This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-820

 

State of Minnesota,

Respondent,

 

vs.

 

Diane Lynn Hillbrant,

Appellant.

 

Filed July 25, 2006

Affirmed

Willis, Judge

 

Carver County District Court

File No. 10-TR-03-7975

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Michael A. Fahey, Carver County Attorney, Stuart N. Radde (certified student attorney), Government Center, 604 East Fourth Street, Chaska, MN  55318 (for respondent)

 

Jonathan E. Fruchtman, 1422 West Lake Street, Suite 320, Minneapolis, MN  55408 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*

           
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges her convictions of unauthorized practice of law in violation of Minn. Stat. § 481.02, subd. 1 (2002), arguing that section 481.02 is unconstitutional.  Appellant also challenges the district court’s restitution awards.  Because we conclude that section 481.02 is constitutional and that the district court’s restitution order was not an abuse of discretion, we affirm.

FACTS

            In April 2004, the state charged appellant Diane Lynn Hillbrant, who has never had a Minnesota license to practice law, with six counts of unauthorized practice of law in violation of Minn. Stat. § 481.02, subd. 1 (2002).  Five of the counts were based on Hillbrant’s communications with and attempts to reach a settlement with American Building Contractors, Inc. (ABC) on behalf of a person who had a dispute with ABC regarding allegations of a leaky roof and possible mold contamination in the person’s home.  And one count against Hillbrant was based on the filing of a complaint against Lennar Corp. (Lennar) on September 9, 2003, on behalf of another person with complaints of mold contamination in her home.  In February 2005, a jury convicted Hillbrant of five counts of unauthorized practice of law.  The sixth count was dismissed by the state.

Hillbrant filed a motion for a new trial, which the district court denied.  In April 2005, the district court sentenced Hillbrant to 90 days in jail on each count, to be served consecutively, and a $1,000 fine on each count, all of which were stayed for 12 months.  ABC and Lennar requested restitution in the amount of $7,237.40 and $13,477.30, respectively.  Hillbrant challenged the requested restitution, and after a hearing, the district court ordered Hillbrant to pay restitution in the amount of $6,427.40 to ABC and $13,271.05 to Lennar.  Hillbrant appeals from her convictions and from the restitution order.

D E C I S I O N

I.

 

Hillbrant argues that Minn. Stat. § 481.02 (2002) is unconstitutional because it is a legislative enactment that regulates and criminalizes the unauthorized practice of law, and, under the Separation of Powers Clause of the Minnesota Constitution, only the judiciary can regulate the practice of law.  The state argues that section 481.02 is not a separation-of-powers violation because the statute “merely states who may be prosecuted for the unauthorized practice of law” and “does not proscribe [sic] who may practice law.”  In the alternative, the state argues that the Minnesota judiciary should defer, as a matter of comity, to section 481.02.

The constitutionality of a statute is a question of law, which is reviewed de novo.  Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).  Minnesota statutes are presumed to be constitutional, and the power to declare a statute unconstitutional is “exercised with extreme caution and only when absolutely necessary.”  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  The party challenging the constitutionality of a statute bears the burden of establishing beyond a reasonable doubt that the statute violates a constitutional provision.  Id.

The Minnesota Constitution’s Separation of Powers Clause divides the powers of government among the legislative, executive, and judicial branches and prohibits one branch from exercising any of the powers of another branch.  Minn. Const. art. III, § 1.  “The power to regulate the practice of law rests with the judiciary.”  Sharood v. Hatfield, 296 Minn. 416, 425, 210 N.W.2d 275, 280 (1973).  But “[b]ased on the legislature’s power to enact criminal statutes, . . . the legislature has the authority to determine who may or may not be prosecuted for the unauthorized practice of law.”  Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 755 (Minn. 1992).  The Minnesota Supreme Court has “recognized legislative enactments concerning the practice of law as a matter of comity as long as they are reasonable and in harmony with [the] court’s exercise of its authority to regulate the bar.”  In re Conservatorship of Riebel, 625 N.W.2d 480, 481 n.3 (Minn. 2001) (acknowledging that the legislature has prohibited the unauthorized practice of law in Minn. Stat. § 481.02). 

Section 481.02 makes it unlawful for a person not admitted and licensed to practice law in Minnesota to

appear as attorney or counselor at law in any action or proceeding in any court in this state to maintain, conduct, or defend the same, except personally as a party thereto in other than a representative capacity, or, by word, sign, letter, or advertisement, to hold out as competent or qualified to give legal advice or counsel, or to prepare legal documents, or as being engaged in advising or counseling in law or acting as attorney or counselor at law, or in furnishing to others the services of a lawyer or lawyers, or, for a fee or any consideration, to give legal advice or counsel, perform for or furnish to another legal services, or, for or without a fee or any consideration, to prepare, directly or through another, for another person, firm, or corporation, any will or testamentary disposition or instrument of trust serving purposes similar to those of a will, or, for a fee or any consideration, to prepare for another person, firm, or corporation, any other legal document.

 

Minn. Stat. § 481.02, subd. 1.  Because section 481.02 merely identifies who may be prosecuted for the unauthorized practice of law, it arguably does not violate the Separation of Powers Clause.  But to the extent that section 481.02 defines what actions constitute the practice of law, which encroaches on the judiciary’s authority to regulate the practice of law, we recognize the validity of the section as a matter of comity because it is reasonable and in harmony with the supreme court’s regulation of attorneys.

To protect the public, the supreme court “limits the practice of law to licensed attorneys.”  Riebel, 625 N.W.2d at 481.  And the acts that constitute the practice of law under section 481.02 are consistent with the acts that the supreme court has determined to constitute the practice of law.  See, e.g., id. (representing another in court is the practice of law); In re Disciplinary Action Against Ray, 452 N.W.2d 689, 693 (Minn. 1990) (advising clients in legal matter and attempting to negotiate settlement is the practice of law); Fitchette v. Taylor, 191 Minn. 582, 584, 254 N.W. 910, 911 (1934) (giving advice regarding legal status and rights of another is the practice of law); see also, Minn. R. Prof. Conduct 5.5 2000 cmt. (providing that the “definition of the practice of law is established by law”).  In addition, the comment to rule 5 of the Minnesota Rules of General Practice, which governs court appearances by out-of-state lawyers, recognizes the legitimacy of section 481.02 by stating that the “rule is intended to supplement Minn. Stat. § 481.02 . . . and would supersede the statute to the extent the rule may be inconsistent with it.”  We, therefore, recognize the validity of section 481.02 as a matter of comity. 

            Hillbrant argues that the judiciary should not extend comity to section 481.02, claiming that the “regulation of the practice of law is not an area where the judiciary has extended comity to the legislature.”  Hillbrant cites no caselaw supporting this conclusion.  In fact, the supreme court has recognized legislative regulation of the practice of law.  See, e.g., Cowern v. Nelson, 207 Minn. 642, 647, 290 N.W. 795, 797 (1940) (accepting by comity the legislative exception that allowed real-estate brokers to draft agreements without violating the statute governing unauthorized practice of law); see also Riebel, 625 N.W.2d at 481 n.3 (acknowledging that the supreme court has “recognized legislative enactments concerning the practice of law as a matter of comity”).  Hillbrant proposes methods, other than criminal sanctions, by which the unauthorized practice of law may and should be regulated, but her proposals are irrelevant to whether this court should recognize criminal sanctions as an appropriate response to the unauthorized practice of law. 

            Hillbrant argues that, regardless of whether this court extends comity to section 481.02, the statute is unconstitutional because it violates due process of law by not defining with sufficient certainty what acts constitute the unauthorized practice of law.  Specifically, Hillbrant argues that because the Minnesota judiciary has the “final word” on what is the unauthorized practice of law, section 481.02 is incapable of “conclusively defin[ing] which acts constitute a crime” and is therefore void for vagueness.

            “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”  City of Mankato v. Fetchenhier, 363 N.W.2d 76, 78 (Minn. App. 1985) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983)).  An appellant must demonstrate that a statute lacks specificity as it relates to her own behavior rather than to a hypothetical situation involving an average citizen.  Ruzic v. Comm’r of Pub. Safety, 455 N.W.2d 89, 92 (Minn. App. 1990), review denied (Minn. June 26, 1990).  A statute will not be declared void for vagueness unless “the terms are so uncertain and indefinite that after exhausting all rules of construction, it is impossible to ascertain the legislature’s intent.”  In re Welfare of B.C., 356 N.W.2d 328, 332 (Minn. App. 1984) (quotation omitted).  Because section 481.02 provides an extensive list of acts that are prohibited as the unauthorized practice of law, including those that led to Hillbrant’s convictions, section 481.02 is not void for vagueness.

            Hillbrant also argues that because “only at trial will the judiciary pronounce the final word” on what constitutes the unauthorized practice of law, section 481.02 is an ex post facto law.  The United States and Minnesota constitutions forbid ex post facto laws.  U.S. Const. art. I, § 10, cl. 1; Minn. Const. art. I, § 11.  To violate the Ex Post Facto Clause, a statute must “(1) punish as a crime an act which was innocent when committed; (2) increase the burden of punishment for a crime after its commission; or (3) deprive one charged with a crime of a defense that was available when the crime was committed.”  State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995) (citing Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2719 (1990)), review denied (Minn. July 20, 1995).  Here, section 481.02 was in effect at the time of the actions for which Hillbrant was convicted.  And section 481.02 neither increased the punishment for the unauthorized practice of law after Hillbrant committed these offenses nor does section 481.02 deprive Hillbrant of a defense that was available when she committed the offenses.  Section 481.02 is not, therefore, an ex post facto law as applied to Hillbrant.

            Hillbrant argues that rule 5.5 of the Minnesota Rules of Professional Conduct governs the unauthorized practice of law and that, although her “conduct arguably violated this Rule,” rule 5.5 has since been amended and her conduct does not violate the amended rule.  Because the amended version of rule 5.5 became effective on October 1, 2005, after Hillbrant’s conviction, the amendment does not apply here.

II.

 

            Hillbrant challenges the district court’s restitution awards to ABC and Lennar.  A crime victim has the right to receive restitution as part of the disposition of a criminal charge that results in conviction.  Minn. Stat. § 611A.04, subd. 1(a) (2002).  District courts have broad discretion in ordering restitution.  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999).  Appellate courts review a restitution order for an abuse of discretion.  Id. at 672.  Whether a particular claim may be included in a request for restitution is a question of law reviewed de novo.  State v. Latimer, 604 N.W.2d 103, 104-05 (Minn. App. 1999). 

Restitution to ABC

            Hillbrant argues that this court should reverse the order requiring Hillbrant to pay restitution to ABC in the amount of $6,427.40 because ABC cannot identify or document any economic or out-of-pocket loss.  Hillbrant argues that ABC’s estimated losses were not itemized, were based only on its president’s memory of events that occurred one and a half years earlier, and were not supported by documentation or time records.  When an order for restitution is challenged, the state must establish the amount of the loss sustained by the victim by a preponderance of the evidence.  Minn. Stat. § 611A.045, subd. 3(a) (2002).  A victim seeking restitution must, through affidavit or other competent evidence, describe with “reasonable specificity” the items of loss, itemize the total dollar amounts claimed, and specify the justification for the claim.  Minn. Stat. § 611A.04, subd. 1(a); State v. Keehn, 554 N.W.2d 405, 408 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996). 

            The record shows that ABC submitted a loss statement to the district court, requesting restitution for the following items: (1) $5,850 to compensate ABC’s president at $150 per hour for the 33 hours he spent responding to Hillbrant’s communications with ABC and investigating her claims and for the 6 hours he spent assisting with the criminal investigation and prosecution of Hillbrant; (2) reimbursement for two airplane tickets, at a combined cost of $387.40, purchased to fly ABC’s president to Minnesota to testify; and (3) $1,000 for the time ABC’s staff spent responding to communications from Hillbrant, researching Hillbrant’s credentials and claims, and assisting with the criminal investigation and prosecution of Hillbrant.  These three claims are supported by ABC’s president’s testimony at the restitution hearing and by letters from ABC’s president and three ABC staff members, estimating the amount of time that each spent dealing with Hillbrant.  The three staff members estimated spending approximately 16 hours, 13 hours, and 25 hours, respectively, for a total of 54 hours, to investigate and respond to Hillbrant’s communications.  ABC’s president testified that he and the staff members tried to be conservative in their time estimates. 

The district court declined to award ABC the full amount of its restitution claim because it was not proved with exact “specificity.”  Instead, the district court allowed restitution in the amount of $6,427.40, which includes $387.40 for the two plane tickets; $5,400 for 36 hours of ABC’s president’s time at $150 per hour; and $640 for 16 hours of staff time at $40 per hour.  Because the record supports the claims for restitution, we conclude that the district court did not abuse its discretion by awarding ABC restitution in the amount of $6,427.40.

Hillbrant also argues that the time ABC’s president and staff spent assisting with her criminal investigation and prosecution is not the proper subject of restitution.  Hillbrant argues that compensating a victim for “preparing for and testifying during the course of a criminal prosecution” penalizes a defendant’s constitutional right to choose to go to trial and that allowing restitution for such activities will result in defendants “entering guilty pleas to avoid trials and potentially large restitution claims.”  For support, Hillbrant relies on State v. Winkler, No. C6-96-2320, 1997 WL 104854 (Minn. App. Mar. 11, 1997), an unpublished case.[1] 

Not only is Winkler not precedential but also it is not persuasive.  In that case, this court concluded that the “personal time” the victims spent cancelling false magazine subscriptions and a false contribution did not result in “out-of-pocket losses, such as missed work time.”  1997 WL 104854, at *1.  And as the state points out, this court has concluded that a victim may receive restitution for lost wages and travel expenses incurred while participating in criminal investigations.  See In re Welfare of J.A.D., 603 N.W.2d 844, 847 (Minn. App. 1999) (concluding, in dictum, that if victim had been “old enough to have a job and drive to the police station to give her statement, reimbursement for lost wages and travel expenses via the restitution order would not be problematic”).  This court noted that if victims are not compensated for out-of-pocket losses incurred in their participation in criminal investigations, “police investigations could be compromised or . . . some victims would not be able to participate in . . . investigations.”  Id.  And an employer may be compensated for the wages of employees who are unable to complete their regular work because of a defendant’s crime.  See In re Welfare of D.D.G., 532 N.W.2d 279, 280, 283 (Minn. App. 1995) (concluding that district court properly awarded restitution to school district for the wages of custodians who were unable to work because of a bomb threat at school), review denied (Minn. Aug. 30, 1995).  Here, the record shows that ABC’s president and staff were diverted from their regular work duties and spent paid work time assisting with the criminal investigation and prosecution of Hillbrant.  Therefore, compensation to ABC for the lost work time of its employees is justified.

Restitution to Lennar

            Hillbrant next argues that this court should reverse the restitution order requiring her to pay Lennar $13,271.05 because the order improperly compensates Lennar for the following costs that are not directly related to the crime of which she was convicted:  costs that precede the acts for which Hillbrant was convicted; costs incurred serving and pursuing a petition for a harassment restraining order (HRO) against Hillbrant; and costs incurred filing a disciplinary complaint against Hillbrant. 

A district court may impose sanctions for “any out-of-pocket losses resulting from the crime.”  Minn. Stat. § 611A.04, subd. 1(a).  But a victim’s losses must be directly caused by a defendant’s criminal conduct.  Latimer, 604 N.W.2d at 105.  Minnesota courts apply a but-for analysis when considering whether a victim’s economic harm was directly caused by a defendant’s criminal conduct.  See, e.g., D.D.G., 532 N.W.2d at 282-83 (concluding that the out-of-pocket losses “would not have occurred but for appellant’s conduct”). 

The state argues that “[a]ll actions taken on behalf of Lennar Corporation by its legal counsel and private detectives were a direct result of [Hillbrant’s] unauthorized practice of law.”  Although the state admits that Hillbrant was not charged with unauthorized practice of law for her contacts with Lennar before September 9, 2003, the date that she filed a complaint against Lennar on behalf of her client, the state argues that the record shows that Hillbrant contacted Lennar many times on behalf of her client before September 9 and as a direct result, in August 2003, Lennar sought an HRO against Hillbrant, hired a private investigator to find Hillbrant to serve the HRO, and filed a complaint against Hillbrant with the Minnesota Office of Lawyers Professional Responsibility.

In its order awarding Lennar restitution for its private-investigator and attorney fees, the district court concluded that these fees were “incurred by the victims as a result of the defendant’s unauthorized practice of law on the dates set forth in the formal complaint.”  Although Hillbrant filed the complaint against Lennar on September 9, 2003, she necessarily committed the unauthorized practice of law during the time leading up to the actual filing of the complaint and caused Lennar to incur expenses before September 9, 2003.  But for Hillbrant’s unauthorized practice of law Lennar would not have sought an HRO or filed a lawyer-discipline complaint.  We conclude, therefore, that pre-September 9 expenses were properly included in Lennar’s request for restitution.  Because the record supports Lennar’s restitution claims, the district court did not abuse its discretion by awarding Lennar restitution in the amount of $13,271.05.

Affirmed.