author: WRIGHT, Judge.

text:
    STATE of Minnesota, Appellant, v. Charles Edward BOEHL, Respondent.
    No. A06-1643.
    Court of Appeals of Minnesota.
    Feb. 6, 2007.

      Lori Swanson, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN; and Melanie S. Ford, St. Louis County Attorney, Duluth, MN, for appellant.
    John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, Minneapolis, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; WRIGHT, Judge; and CRIPPEN, Judge.

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

   OPINION

WRIGHT, Judge.

Appellant State of Minnesota challenges the district court’s imposition of the presumptive guidelines sentence on remand from our reversal of respondent-defendant’s sentence. Appellant argues that the district court erred by failing to consider using its inherent judicial authority to impanel a resentencing jury to determine whether the aggravating factors listed in the patterned-sex-offender sentencing-enhancement statute are present in this case. We reverse and remand.

FACTS

Based on events that occurred in 1996, a jury found respondent Charles Boehl guilty of one count of first-degree criminal sexual conduct, in violation of .Minn.Stat. § 609.342, subd. 1(a) (1996), and two counts of second-degree criminal sexual conduct, in violation of Minn.Stat. § 609.343, subd. 1(a), (h)(iii) (1996). The state moved the district court'to depart from the sentencing guidelines and impose an enhanced sentence under the patterned-sex-offender statute, Minn.Stat. § 609.1352, subd. 1 (1996) (subsequently codified at Minn.Stat. §§ 609.108, subd. 1 (1998), 609.3455, subd. 3a (2006) (engrained-sex-offender statute)). The district court granted the motion and imposed a sentence of 196 months’ imprisonment and ten years’ conditional release based on its determination that (1) Boehl’s offenses were motivated by sexual impulses, (2) the offenses were part of a predatory pattern of behavior that had criminal sexual conduct as its goal, (3) Boehl was a danger to public safety, and (4) Boehl was in need of long-term treatment beyond the prison and conditional-release terms.

On appeal, we held that the district court’s imposition of an upward durational departure violated the constitutional right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because it was based on judicial findings regarding the presence of aggravating factors defined in the patterned-sex-offender statute. State v. Boehl, 697 N.W.2d 215, 222. (Minn.App.2005), review denied (Minn. Aug. 16, 2005). We, therefore, reversed Boehl’s sentence and remanded to the district court for resentencing consistent with Blakely. Id. at 223.

On remand, the state moved the district court to impanel a resentencing jury under Minn.Stat. § 244.10, subd. 5(a) (Supp. 2005), that would determine whether Boehl qualifies for an aggravated durational departure under the patterned-sex-offender statute. The district court denied the motion, holding that there is no version of the patterned-sex-offender statute that may be applied constitutionally to Boehl because the 1996 through 2004 versions require judicial fact-finding, which violates the constitutional right to a jury determination on aggravating factors, and the 2005 version applies only to offenses committed on or after August 1, 2005. 2005 Minn. Laws ch. 136, art. 2, § 6, at 923.

The state moved the district court to reconsider, arguing that the recently enacted 2006 version of section 244.10, subdivision 5, which applies to sentencing and resentencing hearings sought on or after June 2, 2006, requires the district court to impanel a jury to make factual findings regarding the aggravating factors necessary to support the state’s request for an enhanced sentence under a sentencing-enhancement statute. 2006 Minn. Laws ch. 260, art. 1, § 1, at 708; 2006 Minn. Laws ch. 260, at 829 (stating date signed by governor). The district court denied reconsideration and sentenced Boehl to the presumptive guidelines sentence of 98 months’ imprisonment and five years’ supervised release. This expedited appeal followed.

ISSUES
I. Could the district court have properly exercised its inherent judicial authority to impanel a resentencing jury to make findings regarding the aggravating factors defined in Minn.Stat. § 609.1352, subd. 1 (1996)?
II. If the district court could have properly exercised its inherent judicial authority to impanel a resentencing jury, was it required to do so?

ANALYSIS

This case involves the application of a statutory sentencing scheme, which, as written, prescribes a procedure for determining whether to impose an enhanced sentence that violates the right to a jury trial under the Sixth Amendment of the United States Constitution. The patterned-sex-offender statute governing Boehl’s offenses requires a district court to sentence a defendant convicted of violating Minn.Stat. § 609.342 (1996) or Minn.Stat. § 609.343 (1996) to an enhanced sentence if the district court finds that the requisite aggravating factors are present. Minn. Stat. § 609.1352, subd. 1 (1996) (subsequently codified at Minn.Stat. §§ 609.108, subd. 1 (1998), 609.3455, subd. 3a (2006)). But a district court’s imposition of an enhanced sentence based on judicial findings regarding the requisite aggravating factors violates the Sixth Amendment right to a trial by jury. Blakely v. Washington, 542 U.S. 296, 304, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004). We are required to determine whether, in light of the conflict between legislative and constitutional mandates, the district court can properly exercise its inherent judicial authority to effectuate the legislature’s intent to enhance the sentences of patterned sex offenders in a constitutional manner by impaneling a resentencing jury.

In our prior decision in this matter, we held that the district court’s imposition of an enhanced sentence under the patterned-sex-offender statute violated the Sixth Amendment because the patterned-sex-offender statute requires the district court, rather than a jury, to make findings regarding the aggravating factors. State v. Boehl, 697 N.W.2d 215, 222 (Minn.App.2005) (citing Blakely), review denied (Minn. Aug. 16, 2005). To correct the unconstitutional aspect of the patterned-sex-offender statute, the legislature amended the statute in 2005 to require the “fact finder” to make the requisite findings as to the existence of aggravating factors. Minn.Stat. § 609.108, subd. 1 (Supp.2005). But the amendment applies only to offenses committed on or after August 1, 2005, 2005 Minn.'Laws ch. 136, art. 2, § 6, at 923, and is, therefore, inapplicable to Boehl, who committed his offenses in 1996. Consequently, the dates of Boehl’s .offenses and his resentencing put the district court’s resentencing decision squarely between the problem identified in Blakely regarding the unconstitutional judicial-fact-finding provision in Minn.Stat. § 609.1352, subd. 1 (1996), and the legislative solution to that problem, namely, the 2005 amendment. The district court regarded its resentencing options as limited to either violating the right to a jury determination on aggravating factors by applying Minn.Stat. § 609.1352, subd. 1 (1996), or giving Boehl what amounts to arbitrary immunity from a sentencing enhancement, occasioned only by the timing of his offenses, and imposing the presumptive guidelines sentence. The district court chose the latter option.

The state argues that the district court was not confined to these limited options. Rather, the state maintains that the district court erred by failing to acknowledge and exercise its inherent judicial authority to impanel a resentencing jury to make the requisite findings, which would have vindicated Boehl’s Sixth Amendment rights and effectuated the legislative policy favoring aggravated sentencing departures when appropriate. These issues present questions of law, which we review de novo. State v. Chauvin, 723 N.W.2d 20, 23 (Minn.2006).

I.

As a preliminary matter, Boehl argues that the state waived its inherent-judicial-authority argument because the state failed to raise that argument in its initial appellate brief. Ordinarily, issues that are not briefed on appeal are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn.App.1997), review denied, (Minn. Aug. 5, 1997). Moreover, issues that are not raised or argued in an appellant’s initial brief ordinarily may not be revived in an appellant’s reply brief. McIntire v. State, 458 N.W.2d 714, 717 n. 2 (Minn.App.1990), review denied (Minn. Sept. 28, 1990). But we have discretion to address any issue that justice compels us to address. Minn. R.Crim. P. 28.02, subd. 11.

Here, the state’s initial brief was filed before the Minnesota Supreme Court released State v. Chauvin, 723 N.W.2d 20 (Minn.2006), and State v. Kendell, 723 N.W.2d 597 (Minn.2006), both of which are relevant to our analysis of whether the district court could have properly exercised its inherent judicial .authority to impanel a resentencing jury. But the state astutely anticipated in its initial brief that the supreme court would release its decisions in those cases before we had the opportunity to decide this matter. In turn, Boehl deftly anticipated the arguments that the state could raise in response to the supreme court’s decisions— all of which the state subsequently raised in its reply brief — and utilizes six pages of well-reasoned analysis to refute these arguments. Because the state correctly anticipated that the supreme court would further define when it is proper for a district court to exercise its inherent judicial authority to impanel sentencing and resentencing juries, because Boehl predicted and thoroughly analyzed the state’s arguments in response to Chauvin and Kendell, and because this is an issue of substantial import in the wake of Blakely, justice compels us to address this issue.

The Minnesota Supreme Court first considered the issue of whether a district court possesses the inherent judicial authority to impanel sentencing and resen-tencing juries in State v. Shattuck, 704 N.W.2d 131, 147-48 (Minn.2005) (Shattuck II). The district court had sentenced Shattuck to an enhanced sentence under the repeat-sex-offender statute, Minn.Stat. § 609.109, subd. 4(a) (2004), rather than the presumptive guidelines sentence, and we affirmed. State v. Shattuck, No. C6-03-362, 2004 WL 772220 (Minn.App. Apr. 13, 2004), rev’d, 704 N.W.2d 131 (Minn.2005). While Shattuck’s petition for review was pending before the Minnesota Supreme Court, the United States Supreme Court issued its decision in Blakely. Shattuck II, 704 N.W.2d at 135. In accordance with the rule announced in Blakely, the Minnesota Supreme Court reversed our decision affirming Shattuck’s sentence and remanded the matter to the district court for resentencing. Id. The supreme court addressed the resentencing procedure to be used on remand and acknowledged that a district court possesses the inherent judicial authority to establish procedures that comply with Blakely. Id. at 148. But the supreme court nevertheless rejected the suggestion that the district court should exercise that inherent judicial authority to impanel a resentencing jury. Id. Rather, it left to the legislature the task of amending Minnesota’s sentencing scheme to comport with the Blakely decision. Id.; see also State v. Henderson, 706 N.W.2d 758, 762-63 (Minn.2005) (considering career-offender sentencing-enhancement statute, codified at Minn.Stat. § 609.1095 (2004), and remanding for re-sentencing consistent with Shattuck II).

The supreme court reached this same conclusion in State v. Barker, in which the district court had sentenced Barker under Minn.Stat. § 609.11, subd. 5(a) (2004) (providing for mandatory minimum sentence of three years after judicial finding of firearm possession during commission of predicate offense), rather than imposing the presumptive guidelines sentence. 705 N.W.2d 768, 770-71 (Minn.2005). We reversed the sentence because it was imposed in violation of the Sixth Amendment right to a jury trial. State v. Barker, 692 N.W.2d 755, 757-60 (Minn.App.2005) (citing Blakely), aff'd, 705 N.W.2d 768 (Minn.2005). The supreme court affirmed and remanded the matter to the district court for resen-tencing. Barker, 705 N.W.2d at 776. As in Shattuck II, the supreme court in Barker, relying on Shattuck II, rejected the argument that the district court should exercise its inherent judicial authority to impanel a resentencing jury. Id. at 775-76 (also considering and rejecting argument that district court possessed statutory authority to impanel resentencing jury).

Nearly a year later, the Minnesota Supreme Court issued its decisions in Chau-vin and Kendell. In Chauvin, the district court submitted to the same jury that had convicted Chauvin the question of whether the aggravating factor of victim vulnerability, as defined in the Minnesota Sentencing Guidelines, was present. 723 N.W.2d at 23. This sentencing-related finding of fact was made by the jury after Blakely was decided but before the legislature amended the unconstitutional judicial-fact-finding provisions in the sentencing guidelines to comply with Blakely or enacted legislation authorizing the use of sentencing juries. Id. at 23-24.

In analyzing the propriety of the district court’s action, the Chauvin court acknowledged and applied the rule that a district court possesses the “inherent judicial authority to engage in activities that are (1) necessary (2) to achieve a unique judicial function (3) without infringing on equally important legislative or executive functions.” Id. at 24. The supreme court observed that, because the legislature had not amended the unconstitutional judicial-fact-finding provision in the sentencing guidelines, the legislature had not established a constitutionally sound mechanism for the district court to impose the upward departure mandated by the sentencing guidelines when the victim is particularly vulnerable. Id. Nor had the legislature provided guidance on how to effectuate the intent of the departure provisions of the sentencing guidelines without such a mechanism. Id. In the absence of a constitutionally sound mechanism or legislative guidance, the supreme court held that the district court’s use of a sentencing jury was necessary both to carry out the legislature’s sentencing scheme and to vindicate Chauvin’s Sixth Amendment right to a jury determination of facts, such as victim vulnerability, that could result in an upward durational departure from the presumptive guidelines sentence. Id.

• The Chauvin court also held that the use of sentencing juries to make factual findings falls within the judiciary’s unique functions, as it is the “historical and constitutional function of the judiciary to safeguard the rights of criminal defendants by providing for a jury trial where the statutory scheme is silent on the issue.” Id. at 26-27 (emphasis added).

Finally, the Chauvin court held that the district court had not infringed on the legislative function of creating a sentencing system because, at the time the sentencing hearing occurred, “Blakely had established that the judicial fact finding on sentencing factors contemplated by the guidelines was unconstitutional,” but the legislature had not'adopted any “new legislation providing for the same or a different procedure.” Id. at 27. Rather, the district court had effectuated “the legislative policy of allowing the opportunity to depart from the presumptive sentence where ‘substantial and compelling circumstances exist.’ ” Id. (quoting Minn. Sent. Guidelines 1.4) (citing Minn. Sent. Guidelines II.D).

Because the use of a sentencing jury was necessary to achieve a unique judicial function and did not infringe on equally important legislative or executive functions, the Chauvin court held that the district court not only possessed the inherent judicial authority to impanel a sentencing jury to make findings regarding the aggravating factor of victim vulnerability, id., but also exercised that authority properly in that the district court’s actions were consistent with subsequent legislative enactments such as Minn.Stat. § 244.10 (2004 & Supp.2005) (authorizing use of sentencing juries for resentencing hearings), id. at 29. And it held that neither Shattuck II nor Barker precluded the district court’s exercise of that authority. Id.

In Kendell, the state also sought an aggravated sentence, but unlike in Chau-, vin, it did so under the senteneing-en-hancement statute codified at MinmStat. § 609.1095 (2004). 723 N.W.2d at 604. In its efforts to effectuate the legislature’s intent regarding sentencing enhancements and to protect Kendell’s Sixth Amendment rights, the district court submitted a special interrogatory to the jury regarding the aggravating factors defined in section 609.1095. Id. As in Chauvin, the district court utilized a sentencing jury even though the legislature had neither amended section 609.1095 to bring the unconstitutional judicial-fact-finding provision into compliance with Blakely’s mandate, nor provided guidance as to how a district court should proceed in light of the statute’s constitutional deficiency. Id. at 610. Consistent with Chauvin, the Minnesota Supreme Court held that the district court had properly exercised its inherent judicial authority by seeking a jury determination. Id.

As in Shattuck II, Barker, Chau-vin, and Kendell, the issues before us are whether the district court possessed the inherent judicial authority to impanel a sentencing jury on remand from our reversal of Boehl’s unconstitutional sentence and, if so, whether it could have properly exercised that authority under the circumstances presented. But the facts presented here are sufficiently distinguishable to preclude us from squarely applying any of these precedents.

When the state moved to impanel a re-sentencing jury on remand from our reversal of Boehl’s sentence, the legislature had amended aspects of the Minnesota sentencing scheme in response to Blakely. For example, the legislature had amended the patterned-sex-offender statute to require the “fact finder,” rather than the district court, to make findings regarding the requisite aggravating factors. See Minn.Stat. § 609.108, subd. 1 (Supp.2005) (requiring fact finder to find that offender is danger to public safety and needs treatment or supervision beyond presumptive term and supervised-release period). This amendment, however, applies only to offenders who committed their offenses on or after August 1, 2005. 2005 Minn. Laws ch. 136, art. 2, § 6, at 923. Because this effective date left the district court without statutory authority to impanel a resentenc-ing jury for Boehl’s offenses, which were committed in 1996, we consider whether the district court could have properly exercised its inherent judicial authority to impanel a resentencing jury. In doing so, we consider whether impaneling a resentenc-ing jury was “(1) necessary (2) to achieve a unique judicial function (3) without infringing on equally important legislative or executive functions.” Chauvin, 723 N.W.2d at 24.

A.

As in Chauvin, the legislature did not provide the district court with a constitutional mechanism to effectuate the enhanced sentence mandated by Minn.Stat. § 609.1352, subd. 1 (1996). Nor had the legislature provided guidance on how to proceed without such a mechanism. We, therefore, hold that the use of a sentencing or resentencing jury for those offenders who committed their offenses before August 1, 2005, is necessary to vindicate the Sixth Amendment rights of those offenders and to carry out the sentencing-enhancement scheme that the legislature mandated in Minn.Stat. § 609.1352, subd. 1 (1996).

B.

The use of a resentencing jury to make factual findings in cases such as this rests within the judiciary’s unique functions because, as the Chauvin court observed, it is the “historical and constitutional function of the judiciary to safeguard the rights of criminal defendants by providing for a jury trial where the statutory scheme is silent on the issue.” Id. at 26-27 (emphasis added). Boehl argues that the patterned-sex-offender statutory scheme is no longer silent after the enactment of the 2005 amendment. We disagree. The 1996 version of the patterned-sex-offender statute requires the district court to sentence Boehl to an enhanced sentence if the district court finds that certain aggravating factors are present. But the legislature has remained silent regarding how a district court may fulfill this statutory mandate in a constitutional manner because it has not provided guidance as to the proper sentencing procedure for patterned sex offenders who committed their offenses before August 1, 2005, but are sentenced after the Blakely decision. Absent such guidance, impaneling a resentencing jury to effectuate the legislature’s intent falls within the judiciary’s unique functions while safeguarding Boehl’s Sixth Amendment rights.

C.

Finally, we consider whether, under these circumstances, impaneling a resen-tencing jury would infringe on the legislative function of creating a sentencing scheme that comports with the United States Constitution. This presents a question of comity. In Chauvin, the supreme court noted that it had declined to exercise its inherent judicial authority in Shattuck II and Barker “out of deference to the legislature” because, in Shattuck II, “the legislature had already provided for the remedy the state was requesting,” namely, the “authority to impanel a sentencing jury on remand of an unconstitutional sentence,” and, in Barker, “the legislature had already omitted the specific mandatory minimum statute at issue from the [legislative] authorization to use sentencing juries on resentencing.” Chauvin, 723 N.W.2d at 28 (citing Barker, 705 N.W.2d at 775-76; Shattuck II, 704 N.W.2d at 148). The supreme court observed that the policy decision “to decline on comity grounds to exercise ... inherent judicial authority to impanel sentencing juries[ ] could be extended to cases such as Chauvin’s,” in which the district court impaneled a sentencing jury before the 2005 amendments were enacted. Id. But instead the Chau-vin court concluded that the exercise of inherent judicial authority was appropriate. Id. at 29. In doing so, the supreme court distinguished Chauvin’s case from Shattuck II and Barker because “there was no lawful legislative fact finding procedure to which the [district] court could have given deference” when Chauvin was sentenced. Id.

We conclude that the circumstances presented here are more akin to those in Chauvin than to those in Shattuck II and Barker. As in Chauvin, when Boehl was resentenced, there was no legislatively mandated, constitutionally sound fact-finding procedure in effect; the 2005 amendment to the patterned-sex-offender statute did not apply to Boehl, who committed his offense before August 1, 2005. Unlike in Shattuck II, where “the legislature had already provided for the remedy the state was requesting,” namely, the “authority to impanel a sentencing jury on remand of an unconstitutional sentence,” Chauvin, 723 N.W.2d at 28 (citing Shattuck II, 704 N.W.2d at 148), when Boehl was resen-teneed, the legislature had not enacted the procedural remedy the state was requesting. Rather, it had limited the application of the 2005 amendment to the patterned-sex-offender statute to sex offenders who committed them offenses on or after August 1, 2005. And, unlike the facts in Barker, the legislature did include the patterned-sex-offender statute in the legislative authorization to use sentencing juries on resentencing. Minn.Stat. § 244.10, subd. 5(a) (2006). Because there is not a constitutionally sound mechanism for sentencing enhancement under the patterned-sex-offender statute applicable to Boehl to which courts may defer, comity did not prevent the district court from exercising its inherent judicial authority to impanel a resentencing jury on remand.

Our conclusion is buttressed by the legislature’s clear intent that offenders receive enhanced sentences when appropriate using constitutionally sound sentencing procedures, which we glean both from recently enacted statutes and from legislative history. The legislature’s 2005 amendment to the patterned-sex-offender statute demonstrates that the legislative policy favoring enhanced sentences for patterned sex offenders is unabated. The 2005 amendment also expresses the legislature’s intent that those enhanced sentences be imposed without offending constitutional guarantees by remedying the constitutional deficiency in the patterned-sex-offender statute. This intent also is evident in the 2006 amendment to Minn. Stat. § 244.10, subd. 5(a) (2006), which requires the district court to impanel a sentencing or resentencing jury that will determine whether the aggravating factors listed in a sentencing-enhancement statute are present.

Relevant legislative history also supports our conclusion that the district court was not precluded by principles of comity from exercising its inherent judicial authority to impanel a resentencing jury- on remand. Legislative history makes evident that the 2005 amendments to the sex-offender statutes would not have been limited to offenses committed on or after August 1, 2005, but for the legislature’s concern that broader application would violate the Ex Post Facto Clause, U.S. Const, art. I, § 9, Minn. Const, art. I, § 11. See Hearing on S.F. No. 1875 Before the Senate Comm, on Crime Prevention & Pub. Safety (Mar. 31, 2005) (statement of Sen. Skoglund). The Minnesota Supreme Court’s recent decision, Hankerson v. State, demonstrates that the legislature’s ex post facto concerns were' unfounded. 723 N.W.2d 232, 242 (Minn.2006). The Hankerson court held that the 2005 amendment to Minn.Stat. § 244.10, subd. 5(a), which changed the identity of the fact finder, does not violate the Ex Post Facto Clause because that change is merely procedural. Id. The Hankerson court also •held that, even if a law is not merely procedural, it is not a prohibited ex post facto law when it vindicates, rather than burdens, a defendant’s rights. Id.

Similarly, the 2005 amendment to the patterned-sex-offender statute is merely procedural; it simply changes the identity of the fact finder from the “[district] court” to the “fact finder.” Moreover, the 2005 amendment does not disadvantage Boehl. Rather, it vindicates his Sixth Amendment right to a jury determination on aggravating factors. Therefore, the legislature could have made the 2005 amendment to the patterned-sex-offender statute applicable to sentences imposed after its enactment regardless of the date of the underlying offense, without running afoul of the Ex Post Facto Clause.

In sum, because the legislature has not provided a district court with a constitutional mechanism by which to effectuate its intent to impose enhanced sentences for patterned sex offenders who committed their offenses before August 1, 2005, or legislative guidance as to how a district court should proceed absent such a mechanism, and because recent legislative enactments and legislative history reiterate the legislature’s intent that district courts use constitutional procedures to impose enhanced sentences on such offenders when appropriate, we conclude that impaneling a resentencing jury to make the requisite findings set forth in the 1996 version of the patterned-sex-offender statute does not offend principles of comity or infringe on the legislative function of creating a sentencing-enhancement scheme.

Impaneling a resentencing jury on remand from our reversal of Boehl’s sentence was necessary to achieve a unique judicial function without infringing on equally important legislative or executive functions. Therefore, the district court could have properly exercised its inherent judicial authority to impanel a resentenc-ing jury.

II.

In those cases in which the supreme court has concluded that a district court may properly exercise its inherent judicial authority to impanel a sentencing or resen-tencing jury, the supreme court has not compelled the district court to do so. Far from mandating the exercise of inherent judicial authority in other contexts, the supreme court has recognized the discretionary nature of this decision, see, e.g., State v. Hart, 723 N.W.2d 254, 259-60 (Minn.2006) (reviewing for abuse of discretion district court’s decision to use its statutory and inherent judicial authority to dismiss complaint in interests of justice), and has admonished district courts to proceed cautiously when exercising that authority so as to “respect the equally unique authority of the executive and legislative branches of government over their constitutionally authorized functions,” State v. C.A., 304 N.W.2d 353, 359 (Minn.1981). As addressed in section I, this admonition applies with equal force when a district court considers whether to exercise its inherent judicial authority to impanel a sentencing or resentencing jury.

Here, rather than using its discretion and declining to exercise its inherent judicial authority to impanel a resentencing jury, the district court failed to recognize that it possessed such authority. In light of this error, we remand to the district court to determine whether to exercise its inherent judicial authority to impanel a resentencing jury to determine whether the factors exist for imposing an enhanced sentence under the patterned-sex-offender statute.

DECISION

The district court possessed the inherent judicial authority to impanel a resen-tencing jury on remand from our reversal of respondent’s enhanced sentence, which had been imposed in violation of the Sixth Amendment. Principles of necessity and comity did not preclude the district court from exercising its inherent judicial authority to achieve this unique judicial function. Because the district court erred by failing to recognize that it possessed this inherent judicial authority, we reverse and remand for the district court’s discretionary determination of whether to exercise that authority.

Reversed and remanded.

      . This statute requires the district court to sentence an offender convicted of violating or attempting to violate sections 609.342, 609.343, 609.344, 609.345, or any other predatory offense to a term of imprisonment that is at least double the presumptive guidelines sentence, but not more than the statutory maximum, if the district court finds that (1) the offense was motivated by the offender’s sexual impulses or was part of a predatory pattern of behavior that had criminal sexual conduct as a goal; (2) the offender is a danger to public safety; and (3) the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release. Minn.Stat. § 609.1352, subd. 1.

      . "When the prosecutor provides reasonable notice ..., the district court shall allow the state to prove beyond a reasonable doubt to a jury of 12 members the factors in support of the state's request for an aggravated departure from the Sentencing Guidelines....” Minn.Stat. § 244.10, subd. 5(a) (Supp.2005).

      . Our analysis applies with equal force to impaneling a sentencing jury for offenders who committed their offenses before August 1, 2005, but because of delayed disclosure or other reasons are sentenced after the Blakely decision.

      . This statute now provides:
      When the prosecutor provides reasonable notice under subdivision 4, the district court shall allow the state to prove beyond a reasonable doubt to a jury of 12 members the factors in support of the state's request for an aggravated departure from the Sentencing Guidelines or the state’s request for an aggravated sentence under any sentencing enhancement statute or the state's request for a mandatory minimum under section 609.11....
      Minn.Stat. § 244.10, subd. 5(a) (2006) (emphasis added). This amendment applies to sentencing hearings, resentencing hearings, and sentencing departures sought on or after June 2, 2006. 2006 Minn. Laws ch. 260, at 829.

      . The legislative policy favoring enhanced sentences when appropriate also is evident in the amendments to similar sentencing-enhancement statutes. See, e.g., Minn.Stat. §§ 609.109, subd. 4 (repeat sex offender), 609.1095, subd. 2 (dangerous-offender statute) (Supp.2005).

      . Boehl argues that it is improper for us to consider legislative history because the plain language of the 2005 amendment to the patterned-sex-offender statute unambiguously establishes that a district court may impanel sentencing juries only for those defendants who committed offenses on or after August 1, 2005. But as addressed above, this amendment does not change the fact that the legislature has remained silent regarding the proper mechanism by which a district court may sentence offenders who committed their offenses before August 1, 2005, to the enhanced sentence mandated by the prior versions of the patterned-sex-offender statute. Moreover, were we to adopt Boehl’s suggestion that the plain language of the 2005 amendment to the patterned-sex-offender statute is clear and unambiguous as it relates to Boehl, we conclude that such language could be disregarded because it "utterly confounds [the] clear legislative purpose.” Weston v. McWilliams & As-socs., Inc., 716 N.W.2d 634, 639 (Minn.2006) (quotation omitted).


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    MINNESOTA TEAMSTERS PUBLIC & LAW ENFORCEMENT EMPLOYEES UNION, LOCAL 320, petitioner, Appellant, v. The COUNTY OF ST. LOUIS, Respondent.
    No. A06-841.
    Court of Appeals of Minnesota.
    Feb. 6, 2007.

      Patrick J. Kelly, Trevor S. Oliver, Kelly & Fawcett, P.A., St. Paul, MN, for appellant.
    Melanie S. Ford, St. Louis County Attorney, Amy H. Kuronen, Assistant County Attorney, Duluth, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; SHUMAKER, Judge; and HUDSON, Judge.
   OPINION

MINGE, Judge.

Appellant union challenges summary judgment in favor of respondent public employer claiming that the employer failed to provide health insurance consistent with negotiations, that the employer refused to cooperate in submitting this dispute to the grievance procedure, and that the employer committed an unfair labor practice by failing to engage in the grievance process or negotiations over the dispute. Because the parties executed a collective bargaining agreement that clearly does not include the health insurance benefits appellant claims the parties negotiated, we affirm.

FACTS

Appellant, Minnesota Teamsters Public & Law Enforcement Employees Union, Local No. 320 (the union), is the exclusive representative of St. Louis County Highway Department Maintenance employees. Respondent St. Louis County (the county) is a public employer pursuant to the Public Employment Labor Relations Act (PEL-RA), MinmStat. ch. 179A (2006). This controversy is over healthcare benefits that were the subject of negotiations leading to the May 11, 2005 collective bargaining agreement (CBA) between the parties.

The parties engaged in extended negotiations for a new CBA to replace one that expired on December 31, 2003. Employees worked without a new agreement for several weeks. The details of health insurance coverage constituted a major topic of negotiation. The parties reached a tentative agreement on April 1, 2004, the last day before union members could call a strike. The county’s representatives prepared a document entitled “Tentative Agreement” the next day. This document, along with an attached “Group Health Insurance Proposal,” included an outline of health insurance benefits for a new plan that was to take effect starting January 1, 2005, the second year of the contract. According to the proposal, group health insurance benefits included: $0 co-payments for office visits; 100% coverage of preventative medical services; bundling of diabetic supplies; no changes to the drug maintenance list; $500 family deductible; and $10/$20/$40 scale of co-payments for prescription drugs. The tentative agreement also indicated: “The actual descriptions of the group hospitalization plan benefits are contained in the plan documents, not in the labor contract.” And the attached health insurance proposal read:

This proposal is not a contract and should serve only as an outline. All benefits are detailed in the final approved contract or certificate. Rates and premiums are estimates based on the employee data submitted, subject to home office underwriting, and do not imply a guarantee of coverage or quoted rates.

The terms of the tentative agreement were submitted to the members of the bargaining unit, voted on, and approved.

After the vote, the county sent a summary of the tentative agreement to the union. The union objected, contending that the summary was at odds with the parties’ agreement. On May 5, 2004, both the county and the union’s representatives signed a “letter of agreement,” stating: “The signature copies of the CBA are contingent on the basis there will be no office co-pays for chiropractors or otherwise, for any office visits.”

The county’s representative prepared the final draft of the CBA. The county board approved the CBA on May 11, 2004, and both parties signed on that date. The CBA covered the period of-January 1, 2004 through December 31, 2005. With respect to health insurance, the CBA provided that effective January 1, 2005, a new plan would replace the existing health plan and require the county, as the employer, to pay a stated percentage of premiums. The CBA also specified certain co-pays for prescriptions. With respect to insurance claims against the county, the CBA provides:

Any description of insurance benefits contained in this Article is intended to be informational only and the eligibility ■for benefits shall be governed by the terms of the insurance policy and not by this Agreement. The EMPLOYER’S only obligation is to pay such amounts as agreed to herein and no claim shall be made against the EMPLOYER as a result of a denial of insurance benefits by an insurance carrier, except in ease of error by the EMPLOYER in reporting information to the insurer.

The CBA did not address other terms that were the subject of negotiations, including co-pays for office visits. The record does not indicate why these terms were not included in the CBA.

The new health insurance plan became effective on January 1, 2005. Shortly thereafter, the union alleged that the county unilaterally changed the contract terms for health insurance coverage and violated the contract by not honoring the specific level of health insurance benefits identified in the tentative agreement and the May 5 letter. Among other objectionable changes, the union identified the requirement of co-pays for office visits and the lack of coverage for various prescriptions that had previously been included in the category of maintenance drugs. The county denied any violation, asserting that there was no required co-pay for office visits, but that the annual deductible included the cost of office visits until the deductible amount had been reached, that the identification of what drugs were classified as maintenance drugs was an insurance policy detail, and that both the tentative agreement and the CBA made clear that the insurance policy, not the CBA, controlled the description of benefits. The union filed a grievance application, which the county denied, stating among other reasons, that the issue was not appropriate for the grievance process. Next, the union requested a hearing before the St. Louis County Grievance Board. The county also denied this request, reasoning that the union was attempting to reform the CBA rather than clarify it.

The union filed suit, claiming that the county violated the CBA by failing to pay the correct premiums and committed unfair labor practices and violated the terms of the CBA by its refusal to participate in the grievance procedure. The union requested a court order compelling respondent to participate in the grievance procedure. The union also sought reimbursement for any medical costs incurred by members because of the county’s alleged violation of the CBA. Both parties moved for summary judgment on the terms of health insurance, the applicability of the grievance/arbitration procedure, and the claim of an unfair labor practice. The district court denied the union’s motion for summary judgment, but granted the county’s motion and entered judgment accordingly. This appeal follows.

ISSUES
I. Did the district court err in ruling that the county did not violate the CBA?
II. Did the district court err in ruling that the underlying dispute does not fall within the definition of “grievance,” requiring arbitration under the parties’ grievance procedure?
III. Did the district court err in ruling that the county did not commit an unfair labor practice?

ANALYSIS

On appeal from summary judgment, this court considers whether there are any genuine issues of material fact and whether the district court erroneously applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine issue for trial exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted). “[T]he party resisting summary judgment must do more than rest on mere aver-ments.” Id. at 71. A genuine issue for trial must be established by “sufficient evidence to permit reasonable persons to draw different conclusions.” Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn.2006). On appeal, we “view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Summary judgment is inappropriate if the contract is ambiguous or uncertain. Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966). In such cases, the district court should give the parties a full opportunity to present evidence of the facts, circumstances, and conditions surrounding the contract’s execution and the parties’ conduct. Id.

I.

The first -issue is whether the district court erred by granting summary judgment to the county and denying the union’s motion based on its holding that the county did not violate the CBA. We interpret and enforce a CBA as we do other contracts. Hous. & Redevelopment Auth. of Chisholm v. Norman, 696 N.W.2d 329, 337 (Minn.2005); Mueller v. Chicago & Nw. Ry. Co., 194 Minn. 83, 85, 259 N.W. 798, 799 (1935). The union agrees that traditional contract law principles apply. A written contract supersedes all contract negotiations. Hoyt v. Brokaw, 359 N.W.2d 310, 311 (Minn.App.1984).

The union contends that the district court erred by finding that the CBA is unambiguous and urges us to examine the parties’ tentative agreement. Whether a contract is ambiguous is a question of law. Id. “[W]e first look to the language of the contract and examine extrinsic evidence of intent only if the contract is ambiguous on its face.” Norman, 696 N.W.2d at 337; see also Local 377, Chauffeurs, Teamsters, Warehousemen, & Helpers of Am. v. Humility of Mary Health Partners, 296 F.Supp.2d 851, 860 (N.D.Ohio 2003). Ambiguity exists if contract language is “reasonably susceptible of more than one meaning....” Hoyt, 359 N.W.2d at 311. “[Waitings other than the contract [can] not be used to create an ambiguity which [does] not exist in the contract itself.” Kenko, Inc. v. Lowry Hill Constr. Co., 392 N.W.2d 18, 20 (Minn.App.1986), review denied (Minn. Oct. 22, 1986).

The CBA, on its face, is not ambiguous. With respect to employee health insurance plans effective January 1, 2005, the CBA provides:

Section 1. The EMPLOYER agrees to permit all employees to be covered by the group hospitalization insurance programs under the St. Louis County Employee Plan, and to contribute to the premium as follows:
Option A Option B
Single Coverage 100% 100%
Dependent Coverage 80/20 85/15
Prescription co-pays shall be as follows: $10.00 generic; $20.00 formulary brand-name; $40.00 non-formulary brand name.
[Sections 2 & 3 Life and Dental Insurance]
Section ⅛. Claim Against EMPLOYER. Any description of insurance benefits contained in this Article is intended to be informational only and the eligibility for benefits shall be governed by the terms of the insurance policy and not by this Agreement. The EMPLOYER’S only obligation is to pay such amounts as agreed to herein and no claim shall be made against the EMPLOYER as a result of a denial of insurance benefits by an insurance carrier, except in case of error by the EMPLOYER in reporting information to the insurer.

The district court found that the written CBA superseded the parties’ “[p]rior summaries, settlements or ‘tentative agreements’ .... ” But the union contends that the April 2, 2004 tentative agreement and the May 5 letter agreement statements that there would be no co-pays, reflect the parties’ final position and that any changes to the health insurance provisions after that date constitute a breach of contract. Although the CBA did not contain a merger clause, that does not mean prior negotiations become part of the contract. “[T]he absence of a merger clause in a writing does not necessarily open the door to parol evidence.” 29A Am.Jur.2d Evidence § 1095 (1994). The union’s argument is based on the tentative and letter agreements, which predate the CBA. We note that neither of these preliminary agreements state that the deductible does not apply to office visits.

The union further argues that by their vote, the employees, as members of the bargaining unit, accepted the terms of the tentative agreement and that this members’ vote is significant in interpreting the contract. We acknowledge that this membership- vote distinguishes collective bargaining agreements from standard contracts. Yet, we note that in this case the union agrees that the standard principles of contract law apply. The record indicates that the CBA was presented to the union representatives for approval and signature. Both union and county officials signed the CBA. There is no claim the union representatives lacked authority. The fundamental issue is whether CBA displaces the earlier negotiations.

This case is the inverse of the situation in Norman. There, the public employer argued that the promised retiree health insurance benefits as specified in the collective bargaining agreement were not enforceable and that public employers were not bound by traditional contract analysis. 696 N.W.2d at 332. The district court held that the employer’s promise, as contained in the CBA, was enforceable on contract grounds. Id. at 337. Here, the claimed commitments were not embodied in the CBA. The dispute is largely over whether the deductible amount applies to physician and chiropractic office visits. The CBA does not attempt to cover this, except to say that the actual insurance policy controls. Prior negotiations, especially if they are unclear, are not an implied part of the CBA. See Hoyt, 359 N.W.2d at 311. Here, the prior negotiations do not address the interplay between the concept of a deductible and a co-pay.

Because the CBA represents the final agreement between the parties and because there is no claim of fraud, duress, bad faith, mutual mistake, lack of authority, or special circumstances that affect the application of traditional contract law to this area of public employer labor agreements, we conclude that the county did not violate the parties’ agreement, and we- uphold the district court’s grant of summary judgment based on its ruling that the county did not breach the CBA. We note that this is not a situation in which benefits contained in the CBA have been arbitrarily eliminated by an abusive interpretation of the contract.

II.

The second issue is whether the district court erred in granting summary judgment based on its determination that disputes over the co-pays and deductible in the new medical insurance plan were not subject to the grievance and arbitration procedure. This court reviews de novo a district court’s decision regarding the arbi-trability of disputes. Minn. Teamsters Pub. & Law Enforcement Employees’ Union Local No. 320 v. County of St. Louis, 611 N.W.2d 355, 358 (Minn.App.2000). When considering whether to compel arbitration, this court considers “whether the dispute falls within the scope of the arbitration agreement.” Id. (quotation omitted).

Minnesota law requires that all collective bargaining agreements include a grievance procedure. Minn.Stat. § 179A.20, subd. 4(a) (2006). The statute defines “grievance” as “a dispute or disagreement as to the interpretation or application of any term or terms of any contract required by section 179A.20.” MinmStat. § 179A.21, subd. 1 (2006). “A liberal and broad construction of the term ‘grievance’1 as used in collective bargaining agreements should be given in the interest of encouraging the use of machinery which hás been set up for peaceful settlement of disputes.” Ekstedt v. Village of New Hope, 292 Minn. 152, 161, 193 N.W.2d 821, 827 (1972). The Ekstedt court concluded that it is “reasonable to conclude that the Minnesota statutory reference relates to some complaint related to terms or conditions of employment.” Id.

Here, Article 9 of the parties’ CBA describes the grievance procedures. The CBA defines “grievance” as “a dispute or disagreement raised by an employee against the County involving the interpretation or application of the specific provisions of this AGREEMENT, including disciplinary actions; provided, however, that a grievance shall not include any matter which is not within the authority of the County to act.” The CBA then establishes a four-step grievance process, with the final step providing for arbitration of disputes. The CBA also provides: “The decision shall be based solely upon the arbitrator’s interpretation of the meaning or application of the express terms of this AGREEMENT to the facts of the grievance presented.” The CBA limits the scope of the arbitrator’s decision-making authority: “The arbitrator shall have no right to amend, modify, nullify, ignore, add to, or subtract from the provisions of this AGREEMENT.” Finally, “[i]f the arbitrator finds that the grievance concerns matters not covered by this AGREEMENT or the procedures contained herein have not been adhered to, the arbitrator shall return the matter to the parties without decision.”

In this case, the district court found both that the union did not file a proper grievance request and that the dispute is not subject to the grievance procedure. We conclude that the dispute did not arise out of the contract, but rather out of the tentative agreement and letter agreements that preceded the CBA. Both the law and the CBA limit grievances to terms within the contract. Because the tentative and letter agreements are outside of the CBA and because we have found that the county did not violate the CBA, we conclude that the district court did not err in granting the county’s motion for summary judgment while denying the union’s motion.

III.

The final issue is whether the district court erred by dismissing on summary judgment the claim that the county committed an unfair labor practice. The union contends that the county’s refusal to bargain or refer the situation to a grievance hearing constituted an unfair labor practice. When a district court grants summary judgment based on the application of a statute to undisputed facts, this court applies de novo review. Educ. Minn.—Greenway, Local 1330 v. Indep. Sch. Dist. No. 316, 673 N.W.2d 843, 849 (Minn.App.2004), review denied (Minn. Apr. 20, 2004).

A public employer commits an unfair labor practice when the employer refuses “to meet and negotiate in good faith” over the terms and conditions of employment. Minn.Stat. § 179A.13, subd. 2(5) (2006). PELRA defines “[t]erms and conditions of employment” as: “[T]he hours of employment, the compensation therefor including fringe benefits except retirement contributions or benefits other than employer payment of, or contributions to, premiums for group insurance coverage of retired employees or severance pay, and the employer’s personnel policies affecting the working conditions of the employees.” Minn.Stat. § 179A.03, subd. 19 (2006). “The crucial inquiry ... is whether the employer’s ... action deprived the union of its right to negotiate a subject of mandatory bargaining.” Foley Educ. Ass’n v. Indep. Sch. Dist. No. 51, 353 N.W.2d 917, 921 (Minn.1984).

Appellant relies on Educ. Minn.— Greenway Local 1330 to support its position that the county committed an unfair labor practice by refusing to bargain on a mandatory bargaining subject. In that case, the parties did not dispute that the employer had unilaterally changed employment terms and conditions when it froze wages and benefits. Educ. Minn.— Greenway Local 1330, 673 N.W.2d at 849. Nevertheless, the employer argued that it did not commit an unfair labor practice because it “continued to negotiate about the new contract....” Id. The court ultimately concluded that the unilateral freeze violated the employer’s duty to meet and negotiate, which constitutes an unfair labor practice. Id. at 852.

But here, unlike the situation in Educ. Minn. — Greenway Local 1330, there are no material facts tending to show that the county unilaterally changed the CBA. There are also no material facts showing that the matter is subject to grievance or an arbitration hearing. The union argues that the county violated a “tentative agreement” which predates the CBA. A grievance over a “tentative agreement” is not within the CBA. In this case, the union is attempting to use grievance arbitration to change an unambiguous term in the CBA and to add to the agreement language that the parties omitted. The CBA clearly states that health benefits are determined by the insurance policy. Even the health insurance proposal attached to the tentative agreement states that “[a]ll benefits are detailed in the final approved contract or certificate.” The dispute in this-case is not appropriate for arbitration. Therefore, we hold that the district court did not err in granting summary judgment in the county’s favor on the claimed unfair labor practice.

DECISION

The district court did not err in granting summary judgment to the county and in determining that the county did not violate the CBA, that the underlying dispute does not fall within the definition of grievance, and that the county did not commit an unfair labor practice.

Affirmed.

      . The collective bargaining agreement does not define the terms “co-pay” and "deductible.” However, we note that a deductible "exempts the insurer from paying a specified amount in the event of a claim.” The American Heritage College Dictionary 369 (4th ed.2002). A copayment is "[a] fixed fee that subscribers to a medical plan must pay for their use of specific medical services covered by the plan.” Id. at 315. These definitions are consistent with the parties' use of these terms in this appeal.


author: VANDE WALLE, Chief Justice.

text:
    2007 ND 18
    Breanna J. MEIER, Petitioner and Appellee v. Mohamed H. SAID, Respondent and Appellant.
    No. 20060248.
    Supreme Court of North Dakota.
    Feb. 1, 2007.

      Breanna J. Meier, petitioner and appel-lee. No appearance.
    Jason W. McLean, Gjesdahl & Associates, Fargo, ND, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Mohamed H. Said appealed from a disorderly conduct restraining order directing him to have no contact with Brean-na Meier for two years. Said argues that the district court erroneously allowed Meier to testify about allegations not contained in the petition for relief, and that the district court abused its discretion because there were no reasonable grounds to support the issuance of the restraining order. We affirm.

I

[¶ 2] Said and Meier had a brief relationship which began in late 2005. In December 2005, Meier moved from North Dakota to California to live with Said. In early January 2006, Meier discovered that she was pregnant and due to give birth in September. After Meier told Said about her pregnancy, the parties had a disagreement about whether she should have the baby. According to Meier, Said tried to force her to have an abortion, but she refused. Said disputed this allegation. Said admitted that he researched emergency contraception on the Internet shortly after finding out about the pregnancy, but denied that he ever pressured Meier to have an abortion. Said claimed that Meier initially agreed to have an abortion but then changed her mind, and he gave up the idea at that point. After their disagreement about terminating the pregnancy, Meier left California and returned to North Dakota for about three weeks.

[¶ 3] While Meier was in North Dakota, the parties continued communicating with each other. During their conversations, Said told Meier that he had changed his mind about the pregnancy, and that he wanted them to have the baby and get married. On February 4, 2006, Meier returned to California to reconcile with Said. They married two days later on February 6, 2006. After about two weeks of marriage, Meier ended the relationship and returned to North Dakota permanently.

[¶ 4] At the time the district court considered this case, Said and Meier were involved in other legal actions as a result of their separation. An annulment proceeding was pending in California. Also, in early August 2006, Said filed an action in Cass County, North Dakota, seeking a paternity test and sole physical custody of their unborn child. On August 9, 2006, Said’s counsel mailed a letter to Meier, along with service of the summons and complaint, asserting that Said had the right to participate in the naming of the child and to be present at the birth. The letter also demanded information about Meier’s due date, her prenatal care plan, the intended location of the birth, and any upcoming prenatal appointments concerning the child. In a motion filed with the district court in late August, Said renewed his demands to be present at the hospital for the birth and to participate with Meier in naming the child.

[¶ 5] On September 1, 2006, Meier filed a petition for a disorderly conduct restraining order against Said. In her accompanying affidavit, Meier alleged that Said tried to force her to have an abortion when he first learned of her pregnancy, that he put pieces of crushed up abortion pills in a bowl of soup he served to her, and that he raped her during their marriage. Meier also claimed that because of this abusive past, Said’s demand to be present at the birth of their child caused her to experience stress, fear, and anxiety. Based on Meier’s petition, the district court issued a temporary disorderly conduct restraining order against Said. The district court also scheduled a hearing on September 14, 2006, to determine whether the temporary order should be extended.

[¶ 6] About ten minutes before the hearing, Meier served a supplemental affi: davit upon the district court and opposing counsel. Said objected to the admission of the affidavit, arguing that it had not been timely filed and that it violated his right to due process. The district court refused to accept the supplemental affidavit, but ruled that Meier could testify about its contents as long as her testimony involved the allegations contained in her petition and original affidavit.

[¶ 7] At the hearing, the district court heard testimony from both Meier and Said. Meier testified that she feared for her safety and that she felt threatened because Said wanted to be present during the child’s birth. She recounted specific incidents that had occurred during the time she lived with Said in California. Meier testified that Said raped her multiple times during their two-week marriage. Specifically, she stated that after their marriage ceremony on February 6, 2006, Said told her that they had to have sexual relations to consummate their marriage, and when she refused, he forced her to have sex. Meier also recounted that from February 7 to February 18, she would wake up in the middle of the night and find Said removing her underwear and forcing himself on her. According to Meier, she was concerned about having a miscarriage because she experienced some bleeding after the assaults.

[¶ 8] Furthermore, Meier testified about three separate incidents in which she vomited after eating food served to her by Said. As to the first incident, Meier stated that on the evening of February 6, 2006, she found a piece of a pill in the bottom of a bowl of tomato basil soup that Said had purchased and served her. She described the incident in detail, including that Said had turned off the lights and lit candles before serving her the soup. According to Meier, the soup initially tasted normal, but near the bottom of the bowl it tasted like aspirin. Meier stated that she became very ill and vomited after eating the soup. Additionally, Meier recounted that the next day, while using their home computer, she discovered that Said had recently run a Google search about how to buy abortion pills online without a prescription. She specifically remembered that his research included a type of pill called Mifepristone, which was described on the web site as a pill used for early first-term abortions.

[¶ 9] In addition to the soup incident, Meier testified that she became violently ill and vomited two other times after eating food Said had purchased and served her at home. According to Meier, Said purchased her an egg-and-cheese bagel sandwich from a particular restaurant on both occasions. Meier stated that prior to these incidents, she had recently eaten the exact same meal at the restaurant with no ill effects. Additionally, she explained that she never experienced vomiting with her pregnancy other than these three incidents involving food served by Said.

[¶ 10] Said also submitted an affidavit and testified at the hearing, and he denied all of Meier’s allegations. Said claimed that Meier was trying to put a black spot on his immigration record, since he is in the United States as a guest worker. He also contended that Meier petitioned for a restraining order to retaliate against him for filing a custody action. Said testified that he did not intend to contact Meier in the future and that he would come to North Dakota only for court proceedings and to see his child.

[¶ 11] The parties agreed they had limited contact after Meier left California. According to Meier, Said contacted her on MSN Messenger and asked her to come home in early March 2006. The last direct contact between the parties occurred on March 30, 2006, when Meier sent Said an e-mail. In the e-mail, Meier asked Said to give up his parental rights so they could go their separate ways. She also discussed their rocky relationship, stating that she would have regretted having an abortion like Said wanted and that she could not handle him taking out his anger on her anymore.

[¶ 12] After considering the evidence, the district court issued a disorderly conduct restraining order prohibiting Said from any contact with Meier for two years. The district court found that Meier testified about specific facts and instances as required by law and that “[r]ape and attempts at giving Meier drugs, as well as emotional abuse” constituted disorderly conduct.

II

[¶ 13] Said argues the district court erroneously allowed Meier to testify about new allegations which were not contained in her petition and original affidavit.

[¶ 14] Under N.D.C.C. § 12.1-31.2-01(2), a person who has been the victim of disorderly conduct may petition for a disorderly conduct restraining order. Section 12.1-31.2-01(3) sets forth certain requirements for the petition:

A petition for relief must allege facts sufficient to show the name of the alleged victim, the name of the individual engaging in the disorderly conduct, and that the individual engaged in disorderly conduct. An affidavit made under oath stating the specific facts and circumstances supporting the relief sought must accompany the petition.

The district court may issue a -temporary restraining order based upon the allegations in the petition. N.D.C.C. § 12.1-31.2-01(4). However, the district court must hold a full hearing before it may grant a long-term disorderly conduct restraining order, which may not exceed -a period of two years. N.D.C.C. § 12.1-31.2-01(5) to (6).

[¶ 15] We have held that due process requirements must be met throughout the restraining order proceedings. Wetzel v. Schlenvogt, 2005 ND 190, ¶ 23, 705 N.W.2d 836. At the hearing, the petitioner must prove the allegations in the petition through sworn testimony, rather than by affidavits alone, with an opportunity for cross-examination. Id. Furthermore, the petitioner may not raise new allegations through her testimony without notice to the respondent. Cusey v. Nagel, 2005 ND 84, ¶ 15, 695 N.W.2d 697; Gullickson v. Kline, 2004 ND 76, ¶ 12, 678 N.W.2d 138. In order to comport with due process, a fair hearing requires reasonable notice or opportunity to know of the claims of opposing parties, along with the opportunity to rebut those claims. Gullickson, at ¶ 12.

[¶ 16] In this case, about ten minutes prior to the hearing, Meier submitted a supplemental affidavit containing a more detailed description of her original allegations, along with several new allegations. Upon Said’s objection, the district court properly refused to accept the affidavit because Meier’s filing was not timely under N.D.R.Civ.P. 5(d)(2). However, the district court also ruled that Meier could testify about the contents of the supplemental affidavit, so long as her testimony concerned only the allegations contained in her petition and original affidavit, and not the new allegations. The district court correctly recognized that Meier’s last-minute service of the supplemental affidavit did not provide reasonable notice to Said of the new allegations which she intended to raise through her testimony.

[¶ 17] Despite this ruling, Meier testified about several new allegations. Specifically, she testified about an instance of sexual misconduct on February 4, 2006, as well as the two instances in which she became ill and vomited after eating a bagel sandwich purchased and served by Said. These incidents were clearly new allegations which were not contained in her original affidavit. Meier also testified about a series of rapes which occurred from February 7 to February 18, and these rapes were arguably not alleged in her original affidavit. The original affidavit states, “During February 6 he also began to rape me.... ” Although this statement could be read to include only the rape which occurred on February 6, as Said contends, it more likely refers to a course of conduct which began on February 6 and continued until Meier left California in mid-February.

[¶ 18] However, we need not decide exactly which portions of Meier’s testimony should have been excluded as improper new allegations raised through testimony, because Said did not object to any of her testimony on this ground. He only objected to the admission of her supplemental affidavit, which the district court sustained. Said failed to object at any point during Meier’s testimony when she discussed these new allegations. A party must object at the time the - alleged error occurs, so the district court may take appropriate action if possible to remedy any prejudice that may have resulted. May v. Sprynczynatyk, 2005 ND 76, ¶ 25, 695 N.W.2d 196 (citations omitted). Failure to object acts as a waiver of the claim of error. Id. Although the district court ruled that Meier could not testify about new allegations, it was Said’s obligation to object when Meier’s testimony veered into a discussion of the new allegations. Because Said failed to object to Meier’s testimony about the new allegations in the district court, we conclude he waived the objection and cannot raise it for the first time on appeal. See State v. Palmer, 2002 ND 5, ¶ 8, 638 N.W.2d 18.

Ill

[¶ 19] Said argues the district court abused its discretion when it issued the disorderly conduct restraining order against him because there were no reasonable grounds to believe that he engaged in disorderly conduct.

[¶ 20] The district court has discretion to grant a disorderly conduct restraining order, and we will not reverse that decision unless the court clearly abused its discretion. Cusey v. Nagel, 2005 ND 84, ¶ 7, 695 N.W.2d 697. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law. Frisk v. Frisk, 2005 ND 154, ¶ 6, 703 N.W.2d 341.

[¶ 21] Section 12.1-31.2-01, N.D.C.C., governs the issuance of disorderly conduct restraining orders. The district court may grant a disorderly conduct restraining order if it finds that “there are reasonable grounds to believe that the respondent has engaged in disorderly conduct.” N.D.C.C. § 12.1 — 31.2—01(5)(d). “Disorderly conduct” is defined as “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.” N.D.C.C. § 12.1 — 31.2—01(1). We have held that the term “reasonable grounds” is synonymous with probable cause. See, e.g., Wetzel v. Schlenvogt, 2005 ND 190, ¶ 17, 705 N.W.2d 836. Reasonable grounds exist when the facts and circumstances presented to the judge- are sufficient to warrant a person of reasonable caution to believe that acts constituting the offense of disorderly conduct have been committed. Cusey, 2005 ND 84, ¶ 6, 695 N.W.2d 697.

[¶ 22] To support a request for a disorderly conduct restraining order, the petitioner must present evidence of specific acts or threats which constitute disorderly conduct. Baker v. Mayer, 2004 ND 105, ¶ 13, 680 N.W.2d 261. It is not enough for the petitioner to show merely that the respondent’s actions were unwanted. Cusey, 2005 ND 84, ¶ 7, 695 N.W.2d 697. Rather, the petitioner must show that specific unwanted acts were intended to adversely affect her safety, security, or privacy. Baker, at ¶ 12. Subjective fear alone is insufficient to support the issuance of a disorderly conduct restraining order. Cusey, at ¶ 7.

[¶23] In Wetzel v. Schlenvogt, 2005 ND 190, ¶ 21, 705 N.W.2d 836, we clarified that a pattern of behavior is not required in order for conduct to rise to the level of disorderly conduct. Rather, “acts, words, or gestures occurring at one moment in time could easily be disorderly conduct under § 12.1-31.2-01.” Id. at ¶ 20. A petitioner whose safety, security, or privacy has been intruded upon cannot be denied the civil remedy of a disorderly conduct restraining order “simply because the respondent’s actions occurred at one time.” Id.

[¶ 24] We have also recognized the grave consequences that a disorderly conduct restraining order may have for the respondent. See, e.g., Cusey, 2005 ND 84, ¶ 11, 695 N.W.2d 697; Baker, 2004 ND 105, ¶ 14, 680 N.W.2d 261. A disorderly conduct restraining order significantly restricts a person’s liberty. Baker, at ¶ 14. Furthermore, stigma in the community may result due to the nature of the charge. Id.

[¶ 25] Based on the evidence in this case, we conclude the district court did not abuse its discretion when it issued the disorderly conduct restraining order against Said. Meier testified about specific acts, including rapes and draggings to induce abortion, and provided specific facts about each incident. Rapes and draggings are surely intrusive and unwanted acts which must be intended to adversely affect a person’s safety, security, and privacy. Meier’s testimony about these incidents provided reasonable grounds for the district court to believe that Said had engaged in disorderly conduct.

[¶ 26] Said contends the district court did not have reasonable grounds to grant the restraining order because Meier and Said presented conflicting testimony, and Meier did not provide any corroborating evidence such as police or medical reports. However, Meier’s sworn testimony is evidence, and her testimony alone was sufficient to support the issuance of the disorderly conduct restraining order. See Wetzel, 2005 ND 190, ¶25, 705 N.W.2d 836. Section 12.1-31.2-01, N.D.C.C., does not require corroborating evidence, such as eyewitnesses or official reports, to bolster the petitioner’s testimony, although such corroborating evidence may be useful to the district court. Here, the district court heard conflicting testimony from Meier and Said and chose to believe Meier’s version of events. We have repeatedly recognized that the district court is in a better position to judge the demeanor and credibility of witnesses and weigh the evidence than we who have only the cold record to review. See, e.g., Skadberg v. Skadberg, 2002 ND 97, ¶ 9, 644 N.W.2d 873. Therefore, we will not preempt the district court’s credibility determination in this case. Meier’s testimony, even though contradicted by Said, provided reasonable grounds for the district court to find that Said had engaged in disorderly conduct.

[¶ 27] Said also argues the disorderly conduct restraining order was not warranted in this case because of the distance between the parties and the time that had passed since the intrusive acts occurred. Meier currently lives in North Dakota, and Said lives in California. The incidents which constituted disorderly conduct occurred during the parties’ brief marriage in February 2006. The parties agree that their last direct contact occurred by e-mail on March 30, 2006. However, when Said filed an action in Cass County, North Dakota, in August 2006 demanding the right to be present at their child’s birth and to participate in the naming of the child, Said sought to place himself in North Dakota and in contact with Meier. Based on the history between the parties, Meier reasonably felt threatened by Said’s request. Although there must be logical limits on the time and distance factors when a restraining order is at issue, we conclude the facts of this case do not reach those limits. Based on all the evidence, the district court did not abuse its discretion in granting the disorderly conduct restraining order against Said.

IV

[¶ 28] We affirm the two-year disorderly conduct restraining order against Said.

[¶ 29] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.