Services, Inc. v. City of Wahpeton, 514 N.W.2d 855, 857 (N.D.1994) (citation omitted) (quoting Meyer v. City of Dickinson, 451 N.W.2d 113, 116 (N.D.1990)). Municipal authorities have broad discretion in enacting ordinances:

When a municipality has general authority to regulate a particular subject matter, the manner and means of exercising those powers, where not specifically prescribed by the legislature, are left to the discretion of the municipal authorities. Leaving the manner of exercising municipal powers to the discretion of municipal authorities “implies a range of reasonableness within which a municipality’s exercise of discretion will not be interfered with or upset by the judiciary.”

Ennis v. City of Ray, 595 N.W.2d 305, 308 (N.D.1999) (citations omitted) (quoting Meyer, at 116).

[¶ 23] Section 19-0121, G.F.C.C., provides:

Any person, firm or corporation violating any of the terms or provisions of this article shall be subject to a penalty not to exceed five hundred dollars ($500.00). Each day that a violation is permitted to exist shall constitute a separate offense.

Lamb contends that a $500 fine is clearly arbitrary and unreasonable because the City Building Code is required to be derived from the State Building Code, which does not include a similar penalty. See N.D.C.C. § 54-21.3-03(5). Lamb also suggests that the building codes of other, cities in North Dakota either authorize a lower maximum penalty or carry no penalty at all.

[¶ 24] The statute cited by Lamb, while requiring a city which adopts a building code to “adopt and enforce” the State Building Code, specifically authorizes the city to amend the Building Code “to conform to local needs.” N.D.C.C. § 54-21.3-03(5). Moreover, we read the requirement to “adopt and enforce” the State Building Code to mean that the City must adopt the State Code as the basic building code, as amended for local needs, and enforce it, not adopt it and neglect to enforce it. The statute neither provides nor limits the method of enforcement, and does not preclude the City from adopting penalties. Furthermore, the fact that other cities authorize lower or no penalties for building code violations does not render this penalty provision arbitrary and unreasonable if there is statutory authority for it.

[¶ 25] It is undisputed that the City has general authority to regulate public health, sanitation, and safety 'through enactment of a building code. Section 40-05-06(1), N.D.C.C., authorizes a fine of up to .$1,000 and imprisonment for up to thirty days for violation of any city ordinance, resolution, or regulation. The City has broad discretion to enact ordinances regulating public health, sanitation, and safety, and G.F.C.C. § 19-0121 falls within the “range of reasonableness” accorded the City. See Ennis, 595 N.W.2d at 308. We conclude that Lamb failed to carry the burden of demonstrating the City exceeded its authority by adopting the penalty provision in G.F.C.C. § 19-0121. See A & H Services, 514 N.W.2d at 857.

V

[¶ 26] We have considered the remaining issues and arguments raised by the parties and find them to be either without merit or unnecessary to our decision. The judgment of conviction is affirmed.

[¶ 27] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.

[¶ 28] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


author: PER CURIAM.

text:
    2005 ND APP 5
    STATE of North Dakota, Plaintiff and Appellee, v. Clifford SMITH, Defendant and Appellant.
    No. 20050004CA.
    Court of Appeals of North Dakota.
    May 25, 2005.
    John Jeremy Mahoney, State’s Attorney, Center, N.D., for plaintiff and appel-lee.
    Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for defendant and appellant.
   PER CURIAM.

[¶ 1] Clifford Smith appealed from a criminal judgment, entered upon Smith’s conditional guilty plea to the charge of driving under the influence of alcohol in violation of N.D.C.C. § 39-08-01, and causing serious bodily injury to another. We hold Smith’s sentence to 90 days incarceration under N.D.C.C. § 39-08-01.2(2), is an illegal sentence in violation of the maximum penalty of 30 days incarceration for class B misdemeanors permitted under N.D.C.C. § 12.1-32-01. We, therefore, reverse Smith’s sentence and remand for resentencing in accordance with this opinion.

I

[¶ 2] On August 15,, 2004, Smith was charged with the class B misdemeanor of driving under the influence of alcohol and having an alcohol concentration of least eight one-hundredths of one percent in violation of N.D.C.C. § 39-08-01(1). Smith entered a conditional plea agreement to the charge admitting that his conduct caused serious bodily injury to another person, as defined in N.D.C.C. § 12.1-01-04, and, consequently, the court sentenced Smith under N.D.C.C. § 39-08-01.2, which provides in relevant part:

S9-08-01.2. Special punishment for causing injury or death while operating a vehicle while under the influence of alcohol.
1. The penalty provided in this section applies when:
c. A person is convicted of violating section 39-08-01 and the violation caused serious bodily injury, as defined in section 12.1-01-04, to another person.
2.... If the defendant was at least eighteen years of age at the time of the violation of section 39-08-01 or 39-08-03, the sentence under either section must be at least ninety days’ imprisonment.

The court sentenced Smith to incarceration for 90 days, a fine in the amount of $250, and mandatory court fees.

II

[¶ 3] Section 12.1-32-01(6), N.D.C.C., limits the maximum penalty for a class B misdemeanor:

12.1-82-01. Classification of offense- — Penalties. Offenses are divided into seven classes, which are denominated and subject to maximum penalties, as follows:
6. Class B misdemeanor, for which a maximum penalty of thirty days’ imprisonment, a fine of one thousand dollars, or both, may be imposed.

Smith asserts the 90-day sentence of incarceration imposed by the court under N.D.C.C. § 39-08-01.2(2), violates the 30-day maximum incarceration penalty allowed under N.D.C.C. § 12.1-32-01(6), for class B misdemeanors and is illegal.

[¶ 4] Construction of a criminal statute is a question of law, fully reviewable by the appellate court. State v. Buchholz, 2005 ND 30, ¶ 6, 692 N.W.2d 105. Our primary goal in interpreting statutes is to ascertain the legislature’s intent, and we first look to the statutory language and give that language its plain, ordinary, and commonly understood meaning. Id. Statutes are construed to give meaning and effect to every word, phrase, and sentence. Id. If possible, the court construes statutes on the same subject to harmonize them and to give full force and effect to the legislature’s intent. State v. Higgins, 2004 ND 115, ¶ 13, 680 N.W.2d 645. The court construes statutes relating to the same subject matter to give effect to both. Id. Criminal statutes are strictly construed in favor of the deféndant and against the government. State v. Beciraj, 2003 ND 173, ¶ 14, 671 N.W.2d 250. Thus, in interpreting penal statutes, we resolve any doubt in favor of the criminal defendant. State v. Rohrich, 450 N.W.2d 774, 776 (N.D.1990).

[¶ 5] Under N.D.C.C. § 39-08-01(2), a person who is convicted of DUI for the first or second offense “is guilty of a class B ' misdemeanor.” Under N.D.C.C. § 12.1-32-01(6), the maximum penalty which may be imposed for a class B misdemeanor is “thirty days’ imprisonment.” However, under N.D.C.C. § 39-08-01.2(2), when a person is convicted of a DUI in violation of N.D.C.C. § 39-08-01, which results in serious bodily injury to another “the sentence ... must be at least ninety days’ imprisonment.” The State argues the 90-day penalty is more specific than the maximum penalty allowed for class B misdemeanors. As the more specific provision, it should be applied over the general provision to allow a sentence of “at least ninety days” for DUI’s involving serious injury to another. See N.D.C.C. § 1-02-07; see also City of Bismarck v. Fettig, 1999 ND 193, ¶ 15, 601 N.W.2d 247 (when there is a conflict between statutes, we construe specific statutes to control general statutes). We decline the State’s suggested interpretation of this statutory scheme, because we conclude these penalty statutes are irreconcilable. To allow a 90-day sentence or greater under N.D.C.C. § 39-08-01.2(2) is contrary to the 30-day maximum sentence allowed under N.D.C.C. § 12.1-32-01(6), and allowing imposition of the greater penalty would violate the statutory construction rule that penal statutes are strictly construed against the government and in favor of the accused. See, e.g., State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878.

. [¶ 6] The North Dakota Supreme Court’s opinion, in State v. Rohrich, 450 N.W.2d 774, 777 (N.D.1990), is instructive. In that case the State argued the court could sentence a defendant to 18 months of probation under N.D.C.C. § 12-53-03 or N.D.C.C. § 12.1-32-06, even though the defendant had been convicted of a class A misdemeanor for which the maximum penalty allowed under N.D.C.C. § 12.1-32-01 is one year. The North Dakota Supreme Court held the 18-month probationary period exceeded the one-year maximum term of imprisonment for a class A misdemean- or and “the sentence was illegal:”

[¶ 7] The statutory language under N.D.C.C. § 39-08-01.2(2), providing that a sentence “must be at least” 90 days imprisonment is particularly vexing, because it imposes no upper sentencing limit, if construed' to override the' 30-day maximum penalty for class B misdemeanors allowed under N.D.C.C. § 12.1-32-01(6). In this case, the court imposed a 90-day sentence against Smith which “de facto” elevated his crime to a class A misdemean- or. That sentence is contrary to the express designation of Smith’s crime as a class B misdemeanor under N.D.C.C. § 39-08-01(2). We conclude, therefore, the sentence irreconcilably conflicts with the maximum penalty for class B misdemeanors allowed under N.D.C.C. § 12.1-32-01(6), and is, therefore, illegal.

Ill

[¶8] With respect to class B misdemeanor offenses under N.D.C.C. § 39-08-01, we hold that the enhanced sentencing language under N.D.C.C. § 39-08-01.2(2), requiring at least 90 days incarceration, conflicts with the maximum penalty of 30 days allowed under N.D.C.C. § 12.1-32-01(6) and is invalid and unenforceable. We, therefore, reverse Smith’s sentence and remand for resentencing in accordance with this opinion.

[¶ 9] Judgment affirmed in part, reversed in part, and remanded for resen-tencing.

[¶ 10] EVERETT NELS OLSON,' S.J., BENNY A. GRAFF, S.J., and BRUCE E. BOHLMAN, S.J., concur.