text:
    In the Interest of K.N., Minor Child, Robert J. Phelps, Guardian ad litem, Appellant.
    No. 00-1022.
    Supreme Court of Iowa.
    April 25, 2001.

      Robert J. Phelps, Davenport, guardian ad litem for K.N., appellant.
    Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Gerda Lane, Assistant County Attorney, for appellee-State.
    John E. Molyneaux, Davenport, for K.N.
    Cynthia Z. Taylor and Cristina Frederick of Zamora, Taylor, Clark, Alexander, Woods and Frederick, Davenport, for ap-pellee-parents, T.N. and J.N.
   CADY, Justice.

In this appeal we must decide if the juvenile court may dismiss a child in need of assistance (CINA) action based on the finding that the services offered to the child provided no benefit and that the additional expenditure of public funds and resources would not benefit the child in the future. The guardian ad litem of the child claims the juvenile court utilized inappropriate criteria and abused its authority in dismissing the CIÑA case. We reverse and remand for further proceedings.

I. Background Facts and Proceedings.

K.N. and her sister J.P. were adjudged children in need of assistance in 1997. Since that time, the Department of Human Services (DHS) has provided a variety of services to the children and their parents. The children were removed from their parents’ home at various times and placed in a variety of treatment and placement facilities.

Both the parents and the children have serious substance abuse problems. Sadly, K.N. began using drugs at a very early age. Repeated drug treatment efforts have failed. At times, the children appeared to progress in treatment facilities and other placements, particularly K.N., but they would eventually regress after returning to their parents.

A review hearing was held on April 24, 2000. At the time, K.N.' was fourteen years old and J.P. was seventeen years old. J.P. was in a residential facility and was present at the hearing. K.N., however, had run away from her placement. The DHS believed she was outside of our state’s borders. She was not present at the hearing.

The State recommended residential placement for both J.P. and K.N. J.P.’s attorney, her parents, and her guardian ad litem requested the action against J.P. be dismissed based on her age, lack of progress in response to services, and resistance to further treatment and placement.

KN.’s attorney recommended K.N. be permitted to return to her parents. KN.’s parents and guardian ad litem both agreed with the State that a protective facility was the more appropriate disposition.

The juvenile court dismissed the actions against both J.P. and K.N. It observed that service providers had “expended a tremendous amount of money for very little gain” realized by the children and the parents during the three years of services, and did not believe it was appropriate “to spend any more.” The court also reasoned that the continuation of services was not likely to result in success.

The guardian ad litem filed a Rule 179(b) motion requesting the juvenile court to reconsider its decision to dismiss KN.’s CINA case. The guardian ad litem did not contest the dismissal of J.P.’s CINA case. The guardian ad litem argued that at fourteen years of age, K.N. was too young for the juvenile system to abandon, and that, unlike J.P., K.N. was amenable to services. At the very least, the guardian ad litem asserted, the juvenile court should retain jurisdiction of K.N. simply to protect her.

In denying the motion to reconsider, the juvenile court advanced the same reasons as delineated in its order dismissing J.P. and KN.’s CINA cases. The court again noted the DHS had already expended a considerable amount of monetary and remedial resources on K.N., to little or no avail. Believing these past expenditures had not impacted K.N., the court refused to spend any “further public monies” on K.N., even though K.N. was still “at risk.” The court concluded that “[t]he money and resources are better invested in children and families that we can make a beneficial impact.”

The guardian ad litem appeals. He contends the juvenile court abused its discretion and utilized inappropriate criteria in dismissing K.N.’s CINA case.

II. Scope of Review.

Our review of child in need of assistance proceedings is de novo. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999); In re E.H. III, 578 N.W.2d 243, 248 (Iowa 1998); In re N.C., 551 N.W.2d 872, 872 (Iowa 1996). “We review ‘both the facts and the law, and we adjudicate rights anew.’ ” H.G., 601 N.W.2d at 85 (quoting In re A.M.H, 516 N.W.2d 867, 870 (Iowa 1994) (citation omitted)). Although we give weight to the juvenile court’s factual findings, we are not bound by them. E.H. III, 578 N.W.2d at 248; A.M.H., 516 N.W.2d at 870. As in all juvenile proceedings, our fundamental concern is the best interests of the child. E.H. III, 578 N.W.2d at 248; N.C., 551 N.W.2d at 872.

III. Termination of Dispositional Order.

Iowa Code section 232.103 (1999) governs the termination of a dispositional order in a CINA case prior to its expiration. See In re Guardianship of Murphy, 397 N.W.2d 686, 689 (Iowa 1986); In re H.J.E., 359 N.W.2d 471, 474 (Iowa 1984); In re G.R., 348 N.W.2d 627, 630 (Iowa 1984). The specific section that governs termination and release of a child is section 232.103(4), which states

The court may terminate an order and release the child if the court finds that the purposes of the order have been accomplished and the child is no longer in need of supervision, care or treatment.

Iowa Code § 232.103(4) (emphasis added). Thus, a juvenile court is authorized to terminate a dispositional order only if “the purposes of the [dispositional] order have been accomplished and the child is no longer in need of supervision, care, or treatment.” H.G., 601 N.W.2d at 86 (citation omitted); In re R.G., 450 N.W.2d 823, 825 (Iowa 1990).

In this case, the juvenile court did not make the requisite statutory findings prior to dismissing the case. To the contrary, the reasons articulated by the court for dismissing the action were in direct contravention to the mandates of section 232.103(4). The court essentially admitted the purposes of the original dispositional order had not been accomplished. In addition, in noting K.N. still remained “at risk,” the court recognized K.N. was still in need of supervision, care, and treatment. Furthermore, the court noted that the services it had offered the children kept them safe at times and that the children responded well to placement at times.

Although we have not before considered the authority of the juvenile court to dismiss a CINA petition in the context of this case, we have consistently observed that a juvenile court may not terminate CINA adjudication status unless the purposes of the original dispositional order have been fulfilled and “the child is ‘no longer in need of supervision, care or treatment.’ ” A.B. v. M.B., 569 N.W.2d 103, 107 (Iowa 1997) (citation omitted); see H.G., 601 N.W.2d at 86; R.G., 450 N.W.2d at 825. Under the statutory standard applicable to this case, dismissal was improper. See R.G., 450 N.W.2d at 825; Guardianship of Murphy, 397 N.W.2d at 689.

The State advances two arguments in support of its position urging us to uphold the juvenile court’s decision. First, the State argues section 232.103(4) cannot be applied to this case because K.N. was a runaway at the time of the proceedings and not within the jurisdiction of the juvenile court. Second, the State asserts dismissal was appropriate under the inherent powers of the court because no relief was available until K.N. was found, and a new CINA petition could be filed in the future.

Although K.N. may not have been within the jurisdictional borders of the state at the time of the review hearing, her absence would not deprive the court of its jurisdiction over her person. The law is clear that “once a court obtains jurisdiction over a person and the subject matter of a case, it retains jurisdiction until a final disposition has been made.” H.G., 601 N.W.2d at 86 (citing Jensen v. Jensen, 260 Iowa 371, 377, 147 N.W.2d 612, 616 (1967)).

We recognize courts have some degree of inherent authority to ensure the orderly, efficient, and fair administration of justice. City of Sun Prairie v. Davis, 226 Wis.2d 738, 595 N.W.2d 635, 641 (1999). However, this authority may not necessarily extend to the dismissal of a case. See Motz v. Motz, 207 N.W.2d 580, 581 (Iowa 1973); see also Metz v. Amoco Oil Co., 581 N.W.2d 597, 600-01 (Iowa 1998) (Lavorato, J., dissenting). Moreover, any inherent authority to dismiss a case could not be exercised to circumvent the expressed legislative policies woven into the law. The role of courts is only to interpret statutes, not second-guess the underlying policies. See State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000); Allen v. Iowa Dist. Ct., 582 N.W.2d 506, 509 (Iowa 1998); H & Z Vending v. Iowa Dep’t of Inspections & Appeals, 511 N.W.2d 397, 398 (Iowa 1994). When a statute authorizes the dismissal of an action, the grounds delineated in that statute are controlling. 27 C.J.S. Dismissal and Nonsuit § 49, at 276 (1999).

The legislature provided specific guidelines for construing chapter 232 in enacting the juvenile justice code. In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984); G.R., 348 N.W.2d at 631. Each child within the juvenile court’s jurisdiction must receive “the care, guidance and control that will best serve the child’s welfare and the best interest of the state.” Iowa Code § 232.1 (the rule of construction for chapter 232). The purpose of the juvenile process in general has always been to care for, educate, and train the children adjudged in need of assistance, not to punish them. In re Henderson, 199 N.W.2d 111, 117 (Iowa 1972); see G.R., 348 N.W.2d at 631; State v. Visser, 249 Iowa 763, 764, 88 N.W.2d 925, 926 (1958). Thus, the legislature clearly expressed the underlying policy of chapter 232 to be “[t]he welfare and best interests of the children.” J.R.H., 358 N.W.2d at 317; see H.G., 601 N.W.2d at 87-88; In re Welcher, 243 N.W.2d 841, 843 (Iowa 1976); In re C.D., 509 N.W.2d 509, 511 (Iowa Ct.App.1993). Additionally, once a child is placed outside the home, the policy of the law generally requires that reasonable efforts be made to safely return a child home or to consider permanency. See Iowa Code § 232.102(7), (10).

We have also observed that it is the State’s duty, as parens patriae, to ensure that the aims of the juvenile justice code are applied to each child in need of the code’s assistance. See Welcher, 243 N.W.2d at 843-44. We believe the law unequivocally expresses the policy that no child should be left behind. Nevertheless, the State, as well as the parents, suggest that the policy of the state can be best achieved by permitting courts to dismiss cases which are proceeding on a dead-end path so that the limited resources of the state can be put to better use on families which have a better chance of success. This position, however, implies that some families are more deserving of the services provided under chapter 232 than others. Not only is this contradictory to the policies of our juvenile system, it also creates a potential situation where the courts and DHS are permitted to hand pick families for services. We find no legislative support in our statutes for such a policy.

We conclude that a juvenile court can only dismiss a CINA action prior to expiration if the grounds specified in section 232.103(4) are present. See H.G., 601 N.W.2d at 86. The legislature did not carve out any exceptions to this termination provision, and section 232.103(4) is the only means of terminating a disposi-tional order in a CINA proceeding before expiration. Moreover, juvenile courts have no inherent authority to dismiss a CINA action when such authority would contravene the clearly spoken policy of the law.

We recognize the job of the juvenile court can be extremely difficult, and, at times, frustrating. This frustration is clearly compounded when the resources devoted to one family over a significant period of time seem to result in no improvement, while other needy families remain on a waiting list for those same services. At the same time, the rewards that can result from the intervention by the juvenile court can be immeasurable. Unfortunately, the measure of success too often comes in very small increments, and, at times, is almost imperceptible. Yet, success cannot always be measured from day-to-day or even year-to-year, and it may not be until long after the court’s' intervention is complete, and the child has grown into an adult, that the caring hand of those judges and service workers begins to be felt, and success may be found. Our system recognizes this, and it inheres in the mandate of section 232.104.

The law provides for a variety of options in this case, but dismissal is not one of them. We remand the case to the juvenile court to consider other dispositions short of dismissal.

IV. Conclusion.

We conclude the juvenile court relied upon inappropriate criteria in dismissing the CINA actions. We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Because the guardian ad litem did not appeal the dismissal of the CINA action with respect to J.P., this opinion applies only to K.N. However, if the guardian ad litem had contested the dismissal of J.P.'s CINA status, J.P. would be subjected to the same disposition, even though J.P. will turn eighteen years old on April 29, 2001. "Although the legislature specifically, conferred [CINA] jurisdiction on the juvenile court by using the age ... of a child at the time the proceeding is initiated, it did not utilize [this] factor as grounds to subsequently terminate the proceeding....” H.G., 601 N.W.2d at 86. However, the juvenile court is permitted to consider the age of a child in determining what type of disposition would serve the child’s best interests. Id. at 87.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    Melba E. SMITH, Appellant, v. CITY OF BAYARD, Iowa, Appellee, and Steve Levias, Defendant.
    No. 99-1092.
    Supreme Court of Iowa.
    April 25, 2001.
    Todd A. Miler of Miler Law Firm, Des Moines, for appellant.
    Thomas J. Logan of Hopkins & Hueb-ner, P.C., Des Moines, for appellee.
   CARTER, Justice.

Plaintiff, Melba E. Smith, a dog-bite victim, appeals from an adverse summary judgment for the City of Bayard (the city) in her damage action. Plaintiff alleges that the city was negligent in failing to control a dog that was running at large in the city. The city sought summary judgment on the basis that (1) it owed plaintiff no duty to protect her from the dog, and (2) it is immune from the liability sought to be imposed on it. Because we agree with the second contention, we affirm the judgment of the district court.

Plaintiff was seriously bitten by a dog while she was walking to the post office. She alleges that the dog belonged to Steve Levias, who lived in a home adjacent to the post office. Earlier on the day that plaintiff was bitten, another citizen of Bayard had complained to the mayor that Levias’s dog had harassed her. In responding to that complaint, the mayor walked by Levi-as’s residence and found the dog sitting quietly on the porch. No action was taken by the city. After the incident involving the biting of plaintiff, the county’s environmental health office, upon being informed of the incident by the city, picked the dog up and later caused it to be destroyed.

In resistance to defendant’s motion for summary judgment, plaintiff attached summaries of city council proceedings held prior to her injuries. These reports indicated that the problem of dogs running at large had been discussed by the city council.

The city urges that it had no duty to protect plaintiff from animals or instru-mentalities under the control of third parties. It likens the situation to the rule stated as follows in the Restatement (Second) of Torts section 315 (1965):

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct....

Plaintiff urges that the city regulated dogs running at large by ordinance, thus establishing the special relationship required for liability under the Restatement rule. She also urges that the protection of sidewalk pedestrians from vicious dogs is part of the city’s duty under Iowa Code section 364.12(2) to keep sidewalks free from nuisance. We need not resolve the issues surrounding the extent, if any, of the city’s duty to plaintiff. We deem the city’s claim of statutory immunity to be meritorious irrespective of the duty issue.

Iowa Code section 670.4 provides in part:

The liability imposed by section 670.2 [municipal tort liability] shall have no application to any claim enumerated in this section. As to any such claim, a municipality shall be liable only to the extent liability may be imposed by the express statute dealing with such claims and, in the absence of such express statute, the municipality shall be immune from liability.
10. Any claim based upon an act or omission of an officer or employee of the municipality, whether by issuance of permit, inspection, investigation, or otherwise, and whether the statute, ordinance, or regulation is valid, if the damage was caused by a third party, event, or property not under the supervision or control of the municipality, unless the act or omission of the officer or employee constitutes actual malice or a criminal offense.

Iowa Code § 670.4(10) (1995).

In Hameed v. Brown, 530 N.W.2d 703 (Iowa 1995), this court, in interpreting section 670.4(10), held that the terms “supervision or control” should be given their ordinary meaning as defined in the standard dictionary. Hameed, 530 N.W.2d at 707. Quoting from Webster’s Third New International Dictionary (P. Gove ed.1993), we said that:

“Supervise” means the act of “overseeing] with the powers of direction and decision the implementation of one’s own or another’s intentions.... ”
“Control” means “to exercise restraining or directing influence over” or “have power over.”

Id.

In applying the language of section 670.4(10) to the present dispute, we are deciding whether the dog or the actions of the dog were “events” or “property” under the supervision or control of the city. Plaintiff urges that the dog or the actions of the dog were under the city’s supervision or control because there was in force a city ordinance regulating dogs. We are unable to conclude that the city, by regulating all dogs in the community, was supervising or controlling this particular dog in a manner that denies it the immunity conveyed by section 670.4(10). We agree with the decision of the court of appeals in Williams v. Bayers, 452 N.W.2d 624, 625 (Iowa Ct.App.1990), which held that the failure of a city to exact compliance by a building owner with the city’s building code could not be made a basis for liability because enacting an ordinance was not the type of supervision or control necessary to bring the case outside of the section 670.4(10) immunity. We conclude that the same principle applies here with respect to plaintiffs contention that the dog ordinance constitutes supervision or control.

As a final matter, we must mention that there is clearly no basis in the record for concluding that any act or omission of the city in connection with the issues of this case was done with actual malice or was a criminal offense.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

      . The statute has been renumbered since the Hameed decision. At that time, it was numbered as section 613A.4(10).


author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellee, v. James Daryl SPEICHER, Appellant.
    No. 99-1931.
    Supreme Court of Iowa.
    April 25, 2001.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie L. Cox, Assistant County Attorney, for appellee.
   NEUMAN, Justice.

This appeal by James Speicher challenges the sufficiency of the proof offered by the State to sustain his conviction for conspiracy to manufacture methamphetamine in violation of Iowa Code section 124 .401(l)(b)(7) (1999). We transferred the case to the court of appeals. That court affirmed the conviction but, on Speicher’s application, we granted further review. Because we are convinced the record contains no proof on the essential “agreement” element of conspiracy, we now vacate the court of appeals’ decision and reverse that portion of the district court judgment.

The facts are essentially undisputed. While on routine patrol, police officers detected the odor of ether coming from a garage. Suspecting a methamphetamine operation, they called for assistance from the narcotics team and set up surveillance. One of the officers observed a man step out of the garage, smoke a cigarette and return to the garage. Shortly thereafter, two men exited the building. They began walking up the driveway, looking in the general direction of the police. After walking ten to fifteen feet, both men took off running. The officers pursued and apprehended the men. They were identified as Kelley Page and James Speicher.

The garage, and the house to which it was attached, were owned by Page. Narcotics officers surveyed the garage and observed numerous devices and items used to make methamphetamine including a stove with a make-shift chimney, a hose running from a gas can to the stove, discarded battery casings, coffee filters containing a sludge by-product of the manufacturing process, spoons with residue, five boxes of over-the-counter cold medicine and containers of liquid containing small quantities of manufactured methamphetamine. They also found one air-purifying respirator and a pair of work gloves.

Page consented to the search. He accompanied his consent with the following statement: “I may as well sign [the eon-sent-to-search form], but I want you to understand that I was manufacturing the meth for my own use.”

Testing of the drugs seized from the garage revealed 3.97 grams of manufactured methamphetamine and sufficient precursors to produce approximately 2.2 grams of the drug. The State charged Page and Speicher with conspiracy to manufacture a schedule II controlled substance, methamphetamine, in violation of Iowa Code section 124.401(l)(b)(7), manufacture of a schedule II controlled substance, methamphetamine, in violation of Iowa Code section 124.401(l)(b)(7), and interference with official acts in violation of Iowa Code section 719.1. Speicher pleaded not guilty and the case proceeded to trial.

Based on the evidence sketched above, the jury returned guilty verdicts against Speicher on the conspiracy and interference charges. The court overruled Speicher’s motions for judgment of acquittal and new trial, rejecting his claim that the State failed to present “one scintilla of evidence as to any conspiracy by agreement or act of the Defendant.” The court then sentenced Speicher to an indeterminate twenty-five year term of imprisonment for conspiracy to manufacture methamphetamine, to run concurrently with a one-year term on the interference charge.

I. Issue on Appeal and Scope of Review.

This appeal by Speicher is limited solely to the judgment and sentence imposed on the conspiracy charge. The question is whether the State produced sufficient evidence to permit a jury to find beyond a reasonable doubt that Speicher conspired with Page to manufacture methamphetamine.

Because a jury verdict is binding on us when supported by substantial evidence, our appellate review is limited to the correction of errors at law. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Evidence is substantial if it could convince a rational jury of a defendant’s guilt beyond a reasonable doubt. Id.; State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). In making an assessment of the sufficiency of evidence, we are obliged to view the record in the light most favorable to the State. Hopkins, 576 N.W.2d at 377. But we must consider all the evidence in the record, not just the evidence supporting guilt. Id.

Although direct and circumstantial evidence are equally probative, the inferences to be drawn from the proof in a criminal case must “raise a fair inference of guilt as to each essential element of the crime.” State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992). Evidence is not substantial if it raises only suspicion, speculation or conjecture. Id.

II. Analysis.

Iowa Code section 124.401(1) makes it a crime “for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance ... or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance.... ” Subsection (b)(7) classifies the offense as a “B” felony if the crime involves “[mjore than five grams but not more than five kilograms of methamphetamine.” Iowa Code § 124.401(l)(b)(7).

Iowa Code section 706.1 defines the crime of conspiracy:

1.A person commits conspiracy with another if, with the intent to promote or facilitate the commission of a crime which is an aggravated misdemeanor or felony, the person does either of the following:
a. Agrees with another that they or one or more of them will engage in conduct constituting the crime or an attempt or solicitation to commit the crime.
b. Agrees to aid another in the planning or commission of the crime or of an attempt or solicitation to commit the crime.
2. It is not necessary for the conspirator to know the identity of each and every conspirator.
3. A person shall not be convicted of conspiracy unless it is alleged and proven that at least one conspirator committed an overt act evidencing a design to accomplish the purpose of the conspiracy by criminal means.
4. A person shall not be convicted of conspiracy if the only other person or persons involved in the conspiracy were acting at the behest of or as agents of a law enforcement agency in an investigation of the criminal activity alleged at the time of the formation of the conspiracy.

The foregoing statutes teach that in order to prove Speicher conspired to manufacture methamphetamine, the State was required to show that (1) Speicher agreed with Page that one or both of them would manufacture or attempt to manufacture a controlled substance, in this case methamphetamine; (2) Speicher entered into such an agreement with the intent to promote or facilitate the manufacture of methamphetamine, a class “B” felony; (3) Speicher or Page committed an overt act to accomplish the manufacturing of methamphetamine; and (4) Page, the alleged co-conspirator, was not a law enforcement agent or assisting law enforcement when the conspiracy began. The fighting issue is whether the State presented sufficient evidence on the “agreement” element of the offense.

Prior decisions have described an agreement to form a conspiracy as a “concert of free wills,” “union of the minds of at least two persons,” and “a mental confederation involving at least two persons.” State v. Boyer, 342 N.W.2d 497, 499 (Iowa 1984) (quoting Regie v. State, 9 Md.App. 346, 264 A.2d 119, 124 (1970)). Both direct and circumstantial evidence may be used to prove such a meeting of the minds. Casady, 597 N.W.2d at 804-05; State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998). Circumstantial evidence includes the declarations and conduct of the alleged conspirators and all reasonable inferences arising from such evidence. Casady, 597 N.W.2d at 805. Importantly, an agreement need not be — and often times is not — formal and express. Id. A tacit understanding — one “inherent in and inferred from the circumstances” — is sufficient to sustain a conspiracy conviction. Mapp, 585 N.W.2d at 748 (quoting 16 Am. Jur.2d Conspiracy § 10, at 204-05 (1998)).

The State persuaded the district court, and urges on appeal, that Speicher’s presence in a meth lab, combined with proof that he ran from the police, constitutes proof of participation in a conspiracy to manufacture methamphetamine. In its words, “involvement in an ongoing manufacturing process is evidence of an agreement to manufacture, i.e., conspiracy.” Speicher concedes his presence in a meth lab but contends on appeal that such proof, standing alone, is insufficient to prove either his involvement in the manufacturing process or an agreement to do so.

Given the record before us, we are compelled to agree with Speicher’s argument. Our decision is fortified when we consider the case upon which the State relies, State v. Casady, 597 N.W.2d 801 (Iowa 1999). There, as here, the defendant challenged the sufficiency of proof to establish an agreement to manufacture methamphetamine. But, in contrast to the case before us, witnesses in Casady revealed substantial facts to support Casady’s involvement in the drug operation: (1) He watched a co-conspirator crush cold medications and cook a mixture of substances in a microwave oven, standard activities of methamphetamine production; (2) Casady and others left the residence shortly before midnight and returned within half an hour, a period during which police officers observed two men hauling an ammonia canister from a local anhydrous facility, driving away without headlights; (3) one of the suspected thieves matched Casady’s description; and (4) officers observed the thieves returning to the home from which Casady and the other man had departed, carrying the container into the garage. Casady, 597 N.W.2d at 805. Later, when a search warrant was executed, police found Casady hiding under a car in the garage. His pockets held gloves smelling of anhydrous ammonia. Id.

The substantial circumstantial proof of conspiracy evident in Casady is woefully missing in the record before us. Here, a rational juror could find that Speicher was in the garage where a methamphetamine lab was located and that his clothes were contaminated with fumes associated with the process of making the drug. Speicher, along with Page, ran when he saw police surrounding the garage. A police officer testified that when confronted about consent to search his home, Page responded “/ was manufacturing the meth for my own use.” (Emphasis added.) Narcotics officers recovered only one air filtration mask and one pair of gloves.

In a nutshell, the State’s case would permit a jury to infer from Speicher’s presence in the garage that he knew Page was manufacturing methamphetamine. But, to sustain a conviction for conspiracy under this record, the jury would also be required to infer — without additional evi-dentiary support — that Speicher agreed with Page to participate in the manufacturing process. Without proof of any involvement from which to infer agreement, this essential element of the offense rests on nothing but conjecture and speculation. The State has failed, as a matter of law, to tender substantial proof on each of the essential elements of the offense.

We therefore reverse Speicher’s conviction for conspiracy to manufacture methamphetamine. His conviction for interference with official acts, having not been appealed, is affirmed. Our decision renders it unnecessary to consider Speicher’s alternative claim that his trial counsel furnished ineffective assistance by urging Speicher to refrain from taking the witness stand.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.


author: /s/ Kathleen A. Blatz Chief Justice

text:
    Janine P. NAUBER, Respondent, v. CARING HANDS HOME CARE, INC., et al., Relators.
    No. C8-01-228.
    Supreme Court of Minnesota.
    April 19, 2001.
    Jerome D. Vehanen and Nancy E. Lamo, McCollum, Crowley, Vehanen, Mos-chet & Miller, Ltd., Minneapolis, for appellant.
    John P. Bailey, Bailey Law Office, Ltd., Bemidji, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed January 8, 2001, be, and the same is, affirmed without opinion. See Minn.R.CivApp.P. 136.01, subd. 1(b).

Employee is awarded $300 in attorney fees.

BY THE COURT:

/s/ Kathleen A. Blatz Chief Justice


text:
    Mary BLATZ, et al., Respondents, v. ALLINA HEALTH SYSTEM, d/b/a HealthSpan Transportation Services, Appellant.
    No. C9-00-826.
    Supreme Court of Minnesota.
    April 20, 2001.
    Review Denied May 16, 2001.
   ORDER

The undersigned has been assigned to sit as the Acting Chief Justice of the Supreme Court of the State of Minnesota for the purposes of carrying out the terms of the April 4, 2001, order issued in this case. That order requires the Acting Chief Justice to assign acting associate justices from among retired members of the court who are eligible and available to serve.

IT IS HEREBY ORDERED THAT:

The following retired members of the court are assigned to consider and determine the petition for review and, if review is granted, the appeal on the merits in this case:

Justice Alexander M. Keith

Justice John E. Simonett

Justice Esther M. Tomljanovich

Justice Rosalie E. Wahl

Justice Lawrence R. Yetka

/s/ Douglas K. Amdahl Acting Chief Justice


author: /s/ Paul H. Anderson Associate Justice

text:
    Leo LORENTZ, Relator, v. Daniel NYQUIST, Uninsured, Respondent, and Special Compensation Fund.
    No. C0-01-62.
    Supreme Court of Minnesota.
    April 25, 2001.
    Thomas A. Klint and Brad R. Rolling, Babcock, Neilson, Mannella, LaFleur & Klint, Anoka, for relator.
    Robert J. Feigh and Christopher W. Harmoning, Hall & Byers, P.A., St. Cloud, for respondent.
    Mike Hatch, Attorney General, Robert H. Foley, Assistant Attorney General, St. Paul, for Special Compensation Fund.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 19, 2000, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: /s/ Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Mitchell Ross ORNSTEIN, an Attorney at Law of the State of Minnesota.
    No. C4-01-274.
    Supreme Court of Minnesota.
    May 8, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Mitchell Ross Ornstein has committed professional misconduct warranting public discipline, namely, failing to act with reasonable diligence and promptness in representing three separate clients, misrepresenting the status of the matters to his clients, and failing to cooperate in the disciplinary proceedings in violation of Minn. R. Prof. Conduct 1.3, 4.1, 8.1(a)(3), 8.4(c) and 8.4(d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a six-month suspension with no waiver of the reinstatement hearing provided in Rule 18, RLPR. The parties also recommend that reinstatement should be conditioned upon: (1) compliance with Rule 26, RLPR; (2) successful completion of the professional responsibility examination pursuant to Rule 18(e), RLPR; and (3) satisfaction of the continuing legal education requirements pursuant to Rule 18(e), RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Mitchell Ross Ornstein is suspended from the practice of law for a period of six months from the date of this order with reinstatement conditioned upon the agreed-upon terms set forth above. Respondent shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

/s/ Alan C. Page Associate Justice


author: LANCASTER, Justice.

text:
    In the Matter of the PETITION FOR IMPROVEMENT OF COUNTY DITCH NO. 86, BRANCH 1, County of Blue Earth, Minnesota, Respondent, v. Blaine PHILLIPS, et al., Petitioners, Appellants. and Wayne Pestka, et al., Petitioners, Appellants, v. County of Blue Earth, Respondent, Krengel Brothers Construction, Inc., Respondent.
    Nos. C7-99-2051, C4-99-2105.
    Supreme Court of Minnesota.
    May 10, 2001.
   OPINION

LANCASTER, Justice.

This case presents the issue of whether landowners have standing to assert a benefits and damages appeal pursuant to Minn. Stat. § 103E.091 (2000) of the drainage code when their appeal concerns the benefits and damages determinations only of lands not owned by them. The district court dismissed appellants’ benefits appeal and the court of appeals affirmed, holding that appellants had no standing to challenge the benefits to only nonowned lands. We reverse and remand for proceedings consistent with this opinion.

On September 23, 1997, the Blue Earth County Board, acting as the drainage authority, ordered the establishment of an improvement to County Ditch No. 86. The establishment order incorporated the viewers’ report, which listed the benefits of the improvement project as $339,819 and the estimated costs of the project as $315,933. Appellants Blaine Phillips and Wayne Pestka own property through which the proposed improvement project passes. They appealed the benefits and damages determinations relating to their lands, but they did not appeal the establishment order.

Appellants’ benefits and damages appeals were consolidated and tried to a jury on January 11, 1999 (“first appeal”). At trial, the jury heard evidence that the viewers’ report was flawed because the calculation of benefits and damages contained an error in the capitalization of anticipated increased production. The effect of this error, according to the viewers, was that the viewers’ statement of benefits was too low. Despite this testimony, on January 20 the jury returned a verdict that decreased the benefits to the appealed lands and increased the damages, resulting in the costs of the improvement project exceeding the benefits. Appellants entered into a stipulation with the drainage authority that set appellants’ benefits and damages based on the jury’s verdict. The agreement contained the following provision: “By entering into this Stipulation the Appellants are not estopped and do not waive their right to challenge the feasibility of the ditch if the estimated costs and damages exceed the benefits.” The district court’s order on the first appeal, entered on April 29, 1999, incorporated the jury verdict and the stipulation.

On April 30, 1999, the viewers filed an amended final report. Pursuant to Minn. Stat. § 103E.511, subd. 2 (2000), an interested landowner petitioned the drainage authority to adopt the amended viewers’ report for parcels not already appealed. Appellants petitioned the drainage authority to dismiss the improvement project because the costs of the proposed project exceeded the benefits. On August 9, 1999, the drainage authority held a meeting to consider these two petitions. The drainage authority ordered that the amended viewers’ report be accepted pursuant to Minn.Stat. § 103E.511, the result of which was that the benefits of the improvement were $324,186 and the estimated costs were $313,577. The order made no changes to the benefits or damages determinations of appellants’ lands as decided in the first appeal.

Appellants appealed to the district court the drainage authority’s August 9 order (“second appeal”), challenging the benefits determinations on all lands affected by the order. Because appellants’ benefits had been determined and set in their first appeal, their benefits were unchanged by the drainage authority's August 9 order. Therefore, their second appeal did not challenge the benefits to their own lands, but instead challenged only the benefits to lands owned by others and affected by the August 9 order. The drainage authority brought a motion to dismiss appellants’ second appeal on September 8,1999.

During the course of the drainage proceedings the drainage authority received bids for the ditch improvement project. The first bids expired during the proceedings, but bids were received again in May 1999. The lowest bid came from respondent Krengel Brothers, Inc.

Despite the pending status of appellants’ second appeal, the drainage authority awarded the improvement contract to Krengel Brothers at an October 5, 1999, meeting. Appellants then brought a declaratory judgment and injunctive relief action against Blue Earth County and Krengel Brothers. Appellants sought a declaratory judgment that the drainage authority acted outside its statutory authority by awarding the contract while the second benefits appeal was pending. Appellants also sought to enjoin the drainage authority from awarding the contract until the conclusion of the second appeal and to enjoin the county and Krengel Brothers from entering appellants’ lands to construct the improvement.

The district court heard all three actions — appellants’ second benefits appeal, the drainage authority’s motion to dismiss the appeal, and appellants’ declaratory judgment/injunction action — on October 26, 1999. During the hearing, appellants conceded that if the district court ultimately dismissed their second appeal, their declaratory judgment/injunction action would be moot. On October 29, the district court dismissed appellants’ second appeal and dismissed their declaratory judgment/injunction action, noting that it became moot with the dismissal of their second appeal.

On appeal the court of appeals held that, contrary to respondents’ argument, neither res judicata nor appellants’ stipulation barred the second appeal. However, the court held that appellants had no standing to bring the second benefits appeal because the benefits appeal provision of the drainage code, Minn.Stat. § 103E.091, does not permit landowners to appeal the benefits to only nonowned lands and because appellants suffered no injury in fact as a consequence of the August 9 order.

Appellants ask this court to reverse the court of appeals’ holding that they lack standing to appeal the benefits of only nonowned lands. Standing is a prerequisite to a court’s exercise of jurisdiction. Arnandale Advocate v. City of Annandale, 435 N.W.2d 24, 27 (Minn.1989); see State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn.1996). A party acquires standing in one of two ways: “either the plaintiff has suffered some ‘injury-in-fact’ or the plaintiff is the beneficiary of some legislative enactment granting standing.” Philip Morris, 551 N.W.2d at 493. Whether appellants have standing depends on a construction of the drainage code, which presents a question of law for de novo review. In re Petition for Improvement of Murray County Ditch No. 34, 615 N.W.2d 40, 45 (Minn.2000).

We must decide whether appellants’ second appeal is permitted by the drainage code, and specifically whether section 103E.091 permits appellants to appeal only the benefits of nonowned lands. Statutory construction “must begin with a careful and close examination of the statutory language.” State v. Loge, 608 N.W.2d 152, 155 (Minn.2000). The purpose of all statutory construction is to ascertain and effectuate the intention of the legislature. Minn.Stat. § 645.16 (2000).

Appellants brought their second appeal pursuant to Minn.Stat. § 103E .091, which provides in part:

Subdivision 1. Grounds for Appeal. A party may appeal to the district court from a recorded order of a drainage authority made in drainage proceeding that determines:
(1) the amount of benefits;
(2) the amount of damages;
Subd. 2. Procedure for appeals related to benefits and damages, (a) A person who appeals the amount of benefits or damages may include benefits and damages affecting property not owned by the appellant.

The court of appeals recognized that section 103E.091 permits parties to appeal the benefits of lands not owned by them. In re Petition for Improvement of County Ditch No. 86, Branch 1, County of Blue Earth, 614 N.W.2d 756, 762 (Minn.App.2000). Focusing on the language “may include” in subdivision 2, however, the court concluded the legislature intended to allow a benefits appeal of others’ lands only when a party simultaneously appeals his or her own benefits. Id. Therefore, the court held appellants’ second appeal was properly dismissed since they challenged only benefits to nonowned lands. Id. at 762-63. The court did not reach the issue of whether appellants’ declaratory judgment/injunction action was erroneously dismissed because appellants acknowledged at the October 26 hearing that this action would be moot if their second benefits appeal was dismissed. Id. at 763.

Judge Davies dissented from the court of appeals’ opinion, stating that section 103E.091, subd. 1 (2000), provides a broad grant of authority permitting landowners to appeal benefits and damages determinations. County Ditch No. 86, 614 N.W.2d at 763 (Davies, J., dissenting). He argued that the majority’s construction of section 103E.091, subd. 2 (2000), erroneously “ignores the larger context in which” the phrase “may include” was used. County Ditch No. 86, 614 N.W.2d at 763 (Davies, J., dissenting)

Although it is true that section 103E.091, subd. 2, uses the phrase “may include” when discussing a landowner’s right to appeal benefits of others’ land, we must look to the whole framework of section 103E.091 to discern the reason and sense of the entire section. Murray County Ditch No. 34, 615 N.W.2d at 45-46; Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 11-12, 153 N.W.2d 209, 217 (1967).

Section 103E.091 constitutes a broad grant of authority by which a party to a drainage proceeding may appeal benefits and damages. Minn.Stat. § 103E.091, subd. 1 (“A party may appeal * * * from a recorded order of a drainage authority * * * that determines: (1) the amount of benefits; (2) the amount of damages * * *.”). If the legislature had intended to limit benefits appeals so that landowners could only appeal benefits to nonowned lands while simultaneously appealing their own benefits, it could have used narrow language to reflect that intent. Instead, the legislature left unqualified the terms “benefits” and “damages” in section 103E.091. Providing such a broad right to appeal is consistent with the drainage code’s objective of protecting landowners during drainage proceedings. See In re Petition for Improvement of County Ditch No. 11, Martin County, 253 Minn. 367, 372, 91 N.W.2d 657, 661 (1958) (noting that statutes regulating the construction of public drains are designed for the protection of landowners).

Drainage proceedings include a number of safeguards to protect interested landowners. See generally Minn.Stat. §§ 103E.011-345(2000). These safeguards include requirements that a drainage project must not be constructed if: the project is deemed not feasible, the statutory requirements for the petition are unsatisfied, the costs of the project exceed the benefits, or the adverse environmental impact of the project outweighs the public benefits. Minn.Stat. §§ 103E.261, subds. 3-4 (2000), 103E.341, subd. 1 (2000); see generally Minn.Stat. §§ 103E.202-.238(2000). Landowners affected by the project have an opportunity to participate in the proceedings and have statutory rights to challenge the project for a variety of reasons. The extensive right granted to landowners to be involved in the drainage project process suggests, but does not determine, that appellants have standing to contest benefits to lands owned by others even when not challenging the benefits to their own lands.

Our analysis is further informed by pri- or cases and general principles of standing. In In re Carlson, 295 Minn. 501, 202 N.W.2d 889 (1972), the state was permitted to challenge the establishment of a ditch even though it was not a party to the action and its land had not been assessed benefits or damages. Id. at 502-03, 202 N.W.2d at 891. The state argued that because its land would be harmed by the proposed ditch, it should be permitted to appeal under a provision permitting “parties] aggrieved” to challenge benefits and damages determinations even though it was not officially a party to the drainage proceedings. Id. at 502, 202 N.W.2d at 890. We held that “[a] landowner whose property may be damaged by the establishment of a county ditch is a party in substance to the proceedings and has a right to appeal to the district court.” Id. at 502, 202 N.W.2d at 891.

In In re Judicial Ditch No. 4, Lac Qui Parle County, 160 Minn. 387, 200 N.W. 471 (1924), appellant-landowners appealed the benefits on their own lands and succeeded in having their benefits reduced. Id. at 388-89, 200 N.W. at 471-72. Then, after the time to bring a benefits appeal passed, the district court (acting as drainage authority) modified respondent-landowners’ benefits on its own motion even though respondents had not appealed from their benefits determinations. Id. at 389, 200 N.W. at 472. The appellants attempted to challenge this modification order. We permitted the challenge notwithstanding the respondents’ arguments that the challenge was impermissible because the modification order only affected the respondents’, not the appellants’, lands. Id. at 390-91, 200 N.W. at 472-73. Recognizing that a modification to the respondents’ benefits would ultimately affect the assessments levied against the appellants’ lands, we acknowledged that the appellants had a legitimate interest in the proceedings and permitted the challenge. Id. at 392, 200 N.W. at 473.

Respondents cite State ex rel. Sammons v. Nelson, 136 Minn. 272, 159 N.W. 758 (1916), for the proposition that appellants have no standing to appeal. Id. at 273-74, 159 N.W. at 758. In Sammons, a large ditch project was proposed that contained several branch ditches and crossed county lines. Id. at 273-74, 159 N.W. at 758. The relator in Sammons owned land along one branch, but wanted to challenge the legality of connecting a different branch of the project to the village sewage system. Id. We noted that the proposed branch connection did not touch the relator’s land, and we held that the relator could not challenge the proposed connection because it would not affect his benefits determinations and because his land could not be assessed for that branch. Id. at 274, 159 N.W. at 759. The relator could not challenge a ditch branch that did not directly affect his lands.

Contrary to respondents’ arguments, we do not believe that Sammons requires us to hold that appellants lack standing. In fact, Sammons, Carlson, and Judicial Ditch No. 4, taken together, demonstrate that when a landowner suffers some real, direct harm and therefore has a legitimate interest in the proceedings, that landowner may assert an appeal pursuant to the provisions of the drainage code.

Respondents argue that the August 9 order visits no direct harm on appellants because the order only alters the nonap-pealing landowners’ benefits. Further, respondents argue that the order effectively increases the financial burden for the improvement project on the nonappealing landowners and appellants will actually pay a smaller portion of the project. In contrast, appellants contend that they will suffer direct harm as a result of the August 9 order because they will be forced to contribute to an illegal drainage improvement project.

Even though the benefits to appellants’ lands, will not change as a result of the August 9 order, appellants have alleged the type of direct harm that we have previously recognized as sufficient to confer standing. If this proposed improvement project proceeds, appellants are among the landowners who will be forced to pay for an allegedly illegal improvement that will not provide benefits in excess of the costs. Additionally, we recognize that if the improvement project proceeds, appellants likely will be required to pay not only for the improvement, but for future repairs necessary to maintain it. Minn.Stat. § 103E.725(2000) (stating that all drainage repair costs must be assessed against the benefiting property); see generally Minn. Stat. §§ 103E.701-745(2000). We hold, therefore, that appellants’ allegations that the project is illegal present a sufficient interest in the project and this litigation to entitle them to judicial review. This holding is consistent with the general goal of the standing requirement, which is “to ensure that issues before the courts will be ‘vigorously and adequately presented.’ ” Philip Morris, 551 N.W.2d at 493.

Respondents insist that to permit appellants to challenge the benefits of only non-owned lands is unfair. Specifically, respondents predict that under appellants’ theory of standing, each time an adjustment is made to any landowner’s benefits, all other landowners along the drainage project could appeal. We agree that for landowners directly affected by a drainage project this is true, but for several reasons we disagree that this is unfair. First, because section 103E.091, subd. 2(b) (2000), permits a landowner to appeal benefits determinations only within 30 days after a benefits adjustment is made, we foresee no endless string of benefits appeals as a result of our holding. Second, only in limited situations such as those presented before us today — where the drainage authority makes benefits adjustments after its final order — will a second round of benefits appeals be possible. In most cases, the benefits and damages will be set by the drainage authority in the final order and any appeals will be taken then. Third, we see no fundamental unfairness because any other landowner directly affected by a proposed ditch has the same right to challenge the benefits to only nonowned lands.

Respondents also complain that permitting appellants to challenge benefits to only nonowned lands is unfat because appellants will not have to place them own land at risk when asking a court to adjust benefits and/or damages on others’ lands. Again, we see no unfatness. The final assessments levied against the land are proportionally based on the benefits determinations. Minn.Stat. § 103E.601, subd. 1 (2000). As such, one landowner’s benefits determination affects the assessments levied against the property of all landowners who own property along the proposed improvement. Thus, there may be instances where a landowner is satisfied with his benefits but has a legitimate argument about another landowner’s benefits or, as here, the propriety of the project as a whole. To require that landowner to challenge his own benefits, about which he has no complaint, would encourage meritless claims. Furthermore, due to the interrelated scheme of the drainage code in which each landowner’s benefits determination affects all other landowners’ final assessments, a landowner does effectively put his own land at risk when challenging another landowner’s benefits: The project as a whole may fail, even when the need for it is conceded by the appealing landowner; or, if the jury reduces the benefits on the nonowned appealed lands, the final assessment levied against the appealing landowner’s property may increase. For these reasons, we see no fundamental unfairness in permitting appellants to appeal the benefits to only nonowned lands.

Given the broad right to appeal granted by section 103E.091, subd. 1, the design of the drainage code to protect landowners, and the direct harm that appellants could suffer here as a result of the August 9 order, we hold that appellants have standing to bring their second appeal.

Appellants also ask us to permit their declaratory judgment/injunction action to proceed. In past cases, we have acknowledged that “[t]here may be instances * * * when property owners with notice have a duty to act promptly before [a drainage project] is commenced, even where the [drainage] statute provides no review at that state of the proceedings.” Larson v. Freeborn County, 267 Minn. 383, 386-87, 126 N.W.2d 771, 773 (1964). In such instances, “it may be essential that a declaratory judgment action or suit in equity be instituted.” Id. at 387, 126 N.W.2d at 773.

Both declaratory judgment and injunc-tive relief actions serve preventative purposes. Declaratory judgment actions were created “to allow parties to determine certain rights and liabilities pertaining to an actual controversy before it leads to repudiation of obligations, invasion of rights, and the commission.of wrongs.” Culligan Soft Water Serv. of Inglewood, Inc. v. Culligan Int’l Co., 288 N.W.2d 213, 215-16 (Minn.1979). Temporary injunctions are granted to preserve the status quo until a case is finally adjudicated on the merits. Miller v. Foley, 317 N.W.2d 710, 712 (Minn.1982). Here, the drainage authority awarded the improvement contract to Krengel Brothers despite the pending status of appellants’ second appeal. Without commenting on the merits of appellants’ action, we recognize that the circumstances in this case are such that irreparable harm to appellants’ lands could occur before the district court is ever permitted to try this case on the merits. To avoid that potential harm, we conclude that appellants can assert their declaratory judgment/injunction action.

In summary, we hold that appellants have standing to assert their second benefits appeal even though they challenge the benefits determinations of only nonowned lands. In addition, they may proceed with their declaratory judgment/injunction action.

Reversed and remanded.

      . Minnesota Statutes § 103E.511 (2000), provides in pertinent part:
      Subdivision 1. Conditions to use procedure in this section. The procedure in this section may be used if, after a drainage system is established:
      (1) the only bids received are for more than 30 percent in excess of the engineer’s estimated cost, or in excess of the benefits, less damages and other costs; or
      (2) a contract is awarded, but due to unavoidable delays not caused by the contractor, the contract cannot be completed for an amount equal to or less than the benefits, less damages and other costs.
      Subd. 2. Petition after cost estimate error or change to lower cost. A person interested in the drainage project may petition the drainage authority if the person determines that the engineer made an error in the estimate of the drainage project cost or that the plans and specifications could be changed in a manner materially affecting the cost of the drainage system without interfering with efficiency. The petition must state the person’s determinations and request that the detailed survey report and viewers' report be referred back to the engineer and to the viewers for additional consideration.

      . In iheir second appeal, appellants argued that the drainage authority acted outside the scope of its statutory authority when it adopted the amended report. Appellants asserted that section 103E.511 only permits a drainage authority to amend a viewers' report under certain limited circumstances and that those circumstances were not present in this case. See supra note 1.
      Section 103E.511 permits a party to appeal to a district court, under section 103E.091, a drainage authority action taken pursuant to section 103E.511. Minn.Stat. § 103E.511, subd. 5(0 (2000). Appellants brought their second appeal pursuant to section 103E.091. At issue in the present case is whether appellants have standing to assert this second benefits and damages appeal. Because the district court has not addressed the issue of whether the drainage authority's August 9 order was proper under section 103E.511, we do not decide that issue.

      . Minnesota Statutes § 103E.505, subd. 2 (2000), addresses when a drainage authority may award a contract while a benefits appeal is pending. That section states in part:
      If an appeal regarding the determination of benefits and damages is made within 30 days after the order establishing the drainage project has been filed, a contract may not be awarded until the appeal has been determined, unless the drainage authority orders the contract awarded.
      Appellants argued that section 103E.505, subd. 2, does not provide the drainage authority with unlimited power to award a contract while benefits and damages determinations are under appeal. See generally Minn.Stat. § 103E.341, subd. 1 (2000) (stating that the drainage authority must dismiss drainage proceedings if it determines that the benefits of a proposed project are less than the damages).

      . The court of appeals held that res judicata did not apply to appellants' second appeal because the action of the drainage authority on which the appeal was based did not occur until after the first appeal and because, in these circumstances, to apply res judicata would be inequitable. Under the doctrine of res judicata, parties to an action may be prohibited from raising in a second suit any matter that was or could have been litigated in the first suit. Care Inst. Inc.—Roseville v. County of Ramsey, 612 N.W.2d 443, 447 (Minn.2000). Res judicata applies where (1) the parties to the two suits are the same, (2) the second suit is for the same cause of action, and (3) the original judgment was on the merits. Id.

      We agree with the court of appeals that res judicata does not bar appellants' second benefits appeal. The action they challenge in the second appeal, the drainage authority’s decision to adopt the amended viewers' report, occurred after the first appeal was taken. Where "the right to assert the second claim did not arise at the same time as the right to assert the first claim,” res judicata will not apply. Id.

      . In their petition for review, appellants also asked for review of the lower courts' decisions to dismiss the declaratory judgment/injunction action as moot.

      . In this case, appellants brought their first appeal and succeeded in having their benefits reduced. However, in a unique turn of events the drainage authority adopted the amended viewers' report pursuant to section 103E.511 after the first appeal resulted in the costs of the improvement exceeding the benefits. Section 103E.511 provides that a drainage authority decision made pursuant to that section may be appealed under section 103E.091. Minn.Stat. § I03E.511, subd. 5(0-Appellants brought their second appeal pursuant to section 103E.091.


author: PAGE, Justice. RUSSELL A. ANDERSON

text:
    STATE of Minnesota, Respondent, v. Keith Bernard REECE, Petitioner, Appellant.
    No. C4-00-684.
    Supreme Court of Minnesota.
    May 17, 2001.

      Mike Hatch, Atty. Gen., St. Paul, Amy Klobuchar, Hennepin County Atty., Paul R. Scroggin, Asst. County Atty., Minneapolis, for plaintiff.
    John M. Stuart, State Public Defender, Susan K. Maki, Asst. State Public Defender, Minneapolis, for defendant.
   OPINION

PAGE, Justice.

A jury found appellant Keith Reece guilty of one count of third-degree criminal sexual conduct in violation of Minn.Stat. § 609.344, subd. 1(c) (2000). Based on his criminal history score of four, his presumptive sentence under the Minnesota Sentencing Guidelines was an executed term of between 84 and 92 months in prison. Believing that Reece’s criminal history score exaggerated his criminal history, the sentencing court sentenced Reece to an executed term of 68 months in prison, the presumptive sentence for an offender with a criminal history score of two convicted of third-degree criminal sexual conduct. On-appeal, the court of appeals reversed, holding that the sentencing court erred when it disregarded two of Reece’s criminal history points. State v. Reece, 615 N.W.2d 852, 854 (Minn.App.2000). Because we conclude that the court of appeals was correct, we affirm.

The relevant facts are as follows. Mary Brooks shared her home with her daughter Melissa, Melissa’s four children, Melissa’s niece Camilla, and Camilla’s child. Reece, Melissa’s boyfriend and the father of two of her children, often stayed at the home. Shortly after midnight on October 24, 1998, Reece arrived at the Brooks’ home and found Camilla, dressed in her bedclothes, watching television. Reece and Camilla smoked marijuana and then, without Camilla’s consent, Reece twice had sexual intercourse with her. According to Camilla, Reece threatened to kill her if she told anyone.

The matter was reported to the police and Reece was eventually charged with one count of third-degree criminal sexual conduct. When first questioned by the police, Reece denied having sexual intercourse with Camilla. At trial, he admitted to having sexual intercourse with Camilla but claimed that the intercourse was consensual. The jury found him guilty as charged.

A presentence investigation indicated that Reece’s criminal history score under the sentencing guidelines was four, based on two previous adult felony convictions. One conviction arose out of a 1978 Texas robbery and murder in which Reece, who was one month past his 16th birthday at the time, stabbed and killed the robbery victim. Reece was charged with murder and tried as an adult. Upon conviction, he was sentenced to 5 to 25 years in prison. He was paroled in 1986 and later moved to Minnesota. He was still on parole at the time he was convicted of sexually assaulting Camilla Brooks. The other felony conviction occurred in 1991, and arose out of an incident in which gunshots were fired at the window of Reece’s apartment from the street below. In returning fire with a shotgun, Reece wounded an innocent bystander. As a result, he was convicted of second-degree assault and sentenced to a stayed three-year prison term and five years’ probation.

At Reece’s sentencing hearing in this case, the court found that there were no aggravating or mitigating factors involved in Reece’s sexual assault of Camilla Brooks and therefore declined to depart from the sentencing guidelines based on the circumstances of the offense. At the same time, the court determined that Reece’s criminal history score of four overstated his criminal history. The court noted “a quasi-self-defense element” in the conduct leading to the 1991 conviction and the fact that three of Reece’s criminal history points resulted from his conviction for conduct that occurred when he was 16 years old. In that regard, the court stated, “I don’t think the guidelines commission * * * had in mind an offense from another state 20 years ago when a defendant was 16 which would have been treated very differently here in 1978 than it would there.” After giving Reece and the state the opportunity to argue the legality of a downward departure from the guidelines based on Reece’s criminal history, and after acknowledging that such a departure did not “necessarily [fit] within any of the enumerated categories for mitigation,” the court sentenced him to an executed term of 68 months in prison. In doing so, the court treated Reece as though he had only two criminal history points and stated that Reece’s presumptive sentence under the sentencing guidelines was longer than necessary to achieve the ends of justice:

I believe * * * 88 months * * * is not necessary to serve the purposes of sentencing [in] this case. I believe that a somewhat lesser amount than that could punish [and] deter him from future conduct, [and] protect the public. It strikes me that Mr. Reece is not a sexual predator out there looking for opportunities. This was a particular set of circumstances * * * that strikes me as not enormously likely to be repeated.

The state appealed, arguing that the sentencing court violated the sentencing guidelines by ignoring two criminal history points attributable to Reece’s Texas murder conviction. The court of appeals, concluding that the sentencing court’s qualitative analysis of Reece’s criminal history was contrary to the purpose of the sentencing guidelines and was prohibited by case law, reversed. Reece, 615 N.W.2d at 854 (citing State v. Schmit, 601 N.W.2d 896, 899 (Minn.1999), and State v. Spain, 590 N.W.2d 85, 88 (Minn.1999)).

A sentencing court’s decision to depart from the sentencing guidelines will not be disturbed absent a clear abuse of discretion. Schmit, 601 N.W.2d at 898. But “the trial court has broad discretion to depart only if aggravating or mitigating circumstances are present”; in the absence of such circumstances, the trial court has no discretion to depart. State v. Best, 449 N.W.2d 426, 427 (Minn.1989). The sentences provided in the sentencing guidelines are presumed to be appropriate and the sentencing court “shall utilize the presumptive sentence * * * unless the individual case involves substantial and compelling circumstances.” Minnesota Sentencing Guidelines II.D; see also id. II. D.03 comment (the purposes of the guidelines cannot be achieved unless presumptive sentences are applied with a high degree of regularity).

Our sentencing guidelines “provide uniform standards for the inclusion and weighting of criminal history information” that are intended to increase the fairness and equity in the consideration of criminal history. Id. II.B.02 comment. They require that an offender’s felony convictions under the laws of other states be included in the offender’s Minnesota criminal history score. See id. II.B.5; id. II.B.501-502 comments. Comments to the guidelines state:

It was contemplated that the sentencing court, in its discretion, should make the final determination as to the weight accorded foreign convictions. In so doing, sentencing courts should consider the nature and definition of the foreign offense, as well as the sentence received by the offender.

Id. II.B.504 comment. Thus, under the sentencing guidelines the sentencing court, in its discretion, is to determine the weight to be accorded an out-of-state conviction after considering the nature and definition of the offense and the sentence imposed for the offense. Id. In doing so, the court must comply with the sentencing guidelines’ mandate that the court determine how the offender would have been sentenced had the offense occurred in Minnesota at the time of the current offense, not when the offense actually occurred out of state. Id. II.B.l.a (“The severity level to be used in assigning weights to prior offenses shall be based on the severity level ranking of the prior offense of conviction that is in effect at the time the offender commits the current offense.”) (emphasis added). Applying current Minnesota law to out-of-state convictions is consistent with the policy that all defendants prosecuted in Minnesota have their criminal history scores computed similarly. Hill v. State, 483 N.W.2d 57, 61 (Minn.1992) (“[I]t would simply be unfair to those defendants receiving criminal history points for prior Minnesota convictions if their counterparts with prior foreign or out-of-state convictions of similar offenses for the same basic conduct did not receive criminal history points for those offenses.”).

The above analysis leads us to conclude that the sentencing court in this case abused its discretion. The sentencing court believed that the Texas offense would have been treated very differently in Minnesota in 1978. In support of the sentencing court’s actions, Reece, relying on State v. Marquetti, 322 N.W.2d 316 (Minn.1982), contends on appeal that the burden was on the state to establish that, had his 1978 Texas offense occurred in Minnesota, he would have been tried as an adult and that the state failed to meet this burden. In Marquetti, we addressed the question of how to treat an earlier Cuban burglary conviction based on the defendant’s theft of some chickens when he was 16 years old. Id. at 318. Noting that the sentencing court should consider the nature and definition of the foreign offense and that in Minnesota 16 year olds are not generally prosecuted as adults for burglaries, we held that the defendant should not have been given a criminal history point for a conviction occurring when he was 16 unless he would have been prosecuted as an adult in Minnesota under the same circumstances. Id. at 318-19.

The problem with the sentencing court’s actions and Reece’s contention is that the record in this case does not indicate that either the court or the parties focused on the nature and definition of the foreign offense and the sentence received. Rather, the focus appears to have been on whether there were grounds for departure. Moreover, the court appears to have considered only how Reece would have been prosecuted in 1978 in Minnesota for the Texas murder. That is clearly inconsistent with the sentencing guidelines’ requirement that the sentencing court determine how the foreign offense would have been treated at the time of the current offense. Minnesota Sentencing Guidelines II.B.l.a. Thus, under these circumstances, remand to the sentencing court for resen-tencing is necessary. On remand, the sentencing court must examine Reece’s Texas offense and determine, in a manner consistent with the requirements of Minnesota’s current sentencing guidelines, how many criminal history points Reece should have.

Affirmed.

RUSSELL A. ANDERSON

(concurring specially).

I concur but write separately to emphasize that under the Sentencing Guidelines a district court lacks the authority to perform the kind of subjective analysis of an offender’s criminal history score the district court performed here. As the commentary to the guidelines indicates, in giving weight to foreign convictions, the sentencing court must exercise its discretion to some extent. Minnesota Sentencing Guidelines II.B.504 comment.

Here the sentencing court did not consider the nature and definition of the foreign offense or the sentence received to determine whether two points for the Texas offense was proper. In addition, neither the state nor Reece disputed the assignment of two criminal history points for the Texas offense. See Minn.R.Crim.P. 27.03, subd. 1(D) (allowing, among other things, a party to challenge the sentencing worksheet and request a hearing for purposes of establishing the correct criminal history score). The court appears to have acknowledged that the criminal history score was properly computed under the guidelines, and instead made an after-the-fact qualitative assessment of the prior offenses, resulting in an effective downward departure where there were admittedly no grounds for such a departure.

Where a court attempted to use the underlying circumstances of prior offenses included in the criminal history score to warrant an upward departure, we stated:

Generally the sentencing court cannot rely on a defendant’s criminal history as a ground for departure. The Sentencing Guidelines take one’s history into account in determining whether or not one has a criminal history score and, if so, what the score should be. Here defendant’s criminal history was already taken into account in determining his criminal history score and there is no justification for concluding that a qualitative analysis of the history justifies using it as a ground for departure.

State v. Magnan, 328 N.W.2d 147, 149-50 (Minn.1983); see also State v. Higginbotham, 348 N.W.2d 327 (Minn.1984). The same rule applies for the, in effect, downward departure exercised here.

Just as a court may not substitute its judgment for the judgment of the guidelines commission as to the designated severity level of a crime, so also a court may not substitute its judgment as to the weight to be given a properly computed criminal history score.

      . Because of the incomplete nature of the record as it relates to Reece’s Texas murder conviction, it is not possible for us to know, with any certainty, the elements of the offense underlying the conviction.

      . The guidelines address juvenile offenses generally, but do not specifically address the treatment of offenses committed in other states while a juvenile. Minnesota Sentencing Guidelines II.B.4.