author: LAVORATO, Chief Justice.

text:
    STATE of Iowa, Appellant, v. Michael Scott KREPS, Appellee.
    No. 01-0571.
    Supreme Court of Iowa.
    Sept. 5, 2002.

      Thomas J. Miller, Attorney General, Mary Tabor and Denise Timmins, Assistant Attorneys General, Richard Crowl, County Attorney, and Christine Delorme, Assistant County Attorney, for appellant.
    Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellee.
   LAVORATO, Chief Justice.

The State sought discretionary review of a district court ruling sustaining the defendant’s motion to suppress evidence. The evidence was obtained by a police officer who stopped the defendant’s vehicle when a passenger exited the vehicle while it was still moving.

We transferred the case to the court of appeals, which affirmed. We granted the State’s application for further review. On that review, we now vacate the court of appeals’ decision and reverse the district court judgment. We remand for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

On December 28, 2000, at approximately 2:30 a.m., Officer Craig Johnson of the Carter Lake Police Department observed a red Chevrolet Blazer traveling north on 13th Street. The vehicle turned west onto Cachelin Street. Because there was no traffic at that time of the night, the officer turned around and came back “to check the vehicle out.” As the officer was catching up with the vehicle, it sped up and turned north on 11th Street. The vehicle sped up even more. Next, the vehicle turned onto “P” Street, went one block east, then turned back onto 13th street, thereby completing a circle. From 13th Street, the vehicle went one block and turned back onto Cachelin. The officer had difficulty catching up to the vehicle.

As the officer turned onto Cachelin, he saw an individual jump from the vehicle while it was still moving and run in between two houses. The vehicle continued for approximately fifty yards, then pulled over to the curb. At this point, the officer activated his emergency lights and initiated a traffic stop.

The officer approached the vehicle and asked the driver, Michael Scott Kreps, for his driver’s license, registration, and proof of insurance. The officer smelled alcohol coming either from Kreps or inside the vehicle, so he asked Kreps to step out and perform some field sobriety tests. The tests indicated “definite signs of narcotic usage,” so the officer arrested Kreps and charged him with operating while intoxicated. He asked Kreps to come to the police station for a urine test.

The State charged Kreps with driving while intoxicated, in violation of Iowa Code section 321J.2 (1999). Later, Kreps filed a motion to suppress, which the State resisted. In his motion to suppress, Kreps asked the court to suppress all statements and other evidence obtained following the stop because it was obtained in violation of the Fourth Amendment to the Federal Constitution and the comparable provision of the Iowa Constitution.

At the suppression hearing, the officer testified that as he caught up to the vehicle, it “sped up even more in [an] attempt to lose me, like a cat-and-mouse game.” When asked why he stopped the vehicle, the officer explained it was due to “the evasive action and trying to lose me going around the block,” combined with “seeing an individual exit the vehicle in a manner that is not consistent with normal people getting out of the vehicle, then [running] between two houses.” When asked whether the passenger ran because he was under age and possibly consuming alcohol, the officer responded: “It could be. Carter Lake has a curfew, where individuals under the age of 18 cannot be out past 11.”

On cross-examination, the officer added, “I couldn’t get a radar lock on him because of the short distances from corner to corner.”

On redirect, when asked if there were any additional details that resulted in his stopping the vehicle, the officer added, “[t]he speed that the vehicle was going ... turning the corners was relatively faster than normal traffic does. I felt like there was evasive manner here.” The officer further testified that he “felt like there was something wrong” because of the passenger who jumped out of the vehicle and “took off running.”

Kreps likewise testified. He described what happened just before the passenger jumped from the car: “And as I was driving, [the passenger] said that, you know, there is [a] cop behind us. Let me out of the car. Do this and that.... I turned right, back onto Cachelin.... [The passenger] jumped out of the car, and I was still driving!.] [D]oors swung open and everything.”

At the end of the hearing, the district court ruled from the bench:

The officer testified that he thought the car was doing a cat-and-mouse evasive action, and although the officer testified that he thought the car was going faster than normal around corners or faster than normal drivers would go around corners, I think, when put to the true question, I don’t think the officer could say that the car was exceeding the speed limit, or that he did not see a traffic violation that the driver committed.
So, really, the only thing that the officer has is this person getting out of the car and running through the houses, so I don’t think that that leads to probable cause to stop the driver. I don’t think that there is reasonable suspicion of criminal activity on the part of the driver because someone gets out of the car and runs through a yard, so I’m going to grant the motion.

We granted the State’s application for discretionary review and transferred the case to the court of appeals. The court of appeals affirmed. We granted the State’s application for further review.

II.Issue.

We must determine whether the district court correctly ruled by granting Kreps’ motion to suppress. In resolving this issue, we must determine whether the circumstances in this case provided the officer reasonable suspicion sufficient to allow an investigatory stop of Kreps’ vehicle. In particular, we must determine whether the manner in which Kreps was driving, combined with the passenger’s actions'— jumping from the vehicle while it was still moving and running away — gave rise to reasonable suspicion of criminal activity on the part of the driver, thereby justifying the officer’s stop of the vehicle.

III. Scope of Review.

We review constitutional issues de novo, under the totality of the circumstances. State v. Predka, 555 N.W.2d 202, 204 (Iowa 1996); see also United States v. Arvizu, 534 U.S. 266, 275, 122 S.Ct. 744, 751, 151 L.Ed.2d 740, 750 (2002) (standard for appellate review of reasonable-suspicion determinations is de novo). We give deference to the district court’s findings of fact due to its opportunity to assess the credibility of the witnesses. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). However, we are not bound by those findings. Id.

IV. Applicable Law.

As he did in the district court, Kreps contends that all the statements and evidence obtained after the stop was obtained in violation of the Fourth Amendment to the United States Constitution and in violation of the comparable provision of the Iowa Constitution. The Federal Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... ” U.S. Const, amend. IV. The Fourth Amendment is made applicable to the states under the Fourteenth Amendment to the Federal Constitution. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961); State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000). The search and seizure clause of the Iowa Constitution is substantially identical in language to the Fourth Amendment. See Iowa Const, art. I, § 8. We therefore usually deem the two provisions to be identical in scope, import, and purpose. State v. Scott, 409 N.W.2d 465, 467 (Iowa 1987). Evidence obtained in violation of these provisions is inadmissible, regardless of its relevancy or probative value. Heminover, 619 N.W.2d at 357.

The Fourth Amendment imposes a general reasonableness standard upon all searches and seizures. Scott, 409 N.W.2d at 467. Generally, to be reasonable, a search or seizure must be conducted pursuant to a warrant issued by a judge or magistrate. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). Unless an exception to the warrant requirement applies, searches conducted without a warrant are per se unreasonable. Id.

One exception to the warrant requirement allows an officer to stop an individual or vehicle for investigatory purposes based on a reasonable suspicion that a criminal act has occurred or is occurring. Id. (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). The purpose of an investigatory stop is to allow a police officer to confirm or dispel suspicions of criminal activity through reasonable questioning. United States v. Hickman, 523 F.2d 323, 327 (9th Cir.1975). Such a stop and a subsequent detention — even though temporary and for a limited purpose — is a “seizure” within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996); Heminover, 619 N.W.2d at 357. Because the stop is a seizure, it is subject to the “constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Whren, 517 U.S. at 810, 116 S.Ct. at 1772, 135 L.Ed.2d at 95; Heminover, 619 N.W.2d at 357.

To justify an investigatory stop, the officer must be able to point to “specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion.” Heminover, 619 N.W.2d at 357 (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906). In determining the reasonableness of the particular search or seizure, the court judges the facts against an objective standard: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” Id. (quoting Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Edüd at 906).

In short,

an investigatory stop of a vehicle is constitutionally permissible only if the officer who has made the stop has specific and articulable cause to reasonably believe criminal activity is afoot. Circumstances raising mere suspicion or curiosity are not enough.

Id. at 357-58. The officer must be able to articulate more than an “inchoate and un-particularized suspicion or ‘hunch’ ” of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 576 (2000) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1868, 20 L.Ed.2d at 909). The motivation of the officer stopping the vehicle is not controlling in determining whether reasonable suspicion existed. Heminover, 619 N.W.2d at 361. The officer is therefore not bound by his real reasons for the stop. Id. The test for the stop is an objective one and for that reason the State is not limited to the reasons stated by the investigating officer in justifying the stop. Id.; see also United States v. Hawkins, 811 F.2d 210, 213 (3d Cir.1987) (“[T]he legality of the stop must be judged by the objective facts known to the seizing officer rather than by the justifications articulated by them.”).

Whether reasonable suspicion exists for an investigatory stop must be determined in light of the totality of the circumstances confronting a police officer, including all information available to the officer at the time the decision to stop is made. Arvizu, 534 U.S. at 273, 122 S.Ct. at 750,151 L.Ed.2d at 749 (“When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.”); United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 628-29 (1981); see also Lewis v. State, 233 Ga.Ct.App. 560, 504 S.E.2d 732, 734 (1998) (“[t]he question of whether reasonable suspicion exists to stop a vehicle must be measured by current knowledge,” that is, at the moment the stop is made and not hindsight) (citation omitted). The circumstances under which the officer acted must be viewed “through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.” United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976); see also Arvizu, 534 U.S. at 274, 122 S.Ct. at 750-51, 151 L.Ed.2d at 749-50 (totality-of-the-circumstances review “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person’ ”) (citation omitted).

The evidence justifying the stop need not rise to the level of probable cause. Scott, 409 N.W.2d at 468. An officer may make an investigatory stop with “considerably less than proof of wrongdoing by a preponderance of the evidence.” State v. Richardson, 501 N.W.2d 495, 496-97 (Iowa 1993) (quoting United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989)); see also Wardlow, 528 U.S. at 123, 120 S.Ct. at 675-76, 145 L.Ed.2d at 576 (“ ‘[Reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence_”); accord Arvizu, 534 U.S. at 273, 122 S.Ct. at 751, 151 L.Ed.2d at 750. As one treatise writer suggests, the reference in Terry to a reasonable belief “that criminal activity may be afoot” suggests that “it will suffice that there exists at the time of the stop a substantial possibility that criminal conduct has occurred, is occurring, or is about to occur.” 4 Wayne R. LaFave, Search and Seizure § 9.4(b), at 146 (3d ed.1996) [hereinafter LaFave].

Moreover, “reasonable cause may exist to investigate conduct which is subject to a legitimate explanation and turns out to be wholly lawful.” Richardson, 501 N.W.2d at 497. “The principal function of an investigatory stop is to resolve the ambiguity as to whether criminal activity is afoot.” Id. As one court aptly put it:

Clearly, the officers were not required to rule out all possibility of innocent behavior before initiating a brief stop and request for identification. The test is founded suspicion.... Even if it was equally probable that the vehicle or its occupants were innocent of any wrongdoing, police officers must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it was their duty to prevent.

United States v. Holland, 510 F.2d 453, 455 (9th Cir.1975) (footnote omitted). A good test of such a founded suspicion is that “the possibility of criminal conduct was strong enough that, upon an objective appraisal of the situation, we would be critical of the officers had they let the event pass without investigation.” LaFave § 9.4(b), at 148; see also Olson v. State, 698 P.2d 107, 111 (Wyo.1985) (held stop was proper where “[i]f the driving pattern of this car had continued, resulting in a highway fatality, society would be understandably shocked if the patrolman, under these circumstances, had not investigated these reports”). In short,

[t]he Fourth Amendment does not' require a policeman who lacks the precise level of information necessary for probable cause for arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate course.

Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-17 (1972).

One of the most common situations in which investigatory stops occur is direct police observation of suspicious conduct. LaFave § 9.4(f), at 176. More relevant to this case is the suspicious conduct of flight at the approach of police officers. The difficult question here is whether such flight in and of itself justifies an investigatory stop. Id. § 9.4(f), at 179. Some courts hold it does. See, e.g., State v. Anderson, 155 Wis.2d 77, 454 N.W.2d 763, 765 (1990). The rationale for such a holding is found in this passage of Anderson:

[PJolice officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.... [S]us-picious conduct by its very nature is ambiguous, and the principle function of the investigative stop is to quickly resolve that ambiguity. Therefore, if any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry.
Flight at the sight of police is undeniably suspicious behavior. ' Although many innocent explanations could be hypothesized as the reason for the flight, a reasonable police officer who is charged with enforcing the law as well as maintaining peace and order cannot ignore the inference that criminal activity may well be afoot. Although it does not rise to a level of probable cause, flight at the sight of a police officer certainly gives rise to a reasonable suspicion that all is not well. Under these circumstances, “[i]t would have been poor police work indeed for an officer ... to have failed to investigate this behavior further.”

Id. at 766 (quoting Terry, 392 U.S. at 23, 88 S.Ct. at 1881, 20 L.Ed.2d at 907) (other citations omitted).

Other courts hold that flight at the sight of the police does not in and of itself justify an investigatory stop. Rather, such courts require some independently suspicious circumstance to corroborate the inference of a guilty conscience associated with flight at the sight of the police. See, e.g. State v. Hicks, 241 Neb. 357, 488 N.W.2d 359, 363-65 (1992). The rationale, for such a holding is two-fold. One rationale is that

allowing flight alone to justify an investigative stop would undercut the very values Terry sought to safeguard. Terry is based in part upon-the proposition that the right to freedom from arbitrary governmental intrusion is as valuable on the street as it is in the home. Thus, while a police officer does not violate the Fourth Amendment by approaching an individual in a public place and asking if the person will answer some questions, neither is the person under any obligation to answer. The person may decline to listen to the questions at all and simply go on his or her way. If the option to “move on” is chosen, the person “may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.”

Id. at 363 (quoting Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983)).

The other rationale is that
an intense desire to avoid contact with the police [is not] necessarily indicative of a guilty conscience. Fear or dislike of authority, distaste for police officers based upon past experience, exaggerated fears of police brutality or harassment, and fear of unjust arrest are all legitimate motivations for avoiding the police.

Id. at 364.

For flight to constitute grounds for suspicion, the circumstances surrounding the suspect’s efforts to avoid the police must be such as to allow a rational conclusion that flight indicated a consciousness of guilt. Smith v. United States, 558 A.2d 312, 316 (D.C.1989). Such a conclusion can only be drawn if there is evidence permitting a reasonable inference that (1) the suspect knew the police were present and (2) the police believed that the suspect was aware of police presence. Id. at 316-17. Thus, the key is that the relationship between the police presence and the suspect’s flight was causal rather than coincidental. See United States v. Amuny, 767 F.2d 1113, 1124 (5th Cir.1985) (“[I]f a police officer identifies himself while approaching a suspect and the suspect flees, the suspect’s conduct suggests that he knowingly seeks to evade questioning or capture.”); see also United States v. Jones, 619 F.2d 494, 498 (5th Cir.1980). As the court in Jones appropriately reasoned:

Jones’s evasive actions and flight from two strange men riding in an unmarked car and exhibiting no indicia of lawful authority were only natural reactions to the circumstances. While a person’s flight from law enforcement officers may be a fact used to support an officer’s reasonable suspicion that criminal activity is afoot, here Deputy Herrington had no reason to suspect that Jones was consciously trying to evade a law enforcement officer. Jones’s comment to Harrington about trying to avoid contact with the police plainly cannot serve as one of the circumstantial facts from which the presence of reasonable suspicion is to be determined. If, in truth, that was Jones’s state of mind during the chase that led to his arrest, it was never communicated to Herrington, and Herrington, being in plain clothes and not having identified himself, could not reasonably have concluded that Jones knew that he was being pursued by a policeman. The initial stop was illegal. ...

619 F.2d at 498 (citations omitted).

In Wardlow, the United States Supreme Court addressed the issue of flight in the context of a Terry stop. A four-car caravan converged on an area in Chicago known for heavy narcotics dealing to investigate drug transactions. Wardlow, 528 U.S. at 121, 120 S.Ct. at 674, 145 L.Ed.2d at 574. A police officer in the last car of the caravan saw the defendant look in the officer’s direction and then run away. Id. at 121, 120 S.Ct. at 674-75, 145 L.Ed.2d at 575. The defendant ran through a gangway and an alley. Id. at 122, 120 S.Ct. at 675, 145 L.Ed.2d at 575. Eventually, the police cornered him on a street whereupon they stopped and frisked him. Id. During the frisk, the police discovered a handgun in a bag the defendant was carrying. Id. The trial court denied the defendant’s motion to suppress the handgun, and eventually the defendant was convicted of unlawful use of a weapon by a felon. Id. However, the appellate court and the state supreme court concluded the police acted without reasonable suspicion. Id. In a 5-4 decision, the United States Supreme Court concluded otherwise. Id. at 123, 120 S.Ct. at 675, 145 L.Ed.2d at 575.

The Court first noted that the states were split on whether unprovoked flight alone is sufficient grounds to constitute reasonable suspicion. Id. at 123 n. 1, 120 S.Ct. at 675 n. 1, 145 L.Ed.2d at 575 n. 1. The State of Illinois argued for a “bright-line” rule authorizing the temporary detention of anyone who flees at the mere sight of a police officer. Id. at 126, 120 S.Ct. at 677, 145 L.Ed.2d at 578 (Stevens, J., dissenting). Rather than accepting the State’s argument of a per se rule, the Court concluded that the location of the suspect — in a high-crime area — together with his flight collectively amounted to reasonable suspicion to justify the police “in suspecting that Wardlow was involved in criminal activity, and, therefore in investigating further.” Id. at 125, 120 S.Ct. at 676, 145 L.Ed.2d at 577.

In the course of its discussion, the Court acknowledged that an “individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Id. at 124, 120 S.Ct. at 676, 145 L.Ed.2d at 576. On the other hand, the Court recognized “the fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis.” Id. (citation omitted). The Court then noted that in this case the officer’s suspicion was based on moré than the suspect’s presence in “an area of heavy narcotics trafficking.” Id. It was also based on Wardlow’s “unprovoked flight upon noticing the police.” Id. (emphasis added). On this point, the Court pointed to previous cases in which it recognized that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Id. It then stated that Wardlow’s conduct,

[h]eadlong flight — whenever it occurs— is the consummate act of evasion:- It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.

Id. at 124-25, 120 S.Ct. at 676, 145 L.Ed.2d at 576-77.

The Court considered its discussion about flight as consistent with its prior holding in Royer. In that case, the Court held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business, without such refusal furnishing objective justification for a detention or seizure. Id. at 125, 120 S.Ct. at 676, 145 L.Ed.2d at 577 (citing Royer, 460 U.S. at 498, 103 S.Ct. at 1324, 75 L.Ed.2d at 236). Explaining the consistency, the Court stated:.

But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his-business or to stay put and remain silent in the face of police questioning.

Id.

Responding to Wardlow’s contention that “there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity,” the Court agreed but noted that this fact

does not establish a violation of the Fourth Amendment. Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation ... but it also suggested [planning of illegal activity], Terry recognized that the officers could detain the individuals to resolve the ambiguity.

Id. at 125, 120 S.Ct. at 677, 145 L.Ed.2d at 577; see also Arvizu, 534 U.S. at 277, 122 S.Ct. at 753, 151 L.Ed.2d at 752 (determination that reasonable suspicion for an investigatory stop exists need not rule out the possibility of innocent conduct; a number of factors that could be considered innocent could collectively amount to reasonable suspicion); United States v. Gordon, 231 F.3d 750, 754 (11th Cir.2000) (“A reasonable suspicion of criminal activity may be formed by observing exclusively legal activity.”).

Other suspicious conduct that courts have considered pertinent in determining whether an investigatory stop was justified includes a driver taking evasive action upon being followed by a marked police car, see State v. Petrick, 527 N.W.2d 87, 89 (Minn.1995), and a driver jumping from a car and running when police vehicle was close behind, see United States v. Wilson, 2 F.3d 226, 231 (7th Cir.1993).

Time of day is yet another factor that courts properly consider together with other suspicious circumstances in determining whether there are grounds for an investigatory stop. LaFave § 9.4(f), at 186-87; see also United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993) (“The lateness of the hour is another fact that may raise the level of suspicion.”); Richardson, 501 N.W.2d at 496 (holding there were sufficient grounds for investigatory stop where, among other suspicious circumstances, deputy sheriff in a marked patrol car observed a ear parked next to a chain link fence in a nonresidential area where there were no legitimate attractions at 12:40 a.m. when all surrounding businesses were closed; deputy knew this area had frequently been burglarized; deputy observed what he considered to be deliberative furtive actions when the defendant pulled out just as the officer completed his U-turn and began approaching the defendant); State v. Donnell, 239 N.W.2d 575, 578 (Iowa 1976) (sufficient grounds for investigatory stop where an unfamiliar van which could be used to transport furniture was observed repeatedly driving slowly in small town that had suffered a rash of burglaries, and observation was at 2 a.m., “a time when most persons in a residential area would be asleep”); Commonwealth v. Stratton, 231 Pa.Super.Ct. 91, 331 A.2d 741, 742 (1974) (facts justifying investigatory stop included defendant’s presence at 12:08 a.m. in doorway of store that was closed and his leaving quickly at sight of approaching police officer).

The fact that a pursuing police officer does not have reasonable suspicions concerning every occupant of the vehicle being pursued does not render the investigatory stop invalid. United States v. Martinez, 808 F.2d 1050, 1054 (5th Cir.1987); People v. H.J., 931 P.2d 1177, 1181 (Colo.1997) (“While the stopping of the vehicle in a practical sense impacts all of the occupants, the officer need not initially have a reasonable suspicion as to all occupants.”). On this point, the court in H.J. reasoned:

Occupants of a car differ from, for example customers in a store or passengers on a public bus. Occupants of a private vehicle are [traveling] together by choice and thus may be assumed to have some personal or business association with one another. Knowledge or suspicion that one of the occupants has been involved in criminal activity occurring within the car, or involving the car itself, serves as a basis for a reasonable suspicion that the other occupants may be participants in that activity.

Id. at 1182; see also United States v. Silva, 957 F.2d 157, 161 (5th Cir.1992) (“We agree ... that a suspect’s companionship with or propinquity to an individual independently suspected of criminal activity is a factor to be considered in assessing the reasonableness of a seizure.”); Lewis, 504 S.E.2d at 734 (investigatory stop justified as to driver on following facts: defendant and male passenger in vehicle had just exited abandoned, unlit development known for drug trafficking, late at night; driver tried to evade approaching police vehicle; defendant’s vehicle had New Jersey license plates; defendant stopped in front of known drug house; as police were pulling in behind defendant’s vehicle, police activated their vehicle’s blue light and passenger at same time jumped out and walked away into the yard, distancing himself from the police).

V. Analysis.

With these principles in mind, we turn to the record in this case. We must determine whether there were specific and ar-ticulable facts, which taken together with rational inferences from those facts afforded Officer Johnson reasonable suspicion that at the time of the stop a substantial possibility existed that criminal conduct had occurred, was occurring, or was about to occur. In making that determination, we consider the circumstances under which the stop was made in light of the totality of the circumstances confronting Officer Johnson, including all information available to the officer at the time he made the decision to stop. We view those circumstances through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.

The case is close because the record does not indicate that Kreps was violating any traffic laws or was stopped for that purpose. Additionally, there was no evidence of recent criminal activity in the area, and no evidence that Kreps was in a high-crime area. Nevertheless, we think the following combined factors afforded Officer Johnson reasonable suspicion to believe that criminal conduct was “afoot” at the time of the stop.

The officer testified he first saw Kreps’ vehicle at 2:30 a.m. — normally a time when most people would be asleep. There was no traffic on the street, prompting the officer to turn his vehicle around to “check the vehicle out.” From the evidence we can reasonably infer the officer was in a marked ear. We note there was a curfew in Carter Lake that prohibited individuals under eighteen from being out past 11 p.m. — a circumstance that would lead a reasonable police officer to suspect that persons in the vehicle he was following might be violating the curfew law.

As the officer caught up to the vehicle, it sped up. The officer continued to follow, at which point the vehicle sped up even more. At this point, it appeared to the officer that the vehicle was attempting to lose him in sort of a cat-and-mouse game and he had a difficult time catching up to it. At times, the vehicle was turning corners “relatively faster than normal traffic does.” Eventually, the vehicle made a complete circle. All of these factors smack of evasive action and would support a reasonable inference that would allow a reasonable police officer to believe that the occupants were aware of a police vehicle following them. Although these facts do not in themselves suggest reasonable suspicion to support an investigatory stop, there is more.

About fifty yards from the point where the vehicle eventually pulled over to the curb and stopped, the passenger exited the vehicle while it was still moving and ran from the vehicle in between houses. At the point where the vehicle stopped, the officer activated his red lights.

Certainly, the passenger’s action could be described as headlong flight — “the consummate act of evasion” — provoked by the presence of a police vehicle and therefore suggestive of some wrongdoing. To us the act of the passenger is the “clincher.” Adding this to all that went on before, we can truly say that the possibility of criminal conduct was strong enough that we would be critical of Officer Johnson had he let the event pass without investigation.

The fact that it was the passenger rather than the driver who fled does not change our conclusion. As the foregoing cited authority suggests, the fact that Officer Johnson did not have reasonable suspicion concerning every occupant of the vehicle he was following does not render his investigatory stop invalid. Because Officer Johnson had reason to suspect that the passenger was involved in criminal activity occurring within the car, or involving the car itself, such fact serves as a basis for a reasonable suspicion that the driver— Kreps — may have been a participant in that activity. At this point, the Fourth Amendment did not require Officer Johnson to merely “shrug his shoulders” and let criminal conduct occur or a criminal to escape. He was allowed to take the intermediate course — stop, investigate, and resolve the ambiguity.

Because Officer Johnson had reasonable grounds to stop Kreps’ vehicle, the officer was in a place he had a right to be when he smelled the odor of alcohol coming from Kreps’ vehicle and when he noticed Kreps’ condition, all of which triggered the subsequent events. See Donnell, 239 N.W.2d at 577 (“A vehicle investigatory stop complying with the Terry standards may include observing anything to be seen from outside the vehicle.”).

VI. Disposition.

In sum, we conclude Officer Johnson had reasonable cause to stop Kreps’ vehicle. We therefore vacate the court of appeals’ decision and reverse the district court judgment to the contrary. We remand for further proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Curtis A. BELL, Respondent.
    No. 02-0651.
    Supreme Court of Iowa.
    Sept. 5, 2002.
    Rehearing Denied Sept. 26, 2002.

      Norman Bastemeyer and Charles Harrington, Des Moines, for complainant.
    Jane Rosien, Winterset, for respondent.
   TERNUS, Justice.

This attorney disciplinary proceeding involves the conduct of attorney Curtis A. Bell in his role as treasurer of the Iowa Intellectual Property Law Association. The Iowa Supreme Court Grievance Commission found that Bell had made two withdrawals from the Association’s account, totaling $11,000.00, and had placed these funds in his personal account for his individual use. Finding these actions violated Bell’s ethical obligations, the Commission recommends Bell’s license to practice law be suspended for five years.

We review de novo the record made before the Commission and decide the matter, taking into consideration the factual findings and disciplinary recommendation made by the Commission. Comm, on Prof'l Ethics & Conduct v. Shepler, 519 N.W.2d 92, 93 (Iowa 1994). While we agree with the factual findings made by the Commission in this case, as well as its conclusion that Bell’s conduct violated our disciplinary rules, we respectfully differ in our assessment of the appropriate sanction. We conclude Bell’s misconduct demonstrates his unfitness to continue in this profession and, accordingly, we revoke his license to practice law in this state.

I. Factual Findings.

We find the following facts. Bell was admitted to the Iowa bar in 1992. Since then, he has engaged in the private practice of law, primarily in the field of patent law.

In 1995, Bell became the treasurer of the Iowa Intellectual Property Law Association, a not-for-profit organization formed to promote intellectual property in Iowa. The Association holds an annual fall seminar, which is the primary source of income for the organization. Bell, as treasurer, was responsible for maintaining the Association’s funds.

Sometime in the latter part of 1998, Bell wrote a $2000 check on the Association’s account made payable to himself. In January 1999 he deposited this check in his personal bank account. In April 1999 Bell issued a second check to himself on the Association’s account, this time in the amount of $9000. This check was also deposited in Bell’s personal checking account and was used to pay Bell’s 1998 income taxes. Both withdrawals from the Association’s account were made without the knowledge or consent of the Association’s officers or members. In addition, Bell’s written and oral reports to the organization in his capacity as treasurer did not disclose these transactions.

Prior to the fall 2000 seminar, Bell’s secretary informed the Association of his April 1999 withdrawal of Association funds and his deposit of those moneys into his personal account. The Association president, Herbert Jervis, and a board member then met with Bell. When confronted with a copy of the $9000 check, Bell admitted that these funds were not in an Association account. Bell did not, however, reveal his initial $2000 withdrawal.

After this meeting, on October 4, 2000, Bell opened a savings account in the Association’s name and deposited $11,310.69 into the account. He testified this sum represented the $11,000 he had taken from the Association’s checking account with interest. Bell subsequently wrote to Jervis, informing Jervis that the missing funds had been returned to the Association. Bell then resigned from his position as treasurer.

Later, the Association’s new president, Jeffrey Harty, met with Bell. Bell was candid at this meeting about what had happened and admitted he made a mistake by taking an “inappropriate loan” from the Association. Bell told Harty he had always intended to put the funds in an interest-bearing account in the name of the Association, but through procrastination had never accomplished that objéctive.

Bell subsequently spoke with Harty by phone and told Harty that he — Bell—had consulted an attorney as to whether or not his conduct should be reported as an ethical violation. Bell informed Harty that because he had no intent to deprive the Association of its funds, it was not necessary to report the matter to the Iowa Supreme Court Board of Professional Ethics and Conduct. When the Association board learned that Bell did not intend to inform the Ethics Board of his actions, Harty, on behalf of the Association, contacted the disciplinary authorities.

II. Disciplinary Proceedings.

The Ethics Board filed a complaint with the Grievance Commission alleging that Bell had misappropriated and converted funds belonging to the Association. The Board asserted this conduct violated the Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(1), (3), (4), and (6), which provides:

(A) A lawyer shall not:
(1)Violate a disciplinary rule.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(6) Engage in any other conduct that adversely reflects on the fitness to practice law.

After a hearing at which Bell, Harty, and others testified, the Commission concluded Bell had committed theft by misappropriation as defined in Iowa Code section 714.1(2) (2001), which states:

A person commits theft when the person does any of the following:
2. Misappropriates property which the person has in trust, or property of another which the person has in the person’s possession or control, whether such possession or control is lawful or unlawful, by using or disposing of it in a manner which is inconsistent with or a denial of the trust or of the owner’s rights in such property....

The Commission concluded that Bell’s misappropriation of Association funds violated DR 1-102(A)(3) (illegal conduct involving moral turpitude) and (4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and reflected adversely on his fitness to practice law in violation of DR 1-102(A)(6). The Commission also noted that Bell’s conduct was prejudicial to the administration of justice, a violation of DR 1-102(A)(5).

III. Ethical Violations.

The Ethics Board must establish the .respondent’s violations of the code of professional responsibility by a convincing preponderance of the evidence. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818 (Iowa 2001). We conclude the Board has satisfied this burden.

Having reviewed the record in this case, we concur in the Grievance Commission’s finding that Bell misappropriated Association funds. Bell took money of another under his control and used it in a manner inconsistent with the owner’s rights. Although Bell argues he always intended to place the money he took in an interest-bearing account in the Association’s name, his professed lack of intent to deprive the Association of its moneys is no defense to the crime of misappropriation. See State v. Ludvigson, 482 N.W.2d 419, 423 (Iowa 1992).

We agree with the Commission that Bell’s conversion of the Association’s funds to his personal benefit -violates DR 1-102(A)(3) because he engaged in “illegal conduct involving moral turpitude.” See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Schatz, 595 N.W.2d 794, 795-96 (Iowa 1999) (holding attorney’s violation of Iowa Code section 714.1(2) (1997) established a violation of DR 1-102(A)(3)); see also Comm. on Prof'l Ethics & Conduct v. Hall, 463 N.W.2d 30, 33, 35 (Iowa 1990) (holding respondent’s violation of Iowa Code section 714.1(3) (1989) constituted a violation of DR 1-102(A)(3) even though “respondent was not charged or convicted of a crime”); Comm, on Prof'l Ethics & Conduct v. Pappas, 313 N.W.2d 532, 534 (Iowa 1981) (holding conversion of funds held as a fiduciary in violation of Iowa Code section 714.1 was a violation of DR 1 — 102(A)(3)). Bell’s actions also violated DR 1-102(A)(4), which prohibits “conduct involving dishonesty, fraud, deceit, or misrepresentation.” See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Leon, 602 N.W.2d 336, 338 (Iowa 1999) (misappropriation of client trust funds); Hall, 463 N.W.2d at 33 (theft by deception). Finally, we agree with the Commission’s conclusion that Bell violated DR 1-102(A)(6) since his misappropriation clearly reflects adversely on his character and, hence, his fitness to practice law. See Schatz, 595 N.W.2d at 796 (embezzlement of law firm funds); Pappas, 313 N.W.2d at 534 (conversion of client and fiduciary funds). We now consider the appropriate discipline.

IV. Discipline.

The appropriate sanction in a particular case depends upon several factors that reflect the broad purpose of our disciplinary system. The disciplinary process is intended to protect not only the public, but also our system of justice. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 684 (Iowa 2001). Therefore, we consider the nature and extent of the respondent’s ethical violations not only to determine the respondent’s fitness to practice law, but also to assess the need to deter other lawyers from similar misconduct. Id.; Adams, 623 N.W.2d at 818. Only by ensuring that such conduct does not become commonplace or acceptable can we maintain the reputation of the bar and safeguard the integrity of our system of justice and the public’s confidence in it. See Mulford, 625 N.W.2d at 684. Because “[sanctions must be tailored to the facts of each case,” we also consider any mitigating and aggravating circumstances. Id.

The nature of Bell’s ethical violations is very serious indeed. In fact, we have stated, “There is no place in our profession for lawyers who convert funds entrusted to them. It is almost axiomatic that we revoke licenses of lawyers who do so.” Comm, on Profl Ethics & Conduct v. Ottesen, 525 N.W.2d 865, 866 (Iowa 1994); accord Leon, 602 N.W.2d at 338 (noting that “misappropriation of client funds routinely demands revocation”). The fact that the misappropriation here did not involve client funds does not diminish the seriousness of the violation. As this court said in Schatz, our obligation to protect the public from theft and deceit “is no less important when the theft and deceit [do] not directly involve client funds.” 595 N.W.2d at 796. Nor is the transgression any less grave because Bell was not acting in his capacity as a lawyer. See Comm. on Prof'l Ethics & Conduct v. Connolly, 476 N.W.2d 41, 42 (Iowa 1991) (“The committee was not required to prove Connolly was acting as a lawyer at the time of his misconduct; lawyers may be in violation of their professional responsibilities when conducting other business transactions or ventures.”); Hall, 463 N.W.2d at 35 (stating “the committee need not prove respondent was acting as a lawyer at the time of the alleged misconduct”). Clearly, in the absence of mitigating factors, revocation can be the anticipated discipline for lawyers who com vert monies entrusted to them.

Bell argues there are mitigating circumstances present here that warrant a relaxation of the typical discipline. He asserts his alleged plan to replace the funds he took from the Association’s checking account is a mitigating factor, but we disagree. Bell’s intent in this regard was no more than a vague and abstract thought that at some point in the future he would replace the funds he had converted. The conventional wisdom, “actions speak louder than words,” is appropriate. Bell did not repay one dollar of his unauthorized “loans” until he was caught, despite the fact he had more than a year to do so. Bell does not claim he lacked the financial means to make repayment; in fact, upon the Association’s discovery of Bell’s theft, he quickly returned the amounts he had taken. Bell’s excuse for his tardy restitution was that the press of other matters took priority. We think if Bell had truly understood the gravity of his actions and had genuinely intended to replace the Association’s funds, he would have done so long before the discovery of his confiscation. Consequently, we give no weight to Bell’s belated assertion that he always intended to make repayment.

The other circumstance upon which Bell relies to mitigate the sanction in this case is his cooperation with the investigation conducted by the Association and, later, by the Ethics Board. An attorney’s cooperation with an ethics investigation is expected and required. A failure to cooperate is in itself an ethical violation. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Gonduct v. Naylor, 623 N.W.2d 814, 815 (Iowa 2001); Connolly, 476 N.W.2d at 42. Thus, while Bell’s performance of his ethical obligation in this regard is good, it is not sufficient to avoid revocation if such discipline is otherwise warranted.

Despite the absence of significant mitigating circumstances, we have carefully considered the Commission’s recommendation of suspension. Such an outcome is not without precedent, as on rare occasions in the past, we have spared an attorney the ultimate sanction of revocation even though the lawyer has misappropriated funds. E.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Allen, 586 N.W.2d 383, 391 (Iowa 1998) (one-year suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hansel, 558 N.W.2d 186, 192 (Iowa 1997) (three-year suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gottschalk, 553 N.W.2d 322, 325 (Iowa 1996) (one-year suspension); Comm, on Prof'l Ethics & Conduct v. Harris, 524 N.W.2d 179, 180 (Iowa 1994) (three-year suspension); Comm, on Prof'l Ethics & Conduct v. Rauch, 486 N.W.2d 39, 40 (Iowa 1992) (one-year suspension). We find these cases distinguishable from the present matter.

In Allen, the respondent lawyer served as the conservator for his Aunt Louise, who was nearly ninety years old. 586 N.W.2d at 384. With the exception of some specific bequests, Allen and his sister were the sole beneficiaries under Louise’s will. Id. at 385. After Louise passed away, Allen filed a final report in the conserva-torship showing he had made several disbursements, including fee payments, from the conservatorship to himself without pri- or court approval. Id. Although Allen lacked court approval, Allen’s sister was aware of these payments and had no objection to them. Id. at 386. In addition, Louise’s guardian ad litem had no objection to the disbursements, concluding they did not affect Louise’s care or well-being and were consistent with her wishes as expressed in her will. Id. In choosing to suspend Allen’s license, we made the following observations:

The facts here are unique. Unlike most cases involving conversion of funds, Allen made no attempt to cover up his actions. He accounted for all expenditures in the annual report and in the final report. Had Allen secured waivers of accounting from all the interested parties, this matter may never have seen the light of day. To his credit, Allen chose not to pursue this course of action. The irony in this case is that without the conservatorship, Louise might have bailed Allen out of his financial crisis.

Id. at 390.

A somewhat similar situation existed in Rauch, where the respondent served as the executor for his uncle’s estate and was the residuary beneficiary as well. 486 N.W.2d at 39. In that case, the respondent delayed funding a testamentary trust for his son that was established in his uncle’s will. Id. Instead, he used the $5000 gift for his personal needs. Id. Pri- or to using the funds, respondent had obtained the consent of the child’s mother, his former wife, and he ultimately repaid the money and funded the trust. Id. We agreed with the Commission that “because respondent was himself the residuary beneficiary of the estate and [had] secured permission of the child’s guardian to delay funding the trust, the violation did not warrant the extreme sanction of disbarment.” Id. at 40.

In two cases in which we opted for suspension rather then revocation, the attorney had not taken the misappropriated funds for his own use. In Harris, the attorney wrote a check on his trust account to a client who did not have enough funds in the trust account to cover the check. 524 N.W.2d at 180. This deficiency resulted in a conversion of funds— $2330 — belonging to other clients. Id. We concluded the fact respondent was “not charged with obtaining funds for himself ... militate[d] in favor of a lighter sanction” than disbarment. Id. at 181.

Similarly, in Hansel, the evidence fell short “of establishing that [respondent] took client money for his own use.” 558 N.W.2d at 192. Although the court also found the respondent had used proceeds from the sale of collateral to pay farm expenses and debt rather than applying the proceeds to his secured operating loan, the court disagreed as to whether this conduct violated DR 1 — 102(A)(3). Id. at 192-93 (Neuman, J., concurring in part and dissenting in part). The court rejected the Commission’s recommendation for a three-month suspension, and instead imposed a three-year suspension. Id. at 192.

Finally, in Gottschalk, we chose to suspend an attorney’s license rather than disbar him for converting $1000 in client trust funds. 553 N.W.2d at 325. In that case, the respondent took $1000 from his trust account to pay staff wages and office expenses. Id. at 323. Although he maintained there was more than $1000 in earned probate fees in the trust account at the time of his withdrawal, he had no court order authorizing the payment of these fees. Id. at 324. Slightly more than four months after making the inappropriate withdrawal and before anyone had discovered his misconduct, the respondent repaid the $1000 he had taken. Id. Under these circumstances, we followed the Commission’s recommendation of leniency. Id. at 325.

As noted above, we think these cases are distinguishable from the situation before us. Here, Bell had absolutely no claim of entitlement to or expectation of receiving any of the funds held in the Association’s checking account. Nor did he have the consent of anyone in a position of authority with the Association to make his withdrawals. Plain and simple, he stole someone else’s money, not once, but twice, and then concealed what he had done. See Leon, 602 N.W.2d at 339 (finding Harris (three-year suspension) distinguishable and imposing revocation, in part because attorney misappropriated funds on more than one occasion and in part because “he lied to further the cover-up”); cf. Comm, on Prof'l Ethics & Conduct v. Silver, 395 N.W.2d 877, 879 (1986) (revoking respondent’s license for single incident of conversion).

In addition, Bell’s subsequent conduct indicates he felt no urgency to rectify his mistake, a revealing reflection of his lack of sensitivity to his ethical duty. Although he claims he was busy with other matters, the pressures of a law practice do not excuse Bell’s conduct. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Meats, 569 N.W.2d 132, 134 (Iowa 1997). The fact that other matters took precedence over his ethical obligation shows a troubling lack of judgment on Bell’s part in setting priorities.

Bell’s inadequate understanding of the nature and extent of his ethical responsibilities is further highlighted by his continued failure to appreciate the gravity of his actions even after they were discovered. Despite time to reflect on what had happened, he persisted in believing he had committed no reportable ethical infraction. Although Bell later testified before the Commission that what he did was “inappropriate,” “very wrong,” and reflected adversely on his fitness to practice law, he continued to minimize the wrongfulness of his actions, taking the position in the disciplinary proceedings that his conduct did not violate DR 1-102(A)(3) (“illegal conduct involving moral turpitude”) or DR 1-102(A)(4) (“conduct involving dishonesty, fraud, deceit, or misrepresentation”). We find Bell’s failure to appreciate the wrongfulness of his actions to be an aggravating circumstance. See Hall, 463 N.W.2d at 36 (holding that attorney’s belief “that he really did nothing wrong” to be an aggravating factor supporting revocation).

In summary, we conclude revocation is appropriate. We are fully aware this proceeding involves Bell’s first ethical violation. Nevertheless, in view of Bell’s willful and knowing misappropriation of funds to his personal use and the aggravating circumstances previously noted, disbarment is warranted. The license of Curtis A. Bell to practice law in this state is revoked. Costs are taxed to Bell. See Iowa Ct. R. 35.25(1).

LICENSE REVOKED.

      . Bell does not claim that his actual repayment of the Association’s funds after his theft was discovered is in any way a mitigating factor and, indeed, it is not. We have consistently held that repayment of misappropriated funds provides "no defense or mitigation to prevent revocation.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Allen, 586 N.W.2d 383, 390 (Iowa 1998); accord Comm, on Prof'l Ethics & Conduct v. Tullar, 466 N.W.2d 912, 913 (Iowa 1991) (revoking respondent’s license despite his reimbursement of stolen funds); Comm, on Prof'l Ethics & Conduct v. Silver, 395 N.W.2d 877, 878-79 (Iowa 1986) (revoking attorney’s license even though he had replaced stolen funds with interest); Pappas, 313 N.W.2d at 533-34 (revoking respondent's license even though he had made restitution).

      . We have also shown leniency when the theft is accomplished through writing insufficient funds checks, at least when the theft is a misdemeanor. E.g., Comm. on Prof'l Ethics & Conduct v. Cody, 412 N.W.2d 637, 639, 641 (Iowa 1987) (imposing two-and-one-half-year suspension on attorney convicted of two counts of third-degree theft, aggravated misdemeanors, based on writing bad checks to pay for supplies in business venture). Obviously, that fact pattern is not present here.


author: PER CURIAM.

text:
    2002 ND 124
    In the Matter of the PETITION TO CHANGE THE DESIGNATION OF EITHER JUDGESHIP NO. 2 OR NO. 6 FROM VALLEY CITY IN BARNES COUNTY TO JAMESTOWN IN STUTSMAN COUNTY.
    No. 20020057.
    Supreme Court of North Dakota.
    Aug. 2, 2002.
   PER CURIAM.

[¶ 1] On March 1, 2002, Randall L. Hoffman and Dennis Dockter, both of Jamestown, North Dakota, filed a petition under N.D. Sup.Ct. Admin. R. 7.1 requesting this Court to relocate either Judgeship No. 2 or Judgeship No. 6, both judgeships being chambered in Valley City, to Jamestown, North Dakota.

[¶ 2] Under § 27-05-08, N.D.C.C., this Court has the authority to determine the location of the chambers of this state’s district judges. Since November 7, 1997, this is the fourth occasion for this Court to review the number of judgeships and the locations of judgeships to meet the judicial needs of the Southeast Judicial District. See Judicial Vacancy in the Southeast Judicial District, 1998 ND 25, 574 N.W.2d 199; Judicial Vacancy in the Southeast Judicial District, 1999 ND 69, 592 N.W.2d 556; Judicial Vacancy in the Northwest Judicial District, 2001 ND 199, 637 N.W.2d 3. We take judicial notice of the information contained in those files.

[¶ 3] After notice, a hearing concerning the petition to transfer Judgeship No. 2 or Judgeship No. 6 was held in the Ralph J. Erickstad Courtroom of the Supreme Court on April 28, 2002. This order is based upon a consideration of all information received and reviewed by this Court, the criteria identified in N.D. Sup.Ct. Admin. R. 7.1, § 4, and the need for continued effective judicial services in the Southeast Judicial District.

[¶ 4] We have analyzed information under the criteria identified in N.D. Sup.Ct. Admin. R. 7.1, § 4, factors a., f., i., j., and 1.

a. Annual district court combined civil, criminal and formal juvenile caseload for the most recent three-year period and any discernible caseload trends or patterns.

[¶ 5] Our weighted caseload study allocates the amount of judicial resources (including judges and judicial referees) needed to handle cases after weighting each type of case by the amount of time required to process an average case of that type. The study also allocates time not available for handling cases but which is required from a judge, such as travel time and time for the presiding judge to handle administrative matters. The resulting computation expresses the minimum judicial resources as the judicial Full Time Equivalent (“judicial FTE”), required to meet the needs of the district based upon weighted case filings. When the minimum judicial FTE’s are compared to the judicial FTE’s currently available, the difference is expressed as a positive number, indicating there are more judicial resources available than current weighted case filings require, or a negative number, indicating there are fewer judicial resources than are needed to serve those weighted case filings. Ideally a judicial district as a whole would show a small positive number, indicating judicial resources for that district have a margin for contingencies such as the prolonged illness of a judge and similar circumstances not currently accounted for in the weighted caseload study as well as some margin for error in the structure of the study.

[¶ 6] In Judicial Vacancy in the Northwest Judicial District, 2001 ND 199, 637 N.W.2d 3, we reviewed the weighted caseload statistics for this district. Since the issuance of that order, we have had the results of the weighted caseload study for 2001. Our study shows that the entire Southeast Judicial District has had a shortage of judicial resources.

Judicial FTE Year Weighted Filings Required Total Adjusted Judicial FTE Difference
1997 380,050 6.53 5.88 -0.65
1998 385,679 6.62 5.88 -0.74
1999 390,350 6.70 5.88 -0.82
2000 406,030 6.97 5.88 -1.09
2001 374,380 6.42 5.88 -0.54

[¶ 7] Within the district, when examining counties with judges chambered in the eounty, it is clear that this judicial shortage falls primarily upon Stutsman County, Judicial overages and shortages are designated by county in the chart below.

Year Barnes Dickey Eddy Richland Stutsman
1997 0.76 0.68 0.84 -0.38 -1.09
1998 0.75 0.64 0.82 -0.36 -1.15
1999 0.78 0.64 0.82 -0.37 -1.23
2000 0.84 0.61 0.81 -0.43 -1.15
2001 0.78 0.70 0.81 -0.29 -0.95

[¶ 8] Judicial overage in a chambered county is required to meet the judicial service needs of non-chambered counties as well as other chambered counties within the district. Given the geographical proximity of chambered and non-chambered counties in the district, the judicial overage in Barnes County is most proximate to the judicial shortage in Stutsman County. However, judges chambered in Barnes County also travel to other counties in the district as required.

f Proximity to detention facilities for adults and juveniles.

[¶ 9] Both Barnes County and Stuts-man County have jail facilities. Stutsman County is also the location of the James River Correctional Center, operated by the Prisons Division of the North Dakota Department of Corrections and Rehabilitation. In addition, we note the location of the State Hospital for the Mentally Ill in Stutsman County. To the extent the presence of these institutions makes demand upon our judicial resources, the demand has been reflected in our weighted caseload studies and are indicated in ¶¶ 6 through 8 above. The following graphs indicate actual numbers of filings in certain categories in our weighted caseload study and the weight assigned to that category of cases by our study.

Case Type Case Weight 1997 1998 1999 2000 2001
Stutsman County:
Felonies 126.56 95 105 134 130 117
Misdemeanors 28.70 ' 1175 1212 1309 1274 854
Probate/Mental Health 45.96 379 298 262 318 339
Barnes County:
Felonies 126.56 56 49 50 65 60
Misdemeanors 28.70 601 749 725 667 674
Probate/Mental Health 45.96 206 103 98 85 91

i Impact of any change of chamber on travel time for judges, court personnel, attorneys, and litigants.

[¶ 10] Under our weighted caseload study, the Southeast Judicial District is a high travel district. Our study allocates 12,300 minutes per year to each judge in the district for travel purposes. If either of the two judgeships were transferred to Jamestown, the total mileage chargeable to the state for travel purposes would likely be reduced as both Judge Simonson and Judge Paulson now currently travel to Jamestown on a regular basis. Comparing the two judgeships at issue, from July 1, 1999 through June 30, 2001, Judge Paulson has traveled more miles. He has traveled a total of 29,832 miles for an average of 828 miles per month. However, all of this travel is not to Jamestown, but includes travel to all parts of the district to provide judicial services as needed. If we assume that 80% of the average monthly travel expense of Judge Paulson could be eliminated as a result of the transfer of the chambers, this would be a savings of $205 (662 miles x $.31) per month to the judicial system. Even assuming such a relocation, the Southeast Judicial District would remain a high travel district as neither Judge Simonson nor Judge Paulson has averaged the highest or the second highest mileage in the district since July 1999.

[¶ 11] However, the transfer of the judgeship does not eliminate the actual travel as the governing statute, § 27-05-08, N.D.C.C., does not require a judge to live in the city where the chambers are located, but requires the judge to live within the district where the chambers are located. It is understandable that a judge who has lived in a community for several years and whose family has established community ties may not actually move as a result of the redesignation of the chambers. It is less likely that such a move would take place when the distance between the home community and the chamber community is approximately 30 miles, a manageable commuting distance. Therefore, for purposes of our decision, we assume that neither of the sitting judges would move to Jamestown and the actual savings would be in terms of mileage cost to the judicial system rather than a savings of actual travel time to the judge whose chambers have been relocated. While not an inconsiderable factor, we deem the cost savings alone insufficient to involuntarily move the chambers of either judge, both of whom have devoted substantial portions of their professional careers to the judicial needs of the Southeast Judicial District.

j. Population distribution in the judicial district or de facto subdistrict.

[¶ 12] Our prior orders have reviewed the population trends of the Southeast Judicial District. See 2001 ND 199, ¶¶ 8-17, 637 N.W.2d 3. The population of the district has declined from 90,995 in 1990- to 86,767 in 2000 and is projected to decline to 82,040 in 2015. The same sources indicate that Barnes County will experience greater percentage decline in population when compared with Stutsman County. From a population of 22,241 in 1999, reduced to 21,908 in 2000, and projected to decline to 20,762 in 2015, Stutsman County is expected to experience a seven percent decline in 25 years. By comparison, Barnes County is projected to decline from a population of 12,545 in 1990, and 11,775 in 2000, to a population of 10,216 in 2015, or a nineteen percent decline in 25 years. In the ten years between the 1990 census and the 2000 census, Stutsman County has experienced a two percent decline and Barnes County has experienced a six percent decline.

[¶ 13] Despite the fact population concentration impacts on demand for judicial services, we remain mindful of the legislative policy which directs a percentage of chambers to be located in our state’s smaller cities. Section 27-05-08, N.D.C.C., provides: “However, not more than seventy percent of the chambers of the district judges may be located in cities with a population of more than ten thousand.” The North Dakota State Data Center reports the population of Valley City as 6,826 and of Jamestown as 15,527 based on the 2000 census. Currently 64 percent of judicial chambers are located in cities of greater than 10,000. Transfer of this judgeship would result in 67 percent of judicial chambers being located in cities of greater than 10,000. It is apparent there will be reduced flexibility to respond to population shifts and still comply with § 27-05-08, N.D.C.C. At the same time, continuing compliance with the statutory directive will create inefficiencies within the judicial system like the one already experienced in the Southeast Judicial District.

[¶ 14] Factors a. and j. favor granting the petition. Factor f., to the extent it favors relocation, duplicates considerations under factor a. We regard factor i. as less significant because of the possibility that a judge whose chambers were relocated to Jamestown would continue to reside in Valley City under current circumstances.

1. Recommendation of the presiding judge of the judicial district, after consultation with the judges of the judicial district.

[¶ 15] We have said on a previous occasion that we regard the people who provide judicial services in the district as in the best position to understand the need to reallocate the available judicial resources. See Petition to Change Resident Chambers from Watford City to Minot, 2002 ND 54, ¶ 12, 643 N.W.2d 1. In response to the petition, Presiding Judge John T. Paulson appeared at the hearing to testify in opposition to the petition.

[¶ 16] In the hearing on this petition, Presiding Judge Paulson referred to the substantial upheavals in the provision of judicial services in this district which resulted from the death of Judge James A. Wright and the resignation of Judge Randall Hoffman, who is petitioner in this matter, which events required two of the previous reviews referred to in ¶ 2. Judge Paulson acknowledged the demands of responding to those changes have been absorbing and that insufficient time has been allocated to other administrative changes that may improve the efficiency of providing services to the district. Judge Paulson acknowledged the district could benefit from additional help in revising administrative practices.

[¶ 17] Judge Paulson indicated that a relocation of chambers would preferably be occasioned upon the vacancy of a judgeship. Such a position is consistent with the preferred method of changing the designations of district judgeships. See Matter of the Consultations Under Section 27-05-02.1, 1999 ND 226, ¶ 38, 603 N.W.2d 57. However, the requirement of adequate judicial services must be the primary consideration of the court’s exercise of its authority to designate the location of judgeships under § 27-05-02.1, N.D.C.C.

[¶ 18] Therefore, giving substantial weight to the opposition of the presiding judge, we decline to grant the petition to change the chambers of a judgeship from Valley City to Jamestown at this time. In doing so, we accept the suggestion of Presiding Judge Paulson to assist the district in reviewing administrative practices to alleviate the concerns expressed during this and prior hearings about the efficiency of judicial services in this district. If, after a reasonable opportunity to assess administrative practices and implement any necessary changes, we discern the need to change the chambers of a judgeship within the district, we may revisit the matter under the authority of this Court set forth in § 27-05-08, N.D.C.C. We deny the petition with the intent and confidence that the Honorable John T. Paulson, Presiding Judge of the Southeast Judicial District, together with the judges of the district and their successors, will continue to do their best to provide routine, effective judicial services throughout the district, including Jamestown.

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


text:
    2002 ND 54
    In the Matter of the PETITION TO CHANGE THE RESIDENT CHAMBERS FOR DISTRICT JUDGESHIP NO. 8, Northwest Judicial District, from Watford City to Minot.
    No. 20020048.
    Supreme Court of North Dakota.
    Aug. 5, 2002.
   ORDER AMENDED.

PER CURIAM.

[¶ 16] Because of unanticipated problems in effecting the transfer of Judgeship No. 8 from Watford City to Minot, the original order in this matter, Petition to Change Resident Chambers from Watford City Minot, 2002 ND 54, 643 N.W.2d 1 (2002), is amended to provide that the transfer is effective January 1, 2003.

[¶ 17] VANDE WALLE, C.J., and KAPSNER, SANDSTROM and NEUMAN, JJ.

[¶ 18] The Honorable MARY MUEHLEN MARING, Justice, being unavoidably absent, did not participate.


author: MARING, Justice.

text:
    2002 ND 127
    NEW TOWN PUBLIC SCHOOL DISTRICT NO. 1, Plaintiff and Appellant, v. THE STATE BOARD OF PUBLIC SCHOOL EDUCATION OF THE STATE OF NORTH DAKOTA, Defendant and Appellee.
    No. 20020071.
    Supreme Court of North Dakota.
    Aug. 15, 2002.

      Gary R. Thune, Pearce & Durick, Bismarck, for plaintiff and appellant.
    Douglas A. Bahr, Solicitor General, Attorney General’s Office, Bismarck, for defendant and appellee.
   MARING, Justice.

[¶ 1] New Town Public School District No. 1 (“New Town”) appealed from a judgment affirming an order by the State Board of Public School Education (“State Board”) granting a February 2001 petition to annex land from New Town to Stanley Public School District No. 2 (“Stanley”). We conclude the State Board’s findings of fact are supported by a preponderance of the evidence, its conclusions of law are supported by the findings of fact, and its decision is in accordance with the law. We affirm.

I

[¶ 2] On August 9, 2000, the State Board denied a petition, to annex 18.62 sections of land with four school-age children from New Town to Stanley, finding:

the petition for annexation should be denied for the following reason which weighed most importantly to the Board:
1. The taxable valuation per-student of the petitioned property is too high. The petitioned property would provide $18,103 in taxable valuation for the 4 students, 2 of which are age 17. This amount of per-student taxable valuation is high, considering the current per-student taxable valuations of the New Town and Stanley School Districts are $2,714 and $13,924, respectively.

[¶ 3] In February 2001, a second petition was filed to annex 10.95 sections of land with two school-age children from New Town to Stanley. The 10.95 sections of land and two school-age children involved in the February 2001 petition had been part of the previous petition to annex 18.62 sections of land with four school-age children from New Town to Stanley. The Mountrail County School Reorganization Committee denied the February 2001 annexation petition, stating:

the education of the two students listed in the petition will not be affected as they are already enrolled in the Stanley School and busing has no affect, the per student valuation of $22,295 is too high, and the acres of land being taken for the Meiers’ residence to be contiguous with the Stanley School District is far too great.

[¶ 4] The denial of the February 2001 annexation petition was appealed to the State Board. After a hearing, the State Board approved the February 2001 petition, finding that, although the taxable valuation per student for the second petition was $22,295, the $44,589 taxable valuation of the 10.95 sections of petitioned land was less than the $72,412 taxable valuation of the 18.62 sections of land in the first petition. The State Board concluded the taxable valuation for the land in the second petition was reasonable even though the per student taxable valuation was greater, because the second petition’s total financial impact on New Town was less than the first petition. The district court affirmed the State Board’s decision.

II

[¶ 5] The State Board is an administrative agency. Dunseith Pub. Sch. Dist. v. State Bd. of Pub. Sch. Educ., 401 N.W.2d 704, 706 (N.D.1987). See N.D.C.C. § 28-32-01(1). When an administrative agency decision is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency, rather than the decision and findings of the district court. Eckes v. Richland County Soc. Services, 2001 ND 16, ¶ 6, 621 N.W.2d 851. Our review of an agency decision is governed by N.D.C.C. § 28-32-46, which requires us to affirm the agency unless:

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

In reviewing an agency’s findings of fact, we exercise restraint and do not make independent findings of fact or substitute our judgment for that of the agency; rather, we determine only whether a reasoning mind could have reasonably determined the agency’s factual conclusions were supported by the weight of the evidence from the entire record. Schmidt v. Ward County Soc. Services Bd., 2001 ND 169, ¶ 5, 634 N.W.2d 506.

III

[¶ 6] Under N.D.C.C. § 15.1-12-05(4), the State Board must consider the following factors in deciding annexation petitions:

a. The value and amount of property held by each affected school district;
b. The amount of all outstanding bonded and other indebtedness of each affected district;
c. The levies for bonded indebtedness to which the property will be subjected or from which the property will be exempted, as provided for in section 15.1-12-08;
d. The taxable valuation of each affected district and the taxable valuation under the proposed annexation;
e. The size, geographical features, and boundaries of each affected district;
f. The number of students in each affected district;
g. The general population of each affected district;
h. Each school in the district, including its name, location, condition, the grade levels it offers, and the distance that students living in the petitioned area would have to travel to attend school;
i. The location and condition of roads, highways, and natural barriers in each affected district;
j. Conditions affecting the welfare of students residing on the property to be annexed;
k. The boundaries of other governmental entities;
l. The educational needs of communities in each affected district;
m. Potential savings in school district transportation and administrative services;
n. The potential for a reduction in per student valuation disparity between the affected districts;
o. The potential to equalize or increase the educational opportunities for students in each affected district; and
p. All other relevant factors.

[¶ 7] When the State Board receives testimony and documentary evidence concerning the factors listed in N.D.C.C. § 15.1-12-05(4), it “must consider and ‘make specific findings with reference to every one of those factors to which testimony or documentary evidence was directed.’ ” Dunseith Pub. Sch. Dist., 401 N.W.2d at 708 (remanding for specific findings regarding statutory requirements). See also Dunseith Pub. Sch. Dist. v. State Bd. of Pub. Sch. Educ., 437 N.W.2d 825, 830 (N.D.1989) (appeal after remand).

A

[¶ 8] We initially consider New Town’s argument the State Board violated New Town’s constitutional right to due process and a fair hearing and acted arbitrarily and capriciously by granting an annexation petition involving fewer students and less land with a greater per student taxable valuation than the petition denied by the State Board less than ten months earlier.

[¶ 9] Under N.D.C.C. § 15.1-12-05(9), if the State Board denies an annexation petition, another petition involving any of the same property may not be submitted to the appropriate county committee for a three-month period after the State Board’s denial, and a petition involving any of the property in a previous petition may not be considered by the State Board more than twice in a twelve-month period. Here, the February 2001 annexation petition complied with the time requirements of N.D.C.C. § 15.1-12-05(9).

[¶ 10] Moreover, other courts have recognized an administrative agency may reexamine a prior decision, and the agency may depart from a prior decision if it distinguishes, or rationally explains its departure. See Matter of Charles A. Field Delivery Serv., Inc., 66 N.Y.2d 516, 498 N.Y.S.2d 111, 488 N.E.2d 1223, 1226 (1985); Melvindale-Northem Allen Park Fed’n of Teachers v. Melvindale-Northem Allen Park Pub. Sck, 216 Mich.App. 31, 549 N.W.2d 6, 10 (1996). See generally Richard J. Pierce, Jr., Administrative Law Treatise § 11.5 (4th ed.2002). This Court has recognized an analogous principle regarding an agency’s interpretation of a statute. See Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 129 n. 5 (N.D.1987) (stating agency need not use rule-making process to correct erroneous interpretation of statute). Under those authorities and N.D.C.C. § 15.1-12-05(9), to the extent New Town argues the State Board is precluded from deviating from its decision in the first annexation petition, we reject that argument. Rather, we conclude the State Board may deviate from a prior decision if it rationally explains the reason for its departure.

[¶ 11] Here, in denying the first annexation petition, the State Board found:

P. The following are other factors which the Board finds relevant in making its decision:
1. The taxable valuation of the petitioned property is $72,412. There are 4 students, ages 6-17, who will attend school next year in the Stanley School District, who reside on the petitioned property. Thus, the petitioned property will provide $18,103 in taxable valuation for each of the 4 students ($72,412 -T- 4). This amount of per-student taxable valuation is high, considering the current per-student taxable valuations of the New Town and Stanley School Districts are $2,714 and $13,924, respectively.
Two of the 4 students are juniors, who are age 17; thus, in the 2001-2002 .school year there will be only 2 students from the petitioned property who will attend school in the Stanley School District. The petitioned property will provide $86,206 in taxable valuation for each of the remaining 2 students ($72,412 + 2). This amount of per-student taxable valuation is very high, considering the current per-student taxable valuations of the New Town and Stanley School Districts are $2,714 and $13,924, respectively.
2. Approval of this annexation will result in a drop by 3⅞ in the taxable valuation of the New Town School District, which results in a loss of about $13,000 per year; however, the need for local tax dollars is not as critical for the New Town School District since it receives a significant amount of federal funds. These federal funds are either unrestricted in-lieu-of-tax moneys (also called impact aid moneys) to be used as a school district would use tax levies, and restricted moneys which must be used for particular purposes. In the 1998-1999 school year, the New Town School District received $2,278,000 in federal revenue ($1,788,000 of which was in-lieu-of-tax moneys and the balance was restricted moneys), and the Stanley School District received $116,920 in federal revenue. Also, in the 1998-1999 school year, the New Town School District received $550,636 in local revenue (i.e., local property taxes) and the Stanley School District received $924,901 in local revenue.
Since 1992, the New Town School District has had revenues exceed expenditures by approximately $150,000. During the 1998-1999 school year, the expenditures of the Stanley School District exceeded its revenues by $34,521.

The State Board has determined that the petition for annexation should be denied for the following reason which weighed most importantly to the Board:

1.The taxable valuation per-student of the petitioned property is too high. The petitioned property would provide $18,103 in taxable valuation for the 4 students, 2 of which are age 17. This amount of per-student taxable valuation is high, considering the current per-student taxable valuations of the New Town and Stanley School Districts are $2,714 and $13,924, respectively.

[¶ 12] In granting the February 2001 petition, the State Board made specific findings on the applicable criteria under N.D.C.C. § 15.1-12-05(4), and further explained:

The State Board has determined ... the petition for annexation should be approved for the following reasons which weighed most importantly to the Board:
1. Considering parts P.1, P.2, and P.3 of the preceding State Board findings, if this annexation is approved, the total financial impact on either school district is not very significant. There is no Indian land included in the petitioned land area, so the New Town School District’s receipt of federal money will not be reduced. Also, if this annexation is approved, the New Town School District will lose $7,887.79 per year, which constitutes only .15% of its total revenue, and the Stanley School District will gain $9,317.32 per year, which would constitute about .37% of its total revenue.
2. Approval of this annexation will allow the petitioners to vote and run for office in the Stanley School District where their children attend school.
3. Although the State Board denied a similar annexation in the past where the per student taxable valuation of the petitioned property was less than in this annexation (see part P.13 of the preceding State Board findings), the taxable valuation of the petitioned property in this annexation ($44,589 (10.95 sections of land)) is 38.4% less than the taxable valuation of the petitioned property in the previous annexation ($72,412 (18.62 sections of land)). This amount of taxable valuation ($44,589) is reasonable even though the per student taxable valuation of the petitioned property is greater ($22,295). The amount of taxable valuation is reasonable because the total financial impact on the New Town School District is less: the New Town School District will lose only $7,887.79 per year, or .15% of its total revenue.

[¶ 13] The State Board’s decision granting the second annexation petition explained that the petition involved less land and fewer students than the first petition. The State Board’s decision denying the first petition stated that two of the four children residing on the petitioned property were juniors, and after they graduated, the petitioned property would provide $36,206 in per student taxable valuation, which was “very high.” The State Board’s second decision explained because there was no Indian land included in the petitioned area, New Town’s receipt of federal money would not be reduced. The State Board found because there was less land and fewer students involved with the second petition, “the total financial impact on either school district [was] not very significant.” The State Board further explained although the per student taxable valuation was greater in the second petition, the taxable valuation of the land was less than the previous petition and was reasonable because the total financial impact on New Town was less. Those issues involve technical questions regarding school district financing, which are within the State Board’s expertise. We have often said that we give appreciable deference to agency expertise if the subject matter of the agency decision is technical. See Americana Healthcare Ctr. v. North Dakota Dep’t of Human Services, 540 N.W.2d 151, 153 (N.D.1995). That principle is applicable to the State Board’s rationale for granting the February 2001 petition.

[¶ 14] Although New Town argues seven sections of unnecessary land with no school-age children were included in the land annexed to Stanley, the property annexed from New Town to Stanley is contiguous to Stanley. See N.D.C.C. §§ 15.1-12-01(2) and 15.1-12-03. Moreover, a requirement that annexations result in “logical boundaries following a uniform pattern without undue irregularities” is not part of our current annexation law. See In re Annexation of Part of Donnybrook Pub. Sch. Dist., 365 N.W.2d 514, 520 (N.D.1985) (citing N.D.C.C. § 15-53.1-20(5), which precluded approval of reorganization or annexation unless there were “logical boundaries following a uniform pattern without undue irregularities,” but was repealed by 1987 N.D. Sess. Laws ch. 211, § 1, and was not enacted in N.D.C.C. ch. 15.1-12, which was adopted in 1999 N.D. Sess. Laws ch. 196, § 12 and now governs annexation, reorganization, and dissolution); Solen Pub. Sch. Dist. v. State Bd. of Pub. Sch. Educ., 351 N.W.2d 435, 436 (N.D.1984) (same).

[¶ 15] To the extent New Town argues the State Board’s August 9, 2000 decision is inconsistent with its decision on the February 2001 petition, we conclude the State Board rationally explained why it departed from its previous decision. The State Board’s explanation is sufficient to allow us to understand the basis of its decision. See, e.g., Tehven v. Job Serv., 488 N.W.2d 48, 50 (N.D.1992) (stating agency’s findings are adequate if they enable appellate court to understand basis of agency’s decision). To the extent New Town argues the State Board’s decision is not supported by a preponderance of evidence, we exercise restraint and do not make independent findings of fact or substitute our judgment for that of the agency. Rather, under our deferential standard of review, we conclude a reasoning mind could have reasonably determined the State Board’s factual determinations in the second annexation petition were supported by the weight of the evidence. We therefore conclude the State Board’s decision is supported by a preponderance of the evidence. We further conclude the State Board’s conclusions of law are supported by its findings of fact, and its order is in accordance with the law.

IV

[¶ 16] New Town argues the State Board impermissibly discriminated against it by treating it differently than other school districts because it receives federal dollars for its Native American population and Indian lands, thereby endorsing “white flight.”

[¶ 17] In deciding this annexation petition, the State Board was obligated to consider the taxable valuation of the property in New Town, see N.D.C.C. § 15.1— 12-05(4)(d) and (k), including that “[a]bout one-half of the land in the New Town School District is non-taxable Indian land that is part of the Fort Berthold' Indian Reservation.” Moreover, to the extent New Town’s discrimination argument raises a constitutional claim, New Town has not provided any authority, other than a passing reference to the Fourteenth Amendment, to support a constitutional argument. We have said a party making a constitutional claim must provide persuasive authority and reasoning, and that party ‘should bring up his heavy artillery or forego the attack entirely.’ ” Fenske v. Fenske, 542 N.W.2d 98, 100 (N.D.1996) (quoting Southern Valley Grain Dealers v. Board of County Comm’rs, 257 N.W.2d 425, 434 (N.D.1977)). New Town’s conelu-sory assertions about discrimination are insufficient to raise a constitutional claim.

V

[¶ 18] We conclude the State Board’s findings of fact are supported by a preponderance of the evidence, its conclusions of law are supported by its findings of fact, and its decision is in accordance with the law. We therefore affirm the judgment affirming the State Board’s decision.

[¶ 19] Gerald W. Vande Walle, C.J, William A. Neumann, Dale V. Sandstrom, Carol Ronning Kapsner, JJ., concur.