author: CRIPPEN, Judge.

text:
    In the Matter of the WELFARE OF M.D.R.
    No. A04-831.
    Court of Appeals of Minnesota.
    March 22, 2005.

      Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, MN, for appellant M.D.R.
    Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, HUDSON, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

Appellant M.D.R. challenges a district court order adjudicating him delinquent on a charge of possession of a firearm by an underage person in violation of Minn.Stat. § 624.713, subds. 1(a), (2) (Supp.2003), arguing that two Minneapolis police officers failed to show lawful cause either for stopping appellant or proceeding immediately to perform a safety pat-down search. Appellant was adjudicated delinquent based upon the discovery during the pat down that he possessed a pistol. Because the record does not show wrongful search conduct by the officers, we affirm.

FACTS

On a Friday evening in February 2004, at approximately 10:00 p.m., Minneapolis police officer Jerry Johnson was on patrol when he heard an “officer-needs-help” call on his police radio. The police broadcast identified the location of the call as an entertainment complex known as “Block E” in downtown Minneapolis. Johnson was directly in front of an entrance to Block E when he heard the help call and responded immediately.

“Officer needs help” is a term of art among police officers indicating that an officer is injured or in danger and urgently needs help. As Johnson explained, the “officer-needs-help” message is treated by police as one of the “highest priority” among calls received. The police dispatch contained no description of the situation, and Johnson did not know what had occurred inside Block E.

Johnson stated that as he was about to enter Block E, he saw “three guys running out the door.” According to Johnson, the three saw him and gave him a -look that Johnson described from experience as “oh, no, don’t stop me.” Johnson said that the men glanced left and right, appeared panicked, and had a look of avoidance.

Johnson called on his radio for assistance in stopping the individuals. He “stated that there were three [people] that just came running out the door, gave a brief description of their clothing and [said] that [Johnson] was going to try and stop them.” In his description, Johnson noted that one of the individuals was wearing a red jacket.

Johnson testified that the men first walked north toward Sixth Street, then turned and headed south toward Seventh Street, running at one point. Finally, the individuals split up, one going to Johnson’s right and the other two, including appellant, going to Johnson’s left. Johnson stopped the person who went to his right, “patted him down, handcuffed him and put him in [the squad] car until [Johnson] could determine what was going on” regarding the help call. Johnson estimated that he detained this individual “within ... 10 to 15 seconds” of hearing the call.

Minneapolis police officer Andrew Enri-quez was off duty and working as a security guard at City Center, a shopping mall directly across the street from Block E, when he heard the officer-needs-help call. Enriquez testified that he “felt compelled to” respond because the police are “taught early on from rookie school that those are calls that you drop everything and run toward.” He also stated that he viewed an officer-needs-help call as “the worst set of circumstances.... An officer could be shot, [an] officer could be lying down wounded somewhere. Also, an officer is more than likely involved in a physical confrontation.”

Enriquez ran out onto Hennepin Avenue, saw Johnson at the corner of Seventh and Hennepin, and heard another call on his radio. This call was from Johnson who “advised that he had two black males running away from him, [one of whom] was wearing a red jacket.” Enriquez knew that Johnson had responded to the officer-needs-help call and “immediately assumed ... that whatever parties ... were running away from him were somehow involved in that call.”

As Enriquez responded to the call, he noticed two individuals, including appellant, who was wearing a red jacket, walking toward him. As he approached the men, Enriquez slowed down and averted his eyes until he was near them. When Enriquez passed the men, he grabbed appellant and “placed him up against the wall.” Enriquez told appellant that he was stopping him because he matched the description of someone who was running away from the scene of an officer-needs-help call. Enriquez then “patted down” both men. In support of his decision to frisk the men, Enriquez stated that

[b]ased on the [officer-needs-help] call, I had every reason to believe that these two were somehow involved. And for my safety I just wanted to make sure that there were no weapons within reach on the suspects’ body that ... might jeopardize my life, so I just did a quick pat search for anything that might be construed as a weapon.

When Enriquez frisked appellant, he recovered a loaded .45 caliber pistol; appellant cooperated with the search. Appellant was subsequently charged in a delinquency petition with one count of possession of a pistol by an underage person in violation of Minn.Stat. § 624.718, subds. 1(a), (2).

At his Rasmussen hearing to suppress the weapon, appellant argued that it was seized in violation of the Minnesota and United States Constitutions; he contended that the police did not have an articulable suspicion to detain or frisk him. The juvenile court denied his motion.

An adjudicatory and dispositional hearing was later held based on stipulated facts consisting of the police reports. The court found appellant guilty of the charged offense and adjudicated him delinquent. The court ordered appellant to complete 100 hours of community service and imposed a stayed, short-term correctional placement. M.D.R. appeals from the delinquency adjudication. He does not challenge the dispositional order.

ISSUE

Were appellant’s rights against an unreasonable search violated by either the stop or the pat-search of his person for a weapon?

ANALYSIS

Both the United States and the Minnesota Constitutions protect against unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. A district court’s decision regarding the suppression of evidence, including the constitutionality of a limited investigatory stop and pat-search, is reviewed de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn.1999). Where, as here, the facts are not in dispute, we must determine whether the police officers articulated an adequate basis for their actions. State v. Hams, 590 N.W.2d 90, 98 (Minn.1999); see also State v. Saffeels, 484 N.W.2d 429, 430 (Minn.App.1992) (“In reviewing [district] court rulings on fourth amendment issues, this court accepts the [district] court’s findings of fact, unless clearly erroneous, but independently applies fourth amendment case law to the facts so found.”), review denied (Minn. June 1,1992).

1. The Stop

Appellant first argues that his detention was improper because the officers did not have a reasonable basis to suspect that he was engaged in criminal activity. A determination of whether the police have reasonable suspicion to conduct an investigative stop is based on the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). The police may conduct a limited stop to investigate suspected criminal activity if they can point to specific and articulable facts that reasonably warrant the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). “Reasonable, artic-ulable suspicion requires a showing that the stop was not the product of mere whim, caprice, or idle curiosity.” State v. Waddell, 655 N.W.2d 803, 809 (Minn.2003) (quotation omitted).

Although we must determine the propriety of the stop by Enriquez, his basis for stopping appellant includes Johnson’s knowledge of the situation, as well as the information that Johnson reported to him. See In re Welfare of G. (NMN) M., 542 N.W.2d 54, 57 (Minn.App.1996) (noting that “the grounds for making the stop can be based on the collective knowledge of all investigating officers”), aff'd, 560 N.W.2d 687 (Minn.1997); see also United States v. Chhunn, 11 F.3d 107, 110 (8th Cir.1993) (looking to the collective knowledge of the officers to determine the reasonableness of a Terry stop); United States v. Home, 4 F.3d 579, 585 (8th Cir.1993) (noting requirement that there be “some degree of communication” of knowledge).

Appellant contends that the stop was based merely on general concern arising from the help call and that Enriquez had no individualized articulable suspicion that appellant was engaged in criminal activity. Enriquez based his stop on the original help call and the subsequent call from Johnson advising that two individuals were fleeing the scene, circumstances that require our initial attention to the question of whether Johnson had reason to request a stop of the two individuals.

Appellant argues that his situation is similar to that presented in In re Welfare ofM.D.B., 601 N.W.2d 214 (Minn.App. 1999), review denied (Minn. Jan. 18, 2000), where this court explained that a suspect’s nervousness did not provide reasonable grounds for a stop and search, noting that nervousness is not unusual when an individual is confronted by an armed, uniformed officer in a squad car with flashing lights. Id. at 216; see also State v. Syhavong, 661 N.W.2d 278, 282 (Minn.App.2003) (noting that nervousness is not sufficient “by itself’ to provide reasonable suspicion). Although it is true that innocent behavior, in and of itself, may not generally provide reasonable suspicion, “innocent factors in their totality, combined with the investigating officer’s experience ... can be sufficient bases for finding reasonable suspicion.” State v. Martinson, 581 N.W.2d 846, 852 (Minn.1998) (quotation omitted). Again, the supreme court has stated that in light of the circumstances, “innocent activity might justify the suspicion of criminal activity.” State v. Johnson, 444 N.W.2d 824, 826 (Minn.1989).

Johnson was responding to an officer-needs-help call, one that, in the experience of police, is counted as a message of the “highest priority.” He had no information about the specifics of the situation, but reasonably presumed that it was serious. Immediately after receiving the call, Johnson observed three individuals, including appellant, running from Block E — the scene of the help call. He noted that these individuals had “a general look of panic on their face[s]” and acted as if they were looking for a way to get away from him. The group immediately moved away from Johnson, running at one point, and then split up.

Although these factors taken individually might not justify Johnson’s request to stop the individuals, the combination of appellant’s apparent nervousness, evasive behavior, and the fact that he was running from the scene of an officer-needs-help call provides reasonable grounds for such a request. See, e.g., State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992) (holding that defendant’s evasive conduct after eye contact with police and observed departure from a building with a history of drug activity justified the stop), aff'd, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

Enriquez knew that Johnson was responding to the officer-needs-help call. He also heard Johnson’s call stating that two black males, one of whom was wearing a red jacket, were running away from Johnson. Within a few seconds, Enriquez saw two individuals matching Johnson’s description approaching him from the direction of Block E. It was therefore reasonable for Enriquez to assume that these individuals were those being sought by Johnson. Given the totality of the circumstances and the collective knowledge of the officers, Enriquez had a reasonable articu-lable suspicion of criminal activity sufficient to justify his stop of appellant.

2. The Search

Appellant argues that even if the police lawfully detained him, they did not have reasonable justification for frisking him. A police officer may conduct a pat-search narrowly confined to a frisk for weapons if the officer reasonably believes that such a search is necessary to protect the officer’s safety or the safety of others. State v. Gilchrist, 299 N.W.2d 913, 916 (Minn.1980). “Reasonableness ... depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) (quotation omitted). A pat-search is permissible if the officer has an “objective articulable basis” for thinking that a lawfully stopped person may be armed and dangerous. State v. Payne, 406 N.W.2d 511, 513 (Minn.1987) (citing Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889).

The supreme court has noted that the right to frisk a person follows directly from the right to stop a person where the person was stopped based upon “an articulable suspicion of a crime of violence.” Payne, 406 N.W.2d at 513 (quotation omitted). Such an articulable suspicion is present “whenever the suspect has been stopped ... [for] a type of crime for which the offender would likely be armed....” Id. (quotation omitted) (variation in original). The appropriate inquiry is “whether a reasonably prudent person in the specific circumstances would believe that his or her safety was in danger.” State v. Crook, 485 N.W.2d 726, 729 (Minn.App.1992) (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883), review denied (Minn. Aug. 4, 1992). Given the serious nature of an officer-needs-help call, the likelihood that such a call was precipitated by some type of threatening physical altercation potentially involving weapons, and the very short interval of time, Enriquez reasonably viewed the situation as presenting the “worst of circumstances.” Under these circumstances, Enriquez had a justifiable basis for believing that his safety might be in danger, and his pat-search of appellant was reasonable.

DECISION

The totality of the circumstances — appellant’s nervousness, his evasive behavior, and the fact that he was running from the scene of an officer-needs-help call — provided reasonable justification for a Terry stop. The serious nature of the call and the possibility that weapons were involved justified the pat search of appellant. The juvenile court did not err in denying appellant’s motion to suppress the weapon found during the search.

Affirmed.

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

      . This type of call may be distinguished from a less urgent "officer-needs-assistance” call indicating that an officer simply needs backup.

      . Enriquez was wearing his police uniform at the time. When working off-duty, but in uniform, officers are required to sign in with the police department "so that they know there is a uniformed officer working at the various areas,” and are expected to monitor their police radios.

      . In his reply brief, appellant argues that the “collective-knowledge rule” does not apply to Terry stops. As Welfare of G. (NMN) M., 542 N.W.2d at 57, and Chhunn, 11 F.3d at 110, indicate, this argument is misguided.


source: Caselaw Access Project

author: RANDALL, Judge.

license: Public Domain

text:
    In the Matter of the Findings of Abuse of D.F.C., Appellant, v. MINNESOTA COMMISSIONER OF HEALTH, Respondent.
    No. A04-551.
    Court of Appeals of Minnesota.
    March 22, 2005.
    Mark W. Bay, Peterson, Engberg & Peterson, Minneapolis, MN, for appellant.
    Mike Hatch, State Attorney General, Jocelyn F. Olson, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, MINGE, Judge, and WRIGHT, Judge.
   OPINION

RANDALL, Judge.

On appeal from an order of the Commissioner of Health affirming her disqualification from a health-care position allowing direct contact with vulnerable adults, based on a finding of abuse, appellant D.F.C. argues that (1) the commissioner did not “issue” its order because she failed to serve appellant a copy of the order, and (2) a notice of appeal served and filed within 33 days after mailing of the order from which the appeal is taken is timely under Minn. R. Civ. P. 6.05. Because the commissioner failed to send appellant a copy of the order, the 30-day appeal time set forth in Minn.Stat. § 256.045, subd. 7 (Supp.2003), did not begin to run. We reverse the district court’s dismissal for lack of subject matter jurisdiction and remand.

FACTS

In August 2001, appellant D.F.C. was employed as a nurse aide at Pine Medical Health Care Center (PMHCC). Following a report that appellant had abused a vulnerable adult at the PMHCC, the Minnesota Department of Health (MDH) conducted an investigation pursuant to the Vulnerable Adults Act. The MDH found that:

While working as a nurse aide at [PMHCC], [appellant] physically abused a resident on or about August 29, 2001. She grabbed the resident’s wrist and yanked her to a standing position, resulting in a bruise on the resident’s wrist the size of a fifty-cent piece that was still visibly purple on October 3, 2001.

The MDH’s findings resulted in a recommendation that appellant be disqualified due to the seriousness of her offenses and that she be immediately removed from direct contact services.

Appellant appealed the MDH’s finding by requesting an evidentiary hearing. After conducting a two-day hearing, the appeals referee concluded that the MDH had failed to establish by a preponderance of the evidence that appellant had committed vulnerable adult abuse, and recommended that the MDH’s findings be reversed.

On September 25, 2003, the Commissioner of Health rejected the referee’s recommendation. The commissioner noted that the case was close, but found that the MDH met its evidentiary burden and showed by a preponderance of the evidence that appellant had abused the resident. That same day, copies of the signed order were mailed to appellant’s counsel and to the attorney general’s office. A copy of the order was not mailed to appellant.

Appellant served her notice of appeal by mail on the Commissioner of Health on October 28, 2003; 33 days after the commissioner mailed the signed copies of the order. Respondent subsequently moved to dismiss for lack of jurisdiction because the appeal was untimely. Following a hearing on the matter, the district court granted respondent’s motion because appellant failed to appeal within the 30-day period as required by Minn.Stat. § 256.045, subd. 7 (Supp.2003). This appeal followed.

ISSUE

Did the district court properly dismiss appellant’s appeal for lack of subject matter jurisdiction?

ANALYSIS

Minn.Stat. 256.045, subd. 7, provides:

[A]ny party who is aggrieved by an order of the commissioner of human services, or the commissioner of health in appeals within the commissioner’s jurisdiction under 3b ... may appeal the order to the district court of the county responsible for furnishing assistance, or, in appeals under subdivision 3b, the county where the maltreatment occurred, by serving a written copy of notice of appeal upon the commissioner and any adverse party of record within 30 days after the date the commissioner issued the order, the amended order, or order affirming the original order, and by filing the original notice and proof of service with the court administrator of the district court. Service may be made personally or by mail; service by mail is complete upon mailing.

(emphasis added). The failure of an aggrieved party to commence an appeal of a state agency decision within the time limits in the statute governing such appeals properly results in dismissal for lack of jurisdiction. Davis v. Minn. Dept. of Hitman Rights, 352 N.W.2d 852, 854 (Minn.App.1984). Questions of subject-matter jurisdiction are reviewed de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn.2002).

A. Issuance of the commissioner’s order

Appellant argues that the commissioner did not “issue” her order because she failed to serve appellant with a copy of the order. Appellant contends that by failing to “issue” the order, the 30-day appeal time set forth in Minn.Stat. 256.045, subd. 7, did not begin to run, and, therefore, her appeal was timely.

It is not abundantly clear under Minnesota Statutes chapter 256, or prior caselaw, as to what exactly constitutes the “issuance” of the commissioner’s order. But “issue” connotates communication. To “issue” means: “To send out or distribute officially.” Black’s Law Dictionary 836 (7th ed.1999). The fundamental essence of due process is that you get some kind of “notice” about what you have to do. See Goldberg v. Kelly, 397 U.S. 254, 268-69, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970) (stating that due process generally requires reasonable notice and a hearing). A person has to be fairly told what kinds of timelin.es have to be observed before he can lose by default for not observing them. See Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) (stating the “right to be heard has little reality or worth unless one is informed”). It has to be fairly communicated to a person as to what he is expected to do before he can be reproved for not doing it.. See id. (stating that notice must be of such nature as reasonably to convey the required information). We conclude that under Minn.Stat. 256.045, subd. 7, the commissioner “issues” the order by mailing the order to the person involved. Issuing is not the same as signing, contrary to respondent’s position. We find it is entirely possible for someone to sign an order but then leave it on a desk or in a drawer for days while contemplating revisions or contemplating whether or not to send the order. It would be illogical to count those days against the recipient for appeal purposes.

Appellant does not dispute that the commissioner (in this instance) did mail the order on the same date that the order was signed. It is undisputed that the commissioner sent the order to appellant’s attorney. Appellant contends that for the “issuance” of the order to be valid so that the appeal time begins to run, the commissioner is required to issue an order directly to appellant. We agree. In support of her claim, appellant asserts that various portions of Minnesota Statutes chapter 256 require service of certain documents on both the petitioner and the petitioner’s attorney. For example, appellant points out that Minn.Stat. § 256.0451, subd. 23 (Supp.2003), requires that if the commissioner refuses to accept the recommended order from the appeals referee, the proposed modified order shall be sent to both the person involved and their attorney to enable the person involved to have at least ten business days to respond to the proposed modification of the recommended order. Appellant argues that because certain portions of Minnesota Statutes chapter 256 require service of certain documents on both appellant and her attorney, the legislature must have intended that the commissioner also serve her final order on both appellant and her attorney.

We agree with respondent that, normally, service on a party’s attorney is sufficient. See Minn. R. Civ. P. 5.02 (stating that whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court). But we cannot ignore the plain language contained in Minn.Stat. § 256.0451, subd 23. This statute provides:

Refusal to accept recommended orders. (a) If the commissioner refuses to accept the recommended order from the appeals referee, the person involved, the person’s attorney or authorized representative, and the agency shall be sent a copy of the recommended order, a detailed explanation of the basis for refusing to accept the recommended order, and the proposed modified order.
(b) The person involved and the agency shall have at least ten business days to respond to the proposed modification of the recommended order. The person involved and the agency may submit a legal argument concerning the proposed modification, and may propose to submit additional evidence that relates to the proposed modified order.

Minn.Stat. § 256.0451, subd. 23.

Although Minn.Stat. § 256.045, subd. 7, does not specify to whom notice of the commissioner’s final order must be sent, Minn.Stat. § 256.0451, subd. 23(a), specifically states that if the commissioner refuses to accept the recommended order from the appeals referee, both the person involved and his or her attorney shall be sent a copy of the recommended order. Both Minn.Stat. § 256.045, subd. 7, and Minn.Stat. § 256.0451, subd. 23, provide timetables for responding to the commissioner’s order. Minn.Stat. § 256.045, subd. 7, provides a party with 30 days to appeal to the district court, and Minn.Stat. § 256.0451, subd 23(b), provides a party ten days to respond to the proposed modification of the recommended order. We conclude that it is inconsistent with the language of Minnesota Statutes chapter 256 that Chapter 256 would require notice be sent to both the person involved and his attorney for purposes of the ten-day response time under Minn.Stat. § 256.0451, subd. 23, but not for purposes of the 30-day time to appeal to the district court.

We note that as a practical matter, notice should be sent to the person involved. Quite often, in proceedings such as this one, the person involved is pro se. Or perhaps the person involved had an attorney at some point in the proceedings, but because of financial difficulties (which tend to correlate with somebody losing a job) the person involved can no longer afford the attorney. It is not unrealistic to imagine a situation where notice of the commissioner’s order is sent to the person’s attorney after the attorney stops representing the person involved. In such a situation, the person involved may never receive adequate notice of the commissioner’s order. By sending notice directly to the person involved, the commissioner ensures that the person always gets notice (if the person has an attorney and the attorney also gets notice, no harm is done), and then due process rights will not be at issue.

We conclude that under Minn.Stat. § 256.045, subd. 7, the commissioner “issues” its order by mailing the order directly to the person involved, even when the person has an attorney. Because the commissioner failed to “issue” its order, we need not address appellant’s argument that her appeal was timely served because the 30-day appeal period is extended to 33 days for mailing under Minn. R. Civ. P. 6.05.

DECISION

Because the commissioner did not mail the order directly to appellant, the commissioner did not “issue” the order to appellant. Thus, appellant’s appeal was timely. The 30-day appeal time set forth in Minn.Stat. § 256.045, subd. 7, had not begun to run. The district court erred by dismissing appellant s appeal for lack of subject matter jurisdiction.

Reversed and remanded.

      . Minn.Stat. § 256.0451, subd. 1 (Supp. 2003), defines "person” as:
      an individual who, on behalf of themselves or their household, is appealing or disputing or challenging an action, a decision, or a failure to act, by an agency in the human services system. When a person involved in a proceeding under this section is represented by an attorney or by an authorized representative, the term "person” also refers to the person's attorney or authorized representative.

      . Appellant also notes that under Minn.Stat. § 256.0451, subd. 5 (Supp.2003), the person involved shall be sent a record of the prehear-ing conference.

      . At oral argument, respondent stated that the commissioner does not use personal service of the orders, but has a policy of just mailing them. If the commissioner shows timely proof of personal service, that is as effective as mailing. The issuing person or agency chooses their method, not the courts. We simply interpret the statutes defining service.


text:
    In re Sheila Marie DOLL, Respondent. County of Stearns, Respondent, v. Joseph Jerome BARNELL, Appellant, State of Minnesota, by its Department of Human Services, Intervenor. In re Susan D’Ann Strandmark, Respondent, v. Randall James Starr, Appellant, Anoka County, Respondent.
    Nos. A04-925, A04-1146.
    Court of Appeals of Minnesota.
    March 22, 2005.

      Sheila Marie Doll, Deerwood, MN, pro se respondent.
    Richard J. May, Assistant Stearns County Attorney, St. Cloud, MN, for respondent Stearns County.
    Thomas B. James, Cokato, MN, for appellant Barnell.
    Mike Hatch, Attorney General, Erika Schneller Sullivan, Cynthia B. Jahnke, Assistant Attorneys General, St. Paul, MN, for intervenor State of Minnesota.
    Susan D’Ann Strandmark, Andover, MN, pro se respondent.
    Robert M.A. Johnson, Anoka County Attorney, Janice M. Allen, Assistant County Attorney, Anoka, MN, for respondent Ano-ka County.
    Mark A. Olson, Olson Law Office, Burnsville, MN, for appellant Starr.
    John Remington Graham, Comte de Lotbiniere, Quebec, GOS 1Z0 Canada, for amicus curiae R-KIDS of Minnesota.
    Considered and decided by HALBROOKS, Presiding Judge, HUSPENI, Judge, and CRIPPEN, Judge.

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

   OPINION

CRIPPEN, Judge.

In these consolidated child-support disputes, appellants Joseph Barnell and Randall Starr argue that Minnesota’s child-support guidelines violate the United States Constitution’s Supremacy, Due Process, and Equal Protection Clauses. Appellant Barnell also argues that the district court (1) abused its discretion in setting his child-support obligation at an excessive amount absent a finding that he was voluntarily unemployed or underemployed and in denying reduction of his medical support obligation, and (2) made child-support findings unsupported by the evidence. We affirm the district court order upholding the constitutionality of the guidelines because appellants have not clearly demonstrated constitutional defects, and the order suspending Barnell’s child-support obligation because he may seek his requested relief in the district court.

FACTS

Doll v. Barnell

Appellant Joseph Barnell and respondent Sheila Doll are the parents of a seven-year-old boy. Unmarried, they entered into a declaration of parentage two days after the child was born. In 2000, when Doll applied for Title IV-D services, Bar-nell was adjudicated the father and ordered to pay child support beginning March 1. The child resided with Doll. The order, pursuant to the parties’ stipulation, included findings that Barnell was employed at CDI Corporation, earning a net monthly income of $3,133, and that Doll worked two or three part-time temporary jobs with no medical coverage and a net monthly income of $751. Barnell was ordered to pay $783 monthly child support, contribute $89 monthly for childcare, pay 81% of the child’s uninsured medical expenses, and obtain medical insurance for the child.

In 2003, Barnell was living in Nebraska with his wife and two other children when their home and his home-office were struck by a tornado. In August, Barnell moved to modify his child-support obligation to $0, modify the childcare order to $0, and change the responsible party for medical and dental insurance to Doll. Alternatively, Barnell requested that the court set support and medical and dental obligations “without reference to the percentage guidelines set out in Minn.Stat. § 518.551” and declare the child-support guidelines unconstitutional. His supporting affidavit indicated that his contract of employment with CDI had ended three years earlier and, since then, he had been self-employed or temporarily employed. Although his motion asked for the reduction of child support to $0, his affidavit stated that a temporary suspension due to the tornado would be reasonable.

By order dated September 30, 2003, the child support expedited process matter was referred to the district court. The court denied Barnell’s motions to modify and to declare the guidelines unconstitutional and suspended his child-support obligation for three months.

Strandmark v. Starr

Appellant Randall Starr and respondent Susan Strandmark are the parents of a nine-year-old boy. Two and one-half years after the child’s birth, Starr was adjudicated the child’s father and, based on an oral stipulation of the parties, he was ordered to pay temporary monthly child support. Strandmark received sole physical custody of the child. Starr obtained a downward modification two years later due to a reduction in his net monthly income. At that time “the parties agreed and the court ordered that [Starr] would pay child support of $630 per month ... [which] was an upward deviation from the presumptive child support guidelines.” “The basis for the deviation was a compromise between the parties of issues relating to the calculation of [Starr’s] net monthly income.” The parties also agreed that Strandmark would maintain medical and dental insurance, and Starr would contribute to insurance and childcare costs.

About two years later, Starr moved to modify his obligation and declare the guidelines unconstitutional. On November 7, 2003, the court concluded that Starr had not demonstrated a substantial change making the child-support order unreasonable or unfair, but that there had been a substantial change making the existing medical support order unreasonable and unfair. On November 21, the court denied the motion to declare the guidelines unconstitutional and subsequently filed a memorandum of law. Starr appealed from the order denying his motion to declare the guidelines unconstitutional.

This court granted R-KIDS’ request for leave to file an amicus brief and the Minnesota Attorney General’s motion to intervene, and denied a motion to dismiss. Barnell moved to strike Stearns County’s brief and appendix and for attorney fees.

ISSUES

1. Did the district court correctly determine that the child-support guidelines codified at Minn.Stat. § 518.551 (2004) are constitutional under the United States Constitution’s Supremacy, Equal Protection, and Due Process Clauses?

2. Did the district court abuse its discretion by denying appellant Barnell’s motions to modify the child-support and medical-support obligations and instead temporarily suspending child support with reinstatement of the existing child-support order in three months?

ANALYSIS

I. CONSTITUTIONALITY

A. Initial Considerations

1. Presumption of Constitutionality

We evaluate a statute’s constitutionality as a matter of law. Granville v. Minneapolis Pub. Schs., 668 N.W.2d 227, 230 (Minn.App.2003), review denied (Minn. Nov. 18, 2003). Minnesota statutes are presumed constitutional and are declared unconstitutional only “with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). “If a legislative act is reasonably susceptible of two different constructions, one of which will render it constitutional and the other unconstitutional, the former must be adopted.” Fed. Distillers, Inc. v. State, 304 Minn. 28, 39, 229 N.W.2d 144, 154 (1975). “[FJairly debatable questions as to [a law’s] reasonableness, wisdom, and propriety are not for the determination of courts, but for the legislative body....” S.C. State Highway Dep’t v. Barnwell Bros., 303 U.S. 177, 191, 58 S.Ct. 510, 517, 82 L.Ed. 734 (1938); see also State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990). As indicated in more detail below, it is apparent from the arguments presented by appellants that they are in the nature of political positions that are properly raised only in the legislative forum.

2. Rational Basis

Unless a constitutional challenge to a statute involves a suspect classification or a fundamental right, this court reviews the challenge without strict scrutiny of the statute, using instead a rational basis standard under both the state and federal constitutions. Kolton v. County of Anoka, 645 N.W.2d 403, 411 (Minn.2002).

This court has previously recognized that “there is no fundamental right of a parent to have a child-support obligation based solely on the amount of time the parent spends with the child”; rather, the amount of time a parent spends with a child was a factor to be considered in setting a support obligation. Kammueller v. Kammueller, 672 N.W.2d 594, 600 (Minn.App.2003). And because the amount of time a parent spends with a child is merely a factor to be considered in setting a support obligation, it follows that a parent does not have a fundamental right to have the child-support obligation based solely on the actual cost of the actual needs of a child or any other single basis.

Nevertheless, appellants argue that the child-support guidelines impact their fundamental right to control their care of their children. But in the context of competing biological parents in a child-support matter, appellants have cited no precedent and we have found none holding that one parent has a fundamental right respecting the amount of child-support obligations. While a “general freedom from governmental intrusion in child-rearing decisions” and a “right to familial privacy” that is “not absolute” have been recognized, see LaChapelle v. Mitten, 607 N.W.2d 151, 164 (Minn.App.2000), review denied (Minn. May 16, 2000), here, those rights and freedoms conflict with the child’s paramount right to support and the public protection of the child’s best interests. See Putz v. Putz, 645 N.W.2d 343, 352 (Minn.2002) (noting strong state policy of assuring that children have adequate and timely economic support of their parents); Jacobs v. Jacobs, 309 N.W.2d 303, 305 (Minn.1981) (stating that duty of support commences with child’s birth); see also Kaiser v. Kaiser, 290 Minn. 173, 180, 186 N.W.2d 678, 683 (1971) (stating that child-support provisions in stipulations, as those relating to “the nonbargainable interests of the children,” are subject to less restraint by courts). Based on this precedent, there is no merit in appellants’ argument that a fundamental right of parents is at stake.

We also find no merit in appellant Starr’s suggestion that gender is implicated in the statutory scheme. Starr cites to no provision distinguishing the parties by sex or burdening mothers over fathers or vice versa. Stating that there is a history in Minnesota law of mothers being the presumptive custodians of children and custodians having no child-support obligation, Starr states that the child-support requirement applies only to men in the vast majority of cases, even today. Starr’s argument disregards the pervasive gender neutrality of the current marriage dissolution and child-support laws in Minnesota. E.g., Minn.Stat. §§ 518.003, subd. 3, 518.17, 518.1705, 518.175, 518.54, subds. 7-8 (2004). If men are the majority of obli-gors, it is not because the statutory scheme mandates that conclusion. Most significantly to the point of Starr’s gender argument, the sole physical custodian is only presumed not to be the obligor, but the presumption may be overcome by a proper showing. Minn.Stat. § 518.54, subd. 8.

Appellants are not entitled to strict scrutiny of the child-support statutes in their constitutional arguments.

S. Faulty Premise

Appellants premise their arguments on the proposition that the courts “mechanically apply” the child-support guidelines chart rather than looking at the particular facts of each case. The express language of the guidelines precludes such a mechanical application. See Minn.Stat. § 518.551, subd. 5(c), (i) (2004) (requiring courts to consider factors in addition to guidelines and allowing deviations from guidelines). The eases at hand exemplify courts considering the unique facts of each case. Both cases demonstrate the influence that the individual parties have on fashioning a fair and reasonable child-support order. Both appellants stipulated to the initial child-support orders; Starr later worked out a modification based on a compromise with Strandmark, and Barnell obtained an uncontested total suspension of his obligation. Such outcomes would not be possible if these courts had mechanically applied the guidelines.

B. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides in relevant part “[no state shall] deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § l. An equal protection analysis begins with the mandate that all similarly situated individuals shall be treated alike, but only “invidious discrimination” is deemed constitutionally offensive. In re Estate of Turner, 391 N.W.2d 767, 769 (Minn.1986).

Appellants fail to make the threshold showing that they, as noncusto-dians, are similarly situated with respect to the respondent-custodians. This court has already indicated that custodial and noncustodial parents are not similarly situated and have distinct duties. Kammuel-ler, 672 N.W.2d at 600 (stating that it is readily inferable from child-support statutes that the custodian, in contrast to the noncustodian, has “not only the right but also the duty of providing daily care and control of and residence for the child”); accord Georgia Dep’t of Human Res. v. Sweat, 276 Ga. 627, 580 S.E.2d 206, 211 (2003). Although this finding disposes of appellants’ equal protection argument, see State by Spannaus v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (Minn.1981) (stating that finding that parties are similarly situated is essential to ruling on equal protection), we also find evident a rational basis for the standards announced in the guidelines statute.

Under the rational basis test, legislation will not be set aside if any state of facts reasonably may be conceived to justify it. Blue Earth County Welfare Dep’t v. Cabellero, 302 Minn. 329, 342, 225 N.W.2d 373, 381 (1974). With these principles in mind, it is clear from a reading of Minnesota’s child-support guidelines that they permit attention to the unique circumstances of each case, and the legislature was well within its constitutional authority in determining to maximize the recovery of child support, in respecting custodial care without placing a dollar value on it, and in assessing a presumptive level of need for children.

Appellants have not established that they are similarly situated with respondents. Because of this and because the guidelines statutes are not lacking in rational bases and do not implicate a fundamental right or a suspect classification, appellants have not carried their burden to show a violation of the equal protection clause.

C. Due Process

Substantive due process requires that “[u]nless a fundamental right is limited or a classification is based on a suspect class, minimal judicial scrutiny of legislation is appropriate.” Lukkason v. 1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803, 806 (Minn.App.1999). As noted above, the constitution does not recognize a fundamental right to have child-support decisions made without interference from the state.

Absent cause for special scrutiny, legislation is constitutional if it is not unreasonable, arbitrary, or capricious and bears a rational relation to the public purpose it seeks to promote. Contos v. Herbst, 278 N.W.2d 732, 741 (Minn.1979); Arcadia Dev., Corp. v. City of Blooming-ton, 552 N.W.2d 281, 288 (Minn.App.1996), review denied (Minn. Oct. 29, 1996); Grussing v. Kvam Implement Co., 478 N.W.2d 200, 202 (Minn.App.1991).

Many decisions of this court and the supreme court have recognized a substantial state interest in ensuring child support for the state’s children. Starr himself concedes that “[t]he interest of the [s]tate in compelling payment of child support extends to assuring that the legitimate needs of the children are fairly met.” Appellants’ primary attack on the guidelines is that they require payment of more than the amount required for the children’s basic needs.

As indicated in the legislative history of the guidelines, from the beginning, Minnesota has endeavored to tailor the guidelines to render fair and reasonable child-support amounts, and the cost of rearing has been part of that formula. At best, appellants and R-KIDS’ submissions show that the “adequacy” of awards is subject to debate. But a statute is not rendered unconstitutional simply because it “is not made with mathematical nicety or because in practice it results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)).

The legislature has factored in the many variables involved in the debate and has allowed deviations from the guidelines and agreements of the parties with the paramount consideration of the best interests of the child. Minn.Stat. § 518.551, subd. 5(c), (i). The legislature’s reasonable objective is furthered by the means provided in the legislation.

D. Supremacy Clause

“Whether federal law preempts state law is generally an issue of statutory construction,” which is reviewed de novo. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 9 (Minn.2002) (citing Pikop v. Burlington N. R.R. Co., 390 N.W.2d 743, 748 (Minn.1986)). To the extent that the preemption doctrine finds its roots in the supremacy clause, it implicates constitutional concerns, burdens, and standards. See U.S. Const, art. VI; Martin, 642 N.W.2d at 17 (finding of preemption implicates obligation to interpret statute to avoid constitutional defects). Federal law can preempt state law either expressly, by implication, or by direct conflict. English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990).

A comparison of the Minnesota statutory language with the federal regulations shows no express preemption and no intent to occupy the field of child-support guidelines. See Rose v. Rose, 481 U.S. 619, 625, 107 S.Ct. 2029, 2033, 95 L.Ed.2d 599 (1987) (preemption case prefaced with court stating that “whole subject” of domestic relations of husband and wife and parent and child belongs to states and not to laws of United States); Martin, 642 N.W.2d at 10-11. Compare Minn.Stat. § 518.551 (2004) with 45 C.F.R. § 302.56. The preemption issue turns on the question of whether state law is in conflict with federal law.

Appellants fail to show that the existing Minnesota guidelines conflict with or violate the mandates of federal law. Appellants attempt to create a conflict by producing documents allegedly showing that the state has failed to consider “economic data on the cost of raising children” as required by 45 C.F.R. § 302.56(h). But this documentary evidence does not show that the state has failed to consider this data. Despite appellants’ contention that the state has failed to properly review its guidelines, it is undisputed that the Minnesota guidelines have received federal approval. And the record supports the state’s assertion that the guidelines satisfy all federal child-support requirements. The evidence includes the Minnesota Department of Human Services’ 2002 Quadrennial Review of Minnesota Child Support Guidelines, which expressly considers “economic data on the cost of raising children and an analysis of case data relating to application of the guideline,” as well as numerous other documents showing compliance with federal expectations. See, e.g., Kathleen E. Pontius, Minnesota’s Child Support Guidelines: Toward a Fair and Rational Standard for Child Support, 9 Hamline L.Rev. 459, 460 n. 6 (1986-87) (noting that original guidelines formula was developed to comply with Title IV-D standards and derived from studies and data in child-support cases in Minnesota and other states); Information Brief on Child Support Enforcement in Minnesota from Minn. House of Representatives, Research Department (revised ed. Aug. 1987); Minn. Dep’t of Human Services, Review of Legislative History and Case Law: Minnesota Child Support Guidelines (June 9, 1990) (study by consultant reiterating original sources of guidelines). At best, appellants’ documents present some debate on the meaning of the “cost of raising children.”

Because the federal law requires that the state “consider” the cost of raising children and the evidence indicates that the state did so, appellants cannot demonstrate that the state has failed to comply with the federal regulations or that there is a conflict between the two underlying laws. Moreover, even if the evidence established that Minnesota’s review of its guidelines was deficient, conflict with the federal law would not be significant for preemption purposes; the state would simply be ineligible for incentive payments under the federal scheme. There is no federal preemption of state law.

II. Barnell’s Requested Modification & Suspension

A district court has broad discretion to provide for the support of the parties’ children. Putz, 645 N.W.2d at 347. Its decision will not be altered on appeal unless it resolves the matter in a manner “that is against logic and the facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984).

Appellant Barnell moved to modify the child-support order to $0 and, alternatively, to hold the child-support guidelines unconstitutional, both of which the court denied. He also requested a suspension of the child-support obligation, which the court granted for three months. Barnell argues that it was unreasonable to deny the modification because the evidence shows that he had no income due to a tornado. He also argues that the findings regarding his requests for relief were erroneous.

Under the modification statute, a court “may” modify a child-support order upon a showing of substantial change. Minn.Stat. § 518.64, subd. 2 (2004). To support a modification of child support, the district court is required to make specific findings on the factors listed in Minn.Stat. § 518.64, subd. 2. Moylan v. Moylan, 384 N.W.2d 859, 864-65 (Minn.1986). It is evident that the court order in this case was fashioned for the temporary change of circumstances. The court agreed with Bar-nell that a suspension of all child-support obligations was reasonable due to the tornado. The court found that Barnell was in forma pauperis and needed time to get back on his feet. The court also found that the situation was not permanent, Bar-nell was not incapacitated, and he was not prevented from earning income again. Under these circumstances, it was not an abuse of discretion to deny a modification and to order a suspension. The evidence sustains the findings that there was a temporary condition justifying extreme relief, but not permanent relief.

Barnell argues that he is prevented from seeking another modification unless there is another change of circumstances since the last hearing. Under the facts of this case, this assertion is incorrect. The court confined itself to a temporary suspension and anticipated further review as necessary. Although the district court order did not provide for continuing the pending matter, it is evident that the court’s order was not expected to impair full review of the matter in the future. Upon further consideration of the case, if necessary, retroactive review will be permitted, based upon appellant’s good faith failure to make an earlier petition for further consideration of the case. Appellant’s delayed filing of a further claim for relief is duly explained by his inability to anticipate the conclusion of this court that continued district court review of his petition might occur.

III.

Appellant Barnell moved this court to strike respondent Stearns County’s entire brief and appendix and for an award of attorney fees. He argued that the county filed a “spurious brief misrepresenting the issue on appeal” and made numerous false, misleading, and irrelevant statements in the brief.

Having considered Stearns County’s brief and appendix and Barnell’s list of alleged rule violations, we determine that rule compliance was substantial and at least such as to suggest no ignorance or willful disregard for the rules, Neither the county’s identification of issues, which was the recurring and primary complaint in Barnell’s moving papers, nor its presentation of facts, frustrated our effort to examine the record and identify the questions of the case. Because the alleged violations of the rules do not suggest ignorance of or willful disregard for the rules, see Cole v. Star Tribune, 581 N.W.2d 364, 372 (Minn.App.1998) (awarding attorney fees where appellants did not have reasonable basis in law or fact to bring appeal and striking portions of appellants’ briefs for failing to provide citations, relying on extra-record assertions, and making repeated erroneous assertions of fact), or demonstrate use of the brief “as a vehicle for disrespect, insult, and slanderous accusations,” see State v. Duncan, 608 N.W.2d 551, 559 (Minn.App.2000), review denied (Minn. May 16, 2000), Barnell has not demonstrated that this is an appropriate case for an attorney fee award.

DECISION

We affirm the district court’s judgments determining that the Minnesota child-support guidelines are constitutional under the United States Constitution’s Supremacy, Due Process, and Equal Protection Clauses, and awarding appellant Barnell a temporary suspension of his child-support obligations. Appellant Barnell’s motion to strike Stearns County’s brief and appendix is denied.

Affirmed; motion denied.

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

      . In 2002, an order for judgment for arrear-ages was filed against Barnell. At that time, he was found unable to comply with the existing order but not entitled to retroactive modification. Despite the district court's declaration that Barnell’s motion for modification of his child support "must be served and filed according to the Rules of General Practice,” Barnell failed to properly bring a motion to modify the order.

      . Starr's contribution to childcare costs was later reserved based on a stipulation and order to amend the amended judgment dated December 16, 1999.

      . Starr brought the modification motion even though "[t]he parties agreefd] that based upon the provisions of Minn.Stat. § 518.64, [s]ubd. 2(b)(1), it cannot be presumed that there has been a substantial change of circumstances which would make the existing child support order rebuttably presumed to be unreasonable or unfair.”

      . The Minnesota Constitution provides 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. I, § 2. Both the federal and state equal protection clauses have been analyzed under the same principles. In re Estate of Turner, 391 N.W.2d 767, 769 (Minn.1986).

      . Anoka County and the state specifically challenge appellants' standing to make their claims of an individual right to enforce tire federal law and regulation citing Blessing v. Freestone, 520 U.S. 329, 339, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997). We do not reach the issue of standing to assert the federal claim because we conclude the claim lacks merit.

      . Because we affirm the suspension and the denial of modification, appellant's argument that the district court erroneously found that he had sought a "complete elimination” of his child-support obligation appears to have been rendered moot. Nevertheless, we conclude the district court could reasonably interpret the three motions to modify (reduce child support to $0, child care expenses to $0, and delete his obligation to pay the child's medical insurance) as a request to completely eliminate the support obligation. If all of appellant’s motions to modify had been granted, he would be paying nothing to Doll for their child's support, and support would only be ordered if Doll, the party least likely to have access to Barnell’s financial facts, could demonstrate that Barnell’s circumstances had changed substantially. The finding was not erroneous.

      . Barnell argues that the court imputed income without making the prerequisite findings of voluntary unemployment or underemployment. It is clear from the order that the court did not expressly or impliedly impute income to appellant. No income findings were required to accompany the temporary suspension.


author: STONEBURNER, Judge.

text:
    Richard D. LEWIS, Appellant, v. ST. CLOUD STATE UNIVERSITY, et al., Respondents.
    No. A04-1308.
    Court of Appeals of Minnesota.
    March 22, 2005.

      Marshall H. Tanick, Teresa J. Ayling, Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, Scott R. Goings, Nancy J. Joyer, Assistant Attorneys General, St. Paul, MN, for respondents.
    Considered and decided by LANSING, Presiding Judge; WILLIS, Judge; and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant Richard D. Lewis challenges summary judgment granted to respondents St. Cloud State University (SCSU) and Minnesota State College & University System (MnSCU) dismissing his defamation claim. Appellant argues that respondents are liable as publishers of SCSU’s student-run newspaper for defamatory statements about appellant published in the student newspaper. Because there is no genuine issue of material fact that respondents’ policy prohibited SCSU from exercising any control over the content of the student newspaper, the district court did not err by concluding that respondents are not liable for defamation and by granting summary judgment.

FACTS

SCSU is a member of the MnSCU system and is governed by the MnSCU Board of Trustees. Minn.Stat. §§ 1S6F.02, 136F.06, 136F.10 (2004). The University Chronicle (the Chronicle) is the bi-weekly student-run newspaper at SCSU. Part five of MnSCU Board Policy 3.1, Student Rights & Responsibilities, relating to student publications, provides in relevant part that “[sjtudent-funded publications shall be free of censorship and advance approval of copy, and their editors and managers shall be free to develop their own editorial and news coverage policies.” The policy is binding on SCSU.

Appellant is a faculty member of SCSU who has filed an age-discrimination charge against SCSU for demoting him from his position as Dean of the College of Social Sciences in the fall of 2003. Shortly after appellant’s demotion, the Chronicle published an article about appellant that included statements that, for purposes of summary judgment, are considered to be defamatory.

Appellant sued respondents asserting that, as publishers of the Chronicle, they are liable for the defamation. Respondents moved to dismiss under Minn. R. Civ. P. 12.02(e) for failure to state a claim on which relief can be granted.

Because the parties presented materials outside of the pleadings, the district court treated the motion as one for summary judgment and granted judgment to respondents. The district court concluded that because respondents have no editorial control over the Chronicle, they cannot be held liable for defamatory statements published in the Chronicle. This appeal followed.

ISSUES

1. Did the district court err by concluding that respondents are not liable as publishers for defamatory statements published in the student-run newspaper because it is undisputed that respondents’ policy prohibits SCSU from exercising any editorial control over the newspaper?

2. Did the district court abuse its discretion by not allowing appellant to conduct additional discovery prior to granting summary judgment?

3.Should respondent’s motion to strike documents in appellant’s supplemental appendix and statements in appellant’s reply brief be granted?

ANALYSIS

I. Summary judgment on defamation claim

Two questions are considered on appeal from summary judgment: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Evidence must be viewed in the light most favorable to the nonmoving party, but “summary judgment cannot be defeated with unverified and conclusory allegations or by postulating evidence that might be developed at trial.” N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn.2004) (quotation omitted).

Whéther a state university and its governing authority can be liable as publishers of defamatory material contained in a student-run newspaper is a question of first impression in Minnesota. The district court relied on the policy that prohibits SCSU from exercising editorial control over the Chronicle and adopted the reasoning in two cases from other jurisdictions that have addressed the issue: Milliner v. Tu,mer, 436 So.2d 1300 (La.App. 1983), and McEvaddy v. City Univ., 220 A.D.2d 319, 633 N.Y.S.2d 4 (N.Y.App.Div.1995).

In Milliner, the trial court granted judgment to state-college faculty members on their defamation action against student-newspaper reporters, and the reporters were granted judgment on their third-party action against a state university for defamation per se published in the student newspaper. Milliner, 436 So.2d at 1301. Liability of the university was premised on (1) a state statute making teachers answerable for damages caused by scholars under their superintendence when the teacher could have but failed to prevent the act that caused the damage and (2) the trial court’s holding that the university had recklessly failed to provide adequate faculty guidance to the student paper as required in the Student Guide, which required each student organization to have two faculty representatives as advisors for all their activities. Id. at 1302.

The Louisiana Court of Appeals reversed judgment against the state university based on its conclusion that the First Amendment to the United States Constitution precludes a state institution, including a state university, from exercising “prior restraint on expression with regard to public areas ... because of its message, ideas, subject matter or its contents” and that the First Amendment preempts operation of the state law with regard to a university’s right to and degree of control over its student publications. Id.

The present situation is distinguishable from one in which a private newspaper, and its publisher, are involved in disseminating the news to the community or the public at large. The state may no more restrict the right of a private paper, or be held accountable for any libel it might publish, than can [state university] control or be responsible for possible libels published in its student paper.... The relationship between a university and its student newspaper is anomalous and cannot be compared with a publisher and its newspaper. The latter may exercise censorship to the fullest, as it deems commercially proper to do so, but the former is almost completely barred from censoring its student paper since that would be prior restraint and would impede the free flow and expression of ideas.

Id. (citations omitted).

The Louisiana Court of Appeals relied in part on Joyner v. Whiting, 477 F.2d 456 (4th Cir.1973), for the proposition that the First Amendment to the United States Constitution precludes a state university’s control over the content of a student newspaper. Milliner, 436 So.2d at 1302. Joyner involved an appeal by the editor-in-chief of the official student newspaper of a university from a district court order denying his suit to reinstate university financial support of the newspaper and permanently enjoining future financial support for the campus newspaper, which had been denied support because the university disagreed with the newspaper’s editorial policy. The Fourth Circuit Court of Appeals reversed the district court, stating:

Fortunately, we travel through well[-]charted waters to determine whether the permanent denial of financial support to the newspaper because of its editorial policy abridged the freedom of the press. The First Amendment is fully applicable to the states, ... and precedent establishes “that state colleges and universities are not enclaves immune from [its] sweep.” A college, acting “as the instrumentality of the State, may not restrict speech ... simply because it finds the view expressed by any group to be abhorrent.” Healy v. James, 408 U.S. 169,180, 187, 92 S.Ct. 2338,' 2345, 2349, 33 L.Ed.2d 266 (1972)....

Id. at 460 (citations omitted). The Joyner court noted that “the principles reaffirmed in Healy have been extensively applied to strike down every form of censorship of student publications at state-supported institutions.” Id. (emphasis added).

McEvaddy v. City Univ. of New York is a memorandum decision of an appellate division of the New York Supreme Court affirming summary dismissal of a defamation action against City University of New York based on an allegedly libelous article published in the student newspaper. 633 N.Y.S.2d at 4. The brief opinion is based on previous New York cases analyzing whether a student newspaper is an “agent” of the state institution for purposes of liability for defamation. Id. (citing Mozart v. State of New York, 109 Misc.2d 1092, 441 N.Y.S.2d 600 (N.Y.Ct.Cl.1981), which held that vicarious liability in a defamation case brought against the state fails where the state, as alleged principal, has no right of control over the alleged agent). Mozart based lack of control of a state college over a student newspaper on First Amendment restrictions on a state university’s ability to censor such newspapers. Mazart, 441 N.Y.S.2d at 605-06. McEvaddy held that the presence of a faculty advisor to the paper, whose advice was not binding, and the financing of the paper through student activity fees dispensed by the university “do not demonstrate such editorial control or influence over the paper by [City University] as to suggest an agency relationship.” McEvaddy, 633 N.Y.S.2d at 4.

Appellant points out that the cases relied on by the district court are lower-level court opinions from foreign jurisdictions that do not reflect any broad or widespread pattern. We disagree with this assertion; the cases relied on by the district court simply follow the firmly established policy of giving students on college campus as many first amendment rights protections as the community at large. See Healy, 408 U.S. at 180-81, 92 S.Ct. at 2345-46, citing Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960) (“the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools”).

Appellant insists that the issue in this case has nothing to do with whether respondents can or should censor the student newspaper, but is solely a matter of “who is legally responsible, as the publisher, for the libel?” We conclude that the district court properly rejected this strict-liability argument and correctly focused on the issue of whether there was any evidence that respondents controlled or could have controlled the content of the publication:

“At common law, the general rule was that everyone involved with the publication of a defamatory statement or in procuring it to be published was equally responsible with the author.” M. David LeBrun, Annotation, Liability of Commercial Printers for Defamatory Statements Contained in Printed Matter Printed for Another, 16 A.L.R.4th 1372, 1373 (1982). In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court, balancing the tension between the First Amendment to the United States Constitution and a state’s interest in assuring compensation for wrongful harm to one’s reputation, established a level of constitutional protection for publishers of defamation of a public person. See id., 376 U.S. at 279-80, 84 S.Ct. at 726. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the United States Supreme Court held that “so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher of defamatory falsehood injurious to a private individual.” Id. at 347, 94 S.Ct. at 3010 (emphasis added).

In Minnesota, the basis for holding the publisher of a newspaper vicariously liable for defamation in the newspaper is the relationship of principal and agent between the publisher and the newspaper. See Friedell v. Blakely Printing Co., 163 Minn. 226, 203 N.W. 974 (1925) (applying principal/agent reasoning to determine liability of a newspaper publisher for alleged libel about a candidate for public office that appeared in one of publisher’s newspapers). Friedell focused on the publisher’s power to select his own employees and on whether the employees acted within the scope of their employment. Id. at 234, 203 N.W. at 977. Friedell explicitly notes the publisher’s right to discharge employees and to control the content of the publication through control over its employees. Id.

As the district court in the case before us correctly noted, however, respondents’ relationship with the Chronicle is, by virtue of MnSCU’s policy and First Amendment constraints, significantly different from a private publisher’s relationship with its newspapers. Respondents, unlike a private publisher, have no control over the content of the Chronicle. Despite the “plethora of connections” between The Chronicle and SCSU asserted by appellant and accepted by the district court for purposes of summary judgment, it cannot be disputed that respondents’ policy prohibits SCSU from exercising any control over the content of the Chronicle.

Appellant argues that the district court erred by failing to make an “informed and reasoned decision as to the responsibility” of respondents for the defamatory publication. Appellant relies on Sinn v. The Daily Nebraskan, 829 F.2d 662 (8th Cir.1987) which considered whether the act of a student newspaper constituted state action. Sinn did not involve a claim of defamation, but rather was an action against the newspaper itself, asserting that the newspaper’s refusal to print plaintiff-roommate-advertisers’ ads that indicated a gay or lesbian orientation violated the advertiser’s First Amendment rights. Id. at 663. The Eighth Circuit affirmed the district court’s conclusion that “[a]s a result of [a] careful study of the many safeguards preventing the state from interfering with the [student newspaper] ... the action of the newspaper was not ‘fairly attributable’ to the state.” Id. at 665. In reaching its conclusion, the Eighth Circuit rejected a per se rule either imposing or prohibiting attribution of a student newspaper’s act to a state university, in favor of a case-by-case approach. Id. at 666.

Appellant asserts that in this case the district court erred by adopting a per se rule. Whether a per se rule is or is not appropriate in this case, we disagree with appellant’s claim that the district court adopted a per se rule. The district court, contrary to appellant’s assertions, made an informed and reasoned decision based on the specific facts of this case asserted by appellant and the undisputed MnSCU policy. We conclude that the district court’s approach in this case is consistent with the approach in Sinn of determining each ease on its underlying facts.

Appellant argues that to absolve respondents of liability for defamation based on MnSCU’s policy is to carve out a “liability-free zone” that is contrary to public policy because it would deprive appellant of a remedy for the harm done to him. Appellant conceded that he might have a remedy against the author of the article or the editor of the Chronicle, but asserts that such a remedy is inadequate. We are not unsympathetic to this argument and recognize that our holding disadvantages some worthy plaintiffs, but we reject the assertion that this result is necessarily bad public policy. Justice Powell, writing in Gertz about a similar problem created for plaintiffs by the United States Supreme Court’s holding in New York Times v. Sullivan, stated:

Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this substantial abridgment of the state law right to compensation for wrongful hurt to one’s reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters.... [W]e believe that the New York Times rule states an accommodation between [the interests of the press] and the limited state interest present in the context of a libel action brought by public persons.

Gertz, 418 U.S. at 342-43, 94 S.Ct. at 3008 (citation omitted). Holding that respondents are not liable for defamation as publishers of the student-run newspaper in this case is a similar accommodation between appellant’s claim for compensation for harm and the First Amendment and policy restrictions placed on respondents.

II. Denial of motion to continue to conduct discovery

Appellant also argues that summary judgment is premature and that the district court should have granted a continuance to allow further discovery. Minnesota Rule of Civil Procedure 56.06 provides:

Should it appear from the affidavits of a party opposing [a summary judgment motion] that the party cannot for reasons stated present, by affidavit, facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

A district court’s decision to deny a motion for a continuance to conduct discovery is reviewed under an abuse-of-discretion standard. Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 346 (Minn.App.1997), review denied (Minn. Feb. 19, 1998). Such continuances should be liberally granted, especially when the continuance is sought because of a claim of insufficient time to conduct discovery. Rice v. Perl, 320 N.W.2d 407, 412 (Minn.1982).

Given the presumption in favor of such continuances, a reviewing court focuses on two questions: (1) has plaintiff been diligent in seeking or obtaining discovery and (2) is plaintiff seeking further discovery in the good-faith belief that material facts will be uncovered, or is plaintiff merely engaging in a “fishing expedition?” Id. “[T]he court should be quite strict in refusing continuances where the party merely expresses a hope or a desire to engage in a fishing expedition.... ” Id. (quotation omitted).

Respondents moved for dismissal on March 30, 2004, noticing a hearing date of June 4, 2004. On May 20, 2004, appellant submitted the affidavit of one of his attorneys asserting that more time was needed to complete discovery because the deposition of the editor of the Chronicle, which had been scheduled for May 11, 2004, was postponed at the last minute at the request of counsel for the Chronicle and could not be rescheduled before the due date for appellant’s response to respondents’ motion. The affidavit states that the deposition and “perhaps other discovery as well, is necessary to fully develop the relationship between” the Chronicle and respondents.

In his memorandum opposing respondents’ motion to dismiss, appellant also argued that further discovery was needed to explore the relationship between SCSU and the Chronicle, and what role SCSU played in the defamatory article. Appellant asserted that fact issues remained about that relationship, about how and why the allegedly libelous article was published, the participation and role of SCSU personnel in publication, “and a number of other matters.”

The transcript of the hearing reveals only two references to the need for additional discovery. Appellant’s counsel stated that additional discovery might result in the addition of defendants, and, after reciting all of the known connections between the Chronicle and SCSU, argued that dismissal under Rule 12 would be inappropriate, although summary judgment might be appropriate after further discovery. The district court did not explicitly address the issue, but implicitly rejected appellant’s request for further discovery by granting summary judgment.

Respondents argue that because the district court, for purposes of summary judgment, accepted as true all of the connections asserted by appellant between SCSU and the Chronicle, further discovery would not change the outcome in this case. We agree.

Appellant’s complaint is premised solely on respondents’ alleged role as publishers of the Chronicle. But an undisputed MnSCU board policy, which is binding on SCSU, prevents SCSU from using any connections with the Chronicle to control the content of the Chronicle. And, as noted by the district court, the policy “is simply a recognition and expression of the limits imposed on [respondents] by the First Amendment.” Additional connections between SCSU and the Chronicle that might be developed through further discovery would not alter the effect of the policy. We conclude that for purposes of determining respondents’ liability as publishers of the Chronicle, failure to continue the ease for further discovery was not an abuse of the district court’s discretion. See McCormick v. Custom Pools, Inc., 376 N.W.2d 471, 477 (Minn.App.1985) (holding that where additional discovery sought in a products-liability case addressed product’s defects and for purposes of summary judgment district court assumed all defects alleged, additional discovery would not have aided district court in causation determination), review denied (Minn. Dec. 30,1985).

To the extent appellant speculates that discovery might have turned up evidence of SCSU’s liability for the defamation on some theory other than liability as publisher, appellant was on a “fishing expedition,” and the district court did not abuse its discretion by denying a continuance based on appellant’s mere speculation that such evidence may exist.

III. Respondents’ motion to strike

Respondents moved to strike the appellant’s supplemental appendix and portions of the reply brief referring to that appendix as not properly before this court. Appellant did not respond to the motion in writing. But at oral argument, appellant’s counsel asserted that this court could consider the materials, which include attorney correspondence, Chronicle articles, and a copy of age-discrimination charges filed by appellant with the Equal Employment Opportunity Commission and the Minnesota Department of Human Rights against SCSU, because they are in the public record.

The record on appeal consists of the papers filed in the district court, the exhibits, and the transcript of proceedings. Minn. R. Civ.App. P. 110.01. It is undisputed that the documents to which respondents object were not filed in the district court and were not before that court when it considered the motion for summary judgment. Generally, this court will strike references to matters outside the record. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd, 504 N.W.2d 758 (Minn.1993). At the district court, appellant briefly mentioned the EEOC charge and a potential connection between that legal dispute and the article at issue in this case. But appellant did not submit documentary support for those statements to the district court, and appellant does not even cite to several of these documents in the reply brief. We will not consider these documents for the first time on appeal. Respondents’ motion to strike is granted.

DECISION

Because MnSCU’s policy, which is binding on SCSU, prohibits SCSU from exercising any editorial control over the contents of SCSU’s student-run newspaper, the district court did not err by granting summary judgment to MnSCU and SCSU on appellant’s claim that MnSCU and SCSU are liable for defamation published in the newspaper.

Affirmed; motion granted.

      . For purposes of summary judgment, it is undisputed that SCSU plays a role in selection of the Chronicle’s editor, business manager, and faculty advisor; provides start-up operating funds at the beginning of each year; requires tire Chronicle to undergo a certification process each year; allows the use of SCSU's trademarked logo; provides equipment, services, and facilities free of charge; provides a full-time faculty advisor employed by SCSU whose role is to represent and protect the interests of SCSU; requires the Chronicle to have a constitution and bylaws, which state that it exists for the benefit of, and concerning, the students, faculty, staff, administration, and St. Cloud community; and requires the Chronicle to submit an annual recognition form listing officers and pledging its compliance with all SCSU policies and procedures in the code of conduct and student-organization manual.

      . Appellant's complaint and argument is based on his argument that SCSU and MnSCU are publishers of the Chronicle. The district court in this case was not called upon to make the state-action analysis required in Sinn.

      . 376 U.S. at 283, 84 S.Ct. at 727.


author: DIETZEN, Judge.

text:
    STATE of Minnesota, Appellant, v. Jason Lonnie GABBERT, Respondent.
    No. A04-1785.
    Court of Appeals of Minnesota.
    March 22, 2005.

      Mike Hatch, Attorney General; and Thomas R. Hughes, Hughes & Costello, St. Paul, MN, for appellant.
    John L. Lucas, Minneapolis, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; SHUMAKER, Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

Respondent was charged with scalping advance-sale Minnesota State Fair tickets. The district court dismissed the complaint, holding that as a matter of law respondent did not violate the state’s ticket-scalping statute. We affirm in part, reverse in part, and remand.

FACTS

On August 28, 2003, respondent Jason Lonnie Gabbert was arrested outside the Minnesota State Fair for ticket scalping. State Fair police officers observed Gabbert selling advance-sale State Fair tickets— available for $6 per ticket before August 20, 2003 — for $7 per ticket. The ticket stated on its face that it cost $6 and that it was “not for sale after August 20, 2003.” The arresting officer testified that Gabbert admitted selling over 2,000 advance-sale tickets, some for face value and some for greater than face value, and additional tickets were found in the trunk of Gab-bert’s vehicle.

In a pretrial hearing, the district court dismissed the state’s complaint because it held that Gabbert as a matter of law did not violate the ticket-scalping statute, Minn.Stat. § 609.805, subd. 2(2), 2(4) (2002). Specifically, under subdivision 2(2), the district court found that on August 28, 2003, State Fair tickets were sold for $8 at the fairgrounds box office, so selling advance-sale tickets for $7 did not constitute ticket scalping. Under subdivision 2(4), the district court held that the ticket language “not for sale after August 20, 2003” did not amount to a restriction on the tickets’ sale so that Gabbert did not violate the statute. This appeal follows.

ISSUES

1. May the state appeal the district court’s dismissal of the complaint? 2. Did Gabbert violate Minn.Stat. § 609.805, subd. 2(2) or 2(4)?

ANALYSIS

I.

Minn. R.Crim. P. 28.04, subd. 1(1), provides that the state may not appeal a pretrial order “if it is based solely on a factual determination dismissing a complaint for lack of probable cause[.]” Gab-bert argues that this provision applies, foreclosing the state’s appeal. The state argues that its appeal is proper because the district court dismissed the case based on the court’s legal interpretation of Minn. Stat. § 609.805 (2002).

A dismissal for lack of probable cause is appealable if it is based on a legal determination. State v. Ciurleo, 471 N.W.2d 119, 121 (Minn.App.1991). Thus, the appealability of the district court’s order turns on whether the dismissal was based on a legal interpretation of the statute as opposed to a factual determination. We have determined that the state may appeal a pretrial order dismissing a complaint when the district court found that the lottery fraud statute did not apply to a defendant redeeming stolen lottery tickets. State v. Kiminski, 474 N.W.2d 385, 388-89 (Minn.App.1991), review denied (Minn. Oct. 11, 1991). In another case, we allowed the state to appeal when the district court found that a statute proscribing the act of carrying a pistol without a permit did not apply to a defendant on his way to a business meeting in Rhode Island. State v. Linville, 598 N.W.2d 1, 2-3 (Minn.App. 1999).

Here, the district court interpreted Minn.Stat. § 609.805, subd. 2, and held as a matter of law that the statute did not apply to Gabbert’s activities. As Gabbert concedes, the district court merely applied the plain meaning of the statute — itself a form of statutory interpretation, because a court must decide as a preliminary matter whether a statute is clear or ambiguous— and found that Gabbert’s conduct was not a criminal act. Based on our review, we conclude that the state is challenging a dismissal for lack of probable cause based on an appealable question of law.

II.

We now turn to a de novo review of the statutory charges against Gabbert. Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). When, as here, the facts are stipulated, the district court’s application of law to the facts is a question of law reviewed de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

Gabbert was charged under Minn.Stat. § 609.805, subd. 2(2), for “charging] for admission to an event a price greater than that advertised or stated on tickets issued for the event.” Minn.Stat. § 609.805, subd. 2(2). The interpretation of Minn. Stat. § 609.805 is a matter of first impression for this court. Initially, we must construe laws “to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004). “Words and phrases are construed according to rules of grammar and according to their common and approved usage[.]” Minn.Stat. § 645.08 (2004). If the language in a statute is clear, courts will rely on the statute’s plain meaning. Correll v. Distinctive Dental Servs., 607 N.W.2d 440, 445 (Minn.2000). Language is ambiguous if it is reasonably subject to more than one interpretation. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996).

The state argues that the plain meaning of subdivision 2(2) prohibits a ticket seller from charging a price greater than the amount stated on the face of the ticket that he is selling. According to the state, Gabbert violated the statute because he sold a $6 advance-sale ticket for $7. Gab-bert argues that the statute only prohibits charging a price greater than the price on the face of the ticket issued for the event that same day, not on the face price on the advance ticket. According to Gabbert, because tickets were available at the fairgrounds box office for $8 on August 28, 2003, Gabbert did not charge a price greater than tickets issued for the fair.

We agree with Gabbert. The plain language of subdivision 2(2) prohibits a ticket seller from charging a price greater than “stated on tickets issued for the event.” Minn.Stat. § 609.805, subd. 2(2) (emphasis added). On August 28, 2003, the price stated on tickets issued for the state fair at its place of admission was $8. Giving the statutory language its plain and ordinary meaning results in a conclusion that a ticket seller is only prohibited from selling tickets at a price greater than the price stated on the tickets issued at the place of admission to the state fair that same day. To hold otherwise would create ambiguity and uncertainty as to what price charged on tickets issued for an event would be considered scalping.

Another portion of the ticket-scalping statute prohibits anyone from selling or offering to “sell a ticket to an event at a price greater than that charged at the place of admission or printed on the ticket.” Id., subd. 2(3) (emphasis added). Because the state did not charge Gabbert with violating subdivision 2(3), we decline to address this provision. Therefore, we affirm the district court’s order dismissing that portion of the complaint alleging ticket scalping under Minn.Stat. § 609.805, subd. 2(2).

Gabbert was also charged with violating Minn.Stat. § 609.805, subd. 2(4), for receiving “a ticket to an event under conditions restricting its transfer” and allegedly selling it in violation of the conditions. Id., subd. 2(4). The state argues that the advance-sale tickets’ language “not for sale after August 20, 2003,” is a condition restricting the tickets’ transfer under the statute. Gabbert argues that the ticket language merely notified the public that the discounted advance-sale tickets would not be sold by the state fair after August 20, 2003. The district court reasoned that for Gabbert to violate the statute, the ticket must have stated, for example, that it was “not transferable” after August 20, 2003.

We disagree. The statutory language prohibits a ticket seller from receiving a ticket with a condition restricting its transfer and then selling it in violation of the condition. The ticket language “not for sale after August 20, 2003” is clearly a condition that seeks to restrict the ticket’s transfer. The ticket language informs its recipient that sale of the ticket is prohibited after August 20, 2003. The statute also requires that the ticket recipient sell the ticket in violation of the restriction, and it is undisputed that Gabbert was observed selling advance-sale tickets near the fairgrounds on August 28, 2003. Therefore, as a matter of law, we conclude that the complaint charged that Gabbert received a ticket with a condition restricting its transfer and sold it in breach of the condition. Because this conduct, if proved, would be a violation of Minn.Stat. § 609.805, subd. 2(4), the district court erred in dismissing that part of the complaint.

DECISION

We affirm the district court’s dismissal of the complaint charging a violation of MinmStat. § 609.805, subd. 2(2) (2002), because Gabbert did not sell the advance-sale tickets for a price greater than the price stated on tickets available at the place of admission for the state fair on August 28, 2003. We reverse, and remand for further proceedings, the district court’s dismissal of that part of the complaint charging a violation of Minn.Stat. § 609.805, subd. 2(4), because Gabbert received a ticket with a condition restricting its transfer and allegedly sold the ticket in violation of the condition.

Affirmed in part, reversed in part, and remanded.