State Of N.D. v. Emil

• Decision Date: 30 June 2010
• Docket Number: 20090287.,No. 20090286,20090286
• Parties: STATE of North Dakota, Plaintiff and Appellantv.Kim Rene EMIL, Defendant and AppelleeState of North Dakota, Plaintiff and Appellantv.Wayne George Emil, Jr., Defendant and Appellee.
• Court: North Dakota Supreme Court

784 N.W.2d 137
2010 ND 117

STATE of North Dakota, Plaintiff and Appellant
v.
Kim Rene EMIL, Defendant and Appellee
State of North Dakota, Plaintiff and Appellant
v.
Wayne George Emil, Jr., Defendant and Appellee.

Nos. 20090286, 20090287.

Supreme Court of North Dakota.

June 30, 2010.

784 N.W.2d 138

Allen M. Koppy (argued), State's Attorney, Mandan, ND, for plaintiff and appellant.

William R. Thomason (argued), Bismarck, ND, for defendant and appellee Wayne George Emil, Jr.

Michael R. Hoffman (appeared), Bismarck, ND, for defendant and appellee Kim Rene Emil.

KAPSNER, Justice.

[¶ 1] The State appeals from a district court order granting Wayne Emil, Jr. and Kim Emil's motions to suppress. We dismiss the appeal because the State failed to file sufficient prosecutor's statements under N.D.C.C. § 29-28-07(5).

I.

[¶ 2] In April 2003, Wayne Emil, Jr. filed a claim with Workforce Safety and Insurance (WSI), alleging he suffered a work-related injury. WSI accepted the claim and began paying disability benefits. In 2007, WSI began investigating whether Wayne Emil, Jr. had made material false statements to WSI by failing to report income and work activities on periodic injured worker status reports. While Wayne Emil, Jr. reported earning $70 from Lady Bug Lawn Service for ten hours of work from May 1 to May 7, 2007, WSI suspected he had performed work and received compensation beyond the reported amounts. As part of its fraud investigation, WSI issued administrative subpoenas duces tecum to two credit unions.

784 N.W.2d 139

The subpoenas sought financial records for “Wayne Emil Jr.” or “Wayne Emil Jr. d/b/a Lady Bug Lawn Service.” In response to the subpoenas, the credit unions produced records from Wayne Emil, Jr.'s personal account and a loan application submitted by Wayne Emil, Jr. In addition, one credit union produced information from an account under the name “Lady Bug Lawn Service.” The Lady Bug Lawn Service records indicated the account was opened by Kim Emil, Wayne Emil, Jr.'s wife. The credit unions did not have any accounts under the name “Wayne Emil Jr. d/b/a Lady Bug Lawn Service.” WSI used information obtained from the credit unions to contact Lady Bug Lawn Service customers and determine the extent of Wayne Emil, Jr.'s work for the company.

[¶ 3] Following its investigation, WSI initiated administrative proceedings to terminate Wayne Emil, Jr.'s disability benefits. WSI claimed Wayne Emil, Jr. had willfully and intentionally failed to report income and work activities. An administrative law judge found in favor of WSI, terminated Wayne Emil, Jr.'s disability benefits, and ordered him to pay $30,857.82 in restitution. The State then pursued criminal charges against both Wayne Emil, Jr. and Kim Emil. The State charged Wayne Emil, Jr. with workforce safety fraud under N.D.C.C. § 65-05-33 and Kim Emil as an accomplice to workforce safety fraud under N.D.C.C. §§ 65-05-33 and 12.1-03-01. The State alleged Kim Emil worked with Wayne Emil, Jr. in conducting the business activities of Lady Bug Lawn Service, and she was a knowing accomplice to his unreported work activities and income.

[¶ 4] Wayne Emil, Jr. and Kim Emil filed motions to suppress any financial records obtained from the credit unions regarding Kim Emil or Lady Bug Lawn Service. They argued the credit unions illegally provided records from the Lady Bug Lawn Service account because WSI's subpoenas only requested records for “Wayne Emil Jr.” or “Wayne Emil Jr. d/b/a Lady Bug Lawn Service,” and no entity called “Wayne Emil Jr. d/b/a Lady Bug Lawn Service” exists. The district court agreed and issued an order suppressing financial records under the name: Kim Emil, Kim Emil d/b/a Lady Bug Lawn Service, or Lady Bug Lawn Service. The State now appeals from the district court order granting the motions to suppress. However, as a preliminary matter, Wayne Emil, Jr. and Kim Emil argue this Court should dismiss the State's appeal because the State failed to file sufficient prosecutor's statements.

II.

[¶ 5] “The prosecution's right to appeal in a criminal case is strictly limited by statute.” City of Harvey v. Fettig, 2001 ND 12, ¶ 5, 621 N.W.2d 324. The State may only appeal from an order suppressing evidence “when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” N.D.C.C. § 29-28-07(5). “The purpose of the statutory requirement is to ensure that the prosecutor has carefully evaluated the State's case, and the actual effect of the suppression order, before filing the notice of appeal.” Fettig, at ¶ 6 (emphasis in original) (citing State v. Norton, 2000 ND 153, ¶ 5, 615 N.W.2d 531; State v. Schindele, 540 N.W.2d 139, 140 (N.D.1995)). As we explained in Schindele, at 141:

The language in section 29-28-07(5), NDCC, requiring the prosecutor to assert that the suppressed evidence is “a substantial proof of a fact material in the proceeding” was added to the statute in

784 N.W.2d 140

1985. 1985 N.D. Laws ch. 363 § 1. It replaced language requiring the prosecutor to assert that, without the suppressed evidence, the state's case was “(1) insufficient as a matter of law, or (2) so weak in its entirety that any possibility of prosecuting such charge to a conviction has been effectively destroyed.” Id. With the revision of this section, the legislature liberalized the state's right to appeal. [ State v. Allery, 371 N.W.2d 133, 135 n. 1 (N.D.1985) ]. We construed the new language in section 29-28-07(5), NDCC, for the first time in State v. Murray, 510 N.W.2d 107 (N.D.1994). We stated that the statute imposed a burden on the state to show that the suppressed evidence is actually “substantial proof of a fact

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