author: KAPSNER, Justice.

text:
    2001 ND 57
    STATE of North Dakota, Plaintiff and Appellee, v. Matthew Byron SCHMITT, Defendant and Appellant.
    No. 20000037.
    Supreme Court of North Dakota.
    March 20, 2001.

      Brett M. Shasky, Assistant State’s Attorney, Fargo, ND, for plaintiff and appel-lee.
    William Kirschner, Kirschner Law Office, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Matthew Byron Schmitt appealed from convictions entered upon conditional guilty pleas under N.D.R.Crim.P. 11(a)(2) to manufacturing a controlled substance and possession of a controlled substance with intent to deliver. We remand for further proceedings.

I

[¶2] Schmitt lived with Lester Hol-brook in a house at 502 Morrison Street in West Fargo. In May 1999, a district judge, acting as a magistrate, issued a warrant to search the house. The search warrant was based on a May 26, 1999 sworn affidavit of Special Agent Brent Slade of the North Dakota Bureau of Criminal Investigations. As a result of evidence seized during the search, the State charged Schmitt with manufacturing a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia.

[¶ 3] Schmitt moved to suppress evidence seized diming the search under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), claiming Agent Slade’s affidavit included false statements which were made intentionally, or with reckless disregard for the truth, and after redacting those false statements, there was not probable cause to support the search warrant.

[¶ 4] After an evidentiary hearing, the trial court denied Schmitt’s motion to suppress, concluding there was “[n]o showing ... that Agent Slade included any false statement in the affidavit ‘knowingly and intentionally, or with reckless disregard for the truth,’ ” and “even redacting the questionable statements from the warrant affidavit, there remains sufficient credible evidence to withstand a probable cause challenge.” Schmitt entered conditional pleas of guilty under N.D.R.Crim.P. 11(a)(2) to manufacturing a controlled substance and possession of a controlled substance with intent to deliver, and he appealed from the convictions.

II

[¶ 5] Schmitt argues the trial court erred in finding there was no showing Agent Slade’s affidavit included any false statements which were made intentionally or with reckless disregard for the truth. Schmitt argues there were numerous false statements in Agent Slade’s affidavit involving information provided to law enforcement officers by Donald Hurst, Tonya Paeper, and Ray Gross, and those statements were included in the affidavit intentionally or with reckless disregard for the truth. Schmitt argues, without those false statements, there was not probable cause to support the search warrant.

[¶ 6] Agent Slade’s affidavit described his seven years of work and training as a law enforcement officer and narcotics investigator, and provided:

Your affiant has information that during the month of July, 1998, Special Agent Duane Stanley and Detective Mitch Burris conducted an interview of Donald Hurst. During the interview, Hurst stated that Hurst knew Lester Holbrook to be involved with dealing methamphetamine and marijuana. Hurst stated that Holbrook would receive large amounts of methamphetamine on a regular basis through UPS. Hurst also stated that Holbrook would sell the methamphetamine out of his residence. Hurst stated that Hurst would be able to purchase methamphetamine or marijuana from Holbrook. Hurst stated that Hurst was related to Hol-brook and was upset by the fact that Holbrook had been selling drugs for a long time and had not been caught.
On April 6, 1999, your affiant was contacted by Officer Terry Styf from the West Fargo Police Department. Officer Styf told your affiant that an informant that was working with the West Fargo Police Department had arranged to purchase marijuana from Lester Holbrook. Officer Styf asked your affiant to assist with the preparation and execution of the transaction.
On April 6,1999, your affiant met with Officer Styf. Officer Styf explained to your affiant that the informant was Donald Hurst and that Hurst had arranged to purchase an ounce of marijuana from Holbrook. The deal was to take place at Holbrooks residence, 502 Morrison Street, West Fargo, North Dakota. A short time later, Hurst arrived and your affiant met with Hurst. Hurst stated to your affiant that the deal with Holbrook was already arranged and that Hurst had to call Holbrook on the telephone and let Holbrook know that Hurst was coming over to buy the marijuana. Your affiant instructed Hurst to call Holbrook. Hurst placed a telephone call to Holbrooks residence and received no answer. Your affiant asked Hurst to state what Hurst knew about Holbrooks drug dealing. Hurst stated that Hol-brook had been selling drugs for many years. Hurst stated that Holbrook could get any amount of marijuana that he wanted and that Holbrook would also sell methamphetamine. Your affiant instructed Hurst to make another telephone call to Holbrook. Hurst placed a telephone call to Holbrooks residence and received no answer. Your affiant instructed Hurst to go home and continue trying to make contact with Hol-brook. Your affiant instructed Hurst to arrange a time with Holbrook to do the deal and then contact your affiant.
On April 7, 1999, your affiant contacted Officer Styf. Your affiant asked Officer Styf to verify that Holbrook was residing at 502 Morrison Street, West Fargo, North Dakota. Officer Styf called your affiant back a short while later and stated that Holbrook was the resident of 502 Morrison Street, West Fargo, North Dakota. Officer Styf stated that West Fargo Police Department records and power records indicate that Holbrook currently resides at 502 Morrison Street, West Fargo, North Dakota.
On April 9, 1999 Officer Styf conducted an interview of Tonya Paeper. During the interview, Paeper stated that Paeper had been at Holbrooks residence, 502 Morrison Street, West Fargo, North Dakota within the last five months. Paeper stated that while Pae-per was present at Holbrooks residence, Paeper observed Holbrook selling marijuana to other individuals.
On April 19, 1999, your affiant met with Task Force Officer Pat Claus. TFO Claus stated that on April 14, 1999, Ray Gross had contacted TFO Claus. Gross stated that Gross had overheard Holbrook and another male named Phil talking about Holbrooks indoor marijuana grow in the basement of his residence, near Hardees in West Fargo, North Dakota. Your affiant knows that the address 502 Morrison Street, West Fargo, North Dakota is near the West Fargo Hardees.
On May 24, 1999, your affiant contacted Detective Gordy Olson at the Fargo Police Department. Your affiant asked Detective Olson to look Holbrook up in the Fargo Police Department computer. Detective Olson gave your affiant the following information. On May 15,1997, Holbrook was a suspect in a possession of marijuana case. In September, 1997, Holbrook was mentioned in an investigation for selling marijuana. On June 21, 1998, Holbrook was arrested for possession of marijuana and paraphernalia.
Detective Olson also told your affiant that the Fargo Police Department had the following intelligence reports on Holbrook. On February 13,1995 during an interview of a confidential informant, the confidential informant stated that Holbrook sold marijuana. Other information that this confidential informant gave has been corroborated. On April 6, 1995, the Cass County Sheriffs Office conducted an interview of David Schweer. During the interview, Schweer stated that Schweer had been selling marijuana to Holbrook. On December 3, 1997 during an interview, a reliable confidential informant stated that Holbrook had been doing marijuana dealings with Clark Longie. Longie is known by law enforcement to be involved with dealing drugs to include marijuana. On March 23, 1999, during an interview of David Wald, Wald stated that Holbrook was selling marijuana, cocaine and methamphetamine. Wald stated that Wald had purchased methamphetamine from Holbrook approximately six months prior to this date.
On May 25, 1999, your affiant spoke with Officer Styf. Officer Styf stated that Officer Styf had spoken with Donald Hurst and that Hurst had given the following information. Hurst stated that Hurst had spoken with Holbrook on May 20, 1999. Hurst stated that at this time Holbrook said that he had marijuana for sale. Hurst stated that Holbrook intended to sell one ounce of the marijuana to Nathan Almklov within the next few days. Hurst stated that Holbrook was always in possession of marijuana and would be able to sell almost any amount of marijuana on short notice.
Based upon your affiants training and experience, your affiant knows that individuals involved in the sale and use of controlled substances often store the controlled substances and paraphernalia related to controlled substances in their residences.
Based upon the aforementioned information regarding Lester Holbrooks continued involvement with the use and sale of controlled substances, it is your affi-ant’s belief that evidence of controlled substance violations may be found in the residence of 502 Morrison Street, West Fargo, North Dakota.

[¶ 7] Schmitt argues the uncontradict-ed testimony of Hurst, Paeper, and Gross established that statements in the affidavit which were attributed to them were significantly different than information they actually provided law enforcement officers.

[¶ 8] At the evidentiary hearing, Hurst denied that he told law enforcement officers Holbrook was “involved with dealing methamphetamine”; “Holbrook would receive large amounts of methamphetamine on a regular basis through UPS”; “Hol-brook would sell the methamphetamine out of his residence”; and Hurst “would be able to purchase methamphetamine” from Holbrook. Although Hurst testified he unsuccessfully tried to call Holbrook twice on April 6, 1999, Hurst denied he had arranged to purchase marijuana from Hol-brook on that date or arranged any deal with Holbrook. Hurst testified he never arranged to go to Holbrook’s house to purchase marijuana. Hurst also denied telling law enforcement officers that Hol-brook intended to sell one ounce of marijuana to Nathan Almklov.

[¶ 9] Paeper testified she had been in the driveway at Holbrook’s residence, but she had never been in the house, and she denied seeing Holbrook selling marijuana to anyone. Gross testified the conversation he overheard did not include Hol-brook, but was between three other people who were talking about an indoor marijuana grow in the basement of Holbrook’s house.

[¶ 10] In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held a defendant in a criminal proceeding has the right, under the Fourth and Fourteenth Amendments to the United States Constitution, to challenge the veracity of an affiant’s statements in an affidavit supporting a search warrant. The Court said:

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and,-with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.

Id., at 155-56,171-72, 98 S.Ct. 2674.

[¶ 11] Under Franks, 438 U.S. at 156, 98 S.Ct. 2674, if the defendant makes a substantial preliminary showing to justify an evidentiary hearing, the defendant has the burden at that hearing to prove by a preponderance of evidence that false statements in the warrant affidavit were made intentionally or with reckless disregard for the truth. See State v. Wamre, 1999 ND 164, ¶24, 599 N.W.2d 268; State v. Tester, 1999 ND 60, ¶ 11, 592 N.W.2d 515; State v. Damron, 1998 ND 71, ¶ 9, 575 N.W.2d 912; State v. Morrison, 447 N.W.2d 272, 275 (N.D.1989); State v. Padgett, 393 N.W.2d 754, 757 (N.D.1986). See 2 Wayne R. LaFave, Search and Seizure, § 4.4(d), pp. 506-07 (3d Ed.1996). Whether the defendant establishes statements in a warrant affidavit were made intentionally or with reckless disregard for the truth is a finding of fact reviewed under the clearly erroneous standard. Damron, at ¶ 10; Morrison, at 275; Padgett, at 757.

[¶ 12] A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction a mistake has been made. E.g., Moilan v. Moilan, 1999 ND 103, ¶ 9, 598 N.W.2d 81. A trial court’s findings of fact must be sufficient to enable an appellate court to understand the trial court’s factual determinations and the basis for its conclusions of law. E.g., Webster v. Regan, 2000 ND 18, ¶ 6, 605 N.W.2d 808. The mere recitation of testimony is not equivalent to a finding of fact. In re T.J.K., 1999 ND 152, ¶ 13, 598 N.W.2d 781. A court must specifically state subordinate facts upon which its ultimate factual conclusions rest, see Benson v. Benson, 495 N.W.2d 72, 78 (N.D.1993), and findings of fact which merely state a party has failed in the burden of proof are inadequate. Federal Land Bank v. Lillehaugen, 404 N.W.2d 452, 459 (N.D.1987).

[¶ 13] Here, the trial court recited the testimony of Hurst, Paeper, and Gross, and observed their testimony was different from statements attributed to them in the affidavit. The State offered no testimony at the Franks hearing. Therefore the testimony of Hurst, Paeper, and Gross, if believed, establishes by a preponderance of evidence that the assertions in the affidavit are false. However, the court did not make a finding about their credibility. After reciting their testimony, the court said there was “[n]o showing ... Agent Slade included any false statement in the affidavit ‘knowingly and intentionally, or with reckless disregard for the truth.’ ” The court said there was “no showing that Officer Styf supplied false information to Agent Slade ‘knowingly and intentionally, or with reckless disregard for the truth.’ At most, it has been shown by [Schmitt] that a portion of the information provided by Officer Styf concerning Donald Hurst’s statements was misstated, or miscommuni-cated while being passed along the information path from Hurst, to Styf, to Slade, to the magistrate.” The court decided “the evidence viewed in a light most favorable to [Schmitt’s] position would cause the Court to delete several statements from the warrant affidavit, and review what remains for a probable cause determination,” and “even redacting the questionable statements from the warrant affidavit, there remains sufficient credible evidence to withstand a probable cause challenge.”

[¶ 14] Under Franks, a false statement in a warrant affidavit is a statement that misleads a neutral and detached magistrate into believing the stated fact exists, which in turn affects the magistrate’s evaluation of whether probable cause exists. Morrison, 447 N.W.2d at 274. Here, there was no evidence presented at the hearing to contradict Schmitt’s witnesses’ testimony. The trial court did not make a finding regarding the veracity of the information attributed to Hurst, Pae-per, and Gross, and the court’s mere recitation of their testimony is not equivalent to a finding of fact. See T.J.K., 1999 ND 152, ¶ 13, 598 N.W.2d 781. The court’s' lack of finding on veracity, and the sheer number of alleged false statements support an inference of reckless disregard for the truth. See Morrison, 447 N.W.2d at 276 (holding clearly erroneous trial court’s finding defendant did not establish that statements in affidavit were false and made recklessly).

[¶ 15] Federal courts have said that reckless disregard for the truth under Franks is analogous to the First Amendment standard for libel articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and have held an affiant acts with reckless disregard for the truth if the affiant “ ‘in fact entertained serious doubts as to the truth of his’ allegations.” United States v. A Residence Located at 218 Third St., 805 F.2d 256, 258 (7th Cir.1986) (quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984)). See generally 2 LaFave, Search and Seizure at § 4.4(b), pp. 487-88. Cf N.D.C.C. § 12.1-02-02(l)(c) (defining “recklessly” for criminal culpability as engaging in conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks). In Residence Located at 218 3rd Street, at 258, quoting Williams, 737 F.2d at 602, the court explained reckless disregard for the truth may be proved inferentially “from circumstances evincing ‘obvious reasons to doubt the veracity’ of the allegations.” See also United States v. Pritchard, 745 F.2d 1112, 1116 (7th Cir. 1984). Mere negligence by the affiant, however, does not constitute reckless disregard for the truth. See Franks, 438 U.S. at 171, 98 S.Ct. 2674.

[¶ 16] The trial court’s conclusory findings do not explain the standard it applied for evaluating reckless disregard for the truth and do not specifically state subordinate facts upon which the court’s ultimate conclusion rests. See Benson, 495 N.W.2d at 78. Merely stating that Schmitt failed in the burden of proof is inadequate. See Lillehaugen, 404 N.W.2d at 459. We decline to sanction these conclu-sory findings in this context, because false statements in a warrant affidavit seriously undermine the integrity of the warrant process and strip the probable cause requirement of real meaning. See Franks, 438 U.S. at 168, 98 S.Ct. 2674. The number of alleged false statements attributed to Hurst, Paeper, and Gross, if actually false, obviously could have misled the magistrate. We believe the integrity of the warrant process and the sanctity of the requirement for probable cause for a warrant require more than incomplete and conclusory findings about the information used to procure the warrant. Moreover, the court’s sparse and conclu-sory findings are problematic because the court alternatively ruled that “even redacting the questionable statements from the warrant affidavit, there remains sufficient credible evidence to withstand a probable cause challenge.”

[¶ 17] In Damron, 1998 ND 71, ¶¶ 6-7, 575 N.W.2d 912, (citations omitted), we outlined the requirements for probable cause:

“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 the information presented to establish probable cause should be taken together, not analyzed in a piecemeal fashion. The magistrate is to make a practical, commonsense decision on 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. When reviewing a magistrate’s determination of probable cause, a doubtful or marginal case should be resolved in favor of the magistrate’s determination.
We apply the totality-of-the-circumstances test to review whether information before the magistrate was sufficient to find probable cause, independent of the trial court’s findings. More than “bare-bones” information must be presented to the magistrate in order to establish probable cause.
“Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, ‘ “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... which is not weighed in individual layers but in the ‘laminated’ total.” ’ ”

[¶ 18] Whether there is probable cause to issue a search warrant is a question of law. Wamre, 1999 ND 164, ¶ 5, 599 N.W.2d 268; Damron, 1998 ND 71, ¶ 5, 575 N.W.2d 912. If there is a substantial basis for the magistrate’s conclusion that probable cause exists, we will not disturb that conclusion on appeal. Wamre, at ¶ 7.

[¶ 19] Evidence of criminal activity unrelated to a defendant’s home is not sufficient to provide probable cause to search that home. See Tester, 1999 ND 60, ¶¶ 22-24, 592 N.W.2d 515; State v. Mische, 448 N.W.2d 415, 419-22 (N.D.1989). Evidence of criminal activity must not be stale, and unsupported conclusory allegations are insufficient to establish probable cause. State v. Handtmann, 437 N.W.2d 830, 835 (N.D.1989); State v. Ringquist, 433 N.W.2d 207, 213-14 (N.D.1988). '

[¶ 20] We recognize that deference is ordinarily given to a magistrate’s determination of probable cause. Here, however, if all the alleged false statements in Slade’s affidavit are redacted, the remainder of the information in the affidavit effectively states Holbrook was involved with dealing marijuana for a long time; Holbrook currently lived at 502 Morrison Street; Holbrook was suspected of possession of marijuana in 1997; Holbrook was mentioned in an investigation for selling marijuana in 1997; and Holbrook was arrested for possession of marijuana and paraphernalia in 1998. The affidavit also mentioned “intelligence reports” from 1995, 1997, and March 23, 1999, about Hol-brook’s involvement in drug dealing, and conclusory statements by Hurst that Hol-brook “was always in possession of marijuana and would be able to sell almost any amount of marijuana on short notice.” After redacting the alleged false statements, we conclude the stale and conclusory information in the remainder of the affidavit provides an insufficient basis to establish that identifiable objects of criminal activity would probably be found at the house at 502 Morrison Street. See Tester, 1999 ND 60, ¶¶ 22-24, 592 N.W.2d 515 (holding insufficient nexus between defendant’s home and criminal conduct); Mische, 448 N.W.2d at 419-22 (same).

[¶ 21] In view of the trial court’s failure to make a finding on the truthfulness of the • alleged false statements in Agent Slade’s affidavit, or on the credibility of Schmitt’s witnesses, coupled with the court’s conclusory findings about reckless disregard for the truth and its erroneous application of the law of probable cause to the redacted affidavit, we believe further proceedings are necessary in this case. We remand for the trial court to make necessary findings on the truthfulness of the alleged false statements in the warrant affidavit. If the court finds Agent Slade included false statements in his affidavit, the court must find whether those statements were included intentionally or with reckless disregard for the truth and must evaluate probable cause accordingly. On remand, the court may hear additional evidence about the circumstances under which any false statements were included in the affidavit. If the court ultimately decides the warrant was not supported by probable cause, the court must allow Schmitt to withdraw his guilty pleas.

[¶ 22] We remand for further proceedings consistent with this opinion.

[¶ 23] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.

      . The State does not dispute Schmitt made a sufficient preliminary showing to justify a Franks hearing. See State v. Rangeloff, 1998 ND 135, ¶ 15, 580 N.W.2d 593 (holding defendant’s preliminary showing insufficient to justify Franks hearing).

      . During oral argument to the Court, Schmitt cited State v. Malkin, 722 P.2d 943 (Alaska 1986), and suggested the State had the burden of proof. In Malkin, at 946, the Alaska Supreme Court held, under its state constitution, that once a defendant establishes the right to a Franks hearing, the burden shifts to the State to show by a preponderance of evidence that false statements in an affidavit were not made intentionally or with reckless disregard for the truth, and if the State does not meet that burden, the misstatements must be excised and the remainder of the affidavit tested for probable cause.
      Schmitt did not cite Malkin in the trial court or his appellate brief to this Court, and he has not marshaled a separate state constitutional argument for shifting the burden of proof to the State. It is well established that we do not consider issues raised for the first time at oral argument on appeal. E.g., Roise v. Kurtz, 1998 ND 228, ¶ 10, 587 N.W.2d 573.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2001 ND 59
    Interest of A.L. and J.L., children. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, R.L., C.P., A.L., J.L., and Benjamin Thomas, Guardian ad Litem, Respondents, C.P. and R.L., Respondents and Appellants.
    Nos. 20000217-20000220.
    Supreme Court of North Dakota.
    March 20, 2001.

      Constance Louise Cleveland, Assistant State’s Attorney, Fargo, ND, for petitioner and appellee.
    Jared S. Simonson, Fargo, ND, for respondent and appellant C.P.
    Steven D. Mottinger, Fargo, ND, for respondent and appellant R.L.
   SANDSTROM, Justice.

[¶ 1] C.P. and R.L. separately appeal from a juvenile court order adopting a judicial referee’s recommendation to terminate their parental rights to A.L. and J.L. We conclude there is clear and convincing evidence to warrant termination of their parental rights. We affirm.

I

[¶ 2] C.P. is the mother and R.L. is the father of A.L., born on February 16, 1990, and J.L., born on July 9, 1991. The parents have a history of domestic violence, chemical abuse, and lack of appropriate supervision of the children. Between 1990 and 1999, their children were the subject of twenty child protection assessments for abuse and neglect. The parents have been offered social services, and several service contracts were developed to address their problems, with little change in their behavior. The children have been in foster care several different times. In February 1999, the children were placed in foster care as a result of C.P.’s report that the home was unstable because of the parents’ domestic violence and chemical abuse. The placement eventually culminated in this petition to terminate the parental rights of R.L. and C.P. to their children.

[¶ 3] A judicial referee recommended finding the children were deprived because they were “without proper parental care, control, subsistence, or education as required by law or other care or control necessary for [their] physical or mental or emotional health or morals and the deprivation [was] not due primarily to the lack of financial means of the parents”; “the circumstances which cause the deprivation are likely to continue or will not be remedied”; and “[t]he children will probably suffer serious physical, mental, moral, or emotional harm [i]f parental rights are not terminated.” The juvenile court adopted the referee’s recommendation.

[¶ 4] The juvenile court had jurisdiction under N.D.C.C. §§ 27-20-02(11) and 27-20-03(l)(b). The appeals are timely under N.D.C.C. § 27-20-56(1), N.D.R.App.P. 4(a), and B.R. T. v. Executive Dir. of Soc. Serv. Bd., 391 N.W.2d 594, 597 (N.D.1986). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 5] A juvenile court may terminate parental rights if the court finds the child is deprived; the conditions and causes of the deprivation are likely to continue or will not be remedied; and the child is suffering, or in the future will probably suffer, serious physical, mental, moral, or emotional harm. N.D.C.C. § 27—20—44(l)(b). See In Interest of AS., 1998 ND 181, ¶ 15, 584 N.W.2d 853; In Interest of L.F., 1998 ND 129, ¶ 10, 580 N.W.2d 573. The State must prove the elements for termination by clear and convincing evidence. AS., at ¶ 15; L.F., at ¶10.

[¶ 6] We review a juvenile court’s decision to terminate parental rights in a manner similar to a trial de novo. AS., 1998 ND 181, ¶ 13, 584 N.W.2d 853; L.F., 1998 ND 129, ¶ 12, 580 N.W.2d 573. We review the “files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court.” N.D.C.C. § 27-20-56(1). Although our review is similar to trial de novo, we give deference to the juvenile court’s decision because the court had the opportunity to observe the candor and demeanor of the witnesses. AS., at ¶ 13; L.F., at ¶ 12.

III

[¶ 7] C.P. argues the juvenile court should have continued the proceeding to determine whether the children were of “Indian child” status under the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. (“I.C.W.A.”). According to C.P., if the court knows an Indian child is involved in an involuntary termination proceeding, the child’s tribe must be notified so it can intervene, and if the tribe is not known, the Secretary of Interior must be notified.

[¶ 8] In 1978, Congress passed the I.C.W.A., which contains an express congressional declaration of policy:

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C. § 1902.

[¶ 9] Under 25 U.S.C. § 1912, in any involuntary proceeding in a state court “where the court knows or has reason to know that an Indian child is involved,” the party seeking termination of parental rights to an Indian child shall by registered mail notify the Indian child’s tribe of the pending proceeding and its right to intervene, and if the identity or location of the tribe cannot be determined, the notice shall be given to the Secretary of Interior. Before the notice provisions of the I.C.W.A. apply, the court must know or have reason to know an “Indian child” is involved. An “Indian child” means “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4).

[¶ 10] The party asserting the applicability of the I.C.W.A. must produce evidence for the court to decide whether a child is an “Indian child.” In Interest of AG.-G., 899 P.2d 319, 322 (Col.Ct.App.1995); In re Interest of J.L.M., 234 Neb. 381, 451 N.W.2d 377, 387 (1990). Other courts have held unsupported claims of “Indian child” status are insufficient to trigger the notice provisions of the I.C.W.A. See Matter of Appeal in Maricopa Cty., 136 Ariz. 528, 667 P.2d 228, 233 (Ct.App.1983); AG.-G., at 322. In A.G.G., at 322, the court said “Indian child” status can be established by affidavits of tribal officials, or testimony of the children’s biological parents. See also Application of Angus, 60 Or.App. 546, 655 P.2d 208, 212-13 (1982).

[¶ 11] Here, at the termination hearing, the following colloquy occurred:

MR. SIMONSON [counsel for C.P.]: Just a moment, I believe there is another matter of business I believe is a threshold issue. Its [sic] in regards to the Indian Child Welfare Act. It has come to my attention most recently in the last day or so that [C.P.] is a one quarter Indian and a member of the Turtle Mountain Indian Tribe. The children then presumably are one eighth Indian for her. Concerning [R.L.’s] ancestry or lineage is unknown. We would ask that the Court um, we would ask to invoke the Indian Child Welfare Act for this proceeding based on [C.P.’s] Indian lineage, and the children’s potential enroll ability [sic] in the tribe.
THE COURT: Which tribe?
MR. SIMONSON: Well that is not clear to me, Your Honor. The information I have is that [C.P.’s] father is one-half Native American. He owns Indian, he is now deceased. He owned Indian land in North Dakota, South Dakota, and Montana. We do know that he was a member and that [C.P.] is enrolled in the Turtle Mountain Indian Reservation. We know what the criteria is in regards to enroll ability [sic]. We do not know if he was a member of the Wahpeton-Sisseton Tribe. If he was the children would be enroll able [sic], eligible in that tribe. [C.P.] may be enrolled in that tribe. That is unknown. Its [sic] my further understanding that [C .P.’s] parents enrolled her in the tribes. I am not sure which tries [sic] she is enrolled in. We now [sic] she is enrolled in the Turtle Mountain. In my view the only way to make a full determination over the Indian children’s enroll ability [sic] would be for an inquiry to be made to the Bureau of Indian Affairs and find out any and all tribes in which [C.P.] is possibly enrolled in. There may be the Wahpeton-Sisseton.
THE COURT: She is enrolled in the Turtle Mountain?
MR. SIMONSON: Yes she is.
THE COURT: And you have no information as to any other enrollment?
MR. SIMONSON: No I do not.
THE COURT: These children are um or are not enroll able [sic] in the Turtle Mountain?
MR. SIMONSON: That is unknown to me.
THE COURT: Miss Cleveland?
MS. CLEVELAND [counsel for the State]: Yes, Your Honor. I believe I have provided a copy of a facsimile received from Turtle Mountain Band of Chippewa by miss [sic] Johnson the 28th of March, which was a response to our inquiry after um, this issue has been raised at the eleventh hour. It was clearly stated the children were not eligible for enrollment, and that Ms. P., was enrolled. Further they did not anticipate or they will not be intervening on behalf of the children in this matter. Your Honor, I have marked copies of that, which I have disclosed to al [sic] parties. This is simply a facsimile. It bears further testimony on this issue. Miss Johnson is present. I would offer Petitioner’s Exhibit 18, which is two pages, and bears a facsimile cover sheet dated 3-29, 2000, from the Turtle Mountain Band of Chippewa to Lisa Johnson. The second is a letter signed by Marilyn Poitra, the ICWA coordinator of the Turtle Mountain Band of Chippewa Indians, setting forth their position on this case.
THE COURT: All right.
MR. SIMONSON: I would object on heresay [sic], Your Honor. A determination concerning the enroll ability [sic] of a child is done by the tribe, in this case apparently the state has contacted Marilyn Poitra, who is the Indian Child Welfare Act coordinator. After the state has provided me a copy of this document I called the tribe, at one of the two numbers that are on the letterhead, and I talked to an Ernest Pattenaudy, who is the director of the child welfare, whom Marilyn Poitra works for. Its [sic] my understanding from my conversation with him is that Marilyn can not unilaterally make a decision concerning enroll ability [sic] of a child. Its [sic] done by conference, its [sic] um, there is a committee. He also indicated that the Turtle Mountain Indian Reservation is the only Tribe whose enrollment is governed by the Bureau of Indian Affairs. In this case we have a letter that is being presented to the Court which sets that um, one of the membership requirements is one fourth or more Indian blood. She goes on to say if the father does not have Indian blood A., and J., would be determined to possess one eighth. This to me represents an opinion by Marilyn, does not represent to me an official determination for the purpose of relying on the, the court relying on whether or not the ICWA is invoked.
THE COURT: Mr. Thomas?
MR. THOMAS [guardian ad litem]: Your Honor, I think the only information we have is that the children may be one eighth American Indian. The information from the Tribe suggests that would be um, not sufficient to make them enroll able [sic] with Tribe. There is no other information before the Court to suggest that they are enroll able [sic] in any other specific Tribe, nor that they may have more than one eighth Native American blood, and absent some clear indication that the children are either enrolled or enroll able [sic] I don’t think that the Indian Child Welfare Act applies to these proceedings.
THE COURT: All right. Well the proffered exhibit is clearly heresay [sic]. Also consistent with the Court’s prior experience with the Turtle Mountain band requires one fourth Indian blood to be registered. In that regard it basically sets out the law Mr. Simonson. I will receive the exhibit just as confirmation of my taking judicial notice of the legal status as to ICWA enroll ability [sic] in the Turtle Mountain Tribe. In any event I have no information today that leads me to believe they are Indian children with regard to ICWA.

[¶ 12] C.P. offered no evidence to suggest the children were subject to the I.C.W.A. She made no offer of proof at the termination hearing, and she relies solely on her counsel’s statements about the children’s potential eligibility for enrollment in the Turtle Mountain Indian Tribe and other “unknown” tribes. The juvenile court decided it had no information which led it to believe the children were of “Indian child” status under the I.C.W.A. Nothing in this record suggests the children were members of an Indian tribe, or eligible for membership in an Indian tribe, and counsel’s unsupported and vague statements were insufficient to suggest “Indian child” status. We conclude the juvenile court did not err in deciding there was no evidence to invoke the I.C.W.A.

IV

[¶ 13] R.L. and C.P. argue the juvenile court’s decision to terminate their parental rights is not supported by the evidence. They argue the State did not show by clear and convincing evidence the conditions of deprivation were likely to continue or would not be remedied. C.P. argues the State offered no evidence to clearly and convincingly establish her actions posed a harm to the children.

[¶ 14] Although evidence of past deprivation alone is not sufficient to terminate parental rights, evidence of the parents’ background, including previous abuse or deprivation, may be considered in determining whether deprivation is likely to continue. A.S., 1998 ND 181, ¶ 19, 584 N.W.2d 853. Because evidence of past deprivation alone is not enough to terminate parental rights, prognostic evidence is necessary to determine continued or future deprivation. Id. We have defined prognostic evidence as evidence that forms a basis for a reasonable prediction of future behavior. Id.

[¶ 15] The juvenile court’s written findings specifically state the children were deprived because they were “without proper parental care, control, subsistence, or education as required by law or other care or control necessary for [their] physical or mental or emotional health or morals and the deprivation [was] not due primarily to the [parents’] lack of financial means”; “the circumstances which cause the deprivation are likely to continue or will not be remedied”; and the “children will probably suffer serious physical, mental, moral, or emotional harm [i]f parental rights are not terminated.” The court’s oral findings state:

Taking into account the rather extensive files and records in this matter, the exhibits offered, the testimony offered, and the arguments heard this morning, what strikes me of course is the fact that we are looking at essentially a full decade of unchanging behavior. The outstanding elements of that decade are essentially as follows:
That these two parents have an extraordinarily dysfunctional relationship. They have shown no inclination whatsoever to modify that for the better in any fashion. That relationship is ongoing and at this point I don’t think I could be convinced by either that they have any intention of going their separate ways.
These parents over that decade have demonstrated a serious situation of chemical and/or alcohol abuse. I have reason to believe that such is ongoing and I have reason to believe that neither parent is interested in addressing these difficulties even at this late date. That over this decade the parties have engaged in a continuous process of domestic violence. It appears that that is ongoing and I have no reason to believe that in the future that is likely to abate.
The 10 years of you [sic] unchanging behavior despite the offer of all possible services offered to these parents to help them change is prognostic evidence enough. Quite frankly as supplemented to some degree by the expert opinions that have been tendered.
I, A, find these children to be deprived. I, B, find that the circumstances of deprivation are most unlikely to abate or moderate in the foreseeable future.
These children I believe have been harmed to a very significant extent by the environment presented them over their short lives by their parents. To continue the children in limbo or in the alternative to return these children to their parents would in my opinion only exacerbate or extend or increase the harm to these children. They are entitled to some final result as to this relationship.

[¶ 16] The evidence supports the court’s finding these parents had been offered services for almost ten years and they refused to change their behavior to prevent deprivation of the children. This Court has recognized a juvenile court need not operate in a vacuum in termination proceedings. In the Interest of R.M.B., 402 N.W.2d 912, 917 (N.D.1987). Here, the evidence indicates a pattern of conduct by the parents that forms a basis for a reasonable prediction of their future behavior, see A.S., 1998 ND 181, ¶ 19, 584 N.W.2d 853, and establishes the children are suffering, or will suffer serious physical, mental, moral, or emotional harm because of the parents’ future behavior. Under our de novo standard of review and giving appreciable weight and deference to the juvenile court’s findings, we conclude the court’s decision is supported by clear and convincing evidence.

V

[¶ 17] C.P. argues the evidence does not support the juvenile court’s finding the children were adoptable and the termination of her parental rights was in the children’s best interest. To the extent the best interests of the children is an important factor in termination proceedings, see A.S., 1998 ND 181, ¶ 31, 584 N.W.2d 853, the evidence supports the court’s finding. Issues about adoptability of the children, however, are not part of the necessary proof for the termination of parental rights. See N.D.C.C. § 27-20-44(l)(b).

VI

[¶ 18] We affirm the juvenile court order.

[¶ 19] VANDE WALLE, C.J., NEUMANN, MARING and KAPSNER, JJ., concur.

      . 25 C.F.R. § 23.11(c)(3) says for proceedings in North Dakota, notice also shall be sent to the Bureau of Indian Affairs Area Director in Aberdeen, South Dakota.


author: NEUMANN, Justice.

text:
    2001 ND 56
    RITTER, LABER AND ASSOCIATES, INC., Elizabeth Cantarine, Personal Representative of the Estate of Eugene A. Burdick, and Russell L. Kiker, Plaintiffs and Appellees, v. KOCH OIL, INC., A DIVISION OF KOCH INDUSTRIES, INC., and Charles Meduna, Defendants and Appellants.
    No. 20000224.
    Supreme Court of North Dakota.
    March 20, 2001.

      Ronald H. McLean (argued) and Jane L. Dynes, Serkland Law Firm, Fargo, ND, for plaintiffs and appellees.
    Marvin L. Kaiser (appeared), Kaiser Law Firm, Williston, ND, for plaintiffs and appellees.
    Gary J. Gordon (appeared) and James J. Fetterly, Rider Bennett Egan & Arundel, Minneapolis, MN, for plaintiffs and appel-lees.
    Brad D. Brian (argued), Ronald K. Meyer (appeared), Munger, Tolies & Olson, LLP, Los Angeles, CA, for defendants and appellants.
    John W. Morrison (appeared) and Shane A. Hanson (appeared), Fleck, Mather <& Strutz, Ltd., Bismarck, ND, for defendants and appellants.
    James M. Armstrong (appeared), Foul-ston & Siefldn, Wichita, KS, for defendants and appellants.
    J. Kory Parkhurst (appeared), Koch Industries, Inc., Wichita, KS, for defendants and appellants.
   NEUMANN, Justice.

[¶ 1] Koch Oil and Charles Meduna, Koch’s North Dakota assistant chief gau-ger, (“Koch”) appealed from an order certifying a class action under N.D.R.Civ.P. 23, brought by a class of persons represented by Ritter, Laber and Associates, Eugene Burdick, and Russell Kiker (“Rit-ter”). We affirm.

I

[¶ 2] The class consists of approximately 6,000 unidentified owners of royalty and leasehold interests in approximately 2,300 oil wells in North Dakota. Koch purchased or sold oil from the wells between January 1, 1975 and December 1988, and measured the oil by hand gauging. The class representatives allege Koch acquired more oil than it paid for because of inaccurate measurements, and they seek additional revenues based on their proportionate ownership of the oil. They seek an accounting and money damages for conversion and unjust enrichment.

[¶ 3] In Ritter, Laber & Assocs., Inc. v. Koch Oil, Inc., 2000 ND 15, ¶31, 605 N.W.2d 153, we reversed a previous certification of the class representatives’ lawsuit as a class action under N.D.R.Civ.P. 23. We concluded the trial court did not abuse its discretion in analyzing the factors for certification under N.D.R.Civ.P. 23(c)(1)(C), (E), (G), and (K), but the court misapplied the law in its analyses of the “joint or common interest” factor under N.D.R.Civ.P. 23(c)(1)(A), and the “incompatible standards” factor under N.D.R.Civ.P. 23(c)(1)(B). Koch, at ¶¶ 13, 16. We remanded for a redetermination of the class certification based on a correct application of the law under N.D.R.Civ.P. 23(c)(1). Koch, at ¶ 31.

[¶ 4] On remand, the trial court again certified the lawsuit as a class action, finding a class action provided a method for the “fair and efficient adjudication of the controversy” under N.D.R.Civ.P. 23(c)(1).

II

[¶ 5] We have construed N.D.R.Civ.P. 23 to provide an open and receptive attitude toward class actions. Koch, 2000 ND 15, ¶ 3, 605 N.W.2d 153; Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶ 7, 598 N.W.2d 820; Peterson v. Dougherty Dawkins, Inc., 1998 ND 159, ¶ 10, 583 N.W.2d 626. A trial court has broad discretion in deciding whether to certify a class action under N.D.R.Civ.P. 23. Koch, at ¶ 4; Werlinger, at ¶ 6. On appeal, we will not overturn a trial court’s decision to certify a class action unless the court abused its discretion. Koch, at ¶ 4; Werlinger, at ¶ 6. A trial court abuses its discretion if it acts in an unreasonable, arbitrary, or unconscionable manner. Koch, at ¶ 4; Werlinger, at ¶ 6. A trial court also abuses its discretion when its decision is not the product of a rational mental process leading to a reasoned decision, or when it misinterprets or misapplies the law. Koch, at ¶ 4.

[¶ 6] To certify a class action under N.D.R.Civ.P. 23, four requirements must be met:

(1) The class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable;
(2) There is a question of law or fact common to the class;
(3) A class action should be permitted for the fair' and efficient adjudication of the controversy; and
(4) The representative parties fairly and adequately will protect the interests of the class.

Koch, 2000 ND 15, ¶ 5, 605 N.W.2d 153, quoting Werlinger, 1999 ND 173, ¶ 8, 598 N.W.2d 820.

[¶ 7] In this case, the certification dispute involves whether a class action should be permitted for the fair and efficient adjudication of the controversy. Rule 23(c)(1), N.D.R.Civ.P., lists thirteen factors for trial courts to consider in determining whether a class action satisfies the requirements for the fair and efficient adjudication of the controversy. Koch, 2000 ND 15, ¶10, 605 N.W.2d 158. A trial court must weigh those factors, and no one factor predominates over the others. Id.

Ill

[¶ 8] Koch argues the trial court erred in certifying this class action because the court misinterpreted and misapplied the law in deciding the requirements of N.D.R.Civ.P. 23(c)(1)(A) and (C) were satisfied.

A

[¶ 9] Koch argues the trial court erred as a matter of law in deciding the “joint or common interest” factor under N.D.R.Civ.P. 23(c)(1)(A) was satisfied, because Koch’s liability is not a fixed amount and the adjudication of one class member’s claim will not be res judicata on the claim of any other class member.

[¶ 10] In Werlinger, 1999 ND 173, ¶¶ 49-52, 598 N.W.2d 820, the plaintiffs’ claims relied on the same employment policies and practices of an employer and its predecessors, and we reversed a trial court decision that the “joint or common interest” factor weighed in favor of certification. We said:

Historically, class actions were divided into three categories: true, spurious, and a hybrid of the first two. 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1752, at 16 (2d ed.1986). A true class action was one in which all plaintiffs have a common and undivided interest in the subject matter of the suit. Knowles v. War Damage Corp., 171 F.2d 15, 17 (D.C.Cir.1949). Issues determined in a true class action were res judicata for any member of the class, even though a person might never have been a party to the action. Id. at 18. In a so-called spurious class action, the rights sought to be enforced are “several, and there is a common question of law or fact affecting the several rights and a common relief is sought.” Id. In this type of suit, joinder into a class action is a matter of economy and efficiency on the part of the courts and parties, and individuals not joining are not bound by the decision. Id.
Rule 23(c)(1)(A), N.D.R.Civ.P. contemplates a joint interest similar to the old “true” class action as evidenced by Rule 23(h)(1) prohibiting exclusion from the class if an affirmative finding is made under Rule 23(c)(1)(A), or put differently, if a mandatory class action is found.
Here, the joint interest found by the district court is merely a possible common question of fact or law. It does not reach the level of a joint or common interest which would give rise to a mandatory class action. Therefore, the district court erred in finding a joint or common interest existed among the plaintiffs.

Werlinger, at ¶¶ 50-52. Although the trial court’s analyses of most of the factors in N.D.R.Civ.P. 23(c)(1) were affirmable, the court partially relied on an incorrect analysis of the joint or common interest factor. Because the extent of the court’s reliance on that factor was not clear, we remanded for a determination of the certification issue under a correct consideration of the factors in N.D.R.Civ.P. 23(c)(1). Werlinger, at ¶ 56.

[¶ 11] In Koch, 2000 ND 15, ¶ 11, 605 N.W.2d 153, the trial court found a “joint or common interest,” because class members had an interest in recovering against Koch and the class members had a common legal claim based on a common nucleus of fact. We said:

In Werlinger, the district court found the [Joint and common interest] factor weighed in favor of certification because the plaintiffs relied on the same policies and practices of the same employer and its predecessors. Id. at ¶ 49. This decision was based on a misinterpretation of “ ‘joint or common interest.’ ” We explained in Werlinger this factor is similar to the old “true” class action in which all plaintiffs must have a common and undivided interest in the subject matter of the suit. Id. at ¶ 50. Generally a common interest exists if one plaintiffs failure to collect would increase the recovery of the remaining plaintiffs or if the defendant’s total liability does not depend on how the recovery of a claim is distributed among the class members. 5 James Wm. Moore et al., Moore’s Federal Practice § 23.07[3][b][ii] (3d ed.1997).
The district court did not have the benefit of Werlinger and found only that there was a common interest in recovery and a common nucleus of fact. Thus, the district court misapplied the law and we remand to the district court to reconsider its finding of a joint or common interest among the plaintiffs in light of Werlinger.

Koch, at ¶¶ 12-13.

[¶ 12] On remand, the trial court found:

(A) The Court determines that a common or joint interest exists among members of the class. A common interest exists if the defendant’s total liability does not depend on how the recovery of a claim is distributed among the class members. Rit-ter, Laber and Associates v. Koch, 2000 ND 15, ¶ 12, 605 N.W.2d 153, 157 (N.D.2000). If Koch is found to possess profits from oil for which it did not pay and if it is found that those profits must be returned, Koch’s liability would not depend on how the profits would be distributed.

[¶ 13] Koch argues the “joint or common interest” factor is not satisfied because (1) Koch’s liability depends on how the claim of each individual class member is decided and is not a fixed amount regardless of which class members prevail, and (2) adjudication of any individual’s claim is not res judicata on the right of any other individual to recover. Koch argues each potential class member’s claims and Koch’s defenses require individualized determinations:

For example, if Kiker were able to, establish that Koch converted 50 barrels of his oil, but the trier of fact ruled that his claim is barred by statute of limitations, Kiker would not be able to recover from Koch for these barrels. However, the amount of the recovery of other class members would not be increased to include these 50 barrels. Just as other royalty owners would have no claim to the value of this oil if Kiker brought his claim in a separate (non-class) action, other class members have no claim to the value of Kiker’s oil because this lawsuit has been brought as a class action.

Koch argues the example “eonfirm[s] that individual factual determinations are necessary to determine whether Koch is liable to each class member and, if so, the amount of Koch’s liability to that class member.” Koch argues

the issue is not — as [Ritter] contend[s] and the district court concluded — simply a calculation of the amount of “damages” equal to the aggregate amount of oil overage at the selling points, with each class member automatically obtaining a pro rata “proportion” of this amount, virtual strict liability. Instead, the trier of fact will be required to determine Koch’s liability to each individual class member on each individual’s claims. As a result, there is no support for [Rit-ter’s] assertion that the factor of “joint and common interest” is satisfied in this case.

[¶ 14] Ritter responds Koch’s total liability does not depend on how the recovery of a claim is distributed among the class members, and once it has been decided that Koch accumulated 750,000 barrels of oil for which it did not pay, there is a defined fund available for recovery and Koch has no interest in who gets the money. Ritter argues “[b]ecause Koch did not keep track of its gains by individual well but instead by regional selling points, any distribution must be done on the basis of fluid recovery, or in other words, by equitable pro-rata distribution” under N.D.R.Civ.P. 23(o), which allows for fluid recovery to benefit the class as a whole where individual distribution is impracticable or residual remains after distribution.

[¶ 15] Both sides have presented diametrically opposite arguments regarding a joint or common interest in a fixed fund. At a hearing on remand, the trial court recognized the parties’ contrary positions at that stage of the proceeding:

Let us go back then to the primary issue today, and that is to review on remand the factors to be considered, Rule 23(c)(1)(A) and (B).... As to (A), I conclude that there is a joint interest here. I’m not sure how it really affects any defense that Koch might assert to the joint interest that the members of the class possess. Now, again, there may be evidence that changes that conclusion but as of now it appears to me that there is a joint interest and thus factor (A). I don’t want to conclude legally as Mr. McLean wishes me to that simply because it’s been certified as a subsection (C), a class action, a mandatory class action, that (A) is automatically met. I don’t think that would follow in every case and I’m not sure the Supreme Court meant to say that simply by their review of what used to be the old true class action. But in any event,
I decide there is a joint interest. I’ve reviewed again all of the remaining factors, both those that were appealed and seemingly affirmable. They weren’t affirmed, as such, Mr. McLean. As I understand the Supreme Court opinion, they just said they were affirmable but not affirmed as such. In other words, that did not become a matter of judgment law in the case at all, just simply that they decided that my discretion on those factors was not abused, at least they wouldn’t say so in that appeal. But I’ve reviewed them all again and I’m satisfied that at least at this stage of litigation with the allegations that the plaintiffs have made that the case truly is ideally suited for a class action as compared with the alternative, which even though I’ve used the word “terrorizing” before I mean that in a litigation sense and the overwhelming duties of the Court in the alternative sense if all of these cases were to be presented individually it would be certainly a far more massive function for the Court to handle than as a class action. And I’m aware of the manageability issues. This has troubled me for a long time. As of this stage I don’t know how much time is going to be spent in trial on this case. I don’t know how much time is yet going to be spent in discovery and I don’t know exactly how the case is going to be presented, either by the plaintiffs. And they seem to want to assert the fluid recovery rule which they imply would lessen their burden somehow. But that would not preclude the defendants from litigating each and every claim and so I’m mindful of the manageability problems. But, as a trial court we simply can’t duck or avoid our responsibility to handle it either as a class action or as individual cases. But to bring individual cases simply seems so unrealistic that it would be a denial of justice in my mind to preclude the members of the class from being represented by the lead plaintiffs in a class action. [Emphasis added.]

The trial court's written decision did not create any subclasses “at this time,” but recognized nothing in N.D.R.Civ.P. 23 precluded the creation of subclasses if the need arose. The court’s decision reflects that later evidentiary developments may change its conclusion about the existence of a joint or common interest in a defined fund,

[¶ 16] As we explained in Koch, 2000 ND 15, ¶ 12, 605 N.W.2d 153, and Werlinger, 1999 ND 173, ¶ 52, 598 N.W.2d 820, a joint or common interest under N.D.R.Civ.P. 23(a)(1)(A) is not the same as a common question of law or fact under N.D.R.Civ.P. 23(c)(1)(E). At this stage of the proceeding, the trial court adopted Rit-ter’s arguments about a joint or common interest in a defined fund. Under N.D.R.Civ.P. 23(b), a trial court generally considers issues about certification of a class action “as soon as practicable after the commencement of a class action,” and at that stage of the proceeding, issues regarding a joint or common interest may not be fully crystalized. A trial court may amend a certification order at any time before entry of judgment on the merits. N.D.R.Civ.P. 23(e). Under similar language in Fed.R.Civ.P. 23(c)(1), federal trial courts are free to decertify, subclassify, or modify a class certification previously granted. See Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1145 (8th Cir.1999); Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2nd Cir.1999); Barnes v. American Tobacco Co., 161 F.3d 127,140 (3rd Cir.1998); Miera v.. First Sec. Bank, 925 F.2d 1237, 1241-42 (10th Cir.1991); Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir.1983). See generally 5 James Wm. Moore et al., Moore’s Federal Practice § 26.61 et seq. (3rd ed.1997). In Richardson, at 1019, the court aptly explained a federal trial court “must define, redefine, subclass, and de-certify as appropriate in response to the progression of the case from assertion to facts.”

[¶ 17] Here, the trial court recognized that under a fluid recovery scenario, Koch was not precluded from litigating each and every claim against it. At this stage of the proceedings and given the parties’ contrasting assertions about individualized claims and recovery from a common fund, we cannot say the trial court misapplied the law or acted arbitrarily, capriciously, or unreasonably in adopting the assertions of the representative class members. As the case progresses, however, the court may need to redefine, subclassify, or de-certify the class.

B

[¶ 18] Koch argues the trial court erred as a matter of law in deciding N.D.R.Civ.P. 23(c)(1)(C) was satisfied.

[¶ 19] In Koch, 2000 ND 15, ¶27, 605 N.W.2d 153, we concluded the trial court did not abuse its discretion in finding common questions predominate. On remand, the trial court decided:

(C) The Court finds that adjudications with respect to individual members of the class as a practical matter would be dispositive of the interests of other members or substantially impair or impede other members’ interests. As a practical matter this litigation by the named class representatives will have a substantial impact on those parties who have an interest in the same wells as the three class representatives. Other interest owners whose oil was sold to Koch will be substantially impacted as Koch’s acquisition of oil without paying for it occurred throughout North Dakota. This factor weighs in favor of certifying the class.

[¶ 20] In Koch, 2000 ND 15, ¶¶ 17, 27, 605 N.W.2d 153, we concluded similar reasoning by the trial court did not constitute an abuse of discretion about whether common questions predominated. Koch has provided no persuasive reasons for a different conclusion in this case. As we explained in Koch, at ¶27, there may be individual issues involved in this case, but those individual issues do not preclude a finding that common questions predominate. Based on this record and at this stage of the proceeding, we conclude the trial court did not abuse its discretion in finding common questions predominate.

IV

[¶ 21] Koch argues if the trial court correctly applied N.D.R.Civ.P. 23(l)(c)(A) and (C), a member of the plaintiff class may not elect to be excluded from the action under N.D.R.Civ.P. 23(h)(1)(B) and that prohibition violates the due process rights of the class members and Koch. Ritter responds due process does not prohibit the certification of a class as a mandatory class under N.D.R.Civ.P. 23, and the court’s decision does not violate due process.

[¶ 22] In Koch, 2000 ND 15, ¶30, 605 N.W.2d 153, we concluded Koch’s argument that constitutional due process requires absent plaintiffs be given the opportunity to opt out of a class action was premature, because absent class members had not yet been identified. Once again, we conclude Koch’s constitutional argument is premature.

[¶ 23] We point out, however, N.D.R.Civ.P. 23 provides more due process protections than Fed.R.Civ.P. 23. Rule 23, N.D.R.Civ.P., permits mandatory class members to participate in the action. N.D.R.Civ.P. 23(i)(l)(B)(iii). Additionally, a nonrepresentative class member has the right to appear and be represented by separate counsel. N.D.R.Civ.P. 23(i)(2). There is no corresponding protection under Fed.R.Civ.P. 23 for class members. Additionally, if problematic issues arise regarding nonresidents, a North Dakota trial court may create subclasses or exclude particular members from the class. See Peterson, 1998 ND 159 ¶19, 583 N.W.2d 626. Moreover, as we have explained, as further evidentiary facts are developed, the trial court may decertify, subclassify, or modify a previously certified class action. At this stage of the proceeding, however, we conclude Koch’s due process argument is premature.

V

[¶ 24] We affirm the trial court’s order certifying the action as a class action.

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

      . On remand, the trial court found the “incompatible standards” factor under N.D.R.Civ.P. 23(c)(1)(B) was not applicable:
      The Court finds that the plaintiffs do not seek injunctive or corresponding declaratory relief as explained in Werlinger v. Champion Healthcare, 1999 ND 173 at ¶ 53-55, 598 N.W.2d 826 [820] (N.D.1999), and therefore factor (B) is not applicable and will not be given any weight.
      In this appeal, no issue is raised about this factor.


author: PER CURIAM. VANDE WALLE, Chief Justice,

text:
    2001 ND 55
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Allan R. HAWKINS, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Allan R. Hawkins, Respondent.
    No. 20000233.
    Supreme Court of North Dakota.
    March 20, 2001.

      Loralyn K. Hegland, Assistant Disciplinary Counsel, Bismarck, ND, for petitioner.
    Allan R. Hawkins, pro se, Scottsdale, AZ, for respondent.
   PER CURIAM.

[¶ 1] On Petition for Reciprocal Discipline, Allan R. Hawkins filed objections to the report of the hearing panel before the Disciplinary Board of the North Dakota Supreme Court which recommended identical discipline to that imposed by the District Court of Midland County, Texas. Assistant disciplinary counsel also filed objections to the hearing panel’s report. We impose identical concurrent discipline, suspending Hawkins from the practice of law for one year and placing him on probation for three years.

I

[¶ 2] In the mid-1970s, Hawkins was licensed to practice law in North Dakota and admitted to the North Dakota bar, serving as an Assistant State’s Attorney where he handled some criminal defense matters. Hawkins currently is not licensed to practice law in North Dakota and does not intend to seek re-licensure in North Dakota. Hawkins was also licensed to practice law in Texas and admitted to the Texas bar, specializing in estate planning and taxation but also had handled some appointed criminal matters with co-counsel. In 1994, a Texas court order appointed Hawkins to represent a criminal defendant on a misdemeanor charge for possession of marijuana. Hawkins filed a Motion for Appointment of an Effective and Competent Attorney, contending he was not competent to practice criminal law and could not represent the defendant without violating Texas Disciplinary Rules of Professional Conduct. Nevertheless, on behalf of the defendant, Hawkins filed motions for a speedy trial, jury trial, production of evidence, appointment of experts, and a motion to suppress evidence. Hawkins also filed a request for a court reporter and statement of facts, as well as attending a docket call and appearing for a scheduled trial date, which was continued. When the defendant was offered a plea agreement, Hawkins sent the offer to the defendant but refused to discuss the merits of the offer or advise whether to accept the plea agreement. Hawkins then filed a second motion regarding his alleged incompetence to represent the defendant in the plea negotiations. At a hearing on the motion, the district court found Hawkins competent to represent the defendant and ordered him to continue as appointed counsel. Hawkins sent a copy of the district court order to the defendant with a letter telling the defendant:

[Judge] has decided that you are not entitled to a lawyer.
Apparently you are only entitled to a lawyer if a cash pay-off is made. I will not make a cash pay-off to obtain judicial favoritism. I believe it is a crime. Apparently that means that you don’t get a lawyer.
When the defendant called Hawkins for an explanation, Hawkins stated he was no longer the defendant’s attorney and the defendant should look for another lawyer. Hawkins received notice of the docket call, but he did not attend or notify the defendant, and subsequently neither one appeared for trial. Because of the defendant’s failure to appear for trial, a warrant was issued for his arrest and a proceeding was initiated to forfeit his bond. When the defendant received notice the court intended to revoke his bond, he came to the courthouse crying and in a very highly disturbed state. The defendant then represented himself at a hearing, and his bond was reinstated. The trial court appointed new counsel for the defendant.

[¶ 3] The Texas Commission for Lawyer Discipline initiated disciplinary proceedings against Hawkins, and the District Court of Midland County found Hawkins violated Texas Rules of Professional Conduct 1.01(b)(1) and 1.15(c),(d). The court suspended Hawkins from law practice for four years: one year of active suspension, from September 1997 to September 1998, followed by a three-year probated suspension. Hawkins appealed, and the Court of Appeals for the Eighth District of Texas affirmed, with one minor modification of the judgment. Subsequently, the Supreme Court of Texas denied Hawkins’ petition for review, concluding no error of law required correction or reversal of the judgment of the Texas Court of Appeals.

[¶ 4] The matter was then presented to the North Dakota Disciplinary Board, upon Petition for Reciprocal Discipline, which recommended identical discipline to that imposed by Texas to be served concurrently with the Texas suspension. The hearing panel recommended not assessing costs against Hawkins for the proceeding. On appeal to this Court, both Hawkins and the assistant disciplinary counsel filed objections to the hearing panel’s report.

II

[¶ 5] Hawkins argues we lack jurisdiction and authority to discipline him because he is not licensed to practice law in North Dakota and the actions for which he was disciplined in Texas were unrelated to North Dakota. Hawkins is mistaken.

[¶ 6] Under the North Dakota Rules of Lawyer Discipline, this Court has power to prescribe appropriate standards of professional conduct and to establish procedures for lawyer discipline. N.D.R. Lawyer Dis-cipl. 1.1A. Any attorney admitted to practice law in North Dakota is subject to this Court’s disciplinary jurisdiction under these rules. N.D.R. Lawyer Discipl. 1.1C.

[¶ 7] Thus, regardless of whether Hawkins is currently licensed to practice law in North Dakota, he is subject to our disciplinary jurisdiction because he was admitted to practice law in North Dakota. See, e.g., In re Disciplinary Action Against Robb, 2000 ND 146, ¶¶ 5, 18, 615 N.W.2d 125 (disciplining an attorney who was not currently licensed to practice law in North Dakota, but was admitted to practice in North Dakota, by commencing his license suspension if and when the disciplined attorney reapplied for a license).

[¶ 8] Furthermore, N.D.R. Lawyer Discipl. 4.4 provides clear instructions governing this Court’s duty concerning reciprocal discipline when a lawyer, who is admitted to practice in North Dakota, has been disciplined in another jurisdiction:

A. Discipline Elsewhere. Upon being disciplined in another jurisdiction, a lawyer admitted to practice in North Dakota shall promptly inform counsel of such action. Upon notification that a lawyer within the jurisdiction of the court has been disciplined in other jurisdiction, counsel shall obtain a certified copy of the disciplinary order and file it with the board.
D. Discipline. Upon the expiration of 80 days ..., and upon recommendation of the board, the court shall impose the identical discipline unless the lawyer demonstrates and the court finds that upon the fact of the record from which the discipline is predicated, it clearly appears that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice; or
(4) The misconduct established warrants substantially different discipline in this state.
If the court determines that any of those elements exists, the court shall enter such other order as it deems appropriate. In all other aspects, a final determination in another jurisdiction that a lawyer has been guilty of misconduct establishes conclusively the misconduct for purposes of a disciplinary proceeding in this state.

[¶ 9] We review disciplinary proceedings against attorneys de novo on the record under a clear and convincing standard of proof. In re Disciplinary Action Against Dvorak, 1998 ND 134, ¶ 15, 580 N.W.2d 586. The burden of demonstrating that identical reciprocal discipline should not be imposed is on the lawyer who has been disciplined in another jurisdiction. Id. at ¶ 6.

A

[¶ 10] Hawkins claims the Texas disciplinary proceedings were so lacking in adequate notice and a fair opportunity to be heard that he was deprived of his due process rights.

1

[¶ 11] Hawkins argues he had no notice of allegations because new allegations were added at every stage of the proceedings in Texas. Hawkins contends new allegations were made in the District Court of Midland County, then again in the Texas Court of Appeals, and after he testified. Hawkins does not explicitly indicate the substance of these new allegations, except that he claims no violation of Texas Rule of Professional Conduct 6.01 was alleged in the Texas proceedings, yet the North Dakota hearing panel recommends imposing reciprocal discipline based on such violation.

[¶ 12] The Texas District Court found Hawkins violated Texas Rules of Professional Conduct 1.01(b)(1) and 1.15(c),(d). The pertinent provisions of these rules are as follows:

Rule 1.01(b)

In representing a client, a lawyer shall not:
(1) neglect a legal matter entrusted to the lawyer....

Rule 1.15(c)

When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

Rule 1.15(d)

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has [sic] not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.

[¶ 13] The North Dakota hearing panel erroneously indicated the Texas courts had based their decisions on a violation of Rule 6.01, which reads as follows:

Rule 6.01

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of law or rules of professional conduct.

However, the Texas Court of Appeals addressed Hawkins’ due process arguments regarding Rule 6.01, namely, that he was incompetent to accept the court appointment, which he alleged was good cause to avoid the appointment. The Texas Court of Appeals concluded that attorneys may not simply decide they are incompetent to handle appointments and refuse the representation without the court’s permission. Rather, the Court of Appeals found that once the district judge ordered Hawkins to continue representing his appointed client, after an evidentiary hearing determining Hawkins was competent, then Rule 1.15(c) comes into play and mandates that an attorney continue representation “notwithstanding good cause for terminating the representation.” The Court of Appeals further found the fact that the Texas Disciplinary Commission did not plead that Hawkins violated Rule 6.01 was harmless, because the Texas District Court judgment did not mention a violation of Rule 6.01.

[¶ 14] The hearing panel’s error in stating the Texas courts had based their decisions on a violation of Rule 6.01 is harmless, as the Court of Appeals concluded Rule 6.01 no longer applied once the court determined Hawkins’ competency and ordered him to continue his appointment under Rule 1.15(c). Thus, Hawkins’ arguments fail, based on his alleged just cause to decline appointed representation under Rule 6.01, and Hawkins had notice of the allegations when he was served the Second Amended Disciplinary Petition alleging a violation of Rule 1.15(c). Therefore, we hold that Hawkins had adequate notice of the charges and was not denied due process in the Texas proceedings.

2

[¶ 15] Hawkins argues he had no notice his actions would violate the Texas Disciplinary Rules of Professional Conduct since the rules are unconstitutionally vague as written and applied. However, Hawkins’ argument does not persuade us to reconsider the thorough analysis and interpretation of Texas rules by the Texas Court of Appeals. See In re Disciplinary Action Against Dvorak, 1998 ND 134, ¶ 21, 580 N.W.2d 586 (refusing to retry a disciplinary proceeding from another jurisdiction which comes before this Court on a petition for reciprocal discipline). The Texas Court of Appeals found the rules provided fair and adequate notice of the conduct expected of Hawkins because an ordinary attorney exercising ordinary common sense could sufficiently understand and comply with the rules which clearly distinguished between actions necessary to decline or withdraw from voluntary employment versus court-appointed representations. We hold Hawkins had fair warning of professional conduct required by Texas disciplinary rules and was not denied due process in the Texas proceedings.

3

[116] Hawkins argues he was deprived of due process because the Texas disciplinary proceeding was not conducted with quasi-criminal due process, but rather was “purely civil.” Hawkins cites In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), for the proposition that quasi-criminal due process is constitutionally required for disciplinary proceedings, which are punitive in nature. Hawkins contends reciprocal discipline may not be imposed if quasi-criminal due process was denied.

[¶ 17] The North Dakota hearing panel concluded Hawkins mistakenly relied on Ruffalo to support his contention that a disciplinary process which is not quasi-criminal is unconstitutional. We agree. In Ruffalo, the United States Supreme Court held that in disciplinary proceedings against an attorney who testified to defend himself, the charges may not be amended based on the attorney’s testimony. 390 U.S. at 546, 551, 88 S.Ct. 1222. Rather, the charge must be known before the proceedings begin, or they become a trap from which the attorney has “no opportunity to expunge the earlier statements and start afresh.” Id. at 551, 88 S.Ct. 1222. The absence of fair notice as to the precise nature of the charges deprived the attorney of due process. Id. Thus, Ruffalo requires notice of the disciplinary charges, but does not constitutionally mandate the disciplinary proceeding be of a quasi-criminal nature. Hawkins misconstrues Ruf-falo, which merely stated, “These are adversary proceedings of a quasi-criminal nature,” not that the proceedings must be of a quasi-criminal nature in order to pass constitutional muster. Id. Furthermore, we have previously held, in a reciprocal disciplinary proceeding, that we will not find a denial of due process in the other state merely by showing the other state’s disciplinary process differs from our process. In re Disciplinary Action Against Dvorak, 1998 ND 134, ¶ 19, 580 N.W.2d 586 (holding one state’s clearly erroneous standard of review for disciplinary proceedings, rather than our de novo standard, does not amount to a denial of due process rights). We conclude Hawkins has failed to demonstrate he was denied due process from the nature of the Texas disciplinary proceedings.

4

[¶ 18] Hawkins argues he was deprived of an opportunity to be heard because he was precluded, from presenting testimony and argument critical to his defense and because he was denied a trial by jury on the alleged violation of Rule 6.01. However, as the North Dakota hearing panel concluded, Hawkins vigorously defended against his initial court appointment in an evidentiary hearing, in a subsequent disciplinary action in the district court, and then an appeal of the judgment all the way to the Texas Supreme Court. Furthermore, Hawkins waived his right to a jury trial, and the Texas Court of Appeals found once Hawkins was determined competent to represent the appointed defendant, then Rule 6.01 no longer applied. We conclude Hawkins was not deprived of his due process right to be heard in the Texas proceedings.

B

[¶ 19] Hawkins claims there was such infirmity of proof in the Texas proceedings establishing the misconduct as to give rise to the clear conviction that we cannot accept as final the decision of the Texas courts. Hawkins asserts: “The Texas case was a political show in which the facts, law, and rales were used as props. There was no evidence of violation of the rules on which the judgment was based.” In support of his contention, Hawkins presents his perspective on the facts and his interpretation of the Texas Rules of Professional Conduct.

[¶ 20] Although we review disciplinary proceedings de novo on the record, under a clear and convincing standard of proof, we will not retry the case. In re Disciplinary Action Against Dvorak, 1998 ND 134, ¶¶ 15, 21, 580 N.W.2d 586. To prevail in a reciprocal disciplinary proceeding, Hawkins must convince us there was an infirmity of factual support for the disciplinary authority’s findings on the face of the record. See id. at ¶ 21. However, Hawkins is essentially attempting to retry the Texas disciplinary proceedings by reciting his version of the facts leading to his suspension and by interpreting the Texas rules. As we stated above, the Texas Court of Appeals painstakingly construed the applicable rules, and we are loath to second-guess Texas courts’ interpretation of Texas rules. The Court of Appeals also comprehensively analyzed the legal and factual sufficiency of the evidence. Based on the record, there is evidence from which the Texas courts could conclude Hawkins failed to represent a client when Hawkins was determined competent after an evidentiary hearing and was court-ordered to continue representing his appointed client. We hold there is no infirmity of factual support for the Texas disciplinary proceedings, as set forth in the Midland County District Court’s Judgment of Suspension and Order of Probation or in the 31-page opinion of the Texas Court of Appeals.

C

[¶ 21] Hawkins contends imposing identical discipline by this Court would result in grave injustice because his refusal to represent his appointed client allegedly was mandated by the North Dakota Rules of Professional Conduct. Hawkins insists he “did nothing that would have been sanctioned by North Dakota in the first instance.” Hawkins’ argument is misguided.

[¶22] Hawkins’ burden of proving identical discipline would result in grave injustice is not met simply by alleging lack of misconduct. See, e.g., In re Disciplinary Action Against Dvorak, 1998 ND 134, ¶¶ 22, 24, 580 N.W.2d 586 (rejecting attorney’s claims of grave injustice caused by reciprocal discipline based on different standards of review in both jurisdictions, a ten-year delay between alleged conduct and reciprocal disciplinary proceedings, and multiple allegations of misconduct in the state initiating the disciplinary proceeding). Furthermore, under N.D.R. Lawyer Discipl. 4.4(A), reciprocal discipline is imposed on attorneys admitted to practice in North Dakota who are disciplined under the rules of professional conduct of another jurisdiction, not for violations of the North Dakota Rules of Professional Conduct. Specifically, “a final determination in another jurisdiction that a lawyer has been guilty of misconduct establishes conclusively the misconduct for purposes of a disciplinary proceeding in this state.” N.D.R. Lawyer Discipl. 4.4(D). We agree with the hearing panel which determined identical discipline will not result in a grave injustice when Hawkins currently is not licensed in North Dakota and when he testified he does not intend to apply for re-licensure in North Dakota. We hold that Hawkins has failed to carry his burden of demonstrating identical discipline would result in grave injustice.

D

.[13] [¶23] Hawkins asserts the misconduct established in the Texas proceedings warrants substantially different discipline in this state. Hawkins argues under North Dakota standards, his actions would not warrant suspension, but only admonition. He further urges that “even admonition is a greater sanction than the facts justify.”

[¶ 24] We attempt to impose similar disciplinary measures for similar violations under similar circumstances, but each disciplinary case must be decided on its own particular facts. In re Disciplinary Action Against Dvorak, 1998 ND 134, ¶ 26, 580 N.W.2d 586. Under N.D. Stds. Imposing Lawyer Sanctions 6.22, “Suspension is generally appropriate when a lawyer knows that he or she is violating a court order [or] rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.” The Texas District Court found Hawkins violated Texas Rules of Professional Conduct 1.01(b) (“In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer....”); Rule 1.15(c) (“When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”); and Rule 1.15(d) (“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests.... ”). The record indicates Hawkins knowingly disobeyed a court order to continue representing his client, and this misconduct injured the client by causing him to fail to appear at trial, resulting in initiation of a bond forfeiture proceeding and issuance of an arrest warrant. We hold suspension is appropriate for Hawkins’ rules violations, and his misconduct does not warrant substantially different discipline in this state.

Ill

[¶ 25] Assistant disciplinary counsel argues the hearing panel’s recommendation of identical discipline, covering the same dates as the discipline imposed in Texas, results in credit to Hawkins for “time served” in Texas and is essentially retroactive discipline. Counsel claims this Court has never imposed retroactive discipline and has indicated it would not do so. Counsel asserts that giving Hawkins credit for suspension already served in Texas makes North Dakota’s discipline “no more than empty noise” and rewards Hawkins for not notifying North Dakota of his discipline in Texas. Counsel urges us to impose a one-year suspension followed by a three-year probation effective either at the date of this Court’s order or beginning on the date Hawkins reactivates his license to practice law in North Dakota.

[¶ 26] We have recognized lengthy suspensions from the practice of law are grave punishment for attorneys, yet this Court’s disciplinary orders are not “empty noise” but are intended to protect the public. In re Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 21, 611 N.W.2d 147. In an effort to put teeth into our disciplinary orders when an attorney has been disciplined several times previously, we have commenced a suspension on the date an attorney reactivates his license to practice law in North Dakota. See In re Disciplinary Action Against Robb, 2000 ND 146, ¶ 18, 615 N.W.2d 125 (“Since Robb is not currently licensed to practice law in North Dakota, his suspension will commence if and when he reapplies for a license.”)

[¶ 27] We are also mindful of our reluctance to give credit for suspension time. In re Disciplinary Action Against Dosch, 527 N.W.2d 270, 274 (N.D.1995). In Dosch, credit was requested for time spent under temporary suspension toward the five-year suspension period Dosch was required to wait before applying for reinstatement to practice. Id. The hearing panel had concluded this was not an appropriate case to grant such a time credit, and we declined Dosch’s request. Id. We reasoned Dosch had taken full'advantage of the procedural protections offered by the disciplinary proceedings resulting in his disbarment, but he cannot properly demand credit for the time it took his case to wind its way through the disciplinary process. Id. We noted Dosch’s misconduct involved recurrent dishonest activities, extending over a considerable time and involving many complexities, which added to the length of time required for the formal proceedings. Id.

[¶ 28] The hearing panel rejected assistant disciplinary counsel’s contention that identical discipline of one year’s suspension and three years’ probation should be imposed starting at the time we decide this case. The panel reasoned no evidence was presented which warranted substantially different discipline in North Dakota from that imposed in Texas. The panel noted the uniqueness of this case in that the discipline imposed by the Texas court would fully expire on August 31, 2000. However, the panel did not detect the apparent error of the Texas District Court in imposing 36 months of probation but then giving an expiration date of August 31, 2000, which adds up to only 24 months of probation.

[¶ 29] The benchmark for reciprocal discipline is that the discipline shall be identical, unless the proceedings in the jurisdiction which initiated the discipline lack due process or proof of misconduct, or unless identical punishment would result in grave injustice or the misconduct warrants substantially different discipline. N.D.R. Lawyer Discipl. 4.4(D). Identical discipline shall ordinarily be the same type of discipline and for the same duration although the date of imposition of the discipline may be delayed where circumstances warrant. In re Disciplinary Action Against Dvorak, 1998 ND 134, ¶ 24, 580 N.W.2d 586. Under the circumstances of this case, it was not inappropriate for the hearing panel to recommend identical concurrent discipline. Therefore, we impose identical discipline as that imposed in Texas, identical both in nature and in time period covered. The hearing panel may request a clarification from the Texas District Court of the obvious contradiction between the probated suspension imposed and the expiration date provided.

IV

[¶ 30] Assistant disciplinary counsel argues costs should be assessed against Hawkins for the disciplinary proceedings, including the costs of review by this Court. Counsel contends the hearing panel erred by recommending no costs be assessed to Hawkins without further comment. We agree.

[¶ 31] Misconduct is grounds for assessing costs and expenses of disciplinary proceedings against the lawyer being disciplined. N.D.R. Lawyer Discipl. 1.3(A)(9). We have assessed costs and expenses for reciprocal discipline proceedings resulting in suspensions for only 30 days. In re Disciplinary Action Against Dvorak, 1998 ND 134, ¶ 29, 580 N.W.2d 586.

[¶ 32] On Petition for Reciprocal Discipline, Hawkins vigorously has opposed the imposition of discipline and has cost the disciplinary system the defense of its action under the guidelines of N.D.R. Lawyer Discipl. 4.4. Therefore, we direct Hawkins to pay the costs of his disciplinary proceedings, including review by this Court, in an amount to be determined by the Disciplinary Board.

[¶ 33] CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, JJ., concur.

VANDE WALLE, Chief Justice,

concurring in part and dissenting in part.

[¶ 34] I agree with the majority that we should impose reciprocal discipline on Hawkins. Hawkins’ actions, as described in ¶ 2 of the majority opinion, were to abandon the criminal defendant because of Hawkins’ dispute with the bar association and the court over how representation for indigent defendants was to be provided. His statement that the “[Judge] has decided that you are not entitled to a lawyer” was at best an unwarranted characterization of the Judge’s order obviously meant to use the defendant, Hawkins’ client, in Hawkins’ dispute with the court and the bar association. Hawkins plainly violated Rule 1.15 of the Texas Rules of Professional Conduct.

[¶ 35] I disagree with part III of the majority’s opinion. For the first time of which I am aware, the majority holds that “identical” as used in N.D.R. Lawyer Dis-cipl. 4.4(D) means identical not only in substance but in time. See, e.g., In re Disciplinary Action Against Roybal, 2000 ND 125, ¶ 6, 612 N.W.2d 277 (imposing reciprocal discipline order “effective immediately”); In re Disciplinary Action Against Stevenson, 2000 ND 126, ¶ 4, 612 N.W.2d 278 (imposing reciprocal suspension upon application for reinstatement); Disciplinary Action Against Dvorak, 1998 ND 134, ¶¶ 1, 29, 580 N.W.2d 586 (imposing “identical” discipline effective August 8, 1998; Minnesota discipline imposed effective October 31, 1996, In re Disciplinary Action Against Dvorak, 554 N.W.2d 399, 405 (Minn.1996)).

[¶ 36] Despite the recognition at ¶ 26 of the majority opinion that disciplinary orders are not “empty noise” the effect of this holding is to make them exactly that in reciprocal discipline cases unless the lawyer promptly informs disciplinary counsel of the fact the lawyer was disciplined in another jurisdiction as required by N.D.R. Lawyer Discipl. 4.4(A). I cannot determine from the record whether or not Hawkins complied with this rule. In the future it would be helpful if the hearing panel made a finding as to whether or not the lawyer complied with the requirement in Rule 4.4(A).

[¶ 37] If the lawyer does promptly notify disciplinary counsel and the delay in imposing reciprocal discipline is the result of action or inaction by the North Dakota disciplinary system, I would, unless other factors are present, agree that the beginning and ending line of the reciprocal discipline should be the same as that set by the other jurisdiction. Here, however, there is no indication the delay was due to this State’s disciplinary system. Rather, it appears Hawkins persisted through every avenue available in Texas and, having lost at every turn, continued his denial that his actions contravened disciplinary rules in Texas by filing a document entitled “Discipline by the Supreme Court of North Dakota is unwarranted” on January 24, 2000. Hawkins’ objection to reciprocal discipline in North Dakota seeks to have us review decisions of the District Court of Midland County, Texas, the Court of Appeals of the Eighth District of Texas as well as the Texas Supreme Court.

[¶ 38] Hawkins clearly violated the duty owed a client and used that client to attempt to prove his dissatisfaction with assignment of counsel for indigent defendants in Midland County, Texas. Hawkins, having lost in the Texas courts, persists in the same attack in this State. Under these circumstances I believe his objections are frivolous and I would not accept the recommendation of the Hearing Panel. Although the Panel stated no evidence was presented which warranted substantially different discipline in North Dakota from that imposed by Texas, the findings of the Panel itself, as I indicated above, lack certain information on Hawkins’ compliance with our rules concerning notification of the Texas discipline.

[¶ 39] I understand it is probable Hawkins will never seek to practice law in North Dakota in the future. However, I am gravely concerned by the precedent established through the recommendation of the Panel and now approved by the majority that “identical” discipline means the same timing as well as the same substantive discipline. The logistics of time required for notices, hearings, etc., will, as it does here and in most instances other than disbarment, mean the imposition of discipline after the time of the discipline has already expired in the other jurisdiction. That is not only “empty noise,” the effect of the majority opinion may well be to encourage delay by the lawyer in notification to disciplinary counsel in order to achieve such a result.

[¶ 40] I would order the discipline be imposed on Hawkins should he ever apply for a license to practice law in North Dakota.

[¶ 41] MARY MUEHLEN MARING, J., concurs.

      . Hawkins was referring to the court procedure in Midland County whereby the court delegates to the Midland County Bar Association the duty of appointing counsel. Hawkins alleged this Association demanded attorneys pay a $200 assessment to avoid being designated as appointed counsel to represent criminal defendants.

      . There is an apparent calculation error by the District Court of Midland County in its Judgment of Suspension and Order of Probation. The court suspended Hawkins for 48 months, commencing September 1, 1997. The active part of the suspension was 12 months, effective September 1, 1997 and ending August 31, 1998. However, the court indicated the subsequent 36 months of probation began September 1, 1998 and ended August 31, 2000, which only amounts to 24 months of probation.