author: HUDSON, Judge.

text:
    Jean Ann DORMAN, n/k/a Jean Ann Hammes, Respondent, Douglas County, Respondent, v. James Clifford STEFFEN, Appellant, David LaVern Dorman, Respondent.
    No. C0-02-2274.
    Court of Appeals of Minnesota.
    July 29, 2003.

      Virginia Boever, Boever Law Office, Alexandria, MN, for respondent Hammes.
    Joel Paschka, Douglas County Attorney, Alexandria, MN, for respondent Douglas County.
    Tracey Lindberg, Tracey Lindberg Law Firm, P.A., Breckenridge, MN, for respondent Dorman.
    Ann Carrott, Swenson, Lervick, Syver-son, Anderson, Trosvig, Jacobson, P.A., Alexandria, MN, for guardian ad litem and minor child.
    Michael J. Dolan, Thornton, Hegg, Reif, Dolan & Bowen, P.A., Alexandria, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, WILLIS, Judge, and HUDSON, Judge.
   OPINION

HUDSON, Judge.

The district court denied appellant’s motion to dismiss the county’s paternity action against him for lack of subject matter jurisdiction. Appellant argues that the district court erred because (a) respondent-husband is the presumed father of the child; (b) Witso v. Overby, 627 N.W.2d 63 (Minn.2001), cert. denied, 534 U.S. 1130, 122 S.Ct. 1069, 151 L.Ed.2d 972 (2002), should not be extended to require him to submit to a blood test; and (c) the disruption to the family unit is against public policy. We affirm.

FACTS

Just before respondent B.D.’s third birthday, his parentage became the subject of litigation. He was born to respondent Jean Hammes during her marriage to respondent David Dorman. After Hammes filed for dissolution of their marriage but before it was finalized, Dorman filed an affidavit questioning paternity due to B.D.’s physical characteristics. Dorman then obtained a blood test showing that he was not B.D.’s father. Despite motions and stipulations of the parties, the final dissolution decree did not declare the nonexistence of Dorman’s parent-child relationship with B.D.; however,, it did contain findings that Dorman was not B.D.’s biological father and not responsible for B.D.’s support. Dorman’s separate action to establish nonpaternity, similarly, failed to result in an adjudication of nonpaternity-

Almost two years later, respondents Hammes and Douglas County, as the public authority chargeable by law with B.D.’s support, brought this action to establish paternity. B.D., through his guardian ad litem, was later joined as a plaintiff under Minn.Stat. § 257.60(3) (2002). As a result of his earlier marriage to Hammes, Dor-man was named as a defendant based on his status as presumed father under Minn. Stat. § 257.55, subd. 1(a) (2002). Appellant James Steffen was also named as a defendant based on Hammes’ affidavit alleging that he was B.D.’s biological father. Steffen denied that he was the father of B.D.

Commencement of the county’s action was the impetus for Dorman and Hammes to move for an amendment to their dissolution order to include a declaration of the nonexistence of Dorman’s parent-child relationship. Steffen moved to intervene in the dissolution action to prevent the amendment. Dorman also attempted to consolidate his nonpaternity action with the county’s action to establish paternity. The dissolution court denied Steffen’s motion to intervene and amended the decree to declare the nonexistence of Dorman’s parent-child relationship with B.D.

Steffen then moved for dismissal of the present action by the county to establish paternity. The district court: (1) denied Steffen’s motion to dismiss; (2) dismissed Dorman’s nonpaternity action; (3) declared the amended dissolution decree void; and (4) ordered Steffen to submit to a blood test. Steffen appeals, arguing that the district court does not have subject matter jurisdiction over the county’s action. His efforts-to stay the blood testing order were unsuccessful. At oral argument, Steffen’s counsel indicated that Stef-fen has taken the blood tests.

ISSUE

Did the district Court err in its determination that it had subject matter jurisdiction over the county’s parentage action naming both the presumed and the alleged fathers as defendants?

ANALYSIS

Subject matter jurisdiction is conferred on the courts by statute, rule, or other authority. Kasdan v. Berney, 587 N.W.2d 319, 322 (Minn.App.1999) (noting subject matter jurisdiction granted only by law). Whether subject matter jurisdiction exists is a question of law, subject to de novo review. Handicraft Block Ltd. v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn.2000). Similarly, interpretation of the Minnesota Parentage Act (MPA) is a question of law this court reviews de novo. R.B. v.C.S., 536 N.W.2d 634, 637 (Minn.App.1995).

Appellant Steffen — the alleged father— argues that the county does not have authority to commence a paternity action where a presumed father as a result of marriage already exists. The thrust of his argument is that the county’s paternity action naming both Steffen and Dorman will effectively declare the nonexistence of Dorman’s paternity even though Dorman, as the presumed father, independently could not obtain a, declaration of the nonexistence of the parent-child relationship. We find no merit in Steffen’s position.

The MPA sets up procedures to be followed in determining parentage when it is in doubt.. Minn.Stat. §§ 257.51-.74 (2002). It sets up presumptions of parentage, designates who can bring actions and when, and authorizes blood testing. Minn.Stat. §§ 257.55 (2002), .57 (2002), .62 (2002). Notably, it specifically confers jurisdiction of actions brought under the MPA on the district courts. Minn.Stat. § 257.59, subd. 1 (2002).

Paternity and nonpaternity actions receive distinct treatment under the act. See State of Georgia ex rel. Brooks v. Braswell, 474 N.W.2d 346, 349-50 (Minn.1991). Actions to, establish paternity can be brought at any time, while actions to declare the nonexistence of the parent-child relationship are subject to various statutes of limitations. See, e.g., Minn. Stat. § 257.57, subds. 1(a), 1(b), 2(1), 2(2), (3), (4) (2002); Clay v. Clay, 397 N.W.2d 571 (Minn.App.1986) (denying motion to reopen dissolution decree regarding parentage after three-year statute of limitations had run and concluding fraud was no defense under MPA), review denied (Minn. Feb. 17, 1987). Significant to our analysis here, the mother, child, and “public authority chargeable by law with the support of the child” are expressly authorized to bring an action at any time to declare the existence of the father-child relationship presumed by a blood test. Minn.Stat. § 257.57, subd. 2(1).

Steffen miseharacterizes the county’s action as one to declare the nonexistence of Dorman’s parental relationship with B.D. But the summons and complaint state that the purpose of the action is to “establish[] parentage and support.” All of the plaintiffs in the action — the county, the mother, and the child — have a vested interest in establishing paternity. None have requested an accompanying declaration of nonpaternity. Dorman himself has not requested review of the district court’s dismissal of his action to establish nonpa-ternity, and in any event, the statute of limitations has run on commencing such an action. Minn.Stat. § 257.57, subd. 1(b) (limiting presumed fathers by marriage from commencing actions to declare nonexistence of relationship later than three years after child’s birth). In short, the county’s parentage action falls squarely within the statutory framework allowing a “public authority chargeable by law with the support of the child” to bring an action to establish paternity. Id., subd. 2(1).

Steffen further argues that he cannot be a presumed father based on a blood test until a blood test result exists. He further alleges that the district court has no jurisdiction to compel him to submit to a blood test. Taking Steffen’s argument to its logical conclusion, a putative father can avoid a paternity action simply by refusing a blood test despite the mother’s allegation that he is the child’s biological father.

The Minnesota Supreme Court rejected a similar argument in Witso v. Overby, 627 N.W.2d 63 (Minn.2001), cert. denied, 534 U.S. 1130, 122 S.Ct. 1069, 151 L.Ed.2d 972 (2002). In a closely divided opinion, the court held that Witso, the man alleging himself to be the father, had standing to bring an action under section 257.57, subdivision 2, to establish the existence of the father-child relationship even though: (1) he did not yet have the blood test results to establish himself as a presumed father pursuant to section 257.55, subdivision 1(f); and (2) a presumed father already existed. Id. at 67. The Witso court specifically recognized that the act provides a “cause of action to establish a presumption of paternity.” Id. If a putative father, without blood test results, may bring an action to establish a presumption in himself under Minn.Stat. § 257.57, subd. 2(1), we believe that the county, the child, or the mother may also bring an action to establish a presumption of paternity in the putative father and may compel him to submit to a blood test to establish that presumption.

Our holding is buttressed by the fact that the child, the mother, and the alleged father are all subject to mandatory blood testing under Minn.Stat. § 257.62, subd. 1 (2002). Indeed, the district court is required, upon the request of a party, to order the child, the mother, or alleged father to submit to blood or genetic testing upon filing of an affidavit that establishes the “reasonable possibility” that sexual contact did or did not occur between the parties. Id. Significantly, this statutory mandate is not contingent on the application of presumptions in MinmStat. § 257.55 (2002). Here, the mother (Ham-mes) provided an affidavit alleging that B.D. was born while she was married to Dorman, but that she had engaged in sexual intercourse with Steffen around the date that B.D. was conceived. Based on Ham-mes’ affidavit alleging Steffen’s paternity, the court ordered Steffen to submit to a blood test. See Frieson v. Pahkala, 653 N.W.2d 199, 202 (Minn.App.2002) (district court takes allegations in affidavit as true in ordering blood test). Moreover, all plaintiffs, including the guardian ad litem of the child, want the blood testing. Under these circumstances, Steffen may not refuse to submit to a blood test in an effort to thwart an action to establish paternity.

Steffen also argues that the court cannot subject him to a blood test because a presumed father still exists. This argument has no support in the statutes or caselaw. The MPA expressly contemplates the possibility of two or more conflicting presumptions arising in the sanie case. Minn.Stat. § 257.55, subd. 2 (2002); see Witso, 627 N.W.2d at 69 (noting that even positive match by genetic test may not result in desired outcome for Witso because court weighs “conflicting presumptions” by “weightier considerations of policy and logic” (quotation omitted)); State v. Thomas, 584 N.W.2d 421, 423 (Minn.App.1998) (holding parentage act anticipates and allows for the possibility of conflicting presumptions of paternity), review denied (Minn. Nov. 17, 1998); In re Paternity of B.J.H., 573 N.W.2d 99, 101 (Minn.App.1998) (resolving paternity where husband presumed father by marriage and paramour presumed father by blood test). In such cases, the court determines which presumption is founded on the “weightier considerations of policy and logic.” Minn. Stat. § 257.55, subd. 2. Thus, the competing presumptions will properly be decided by the district court.

Steffen’s public policy arguments similarly lack merit. He argues primarily that he, an unwilling father, should not be thrust into this paternity matter, especially since the MPA, with its marriage-based presumption, is designed to promote stability within the marriage and family unit. First, none of the “family” members opposes this action to determine if Steffen is the biological father. In fact, the child argues that he may commence his own action against Steffen if the county’s action is dismissed. Second, caselaw indicates that no one presumption is more compelling or weightier than another. B.J.H., 573 N.W.2d at 102-03 (rejecting argument that “stability” should be favored over other considerations); Kelly v. Cataldo, 488 N.W.2d 822, 827 (Minn.App.1992) (discussing many considerations involved in determining paternity), review denied (Minn. Sept. 15, 1992). Third, the “family” and marriage that Steffen urges this court to protect and preserve was dissolved years ago. See Thomas, 584 N.W.2d at 425 (noting that marriage leading to marital presumption was dissolved leaving preservation of family unit of minimal consequence). Fourth, Steffen’s policy arguments ignore the fact that the establishment of the parent-and-child relationship is a critical, fundamental right of a child. See Johnson v. Hunter, 447 N.W.2d 871, 876 (Minn.1989) (stating “[establishment of the parent-child relationship is the most fundamental right á child possesses * * (quotation and citation omitted)). Furthermore, the child has “distinct and separate” interests from the parents, including inheritance, medical support, causes of action, workers’ compensation dependent’s allowances and veteran’s education benefits. Id. at 875.

On these facts, we believe Witso is dis-positive and the county was authorized to bring its parentage action pursuant to section 257.57, subd. 2(1).

DECISION

As a public authority chargeable by law with the support of the child, Douglas County was authorized pursuant to Minn. Stat. § 257.57, subd. 2(1), to bring an action against appellant Steffen to establish paternity prior to obtaining blood tests confirming his presumed paternity. Further, the Minnesota Parentage Act expressly contemplates the possibility of two or more conflicting presumptions; thus the existence of a presumed father by marriage does not preclude the public authority chargeable by law with the support of the child from commencing an action to establish paternity of someone other than the presumed father. The district court had subject matter jurisdiction of the county’s parentage action pursuant to Minn.Stat. § 257.59, subd. 1. For all of these reasons, the district court properly denied appellant’s motion to dismiss for lack of subject matter jurisdiction.

Affirmed.

      . Pursuant to Minn.Stat. § 257.57, subd. 2(1), B.D. can bring an action to declare the existence of the parent-child relationship "at any time” based on a presumption due to blood or genetic testing.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    CITY OF BLOOMINGTON, Appellant, BLOOMINGTON AMPHITHEATER COALITION, Appellant, v. CITY OF BURNSVILLE, Respondent.
    Nos. C6-02-1985, C3-02-2009.
    Court of Appeals of Minnesota.
    July 29, 2003.

      Lawrence A. Moloney, Peter K. Beck, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, MN; and David R. Orn-stein, City of Bloomington, Bloomington, MN; and David L. Sasseville, Lindquist & Vennum, P.L.L.P., Minneapolis, MN, for appellants.
    George C. Hoff, Kimberly B. Kozar, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; HARTEN, Judge; and MINGE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

In these combined appeals, Bloomington and Bloomington Amphitheater Coalition challenge the responsible governmental unit’s (Burnsville’s) negative declaration on an environmental-impact statement for a proposed outdoor amphitheater under the Minnesota Environmental Policy Act (MÉPA). On appeal from the district court’s affirmance of Burnsville’s decision and from the entry of summary judgment against Bloomington, Bloomington argues that the record supports both a mandatory and discretionary environmental-impact statement. The appeal also raises the question of whether the courts may consider evidence outside of the agency record in their review of the responsible government unit’s decision. Because the record establishes that the threshold for a mandatory environmental-impact statement was met, we reverse and remand.

FACTS

Developer Rose Wild, LLC proposed the construction of a new outdoor amphitheater in the City of Burnsville, near its northern border with Bloomington and the Minnesota River. The proposed Black Dog Amphitheater would be located in the Minnesota River Valley on part of a 159.9-acre property owned by R.B. McGowan and used as the Freeway Landfill, known as a superfund site.

Burnsville was designated the responsible governmental unit (RGU) for environmental review of the project under the Minnesota Environmental Policy Act, Minn.Stat. §§ 116D.01-.il (2002) (MEPA). The City of Bloomington and a neighborhood association, Bloomington Amphitheater Coalition (BAC) (collectively “Bloomington”), petitioned the Minnesota Environmental Quality Board (MEQB) to appoint the Minnesota Pollution Control Agency (MPCA) as the RGU, but the MEQB denied the request.

Burnsville proposed and published an environmental-assessment . worksheet (EAW) on the project. On July 20, 2000, after a comment period, the Burnsville City Council held a special meeting to decide whether an environmental-impact statement (EIS) was needed. In its record of decision (ROD) dated the same day, it issued a negative declaration, determining that the Black Dog Amphitheater EAW met the required environmental review, so neither a mandatory nor a discretionary EIS would be needed.

A few weeks later, Bloomington filed a written request with the Metropolitan Council seeking a Metropolitan Significance Review of the proposed amphitheater pursuant to MinmStat. § 473.173 (2002). The issue to be reviewed by the council was whether the amphitheater would have a noise impact on existing and planned land uses in Bloomington. Mediation commenced with representatives of Blooming-ton, BAC, Citizens Alliance for Responsible Ecology (CARE), Burnsville, and Rose Wild. The parties’ representatives agreed to a further acoustical study.

Mediation continued by mutual consent until October 2, 2001, when an impasse was declared. The administrative law judge (ALJ) appointed by the Metropolitan Significance Review Committee held hearings in November 2001. On December 10, 2001, the ALJ recommended that the committee determine a method to proceed that assures that Rose Wild adhere to the planned-unit-development (PUD) requirements and commitments it made during the hearing. The committee adopted the ALJ’s findings and conclusions that anticipated amphitheater noise will not cause substantial physical adverse effect and will not have metropolitan significance. It also responded to the ALJ’s concern about the PUD requirements and other Rose Wild commitments by requiring that the Metropolitan Council enter into a binding agreement with Rose Wild to require compliance. The agreement would also require ongoing noise monitoring by an independent third party at Rose Wild’s expense. Rose Wild entered into an agreement with the Metropolitan Council on December 26, 2001.

While the metropolitan-significance review was in progress and before the ALJ’s recommendation was issued, Burnsville approved an amendment to the PUD for the amphitheater. It specifically amended the 2000 PUD to limit the capacity of the amphitheater to “19,700 people, including all patrons, facility staff (including security and parking staff), entertainer/promoter staff and any other authorized personnel.” This PUD amendment is referenced in the Metropolitan Council’s agreement with Rose Wild.

Just after the parties requested metropolitan-significance review from the Metropolitan Council, Bloomington, and the BAC commenced actions in Dakota County District Court against Burnsville. The two actions were consolidated but not actively litigated until after the metropolitan-significance review decision in December 2001.

Shortly after the metropolitan-significance review decision, the parties filed cross-motions for partial summary judgment on Count I of the consolidated actions, which alleged that the amphitheater was designed for or had capacity for 20,000 or more people and met the threshold for a mandatory EIS. After a hearing, the court issued fits March 25, 2002, order granting Burnsville summary judgment on Count I. The court concluded that “[t]he [Burnsville City] Council had sufficient information before it that the capacity of the amphitheater would be less than 20,000.”

After the March 25 order issued on Count I, Bloomington moved in limine to exclude any evidence developed after the ROD. On June 19, the court denied the motion, stating that the PUD Agreement and any other “regulatory controls” put into effect after the ROD are admissible in the district court litigation. It also denied Bloomington’s request to conduct its own acoustical sound study. The court granted Burnsville’s motion to amend its answer to include the defenses of res judicata and collateral estoppel, and it noted that the Metropolitan Council proceedings would be admissible pursuant to those doctrines.

On June 14, Bloomington moved for partial summary judgment on Counts II and III, which alleged that the project has the potential for significant environmental effects, requiring a discretionary EIS. Burnsville filed a cross-motion" for summary judgment. The court explained in the memorandum attached to its October 4,' 2002 order that Burnsville prevails on Counts II and III whether the court views only the “narrow record” or all of the regulatory controls (PUD agreement, Metropolitan Council Significance Review, and Rose Wild agreement with the Metropolitan Council). The court also ruled that the findings of the Metropolitan Council are accorded collateral-estoppel effect. Judgment was entered against Bloomington on November 14, 2002, and the cases were dismissed.

Bloomington and the BAC filed a notice of appeal from the judgment and the orders granting Burnsville summary judgment.

ISSUES

I. Did the respondent responsible governmental unit err when it determined that the amphitheater project was designed for, and could be expected to have, peak attendance of fewer than 20,000 people?
II. Did the district court properly use evidence outside of the responsible governmental unit’s record in affirming that determination?
III. Did the responsible governmental unit err when it determined that a discretionary environmental-impact statement was unnecessary because the amphitheater project does not have the potential for significant environmental effects?.

ANALYSIS

When reviewing a district court’s summary-judgment affirming' an agency’s negative declaration regarding the need for an environmental-impact statement (EIS), this court focuses “on the proceedings before the decision-making body * * *, not the findings of the trial court.” Iron Rangers for Responsible Ridge Action v. Iron Range Res., 531 N.W.2d 874, 879 (Minn.App.1995) (quotation omitted), review denied (Minn. July 28, 1995). “Agency decisions are reversed only when they reflect an error of law, the findings are arbitrary and capricious, or the findings are unsupported by substantial evidence.” White v. Minn. Dep’t. of Natural Res., 567 N.W.2d 724, 730 (Minn.App.1997)(quotation omitted), review denied (Minn. Oct. 31, 1997); Accord Iron Rangers, 531 N.W.2d at 879-80.

This dispute centers on the construction of the administrative rule setting the threshold for a mandatory EIS. The legislature has authorized the MEQB to establish by rule, categories of actions for which an EIS is required.. Minn.Stat. § 116D.04, subd. 2a(a) (2002). Under the rule, an EIS is mandatory for construction of a new outdoor entertainment facility that meets or exceeds the following threshold: “designed for or expected to accommodate a peak attendance of 20,000 or more persons.” Minn. R. 4410.2000, subp. 2, 4400, subp. 22 (2001). The MEQB has explained that “[t]he number of participants is to be counted as part of the attendance” in applying this threshold. Minnesota Environmental Quality Board, Guide to the Minnesota Environmental Review Rules 31 (Apr.1998).

The rules create a presumption that a facility of the magnitude indicated in the threshold has “potential for significant environmental effects.” Minn. R. 4410.1700, subp. 1 (2001). Such potential requires an EIS. Minn.Stat. § 116D.04, subd. 2a. If the threshold is not met, the RGU may order an EIS when it determines that there is substantial evidence of “the potential for significant environmental effects.” Minn. R. 4410.2000, subp. 3 (2001).

Bloomington argues that the evidence before the RGU when it made its negative declaration on July 20, 2000, was that the capacity of the proposed amphitheater was 20,000 or more persons. Burnsville argues that there was substantial evidence that the amphitheater was designed for 19,500.

The environmental-review process begins with the EAW, which is “a brief document * * * designed to set out the basic facts necessary to determine whether an environmental-impact statement is required for a proposed action.” Minn.Stat. § 116D.04, subd. la(c) (2002). The RGU’s determination “on the need for an environmental-impact statement shall be based on the environmental assessment worksheet and the comments received during the comment period.” Id., subd. 2a(b)(2002). The RGU is required to support its decision with specific findings of fact in a record that also included specific responses to all substantive and timely comments on the EAW. Minn. R. 4410.1700, subp. 4 (2001).

While Burnsville agrees that there are “a number of conflicting statements regarding the design capacity in the EAW record,” it states that Burnsville’s clear intent was to limit attendance through ongoing regulatory controls so that the project will never reach the mandatory EIS level. Contrary to Burnsville’s argument, the RGU’s intent is not determinative. MEPA contemplates that the relatively brief, factual EAW, the comments of interested parties, and the responses of the RGU will be used to determine if the threshold has been met.

There are conflicting statements in the briefs and the EAW regarding “design,” “capacity,” “seating,” and “attendance.” Although the terminology is used interchangeably and somewhat indiscriminately, the administrative rule clearly states that the threshold is based on (1) the number of persons for which the project was designed or (2) the greatest number that the project will accommodate. Minn. R. 4410.4400, subp. 22. If either figure is “20,000 or more,” an EIS is mandatory.

Here, the 1989 EAW indicated that the project involved an amphitheater “with a peak attendance of 20,000 persons” and maximum seating of 19,500. This statement of peak attendance squarely meets the threshold requiring an EIS. The 2000 EAW, however, simultaneously indicates that the peak attendance will be 19,500 and that it will seat 19,500. The 2000 EAW indicates that it “is an update of a previously approved 1989 EAW for an identical sized facility at the same location” (emphasis added). It also states that it is a completely different building and site design. In response to comments and questions about this discrepancy, Burnsville’s answer was that the originally stated capacity would be changed to 19,500.

Except for the one reference in the 2000 EAW to a 19,500 peak attendance figure, all other references in the record to 19,500 or 19,700 are to “seating” and “seating capacity.” The project is described as providing either 12,300 or 12,500 lawn seats and 7,200 covered seats. The EAW comments also indicate that the actual seats sold are only one part of total attendance at an event. Bloomington noted that many support staff are required for an event, including performers, entourage, security, ticket sales, parking, concessions, and others. The Bloomington mayor noted that on-site staffing of 400-600 would be required for a crowd of 20,000 at the Metrodome. Burnsville did not respond specifically to the comments on the required support staff or to statistics regarding peak attendance exceeding seating capacity in other forums such as the Met-rodome or Target Center. It responded to comments generally stating that the “maximum total occupancy” will never exceed 20,000, and, in its record of decision, stating that the maximum total occupancy of the site, including staff, performers, and crew, will never exceed 20,000. Because these statements indicate that there could be 20,000 people on site, they also meet the threshold set by the rule.

On this record, substantial evidence indicates that the threshold for a mandatory EIS was met.

Burnsville argues that the court may consider evidence outside the administrative record to supplement and explain the attendance question. For limited purposes, consideration of evidence outside of the record is permissible if:

(1) the agency’s failure to explain its action frustrates judicial review; (2) additional evidence is necessary to explain technical terms or complex subject matter involved in the agency action; (3) the agency failed to consider information relevant to making its decision; or (4) plaintiffs make a showing that the agency acted in bad faith.

White, 567 N.W.2d at 735. The White court cautioned that a summary-judgment motion cannot be defeated by simply “presenting additional evidence that was not considered by the [agency] when making its decision;” rather, those proffering the additional evidence must show that the agency “failed in its responsibility to prepare an EAW * * *, either by avoiding an issue or by ignoring evidence about an issue that was addressed.” Id.

As evidence for the courts to consider, Burnsville proffers what it describes as the only source of evidence regarding the “design” of the amphitheater, testimony by designer Greg Vogel. It cites his testimony provided in August 2000, about one month after the ROD was issued, which clarifies his calculation of lawn seating and supports the figure of 12,300 as the number of lawn seats available. While this testimony contradicts Bloomington’s calculation of a much greater lawn-seating capacity, it is otherwise unhelpful in explaining Burnsville’s ROD and does not fall within the four categories of permissible additional evidence.

Burnsville also urges this court to consider the PUD agreement dated November 19, 2001, and the Rose Wild agreement with the Metropolitan Council dated December 26, 2001. Both documents were executed almost 18 months after Burns-ville’s ROD. Both documents state that the maximum occupancy would be 19,700, including performers and staff. These agreements, clearly outside of the RGU’s record, also do not fall within the circumstances allowing the reviewing court to consider additional evidence. The agreements reflect a distinct change in the proposal set out in the EAW, which is the basic source upon which the EIS decision is to be based. They do not provide necessary technical evidence unavailable to the RGU, information the agency failed to consider at the time of its decision, or evidence of the agency’s bad faith.

Because the record indicates that the threshold for peak attendance was met, the RGU erred in concluding that the mandatory-EIS threshold was not met. Additionally, the limited grounds allowing the courts to consider the proffered additional evidence were not met, so the district court and this court must limit their review to the record before the RGU. Because this court reverses the RGU and remands for a mandatory EIS, we need not review the RGU’s decision regarding a discretionary EIS.

DECISION

The record before the responsible governmental unit and the record of decision both established that the legal threshold for amphitheater size was met, requiring a positive declaration for a mandatory environmental-impact statement.

Reversed and remanded.

      . The United States Department of the Interi- or is on record stating that projects proposed on or in the vicinity of the superfund site should be developed only if compatible with necessary management of the superfund site and subject to the approval of the MPCA and the U.S. Environmental Protection Agency.


author: HARTEN, Judge. MINGE, Judge

text:
    STATE of Minnesota, Respondent, v. Kristopher Gerald FINGAL, Appellant, Dennis Jay FRANKE, Appellant.
    Nos. C4-02-1967, C3-03-254.
    Court of Appeals of Minnesota.
    July 29, 2003.

      Jeffrey D. Schiek, Phillip G. Villaume, Villaume & Associates, Edina, MN, for appellants.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.
    Teresa J. Nelson, Minnesota Civil Liberties Union, St. Paul, MN, for amicus curiae Minnesota Civil Liberties Union.
    Considered and decided by MINGE, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.
   OPINION

HARTEN, Judge.

Appellants were tried separately on stipulated facts and convicted separately under Minn.Stat. § 617.247 (1999) of possession of pictorial representations of minors. In this consolidated appeal, both challenge the constitutionality of that statute.

FACTS

Appellant Kristopher Fingal was charged with possessing child pornography in violation of Minn.Stat. § 617.247 (2000). He moved to dismiss the charges on the ground that Minn.Stat. § 617.247 is unconstitutional. The district court, relying on Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (definition of pornographic work appearing in Minn.Stat. § 617.246, subd. l(f)(2)(iii) (2000), and referenced in Minn.Stat. § 617.247, unconstitutionally void for over-breadth), concluded that, although Minn. Stat. § 617.246, subd. l(f)(2)(iii), was unconstitutional, it was severable, and ordered respondent State of Minnesota to file notice of its intent to proceed against Fingal under the surviving provisions of the statute. The state complied and amended its complaint to charge Fingal with possessing child pornography as defined in Minn.Stat. § 617.246, subd. 1(f)(1) (2000), and/or Minn.Stat. § 617.246, subd. 1(f)(2)®, (ii) (2000). Fingal unsuccessfully moved to dismiss the complaint. He was convicted on stipulated facts, among them an admission that the depictions in his possession were of “real, identifiable children.”

Appellant Dennis Franke was charged under the same statutory provisions. He also was convicted on stipulated facts including an admission that the images were of real, identifiable children. Both appellants filed appeals, which this court consolidated. The Minnesota Civil Liberties Union filed an amicus curiae brief on behalf of appellants.

ISSUES

1. Are the definitions of “pornographic work” set forth in Minn.Stat. § 617.246, subd. 1(f)(1), (2)(i), (2)(ii) (2000), unconstitutional for vagueness and overbreadth?

2. Do appellants have standing to challenge on due process grounds the constitutionality of the definitions of “pornographic work” set forth in Minn.Stat. § 617.246, subd. 1(f)(1), (2)(i), (2)(ii) (2000)?

3. Are the definitions of pornographic work set forth in Minn.Stat. § 617.246, subd. 1(f)(1), (2)(i), (2)(ii) (2000), unconstitutional for violations of due process?

ANALYSIS

1. Vagueness and Overbreadth

Evaluating the constitutionality of a statute is a question of law. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). Thus, we are not bound by the district court’s conclusions. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993). Minnesota statutes are presumed constitutional, and the court’s power to declare them unconstitutional should be exercised with extreme caution and only when absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989).

Appellants contend that the statute is unconstitutionally vague and over-broad because it prohibits depictions of sexual performance activities not involving real children. As a threshold matter, we note that, because appellants stipulated to possessing materials depicting sexual performances by real, identifiable children, their challenge to the statute as overbroad in allegedly prohibiting depictions of other sexual performances must be made under the facial overbreadth doctrine. The doctrine is an exception to the general rule that a person to whom a statute may constitutionally be applied has no standing to challenge that statute on the ground that it might conceivably be applied unconstitutionally to others in situations not before the court. State v. Mireles, 619 N.W.2d 558, 561 (Minn.App.2000), review denied (Minn. 15 Feb. 2001). The doctrine is invoked when “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. (quotation omitted).

[B]eeause the doctrine has the potential to void an entire statute, * * * [it] should be applied * * * only if the degree of overbreadth is substantial. A determination of substantial overbreadth requires a finding of realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.

Id. (citations and quotation omitted). Because appellants themselves were convicted of possessing materials legitimately prohibited by the statute, their challenge to its constitutionality for overbreadth will succeed only if that overbreadth is substantial.

Appellants argue first that Minn. Stat. § 617.246, subd. 1(f)(1) (2000), is overbroad. It provides that “pornographic work” means:

an original or reproduction of a picture, film, photograph, negative, slide, videotape, videodisc, or drawing of a sexual performance involving a minor ⅜ * *.

For this argument, they rely on Ashcroft v. Free Speech Coalition, 535 U.S. 284, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). The Ashcroft holding, in summary, is as follows:

[18 U.S.C. § ] 2256(8)(B) prohibits “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” * * *
⅜ ⅜ ⅜ ⅜
* * * [T]he statute * * * leaves unprotected a substantial amount of speech not tied to the Government’s interest in distinguishing images produced using real children from virtual ones.
In sum, * * * [the statute] abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.

Id. at 241-42, 256, 122 S.Ct. at 1397, 1405. The operative phrase for the Ashcroft court was “appears to be.” But unlike the federal statute, the Minnesota statute does not pertain to visual images that “appear to be” of sexual activity involving a minor; it pertains only to depictions actually representing “a sexual performance involving a minor.” “Minor” is defined at Minn.Stat. § 617.246, subd. 1(b), as “any person under the age of 18.” If the sexual performance depicted does not, in fact, involve a person under the age of 18, possession of the depiction is not prohibited. Thus, appellants’ challenge to Minn.Stat. § 617.246, subd. 1(f)(1), fails.

Appellants then challenge Minn.Stat. § 617.246, subd. 1(f)(2), defining pornographic work as:

any visual depiction, including any photograph, film, video, picture, drawing, negative, slide, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means that:
(i) uses a minor to depict actual or simulated sexual conduct; [or]
(ii) has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct

Again, appellants rely on the Ashcroft distinction between actual child pornography, involving real children, and virtual child pornography, involving virtual children, and argue that the Minnesota statute fails to make that distinction. But appellants misread the statute: both provisions pertain only to real children. ' Minn.Stat. § 617.246, subd. l(f)(2)(i), defines pornographic work to include any visual depiction that “uses a minor to depict actual or simulated sexual conduct.” While the depiction may be computer-generated and the sexual conduct may be simulated, the minor may be neither computer-generated nor simulated but must be, as defined by Minn.Stat. § 617.246, subd. 1(b), a “person under the age of 18.”

Minn.Stat. § 617.246, subd. l(f)(2)(ii), defines pornographic work to include any visual depiction “created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.” The visual depiction must be of an identifiable minor, not a virtual child. Thus, the Minnesota statutory provisions comply with the Ashcroft requirement that a statute prohibit only materials involving sexual performances by real children.

A determination that the statute is facially overbroad requires a “finding of realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Mireles, 619 N.W.2d at 561 (quotation omitted). We cannot make such a determination and, accordingly, we conclude that the statute is not unconstitutionally overbroad.

2. Due Process: Standing

We review de novo the legal issue of standing. Nash v. Wollan, 656 N.W.2d 585, 588 (Minn.App.2003) (citing Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 ,(Minn.1984)), review denied (Minn. 29 Apr. 2003). Appellants raise three due process challenges to the constitutionality of Minn. St'at. § 617.246, subd. 1(f). - First, appellants claim it lacks an “innocent downloading” defense, but neither appellant meets the “innocent downloader” standard. See 18 U.S.C. § 2252(c) (2000) (innocent down-loaders must take prompt steps to destroy visual depictions or-report the matter to law enforcement agency). Second, appellants claim that, it lacks an exception for those possessing a small number of works, but appellants stipulated to - possessing large numbers of works. Finally, appellants argue that the statute violates due process because it lacks a scienter requirement as to the age of the persons depicted, but neither appellant has claimed not knowing that the persons depicted were minors.

Those to whom a-statute may constitutionally be applied lack standing to challenge that statute on the ground that it might conceivably be applied unconstitutionally to others in situations not before the court. Mireles, 619 N.W.2d at 561. Thus, appellants lack standing to raise their due process challenges. Nevertheless, we review those challenges in the interests of justice. See Minn. R. CivApp. P.. 103.04 (permitting appellate review of any matter as the interests of justice may require).

3. Due Process Challenges

a. “Innocent Downloading” Defense and Scienter Requirement

Appellants contend that Minn. Stat. § 617.247 (2000) is unconstitutional because it would reach, an individual who inadvertently or accidentally downloaded “what he or- she thought was a legitimate site” but discovered that it contained child pornography. Appellants misread the statute. It provides that only those “knowing or with reasoh to know [a work’s] content and character” can be found guilty of possession of a pornographic work. Minn.Stat. § 617.247, subd. 4. The relevant definition of “pornographic work” at Minn.Stat. § 617.246, subd. 1(f), refers to depictions of sexual activity involving minors. Therefore, those who neither knew nor had reason to know that a site contained child pornography or depicted real children would not be at risk under the statute.

b. “Small Number” Defense

Appellants cite 18 U.S.C. § 2252A(d) (2000), which provides an affirmative defense for a defendant who pos- ' sesses fewer than three images and promptly either takes reasonable steps to destroy them or reports the matter to a law enforcement agency and provides access to the images. Appellants argue that, because no Minnesota statute provides this affirmative defense, the Minnesota statutes violate due process. But appellants offer no support for the view that state statutes violate due process if they fail to provide the affirmative defenses provided in federal statutes, and they cite no statute or caselaw constitutionally requiring the existence of such an affirmative defense.

Appellants’ due process challenges fail.

DECISION

MinmStat. § 617.246, subd. 1(f)(1), (2)(i), (2)(ii) (2000), are not substantially over-broad because they refer only to depictions of minors, or persons under the age of 18, and not of virtual or imaginary children. The statute does not violate due process because it excludes innocent viewing and accidental downloading.

Affirmed.

MINGE, Judge

(concurring specially).

Although I do not join in the opinion, I join in the decision of the majority affirming the conviction of appellants.

Freedom of expression is a fundamental right secured by the First Amendment of the United States Constitution and Article I, Section 3 of the Minnesota Constitution. We strictly scrutinize limits on expression and insist that such limits be justified by a compelling and overriding public purpose, and that they be narrowly crafted to serve that compelling purpose, without infringing on protected expression. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 242-46, 122 S.Ct. 1389, 1398-99, 152 L.Ed.2d 403 (2002); cf. United States v. Carotene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938); State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 796 (Minn.1999); In re Blodgett, 510 N.W.2d 910, 914 (Minn.1994). Obscenity and child pornography are not protected and can be prohibited. Ashcroft, 535 U.S. at 238-40, 122 S.Ct. at 1396.

Appellants have admitted to possession of child pornography of identifiable children. Since the power of the state to criminalize child pornography was recognized by the Supreme Court in the case of New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), this appeal has an easy, almost simplistic, dimension. However, this case presents two more difficult problems. The first is the potential overbreadth of the statute in criminalizing the. possession of pornographic drawings of minors. Drawings are different from pictures. The term “drawing” lacks precision and is vague. The majority interprets the statute as only covering drawings of actual identifiable minors and appears to conclude that the accused would have to know or have strong reason to know that the drawings were of actual, identifiable minors. Only such a narrow reading of the statute and such a scienter requirement avoid the problem of overbreadth. Furthermore, such a narrow reading reduces the likelihood that the overbreadth is sufficiently substantial to justify striking the entire statute as unconstitutional.

The second problem is that the Supreme Court has not yet determined whether possession of images of an actual child that have been altered to appear as if that child is engaged in sexual activity can be subject to criminal penalties. See Ashcroft, 535 U.S. at 241-42, 122 S.Ct. at 1397. The statute before us takes that step. Minn. Stat. § 617.246, subd. l(f)(2)(ii) (2000). The majority opinion upholds that provision. The opinion and the statute should be read as including a strong requirement of scienter as to both content and character. The statute should be understood to require actual knowledge or a clear reason to know both that the person depicted is an identifiable minor and that the activity shown meets the definition of pornographic work. Minn.Stat. § 617.247, subd. 4 (2000). Absent such a narrowing construction, the statute would not comply with Ashcroft and would be unconstitutional. However, since appellants do not claim that the pictures they possessed were altered and since they do not claim that the children pictured had not actually been part of proscribed sexual conduct, their conviction can stand without reference to this issue or Minn.Stat. § 617.246, subd. l(f)(2)(ii). The Supreme Court did not reach this issue and I would not reach it either.

      . Fingal stipulated to possession and control of a computer and hard drive that contained "11 videos and at least 37 non-video images that depicted children engaged in sexual conduct.”

      . Franke stipulated to possession of six three-ring binders containing approximately 800 to 1,000 images per binder of unclothed juvenile males, many of whom are prepubescent, depicted in sexually explicit poses or engaged in sexual conduct, or both.

      .The state points out that parts of the amicus curiae brief address issues not raised by appellants. We agree that these issues are not properly before the court. Amici curiae may not raise statutory constitutionality issues not raised by the parties. City of Minneapolis v. Church Universal and Triumphant, 339 N.W.2d 880, 890 n. 3 (Minn.1983).

      . We note also that the statute meets none' of the four criteria the Supreme Court has identified as justifying facial overbreadth challenges: (1) statute seeks to regulate only spoken words; (2) statute purports to regulate the time, place, and manner of expressive and communicative conduct; (3) statute limiting right of association might burden innocent associations; and (4) statute requires official approval for protected conduct that is granted at the discretion of local officials. Mireles, 619 N.W.2d at 561-62 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 611-13) 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)).


author: WRIGHT, Judge.

text:
    Paula HARE, Respondent, v. STATE of Minnesota, DEPARTMENT OF HUMAN SERVICES, Appellant. Hennepin County Welfare Board, Respondent, UCare Minnesota, Respondent.
    No. C9-03-33.
    Court of Appeals of Minnesota.
    July 29, 2003.

      Mike Hatch, Attorney General, Patricia Sonnenberg, Assistant Attorney General, St. Paul, MN, for Appellant.
    Philip A. Duran, Minneapolis, MN, and Constance Hope, Maple Grove, MN, for Respondent Paula Hare.
    Amy Klobuchar, Hennepin County Attorney, Arthur W. Katzman, Assistant County Attorney, Minneapolis, MN, for Respondent Hennepin County Welfare Board.
    Lora Esch Mitchell, Fredrikson & Byron, P.A., Minneapolis, MN, for Respondent UCare Minnesota.
    Considered and decided by LANSING, Presiding Judge, PETERSON, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

After respondent Paula Hare was denied coverage for gender reassignment surgery by UCare Minnesota (UCare), her health plan, she appealed to the health plan’s contracting agency, the Minnesota Department of Human Services (DHS), which affirmed UCare’s decision. Hare sought judicial review in district court, and the district court reversed DHS’s order. DHS now appeals, arguing that the district court erred when it ruled that (1) Minn. Stat. § 256B.0625, subd. 3a (2002), the provision addressing coverage for gender reassignment, is unconstitutionally vague and (2) DHS failed to follow rulemaking procedures when it adopted a definition for “gender reassignment services” in Minn. Stat. § 256B.0625, subd. 3a. Because we conclude that Hare’s treatments for gender dysphoria and for chemical dependency required to begin hormone therapy are “gender reassignment services” under Minn.Stat. § 256B.0625, subd. 3a, we affirm.

FACTS

Since she was a small child, respondent Paula Hare, although born male, has had the desire to be female. In mid-1997, Hare consulted with Dr. Sharon Satter-field, a gender-identity-disorder specialist, seeking treatment for gender dysphoria. Dr. Satterfield concluded that, because Hare suffered from a substance-abuse problem, hormone drug therapy and gender reassignment surgery, both necessary for the physical transformation from male to female, were not appropriate unless Hare was free of chemicals for one year. Following her initial consultation with Dr. Satterfield, Hare successfully completed chemical-dependency treatment and participated in group and individual therapy for gender dysphoria. Under Dr. Satter-field’s care, Hare began hormone therapy in September 1998.

Hare is a member of the Minnesota-Care health program and received services from UCare, a health plan that provides services to MinnesotaCare participants under contract with DHS. In December 1998, Hare began treatment for gender dysphoria with Dr. William Robiner of the Fairview University Medical Center. On August 21, 2000, Dr. Ro-biner requested authorization from UCare for Hare to undergo gender reassignment surgery.

MinnesotaCare will pay for gender reassignment surgery only if a person began receiving “gender reassignment services” prior to July 1, 1998. Minn.Stat. § 256B.0625, subd. 3a (2002). UCare denied Hare’s request for coverage for gender reassignment surgery based on its determination that Hare, having begun hormone therapy in September 1998, had not commenced “gender reassignment services” before July 1, 1998. Hare appealed this decision to DHS, and an administrative referee affirmed UCare’s decision. Hare then sought judicial review. Before the district court, Hare argued that Minn.Stat. § 256B.0625, subd. 3a, (1) was misinterpreted by DHS; (2) violates her constitutional right to privacy and bodily integrity; and (3) violates her equal protection rights. The district court requested additional briefing on whether MinmStat. § 256B.0625, subd. 3a, is void for vagueness and whether DHS properly adopted the definition of “gender reassignment services.” Because there is no statutory definition of “gender reassignment services,” the district court ruled that Minn.Stat. § 256B.0625, subd. 3a, is unconstitutionally void for vagueness. The district court also concluded that, because DHS failed to adopt a definition of “gender reassignment services” by rule, its application to Hare is void. DHS now appeals.

ISSUE

Did the district court err in determining that MinnesotaCare is obligated to pay for gender reassignment surgery where, before July 1, 1998, the patient received services that included only treatment for gender dysphoria and chemical-dependency treatment that was required to begin hormone therapy?

ANALYSIS

I.

The initial question before the district court was one of statutory interpretation, which we review de novo. Schons v. State Farm Mut. Auto. Ins. Co., 621 N.W.2d 743, 745 (Minn.2001). In interpreting Minn.Stat. § 256B.0625, subd. 3a, we must “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2002). Thus, we examine the language of Minn.Stat. § 256B.0625, subd. 3a, to determine how it applies to Hare. The language of the statute contemplates a cutoff date after which an individual may no longer secure insurance coverage for gender reassignment. “Gender reassignment surgery and other gender reassignment medical procedures including drug therapy for gender reassignment are not covered unless the individual began receiving gender reassignment services prior to July 1, 1998.” Minn.Stat. § 256B.0625, subd. 3a (emphasis added). The phrase “gender reassignment services” is crucial in determining whether a person may secure coverage for gender reassignment. If an individual began receiving “gender reassignment services” prior to July 1, 1998, he or she is entitled to coverage. But a person who began receiving these services after July 1,1998, is not.

Hare sought gender-dysphoria treatment from Dr. Satterfield, a gender-identity-disorder specialist, in mid-1997. Almost immediately after Dr. Satterfield’s first interview with her, Hare began the chemical-dependency treatment. In a letter to UCare, Dr. Satterfield stated that such treatment was required to begin hormone therapy. During this time, Hare also participated in group and individual therapy for gender dysphoria.

Because DHS does not dispute that pri- or to July 1, 1998, Hare sought gender-dysphoria treatment with Dr. Satterfield and participated in chemical-dependency treatment in preparation for hormone therapy, we must determine whether these activities constitute “gender reassignment services” for purposes of Minn.Stat. § 256B.0625, subd. 3a. The phrase “gender reassignment services” is not expressly defined by Minn.Stat. § 256B.0625, subd. 3a. In 1995, however, DHS issued a policy clarification stating that “gender reassignment services include hormone therapy and sex reassignment surgery.”

When we interpret a statute, we must first decide whether the statutory language, on its face, is ambiguous. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). If the legislative intent “is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and courts apply the statute’s plain meaning.” Id. (citation omitted). DHS asserts that “gender reassignment services” refers only to hormone therapy and surgery; Hare argues that the phrase is unconstitutionally vague. The definition urged by DHS is not explicitly stated in the words of the statute. Minn.Stat. § 256B.0625, subd. 3a, contains no explicit language that defines the limits of “gender reassignment services.” “We retain the authority to review de novo errors of law which arise when an agency decision is based upon the meaning of words in a statute.” In re Eller Media, 664 N.W.2d 1, 7 (Minn.2003) (citation omitted).

We begin by examining the individual words constituting the disputed phrase. The Minnesota Supreme Court has defined the term “gender” in the context of a similar case. See Doe v. State, Dept. of Pub. Welfare, 257 N.W.2d 816, 818 (Minn.1977). In that case, Jane Doe appealed from a denial of medical-assistance benefits to pay for “sex conversion surgery.” Id. at 817. In defining both terms, the supreme court distinguished “sex” from “gender”: “Sex connotes the anatomical qualities that determine whether one is male or female, while gender relates to behavior, feelings, and thoughts and does not always correlate with one’s physiological status.” Id. at 818 (emphasis added). “Courts presume that the legislature acts with full knowledge of previous statutes and existing caselaw.” Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 809 (Minn.App.2000), review denied (Minn. Sept. 26, 2000); cf. Minn.Stat. § 645.17(4) (2002) (stating that “[w]hen a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language”); W. Union Tel. Co. v. Spaeth, 232 Minn. 128, 132, 44 N.W.2d 440, 442 (1950) (stating that “reenactment of a statute without change, after construction * * ⅜. by the court, presumptively constitutes an adoption of such construction”); State v. Newman, 538 N.W.2d 476, 478 (Minn.App.1995) (stating that “after the supreme court ruled that a BB gun could be a firearm under the aggravated robbery and mandatory minimum sentence statutes, the legislature has reenacted the criminal statutes without giving ‘firearm’ another definition and, thus, has presumptively adopted the supreme court’s definition”), review denied (Minn. Nov. 30, 1995).

DHS asserts that “gender reassignment services” are only those services that “cause physical transformation of the body” — hormone therapy and surgery. In light of the supreme court’s determination that gender “does not always correlate with one’s physiological status,” Doe, 257 N.W.2d at 818, the limited definition of “gender reassignment services” that DHS advocates is unavailing. We must assume that, in drafting legislation addressing nearly identical subject matter as that in Doe, the legislature chose the word “gender” with full knowledge of its prior judicial interpretation.

“Reassign” means “[t]o assign a new position, distribution or function[.]” American Heritage Dictionary 1506 (3d ed.1992). The parties do not dispute the definition of this word. DHS urges us to conclude that the word “services” means “deeds instrumental toward attaining some object.” ' It maintains that the disputed phrase must mean acts instrumental to changing a person’s sex. In addition to the above-discussed distinction between gender and sex, we conclude that the plain meaning of “services” is not so narrow. “Services” means “[w]ork done for others as an occupation or a business!)]” Id. at 1649. Applying the plain language of the statute, we do not conclude that DHS’s preferred definition of “gender reassignment services” reflects the legislature’s intent as it applies to Hare. We conclude that “gender reassignment services” means work done, most likely by a medical professional, for a person seeking, at a minimum, treatment to address the behavior, feelings, and thoughts of the biological sex different than his or her own.

As defined above, the plain meaning of these words demonstrates that “gender reassignment services” reasonably includes the treatment for gender dysphoria and chemical dependency that Hare underwent prior to July 1998. Doe’s interpretation of “gender” pérmits treatment necessary to address gender dysphoria, even if the treatment itself does not directly result in physical transformation, to be a “gender reassignment service.” Thus, we conclude that the plain meaning of the disputed phrase includes treatments for gender dys-phoria and for chemical dependency required to begin hormone therapy.

DHS urges us to conclude that, because “gender reassignment services” are “technical words,” they must be construed according to their special meaning. See Minn.Stat. § 645.08 (stating that such terms should be “construed according to such special meanings or their definition”). As a source for the term’s technical meaning, DHS cites the Benjamin Standards, maintaining that their use of the term “reassignment” only refers to hormone therapy and surgery. DHS further contends that the University of Minnesota lists only hormone therapy and sex reassignment surgery when it defines the term “sex reassignment services.” Our review of the Benjamin Standards shows otherwise. While the Benjamin Standards expressly define “hormonal sex reassignment” and “surgical sex reassignment,” they do not define “gender reassignment services,” “gender reassignment,” or even “sex reassignment.” Accordingly, the Benjamin Standards do nothing to assign a special meaning for purposes of the instant case and do not guide us in determining legislative intent.

The phrase “gender reassignment” is used four times in Minn.Stat. § 256B.0625, subd. 3a: (1) “gender reassignment surgery,” (2) “gender reassignment medical procedures,” (3) “drug therapy for gender reassignment,” and (4) “gender reassignment services.” In ascertaining legislative intent, we presume that “the legislature intends the entire statute to be effective.” Minn.Stat. § 645.17(2) (2002); see also Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999) (stating that “no word, phrase, or sentence should be deemed superfluous, void, or insignificant”). Within the single sentence comprising section 256B.0625, subdivision 3a, the legislature employed these four phrases using similar modifying words. To give meaning to the entire statute and thus avoid rendering any phrase superfluous, each of the four phrases employed by the legislature must have a distinct and separate meaning. Thus, “gender reassignment services” must have a definition that is distinct from gender reassignment surgery and drug or hormone therapy for gender reassignment. If the legislature intended “gender reassignment services” to be limited to surgery and hormone therapy, it would have chosen language that explicitly demonstrates this intention. We decline to go beyond our role as interpreters of the language employed by the legislature and infer legislative intent from evidence that simply is not present.

We conclude that the term “gender reassignment services” is not ambiguous as it applies to Hare. When the statute’s words are given their plain meaning, it is clear that the legislature intended the phrase “gender reassignment services” to comprise more than just surgery and hormone therapy. Successful completion of chemical-dependency treatment was an integral part of Hare’s. treatment for gender dys-phoria and a necessary first step in the process of obtaining the physically trans-formative procedures of hormone therapy and gender reassignment surgery. Because the language of the statute does not place a discernable exclusion on the types of services Hare received, we conclude that seeking treatment for gender dyspho-ria and completing the requisite chemical-dependency treatment are encompassed by the statutory language. Hare commenced these gender reassignment services prior to July 1, 1998. She, therefore, meets the statutory coverage requirements for gender reassignment surgery.

DHS argues that the district court erred when it ruled that Minn.Stat. § 256B.0625, subd. 3a (2002), is unconstitutionally vague as applied to Hare. Although the district court based its decision on an analysis of the constitutionality of the statute in question, we first determine if there is an alternative ground upon which we may resolve the dispute between the parties. See State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981) (stating that “[w]e do not decide constitutional questions except when necessary to do so in order to dispose of the case at bar”); Minn. Baptist Convention v. Pillsbury Acad., 246 Minn. 46, 62, 74 N.W.2d 286, 296 (1955) (stating that “[u]nder well-settled rules the court refrains from deciding, where it is unnecessary to do so, constitutional and other legal questions”); State v. One Oldsmobile Two-Door Sedan, Model 1946, 227 Minn. 280, 288, 35 N.W.2d 525, 530 (1948) (stating that “[e]ourts will not decide questions relating to the constitutionality of statutes unless it is absolutely necessary to do so”). In light of our ruling that Minn.Stat. § 256B.0625, subd. 3a, is not ambiguous as applied to Hare, we need not reach the district court’s application of the constitutional vagueness doctrine to this case. See Hoyt, 304 N.W.2d at 888 (stating that constitutional questions are decided only if necessary to dispose of case).

Hare argues that the definition for “gender reassignment services” adopted by DHS in its 1995 policy clarification failed to adhere to rulemaking requirements. A rule is “every agency statement of general applicability and future effect.” Minn. Stat. § 14.02, subd. 4 (2002). An agency must promulgate as rules all formal and informal procedures “to the extent that those procedures directly affect the rights of or procedures available to the public.” Minn.Stat. § 14.06(a) (2002). The 1995 policy clarification stated that “gender reassignment services include hormone therapy and sex reassignment surgery.” Our review of this language establishes that the policy clarification provides no greater definition of “gender reassignment services” than the statute itself. By using the term “include,” the policy clarification, like the statute, does not exclude Hare’s pre-July 1998 treatment for gender dys-phoria and chemical-dependency treatment. In the absence of any limiting language, the policy merely includes hormone therapy and sex reassignment surgery in the definition of “gender reassignment services;” but the definition is not limited to these components. Because we do not rely on the policy clarification for our analysis of the statute’s plain language, we need not reach the issue of whether proper rulemaking procedures were followed.

DECISION

The phrase “gender reassignment services” in MinmStat. § 256B.0625, subd. 3a (2002), includes treatment for gender dys-phoria and chemical-dependency treatment that must be completed in order to receive hormone therapy and gender reassignment surgery. Because Hare began “gender reassignment services” prior to July 1, 1998, she meets the statutory coverage requirements for gender reassignment surgery.

Affirmed.

      . "Gender dysphoria” is a "psychological state whereby a person demonstrates dissatisfaction with their sex of birth and the sex role, as socially defined, which applies to that sex, and who requests hormonal and surgical sex reassignment.” The Harry Benjamin Standards of Care for Gender Dysphoric Persons (1990). The Benjamin Standards, which UCare uses when it reviews a request for coverage of gender reassignment surgery, "are protocols used by qualified professionals in the United States to treat individuals suffering from gender identity disorders.” Kosilek v. Maloney, 221 F.Supp.2d 156, 158 (D.Mass.2002).

      . See St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs., 332 N.W.2d 1, 7 (Minn.1983) (stating that “[a] statute is impermissibly vague when ‘men of common intelligence must necessarily guess at its meaning’ (quoting Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973))); Humenansky v. Minn. Bd. of Med. Exam’rs., 525 N.W.2d 559, 564 (Minn.App.1994) (stating that a phrase is unconstitutionally vague only when its meaning “is neither commonly understood nor established by judicial construction” (citing Minn.Stat. § 645.08(1) (1992))), review denied (Minn. Feb. 14, 1995); but see Nyeholt v. Secretary of Veterans Affairs, 298 F.3d 1350, 1357 (Fed.Cir.2002) (stating that where statute defining eligibility for veterans medical benefits “[did] not purport to define what is lawful and unlawful conduct,” veteran’s petition ”fail[ed] to present a constitutional challenge that is cognizable under the void-for-vagueness doctrine”); Woodruff v. United States, 954 F.2d 634, 642 (11th Cir.1992) (stating that challenge to provision in procedural manual determining injured employee's eligibility for compensation under Federal Employees’ Compensation Act was meritless because the provision was mere interpretive rule and did not attempt to guide conduct).


author: SANDSTROM, Justice.

text:
    2003 ND 110
    Edward TARNAVSKY, Plaintiff and Appellant, v. Morris TARNAVSKY and Vonne Tarnavsky, Defendants and Appellees.
    No. 20020292.
    Supreme Court of North Dakota.
    July 16, 2003.

      Peter H. Furuseth, Imes & Furuseth, P.C., Williston, for plaintiff and appellant.
    David A. Tschider, Tschider & Smith, Bismarck, for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] Edward Tarnavsky appeals from a judgment ordering him to pay his brother, Morris Tarnavsky, $251,548.25 as contribution for a federal court judgment, and $9,679.44 for legal fees incurred in defending the federal action. We conclude the trial court did not err in ruling that no partnership existed between the parties and in awarding contribution to Morris Tarnavsky. We affirm.

I

[¶ 2] In 1967, Mary Tarnavsky and two of her sons, T.R. and Morris Tarnavsky, were engaged in a farming and ranching operation near Watford City, with Mary Tarnavsky receiving one-half of the grain and cattle, proceeds and the two sons receiving the other half of those proceeds. T.R. and Morris Tarnavsky ran their share of the operation under an informal, unwritten partnership arrangement. In 1973, their brother, Edward Tarnavsky, began raising grain on the ranch. Initially, Edward Tarnavsky received ten percent of the grain proceeds, Mary Tarnavsky received forty-five percent, and T.R. and Morris Tarnavsky received forty-five percent. In 1980, T.R. and Morris Tarnavsky began receiving oné hundred percent of the cattle proceeds and ninety percent of the grain proceeds, and Edward Tarnav-sky continued to receive ten percent of the grain proceeds.

[¶ 3] In 1992, Morris Tarnavsky sent T.R. Tarnavsky a notice of dissolution of the partnership, and T.R. Tarnavsky sued Morris and Edward Tarnavsky in federal court for dissolution of the partnership and an accounting of partnership assets. In Tarnavsky v. Tarnavsky, 147 F.3d 674, 676 (8th Cir.1998), the Eighth Circuit Court of Appeals affirmed the federal trial court’s finding that a partnership existed between T.R. and Morris Tarnavsky, and the trial court’s dissolution of the partnership and equitable accounting and distribution of partnership assets to T.R. Tarnav-sky. The federal judgment entitled T.R. Tarnavsky to $220,000 worth of cash or partnership assets, plus interest, from his partnership with Morris Tarnavsky. Although Edward Tarnavsky was not a partner in the partnership, the judgment was also against him because he had taken distributions from partnership bank accounts after the 1992 notice of dissolution. T.R. Tarnavsky attempted to execute on the federal judgment against Edward and Morris Tarnavsky, and Edward Tarnavsky filed for bankruptcy. As a result, Morris Tarnavsky paid the bulk of the federal court judgment with partnership assets.

[¶ 4] After 1992, Morris and Edward Tarnavsky continued the ranching and farming operation under an informal arrangement. Edward Tarnavsky subsequently sued Morris Tarnavsky, claiming their subsequent business arrangement was a partnership and seeking dissolution and an accounting of partnership profits and assets. Morris-Tarnavsky answered, denying his business arrangement with Edward Tarnavsky was a -partnership, and counterclaimed for contribution based on payments he made on behalf of Edward Tarnavsky to satisfy the federal court judgment. The trial court concluded the business arrangement between Edward and Morris Tarnavsky was not a partnership. The court awarded Morris Tarnavsky $251,548.25, plus pre-judgment interest, as contribution from Edward Tarnavsky, which equaled eighty-five percent of the federal judgment minus certain credits and represented the amount of Edward Tarnavsky’s withdrawals from partnership accounts after Morris Tarnav-sky’s 1992 notice of dissolution of the partnership between T.R. and Morris Tar-navsky. The court also found Edward and Morris Tarnavsky jointly entered the federal litigation with an agreement to split legal fees and ordered Edward Tar-navsky to pay Morris Tarnavsky $9,679.44 for legal fees in the federal action.

[¶ 5] The trial court had jurisdiction under N.D. Const, art. VI; § 8, and N.D.C.C. § 27-05-06. Edward Tarnav-sky’s appeal was timely under N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] Edward Tarnavsky argues the trial court erred in failing to find a partnership or a business arrangement existed between him and Morris Tarnavsky. Edward Tarnavsky claims Morris Tarnavsky prevented him from using partnership assets, and he is entitled to certain partnership assets to continue his farming operation.

[¶ 7] Under North Dakota law, a partnership is “an association of two or more persons to carry on as co-owners in a business for profit.” Tarnavsky, 147 F.3d at 677 (quoting Gangl v. Gangl, 281 N.W.2d 574, 579 (N.D.1979)). The existence of a partnership is a mixed question of law and fact, and the ultimate determination of whether a partnership exists is a question of law. Tarnavsky, at 677. The critical elements of a partnership are (1) an intention to be partners, (2) co-ownership of the business, and (3) a profit motive. Id.

[¶ 8] The trial court decided Edward Tarnavsky failed to prove the existence of a partnership between himself and Morris Tarnavsky, and Edward Tarnavsky was not entitled to any distributions from Morris Tarnavsky. Edward Tarnavsky claims he is entitled to certain items of machinery because of his role in the Tarnavsky business. The record, however, does not establish co-ownership of any items of property or cattle, and does not establish Edward and Morris Tarnavsky intended to create a partnership for their business arrangement. We conclude the evidence does not establish a partnership between Morris and Edward Tarnavsky.

Ill

[¶ 9] Edward Tarnavsky also argues Morris Tarnavsky is equitably es-topped from claiming Edward Tarnavsky is not entitled to fifty percent of the assets or profits from the ranching operation under N.D.C.C. § 31-11-06, which authorizes estoppel by declaration, act, or omission and provides

When a party, by that party’s own declaration, act, or omission, intentionally and deliberately has led another to believe a particular thing true and to act upon such belief, that party shall not be permitted to falsify it in any litigation arising out of such declaration, act, or omission.

[¶ 10] In Matter of Estate of Helling, 510 N.W.2d 595, 597 (N.D.1994) (citations omitted), this Court outlined the elements for equitable estoppel:

To establish equitable estoppel, a plaintiff must show, on the part of the defendant:
“(1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than those which the [defendant] subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct will be acted upon by, or will influence, the [plaintiff]; and (3) knowledge, actual or constructive, of the real facts.”
The plaintiff also must show, on her own part:
“(1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the [defendant]; and (3) action or inaction based thereon, of such a character as to change the position or status of the [plaintiff], to his injury, detriment, or prejudice.”

[¶ 11] Edward Tarnavsky has not cited any statements or conduct by Morris Tar-navsky that may have misled Edward Tarnavsky into believing there was a partnership. Morris Tarnavsky testified the business arrangement was a pooling agreement. Although there may have been some type of business “arrangement” between Morris and Edward Tar-navsky, Edward Tarnavsky has cited no evidence to establish the parameters of that arrangement or to elevate that arrangement to the status of ownership and entitlement to an equal share of the business assets. We conclude Edward Tar-navsky has not established the elements necessary to show equitable estoppel.

IV

[¶ 12] Edward Tarnavsky argues the trial court erred in awarding Morris Tarnavsky $9,679.44 in legal fees from the prior federal litigation. Edward Tarnav-sky argues Morris Tarnavsky did not raise a claim for legal fees in his answer or counterclaim. Morris Tarnavsky responds the issue was tried by the express or implied consent of the parties.'

. [¶ 13] Whether an issue is tried by the implied consent of the parties is a matter within the trial court’s discretion and will not be reversed on appeal absent an abuse of discretion. Napoleon Livestock Auction, Inc. v. Rohrich, 406 N.W.2d 346, 357 (N.D.1987). Implied consent is established when the parties recognize that the issue entered the case at trial and acquiesced in the introduction of evidence on that issue. Id.

[¶ 14] Although Morris Tarnavsky did not explicitly claim attorney fees in his pleadings, both Edward and Morris Tar-navsky testified they agreed to split legal costs in the federal court action. The court granted Morris Tarnavsky’s motion during trial to amend the pleadings to conform to that evidence under N.D.R.Civ.P. 15(b). We conclude the trial court did not abuse its discretion in granting Morris Tarnavsky’s motion to amend his pleading to include a claim for attorney fees. The court found there was an agreement to split fees between the parties, and we also conclude the court’s finding on that issue is not clearly erroneous under N.D.R.Civ.P. 52(a).

V

[¶ 15] Edward Tarnavsky argues the trial court erred in finding he was responsible for about eighty-five percent of the federal court judgment, and the court’s award of contribution from him to Morris Tarnavsky is clearly erroneous.

[¶ 16] The trial court found eighty-five percent of the federal judgment was attributable to improper draws of $188,754.40 by Edward Tarnavsky from the Morris and T.R. Tarnavsky partnership after Morris Tarnavsky’s 1992 notice of dissolution of the partnership. A party to a joint obligation or to a joint and several obligation who satisfies more than his share of the claim against all obligors may require its portion of contribution from all the parties joined with him. N.D.C.C. § 9-01-08. There is evidence Edward Tarnavsky made unauthorized withdrawals from the partnership account, which resulted in a depletion of partnership assets. The amount of the unauthorized withdrawals by Edward Tarnavsky was about eighty-five percent of the judgment awarded to T.R. Tarnavsky in the federal action, which Morris Tarnavsky satisfied. We conclude the trial court’s award of contribution to Morris Tarnavsky is not clearly erroneous.

[¶ 17] Edward Tarnavsky also claims the trial court failed to give him credit for cattle sales that were used as a partial means for settling the judgment in favor of T.R. Tarnavsky. However, the trial court found Edward Tarnavsky was entitled to a $32,642 credit for payments to T.R. Tar-navsky in that amount, and we therefore reject Edward Tarnavsky’s claim on this issue.

VI

[¶ 18] We affirm the judgment.

[¶ 19] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ., concur.


text:
    2003 ND 122
    Robert RINGSAKER, Claimant and Appellee, v. The NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant, and Yellow Freight System, Respondent.
    No. 20020335.
    Supreme Court of North Dakota.
    July 18, 2003.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and ap-pellee.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, N.D., for appellant.
   SANDSTROM, Justice.

[¶ 1] The North Dakota Workers Compensation Bureau (“Bureau”) appealed from a district court judgment requiring the Bureau to accept Robert L. Ringsaker’s claim and provide benefits. We conclude the district court reasonably decided to sanction the Bureau for its tardy filing of a brief, but conclude the court abused its discretion in the sanction imposed. We reverse the judgment and remand for further proceedings.

I

[¶ 2] On February 3, 2000, Ringsaker filed a claim for workers compensation benefits for a work-related shoulder injury. The Bureau denied the claim. After a hearing, a hearing officer found “Ringsaker has suffered an injury to his right shoulder resulting from a work related incident which occurred in the Winter of 1996,” concluded “Ringsaker failed to timely file his claim for entitlement within one year of having actual knowledge of his right shoulder injury in the Winter of 1996, or from when a reasonable person should have known of the compensable nature of his right shoulder condition,” and recommended dismissal of Ringsaker’s claim. The Bureau adopted the hearing officer’s recommended order as its final order.

[¶ 3] Ringsaker appealed from the Bureau’s order to the district court. The district court administrator notified the parties’ attorneys that Ringsaker’s “brief must be submitted on or before JULY 10, 2002,” and the Bureau’s “brief shall be served and filed within 10 days after service” of Ringsaker’s brief. The Bureau’s attorney requested an extension of time for filing the brief, asserting he was going to be on vacation and had other briefs and hearings scheduled. With the request, the Bureau’s attorney submitted for the court’s signature a proposed order providing, in part:

IT IS HEREBY ORDERED, that North Dakota Workers Compensation shall have until August 2, 2002 in which to file its appellee’s brief in this matter.

The court signed the proposed order on July 9,. 2002.

[¶ 4] The Bureau’s brief was mailed on August 2, 2002. In an August 6, 2002, letter to the parties’ attorneys, the district court noted the Bureau’s brief was mailed on August 2, 2002, but “[t]he actual filing occurred on August 5, 2002.” The court further stated: “The appellee’s brief is late and the court will not consider it. Judgment for the appellant.” The Bureau moved for reconsideration, which the court denied, explaining: “The [Bureau] was late and since it was the [Bureau’s] request for a continuance, timing is everything.” A judgment was entered requiring the Bureau to accept Ringsaker’s “claim for injury as compensable and provide appropriate benefits as provided under Title 65, N.D.C.C.”

[¶ 5] The Bureau appealed to this Court, contending the district court abused its discretion in sanctioning the Bureau by ordering judgment in favor of Ringsaker, and contending Ringsaker’s claim was barred by N.D.C.C. § 65-05-01, because it was not filed within one year of Ringsaker’s injury.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06, 28-32^2, and 65-10-01. The Bureau’s appeal was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 7] The Bureau contends the district court abused its discretion in sanctioning the Bureau by ordering judgment in favor of Ringsaker. Ringsaker asserts: “The Bureau could have avoided the District Court’s ‘sanction’ easily by: (1) filing it[s] brief on time, or (2) requesting another extension. Instead, the Bureau treated the matter like a game of horseshoes and assumed the District Court would just sort of go along.”

[¶ 8] The district court’s order granting the Bureau additional time to submit a brief gave the Bureau “until August 2, 2002 in which to file its appellee’s brief in this matter.” The Bureau said in its brief:

In accordance with NDWC’s understanding of the July 9 Order extending the due date for NDWC’s brief to August 2, NDWC served its Appellee’s Brief on the parties by mail on August 2 and mailed the original to the court for filing. August 2 was a Friday; the brief was received and filed in Ward County on Monday morning, August 5.

Thus, the Bureau has recognized it did not file its brief until August 5, 2002, although the court’s order required it to be filed by August 2, 2002.

[¶ 9] As this Court said in Rueckert v. Rueckert, 499 N.W.2d 863, 866 (N.D.1993), “service by mail ... is complete upon mailing,” but “filing ... requires actual receipt.” The Bureau’s brief was mailed on August 2, 2002, the day it was required by the court’s order to be filed.. It was not filed until it was actually received on August 5, 2002. The Bureau’s brief was clearly late and violated the court’s order.

[¶ 10] “[Ljitigants have an unflagging duty to comply with clearly communicated case-management orders.” Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir.1998). The trial court has an inherent power to sanction. City of Jamestown v. Snellman, 1998 ND 200, ¶ 8, 586 N.W.2d 494; Bachmeier v. Wallwork Truck Centers, 507 N.W.2d 527, 532 (N.D.1993). Furthermore, N.D.R.Ct. 11.5 provides, in part: “The trial court may take any appropriate action against any person failing to perform an act ... required by court order.” We conclude that in failing to file its brief by August 2, 2002, the Bureau failed to perform an act required by court .order, which was an. event for which the district court could impose a sanction.

Ill

[¶ 11] Sanctions based on a trial court’s inherent power will be overturned on appeal only upon a showing of abuse of discretion. Bachmeier v. Wallwork- Truck Centers, 507 N.W.2d 527, 533 (N.D.1993). “[F]or violations of pretrial orders, the imposition of an appropriate sanction is ... within the broad discretion of the trial court.” Gohner v. Zundel, 411 N.W.2d.75, 79-80 (N.D.1987). See also Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir.1998) (“[W]e examine the trial judge’s case-management decisions under an abuse of discretion rubric.”); Rushing v. Kansas City So. Ry. Co., 185 F.3d 496, 509 (5th Cir.1999) (“We review a court’s case-management decisions, including whether to impose sanctions for violations of a scheduling order and local rules, and the choice of sanction ... for abuse of discretion.”).

[¶ 12] “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a' rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law.” Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50, ¶ 51, 658 N.W.2d 363. “A trial court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of. a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination.” Kopp v. Kopp, 2001 ND 41, ¶ 7, 622 N.W.2d 726.

[¶ 13] “Appropriate action” under N.D.R.Ct. 11.5 for failing to perform an act required by court order “includes’ a sanction provided by Rules 5, 11, 16, 25, 30, 37, 40, 45, or 56, N.D.R.Civ.P.” Rule 37(b)(2), N.D.R.Civ.P., provides a number of sanctions, including taking designated facts to be established, refusing to allow a party to support or oppose designated claims or defenses, striking pleadings, or rendering a judgment by default. In determining when sanctions are appropriate, and what sanction to impose, a trial court must consider several factors: .

When using its' inherent power ■ to sanction a party, a “case-by-case analysis of all the circumstances presented in the case” is required. Bachmeier I, 507 N.W.2d at 534. While all the circumstances must be considered, we have focused on three factors — “the culpability, or state of mind, of the party against whom sanctions are being imposed; a finding of prejudice against the moving party, and the degree of this prejudice, including the impact it has on presenting or defending the case; and, the availability of less severe alternative sanctions.” Id.

Belgarde v. Askim, 2001 ND 206, ¶ 7, 636 N.W.2d 916. For violations of pretrial orders, as -with discovery abuses, “dismissal of a claim should ... not be used if an alternative, less drastic sanction is available and just as effective.” Gohner v. Zundel, 411 N.W.2d at 79.

'[¶ 14] Here, as in Belgarde, 2001 ND 206, 636 N.W.2d 916, the trial court considered only culpability and did not address prejudice or the availability of less severe sanctions than requiring the Bureau to accept Ringsaker’s claim and provide benefits. Without consideration of prejudice and the availability of less severe sanctions, the trial court’s analysis is incomplete. Id. at ¶ 9. We conclude the trial court’s analysis was incomplete and it abused its discretion in sanctioning the Bureau as it did.

IV

[¶ 15] Both parties have argued the merits question of whether or not Ringsaker timely filed his claim for benefits; When the district court on appeal has not decided the merits of an administrative agency’s decision, this Court has declined to address the merits and has remanded to the district court for its decision on the merits. See, e.g., Gross v. North Dakota Dep’t of Human Servs., 2002 ND 161, ¶ 11, 652 N.W.2d 354. We decline to address the merits on this appeal.

V

[¶ 16] The judgment is reversed, and the. matter is remanded to the district court for determination of an appropriate sanction for the Bureau’s tardy filing of its brief in the district court and for a determination of Ringsaker’s appeal of the Bureau’s decision.

[¶ 17] LAWRENCE A. LECLERC, D.J., GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

[¶ 18] The Honorable LAWRENCE A. LECLERC, D.J., sitting in place of KAPSNER, J., disqualified.