author: RANDALL, Judge.

text:
    STATE of Minnesota, Respondent, v. Franklin William LaROSE, Appellant.
    Nos. C5-03-93, C9-03-95.
    Court of Appeals of Minnesota.
    Dec. 16, 2003.
    Review Granted Feb. 25, 2004.

      Mike Hatch, Attorney General, William A. Szotkowski, Assistant Attorney General, Paul, MN, and Earl E. Maus, Cass County Attorney, Walker, MN, for respondent.
    John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant State Public Defender, Minneapolis, MN, for appellant; and Franklin W. LaRose, Cass Lake, MN, pro se.
    Considered and decided by RANDALL, Presiding Judge, MINGE, Judge, and PORITSKY, Judge .

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

   OPINION

RANDALL, Judge.

On consolidated appeals from separate convictions for felony fifth-degree controlled substance crime (possession of marijuana), appellant argues that the law against possessing marijuana is merely a civil/regulatory law and, thus, the State of Minnesota cannot enforce that law on the Leech Lake Indian Reservation. Appellant also argues that the search warrant in one of the two cases was improperly issued to a reservation peace officer. Appellant further claims that the cooperative agreement between the state and reservation officers was invalid, and that, in any event, it did not authorize issuance of search warrants to tribal authorities. Because Minnesota prohibits all marijuana possession, the laws are criminal/prohibitory in nature and, therefore, the state has subject-matter jurisdiction. We find that the search warrant was properly issued to a reservation peace officer. We affirm.

FACTS

Appellant Franklin William LaRose is an enrolled member of the Leech Lake Band of Ojibwe and resides on the Leech Lake Reservation. On October 5, 2000, pursuant to a tip, law enforcement officers executed a search warrant at appellant’s home and searched for marijuana. During the search, officers found approximately 44 marijuana plants on appellant’s property and several bags of marijuana in his home.

Appellant was charged in Cass County District Court with fifth-degree possession of marijuana, a felony. Minn.Stat. § 152.025, subd. 2(1) (2002). The district court denied appellant’s motion to suppress the marijuana seized during the warranted search of his home and premises located within the Leech Lake Reservation boundaries. The district court also denied appellant’s motion to dismiss for lack of subject-matter jurisdiction.

After appellant unsuccessfully challenged the state’s jurisdiction to enforce its marijuana-possession laws against tribal members on reservations, the parties agreed to try the case on stipulated facts. Appellant was present in court at this proceeding, but appellant did not personally waive his right to a jury trial. On June 26, 2001, the district court found appellant guilty of fifth-degree possession staying imposition of the sentence and placing appellant on probation for five years pending appeal. On appeal this court affirmed the district court’s finding on subject-matter jurisdiction and remanded with directions to the district court to allow appellant to exercise or waive his right to a jury trial. Appellant renewed his jurisdictional challenge on remand.

On July 19, 2001, while the first case proceedings were underway, a second search warrant was issued for appellant’s residence to Officer Victoria St. Cyr, a licensed Minnesota peace officer employed by the Leech Lake Department of Public Safety. When executing the search warrant the next day, officers seized a bag containing about one-quarter pound of marijuana from appellant’s kitchen table. Appellant was subsequently charged with an additional count of fifth-degree controlled substance crime. In the second proceeding, appellant again challenged subject-matter jurisdiction and also claimed that the search warrant had not been authorized and was improperly issued to a tribal official.

The district court found that the Leech Lake Band had entered into a law enforcement compact with a number of counties, including Cass County, authorizing the Band to enforce criminal laws within the Leech Lake Reservation through the Leech Lake Department of Public Safety (“the Department”). As a licensed Minnesota peace officer and member of the Department, Officer St. Cyr had authority over criminal offenses committed on the reservation. Under this authority, Officer St. Cyr sought the search warrant from the Cass County District Court, which by virtue of Public Law 280 has jurisdiction over criminal offenses committed within the Leech Lake Reservation areas that lie within Cass County. The district court found no constitutional or statutory defect in the issuance of the warrant and denied appellant’s motion to suppress.

By this time, the first case had been remanded, and the issue of appellant’s right to a jury trial was back before the district court. Appellant now properly waived his right to a jury trial in both the first and second proceedings and submitted both cases to the district court for trial on stipulated facts. The court found appellant guilty. The court stayed imposition on the first case and placed appellant on probation for five years. On the second case, the court sentenced appellant to a stayed year-and-a-day prison term and five years probation. These appeals followed.

ISSUES

I. Does the State of Minnesota have subject-matter jurisdiction to enforce its possession of marijuana laws on the Leech Lake Reservation?

II. Did the district court determine correctly that a search warrant was properly issued to a Leech Lake Band Department of Public Safety Law Enforcement Officer (a Minnesota licensed peace officer); was the evidence seized in accordance with that search warrant properly admitted?

ANALYSIS

1. Subject-matter jurisdiction

The determination of subject-matter jurisdiction is a question of law, which this court reviews de novo. State v. Busse, 644 N.W.2d 79, 82 (Minn.2002); State v. 617 N.W.2d 55, 58 (Minn.2000), reh’g denied, (Oct. 3, 2000). The ability of a state to exercise its jurisdiction over Native American matters is governed by federal statute or case law. State v. Stone, 572 N.W.2d 725, 728 (Minn.1997). Absent federal authorization, a state may not assert jurisdiction over Indian tribes. Bryan v. Itasca County, Minnesota, 426 U.S. 373, 392, 96 S.Ct. 2102, 2113, 48 L.Ed.2d 710 (1976). In Public Law 280, Congress granted Minnesota broad criminal jurisdiction and limited civil jurisdiction over reservations within the State of Minnesota. 18 U.S.C. § 1162 (1994); 28 U.S.C. § 1360 (1994).

Subject-matter jurisdiction was determined by this court in appellant’s first appeal. State v. LaRose, No. C1-01-1706 at 6, 2002 WL 977460 (2002). A court’s prior ruling on a controlling legal issue becomes law of the case for subsequent proceedings. Kissoondath v. U.S. Fire Ins. Co., 620 N.W.2d 909, 917 (Minn.App.2001). When an appellate court has ruled on an issue of law, the “issue decided becomes ‘law of the case’ and may not be relitigated ... or reexamined.” Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 503 N.W.2d 793, 795 (Minn.App.1993). When a court decides upon a rule of law, that decision continues to govern the same issues in subsequent stages in the same case. Kissoondath, 620 N.W.2d at 917 (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983) (quotations omitted)).

Appellant argues that his earlier appeal involved only his first case. Therefore, while the “law of the case” doctrine may have precluded relitigation of the jurisdictional issue on remand in that case, but see State ex rel. Farrington v. Rigg, 259 Minn. 483, 485, 107 N.W.2d 841, 842 (1961) (subject matter jurisdiction cannot be waived), it did not preclude appellant from asserting and litigating the jurisdictional issue when he was charged by a separate complaint with a separate unrelated criminal offense. Under the law-of-the-case doctrine, “issues considered and adjudicated on a first appeal become the law of the case and will not be reexamined or readjudicated on a second appeal of the same case.” Lange v. Nelson-Ryan Flight Serv., Inc., 263 Minn. 152, 155, 116 N.W.2d 266, 269 (1962) (emphasis added). This doctrine is “limited to the same case and to only the issue previously decided and is not intended to be carried into other cases as a precedent.” Id. at 156, 116 N.W.2d at 269 (emphasis added). Also, appellant argues that this Court’s prior decision is not controlling in appellant’s subsequent prosecution. See Minn.Stat. § 480A.08, Subd. 3 (providing that unpublished decisions are not precedential); but see Minn.Stat. § 480A.08, Subd. 3(b) (providing an exception where unpublished decisions may be cited as precedent for purposes of law of the case, res judicata, or collateral estoppel.)

Further, if this court concludes that appellant is precluded from appealing the jurisdictional issue in one or both of his cases, then appellant argues he must be given the opportunity to withdraw his jury trial waivers. Appellant asserts that he waived his right to jury trials and submitted his cases to the court on stipulated facts so he could preserve and appeal the trial court’s jurisdictional rulings. See State v. Lothenbach, 296 N.W.2d 854, 858 (Minn.1980) (allowing a defendant to preserve pre-trial issue for appeal by stipulating to evidence and submitting to a bench trial). Appellant contends that by now arguing that the jurisdictional issues may not be reviewed on appeal, the state has breached the terms of the negotiated settlement and rendered appellant’s waiver of his right to a jury trial invalid. See State v. Ross, 472 N.W.2d 651, 653-54 (Minn.1991) (jury trial waiver must be knowing, intelligent, and voluntary). Therefore, appellant argues this court must either review the jurisdictional issue or remand to allow appellant an opportunity to withdraw his jury trial waivers. See State v. Verschelde, 595 N.W.2d 192, 197 (Minn.1999) (remanding to allow defendant to withdraw consent to stay of adjudication which was premised on the mistaken belief that he was preserving right to appeal pretrial issue).

We disagree with appellant. Appellant’s first case was remanded because his waiver of a jury trial was not set out clearly on the record. It was never in dispute that appellant and his attorney chose the Loth-enbach method to preserve his jurisdictional issue for appeal. Now the state argues that appellant is precluded from challenging jurisdiction. We do conclude that appellant’s proper jury trial waivers are on record, and that review of the jurisdictional issue is not contingent on appellant’s opportunity to now go back and renew a claim to a jury trial. However, to satisfy appellant that jurisdiction is resolved, we will again consider jurisdiction.

Appellant renews his claim that Minnesota lacks subject-matter jurisdiction to enforce marijuana-possession offenses on reservations, asserting that pursuant to the United States Supreme Court’s analysis in Cabazon, Minnesota’s marijuana-possession laws are regulatory in nature. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207-08, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987) (holding that states have subject-matter jurisdiction with respect to criminal/prohibitory laws, but not civil/regulatory laws, on certain reservations pursuant to Pub.L. 280).

In Cabazon, the Supreme Court held that reservations were not subject to the laws concerning the gaming industry in California because the laws were regulatory in nature and “Congress’ primary concern in enacting Pub.L. 280 was combating lawlessness on reservations.” 480 U.S. at 208-15, 107 S.Ct. at 1088-91 (citation omitted). Because Pub.L. 280 is aimed at combating lawlessness, the Court approved an analysis focused on whether the law is criminal/prohibitory or civil/regulatory in nature:

[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub.L. 280 does not authorize its enforcement on an Indian reservation.

Id. at 208-10, 107 S.Ct. at 1088-89 (citation omitted). The Court cautioned that this “is not a bright-line rule.” Id. at 210, 107 S.Ct. at 1089.

Appellant misconstrues Cabazon. In effect, all that Cabazon said was that since some parts of California have gambling, California could not forbid it on Indian reservations. Cabazon opined that even through the violation of gambling laws can be criminal, since the state regulates legal gambling, gambling is in some respects civil/regulatory in nature. By contrast, Minnesota’s marijuana laws are not civil/regulatory. Like the laws governing other illegal drugs, they are criminal laws. To liken it to Cabazon, you would need a fact situation where in different parts of California, people could legally possess or possess with intent to sell large or small amounts of marijuana and then the state of California said, “but this could never happen on an Indian reservation.” Then the Cabazon court might have said that you cannot totally prohibit marijuana possession and/or sale on an Indian reservation since you don’t totally prohibit possession and/or sale of it in other parts of the state. That is a hypothetical and is not our facts; and that is not the law in Minnesota. Marijuana possession is not permitted any place in Minnesota. If one possesses a small enough amount, it is called a petty misdemeanor and there is no jail time. However, there is a monetary fine and it is still against the law. Minn.Stat. § 152.027, subd. 4 (2002).

Minnesota has adopted the Cabazon analysis with a two-step test:

The first step is to determine the focus of the Cabazon analysis. The broad conduct will be the focus of the test unless the narrow conduct presents substantially different or heightened public policy concerns. If this is the ease, the narrow conduct must be analyzed apart from the broad conduct. After identifying the focus of the Cabazon test, the second step is to apply it. If the conduct is generally permitted, subject to exceptions, then the law controlling the conduct is civil/regulatory. If the conduct is generally prohibited, the law is criminal/prohibitory. In making this distinction in close cases, we are aided by Cabazon’s “shorthand public policy test,” which provides that conduct is criminal if it violates the state’s public policy.

State v. Stone, 572 N.W.2d at 730 (Minn.1997) (emphasis in original). Appellant agrees that in his first appeal, this Court applied the Stone analysis and concluded that “[bjecause Minnesota prohibits all marijuana possession, the laws are prohibitory/criminal.... ” LaRose, No Cl-01-1706 at 5. Appellant concedes that this court has previously determined that fifth-degree possession of marijuana is a criminal offense and that the state courts have jurisdiction under Pub.L. 280. See State v. St. Clair, 560 N.W.2d 732, 734 (Minn.App.1997). But appellant asserts that, because the court in St. Clair did not utilize the Stone analysis, somehow, St. Clair is not controlling.

Appellant constructs the following argument. Minnesota’s drug laws follow federal law. The policy underlying these laws is to protect the “health and general welfare” of the people. See 21 U.S.C. § 801(2). Appellant then claims the state legislature has evinced the commonly held belief that marijuana poses less of a threat than other drugs because the legislature decriminalized possession of small amounts of marijuana, Minn.Stat. § 152.027, subd. 4, and recognized that marijuana may have valid medical uses. Minn.Stat. § 152.21. Appellant then argues that since possession of marijuana raises no different or heightened policy concerns, section 152.025, subd. 2(1), must be analyzed as part of the broader conduct of drug possession. Stone 572 N.W.2d at 731. Appellant misses the point. Minnesota does have a “heightened public policy” against the possession and use of illegal drugs. Marijuana is an illegal drug even though the penalties are not quite as severe as for other drugs.

Somehow, appellant goes on to argue that possession of marijuana does not violate the state’s “public criminal policy” as that term is used in Stone. We disagree with appellant. With the narrow exception of certain research purposes not at issue here, Minnesota prohibits all marijuana possession. Possession of even a small amount is prohibited and constitutes a petty misdemeanor, punishable by a fine of up to $200 and participation in a drug-education program. Minn.Stat. § 152.027, subd. 4 (2002), Minn.Stat. § 609.0331 (2002). The Minnesota Supreme Court ruled that broad conduct will be the focus of the test unless the narrow conduct “presents different or heightened public policy concerns.” Stone, 572 N.W.2d at 730-31. It was in this latter context that the court specified that “public policy” means the state’s “public criminal policy” and set out factors to consider in making this determination. Id. at 730 (emphasis in original). The possession of marijuana, like other illegal drugs in Minnesota, is criminal/prohibitory, not civil/regulatory. Minnesota has the authority to enforce drug laws on the Leech Lake Indian Reservation pursuant to Pub.L. 280.

The district court has subject-matter jurisdiction over the charge against appellant. See Stone, 572 N.W.2d at 731 n. 7 (using St. Clair as an example of a clear prohibitory law).

The district court correctly determined it had subject-matter jurisdiction to enforce marijuana possession laws on the Leech Lake Reservation.

II. Validity of search warrant

Appellant claims that the search warrant in his second case was improperly issued to Officer St. Cyr. The district court ruled that tribal law enforcement officers can exercise concurrent jurisdiction over state criminal offenses if they meet the requirements of Minn.Stat. § 626.93, subd. 2, and have entered into cooperative agreements pursuant to Minn.Stat. § 471.59. Because the Leech Lake Band has entered into such an agreement and Officer St. Cyr was a licensed Minnesota peace officer, the court held that the warrant was properly issued. Where a case is decided on stipulated facts, the only issue on appeal is whether the district court erred in its application of the law. Boldt v. Roth, 604 N.W.2d 117, 119 (Minn.App.2000) (citing Reads Landing Campers Ass’n v. Township of Pepin, 546 N.W.2d 10, 13 (Minn.1996)). The application of the law to stipulated facts is a question of law, which this court reviews de novo. Boldt, 604 N.W.2d at 119 (citing Morton Bldgs., Inc. v. Commissioner of Revenue, 488 N.W.2d 254, 257 (Minn.1992)).

Authority to Enter Into Cooperative Agreement with Concurrent Jurisdiction

Appellant argues that the district court’s ruling is premised on the erroneous assumption that the state had the authority to enter into a “cooperative agreement” with the Leech Lake Band of Ojibwe for the enforcement of state criminal laws. Appellant constructs the following argument. He claims that by enacting Public Law 280, the federal government ceded authority to Minnesota to enforce state criminal laws within the boundaries of the Leech Lake Reservation. Stone, 572 N.W.2d at 729. The law was later amended to allow the states to retrocede their jurisdiction to the federal government. Pub.L. No. 90-284, 82 Stat. 78 (1968) (codified as amended at 25 U.S.C. § 1323). Appellant argues that the federal government allows retrocession, but has not expressly authorized the state to share its authority to enforce state law with tribal authorities. Thus, appellant claims the cooperative agreement with the Leech Lake Reservation authorities violates federal law.

Minnesota’s authority to enter into law enforcement compacts has been previously considered and upheld by this court. See State v. Manypenny, 662 N.W.2d 183 (Minn.App.2003), review granted (Minn. Aug. 19, 2003). The defendant in Many-penny also argued that Pub.L. 280 did not provide authority for the state to cede criminal jurisdiction to Indian Tribes. Id. at 187. In Manypenny, the court rejected appellant’s interpretation of Pub.L. 280 and stated:

What appellant sets up for this court is a false dichotomy. Public Law 280 does not prohibit cooperative agreements. It does not require states to consent to retrocession requests from tribal governments. Nor does it prohibit tribes and state governments from entering into mutually beneficial agreements to provide law-enforcement services that are well short of the retro-cession standard. In short, although appellant argues otherwise, law enforcement on Indian reservations is not an either-or proposition.

Manypenny, 662 N.W.2d at 188. There is no authority, implied or stated, that requires a Public Law 280 state to expressly retrocede its jurisdiction to enforce criminal laws if it wants to enter into cooperative agreements with Indian tribes. In Manypenny, the court recognized that the State “has entered into ‘cooperative agreements’ with some tribal authorities, including those authorities governing the White Earth Reservation, to ‘regulate the provision of law enforcement services.’ ” Id. at 187 (citing Minn.Stat. § 626.93, subd. 4 (2002)). Under these agreements, a tribe has concurrent jurisdictional authority with the local county sheriff to enforce state criminal law within the geographical boundaries of the tribe’s reservation. Minn.Stat. § 626.93, subd. 3 (2002), see also Minn.Stat. §§ 626.90-.93 (2002) (authorizing the Mille Lacs Band of Chippewa Indians, the Lower Sioux Indian community, and the Fond du Lac of Lake Superior Chippewa to establish law enforcement authorities). The court in Manypenny held that cooperative agreements between an Indian band and the state do not violate federal law. Manypenny, 662 N.W.2d at 188. Manypenny is persuasive. Appellant has failed to show the cooperative agreement between the Leech Lake Band of Ojibwe and the state is invalid.

Validity of Search Warrant

Appellant next contends that, even if the cooperative agreement with the Leech Lake Band is lawful, Minnesota law does not authorize the issuance of search warrants to tribal authorities and any evidence seized pursuant to that warrant should be suppressed. Appellant bases his argument on the definition of “peace officer” in Minn.Stat. § 626.05, subd. 2 (2002). Here appellant concedes that Officer St. Cyr was a duly state-licensed peace officer employed by the Leech Lake Band Department of Public Safety (in accordance with section 626.84, subd. 1). But he argues that since she was not also acting in any of the official capacities delineated in section 626.05, the district court had no authority to issue her a search warrant. Appellant argues that because the legislature has made several semantic changes to sections 626.05 and 626.11, it would have added specific language to include “tribal law enforcement officials” if that is what it had intended.

The statutes that authorize compacts between law enforcement agencies provide for concurrent jurisdiction over criminal offenses. By virtue of State law, the Leech Lake Band law-enforcement agency and its officers as a governmental unit would have the same authority as officers from other governmental units. See Minn. Stat. § 626.93, subd. 3, 4 (2002) (a tribe is considered a “governmental unit”). Authority for governmental units entering agreements is addressed in Minn. Stat § 471.59, which provides:

Services performed by governmental units; commonality of powers. Notwithstanding the provisions of subdivision 1 requiring commonality of powers between parties to any agreement, the governing body of any governmental unit as defined in subdivision 1 may enter into agreements with any other governmental unit to perform on behalf of that unit any service or junction which the governmental unit providing the service or function is authorized to provide for itself

Minn.Stat. § 471.59, subd. 10 (2002) (emphasis added). Peace officer authority is further addressed in subdivision 12:

Joint exercise of police power. In the event that an agreement authorizes the exercise of peace officer or police powers by an officer appointed by one of the governmental units within the jurisdiction of the other governmental unit, an officer acting pursuant to that agreement has the full and complete authority of a peace officer as though appointed by both governmental units and licensed by the state of Minnesota, provided that:
(1) the peace officer has successfully completed professionally recognized peace officer preemployment education which the Minnesota board of peace officer standards and training has found comparable to Minnesota peace officer preemployment education; and
(2) the officer is duly licensed or certified by the peace officer licensing or certification authority of the state in which the officer’s appointing authority is located.

Minn. Stat § 471.59, subd. 12 (2002) (emphasis added). Moreover, Minn.Stat. § 626.93, subd. 3, expressly provides for concurrent jurisdiction for tribal officers:

If the requirements of subdivision 2 are met and the tribe enters into a cooperative agreement pursuant to subdivision 4, the tribe shall have concurrent jurisdictional authority under this section with the local county sheriff within the geographical boundaries of the tribe’s reservation to enforce state criminal law.

In accordance with these statutory provisions, Officer St. Cyr had complete peace officer authority to exercise concurrent jurisdiction on the Leech Lake Reservation. In this case, Officer St. Cyr acted with the same authority as a sheriff or deputy sheriff from Cass County. Because Officer St. Cyr was acting with the authority of a sheriff or deputy sheriff, she falls within the definition of “peace officer” provided in Minn.Stat. § 626.05, subd. 2 (2002).

In reviewing the application for the search warrant, the district court judge considered the terms of Minn. Stat § 626.11 (2002), which provides:

If the judge is satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, the judge must issue a signed search warrant, naming the judge’s judicial office, to a peace officer having jurisdiction in the area where the place to be searched is located....

The judge found probable cause, and recognized that Officer St. Cyr, as a licensed peace officer, had jurisdiction in the area where the place to be searched was located.

In later review of the warrant, the district court found no constitutional or statutory defect with its issuance. The district court further concluded that, even if there had been statutory violations associated with the issuance of the warrant, they were merely technical and would not warrant suppression of evidence. “The exclusionary rule does not apply to technical violations of the statutes governing search warrants, where no constitutional violation is involved.” State v. Lunsford, 507 N.W.2d 239, 243 (Minn.App.1993). In Lunsford, a police officer from a community in one county sought and received a search warrant from a judge of a different county. Id. at 242. Although this court held that the warrant was improperly issued and executed based on its reading of Minn.Stat. § 626.11 (2002), which provides that “the authority to issue warrants is limited to peace officers in the judge’s county or agents of the Bureau of Criminal Apprehension,” the court in Lunsford ultimately concluded that this was a technical violation and application of the exclusionary rule was not justified under those circumstances. Id. at 243.

Appellant argues that the present case is distinguishable from Lunsford. He asserts that this is not a case where the court issued a warrant to a “peace officer” from another county; but rather, the court issued a search warrant to someone who is not a “peace officer” as that term is defined in the applicable state statute. Therefore, appellant alleges that rather than a mere technical violation of the statute, the court’s action here directly undermined the legislature’s clear intent to restrict the issuance of search warrants to certain officials. This whole analytical exercise is unnecessary. Under the Luns-ford analysis, there is no defect, technical or otherwise. The officer seeking the warrant and the judge issuing the warrant had jurisdiction over the person and the place to be searched; both had statutory authority to act.

Law enforcement agreements between the counties and the tribes are valid agreements within the authority of the State of Minnesota. Manypenny, 662 N.W.2d at 188. Officers exercising concurrent jurisdiction under those agreements are empowered to enforce the criminal laws of the state. The exercise of that authority provided by Minnesota law does not adversely affect the constitutional rights of appellant. The district court properly denied appellant’s motion to suppress evidence obtained pursuant to the search warrant.

Appellant’s Pro se Brief

It is settled that an appellate court may not base its decision on matters outside the record. Plowman v. Copeland, Buhl & Co. Ltd., 261 N.W.2d 581, 584-585 (Minn.1977); Moose v. Vesey, 225 Minn. 64, 67, 29 N.W.2d 649, 652 (Minn.1947). In Plowman, the Supreme Court explained that there are very limited exceptions to this rule. However, the production of new evidence not already in the record is never allowed in an appellate court for the purpose of reversing a judgment. Plowman, 261 N.W.2d at 584 (citing Mattfeld v. Nester, 226 Minn. 106, 32 N.W.2d 291 (Minn.1948)). Appellant’s pro se submission was offered to the Court of Appeals to support reversal of the district court and will not be considered as it is outside the record. The record does show that in its decision, the district court acknowledged receiving a memorandum signed by appellant on his own behalf. But, the memorandum was received after the time for submittals to the court had passed; the district court did not make any findings or conclusions on issues raised in appellant’s memorandum; the issues had not been raised at the time of the omnibus hearing; no evidence was introduced related to appellant’s submission. The cases involved in this appeal were both submitted and decided on stipulated facts. Appellant’s pro se submission and affidavit were not part of the stipulation before the district court.

In appellant’s pro se brief, he attempts to submit additional materials into the record in an effort to challenge the constitutionality of Congress’ plenary power over Indian Affairs and its authority to enact laws such as Public Law 280. Although we do not decide this issue, we can only note that, in this area, appellant “faces formidable obstacles.” First, federal statutes enjoy a presumption of constitutionality. Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 2651, 69 L.Ed.2d 478 (1981). This deference acknowledges Congress’ role as a policy-making branch of the United States government. Second, courts have been reluctant to interfere with Congress’ acknowledged plenary power over Indian Affairs. See Littlewolf v. Lujan, 877 F.2d 1058, 1063 (D.C.Cir.1989). The court in Littlewolf acknowledged that, though plenary, Congress’ power is not absolute. “While extending to all appropriate measures for protecting and advancing the tribe, it is subject to limitations inhering in ... a guardianship and to pertinent constitutional restrictions.” United States v. Sioux Nation of Indians, 448 U.S. 371, 415, 100 S.Ct. 2716, 2741, 65 L.Ed.2d 844 (1980) (quoting United States v. Creek Nation, 295 U.S. 103, 110, 55 S.Ct. 681, 684, 79 L.Ed. 1331 (1935)). The court in Littleivolf held that the guardian-ward relationship derives from the historical status of Indian tribes, as “domestic dependent nations,” (quoting Cherokee Nation v. Georgia, 30 U.S. 5 Pet. 1, 17, 8 L.Ed. 25 (1831)), and the correspondingly pervasive federal control over Indians as embodied in treaties and statutes. Littlewolf, 877 F.2d at 1063.

In this case, Congress expressly acknowledged its role as a guardian in trying to address the problems of lawlessness on reservations in enacting Public Law 280, a law that affects six states, including Minnesota.

DECISION

We find that Minnesota’s marijuana laws are criminal/prohibitory in nature, and we again find that the state has subject-matter jurisdiction in this case. The cooperative agreement between the Leech Lake Band of Ojibwe and the State of Minnesota is valid; a licensed peace office and member of the Leech Lake Department of Public Safety has authority over criminal offenses committed on the reservation. Finally, the search warrant was properly issued. Officer St. Cyr is a licensed Minnesota police officer. The district court properly denied the motion to suppress.

Affirmed.

      . Pub.L. 280 only applies in six states: Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. 18 U.S.C. § 1162(a). Red Lake Reservation, in Minnesota, is specifically excluded from Pub.L. 280. Id.

      . State law allows counties to enter into “cooperative agreements” with some tribal authorities, including those authorities governing the Leech Lake Reservation, to "regulate the provision of law enforcement services.” Minn.Stat. 626.93, subd. 2 (2002). Under these agreements, a tribe has concurrent jurisdictional authority with the local county sheriff to enforce state criminal law within the geographical boundaries of tire tribe’s reservation. Minn.Stat. 626.93, subd. 3.

      . The legislature amended section 626.11 in 2001 by substituting the phrase "having jurisdiction in the area where the place to be searched is located” for "in the judge’s county,” see Laws 2001, c. 78, § 2, and in 2002 by inserting the phrase "to an officer of the metropolitan transit police.” See Laws 2002, c. 291, § 5. Also in 2002, the legislature deleted the word "constable” from and inserted "metropolitan police officer” into section 626.05’s definition of "peace officer.” Laws 2002, c. 291, § 4. Appellant claims that this history demonstrates the legislature had full opportunity to authorize the issuance of search warrants to tribal law enforcement officials if it wanted to do so. See White v. State, 400 N.W.2d 153, 157 (Minn.App.1987) (recognizing that changes to clear and unambiguous statutes must be made by legislature and not judicial fiat).

      . The district court further found that the claims raised by appellant and the facts sought to be introduced were beyond the scope of the issues in this case and would have to be pursued through the federal government, whether that be the courts, the Bureau of Indian Affairs, or Congress.

      . The Supreme Court has repeatedly held that through its plenary power, Congress can abrogate treaty provisions unilaterally without the consent of a tribe. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 594, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977); Lone Wolf v. Hitchcock, 187 U.S. 553, 566, 23 S.Ct. 216, 47 L.Ed. 299 (1903).


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    STATE of Minnesota, by FORT SNELLING STATE PARK ASSOCIATION, Appellant, v. MINNEAPOLIS PARK AND RECREATION BOARD, City of Minneapolis, Minnesota Department of Natural Resources, Respondents.
    No. C4-03-36.
    Court of Appeals of Minnesota.
    Dec. 23, 2003.

      Mark R. Anfmson, Minneapolis, MN, for appellant.
    Brian F. Rice, Minneapolis, MN, for respondent Minneapolis Park and Recreation Board.
    Corey M. Conover, Minneapolis, MN, for respondent City of Minneapolis.
    Matthew B. Seltzer, St. Paul, MN, for respondent Minnesota Department of Natural Resources.
    Considered and decided by WRIGHT, Presiding Judge; TOUSSAINT, Chief Judge; and G. BARRY ANDERSON, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant Fort Snelling State Park Association (FSSPA) brought a declaratory-judgment action against respondents Minneapolis Park and Recreation Board (the park board) and the Minnesota Department of Natural Resources (DNR), seeking a declaration that the outdoor athletic center planned by the park board in an area known as the Fort Snelling Polo Grounds would impair a historical resource within the meaning of the Minnesota Environmental Rights Act (MERA). The district court concluded that the polo grounds were a historical resource and although the athletic center would result in some impairment to the integrity of the polo grounds as an open space, it would not inflict a material adverse effect. Because we conclude that the district court correctly applied the law and did not abuse its discretion in finding facts, we affirm.

FACTS

In January 2001, appellant FSSPA filed this action, seeking protection of the Fort Snelling Polo Grounds as a historical resource under MERA. Respondent DNR had just entered into a lease agreement with the respondent park board, which had adopted a plan to construct an outdoor athletic center on the polo grounds. The plan was for softball, baseball, and soccer fields with outdoor lighting, grandstands, backstops, and auxiliary structures surrounded by cyclone fencing. The FSSPA sought a declaratory judgment that the “highly intrusive and unnecessary structures” would impair the historical and natural resources protected by MERA, and an injunction preventing the park board from proceeding with the development.

Fort Snelling consists of two sites referred to as the Old Fort and the New Fort. The Old Fort, constructed between 1820 and 1824, and reconstructed and preserved since then, is not at issue here. The New Fort, constructed between 1879 and 1890, lies on the 141-acre Upper Bluff located across Highway 55 from the Old Fort. One part of the New Fort, the polo or artillery parade grounds, is at the center of this dispute. It is bordered by Taylor Avenue to the east, Minnehaha Avenue to the south, Bloomington Road to the west, and Highway 55 to the north. Across Taylor Avenue to the east of the polo grounds are the old army hospital and barracks buildings, also known as the Taylor Avenue buildings.

The Taylor Avenue buildings were first constructed to serve as the headquarters of the Department of the Dakota in 1879. A regiment of 200-700 troops was stationed there with the purpose of protecting the westward migration of settlers. Although the department was abolished in 1890, the New Fort continued to be used as a military base until it was decommissioned in 1946. A recent study of the Upper Bluff area concluded that any reuse plan must preserve or reuse the Taylor Avenue buildings, with an estimated cost between $33-43 million.

The polo grounds are an open space. It was a public garden until about 1879, and were likely used for drilling exercises until 1890. A 1903 map labels the open space the “Artillery and Infantry Parade Grounds.” Since 1900, the grounds have been used for both military and recreational purposes, including polo, baseball, and races. A low-rise concrete grandstand was constructed in the 1930s, and polo was played there until 1939, when horses were no longer kept at the fort. After the fort was decommissioned, the space was used almost exclusively for recreational purposes with several multi-use fields for baseball, softball, and soccer.

In 1960, while still owned by the federal government, Fort Snelling was designated a National Historic Landmark. Six years later, Fort Snelling was included in the National Register of Historic Places. Initially, the boundaries were ill-defined, but in 1978 they were redrawn to include all of the Upper Bluff area. Fort Snelling was also designated a State Historic Site and a State Historic District.

In 1971, the federal government transferred the whole Upper Bluff area to the DNR for use only as a public park or for recreational purposes. In 1992, the park board began leasing the polo grounds and the golf course from the DNR. Five years later, the park board appointed a committee on youth sports that recommended increasing and upgrading Minneapolis sports facilities to achieve parity with the fields available to suburban youth. Fort Snell-ing’s Polo Grounds were selected as the site. The park board then formed a Citizen’s Advisory Committee (committee) to assist in the development plan for a youth athletic center. Committee members included state and federal legislators and representatives from the Minnesota Historical Society (MHS), National Park Service (NPS), Department of Veteran Affairs, and others. In 1999, the committee approved the initial design, and the state legislature passed a bill authorizing the state to lease the polo grounds to the park board for recreation purposes for 30 years.

Because the proposed youth athletic center included land owned by the DNR and included on the state and national registers of historic properties, the plan was subject to review by the MHS under the Minnesota Historic Sites Act, Minn. Stat. § 138.665. The DNR was also required to submit the plan for input from the National Park Service (NPS). The federal review process culminated in a Memorandum of Agreement (memorandum), incorporating changes to minimize the adverse effect of the lights, bleachers, and fencing, and included mitigation measures requiring that three interpretive events be staged on the grounds annually and that a water main loop be constructed to irrigate the fields and redevelop the Taylor Avenue buildings. The MHS, DNR, Department of Veteran’s Affairs, and the park board signed the memorandum. It was then submitted to the National Advisory Council on Historic Preservation, which also accepted the memorandum.

On completion of the federal process, the NPS issued a finding of no significant impact under the National Environmental Policy Act and approved the Amended Program of Utilization and a new 30-year lease between the DNR and the park board. Both the amended program and the lease incorporated the memorandum by reference and required the park board to obtain prior written approval from both the MHS and the NPS before undertaking any new development activity.

On April 25, 2001, the final construction plans for the athletic center were approved by the NPS and shortly thereafter by the MHS. Gray steel light standards and black vinyl fencing were chosen to blend into the surroundings and the light standards were “aligned to compliment the military aspect of the site.” At the time of trial in February 2002, the center was 90% complete and on March 20, the trial court, accompanied by counsel for the parties, visited the site.

On May 1, 2002, the trial court filed its findings, conclusions, and order denying the relief requested by the FSSPA and entering judgment for respondents. Thereafter, the parties filed cross-motions for amended findings and conclusions, and the FSSPA moved in the alternative for a new trial. The post-trial motions were denied and both the FSSPA and the city appeal.

ISSUES

1. Did the district court err in its conclusion that the polo grounds were a protected historical resource under MERA?

2. Did the district court err in its conclusion that the youth athletic center did not materially adversely affect the historic resource under MERA?

3. Do the administrative processes of the Minnesota and National Historic Sites Acts preclude an action under MERA?

4. Did the trial court err in denying post-trial motions?

ANALYSIS

The appellate court reviews the district court’s conclusions of law in a Minnesota Environmental Rights Act (MERA) case de novo. State ex rel. Wacouta Township v. Brunkow Hardwood Corp., 510 N.W.2d 27, 29 (Minn.App.1993). Findings of fact are subject to the clearly erroneous standard. State by Archabal v. County of Hennepin, 495 N.W.2d 416, 421 (Minn.1993).

I.

MERA, MinmStat. §§ 116B.01-.13 (2002), creates a cause of action to protect, preserve, and enhance natural resources of this state. The act defines “natural resources” as including

all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational and historical resources. Scenic and esthetic resources shall also be considered natural resources when owned by any governmental unit or agency.

MinmStat. § 116B.02, subd. 4. The first element of a prima facie MERA claim is to show the existence of a protectable resource. State by Powderly v. Erickson, 285 N.W.2d 84, 87 (Minn.1979).

“Historical resources” are not defined within MERA, but the Minnesota Supreme Court has identified factors that should be taken into account in determining whether a building falls under MERA’s protection. Archabal, 495 N.W.2d at 421. A court should look “principally to the criteria used to determine what buildings are included on the National Register of Historic Places.” Id. These criteria, from the code of federal regulations, are whether a site has “significance in American history, architecture, archeology, and culture” and whether it possesses “integrity of location, design, setting, materials, workmanship, feeling and association.” Powderly, 285 N.W.2d at 88 (quoting 36 C.F.R. § 800.10(a) (current version at 36 C.F.R. § 60.4 (2003))). Additionally, a historical site typically would also be characterized by one of the following:

(1) be associated with events that have made a significant contribution to the broad patterns of our history; or
(2) be associated with the lives of persons significant in our past; or
(3) embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
(4) have yielded, or may be likely to yield, information important in prehistory or history.

Id.

The City of Minneapolis challenges the district court’s conclusion that the polo grounds are a historical resource. It argues that the FSSPA failed to prove that the polo grounds, independent of the larger Fort Snelling, were a historical resource.

There is no Minnesota caselaw determining whether designation of a historic site necessarily designates its parts as independent historic sites. We need not resolve that specific issue, however, to concur with the district court’s conclusions that both the greater fort and the polo grounds themselves are historical resources under Powderly. It is clear from Powderly that district courts are accorded considerable latitude for a full consideration of the historical context of a property. Id. at 88. First, the federal historic site criteria include consideration of a site’s “integrity of location ... [and] feeling” and specifically allow consideration of sites that represent a significant and distinguishable entity whose components may lack individual distinction. 36 C.F.R. § 60.4 (2003). Second, these criteria expressly do not control the district court, but are provided as guidance. Powderly, 285 N.W.2d at 88. Third, expert testimony may provide additional historically significant characteristics of a site. Id. Therefore, the city’s narrow application of the historic sites criteria lacks support.

The record clearly supports the district court’s finding that the polo grounds are a historical resource. Historic preservationists who conduct historic site reviews are concerned with how the various elements of a historic district, including open spaces and fields, relate to one another. Russell Fridley, director of the MHS for 30 some years, testified that the Old Fort played the biggest role in Minnesota becoming a state, but the New Fort was particularly important as the headquarters for the Department of the Dakota from 1879-1890 and it paved the way for the admission of North Dakota, South Dakota, and Montana to statehood and for the opening of the West for settlement.

The polo grounds themselves were used by the troops for drills and other exercises, but also served a social, festive function as a gathering spot for Minnesotans. Until World War II, there were weekly parades and daily guard mounts to which the public was invited. Fridley opined that the polo grounds helped define the New Fort and considered it an integral part of the Department of the Dakota and the centerpiece of the fort. Although the polo grounds have had a mixed use in the last half-century, their significance in American and Minnesota history as part of Fort Snelling is well grounded.

The city’s emphasis on the poor condition of the Taylor Avenue buildings is only one of many factors to be considered in the historical resource analysis of the polo grounds. While there was testimony that the buildings are in a state of disrepair, there was also testimony that they could be renovated and that access to water made possible by the athletic center would make renovation more likely. In any event, the status of the buildings does not determine the historical status of the polo grounds.

In light of the evidence showing the historical significance of the polo grounds and their integral role as a part of the greater Fort Snelling historic site, the district court properly concluded that the polo grounds are a historical resource under MERA. Therefore, the FSSPA satisfied the first element of its prima facie MERA case.

II.

The second element in a prima facie case under MERA' is whether the proposed project will inflict a material adverse effect on the protectable resource. See Minn. Public Interest Research Group v. White Bear Rod & Gun Club, 257 N.W.2d 762, 768 (Minn.1977) (stating that proof of pollution, impairment; or destruction of protectable resource may be made by showing conduct complained of materially, adversely affects resource). Minnesota courts weigh five factors to determine whether the effect is material and adverse:

(1) The quality and severity of any adverse effects of the proposed action on the natural resources affected;
(2) Whether the natural resources affected are rare, unique, endangered, or have historical significance;
(3) Whether the proposed action will have long-term adverse effects on natural resources, including whether the affected resources are easily replaceable ...;
(4) Whether the proposed action will have significant consequential effects on other natural resources ...;
(5) Whether the affected natural resources are significantly increasing or decreasing in number, considering the direct and consequential impact of the proposed action.

State by Schaller v. County of Blue Earth, 563 N.W.2d 260, 267 (Minn.1997). The factors are not exclusive and need not all be met to constitute a material adverse effect. Id.

The FSSPA argues that the district court’s use of the terms “serious” and “long-term” to describe the adverse effects of the athletic center were the equivalent of a “material” effect under Schaller. Read in context, however, the trial court’s findings stated (1) that the effect of the lighting, fencing, backstops and bleachers was “serious but not so severe as to impair the[ ] basic character [of the polo grounds] as an open space,” and (2) that the structures will have a long-term effect “but the effect is reversible because they can be removed in the future without causing any permanent degradation to the open space.”

The district court was guided, not controlled by the Schaller test. The first factor expressly provides for consideration of the “quality and severity” of any adverse effects. Contrary to the FSSPA’s argument that “[n]o additional gradations of severity are relevant,” the first factor instructs that severity is relative and must be weighed and analyzed. Schaller, 563 N.W.2d at 267. Similarly, another Schal-ler factor provides for consideration of the long-term effect and whether the resources are replaceable. Id. In the context of the polo grounds, the district court properly considered the nature of the athletic center improvements and that simple removal of the structures would return the polo grounds to their original open space. The court properly considered and weighed the factors to conclude the proposed improvements did not constitute material adverse effects.

The FSSPA also argues that the district court’s decision was flawed by its heavy reliance on social and political factors having nothing to do with the specific and exclusive criteria established by MERA. This argument also lacks merit. First, the Schaller factors are expressly not exclusive. Second, the findings do not reflect undue reliance on social or political factors. Third, the FSSPA’s reliance on a standard for establishing an affirmative defense under MERA is inapplicable to the Schaller test for determining the materiality of the adverse effect.

Schaller encourages consideration of all appropriate factors “based on the facts of each case” consistent with its “flexible” guidelines. Id. Thus, the district court properly considered the effect of the athletic center on other natural resources, including the positive effects of reinvigorating the area on the presently abandoned historical buildings. Similarly, the court’s acknowledgement of the needs of the city’s youth — not just for recreational facilities, but also for exposure to historical resources like Fort Snelling — is consistent with the broad purposes of protecting historical resources. The court properly con-eluded that more people would learn the history of the site by visiting the site. Therefore, the court correctly applied the law and concluded that there was no material adverse effect.

III.

Respondent park board contends that the district court erroneously concluded that it had de novo jurisdiction over the MERA. It argues that the MHS and NPS’s administrative processes required for approval of the athletic center preclude a MERA action.

The state administrative approval of the athletic center was required under the Minnesota Historic Sites Act, Minn.Stat. §§ 138.661~.6691 (2002). The act requires that “[bjefore carrying out any undertaking that will affect designated or listed properties ... the state department or agency shall consult with the Minnesota historical society ... to determine appropriate treatments and to seek ways to avoid and mitigate any adverse effects on designated or listed properties.” Minn. Stat. § 138.665, subd. 2. If the state department or agency and the MHS agree in writing to a course of action, the project may proceed. Id. The state “shall cooperate” with the MHS. Minn.Stat. § 138.666.

The federal administrative process required by the federal government’s 1971 deed to the DNR was the so-called “section 106 process” authorized by the National Historic Preservation Act. 16 U.S.C. §§ 470-470x-68 (2002); 36 C.F.R. § 800.1(a) (stating the “[s]ection 106 of the National Historic Preservation Act” process seeks to accommodate historic preservation concerns with the needs of federal undertakings through consultation). After the agency official determines whether an undertaking has the potential to cause effects on historic properties, the agency and historic preservation officer consult to determine the historic significance of the property and to assess whether there'is an adverse effect. 36 C.F.R. § 800.5 (2002). Consultation is used to resolve an adverse effect finding. Id., § 800.5(d)(2). If the parties agree on how to resolve the adverse effects, they execute a memorandum of agreement. Id., § 800.6(c).

No contested case hearings preceded this MERA action, and the parties do not seek review of an agency action pursuant to these administrative processes. Therefore, the Minnesota Administrative Procedure Act is inapplicable and the district court properly exercised de novo jurisdiction. Nevertheless, the park board’s primary argument is that the administrative decisions on the athletic center are disposi-tive of this MERA action.

We conclude there is no support for this contention. The legislature expressly stated that the “rights and remedies provided [in MERA] shall be in addition to any administrative, regulatory, statutory, or common law rights and remedies now or hereafter available.” Minn.Stat. § 116B.12 (2002). Furthermore, there is no basis for estoppel of claims or issues because the administrative proceedings did not involve hearings or agencies acting in judicial or quasi-judicial capacities. See Surf & Sand Inc. v. Gardebring, 457 N.W.2d 782, 787 (Minn.App.1990) (res judi-cata applies to administrative proceedings when agency acts in judicial capacity and resolves disputed issues that the parties have had adequate opportunity to litigate), review denied (Minn. Sept. 20, 1990). Thus, this civil action under MERA was authorized regardless of administrative processes.

IV.

The district court denied the parties’ cross-motions for amended findings and appellant’s motion for a new trial. The trial court’s denial of the parties’ post-trial motions for amended findings or a new trial will not be disturbed on appeal absent a clear abuse of discretion. Preferred Fin. Corp. v. Quality Homes, Inc., 439 N.W.2d 741, 743 (Minn.App.1989).

In the trial court’s denial of the motions for amended findings and the motion for a new trial, the court stated that the FSSPA did not satisfy the Lewis standard. In Lewis v. Lewis, this court stated that a proper motion for amended findings must both identify the alleged defect in the challenged findings and explain why the challenged findings are defective. 572 N.W.2d 313, 315 (Minn.App.1997), review denied (Minn. Feb. 19, 1998). If there is conflicting evidence, a court is not compelled to amend. Id. at 316. The trial court concluded that FSSPA’s motion simply showed its disagreement with the findings and nothing more.

We agree that the Lewis standard and basic principles for motions to amend support the trial court’s ruling on the motions. See generally 2 Herr & Haydock, Minnesota Practice § 52.15, at 173-74 (1998). The bases proffered for the amendments did not compel the trial court to make the amendments. For example, the court need not make findings simply because the FSSPA believed them to be material to issues tried to the court. Similarly, the court need not make findings on the affirmative defense if the court concluded that FSSPA had not made a prima facie case under MERA. The remaining requested changes in the conclusions of law were simply disagreements between the court and FSSPA’s legal conclusions. Therefore, the trial court did not abuse its discretion in its denial of FSSPA’s motions for amended findings and a new trial.

DECISION

The trial court’s jurisdiction of this MERA claim was not precluded by the administrative proceedings. The trial court did not err in its determination that the polo grounds constituted a historical resource under MERA or in its application of the Schatter factors to conclude that the athletic center would not inflict a materially adverse effect on the polo grounds or Fort Snelling. In light of the trial court’s well-supported findings and conclusions, it did not abuse its discretion in denying post-trial motions.

Affirmed.

      . The relevant part of Lewis did three things: It articulated the components of a motion for amended findings, it ruled that the motion filed in that case lacked those components, and it concluded that this lack caused the motion to be "improper” and to not toll the time to appeal under the then — existing Minn. R. Civ.App. P. 104.04. Subsequently, the Rules of Civil Appellate Procedure were amended, rule 104.04 was deleted, and rule 104.01 was revised to include provisions stating that a "proper and timely” motion of a type listed in Minn. R. Civ.App. P. 104.01, subd. 2 temporarily tolled the time to appeal. Later, the supreme court issued Madson v. Minn. Mining & Mfg. Co., 612 N.W.2d 168 (Minn.2000), addressing what constituted a "proper” motion for purposes of Minn. R. Civ.App. P. 104.01, subd. 2. In doing so, the supreme court rejected the idea that whether a motion was "proper” was related to the merits of the motion. Id. at 171. Madson then concluded that "the test for determining whether a motion is authorized, and therefore proper, is to determine whether on the face of the document the party has filed a motion that is expressly allowed under subdivision 2 [of rule 104.01].” Id. at 172. Thus, while Madson overrules any aspect of Lewis suggesting that the merits of a motion for amended findings bear on whether an appeal time is tolled, Madson leaves in tact Lewis's articulation of the components of a motion for amended findings. District courts should, therefore, continue to use Lewis to determine whether a motion for amended findings has the necessary components and, if it does, then address whether to grant the motion.


author: G. BARRY ANDERSON, Judge.

text:
    Anthony E. NTAMERE, Relator, v. DECISIONONE CORPORATION, Respondent, COMMISSIONER OF EMPLOYMENT and Economic Development, Respondent.
    No. A03-355.
    Court of Appeals of Minnesota.
    Dec. 30, 2003.
    Anthony E. Ntamere, Minneapolis, MN, pro se relator.
    DecisionOne Corporation, Harrisburg, PA, respondent-employer; and Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, St. Paul, MN, for respondent-commissioner.
    Considered and decided by KLAPHAKE, Presiding Judge; WILLIS, Judge; and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

This matter is before the court of appeals on certiorari review from a decision of the commissioner of the Department of Employment and Economic Development. The commissioner’s representative concluded under Minn.Stat. § 268.095, subd. 1 (2002), that because relator quit his employment, and because relator’s reasons for quitting did not constitute an exception to disqualification, relator was disqualified from receiving unemployment compensation.

Relator, a pro se appellant, contends that he was unable to present his case because DecisionOne failed to comply with subpoenas. Relator also challenges the merits of his disqualification.

FACTS

Relator Anthony Ntamere worked as a customer service representative for respondent DecisionOne Corporation from June 1997 until November 2002.

On November 13, 2002, Ntamere called DecisionOne and left a voicemail message saying, “I quit.” Later, Ntamere applied for unemployment benefits. At Ntamere’s hearing before the unemployment law judge (“ULJ”), Ntamere cited four factors that led him to quit employment at Deci-sionOne — the instability of the company, the possibility that the company may suspend employee severance packages, the fact that Ntamere wanted time to look for a different job, and the hostile work environment at the company.

In preparation for the hearing with the ULJ, Ntamere attempted to subpoena various documents and witnesses at Decision-One. Although the appeals examiner at the Department of Employment and Economic Development denied many of Ntam-ere’s subpoena requests, the appeals examiner did issue two subpoenas directed at DecisionOne.

Acting with the first validly issued subpoena, Ntamere requested that one of his former co-workers at DecisionOne, George James, attend the hearing to testify about the instability of the work environment at DecisionOne. Although the subpoena was issued, James did not attend the unemployment hearing. Using the second authorized subpoena, Ntamere requested copies of DecisionOne’s old employee handbook, the updated employee handbook, and any documents in Ntamere’s personnel file that related to Ntamere’s separation from employment. Decision-One did not provide a copy of either the old or the updated handbook; the company argued that Ntamere already had copies of both handbooks, and therefore the company was not obligated to provide subsequent copies. The ULJ refused to postpone Ntamere’s hearing despite Ntamere’s repeated requests for a continuance.

The department adjudicator, the ULJ, and the commissioner’s representative all found that Ntamere was disqualified from receiving unemployment benefits. Ntam-ere now appeals.

ISSUE

Does the failure of the employer to comply with subpoenas issued by the Department of Employment and Economic Development, and the failure of the ULJ to enforce those subpoenas, require a reversal of the commissioner’s representative’s decision?

ANALYSIS

During the hearing before the ULJ, Ntamere requested a continuance of his hearing several times. Ntamere argued he did not have sufficient evidence to prove his case because DecisionOne failed to comply with the subpoenas issued by the Department of Employment and Economic Development. But the ULJ refused to continue the hearing, stating, “[Tjhere isn’t any reason to stretch things out.”

The ULJ is required to assist unrepresented parties in the presentation of evidence, and to control the hearing in order to protect the parties’ right to a fair hearing, and ensure that relevant facts are clearly and fully developed. Minn. R. 3310.2921 (2001). When a party is pro se, the ULJ must help the party “to recognize and interpret the parties’ claims.” Miller v. Int’l Express Corp., 495 N.W.2d 616, 618 (Minn.App.1993).

At an unemployment compensation hearing, both parties may examine and cross-examine witnesses and present exhibits. Minn. R. 3310.2921 (2001). Further, the department may issue subpoenas to compel witnesses to attend unemployment compensation hearings. Minn.Stat. § 268.188(a) (2002). In fact,

[t]he commissioner shall have power to ... issue subpoenas to compel the attendance of individuals and the production of documents and other personal property necessary in connection with the administration of the Minnesota unemployment insurance program and the job service.

Id.

The Department of Employment and Economic Development has adopted its own rules regarding subpoenas and the process of issuing a subpoena:

Subpoenas are available to a party to compel the attendance of witnesses, the production of documents or other exhibits upon a showing of necessity by the party applying for subpoenas. Subpoenas may be obtained by calling or writing the appellate office sufficiently in advance of the scheduled hearing to allow for the service of the subpoenas. The requesting party must identify the person or documents to be subpoenaed, the subject matter of the evidence requested, and their necessity. A request for a subpoena may be denied if the testimony or documents sought would be irrelevant, immaterial, or unduly cumulative or repetitious....

Minn. R. 8310.2914, subp. 1 (2001).

In an unemployment compensation hearing, statutory and common-jaw rules of evidence do not bind the ULJ, but the ULJ may use the rules of evidence as a guide. Minn. Stat § 268.105, subd. 1(b) (2002). The ULJ has authority to exclude any evidence that is irrelevant, immaterial, unreliable, or unduly repetitious. See id.

Here, it is undisputed that the department issued two subpoenas — one for the production of documents and one to compel the attendance of a witness. First, DecisionOne did not produce all the documents listed on the subpoena. Decision-One’s attorneys advised the employer’s representative that she need not bring copies of the old handbook or the updated handbook to the unemployment hearing because Ntamere had already received copies of those documents while he was employed at DecisionOne. Second, it is uncontroverted that the witness Ntamere subpoenaed did not attend the hearing. Ntamere now asserts that the witness, James, did not attend the hearing because DecisionOne, the place of James’s employment, and also the address where the Department addressed the subpoena, did not deliver the subpoena to James until the day after the hearing.

In a recent court of appeals decision, Thompson v. County of Hennepin, this court held that where a relator was unable to present witness testimony because a witness who may have been subpoenaed did not attend relator’s unemployment hearing, the commissioner’s representative’s decision to disqualify relator from unemployment benefits due to employment misconduct was error. 660 N.W.2d 157, 160-61 (Minn.App.2003). This court reversed the decision and remanded to the commissioner’s representative because we found that the “record should have alerted the commissioner’s representative to a significant procedural defect regarding allegedly subpoenaed witnesses.” Id. at 161.

Here, there is no question that the department issued subpoenas compelling both the attendance of James and the disclosure of select documents. The question is, therefore, whether these omissions constituted a procedural defect so significant that Ntamere’s case should be remanded “to provide a full and fair hearing and to develop a complete record.” See Thompson, 660 N.W.2d at 161.

An employer cannot ignore subpoenas issued by the Department of Employment and Economic Development. Here, although the employer offered the excuse that the employee should have already possessed the subpoenaed documents, there is no showing in the record that the employee’s request was unreasonable, unfair, unduly burdensome or in any way inappropriate. Nor was there any similar showing by the employer relative to the subpoena issued to employee James.

Given these facts, the reasoning of the ULJ that the subpoenas would not be enforced because “there isn’t any reason to stretch things out” is not a legally sufficient reason to refuse to either continue the hearing or require compliance with the subpoenas by the employer.

In this case, like in Thompson, the “record should have alerted the commissioner’s representative to a significant procedural defect.” 660 N.W.2d at 161. Because we conclude, and so hold, that parties are required to comply with subpoenas issued by the Department of Employment and Economic Development, and that ULJ’s are required to either enforce those subpoenas or state on the record legally sufficient reasons for declining to enforce those subpoenas, this court, like the court in Thompson, must reverse the commissioner’s representative and remand this matter so that the record may be completely developed and so that Ntamere can have a full and fair hearing.

In light of the disposition of this case, we do not reach Ntamere’s remaining claims.

DECISION

This matter is reversed and remanded to the commissioner’s representative for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . Formerly, the Department of Economic Security.


author: WRIGHT, Judge. CRIPPEN, Judge

text:
    STATE of Minnesota, Respondent, v. Jesus NMN SERENA, Appellant.
    No. A03-362.
    Court of Appeals of Minnesota.
    Dec. 30, 2003.
    Review Granted Feb. 17, 2004.

      John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Lisa N. Borgen, Clay County Attorney, Scott G. Collins, Assistant County Attorney, Moorhead, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; SHUMAKER, Judge; and CRIPPEN, Judge.

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

   OPINION

WRIGHT, Judge.

Appealing from the district court’s denial of jail credit for time spent in a juvenile correctional facility prior to the execution of his adult sentence of imprisonment, appellant Jesus Serena argues that (1) Minn. Stat. § 260B.130, subd. 5 (2000), does not restrict all jail credit for time spent in juvenile custody as a condition of probation; (2) application of the jail-credit restriction in Minn.Stat. § 260B.130, subd. 5, to appellant, who committed the offense of conviction before the effective date of the statute’s jail-credit restriction, violates the constitutional proscription against ex post facto laws; and (3) prohibiting extended jurisdiction juvenile offenders from receiving jail credit for time spent in a juvenile facility violates the equal protection guarantees of the United States and Minnesota constitutions. We affirm.

FACTS

On May 10, 2000, appellant Jesus Serena, who was a juvenile, was convicted of two counts of aiding and abetting second1 degree assault, in violation of Minn.Stat. §§ 609.05, .222, subd. 1 (1998). The district court sentenced Serena under the extended jurisdiction juvenile (EJJ) statute, Minn.Stat. § 260B.130 (1998). The district court imposed two consecutive 21-month terms, stayed the execution of both sentences, and placed Serena on probation. As one of several conditions of probation, Serena was ordered to successfully complete the Prepare Program at the Minnesota Correctional Facility at Red Wing (MCF-Red Wing). .

While at MCF-Red Wing, Serena pleaded guilty to aiding and abetting first-degree aggravated robbery, in violation of Minn.Stat. §§ 609.05, .245, subd. 1 (1998). Serena committed the robbery on January 26, 1999, prior to entering MCF-Red Wing. The district court imposed a 58-month sentence to run concurrently with the sentences for the assault convictions, stayed the execution of the sentence, and also ordered successful completion of the Prepare Program as one of the conditions of probation.

Serena was released from MCF-Red Wing after 459 days. Shortly thereafter, Serena violated two conditions of his probation by testing positive for a controlled substance and absconding from supervision. As a consequence, the district court revoked Serena’s EJJ status but continued the stay of execution of the adult sentences. The district court ordered Serena to serve 30 days in jail as a sanction for the probation violation. After Serena failed to report to jail, the district court revoked Serena’s probation and executed the previously stayed sentences.

During the revocation hearing, Serena requested jail credit for time served at MCF-Red Wing. The district court denied Serena’s request, stating, “[ujnder the EJJ law,, the. court has no discretion to give you that, time.” Serena filed a formal motion for jail credit, and the district court again denied his request. This appeal followed.

ISSUES

I. Did the district court err in concluding that, upon the execution of an adult sentence, Minn.Stat. § 260B.130, subd. 5 (2000), prohibits jail credit for time served by extended jurisdiction juvenile offenders committed to a juvenile facility as a condition of probation?

II. Did the district court’s denial of appellant’s request for jail credit violate the constitutional proscription against ex post facto laws?

III. Does application of the extended jurisdiction juvenile jail-credit restriction to appellant violate the equal protection guarantees of the United States and Minnesota constitutions?

ANALYSIS

I.

Generally, a defendant is entitled to credit for “all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.” Minn. R:Crim. P. 27.03, subd. 4(B). The decision to grant jail credit is not discretionary with the district court. State v. Fritzke, 521 N.W.2d 859, 861 (Minn.App.1994). Although an offender may receive treatment either as part of confinement in a state correctional facility or as part of a residential treatment program, the sentencing guidelines only permit jail credit for the correctional facility treatment. State v. Bradley, 629 N.W.2d 462, 465 (Minn.App.2001), review denied (Minn. Aug. 15, 2001); Minn. Sent. Guidelines III. C.3 (jail credit “is limited to time spent in jails, workhouses, and regional correctional facilities”).

Effective August 2000, the Minnesota Legislature amended Minn.Stat. § 260B.130, subd. 5, to prevent extended jurisdiction juvenile (EJJ) offenders from receiving jail credit for time served in juvenile facility custody if, after a summary hearing, the district court determines that the EJJ offender has violated the conditions of the stayed adult sentence and reasons exist to revoke the stay of execution of the adult sentence. 2000 Minn. Laws ch. 255, § 1. Under such circumstances, “the court shall treat the offender as an adult and order any of the adult sanctions authorized by section 609.14, subdivision 3, except that no credit shall be given for time served in juvenile facility custody prior to a summary hearing.” Minn.Stat. § 260B.130, subd. 5 (2000) (emphasis added).

The initial question before us is one of statutory interpretation, which we review de novo. State v. Iverson, 664 N.W.2d 346, 350 (Minn.2003). When we interpret a statute, we focus on the words of the statute to “ascertain and effectuate the intention of the legislature.” Minn.Stat. 645.16 (2002). If the legislative intent “is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and courts apply the statutes plain meaning.” Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). We first decide whether the statutory language, on its face, is ambiguous. Id. A statute is ambiguous “when it is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). When statutory language is ambiguous, we may consider contemporaneous legislative history to ascertain the intent of the legislature. See Minn.Stat. 645.16 (2002); Handle With Care, Inc. v. Dept. of Human Servs., 406 N.W.2d 518, 522 (Minn.1987) (tapes of legislative proceedings may be considered if helpful in interpreting a statute).

Serena argues that the 2000 amendment to the EJJ statute precludes jail credit only for the period between the offender’s arrest for a probation violation and the summary hearing. Thus, the jail-credit restriction, Serena contends, applies only when an offender challenges the reasons for revoking EJJ by requesting a summary hearing, rather than admitting the probation violation resulting in the revocation. The state counters that the amendment prohibits jail credit for any time served in a juvenile facility while the offender is under juvenile jurisdiction. Because the language of the statute is subject to at least two reasonable interpretations, we consult the legislative history of the 2000 amendment to the EJJ statute to discern the intent of the legislature.

Legislative history regarding the 2000 amendment reflects a clear intent to restrict jail credit for any time spent in juvenile facility custody as an EJJ offender. In testimony before the Crime Prevention Committee, Deb Eng of the Minnesota Department of Corrections stated that the amendment “would clarify that while a juvenile is serving their juvenile disposition, and if they were to violate [their conditions of probation], they would not be given credit for the time spent under the juvenile disposition.” Hearing on H.F. No.2067 Before the Crime Prevention Comm. (Mar. 29, 1999). Representative Andrew Westerberg, the author of the amendment, stated further:

[B]y giving [offenders] the advantage of going with EJJ, what we’re doing here is we’re trying to hold a big stick, basically, over their head that says, you know, if you don’t complete this other option — -this softer option — then you’ll be hit with the harder option. The problem comes in situations where if the softer option is being abided to and [then] violated close to the end of the harsher sentence, then the harsher sentence has much less of an effect. So what we want to do, basically, is still hold the balance of the harsher sentence — the entire harsh sentence — over and above them to get them to complete the softer sentence.

Id. (emphasis added). Thus, contrary to Serena’s assertion, the jail-credit restriction is not limited to time spent in custody between the arrest for the probation violation and the summary hearing. Rather, under the EJJ statute, upon revocation of the stay of execution of the adult sentence, the offender who is now subject to adult sanctions shall not receive custody credit for any time served in a juvenile facility under the juvenile disposition.

In a related argument, Serena contends that he is entitled to custody credit for time served at MCF-Red Wing because it is a correctional facility, not a “juvenile facility” as contemplated by the statute. This argument also is unavailing. Section 260B.130, subdivision 5, proscribes giving jail credit for any time served in “juvenile facility custody” under the juvenile disposition. The statute neither defines the term “juvenile facility” nor distinguishes between a correctional facility that houses juveniles and a juvenile facility. MCF-Red Wing is a correctional facility for juveniles. Asfaha v. State, 665 N.W.2d 523, 527 (Minn.2003). Because Minn.Stat. § 260B.130, subd. 5, prohibits giving an EJJ offender serving an adult sentence jail credit for any juvenile facility custody, the district court properly denied Serena jail credit for time served under EJJ at MCF-Red Wing.

II.

Serena next argues that applying the 2000 amendment to the EJJ statute to deny him custody credit for time served in a juvenile facility violates the constitutional prohibition against ex post facto laws. Whether the application of a statute is unconstitutional is a question of law, which we review de novo. State v. Behl, 564 N.W.2d 560, 566 (Minn.1997). “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). To challenge successfully the constitutionality of a statute, a party must demonstrate beyond a reasonable doubt that the statute is unconstitutional. State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990).

Both the United States and Minnesota constitutions prohibit the enactment and application of ex post facto laws. U.S. Const, art. I, § 9, cl. 3; Minn. Const, art. I, § 11; Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879-80 (1955); State v. Grillo, 661 N.W.2d 641, 644 (Minn.App.2003), review denied (Minn. Aug. 5, 2003). “The ex post facto prohibition forbids the Congress and the States to enact any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). This prohibition ensures that individuals receive “fair warning” of the effect of legislative acts, permitting reliance on a statute until it has been explicitly revised. Id. at 28-29, 101 S.Ct. at 964. The critical question in determining whether application of a statute violates the ex post facto prohibition is whether the enactment or amendment of the law changes the legal consequences of acts completed before its effective date. Id.

Serena argues that, because section 260B.130, subdivision 5, did not place any restrictions on jail credit at the time he committed the offenses, application of the 2000 amendment to the EJJ statute, which prohibits giving jail credit for time served in juvenile facility custody against an executed adult sentence, changes the legal consequences of acts he committed before the jail-credit prohibition was enacted. We disagree.

As amended, section 260B.180, subdivision 5, did not disadvantage Serena by increasing his original sentence. The inability to receive jail credit is based on Serena’s commission of an act committed after the enactment of the 2000 amendment — namely, failure to report to jail as a sanction for violating conditions of his probation. Serena violated the conditions of his probation after the 2000 amendment’s effective date. Thus, at the time of the violation, he had fair warning that jail credit would not be awarded if the district court revoked his stayed adult sentence. See Weaver, 450 U.S. at 28-29, 101 S.Ct. at 964; see also State v. Garcia, 670 N.W.2d 297, 299 (Minn.App.2003) (holding that the 2000 amendment did not violate the ex post facto clause because “[wjhen enacted, the [2000] amendment merely exposed appellant to possible additional punishment in the event of a future probation violation”), review granted (Minn. Dec. 23, 2003); Gasper v. Gunter, 851 P.2d 912, 918 (Co.1993) (holding that application of a statute prohibiting credit for time on parole did not implicate ex post facto prohibition because the forfeiture of jail credit was based on “an incident discrete from the [] sentencing arising out of [the offender’s] felony convictions”); but see Haas v. Hathaway, 144 Or.App. 478, 928 P.2d 331, 334-35 (1996) (holding that application of statute violated the Oregon ex post facto clause because failure to give credit for time served as a condition of probation resulted in greater punishment than permitted when the original offense was committed). Because application of the 2000 amendment to the EJJ statute was triggered by acts Serena committed after the amendment’s effective date, such application does not violate the prohibition against ex post facto laws.

III.

A juvenile certified as an adult receives custody credit for time served in a juvenile facility, but an EJJ offender whose adult sentence is executed does not. Because of this distinction, Serena argues that Minn. Stat. 260B.130, subd. 5, violates the equal protection guarantees of the United States and Minnesota constitutions.

The Fourteenth Amendment to the United States Constitution provides that “[no state shall] deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Minnesota Constitution states that “[n]o member of this state shall be disenfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Minn. Const, art. 1, § 2. Both clauses have been analyzed under the same principles and require that the state treat all similarly situated persons alike. Scott v. Minneapolis Police Relief Assn., Inc., 615 N.W.2d 66, 74 (Minn.2000); Behl, 564 N.W.2d at 568. “[F]acial distinctions based on age and charged offenses do not create suspect classifications.” Behl, 564 N.W.2d at 568.

In the absence of a suspect classification, distinctions made among offenders to determine jail-credit eligibility must be rationally related to a legitimate government purpose under the federal constitution. See McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973). Likewise, we apply a rational-basis standard under the Minnesota Constitution and require “a reasonable connection between the actual, and not just the theoretical, effect of the challenged classification and the statutory goals.” State v. Russell, 477 N.W.2d 886, 888-89 (Minn.1991) (citations omitted).

The EJJ jail-credit restriction has a reasonable connection between the actual effect of the EJJ classification and the statutory goals. The purpose of the EJJ statute is to rehabilitate serious juvenile offenders before they become serious adult offenders. See Minn. Sup.Ct. Advisory Task Force on the Juv. Justice Sys., Final Report 34 (Jan.1994) (noting that the EJJ system provides “one last chance” in which “[jjuveniles will know there is a certainty of punishment, combined with an opportunity to be successful in the juvenile system”). Juveniles who have been certified as adults have already lost their last chance in the juvenile system and are treated the same as adult offenders. By virtue of their status, EJJ offenders pose the greatest rehabilitative challenge in the juvenile system. The threat of harsh adult sanctions is rational and necessary to provide an incentive to rehabilitate serious juvenile offenders. The distinction between the EJJ offender and a juvenile certified as an adult may be harder to discern at the point when the EJJ offender fails to comply with the conditions of the stay and has the adult sentence executed. But the EJJ statute’s purpose is to facilitate successful completion of the juvenile disposition, not coordination with adult sentences for those who fail.

In addition to the EJJ offender receiving the benefit of intensive services and supervision to enhance the offender’s chance of succeeding, an important component of this incentive-based statutory scheme is the deterrent effect produced by the threat of serving the full adult sentence. To that effect, the EJJ statute requires the district court to impose an adult criminal sentence, the execution of which is stayed, provided the offender complies with conditions of probation. Minn.Stat. 260B.130, subd. 4(a)(2) (2000). Giving jail credit for juvenile custody upon the revocation of the stay would erode the punitive consequences of an executed adult sentence. Giving jail credit to juveniles certified as adults does not diminish the deterrence against violating probation any more than it does for adult offenders generally. And it is unnecessary to provide an incentive to certified juveniles to remain in the juvenile system because they have already left it. Because the jail-credit restriction is a rational means to encourage the rehabilitation of EJJ offenders, the 2000 amendment does not violate the equal protection guarantees of the United States and Minnesota constitutions.

DECISION

The district court, based on Minn.Stat. § 260B.130, subd. 5 (2000), properly denied Serena’s request for jail credit. Application of section 260B.130, subdivision 5, to Serena, whose adult sentence was stayed prior to the 2000 amendment and executed pursuant to a probation violation committed after the amendment, does not violate the constitutional prohibition against ex post facto legislation. And the 2000 amendment does not violate the equal protection guarantees of the United States and Minnesota constitutions.

Affirmed.

CRIPPEN, Judge

(concurring in part, dissenting in part).

Under the statutory scheme at issue, jail credit is extended to a dangerous juvenile offender who is certified for adult-court prosecution and whose sentence is first stayed but later executed because of violations of stay conditions. A less dangerous juvenile of like age, who has committed an offense equally or less serious, whose circumstances are less threatening to public safety, and who is not certified, is denied the same jail credit when his stayed sentence is similarly executed.

The practice of holding a more threatening stick over the less dangerous juvenile is rational, the state asserts, because it modifies conduct of the juvenile that will spare this offender from the consequence of an adult sentence. The approach is also important, the state contends, because of the great challenge the public accepts in attempting to rehabilitate the offender who is still subject to juvenile court jurisdiction. If the size of the stick is moderated, the state suggests, the public will to help less dangerous juveniles will be eroded.

No doubt a less dangerous juvenile adversely affected by these laws would plead to be helped less diligently. And this simple reaction is constitutionally compelling. To conclude otherwise is to open the door to euphemistic approaches that with the one hand herald the rehabilitative purposes of the juvenile system and with the other enlarge the license to punish those the system is to help. See Application of Gault, 387 U.S. 1, 27, 87 S.Ct. 1428, 1443, 18 L.Ed.2d 527 (1967) (calling for “reality” in recognizing incarceration, “however euphemistic the title.”). “Tough love” may be attractive in private contexts, but it does not represent an acceptable basis for public laws that impose greater punishment for less dangerous juveniles than for more dangerous juvenile offenders who are loved less and have been certified for adult-court prosecution.

The meaning of the state’s position on jail credits can be appreciated by considering the implications of the approach where the courts are not dealing with an EJJ case or even a serious offense. If there is rationality in big threats to less dangerous children, one is led to find rationality in laws providing punitive, severe consequences for failure to immediately discontinue a pattern of minor or even petty misconduct.

Finally, the rationality of the state’s position is not enlarged, in my opinion, by failing to recognize the readiness of the helping hand to impose a severe penalty. It is true that the law is built on a hope that there will be no executed sentence, but this wish does not diminish the realistic anticipation that violations of stay conditions commonly occur and that execution of sentences is a material part of the EJJ process. And there is little merit in assuming that the big stick will not be employed carelessly from time to time, or that it will not be utilized grudgingly by the “helping” hand that waits too eagerly for the opportunity to act on the threat to punish; these mistaken approaches are most evident in the choice of stay conditions that are excessively imprecise, numerous, or otherwise difficult to honor.

Because there is too little rationality in the notion that benevolence to an offender explains treating this person more severely than another in like circumstances, I respectfully dissent from the majority’s rejection of appellant’s assertion that he has been denied equal protection of the laws. I concur in decisions of the majority on other issues of the case.