text:
    James WALSH Jr., Appellant, v. Donna NELSON and Verner Nelson d/b/a River Plaza Building, Appellees.
    No. 98-2111.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Max E. Kirk of Ball, Kirk & Holm, P.C., Waterloo, for appellant.
    David L. Riley of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellees.
   NEUMAN, Justice.

This is a declaratory judgment action to determine the parties’ rights under a commercial lease. The district court held that the lease gave the lessee a one-time opportunity for early termination, an opportunity he missed. But it also ruled that rent had been overpaid. Both the lessee and the lessors appealed and we transferred the case to the court of appeals. That court reversed the district court on the law, finding the lease ambiguous. It then went on to resolve the ambiguity in the leesee’s favor.

Upon further review, we now vacate the court of appeals’ decision, reverse the judgment of the district court and remand for new rulings based on the record already made.

I. Background Facts and Proceedings.

In July 1997, plaintiff James Walsh, Jr. brought a declaratory judgment action against Donna and Verner Nelson (the Nelsons) to determine his right, as tenant, to terminate an eighteen-year commercial lease prior to the end of the lease term. The final lease, signed in 1985, was the product of four drafts and nearly eighteen months of negotiations between Walsh and the Nelsons. The negotiations concerned the amount of rent, the length of the lease, and issues involved in financing the Nelsons’ restoration of the building and Walsh’s eligibility for an historic building tax credit.

The lease provision in dispute is paragraph 35, titled “Modification of Term.” The paragraph provides:

This lease is terminable at tenants!’] option if, at the end of the first six year term, but not sooner, any of the members of the Clark, Butler, Walsh & McGivern law firm are deceased or permanently retired from practice of law or are disabled. A determination of what constitutes disability for purposes of this paragraph shall be made solely by the tenant. Tenant shall give landlord 30 days notice of any intent to terminate pursuant to the provisions of this paragraph.

(Emphasis added.)

Walsh did not attempt to terminate the lease until June 1996, nearly five years after the end of the first six-year term. Two of Walsh’s partners had retired. The Nelsons, however, refused to let Walsh out of the lease, so he filed this action, contending that the language highlighted above permitted him to terminate the lease at any time after the first six years. The Nelsons argued in the district court, and urge on appeal, that the language gave Walsh only one “out” — at the end of the first six-year term, but not after.

The Nelsons also filed a counterclaim alleging that Walsh owed $51,224.85 in unpaid rent under paragraph 30 of the lease. Paragraph 30(a) set the rent for the first six years. From July 1991 until December 1994, the parties argued about the proper method for recalculating this base rent. In December 1994, they agreed that Walsh would pay $9.40 per square foot for rent up to that point in time, and would continue to pay $9.40 per square foot until the next scheduled rent adjustment on July 1, 1996, the beginning of the lease’s twelfth year. The parties failed to recalculate the base rent at the beginning of the twelfth year, and Walsh continued to pay $9.40 per square foot. At trial Walsh argued that after July 1, 1996 he paid too much; the Nelsons insisted he paid too little.

The district court, after considering the evidence tendered by each party, concluded that the lease gave Walsh only one opportunity to terminate before the end of the eighteen-year term. In the court’s words, “[t]he language of paragraph 35 is clear and unambiguous.” The court also found that Walsh overpaid rent in the sum of $7226.34.

Walsh appealed, and we transferred the case to the court of appeals. That court reversed in part and affirmed in part. It first determined, contrary to the district court, that the termination provision of the contract was ambiguous as a matter of law. It then resolved the ambiguity in Walsh’s favor and affirmed his judgment against the Nelsons for excess rental payments.

The Nelsons sought, and this court granted, further review. They claim that once the court of appeals determined the disputed lease term was ambiguous, it engaged in an improper de novo review of the record to determine the parties’ intent. They also contend the court of appeals incorrectly calculated the amount of rent owed by Walsh. We shall consider the arguments in turn.

II. Scope of Review.

Appellate review of an action for declaratory relief is determined by the manner in which the action was tried to the district court. United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000). This case concerns an alleged ambiguity in the provisions of a lease, a matter generally resolved as a matter of law. Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999). While we are not bound by the district court’s legal conclusions, we are bound by its findings of fact if such findings are supported by substantial evidence in the record. Iowa Fuel & Minerals, Inc. v. Iowa State Bd. of Regents, 471 N.W.2d 859, 862 (Iowa 1991). An appellate court is not free to substitute its own findings of fact for those of the district court simply because the evidence supports different inferences. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 490 (Iowa 2000).

III. Issues on Appeal.

A. Lease interpretation. The main thrust of the Nelsons’ argument is that the court of appeals disregarded the applicable standard of review when it substituted its judgment for the trial court’s on the question of whether paragraph 35 of the lease is ambiguous. Walsh counters that because the language of paragraph 35 is ambiguous as a matter of law, the court of appeals’ use of extrinsic evidence to reverse the district court’s judgment for the Nelsons was proper. Fundamental rules guide our consideration of these competing theories.

1. Applicable rules. Because leases are contracts as well as conveyances of property, ordinary contract principles apply. Dickson v. Hubbell Realty Co., 567 N.W.2d 427, 430 (Iowa 1997). Where, as here, the dispute centers on the meaning of certain lease terms, we engage in the process of interpretation, rather than construction. See Fausel v. JRJ Enters., Inc., 603 N.W.2d 612, 618 (Iowa 1999) (interpretation is process of determining meaning of contract terms while construction is process of determining legal effect of such terms).

The primary goal of contract interpretation is to determine the parties’ intentions at the time they executed the contract. See Hartig Drug Co., 602 N.W.2d at 797. Interpretation involves a two-step process. First, from the words chosen, a court must determine “what meanings are reasonably possible.” Restatement (Second) of Contracts § 202 cmt. a, at 87 (1981). In so doing, the court determines whether a disputed term is ambiguous. A term is not ambiguous merely because the parties disagree about its meaning. Hartig Drug Co., 602 N.W.2d at 797. A term is ambiguous if, “after all pertinent rules of interpretation have been considered,” “a genuine uncertainty exists concerning which of two reasonable interpretations is proper.” Id.

Once an ambiguity is identified, the court must then “choos[e] among possible meanings.” Restatement (Second) of Contracts § 202 cmt. a, at 87. If the resolution of ambiguous language involves extrinsic evidence, a question of interpretation arises which is reserved for the trier of fact. Fausel, 603 N.W.2d at 618.

As the foregoing discussion reveals, rules of interpretation are “used both to determine what meanings [of disputed terms] are reasonably possible as well as to choose among two reasonable meanings.” Hartig Drug Co., 602 N.W.2d at 797 (citing Restatement (Second) of Contracts § 202 cmt. a, at 87). Put another way, the disputed language and the parties’ conduct must be interpreted “in the light of all the circumstances” regardless of whether the language is ambiguous. Fausel, 603 N.W.2d at 618.

This idea is expressed in Restatement (Second) of Contracts section 212 comment b:

Any determination of meaning or ambiguity should only be made in the light of the relevant evidence of the situation and relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parties. But after the transaction has been shown in all its length and breadth, the words of an integrated agreement remain the most important evidence of intention.

(Emphasis added.) (Citations omitted.) In short, although other evidence may aid the process of interpretation, the words of the contract remain the key to determining whether the lease terms are ambiguous.

2. Analysis. Applying these principles to the case before us, we are convinced from the words of the contract as well as the surrounding circumstances that the meaning of paragraph 35 is ambiguous as a matter of law. It is evident from the contract language that Walsh had an option to terminate the lease at some point after the first six years but before the end of the eighteen-year term. The language “at the end” suggests that the option to terminate would occur at a specific time. The next phrase, “but not sooner,” makes clear that Walsh could not terminate the lease during the first six years.

The difficulty arises in determining if “at the end ... but not sooner” means at midnight on July 1, 1991 or at some other time during or near the end of the sixth year or, as Walsh suggests, anytime thereafter. The nature of the conditions for termination — retirement, death or disability of a law partner — -suggests a reasonable need for flexibility. Such events are not within Walsh’s control. If the “end of the sixth year” must be precisely determined, it could be urged that the provision gives Walsh such a limited time to exercise his options as to make it meaningless. See Am. Soil Processing, Inc. v. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 586 N.W.2d 325, 334 (Iowa 1998) (because agreements interpreted as a whole, interpretation that gives meaning to all terms preferred to one rendering a part unreasonable).

The circumstances surrounding Walsh’s and Nelsons’ agreement further support a finding of ambiguity. The context in which the lease was negotiated and signed is evidenced by multiple draft leases, correspondence between the parties concerning the lease, and each party’s testimony. Each draft contained a provision allowing Walsh some option for early termination. Walsh expressed concern over the length of the lease in a letter to Nelsons’ architect, a concern which Donna Nelson confirmed at trial. The letter states, in part:

It has also been suggested that a 15 year lease is enough for historic buildings. If that is true perhaps we could work out a 15 year lease arrangement that provided us with appropriate “escape hatches” and provided you with adequate notice of our intentions so that while it would be a 15 year lease it could be flexible enough to look and act like a 5 year lease.

Walsh’s claim of ambiguity is further supported by a letter to the Nelsons in which he directly addressed an earlier version of paragraph 35. He stated that he was concerned that “it was too lenient in terms of not continuing for the whole 16 years” and that the IRS would question its suitability for favorable tax treatment. Walsh went on to state that “[a]t any rate, it shouldn’t affect you one way or the other,” citing his understanding that the Nelsons were not concerned with the length of the lease beyond the five to six years needed for financing.

Donna Nelson countered Walsh’s recollection of events by indicating that she needed a long-term lease to secure financing. While she produced no documents to support this contention, she testified that her finance company insisted on a long-term lease because she could not develop a project of this size on the basis of short-term leases.

Based on this evidence of conflicting expectations, we are convinced — as was the court of appeals — that the district court erred as a matter of law when it determined paragraph 35 was unambiguous. We are further convinced, however, that the court of appeals erred when it leaped to the second step of contract interpretation — choosing among possible meanings for the ambiguous terms. J Reweighing the evidence, it found that the facts supported Walsh’s interpretation. In making this finding, it exceeded the limits of its appellate review. See 5 Am.Jur.2d Appellate Review § 662, at 337 (1995) (“Generally speaking, except in review of cases in equity, or matters of constitutional law, an appellate court does not reweigh the evidence presented in the court below.”).

We must, therefore, vacate the decision of the court of appeals, reverse the decision of the district court, and remand to allow the district court, as the trier of fact, to interpret the contract anew based on the record already made. See Fausel, 603 N.W.2d at 618 (“[WJhen the meaning of an agreement depends on extrinsic evidence, a question of interpretation is left for the trier of fact....”); see also 17A Am.Jur.2d Contracts § 339, at 346 (1991) (“[I]f the language in a contract is ambiguous, evidence may be admitted as to the intent of the parties, and the determination of the parties’ intent is a question of fact.” (Emphasis added.)).

Because the district court will be interpreting the contract on remand, we turn to the disputed issue of rent calculation under the terms of the lease.

B. Rent dispute. The Nelsons claim that both the court of appeals and the district court erred as a matter of law in determining that Walsh overpaid rent in the sum of $7226.34. The disputed figure rests on a calculation of $9.04 per square foot from July 1996 until the time Walsh filed this action. The Nelsons contend that the district court erroneously calculated the base rent under paragraph 30(b), and failed to calculate the Consumer Price Index (CPI) adjustment according to paragraph 30(c), errors the court of appeals repeated on appeal.

The thrust of Nelsons’ claim is that, while the court of appeals acknowledged that paragraph 30(c) called for a rent increase at the beginning of the twelfth year based on the CPI, it found the Nelsons presented no evidence of the CPI for January 1996. It therefore affirmed the district court’s calculations. Nelsons claim such a finding is not supported by the record. We agree.

Paragraph 30(d) details how rent shall be calculated after the set payments for the lease’s first six years. It provides that the base rent must be recalculated at the end of the eleventh lease year to “reflect the average rate of the building excluding the athletic club” according to paragraph 30(b). The district court correctly calculated the base rent according to plaintiffs exhibit 36, titled “Rent Roll-River Plaza— 1996.” This figure remains the base rent for the remainder of the lease. But in addition, starting on July 1, 1996 (the beginning of the twelfth lease- year) the rent was to be increased according to a CPI adjustment provided in paragraph 30(e).

Contrary to the court of appeals’ finding, the record does present evidence from which to determine the appropriate CPI adjustment. Defendant’s Exhibit F, although misnumbered, shows that the CPI increase at the beginning of the twelfth lease year was 8.2%. The record reveals no objection by Walsh to this evidence. Thus, on remand, the district court should consider this evidence as it applies to the rent calculation under paragraph 30 to determine the proper rent for the twelfth lease year and thereafter.

For the reasons stated above, we vacate the decision of the court of appeals, reverse the district court and remand the case for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Edward Lamar KIRBY, Appellant.
    No. 99-1676.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary W. Kendell, Assistant County Attorney, for appellee.
   LARSON, Justice.

In February 1999 the Polk County District Court granted a deferred judgment to Edward Kirby following his plea of guilty to possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401(l)(c)(3) (1997). The court later revoked this order and sentenced Kirby to a prison term not to exceed ten years. We affirm.

The issues on appeal are whether the district court erred or abused its discretion in three respects: (1) revoking probation, (2) failing to give specific reasons for revoking probation and for the sentence entered, and (3) sentencing the defendant to imprisonment.

I. Facts and Prior Proceedings.

Prior to the court’s entry of the order granting a deferred judgment, Kirby had successfully completed an inpatient drug treatment program. His discharge papers included aftercare recommendations consisting of intensive outpatient treatment, continued attendance at support group meetings, and continued educational programming toward his general equivalency diploma (GED).

Kirby was ordered to pay restitution for his attorney fees and other expenses, but as of June 23, 1999, he had not done so. On that date, the court ordered him to pay $50 per month and set an August 26 date for him to appear and show cause why he should not be held in contempt of court for failing to pay restitution. Kirby paid $50 on July 13, 1999, but he made no other payments and he did not appear at the show-cause hearing. The court issued a warrant for his arrest.

II. The Revocation Decision.

On September 2, 1999, a probation violation report was filed, alleging Kirby did not follow through with the GED or substance abuse requirements of his probation agreement. This violation report was later amended based on a September 4,1999 event. On that date, Des Moines police officers observed a vehicle being driven by a person they knew to have a revoked driver’s license. Kirby was a passenger in the front seat. Officers observed him bent forward and “making a lot of movements in the vehicle.”

The driver was arrested for driving while revoked, and the officers searched the vehicle. In the front seat, ahead of the passenger door, the officers observed a plastic side panel that had been removed and replaced, “obviously not intact like it would be on a normal vehicle.” They suspected something was hidden there. Inside the panel, they found approximately forty rocks, or eight grams, of crack cocaine. Kirby was arrested for possession of cocaine with intent to deliver, a tax stamp violation, and failure to wear a seat belt. Kirby’s probation officer filed an amended probation violation report based on these additional facts.

The probation agreement does not appear in the record; however, the amended probation violation report (made a part of the record on appeal by the parties’ stipulation) appears to refer to specific provisions in the probation agreement. The report stated:

ALLEGED VIOLATIONS OF THE PROBATION ... CONTRACT! ]
# 3 The defendant violated this condition of probation ... by: the Possession of a Controlled Substance with intent to Deliver and no tax stamp.
# 11/14 The defendant violated this condition of probation ... by: not completing the substance abuse program.
# 14 The defendant violated this condition of probation ... by: not following through with GED program.

On October 5, 1999, the court held a probation revocation hearing. The State’s witnesses included Kirby’s probation officer and a police officer involved in the September 4 arrests. The court entered its written judgment, curtly stating the grounds for revoking probation:

The Court finds by a preponderance of the evidence that the Defendant has violated the terms of his/her probation.

The brevity of this written judgment raises an issue on appeal, which we will discuss as a preliminary matter.

The Supreme Court-has held a defendant in a revocation case is entitled, as a matter of due process, to “a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, 499 (1972) (parole revocation); Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656, 664 (1973) (probation revocation). The Court held in Gagnon that the constitutional requirements for revocation hearings in probation cases are the same as in parole-revocation cases. 411 U.S. at 782, 93 S.Ct. at 1760, 36 L.Ed.2d at 661-62. Citing Morrissey, we have said “[t]he findings of a court revoking probation must of course show the factual basis for the revocation.” State v. Hughes, 200 N.W.2d 559, 562 (Iowa 1972). We declined, however, to prescribe a form for such an order.

In State v. Lillibridge, 519 N.W.2d 82 (Iowa 1994), a defendant’s deferred judgment was revoked, and he was sentenced to jail. The district court, in a calendar entry, stated:

The court finds the defendant has violated probation. Probation terminated. Defendant sentenced....

Id. at 83. We said “[bjecause revocation is not a stage of a criminal prosecution, the rules of criminal procedure do not apply and ‘the proceedings can be informal, even summary.’ ” Id. (quoting Calvert v. State, 310 N.W.2d 185, 187 (Iowa 1981)). We cautioned, however, that,

[ajlthough procedure can be informal, probation revocation involves a serious loss of liberty and due process must be afforded. The trial court does not have to file an opinion or make conclusions of law, but due process requires written findings by the court showing the factual basis for the revocation. While a calendar entry could meet this requirement, the district court’s calendar entry does not indicate what evidence the court relied on in revoking probation.

Id. (citations omitted). We held the revocation order was insufficient and remanded for a new revocation hearing. Id. Kirby argues his case should be controlled by Lillibridge, and the court’s brief order here was legally insufficient. Lillibridge, however, must be distinguished from Kirby’s case because, as we discuss in the following paragraph, the revocation proceeding in Lillibridge was not reported, so we had no way to determine the basis for the court’s revocation order.

After Hughes we decided Rheuport v. State, 238 N.W.2d 770 (Iowa 1976), another case discussing the requirements for a revocation order. We held that the Morris-sey requirements were satisfied despite a lack of findings in the court’s formal order.

An oral statement of such findings by the factfinder, made in open court in the presence of the defendant and recorded by a court reporter, is substantially equivalent to the written statement required by Morrissey. As previously shown, the trial court made such a statement when he revoked petitioner’s probation ....

Rheuport, 238 N.W.2d at 775 (citation omitted); accord United States v. Sesma Hernandez, 219 F.3d 859, 861, reh’g en banc granted, 234 F.3d 493 (9th Cir.2000) (“[Ojral findings on the record will suffice.”); United States v. Copley, 978 F.2d 829, 831 (4th Cir.1992) (“[A] transcribed oral finding can serve as a ‘written statement’ for due process purposes when the transcript ... enables the reviewing court to determine the basis of the trial court’s decision.”); United States v. Barth, 899 F.2d 199, 201-02 (2d Cir.1990) (same). But see United States v. Smith, 767 F.2d 521, 523-24 (8th Cir.1985) (rejecting view that transcript is sufficient compliance, based on court’s reading of Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985)).

In accordance with Rheuport, we look to the district court’s statements on the record to glean the basis for the revocation. The court stated:

Well, the initial issue, of course, is whether or not the State has established by the preponderance of the evidence that Mr. Kirby has, in fact, violated the terms of the deferred judgment which was granted on February 16,1999.
It appears that Mr. Kirby’s only effort to comply with that deferred judgment was to report to [his probation officer] in March for an initial interview and then perhaps had another couple of contacts, and into April, but since then has not had any contact until he was arrested.
The conditions of the deferred were relatively simple, that he work on his GED, that he make his financial obligations, that he continue with the substance abuse program. The Court, it does appear, did send him to [inpatient drug treatment]. That was an inpatient program, and he apparently was able to finish that as long as he was inpatient, but there is no evidence he made any effort to follow up with anything after that.
He was before the Court on June 23, 1999, concerning a contempt for failure to pay his fines. He was ordered to pay $50 a month beginning in July, and in August — and was directed to appear on August 26 to show cause why he should not be held in contempt. He failed to appear on the 26th, and a warrant was issued for his arrest.
The Court concludes that it has been established — and then, of course, we have the new charge, which the Court concludes has been established by a preponderance of the evidence — Mr. Kirby has violated the terms of his probation and the terms of the deferred judgment and should be revoked.

The court then proceeded to sentencing.

The court thus provided these grounds for concluding Kirby had violated his probation: (1) he did not maintain contact with his probation officer, (2) he failed to follow up on his substance abuse program, (3) he failed to pay restitution as ordered, and (4) he was charged with possession of cocaine. The court concluded these violations were established by a preponderance of the evidence. The court did not cite Kirby’s lack of performance toward obtaining his GED as a ground for revocation, and the State concedes the GED conditions of the deferred judgment did not include -a time deadline. We agree with Kirby that there is insufficient evidence to show he violated the GED provisions of his probation.

Clearly, the most serious charge is that Kirby possessed cocaine while on probation, especially in view of the fact this was the same offense for which he had obtained a deferred judgment. As to this ground, Kirby argues first that the new possession charge was not raised as an issue because the amended probation violation report, including the new possession charge, was not contained in the original appeal record. This issue is moot because the amended probation violation report was subsequently stipulated to by the parties. Kirby makes two additional arguments: (1) the State did not establish that obeying the law was a requirement of his probation, and (2) there was insufficient evidence to prove the new possession charge.

Even though the probation agreement is not in the record to establish that compliance with the law was a condition of probation, we have said

it is a fundamental condition of any probation, whether or not it is expressed in probation instructions, that the probationer shall not violate the law.

State v. McGinnis, 243 N.W.2d 583, 587 (Iowa 1976). In addition, the district court’s order for deferred judgment specifically provided “[t]his probation is subject to revocation by the Court under chapter 908 of the Code of Iowa on ... a finding that the Defendant has ... failed to live within the terms of this probation and the law.” (Emphasis added.)

As to the merits of the charge of possession, we said recently that proximity to contraband, standing alone, is insufficient to establish constructive possession for conviction purposes. See State v. Atkinson, 620 N.W.2d at 1, 4 (Iowa 2000). In this case, however, Kirby’s proximity to the drugs coupled with Kirby’s suspicious activities observed by the officers was substantial evidence of a violation, especially when considered together with the other violations described above. Proof beyond a reasonable doubt is not required. See Rheuport, 238 N.W.2d at 772 (noting the requisite degree of proof in a revocation proceeding is a preponderance of the evidence); State v. Dolan, 496 N.W.2d 278, 280 (Iowa Ct.App.1992).

III. The Sentence Imposed.

The defendant contends the court abused its discretion in (1) sentencing him to prison and (2) failing to give reasons for ordering incarceration instead of other alternatives.

As to the first argument,

[w]here ... a defendant does not assert that the imposed sentence is outside the statutory limits, the sentence will be set aside only for an abuse of discretion. An abuse of discretion is found only when the sentencing court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.

State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996) (citation omitted).

We do not believe the defendant has met that burden here. The sentence was within the parameters of the statute (up to ten years in prison), and the defendant asserts no facts suggesting the court abused its discretion in imposing the sentence or in finding no mitigating circumstances under Iowa Code section 901.10 to reduce the term. The court was apparently convinced that another break for this defendant to allow him to stay out of prison was not warranted.

Kirby also contends the court failed to adequately state reasons for the sentence imposed as required by Iowa Rule of Criminal Procedure 22(3)(d). See Lillibridge, 519 N.W.2d at 83 (because entry of sentence is the final judgment in the criminal case, not part of the civil revocation proceeding, the district court must comply with the rules of criminal procedure). In Black v. Romano the Supreme Court held that the district court need not elaborate on its reasons for rejecting alternative punishment because “a general requirement that the factfinder elaborate upon the reasons for a course not taken would unduly burden the revocation proceeding without significantly advancing the interests of the probationer.” Black, 471 U.S. at 613, 105 S.Ct. at 2259, 85 L.Ed.2d at 644. We believe the court’s statement of reasons for revoking the probation sufficiently complies with rule 22’s requirement of a statement of reasons for the sentence imposed. See State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989) (holding various portions of record “form a sufficient basis upon which to review the exercise of the trial court’s sentencing discretion”). Accordingly, we affirm.

AFFIRMED.

      . Kirby's attorney conceded at the revocation hearing that Kirby would probably lose his deferred judgment status but hoped the court would place him on probation once judgment was entered. The court did not grant probation, and Kirby argues his counsel was ineffective because his counsel’s concession about losing his deferred status was prejudicial to him. We summarily reject this argument; there is no suggestion by the court that it relied on any concession by Kirby's attorney in making its ruling.


author: SACKETT, C.J.

text:
    Jason Ross LODER, Petitioner-Appellant, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Respondent-Appellee.
    No. 00-0303.
    Court of Appeals of Iowa.
    Dec. 13, 2000.
    John L. Sandy of Sandy Law Firm, P.C., Spirit Lake, for appellant.
    Thomas J. Miller, Attorney General, David A. Ferree, Assistant Attorney General, and Kerry Anderson, Assistant Attorney General, for appellee.
    Heai’d by SACKETT, C.J., and HUITINK and HECHT, JJ.
   SACKETT, C.J.

The petitioner-appellant, Jason Loder, appeals from the district court’s ruling on judicial review affirming the revocation of his driver’s license under Iowa Code section 321 J. 12 after a urine test revealed the presence of marijuana metabolites in his urine. Loder claims the revocation should be rescinded because the presence of marijuana metabolites in his chemical test sample bore no rational relationship to his ability to drive. Loder further claims an earlier revocation before he was twenty-one years old under Iowa Code section 321 J.2A for driving with a blood alcohol content above .02 should not be used to enhance a revocation of his driver’s license under Iowa Code section 321J.12. We affirm.

Loder was born on September 23, 1976. On December 26, 1998 he was arrested for operating a motor vehicle while intoxicated in violation of Iowa Code section 321J.2 (1997). A preliminary breath test indicated that Loder’s alcohol level was well below .10. A requested urine sample revealed the presence of marijuana metabolites at a concentration of ninety-three nanograms per milliliter. There was evidence Loder smoked marijuana during a two-month period ending December 21, 1998, but had not smoked it in the five days preceding his arrest. The State eventually amended the OWI charge to public intoxication and Loder pled guilty to that charge.

On the basis of the test results showing the presence of the metabolites, the DOT gave Loder notice his license would be revoked for one year under Iowa Code section 321J.12(1). The revocation was enhanced as a result of his conviction before he was twenty-one under Iowa Code section 321J.2A.

Loder initiated contested case proceedings challenging his license revocation. The license revocation was upheld throughout administrative proceedings. Loder filed a petition for judicial review asserting the revocation violated his constitutional rights. The State claimed Loder failed to preserve error on his constitutional claims. In its ruling, the district court stated “the Court -will review the case on the merits, assuming error (if any) has been preserved for review.” The court denied Loder’s petition and upheld the license revocation. The district court rejected Loder’s claims that the presence of marijuana metabolites in his system bore no rational relationship to his ability to drive and that a prior revocation under Iowa Code section 321J.2A should not enhance the revocation under Iowa Code section 321J.12. The court ruled the department properly revoked Loder’s driving privileges for one year under section 321J.12(l)(b).

Assignments of error in judicial review proceedings which raise constitutional challenges require independent evaluation of the totality of the evidence from which the questions arise. Iowa-Illinois Gas and Electric Co. v. Iowa State Commerce Comm’n, 412 N.W.2d 600 (Iowa 1987).

The State claims that Loder failed to preserve any issues attacking the constitutionality of 'Iowa Code section 321J. 12(1) for the revocation based on the presence of a controlled substance by not citing to specific constitutional provisions. The State makes a similar claim regarding the enhancement of the revocation based on the previous revocation under Iowa Code section 321J.2A. The district court faced a similar challenge to Loder’s preservation of error and reviewed the case on the merits assuming any error was preserved.

Because of the change in the statutory provisions of Iowa Code section 321J.12 concerning controlled substances, challenges such as Loder’s are likely to recur. Therefore in the interest of judicial economy, we address Loder’s constitutional challenges to the statute on the merits. See Shortridge v. State, 478 N.W.2d 613, 615 (Iowa 1991). A statute must clearly, palpably, and without doubt infringe upon the constitution before we will declare it unconstitutional. Larsson v. Iowa Bd. of Parole, 465 N.W.2d 272, 273 (Iowa 1991). “A person challenging a statute must negate every reasonable basis upon which the statute could be upheld as constitutional.” Schroeder Oil Co. v. Iowa State Dep’t of Revenue & Fin., 458 N.W.2d 602-603 (Iowa 1990).

Loder first challenges revocation of his driver’s license under Iowa Code section 321J.12(l)(b) claiming the presence of marijuana metabolites in his system bears no rational relationship to his ability to drive. “Under the rational basis analysis, a statute is constitutional unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest.” Ruden v. Parker, 462 N.W.2d 674, 676 (Iowa 1990) (quoting Bennett v. City of Redfield, 446 N.W.2d 467, 474 (Iowa 1989)). To survive this constitutional test (1) the statute must serve a legitimate governmental interest; and (2) the means employed by the statute must bear a rational relationship to that governmental interest. Glowacki v. Board of Med. Exam’rs, 501 N.W.2d 539, 541 (Iowa 1993).

In interpreting a similar statute providing for administrative revocation of a person’s driver’s license after multiple OWI convictions, the supreme court stated,

Upon a third or subsequent violation, subsection 321.281(g)(a) triggers a court order directing an administrative agency to revoke the defendant’s driving privileges. Such revocation “is not intended as a punishment to the driver, but is designed solely for the protection of the public in the use of the highways.” 7A Am.Jur.2d Automobiles and Highway Traffic § 223 (1980).

State v. Blood, 360 N.W.2d 820, 822 (Iowa 1985). The same reasoning applies to-section 321J.12. The administrative revocation of a driver’s license is to protect the public in the use of Iowa’s highways.

Loder argues the presence of marijuana metabolites in his system has no relationship to his ability to drive and, therefore, revoking his license for that reason bears no rational relationship to the governmental purpose of protecting the public on the highway.

Loder presented evidence that Michael L. Rehberg, a forensic toxicologist and administrator of Iowa’s D.C.I. crime laboratory had testified “there is not a direct mathematical relationship or correlation between a urine/drug test and drug effect with this drug [marijuana] as there is with the drug alcohol.” In addition, a notation on the test results from Loder’s urine sample states, “[c]linical studies have not established' a numerical correlation between urine drug concentration and impaired driving ability.” Loder contends this evidence proves there is no direct relationship between the presence of drug metabolites and a persons’ ability to drive. He argues revoking a person’s driving privileges because of the presence of drug metabolites in one’s urine is not rationally related to the purpose of protecting the public. We disagree.

The lack of any numerical correlation or direct relationship between the amount of marijuana metabolites in a person’s system and the impairment of that person’s ability to drive does not foreclose the finding that the statute is rationally related to protecting the public. The statute is aimed at keeping drivers who are impaired because of the use of illegal drugs off the highways. Unlike the blood alcohol concentration test used to measure alcohol impairment there is no similar test to measure marijuana impairment. There is, though, as was used here, a test to measure the use of marijuana, a drug illegal in the State of Iowa, in a person’s body. There being no reliable indicator of impairment, the legislature could rationally decide that the public is best protected by prohibiting one from driving who has a measurable amount of marijuana metabolites.

Other states which have addressed the constitutionality of similar statutory provisions based on a rational-relationship test have determined the prohibition against driving with the presence of a controlled substance in one’s system was rationally related to the governmental goal of protecting other drivers and is a valid exercise of the state’s police power. See Love v. State, 271 Ga. 398, 517 S.E.2d 53, 57 (1999); People v. Fate, 159 Ill.2d 267, 271, 201 Ill.Dec. 117, 636 N.E.2d 549, 551 (1994); State v. Phillips, 178 Ariz. 368, 371-72, 873 P.2d 706, 709-10 (Ariz.App.1994). The revocation of a person’s driving privileges for possession of a controlled substance has been upheld. State v. Bell, 572 N.W.2d 910, 912 (Iowa 1997). In Bell the defendant was not even driving. The court said, “[t]he legislature may have concluded that individuals convicted of drug offenses are more likely to cause dangerous conditions on public roads than are other criminal defendants because then-drug use actually may impair their driving abilities.” Id. The presence of marijuana metabolites or other illegal substance metabolites in a person’s body showing recent use of a controlled substance is an equally compelling rationale related to the governmental purpose of protecting the public from impaired drivers. The revocation provisions 'of Iowa Code section 321J.12 serve a legitimate governmental purpose and are rationally related to that purpose. We affirm on this issue.

Loder also raises a constitutional challenge to the enhancement of the revocation period based on his prior conviction under Iowa Code section 321J.2A. In 1995 Loder was under twenty-one years old and convicted of driving with a blood alcohol content above .02. Iowa Code § 321J.2A. His license was revoked under that section. He argues the enhancement “triggers ex post facto concerns as his punishment is being enhanced based upon conduct that would not now be illegal for him.” The ex post facto provisions of the federal and state constitutions prohibit,

[punishing as a crime] an act previously committed, which was innocent when done, [or making] more burdensome the punishment for a crime, after its commission, or [depriving] one charged with crime of any defense available according to [the] law at the time when the act was committed.

Hills v. Iowa Dept. of Transp. and Motor Vehicle Div., 534 N.W.2d 640, 641 (Iowa 1995) (quoting Adair Benevolent Soc’y v. State, 489 N.W.2d 1, 4 (Iowa 1992)).

The enhancement of his current revocation is based on “a previous revocation under this chapter.” Iowa Code § 321J.112(l)(b). The 1998 amendments to section 321J.12 do not make any previously innocent act a crime, make the punishment more burdensome after the crime was committed, or deprive Loder of any defense which was available when the act was committed. The enhancement of his license revocation does not violate the ex post facto provisions of the federal or Iowa constitutions.

Having concluded that Iowa Code section 321J.12, as amended, is constitutional, we affirm the district court’s decision on judicial review of the revocation of Loder’s driver’s license.

AFFIRMED.

      .Effective July 1, 1998, section 321J. 12(1) provides:
      1. Upon certification, subject to penalty for perjury, by the peace officer that there existed reasonable grounds to believe that the person had been operating a motor vehicle in violation of section 321J.2, that there existed one or more of the necessary conditions for chemical testing described in section 321J.6, subsection 1, and that the person submitted to chemical testing and the test results indicated the presence of a controlled substance or other drug, or an alcohol concentration equal to or in excess of the level pi-ohibited by section 321J.2, or a combination of alcohol and another drug in violation of section 321J.2, the department shall revoke the person's driver’s license or nonresident operating privilege for the following periods of time:
      a. One hundred eighty days if the person has had no revocation under this chapter.
      b. One year if the person has had a previous revocation under this chapter.
      Iowa Code § 321 J. 12(1) as amended, 1998 Iowa Acts ch. 1138, § 20.

      . Effective July 1, 1998, section 321J. 12(1) was amended by adding the controlled substance language cited in footnote 1. Prior to the amendment, the section only provided for revocation upon a test failure for a blood alcohol concentration in excess of .10.

      . Section 321J.2A provides in pertinent part:
      A person who is under the age of twenty-one shall not operate a motor vehicle while having an alcohol concentration, as defined under section 321J.1, of .02 or more. The driver’s license or nonresident operating privilege of a person who is under the age of twenty-one and who operates a motor vehicle while having an alcohol concentration of .02 or more shall be revoked by the department for the period of time specified under section 321J.12.
      Iowa Code § 321J.2A, first unnumbered paragraph.

      . The Iowa Department of Transportation adopted the federal guidelines for determining detectable levels of controlled substances. Iowa Admin. Code r. 661-7.9. Loder's test result of 93 ng/ml was nearly twice the 50 ng/ml minimum level of the rule.

      . 1998 Iowa Acts ch. 1138, § 20.


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Donald Bedelle FULLER, an Attorney at Law of the State of Minnesota.
    No. CX-99-2061.
    Supreme Court of Minnesota.
    Feb. 16, 2001.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that (1) the petition of Donald Bedelle Fuller for reinstatement be, and the same is, denied and (2) any future petition for reinstatement shall comply with Rule 18(a)-(d), Rules on Lawyers Professional Responsibility, including the requirement that petitioner go through a reinstatement hearing.

BLATZ, C.J., and GILBERT, J., took no part in the consideration or decision of this case.

BY THE COURT

Alan C. Page Associate Justice


author: LANCASTER, Justice.

text:
    In the Matter of the WELFARE OF P.R.L.
    No. C4-99-1214.
    Supreme Court of Minnesota.
    Feb. 22, 2001.

      Amy Klobuchar, Hennepin County Attorney, Andrew J. Mitchell, Asst. County Atty., Minneapolis, for Appellants.
    Warren R. Sagstuen, Assistant Public Defender, Minneapolis, for Respondents.
    Gerald Chester, Minneapolis, for Guardian Ad Litem.
   OPINION

LANCASTER, Justice.

This case arose from a petition by the appellant, Hennepin County Department of Children and Family Services (DCFS), to the Hennepin County District Court, requesting termination of respondent mother’s parental rights to her child, P.R.L. P.R.L. was born in July 1988. ' He has been consistently adjudicated a child in need of protection or services since November 1996 and has been placed out of his mother’s home continuously since June 1996. In April 1998, pursuant to an agreement by the parties, the district court issued an order that terminated respondent’s parental rights to P.R.L. but also stayed the termination. In June 1999, the district court revoked the stay and terminated respondent’s parental rights. Respondent appealed the revocation and the court of appeals concluded that the district court orders did not contain findings of fact demonstrating that there was, in June 1999, an existing cause for termination. The court of appeals reversed and remanded the case to the district court for further findings and DCFS requested review by this court. Because we conclude that the June 1999 district court order contains findings sufficient to show an existing cause for termination, we reverse the court of appeals and reinstate the judgment of the district court.

The respondent in this case is the mother of three children, the youngest of whom, 12 year old P.R.L., is the subject of this case. Respondent was married to the children’s father from 1984 until 1990 and she was granted custody of the children upon dissolution of her marriage to their father.

The children’s case file with Hennepin County Child Protection Services extends back to 1991, when Child Protection Services received and substantiated a report that the children were neglected. P.R.L. was then two years old. That case was closed a month later after respondent agreed to a safety plan for the children that included parenting education for herself, adequate supervision of the children and decreased physical discipline. In 1993, Child Protection Services received and substantiated several reports concerning physical abuse of the children by both respondent and her boyfriend, Willie Richardson. The case was closed in November of that year, after respondent participated in chemical abuse and parenting programs.

Two months later, on January 17, 1994, Richardson assaulted respondent by punching and kicking her and hitting her with a cooking pot. He then took a knife into a room where the children were and threatened them, saying: “I’m going to take care of you all.” Respondent fled the home to call the police. On February 1, Child Protection Services spoke with one of the children and learned that Richardson was presently residing in the home, had assaulted respondent prior to the January 17 incident, and regularly hit the children with a belt. The child feared physical retribution from his mother for talking with Child Protection Services. Respondent denied to a social worker that Richardson was living in the home but admitted that he had physically assaulted her in the past. A social worker called respondent’s residence on February 4 and Richardson answered the phone. When respondent got on the phone, she told the social worker that she would not file for a protective order against Richardson. Child Protection Services filed a petition requesting a finding by the court that the children were in need of protective services. The children were removed from respondent’s home and, after a hearing on February 11, the district court gave temporary custody of the children to DCFS. In late February, respondent finally obtained a protective order against Richardson and the children were returned to her on March 28, 1994. A trial was scheduled for June.

Before the trial took place, the parties reached a settlement agreement and the district court issued an order pursuant to that agreement, adjudging the children to be in need of protection and services and placing them under protective supervision but allowing them to live with their mother. The court ordered respondent to attend domestic abuse and parenting programs, and to enforce the February protection order against Richardson. Richardson was to have no contact with the children until he completed domestic abuse and chemical dependency programs. DCFS closed the case in September 1995.

In January 1996, DCFS reopened the case upon learning that respondent had resumed her relationship with Richardson and had, in December 1995, fired a gun at Richardson while the children were in the home. Respondent again refused to get a protective order against Richardson. In June 1996, DCFS filed a petition requesting an order for immediate custody. The petition reported, along with the facts already mentioned, that respondent had told a DCFS social worker that she would not leave Richardson and that respondent had left her children with her sister, saying that she did not want them back. The district court authorized the removal of all three children from respondent’s home.

After a November 1996 hearing, the district court concluded that the children were in need of protection or services based on findings that respondent had visited her children infrequently, had maintained only minimal contact with the assigned child protection worker, and had not substantially complied with her previous case plan because she had not obtained a protective order against Richardson. The court found that continuing placement outside the home was in the best interests of the children and issued an order that continued their out-of-home placement and transferred legal custody of the children to DCFS. The court also ordered respondent to complete a case plan that required her to obtain a protective order against Richardson and prevent contact between him and the children, complete parenting and domestic abuse programs, and maintain regular contact with her children and their assigned child protection worker. The court continued the matter and gave notice that a hearing to determine the permanent status of the children was to be held by June 1997.

At hearings in January and April of 1997, the district court found that respondent was not following her case plan and DCFS filed a motion to place all of the children in long-term foster care. Clinical psychologists who met with the children recommended that the siblings be separated due to their negative interactions; the two older children were subsequently placed in separate group foster homes. Because he was not yet 12 years old, P.R.L. was ineligible for long-term foster care unless he was placed with a sibling. Minn.Stat. § 260C.201, subd. 11(e)(3) (2000).

In January 1998, DCFS petitioned the district court to terminate the parental rights of respondent as to P.R.L. and a permanency hearing was scheduled for March 25, 1998. Prior to the hearing, respondent and DCFS entered into a stipulation that was reduced to writing in the court’s April 1998 Stayed Findings of Fact, Conclusions of Law and Order for Termination of Parental Rights (Stayed Order). The court found that respondent continued to have contact with Richardson throughout 1997, and possibly more recently, but that respondent also had complied with other provisions of her case plan by maintaining regular contact with P.R.L. and his child protection worker and by nearing completion of parenting and domestic abuse programs. The court concluded that there was clear and convincing evidence that it was in the best interests of the child to terminate respondent’s parental rights to P.R.L., and also that there was clear and convincing evidence that it was in the best interests of the child to stay the entry of the termination order for a period of time.

The Stayed Order was subject to several conditions, one being that respondent was not to have consensual contact with Richardson and was to enforce the protective order previously issued against him. The Stayed Order added that termination would be entered automatically in 90 days unless, in the intervening time, the district court ordered entry of the termination order upon motion, dismissed the proceedings upon motion, or extended the Stayed Order for an additional successive period of up to 90 days. Any motion for alternative permanency'was to result in a hearing limited to the sole issue of whether the proposed alternative permanency option was in the child’s best interests compared to entry of the termination order.

In June 1998, DCFS became aware that respondent again was involved with Richardson and moved the district court to revoke the stay and enter an order terminating respondent’s parental rights. At a hearing on that motion, respondent admitted contact with Richardson and waived her right to an evidentiary hearing on the issue. Respondent also indicated an understanding that her admission required the court to enter the termination order unless the court was convinced that long-term foster care could be arranged for P.R.L. and that such a permanency arrangement was in the best interests of the child.

The district court declined to vacate the stay immediately, preferring instead to meet further with the parties and therapists to discuss P.R.L.’s best interests.' In September, the court requested that DCFS look for a foster home that could accommodate both P.R.L. and his .older brother, as P.R.L. was still too young for individual placement in long-term foster care.

In November 1998, respondent filed a motion to be reunified with P.R.L. She acknowledged that her contact with Richardson violated a condition of the stay, but claimed that new information showed that condition to be unreasonable. Respondent stated that at the time the district court made her non-contact with Richardson a condition of the Stayed Order, the court was unaware that Richardson was completing a domestic abuse program as part of a separate child protection case plan involving his own child. Respondent claimed that the Stayed Order’s condition that she avoid contact with Richardson was based on a belief that Richardson had made no arrangements to remedy his abusive relationship with her. Respondent argued that this new information showed that the no-contact condition was unreasonable and the motion to vacate the stay, based upon her violation of an unreasonable condition, should be denied.

In April and June of 1999, the district court held hearings on the matter and issued a June 1999 order that denied respondent’s motion to reunify and lifted the stay of the termination of respondent’s parental rights. The court incorporated into its findings the findings from the April 1998 Stayed Order (which in turn incorporated the 1994 and 1996 court orders) that for several years and despite court orders to the contrary, respondent had maintained an ongoing relationship with Richardson during which she was physically abused in the presence of the children. In addition, the court found that: (1) respondent had violated the conditions of the stay by having consensual contact with Richardson; (2) the court in Richardson’s child protection case (the case plan for which formed the basis of respondent’s claim that the no-contact condition was unreasonable) had allowed Richardson unsupervised visits with his child only so long as Richardson was not in the company of respondent; and (3) because P.R.L. was still not yet 12 years old and no long-term foster care could be found for P.R.L. together with his older brother, long-term foster care was not a possible permanency arrangement. The court concluded that there was clear and convincing evidence that terminating respondent’s parental rights was in the best interests of P.R.L. because: respondent had substantially, continuously or repeatedly refused or neglected to comply with the duties imposed upon her by the parent-child relationship, see Minn.Stat. § 260C.301, subd. 1(b)(2) (2000); respondent was palpably unfit to be a party to the parent-child relationship, see id. subd. 1(b)(4) (2000); after P.R.L. had been determined to be a child in need of protection or services, reasonable efforts failed to correct the conditions that led to that determination, see id. subd. 1(b)(5) (2000); and P.R.L. was neglected and in foster care, see id. subd. 1(b)(8) (2000).

On appeal, the court of appeals determined that the district court did not make specific factual findings concerning current conditions sufficient to show by clear and convincing evidence that a statutory condition justifying termination was satisfied at the time the stay was lifted, as required by In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn.1980). In re Welfare of P.R.L., 606 N.W.2d 72, 75 (Minn.App.2000). In addition, the court of appeals noted that the district court order did not address the requirement that the petitioning party prove that a consistent pattern of specific conduct or specific conditions detrimental to the child existed at the time of the hearing and apparently would continue for a prolonged, indefinite period, as required by In re Welfare of M.D.O., 462 N.W.2d 370, 377 (Minn.1990). P.R.L., 606 N.W.2d at 76. Because it found the record inadequate to support termination of respondent’s parental rights, the court of appeals reversed the termination and remanded for an evidentiary hearing.

We review terminations of parental rights to determine whether the district court’s findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous. M.D.O., 462 N.W.2d at 375. We study the record carefully to determine whether the evidence is clear and convincing. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn.1980).

In a termination of parental rights proceeding, the best interests of the child must always be the chief consideration. Minn.Stat. § 260C.301, subd. 7 (2000); In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn.1995); M.D.O., 462 N.W.2d at 375. In most cases, it is presumed that the child’s best interests are served by being with a parent. A.D., 535 N.W.2d at 647. To terminate a person’s parental rights, the district court must find clear and convincing evidence that statutory requirements are met. Minn. R. Juv. P. 59.05 (1999). This evidence must relate to conditions that exist at the time of termination and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period. Chosa, 290 N.W.2d at 769.

Here the district court terminated parental rights twice; once in April of 1998 and again (finally) in June of 1999. The 1998 order was, as we have already observed, “stayed,” with entry to be automatic after 90 days (with possible extension to 180 days) or possibly on request of the county after demonstrated violation by the parent of conditions of the stay, unless the proceedings were dismissed in the interim.

Staying a permanency order is a settlement tool that finds no specific authority in statute or rule. The DCFS acknowledged in its brief to this court the lack of specific authority for staying permanency orders, but it appears that both parties in this case assume stayed orders of tennination are allowed in settlement agreements between the parties under Minn. R. Juv. P. 56 (1999). We recognize that a stay of entry of a termination order is probably an expedient settlement tool and this is not the first time we have seen it used, but settlement tools in child protection matters cannot exist outside the statutory mandate that decisions are to serve a child’s best interests. We cannot ignore the fact that this practice favors appeasement of parents and legal practitioners interested in disposing of cases but does little or nothing to promote the best interests of children. The factual framework of this case presents an object lesson in the difficulties created by staying termination orders — difficulties that go beyond the lack of authority for the practice.

Given the high standard necessary to justify a termination, it requires strained reasoning to justify a stay. The illogic is demonstrated by the two conclusions of law in the April 1998 Stayed Order in this case:

1.0 There is clear and convincing evidence that it is in the best interests of the child that parental rights of [respondent mother] be terminated.
2.0 There is clear and convincing evidence that it is in the best interests of the child to stay the entry of this Order, as to [respondent mother], for a period of time.

A stayed termination order engenders in child and parent the hope of reunification based upon anticipated compliance with the conditions of the stay by a parent who has so steadfastly failed to comply with case plans that it has been found to be in the best interests of the child to have the parent’s rights terminated. In that way it exacts real, human costs. It is particularly troubling to stay entry of a permanency order in the factual framework of this case, where the problem that led to termination was one of such long standing and the prospects of success during a stay so dim as to make the court, through its agreement to the stay, a party to fruitless delay. While the courts must exhibit caution in severing family bonds, they should not merely delay what is demonstrated to be inevitable. In re Welfare of J.J.B., 390 N.W.2d 274, 280 (Minn.1986).

Clearly, grounds existed to terminate parental rights at the time of the first termination order in April 1998. The issue directly before us, though, is whether such grounds existed at the time of the second termination in June 1999. We hold that they did.

Under Minn.Stat. § 260C.301, subd. 1(b)(5), a court’s finding that “following the child’s placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child’s placement” is a valid ground for terminating parental rights to a child. A presumption that reasonable efforts have failed arises upon a showing that:

(i) a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months. * * *;
(ii) the court has approved a case plan [that has been] filed with the court ⅜ * *.
(iii) conditions leading to the out-of-home placement have not been corrected. It is presumed that conditions leading to a child’s out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court’s orders and a reasonable case plan; and
(iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.

Id. subds. 1(b)(5)(i) — (iv) (2000).

Although the district court’s June 1999 order did not specifically reference each of the factors listed in the statute, the findings of fact in that order demonstrate an evidentiary basis to support the existence of the factors listed. The findings provide a sufficient basis for us to conclude that there is clear and convincing evidence that the conditions of subdivision 1(b)(5) are satisfied. See A.D., 535 N.W.2d at 648-49 (concluding, in the context of a termination based on a child being neglected and in foster care, that the district court did not need to address each of the items listed in the statute as factors to be considered in determining whether a child is neglected and in foster care).

With respect to the first, second and fourth factors in subdivision 1(b)(5), the findings demonstrate that P.R.L. has been placed out of his mother’s home since 1996, that the district court approved a ease plan filed with it, and that Hennepin County has made reasonable efforts, including the agreement that led to the 1998 Stayed Order, to rehabilitate the parent and reunite the family.

As regards the third factor, the conditions leading to P.R.L.’s out-of-home placement have not been corrected and respondent has failed to comply with a reasonable case plan. Respondent’s relationship with Richardson is, and has been for years, the primary basis of her unfitness to be a parent. In September 1994 respondent was ordered to refrain from having contact with Richardson and to enforce protective orders against him. These requirements were continually reiterated to respondent in later court orders. She has failed to comply with every no-contact order given her: Respondent no longer claims that she has no contact with Richardson but argues instead that such contact is reasonable in light of changed circumstances.

Respondent’s argument that her situation with Richardson is changed because of the treatment he is undergoing fails. As the district court found in its 1999 termination order, the same case plan that requires Richardson to undergo domestic abuse treatment denies Richardson visitation rights with his son if he is with respondent. There is no indication that the long-persisting detrimental relationship between respondent and Richardson, the condition that led to P.R.L.’s out-of-home placement, has changed.

Thus, a presumption has been created that following P.R.L.’s placement out of the home, reasonable efforts, under the direction of the district court, have failed to correct the conditions leading to P.R.L.’s placement. As respondent has not rebutted the presumption that reasonable efforts have failed, we hold that the district court’s June 1999 order contains findings sufficient to terminate respondent’s parental rights as to P.R.L. under Minn.Stat. § 260C.301, subd. 1(b)(5). Because a court need find only one of the statutory grounds provided in Minn.Stat. § 260C.301, subd. 1(b) (2000), to terminate a parent’s rights to a child, we need not address the remaining grounds for termination considered by the district court. See A.D., 535 N.W.2d at 650.

Reversed.

      . The record indicates that the father was not involved with his children following the divorce, but he apparently became re-associated with them as a result of the 1994 filings in this matter, at which time the county encouraged visitation in the hopes of reunification of the children with their father. These attempts failed and the father’s parental rights as to P.R.L. were eventually terminated. There is no record of an appeal by him, and that judgment is not at issue in this appeal.

      . The two older children were not included in this petition as they were subjects of a motion for permanent placement in long-term foster care, which was granted in February 1998.

      . If the stay was extended, the termination order was to be entered automatically after 180 days, unless otherwise ordered after motion or stipulation by the parties.

      . After the respondent indicated her understanding, the court further inquired: "You understand that what's going to happen next is I’m going to enter some form of permanency order that there is going to be a termination of parental rights as lo [P.R.L.] or some other form of permanency that will be on a motion filed after a hearing, right?” Respondent answered, "Yes, I understand.”

      . The Juvenile Protection Rules of the Minnesota Rules of Juvenile Procedure were amended by order, with the new rules effective March 1, 2000. Order Modifying Effective Date of Juvenile Protection Rules, C4-97-1693 (Minn. Dec. 29, 1999). The case at hand was litigated under the old rules, and for that reason we cite to the rules effective in 1999.

      . Minnesota Rules of Juvenile Procedure 56 (1999) provides for and lays out the procedure that a juvenile court must follow with regard to settlement agreements. It is possible that courts base stayed termination orders on the 1999 Minnesota Rules of Juvenile Procedure, under which, "after terminating parental rights, pursuant to Rule 61, the court may conduct a disposition hearing immediately or continue the matter for a disposition hearing at a later time.” Id. 62.01 (1999). Rule 61.02 of the 1999 Rules provided that where a petition alleged dependency, neglect, or neglected and in foster care, an adjudication could be withheld for a period of 90 days from a finding that the allegations were proved, and that the court could extend the withholding for an additional successive period not to exceed 90 days. Id. 61.02 (1999); see id. 61.01 (1999). This does not authorize a lengthy stay of a termination of parental rights order. Nor do the new Juvenile Protection Rules, which apply to all matters filed on or after March 1, 2000, provide for stayed terminations of parental rights. Minn. R. Juv. P. 37.82 (2000).

      . This court has decided at least two cases in which stayed orders of termination had been issued. In re Welfare of J.M., 574 N.W.2d 717, 719 (Minn.1998); In re Welfare of C.L.L., 310 N.W.2d 555, 556 (Minn.1981). In neither case did we discuss the practice of issuing such stayed orders.

      . Respondent argues that under Chosa, 290 N.W.2d at 769, it must appear that the conditions giving rise to the termination will continue for a "prolonged, indeterminate period." The long history of respondent’s refusal to terminate her relationship with Richardson, despite several orders from the district court that she do so, suffices to meet any such requirement that might exist. Therefore, we address neither DCFS’s argument that requiring such a finding by the district court is outdated and inconsistent with current statutory law, nor respondent's argument that DCFS's argument on this issue is not timely.


author: GILBERT, Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Kevin TOMLIN, Respondent.
    No. CO-99-920.
    Supreme Court of Minnesota.
    Feb. 22, 2001.
    Mike Hatch, Atty. Gen., St. Paul, Shawn B. Reed, Hermantown Pros. Atty., Maki & Overom, Chtd., Duluth, for appellant.
    Kevin J. Short, Minneapolis, for respondent.
   OPINION

GILBERT, Justice.

Kevin Lee Tomlin, a city of Duluth police officer, was convicted of obstruction of legal process under Minn.Stat. § 609.50, subd. 1(2) (1996). Tomlin lied to police to cover up for his Mends who were involved in a hit-and-run accident. Tomlin was charged with and a jury found him guilty of obstruction of legal process in violation of MinmStat. § 609.50, subd. 1. The court of appeals reversed the conviction holding that Tomlin’s actions did not physically obstruct the officers as required by State v. Krawsky, 426 N.W.2d 875 (Minn.1988) and, therefore, there was not sufficient evidence for a conviction. State v. Tomlin, 609 N.W.2d 282, 286 (Minn.App.2000). The court of appeals did not rule on the issues of the district court’s refusal to grant Tomlin’s motion to dismiss or the district court’s jury instructions regarding obstruction of legal process and whether or not they were proper. The state of Minnesota now appeals from the court of appeals’ reversal of Tomlin’s conviction. We affirm.

On the night of December 27,1997, Kevin Tomlin was out drinking with his brother-in-law, Jim Grussendorf, and their Mend Scott Soderholm. At around 11:80 p.m. Tomlin’s wife Rhonda met Tomlin at the bar to drive him home. All four of them left the bar at around 1:30 a.m. Kevin Tomlin, Grussendorf and Soderholm were all intoxicated. Grussendorf and So-derholm, each in his own pick-up truck, followed Rhonda Tomlin. As they were driving, Grussendorf began to pass the Tomlin vehicle. He saw a pedestrian in the road and had to swerve back in front of the Tomlin vehicle, causing Rhonda to hit her brakes. Grussendorf went into the ditch, hitting a mailbox and telephone repair box before returning to the road. So-derholm also tried to pass the Tomlin vehicle. When he saw the pedestrian he was unable to take any evasive action and struck the pedestrian, Lee Kalfsbeek, and his dog Buddy. Mr. Kalfsbeek’s legs were broken in 38 places and his dog was killed. The Tomlin vehicle stopped and Kevin Tomlin ran to a nearby house, which turned out to be the Kalfsbeek residence. Soderholm stayed with the victim. Tomlin identified himself as a police officer, told Mrs. Kalfsbeek and her daughter to call 911 because a pedestrian had been hit, and told them both to stay inside.

When Tomlin returned to the accident scene, his wife Rhonda, Grussendorf and their respective vehicles were no longer there. Soderholm was in the ditch next to the victim. Tomlin told Soderholm something like “Get the hell out of here. I’ll take care of it.” Soderholm left the scene of the accident before the police arrived.

When the police arrived, an officer asked Tomlin what had happened. Tomlin described the accident but did not mention any names, nor did he mention a second vehicle going into the ditch. He described the truck that hit Kalfsbeek as a “possible blue Ford pick-up.” Soderholm’s truck was a green Ford.

When a second officer interviewed Tomlin, Tomlin mentioned that two vehicles were involved. He said that the truck that hit Kalfsbeek was a blue pre-'90s Ford, possibly a four-by-four, that was possibly high up. He said that the driver was in his pre-30s but he could not describe the driver’s clothing. Tomlin admitted at trial that he made the conscious decision not to volunteer the identity of the drivers. Tomlin provided the officer with a written statement that indicated that he had told his wife Rhonda to call 911 from the house of her brother, Grussendorf, who was babysitting that night. Grussendorfs roommate was in fact babysitting that night, not Grussendorf. Tomlin said he did not know Grussendorf s address and he did not know which way the truck turned onto Highway 2, even though the intersection was visible from where they were. Tomlin also borrowed a cellular phone from the first officer and made five calls to Grussendorfs residence where Grussendorf, Soderholm and Rhonda Tomlin all were.

When speaking to a third officer, Tomlin said that he did not know the driver of the truck that hit Kalfsbeek but he might be able to identify the driver if he saw him later. He identified the truck as a Ford or Chevrolet pick-up. He also said that no one else was at the bar with him and Rhonda, nor did anyone leave with them.

On the evening of December 28, the police learned from a bartender that So-derholm and Grussendorf were at the bar with the Tomlins when the bar closed. On the afternoon of December 29, at the request of the police, Tomlin went to the police station to go over his written statement again. At the beginning of the interview, the investigating officer indicated that he did not believe that Tomlin had been entirely truthful. Tomlin said that he would give a new statement and this time he would tell the truth. Tomlin then gave his version of the story, filling in the details he had left out or lied about. Grus-sendorf and Soderholm were apprehended shortly thereafter. Because they were not arrested until 36 hours after the accident, all blood alcohol evidence was lost.

First, we review the issue of whether there was sufficient evidence to convict Tomlin of obstruction of legal process. When faced with a sufficiency of the evidence claim, we must look at the record and determine whether the evidence “when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). In this case, it is necessary to first determine what evidence is required for a conviction of obstruction of legal process. This is an issue of statutory interpretation, a matter of law that we review de novo. Baker v. State, 590 N.W.2d 636, 638 (Minn.1999).

The statutory provision that Tomlin was charged under states that whoever intentionally “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties” may be sentenced as provided in subdivision 2 of the statute. Minn.Stat. § 609.50, subd. 1(2). We construed this language in State v. Krawsky and held that section 609.50 was not facially over-broad or vague. 426 N.W.2d at 879. In that case, we compared Minn.Stat. § 609.50 to a city of Houston obstruction of justice ordinance that-the United States Supreme Court struck down for being overbroad in City of Houston, Tex. v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). Krawsky, 426 N.W.2d at 877-78.

In distinguishing Minn.Stat. § 609.50 from the ordinance that was struck down in City of Houston, we stated that the Minnesota statute was directed solely at a particular kind of physical act that physically obstructs or interferes with an officer, whereas the Houston ordinance prohibited merely “interrupting” an officer. Krawsky, 426 N.W.2d at 877. We described physically obstructing or interfering as conduct that “involves * * * substantially frustrating or hindering the officer in the performance of his duties.” Id.

Although we narrowly construed Minn.Stat. § 609.50 to apply to physical acts, we acknowledged that in limited circumstances it might be possible for words such as “fighting words” to have the effect of physically obstructing or interfering with an officer. Id. Therefore, in order for Tomlin’s conduct to fall under Minn.Stat. § 609.50, subd. (1) or (2), it must rise to the level of a physical obstruction or be words, such as fighting words, that have the effect of physically obstructing or interfering with an officer conducting an investigation.

Many of Tomlin’s statements were lies and may have interrupted the officers’ activities during their investigation. However, we cannot find any instance in the record where Tomlin’s lies and omissions physically obstructed the officers. Not revealing Grussendorf and Soderholm’s names delayed the police in becoming aware of their involvement in the accident. Tomlin lied to the investigating officers when he stated that he did not know the driver of the truck, that he did not leave the bar with anyone else and that Grussen-dorf was babysitting. Because police were not able to apprehend Grussendorf and Soderholm right away, they were not able to obtain blood-alcohol evidence. All of these false statements may have lengthened the time in which it took the police to apprehend Soderholm and Grussendorf, but these statements did not physically prevent or obstruct the police from trying to obtain the evidence.

Tomlin also allegedly told the Kalfs-beeks to stay inside, preventing them from seeing Soderholm, and he told Soderholm something to the effect of “Get the hell out of here.” Both of these statements were made to third parties, not the police. These statements that Tomlin made outside of police presence did not physically obstruct or interfere with any of the officers.

Looking at the facts in a light most favorable to the conviction, Tomlin also lied about the color of the truck that hit Kalfsbeek. This may have led the police to search for the wrong’ color vehicle. However, at the time Tomlin made the statement, police were not in pursuit of a particular suspect. Furthermore, there is not any evidence that the statement caused the police to alter their course of conduct during the investigation. The police may have broadcast the wrong data when telling other officers what to look for, but this does not equal a physical obstruction or interference. The statement did not prevent the police from pursuing a suspect in a green truck rather than a blue truck.

While it is true that Tomlin lied to police, Krawsky requires that in order for a violation of Minn.Stat. § 609.50, subd. 1(1) or (2) to^exist, there must be a finding that the accused physically obstructed or interfered with a police officer while that officer was engaged in the performance of his official duties. Although Krawsky mentions in dicta that some verbal conduct such as “fighting words” may rise to the level of physical conduct, we do not believe Tomlin’s conduct rises to that level. We hold that none of Tomlin’s conduct physically obstructed the police while engaged in the performance of their duties. Therefore, there was not sufficient evidence for a conviction under Minn.Stat. § 609.50, subd. 1(1) or (2). We affirm the court of appeals’ decision to reverse Tomlin’s conviction.

Because we affirm the court of appeals’ decision regarding insufficiency of the evidence, it is not necessary for us to reach the issues of the district court’s denial of Tomlin’s motion to dismiss or the district court’s jury instructions, and we decline to do so at this time.

Affirmed.

      . The initial complaint issued by the police simply charged Tomlin with violating § 609.50. The formal complaint and summons later filed by the city attorney alleged that Tomlin violated § 609.50, subd. 1(2). The court of appeals ruled on § 609.50, subd. 1(1). This discrepancy does not affect our analysis because the Krawsky decision, on which this case turns, applies to both provisions. In 1988, the year in which Krawsky was decided, the statute was not divided into sub-parts as it was in 1997. However, the language of the relevant provisions was substantively the same.


author: Kathleen A. Blatz Chief Justice

text:
    In re TWIN CITIES HARLEY-DAVIDSON LITIGATION.
    No. C1-01-118.
    Supreme Court of Minnesota.
    Feb. 23, 2001.
   ORDER

Jeffrey S. Berg and 24 additional individuals (movants) have filed a motion requesting assignment of a single judge to 24 declaratory judgment actions brought by Twin Cities Harley-Davidson, Inc., (Harley-Davidson) against the movants in six different district courts. In addition, mov-ants request that their separate action brought jointly against Harley-Davidson in Dakota County District Court that has been dismissed and is now on appeal to the Minnesota Court of Appeals be assigned to the same judge if it is remanded by the appellate court. Movants request that all pretrial and trial proceedings in the 25 cases (listed in the attached addendum) be heard before a single judge for reasons of efficiency and in the interests of justice. In their joint action against Harley-Davidson, movants allege breach of contract, common law misrepresentation and violations of Minn.Stat. §§ 325F.67 and .69 (2000) in the sale of motorcycles to mov-ants. These claims are also the subjects of the declaratory judgment actions brought by Harley-Davidson. Movants contend that there are common issues of law and fact underlying each of their claims against Harley-Davidson.

Harley-Davidson does not oppose assignment to a single judge for pretrial management and resolution of discovery disputes. However, Harley-Davidson does oppose assignment to a single judge for dispositive motions and consolidation of the cases for trial. Specifically, Harley-Davidson argues that there are no common questions of fact and that consolidation would be improper. Harley-Davidson further asserts that in an order dismissing without prejudice the complaint in the movants’ joint action, the Dakota County District Court has already made a determination that movants’ claims are not based on common issues of fact and are not suitable for consolidation into a single action. See Jeffrey S. Berg, et al. v. Twin Cities Harley-Davidson, Inc., File No. C8-00-9221 (order filed January 9, 2001 Dakota County District Court).

The undersigned concludes, without expressing any opinion on the issue of consolidation, that these actions involve common questions of law and at least related issues of fact that create the potential for duplicative discovery and other common issues or problems. The same party, Harley-Davidson, is the subject of all the claims.

The interests of the parties and the judiciary will be furthered by a uniform and coordinated system of litigation management to eliminate duplicative discovery, prevent inconsistent pretrial rulings and conserve the resources of the parties, their counsel and the judiciary. Any decision regarding consolidation of any or all of the cases for disposition on motion or at trial is left to the discretion of the assigned judge, subject to any direction provided by resolution of matters currently on appeal.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that, pursuant to Minn.Stat. §§ 480.16 and 2.724 (1998), the Honorable Deborah Hedlund of the Fourth Judicial District, having consented, be appointed to hear and decide all matters, including pretrial and trial proceedings, in the Twin Cities Harley-Davidson cases currently pending in the Minnesota state district courts, any future actions filed in Minnesota state district courts concerning similar claims against Harley-Davidson, and any similar actions against Harley Davidson currently on appeal that are remanded to the district court. To facilitate the identification and management of these cases, all documents served and filed from the date of this order shall in addition to the individual case captions, bear the general case caption “In Re: Twin Cities Harley-Davidson Litigation.”

BY THE COURT

Kathleen A. Blatz Chief Justice

ADDENDUM

Pending Cases

Twin Cities Harley-Davidson, Inc. v. Jeffrey S. Berg

No. 19-C6-00-9217, Dakota County

Twin Cities Harley-Davidson, Inc. v. Bradley P. Bruggentheis

No. C6-00-7728, Anoka County

Twin Cities Harley-Davidson, Inc. v. Rocklyn Bullis

No. 19-C4-00-9216, Dakota County

Twin Cities Harley-Davidson, Inc. v. Robert J. Byrnes

No. CT-00-014268, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Robert A. Cady

No. C2-00-1539, Rice County

Twin Cities Harley-Davidson, Inc. v. Terrance J. Carter

No. 19-CX-00-9611, Dakota County

Twin Cities Harley-Davidson, Inc. v. David Denzer

No. C4-00-7727, Anoka County

Twin Cities Harley-Davidson, Inc. v. Dave and Tracy Gough

No. CT-00-012647, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Jeff Jungwirth

No. CT-00-012648, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Tim Junkert

No. C9-00-8288, Anoka County

Twin Cities Harley-Davidson, Inc. v. Jim Kinney

No. CT-00-012649, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Connie L. Kohrt

No. CT-00-013032, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Mark Lindstrom

No. CT-00-012650, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Cris C. Lindwall

No. CT-00-12651, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Alan L. Lucken

No. 2000-18572, Scott County

Twin Cities Harley-Davidson, Inc. v. Daniel Lund

No. Cl-00-8396, Anoka County

Twin Cities Harley-Davidson, Inc. v. Anne Marie Mascia

No. C3-00-8240, Anoka County

Twin Cities Harley-Davidson, Inc. v. Steven A. Rose

No. C6-00-7731, Anoka County

Twin Cities Harley-Davidson, Inc. v. Dave Schodde

No. CT-00-12652, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Craig Smith

No. CT-01-2362, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Mark E. Sutherland

No. CT-00-013090, Hennepin County

Twin Cities Harley-Davidson, Inc. v. John Thorman

No. CT-00-012653, Hennepin County

Twin Cities Harley-Davidson, Inc. v. Lawrence White

No. C0-00-668, Nobles County

Twin Cities Harley-Davidson, Inc. v. Terrell M. Williams

No. CT-00-012654, Hennepin County

Jeffrey S. Berg, et al. v. Twin Cities Harley-Davidson, Inc.

No. C8-00-9221 (Dakota County District Court) (currently on appeal)