author: ANDERSON, G. BARRY, Justice. MEYER, Justice

text:
    Alissa Christine BEARDSLEY, Appellant, v. Dante’ Antonio GARCIA, Jr., Respondent.
    No. A06-922.
    Supreme Court of Minnesota.
    July 31, 2008.
    Elizabeth J. Richards, MN Coalition for Battered Women, Inc., St. Paul, Beverly Balos, Minneapolis, for Appellant.
    Robert William Gadtke, Gadtke and Beyer, Edina, for Respondent.
    Rana Suzanne Alexander Fuller, Kristine Chance Lizdas, Minneapolis, Jessie Ree Nicholson, Janet C. Werness, Southern MN Regional Legal Services, Inc., St. Paul, Charles H. Thomas, Mankato, for Amicus.
   OPINION

ANDERSON, G. BARRY, Justice.

Appellant Alissa Christine Beardsley and respondent Dante’ Antonio Garcia, Jr., signed a recognition of parentage acknowledging that Garcia is the biological father of D.G., one of Beardsley’s sons. The district court subsequently granted Beardsley an order for protection against Garcia, but it granted Garcia temporary parenting time with D.G. in the order. Beardsley appealed the district court’s grant of temporary parenting time to Garcia, and the court of appeals affirmed. We affirm the decision of the court of appeals.

On March 2, 2006, Beardsley petitioned for an order for protection (OFP) against Garcia. Beardsley stated in the petition that she has two minor sons, A.F. and D.G., but that she and Garcia have no children in common. Beardsley alleged that on February 24, 2006, Garcia threatened to split her head open, knock out her teeth, and possibly kill her. She also alleged that A.F. overheard Garcia threaten to kill her 2 days later when A.F. answered a phone call from Garcia and Beardsley refused to take the call. The district court issued an ex parte temporary OFP and scheduled a hearing on Beardsley’s petition.

At the hearing on Beardsley’s petition, which was held on March 16, 2006, Garcia did not challenge the issuance of the OFP but requested parenting time with D.G., who was 20 months old at the time. Garcia provided the district court with a recognition of parentage (ROP) in which he and Beardsley acknowledged that they are D.G.’s biological parents, but the record indicates that Garcia’s paternity of D.G. had not been adjudicated. Beardsley informed the court that although Garcia is not D.G.’s biological father, he had “insisted on signing the birth certificate.” Beardsley said that she did not believe that D.G. would be safe with Garcia because of Garcia’s “anger problems” and that she feared that Garcia would “threaten somebody else in front of [D.G.].”

Later in the day on March 16, the district court issued a 1-year OFP that prohibited Garcia from committing any acts of domestic abuse against Beardsley, entering Beardsley’s residence, and contacting Beardsley by any means. The court made no finding that domestic abuse had occurred, and the OFP stated that Garcia had denied the allegations of the petition but had agreed to the issuance of the OFP. The court granted in part and denied in part Garcia’s request for parenting time, awarding him parenting time with D.G. for 2 hours each weekend at a supervised facility.

Beardsley appealed the district court’s grant of temporary parenting time to Garcia, arguing that Minn.Stat. § 257.541, subd. 3 (2006), prohibits a district court from awarding parenting time to an ROP father in an OFP proceeding. The court of appeals affirmed, holding that the district court had both subject matter jurisdiction and statutory authority to award temporary, supervised parenting time to Garcia in the OFP. Beardsley v. Garcia, 731 N.W.2d 843, 851-52 (Minn.App.2007). The court of appeals also held that Beardsley’s due process rights were not violated. Id. at 850. We granted Beardsley’s petition for review on the issue of whether the district court had statutory authority to award Garcia temporary parenting time with D.G. as part of the OFP proceeding.

The object of statutory interpretation “is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2006). “When the language of a statute is plain and unambiguous, it is assumed to manifest legislative intent and must be given effect.” Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn.2001). But when the statutory language is ambiguous, we may look to other sources to ascertain legislative intent. Minn.Stat. § 645.16. “An ambiguity exists only where a statute’s language is subject to more than one reasonable interpretation.” State v. Mauer, 741 N.W.2d 107, 111 (Minn.2007). “Statutory interpretation is a question of law that we review de novo.” State v. Al-Naseer, 734 N.W.2d 679, 683 (Minn.2007).

The Domestic Abuse Act, MinmStat. § 518B.01 (2006), “provides a process whereby domestic abuse victims may petition for protection and relief.” Burkstrand, 632 N.W.2d at 209. It provides for “an action known as a petition for an order for protection in cases of domestic abuse” and requires that a petition for an OFP “allege the existence of domestic abuse.” Minn.Stat. § 518B.01, subd. 4. If the petition “alleges an immediate and present danger of domestic abuse, the court may grant an ex parte order for protection.” Id., subd. 7(a). Otherwise, after giving notice to the alleged abuser and holding a hearing, the court may grant the petitioner a wide array of relief in an OFP. Id., subd. 6(a). In particular, the court may “establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children.” Id., subd. 6(a)(4). Because section 518B.01, subd. 6(a)(4), authorizes a court to award temporary parenting time in an OFP proceeding, the district court had the authority to award Garcia parenting time in the March 2006 OFP unless he is excluded from the scope of the statute.

Beardsley argues that Garcia is excluded from the scope of section 518B.01, subd. 6(a)(4), because he is an unadjudicated father whose paternity has been acknowledged in an ROP. Under MinmStat. § 257.75, subd. 1 (2006), a child’s father and a child’s mother “who was not married to the child’s father nor to any other man when the child was conceived [or] * * * born may” acknowledge under oath in an ROP “that they are the biological parents of the child and wish to be recognized as the biological parents.” An ROP is “a basis for bringing an action to award * * * parenting time to either parent,” and, subject to exceptions not implicated in this case, an ROP “has the force and effect of a judgment or order determining the existence of the parent and child relationship.” Minn.Stat. § 257.75, subd. 3 (2006). Such a “judgment or order of the court determining the existence * * * of the parent and child relationship is determinative for all purposes.” Minn.Stat. § 257.66, subd. 1 (2006). Therefore, D.G. is Garcia’s “minor child” for purposes of section 518B.01, subd. 6(a)(4), which authorizes a district court to “establish temporary parenting time with regard to minor children of the parties.”

A father whose paternity has been acknowledged in an ROP may commence an action to determine parenting time “pursuant to chapter 518 without an adjudication of parentage,” but “[u]ntil an order is entered granting custody to another, the mother has sole custody.” Minn.Stat. § 257.75, subd. 3. Minnesota Statutes § 257.541, subd. 3, also permits an ROP father to commence an action to determine parenting time under chapter 518, providing as follows:

If paternity has been recognized under section 257.75 [the ROP statute], the father may petition for rights of parenting time or custody in an independent action under section 518.156. * * * An action to determine custody and parenting time may be commenced pursuant to chapter 518 without an adjudication of parentage. These proceedings may not be combined with any proceeding under chapter 518B.

Relying on section 257.75, subd. 3, and section 257.541, subd. 3, Beardsley argues that chapter 518 is the exclusive means by which Garcia may obtain parenting time and that the district court therefore lacked authority to award him temporary parenting time in the March 2006 OFP. But because section 257.75, subd. 3, and section 257.541, subd. 3, provide that an ROP father “may” petition for parenting time under chapter 518, the statutes are permissive rather than mandatory. See Minn. Stat. § 645.44, subd. 15 (2006) (“ ‘May’ is permissive.”). These provisions do not state that chapter 518 is the exclusive means by which an ROP father may obtain parenting time. We have said “that before a statute may be construed as mandatory it must contain negative terms importing a plain legislative intent that acts authorized therein are to be performed only in a prescribed manner * * * or language manifesting a positive legislative prohibition against their performance in ways other than those specified.” Agassiz & Odessa Mut. Fire Ins. Co. v. Magnusson, 272 Minn. 156, 165, 136 N.W.2d 861, 868 (1965). Neither section 257.75, subd. 3, nor section 257.541, subd. 3, excludes an ROP father from the scope of section 518B.01, subd. 6(a)(4).

Beardsley also argues that the prohibition against combining a chapter 518 action to determine custody or parenting time with a domestic abuse proceeding, see Minn.Stat. § 257.541, subd. 3, reflects the legislature’s determination that it is improper to address parenting time issues for ROP fathers in OFP proceedings. But Garcia never sought or received a custody or parenting time order under chapter 518; rather, he sought and received a temporary order for parenting time as part of an OFP proceeding under section 518B.01. Accordingly, the prohibition against combining a chapter 518 action with a domestic abuse proceeding has no bearing on the outcome of this case.

We also reject the dissent’s conclusion that an ambiguity exists as to whether a district court has the statutory authority to award temporary parenting time in an OFP to an unadjudicated father whose paternity has been acknowledged in an ROP. Section 518B.01, subd. 6(a)(4), authorizes a court to award temporary parenting time in an OFP proceeding, and an ROP father is not excluded from the scope of that statute. The dissent creates an ambiguity where none exists by reading an exclusivity requirement into section 257.75, subd. 3, and section 257.541, subd. 3.

We especially reject the dissent’s assertion that the silence of section 518B.01, subd. 6(a)(4), regarding “who can ask for this relief or to whom this relief can be awarded” contributes to the ambiguity. The dissent cites Burkstrand v. Burkstrand, 632 N.W.2d 206 (Minn.2001), and MBNA America Bank, N.A v. Commissioner of Revenue, 694 N.W.2d 778 (Minn.2005), for the proposition that silence on an issue can create an ambiguity in statutory language.

The statute at issue in Burkstrand was Minn.Stat. § 518B.01, subd. 7(c) (2000), which provided that when a district court issues an ex parte OFP, a hearing must be held within 10 days of the court’s receipt of a request for a hearing by the respondent and within 7 days of the issuance of the OFP if the hearing is requested by the petitioner. 632 N.W.2d at 209. The district court issued an ex parte OFP on December 28, 1999, but the hearing was not held until January 21, 2000. Id. at 207-08. Minnesota Statutes § 518B.01, subd. 7(c), did not specify the consequence of holding a hearing outside the statutory time frame, and the parties disputed whether the district court’s failure to comply with the statutory time frame resulted in the loss of subject matter jurisdiction. Burkstrand, 632 N.W.2d at 210. We concluded that the statute was ambiguous in light of the statutory silence on the issue. Id.

We also recognized that statutory silence can create ambiguity in MBNA where a taxpayer filed its refund claims for corporate franchise tax after the expiration of the refund filing period set forth in Minn.Stat. § 289A.40, subd. 1 (2004). 694 N.W.2d at 779-80. Minnesota Statutes § 270.0603, subds. 1(3), 3 (2004), required the Commissioner of Revenue to provide a statement explaining the procedures for filing refund claims to a taxpayer “contacted with respect to the determination or collection of a tax,” and it was undisputed that the taxpayer’s assessment did not explain these procedures. MBNA 694 N.W.2d at 781-82. The parties disputed the effect of the nonconformity on the refund filing period, and we concluded that the silence of section 270.0603 on the subject created ambiguity. MBNA 694 N.W.2d at 782.

In both Burkstrand and MBNA the relevant statutes were completely silent on the contested issues — the consequence of a district court’s failure to comply with the statutory time frame in Burkstrand and the effect of a nonconforming assessment on the refund filing period in MBNA. Section 518B.01, subd. 6(a)(4), in contrast, authorizes a district court issuing an OFP to establish temporary parenting time. The dissent thus suggests that even where the facts of a case fall within the scope of a general statutory rule, the statute is ambiguous if it does not explicitly address the particular facts of the case. Put another way, the effect of using silence to create an ambiguity under these circumstances would be to use silence to vitiate otherwise valid statutory authority. We refuse to apply the ambiguity-created-by-silence principle recognized in Burkstrand and MBNA here where a general grant of statutory authority to award parenting time already exists.

Finally, we reject the dissent’s contention that our decision “has the perverse consequence of rewarding acts of domestic violence.” The decision to award temporary parenting time in an OFP is within the discretion of the district court, which is required to give “primary consideration to the safety of the victim and the children.” Minn.Stat. § 518B.01, subd. 6(a)(4). In this case, the district court did not make any findings that domestic abuse had actually occurred, Beardsley did not allege that Garcia had ever threatened or committed an act of violence against D.G., and the district court, in the interests of safety, properly limited the temporary parenting time award to 2 hours a week at a supervised facility. “[T]he discretion of the trial court in deciding questions relating to visitation is extensive,” Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn.1978), and the facts of this case indicate that the district court acted within its discretion in awarding temporary parenting time to Garcia.

We have stated that “we will not read into a statute a provision that the legislature has omitted, either purposely or inadvertently.” Reiter v. Kiffmeyer, 721 N.W.2d 908, 911 (Minn.2006). Beardsley argues that we should effectively rewrite section 257.541, subd. 3, to read, “If paternity has been recognized under section 257.75, the father may petition for rights of parenting time or custody [only] in an independent action under section 518.156.” The prerogative of amending a statute in such a fashion belongs to the legislature, not to this court. Accordingly, we hold that the unambiguous language of Minn. Stat. § 518B.01, subd. 6(a)(4), authorizes a district court issuing an order for protection to award temporary parenting time to an unadjudicated father whose paternity has been acknowledged in an ROP.

Affirmed.

MAGNUSON, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

MEYER, Justice

(dissenting).

We are asked to determine whether a district court may award temporary parenting time to an unmarried father in an action brought against him for an order for protection under the Domestic Abuse Act, if that unmarried father has signed a recognition of parentage but has not previously obtained a court order granting him parenting time with the child who is the subject to the recognition of parentage. The majority concludes that the Domestic Abuse Act unambiguously gives a district court such authority. I respectfully dissent.

In this case, we are asked to interpret provisions from three statutes, the Domestic Abuse Act, Minn.Stat. § 518B.01 (2006), the Parentage Act, Minn.Stat. §§ 257.51-.74 (2006), and the Recognition-of-Parentage Statute, Minn.Stat. § 257.75 (2006). Statutory interpretation is an issue of law that is reviewed de novo. State v. Mauer, 741 N.W.2d 107, 111 (Minn.2007). When interpreting statutes, the goal is to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2006). “When the language of a statute is plain and unambiguous, it is assumed to manifest legislative intent and must be given effect.” Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn.2001). Statutory language is ambiguous if it is susceptible to more than one reasonable interpretation. Mauer, 741 N.W.2d at 111. If statutory language is ambiguous, this court may ascertain the legislature’s intent by considering a number of matters, including the legislative history, the occasion and necessity for the law, and the consequences of various interpretations. Minn.Stat. § 645.16.

The Domestic Abuse Act provides protection to victims of domestic violence by giving them an expedited way in which to petition for and receive a court order prohibiting further acts of domestic abuse and providing immediate relief to a victim and his or her children. Burkstrand, 632 N.W.2d at 209; see also Baker v. Baker, 494 N.W.2d 282, 285 (Minn.1992) (superseded in part by statute in Burkstrand, 632 N.W.2d 206). The court order is called an order for protection. Minn.Stat. § 518B.01, subd. 4. The Domestic Abuse Act allows the district court to grant a wide array of relief in an order for protection. In particular, the district court can “award temporary custody or establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children.” Minn.Stat. § 518B.01, subd. 6(a)(4).

The Parentage Act “provides the exclusive [statutory] basis for standing to bring an action to determine paternity.” Witso v. Overby, 627 N.W.2d 63, 65-66 (Minn. 2001). Under the Parentage Act, a biological mother of a child who was not married to the child’s father when the child was born or conceived has sole custody of the child until specific court proceedings are held that determine custody issues. Minn. Stat. § 257.541, subd. 1 (2006). As a result, an unmarried father has no right to either custody of, or parenting time with, a child.

Unmarried fathers, however, can file a court action under the Parentage Act and ask to be adjudicated the father of a particular child. Minn.Stat. § 257.57. In an order or judgment issued under the Parentage Act, a court will determine the existence of the parent and child relationship, and such an order or judgment “shall contain provisions concerning the duty of support, the custody of the child, * * * [and] parenting time with the child.” Minn.Stat. § 257.66, subds. 1, 3. Fathers whose paternity has been established under the Parentage Act are referred to as adjudicated fathers.

In 1993, the legislature created the Recognition-of-Parentage Statute (ROP). Act of May 27, 1993, 1st Spec. Sess., ch. 1, art. 6, § 40, 1993 Minn. Laws 3021, 3288-90 (codified at MinmStat. § 257.75 (2006)). A ROP allows unmarried parents to sign a document indicating they are the biological parents of a particular child. Minn.Stat. § 257.75, subd. I. A ROP has “the force and effect of a judgment or order determining the existence of the parent and child relationship under section 257.66 [of the Parentage Act].” MinmStat. § 257.75, subd. 3. However, unlike a court order adjudicating paternity, a ROP does not address issues of custody or parenting time. By signing a ROP, an unmarried father does not receive either the right to custody of the child or the right to have parenting time with the child. The ROP statute expressly states that “[u]ntil an order is entered granting custody to another, the mother has sole custody.” Id.

The law provides a mechanism for a ROP father to obtain either custody of, or parenting time with, his child. The ROP statute states that a ROP is “a basis for bringing an action to award custody or parenting time to either parent” and that “[a]n action to determine custody and parenting time may be commenced pursuant to chapter 518 without an adjudication of parentage.” Minn.Stat. § 257.75, subd. 3. In addition, the Parentage Act provides that:

[i]f paternity has been recognized under section 257.75, the father may petition for rights of parenting time or custody in an independent action under section 518.156. * * * The provisions of chapter 518 apply with respect to the granting of custody and parenting time. * * * These proceedings may not he combined with any proceeding under chapter 518B [the Domestic Abuse Act].

Minn.Stat. § 257.541, subd. 3 (emphasis added).

Through the Parentage Act and the ROP statute, the legislature has made the decision to treat unmarried fathers differently than married fathers when it comes to the issues of custody and parenting time. It is not the purview of this court, but the policy decision of the legislature, that unmarried mothers have sole custody of their children absent a court order granting custody or parenting time rights to the father. Unlike a married father, whatever “custodial right” the unmarried father may have does not exist until a court becomes involved and determines those rights pursuant to either the Parentage Act or the ROP statute. See Morey v. Peppin, 375 N.W.2d 19, 23 (Minn.1985) (noting that the Parentage Act “preserves the common law right to custody in the mother and absence of any legal right to custody in the putative father pending the establishment of paternity”). Simply put, the legislature has decided that a father who does not marry the mother of his children has no right to custody of, or parenting time with, his children absent a court order awarding him such rights.

I disagree with the majority’s conclusion that the Domestic Abuse Act unambiguously allows a district court to award parenting time to a ROP father who has no preexisting right to custody of, or parenting time with, a child as part of an order for protection proceeding brought against him. The operative language of the Domestic Abuse Act states that “[u]pon notice and hearing, the court may * * * establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children.” Minn.Stat. § 518B.01, subd. 6(a)(4). The majority, relying on language from the Parentage Act, concludes that D.G. is a “minor child” of Garcia and Beardsley because of the ROP. But in making this determination, the majority ignores key language from the ROP statute.

The majority begins by citing language from the ROP statute stating that a ROP “has the force and effect of a judgment or order determining the existence of the parent and child relationship under section 257.66 [of the Parentage Act].” Minn.Stat. § 257.75, subd. 3. The majority then determines that D.G. is a “minor child[] of the parties” within the meaning of 518B.01, subd. 6(a)(4) based on language from the Parentage Act stating that “the judgment or order of the court determining the existence * * * of the parent and child relationship is determinative for all purposes.” Minn.Stat. § 257.66, subd. 1. This language from the Parentage Act, however, is contradicted by language from the ROP statute expressly limiting the effect a ROP has on custody and parenting time issues.

A ROP father has no right to custody of, or parenting time with, his child simply because he signed a ROP. While a ROP is “determinative for all other purposes related to the existence of the parent and child relationship,” it is not so when it comes to custody and parenting time; a ROP merely provides “a basis for bringing an action to award custody or parenting time to either parent.” Minn.Stat. § 257.55, subd. 3(1), (2) (emphasis added). The majority has no explanation as to how this language can be reconciled with its conclusion that D.G. is a minor child of the parties for purposes of parenting time awards under the Domestic Abuse Act. To interpret the Domestic Abuse Act as the majority has— to allow a district court to award parenting time for the first time to a ROP father in an order for protection proceeding — either ignores, or is completely contrary to, the language in the ROP statute stating that a ROP father has no right to parenting time. See Minn.Stat. §§ 645.16 (stating that if possible, a statute must be construed to give effect to all its provisions), 645.26, subd. 1 (stating that when a general provision in a law is in conflict with a specific provision, they should be construed so that effect can be given to both); see also Miller v. Colortyme, Inc., 518 N.W.2d 544, 551 (Minn.1994) (“A statute is to be construed, whenever reasonably possible, in such a way as to avoid irreconcilable differences and conflict with another statute.”).

In addition, the Parentage Act and the ROP statute provide a path for a ROP father to obtain parenting time with the child who is the subject of the ROP. The father “may petition” for parenting time in an independent action pursuant to chapter 518. Minn.Stat. § 257.541, subd. 3; see also Minn.Stat. § 257.75, subd. 3. These statutes provide no indication that a ROP father could use an order for protection proceeding brought against him as another way to effectuate his right to parenting time. To the contrary, the Parentage Act expressly states that a ROP father’s petition for parenting time “may not be combined with any proceeding under chapter 518B.” Minn.Stat. § 257.541, subd. 3. It is hard to see how the legislature could have intended a ROP father to activate his right to parenting time for the first time in an order for protection proceeding when the Parentage Act states that a decision regarding a ROP father’s right to parenting time and an order for protection proceeding are supposed to be kept separate.

The majority concludes that the prohibition against combining a petition for parenting time brought by a ROP father under chapter 518 with a proceeding under the Domestic Abuse Act, chapter 518B, has no bearing on the outcome of this case because Garcia never sought or received a parenting time order under chapter 518. I disagree.

I believe that the proceeding that cannot be combined with an order for protection proceeding is a ROP father’s request to obtain parenting time in the first place, whether it is through an independent action or attempted request for such relief in an order for protection proceeding. To interpret this language as the majority does allows a ROP father to achieve, through an indirect means, that which he is expressly prohibited from doing. And “[i]t is to be presumed that the legislature did not intend the absurd result of permitting by indirection that which it has prohibited by direct provision.” Gale v. Comm’r of Taxation, 228 Minn. 345, 349, 37 N.W.2d 711, 715 (Minn.1949).

I conclude that when the provision in the Domestic Abuse Act regarding a district court’s authority to “establish temporary parenting time” is read in conjunction with relevant provisions in the Parentage Act and the ROP statute, an ambiguity exists with respect to a district court’s authority to grant a ROP father’s request for parenting time when an order for protection action has been brought against him but where he has not previously brought an action to effectuate his right to parenting time. Because I find that the language in the Domestic Abuse Act and the ROP statute is ambiguous with respect to whether the district court has the authority to award temporary parenting time in this case, I must ascertain the legislature’s intent.

The purpose of the Domestic Abuse Act is to provide victims of domestic abuse and their children with quick relief from the courts to help protect them from acts of family violence. State v. Errington, 310 N.W.2d 681, 682 (Minn.1981). The Domestic Abuse Act has been amended numerous times since it was enacted. Each time it was expanded to provide additional protection by broadening either the definition of a “family or household member” who can seek protection under the act, or the definition of domestic abuse. In addition, from time to time it was amended to provide wider relief to victims or to make it easier for victims of domestic violence and their children to obtain relief. There is nothing in the language of the Domestic Abuse Act or in its history to suggest that its purpose includes providing a way for the abusive party to establish rights that he or she has failed to establish before the abusive party committed acts of domestic abuse. It is not consistent with the purpose of the Domestic Abuse Act to allow a ROP father with no preexisting legal right to parenting time to ask for and receive parenting time when an order for protection proceeding has been brought against him.

Further, allowing a ROP father to use an order for protection proceeding as a vehicle for effectuating his right to parenting time has the perverse consequence of rewarding acts of domestic violence. If he wants parenting time, a ROP father who has not been accused of committing domestic violence has to file a petition with the court, under Minn.Stat. § 518.156, for parenting time. Minn.Stat. § 257.541, subd. 3. He is required to give written notice of his petition to the mother, and there are additional notice and hearing requirements before the court can grant relief. Minn.Stat. § 518.156, subd. 2; Minn. Gen. R. Prac. 303.03 (requiring at least 14 days’ notice for family court motions). Because the provisions of chapter 518 apply to the ROP father’s action for parenting time, a district court can “grant such parenting time on behalf of the child and a parent as will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.” Minn.Stat. § 518.175, subd. 1(a) (2006); see also Minn.Stat. § 257.541, subd. 3. The district court “may not use one [best interest] factor to the exclusion of * * * others,” and with its “detailed findings” on each factor, it must “explain how the factors led to its conclusions and to the determination of the best interests of the child.” MinmStat. § 518.17, subd. 1 (2006).

In an order for protection proceeding, however, a ROP father can make an oral request for and be awarded parenting time at the hearing on the order for protection. Minn.Stat. § 518B.01, subd. 6(a)(4). A district court is not required to make findings on the best interest factors. The primary consideration is safety and, therefore, a ROP father can receive parenting time, as was the case here, simply by showing that the parenting time will not threaten the safety of the child or the mother, and may establish parenting time in an order for protection proceeding “on a basis which gives primary consideration to the safety of the victim and the children.” Id.

If a ROP father is allowed to use an order for protection proceeding to effectuate his right to parenting time, a ROP father could effectuate his right to parenting time more quickly and by making a much lower showing than a ROP father who has petitioned for parenting time under chapter 518. And he would be able to do this solely because of the fact that he has committed acts of domestic violence. It is contrary to the purpose of the Domestic Abuse Act to reward abusive behavior by granting abusive fathers additional rights that nonabusive fathers do not have.

When the purpose of the Domestic Abuse Act is considered, along with the consequences of adopting Garcia’s interpretation, I conclude that the legislature did not intend to allow ROP fathers to use an order for protection proceeding as an alternative route to activating their rights to parenting time. I conclude that a district court cannot award temporary parenting time in an order for protection proceeding brought against a ROP father if that father does not have a prior court order awarding him parenting time with the child who is the subject of the ROP. In the instant case, while Garcia and Beardsley signed a ROP with respect to D.G., Garcia had not petitioned a court and received an order entitling him to parenting time with D.G. prior to the district court issuing the order for protection against Garcia in March 2006. As a result, I would conclude that the district court did not have the authority to award temporary parenting time to Garcia in the March 2006 order for protection.

ANDERSON, PAUL H., Justice (dissenting).

I join in the dissent of Justice Meyer.

      . Beardsley had previously obtained an OFP against Garcia that expired on February 28, 2006.

        . We agree with the dissent that an ROP does not automatically entitle an ROP father to parenting time with his child. But there is no statutory language supporting the dissent's assertion that "the ROP statute stat[es] that a ROP father has no right to parenting time.” Rather, an ROP father may obtain the right to parenting time pursuant to an action to determine parenting time or, as in this case, in an OFP under section 518B.01, subd. 6(a)(4).

      . Prior to 1993, an unmarried father and mother could sign a document called a declaration of parentage, in which each stated that they were the biological parents of the child. Minn.Stat. § 257.34, subd. 1 (2006). By signing a declaration of parentage, an unmarried father created a presumption of paternity under the Parentage Act. Id., subd. 1(c). However, an unmarried father was still required to establish his paternity through a court action under the Parentage Act. If a father signed a declaration of parentage, the father’s right to custody and parenting time were determined as part of the proceeding under the Parentage Act. Minn.Stat. §§ 257.541, subd. 2, 257.66, subd. 3. Minnesota stopped using declarations of parentage on August 1, 1995. Minn.Stat. § 257.34, subd. 4 (2006).

      . I will refer to a recognition of parentage as a ROP and to a father who has signed a recognition of parentage as a ROP father.

      . This language indicates what can be awarded — temporary parenting time. It also indicates who can be the subject of the parenting time — the minor children of the parties. The language, however, does not indicate either who can ask for this relief or to whom this relief can be awarded. Instead, it is silent on this issue. Silence on an issue can create ambiguities in statutory language, and we have expressly noted this very fact with respect to the Domestic Abuse Act. Burkstrand, 632 N.W.2d at 210 (concluding that Domestic Abuse Act was ambiguous with respect to issue of whether a district court could issue an order for protection more than seven days after it issued an ex parte order for protection because "the statute is silent on the consequences of the district court's failure to hold a hearing within the statutory time frames"); see also MBNA Am. Bank, N.A. v. Comm’r of Revenue, 694 N.W.2d 778, 782 (Minn.2005) (finding silence on a particular issue created ambiguity in the statute). This language is also different from other clauses of subdivision 6 of Minn.Stat. § 518B.01, which outline the relief that may be ordered by the district court and which explicitly state who is entitled to the relief or to whom the relief can apply. Compare Minn.Stat. § 518B.01, subd. 6(1), (2), (3), (7), (9), (10) (indicating that the abusing party may be ordered to do certain things or prevented from doing others); id.., subd. 6(6) (allowing the court to order the parties to go to counseling or other social services, "upon request of the petitioner”); id., subd. 6(8) (allowing the court to "restrain one or both parties” from transferring, encumbering, concealing, or disposing of property). Given the fact that the legislature has expressly stated in some instances that relief can be awarded to the victim of domestic violence and in others that it can apply to both parties, I cannot assume that the legislature intended to give the district court the authority to award temporary parenting time to any respondent who has fathered a child with the petitioner in an order for protection proceeding. See ILHC of Eagan, LLC v. County of Dakota, 693 N.W.2d 412, 419 (Minn. 2005) (noting that a provision in a statute must be read in context with other provisions of the same statute in order to determine meaning).

      . See Act of June 30, 2001, ch. 8, art. 10, § 1, 2001 Minn. Laws 1st Spec. Sess.1943, 2092 (codified at Minn.Stat. § 518B.01, subd. 2(a)(3)) (expanding the definition of domestic abuse to include interference with a 911 call); Act of May 25, 1995, ch. 226, art. 7, § 3, 1995 Minn. Laws 1753, 1881-82 (codified at Minn. Stat. § 518B.01, subds. 2(b)(7) & 4(a)) (expanding definition of “family or household member” to include persons involved in a significant romantic or sexual relationship and allowing an order for protection to be brought by a family or household member for another family or household member, a guardian, or a minor age 16 or older on his or her own behalf); Act of May 20, 1993, ch. 326, art. 2, § 4, 1993 Minn. Laws 1974, 2000 (codified at Minn.Stat. § 518B.01, subd. 2(a)(ii)) (expanding definition of “domestic abuse” to include terroristic threats against any family or household member); Act of June 1, 1991, ch. 271, § 7, 1991 Minn. Laws 1242, 1246 (codified at Minn.Stat. § 518B.02, subd. 2(b)) (expanding definition of "family or household member” to include a pregnant woman who alleges the respondent is the father); Act of Apr. 22, 1983, ch. 52, § 1, 1983 Minn. Laws 176, 176 (codified at Minn. Stat. § 518B.01, subd. 2(b)(1), (4) & (5)) (expanding the definition of “family or household member” to include former spouses, persons who used to live together, and persons who have a child in common).

      . See Act of Apr. 26, 2004, ch. 164, § 1, 2004 Minn. Laws 215, 215 (codified at Minn.Stat. § 518B.01, subd. 6a(4)) (making abusive party's release from incarceration a basis for extending an existing order for protection); Act of Apr. 2, 1996, ch. 408, art. 4, § 1, 1996 Minn. Laws 605, 652-54 (codified at Minn. Stat. § 518B.01, subd. 14(h)) (imposing restrictions on a person's right to carry firearms when a firearm is used in connection with a violation of an order for protection); Act of May 25, 1995, ch. 226, art. 7, § 5, 1995 Minn. Laws 1753, 1883 (codified at Minn.Stat. § 518B.01, subd. 6a) (lowering standard of proof required for extensions of existing orders and obtaining a subsequent order); Act of May 10, 1994, ch. 636, art. 2, § 11, 1994 Minn. Laws 2193, 2193-95 (codified at Minn. Stat. § 518B.01, subd. 6(a)(3)) (authorizing a court to exclude abusive party from a reasonable area surrounding victim's dwelling or residence); Act of May 3, 1990, ch. 583, §§ 1, 2, 1990 Minn. Laws 2198, 2198-2200 (codified at Minn.Stat. § 518B.01, subds. 6(a)(8), 7(a)(3)) (authorizing court to exclude abusive party from victim’s place of employment); Act of May 23, 1985, ch. 195, § 3, 1985 Minn. Laws 609, 610-11 (codified at Minn.Stat. § 518B.01, subds. 6(c), (h)) (making primary consideration for award of custody or parenting time safety of the victim and the children and allowing for duration of protection orders beyond one year); Act of May 28, 1981, ch. 273, § 2, 1981 Minn. Laws 1236, 1236-37 (codified at Minn.Stat. § 518B.01, subd. 6(f)) (authorizing court to order abusive party to participate in treatment or counseling services).


source: Caselaw Access Project

author: ANDERSON, G. BARRY, Justice.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Charles Howard McCRAY, II, Respondent.
    No. A06-857.
    Supreme Court of Minnesota.
    July 31, 2008.

      John B. Galus, Asst. Atty. General, St. Paul, Janelle Prokopec Kendall, Stearns County Atty., St. Cloud, for Appellant.
    Mark D. Nyvold, St. Paul, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

Respondent Charles Howard McCray II was charged with first- and second-degree criminal sexual conduct against T.C., the 7-year-old daughter of his girlfriend. But because T.C.’s trial testimony was inconsistent with her pretrial statement regarding penetration, the district court dismissed the first-degree charge. Before closing arguments, the court instructed the jury that the penetration matter had been resolved and that “[njeither the attorneys nor I will address these matters further.” During the State’s closing argument, however, the prosecutor made several refer-enees to T.C.’s pretrial statement regarding penetration. McCray argued that these references violated the court’s instruction. Although the court did not find that the prosecutor violated the court’s order or otherwise committed misconduct, the court nonetheless permitted McCray to address matters pertaining to penetration as a “cure” for any confusion that had been created.

The court of appeals held that the references to penetration during the State’s closing argument constituted prosecutorial misconduct, and that this misconduct warranted a new trial. State v. McCray, No. A06-857, 2007 WL 2034268, at *1-2 (Minn.App. July 17, 2007). We conclude that the prosecutor did not violate the district court’s instruction or otherwise engage in misconduct in this case. Accordingly, we reverse.

In September 2005, McCray was living with his girlfriend, S.C., and her three children. McCray took care of the children while S.C. was working and attending nursing school. Because S.C. had nursing clinicals on Thursday and Friday mornings, McCray was responsible for getting the children ready for school on those days. At some point during September, S.C. noticed changes in the behavior of T.C., her 7-year-old daughter, and began to suspect that T.C. had been sexually abused. On September 24, S.C. asked T.C. whether anyone had ever touched her; T.C. answered, “Yes.” During the ensuing conversation, T.C. told S.C. that near the beginning of the school year, McCray asked her to come downstairs to his bedroom, take off her nightgown, and crawl into bed with him. T.C. told S.C. that McCray “touched her privates, and then he put her on top of him, and he was moving her back and forth.” T.C. repeated this account during an interview with a police officer later that night. She also informed the officer that when McCray touched her private parts, he had his hand under her underwear and that “[h]e took his hands and put it inside of me.” In response to a later question from the officer, T.C. agreed that McCray had “put his finger inside [her] private part.” Although T.C. could not remember the exact date of the incident, she stated that it was “[n]ot so long ago,” it was in the morning on a school day, and her mom was at work.

Based on T.C.’s allegations, McCray was charged with one count of first-degree criminal sexual conduct pursuant to Minn. Stat. § 609.342, subd. 1(a) (2006), and one count of second-degree criminal sexual conduct pursuant to Minn.Stat. § 609.343, subd. 1(a) (2006). Both offenses involve sexual conduct in which “the complainant is under 13 years of age and the actor is more than 36 months older than the complainant,” but the first-degree offense requires “sexual penetration” while the lesser second-degree offense requires “sexual contact.” Compare Minn.Stat. § 609.342, subd. 1(a), with Minn.Stat. § 609.343, subd. 1(a).

At McCray’s trial, a video recording of T.C.’s police interview — during which she indicated that McCray had penetrated her — was introduced into evidence and played for the jury. T.C. also testified that McCray had brought her downstairs, told her to take off her pajamas, put two fingers underneath her underwear, and touched her private part. But when the prosecutor asked whether McCray’s fingers touched the inside or outside of her private part, T.C. testified, “They stayed outside.” Thus, although T.C.’s trial testimony was generally consistent with her pretrial statement, her testimony was inconsistent with respect to penetration.

Based on this inconsistency, McCray moved for a directed verdict on the first-degree criminal sexual conduct charge. The district court found that the only evidence of penetration was T.C.’s pretrial police interview, which had been contradicted by her trial testimony, and concluded that the first-degree charge should be dismissed on two alternative grounds: (1) “the State failed to meet its burden under Ortlepp and (2) T.C.’s contradictory statements with respect to penetration “would not sustain a guilty verdict as a matter of law.”

Before closing arguments, the prosecutor asked the district court to instruct both attorneys not to address the dismissal of the penetration charge. The prosecutor indicated, however, that both attorneys should be free to address the inconsistencies between T.C.’s pretrial statement and trial testimony with respect to penetration. Defense counsel contended that he should be allowed to argue that the penetration charge was dismissed because the State failed to meet its evidentiary burden on that charge. In response to these arguments, the court stated:

I will simply tell them that penetration is no longer an issue in the case, that I have resolved that issue as a matter of law, and they are not to speculate about the reasons for my having done so, but that neither party will be needing to prove or disprove that element.

After further discussion about whether the jury should be told that the penetration charge was dismissed,- the court stated:

Here is what we will do: I will craft an instruction previous to argument that will inform the jury that maybe Count 1 — maybe I will just mention penetration is no longer going to be presented to them for consideration as a consequence of decisions I had made which turn on legal issues.
If I do that, then I would anticipate that there would be no argument as to the facts or the law as to Count 1. Okay.
⅜ ⅜: ⅜ ⅜
And so I will give them an instruction which indicates that Count 1 has been dismissed as a matter — for reasons of— by myself for reasons of law, but they are to proceed forward and deliberate on Count 2, and that the attorneys will argue their respective positions relative to that count.

The court ultimately instructed the jury as follows:

At the beginning of the trial, you were advised that two counts would be given to you for decision. As a matter of law, I have resolved one of these matters: The issue relating to penetration. You are instructed that you are not to speculate about the reasons for this legal determination and that it was made as a pure determination of law and that it is irrelevant to your eventual decision relating to the issues presented to you in this case. Neither the attorneys nor I will address these matters further, and that decision does not concern issues to be determined during your deliberations.

During the State’s closing argument, the prosecutor made several references to T.C.’s pretrial statement to the police officer about penetration. First, while summarizing the evidence presented at trial, the prosecutor recounted T.C.’s interview with the officer, including her statement that ‘“[Charles] took his hands and [he] put it inside of me.’ ” Later, while describing T.C.’s trial testimony, the prosecutor again addressed penetration while discussing the inconsistency between the testimony and the pretrial statement:

And then we get to the point where she was asked, “Could you tell me how he touched your private parts? Would you describe that for me?”
She talked about two fingers, but that was as far as she could go. She couldn’t talk about what happened after that.
In her [statement] to [the police officer], it was at that point where the two fingers — she was talking about penetration. Well, she couldn’t tell you about penetration. But I submit to you that that is not to say that it did not occur. And, in fact, the expert, the expert testified that recantation is not inconsistent with a child sexual abuse.
You saw her when she was talking about what happened to her. The fact that she had difficulty with that fact, with talking about it, does not mean that everything else she said was a lie. Does that make[] sense? Does that make sense because she couldn’t talk about that, that everything else she said up to that point was not truthful? Or is there a possibility that — I mean, you certainly have the opportunity to apply your own determinations of credibility. That is your job as the jury, and the Court will explain that to you when he instructs you on the law.
But your job will be to determine credibility. Your job is to make all the judgments in this case. And you can make a judgment that perhaps [the police officer] got it wrong. * * * Perhaps she was never talking about penetration at all in her initial disclosure.
I am not submitting to you that that is the right decision, in any way. But, certainly, it can’t mean that everything else she had said is a lie because she simply could not talk about that moment.

Finally, the prosecutor addressed T.C.’s pretrial statement about penetration while discussing her credibility as a witness:

In the safety of the CornerHouse Interview, in the safety of [the police officer’s] small office or small room, in which he conducted that interview, you saw her able to talk about what had happened.
At that moment, I submit that the most credible evidence exists about what happened. Here in this courtroom, before a roomful of strangers, she did the best she could. Don’t blame her for what she couldn’t say. If you are going to blame someone, blame me for not asking the right questions, for not knowing how to communicate with her.
But she did the best she could. She provided details in her disclosure which were consistent with her understanding and in age-appropriate language, and she also provided an interesting demonstration with the dolls, especially in the interview with [the police officer]. You saw how she put the doll and straddled it sitting upwards, and then she immediately placed hands holding the doll and demonstrated the movement back and forth. I submit that that is a high level of detail — a very detailed disclosure.
Does it make common sense that that is something that she would make up? Is that something that she would know about? Does she have a motive to he?

After the State’s closing argument, McCray argued that the prosecutor’s discussion of penetration violated the court’s instruction. The prosecutor explained that he understood the instruction to prohibit only discussion of the dismissal of the penetration charge, not the inconsistency between T.C.’s pretrial statement and her trial testimony. In response to the parties’ arguments, the court stated:

Part of the confusion could be the result of the instruction that I crafted because, in candor, I was trying to use language that was as neutral as I possibly could.
I hear [the prosecutor’s] point about the motion that he raised and the reason for raising it. I can appreciate why there could have been some misapprehension between his motion and the instruction as I ultimately delivered it, and we didn’t talk about it. I crafted it and delivered it.

Based on the blackboard notes prepared by defense counsel, the court observed that it appeared that defense counsel intended to address “hymens and bruising and things like that which all go to penetration” during his closing argument. The court concluded that “the cure for whatever dilemma we have that I created, or that counsel have created, or that we created in combination, is to simply proceed to let [defense counsel] argue based upon the information that he has put in the back of the blackboard.” Defense counsel asked whether it was also fair for him to argue as follows: “[Penetration] doesn’t even matter any more. You can’t even consider that. That is not before you.” The court indicated that this argument would be permissible. Finally, after the prosecutor again explained that he never intended to prevent all references to penetration, the court stated, “My fault. You asked for one thing, specifically, and I took it to the next step. My fault. Not yours. I wasn’t clear enough.”

The jury subsequently found McCray guilty of second-degree criminal sexual conduct. McCray appealed, arguing that the prosecutor had committed prosecutorial misconduct by discussing penetration during his closing argument. Without analyzing either the district court’s instruction or the prosecutor’s closing argument, the court of appeals concluded that “[t]he prosecutor’s comments * * * violated the district court’s instruction, were highly prejudicial, and unfairly permeated the trial.” McCray, 2007 WL 2034268, at *2. The court of appeals concluded that we had recently “streamlined” the analysis of objected-to prosecutorial misconduct as follows: “ ‘If the state has engaged in misconduct, the defendant will not be granted a new trial if the misconduct is harmless beyond a reasonable doubt. We will find an error to be harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.’ ” Id. at *1,*2 (quoting State v. Mayhom, 720 N.W.2d 776, 785 (Minn.2006) (quoting State v. Swanson, 707 N.W.2d 645, 658 (Minn.2006))). The court held that McCray’s conviction must be reversed because it was not “surely unattributable” to the prosecutorial misconduct. Id. at *2.

A prosecutor engages in prosecu-torial misconduct when he violates “clear or established standards of conduct, e.g., rules, laws, orders by a district court, or clear commands in this state’s case law.” State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). When assessing alleged prosecuto-rial misconduct during a closing argument, “we look to the closing argument as a whole, rather than to selected phrases and remarks.” Ture v. State, 681 N.W.2d 9,19 (Minn.2004). The determination of the propriety of a prosecutor’s closing argument is “ ‘within the sound discretion of the trial court.’ ” State v. Ray, 659 N.W.2d 736, 746 (Minn.2003) (quoting State v. Parker, 353 N.W.2d 122, 127 (Minn.1984)).

I.

McCray first claims that the prosecutor’s references to T.C.’s pretrial statement alleging penetration violated the district court’s instruction pertaining to the dismissal of the first-degree criminal sexual conduct offense. Before closing arguments, the district court instructed the jury as follows:

At the beginning of the trial, you were advised that two counts would be given to you for decision. As a matter of law, I have resolved one of these matters: The issue relating to penetration. You are instructed that you are not to speculate about the reasons for this legal determination and that it was made as a pure determination of law and that it is irrelevant to your eventual decision relating to the issues presented to you in this case. Neither the attorneys nor I will address these matters further, and that decision does not concern issues to be determined during your deliberations.

Although the court’s statement that “[n]either the attorneys nor I will address these matters further” could be interpreted to prohibit all references to the alleged penetration, that is not the only reasonable interpretation. (Emphasis added.) At the beginning of the instruction, the court stated, “At the beginning of the trial, you were advised that two counts would be given to you for decision. As a matter of law, I have resolved one of these matters: The issue relating to penetration.” Thus, the court’s first use of the term “these matters” clearly occurred in the context of the court’s dismissal of the first-degree charge and did not relate to the act of penetration generally. The court’s subsequent use of the same term could reasonably be interpreted to have the same meaning.

The discussion that preceded the district court’s instruction suggests that the district court only intended to prohibit argument pertaining to the dismissal of the first-degree charge rather than to penetration generally. This discussion began when the prosecutor asked the court to instruct both attorneys “that it would be inappropriate to refer to the Court’s legal determination to strike Count 1 from the Complaint.” In making this request, the prosecutor specifically indicated that both sides should remain free to address the inconsistency between T.C.’s pretrial statement and her trial testimony. When challenging the prosecutor’s requested instruction, defense counsel argued that the jury should be informed that the charge was dismissed because the State failed to meet its evidentiary burden — he did not challenge the prosecutor’s assertion that the attorneys should be permitted to address the inconsistency between T.C.’s statements. Finally, when describing the instruction that it would give, the district court stated that “[it] would anticipate that there would be no argument as to the facts or the law as to Count 1 ” and that it would instruct the jury “that the attorneys will argue their respective positions relative to [Count 2].” (Emphasis added.) We have recognized that “the state is free to argue that particular witnesses were or were not credible.” Fields, 730 N.W.2d at 785; see also State v. Googins, 255 N.W.2d 805, 806 (Minn.1977). T.C.’s credibility as a witness remained at issue with respect to the second-degree charge, and the inconsistency between her pretrial statement and her trial testimony relates to that credibility. Based on these circumstances, we conclude that the district court’s instruction did not prohibit all references to the evidence of penetration during closing arguments, but instead only prohibited arguments “as to the facts or the law” relative to the dismissed first-degree criminal sexual conduct charge.

Looking at the prosecutor’s closing argument, some statements, if read in isolation, could be construed as an argument that penetration did occur and that McCray was therefore guilty of the dismissed first-degree offense. But these statements were made in the context of the prosecutor’s broader discussion about T.C.’s credibility as a witness. Before addressing T.C.’s pretrial statement about penetration, the prosecutor outlined the numerous consistencies between the other facts in her pretrial statement and her trial testimony. Moreover, immediately after suggesting that T.C.’s inability to testify about penetration does not mean “that it did not occur,” the prosecutor stated, “The fact that she had difficulty with that fact, with talking about it, does not mean that everything else she said was a lie. Does that make sense? Does that make sense because she couldn’t talk about that, that everything else she said up to that point was not truthful?” Finally, in his discussion of T.C.’s pretrial statement, the prosecutor argued that the detail of the statement suggests its accuracy and asked the jury to consider whether “that [is] something that she would know about” and whether she had a motive to lie. Thus, looking as we must at the closing argument as a whole, we conclude that the prosecutor’s references to penetration were focused on T.C.’s credibility as a witness and were therefore related to the facts and the law of the second-degree criminal sexual conduct charge, not the dismissed first-degree charge.

As noted earlier, the determination of the propriety of a prosecutor’s closing argument is “ “within the sound discretion of the trial court.’ ” Ray, 659 N.W.2d at 746 (quoting Parker, 353 N.W.2d at 127). Although the district court gave McCray a “cure” by allowing him to argue issues relating to penetration and to state that the question of penetration was no longer before the jury, this “cure” was not specifically for prosecutorial misconduct, but rather “for whatever dilemma * * * that [the court] created, or that counsel have created, or that we created in combination.” The court also stated that it “appreciate[d] why there could have been some misapprehension between [the prosecutor’s] motion and the instruction as [the court] ultimately delivered it.” Finally, and perhaps most telling, the court itself assumed responsibility for the confusion and indicated that the prosecutor was not at fault. Thus, although the district court failed to make any specific findings relative to whether the prosecutor violated its order, the record in this case suggests that the court concluded that there was good faith confusion about its instruction and that the prosecutor did not clearly and intentionally violate it.

For the foregoing reasons, we hold that the prosecutor did not violate the district court’s instruction during the State’s closing argument.

II.

McCray also argues that the prosecutor’s references to penetration during closing argument violated established professional standards adopted by the American Bar Association (ABA). We have previously looked to ABA standards as a model when evaluating claims of prosecutorial misconduct. State v. Johnson, 616 N.W.2d 720, 729 (Minn.2000); see also State v. Ramey, 721 N.W.2d 294, 300-01 (Minn. 2006). The ABA Standards for Criminal Justice provide: “In closing argument to the jury, the prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw.” ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Standard 3-5.8(a) (3d ed.1993).

McCray argues that “the prosecutor drew inferences from evidence not in the record, because the [district] court’s ruling and instruction had effectively removed T.C.’s statements about penetration from the record.” But there is no indication in the record that the court either struck the evidence of penetration from the record or instructed the jury to disregard this evidence. Moreover, T.C.’s inconsistent statements regarding penetration were relevant to her credibility as a witness with respect to the remaining second-degree charge, and the prosecutor’s argument specifically focused on this aspect of the evidence pertaining to penetration. Thus, we conclude that the prosecutor did not draw inferences from evidence not in the record during closing argument.

McCray also argues that “the prosecutor misled the jurors by trying to convince them that penetration had occurred, since the court’s dismissal of the penetration count amounted to a finding that T.C. was not credible on this issue.” But as noted earlier, when viewed in the context of the entire closing argument, the prosecutor’s statements about penetration addressed T.C.’s credibility as a witness. The assessment of a witness’s credibility “is exclusively the province of the jury.” Francis v. State, 729 N.W.2d 584, 589 (Minn.2007). The district court’s dismissal of the first-degree charge was not a finding that T.C.’s testimony was not credible, but rather was a legal conclusion that the state’s evidence was not sufficient to prove penetration beyond a reasonable doubt. We therefore conclude that the prosecutor did not mislead the jury by suggesting to them that penetration had occurred. Accordingly, we conclude that McCray’s assertion that the prosecutor violated the ABA Standards for Criminal Justice is wholly without merit.

Because the prosecutor did not violate either the district court’s order or the ABA Standards for Criminal Justice, we conclude that the prosecutor did not violate any clear or established standards of conduct. We therefore hold that the prosecutor did not commit prosecutorial misconduct by discussing T.C.’s pretrial statement about penetration during the State’s closing argument. Accordingly, we reverse.

MAGNUSON, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . Although the district court’s decision to dismiss the first-degree criminal sexual conduct charge is not before us on this appeal, we note that our decision in State v. Ortlepp, 363 N.W.2d 39, 44 (Minn.1985), addressed the admissibility of a prior inconsistent statement under the residual "catch-all” exception to the hearsay rule. See Minn. R. Evid. 807. But the video recording of T.C.'s police interview appears to have been admitted as substantive evidence pursuant to Minn.Stat. § 595.02 (2004). Because T.C.’s prior statement alleging penetration was not admitted under the residual hearsay exception, it is unclear how the state’s failure to satisfy the Ortlepp factors could impact the decision of whether to dismiss the first-degree penetration charge.

      . Based on our decisions in Mayhom, 720 N.W.2d at 785, and Swanson, 707 N.W.2d at 658, the court of appeals applied a "streamlined” approach in determining that a new trial was warranted in this case. See McCray, 2007 WL 2034268, at *1-2. But in two cases decided after Mayhom and Swanson, we expressly noted that the continued viability of the two-tiered approach set forth in State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974), for cases involving objected-to prosecutorial misconduct remains to be decided. State v. Wren, 738 N.W.2d 378, 390 n. 9, 394 n. 13 (Minn.2007); Ramey, 721 N.W.2d at 299 n. 4. Because we conclude that there was no prosecutorial misconduct in this case, we do not decide whether the Caron analysis remains viable or whether a different analysis applies in determining whether objected-to prosecutorial misconduct warrants a new trial. As in Wren and Ramey, we leave that question for another day.


author: WRIGHT, Judge.

text:
    In the Matter of the Disability Earnings Offset of Mylan MASSON.
    No. A07-1571.
    Court of Appeals of Minnesota.
    July 29, 2008.

      William A. Cumming, Hessian & McKa-sy, Minneapolis, MN, for relator Mylan Masson.
    Lori Swanson, Attorney General, Rory H. Foley, Assistant Attorney General, St. Paul, MN, for respondent Public Employees Retirement Association.
    Considered and decided by MINGE, Presiding Judge; KALITOWSKI, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Relator challenges the decision of the board of trustees of respondent Public Employees Retirement Association of Minnesota to deny relator’s request to exclude her earnings from her preexisting employment as a community-college administrator when calculating the “reemployment” offset to her disability benefit pursuant to Minn.Stat. § 353.656, subd. 4(b) (2006). We affirm.

FACTS

In 1991, relator Mylan Masson was hired as a full-time police officer with the Minneapolis Park and Recreation Board (the park board). Approximately three years later, Masson began a second full-time position as the assistant director of the criminal justice and law enforcement program at Minneapolis Community and Technical College (MCTC).

On July 27, 2001, Masson was injured in a motor-vehicle accident while on duty as a police officer. Masson’s employment with the park board was terminated because the injuries Masson sustained in the accident resulted in a long-term disability that interfered with her ability to perform her duties as a police officer. But Masson’s disability did not interfere with her ability to perform the duties of her position with MCTC, and she experienced no break in her employment with MCTC.

After the disability-related termination, Masson applied to Public Employees Retirement Association of Minnesota (PERA) for line-of-duty disability benefits. See Minn.Stat. § 353.656, subd. 1(a)(2) (2006) (providing for payment of disability benefits to members of PERA police and fire plan who are injured in line of duty). PERA approved Masson’s request, and she began receiving disability benefits in May 2004.

PERA subsequently learned of Masson’s employment with MCTC. In 2006, PERA requested information from Masson regarding her “reemployment earnings.” Although Masson provided information regarding her earnings from MCTC, she maintained that these earnings were not from “reemployment” because she was employed by MCTC prior to the disability. In mid-2006, PERA also learned that Mas-son had received a payment of $39,000 for workers’ compensation benefits. In November 2006, based on the information it gathered regarding Masson’s earnings from MCTC and her workers’ compensation benefits, PERA offset Masson’s disability benefits and advised her that she had been overpaid $12,701.72 during the period between May 2004 and November 2006. PERA notified Masson that 25 percent of her monthly benefit payment would be withheld until it recovered the overpayment.

Masson objected to PERA offsetting her disability benefits based on her MCTC earnings, arguing that her MCTC position was not “reemployment” within the meaning of Minn.Stat. § 353.656, subd. 4(b) (2006). The PERA board of trustees reviewed Masson’s objection and referred the matter for a fact-finding conference before an administrative law judge (ALJ). After the conference, the ALJ issued findings of fact, conclusions of law, and a recommendation that the PERA board of trustees deny Masson’s objection and request for recalculation of her police and fire plan line-of-duty disability benefits. The PERA board of trustees adopted the ALJ’s findings, conclusions, and recommendation, and it denied Masson’s request to exclude her MCTC earnings when calculating the “reemployment” offset to her disability benefit. This certiorari appeal followed.

ISSUE

Did PERA err by concluding that relator’s compensation for preexisting employment was subject to the offset provisions of MinmStat. § 353.656, subd. 4(b) (2006)?

ANALYSIS

For the purposes of appellate review, a public-retirement-fund board, like the PERA board of trustees, is analogous to an administrative agency. Axelson v. Minneapolis Teachers’ Ret. Fund Ass’n, 544 N.W.2d 297, 299 (Minn.1996). On cer-tiorari appeal from a quasi-judicial agency decision that is not subject to the administrative procedures act, we review whether the determination was arbitrary, oppressive, unreasonable, fraudulent, under erroneous theory of law, or without any evidence to support it. Stang v. Minn. Teachers Ret. Ass’n Bd. of Trs., 566 N.W.2d 345, 347 (Minn.App.1997). Although we afford an administrative agency deference within the agency’s area of expertise, we do not defer to an agency’s decision with respect to questions of law. Id. at 347-48. Statutory interpretation presents a question of law, which we review de novo. In re Application for PERA Police & Fire Plan Line of Duty Disability Benefits of Brittain, 724 N.W.2d 512, 516 (Minn.2006).

When interpreting a statute, we must “ascertain and effectuate the intention of the legislature.” MinmStat. § 645.16 (2006). In doing so, we first determine whether the statute’s language, on its face, is ambiguous. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). A statute’s language is ambiguous when its language is subject to more than one reasonable interpretation. Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn. 1999). We construe words and phrases according to their plain and ordinary meaning. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980); see also MinmStat. § 645.08(1) (2006) (providing that words are construed according to their common usage). When the legislature’s intent is clearly discernible from a statute’s plain and unambiguous language, we interpret the language according to its plain meaning without resorting to other principles of statutory construction. State v. Anderson, 683 N.W.2d 818, 821 (Minn.2004).

PERA administers several disability-benefit plans for public employees, including the “police and fire plan” (the plan), which provides for payment of disability benefits to police officers and firefighters who, like Masson, become occupationally disabled because of injuries sustained in the line of duty. See Minn. Stat. §§ 353.64 (defining membership qualifications for the plan), 353.656, subd. 1(a)(2) (providing for line-of-duty disability benefits for members of the plan) (2006). But section 353.656, subdivision 4, sets forth a mandatory limitation on disability benefits:

If a disabled member [of the plan] resumes a gainful occupation with earnings that, when added to the normal disability benefit, and workers’ compensation benefit if applicable, exceed the disabilitant reemployment earnings limit, the amount of the disability benefit must be reduced as provided in this paragraph. The disabilitant reemployment earnings limit is the greater of:
(1) the salary earned at the date of disability; or
(2) 125 percent of the base salary currently paid by the employing governmental subdivision for similar positions.
The disability benefit must be reduced by one dollar for each three dollars by which the total amount of the current disability benefit, any workers’ compensation benefits if applicable, and actual earnings exceed the greater disabilitant reemployment earnings limit. In no event may the disability benefit as adjusted under this subdivision exceed the disability benefit originally allowed.

Minn.Stat. § 353.656, subd. 4(b) (2006). The crux of the parties’ dispute is the meaning of the term “reemployment” in section 353.656, subdivision 4(b).

Although they disagree as to its meaning, both parties argue that the language of subdivision 4(b) is unambiguous. The statute does not define the word “reemployment”; nor does the word “reemployment” have an ordinary or common meaning, because its usage is limited. And there is no caselaw defining “reemployment” in this context. But as both parties implicitly acknowledge, “reemployment” cannot comprise returning to a position covered by the plan. Id., subd. 5a (2006) (requiring cessation of benefits when member returns to full-time or part-time employment in position covered by the plan).

Masson argues that “reemployment” refers solely to employment commenced after disability. Her interpretation reasonably comports with the common meaning of the prefix “re-” and the statutory phrase “resumes a gainful occupation.” See The American Heritage Dictionary 1503 (3d ed. 1992) (defining “re-” as again or anew). PERA argues that “reemployment” refers to the resumption of employment after a disabling injury, which includes returning to preexisting employment or starting new employment. In support of its argument, PERA emphasizes the statutory prerequisites to payment of benefits. See Minn.Stat. § 353.656, subd. 4(a) (requiring impairment of member’s salary in position covered by the plan and exhaustion of member’s annual leave and sick leave before member is entitled to disability benefits). Because both parties’ interpretations of the statute are reasonable, we conclude that Minn.Stat. § 353.656, subd. 4(b), is ambiguous.

To ascertain and effectuate the legislature’s intent when the words of a statute are susceptible of more than one reasonable interpretation, we examine several factors, including

(1) the occasion and necessity for the law;
(2) the circumstances under which it was enacted;
(3) the mischief to be remedied;
(4) the object to be attained;
(5) the former law, if any, including other laws upon the same or similar subjects;
(6) the consequences of a particular interpretation;
(7) the contemporaneous legislative history; and
(8) legislative and administrative interpretations of the statute.

MinmStat. § 645.16. We presume that the legislature intends to favor the public interest as against any private interest. Minn.Stat. § 645.17(5) (2006). Preservation of public funds is in the public interest. See Lolling v. Midwest Patrol, 545 N.W.2d 372, 376 (Minn.1996) (relying on section 645.17(5) in holding that public interest favored statutory interpretation permitting Department of Economic Security to consider employer’s untimely objection to distribution of “reemployment insurance benefits”).

The “police and fire fund” (the fund) is the source from which PERA pays disability benefits to members of the plan. Minn. Stat. § 353.65 (2006). The fund is established pursuant to a public policy and endowed with public funds. Minn.Stat. §§ 353.63 (articulating pertinent public policy that “special consideration should be given to employees of governmental subdivisions who devote their time and skills to protecting the property and personal safety of others”), 353.28, subd. 1 (requiring employers of members of the plan to pay majority of contributions to the fund, which they are required to pay “out of moneys collected from taxes or other revenue”) (2006). The fund, therefore, is a public fund, and its preservation is in the public interest. Cf Jackson v. Minneapolis-Honeywell Regulator Co., 234 Minn. 52, 55, 47 N.W.2d 449, 451 (1951) (emphasizing that unemployment-benefit payments are “not made to discharge any liability or obligation of [the employer], but to carry out a policy of social betterment for the benefit of the entire state”); Lolling, 545 N.W.2d at 376 (citing Jackson for proposition that unemployment benefits are “state funds” and, therefore, section 645.17(5) raises presumption that legislature intended to limit their expenditure). Indeed, the legislature recognized the public interest in preserving the fund by explicitly framing section 353.656, subdivision 4, as a mandatory “limitation on disability benefit payments.”

We decline to embrace Masson’s interpretation of the statute because, although facially reasonable, it leads to absurd results. Minn.Stat. § 645.17(1) (2006). For example, Masson concedes that, under her interpretation of the statute, had she terminated her employment with MCTC the day before her disabling injury but returned to MCTC in the same capacity the day after the injury, that “new” employment would be “reemployment” subject to the offset provisions of section 353.656, subdivision 4(b). By comparison, however, had Masson worked on only a limited basis for MCTC before her disability but increased her hours substantially after becoming disabled, that employment would not be considered “reemployment” and, therefore, all earnings from the MCTC employment would be excluded from the offset calculation, regardless of how significant they were. And if Masson wished to leave MCTC for alternate employment, even for good cause, her interpretation of the statute would force her to choose between subjecting the benefit to a possible offset because of new employment or staying with the preexisting employment so as to avoid the offset.

To avoid such absurd results and to fairly administer section 353.656, subdivision 4(b), PERA would have to examine the facts of each member’s postdisability earnings to determine whether they result from uninterrupted preexisting employment. This could result in a substantial administrative burden on PERA and, by extension, additional administrative costs. See Minn.Stat. § 645.16(6) (permitting examination of consequences of particular interpretation). PERA’s interpretation of the statute, by contrast, provides a reasonable, uniform application of the statute that is consistent with the public interest in preserving PERA disability benefits for all qualified members.

The legislative history with respect to section 353.656, subdivision 4(b), informs our analysis. See Minn.Stat. § 645.16(7)-(8) (permitting consideration of legislative history and legislative interpretation of ambiguous statutory language). Specifically, in 1994, the legislature amended section 353.656, subdivision 4, creating subpart (b) and altering the previous limitation rule. 1994 Minn. Laws ch. 463, § 1, at 311-12. The legislative commission on pensions and retirement (the commission) reviewed the two bills that led to the statutory amendment. In a report to the commission regarding the bills, the commission’s deputy director explained that “[fincóme replacement is the concept underlying the benefits, both for retirement and disability.” Deputy Director of Minn. Legis. Comm’n on Pensions & Ret., Rep. on S.F. No. 793 & H.F. No. 985, at 1 (Mar. 2, 1994) (hereinafter Comm’n Rep.). The disability benefits are “intended to replace a portion of an injured worker’s salary” to remedy the destruction of that worker’s earning capacity. Id. (emphasis added). Thus, this expression of legislative intent indicates that the object of the benefit is to effectively insure a certain minimum level of income for all qualifying members. See Minn.Stat. § 645.16(8) (permitting consideration of legislative interpretations of a statute to ascertain intent behind ambiguous statute).

The legislature did not directly address the unique circumstances presented here. Rather, the legislative record suggests that the legislature assumed that members of the plan would work solely in their capacity as police officers and firefighters, relying on overtime earnings to supplement their base salaries, if necessary, rather than seeking additional employment. See MinmStat. § 353.64, subds. 1, 2 (defining qualifications for membership in the plan and providing for membership of part-time police officers or firefighters only by resolution of governmental subdivision); Hearing on S.F. No. 793 Before the Senate Comm, on Gov’t Operations & Reform (Mar. 29, 1994) (discussing importance of increasing disabilitant limit to account for reliance on overtime earnings); Comm’n Rep., at 2 (same).

When an occupationally disabled member of the plan is able to continue employment that is not covered by the plan, which the member started before the date of disability, the income-replacement purpose of the statute no longer applies and the public interest in preserving the fund prevails. Indeed, the commission’s deputy director clarified that, “if a person regains sufficient earning power to replace that which was lost due to the disability, the obligation of the pension plan should be diminished and the reemployed disabilitant limit does this.” Comm’n Rep., at 2. Thus, the legislature intended section 353.656, subdivision 4(b), as a limitation on income replacement when a member is able to return to, or retain, employment not covered by the plan. Accordingly, the offset provisions of subdivision 4(b) require PERA, when calculating a member’s “reemployment” offset to disability benefits, to include any earnings from employment not covered by the plan, whether those earnings are from preexisting employment continued after disability or from employment commenced after disability.

DECISION

PERA correctly interpreted Minn.Stat. § 353.656, subd. 4 (2006), to permit inclusion of relator’s earnings from her preexisting employment as a community-college administrator when calculating the “reemployment” offset to her disability benefits.

Affirmed.

      . We refer to the 2006 version of the statute because it was the version at issue before PERA. We observe, however, that the legislature amended subdivision 4 by designating the existing text in the last paragraph of part (b) as part (c). 2007 Minn. Laws ch. 134, art. 4, § 20, at 1209-10. Since this amendment did not affect the meaning of the statute, our analysis applies equally to the amended version of the statute.

      . Moreover, a recent amendment to section 353.656, subdivision 4, specifying when line-of-duty disability benefits accrue informs our analysis of the legislature’s intent with respect to these prerequisites. See 2007 Minn. Laws ch. 134, art. 4, § 24, at 1213 (providing that disability benefit accrues when applicant "is no longer receiving any form of compensation, whether salary or paid leave”).

      . The commission is a standing legislative body, established to study and investigate state public pension plans and report its findings to the legislature. Minn.Stat. § 3.85, subds. 1-2 (2006). The commission comprises ten members — five each from the Minnesota House of Representatives and the Minnesota Senate. Id.., subd. 3 (2006).