dissenting.
[¶ 14] I respectfully dissent, because the State has complied with the plain language of N.D.C.C. § 29-28-07(5).
I
[¶ 15] “Appeals shall be allowed from decisions of lower courts to the supreme court as may be provided by law.” N.D. Const, art. VI, § 6. “As such, we have held that the right to appeal in this state is governed solely by statute.” Interest of K.J., 2010 ND 46, ¶ 14, 779 N.W.2d 635. Accordingly, this Court is not entitled to restrict the right to appeal as established by the legislature. See, e.g., In re Heart River Irr. Dist., 78 N.D. 302, 49 N.W.2d 217, 224 (1951) (“Statutes governing the right of appeal must be liberally construed to maintain the right.”).
[¶ 16] Section 29-28-07, N.D.C.C., provides the State may appeal:
An order granting the return of property or suppressing evidence, or suppressing a confession or admission, 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. The statement must be filed with the clerk of district court and a copy must accompany the notice of appeal.
N.D.C.C. § 29-28-07(5) (emphasis added). Here the State complied with the plain language of the statute. The prosecutor’s statement asserted that the appeal was not taken for the purpose of delay and that the suppressed evidence was substantial proof of facts material to the proceeding. See Majority Opinion at ¶ 7. The majority correctly notes that our case law has required prosecutors to support their appeals with an explanation of the relevance of the suppressed evidence. See, e.g., City of Harvey v. Fettig, 2001 ND 12, ¶ 6, 621 N.W.2d 324 (“The prosecutor’s statement cannot be a mere paraphrase of the statutory language, but must have substance.”). However, the requirement of “substance” in our precedent has its roots in the original version of N.D.C.C. § 29-28-07(5), and does not reflect the plain language of the current statute.
[¶ 17] The original version of N.D.C.C. § 29-28-07(5) differed substantially from the current law. Subsection 5 of N.D.C.C. § 29-28-07 was added in 1977, and stated the State may appeal:
An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the deprivation of the use of the property ordered to be returned or suppressed or of a confession or admission ordered to be suppressed has rendered the proof available to the state with respect to the criminal charge filed with the court, (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. The statement shall be filed with the clerk of district court and a copy thereof shall accompany the notice of appeal.
N.D.C.C. § 29-28-07(5) (1977). The statute was amended in 1985 to its current version requiring only “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). Our case law, however, continued to require prosecutors to support their appeals with an explanation of the relevance of the suppressed evidence. *143For example, in City of Harvey v. Fettig, 2001 ND 12, ¶ 6, 621 N.W.2d 324, we cited to State v. Norton, 2000 ND 153, ¶ 5, 615 N.W.2d 531, and State v. Schindele, 540 N.W.2d 139, 141 (N.D.1995), to support the requirement that the prosecutor’s statement have substance and include an explanation of relevance. Norton, in ton, cited to Schindele, which relied on State v. Frank, 350 N.W.2d 596 (N.D.1984). See Schindele, 540 N.W.2d at 141 (citing Frank for the proposition that the prosecutor’s statement must have substance and cannot be a mere paraphrase of the statutory language). Frank was decided in 1984, a year before the legislature passed the 1985 statutory amendment. While we have recognized that the law was changed in 1985, see, e.g., State v. Schindele, 540 N.W.2d 139, 141 (N.D.1995), we have continued to rely on cases that were decided before the 1985 amendment to support that proposition that the prosecution is required to do more than meet the plain language of the statute. Our cases have not reflected the change in the law, which now requires only “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). We must remember that absent constitutional infirmity, our case law does not prevail over the plain words of statute. See N.D.C.C. § 1-01-06 (“In this state there is no common law in any case in which the law is declared by the code.”). And, further, the Constitution of North Dakota assigns to the legislature the authority to determine the right to appeal. N.D. Const, art. VI, § 6. This Court may not limit the statutory right to appeal. Bonde v. Stern, 72 N.D. 476, 481, 8 N.W.2d 457, 461 (1943).
II
[¶ 18] Because the State has complied with the plain language of N.D.C.C. § 29-28-07(5), I would not dismiss the appeal for failure to file a sufficient prosecutor’s statement.
[¶ 19] DANIEL J. CROTHERS, J., concurs.