author: ANDERSON, RUSSELL A., Justice.

text:
    James L. WILSON, Relator, v. COMMISSIONER OF REVENUE, Respondent.
    No. C9-02-362.
    Supreme Court of Minnesota.
    Feb. 20, 2003.
    Rehearing Denied April 1, 2003.

      Mark A. Pridgeon, Edina, for Relator.
    Michael A. Hatch, Minnesota Attorney General, Barry R. Greller, Assistant Attorney General, St. Paul, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

A corporate employee owed over $45,000 to the State of Minnesota in delinquent sales and income taxes. The Commissioner of Revenue (“Commissioner”) served a notice of levy on the corporate employer to collect approximately 25 percent of the employee’s biweekly wages in order to partially satisfy the employee’s delinquent tax debt. When the corporate employer willfully failed to withhold and remit from the employee’s biweekly wages the portion levied upon by the Commissioner, the Commissioner assessed the entire amount of the delinquent tax debt, plus interest, against the corporate employer. When the corporation failed to pay this assessment, the Commissioner assessed the entire amount personally against Relator James A. Wilson (“Wilson”), the corporate officer responsible for withholding and remitting the levied portion of the employee’s biweekly wages.

We are asked whether the Commissioner’s assessment of liability against Wilson violates the Excessive Fines Clauses of the Eighth Amendment to the United States Constitution and Article I, Section 5 of the Minnesota Constitution. We hold that it does, and we reverse the tax court’s decision to the contrary.

In 1994, Jay R. Hanson III (“Hanson”), while working as an independent contractor providing janitorial services to the Apple Valley Oldsmobile (“Valley Oldsmobile”) car dealership, failed to pay substantial amounts of sales and income taxes to the Commissioner. On May 12, 1994, the Commissioner served notice of levy on Valley Oldsmobile, requiring it to pay to the Commissioner all money owed to Hanson. The levy for delinquent taxes was authorized by statute and allows the Commissioner to collect from the employer 100 percent of the income owed to an independent contractor. Minn.Stat. § 571.73, subds. 1, 3 (1994).

Because Hanson was delinquent in his payment of sales tax, the Commissioner revoked Hanson’s sales tax permit in mid-June 1994, effectively terminating Hanson’s ability to work as an independent contractor. Hanson retained Wilson, a former IRS collection agent and freelance tax consultant, who attempted to negotiate a personal payment plan between Hanson and the Commissioner to replace the Commissioner’s levy on Hanson’s income from Valley Oldsmobile. The negotiations failed, and the Commissioner reminded Wilson that Hanson could not work as an independent contractor because his sales tax permit had been revoked. The Commissioner advised Hanson that the only way he could continue to work legally at Valley Oldsmobile was as an employee.

Wilson was also the owner and president of Hazardous Waste Controls of Blooming-ton, Inc. (“HWC”). HWC contracted with Valley Oldsmobile to perform janitorial services and hired Hanson as an HWC employee. As an independent contractor, Hanson had been paid $18 per hour by Valley Oldsmobile. Under the new contractual arrangement, HWC paid Hanson a wage of $6 per hour.

Wilson informed the Commissioner that Hanson was now working at Valley Oldsmobile as an employee of HWC. On September 12, 1994, the Commissioner served a notice of levy on HWC that required HWC to withhold and remit to the Commissioner 25 percent of Hanson’s biweekly wages from the date of the levy. The Commissioner was authorized to collect from the employer approximately 25 percent of the wages owed to an employee. Minn.Stat. § 571.922(1) (1994). The notice advised HWC that the levy remained in effect unless the Commissioner notified HWC otherwise and required that HWC complete the wage levy disclosure form and return it, with payment, to the Commissioner no later than September 22, 1994. HWC failed to return the wage levy disclosure form to the Commissioner with payment by September 22, 1994.

On October 4, 1994, the Commissioner reminded HWC by letter that the wage levy disclosure form with payment had not been received and warned HWC that it would be liable for $45,352.55, the total amount of Hanson’s delinquent taxes, plus interest. Wilson delivered a check in the amount of $315.08 to the Commissioner on October 12, 1994, but did not include the wage levy disclosure form that the Commissioner required with payment. Because HWC failed to return the wage levy disclosure form, the Commissioner was unable to determine how HWC calculated its payment of $315.08. Wilson claimed that HWC did not receive the initial wage levy notice with the wage levy disclosure form until after the $315.08 payment was made.

On October 19, 1994, Wilson again attempted to negotiate a personal payment plan with the Commissioner on Hanson’s behalf. The Commissioner refused to negotiate a personal payment plan and again advised Wilson that Hanson could not perform any taxable services as an independent contractor because his sales-tax permit had been revoked. Hanson continued to work as an employee of HWC until November 30, 1994. Except for the payment of $315.08 delivered October 12, 1994, HWC failed to remit any further payments and failed to return any wage levy disclosure forms to the Commissioner for the duration of Hanson’s employment.

By order of November 3,1994, the Commissioner concluded that HWC had willfully failed to remit the portion of Hanson’s biweekly wages as required by the Commissioner’s wage levy notice and assessed liability against HWC for $45,352.55. A Minnesota employer is liable for the total amount of an employee’s delinquent taxes, together with accrued interest, if, after notice, the employer willfully fails to withhold and remit to the Commissioner a portion of the delinquent tax from the employee’s wages. Minn.Stat. § 290.92, subd. 23(3) (1994). On November 4, 1994, one day after assessing liability for Hanson’s tax debt against HWC, the Commissioner assessed personal liability against Wilson, HWC’s primary corporate officer, for all of Hanson’s delinquent taxes, plus penalties and interest. The Commissioner relied upon Minn.Stat. § 270.101, subd. 1, which provides that a person who has the control or responsibility of withholding and remitting taxes to the Commissioner may be personally liable “for the payment of taxes, penalties and interest arising under * * * section! ] ⅝ * ⅜ 290.92 * ⅜ Minn.Stat. § 270.101, subd. 1 (2002).

HWC maintains that, on December 15, 1994, it mailed to the Commissioner its first wage levy disclosure form with a check in the amount of $146.90, and that this payment was in satisfaction of the wage levy on Hanson’s wages from November 16 to November 30, 1994. The Commissioner does not acknowledge receipt of either the $146.90 payment or the wage levy disclosure form, but bank records indicate that HWC’s checking account was debited in the amount of $146.90 on December 21, 1994. On March 17, 1995, HWC, through its attorneys, sent to the Commissioner five wage levy disclosure forms covering the biweekly pay periods from August 1,1994 to November 15,1994. According to HWC’s calculations on the five wage levy disclosure forms, HWC paid Hanson a total of $4,855.58 in wages during this period (excluding the wages paid from September 13 through September 30 for which $315.08 was remitted). Wilson calculated the outstanding balance owed to the Commissioner based upon the wage levy disclosure forms and enclosed a check in the amount of $578.81. The Commissioner’s office acknowledges receipt of the check in the amount of $578.81, though its records do not indicate whether that specific amount was credited toward the personal assessment against Wilson.

HWC appealed to the tax court from the Commissioner’s order of November 3,1994 assessing liability against it for the total amount of Hanson’s delinquent taxes, plus interest. Hazardous Waste Controls of Bloomington, Inc. v. Comm’r of Revenue, No. 6589, 1997 WL 158263, at *2 (Minn. T.C. Mar. 17, 1997). The tax court concluded that HWC’s failure to withhold and remit 25 percent of Hanson’s wages with a wage levy disclosure form was willful and, on March 17, 1997, directed that judgment be entered affirming the assessment. Id. HWC did not appeal from or satisfy the judgment.

Wilson subsequently appealed to the tax court from the order assessing liability against him personally, claiming, inter alia, that the personal assessment constituted an excessive fine under the United States and Minnesota Constitutions. Wilson v. Comm’r of Revenue, No. 6918, 1999 WL 285896, at *1, *3 (Minn. T.C. May 5, 1999). The tax court granted the Commissioner’s motion in limine and ruled that Wilson was barred by the doctrine of res judicata from raising the constitutional issues. Id. at 4. It found that Wilson was in privity with HWC and could have raised the constitutional issues in HWC’s earlier appeal to the tax court. Id. at *2-*3. The tax court ultimately concluded that the Commissioner was entitled to summary judgment affirming the personal assessment against Wilson. Wilson v. Comm’r of Revenue, No. 6918, 2000 WL 306677, at *1 (Minn. T.C. March 14, 2000).

On appeal, we reversed the tax court’s decision, concluding that the tax court did not have jurisdiction in HWC’s appeal to determine the constitutional issues because it failed to comply with the procedures required by our decision in Erie Mining Co. v. Comm’r of Revenue, 343 N.W.2d 261, 264 (Minn.1984). Wilson v. Comm’r of Revenue, 619 N.W.2d 194, 199 (Minn.2000). We held that Wilson’s constitutional claims were therefore not barred by res judicata. Id.

On remand, the tax court concluded that the Commissioner’s personal assessment against Wilson did not violate the Excessive Fines Clauses of the United States and Minnesota Constitutions and entered judgment accordingly. Wilson v. Comm’r of Revenue, No. 6918, 2002 WL 58477, at *4 (Minn. T.C. Jan. 8, 2002). This appeal followed.

I.

We review tax court decisions to determine: (1) whether the tax court has jurisdiction; (2) whether the tax court’s decision is supported by the evidence and is in conformity with the law; and (3) whether the tax court committed any other error of law. Skyline Pres. Found. v. County of Polk, 621 N.W.2d 727, 731 (Minn.2001); Minn.Stat. § 271.10, subd. 1 (2002). We review de novo the tax court’s conclusions of law, including its interpretation of statutes. Burlington N. R.R. v. Comm’r of Revenue, 606 N.W.2d 54, 57 (Minn.2000). Because states enjoy wide latitude in the establishment of taxation schemes, taxpayers bear a heavy burden when challenging the constitutionality of a state tax statute. Stelzner v. Comm’r of Revenue, 621 N.W.2d 736, 740 (Minn.2001).

We now turn to the issue of whether the Commissioner’s assessment of liability against Wilson for the entire amount of Hanson’s delinquent tax debt violates the Excessive Fines Clauses of the United States and Minnesota Constitutions. Because we have not previously considered an Excessive Fines Clause challenge to a civil judgment, this is an issue of first impression for our court.

The Excessive Fines Clauses of both the United States and Minnesota Constitutions are identical, each providing: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII; Minn. Const. art. I, § 5. When we interpret a clause of our state constitution that is identical to a clause of the federal constitution, a decision of the United States Supreme Court is of inherently persuasive, but not necessarily compelling, force. State v. Fuller, 374 N.W.2d 722, 727 (Minn.1985). We look to the Supreme Court for our analysis and begin with the observation that the Eighth Amendment does not limit an excessive fines challenge to criminal proceedings exclusively. Austin v. United States, 509 U.S. 602, 607-09, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993).

In Austin, the defendant pleaded guilty in state court in South Dakota to possession of cocaine with intent to distribute. Id. at 604, 113 S.Ct. 2801. After entry of the guilty plea, the federal government instituted separate in rem civil forfeiture proceedings in federal court against defendant’s mobile home, where he kept the cocaine, and against defendant’s auto body repair business, where he negotiated the sale of the cocaine. Id. at 604-05, 113 S.Ct. 2801. The forfeiture proceedings were instituted under federal law, which provided for the forfeiture of conveyances used to possess controlled substances and all real property used or intended to be used to facilitate the commission of certain controlled substance crimes described in the statute. Id. at 604 n. 1, 113 S.Ct. 2801. The federal district court entered summary judgment for the United States, and the Court of Appeals for the Eighth Circuit affirmed. Id. at 605-06, 113 S.Ct. 2801. The Supreme Court granted certio-rari to resolve the question of the applicability of the Eighth Amendment to in rem civil forfeitures and concluded that the forfeiture was subject to the limitations of the Excessive Fines Clause of the Eighth Amendment. Austin, 509 U.S. at 604, 113 S.Ct. 2801. The Court remanded to the lower court to determine whether the forfeiture was excessive. Id. at 604, 113 S.Ct. 2801.

The Austin Court considered the historical purpose behind the Eighth Amendment’s Excessive Fines Clause and concluded that its purpose was to prevent the government from abusing its power to punish. Austin, 509 U.S. at 606-07, 113 S.Ct. 2801; Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266-67, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). The Austin Court also interpreted the Excessive Fines Clause as “limiting] the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” 509 U.S. at 609-10, 113 S.Ct. 2801 (quoting Browning-Ferris, 492 U.S. at 265, 109 S.Ct. 2909) (emphasis in Austin). The Court rejected the United States’ argument that the Excessive Fines Clause cannot apply to a civil proceeding unless that proceeding imposes sanctions so punitive that safeguards that attend a criminal prosecution are required under the test enunciated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). In rejecting the Kennedy test, the Court explained:

[T]he United States’ reliance on [Kennedy] and [[U.S. v.] Ward[, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)]] is misplaced. The question in those cases was whether a nominally civil penalty should be reclassified as criminal and the safeguards that attend a criminal prosecution should be required. * * * In addressing the separate question whether punishment is being imposed, the Court has not employed the tests articulated in [Kennedy] and Ward. * * * Since in this case we deal only with the question whether the Eighth Amendment’s Excessive Fines Clause applies, we need not address the application of those tests.

Austin, 509 U.S. at 610 n. 6, 113 S.Ct. 2801 (citations omitted). Because the question in this case is similarly limited to the application of the Excessive Fines Clause, we also need not address the Kennedy test.

The Austin Court further explained that the question in an excessive fines analysis is not whether the government sanction is criminal or civil, but whether it constitutes a “punishment” under the Eighth Amendment. Austin, 509 U.S. at 610, 113 S.Ct. 2801. The Austin Court acknowledged that “ ‘the notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law.’ ” Id. (quoting United States v. Halper, 490 U.S. 435, 447-48, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989)). The Court observed that sanctions frequently serve more than one purpose and, citing its decision in Halper, concluded that “ ‘a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.’ ” Austin, 509 U.S. at 610, 113 S.Ct. 2801 (quoting Halper, 490 U.S. at 448, 109 S.Ct. 1892). We draw from the discussion in Austin that a civil sanction, such as the Commissioner’s assessment of liability in this case, is a “punishment” that implicates the Excessive Fines Clauses of the United States and Minnesota Constitutions when the sanction cannot fairly be said to serve a solely remedial purpose but rather can only be explained as serving either retribution or deterrent purposes as well.

We question whether a statutory scheme authorizing the Commissioner to assess personal liability against an employer or a corporate officer for the full amount of an employee’s delinquent taxes is entirely remedial in nature. Assessing 100 percent of an employee’s unpaid taxes against an employer or a corporate officer for failure to remit a fraction of that amount cannot be purely remedial in every situation because, as in this case, the Commissioner stands to receive substantially more from the employer than he is entitled to receive under the wage levy. Hanson worked as a HWC employee from August to November 1994 at a wage of $6 per hour, yet the Commissioner assessed personal liability against Wilson for $45,363.08.

The Commissioner relies on the Supreme Court’s decision in Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938). In Helvering, the Supreme Court affirmed the penalties assessed against a taxpayer resulting from his understatement of tax liability: “[Civil tax penalties] are provided primarily as a safeguard for the protection of the revenue and to reimburse the Government for the heavy expense of investigation and the loss resulting from the taxpayer’s fraud.” Helvering, 303 U.S. at 401, 58 S.Ct. 630. At oral argument, the Commissioner also cited Little v. Comm’r of Internal Revenue, 106 F.3d 1445, 1446-47 (9th Cir.1997), where the Court of Appeals for the Ninth Circuit affirmed the U.S. Tax Court’s assessment of additional penalties after the taxpayer was found to have substantially understated his capital gains.

Helvering and Little are distinguishable from this case because they involved the government’s assessment of amounts beyond the tax liability against the delinquent taxpayers themselves. The treatment as remedial of additional assessments to recoup the costs of investigation and enforcement makes sense when levied against the delinquent taxpayer, but not when levied against a corporate officer for an amount far in excess of that which was owed under the wage levy. We conclude, therefore, that the personal assessment against Wilson for Hanson’s delinquent taxes, plus penalties and interest, was not purely remedial.

Furthermore, we conclude that imposition of personal liability on a third party for the full amount of the employee’s delinquent taxes, plus penalties and interest, as authorized by sections 290.92, subdivision 23(3) and 270.101, subdivision 1, can only be explained as serving retribution and/or deterrent purposes. Such a significant penalty for willfully failing to comply with a wage levy must be calculated to deter employers and corporate officers from disregarding a wage levy notice from the Commissioner. If the possibility that an employer or an individual corporate officer may be held personally liable for the unlimited amount of an employee’s delinquent taxes is not sufficient to compel compliance with a wage levy, assessment of that liability provides retribution for willful disregard of the law. It follows that this imposition of a significant financial risk on a third party other than the original delinquent taxpayer can only be explained as also serving retribution and deterrent purposes.

Based on the definition of “punishment” found in Austin, we conclude that the Commissioner’s personal assessment against Wilson for the total amount of Hanson’s delinquent taxes, plus penalties and interest, based on HWC’s failure to honor a wage levy that amounts to a small fraction of the personal assessment, cannot be said to serve a solely remedial purpose but rather can be explained only as also serving retribution and deterrent purposes and therefore constitutes a “punishment” subject to the Excessive Fines Clauses of the United States and Minnesota Constitutions.

II.

Having concluded that the Commissioner’s assessment of liability against Wilson constitutes a “punishment,” we now address the question of whether it is excessive under the Eighth Amendment to the United States Constitution and Article I, Section 5 of the Minnesota Constitution. Our inquiry into whether the Commissioner’s assessment is excessive focuses on the principle of proportionality — that is, does the assessment “bear some relationship to the gravity of the offense that it is designed to punish?” United States v. Baja kajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). Our recent decision in State v. Rewitzer, 617 N.W.2d 407 (Minn.2000), guides our analysis of the principle of proportionality in this case.

In Rewitzer, the defendant pleaded guilty to selling marijuana and mushrooms containing psilocyn to a police informant on three different occasions. 617 N.W.2d at 409. The trial court sentenced Rewitzer to 48 months in prison and imposed fines and surcharges totaling $273,600. Id. In arriving at this amount, the trial court imposed fines of approximately 30 percent of the maximum amount allowed for controlled-substance offenses in the fifth, third, and second degrees. Id. at 410. Rewitzer brought a postconviction petition seeking to reduce the amount of the fines, which the trial court denied. Id. at 410-11. Rewitzer appealed, asserting that the fines violated the Excessive Fines Clauses of the federal and state constitutions. Id. at 411. The court of appeals affirmed the trial court’s sentence and held that the fines were within the discretion of the trial court and not excessive. State v. Rewitzer, 1999 WL 1216598, at *2 (Minn.App. Dec.21, 1999). We granted review and looked to the Supreme Court’s decision in Bajakajian for instruction in applying the federal standard to our excessive fines analysis. Rewitzer, 617 N.W.2d at 413.

In addition to the “gross dispropor-tionality” standard found in Bajakajian, we also adopted the three-part test first articulated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to assess the proportionality of a contested fine. Rewitzer, 617 N.W.2d at 414. We considered Rewitzer’s fines under the following Solem factors: (1) comparison of the gravity of the offense with the harshness of the penalty; (2) comparison of the contested fine with fines imposed for the commission of other offenses in the same jurisdiction; and (3) comparison of the contested fine with fines imposed for commission of the same offense in other jurisdictions. Rewitzer, 617 N.W.2d at 414. Because we applied the Solem factors in Rewitzer to determine proportionality, we do the same in this case.

First, we compare the gravity of the offense with the harshness of the penalty. We believe that the overall facts in this case serve to limit the gravity of Wilson’s offense. First, neither Wilson nor HWC participated in the creation of the underlying tax liability. Hanson was, and still is, the delinquent taxpayer. Second, in negotiations with Wilson and Hanson, the Commissioner told Hanson that the only way he could continue to work after his sales tax permit had been revoked was as an employee. Hanson thus complied with the Commissioner’s directions when he agreed to work at Valley Oldsmobile as a HWC employee. Third, the Commissioner is precluded from claiming that HWC’s actions deprived the state of money it would have collected under the original Valley Oldsmobile third-party levy. It would have been illegal for Hanson to continue working as an independent contractor for Valley Oldsmobile under the existing third-party levy because his sales tax permit had been revoked. Had Hanson agreed to work as an employee of Valley Oldsmobile instead of HWC, the Commissioner still would have been entitled to only 25 percent of Hanson’s wages. The Commissioner’s revocation of Hanson’s sales tax permit effectively limited Hanson’s options; he could work as an employee or not at all. We conclude that the limited gravity of Wilson’s conduct does not support the harshness of the personal assessment against Wilson.

Turning to the second Solem factor, we compare the sanction authorized by section 290.92, subdivision 23(3) with similar wage levy sanctions in Minnesota. In 1994, section 290.92, subdivision 23(3) was the only statute specifically assessing personal liability against an employer. Another statute, section 270.70, subdivision 8, authorized the Commissioner to assess personal liability against any person who failed, without reasonable cause, to surrender property or rights to property subject to a levy, with the amount of the personal assessment limited to the value of the property not surrendered. Minn.Stat. § 270.70, subd. 8 (1994). Section 270.70, subdivision 9 allowed the Commissioner to impose an additional penalty equal to 25 percent of the amount recoverable under section 270.70, subdivision 8. Minn.Stat. § 270.70, subd. 9 (1994).

In 1995, one year after this dispute, the legislature amended section 290.92, subdivision 23(3) and deleted the language regarding an employer’s personal liability for willfully failing to withhold and remit to the Commissioner an amount required by a wage levy notice. Act of June 1, 1995, ch. 264, art. 13, § 13, 1995 Minn. Laws 2872, 3055-56. As amended, section 290.92 subdivision 23(7) provides that a wage levy imposed under subdivision 23 has the same legal effect as a levy under section 270.70, making the subdivision 23 remedy subject to the collection provisions applicable to a section 270.70 levy. Minn. Stat. § 290.92, subd. 23(7) (Supp. 1995). At the same time, the legislature repealed section 270.70, subdivisions 8-10, and enacted section 270.7002. Act of June 1, 1995, ch. 264, art. 13, §§ 4, 23, 1995 Minn. Laws 2872, 3050, 3060. Section 270.7002 currently covers all personal liability for failing to honor a wage levy in Minnesota, including that of employers. It permits the Commissioner to assess liability against a person who fails to honor a levy “in an amount equal to the value of the property or rights not surrendered, or the amount of taxes, penalties, and interest for the collection of which the levy was made, whichever is less.” Minn.Stat. § 270.7002, subd. 1 (2002). Section 270.7002, subdivision 2 allows for a penalty equal to 25 percent of the value of the levy if a person fails to honor the levy “without reasonable cause.” Minn.Stat. § 270.7002, subd. 2 (2002).

Thus, in 1994, a provision similar to section 290.92, subdivision 23(3) limited the liability to the amount subject to the levy and authorized an additional penalty equal to 25 percent of only the liability amount. The provision at issue here, as applied to the facts of this case, clearly provides for significantly greater personal liability than the comparable 1994 provision in section 270.70 and the now-applicable provision in section 270.7002. Although section 290.92, subdivision 23(3) required willful behavior, which presumably is a higher standard of culpability than the “without reasonable cause” standard of sections 270.70 and 270.7002, that distinction is not enough to justify the disparity in liability imposed.

The third Solem factor invites us to compare the personal assessment with fines imposed for the commission of the same offense in other jurisdictions. In order to arrive at a more complete comparison, we examine similar wage levy fines from both federal and state jurisdictions.

In Wisconsin, a person’s failure to honor a levy results in personal liability equal to the amount of the levied property not surrendered (including unpaid taxes), plus interest at the rate of 18 percent per year from the date of the levy. Wis. Stat. § 71.91(6)(d)1 (2001). If failure to honor the levy is found to be “without reasonable cause,” Wisconsin allows a penalty equal to 50 percent of the amount of the levy. Wis.Stat. § 71.91(6)(d)2 (2001). Section 6832(d) of the Internal Revenue Code also authorizes personal liability for failure to honor a tax wage levy, including costs and interest from the due date of the levy. 26 U.S.C. § 6332(d)(1) (2002). Like Wisconsin, federal law assesses a penalty equal to 50 percent of the value of the levy if failure to pay is “without reasonable cause.” 26 U.S.C. § 6332(d)(2) (2002). We note that neither Wisconsin Statutes nor the Internal Revenue Code potentially holds an employer or a corporate officer personally liable for the entire amount of an employee’s delinquent taxes plus penalties and interest.

Based on our analysis of the three So-lem factors adopted in Rewitzer, we conclude that the personal assessment against Wilson violates the Excessive Fines Clauses of the United States Constitution and Art. 1, Sec. 5 of the Minnesota Constitution. The amount of the penalty assessed by the Commissioner against Wilson is grossly disproportional to the amount due under the wage levy. Accordingly, we reverse the tax court’s judgment and hold that the Commissioner’s personal assessment of liability against Wilson is an unconstitutional excessive fine.

III.

Having decided that, in the circumstances of this case, imposition of personal liability against Wilson for the full amount of the taxpayer’s unpaid taxes plus interest and penalties violates the Excessive Fines Clauses, we are left to determine what, if any, liability can be assessed. Section 290.92, subdivision 23(3) imposed liability for the total amount of the levy notice, which we have concluded cannot constitutionally be assessed here. We are reluctant to rewrite that now-repealed provision to impose a lesser amount of our choosing that passes constitutional muster.

Fortunately, however, we are not left with a blank slate. As discussed above, at the time of the personal assessment in this case, another statute provided personal liability for failure to surrender property subject to a tax levy without reasonable cause. That statute imposed liability for the amount of the property not surrendered and authorized a penalty equal to 25 percent of the liability amount. Minn.Stat. § 270.70, subds. 8-9 (1994). Moreover, we observe that the current statute imposing liability and penalty for failure to comply with a tax levy, adopted just a year after the assessment in this case, similarly imposes liability equal to the amount of the property not surrendered and imposes a penalty equal to 25 percent of that amount. Minn.Stat. § 270.7002, subds. 1-2 (2002).

These statutes provide a basis for determining a proper assessment consistent with demonstrated legislative intent where application of section 290.92, subdivision 23(3) is constitutionally impermissible. Accordingly, the personal liability imposed on Wilson under Minn.Stat. § 270.101, subd. 1, shall be determined in accordance with section 270.70, subdivisions 8 and 9. Wilson is liable for 25 percent of Hanson’s wages from August 1 to November 30, 1994, as required by the wage levy, together with interest accrued at the statutory rate on the unpaid balance, if any, beginning on December 1, 1994. Any amount previously paid from Wilson to the Commissioner shall be credited toward the amount due under the levy. Additionally, Wilson is liable for 25 percent of the total amount due under the levy as a penalty for failing to withhold and remit 25 percent of Hanson’s wages to the Commissioner without reasonable cause. The record before us is not sufficient to enable us to calculate the actual amounts due. We therefore remand to the tax court for entry of judgment calculated in accordance with this opinion, with the hope that the parties will agree upon the proper amount without further extending this already lengthy litigation.

Reversed and remanded.

      . In 1994, Minnesota Statutes section 290.92, subdivision 23(3) stated, in pertinent part:
      Should any employer, after notice, willfully fail to withhold in accordance with the notice and this subdivision, or willfully fail to remit any amount withheld as required by this subdivision, the employer shall be liable for the total amount set forth in the notice together with accrued interest which may be collected by any means provided by law relating to taxation. Any amount collected from the employer for failure to withhold or for failure to remit under this subdivision shall be credited to the employee's account in the following manner: penalties, interest, tax, and costs.
      Minn.Stat. § 290.92, subd. 23(3) (1994).

      . Minnesota Statutes section 270.101, subdivision 1 states:
      A person who, either singly or jointly with others, has the control of, supervision of, or responsibility for filing returns or reports, paying taxes, or collecting or withholding and remitting taxes and who fails to do so, or a person who is liable under any other law, is liable for the payment of taxes, penalties, and interest arising under chapters 295, 296A, 297F, 297A, and 297G, or sections 290.92 and 297E.02.
      Minn.Stat. § 270.101, subd. 1 (2002).

      . Minnesota Statutes section 609.101, subdivision 3(a) states: "[njotwithstanding any other law, when a court sentences a person convicted of a controlled substance crime * * *, it must impose a fine of not less than 30 percent of the maximum fine authorized by law * * Minn.Stat. § 609.101, subd. 3(a) (2002).


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    In re PATERNITY OF J.M.V. and R.R.V., minor children. Cindy R. Valento, Petitioner, Respondent, v. James K. Swenson, Appellant. and In re Ramsey County, Respondent, Lori Elaine Christensen, Respondent, v. James K. Swenson, Appellant.
    Nos. C8-02-1051, C9-02-1057.
    Court of Appeals of Minnesota.
    Feb. 11, 2003.

      Bruce D. Peck, Inver Grove Heights, MN, for respondent Cindy R. Valento.
    Susan Gaertner, Ramsey County Attorney, Sarah E. Feiro, Assistant County Attorney, St. Paul, MN, for respondent Ramsey County.
    Michael A. Feist, St. Paul, MN, for respondent Lori Christensen.
    Carl A. Blondín, Oakdale, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, LANSING, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant, a child support obligor, appeals child support modification determinations from two different counties. The mother of Swenson’s two oldest children initiated a proceeding in Washington County to increase support for those children. Swenson initiated a proceeding in Ramsey County to reduce support for his youngest child. This court consolidated the appeals. We reverse and remand the consolidated cases to Washington County.

FACTS

Appellant James Swenson is the father of four children. The oldest are the two Valento children, born in 1988 and 1989. Their mother is respondent, Cindy Valen-to. Although she is a party, Valento does not make an appearance in this appeal. The next child was born in 1991; his mother, Jeanne Pierce, is not a party to this proceeding. The youngest child was born in 2000. Her mother is respondent Lori Christensen.

In 1989 and 1990, as a part of paternity determinations, the Washington County district court ordered Swenson to pay child support for the Valento children. Initially child support for the oldest Valento child was set at $300 per month. In 1990, Swenson was ordered to pay $360 per month, and in 1997, support was raised to $381 per month.

On September 28, 2001, a Ramsey County child support magistrate set the child support for the Christensen child at $762.50 per month on the basis of the statutory guidelines. In this and the other proceedings in 2001 and 2002, the parties agreed Swenson was self-employed and had a net monthly income of $3,050. In addition, Swenson was ordered to pay $247.80 per month for childcare expenses and $50 per month for health care, making Swenson’s total obligation for the Christensen child $1,060.30 per month. The order acknowledged that Swenson was the father of the Valento children and that he claimed to be the father of the Pierce child, but stated that Swenson did not provide verification of paternity of the Pierce child or of existing support obligations for any of his children. The child support magistrate refused to deduct any child support obligations or payments for the Yalento or Pierce children from Swen-son’s net income.

On December 21, 2001, a stipulated paternity and child support hearing was held in Washington County for the Pierce child. On that date, the Washington County District Court determined that Swenson was the father of the Pierce child and ordered him to pay $533.75 per month child support for that child. This amount was based on the statutory guidelines after deducting the anticipated Valento support from his income. The Pierce order is not before this court on appeal.

On December 27, 2001, the Washington County District Court, acting on a motion of respondent Cindy Valento, and with the apparent concurrence of Swenson, ordered Swenson to increase his support payments to $915 per month for both Valento children. Support was calculated from the statutory child support guidelines.

Swenson initiated a Ramsey County proceeding to reduce the support obligation for the Christensen child. A hearing was held on January 11, 2002; on February 20, 2002, the child support magistrate entered its final order. The magistrate now recognized Swenson was the father of both the two Valento children and the Pierce child and acknowledged the existence of the Washington County child support orders of $915 for the Valento children and $533.75 for the Pierce child. The magistrate also found that (a) support for the Pierce child was $24.75 over the statutory guideline; (b) the Pierce obligation was not subject to automatic withholding; (c) there was no verification that Swenson was actually making the ordered payments for the Valento and Pierce children; (d) Swen-son had engineered those orders so as to decrease his available income and obligation for the Christensen child; (e) to the extent Swenson was not actually paying support for the prior children, the December 2001 child support orders from Washington County were of no consequence to the Ramsey County determination; and (f) in calculating his available net income Swenson should only receive recognition for the $360 per month Valento payment ordered in 1990. The magistrate then reduced the child support for the Christensen child to $672.50 per month, reduced the childcare payment to $174.58 per month, and did not include the health care payment. A modified order was filed on May 8, 2002 that did not change support but required Swenson to pay Lori Christensen and Ramsey County for certain expenses not involved in this appeal.

Swenson appeals the May 8, 2002 Ramsey County order on the grounds that the child support magistrate did not recognize the then effective child support orders from Washington County District Court for the Valento children and the Pierce child and that the child support magistrate did not correctly compute his day-care obligation. Swenson also appeals the Washington County child support order for the two Valento children. In both appeals, Swenson requests determination of priority of his obligations and recalculations of the amounts based on the priority determinations.

Lori Christensen claims the Valento and Pierce child support orders entered after the initial order for support of the Christensen child are not entitled to full recognition in the Christensen proceeding and argues that the December 2001 Valento and Pierce orders were collusive attempts to reduce Swenson’s income.

Ramsey County Attorney’s Office participated in the appeal as statutory counsel for child support in the Christensen proceeding. The county attorney objects to the order of the Ramsey County child support magistrate on the grounds that the record does not support the determination that Swenson was not paying $915 per month support for the Valento children, that ignoring prior orders for older children encourages the entry of unenforceable child support orders, and that the orders must reflect a balance between need and ability to pay.

We reverse and remand both cases to Washington County District Court.

ISSUES

1. When a child support obligee moves to increase support, to what extent should the court consider the needs of a subsequent child?

2. When a child support obligor moves to reduce support for a subsequent child, to what extent may the trial court disregard the child support ordered paid for older children?

ANALYSIS

I.

Swenson’s appeal in the Valento matter is taken from the Washington County District Court’s December 27, 2001 order. On appeal from a district court’s support order, we recognize that the district court has broad discretion regarding support and its decision will not be altered on appeal absent an abuse of discretion. Putz v. Putz, 645 N.W.2d 343, 347 (Minn.2002). A district court abuses its discretion if it resolves the matter in a manner that is against logic and the facts on the record. Id. Also, this court will not alter a district court’s findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01.

The child support guidelines are presumptively applicable in all child support cases. Minn.Stat. § 518.551, subd. 5(i) (2002). Under the guidelines, the presumptively appropriate child support obligation is calculated by multiplying an obligor’s net monthly income by the percentage in the guideline table. Minn.Stat. § 518.551, subd. 5(b) (2002). An obligor’s net monthly income is calculated by reducing the obligor’s monthly income by various amounts, including “A Child Support or Maintenance Order that is Currently Being Paid.” Minn.Stat. § 518.551, subd. 5(b).

The statutes also provide several factors for courts to consider in “setting or modifying child support or in determining whether to deviate from the guidelines.” Minn.Stat. § 518.551, subd. 5(c) (2002) (listing factors such as financial resources of parents and children’s needs). Judicial departure from the guidelines is acknowledged in Minn.Stat. § 518.551, subd. 5(i). Regardless of whether a court deviates from the guidelines in calculating child support, Minn.Stat. § 518.551, subd. 5(i) requires written findings concerning certain considerations affecting the determination of child support. Id. An overlapping set of factors exclusively directed at modification of maintenance and support orders is set forth in Minn.Stat. § 518.64, subd. 2 (2002). To complete the circle, the trial court is instructed in Minn.Stat. § 518.64, subd. 2(c)(1) to apply Minn.Stat. § 518.551, subd. 5. In sum, there is abundant statutory direction, yet the district court has discretion as long as the court provides an explanation for its decision that covers the factors specified in the law.

The legal framework becomes more complicated when, as here, a support obli-gor has multiple support obligations. As a general rule “[t]he needs of subsequent children shall not be factored into a support guidelines calculation under subdivision 5.” Minn.Stat. § 518.551, subd. 5f (2002). Thus, a support obligor’s subsequent child is not a reason to alter the calculation of the presumptively appropriate guideline support obligation. Additionally:

The fact that an obligor had additional children after the entry of a child support order is not grounds for a modification to decrease the amount of support owed. However, the fact that an obligor has subsequent children shall be considered in response to a request by an obligee for a modification to increase child support.

Id. (emphasis added). Furthermore, any deviation from the guidelines requires detailed findings. Id.

Here, the proceedings producing the stipulated December 27, 2001 order setting support for the Valento children were a result of Valento’s motion to increase support. Therefore, the district court was required to consider Swenson’s other children. The December 27, 2001 order, however, lacks any indication that the district court did anything other than approve the parties’ stipulation. For that reason, the Valento order is defective, and that aspect of this case must be remanded. See, e.g., Erickson v. Erickson, 385 N.W.2d 301, 303-04 (Minn.1986) (remanding support modification where findings were inadequate).

Before ending our consideration of the Washington County order for modification of the Valento obligation, we note that the issues we have considered on appeal were never presented to the district court. Indeed, appellant joined in requesting that the court enter the order that was issued. Generally, we do not consider issues not raised in the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating reviewing court must generally consider “only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” (quotation omitted)). Here, however, the Ramsey County child support magistrate found that the Washington County orders were engineered to reduce Swenson’s income when calculating his obligation to his youngest child in Ramsey County. Therefore, the interests of justice require that we consider this matter and that the Washington County District Court reconsider the situation. See Minn. R. Civ. P. 103.04 (allowing appellate courts to “reverse, affirm or modify the judgment or order appealed from or take any other action as the interest of justice may require”).

II.

The next question is whether the Ramsey County child support magistrate abused her discretion in only reducing the support for the Christensen child to $672.50 per month. On appeal from a magistrate’s order, this court uses the same standard to review issues as would be applied if the order had been issued by a district court. Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn.App.2000).

Swenson moved to decrease his Christensen support obligation because, after his Christensen obligation was set: (a) he was adjudicated the father of the Pierce child and a support obligation for that child was imposed in the amount of $533.75 per month; and (b) his obligation for the Valento children was increased to $915. The court must decide the extent to which the Christensen obligation should be affected by Swenson’s obligations for the other children.

Minn.Stat. § 518.551, subd. 5f addresses the bases for modification of support obligations of obligors with subsequent children and states:

The fact that an obligor had additional children after the entry of a child support order is not grounds for a modification to decrease the amount of support owed.

Id. Although the Pierce child is nine years older than the Christensen child, paternity for the Pierce child was determined after support was set for the Christensen child. The question is whether the (older) Pierce child should be considered a subsequent child when addressing the obligation for the (younger) Christensen child. We conclude that, absent good cause to rule otherwise, for purposes of Minn.Stat. § 518.551, subd. 5f, a prior child is the older child by age, and the subsequent child is the younger child. We reach this conclusion because: (a) it appears most consistent with the ordinary meaning of the word “subsequent”; (b) in most situations paternity is known, and a race to the courthouse to gain the upper hand for support is unseemly; and (c) the mother of the younger child is likely to be aware of the older child and should accept the claim for support by the older child’s mother as having priority. The record indicates that Swenson had accepted 'responsibility for the Pierce child several years before a formal adjudication of paternity and had been paying child support. Thus, in this case, the Christensen child is the subsequent child for purposes of Minn.Stat. § 518.551, subd. 5f, both with respect to the Valento children and the Pierce child.

The Ramsey County child support magistrate was skeptical, if not hostile, toward the Valento and Pierce support orders and refused to consider offsetting these obligations against Swenson’s income in accordance with their terms. Indeed, as previously noted, the child support magistrate found those orders were engineered as a virtual fraud on the Washington County court. However accurate this may have been, there are inconsistencies in the analysis of the Ramsey County child support magistrate. The magistrate found both that the actual payments for the Va-lento children were lower than the amount ordered and that excessive payments had been made. This was never reconciled. Furthermore, the magistrate either was not informed of, or chose to ignore, the 1997 increase in the Valento support to $381 per month. With respect to the Pierce order, the Ramsey County magistrate concluded that support at $533.75 per month was $24.75 over the guideline calculation and then proceeded to disregard the entire support obligation for the Pierce child. The magistrate was troubled by the lack of income withholding in the Washington County orders and saw this as but one more indication of collusion between Swen-son and the other two obligees. Finally, the magistrate appears to have been unrealistic in expecting proof of payment. The $915 level of child support had only been filed on January 9, 2002. The Pierce child support order for $533.75 per month was entered on December 21, 2001. The Christensen matter came on for hearing on January 11, 2002. It was premature to conclude that Swenson would not be complying with the new level of support for the Valento and Pierce children.

The Christensen magistrate concluded that, except to the extent of the 1990 Va-lento order for $360 per month, the Washington County orders were not relevant to the determination of support for the Christensen child. We reverse the Ramsey County child support magistrate’s order of support for the Christensen child. Since the day-care obligation is partially a function of support, it too should be recomputed on remand.

III.

Typically, at this point, we would remand the Valento support matter to the Washington County District Court from which it originated and the Christensen matter to the Ramsey County child support magistrate from which it originated. But in this case the Ramsey County child support magistrate distrusted the Washington County District Court proceeding. Because of this awkward situation and the risks of incompatible results on remand, we remand both cases to the Washington County District Court. See generally Minn.Stat. § 480A.07 (2002) (stating court of appeals may transfer a case to appropriate district court if it determines further findings of fact are required); Minn.Stat. § 480A.06, subd. 5 (2002) (stating court of appeals may issue orders necessary to enforce its rulings); cf. Minn. R. Civ.App. P. 103.04 (allowing appellate court to take action “as the interests of justice may require”); Albert v. Paper Calmenson & Co., 515 N.W.2d 59, 69 (Minn.App.1994) (considering judicial efficiency and convenience in remanding a complex case), review denied in part (Minn. Jun. 29, 1994), aff'd as modified 524 N.W.2d 460 (Minn.1994). In this regard we observe that although the Pierce child support matter is not on appeal, it is venued in Washington County. If Swenson or the district court determines that the Pierce child support order should be reviewed to have a full and fair disposition of the pending matters, we assume appropriate steps will be taken to accomplish that.

On remand, Swenson’s three separate support obligations present the question of how to proceed. Swenson’s various support obligations are most easily and understandably set at the presumptively appropriate guideline amounts. The Valento support would be set first. After Swen-son’s income is reduced for the Valento obligation, the Pierce support would be set, and after Swenson’s income is again reduced, the Christensen support would be set. The existing Pierce child support order appears to fit with this approach.

The district court may for good cause deviate from this mechanical, chronological result. See Minn.Stat. § 518.551, subd. 5(i) (addressing deviation from guidelines); Minn.Stat. § 518.64, subd. 2(c)(1) (stating Minn.Stat. § 518.551, subd. 5 is applicable on motions to modify support). Since none of the children reside with Swenson, since the Ramsey County child support magistrate found bases for believing collusion has occurred between Swenson and Valen-to and between Swenson and Pierce, and since the district court has certain defined discretion to fashion a disposition appropriate to its findings, the statutes neither mandate a harsh inflexible priority for older children (see Minn.Stat. § 518.551, subd. 5f), nor mandate that the younger children be automatically provided less support than the older children, nor mandate that all children be paid the same level of support. In remanding, we direct the district court to determine whether any of the children have special needs, special resources, or other circumstances that warrant special consideration in setting support levels. Hayes v. Hayes, 473 N.W.2d 364, 366 (Minn.App.1991).

If support is set at an amount that deviates from the guidelines, the district court faces statute-imposed duties. First,

the court shall make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria in [Minn.Stat. § 518.551, subd. 5(c) ] and how the deviation serves the best interest of the child.

Minn.Stat. § 518.551, subd. 5(i). Additionally, when a support obligor has multiple support obligations, to set support at an amount other than the presumptively appropriate guideline amount, the court must

(1)find the obligor’s total ability to contribute to dependent children, taking into account the obligor’s income and reasonable expenses exclusive of child care. The obligor’s expenses must be:
(1) reduced as appropriate to take into account contributions to those costs by other adults who share the obligor’s current household; and
(ii) apportioned between the parent and any subsequent child with regard to shared benefits, including but not limited to, housing and transportation;
(2) find the total needs of all the obli-gor’s children, and if these needs are less than the obligor’s ability to pay, the needs may become the obligor’s child support obligation. When considering the needs of subsequent children, the trial court must reduce those amounts as appropriate to take into account the ability to contribute to those needs by another parent of the children;
(3) make specific findings on the needs of the child or children who are the subject of the support order under consideration; and
(4) exercise discretion to fairly determine the current support obligation and the contribution left available for other children, considering that the support obligation being determined should be in an amount at least equal to the contribution for a subsequent child.

Minn.Stat. § 518.551, subd. 5f. Although the statutes do not fully provide for all cases, the ideal is to provide fairly for all children. As our supreme court once observed:

A trial court’s sound discretion * ⅜ ⅛ should not be shackled by rigid rules which prevent a recognition of the needs of innocent children whether they be born of a first or of a second marriage. Children born of the second marriage * * ⅝ are not responsible for their existence and are equally dependent upon their father for support.

Mark v. Mark, 248 Minn. 446, 451, 80 N.W.2d 621, 625 (Minn.1957).

On remand, the district court should recognize that the statute requires that Swenson only receive credit for child support payments to the extent such payments are currently being made, see Minn. Stat. § 518.551, subd. 5(b)(viii), and should ensure that Swenson not use his relationships with some obligees to inflate support that will not be paid so as to reduce support for children of other obligees. We also note that if an obligor is caught playing this game, he is setting himself up for financial woes. On the one hand, support for subsequent children increases; on the other hand, he is still liable for arrearages. The Ramsey County Attorney’s comments are well considered: child support obligors should have payment obligations that can be met and that are collectible. This does not mean that Swenson is excused from full responsibility for supporting his children; it only means that one judicial officer in one proceeding should not create unreasonably high payment obligations for multiple families. Arrearages should be enforceable and enforced, not compounded and uncollectible.

IV.

Christensen moved to strike that portion of the appendix to the Swenson brief that contained the November 9, 1989 paternity judgment and child support order for the older Valento child. We acknowledge that this material was not before the Ramsey County child support magistrate in case number C9-02-1057. However, we note this paternity judgment was part of the consolidated file before the Washington County District Court in paternity file F4-89-051069. As such, the original paternity order for the older Va-lento children is part of the consolidated file before this court. Accordingly, the Christensen motion to strike is denied.

V.

Christensen moved this court for attorney fees. Minnesota’s dissolution statute allows attorney fees to be awarded against a party in an amount necessary to enable a party to carry on a proceeding. Minn.Stat. § 518.14, subd. 1 (2002). The court must find

(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Id. A court may also award attorney fees against any party who unreasonably contributes to the length or expense of the proceeding. Id.

Christensen cited no authority for her request for attorney fees. The only assertion to support the award is a statement of counsel’s hourly rate. We deny the motion for attorney fees.

DECISION

We grant the relief requested by appellant Swenson and urged by respondent Ramsey County and reverse the decision of the Ramsey County child support magistrate in C9-02-1057 and the Washington County District Court in C8-02-1051. We remand both proceedings to Washington County District Court for further proceedings consistent with this opinion. We deny respondent Christensen’s motion to strike, and we deny Christensen’s motion for attorney fees.

Reversed and remanded; motion to strike denied and motion for fees denied.

      . We recognize the Washington County District Court may wish to restore venue of the Christensen proceeding to Ramsey County. If the Washington County District Court determines this case can again be fairly and fully handled in two different counties, we do not intend to foreclose that ultimate disposition. However, we conclude that to make appropriate findings and to set and coordinate support for at least the three children involved in these two proceedings, a single judicial officer should oversee these cases at this time. We also note that the Ramsey County attorney participated in this appeal. That participation was helpful, and by shifting venue, it is not the intention of this court that Ramsey County Attorney's Office should cease participation in this case.


author: WRIGHT, Judge.

text:
    PTL, LLC, Relator, v. CHISAGO COUNTY BOARD OF COMMISSIONERS, Respondent.
    No. C5-02-1170.
    Court of Appeals of Minnesota.
    Feb. 18, 2003.

      Mark Duea, Geek & Duea, L.L.C., White Bear Lake, MN, for relator.
    Paul D. Reuvers, Kafi C. Linville, Iver-son Reuvers, L.L.C., Bloomington, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, MINGE, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

By writ of certiorari, relator PTL, LLC appeals from the Chisago County Board of Commissioners’ denial of preliminary-plat approval. Relator argues that it is entitled to approval as a matter of right, because its preliminary plat satisfies the requirements of the zoning and subdivision ordinances in all respects. Alternatively, relator argues that (1) the record does not support the board’s determination that the proposed development is inefficient, poorly designed, or incompatible with surrounding land uses, and (2) the board improperly relied on after-the-fact rationalizations not connected with the actual basis for denial of preliminary-plat approval. We reverse and remand.

FACTS

Relator PTL, LLC (PTL) is a real-estate development company seeking to develop approximately 70 acres of land located in a district zoned “agricultural” in Chisago County. To that end, PTL submitted an application for preliminary approval of a plat consisting of 14 five-acre lots to be used for residential housing. The county’s zoning ordinance permits single-family dwellings in agricultural districts at a maximum density of one dwelling per five-acre lot. Chisago County, Minn., Zoning Ordinance § 5.06(B)(10) (1997). Accordingly, the Fish Lake Township Board and Plat Review Commission recommended approval of PTL’s preliminary plat.

In April 2002, PTL presented its preliminary plat before the Chisago County Planning Commission. At the commission’s monthly meeting, Environmental Services Director Marion Heemsbergen stated that, although the proposed lots met the dimensional requirements of the Chisago County Zoning Ordinance, the planning commission preferred the “cluster or cove” design required for smaller lots to the “cookie cutter” design proposed by PTL. See id. § 7.18(B) (requiring cluster design for lots smaller than five acres). Heemsbergen expressed concern that because the proposed development was located in the middle of open farmland, it appeared to conflict with the goals and policies of the Chisago County Comprehensive Guide Plan, a “policy guide for managing growth in Chisago County.” Chisago County, Minn., Comprehensive Guide Plan, at ii (1995).

In addition to Heemsbergen, neighbors expressed concern that approval of the preliminary plat would result in increased traffic, unsightly lawns, lower property values, the sale of neighboring farms, and the loss of traditionally farmed agricultural land. One neighbor worried that a proposed road would create a dead end at her field and cause problems with trespassers.

In response to these concerns, PTL indicated that the land was sand rather than prime farmland, and that it had saved large trees to build a buffer between the proposed development and neighboring properties. PTL also indicated that because the plat was close to highway 95 and the city of Cambridge, it was compatible with the comprehensive guide plan’s goal of providing low-density housing near a major highway that is close to schools and other towns.

The planning commission concluded that, although the preliminary plat met the dimensional requirements of the zoning ordinance, it would result in conflicting land uses and the unnecessary conversion of farmland, in violation of the comprehensive guide plan. Accordingly, it recommended that approval be denied. PTL declined an opportunity to reconfigure its preliminary plat, opting instead to submit it to the Chisago County Board of Commissioners.

In May 2002, PTL presented its preliminary plat to the board. Once again, Heemsbergen stated that, although the preliminary plat “appeared to be perfectly legal, dimensionally speaking,” it was poorly designed and incompatible with surrounding land uses. The board asked PTL to consider reconfiguring the proposed plat with a clustering of building sites and “a more aesthetically pleasing road with a curved design.” PTL agreed to resubmit its application to the planning commission.

At the planning commission’s next meeting, PTL presented a letter from an assistant county surveyor, stating that the preliminary plat met all the requirements of the ordinance. PTL told the commission that its own surveyor and other professional consultants had indicated that the property did not lend itself to a cluster design. PTL also stated that the Fish Lake Township engineer had recommended against the requested curved road. Noting that nothing had changed since the previous meeting, the planning commission recommended denial once again.

In June 2002, the board of commissioners considered PTL’s application a second time and asked Heemsbergen to prepare findings supporting its decision to deny it. The board later adopted Heemsbergen’s findings and conclusions and denied approval of the preliminary plat by a 3-2 vote, reasoning that the proposed development (1) was incompatible with existing land uses, in violation of section 1.02(1) of the Chisago County Subdivision Ordinance; (2) would negatively impact the surrounding communities; (3) was inefficient and poorly planned, in violation of section 1.02(C) of the subdivision ordinance; and (4) failed to implement the Chisago County Comprehensive Guide Plan, in violation of section 1.02(1) and (J) of the subdivision ordinance. The board also concluded that (1) the proposed plat contained no buffer from the surrounding incompatible uses; (2) the proposed lots did not meet the minimum dimensional requirements; (3) the preliminary plat failed to show the required setback and calculations showing no net increase of run-off leaving the site; and (4) the proposed road would require ongoing maintenance, would create three double-fronted lots, and could negatively impact an existing house.

This appeal followed. At oral argument, the board withdrew the bases for denial relating to the buffer, the minimum dimensional requirements, the setback and runoff calculations, and the proposed road. Accordingly, we consider only reasons relating to the incompatibility between the proposed and existing land uses, the ineffi-cieney of the proposed design, and the preliminary plat’s failure to implement the comprehensive guide plan.

ISSUES

I. Was the board of commissioners’ decision to deny approval of a preliminary plat based on legally insufficient reasons, where the preliminary plat proposed a permitted land use and complied with the regulatory standards prescribed for that use?

II. Did the comprehensive guide plan provide the board of commissioners with an independent source of authority for denying approval of a preliminary plat that proposed a permitted use and complied with the regulatory standards specified for that use?

ANALYSIS

On a writ of certiorari, our review is limited to determining whether a county board of commissioners had jurisdiction; whether its proceedings were fair and regular; and whether its decision was unreasonable, without evidentiary support, or based on an incorrect theory of law. BECA of Alexandria, L.L.P. v. County of Douglas, 607 N.W.2d 459, 462 (Minn.App.2000). Because local officials have broad discretion in deciding whether to grant or deny a proposed land use, we give great deference to their land-use decisions and will reverse only in rare instances where the decision lacks a rational basis. SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn.App.1995), review denied (Minn. Jan. 5, 1996). A decision lacks a rational basis if it is unsupported by substantial evidence in the record, premised on a legally insufficient reason, or based on subjective or unreasonably vague standards. See C.R. Invs., Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 324-25 (Minn.1981); BECA 607 N.W.2d at 463; Hurrle v. County of Sherburne, 594 N.W.2d 246, 249 (Minn.App.1999); Good Value Homes, Inc. v. City of Eagan, 410 N.W.2d 345, 348 (Minn.App.1987).

I.

PTL first argues that the board of commissioners exceeded its authority by denying its application for approval of a permitted use on the basis that the proposed development was incompatible with existing land uses and not well planned. Alternatively, PTL argues that the board’s determination that the proposed development is incompatible with existing land uses and poorly planned lacks evidentiary support. We agree that the board exceeded its authority in denying PTL’s application for preliminary-plat approval and that its denial, therefore, was unreasonable.

Under Minnesota law, when an ordinance specifies minimum standards to which subdivisions must conform, local officials lack discretionary authority to deny approval of a preliminary plat that meets those standards. Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn.1984); Nat’l Capital Corp. v. Vill. of Inver Grove Heights, 301 Minn. 335, 337, 222 N.W.2d 550, 552 (1974); Hay v. Township of Grow, 296 Minn. 1, 5, 206 N.W.2d 19, 22 (1973); Good Value Homes, 410 N.W.2d at 348; Odell v. City of Eagan, 348 N.W.2d 792, 796 (Minn.App.1984); see also Laurie Reynolds, Local Subdivision Regulation: Formulaic Constraints in an Age of Discretion, 24 Ga. L.Rev. 525, 530 & n. 24 (1990) (noting that a majority of states, including Minnesota, adhere to the rule that local governments have no discretion to deny subdivision approval to proposed plats that conform to the specific prerequisites of a subdivision ordinance). Because a “permitted use” is a use that may be lawfully established if it conforms to the specified regulatory standards, a local government reviews an application for a permitted use to determine only whether the proposed use complies with those standards. Chanhassen Estates, 342 N.W.2d at 340; Chase v. City of Minneapolis, 401 N.W.2d 408, 413 (Minn.App.1987).

The Chisago County Zoning Ordinance expressly authorizes single-family dwellings in agricultural districts at a maximum density of one dwelling per five-acre lot. Chisago County, Minn., Zoning Ordinance § 5.06(B)(10) (1997). The ordinance requires a 300-foob-minimum lot width and a minimum buildable area of one acre. Id. § 5.15.

PTL sought approval to subdivide the land into 14 five-acre lots, each with a 300-foot-minimum width and a minimum build-able area of one acre, to be used for single-family dwellings. Because PTL’s preliminary plat proposed a permitted use, the board of commissioners’ authority was limited to reviewing PTL’s application to determine only if the preliminary plat complied with the standards the zoning and subdivision ordinances prescribe for single-family dwellings in an agricultural district. See Chanhassen Estates, 342 N.W.2d at 340; Chase, 401 N.W.2d at 413.

The board of commissioners conceded that the proposed lots “appeared to be perfectly legal, dimensionally speaking.” But it denied preliminary-plat approval nonetheless, citing concerns about the proposed development’s negative land-use impacts. To support its denial, the board of commissioners relied on sections 1.02(C) and (I) of the Chisago County Subdivision Ordinance. Section 1.02(C) provides that one of the purposes of the subdivision ordinance is to “[e]ncourage well-planned, efficient, and attractive subdivisions.” Chisa-go County, Minn., Subdivision Ordinance § 1.02(C) (1999). Section 1.02(1) lists the protection and promotion of compatible land uses as one of the ordinance’s stated purposes. Id. § 1.02(1).

The board exceeded its authority in denying PTL’s preliminary-plat approval for two reasons. First, sections 1.02(C) and (I) are merely general statements of purpose; they do not set forth clear and objective standards a developer must meet to obtain subdivision approval. For that reason, they do not provide a legally sufficient basis to reject a subdivision plan. Odell, 348 N.W.2d at 797 (concluding that provision stating that purpose of subdivision ordinance was “to promote an attractive and stable community” was vague and could not serve as independent basis for disapproving preliminary plat).

Regulatory standards must be sufficiently precise to ensure the application of objective standards to all similarly situated property, to adequately inform landowners of the requirements they must satisfy to gain subdivision approval, and to allow a reviewing court to evaluate noncompliance. See Local Subdivision Regulation, supra, 24 Ga. L.Rev. at 536; see also Kaufman v. Planning and Zoning Comm’n of the City of Fairmont, 171 W.Va. 174, 298 S.E.2d 148, 154-55 (1982) (reversing denial of preliminary-plat approval on ground that statute requiring local government to determine whether distribution of traffic and population promoted “harmonious development” lacked specificity necessary to ensure fair administration and put subdividers on notice of requirements they must satisfy to obtain subdivision approval); Goodman v. Bd. of Comm’rs of the Township of South Whitehall, 49 Pa.Cmwlth. 35, 411 A.2d 838, 841 (1980) (holding that subdivision plan could not be rejected on basis of subdivision ordinance statement of purpose declaring that subdivision must be coordinated with existing developments so that “area as a whole may be developed harmoniously”). Like the regulation in Odell, sections 1.02(C) and (I) lack the specificity necessary to serve as the basis for denying preliminary-plat approval. The board of commissioners’ denial of approval, therefore, was based on unreasonably vague standards.

Second, when local officials enact ordinances designating a specific use as permitted in a particular district, they determine by implication that the permitted use is consistent with existing land uses. See Chanhassen Estates, 342 N.W.2d at 340. Thus, when the board of commissioners enacted the county’s zoning ordinance and designated single-family dwellings as a use permitted in agricultural districts, the board of commissioners implicitly determined that single-family dwellings are consistent with existing land uses, provided they comply with the specific requirements prescribed for that use. That determination is conclusive until the board of commissioners rezones the land in question or amends the zoning ordinance. Id.

To allow the board to deny approval of a preliminary plat that proposes a permitted use and complies with the regulations specified for that use would, in effect, allow the board to arbitrarily amend the zoning ordinance simply by denying applications for subdivision approval. Such a practice would deprive landowners of adequate guidance in the preparation of preliminary plats and would allow capricious actions based on subjective criteria rather than express zoning provisions enacted to guide land-use decisions. See County Builders, Inc. v. Lower Providence Township, 5 Pa. Cmwlth. 1, 287 A.2d 849, 852 (1972) (stating that subdivision ruling that effectively amends zoning ordinance improperly allows local government to “hold in reserve unpublished requirements capable of general application for occasional use”). Thus, we conclude that the board of commissioners’ denial of approval lacked a rational basis.

Because, as a matter of law, local officials must approve a preliminary plat that proposes a permitted use and complies with the regulatory standards specified for that use, the board of commissioners exceeded its authority in denying PTL’s application for preliminary-plat approval on the basis that the proposed development was inconsistent with existing land uses and not well planned. The decision to deny preliminary-plat approval was based on legally insufficient reasons. To hold otherwise would undermine the legal doctrine that a subdivision plan that complies with applicable regulations must be approved as a matter of right.

II.

PTL also argues that the board of commissioners lacked legal authority to reject its application for preliminary-plat approval of a permissible land use on the basis that the preliminary plat failed to implement the goals and policies of the county’s comprehensive guide plan. We agree.

Compatibility with the public’s health, safety, and general welfare of the local government’s comprehensive land-use plan is an appropriate consideration in approving an application for a conditional use. See Minn.Stat. § 394.22, subd. 7 (2002) (defining conditional use as use that may be allowed on finding that it conforms to county’s comprehensive plan); Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn.1982) (holding that city council’s determination that proposed use was inconsistent with comprehensive plan justified denial of special-use permit); SuperAmerica Group, 539 N.W.2d at 267 (holding that incompatibility between proposed use and “definite and objective standards” in city’s comprehensive plan justified denial of conditional-use permit), review denied (Minn. Jan. 5, 1996). But cf. Amoco Oil Co. v. City of Minneapolis, 395 N.W.2d 115, 118 (Minn.App.1986) (holding that reliance on comprehensive plan as basis for denying conditional-use permit was improper where zoning ordinance did not list compliance with comprehensive plan as basis for denial).

In contrast, for a permissible use, the law recognizes that

when a city designates a specific use as permissible in a particular zone or district, the city has exercised its discretion and determined that the permitted use is consistent with the public health, safety, and general welfare and consonant with the goals of its comprehensive plan.

Chanhassen Estates, 342 N.W.2d at 340. But the board of commissioners denied PTL’s application for approval of a preliminary plat that proposed a permitted use because the proposed use, although permitted, failed to implement the goals and policies of the comprehensive guide plan. In so doing, the board relied on sections 1.02(J) and 1.05 of the Chisago County Subdivision Ordinance. Section 1.02(J) lists the implementation of the comprehensive guide plan as a stated purpose. Chis-ago County, Minn., Subdivision Ordinance § 1.02(J). Section 1.05 requires that the subdivision of land “not be inconsistent with” the comprehensive guide plan. Id. § 1.05. Thus, whether the board exceeded its authority depends on whether sections 1.02(J) and 1.05 give the comprehensive guide plan regulatory effect.

Under Minnesota law, each county “has the power and authority to prepare and adopt” a comprehensive plan. Minn.Stat. § 394.23 (2002). The plan is to be implemented by official controls, including zoning and subdivision ordinances. See id. §§ .22, subd. 6; .24, subd. 1. The role of the comprehensive plan is different from that of official controls. The comprehensive plan is “the guide for the future development of the county.” Id. § .22, subd. 9. It contains “the policies, statements, goals, and interrelated plans for private and public land and water use, transportation, and community facilities.” Id. It also contains recommendations for its execution. Id. Official controls, by contrast, “are the means of translating into ordinances all or any part of the general objectives of the comprehensive plan.” Id. § .22, subd. 6.

The comprehensive guide plan adopted by the Chisago County Board of Commissioners similarly has an advisory role that is different from that of the official controls embodied in the zoning and subdivision ordinances. The preamble to the comprehensive guide plan defines the plan as a “policy guide” intended to be “general in nature” and to “serve as a growth management tool for the County.” Chisago County, Minn., Comprehensive Guide Plan, at ii (1995). The preamble defines zoning and subdivision ordinances as the tools for implementing the goals and policies of the comprehensive guide plan. Id. (providing that “[ijmplementation of the plan will be accomplished through * * * the County’s zoning and subdivision ordinances”). The county’s subdivision ordinance, in turn, provides that the ordinances are “the means by which the county controls the land use outlined in the Comprehensive Guide Plan.” Chisago County, Minn., Subdivision Ordinance, at i.

In denying preliminary-plat approval based on the conclusion that the proposed plat was inconsistent with the comprehensive guide plan, the board of commissioners failed to recognize the uniquely advisory role of the comprehensive guide plan and elevated it to the stature of the zoning and subdivision ordinances, both of which have the force of law. This constituted error for the following reasons.

First, giving the comprehensive guide plan regulatory effect ignores the statute, the subdivision ordinance, and the comprehensive guide plan itself, all of which define the plan as a policy guide to be implemented by official controls. A majority of jurisdictions treat comprehensive plans as advisory, notwithstanding ordinance provisions, such as the one before us, requiring that the subdivision of land be “consistent with” or “in accordance with” a comprehensive plan. Cf. Stuart Meek, The Legislative Requirement that Zoning and Land Use Controls be Consistent with an Independently Adopted Comprehensive Plan: A Model Statute, 3 Wash. U. J.L. & Pol’y 295, 297-306 (2000) (noting that despite the widespread adoption of the “consistently with” or “in accordance with” language in enabling acts, a majority of states treat comprehensive plans as advisory).

Second, elevating the comprehensive guide plan to the level of zoning and subdivision ordinances ignores the stated purpose of the comprehensive guide plan, which is merely to guide the board in setting zoning standards. It is those zoning standards, implicit in the zoning and subdivision ordinances, that govern the board’s decision making when reviewing a specific proposal. The zoning provisions at issue here permit the use of agricultural land for single-family dwellings at a maximum density of one dwelling per five-acre lot. See Chisago County, Minn., Zoning Ordinance § 5.06(B)(10). The standards established in the zoning ordinance are conclusive until the board rezones the district or amends the zoning ordinance through proper legislative channels. See Chanhassen Estates, 342 N.W.2d at 340.

Third, even if the comprehensive guide plan had the force of law, its provisions are “intended to be general in nature” and are thus legally insufficient as a basis for denying an application for preliminary-plat approval. See Comprehensive Guide Plan, at ii; C.R. Invs., Inc., 304 N.W.2d at 327-28 (holding that provision in comprehensive plan requiring developer to demonstrate that proposed use “is consistent with the [comprehensive] plan’s general intent and purpose” was unreasonably vague, subjective, and did not furnish ground for denial of special-use permit). The comprehensive guide plan in this ease provides that the county’s agricultural goals are to

[p]rotect long term agriculture as a vital element in the County economy[,][p]re-vent the unnecessary conversion of prime farmland to non-farm uses[,][and][p]revent incompatible land uses in the agricultural areas.

Chisago County Comprehensive Guide Plan at 28. Like the provisions of the comprehensive plan in C.R. Invs. Inc., the provisions of the Chisago County Comprehensive Guide Plan are unreasonably vague and subjective for the purposes of furnishing a basis for denying approval of PTL’s preliminary plat.

Moreover, because the county’s zoning and subdivision ordinances implement the comprehensive guide plan, a preliminary plat that conforms with the requirements of zoning and subdivision ordinances conforms, by definition, with the comprehensive guide plan. Chanhassen Estates, 342 N.W.2d at 340. PTL’s preliminary plat conforms with the requirements of the zoning and subdivision ordinances. Accordingly, the decision to deny PTL’s preliminary plat on the basis that it fails to implement the comprehensive guide plan is premised on a legally insufficient reason.

We are mindful of the demands of land-use management. It is certainly proper for the board of commissioners to consider aesthetics, historical uses of the land, and the public cost of providing services for a given land use. But these considerations must be reflected with sufficient specificity-in the land-use ordinances. This decision does not preclude future revision of the zoning and subdivision ordinances to address these considerations.

DECISION

The board of commissioners exceeded its authority in denying PTL’s application for preliminary-plat approval on the basis that the proposed development was incompatible with existing land uses, was not well planned, and failed to implement the goals and policies of the comprehensive guide plan. The board’s withdrawal, at oral argument, of the additional bases for denial of preliminary-plat approval makes it unnecessary for us to consider PTL’s challenge to the board’s reliance on those bases. We reverse the board’s denial of preliminary-plat approval and remand to the board of commissioners for proceedings not inconsistent with this opinion.

Reversed and remanded.

      . Among other things, the comprehensive guide plan seeks to protect long-term agriculture, to prevent incompatible land uses, and to encourage rural residential housing in areas where support services and market conditions exist. Id. at 28-29.


author: KALITOWSKI, Judge.

text:
    In the Matter of the FINANCIAL RESPONSIBILITY FOR THE MENTAL HEALTH SERVICES PROVIDED TO D.F., a minor.
    No. C5-02-1248.
    Court of Appeals of Minnesota.
    Feb. 18, 2003.

      Kenneth R. White, Mankato, for appellant Human Services of Faribault and Martin Counties.
    John M. Tollefson, Lac qui Parle County Attorney, Dawson, for respondent Lac qui Parle County Family Services.
    Considered and decided by HARTEN, Judge, KALITOWSKI, Judge, and KLAPHAKE, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant Martin County challenges the district court's ruling that Martin County is financially responsible for mental health services provided by Lac qui Parle County to D.F., a minor, after D.F. moved to Lac qui Parle County.

FACTS

On January 3, 2001, D.F.’s mother applied to Human Services of Faribault/Mar-tin County (Martin) for mental héalth services on D.F.’s behalf. Voluntary, in-home services were provided for a number of months to help the child and mother cope with D.F.’s violent and inappropriate behaviors. On May 30, D.F.’s mother informed her in-home worker that she and the child were moving to Lac qui Parle County (Lac qui Parle). Because of the impending move, Martin terminated its services to D.F. and closed its case file on him. Sometime on or before June 7, D.F. moved to Lac qui Parle, and no further services were provided to him by Martin. Throughout the summer, D.F. lived with his mother in Lac qui Parle, but she neither applied for nor received services on his behalf.

On August 29, D.F.’s behavior deteriorated to such a degree that his mother applied to Lac qui Parle for services. Two days later, D.F. was admitted to inpatient psychiatric care. On September 13, Lac qui Parle submitted a written demand on Martin to assume financial responsibility for services provided to D.F., contending that D.F. had not yet established residency in Lac qui Parle.

The dispute was presented to the Minnesota Department of Human Services, where a referee determined that Martin had improperly terminated its services to D.F. and had not followed proper procedures for transferring responsibility to Lac qui Parle. The referee also determined that D.F. had not lived in Lac qui Parle for two full calendar months, leaving financial responsibility for his care with Martin.

On appeal to the Lac qui Parle District Court, Martin challenged the referee’s authority to determine that it had improperly terminated services to D.F. and disagreed with Lac qui Parle’s interpretation of the term “two calendar months.” The district court affirmed the referee’s determination that services to D.F. should not have been terminated and held that the termination was ineffective. The district court then ruled that Martin remained financially responsible for services to D.F.

ISSUE

Did the district court correctly determine that Martin was financially responsible for services provided to D.F.?

ANALYSIS

When reviewing an agency’s determination of a question of law, a court is “not bound by the decision of the agency and need not defer to agency expertise.” St. Otto’s Home v. Minnesota Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989). And when a district court has reviewed an agency determination, this court is not bound by the district court’s decisions. In re Signal Delivery Serv., Inc., 288 N.W.2d 707, 710 (Minn.1980).

Appellant Martin argues that the Department of Human Services referee and the district court incorrectly interpreted and applied Minnesota statutes to the facts of this case, leading them to find Martin financially responsible for services provided to D.F. after his move to Lac qui Parle. We agree.

This case turns on the application of various sections of the Unitary Residence and Financial Responsibility Act; Minn. Stat. §§ 256G.01, et seq. (2002). Specifically, the parties here dispute whether the issue is controlled by section 256G.02, subdivision 4(e), or by section 256G.07.

The district court found that appellant improperly terminated services to D.F. on May 31, 2001. Because the termination was improper, the court found it to be ineffective, so that D.F.’s case file in Martin essentially remained open even though no further services were provided to him. Having deemed the case to be technically open, the court found that financial responsibility was controlled by section 256G.02, subdivision 4(e), which states:

For an individual already having a social service case open in one county, financial responsibility for any additional social services attaches to the case that has the earliest date of application and has been open without interruption.

Applying this section, the court determined that Martin should remain financially responsible for services provided to D.F. because that county had the case with the earliest date of application that had been open without interruption.

The district court also cited as authority for its holding In re Financial Responsibility of Foster Care Services Provided to T.W., 627 N.W.2d 102 (Minn.App.2001). In T.W., this court held that financial responsibility should be determined by applying section 256G.02, subdivision 4(e), rather than section 256G.07 because section 256G.07, subdivision 1, dictated which county should provide services, while section 256G.02 applied when determining financial responsibility for the services that are provided. T.W., 627 N.W.2d at 105.

We reject the district court’s reliance on T.W. The facts here are distinguishable because in T.W., T.W. received services constantly before and after his move to a new county. Further, the new county assumed responsibility for providing services shortly after T.W.’s move. Id. at 103. Here, D.F. moved to Lac qui Pai'le no later than June 7, 2001. At the time of his move, Martin considered its file on D.F. to be closed and provided no further services to him. Moreover, D.F.’s mother did not apply for services for him in Lac qui Parle until August 29. Thus, even if the Martin file was not properly terminated in May, nearly three months passed before D.F. received any services in Lac qui Parle. Because of this difference in the timing of the provision of services, section 256G.02 no longer controls in determining which county is financially responsible for the services provided to D.F. as of August 31. Rather, we look to Minn. Stat. § 256G.07 (2002).

Minn.Stat. § 256G.07 is entitled “Moving to Another County.” This section specifically deals with the transition of services from one county to another when the recipient moves. Section 256G.07, subdivision 1, states:

[A] person who has applied for and is receiving services or assistance ⅝ * *, in any county in this state, and who moves to another county in this state, is entitled to continue to receive that service from the county from which that person has moved until that person has resided in nonexcluded status for two full calendar months in the county to which that person has moved.

Under this section, Martin would have re•mained responsible for providing services to D.F. until he had spent two months in Lac qui Parle. At that point, Martin would be entitled to cease providing services to D.F. and close its file on him.

Although the parties dispute whether D.F. moved to Lac qui Parle on May 31 or June 7, for purposes of this decision, either date leads to the same result. As noted above, Martin would have been responsible for services provided to D.F. until he had lived in Lac qui Parle .for “two full calendar months.” Id. Pursuant to Minn.Stat. § 645.14 (2002), the computation of a calendar month is determined as follows:

When, in any law, the lapse of a number of months before or after a certain day is required, such number of months shall be computed by counting the months from such day, excluding the calendar month in which such day occurs, and including the day of the month in the last months so counted having the same numerical order as the day of the month from which the computation is made, unless there be not so many days in the last month so counted, in which case the period computed shall expire with the last day of the month so counted.

While the wording of this statute is hardly a model of clarity, it has been interpreted by the supreme court as standing for the proposition that “months are generally understood to run from the given day in one month to the corresponding date in the specified preceding or succeeding month.” Hammer v. Investors Life Ins. Co. of North America, 511 N.W.2d 6, 9 (Minn.1994).

Under this interpretation, the “certain day” in this case is the date of D.F.’s move to Lac qui Parle, and counting from May 31, and not including May, two months would have passed on July 31. Counting from June 7, and not including June, two months would have passed on August 7. Thus, iri either case, Martin was entitled to terminate ‘ services and close its file on D.F. no later than August 7. Because D.F. no longer had an open file after that point, Minn.Stat. § 256G.02, subd. 4(e), no longer applied to him. Rather, D.F. fell under Minn.Stat. § 256G.02, subd. 4(b) (2002), which states that for a person not residing in an excluded-time facility, the county of financial responsibility is the county in which the person resides, here Lac qui Parle.

Minn.Stat. § 256G.07, subd. 3 (2002), states that if a recipient’s case is terminated 30 days or fewer before the recipient applies in the new county, the county from which the recipient moved remains financially responsible for services until the person has lived in the new county for two months. Even if Martin was entitled to terminate its file on D.F. on July 31, 30 days had not passed before D.F.’s mother applied for services in Lac qui Parle on August 29. Martin, it seems, should have been responsible for services provided to D.F. until he had spent two months in Lac qui Parle. But as we have just explained, D.F. had met this requirement by August 7. This is the time gap that distinguishes the present case from T.W. There, the move and the transfer of services were nearly simultaneous. T.W., 627 N.W.2d at 103. The financial dispute arose during the same month, and T.W. had clearly not established residency in the new county at that time. Here, D.F. had lived in Lac qui Parle long enough to establish residency there at the time services were provided to him and the financial dispute arose. Because D.F. was an established resident of Lac qui Parle at the time he began receiving services in that county, Lac qui Parle must be financially responsible for his care.

DECISION

The district court incorrectly determined that, under Minn.Stat. § 256G.02, subd. 4(e) (2002), Martin County remained financially responsible for services provided to D.F. Because D.F. had established residence in Lac qui Parle County by living there in nonexcluded status for more than two months, Minn.Stat. §§ 256G.02, subd. 4(b), and 256G.07, subd. 1, dictate that Lac qui Parle County must assume financial responsibility for those services.

Reversed.

      . "Excluded” status is defined by Minn.Stat. § 256G.02, subd. 6 (2002), and generally includes time spent in out-of-home care facilities and other placements.

      . We note that while D.F. entered an excluded-time facility on August 31, at the time of application (August 29), he was living at home with his mother, which does not qualify as excluded time under Minn.Stat. § 256G.02, subd. 6 (2002).