Filed 5/14/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 108

Traynor Law Firm, PC, Plaintiff, Appellant and Cross-Appellee

v.

State of North Dakota, 

c/o Governor Doug Burgum; Defendant, Appellee and Cross-Appellant

and 

The Board of Ward County Commissioners, Defendant and Appellee

No. 20190310

Appeal from the District Court of Ward County, North Central Judicial 

District, the Honorable Gary H. Lee, Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Opinion of the Court by Crothers, Justice.

Jonathon Yunker (argued) and Jason P. Sayler (on brief), Devils Lake, ND, for

plaintiff, appellant and cross-appellee.

James E. Nicolai, Office of Attorney General, Bismarck, ND, for defendant, 

appellee and cross-appellant.

Howard D. Swanson, Special Assistant State’s Attorney, Grand Forks, ND, for 

defendant and appellee.
1

Traynor Law Firm v. State, et al.

No. 20190310

Crothers, Justice.

[¶1] Traynor Law Firm, PC, appeals the district court judgment awarding 6%

interest on a bill for legal services. The State of North Dakota cross-appeals 

and argues Ward County is responsible for paying Traynor’s bill, and the 

district court erred awarding any interest. We affirm in part, reverse in part

and remand for further proceedings.

[¶2] Dustin Irwin died on October 6, 2014, in the Ward County jail. The 

circumstances of his death led to an investigation and criminal charges against 

Ward County Sheriff Steven Kukowski. Initially, Divide County State’s 

Attorney Seymour Jordan was appointed to handle the criminal proceeding. 

Jordan determined the circumstances justified a petition for removal of Sheriff 

Kukowski from office. Governor Jack Dalrymple appointed Jordan as the 

special prosecutor for the removal. Ultimately, Jordan requested to withdraw 

and Governor Burgum appointed attorney Daniel Traynor as the special 

prosecutor. After completion of the removal proceedings, Traynor submitted 

his bill to the State on May 1, 2017. The State forwarded the bill to Ward 

County. Ward County refused to pay the bill. 

[¶3] Traynor sued the State and Ward County to recover the unpaid fees. The 

State responded to Traynor’s complaint by filing a motion to dismiss. Ward 

County answered Traynor’s complaint and cross-claimed against the State. 

The State moved to dismiss Ward County’s cross-claim. Traynor moved for 

judgment on the pleadings. The district court entered judgment in Traynor’s 

favor against the State, and awarded interest at 6% per annum under Chapter 

47-14, N.D.C.C., starting June 1, 2017. The court dismissed Traynor’s claim

against Ward County.

I

[¶4] The State and Ward County do not dispute the amount of Traynor’s fees.

The disputes are who is responsible to pay those fees and whether interest is 

recoverable. Therefore, the issue is one of law. Questions of law are reviewed
2

de novo on the entire record. Bladow v. Bladow, 2005 ND 142, ¶ 9, 701 N.W.2d 

903. However, the determination of whether a contract existed between 

Traynor and either defendant is a mixed question of law and fact. This Court 

“fully review[s] conclusions of law and mixed questions of law and fact under 

the de novo standard.” Burlington Northern R.R. v. Fail, 2008 ND 114, ¶ 5, 751 

N.W.2d 188.

II

[¶5] The State argues Ward County must pay Traynor’s bill because Chapter 

44-11, N.D.C.C., fails to address who should pay for the special prosecutor fees

in a county official’s removal proceeding, and therefore the catch-all provision 

in N.D.C.C. § 54-12-03 applies. The State argues N.D.C.C. § 54-12-03 mandates 

Ward County is responsible to pay expenses incurred in prosecuting any case 

resulting from an investigation by the Attorney General. 

[¶6] Ward County argues neither Chapter 44-11, N.D.C.C., nor Chapter 54-

12, N.D.C.C., imposes an obligation upon a county to pay the fees of an attorney 

appointed by the Governor for proceedings for the removal of a public official.

[¶7] Chapter 44-11, N.D.C.C., establishes the procedure for when an officer 

is removed by the Governor. Section 44-11-01, N.D.C.C., states, “The governor 

may remove from office any county commissioner, sheriff . . . whenever it 

appears to the governor by a preponderance of the evidence after a hearing as 

provided in this chapter, that the officer has been guilty of misconduct. . . .” 

Here, Ward County Sheriff, Steven Kukowski, was the public official to be 

removed. Therefore, Chapter 44-11, N.D.C.C., applies to these proceedings.

[¶8] Section 44-11-02, N.D.C.C., provides the process and in pertinent part 

states: 

“1. The petition against any official authorized to be removed by 

the governor must be entitled in the name of this state and must 

be filed with the attorney general.

. . . .

4. When the petition is filed, the attorney general shall conduct an 

investigation within thirty days. Upon completion of the 
3

investigation, the attorney general shall make a recommendation 

to the governor whether a removal proceeding should be conducted 

by a special commissioner, and if so, whether the accused officer 

should be suspended during the pendency of the proceeding. 

5. Upon receipt of the recommendation of the attorney general the 

governor shall determine whether to proceed with the 

appointment of a special commissioner. . . . If the governor decides 

to appoint a special commissioner, the governor shall request that 

a prosecutor draft and serve the official complaint against the 

officer.

a. When the officer sought to be removed is other than the 

state’s attorney, the state’s attorney or other competent 

attorney, upon request of the governor, shall appear and 

prosecute.”

[¶9] The State argues N.D.C.C. § 54-12-03 applied on its own and mandates 

Ward County is responsible to pay Traynor’s fees. Section 54-12-03, N.D.C.C.,

authorizes the attorney general to investigate and prosecute criminal matters 

in counties. It states: 

“The attorney general may make an investigation in any county in 

this state to the end that the laws of the state shall be enforced 

therein and all violators thereof brought to trial, when: 

1. The attorney general deems it necessary for the successful 

enforcement of the laws of the state in such county; 

2. Requested by a majority of the members of the board of 

county commissioners of the county; or 

3. Petitioned by twenty-five taxpaying citizens of the county. 

The necessary expenses incurred in making the investigation or in 

prosecuting any resulting case, as determined by the attorney 

general and not otherwise specifically provided by law, must be 

paid by the county out of the state’s attorney’s contingent fund. All 

such expenses paid from the state’s attorney’s contingent fund 

must be paid by the county treasurer upon the warrant of the 

county auditor. The warrant must be executed and delivered by 

the auditor in an amount and to the person designated therein 

upon the written order of the attorney general.”

[¶10] The district court concluded Chapter 44-11, N.D.C.C., is silent regarding 

the payment of special prosecutor fees in a removal proceeding, and it is not 
4

necessary or required to import N.D.C.C. § 54-12-03 into Chapter 44-11. The 

district court explained:

“The plain language of the Chapter and the Statute do not 

support North Dakota’s argument. Section 54-12-03, NDCC, 

provides the Attorney General with the authority to make an 

investigation when the Attorney General deems it necessary for 

successful enforcement of the laws, is requested to do so by a 

majority of the members of the Board of County Commissioners,

or is petitioned by twenty-five taxpaying citizens of the county. 

None of these events occurred. Chapter 44-11, NDCC, requires the 

Attorney General to make an investigation and make a 

recommendation to the Governor upon the filing of a petition for 

removal of a public officer. Filing a petition of removal required by 

Chapter 44-11, NDCC, is not included in Section 54-12-03, NDCC.

“Section 54-12-03, NDCC, authorizes the Attorney General 

to conduct investigations, and to charge the fees for the Attorney 

General’s expenses. The fees of the investigation is then the 

responsibility of the county, and are to be paid [from] the State’s 

Attorney’s contingency fund. However, it is the Governor, not the

Attorney General, who makes the decision whether a removal 

proceeding should be initiated. Section 4[4]-11-02, NDCC. The

expenses incurred in a removal proceeding are those made 

necessary by the actions of the Governor as a result of the exercise 

of his powers. The expenses incurred are not the expenses of the 

Attorney General, but rather the expenses incurred by the Special 

Prosecutor. It would seem therefore that absent some legislative

directive that would shift the cost of the investigation to some 

other public entity that the expenses of Special Prosecutor in a 

removal proceeding are the responsibility of the Governor.

“The plain language of Section 44-11-01, NDCC, by its scope, 

also removes the Chapter from Section 54-12-03, NDCC. As noted 

above, Section 44-11-01, NDCC, allows the Governor to remove not 

only county officials, but school board members, city officials, 

township officials, and other governmental officers. The removal 

proceeding is the same for all. That is, a petition for removal is 

filed. The Attorney General investigates and makes 

recommendations to the Governor. The Governor then determines

whether the removal process should go forward. A Special 
5

Prosecutor is called in. There is no authority in Section 54-12-03, 

NDCC, to pass the costs of the Special Prosecutor on to other 

governmental entities such as school boards, cities, or townships. 

Importing Section 54-12-03, NDCC, into Chapter 44-11, NDCC, 

would mean that in a removal proceeding only counties would pay 

the expenses of the Special Prosecutor from the State’s Attorney’s 

contingency fund[.] All other governmental entities would get a 

free pass. North Dakota offers no reasonable explanation for why 

the legislature would impose this burden only on the counties, but 

not on school boards, cities, townships, or the like.

“Chapter 44-11, NDCC, is silent regarding the payment of 

the Special Prosecutor in a removal proceeding. It is not necessary, 

or required to import Section 54-12-03, NDCC, into Chapter 44-11, 

NDCC.

“When the Code is silent on a particular issue, the commonlaw then prevails. Lembke v. Unkie, 171 NW2d 837 (ND 1969); 

Estate of Conley, 2008 ND 148, 753 NW2d 384.”

[¶11] We agree with the district court’s determination. Therefore, because 

Chapter 44-11 is silent on who pays attorney fees, the analysis must be done 

under contract law.

III

[¶12] Traynor argues although no formal “retainer agreement” existed

between it and the State, written instruments, correspondence, and conduct 

establish an implied contract. Traynor also argues the silence or inaction of the 

State regarding the interest rate on the invoice constituted acceptance or 

assent. 

[¶13] The State argues the district court conflated the existence of an attorneyclient relationship with an obligation to pay and, without a written agreement, 

Traynor is not entitled interest at its purported contract rate of 1.5% per 

month.

[¶14] The district court concluded as a matter of contract law an attorneyclient relationship existed between Traynor and the State, but no written 
6

contract existed between them, and therefore the 6% per annum interest rate

under Chapter 47-14, N.D.C.C., applied. 

[¶15] An attorney-client relationship exists as a matter of common law of 

contracts when parties explicitly, or implicitly agree that the attorney will 

provide legal services to the client. Veit v. Anderson, 428 N.W.2d 429 (Minn. 

Ct. App. 1988). The relationship is established when a party seeks and receives 

the assistance of an attorney on legal matters. In re: Disciplinary Action 

Against Giese, 2003 ND 82, ¶ 17, 662 N.W.2d 250.

[¶16] A contract requires parties capable of contracting, consent of the parties, 

a lawful object, and sufficient consideration. N.D.C.C. § 9-01-02. A contract can 

be either express or implied. N.D.C.C. § 9-06-01. “An express contract is one 

the terms of which are stated in words. An implied contract is one the existence 

and terms of which are manifested by conduct.” Id. In Zirnhelt v. Ransom 

Cnty., 137 N.W.2d 785, 789 (N.D. 1965), this Court noted:

“A contract is implied where a person performs services, furnishes 

property, or expends money for another, at such other’s request, 

and there is no express agreement as to compensation. A promise 

to pay for the reasonable value of the service or property so 

furnished, or to reimburse for money so expended, may be implied 

where, and only where, the circumstances warrant such 

implication.” 

[¶17] Traynor cites B.J. Kadrmas, Inc. v. Oxbow Energy, LLC, 2007 ND 12, 

727 N.W.2d 270, to support its argument that in this case silence and inaction 

operated as acceptance. The State argues Oxbow Energy does not control 

because the contract at issue in Oxbow Energy was not a bill for legal services 

subject to the reasonableness requirements of Rule 1.5(a) of the North Dakota 

Rules of Professional Conduct.

[¶18] In Oxbow Energy, Petrosearch and Oxbow contracted with Oil for 

America (OFA) to drill wells on land OFA leased or sought to lease. 2007 ND 

12, ¶ 2, 727 N.W.2d 270. Robert Angerer from OFA met with Bev Kadrmas to 

discuss having her company perform title searches on various lands. Id. He 

asked her to make separate agreements with him on behalf of OFA, Dan 
7

Denton for Petrosearch, and Tony Martin for Oxbow. Id. OFA and Petrosearch 

signed contracts with Kadrmas and paid for their portion of the title work. 

Oxbow did not. Id. Kadrmas testified Martin told her to proceed with Oxbow’s 

share during a telephone conversation. That same day she sent Martin a letter 

memorializing the conversation with him and enclosing a contract for Martin 

to sign. Id. at ¶ 3. 

[¶19] The district court concluded an implied contract existed between the 

parties. Oxbow Energy, 2007 ND 12, ¶ 14, 727 N.W.2d 270. The surrounding 

circumstances and conduct of the parties were relevant to ascertain whether 

they intended to form a binding legal agreement. Id. In the written contract 

Kadrmas explained her daily labor rate, additional expenses charged, and the 

land tracts to be searched. Id. at ¶ 15. Kadrmas hired additional workers and 

incurred substantial expenses based on the conduct of the parties. Id. Kadrmas 

dutifully kept Martin informed on the progress of the work she did on his 

company’s behalf, she emailed him for correct contact information, explained 

that additional landmen were hired, and informed Martin he would receive 

title reports “soon.” Martin also updated Kadrmas with his contact information 

and did not dispute any of the invoices. Id. at ¶¶ 16-17. This Court concluded 

the district court’s findings of fact were not clearly erroneous, and its 

conclusions of law were supported by its findings. Id. at ¶ 18.

[¶20] This case is like Oxbow Energy because the conduct of Traynor and the 

State support the conclusion that the parties mutually intended to form a 

binding legal obligation. All communications prior to the commencement of the

representation were between the State and Traynor. The Governor sent 

Traynor an appointment letter and work on the removal began at the direction 

of the Governor. David Owens, an associate at Traynor Law Firm, testified 

services and fees were discussed at a meeting with the Bureau of Criminal 

Investigation (BCI), the attorney general, and deputy attorney general, and 

conversations regarding the removal happened between Traynor and the 

State. Upon conclusion of its services, Traynor sent the invoice to “Governor 

Doug Burgum, State of North Dakota.” Based on these facts, the district court 

did not err in finding a contract existed for legal services between Traynor and 

the State.
8

IV

[¶21] Traynor argues the district court erred by awarding 6% per annum 

interest instead of the 1.5% monthly interest rate stated on its bill. We agree. 

[¶22] The district court concluded in the absence of a written contract which 

specifies the amount of interest to be charged, the legal rate of interest stated 

in N.D.C.C. § 47-14-05 applies. Chapter 47-14, N.D.C.C., relates to loans of 

money. Section 47-14-01, N.D.C.C., defines “loan of money” as “a contract by 

which one delivers a sum of money to another and the latter agrees to return 

at a future-time a sum equivalent to that which the person borrowed. A loan 

for mere use is governed by chapter 47-12.”

[¶23] Traynor delivered legal services to the State and billed it for those 

services. There was no contract where one person agreed to loan money and 

another agreed to return money at a future time. Therefore, no loan of money 

existed. Because Chapter 47-14, N.D.C.C., applies to “loans of money” and 

there was no loan for money, the district court improperly applied the 6% per 

annum interest rate in N.D.C.C. § 47-14-05.

[¶24] Traynor argues Chapter 13-01.1, N.D.C.C., applies because Traynor falls 

within the plain meaning of a “business” in N.D.C.C. § 13-01.1-01. Traynor 

further argues the State’s reliance on Johnson v. North Dakota Workers 

Compensation Bureau, 428 N.W.2d 514 (N.D. 1988), is not applicable in this 

matter because the Johnson Court applied Chapter 13-01.1, N.D.C.C., to 

Section 65-02-08, and this claim does not involve Title 65. 

[¶25] The State responds by arguing the district court erred in awarding 

Traynor any interest on the underlying bill for legal services, and the Court’s 

holding in Johnson excluding legal services from the word “business” in

N.D.C.C. § 13-01.1-01 in reference to worker’s compensation cases, applies 

with equal force for legal services provided under Chapter 44-11, N.D.C.C. The 

State argues in the alternative that Traynor is prohibited under the North 

Dakota Rules of Professional Conduct from charging interest at 1.5% per 

month.
9

[¶26] Section 13-01.1-01, N.D.C.C., requires prompt payment and states: 

“Every state agency . . . which acquires property or services 

pursuant to a contract with a business shall pay for each complete 

delivered item of property or service on the date required by 

contract between such business and agency or, if no date for 

payment is specified by contract, within forty-five days after 

receipt of the invoice covering the delivered items or services . . . .”

Section 13-01.1-02, N.D.C.C., states when an interest payment is required:

“Interest must accrue and be made on payments overdue under 

section 13-01.1-01 at the rate of one and three-fourths percent per 

month, unless a different rate is specified within the contract upon 

which the claim is based. Interest must accrue beginning on the 

day after payment is due, if payment due date is specified by 

contract, or on the day of receipt of the invoice covering the 

delivered goods or services, if payment is not made within fortyfive days. Interest ceases to accrue on the date payment is made.”

[¶27] Section 13-01.1-03, N.D.C.C., states when interest must compound, 

noting, “Any interest which remains unpaid at the end of any forty-five-day 

period or which remains unpaid at the end of any specified period provided by 

contract must be added to the principal amount of the debt and must thereafter 

accumulate interest.”

[¶28] This Court discussed Chapter 13-01.1 in Johnson v. North Dakota 

Workers Compensation Bureau, 428 N.W.2d 514 (N.D. 1988). In Johnson, 

Margaret Johnson argued she was not fully reimbursed for the expenses of 

traveling to and from medical and rehabilitation treatments. She requested 

twenty cents per mile for the cost of driving her own vehicle and a per diem 

allowance for food and lodging at the same rate as state employees. Id. at 515. 

Johnson argued the Bureau must “pay interest on bills or legal services which 

were not timely paid as provided by Chapter 13-01.1.” Id. at 519. This Court 

explained that on its face Chapter 13-01.1 makes no reference to payment for 

legal services and the term business “may imply an ambiguity.” Id. at 519. The 

Court looked at the legislative history for Chapter 13-01.1 and determined,

“the legislation is intended to stimulate governmental entities to make prompt 
10

payment to the small retail businesses which provide them goods and services.” 

Id. at 519-520 and n.6. This Court stated, “[w]e decline to broaden the 

Legislature’s interpretation of ‘business’ as used in Chapter 13-01.1 to include 

legal services rendered to Worker’s Compensation claimants. We therefore 

conclude that Chapter 13-01.1, N.D.C.C., does not compel the Bureau to pay 

interest on attorneys’ fees.” Id. at 520.

[¶29] This case is different than Johnson. 428 N.W.2d 514. Johnson sought 

reimbursement of attorney fees from a third party, the Workers Compensation 

Bureau. The Bureau was required to pay Johnson’s attorney fees. Id. at 519. 

Here, Traynor was not seeking reimbursement and interest from a third party. 

Rather, it sought payment from a client. Therefore, Johnson v. North Dakota 

Workers Compensation Bureau, 428 N.W.2d 514 (N.D. 1988), must be limited 

to the facts in that case. 

[¶30] “Interpretation of a statute is a question of law fully reviewable on 

appeal. Our primary goal in statutory construction is to ascertain the intent of 

the legislature, and we first look to the plain language of the statute and give 

each word of the statute its ordinary meaning.” PHI Fin. Servs., Inc. v. 

Johnston Law Office, P.C., 2020 ND 22, ¶ 10, 937 N.W.2d 885. In 1985 when 

Chapter 13-01.1 was enacted, Black’s Law Dictionary defined “business” as: 

“Employment, occupation, profession, or commercial activity 

engaged in for gain or livelihood. Activity or enterprise for gain, 

benefit, advantage or livelihood . . . . That which habitually busies 

or occupies or engages the time, attention, labor, and effort of 

persons as a principal serious concern or interest or for livelihood 

or profit.” 

BUSINESS, Black’s Law Dictionary (5th ed. 1979) (internal citations omitted).

[¶31] The evidence here shows Traynor was engaged in a commercial activity 

for gain or livelihood. David Owens, an associate at Traynor Law Firm,

testified:

“[P]racticing law at this firm is my livelihood. I have no other 

source of income from ancillary employment or what can be 
11

considered a part-time job. I believe the same can be said of many 

of my colleagues. We engage in commercial activities of providing 

legal services through our trade of practicing law.” 

Owens testified Traynor Law Firm is a professional corporation that is 

registered with the secretary of state, and that the North Dakota Business 

Corporation Act states a corporation may be incorporated under the chapter 

for any lawful business purpose or purposes. He testified, “my reading leads 

me to believe that ‘incorporation’ has general business purposes and there is a 

presumption to that.”

[¶32] Under the facts in this case, Traynor is a “business” under N.D.C.C. § 

13-01.1-01. Because the State and Traynor had an implied contract, and

Traynor’s activities fall within the plain meaning of “business,” N.D.C.C. § 13-

01.1-01 applies. 

[¶33] Here, the State has not made a payment. Therefore, the State’s 

payments are overdue under N.D.C.C. § 13-01.1-01 and N.D.C.C. § 13-01.1-02 

applies. It states, “Interest must accrue and be made on payments overdue 

under section 13-01.1-01 at the rate of one and three-fourths percent per 

month, unless a different rate is specified within the contract upon which the 

claim is based.” Here, an implied contract existed. Traynor’s invoice noted a 

1.5% monthly interest rate. Therefore, a different rate is specified, and the 

1.75% interest rate does not apply. Under N.D.C.C. § 13-01.1-03, any interest 

which remains unpaid at the end of 45 days must be added to the principal 

amount of the debt and must thereafter accumulate interest. As a matter of 

law the State is responsible to pay 1.5% interest compounded after 45 days as 

required by N.D.C.C. §§ 13-01.1-02 and 13-01.1-03.

[¶34] The State argues Rule 1.5 of the North Dakota Rules of Professional 

Conduct prohibits Traynor from charging 1.5% monthly interest because the 

invoice charging 1.5% interest after 30 days is a unilateral attempt to charge 

a client interest on a delinquent account.

[¶35] Rule 1.5 of the North Dakota Rules of Professional Conduct in pertinent 

part states:
12

“(a) A lawyer shall not make an agreement for, charge, or collect 

an unreasonable fee or an unreasonable amount for expenses. The 

factors to be considered in determining the reasonableness of a fee 

include the following:

(1) the time and labor required, the novelty and difficulty of the 

questions involved, and the skill requisite to perform the legal 

service properly;

(2) the likelihood, if apparent to the client, that the acceptance of 

the particular employment will preclude other employment by the 

lawyer;

(3) the fee customarily charged in the locality for similar legal 

services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the 

circumstances;

(6) the nature and length of the professional relationship with the 

client;

(7) the experience, reputation, and ability of the lawyer or lawyers 

performing the services; and

(8) whether the fee is fixed or contingent.

(b) When the lawyer has not regularly represented the client, the 

basis, rate, or amount of the fee and expenses for which the client 

will be responsible shall be communicated to the client, preferably 

in writing, before or within a reasonable time after commencing 

the representation.”

[¶36] Rule 1.5 of the North Dakota Rules of Professional Conduct is clear when 

the lawyer does not regularly represent the client, as was the case here, the 

basis, rate, or amount of fee and expenses should be communicated to the client 

preferably in writing. No writing was provided. However, Traynor was 

appointed as special prosecutor under statute. See Ch. 44-11, N.D.C.C. When 
13

the bill must be paid also is controlled by statute. N.D.C.C. § 13-01.1-01. If the 

bill is not timely paid, the rate of interest is stated in N.D.C.C. § 13-01.1-02. 

The fact that Traynor requested less than the statute authorizes indicates the 

rate of interest is reasonable under Rule 1.5 of the North Dakota Rules of 

Professional Conduct. Interest at that rate may be collected after 45 days as 

permitted by N.D.C.C. § 13-01.1-02, rather than after 30 days as stated on 

Traynor’s statement.

V

[¶37] We affirm in part and reverse in part, and remand for further 

proceedings consistent with this opinion.

[¶38] Daniel J. Crothers

Jerod E. Tufte

Dann E. Greenwood, D.J.

Daniel D. Narum, D.J.

Jon J. Jensen, C.J.

[¶39] The Honorable Dann E. Greenwood, D.J., sitting in place of VandeWalle, 

J., disqualified.

[¶40] The Honorable Daniel D. Narum, D.J., sitting in place of McEvers, J., 

disqualified.