author: RANDALL, Judge. MINGE, Judge

text:
    NORTHWEST AIRLINES, INC., Appellant, v. METROPOLITAN AIRPORTS COMMISSION, Respondent.
    No. A03-494.
    Court of Appeals of Minnesota.
    Dec. 16, 2003.
    Thomas Tinkham, Daniel J. Brown, John Rock, Dorsey & Whitney, • LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402 (for appellant)
    Edward M. Laine, Connie A. Lahn, Bray M. Dohrwardt, Oppenheimer Wolff & Don-nelly, LLP, 3300 Plaza VII, 45 South Seventh Street, Minneapolis, MN 55402 (for respondent)
    Considered and decided by Randall, Presiding Judge, Minge, Judge, and Poritsky, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

RANDALL, Judge.

Appellant contests the district court’s dismissal of its declaratory judgment action, in which appellant sought a determination that Ordinance 87, enacted and enforced by respondent, violated Minn.Stat. § 473.651 (2002) and is beyond respondent’s authority under Minn.Stat. § 473.651. Appellant argues that it is challenging the validity of a legislative act, and thus the doctrine of exhaustion does not apply and the district court is not deprived of subject matter jurisdiction. We affirm.

FACTS

In 1943, the Minnesota Legislature created the Metropolitan Airports Commission (respondent) to promote safe and efficient air travel throughout the state of Minnesota. 1943 Minn. Laws ch. 500, § 1. Respondent owns and operates the Minneapolis-St. Paul International Airport (MSP) as well as a system of six reliever airports in the Minneapolis-St. Paul metropolitan area. The reliever airports generally serve smaller corporate and private aircraft. They are designated as “reliever airports” because they relieve traffic and congestion from MSP, which is dedicated primarily to commercial airline operators such as Northwest Airlines (appellant).

Pursuant to MinmStat. § 473.651 (2002), respondent is specifically empowered to determine the charges for tenants at the airports that it operates. Under Minn. Stat. § 473.608, subd. 13(b) (2002), respondent can use funds received from any source to pay the costs of operating, maintaining, and improving any of the properties. Additionally, respondent has the power to adopt ordinances pursuant to Minn.Stat. § 473.608, subd. 17 (2002).

Due to a growing disparity between reliever airports’ revenues and expenses, respondent’s Board of Commissioners adopted Ordinance 87 on September 21, 1998. This ordinance established rates at reliever airports for tenants who have signed leases that contain “rental adjustment” clauses that allow respondent to amend rent unilaterally. The ordinance imposed a yearly rent increase for the approximately 800 reliever-airport tenants who have the “rental adjustment” provisions in their leases. In 2007, the yearly rent increases cease, and the rents are adjusted according to the Consumer Price Index for the Minneapolis-St. Paul area. In determining the rates for Ordinance 87, respondent sought input from many sources, including appellant and other MSP tenants. Appellant chose not to participate in the hearings.

Ordinance 87 became effective on January 1, 1999. By October 2002, appellant began to express its dissatisfaction with the level of subsidization received by the reliever airports. Appellant complained that since the inception of Ordinance 87, the reliever airports have been operated each year at multi-million dollar deficits. Because rates charged to reliever-airport tenants do not cover the total operating costs of the reliever airports, revenues arising out of MSP operations are used to subsidize the costs of operating the reliever airports. Thus, appellant claimed that this deficiency results in tenants and users at MSP paying much higher rents and fees to subsidize operations of reliever airports.

To correct the situation, appellant sought a declaration in district court that Ordinance 87 is invalid because it does not comply with Minn.Stat. § 473.651. This statute requires that rental rates must be “established with due regard to the value of the property and improvements used and the expense of operation to the corporation.” Appellant argued that it is in direct competition with reliever-airport tenants, and that subsidization of reliever airports puts appellant at a “competitive disadvantage.” The district court determined that appellant did not exhaust the administrative remedy provided by Minn. Stat. § 473.608, subd. 17(6), and thus the court dismissed the case for lack of subject matter jurisdiction. This appeal followed.

ISSUE

Did the district court commit reversible error by dismissing appellant’s case for lack of subject matter jurisdiction because appellant did not exhaust its administrative remedies?

ANALYSIS

Appellant argues that because it is challenging the validity of a legislative act, the doctrine of exhaustion does not apply and the district court is not deprived of subject matter jurisdiction. Whether subject matter jurisdiction exists is a question of law that this court reviews de novo. Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn.2000).

The Uniform Declaratory Judgment Act provides that

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Minn.Stat. 555.02 (2002). A justiciable controversy must exist before the courts have jurisdiction to render a declaratory judgment. St. Paul Area Chamber of Commerce v. Marzitelli, 258 N.W.2d 585, 587 (Minn.1977). A justiciable controversy exists when there is a genuine conflict in the tangible interests of opposing litigants. Leffler v. Leffler, 602 N.W.2d 420, 422 (Minn.App.1999) (quotation omitted).

Respondent does not challenge appellant’s claim that there is a justiciable controversy. In fact, respondent concedes that appellant may have a cause of action. What respondent argues is that a declaratory judgment action now is not the appropriate cause of action, and that the cause in controversy can be pursued by appellant only after the proper administrative remedy has been exhausted.

Courts generally require that before judicial review of administrative proceedings will be permitted, the appropriate channels of administrative appeal must be followed. City of Richfield v. Local No. 1215, Intl. Assn. of Fire Fighters, 276 N.W.2d 42, 51 (Minn.1979); Stephens v. Bd. of Regents of Univ. of Minn., 614 N.W.2d 764, 774 (Minn.App.2000), review denied (Minn. Sept. 26, 2000). Courts require exhaustion of administrative remedies to protect the autonomy of administrative agencies and to promote judicial efficiency. Zaluckyj v. Rice Creek Watershed Dist., 639 N.W.2d 70, 75 (Minn.App.2002) review denied (Minn. Apr. 16, 2002). The record produced during the administrative process facilitates judicial review and may also reduce the need to resort to judicial review. Id. But, exhaustion of administrative remedies need not be pursued if it would be futile to do so. McShane v. City of Faribault, 292 N.W.2d 253, 256 (Minn.1980).

Here, respondent argues that appellant has an administrative remedy under Minn.Stat. 473.608, subd. 17(6) (2002). This statute states:

Any person substantially interested or affected in rights as to person or property by a rule, regulation or ordinance adopted by the corporation (respondent), may petition the corporation for reconsideration, amendment, modification, or waiver of it. The petition shall set forth a clear statement of the facts and grounds upon which it is based. The corporation shall grant the petitioner a public hearing within 30 days after the filing of the petition.

Minn.Stat. 473.608, subd. 17(6). Because appellant filed a declaratory judgment action rather than filing a petition to commence its available administrative remedy under this statute, the essence of the appeal is that, given the concurrent applicability of Minn.Stat. 473.608, subd. 17(6), and Minn.Stat. 555.02, should the principal of exhaustion of remedies be applied to this litigation?

Appellant argues that even though Minn.Stat. § 473.608, subd. 17(6), provides an administrative remedy, appellant is not required to exhaust its administrative remedies because the statute is permissive rather than mandatory. The statute states that “[A]ny person substantially interested or affected in rights as to person or property by a rule, regulation or ordinance adopted by the corporation (respondent), may petition the corporation.... ” Minn.Stat. § 473.608, subd. 17(6) (emphasis added). Appellant argues that “may” is permissive and “shall” is mandatory, and thus the exhaustion of administrative remedies is not required under the statute.

Case law supports the district court’s ruling that Minn.Stat. § 473.608, subd. 17(6) is mandatory rather than permissive. In Counties of Blue Earth v. Minn. Dept. of Labor Indus., 489 N.W.2d 265 (Minn.App.1992), the Prevailing Wage Statute provided that “[A] person aggrieved by a decision of the commissioner after reconsideration may within 20 days after the decision petition the commissioner for a public hearing as in a contested ease under sections 14.57 to 14.61.” Minn.Stat. § 177.44, subd. 4 (1990). The court in Counties of Blue Earth held that under this statute, the counties were required to exhaust their administrative remedies before bringing an action to enjoin enforcement of the prevailing wage rate. Counties of Blue Earth, 489 N.W.2d at 268.

The statute in Zaluckyj, also contains language similar to Minn.Stat. § 473.608, subd. 17(6). The statute at issue in Zaluckyj stated that “[A]n individual or an entity interested in or affected by a drainage system may file a petition to repair the drainage system.” Minn.Stat. § 103E.715, subd. 1 (2000). Zaluckyj, 639 N.W.2d at 75. Although the statute contains the word “may” rather than “shall,” the court in Zaluckyj held that landowners were required to exhaust their administrative remedies pursuant to Minn.Stat. § 103E715, subd. 1. Id. at 77.

Here, Minn.Stat. § 473.608, subd. 17(6), states that an aggrieved party may petition respondent for reconsideration of an ordinance. The district court interpreted this language to mean that:

[Appellant], as an entity substantially interested or affected in rights, may petition [respondent] for relief from Ordinance 87. On the other hand, it may elect to do nothing, as it did for the first few years following the adoption of the ordinance. It may also elect to lobby [respondent], as it has done since October 2002. However, if [appellant] wishes to invoke the jurisdiction of the courts, it must first invoke and exhaust the administrative remedy that is available.

This reasoning is supported by the decisions in Counties of Blue Earth and Zaluckyj wherein this court determined that the aggrieved parties must first exhaust their administrative remedies under the appropriate statutes. Therefore, we conclude that Minn.Stat. § 473.608, subd. 17(6), is mandatory rather than permissive, and appellant must first exhaust its administrative remedies pursuant to the statute.

Appellant next contends that even if the exhaustion of remedies is mandatory pursuant to Minn.Stat. § 473.608, subd. 17(6), under Connor v. Township of Chanhassen, 249 Minn. 205, 81 N.W.2d 789 (1957), Minnesota courts do not require exhaustion of remedies when the validity of the legislative act is challenged. In Connor, the plaintiffs brought a declaratory judgment action seeking to have the Zoning Ordinance for the Township of Chanhassen declared unconstitutional. Connor, 249 Minn. at 206, 81 N.W.2d at 792. The district court found for the plaintiffs, and the township appealed arguing that the plaintiffs should have exhausted their administrative remedies by seeking a review by writ of certiorari of the town board’s action in failing to grant a petition to rezone the plaintiffs property. Id. at 209, 81, 81 N.W.2d 789 N.W.1d at 793. The Minnesota Supreme Court began by noting that the purpose of the Declaratory Judgments Act is to afford an alternative remedy that can be used whether or not further relief is or could be claimed. Id. The court stated that in a suit to test the validity of a municipal ordinance, the rule is “[T]he existence of another adequate remedy does not preclude a judgment for a declaratory relief in cases where it is appropriate.” Id., 81 N.W.2d at 793-94 (quoting Barron v. City of Minneapolis, 212 Minn. 566, 569, 4 N.W.2d 622, 624 (1942)). Because the supreme court was presented with a controversy as to legal rights that required judicial interpretation, the court held that the declaratory judgment action was an appropriate remedy and the plaintiffs were not required to exhaust their administrative remedies. Id., 81 N.W.2d at 794.

Respondent argues that Connor is distinguishable from the case at hand because unlike Connor, appellant is not challenging Ordinance 87 on a constitutional basis. We agree. A constitutional challenge is a controversy that requires judicial interpretation. See Neeland v. Clearwater Mem. Hosp., 257 N.W.2d 366, 368-69 (Minn.1977) (stating that an administrative agency lacks subject matter jurisdiction to decide constitutional issues because those questions are within the exclusive province of the judicial branch). In contrast, appellant is arguing that Ordinance 87 is invalid because the rental rates set forth in the ordinance were not established with due regard pursuant to Minn.Stat. § 473.651. Because appellants claim was not brought on constitutional grounds, the case is distinguishable from Connor.

Appellant contends that the fact that Connor concerned a constitutional claim is of no importance because the claim in Montgomery v. Minneapolis Fire Dept. Relief Ass’n, 218 Minn. 27, 15 N.W.2d 122 (1944), was not brought on constitutional grounds. Montgomery was cited in Con-nor for the proposition that the general purpose of the Declaratory Judgments Act is to afford an alternative remedy that can be used whether or not further relief is or could be claimed. Connor, 81 N.W.2d at 793 (citing Montgomery v. Minneapolis Fire Dept. Relief Ass’n, 218 Minn. 27, 15 N.W.2d 122 (1944)). The court stated this rule even though the plaintiff in Montgomery was not challenging the constitutionality of the agency’s legislative act. Thus, appellant claims that under Montgomery, appellant is not required to exhaust its administrative remedies because the Declaratory Judgment Act affords it another remedy when it is challenging the validity of an ordinance.

Here, we really do not have a bona fide challenge to the validity or constitutionality of Ordinance 87. We simply have appellant’s practical argument that rates were set too low for other airports, so appellant has to pay too much. That is the essence of appellant’s argument, and that is what differentiates this case from appellant’s cites. In those cases, people with grievances had direct access under the doctrine of “futility,” because there is no sense in asking for relief under a statute or ruling, and a chance to exhaust remedies under that statute, when the claim is that the statute is illegal or unconstitutional from the start. That is not our case. Appellant calls the ordinance a violation of state law, and an ordinance interfering with its constitutional right to due process, but in reality its grievance just comes down to money. If the rates for the other tenants at the regional airports were set higher or if overall respondent’s expenses were lower, the regional airports would be paying a higher percentage of their own upkeep, and thus, the main terminal at MSP would have to contribute less. Appellant does not attack the power of respondent to levy rates. The statute granting that power to respondent is too clear to argue. Appellant is just claiming the rates at reliever airports are “too low.”

Our affirmance on the trial court’s declination of jurisdiction is not to be construed as a comment favoring the merits of respondent’s position that its rates are fair. Appellant makes a compelling argument that respondent appears to drag its feet in an almost legendary fashion whenever a rate challenge comes up until the court or some other outside force requires it to make a decision. Respondent claims that it is aware of appellant’s concern and that it is presently conducting a study to be sure its rates for the reliever airports and the main hub are fair, reasonable, and balanced. Appellant argues “this study” will never really come to any finality and appellant wants a decision up or down by respondent so that it can commence a lawsuit. If respondent won’t act on appellant’s request to consider a change in the rates, appellant claims it has a right to a direct appeal now. We understand appellant’s frustration. By our affirmance, we do require appellant to exhaust its administrative remedies, but, that means respondent is required to give appellant the rate relief it seeks or the answer, “no, we are not going to give the relief you seek.” That denial of relief would mean appellant could then properly bring a direct lawsuit.

At oral argument, respondent readily conceded that appellant has to be guaranteed one right to appeal, either a direct appeal now as appellant wants, or an appeal later after administrative remedies are exhausted as respondent wants. Respondent gets its way with this affirmance. But respondent cannot put off a final resolution on giving or denying appellant rate relief indefinitely by coming into this court on future occasions and arguing “there is one more consultant out there we have not yet hired to look at our rate structure and until we do, there is another administrative remedy left!” Respondent repeatedly states in its brief that it has begun a review of Ordinance 87 on its own initiative. But, appellant points out that this process has stalled since the district court dismissed this action for lack of subject matter jurisdiction. Respondent points out that a reconsideration petition would require respondent to provide a hearing within 30 days. But, as appellant points out, Minn.Stat. § 473.608, subd. 17(6), does not provide a deadline by which respondent must take action in response to the substance of the petition. Appellant’s legitimate concern is that respondent could take months and/or years under the “exhaustion rule” to consider the substance of appellant’s petition; and then simply refuse to make any changes, thus forestalling for years appellant’s right to start a direct lawsuit.

We understand appellant’s concern, and thus we direct respondent to complete its present study within a reasonable time and formally give or deny appellant the rate relief it seeks so that if denied, appellant can properly commence the lawsuit which respondent concedes it is entitled to commence once administrative remedies have been exhausted. Respondent claims the benefit of an administrative remedy. It must now reasonably and quickly act to show that that is so.

We understand the dissent’s point that it can be argued there is a discrepancy between the Minnesota Administrative Procedures Act (MNAPA) and the exhaustion requirement respondent here relies on, which we affirm. However, a change to the MNAPA appears to be a change for the legislature and not this court, particularly when change to the MNAPA has not been raised and is not an issue. Although not illogical, we have no precedent mandating that the MNAPA controls this case.

Finally, we agree with the dissent that in the last five years, the economics of the air travel industry have changed, and we agree with the dissent that a remand to respondent (which is what respondent wants and which is what we order today) is a better way to review the ordinance and build a record for appellate review than a direct lawsuit. These parts of our agreement with the dissent, as the dissent points out, support our decision to affirm.

DECISION

Appellant did not really challenge the validity or constitutionality of an ordinance; it wants a rate change for others, meaning the others will pay more and appellant will pay less. That may ultimately be the way equity sees it, but that is not our issue. We conclude appellant is required to exhaust its administrative remedies before commencing a direct lawsuit. Because appellant is required to exhaust its administrative remedies, we hold the district court properly dismissed appellant’s claim, at this time, for lack of subject matter jurisdiction.

Affirmed.

MINGE, Judge

(dissenting)

I respectfully dissent. The requirement of exhaustion is misapplied in this case for several reasons.

First, the Minnesota Administrative Procedures Act (MAPA) does not require such exhaustion. Minn.Stat. § 14.44 (2002). It provides:

The validity of any rule may be determined upon the petition for a declaratory judgment thereon, addressed to the court of appeals, when it appears that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair the legal rights or privileges of the petitioner.... The declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, and whether or not the agency has commenced an action against the petitioner to enforce the rule. (Emphasis added.)

Although respondent Metropolitan Airport Commission (MAC) is not a state agency, it was created by the state legislature, it operates on a regional basis, and its rule-making prerogatives parallel those of a state agency. If the legislature permits challenges to state-agency rules without a prior request to the agency for reconsideration of the rule, it is illogical and confusing for this court to create such a requirement as a condition of challenging the rule of a local or regional agency. Absent a statute or clear caselaw requiring disparate policies, we should have a consistent rule in our state.

Second, it does not appear necessary for MAC to reconsider Ordinance 87 to ensure that this court has an adequate record for review. The question presented to this court is the validity of Ordinance 87 in light of statutory limits on the scope of MAC’s discretion to subsidize various operations. Context for judicial consideration of this question already exists; MAC has a record from when the original Ordinance 87 was adopted. Although MAC does emphasize that the air-travel industry has gone through significant upheaval in the last five years and that Ordinance 87 needs to be revisited, it does not claim that a new record is necessary to review the legal question raised by NWA. If more is needed, the district court could supplement the MAC record.

Third, caselaw from other states and federal courts does not require that private parties petition agencies for reconsideration prior to initiating a judicial challenge to the rule. For example, in the case of Rocky Mtn. Oil & Gas Ass’n v. State, 645 P.2d 1163 (Wyo.1982), a declaratory judgment action was brought to invalidate rules and regulations of that states Environmental Quality Council on the ground that they exceeded the powers and jurisdiction of the Council. In holding that a declaratory judgment action was available to the plaintiffs as an independent action, separate and apart from a petition for review of administrative action, the court stated that

where the relief desired is in the nature of a substitution of judicial decision for that of the agency on issues pertaining to the administration of the subject matter for which the agency was created, the action should not be entertained. If, however, such desired relief concerns the validity and construction of agency regulations, or if it concerns the constitutionality or interpretation of a statute upon which the administrative action is, or is to be, based, the action should be entertained. This is no more than that obviously and plainly provided for in the language of the Uniform Declaratory Judgments Act.

Id. at 1168-69 (emphasis added). Other states are in accord with this reasoning and do not require exhaustion when the plaintiff is challenging the validity of an agency rule or ordinance. See, e.g., City of Miami Beach v. Perell, 52 So.2d 906, 907 (Fla.1951) (holding that exhaustion of administrative remedies is not required before proceeding to court to make a “general attack on the validity of the ordinance”); Bio-Medical Lab., Inc. v. Trainor, 68 Ill.2d 540, 12 Ill.Dec. 600, 370 N.E.2d 223, 227 (1977) (stating that exhaustion is not required when an administrative rule asserting administrative authority is challenged on its face as not authorized by the enabling legislation); Billis v. City of Toledo, 63 Ohio App.2d 188, 410 N.E.2d 767, 768 (1977) (stating that an action for declaratory judgment may be entertained where the construction or validity of administrative regulation is of concern, even if an alternative administrative remedy is available); Garcia-Marroquin v. Nueces County Bail Bond Bd., 1 S.W.3d 366, 378 (Tex.App.1999) (stating that exhaustion of administrative remedies is not required where the action seeks declaratory judgment concerning the validity or applicability of an agency rule).

Federal caselaw also supports the proposition that exhaustion is not required when the challenged agency action presents a clear and unambiguous violation of statutory rights. See, e.g., McKart v. United States, 395 U.S. 185, 197-98, 89 S.Ct. 1657, 1665, 23 L.Ed.2d 194 (1969) (stating that the requirements of the exhaustion doctrine are not applicable where the question is solely one of statutory interpretation ... [and t]he resolution of th[e] issue does not require any particular expertise on the part of the [arbitrator] ....); Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 245 (3d Cir.1980) (stating exhaustion of administrative remedies is not required when challenged agency action presents a clear and unambiguous violation of statutory or constitutional rights).

In this case appellant Northwest Airlines, Inc. (NWA) claims MAC Ordinance 87 is invalid for failure to comply with the requirements of Minn.Stat. 473.651 (2002). MAC concedes that the ordinance does not charge rental rates that cover its costs but claims that under other statutes it has authority to subsidize its services. Although the majority is correct .that at its core this is a money dispute, that characterization does not accurately analyze the legal framework of the controversy. The parties disagree over the scope of MACs discretion under the statutes. NWA seeks judicial definition of the statutory limits on that discretion, not a judicial determination of the correct rental rate. The caselaw from other states and federal courts tells us that the judiciary is at least, if not better, qualified to resolve questions of the reach of agencies statutory charter. Indeed, agencies may be less than objective on such questions.

Fourth, there is an economy in the use of resources if the courts are involved in the evaluation of MAC Ordinance 87 at this stage. MAC first adopted the ordinance in 1998. The record indicates that over 800 leases have terms that rely on the ordinance. Since 1998, NWA and MAC have been sparring over the scope of MAC’S discretion to subsidize various operations and the limits on such subsidies. With all these leases in place, it will be exceedingly difficult for MAC to identify the limits on its own discretion and the resulting validity of Ordinance 87 or what may be permissibly done in a new ordinance. Judicial determination of the validity of Ordinance 87 is important for a fresh MAC look at the subject. Without the opportunity for judiciary consideration at this stage, we are undoubtedly creating a situation where three or more rounds of appeals and MAC proceedings will be needed. This gives the term “exhaustion” an ironic new meaning for the parties.

Fifth, Minnesota caselaw does not require the result reached by the majority. See, e.g., Connor v. Township of Chanhas sen, 249 Minn. 205, 81 N.W.2d 789 (1957); Montgomery v. Minneapolis Fire Dept. Relief Ass’n, 218 Minn. 27, 15 N.W.2d 122 (1944); Barron v. City of Minneapolis, 212 Minn. 566, 4 N.W.2d 622 (1942). In fact, the Conner case indicates exhaustion is not required. Connor, 249 Minn. at 209, 81 N.W.2d at 794. Connor held that because the court was presented with a controversy as to legal rights, exhaustion of remedies was not required and the declaratory judgment action was an appropriate remedy. Id. Similarly, in Montgomery, a case cited in Connor, the court reached an identical result. The plaintiff in Montgomery sought a declaratory judgment as to his right to receive a pension. Montgomery, 218 Minn. at 29, 15 N.W.2d at 123. The court stated that the general purpose of the Declaratory Judgments Act is to afford an alternative remedy which can be used whether or not further relief could be claimed. Id. at 30, 15 N.W.2d at 124.

Finally, as the majority opinion notes, NWA alleges that MAC is dilatory and perhaps worse m delaying consideration and resolution of the underlying matter. MAC claims that it is proceeding in good faith and points out that NWA neglected to participate in the original Ordinance 87 hearings. Although judicial review should not be granted, denied, or delayed based on sniping by the parties, the exchange of charges is troubling. The majority admonishes MAC to act promptly. Perhaps the awkwardness of enforcing this admonition is an added consideration for judicial review at this juncture.

Based on Minnesota case law and the facts and circumstances present in this proceeding, appellant should not be required to first exhaust its administrative remedies. For these reasons, I dissent.

      . The plaintiff in Montgomery sought a declaratory judgment as to his right to receive a pension.

      . Under MAPA, appeals of state-agency rules come straight to this court with neither a district court proceeding nor agency reconsideration to create a record. By contrast, judicial review of MAC action starts with the district court. Query, does multi-layered judicial review justify less emphasis on exhaustion?


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2003 ND 184
    STATE of North Dakota, Plaintiff and Appellee, v. Craig Randall BACKLUND, Defendant and Appellant.
    No. 20030044.
    Supreme Court of North Dakota.
    Dec. 2, 2003.

      Jonathan R. Byers, Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for amicus curiae.
    Mark Rainer Boening (on brief), Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee.
    Robert G. Hoy, Ohnstad Twichell, West Fargo, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Craig Backlund appealed from a conviction entered upon a conditional guilty plea to the charge of luring a minor by computer in violation of N.D.C.C. § 12.1-20-05.1. We hold North Dakota had jurisdiction to prosecute Backlund, N.D.C.C. § 12.1-20-05.1 does not violate the Commerce Clause or the First Amendment, and the registration and notification provisions of N.D^C.C. § 12.1-32-15 do not violate procedural due process or double jeopardy. We affirm.

I

[¶ 2] In March 2002, Backlund, using the screen name “baekdaddyO”, participated in an Internet chatroom from his computer in Moorhead, Minnesota. He exchanged computer messages containing sexual references with an individual using the screen name “Fargobabe22.” “Fargo-babe22” identified herself as a 14-year-old girl, but was actually West Fargo police officer A1 Schmidt. Backlund solicited “Fargobabe22” to engage in a sexual act and offered to pick her up and bring her home when they were done. Backlund arranged to meet “Fargobabe22” at a convenience store in West Fargo. The police observed Backlund at the designated convenience store. He was arrested in West Fargo and admitted he was the person who had been communicating with “Fargo-babe22.”

[¶ 3] Backlund was charged with luring a minor by computer in violation of N.D.C.C. § 12.1-20-05.1. The trial court rejected Backlund’s pretrial jurisdictional and constitutional challenges to the prosecution, and he entered a conditional guilty plea under N.D.R.Crim.P. 11(a)(2). Back-lund appealed from the resulting conviction.

II

[¶ 4] Our analysis of the issues raised by Backlund requires a brief description of the Internet, which:

is a decentralized, global, and interactive communications medium that connects individuals and commercial, as well as, nonprofit and public interest groups. Users disseminate and maintain dialogues about a wide range of information, in the form of text, images, sound, and video through cyberspace. The content of the disseminated information is wide-ranging and includes academic essays, art, music, humor, literature, medical information, and sexually explicit material. The Internet connects millions of residents from over 150 countries through individual computers as well as massive networks. Chat rooms, online discussion groups, newsgroups, and the World Wide Web are just some of the Internet methods by which information is exchanged. Users are frequently anonymous, which allows for free exchange of information and ideas. Messages are sent to an electronic address, rather than a geographic address and users frequently have no idea in what country or state a message originates or terminates. Similarly, it is not always technologically possible for a user to determine the age of a user who is accessing the communications.

Annot., Validity of State Statutes and Administrative Regulations Regulating Internet Communications Under Commerce Clause and First Amendment of Federal Constitution, 98 A.L.R. 5th 167, 175, § 2[a] (2002).

[¶ 5] In 2001 N.D. Sess. Laws ch. 134, § 4, the North Dakota Legislature enacted N.D.C.C. § 12.1-20-05.1, which provides:

An adult is guilty of luring minors by computer when:

1.The adult knows the character and content of a communication that, in whole or in part, implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances and uses any computer communication system that allows the input, output, examination, or transfer of computer data or computer programs from one computer to another to initiate or engage in such communication with a person the adult believes to be a minor; and
2. By means of that communication the adult importunes, invites, or induces a person the adult believes to be a minor to engage in sexual acts or to have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult’s benefit, satisfaction, lust, passions, or sexual desires.
3. A violation of this section is a class A misdemeanor, but if the adult is twenty-two years of age or older or the adult reasonably believes the minor is under the age of fifteen, violation of this section is a class C felony.

As originally introduced, N.D.C.C. § 12.1-20-05.1 proscribed luring “a minor,” but was amended during the legislative process to criminalize luring “a person the adult believes to be a minor” to deal with situations where minors misrepresent their age to adults engaged in Internet solicitation of sexual acts. Hearing on S.B.2035 Before Senate Judiciary Committee, 57th N.D. Legis. Sess. (Jan. 16, 2001) (oral testimony of Ladd Erickson, Assistant Morton County State’s Attorney).

[¶ 6] Under N.D.C.C. § 12.1-20-05.1, an adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that explicitly or implicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances, 2) the adult uses any computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) the adult’s communication importunes, invites, or induces the person the adult believes to be a minor to engage in sexu&l acts or to have sexual contact with the adult, or to engage in a sexual performance or sexual conduct for the adult’s benefit, satisfaction, lust, passions, or sexual desires. Section 12.1-20-05.1, N.D.C.C. requires the adult to “know” the character and content of the communication that explicitly or implicitly discusses or depicts actual or simulated nudity, sexual acts, or sexual contact, but does not explicitly describe the degree of culpability necessary for the adult’s use of the computer system to engage in the communication, or for the adult’s importuning, inviting, or inducing the person the adult believes to be a minor. Under N.D.C.C. § 12.1-02-02(2), if a statute defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the required culpability is “willfully,” which is defined in N.D.C.C. § 12.1-02-02(l)(e) as engaging in conduct intentionally, knowingly, or recklessly. Section 12.1-20-05.1, N.D.C.C., does not explicitly specify it is a strict liability offense, and the requisite culpability for the conduct proscribed by that statute is “willfully.” See State v. Knowels, 2002 ND 62, ¶¶ 12-13, 643 N.W.2d 20.

[¶ 7] We therefore construe N.D.C.C. § 12.1-20-05.1 to provide that an adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances, (2) the adult willfully uses any computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) by means of that communication, the adult willfully importunes, invites, or induces the person the adult believes to be a minor to engage in sexual acts or have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult’s benefit, satisfaction, lust, passions, or sexual desires. We address the issues raised by Backlund under that interpretation of N.D.C.C. § 12.1-20-05.1.

Ill

[¶ 8] Backlund argues North Dakota lacks jurisdiction to prosecute him under N.D.C.C. § 12.1-20-05.1 because he committed the offense at his computer in Moorhead, Minnesota. Backlund argues North Dakota cannot criminalize lawful Minnesota speech simply because one of the innumerable people able to access the Internet happens to be a North Dakota police officer. He argues the language of N.D.C.C. § 12.1-20-05.1 indicates a crime is committed, if at all, at the keyboard and no further overt acts are required by the statute.

[¶ 9] In People v. Ruppenthal, 331 Ill.App.3d 916, 265 Ill.Dec. 43, 771 N.E.2d 1002, 1007-08 (2002), cert. denied, - U.S. -, 124 S.Ct. 62, 157 L.Ed.2d 27 (2003), the Appellate Court of Illinois considered a comparable jurisdictional issue in a similar factual context under Illinois’ luring statute. There, a defendant in California used a computer to solicit sexual contact with “Stacy,” an adult police officer in Illinois posing as a 14-year-old female. Id. at 1003-04. The defendant was arrested when he traveled to Illinois to meet “Stacy.” Id. at 1004. The defendant argued no part of the crime occurred in Illinois because he uttered the words of solicitation in California. Id. at 1007. The court disagreed:

Although the offense of solicitation is complete upon the utterance of words of solicitation, no solicitation can occur unless the offending words are heard by another person. Defendant attempted to solicit sexual activity with a girl under the age of 17 living in Illinois, and he traveled to Illinois with the admitted intent of engaging in the sexual acts. The result of defendant’s solicitation brought him within Illinois’ borders. As with the telephone harassment discussed in [People v.]Baker [205 Ill. Dec. 335, 643 N.E.2d 286 (1994)], Illinois has a valid public interest in protecting minor children in this state from individuals who seek underage sexual partners using the Internet. We find that Illinois had proper jurisdiction over this case.

Id. at 1008.

[¶ 10] Under N.D.R.Crim. P. 18, criminal prosecutions shall be heard in the county in which the offense was committed, except as otherwise provided by law or the rules of criminal procedure. Under N.D.C.C. § 29-03-01.1, a person who, while outside this state, solicits criminal action within this state and is thereafter found in this state may be prosecuted under North Dakota law.

[¶ 11] Although Backlund argues N.D.C.C. § 29-03-01.1 clearly does not apply to the conduct which N.D.C.C. § 12.1-20-05.1 proscribes, Backlund pled guilty to “importuning], invit[ing], or inducting]” a person he believed to be a minor to engage in a sexual act with him. Backlund importuned, invited, or induced “Fargobabe22” while he was at his computer in Moorhead, and “Fargobabe22” received the communication at a computer in West Fargo. Cf. Wagner v. Miskin, 2003 ND 69, ¶ 20, 660 N.W.2d 593 (recognizing North Dakota courts have civil jurisdiction over defendant who directly targeted North Dakota and North Dakota resident with defendant’s website); see also N.D.C.C. § 29-03-21 (“In those cases in which the sending of a letter is made an offense, the offense is deemed completed when the letter is deposited in any post office or postal receptacle, or delivered to any person with intent that it be forwarded. The person sending the letter may be tried in any county in which the letter is so deposited or delivered, or in the county in which it is received by the addressee.”). Backlund offered to pick up “Fargobabe22” at a designated convenience store in West Fargo. The police observed Backlund at the designated convenience store, and he was thereafter arrested in West Fargo. Under these circumstances, we conclude the language of N.D.C.C. § 29-03-01.1 applies to Backlund, and he is subject to prosecution in North Dakota.

IV

[¶ 12] Relying on American Libraries Ass’n v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997), Backlund argues the worldwide application of N.D.C.C. § 12.1-20-05.1 substantially impacts interstate commerce in violation of the “negative” or “dormant” aspect of the Commerce Clause.

[¶ 13] The Commerce Clause, U.S. Const, art. I, § 8, cl. 3, grants Congress the power “[t]o regulate interstate commerce ... among the several States” to prevent the economic balkanization that had plagued the colonies and the states under the Articles of Confederation. D.D.I., Inc. v. State ex rel. Clayburgh, 2003 ND 32, ¶ 4, 657 N.W.2d 228. The Commerce Clause’s affirmative grant of authority to Congress has a “negative” or “dormant” aspect, which prohibits a state from enacting legislation that unduly burdens interstate commerce. Id.

[¶ 14] In Pataki, 969 F.Supp. at 163, 183-84, a federal trial court enjoined enforcement of a New York statute, N.Y. Penal Law § 235.21, making it a crime for an individual to intentionally use a computer to engage in a communication with a minor which depicted actual or simulated nudity, sexual conduct, or sadomasochistic abuse and which was harmful to the minor. In Pataki at 169, the court concluded the statute violated the negative aspect of the Commerce Clause, because it unduly burdened interstate commerce in the traffic of goods, services, or ideas:

First, the Act represents an unconstitutional projection of New York law into conduct that occurs wholly outside New York. Second, the Act is invalid because although protecting children from indecent material is a legitimate and indisputably worthy subject of state legislation, the burdens on interstate .commerce resulting from the Act clearly exceed any local benefit derived from it. Finally, the Internet is one of those areas of commerce that must be marked off as a national preserve to protect users from inconsistent legislation that, taken to its most extreme, could paralyze development of the Internet altogether. Thus, the Commerce Clause ordains that only Congress can legislate in this area, subject, of course, to whatever limitations other provisions of the Constitution (such as the First Amendment) may require.

Pataki, however, did not involve a challenge to N.Y. Penal Law § 235.22, a New York statute that prohibited adults from using the Internet to lure children into sexual contact. Pataki, at 179.

[¶ 15] In People v. Foley, 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123, 132-133, cert. denied, 531 U.S. 875, 121 S.Ct. 181, 148 L.Ed.2d 124 (2000); the New York Court of Appeals distinguished Pa-taki and concluded New York’s luring statute did not violate the Commerce Clause:

Penal Law § 235.22 does not discriminate against or burden interstate trade; it regulates the conduct of individuals who intend to use the Internet to endanger the welfare of children. Although Penal Law § 235.22 contains some of the same language as the provision in Penal Law § 235.21(3) struck down in [Pa-taki], the statute challenged here contains the additional “luring” prong. We are hard pressed to ascertain any legitimate commerce that is derived from the intentional transmission of sexually graphic images to minors for the purpose of luring them into sexual activity. Indeed, the conduct sought to be sanctioned by Penal Law § 235.22 is of the sort that deserves no “economic” protection (see, New York v. Ferber, supra, 458 U.S. 747, 761-762, 102 S.Ct. 3348, 73 L.Ed.2d 1113). Thus, we conclude that Penal Law § 235.22 is a valid exercise of the State’s general police powers (see Lewis v. BT Inv. Mgrs., 447 U.S. 27, 36, 100 S.Ct. 2009, 64 L.Ed.2d 702).

[¶ 16] In People v. Hsu, 82 Cal.App.4th 976, 99 Cal.Rptr.2d 184, 190 (2000), the California Court of Appeals rejected a similar Commerce Clause challenge to California’s luring statute:

Under the Pike [v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) balancing] test, section 288.2, subdivision (b) does not violate the commerce clause. Statutes affecting public safety carry a strong presumption of validity (Bibb v. Navajo Freight Lines (1959) 359 U.S. 520, 524, 79 S.Ct. 962, 3 L.Ed.2d 1003), and the definition and enforcement of criminal 'laws lie primarily with states. (United States v. Lopez (1995) 514 U.S. 549, 561, fn. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626.) States have a compelling interest in protecting minors from harm generally and certainly from being seduced to engage in sexual activities. (See Sable Communications of Cal., Inc. v. FCC (1989) 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (Sable); Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248.) Conversely, it is difficult to. conceive of any legitimate commerce that would be burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them. To the extent section 288.2, subdivision (b) may affect interstate commerce, its effect is incidental at best and far outweighed by the state’s abiding interest in preventing harm to minors.

[¶ 17] Section 12.1-20-05.1, N.D.C.C. includes both a dissemination prong in subsection (1) and a luring prong in subsection (2), and, in that respect, is similar to the statutes involved in Foley and Hsu. We agree with the statements in Foley and Hsu that it is difficult to ascertain any legitimate commerce that is derived from the willful transmission of explicit or implicit sexual communications to a person believed to be a minor in order to willfully lure that person into sexual activity. We conclude N.D.C.C. § 12.1-20-05.1 does not violate the Commerce Clause.

V

[¶ 18] Backhand argues N.D.C.C. § 12.1-20-05.1 violates the free speech provisions of the federal and state constitutions. Relying on Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) and Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), he argues N.D.C.C. § 12.1-20-05.1 is unconstitutionally over-broad as applied to this case, because there was no communication to, or luring of a minor, and his communications were to a “virtual minor,” a West Fargo police officer posing as a minor. He argues N.D.C.C. § 12.1-20-05.1 is a content-based restriction on free speech which is not narrowly tailored to effectuate its legislative purpose.

[¶ 19] The First Amendment is applicable to the states through the Fourteenth Amendment, and precludes states from enacting laws “abridging the freedom of speech.” Bolinske v. North Dakota State Fair Ass’n, 522 N.W.2d 426, 430 (N.D.1994). See also N.D. Const. art. I, § 4 (guaranteeing freedom of speech).

[¶ 20] In Ashcroft, 535 U.S. at 239, 122 S.Ct. 1389 the United States Supreme Court considered a First Amendment challenge to two provisions of the Child Pornography Prevention Act of 1996 (“CPPA”), which extended the federal prohibition against child pornography to include not only pornographic images using actual children, but also visual depictions that are, appear to be, or convey the impression they are minors engaged in sexual conduct. The Court recognized the prohibited images of what appeared to be minors engaged in sexual conduct were neither obscene under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), nor child pornography produced by the depiction of real children under New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Ashcroft, at 246-51, 122 S.Ct. 1389. The Court said the government may not suppress lawful speech as a means to suppress unlawful speech and recognized the CPPA prohibited speech that created no crime or victims by its production. Compare Ashcroft, at 250-51, 122 S.Ct. 1389, with Ferber, at 761, 102 S.Ct. 3348 (pornography depicting actual children can be proscribed even if not obscene because state has interest in protecting children exploited by the production process). The Court held both provisions of the CCPA were substantially overbroad and violated the First Amendment. Ashcroft, at 258, 122 S.Ct. 1389.

[¶ 21] In Reno, 521 U.S. at 859-60, 117 S.Ct. 2329, the Court considered two provisions of the Communications Decency Act of 1996, which prohibited knowingly transmitting obscene or indecent material to recipients under the age of 18, and knowingly sending or displaying patently offensive messages to persons under 18. The Court concluded both provisions were content-based regulations of speech which lacked the precision required when a statute regulates the content of speech. Reno, at 874, 117 S.Ct. 2329 The Court said both provisions suppressed a large amount of speech that adults have a constitutional right to receive and to address to one another, and they were not narrowly tailored to achieve legitimate purposes. Id. at 874-79, 117 S.Ct. 2329. The Court held both provisions violated the First Amendment. Id. at 882, 117 S.Ct. 2329.

[¶ 22] Although both Ashcroft and Reno involved First Amendment challenges to statutes that prohibited the dissemination or production of certain materials, neither case involved challenges to statutes that prohibited speech used to lure a minor to engage in sexual acts. In Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 127-32, the New York Court of Appeals considered a First Amendment challenge to New York’s luring statute, N.Y. Penal Law § 235.22, which provided:

“A person is guilty of disseminating indecent material to minors in the first degree when:
“1. Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor, and
“2. By means of such communication he importunes, invites or induces a minor to engage in sexual intercourse, deviate sexual intercourse, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit.

[¶ 23] The New York Court of Appeals distinguished N.Y. Penal Law § 235.22 from the two provisions of the Communications Decency Act at issue in Reno, because the New York statute was not directed solely at the mere transmission of communications over the Internet and included an additional requirement for luring conduct, which the court concluded was distinguishable from pure speech. Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 129. The court recognized New York’s luring statute was “a preemptive strike against sexual abuse of children by creating criminal liability for conduct directed towards the ultimate acts of abuse.” Id. (emphasis added).

[¶ 24] The court rejected the defendant’s argument the statute affected constitutionally protected speech on the Internet because the statute did not require individuals to know they were communicating with a minor. Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 129-30. The court construed the statute to mean a person violated the statute, if knowing the content of the communication, the person intended to use a computer system to initiate or engage in such communication with a minor and intended to importune, invite, or induce the minor to engage in sexual conduct. Id. at 130. The court concluded the legitimate reach of the statute outweighed any arguably impermissible applications, and the statute was not substantially over-broad. Id.

[¶ 25] The court also rejected the defendant’s argument the statute was an unconstitutional content-based restriction, concluding the statute curtailed the use of speech in a way which did not merit First Amendment protection and was a carefully tailored means of serving a compelling state interest. Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 131-32. The court recognized freedom of speech does not extend to speech used as an integral part of conduct in violation of a valid criminal statute. Id. at 132 (quoting Ferber, 458 U.S. at 761-62).

[¶ 26] Other courts have considered comparable luring statutes and concluded the First Amendment does not protect speech used in conjunction with the conduct of child solicitation. See United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (distinguishing Reno and holding 18 U.S.C. § 2422(b) does not violate First Amendment because defendant does not have First Amendment right to attempt to entice minors to engage in illegal sexual acts); United States v. Powell, 1 F.Supp.2d 1419, 1422 (N.D.Ala.1998) (stating 18 U.S.C. § 2422(b) criminalizes use of interstate commerce to persuade, induce, and entice person under eighteen to engage in sexual act that is already illegal and recognizing Supreme Court’s refusal to extend First Amendment protection to speech that is integral part of illicit behavior); Hsu, 99 Cal.Rptr.2d at 194 (distinguishing Reno and stating only chilling effect of California luring statute is on conduct of those who would use otherwise protected speech to seduce minors); Ruppenthal, 265 Ill.Dec. 43, 771 N.E.2d at 1005-06 (rejecting First Amendment challenge because speech that is integral part of unlawful conduct has no constitutional protection); State v. Robins, 253 Wis.2d 298, 646 N.W.2d 287, 297 (2002) (holding First Amendment does not protect child enticements, whether initiated over the Internet or otherwise).

[¶ 27] In Powell, 1 F.Supp.2d at 1422, the court explained:

The First Amendment guarantees the right to freedom of expression; however, the Supreme Court has stated, “[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949).
In Bailey, 228 F.3d at 639, the court upheld 18 U.S.C. § 2422(b), stating:
The statute only applies to those who “knowingly” persuade or entice, or attempt to persuade or entice, minors. Thus, it only affects those who intend to target minors: it does not punish those who inadvertently speak with minors or who, as in Reno, post messages for all internet users, either adults or children, to seek out and read at their discretion. Any limited or incidental effect on speech does not infringe on any constitutionally protected rights of adults. Put another way, the Defendant simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sex acts.

[¶ 28] In Ruppenthal, 265 Ill.Dec. 43, 771 N.E.2d at 1005-07, in an analogous sting operation by an adult Illinois police officer posing as a child in Internet communications with a California adult, the Appellate Court of Illinois considered a First Amendment challenge to a statute proscribing indecent solicitation of a child. The Illinois statute provided that a person seventeen years of age or older committed the crime of indecent solicitation of a minor if the person, with the intent that the offense of predatory criminal sexual assault of a child be committed, knowingly solicited a child or one whom he or she believed to be a child to perform an act of sexual penetration or sexual conduct. Id. at 1004-05. The court rejected the defendant’s argument he committed no crime by soliciting an adult police officer, stating “[t]he fact that defendant’s words were transmitted to an adult does not negate defendant’s belief that he was speaking to a minor, which is the culpable act defined by the statute.” Id. at 1005. In rejecting the defendant’s First Amendment challenge to the luring statute, the court said:

It would be impossible for the act of solicitation to occur without the exchange of words between offender and victim, and defendant’s “beliefs” and his discussions with children or those he believes to be children regarding sexual activity do not rise to the level of constitutionally protected speech. See, e.g., City of Chicago v. Powell, ... 315 Ill.App.3d 1136, 248 Ill.Dec. 799, 735 N.E.2d 119, 126-27 (2000); People v. Bailey, ... 167 Ill.2d 210, 212 Ill.Dec. 608, 657 N.E.2d 953, 961 (1995) (in stalking case, “[wjhere speech is an integral part of unlawful conduct, it has no constitutional protection”); People v. Williams, ... 133 Ill.2d 449, 141 Ill.Dec. 444, 551 N.E.2d 631, 634 (1990) (in case involving child abduction statute, the State may “validly proscribe the luring or attempted luring of children into motor vehicles for criminal purposes, although that attempt may involve speech”).

The Williams court further discussed the necessarily inchoate nature of the child abduction statute:

“[T]he luring or attempted luring of a child into an automobile for a criminal purpose is in no way protected by the first amendment.... Once a child is taken into a vehicle and whisked away by a person harboring a criminal motive, it becomes exceedingly difficult, if not impossible, for law enforcement personnel to intervene for the protection of the child. The State undoubtedly has broad powers to avert such potentially dangerous situations.” Williams, ... 141 Ill.Dec. 444, 551 N.E.2d at 634.
That principle also can be applied to the indecent solicitation statute. Furthermore, we reject defendant’s protests that he was the victim of a- Cook County sheriffs department “thought patrol” that polices beliefs that defendant contends are “beyond the reach of the legislature.” Officers did not invade defendant’s home during his on-line conversation with “Stacy” and arrest him based upon the contents of that conversation. Indeed, hundreds of similarly inappropriate exchanges undoubtedly take place every day on the Internet. Those discussions, although disturbing, are not illegal if not acted upon. Defendant, however, demonstrated his intent to commit the sexual acts by traveling to Illinois to meet “Stacy,” whom he believed to be under the age of 17, at an arranged time and place.

Ruppenthal, 265 Ill.Dec. 43, 771 N.E.2d at 1005-06.

[¶ 29] The common thread in the cases involving First Amendment challenges to luring statutes is that freedom of speech does not extend to speech used as an integral part of conduct in violation of a valid criminal statute. In Ashcroft, 535 U.S. at 251-53, 122 S.Ct. 1389 the Court explicitly recognized that speech and conduct dichotomy in the context of a discussion about luring statutes. There, the government sought to justify the prohibitions on virtual child pornography because pedophiles could use virtual child pornography to seduce children. The Court rejected that argument, recognizing the government may enforce criminal penalties for unlawful solicitation and the solicitation of minors depends on the actor’s unlawful conduct, which is defined as a crime apart from any link to the speech in question. Id. at 252-58, 122 S.Ct. 1889. The Court also rejected the government’s argument that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct, concluding that case did not involve solicitation and the government had shown no more than a remote connection between the speech and any resulting child abuse. Id. at 253-54,122 S.Ct. 1389.

[¶ 30] Here, we have construed N.D.C.C. § 12.1-20-05.1 to mean an adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that explicitly or implicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances, (2) the adult willfully uses any computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) by means of that communication, the adult willfully importunes, invites, or induces the person the adult believes to be a minor to engage in sexual acts or have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult’s benefit, satisfaction, lust, passions, or sexual desires. Section 12.1-20-05.1, N.D.C.C., is geared toward an adult’s willful solicitation of sexual acts or sexual contact with a person believed to be a minor, and North Dakota law separately prohibits sexual contact or sexual acts with a minor. See e.g., N.D.C.C. §§ 12.1-20-03; 12.1-20-04; 12.1-20-05; and 12.1-20-07. Merely because Backlund’s communications were transmitted to an adult does not negate his belief he was communicating with a minor, which is an aspect of the culpability defined by the statute. See Ruppenthal, 265 Ill.Dec. 43, 771 N.E.2d at 1005. Moreover, the statute affects only those who willfully target a person believed to be a minor; it does not punish those who inadvertently speak with minors, or who post messages for all Internet users, either adult or minors, to seek out and read at their discretion. See Bailey, 228 F.3d at 639; Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 129-30.

[¶ 31] Backhand attempts to distinguish Foley by relying on differences between the New York statute and N.D.C.C. § 12.1-20-05.1. Backhand argues N.D.C.C. § 12.1-20-05.1 “does not simply prohibit ‘depictions’ of certain sexual activity, but rather prohibits ‘implicit or explicit discussions’ ” of sexual activity, and that distinction implicates pure speech. Backhand argues N.D.C.C. § 12.1-20-05.1 “allows a charge to be filed based upon ‘pure’ speech, merely a ‘discussion’ of sexual activity, as opposed to the New York statute’s requirement that a depiction, or picture, be forwarded in connection with the communications.”

[¶ 32] Section 12.1-20-05.1, N.D.C.C. is not identical to the New York statute in Foley. Contrary to BacMund’s assertion, however, N.D.C.C. § 12.1-20-05.1, as we have construed it, proscribes the willful solicitation of a person believed to be a minor to engage in a sexual act or sexual contact and does not authorize a criminal charge to be filed based upon “poore” speech. Rather, N.D.C.C. § 12.1-20-05.1, like the statutes at issue in Foley, Ruppenthal, Powell, and Bailey, is premised on criminalizing “luring” conduct and is “a preemptive strike against sexual abuse of children by creating criminal liability for conduct directed toward the ultimate acts of abuse.” Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 129 (emphasis added). We conclude N.D.C.C. § 12.1-20-05.1 does not violate the free speech provisions of the state and federal constitutions.

V

[¶ 33] Relying on the dissent in State v. Burr, 1999 ND 143, 598 N.W.2d 147, Backlund argues the combined effects of the “registration” and “notification” provisions of the 2001 version of N.D.C.C. § 12.1-32-15 are punitive and violate the due process and double jeopardy provisions of the federal and state constitutions.

[¶ 34] Under N.D.C.C. § 12.1-32-15(2)(a), a court shall require an individual to register with the appropriate law enforcement entity if the individual “[h]as pled guilty ... to, or been found guilty as a felonious sexual offender.” As relevant to this case, a person who has pled guilty to a violation of N.D.C.C. § 12.1-20-05.1 is a “sexual offender” under N.D.C.C. § 12.1 — 32—15(l)(e). Other provisions authorize the court to deviate from requiring an individual to register in certain circumstances. See N.D.C.C. § 12.1-32-15(2)(b), (c), and (d). Backlund pled guilty to a felony charge of violating N.D.C.C. § 12.1-20-05.1, and he is subject to mandatory registration for ten years under N.D.C.C. § 12.1 — 32—15 (2) (a) and (8)(a). Under N.D.C.C. § 12.1-32-15(12) the attorney general shall develop guidelines for the risk assessment of sexual offenders who are required to register, with either a low-risk, moderate-risk, or high-risk assigned to each offender. Under N.D.C.C. § 12.1-32-15(13), law enforcement agencies must disclose registration information to the public if the individual is assessed as moderate-risk or high-risk and the agency determines that disclosure of the conviction and registration information is necessary for public protection. However, upon request law enforcement agencies may release conviction and registration information regarding low-risk, moderate-risk, or high-risk offenders. N.D.C.C. § 12.1-32-15(13).

A

[¶ 35] In Burr, 1999 ND 143, ¶ 8, 598 N.W.2d 147, the issue was whether an earlier version of N.D.C.C. § 12.1-32-15, which was enacted after Burr’s criminal conviction for sexual imposition and required him to register as a sexual offender, was unconstitutional as ex post facto punishment. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (holding Alaska’s registration scheme was not punitive and did not violate ex post facto clause). The 2001 version of N.D.C.C. § 12.1-32-15 was effective when Backlund violated N.D.C.C. § 12.1-20-05.1, and he has no ex post facto argument. Backlund instead argues the 2001 version of N.D.C.C. § 12.1-32-15 “fails to provide [him] due process of law in the form of a meaningful opportunity to demonstrate he is neither dangerous nor likely to re-offend and, therefore, should be exempted from registration altogether.”

[¶ 36] Backlund is subject to mandatory registration under N.D.C.C. § 12.1 — 32—15(l)(e) and (2)(a), and his criminal conviction effectively provided him with procedural due process. See Connecticut Dep’t. of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 1164-65, 155 L.Ed.2d 98 (2003). In Doe, at 1164-65, however, the Court did not decide whether Connecticut’s registration requirements violated substantive due process, and Back-lund claims the registration and notification requirements of N.D.C.C. § 12.1-32-15 violate substantive due process principles.

[¶ 37] Although Backlund raised a procedural due process argument in the trial court, he did not marshal a separate substantive due process argument in that court. Other than conclusory claims that North Dakota’s statutory scheme violates his substantive due process rights, Back-lund has not developed a substantive due process challenge to N.D.C.C. § 12.1-32-15 in this Court. See, e.g., Reno v. Flores, 507 U.S. 292, 301-06, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (stating due process includes substantive component, which forbids government from infringing certain fundamental liberty interests no matter what process is involved, unless the infringement is narrowly tailored to serve a compelling state interest); Michael H. v. Gerald D., 491 U.S. 110, 122-23, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (stating, for substantive due process analysis, fundamental interest must be so rooted in the traditions and conscience of our people as to be ranked as fundamental); Hoff v. Berg, 1999 ND 115, ¶ 14, 595 N.W.2d 285 (stating this Court may declare statute unconstitutional on substantive due process grounds if “ ‘the Legislature had no power to act in the particular matter, or having power to act, [] such power was exercised in an arbitrary, unreasonable, or discriminatory manner and [] the method adopted has no reasonable relation to attaining the desired result.’ ” (quoting Fargo v. Stensland, 492 N.W.2d 591, 594 (N.D.1992)).

[¶ 38] We have said a party raising a constitutional challenge “should bring up the heavy artillery or forego the attack entirely.” State v. Norman, 2003 ND 66, ¶ 21, 660 N.W.2d 549 (quoting State v. Clark, 2001 ND 194, ¶ 9, 636 N.W.2d 660). We have also said we “will only decide issues that have been thoroughly briefed and argued.” Norman, at ¶ 22 (quoting Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 32, 643 N.W.2d 29. We therefore do not address the merits of Backlund’s argument that the registration and notification provisions of N.D.C.C. § 12.1-32-15 violate his substantive due process rights.

B

[¶ 39] Backlund also argues the cumulative effect of the registration and notification requirements are punitive and violate double jeopardy.

[¶ 40] The double jeopardy clause, found in the Fifth Amendment of the United States Constitution, protects against successive prosecutions and punishments for the same criminal offense. State v. Kelly, 2001 ND 135, ¶ 11, 631 N.W.2d 167. Article 1, § 12, of the North Dakota Constitution also protects against double jeopardy. The double jeopardy clause protects against three types of violations: prosecuting a defendant again for the same conduct following an acquittal; prosecuting a defendant for the same crime after conviction; and subjecting a defendant to multiple criminal punishments for the same conduct. Kelly, at ¶ 11. For purposes of double jeopardy analysis under the federal and state constitutions, we apply the same standard to determine punishment. Id.

[¶ 41] Relying on the dissent in Burr, 1999 ND 143, 598 N.W.2d 147, Backlund argues the cumulative effect of the registration and dissemination requirements of N.D.C.C. § 12.1-32-15 is punitive. However, Burr, at ¶ 8, involved an ex post facto challenge to a prior version of N.D.C.C. § 12.1-32-15 and not a double jeopardy analysis. In the context of that ex post facto challenge, both the majority and the dissent considered whether the effect of a subsequent requirement to register as a sex offender imposed additional punishment on a defendant who had been convicted of a crime before enactment of the registration requirement. See Burr, at ¶¶ 10, 42. The majority concluded the registration requirement was regulatory and was not an additional punishment, and did not violate the ex post facto clause. Burr, at ¶ 36. The dissent concluded the statute imposed an additional punishment on the defendant which was not authorized when the defendant committed the crime. Burr, at ¶ 98 (Kaspner, J., dissenting). However, the dissent recognized “[t]he fact that § 12.1-32-15 serves to punish sexual offenders is a matter of legislative policy and a good policy too, in my opinion, as to persons who come within its scope after its enactment.” Id.

[¶ 42] Backlund was ordered to register as a sexual offender and subject to the notification requirements in the context of an original criminal sentence for violating N.D.C.C. § 12.1-20-05.1. The registration requirement was part and parcel of the conviction for the singular offense of luring a minor by computer and was not a separate proceeding. See State v. Kelly, 2001 ND 135, ¶ 10, 631 N.W.2d 167. Those conditions are part of the sentencing scheme for his violation of N.D.C.C. § 12.1-20-05.1, and although the ramifications for those conditions may be harsh, it is within the legislative prerogative to impose the condition. See State v. Brandon, 413 N.W.2d 340, 341 (N.D.1987) (recognizing Legislature, in exercise of police power, may define acts that constitute criminal offenses and set sentencing guidelines for violations of criminal statutes); 21 Am.Jur 2d, Criminal Law § 12 (1998) (recognizing Legislature’s prerogative to define crimes and prescribe punishments). See also N.D.C.C. § 12.1-32-01 (generally authorizing penalties of imprisonment, a fine, or both for violations of criminal statutes). We hold the registration and notification provisions of N.D.C.C. § 12.1-32-15 do not violate the double jeopardy provisions of the state and federal constitutions.

VII

[¶ 43] We affirm Backhand's conviction.

[¶ 44] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.