author: DIETZEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Sheila Ann REINKE, Appellant.
    No. A04-2219.
    Court of Appeals of Minnesota.
    Aug. 23, 2005.

      John E. Mack, Mack & Daby, P.A., New London, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Dwayne N. Knutsen, Chippewa County Attorney, Montevideo, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; KLAPHAKE, Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

Appellant received a citation for violating a township ordinance prohibiting three or more dogs on the premises owned by any individual residing in the township’s high density population area. Appellant challenged both the constitutionality of the ordinance and her misdemeanor conviction under it, arguing that the ordinance was unenforceable as applied to her because her dog-breeding business was exempted under the preexisting nonconforming use exception. Because appellant was not lawfully operating her dog-breeding business before the ordinance was enacted, we affirm.

FACTS

In December 2003, Chippewa County Sheriff Stacy Tufto began receiving complaints about dogs on appellant Sheila Reinke’s property in Big Bend Township in Chippewa County. Sheriff Tufto visited the property about seven or eight times to investigate complaints. On May 12, 2004, Sheriff Tufto visited appellant’s residence and observed seven dogs on the property in wire dog kennels. Sheriff Tufto issued appellant a citation for violating the township’s ordinance § 1.04(B), which prohibits any homeowner from keeping three or more dogs on her property, a petty misdemeanor. The township passed the ordinance on May 9, 2004, approximately one and one-half years after appellant bought her residence. The title of the code chapter containing the ordinance is “Ordinance: A Resolution Adopting a Big Bend Township Zoning Ordinance Relating to Dogs.” The ordinance states:

(B) Kennel as a nuisance. Because the keeping of three or more dogs on the same premises is subject to great abuse, causing discomfort to persons in the area by way of smell, noise, hazard, and general aesthetic depreciation, the keeping of three or more dogs on the premises is hereby declared to be a nuisance and no person shall keep or maintain a kennel within the a[sic] high density population area.

Appellant moved to challenge the constitutionality of the ordinance. A hearing was held, and the district court issued an order denying appellant’s motion. Appellant then pleaded not guilty to the petty misdemeanor charge, again asserting that the ordinance was unconstitutional. At trial, appellant testified that she raised the dogs for sale and had always kept three or more dogs on the property. She further testified that she had checked before purchasing the property to make sure there was no ordinance limiting the number of dogs per residence. She also testified that she had earned approximately $6,000 through the business in 2003. Sheriff Tuf-to testified that appellant had told her previously that she did not have a dog-breeding business and was taking care of the dogs for a friend. The parties stipulated that appellant’s residence is within a high density population area under the township’s definitions.

In its order, the district court concluded that appellant was operating a dog-breeding business on her property and found her guilty of violating the ordinance. Appellant was sentenced to pay a $300 fíne and $70 in surcharges. Appellant challenges her conviction.

ISSUES

I. Is the ordinance unconstitutional?

II. Does appellant’s conviction violate the prohibition against ex post facto laws?

III. Should appellant be allowed to operate her business as a nonconforming use because it was in existence before the township enacted the ordinance?

ANALYSIS

On appeal, a district court’s factual findings are given great deference and will not be set aside unless clearly erroneous. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999). The construction of an ordinance is a question of law, which this court reviews de novo. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). Similarly, the constitutionality of a statute is a question of law, and this court is not bound by the district court’s conclusions. Holt v. City of Sauk Rapids, 559 N.W.2d 444, 445 (Minn.App.1997), review denied (Minn. Apr. 24,1997).

I.

Constitutionality

Appellant argued to the district court that Big Bend’s dog ordinance is unconstitutional, and the district court rejected her claim. Township ordinances are presumptively constitutional. See In re Tveten, 402 N.W.2d 551, 556 (Minn.1987). The party challenging the provision bears the burden of proving that the ordinance is unreasonable and unconstitutional. Fairmont Foods Co. v. City of Duluth, 260 Minn. 323, 325, 110 N.W.2d 155, 157 (1961). A showing of unreasonableness requires that the challenging party prove that the ordinance “has no substantial relationship to public health, safety, morals, or general welfare.” State v. Hyland, 431 N.W.2d 868, 872 (Minn.App.1988) (emphasis added) (quotation omitted). Courts decline to interfere with a township’s legislative discretion if the reasonableness of the ordinance is debatable. Id.; see also Connor v. Twp. of Chanhassen, 249 Minn. 205, 212, 81 N.W.2d 789, 795 (1957) (stating that township ordinance should be declared unconstitutional only “when there is no reason whatsoever to support the determination of the legislative body”). Thus, to prevail, an appellant must prove that it is not even debatable that the challenged ordinance has any substantial relationship to public health, safety, or general welfare. Holt, 559 N.W.2d at 445. Townships have the authority to “pass ... ordinanee[s] for licensing dogs and cats and regulating their presence, keeping, and running at large in the town.” Minn.Stat. § 365.10, subd. 13 (2004).

The district court ruled that the township’s dog ordinance is constitutional because “[i]t is at least debatable that limiting the number of dogs a person can keep on her premises serves the public interest of providing for the health and general welfare of the citizens by helping to eliminate bothersome smells, noises, hazards, and aesthetic depreciation of property caused by an overabundance of dogs.” The parties stipulated that appellant’s home is located in a high density population area under the ordinance’s definitions.

We conclude that appellant has failed to meet her burden of proving it is not even debatable that regulating the number of dogs per residence has a substantial relationship to controlling the problems of dog noise, temperament, and odor as they affect the public health, safety, and welfare. It is at least debatable that the limitation of two dogs per residential premises in a high density population area protects public health. See Hyland, 431 N.W.2d at 872 (stating that courts should not interfere with legislative discretion if reasonableness of ordinance is debatable). Appellant has not overcome the township ordinance’s presumption of constitutionality.

II.

Ex Post Facto Laws

Appellant also argues that her conviction for operating her existing dog-breeding business violates the prohibition against ex post facto laws. Both the United States and Minnesota Constitutions prohibit the passage of ex post facto laws. U.S. Const. art. I, § 10, el.l; Minn. Const, art. I, § 11. An ex post facto law “renders an act punishable in a manner in which it was not punishable when it was committed.” Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955). But if an individual began a course of conduct before a statute prohibiting the conduct was passed, she may be prosecuted for continuing the conduct after enactment of the prohibitive provision. See State v. Howard, 360 N.W.2d 637, 640-41 (Minn.App.1985) (concluding that defendant who violated wild animal ordinance both before and after it was passed did not have ex post facto claim because conviction pertained to conduct after ordinance was passed); accord Samuels v. McCurdy, 267 U.S. 188, 193, 45 S.Ct. 264, 265, 69 L.Ed. 568 (1925) (holding that penalty imposed for continuing to possess liquor after prohibition was not ex post facto law). Accordingly, we conclude that because appellant’s conviction pertains to keeping three or more dogs on her residential premises after the dog ordinance was passed, it does not violate the prohibition against ex post facto laws.

III.

Nonconforming Use

Appellant also argues that even if the dog ordinance is constitutional, it is not enforceable as applied to her property due to the exception for a preexisting nonconforming use.

“It is a fundamental principle of the law of real property that uses lawfully existing at the time of an adverse zoning change may continue to exist until they are removed or otherwise discontinued.” Hooper v. City of St Paul, 353 N.W.2d 138, 140 (Minn.1984). Further, if a residential zoning ordinance prohibits a particular use of land, the existing noncon-formities must be either permitted to remain or be eliminated by the use of eminent domain. Id. Accordingly, Minnesota statutory provisions specify that any township’s zoning resolution “shall not prohibit the continuance of the use of a building for any trade or industry for which it was used when the resolution took effect or the alteration of or addition to an existing building or structure to carry on a prohibited trade or industry in the zone where it is located.” MinmStat. § 366.18 (2004). Big Bend Township’s administrative code defines a nonconforming use as follows: “A structure or the use of a structure or premises which was lawful before the adoption of this ordinance, but which is not in conformity with the provisions of this ordinance.... ”

Under the nonconforming use exception, the use of real property must be “lawfully existing” at the time of the zoning change. See Hooper, 353 N.W.2d at 140. Although the statutory provision relating to nonconforming uses for townships does not address the lawful-existence requirement, Big Bend’s township code does mandate the lawful prior existence of the use. Cf. Connor, 249 Minn, at 214, 81 N.W.2d at 796 (noting that township’s provision that the continuation of any lawful use of land existing at the time of a regulatory change was “intended to comport with” section 366.18). Here, appellant acknowledges, and the district court concluded, that she was operating a dog-breeding business in Big Bend Township’s “Urban Development District.” Big Bend Township is located in Chippewa County. Under Chippewa County’s “Urban Development District” zoning code, commercial uses are considered “conditional uses,” meaning that a conditional use permit is required to operate them lawfully. Here, there is no evidence that appellant applied for or received a conditional use permit to operate her dog-breeding business.

Regarding the issue of concurrent jurisdiction, township regulations are effective to the extent that they are not inconsistent with county regulations. West Circle Props., L.L.C. v. Hall, 634 N.W.2d 238, 243 (Minn.App.2001), review denied (Minn. Dec. 19, 2001). Because there is no inconsistency between the county requirement for a conditional use permit and the township’s ordinances, appellant’s property was subject to Chippewa County regulations as well. Accordingly, we conclude that the operation of appellant’s business in the township’s “Urban Development District” was not lawful, and thus cannot lawfully continue under the preexisting nonconforming use exception.

DECISION

Because appellant’s dog-breeding business, which is located in a high density population area, was not in lawful use at the time of the enactment of the ordinance limiting the number of dogs per residential premises, we conclude that the exception for preexisting nonconforming uses does not permit appellant’s continued violation of the ordinance. We affirm both the ordinance’s constitutionality and appellant’s conviction under the ordinance.

Affirmed.

      . In contrast to our holding, the district court declined to apply the nonconforming use exception because it concluded that the "nonconforming use exception does not apply to this ordinance because it is a regulatory ordinance and not a zoning ordinance.” The district court relied primarily on State v. Schuler, No. C9-96-1047 (Minn.App. Feb.25, 1997), review denied (Minn. May 20, 1997), for its ruling, but "[ujnpublished opinions of the [c]ourt of [alppeals are not precedential.” Minn.Stat. § 480A.08, subd. 3 (2004). Because we hold that appellant's dog-breeding business was not a lawful use of her property before enactment of the dog ordinance, we decline to address the issue of whether the ordinance was properly classified as a zoning or regulatory ordinance. Even if we were to conclude that the dog ordinance was a zoning, not a mere regulatory, ordinance, our ruling would be the same because the nonconforming use exception for appellant’s property is not applicable here. See Katz v. Katz, 408 N.W.2d 835, 839 (Minn.1987) (stating that appellate courts will not reverse decisions below simply because they are based on incorrect reasoning).


source: Caselaw Access Project

license: Public Domain

text:
    Reginald SWEET, Relator, v. COMMISSIONER OF HUMAN SERVICES, Respondent.
    No. A04-2274.
    Court of Appeals of Minnesota.
    Aug. 23, 2005.

      Bradford W. Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, MN, for relator.
    Mike Hatch, Attorney General, Stephanie A. Riley, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by DIETZEN, Presiding Judge; HALBROOKS, Judge; and PARKER, Judge.

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

   OPINION

DIETZEN, Judge.

Relator Reginald Sweet challenges the decision of the Commissioner of Human Services (commissioner) denying relator’s request to set aside his disqualification from working as a counselor in a state-licensed program because of his criminal record, including convictions of first-degree and third-degree criminal sexual conduct. Relator argues that the commissioner’s decision was arbitrary, capricious, and unsupported by substantial evidence and that the commissioner violated relator’s right to due process. Because substantial evidence supports the commissioner’s decision and relator had the opportunity and exercised his right to present written evidence to the commissioner, we affirm.

FACTS

In August and November 1992, relator was convicted of separate controlled-substance crimes. In June 1998, relator was convicted of both first-degree and third-degree criminal sexual conduct. After the 1998 convictions, relator was incarcerated. While incarcerated, he completed a program designed to help African-American men prepare for their release from incarceration; spent two years tutoring and facilitating classes for other inmates on issues relating to housing, employment, personal attitudes, and change; completed a computer-training program; and completed a psycho-educational sexual behavior class. He was released in May 2003.

After his release, relator became a minister; joined the AMICUS Re-Entry Advisory Group and speaker’s bureau, mentoring incarcerated individuals on issues related to release from prison; became a speaker for the Council on Crime and Justice; and provided counseling at Aftercare Services, Inc. (Aftercare) to current and former inmates with drug and alcohol addictions.

Because Aftercare is a state-licensed program, the Minnesota Department of Human Services’ Division of Licensing was required by law to conduct a background study on relator, who had direct contact with individuals served by the program. MinmStat. § 245C.03, subd. 1 (2004). In the course of conducting the background study, the Division of Licensing discovered relator’s prior convictions of controlled-substance crimes and first-degree and third-degree criminal sexual conduct. In July 2004, the Minnesota Department of Human Services sent relator a letter informing him that he was disqualified under Minn.Stat. § 245C.14, subd.l (2004), from providing direct-contact services for Aftercare. The disqualification letter stated that relator’s convictions disqualify him from “providing direct contact services for facilities licensed by the Department of Human Services and the Minnesota Department of Health.... ” After reviewing the disqualifying information, the commissioner stated that relator poses an imminent risk of harm to the clients he served based on the serious nature of the convictions, the number of convictions, and the vulnerability of the clients of Aftercare.

Under Minn.Stat. § 245C.21, subd. 1 (2004), relator had the right to seek reconsideration of the disqualification. An application form to request reconsideration prepared by the commissioner required that relator answer certain questions pertaining to whether he poses a risk of harm to Aftercare’s clients. The burden of proof was on relator to demonstrate no risk of harm to Aftercare’s clients. See Minn. Stat. § 245C.22, subd. 4 (2004). In determining whether relator poses a risk of harm, the commissioner was required by statute to give preeminent weight to the safety of each person served by Aftercare, but was also required to consider:

(1) the nature, severity, and consequences of the event or events that led to the disqualification;
(2) whether there is more than one disqualifying event;
(3) the age and vulnerability of the victim at the time of the event;
(4) the harm suffered by the victim;
(5) the similarity between the victim and persons served by the program;
(6) the time elapsed without a repeat of the same or similar event;
(7) documentation of successful completion by the individual studied of training or rehabilitation pertinent to the event; and
(8) any other information relevant to reconsideration.

See Minn.Stat. § 245C.22, subds. 3, 4 (2004).

Relator was not afforded an oral hearing, but he did submit a written response to the application form and provided extensive written documentation to support his request for reconsideration. The application form asks questions relevant to determining whether relator poses an imminent risk of harm. In response to the question: “Explain the details of the crime you committed. What did you do?”, relator wrote, in part, “I am [the victim’s] fifth victim. I know what I did was wrong but NO sexual activity took place. I have enclosed the medical reports to prove such. Please do a background check on [the victim]!!! I am not the only person [the victim] has sent to jail on the same charge.” Under the space provided for “Additional Comments”, relator wrote, in part, “I have enclosed the sexual examination papers along with the finding on the bottle. You will see no DNA or fluids from me. It’s impossible to have sex without the exchange of DNA and body fluids.”

Relator also described in his application for reconsideration the changes he has undergone since he committed the crime and how his experiences could help him be a better counselor. Relator wrote, “I received rehabilitation while incarcerated.... I learned about coping with stress management, boundaries, and [the] sexual assault cycle. And as a minister, I have to be able to teach others from my past mistakes.” Relator submitted 13 certificates and awards showing he had completed courses in psycho-educational sexual behavior, computer training, life skills, and ministry. He also submitted 12 letters of support from his supervised-release agent, various organizations through which he provided counseling or training services, and program organizers he had worked with in prison. The letters described relator as “dedicated to providing positive guidance to young men recently released from various Minnesota Correctional Facilities,” “a major asset in working with and helping those who are chemically dependent,” making “positive contributions to human services,” and showing “great promise with his diligent approach for change.” Relator did not provide any medical or psychological evaluations describing his rehabilitation or showing whether he poses a risk of harm to Aftercare’s clients.

In September 2004, the Minnesota Department of Human Services sent relator a letter informing him of the results of the commissioner’s reconsideration. The commissioner stated that she applied and weighed the eight applicable statutory factors with respect to relator’s disqualification record and gave preeminent weight to the safety of Aftercare’s clients. The commissioner noted the serious and violent nature of relator’s criminal offenses. The commissioner stated that because of relator’s history of assaultive behavior and because the clients relator would work with may have “extensive challenging behaviors,” there could be a greater risk that relator would react inappropriately to his clients’ behaviors than an individual “who [had] never committed a violent act.” The commissioner observed that relator’s responses on the application form blaming the victim of relator’s crimes indicate that relator has failed to take responsibility for his actions. Regarding the letters of support, the commissioner stated that their authors did not witness and were not victims of any of relator’s disqualifying acts, and relator’s “behavior at the time of the disqualifying event may not be characteristic of [his] behavior with the person who submitted the letter of support.” The commissioner also noted that relator did not address his two disqualifying drug offenses. Based on these findings, the commissioner decided that relator had not proved that he was rehabilitated and no longer poses a risk of harm, and, therefore, the commissioner did not set aside relator’s disqualification. Relator then filed a petition for writ of certiorari with this court.

ISSUES

I. Was the commissioner’s decision denying relator’s motion to set aside his disqualification supported by substantial evidence?

II. Was relator deprived of his right to procedural due process because he did not receive an evidentiary hearing?

ANALYSIS

I.

Relator argues that the commissioner’s refusal to set aside relator’s disqualification was not supported by substantial evidence and was arbitrary and capricious. An appellate court may reverse an administrative decision if it is not supported by substantial evidence or is arbitrary and capricious. In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn.2001); Johnson v. Comm’r of Health, 671 N.W.2d 921, 923 (Minn.App.2003). Substantial evidence is “1. [s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2.[m]ore than a scintilla of evidence; 3.[m]ore than some evidence; 4.[m]ore than any evidence; and 5.[e]vi-dence considered in its entirety.” White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn.App.1997), review defied (Minn. Oct. 31, 1997). An agency’s conclusion is arbitrary and capricious if there is no rational connection between the facts and the agency’s decision. Blue Cross & Blue Shield, 624 N.W.2d at 277.

Relator argues that the commissioner erred by failing to properly consider the statutory criteria and by failing to find that he was rehabilitated and no longer poses a risk of harm to Aftercare’s clients. But the commissioner’s September 2004 denial letter shows that the commissioner did consider the eight applicable statutory factors. Considering the first factor in determining whether an individual poses a risk of harm, the commissioner noted the serious and violent nature of relator’s criminal sexual offenses. See Minn.Stat. § 245C.22, subd. 4(b) (listing the first factor as “the nature, severity, and consequences of the event or events that led to the disqualification”). The commissioner also stated that the second factor, the number of disqualifying offenses, showed that relator poses a risk of harm because he committed four disqualifying offenses. See id. (stating the second factor is “whether there is more than one disqualifying event”).

The other four reasons given by the commissioner fall under the eighth factor, “any other information relevant to reconsideration.” See id. First, the individuals with whom relator would have direct contact are vulnerable because they may be in the controlled environment of prison or recently out of prison, suffer from drug and/or alcohol addiction, and have extensive challenging behaviors. Second, the commissioner stated that relator failed to take responsibility for his actions. In his request for reconsideration, relator stated that he was the victim of the woman he was convicted of sexually assaulting and stated that the commissioner should conduct a background check on her. Third, the support letters were not reflective of relator’s whole character. The letters do not address whether relator poses a risk to Aftercare’s clients and are silent as to relator’s current medical and psychological state. Fourth, relator failed to address the drug charges that were also disqualifying.

The crux of the issue is whether relator was rehabilitated and poses no risk of harm to Aftercare’s clients. But relator presented no medical or psychological evidence to support his contention that he is fully rehabilitated. In his application to the commissioner, relator blamed the victim of the crime and argued that the evidence was insufficient to support his conviction. Here, the commissioner found, and the record supports, the determination that relator refuses to take responsibility for his actions and blames the victim for his criminal-sexual-conduct convictions.

We conclude that substantial evidence supports the commissioner’s decision, which clearly articulates the factual basis for the agency’s decision. Minn.Stat. § 245C.22, subd. 3, requires the commissioner to give preeminent weight to the protection of clients of state-licensed programs, and it was within the commissioner’s discretion to determine that the evidence of relator’s rehabilitation was not sufficient to conclude that relator does not pose a risk of harm to individuals with whom he would have direct contact. See Blue Cross & Blue Shield, 624 N.W.2d at 277; White, 567 N.W.2d at 730.

II.

Next, relator argues that Minn. Stat. § 245C.27, subd. 1(c) (2004), unconstitutionally deprives him of procedural due process because an individual disqualified under Minn.Stat. § 245C.15 (2004) is not entitled to an evidentiary hearing on a motion to set aside the disqualification. The commissioner argues that the statute provides for adequate procedural due process.

The constitutionality of a statute is a question of law, which we review de novo. Unity Church of St. Paul v. State, 694 N.W.2d 585, 591 (Minn.App.2005), review dismissed (Minn. Jun. 9, 2005). We presume statutes are constitutional, and we will declare a statute unconstitutional “with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). “A party challenging a statute carries the heavy burden of demonstrating beyond a reasonable doubt that a statute is unconstitutional.” Unity Church, 694 N.W.2d at 591.

“The due process protection provided under the Minnesota Constitution is identical to the due process guaranteed under the Constitution of the United States.” Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn.1988). “Procedural due process protections restrain government action which deprives individuals of ‘liberty’ or ‘property’ interests within the meaning of the due process clause of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 7 of the Minnesota Constitution.” Humenansky v. Minn. Bd. of Med. Examiners, 525 N.W.2d 559, 565 (Minn.App.1994), review denied (Minn. Feb. 14, 1995). To determine whether an individual’s right to procedural due process has been violated, we first determine whether a protected liberty or property interest is implicated and then determine what process is due by applying a balancing test. Mathews v. Eldridge, 424 U.S. 319, 332, 335, 96 S.Ct. 893, 901, 903, 47 L.Ed.2d 18 (1976); Humenansky, 525 N.W.2d at 566.

Relator concedes that the state has a legitimate interest in protecting vulnerable adults from sex offenders and does not dispute that the commissioner can make an initial determination of disqualification without holding a hearing. But relator argues he has a protected property interest in working in his chosen profession without governmental interference and that only a hearing can protect that interest. Therefore, relator concludes that he is entitled to an evidentiary hearing on his motion to set aside the disqualification.

We have previously recognized that an individual has a property and liberty interest in pursuing private employment. State ex rel. Pavlik v. Johannes, 194 Minn. 10, 19, 259 N.W. 537, 540-41 (1935); Pomrenke v. Comm’r of Commerce, 677 N.W.2d 85, 91 (Minn.App.2004), review denied (Minn. May 26, 2004). Here, the commissioner’s decision not to set aside relator’s disqualification restricts relator’s ability to pursue employment in the public sector involving counseling incarcerated and recently released individuals in state-licensed programs. But the commissioner’s decision does not limit relator’s ability to seek and obtain employment as a counselor in the private sector. Nonetheless, we conclude that relator has a property interest to pursue employment as a counselor in the public sector.

Having concluded that relator has a property interest, we apply the Mathews balancing test to determine what process is due. In applying the Mathews test, we must consider three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest, through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substantive procedural requirement would entail.

Fosselman v. Comm’r of Human Servs., 612 N.W.2d 456, 462 (Minn.App.2000) (quoting Mathews, 424 U.S. at 335, 96 S.Ct. at 903) (determining that individuals disqualified from employment in direct-contact positions for allegedly failing to report the maltreatment of minors are entitled to hearings on whether they failed to report maltreatment).

In analyzing these three factors, we observe that the concept of procedural due process is flexible and that an individual’s interest in working in a chosen profession is not absolute. Pomrenke, 677 N.W.2d at 91-92; Humenansky, 525 N.W.2d at 566. A judicial hearing is not always the best method to present a case or to determine an issue. See Mathews, 424 U.S. at 348, 96 S.Ct. at 909 (“The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances.”). “All that is necessary is that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard, to insure that they are given a meaningful opportunity to present their case.” Id. at 349, 96 S.Ct. at 909 (quotation omitted). We turn now to the Mathews factors.

The first Mathews factor considers the property interest at stake: here, the right to seek counseling employment in the public sector. See id. at 335, 96 S.Ct. at 903. Employment in an individual’s chosen field is significant and weighs heavily in the individual’s favor. See Fosselman, 612 N.W.2d at 462 (determining that the first Mathews factor weighed heavily in favor of the employees because of the significance of the employees’ interest in retaining employment). But unlike Fosselman, where the employees were “unable to pursue their chosen occupations” because of the disqualification, relator is not disqualified from working in every position in his profession; he is only disqualified from working in state-regulated facilities. See id. at 464. Therefore, relator’s interest is less restricted than the employees’ interest in Fosselman. But continued employment in the public sector is a significant interest. Consequently, we conclude that the first factor weighs in relator’s favor.

The second factor considers the procedures used by the governmental agency, the potential risk of an erroneous decision, and the probable value of an oral hearing. See Mathews, 424 U.S. at 335, 96 S.Ct. at 903. Minn.Stat. § 245C.22, subd. 4, places the burden of proof on the applicant to show that he is not disqualified by the statutory criteria and does not pose a risk of harm. Here, relator had the unfettered right to present all evidence, including letters of support, that he thought the commissioner should consider in his written submission. As such, relator was permitted to “mold his argument to the issues the decision maker appears to regard as important” in support of his application. Mathews, 424 U.S. at 345, 96 S.Ct. at 908 (quotation omitted). Because relator had the right to submit his case in writing to the commissioner, we see no prejudice to relator’s due-process right to be heard. And because the agency presented no controverting testimony, a hearing was not necessary to permit cross-examination of agency witnesses.

Relator cites Fosselman and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), to argue that procedural due process mandates an oral hearing in the instant case. In Fosselman, two registered nurses and a qualified mental retardation professional were disqualified by the commissioner for failing to report the maltreatment of a child. 612 N.W.2d at 458-59. The issue before the commissioner was whether the nurses and professional had actually committed the act that would subject them to disqualification: that is, whether maltreatment had occurred that they had failed to report. Id. at 463. Thus, the evidence supporting the disqualification was disputed. In Goldberg, the issue was whether recipients declared ineligible for continuation of welfare benefits had the right to oral preter-mination hearings to determine whether they met all the eligibility requirements to receive benefits. 397 U.S. at 264, 90 S.Ct. at 1018 (stating that the termination of welfare benefits generates a dispute over eligibility). Here, the initial disqualification of relator because of his convictions has not been challenged. Relator has already been afforded the full panoply of rights in the criminal proceedings leading up to his convictions. But the appellants in Fosselman and Goldberg were not afforded such due-process rights and, therefore, we conclude that the cases are distinguishable.

Based on this record, we discern no likely value to an evidentiary hearing. Whether the case is presented orally or in writing to the commissioner, relator would submit the same evidence. Therefore, we conclude that allowing the appellant to file written submissions provided appellant with an adequate opportunity to present his case. Secondly, we also conclude that the potential risk of an erroneous decision is the same under either procedure. The commissioner is required to review and analyze relator’s evidence regardless of the format in which it is presented. Therefore, we conclude that the second factor weighs in favor of the commissioner.

The third factor considers the government’s interests. Mathews 424 U.S. at 335, 96 S.Ct. at 903. As we have previously discussed, the governmental interest in protecting the public, especially vulnerable individuals attending counseling for drug and alcohol addiction, is of paramount importance. See Minn.Stat. § 245C.22, subd. 3. The government also has an interest in saving time and money by reconsidering disqualifications quickly and efficiently, without the additional time, expenses, and personnel required to provide evidentiary hearings to disqualified individuals. If an individual disqualified for criminal convictions were due an oral evidentiary hearing, the commissioner would need to hold one on the same issue every time the same individual was hired or rehired by a state-licensed program.

Financial cost alone is not a controlling weight.... But the Government’s interest, and hence that of the public, in conserving scare fiscal and administrative resources is a factor that must be weighed. At some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost.

Id. at 348, 96 S.Ct. at 909. We determine that in this case the cost outweighs the limited benefit, if any, of providing an evi-dentiary hearing. Therefore, we conclude that the third factor weighs in the commissioner’s favor.

DECISION

Application of the Mathews balancing test results in the conclusion that an evi-dentiary hearing was not required to afford relator with procedural due process; providing relator with the right to submit evidence in writing was adequate to meet the requirements of due process. Consequently, the statutory language contained in Minn.Stat. § 245C.27, subd. 1(c), that an applicant is not entitled to an evidentiary hearing is not unconstitutional on its face or as applied to relator. Because the procedure followed by the commissioner in this matter was appropriately tailored to the circumstances and meets the requirements of procedural due process, we affirm.

Affirmed.


author: ROBERT H. SCHUMACHER, Judge.

text:
    John FR DOE, Appellant, v. LUTHERAN HIGH SCHOOL OF GREATER MINNEAPOLIS, Respondent, Lutheran Church-Missouri Synod, Respondent.
    No. A04-2335.
    Court of Appeals of Minnesota.
    Aug. 23, 2005.

      Jeffrey R. Anderson, Kathleen P. O’Connor, Jeff Anderson & Associates, P.A., St. Paul, MN, for appellant.
    William M. Hart, Leatha G. Wolter, Melissa Dosick Riethof, Meagher & Geer, P.L.L.P., Minneapolis, MN, for respondent Lutheran High School of Greater Minneapolis.
    Stephen O. Plunkett, Shanda K. Pearson, Rider Bennett, LLP, Minneapolis, MN, for respondent Lutheran Church-Missouri Synod.
    Considered and decided by SCHUMACHER, Presiding Judge; WILLIS, Judge; and MINGE, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant John FR Doe challenges the district court’s grant of summary judgment to respondents Lutheran High School of Greater Minneapolis and Lutheran Church-Missouri Synod on his discrimination claim that he was wrongfully discharged under the Minnesota Human Rights Act, Minn.Stat. § 363A.08, subd. 2(b) (2004), based on his sexual orientation. He argues that his claims are not prohibited under the First Amendment to the United States Constitution or the Freedom of Conscience Clause of the Minnesota Constitution and that the religious-association exemption in the Minnesota Human Rights Act, Minn.Stat. § 363A.26(2) (2004), does not apply. The synod argues in a notice of review that it is not Doe’s employer within the meaning of the Minnesota Human Rights Act. We affirm.

FACTS

The synod is a membership organization of Lutheran congregations and ministers. It is an advisory body rather than an ecclesiastical government. The synod may grant recognized-service-organization status to an organization. While such an organization remains independent, it “fosters the mission and ministry of the church, engages in program activity that is in harmony with the programs of the boards of the Synod, and respects and does not act contrary to the doctrine and practice of the Synod.” Lutheran High School is a recognized service organization of the synod. Dr. Lane Seitz is the district president of the Minnesota south district of the synod, in which the high school is located, and served as Does ecclesiastical supervisor.

In 1973, by resolution the synod recognized “homophile behavior ‘intrinsically sinful.’ ” In 1999, it published a document outlining its ministerial goals of “repentance” and “abstinence] from homosexual behavior” in “A Plan for Ministry to Homosexuals and Their Families.” The plan notes that the “Scriptures are clear ... that homosexuality is the tragic result of original sin.” Another document prepared by the synod in 1981 states that “[a]s a sinful human being the homosexual is held accountable to God for homosexual thoughts, words, and deeds.”

The high school’s faculty handbook states that the high school “is a sacred community which is administered according to the Christian understanding of the Gospel.” The association bylaws state that the aim of the school is “to offer a sound Christian education” and that education is to “rest wholly and solely on the Word of God as contained in the Old and New Testaments of the Bible.” The high school’s bylaws require that, where possible, the faculty should be members of the synod. When the positions cannot be filled in that manner, they may be filled with other “Christian instructors.” The bylaws state that “[n]o instructor shall be employed or retained who teaches anything contrary to the letter and spirit of the confessions, symbols, doctrines, practices or discipline prescribed by the doctrinal foundation.”

The synod ordained Doe as a pastor in July 1976. He was initially called to serve as the high school’s campus pastor from 1976 to 1979. After serving in other ministries, he was again called to be a campus pastor and teacher in 1993. A “call” is a calling to public ministry that is placed by a synod congregation or registered service organization to perform public ministry responsibilities. According to the synod’s documents, the “Holy Spirit guides and directs the process of calling workers in His kingdom through people, on behalf of the calling entities, according to their constitutional process. Each step of the process will always include prayer that God’s will be done and that the process and decisions be guided by the Holy Spirit.”

Doe’s position with the high school was that of a teacher and chair of the theology department, as well as a campus pastor at the high school. His responsibilities included classroom education, chapel oversight, and student counseling. As campus pastor, he supervised Holocaust education and diversity education, conducted chapel services, conducted and oversaw small prayer groups and meetings for the students, and had a pastoral-care office. Doe acknowledged that the high school follows religious beliefs and doctrinal statements of the synod and as campus pastor and theology teacher, he was responsible for ensuring that students and faculty followed those principles.

Doe, who was married and has two daughters, informed his family in spring 1998 that he identified as a gay man. At his wife’s request, he then informed her family by letter of his sexual orientation. His wife’s brother, who was employed by the synod as an administrative pastor, contacted his own bishop with this information, who then told Doe’s bishop, Dr. Seitz. In spring 1999, Seitz contacted Doe, who acknowledged his identity as a gay man and explained that he was not in a “gay relationship” and had never lived a “gay lifestyle.”

In September 1999, Seitz and Doe met with the high school’s then-principal, Randy Ash. The discussion focused on Doe remaining “closeted” and celibate and that he would continue to teach for another year because of the difficulty of finding a replacement. In January 2000, Doe met with Seitz again because the high school had an opportunity to call a new pastor to replace Doe. Doe then resigned. He did not tell any of his students of his sexual orientation.

Doe sued the high school and the synod for discrimination based on his sexual orientation. The district court granted summary judgment in favor of Lutheran High School and the synod. Doe appeals, and the synod filed a notice of review, contending it was not Does employer.

ISSUES

1. Would resolution of Doe’s claim violate the First Amendment to the United States Constitution?

2. Would resolution of Doe’s claim violate the Freedom of Conscience Clause of the Minnesota Constitution?

3. Is the Lutheran Church-Missouri Synod Doe’s employer within the meaning of the Minnesota Human Rights Act, Minn.Stat. § 363A.03, subd. 16 (2004)?

4. Does the religious association exemption in Minn.Stat. § 363A.26(2) (2004) apply?

ANALYSIS

In reviewing summary judgment, we determine whether there are any genuine questions of material fact and whether the district court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Issues of statutory interpretation are reviewed de novo. Kolton v. County of Anoka, 645 N.W.2d 403, 407 (Minn.2002). Issues of subject-matter jurisdiction are also reviewed de novo. Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 434 (Minn.2002).

1. Doe sued Lutheran High School and the synod for discrimination under the Minnesota Human Rights Act (MHRA), which prohibits discharge of an employee based on sexual orientation. Minn.Stat. § 363A.08, subd. 2(b) (2004). For purposes of this summary judgment analysis, Doe’s claim that he was discharged because he was forced to resign is not disputed. It also is undisputed that Doe was discharged based on his sexual orientation. The district court granted summary judgment on the MHRA claim, holding that resolving it would result in excessive entanglement between the church and state in violation of the First Amendment to the United States Constitution.

Doe argues that the First Amendment does not preclude a court’s review of the discharge decision. The First Amendment provides in relevant part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const, amend. I. It applies to both legislative and judicial power. Odenthal, 649 N.W.2d at 435. The exercise of government authority is valid if (1) it has a secular purpose; (2) the primary effect is one that neither advances nor inhibits religion; and (3) it does not foster excessive entanglement between church and state. Id. citing Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). It is undisputed that only the third prong is at issue here, namely, whether resolution of Doe’s MHRA claim will result in excessive entanglement between church and state.

The “state may not inquire into or review the internal decisionmaking or governance of a religious institution.” Odenthal, 649 N.W.2d at 435. Accordingly, a court could not review claims by a pastor related to her appointment and discharge under the MHRA because these were “fundamentally connected to issues of church doctrine and governance and would require court review of the church’s motives” for discharge. Black v. Snyder, 471 N.W.2d 715, 720 (Minn.App.1991), revieio denied (Minn. Aug. 29, 1991). Similarly, a pastor’s claims related to his appointment and discharge as a pastor were not reviewable because adjudication would require an evaluation of scripture, doctrine, and moral principles. Singleton v. Christ the Servant Evangelical Lutheran Church, 541 N.W.2d 606, 611-12 (Minn.App.1996), review denied (Minn. Mar. 19, 1996). In contrast, courts may address a claim against a church without excessive entanglement “when the dispute can be resolved according to ‘neutral principles of law’ — that is, by rules or standards that have been developed and are applied without particular regard to religious institutions or doctrines.” Odenthal, 649 N.W.2d at 435.

Thus, the question here is whether analysis of Doe’s discrimination claim will require inquiry into the internal decision-making of a religious institution, is fundamentally connected to issues of church doctrine and governance, or requires evaluation of scriptures and church doctrine, or whether it may be resolved by neutral principles of law.

Although Doe acknowledges that part of his job entailed pastoral duties, he asserts that because he was also a secular teacher, resolution of his claims requires application of neutral principles of law and therefore an examination of his claims would not violate the Establishment Clause. Doe also argues that even though he acknowledges his identity as a gay man, it was acceptable for him to continue in his position because he was celibate and did not speak openly about his sexual orientation.

We conclude there is no evidence showing that Doe had a position that could be split into secular and nonsecular so that they could be considered separately and, further, analysis of Does claim would require delving into church doctrine. Doe, an ordained minister, was initially “called” to his position, a process which, according to church doctrine, is guided by the Holy Spirit and God’s will. The high school is a “sacred community” administered “according to the Christian understanding of the Gospel.” The education provided to students is based on the scriptures of the Old and New Testament, to which teachers are asked to ascribe when teaching. As described in the facts, the synods written documents demonstrate the organization’s position that “homosexuality is intrinsically sinful.” Doe’s assertion that he should not have been discharged based on his sexual orientation would require the court to analyze and apply church doctrine to assess his argument. We must conclude that this type of searching inquiry intrudes into church doctrine and church administrative matters and engenders a prohibited relationship between the church and the judiciary. Singleton, 541 N.W.2d at 612. Consequently, resolution of Doe’s claims would violate the establishment doctrine of the First Amendment. Id.; Black, 471 N.W.2d at 720.

2. Next, Doe challenges the district court decision that his claim must also be dismissed under the Freedom of Conscience Clause of the Minnesota Constitution. The Freedom of Conscience Clause provides in relevant part as follows:

The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent, nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state....

Minn. Const, art. I, § 16.

The Freedom of Conscience Clause “precludes an infringement on or an interference with religious freedom and limits the permissible countervailing interests of the government.” State v. Hershberger, 462 N.W.2d 393, 397 (Minn.1990). The court balances the compelling state interest against the least restrictive alternative. Id. at 398. Under this test, the following factors are considered: “[1] whether the objector’s belief is sincerely held; [2] whether the state regulation burdens the exercise of religious beliefs; [3] whether the state interest in the regulation is overriding or compelling; and [4] whether the state regulation uses the least restrictive means.” Hill-Murray Fedn. of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 865 (Minn.1992).

As to the first factor, Lutheran High School and the synod clearly have a sincerely held religious belief. See Odenthal, 649 N.W.2d at 442. As to the second factor, the burden on the exercise of religious beliefs, it is clear that the state may not interfere with dismissals of clergy, because “evaluation of a minister’s qualifications or fitness to preach is inherently a matter of ecclesiastical concern.” Black, 471 N.W.2d at 719 (addressing same factor in earlier version of free exercise balancing test). But state regulation of lay employees at a religiously affiliated school that are not doctrinally related do not excessively burden the religious beliefs of the school. Hill-Murray, 487 N.W.2d at 866 (addressing whether application of Minnesota Labor Relations Act to lay employees violates Freedom of Conscience Clause).

Doe argues that because Lutheran High School and the synod never incorporated the religious belief that homosexuality is a sin into then- employment policies and because they have no stated policy, either written or unwritten, that forbids homosexuality among its employees, the employment decision did not implicate religious beliefs, procedures, or law. He asserts he did not introduce his sexual orientation or opinions into the workplace and further that he was teaching church doctrine and never acted in a manner that would have compromised the schools religious beliefs.

But the record clearly demonstrates that Doe was not merely a lay employee. Instead, he was a campus pastor as well as a teacher of religious subjects. Lutheran High School and the synod decided that Doe should be discharged because of their ecclesiastical concerns based on their firmly held religious beliefs. Analysis of his continued qualification for his employment and the discharge decision would require analysis of those beliefs. “If courts begin to question a church’s basis for doctrinal decisions, a church may be compelled to conform its religious beliefs with the governments or the majority cultures beliefs.” Geraci v. Eckankar, 526 N.W.2d 391, 399 (Minn.App.1995), review denied (Minn. Mar. 14, 1995). In the same manner, if a court were to address Doe’s discrimination claim, it would also require an analysis of the basis for Lutheran High School and the synod’s discharge of Doe, and they could be compelled to conform their religious beliefs to that of conflicting cultural beliefs.

As to the third factor, “the government has an overriding compelling interest in prohibiting discrimination in employment and public accommodation.” State by McClure v. Sports Health Club, Inc., 370 N.W.2d 844, 853 (Minn.1985). The fourth factor is whether these compelling interests can be achieved through the least-restrictive means. While the school originally allowed Doe to remain in his position until a replacement was found, provided he remain “closeted” and celibate, this less-restrictive alternative was only temporary and the ultimate discharge decision was based on protected religious beliefs. We conclude that the resolution of the arguments raised by Doe would violate the Freedom of Conscience Clause of the Minnesota Constitution.

3. By notice of review, the synod argues that it is not an employer governed by the MHRA. This issue presents a question of statutory interpretation. In analyzing such issues, the court’s objective is to ascertain and effectuate the intent of the legislature. Minn.Stat. § 645.16 (2004); Cummings v. Koehnen, 568 N.W.2d 418, 422 (Minn.1997). “The legislature has indicated that the MHRA should be liberally construed for the accomplishment of its purposes.” Cummings, 568 N.W.2d at 422; see also Minn.Stat. § 363A.04 (2004) (“The provisions of [the MHRA] shall be construed liberally for accomplishment of the purposes thereof.”).

The MHRA prohibits “employer[s]” from discriminating in employment practices. Minn.Stat. § 363A.08, subd. 2 (2004). An employer is defined as “a person who has one or more employees.” Minn.Stat. § 363A.03, subd. 16 (2004). Minnesota courts use a four-part test to determine whether related entities should be considered a single employer. Fahey v. Avnet, Inc., 525 N.W.2d 568, 572 (Minn.App.1994) (assessing number of employees for jurisdictional purposes), revieio■ denied (Minn. Feb. 14, 1995). Among the factors considered are: “(1) common ownership or financial control, (2) centralized control of labor relations, (3) interrelation of operations, and (4) common management.” Id. All four factors need not be present in all cases, but the presence of one of the factors is not determinative. Id.

The district court, applying this test, concluded that the school is under the control of the synod to an extent sufficient to find that the synod is an employer for the purpose of applying the MHRA. We agree. First, as to common ownership or financial control, the synod and the high school are independent entities, although the high school is a recognized service organization of the synod.

The second and most important factor is whether there is centralized control of labor relations. Id. The synod contends the entities are completely separate. But the undisputed facts show that the synod, the southern district of the synod which Seitz heads, and the school were all involved in the process of calling Doe to the position from which he was discharged. Further, Seitz acknowledged that as district president, he was Doe’s ecclesiastic supervisor and would concern himself with complaints regarding Doe’s teaching, his life, or his administration of his call. Finally, Seitz met with Doe three times to discuss his sexual orientation and his future resignation based on sexual orientation. These facts show centralized control.

The third factor, the interrelation of operations, refers to whether the entities share office space, sell services, or transfer employees. Here, there was interrelation to the extent that the synod was involved in calling ministers who may go from one service organization to another.

The fourth factor is whether the same individuals manage and control the two entities. Id. As discussed above, Seitz was involved both as district president for the synod and as Doe’s ecclesiastical supervisor. We conclude that the synod was Doe’s employer for the purpose of applying the MHRA.

4. We now address whether the synod and high school are exempt from the MHRA prohibition against discrimination based on sexual orientation under Minn. Stat. § 363A.26(2) (2004). The MHRA prohibits discharge from employment based on sexual orientation. Minn.Stat. § 363A.08, subd. 2(b). But it also exempts religious associations from this prohibition as follows:

Nothing in this chapter prohibits any religious association, religious corporation, or religious society that is not organized for private profit, or any institution organized for educational purposes that is operated, supervised, or controlled by a religious association, religious corporation, or religious society that is not organized for private profit, from: ... in matters relating to sexual orientation, taking any action with respect to education, employment, housing and real property, or use of facilities. This clause shall not apply to secular business activities engaged in by the religious association, religious corporation, or religious society, the conduct of which is unrelated to the religious and educational purposes for which it is organized.

MinmStat. § 363A.26(2).

This exemption was applied to a church that was sued for sexual orientation discrimination by a discharged church music director, based on the determination that the music director was a church employee. Egan v. Hamline United Methodist Church, 679 N.W.2d 350, 355-56 (Minn.App.2004), review denied (Minn. June 29, 2004). The exemption was also applied to a nonprofit religious organization engaged in a religious business activity facing sexual orientation discrimination claims by a discharged mailroom employee. Thorson v. Billy Graham Evangelistic Ass’n, 687 N.W.2d 652, 657 (Minn.App.2004), review denied (Minn. Dec. 22, 2004).

Doe first contends that Thorson is not controlling because it is inconsistent with Egan. Egan analyzed the question of whether a music director was a religious employee based on the plain language of the exemption. 679 N.W.2d at 355 In contrast, using legislative history, Thorson determined that the statutory phrase “secular business activities” applied to the purpose and mission of the entire entity, rather than to the job responsibilities of the individual employee. 687 N.W.2d at 656. We find no conflict because Egan did not engage in statutory construction or address the broader question decided in Thorson.

Next, Doe challenges the holding in Thorson, arguing that this court interpreted the statute too broadly. But the supreme court denied review in Thorson, and appellate courts are bound by the doctrine of stare decisis, which directs that “we adhere to former decisions in order that there might be stability in the law.” Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn.2000). The doctrine is not inflexible and if the reasons underlying the particular rule no longer exist or the rule no longer conforms to changed conditions of society, the court may decide not to apply stare decisis. State v. Victorsen, 627 N.W.2d 655, 662 n. 2 (Minn.App.2001). Here, when the decision Doe is challenging was issued by this court in 2004 and the supreme court denied review, we choose to apply the doctrine of stare decisis.

Doe also contends that Thorson’s broad application of the exemption to any employee whose function is any way related to the religious associations mission as a whole runs afoul of the Establishment Clause. Doe acknowledged at oral argument that this issue was not raised below but contends that it had not arisen because this court had not yet issued Thorson. Nonetheless, this court will not address an issue not raised to or decided by the district court. Thiele, 425 N.W.2d at 582-83.

The district court properly found that the religious-association exemption applied because the synod and the school are religious organizations and because Doe was a religious employee, as an ordained minister who was campus pastor and as a teacher whose responsibilities were in large part religious.

DECISION

The district court’s decision finding that the resolution of Doe’s discrimination claim would violate the First Amendment and the Freedom of Conscience Clause and that the exemption for religious organizations in Minn.Stat. § 363A.26(2) (2004) applies is affirmed.

Affirmed.

      . The MHRA was recodified in 2003.


text:
    STATE of Minnesota, Appellant, v. Jason Roy SKAPYAK, Respondent.
    No. A05-765.
    Court of Appeals of Minnesota.
    Aug. 23, 2005.
    Review Denied Oct. 18, 2005.

      Mike Hatch, Attorney General, St. Paul, MN and James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Hastings, MN, for appellant.
    Joseph Patrick Tamburino, Allan H. Ca-plan & Associates, P.A., Minneapolis, MN, for respondent.
    Considered and decided by DIETZEN, Presiding Judge; STONEBURNER, Judge; and HUDSON, Judge.
   OPINION

DIETZEN, Judge.

Appellant challenges the district court’s pretrial order granting respondent’s motion to use a mistake-of-age defense, arguing that the district court erred by holding that Minn.Stat. § 152.023, subd. 1(3) (2002), requires knowledge of the minor’s age as an element of this controlled-substance offense. Because the statute does not require the state to prove that respondent had knowledge of the minor’s age and because the state has demonstrated that the error would have a critical impact on the outcome of the trial, we reverse.

FACTS

Appellant State of Minnesota charged respondent Jason Skapyak with one count of fifth-degree criminal sexual conduct, in violation of Minn.Stat. § 609.3451, subd. 1(2) (2002), and two counts of contributing to delinquency of a minor in violation of Minn.Stat. § 260B.425, subd. 1(a) (2002). In its amended complaint, the state charged respondent with two counts of third-degree controlled-substance crimes, in violation of Minn.Stat. § 152.023, subd. 1(3) (2002), and one count of indecent exposure, in violation of Minn.Stat. § 617.23, subd. 1(1) (2002).

The amended complaint states that on October 28, 2003, two mothers reported to the Lakeville Police Department that an “older male” masturbated and was filmed on the Internet via a web cam in front of their daughters, J.H. and T.C. Police identified respondent as the male on the web cam. J.H. told police that she started communicating with respondent on the Internet sometime in the spring of 2003. J.H. and T.C. both stated to police that respondent masturbated three or four times in front of them through the web cam and that they went to respondent’s house three or four times in September or October 2003, where respondent provided them with marijuana.

Respondent admitted masturbating through the web cam and providing T.C. and J.H. with marijuana. But respondent argues that he thought the girls were adults. J.H. became 15 years of age in June 2003 and T.C. became 16 years of age in September 2003. Respondent was 34 years old during his interaction with J.H. and T.C. The complaint indicates that respondent told the girls he was 27 and that the girls told respondent they were 18 and 19. But the complaint also indicated that on October 13, 2003, respondent asked one of the girls, “You don’t have school Thurs. or Fri. right?” The girl responded, “Right.”

Respondent moved the district court to allow him to raise a mistake-of-age defense at trial as to the fifth-degree criminal-sexual-conduct charge and the third-degree eontrolled-substance charges. The district court granted respondent’s motions. The state now challenges the district court’s pretrial order permitting respondent to use a mistake-of-age defense with respect to the eontrolled-substance charges.

ISSUES

I. Does Minn.Stat. § 152.023, subd. 1(3) (2002), require the state to prove the defendant’s knowledge of the minor’s age, thus enabling a criminal defendant to raise a mistake-of-age defense?

II. Did the state demonstrate that the district court’s ruling would have a critical impact on the outcome of the trial?

ANALYSIS

I.

The state argues that the district court erred by interpreting Minn.Stat. § 152.023, subd. 1(3) (2002), as requiring respondent’s knowledge of a minor’s age as an element of the offense and, therefore, permitting respondent to present a mistake-of-age defense.

Whether a statute has been properly construed is a question of law to be reviewed de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). An analysis of a statute must begin with a careful and close examination of the statutory language to ascertain and effectuate legislative intent. State v. Loge, 608 N.W.2d 152, 155 (Minn.2000).

The statute at issue reads, “A person is guilty of controlled substance crime in the third degree if ... the person unlawfully sells one or more mixtures containing a controlled substance classified in schedule I, II, or III, except a schedule I or II narcotic drug, to a person under the age of 18.” Minn.Stat. § 152.023, subd. 1(3). Marijuana is a schedule I controlled substance. Minn.Stat. § 152.02, subd. 2(3) (2002).

The state argues that the legislature intended that the third-degree eontrolled-substance crime involving the sale of marijuana to minors under the age of 18 to be a strict-liability offense with regard to the issue of age. In support of its argument the state cites the definition of “criminal intent,” Minn.Stat. § 609.02, subd. 9(6) (2002), which states “[cjriminal intent does not require proof of knowledge of the age of a minor even though age is a material element in the crime in question.” The state argues that the definitions in chapter 609, the criminal code, apply to offenses contained in chapter 152, the controlled-substances chapter, because Minn.Stat. § 609.015, subd. 2 (2002) provides, “[u]n-less expressly stated otherwise, or the context otherwise requires, the provisions of this chapter also apply to crimes created by statute other than in this chapter.”

Respondent argues that Minn.Stat. § 152.023, subd. 1(3), cannot be construed as a strict-liability offense on the issue of age due to the lack of the express intent of the legislature to create strict liability. Respondent argues that he should be allowed to raise a mistake-of-age defense because his alleged action of selling or giving marijuana to the girls would not constitute criminal activity unless they are minors. Respondent cites Minn.Stat. § 152.027, subd. 4(a) (2002), which defines the “sale” of a small amount of marijuana: “A person who unlawfully sells a small amount of marijuana ... is guilty of a petty misdemeanor.... ” A small amount of marijuana is any amount less than 42.5 grams. Minn.Stat. § 152.01, subd. 16 (2002). According to respondent, because there was less than 42.5 grams of marijuana involved, the sale is not a crime, but rather only a petty misdemeanor. See MinmStat. § 609.02, subds. 1, 4(a) (2004) (defining crime and petty misdemeanor).

We conclude that the definition of criminal intent in chapter 609 is applicable and demonstrates that the legislature intended that strict liability apply to the issue of age in Minn.Stat. § 152.023, subd. 1(3). The issue here is analogous to that in State v. Benniefield, 678 N.W.2d 42, 49 (Minn.2004), in which the Minnesota Supreme Court held that the crime of third-degree possession of a controlled substance in a school zone does not require the state to prove that the defendant knew he was in a school zone or intended to commit the crime in a school zone. In Benniefield, the supreme court held that because a mens rea requirement implicitly exists for the possession of a controlled substance, there is no basis for requiring the state to demonstrate an additional mens rea element with respect to location. Id. at 48. Here, because a mens rea requirement already exists for the possession of a controlled substance, we see no reason to require an additional mens rea element with respect to age.

We reject respondent’s argument that his conduct is not criminal because the sale of a small amount of marijuana to another person is a “petty misdemeanor,” and not a “crime” as defined in the criminal code. While respondent may have sold or given away only a small amount of marijuana, marijuana is nonetheless a controlled substance. Minn.Stat. § 152.02, subd. 2(3). The Benniefield court explained that possession of “inherently anti-social” objects, such as “illegal drugs and hand grenades,” is criminal regardless of location and puts the possessor on notice of the illegality of his actions. Id. at 48 (quotation omitted). Selling or giving away a small amount of marijuana is unlawful and not innocent.

Our conclusion is consistent with federal and state decisions that have consistently held that, although the government must prove an intent to sell illegal drugs, it need not prove that the defendant intended to sell to a minor or knew the minor’s age. See, e.g., United States v. Carter, 854 F.2d 1102, 1108-09 (8th Cir.1988); People v. Williams, 233 Cal.App.3d 407, 407, 284 Cal.Rptr. 454 (1991); People v. Lopez, 271 Cal.App.2d 754, 760-61, 77 Cal.Rptr. 59 (1969); State v. Taylor, 153 Conn. 72, 83, 214 A.2d 362 (1965).

II.

Alternatively, respondent argues that even if the district court’s decision was erroneous, the state cannot show that his raising a mistake-of-age defense will have a critical impact on the state’s case. Generally, to prevail in an appeal of a pretrial order, the state must show that the order was clearly and unequivocally in error and that, unless reversed, that error will have a critical impact on the outcome of the trial. State v. Webber, 262 N.W.2d 157, 159 (Minn.1977).

The state argues that the critical-impact analysis applies only to pretrial suppression orders, and thus is not applicable to the district court’s order here. Alternatively, the state argues that allowing respondent to present a mistake-of-age defense would have a critical impact because, by the time of trial, the girls will be significantly older than at the time of the offense, making it hard to disprove respondent’s defense. The state claims that it would prepare for and present its case at trial very differently depending upon whether or not the affirmative defense is allowed.

We conclude that the critical-impact analysis is applicable to the district court’s pretrial order allowing respondent to present a mistake-of-age defense. See State v. Barsness, 446 N.W.2d 666 (Minn.App.1989), rev’d mem., 473 N.W.2d 828 (Minn.1990). In Barsness, the district court issued an order allowing the defendant to present evidence of her I.Q. level in her defense of second- and third-degree murder and second-degree manslaughter charges. Id. at 666-67. Like the pretrial order permitting the defendant to present evidence in Barsness, the district court’s pretrial order, here, permitted respondent to present certain evidence. The eviden-tiary ruling has a direct and measurable impact on the trial. Therefore, we apply the critical impact test.

Allowing respondent to present the inapplicable defense would have a critical impact on the outcome of the trial. Here, the district court’s erroneous pretrial order would require the state to prove that respondent had knowledge of the minor’s age to secure a conviction under Minn. Stat. § 152.023, subd. 1(3). Requiring the state to prove an additional mens rea requirement would alter the state’s presentation of its case. Accordingly, the critical impact standard is met.

DECISION

Because Minn.Stat. § 152.023, subd. 1(3) (2002) does not require knowledge of a minor’s age, the district court erred by holding that respondent may raise a mistake-of-age defense.

Reversed.