author: PETERSON, Judge. RANDALL, Judge

text:
    STATE of Minnesota, Appellant, v. Alan J. MYERS, Respondent.
    No. A05-1604.
    Court of Appeals of Minnesota.
    March 14, 2006.
    Review Granted May 16, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Rochester, MN, for appellant.
    Douglas V. Hazelton, Hazelton Law Offices, Minneapolis, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge; PETERSON, Judge; and HUSPENI, Judge.

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

   OPINION

PETERSON, Judge.

In this appeal from a pretrial order dismissing a charge of refusal to submit to a chemical test, the state argues that the district court erred in concluding that because the implied-consent advisory administered to respondent did not inform respondent that test refusal is a gross misdemeanor that may result in harsher penalties than test failure, the advisory violated respondent’s due-process rights. We reverse and remand.

FACTS

State Trooper Stephen Willert stopped to investigate a vehicle that he saw stopped on the shoulder of Highway 52. Willert identified the driver as respondent Alan Myers, and after determining that there was probable cause for an arrest, Willert arrested respondent for driving while impaired (DWI) and transported him to a police station.

At the station, Willert read to respondent an implied-consent advisory that included the statement, “Refusal to take a test is a crime.” Respondent was provided with a telephone and a telephone book so that he could contact an attorney before deciding whether to submit to the test, and during the following 50 minutes, respondent attempted to contact an attorney. After several unsuccessful attempts to contact an attorney, a second reading of the implied-eonsent advisory, and a lengthy question-and-answer discussion about the advisory, respondent insisted upon consulting with an attorney before taking a chemical test, and Willert concluded that respondent refused to submit to testing.

Respondent was charged with third-degree DWI (refusal to submit to a chemical test) in violation of Minn.Stat. § 169A.20, subd. 2 (2004), and Minn.Stat. § 169A.26 (2004), and fourth-degree DWI in violation of Minn.Stat. § 169A.20, subd. 1(1) (2004), and Minn.Stat. § 169A.27 (2004). Respondent moved to dismiss the test-refusal charge, arguing that the implied-eonsent advisory violated his due-process rights. Following an omnibus hearing, the district court granted respondent’s motion to dismiss the test-refusal charge after concluding that the implied-eonsent advisory administered to respondent violated respondent’s due-process rights because it did not inform respondent that a test refusal is a gross misdemeanor that may result in harsher penalties than a test failure. The state now appeals.

ISSUE

Were respondent’s due-process rights violated when the implied-eonsent advisory did not inform respondent that a test refusal is a gross misdemeanor that may result in harsher penalties than a test failure?

ANALYSIS

The prosecuting attorney may appeal to this court from a pretrial order granting a defendant’s motion to dismiss a criminal charge if the order is not based solely on a factual determination that there is a lack of probable cause to believe that the defendant has committed an offense. Minn. R.Crim. P. 28.04, subd. 1(1). “[I]n reviewing pretrial prosecution appeals, this court ‘will only reverse the determination of the trial court if the state demonstrates clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.’ ” State v. Poupard, 471 N.W.2d 686, 689 (Minn.App.1991) (quoting State v. Webber, 262 N.W.2d 157, 159 (Minn.1977)).

Dismissal of a charge has a critical impact on the outcome of the trial. Id. There is no dispute that the critical-impact requirement has been satisfied. Therefore, our analysis will only address whether the district court erred in its judgment that the implied-eonsent advisory violated respondent’s due-process rights. “This court reviews de novo the procedural due process afforded a party.” Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn.App.1999), review denied (Minn. July 28, 1999).

Any person who drives, operates, or is in physical control of a motor vehicle within this state or on any boundary water of this state consents, subject to the provisions of sections 169A.50 to 169A.53 (implied consent law), and section 169A.20 (driving while impaired), to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances. The test must be administered at the direction of a peace officer.

Minn.Stat. § 169A.51, subd. 1(a) (2004).

At the time a test is requested, the person must be informed:
(1) that Minnesota law requires the person to take a test:
(1) to determine if the person-is under the influence of alcohol, controlled substances, or hazardous substances;
(ii) to determine the presence 'of a controlled substance listed in schedule I or II, other than marijuana-or tetrahy-drocannabinols; and ■
' (iii) if the motor vehicle was a commercial motor vehicle, to determine the presence of alcohol;
(2) that refusal to take a test is a crime;
(3) if the peace officer has probable cause to believe the person has violated the criminal vehicular homicide and injury laws, that a test will be taken with or without the person’s consent; and
(4) that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test.

Minn.Stat. § 169A.51, subd. 2 (2004). The process of providing a person with the information required under this subdivision is known as an implied-consent advisory.

The state contends that the district court erred in concluding that the implied-consent advisory administered to respondent violated respondent’s due-process rights because it did not inform respondent that a test refusal is a gross misdemeanor that may result in harsher penalties than a test failure. We agree that the district court erred.

The Minnesota Supreme Court has held that a portioh of the' implied-consent advisory violated the constitutional guarantee of due process because it threatened crimir nal charges that the state was not authorized to impose. McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn.1991). In reaching this conclusion, the supreme court explained:

The United States Supreme Court has ... recognized that due process does not permit those who are perceived to speak for the state to mislead individuals as to either their legal obligations or the penalties, they might face should they fail to satisfy those obligations. In Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959),- the Court held that due process did not permit the prosecution of individuals who refused to testify before a legislative commission after being incorrectly led to believe by commission members that they could do so under the protection of privilege against compelled self-incrimination. See id. at. 437, 79 S.Ct. at 1265. The Court noted that Raley presented circumstances beyond those prohibited by the void-for-vagueness doctrine: “there were more than commands simply vague or even contradictory. There was active misleading.” Id. at 438, 79 S.Ct. at 1266.

Id. at 854.

Under McDonnell, when Willert administered the implied-consent advisory to respondent, due process did not permit Willert to mislead .respondent .as to his legal obligations or the penalties he might face if he failed to meet those obligations. But, the implied-consent advisory that Wil-lert administered correctly informed respondent that refusal to take a test is a crime, as required under Minn.Stat. § 169A.51, subd. 2(2), and said nothing about either the penalty for refusing to take a test or the penalty for failing a test. Because the information in the implied-consent advisory was correct and the advisory said nothing about the penalties that respondent might receive, there was no due-process violation for actively misleading respondent.

This does not end our analysis, however, because the district court’s conclusion that the implied-consent advisory violated respondent’s due-process rights was based on what the advisory failed to say, rather than on what the advisory explicitly stated. The issue that remains is whether a due-process violation occurred even though the advisory said nothing that actively misled respondent. In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the United States Supreme Court considered whether failing to fully warn a driver about the consequences of refusing to submit to a blood-alcohol test violated due process.

In Neville, a driver who was asked to submit to a blood-alcohol test was warned that he could lose his driver’s license if he refused. Id. at 555, 103 S.Ct. at 918. The driver refused to take the test, and although South Dakota law specifically permitted the refusal to be admitted into evidence at trial, the driver sought to suppress all evidence of his refusal to take the blood-alcohol test. Id. at 556, 103 S.Ct. at 918. The suppression motion was granted, and one of the reasons for granting the motion was that the officers who asked the driver to submit to a blood-alcohol test failed to advise the driver that the refusal could be used against him at trial. Id. When the state appealed the suppression order, the driver relied on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), to argue that admitting his refusal at trial violated due process because he had not been fully warned about the consequences of refusal. Neville, 459 U.S. at 564, 103 S.Ct. at 923.

In Doyle, two men were given Miranda warnings after being arrested in connection with a marijuana sale. 426 U.S. at 612, 96 S.Ct. at 2242. Each man took the stand at his trial and told an exculpatory story that he had not told police when he was arrested. Id. at 612-13, 96 S.Ct. at 2242. In an effort to impeach the men and undercut their explanation of events, the prosecutor asked ’each man during cross-examination why he had not told the exculpatory story to police when he was arrested. Id. at 613, 96 S.Ct. at 2242. Defense counsel .in each trial objected to the prosecutor’s questions, and the objections were overruled. Id. at 614, 96 S.Ct. at 2243. The men appealed their convictions alleging, inter alia, that the trial courts erred in allowing the prosecutor to cross-examine the men about their post-arrest silence. Id. at 614, 96 S.Ct. at 2243.

The Supreme Court agreed and held that even though the Miranda warnings the men received did not explicitly tell them that there was no penalty for remaining silent, using the men’s silence at the time of arrest for impeachment purposes at trial violated the Due Process Clause of the Fourteenth Amendment. Id. at 619, 96 S.Ct. at 2245. The Supreme Court explained that

while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Id. at 618, 96 S.Ct. at 2245.

When the driver in Neville relied on Doyle in arguing that his due-process rights were violated, the Supreme Court explained that in reaching its holding in Doyle, “the Court relied on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.” Neville, 459 U.S. at 565, 103 S.Ct. at 923. The Neville court then explained why the fundamental unfairness that existed in Doyle was not present in Neville when the driver’s refusal to take a blood-alcohol test was used as evidence of guilt even though the driver was not specifically warned that his refusal could be used against him at trial. Id. First, the right to silence explained in the Miranda warnings is a right of constitutional dimension that cannot be unduly burdened, while the right to refuse to take a blood-alcohol test is a matter of grace bestowed by the state legislature. Id. Also, the Supreme Court explained,

the Miranda warnings emphasize the dangers of choosing to speak (“whatever you say can and will be used as evidence against you in court”), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of Miranda warnings, we recognized in Doyle, implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of [the driver’s] choice. The officers explained that, if [the driver] chose to submit to the test, he had the right to know the results and could choose to take an additional test by a person chosen by him. The officers did not specifically warn [the driver] that the test results could be used against him at trial. Explaining the consequences of the other option, the officers specifically warned [the driver] that failure to take the test could lead to loss of driving privileges for one year. It is true the officers did not inform [the driver] of the further consequence that evidence of refusal could be used against him in court, but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver’s license made it clear that refusing the test was not a “safe harbor,” free of adverse consequences.
While the State did not actually warn [the driver] that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly “trick” [the driver] if the evidence were later offered against him at trial. We therefore conclude that the use of evidence of refusal after these warnings comported with the fundamental fairness required by due process.

Id. at 565-66, 103 S.Ct. at 923-24 (footnotes omitted).

Applying the Supreme Court’s reasoning in Neville to the implied-consent advisory that Willert administered to respondent, we conclude that failing to inform respondent that a test refusal is a gross misdemeanor that may result in harsher penalties than a test failure comported with the fundamental fairness required by due process. Unlike a Miranda warning, which affirmatively states that the recipient has the right to remain silent, the implied-consent advisory administered to respondent did not tell respondent that he had a right to refuse to take a chemical test or implicitly assure him that the penalties for a test refusal would not be more severe than the penalties for a test failure. To the contrary, the implied-consent advisory informed respondent that Minnesota law requires him to take a test and that refusal to take a test is a crime. This information made it clear that refusing testing was not an option that would be free of a penalty.

Furthermore, with respect to procedural due process, the Minnesota Supreme Court held in Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991), that “under the right-to-counsel clause in article I, section 6 of the Minnesota Constitution, an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing.” Under Minn.Stat. § 169A.51, subd. 2(4), an implied-consent advisory must inform a person who is asked to submit to a chemical test that the person has the right to consult with an attorney, and respondent does not contend that his right to counsel was not vindicated. Thus, the procedure accorded respondent when he was deciding whether to refuse testing included an opportunity to obtain legal advice, which, presumably, would include advice about the penalties applicable to his alternative courses of action.

Under these circumstances, failing to inform respondent that test refusal is a gross misdemeanor that may result in harsher penalties than a test failure did not actively mislead respondent as to his legal obligations or implicitly assure respondent that the penalties for test refusal are less serious than the penalties for test failure such that respondent would be unfairly tricked if he later learns that his penalty for test refusal is more severe than the penalty he would have received if he had submitted to a chemical test and failed it.

DECISION

Because the implied-consent advisory administered to respondent did not actively mislead respondent as to his legal obligations or implicitly assure respondent that the penalties for test refusal are less serious than the penalties for test failure, the district court erred in its judgment that the advisory violated respondent’s due-process rights.

Reversed and remanded.

RANDALL, Judge

(concurring specially)-

Accuse, step forward and confess — or you will stand back convicted.

I concur in the result, but I am troubled by Minnesota’s test-refusal statute. Although not raised here, the statute making test refusal a stand-alone crime appears to impermissibly shift the burden of proof to the defendant. See Patterson v. New York, 432 U.S. 197, 206, 97 S.Ct. 2319, 2325, 53 L.Ed.2d 281 (1977) (due process does not permit the state to place on a defendant the burden of disproving an element of the crime with which she is charged);' see also State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995) (stating that due process requires the state prove beyond a reasonable doubt the existence of every element of the crime charged).

On the civil side, the law requiring you to give a teipt or face possible sanctions has been upheld several times as a legitimate use of police power, with the trade-off being the right to drive on Minnesota highways. See, e.g., Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 828 (Minn.App.1984) (holding that the Fifth Amendment does not attach to implied-consent proceeding because it is civil in nature and not criminal). But today, a test refusal, whether you have ever had a drop of alcohol or not in your life, is a stand-alone crime, a gross misdemeanor. See Minn. Stat. § 169A.26 (2004) (stating that a person’s refusal to submit to chemical testing is a third-degree DWI offense, punishable as a gross misdemeanor).

When the state has probable cause to suspect you of DWI, and the officer asks you to take a test to determine intoxication, the burden shifts to you to prove by taking the test that you were not intoxicated. The penalty for not taking up this burden used to be serious, but still civil, so it passed constitutional muster. Now the penalty for simply standing mute is a crime in and of itself.

There is no parallel that I can find anywhere in American jurisprudence — where a citizen, standing mute before an accusation and not doing anything affirmative to evade arrest or obstruct an officer in the enforcement of the law, is guilty of the crime “standing mute.” The closest we come is Minn. R.Crim. Pro. 9.02, subd. 2. There, upon a proper motion and a proper showing, the state can get an order from the court allowing evidence to be extracted from a defendant. And that order is valid whether the defendant cooperates or has to be restrained while the sample is taken. But under no circumstances is refusal to cooperate a separate crime. I suspect it could not pass constitutional muster if that were the case. I can hardly believe the state has not thought of asking for criminal sanctions for a defendant’s violation of Rule 9- — if they thought they could get away with it.

With a return to the former law where test refusal was a civil matter, the state still has the carrot of serious civil sanctions. Returning test refusal to the civil side would still allow the state to enforce penalties and deny/limit driving privileges to the motorist, but it would no longer have a Fifth Amendment Bill of Rights odious stink about it.

The usual justification for “implied consent” laws is that all motorists using Minnesota highways “impliedly consent” to submit to tests for intoxication while driving, upon a proper request (the “proper” is later ironed out in court if the motorist requests). However, no state law can trump a citizen’s right to the protections of the United States Constitution. It is boilerplate law that a state constitution can give more rights to its own residents than the United States Constitution, states simply cannot give less. PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). For instance, no state law can trump a citizens Sixth Amendment right to their trial by jury with the aid of competent counsel, either hired or appointed. No state law can trump the Fourth Amendment’s protection against “unreasonable searches and seizure.” So how do we justify “test refusal as a crime” apart from the underlying merits of the case. It is not that the state cannot, upon a proper showing, forcibly extract evidentiary specimens from a defendant, see Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966). But under no scenario, is the motorist’s refusal to cooperate a separate crime! The citizen always has the right to say in that situation “Officer, do whatever you are going to do and you have to justify it later and the burden of proof for the justification is on you. I am not going to volunteer anything because if I do I might waive any constitutional objection that I have.” In that scenario, the state proceeds at their peril and has the burden of proof to show in a court of law that the involuntary extraction was reasonable and constitutional. That scenario leaves the burden of proof where it always belongs, on the state. That is a far cry from “test refusal” where the state claims the right to say “We do not have to do anything, you have to volunteer a test, or we will charge you with a crime of ‘not volunteering.’ ”

No citizen in this country parks their constitutional rights, when they take their car out of park.


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    Lisa L. BRADLEY, Trustee for the Sally G. Moore and Robert A. Moore Revocable Living Trust, Appellant, v. FIRST NATIONAL BANK OF WALKER, NA, Respondent.
    No. A05-634.
    Court of Appeals of Minnesota.
    March 28, 2006.

      Steven R. Hedges, James H. Gilbert Law Group, P.L.L.C., Minnetonka, MN; and Keith J. Broady, Timothy C. Matson, Abdo, Abdo, Broady & Satorius, P.A., Minneapolis, MN, for appellant.
    David R. Marshall, Ryan T. Murphy, Fredrikson & Byron, P.A., Minneapolis, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; RANDALL, Judge; and CRIPPEN, Judge.

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

   OPINION

MINGE, Judge.

Appellant asserts that the district court erred by applying section 3-307 of the Uniform Commercial Code (UCC) (Minn. Stat. § 336.3-307 (2004)) and its three-year limitation period (Minn.Stat. § 336.3-118(g) (2004)) to her claim rather than section 8 of the Uniform Fiduciary Act (UFA) (Minn.Stat. § 520.08 (2004)) and the general Minnesota six-year statute of limitations (Minn.Stat. § 541.05 (2004)), and by rejecting her common law claims. Further, appellant argues that the district court abused its discretion by considering respondent’s summary judgment motion and statute of limitations defense. Because appellant had adequate notice and opportunity to respond to the statute of limitations claim in the summary judgment proceeding, and because the UCC applies to appellant’s claim and preempts her common law claims, the limitation period in the UCC applies. We affirm.

FACTS

Appellant Lisa L. Bradley is Trustee for the Sally G. Moore and Robert A. Moore Revocable Living Trust. Sally and Robert Moore established the trust and opened a trust checking account at respondent First National Bank of Walker, N.A. When Robert died, Sally amended the trust agreement and appointed appellant Bradley, a tax professional in Arizona, as successor trustee. Bradley became an authorized signer on the trust account and could conduct transactions on behalf of the trust.

In 1996, Sally again amended the trust agreement, appointing Minnesota attorney Glenn Smith as co-successor trustee with Bradley. The trust agreement provided that the signature of only one trustee was required to withdraw funds from the trust account. When Sally died in September 1996, Bradley and Smith assumed the trust’s administration. Bradley forwarded income from trust assets in Arizona to Smith in Minnesota. She allowed Smith to deal with the majority of the daily trust duties, including oversight of its bank accounts.

Bradley noted that Smith missed several tax-filing deadlines and found him difficult to contact. In October 1998, Bradley contacted trust beneficiaries and learned that Smith had not made any distributions. Bradley examined records of the trust account at First National and determined that Smith had depleted the trust account by writing over 80 checks payable to himself personally for approximately $550,000. Smith had deposited these checks into his personal account at Americana Bank (now Excel Bank); they cleared through the banking system and were honored by First National.

On July 13, 2000, Smith pleaded guilty to federal charges of mail fraud and monetary transactions involving criminally-derived property. The federal court ordered Smith to pay $530,000 in restitution. After payment of $61,750 by Smith and $100,000 by the Minnesota client security fund, the trust was still short $368,250. On July 25, 2003, Bradley initiated suit against First National, asserting claims under the UFA, as well as common law claims in negligence and contract. First National moved for summary judgment, arguing that the UCC applied and that Bradley failed to make a cognizable claim under section 3-307(b). Opposing summary judgment, Bradley continued to argue that the UFA applied. In its reply memorandum, First National asserted that because the UCC provisions governed, the UCC’s three-year statute of limitations barred her claim.

At the hearing on First National’s summary judgment motion, Bradley objected to consideration of the statute of limitations argument. She claimed it was not timely raised in the summary judgment proceeding. The district court granted First National’s summary judgment motion, finding that both the UFA and UCC applied to Bradley’s claims, that the UCC superseded the UFA, that the UCC’s limitation period (section 3 — 118(g)) controlled, and that the time for bringing an action had expired. The district court also found that the UCC preempted Bradley’s common law claims. Bradley appeals.

ISSUES

I. Did the district court err as a matter of law in applying section 3-307(b) of the UCC, and its accompanying statute of limitations, instead of section 8 of the UFA?

II. Does application of the UCC preempt Bradley’s common law claims?

III. Did the district court abuse its discretion in deciding the statute of limitations question?

ANALYSIS

On appeal from summary judgment, the court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Moreover, the court will view the evidence in the light most favorable to the nonmov-ing party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). The district court’s legal conclusions will be reviewed de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

I.

The first issue is whether the district court erred as a matter of law in applying the UCC, and the accompanying shorter, three-year statute of limitations, instead of the UFA and the general six-year statute of limitations. Deciding which of these two uniform acts applies requires evaluation -of several considerT ations. At the outset, we apply principles of statutory construction. The most important principle and the starting point is the language of the various statutes. See Minn.Stat. §§ 645.08, 645.16 (2004); see also Heaslip v. Freeman, 511 N.W.2d 21 (Minn.App.1994), review denied (Minn. Feb. 24, 1994). If laws conflict, the court should try to construe them together to reconcile the conflict. Minn.Stat. § 645.26 (2004); In re Appeal of Crow Wing County Attorney, 552 N.W.2d 278, 280 (Minn.App.1996), review denied (Minn. Oct. 29, 1996); see Caldwell v. City of Minneapolis, 486 N.W.2d 151, 156 (Minn.App.1992) (“[Without strong evidence that the two provisions are irreconcilable, implied repeal of a prior enactment by a later enactment is not favored.”), review denied (Minn. Aug. 4, 1992). If, however, the two provisions are inherently inconsistent and there is no way to harmonize them, then the court will apply the canons of construction. Barton v. Moore, 558 N.W.2d 746, 751-52 (Minn.1997). See generally Minn.Stat. §§ 645.001-.51 (2004).

Both the UFA and the UCC deal with the general subject matter of bank liability for fiduciary fraud in writing checks. The UFA “relieves banks of their common law duty of inquiring into the propriety of each transaction conducted by a fiduciary.” In re Lauer, 98 F.3d 378, 383 (8th Cir.1996). The UFA expressly provides that if the fiduciary draws a check upon the account of the principal, the bank may pay the check without being liable to the principal, unless the bank acts in bad faith or with actual knowledge of a breach of fiduciary duty. UFA § 8. Here, Bradley alleges that. First National acted in bad faith by honoring numerous checks that Smith made out to himself personally. UFA § 8 clearly applies to our situation. The UFA does not contain an independent statute of limitations. Therefore, claims arising under the UFA are subject to a six-year statute of limitations. See Minn.Stat. § 541.05 (providing that a six-year statute of limitations applies where no other limitations period is expressly prescribed).

The statutory language of the UCC is not as focused. Under the UCC, if an instrument is taken.from a fiduciary, the taker knows the person is a fiduciary, and the principal claims a breach of fiduciary duty, four rules apply. UCC § 3-307(b)(1)' — (4). None of the four rules use the word “bank;” however, the phrase “taken from a fiduciary” is used, and the word “taker” is used repeatedly. . Id. Although “taker” is an undefined term in, the UCC, it certainly applies to banks that directly receive the checks from the fiduciary. See UCC § 3-307, cmts. 1-5 (containing numerous references to banks). It is less clear that it applies to a bank that is not the initial “taker” from the fiduciary. That is the situation with First National in the matter before us. The question is whether the clarity of the UFA in covering our situation precludes application of the UCC’s three-ye.ar statute of limitations.

A. UCC Comments

The UFA’s provisions are intertwined with the UCC and must be applied in that context. In this regard, the UCC comments contain the following statement:

Section 3-307 states rules for determining when a person taking an instrument has notice of the claim which will prevent assertion of rights as a holder in due course. It also states rules for determining when a payor bank pays an instrument with notice of breach of fiduciary duty.

UCC § 3-307 cmt. 2. First National is the payor bank. This general recognition of the application of the section to payor banks is significant.

B. First National as a “Taker”

In resolving the question of the extent to which UCC applies, we must determine whether First National can be considered a “taker” or to have “taken” the check. We note that the concept of “taker” is flexible. The “taker” of an instrument is akin to the “holder,” a statutorily-defined term. See UCC § l-201(b)(21). The “holder” takes the instrument or check from the maker and, after the initial transfer from the first holder or taker, transfers the check to subsequent holders and takers. UCC § 3-307 does not require that every “taker” in section 3-307 deal directly with the fiduciary. It only requires that there be an initial transaction with the fiduciary. See UCC § 3-307(b)(i).

Furthermore, we should not be confused by multiple labels. Any entity in the chain of possession of the check may have several titles. For example, in the case before us, Smith initially deposited the check with the Americana (Excel) Bank. Americana was the initial “taker” and “holder,” and it was also the “depositary bank.” See UCC §§ 1 — 201 (b)(21), 4-105(2). First National is the “payor bank” and the “drawee” of the draft. See UCC §§ 3-103(a)(4), 4-104(a)(8), 4-105(3). In addition, First National “took” the check in the check-clearing system, was the bank from which the funds would ultimately be paid, and was the last holder or taker before returning the check to the Moore Trust. This suggests First National is a “taker” within section 3-307(b).

C. Comprehensiveness of the UCC

Another consideration is the comprehensive nature of the UCC. Only one section of the original version of the UCC briefly addressed a bank’s notice of breach of fiduciary duty. See Minn.Stat. § 336.3-304(2), (4)(e) (repealed 1992). That section is the precursor of section 3-307. UCC § 3-307, cmt. 1. Section 3-307 of the revised Article 3 more comprehensively addresses the problem of fiduciary fraud and is a part of the broad UCC framework for dealing with negotiable instruments and bank deposits and collections. In a very real sense, the UCC occupies the field. One of the principles of statutory construction addresses this situation as follows:

IMPLIED REPEAL BY LATER LAW.
When a law purports to be a revision of all laws upon a particular subject, or sets up a general or exclusive system covering the entire subject matter of a former law and is intended as a substitute for such former law, such law shall be construed to repeal all former laws upon the same subject. When a general law purports to establish a uniform and mandatory system covering a class of subjects, such law shall be construed to repeal preexisting local or special laws on the same class of subjects. In all other cases, a later law shall not be construed to repeal an earlier law unless the two laws are irreconcilable.

Minn.Stat. § 645.39. UFA § 8 deals with a matter that is also the subject of UCC § 3-307. To have parts of section 8 survive and parts displaced leads to confusion and lack of predictability in the law. This weighs in favor of interpreting UCC § 3-307(b) to govern this situation.

D.UCC Repealer Provisions

The UCC is generally the governing law in any area where it conflicts with prior law. When Minnesota adopted the UCC in 1965, our version of UCC § 10-102 specifically repealed UFA- §§ 4, 5 and 6. Minn.Stat, § 336.10-102(1) (1965). In their place we enacted Minn.Stat. § 336.3-304(2) and (4)(e) (1990), which addresses the same policies. Minn.Stat. Ann. § 336.3-304 Minn, code cmt., U.C.C. cmt. (West 1966). Although no additional specific repealer language was included when revised Article 3 was adopted, the general repealer section continued. Minn.Stat. § 336.10-102(1) (1992). It states that, “[e]xcept as provided in the following section, all laws and parts of laws inconsistent with this chapter are hereby repealed.” Id. This places the sections of the UFA that have not been specifically repealed in an ambiguous status unless they clearly are not duplicated by the UCC. Principles of statutory construction direct that we consider laws that are later in point of time to prevail when in conflict with earlier laws. Minn.Stat. § 645.26, subd. 4.

E. Reasonableness

Minnesota statutes instruct the courts that the legislature does not intend unreasonable results. Minn.Stat. § 645.17(1), subd. 1. If the UCC statute of limitations does not apply in this case because First National is a payor bank that did not deal personally with or directly “take” the checks in question from Smith, then First National would be subject to the longer six-year statute of limitations. However, if First National had been the depositary and payor bank and had dealt directly with Smith in his deposit of the checks, First National would be subject to the shorter, three-year statute of limitations. It is unreasonable to have a longer statute of limitations and greater exposure when a bank defendant plays a more limited role in a transaction, and a shorter, more protective statute if the bank has greater involvement. Similarly, the possibly limited role of constructive knowledge and bad faith under the UCC compared to the UFA would then provide narrower liability/exposure for the depositary/payor bank than for the bank that only acted as the payor. This inconsistency is not logical or reasonable.

F. Other States

Bradley argues that a consideration favoring the continued application of UFA is consistency in interpretation of the UCC, and points to the decision of Coeur d’Alene Mining Co. v. First Nat’l Bank of N. Idaho, 118 Idaho 812, 800 P.2d 1026 (1990). We recognize that there is a policy favoring consistent judicial interpretation and application of the uniform laws. See Minn. Stat. § 645.22; UCC § 1-103(a)(3). In Coeur d’Alene Mining, the Idaho Supreme Court examined UFA § 9 and the earlier version of UCC § 3-304(2), found that that earlier version of the UCC was consistent with the UFA, and concluded that the result would be the samé under both statutes. 118 Idaho at 818-19, 800 P.2d at 1032-33. However, Coeur d’Alene Mining is based on the original draft of Article 3 of the UCC. Id. As previously noted, the original section 3-304 has been expanded substantially in the current section 3-307 and it is not clear the Idaho court would have reached the same conclusion under the current law. Furthermore, since' the Idaho court found the two provisions had the same meaning and lead to the same conclusion, there was no difference in the result. In this sense, it was a false conflict. Coeur d’Alene Mining is not helpful in resolving our case.

In sum, although we recognize that this decision is not without countervailing considerations, we conclude the UCC pervasively occupies this field of law and that the district court properly concluded that the UCC’s three-year statute of limitations barred Bradley’s claim.

II.

The second issue is whether the UCC preempts Bradley’s common law claims. Although Minnesota courts have yet to address specifically whether UCC Article 3 bars common law claims, case law points in that direction. See Hapka v. Paquin Farms, 458 N.W.2d 683, 688 (Minn.1990) (holding that Article 2 of the UCC preempts common law claims); Hedged Inv. Partners v. Norwest Bank Minn., 578 N.W.2d 765, 770-71 (Minn.App.1998) (holding that Article 4A of the UCC preempts common law claims where they are inconsistent or duplicative). But see Minn.Stat. § 604.10 (2004) (providing that where economic loss doctrine applies, UCC Article.2 do.es not preempt common law claims).

The statute itself demonstrates that the legislature intended for it to be a comprehensive liability scheme. “Section 3-307 is intended to clarify the law by stating rules that comprehensively cover the issue of when the taker of an instrument has notice of breach of a fiduciary duty and thus notice of a claim to the instrument or its proceeds.” UCC § 3-307, cmt. 1. In addition, the Minnesota Supreme Court has indicated that it favors an approach which recognizes the comprehensive, and exclusive, liability scheme of the UCC. Superwood Corp. v. Siempelkamp Corp., 311 N.W.2d 159, 162 (Minn.1981) (“To allow tort liability in commercial transactions would totally emasculate these provisions of the U.C.C. Clearly, the legislature did not intend.for tort law to circumvent the statutory scheme of the U.C.C.”), overruled on other grounds by Hapka v. Paquin Farms, 458 N.W.2d 683 (Minn.1990).

This court has stated that “the Minnesota Supreme Court has emphasized the value of maintaining an exclusive set of remedies for commercial transactions...We see no reason to sacrifice the certainty and consistency of the U.C.C. remedies to preserve common law remedies for conversion of negotiable instruments.” Halla v. Norwest Bank Minn., N.A., 601 N.W.2d 449, 451 (Minn.App.1999), review denied (Minn. Dec. 14, 1999). UCC Article 3 covers the conversion of negotiable instruments, which the court addressed in Halla. UCC § 3-420(a). .Although- dealing with a different section- of Article 3, we conclude that the same reasoning is applicable in the instant case and that the UCC preempted Bradley’s common law negligence and contract claims. This result is consistent with and reinforces the conclusion we reached previously with respect to the relationship between the UCC and the UFA in this case.

III.

The final issue is whether it was improper for the district court to consider First National’s UCC statute of limitations defense. This is partly an issue of prejudice and partly an issue of compliance with rules. Although an adverse decision on the merits is obviously prejudicial, prejudice is a question of fundamental fairness. Prejudice may be demonstrated by lack of notice, procedural irregularities, or lack of a meaningful opportunity to respond to the motion. Septran, Inc. v. Indep. Sch. Dist. No. 271, 555 N.W.2d 915, 920 (Minn.App.1996), review denied, (Minn. Feb. 27,1997). Bradley argues that First National first raised the defense in its reply m'emoran-dum in support of summary judgment and, therefore, Bradley lacked a meaningful opportunity to respond. Minn. R. Gen. Pract. 115.03(c) governs the procedures applicable to dispositive motions: “The moving party may submit a reply memorandum, limited to new legal or factual matters raised by an opposing party’s response to a motion.... ” Unresponsive, novel legal arguments should not be considered if part of the moving party’s reply memorandum.

The statute of limitations is an affirmative defense. Minn. R. Civ. P. 8.03. “An affirmative defense must be pleaded specifically and the failure to do so results in a waiver of the defense.” Rhee v. Golden Home Builders, Inc., 617 N.W.2d 618, 621 (Minn.App.2000) (reversing the district court where it allowed the defendant to orally amend its answer at the summary judgment hearing to include a statute of limitations defense, and then ruling in favor of the defendant on that ground). But the district court may allow a statute of limitations defense to be asserted for the first time on a motion for summary judgment, even if not properly pleaded. Oreck v. Harvey Homes, Inc., 602 N.W.2d 424, 427-28 (Minn.App.1999), review denied (Minn. Jan. 25, 2000).

First National’s answer contains two recitations of applicable defenses. Defense two states, “The claims asserted in the Complaint are barred or reduced by contractual limitations and/or statutory limitations.” In addition, defense seven states, “The claims asserted in the Complaint are barred by statute.” Although likely boilerplate pleading provisions, they gave Bradley some notice prior to the summary judgment hearing that First National had a statute of limitations defense. As a result, Bradley’s position is distinguishable from the plaintiff in Rhee. See 617 N.W.2d at 621.

But even if the consideration of the statute of limitations argument was improper, Bradley was not prejudiced by such consideration in the sense that she was treated fundamentally unfairly. Both First National’s motion for summary judgment and Bradley’s opposition aggressively disputed whether the UCC or UFA applied to Bradley’s claim. That First National eventually argued for the UCC statute of limitations, especially where it contended that other substantive provisions of the UCC were determinative, should not have been a surprise to Bradley. Furthermore, it is unclear what additional arguments Bradley would make even with more time, as she had already vigorously contested the application of the UCC. Under the circumstances, we conclude that because Bradley has had full opportunity to address this issue, the district court did not abuse its discretion in considering First National’s defense of statute of limitations.

DECISION

In sum, we hold that Bradley’s breach-of-fiduciary-duty claim is governed by the UCC’s three-year statute of limitations. Further, application of the UCC’s comprehensive liability scheme preempts Bradley’s common law claims. Finally, the district court did not abuse its discretion by considering these claims on summary judgment.

Affirmed.

      . For ease of reference, the UCC and UFA provisions and the parallel provisions of the Minnesota Statutes (Minn.Stat. §§ 336.1-101 to 336.10-105 (2004) and Minn.Stat. §§ 520.01 to 520.13 (2004)) will be referenced with the simple uniform act citation, without the chapter number or name "Minnesota.” In the case of UCC Article 3, references are to the revised article which was enacted in Minnesota in 1992. 1992 Minn. Laws ch. 565, § 35, at 1816. If Minnesota adopted a variation of the uniform law, the full Minnesota citation will be used. If the pre-1992 version is cited, it will be identified accordingly.

      . This subject is analyzed in Marion' W. Ben-field, ■ Jr. & Peter A. Alces, Bank Liability for Fiduciary Fraud, 42 Ala. L.Rev. 475 (1991).

      . The law regarding bank deposits and collections is also contained in UCC Article 4.

      . See Benfield & Alces, supra, at 542-49.

      . We note that one of the canons of construction provides that more specific status prevail over general provisions. See Minn.Stat. § 645.26, subd. 1. Although this may initially favor application of the UFA, it does not actually resolve the conflict in this case where the UCC constitutes a comprehensive statutory framework.

      , Given the myriad of controversies that may arise under a statute, the lack of broader briefing on the issue of the future status of UFA § 8, and the limited role of this court, we do not reach the question of the application of that section in situations not before us in this proceeding.


author: WORKE, Judge.

text:
    In the Matter of the Class A License Application of NORTH METRO HARNESS, INC.
    No. A05-471.
    Court of Appeals of Minnesota.
    March 28, 2006.

      Byron E. Starns, Timothy J. Keane, James A. Stein, Leonard, Street & Dei-nard, P.A., Minneapolis, MN, for relator Columbus Concerned Citizens, Inc.
    Mike Hatch, Attorney General, Darren DeJong, Assistant Attorney General, Kenneth Raschke, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Racing Commission.

      John E. Drawz, Jay Quam, Mollie M. Smith, Fredrikson & Byron, P.A., Minneapolis, MN, for respondent North Metro Harness, Inc.
    Considered and Decided by WRIGHT, Presiding Judge; WILLIS, Judge; and WORKE, Judge.
   OPINION

WORKE, Judge.

Following respondent the Minnesota Racing Commission’s vote to deny respondent North Metro Harness, Inc.’s application for a Class A racetrack license, commissioners received new information outside of the record that settled concerns underlying the application denial. The commission sua sponte moved to reconsider its decision, and after reopening the record to receive new information, granted the application. On this appeal, relator Columbus Concerned Citizens, Inc. argues that the commission did not have authority or jurisdiction to sua sponte move to reconsider its decision, that the commission denied relator due process of law, and that the record lacks substantial evidence to support the commission’s decision to grant the application. While sua sponte moving to reconsider based on conversations outside of the record is generally not a preferred manner in which to request reconsideration, without a statute or rule proscribing such action, a commission, in a quasi-judicial proceeding, has inherent authority to sua sponte move to reconsider a decision when the time for appeal has not expired. Because the commission has inherent authority to reconsider its decision, because the commission did not violate relator’s right to due process of law, and because there is substantial evidence in the record to support approval of the license, we affirm.

FACTS

On December 23, 2003, North Metro Harness Inc. (North Metro) submitted an application for a Class A license for the North Metro Harness Racetrack to the Minnesota Racing Commission (commission). The application sought to establish the facility in Columbus Township in Ano-ka County. Relator Columbus Concerned Citizens, Inc. organized to oppose the facility. The commission conducted an investigation into North Metro’s qualifications as required under Minn.Stat. § 240.06 (2004). The commission conducted two public hearings at which testimony was taken from interested individuals. The hearings were conducted according to the commission’s bylaws that require business to be conducted according to Robert’s Rules of Order.

On October 21, 2004, the commission voted five to three to deny the application. On November 15, 2004, the commission issued an order formally denying the application. Concerns underlying the denial were inadequate road access and transportation, inadequate horse stalls and human accommodations, resident opposition, and the creation of competition adversely affecting Canterbury Park, Minnesota’s thoroughbred racetrack. Following the October 21 vote, North Metro provided new information to commissioners regarding a plan negotiated between North Metro and the Horsemen’s Benevolent & Protective Association (HBPA), which initially opposed the license, to supplement purse awards at Canterbury Park. This information settled commissioners’ concerns regarding competition. On November 17, 2004, at the commission’s next regularly scheduled meeting, the commission passed a motion to reconsider its denial of the application. Robert’s Rules of Order provide that an individual on the prevailing side of the original vote may move for reconsideration, seconded by any other member. Relator’s representative orally opposed reconsideration. The commission’s attorney advised that the commission could request additional information as long as it was conducted in a public forum. On December 15, 2004, at the commission’s next regularly scheduled meeting, the commission scheduled a special meeting for December 30, 2004.

Prior to the December 30 meeting, relator filed a complaint and petition .for a writ of prohibition against the commission and the individual commissioners in district court. Relator sought a judgment declaring that the commission violated the Minnesota Open Meeting Law and the Minnesota Administrative Procedures Act by sua sponte deciding to reconsider the application. Additionally, relator sought a writ of prohibition against a rehearing without the commission first establishing a procedure for reconsideration. On December 29, 2004, despite concern about the one-sided communications commissioners engaged in outside of the record regarding new information that triggered the motion for reconsideration, the district court ruled that the commission had inherent authority to reconsider its decisions and denied the writ.

At the December 30, 2004 meeting, the commission provided the reasons for reconsideration and discussed the new information that was learned outside of the record after the October 21 vote. The meeting was open to the public and all interested individuals were permitted to submit materials and to address the commission. The commission reopened the record and agreed to keep it open to receive additional information until January 18, 2005. .On January 19, 2005, the commission- conducted a regularly scheduled meeting with the issue of reconsideration on the agenda. The commission discussed four areas of concern: (1) housing and stabling; (2) transportation; (3) competition; and (4) community opposition. The commission determined that a newly proposed stabling plan was. adequate.. Further, new information provided by the Metropolitan Council ^nd Anoka County officials indicated that the transportation system was adequate and that the facility would not burden the current traffic situation. Regarding competition, new information from North Metro and the HBPA indicated that an agreement by which North Metro would provide revenue from the, new racetrack to supplement purse awards at Canterbury Park was imminent. Finally, testimony and written submissions indicated that opposition was from a small but vocal minority and that there was broad community support for the facility. By a vote, of five to three, the commission granted the application. On February 16, 2005, the commission voted to accept the formal order granting the application. This appeal follows.

ISSUES.

1. Did the commission lack authority and jurisdiction to reconsider its decision?

2. Did the commission violate relator’s right to due process of law?

3. Is there substantial evidence in the record to support the commission’s decision to grant North Metro’s license?

ANALYSIS

1. “There is a presumption in favor of judicial review of agency decisions in the absence of statutory language to the contrary.” Minn. Pub. Interest Research Group v. Minn. Envtl. Quality Council, 306 Minn. 370, 376, 237 N.W.2d 375, 379 (1975).

An appellate court may reverse or modify an administrative decision if substantial rights of the petitioners have been prejudiced by administrative findings, inferences, conclusions or decisions that are unsupported by substantial evidence in view of the entire record, or arbitrary and capricious, but the court must also recognize the ‘need for exercising judicial restraint and for restricting judicial functions to a narrow area of responsibility lest (the court) substitute its judgment for that of the agency.’ It must be guided in its review by the principle that the agency’s conclusions are not arbitrary and capricious so long as a ‘rational connection between the facts found and the choice made’ had been articulated.

In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn.2001) (citations omitted). “We presume the agency’s decision ... is correct, but the court may reverse an agency decision if the decision was affected by an error of law.” N. States Power Co. v. Minn. Pub. Utils. Comm’n, 344 N.W.2d 374, 377 (Minn.1984).

Relator first challenges the commission’s authority and jurisdiction to sua sponte reconsider its decision. Whether an agency has jurisdiction over a matter is a legal question and, therefore, a reviewing court need not defer to “agency expertise.” Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). “The party seeking review on appeal has the burden of proving that the agency has exceeded its statutory authority or jurisdiction.” Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn.1996) (citing Markwardt v. State, Water Res. Bd., 254 N.W.2d 371, 374 (Minn.1977)).

Relator first argues that the commission lacked jurisdiction to reconsider its decision because the time for appeal had expired. “[J]urisdiction end[s] once the time to appeal from the order expire[s] without appeal having been taken.” Marzitelli v. City of Little Canada, 582 N.W.2d 904, 904 (Minn.1998). Relator argues that the time to appeal the commission’s November 15, 2004 order expired on December 16, 2004, and that the commission did not reopen the matter until December 30, 2004. The commission, however, passed a motion to reconsider its decision at its November 17, 2004 meeting. Relator had a representative at this meeting who orally opposed reconsideration. Further, relator concedes that the commission’s “abrupt decision to grant reconsideration ... occurred a mere two days after it issued its final Findings, Conclusions and Order[.]” Thus, relator’s argument fails because relator concedes that the commission passed a motion to reconsider its decision before the time for taking appeal expired.

Relator next argues that the commission may not sua sponte request reconsideration. Relator contends that although Minn.Stat. § 14.64 (2004) allows an agency to reconsider its decisions, reconsideration of a license denial is triggered only by a formal request. “If a request for reconsideration is made within ten days after the decision and order of the agency, the 30-day period provided in section 14.63 shall not begin to run until service of the order finally disposing of the application for reconsideration.” Minn. Stat. § 14.64. While relator argues that no party requested reconsideration, the statute does not limit requests for reconsideration solely to those made by a party. Relator’s argument fails because Minn.Stat. § 14.64 permits reconsideration within ten days after a decision and does not preclude a commissioner from requesting reconsideration. Further, relator contends that Minn.Stat. § 14.63 (2004) requires a formal written request with written notice of the grounds for a proposed reconsideration to satisfy due process. But Minn.Stat. § 14.63 addresses judicial review of contested cases; the statute does not apply to quasi-judicial proceedings, as is the case here.

Relator also argues that the commission’s rules do not allow reconsideration. Relator contends that there is no legal authority permitting the commission to reconsider its decisions because ' the rules only permit reconsideration in disciplinary matters and in Class A license revocations or suspensions. Relator challenges the commission’s reliance on Robert’s Rules of Order because Minnesota statutes and rules take precedence over Robert’s Rules of Order. But the rules cited by relator, Minnesota Rules 7897.0190 and 7897.0210, address contested-case hearings in disciplinary matters and in license revocations and suspensions. There is no statute or rule that addresses sua sponte reconsideration. Therefore, the commission has not inappropriately relied on Robert’s Rules of Order because there is no Minnesota statute or rule that establishes a procedure for reconsideration in quasi-judicial license-application proceedings.

Finally, relator argues that case-law supporting the commission’s inherent authority to reconsider its decisions predates the Minnesota Administrative Procedure Act (APA), and that, unlike the Minnesota Racing Commission, other commissions have been granted express statutory authority to sua sponte reconsider their decisions. Relator mistakenly relies on the APA because the only time the Minnesota statute regarding racetrack licenses refers to the APA is with regard to license suspensions or revocations. See Minn.Stat. § 240.06, subd. 7 (2004) (“A license' revocation or suspension under this subdivision is a contested case under sections 14.57 to 14.69 of the Administrative Procedure Act[.]”). A license-issuance process is not a contested case, and, therefore, it is not subject to the APA. See Minn.Stat. §§ 14.63^-.68 (2004).

The Minnesota Supreme Court recognized the inherent authority of an agency to reconsider its decisions in State ex. rel. Turnbladh v. Dist. Ct., 259 Minn. 228, 107 N.W.2d 307 (1960). In that case, the warden of the Minnesota state prison filed suit against the commissioner of corrections after the two had discussed a matter of wrongdoing on the part' of the warden and agreed that the warden had exhibited poor judgment; days later the warden was charged with misconduct. Turnbladh, 259 Minn. at 230, 107 N.W.2d at 309. The warden argued that the' commissioner had lost jurisdiction after the two initially met to discuss the alleged wrongdoing. Id. at 231, 107 N.W.2d at 310. In holding that the commissioner had retained jurisdiction, the court stated: “an administrative agency has a well-established right to reopen, rehear, and redetermine the matter even after a -determination has been made. This is a rule of general application.” Id. at 236, 107 N.W.2d at 312. The court -in Tumbladh- relied on the holding of Anchor Cas. Co. v. Bongards Co-op. Creamery Ass’n, 253 Minn. 101, 91 N.W.2d 122 (1958). In Anchor Casualty the Minnesota Supreme Court stated:

It is generally recognized that one of the powers proper to an efficient and just administration of the right to adjudicate is the power to reverse adjudications which appear to be erroneous.... This power lasts until jurisdiction is lost by appeal or certiorari or until a reasonable time has run, which would be at least coextensive with the time required by-statute for review.

Anchor Cas. Co., 253 Minn. at 106, 91 N.W.2d at 126. The court in Anchor Casualty stated further:

Barring statutory regulation, the power may be invoked by administrative agencies to serve the ends of essential justice and the policy of the law. But there must be reasonable diligence. The denial to such tribunals of the authority to correct error and injustice and to revise its judgments for good and sufficient cause would run counter to the public interest. The function cannot be denied except by legislative fiat; and there is none such here. The power of correction and revision, the better to serve the statutory policy, is of the very nature of such governmental agencies. It involves the exercise of a sound discretion, controlled by the statutory considerations and the dictates of justice; the action taken must rest on reasonable grounds and be in no sense arbitrary.

Id. at 106-07, 91 N.W.2d at 126 (quotation omitted).

Here, the commission moved for reconsideration two days after it formally denied the application. The commission acted with diligence and retained jurisdiction. Because there is no statute barring the commission from reconsidering its decisions while it still has jurisdiction, the commission had inherent authority to reconsider its decision.

2. Relator argues that the commission violated its right to due process when it provided no reasons for its decision to reconsider and did so without providing notice. The requirements of due process are measured according to the nature of the government function involved and whether private interests are directly affected. Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 715 (Minn.1978). “[Q]uasi-judicial proceedings do not invoke the full panoply of procedures required in regular judicial proceedings.” Id. at 716. The due-process rights required are simply reasonable notice of a hearing and a reasonable opportunity to be heard. Id.

Relator contends that its due-process rights were violated when reconsideration was not on the commission’s published agenda for the November 17 meeting. But there are approximately three pages of meeting minutes dedicated to discussions on reconsideration, including relator’s oral opposition. Relator was offered reasonable notice and the right to be heard, especially in light of the fact that the only action taken on November 17 was a motion to reconsider the denial at a future meeting.

Relator next argues that the commission’s admitted communications with North Metro after the October 21 vote denied relator due process of law. But the communications resulted in the commission reopening the entire record to receive additional information from any interested party; the communications did not result in an immediate reversal of the commission’s decision. Relator was given notice of the December 30, 2004 meeting, at which the commission welcomed testimony, comments, documents, evidence, and anything relevant to the decision to reconsider and the decision whether to grant the license. Relator’s attorney and many members of the community attended this meeting and were heard.

Finally, relator argues that the commission violated its due-process rights when it proceeded with its regularly scheduled meeting on January 19, 2005. Relator claims that the commission did not provide notice that reconsideration would be -considered prior to this meeting. But at the December 30 meeting, attended by relator’s counsel, a commissioner stated that the public record was open through January 18 and anticipated that reconsideration would be on the January 19 meeting agenda. Relator received reasonable notice that the commission was going to address reconsideration at the next regularly scheduled meeting. Further, the record was open from December 30, 2004, until January 18, 2005, providing relator with a reasonable opportunity to be heard. The commission did not violate relator’s right to due process of law.

3. Relator next challenges the commission’s decision to grant the license application. An agency acts in a quasi-judicial manner “when the commission hears the view of opposing sides presented in the form of written and oral testimony, examines the record and makes findings of fact.” Appeal of Signal Delivery Serv., Inc., 288 N.W.2d 707, 710 (Minn.1980). When an agency acts in a quasi-judicial capacity, an appelláte court applies the substantial evidence test on review. In re Petition of N. States Power Co., 416 N.W.2d 719, 723 (Minn.1987). Substantial evidence is defined as: “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn.2002).

The substantial evidence test requires a reviewing court to evaluate the evidence relied upon by the agency in view of the entire record as submitted. If an administrative agency engages in reasoned decisionmaking, the court will affirm, even though it may have reached a different conclusion had it been the factfin-der. The court will intervene, however, where there is a ‘combination of danger signals which suggest the agency has not taken a “hard look” at the salient problems’ and the decision lacks ‘articulated standards and reflective findings.’

Cable Commc’ns Bd. v. Nor-West Cable Commc’ns P’ship, 356 N.W.2d 658, 668-69 (Minn.1984) (citations omitted). Substantial judicial deference is given to administrative fact-finding. Info Tel. Commc’ns, L.L.C. v. Minn. Pub. Utils. Comm’n, 592 N.W.2d 880, 884 (Minn.App.1999), review denied (Minn. July 28, 1999). The burden of proving that an agency’s decision is not supported by substantial evidence is on the relator. In re Hibbing Taconite Co., 431 N.W.2d 885, 891 (Minn.App.1988). If the commission engaged in reasoned decision-making, this court will affirm. See Cable Commc’ns Bd., 356 N.W.2d at 669.

There were four issues that caused the commission to initially deny North Metro’s application: (1) housing and stabling; (2) transportation; (3) competition; and (4) local opposition. The February Í6, 2005 order granting the license application addressed the new information the commission received while the record was reopened. First, North Metro presented a new stabling plan adequate to conduct harness racing. Specifically, North Metro increased the number of stables and accommodations for track employees — the original plan proposed 75 stalls and the new plan included 256 stalls plus off-track stabling. Second, the transportation and highway system was initially believed to be inadequate. The Metropolitan Council provided new statistical and study information showing that the current infrastructure is adequate; Anoka County officials concurred. ■ Third, the commission was concerned about competition. But North Metro offered to provide revenue from the racetrack to supplement purse awards at Canterbury Park. The HBPA, initially opposed to the license, confirmed that after a great deal of negotiating, there was the basis for an agreement. The commission determined that an agreement eased concerns regarding competition. Finally, the commission heard testimony from citizens and elected officials before determining that opposition was from a small but vocal minority and that there was broad community support for the facility. There is substantial evidence in the record to support the commission’s grant of the license application. See Minn. Ctr. for Envtl. Advocacy, 644 N.W.2d at 466 (stating that substantial evidence is relevant evidence adequate to support a conclusion, more than a scintilla of evidence, more than some evidence, more than any evidence, or the evidence considered it its entirety).

Relator contends that a significant change of ownership occurred with respect to North Metro’s parent company, Southwest Casino and Hotel Corp. (Southwest).

If a change in the officers, directors, shareholders, or other persons with a present or future direct or indirect financial or management interest in the licensee, or a change of ownership of more than five percent of the licensee’s shares is made after the application is filed or the license issued, the applicant or licensee must notify the commission of the changes within five days of then-occurrence and provide the affidavit required by subdivision 1, clause (d).

Minn.Stat. § 240.06, subd. 6 (2004). Relator argues that despite this disclosure the commission declined to investigate this change.

Relator’s attorney submitted a letter to the commission stating that “the Securities and Exchange Commission reported a private placement of [Southwest] corporate stock in the amount of up to $50,000,000 with ... The Graves Group.” At the February 16, 2005 meeting, the commission questioned Gordon Graves regarding his association with Southwest and his decision to make an investment in North Metro. Graves stated that he had no plans to make any change in North Metro’s existing structure. One commissioner expressed confusion over a contradiction in relator’s attorney’s letter that the SEC had recorded a $50 million placement of stock and North Metro’s assertion that it had not sold a share of stock. James Druck, North Metro’s CEO, explained that there was potential for a future transaction subject to regulatory approval, including the commission’s approval, but that the company had not sold one share of stock and that there was no change in ownership. Relator suggests that ownership was affected because Druck submitted information to the commission using Southwest stationery. But because “[w]e defer to an agency’s conclusions regarding conflicts in testimony, ... and the inferences to be drawn from testimony!,]” we can presume that the commission believed that relator’s argument for further investigation into a change in ownership was tenuous. See Blue Cross & Blue Shield, 624 N.W.2d at 278.

In the event this court does not reverse the commission’s decision, relator moves this court to remand the matter to the commission or to the district court to determine alleged procedural irregularities. Relator contends that the commission granted North Metro’s license application based on unlawful procedure because it relied on “ex parte” communications in requesting reconsideration. Although this court is not at ease with the commissioners’ decisions to engage in one-sided, outside-of-the-record conversations, the commission did not grant North Metro’s license based on these communications. While new information from these communications influenced some commissioners to request reconsideration, the commission voted to grant the application only after reopening the record and receiving additional information that supplemented the record. Furthermore, although it would have been better for the commissioners to have refrained from engaging in off-the-record communications, relator fails to provide any authority that the commissioners may not rely on these communications in moving for reconsideration.

Relator suggests that Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165 (Minn.App.2001), supports its argument that this matter should be remanded. But Hard Times Cafe, Inc. involved adverse action against an existing license and a contested-ease hearing before an administrative-law judge. Hard Times Cafe, Inc., 625 N.W.2d at 169. The license-issuance process for a Class A license is not a contested case and, therefore, relator’s reliance on Hard Times Cafe, Inc. is misplaced. Further, in Hard Times Cafe, Inc., the city council was to make its decision in accordance with its manual, which prohibited ex parte contacts. Id. at 174. Relator offers no similar guidelines that the commission is required to use in making its decisions. Relator’s motion is denied.

DECISION

Relator has not met its burden of proving that the commission exceeded its statutory authority or jurisdiction in exercising its inherent authority to sua sponte move to reconsider a decision in a quasi-judicial proceeding when the time for appeal had not expired and no statute or rule proscribed such action. The commission did not violate relator’s right to due process of law because relator was afforded reasonable notice and a reasonable opportunity to be heard. Finally, the commission’s decision is supported by substantial evidence.

Affirmed; motion denied.

      . Robert's Rules of Order is a manual on parliamentary procedure.

      . An agreement was ultimately signed in May 2005.


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Appellant, v. J.Y.M., Respondent.
    No. A05-1096.
    Court of Appeals of Minnesota.
    March 28, 2006.

      Doug Johnson, Washington County Attorney, Richard Hodsdon, Assistant County Attorney, Stillwater, MN, for appellant.
    Jonathan Geffen, Southern Minnesota Regional Legal Services, St. Paul, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; STONEBURNER, Judge; and COLLINS, Judge.

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

   OPINION

STONEBURNER, Judge.

The state challenges an order sealing non-court records related to respondent’s criminal prosecution for felony theft, arguing that because respondent entered a plea of guilty to the charge as a condition of the state’s agreement to his participation in a diversion program, respondent cannot meet the statutory prerequisite to ex-pungement that “all pending actions or proceedings were resolved in favor” of the respondent under Minn.Stat. § 609A.02, subd. 3 (2004).

FACTS

Respondent J.Y.M. was charged with aiding and abetting theft in connection with an attempt to use counterfeit receipts to steal property valued at more than $2,500 from Sam’s Club. Respondent was conditionally accepted into an adult diversion program. Fifteen days later, respondent pleaded guilty under a plea agreement. The plea petition cryptically describes the substance of the plea agreement as: “plea of guilty and client is accepted into adult diversion.” At the plea hearing, the district court explained, prior to entry of a plea, that acceptance of the plea would be “deferred on the grounds that you comply with all [diversion program] conditions.” Respondent then waived all of the rights associated with trial, pleaded guilty, and provided a factual basis for the plea. The district court then stated: “I do find that [respondent] did commit acts which constitute aiding/abetting theft ... I will accept his plea and adjudicate his guilt if he fails diversion.”

Respondent successfully completed the diversion program, and the state dismissed the complaint. Approximately five months later, respondent petitioned for expungement of all records under Minn.Stat. § 609A.03 (2004) for “employment and license” purposes. The state answered the petition, opposing expungement on the ground that the proceeding was not resolved in respondent’s favor and therefore he did not meet the requirements of the expungement statute. At the expungement hearing, respondent argued that the case was resolved in his favor, and ex-pungement would benefit him more than it would burden the public because he is a translator for state and federal courts, the Department of Defense, and the United States Army. The state rested on its written memorandum in opposition to ex-pungement, which did not address the benefit-burden test.

The district court found that the criminal case was resolved in respondent’s favor and that the interests of public safety did not outweigh the disadvantages to respondent of not sealing the records. The district court ordered that all official records regarding the charge against respondent be sealed. The state now appeals the sealing of non-court records.

ISSUES

1. Did the district court err in concluding that the criminal proceedings against respondent were resolved in his favor under Minn.Stat. § 609A.02, subd. 3 (2004)?

2. Did the district court abuse its discretion by finding that public interests do not outweigh the disadvantages to respondent of not sealing the record?

ANALYSIS

Under Minn.Stat. § 609A.02, subd. 3 (2004), the district court may only order the sealing of all records relating to an arrest if the proceedings were resolved in favor of the person petitioning for ex-pungement. Whether all proceedings were resolved in a petitioner’s favor is a question of law reviewed de novo. State v. Davisson, 624 N.W.2d 292, 295 (Minn.App.2001), review denied (Minn. May 15, 2001). “The critical distinction in our analysis of whether the resolution was in favor of the petitioner turns on whether there has been an admission or a finding of guilt.” State v. C.P.H., 707 N.W.2d 699, 703 (Minn.App.2006); see also City of St. Paul v. Froysland, 310 Minn. 268, 275-76, 246 N.W.2d 435, 439 (1976) (concluding that statute was not intended to protect those who pleaded guilty and that “innocence, which would ordinarily be concluded from acquittal or dismissal of charges, does not result when ... the guilt of a crime is admitted”).

In the case before us, it is undisputed that, under a plea agreement with the prosecutor, respondent pleaded guilty to the charge against him on the record and provided a factual basis for the plea. The district court made a finding, based on the plea, that respondent committed acts that constituted guilt of the crime charged. The district court deferred accepting the plea unless respondent failed to comply with all diversion program conditions. Respondent successfully completed the diversion program, and the state dismissed the charge.

Respondent argues that because the district court did not accept the guilty plea and the charges were ultimately dismissed, the proceeding was resolved in his favor for purposes of Minn.Stat. § 609A.02, subd. 3. But the case law supports ex-pungement under the statute only when there has not been an admission of guilt. Compare State v. Horner, 617 N.W.2d 452, 453-55 (Minn.App.2000) (holding that case was resolved in defendants’ favor where state suspended prosecution, defendants never pleaded guilty, diversion requirements were met, and state dismissed all charges), and State v. L.K., 359 N.W.2d 305, 307-08 (Minn.App.1984) (holding that proceeding was resolved in defendant’s favor because defendant did not plead or admit guilt, charge was not prosecuted, court dismissed charges, and innocence was presumed), with Davisson, 624 N.W.2d at 294-96 (holding that proceeding was not resolved in defendant’s favor where court made finding of guilt, stayed adjudication, and dismissed the charge on completion of probation), and State v. M.B.M., 518 N.W.2d 880, 883 (Minn.App.1994) (stating that dismissal after plea of guilty is similar to pardon, not declaration of innocence and therefore proceeding not resolved in favor of defendant). Based on the case law, we conclude that the district court’s deferred acceptance of a valid guilty plea is not equivalent to a defendant not admitting guilt or pleading guilty to a criminal charge for purposes of the ex-pungement statute.

Respondent argues that he was unlawfully required to enter a plea of guilty under the plea agreement because the pretrial diversion program into which he was admitted is only available to individuals who have not entered a guilty plea. See Minn.Stat. § 401.065, subd. l(i) (2004) (defining “offender” eligible for pretrial diversion as a person who “has not yet entered a plea in the proceedings”). But respondent did not object to the plea agreement, which conditioned the diversion process on entry of a guilty plea, and this court generally will not decide issues that were not raised before the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996).

Respondent also asserts that evidence of his plea was inadmissible at the expungement proceeding under Minn. R.Crim. P. 15.06, which provides that an unaccepted guilty plea is inadmissible in any criminal, civil, or administrative proceeding. But at the expungement hearing, respondent failed to object to the state’s argument, which was based on the entry of his plea, and respondent’s counsel informed the district court at that hearing that respondent had entered a guilty plea. We conclude, therefore, that respondent has waived any objection to the admissibility of the plea. Id.

Because we conclude that respondent’s entry of a guilty plea precludes a determination that the proceedings were resolved in his favor, the district court erred in ordering all of the records sealed. We therefore do not reach the district court’s finding that the public interests served by not sealing the records do not outweigh the disadvantages to respondent. If we were to reach that issue, we would conclude that the district court did not abuse its discretion given the state’s failure to make any argument on this issue and based on the evidence in the record.

DECISION

Because respondent admitted his guilt to the crime charged, the criminal proceedings were not resolved in his favor for purposes of expungement of non-court records under Minn.Stat. § 609A.02, subd. 3. The order for expungement of non-court records is reversed.

Reversed.

      . The state concedes that the district court has inherent authority to expunge court records.


author: MARING, Justice.

text:
    2006 ND 47
    In the Interest of F.F. and F.M., Minor Children. L.J. Bernhardt, Petitioner and Appellee v. F.F., a child, F.M., a child, Respondents and Appellees J.F., their mother, Respondent and Appellant F.M., Sr., their father, the Executive Director of the North Dakota Department of Human Services, Respondents.
    No. 20050210.
    Supreme Court of North Dakota.
    Feb. 28, 2006.
    Robert A. Keogh (argued) of Keogh Law Office, Dickinson, ND, for respondent and appellant, J.F.
    Owen K. Mehrer (argued), Assistant State’s Attorney, Dickinson, ND, for petitioner and appellee, L.J. Bernhardt.
    Sandra K. Kuntz of Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, ND, for respondents and appellees, F.F. and F.M.
   MARING, Justice.

[¶ 1] J.F. (“Jane”) appeals from the juvenile court’s findings of fact, conclusions of law, and order terminating parental rights to her two minor children, F.F. (“Fred”) and F.M. (“Frieda”). The children’s father, F.M. (“Frank”), whose parental rights were also terminated, did not appeal. We affirm the juvenile court’s order terminating parental rights.

I

[¶ 2] Jane was born in 1976. She has given birth to five children. She previously gave up custody of her three oldest children. This case involves only Jane’s two youngest children, Fred and Frieda. Fred was born in the fall of 2000. Frieda was born in late 2002. Stark County Social Services (“Social Services”) requested removal of both children from Jane’s home and they were placed in foster care on April 25, 2003.

[¶ 3] Frank and Jane had lived together sporadically for seven years, but never married. At the time Fred and Frieda were removed from Jane’s home, Frank and Jane had been separated for approximately three months. Jane testified at trial that she and Frank had a tumultuous relationship and that she had suffered abuse for four or five of the seven years they were together. Jane also testified that Fred had witnessed some of the physical abuse that had taken place and felt it may have led to aggressive behavior Fred exhibits.

[¶ 4] A petition alleging Fred and Frieda were deprived was filed following the children’s removal from Jane’s home in April 2003. Jane did not contest the allegations of deprivation and consented to Social Services’ continued custody of the children. In March 2004, Social Services moved for an extension of its custody of the children. Jane again did not contest and Social Services’ custody was extended for another year. At trial, Jane did contest some of the allegations made in prior proceedings.

[¶ 5] At the termination of parental rights trial, testimony was presented relating to Jane’s relationship with her children, allegations of child abuse, and allegations of Jane’s substance abuse. Testimony was also presented relating to Fred’s aggressive behavior and use of obscene language. Expert testimony indicated Fred was suffering from post traumatic stress disorder and a possible reactive attachment disorder. Testimony also showed such a diagnosis is consistent with a child having been abused and neglected. The expert witness also testified as to her recommendation that Jane’s visitation with the children be terminated based on the negative behaviors he observed in the children after Jane’s visits. Testimony also indicated that Jane continues to involve herself in abusive relationships.

[¶ 6] Based on this evidence, the juvenile court found that, although Jane had shown some desire to improve her parenting skills, she had failed to make sufficient progress. The juvenile court noted that Jane’s failure to follow through with required aftercare of one treatment program and failure to complete parenting skill classes evidenced the failure to make sufficient progress. The juvenile court found that clear and convincing evidence had been presented proving the children had been and presently were deprived. Further, Jane’s prior history and prognostic evidence indicated that the causes of the deprivation will continue or not be remedied. The juvenile court also found that the children are suffering or will probably suffer serious harm absent a termination of parental rights. Additionally, the juvenile court found that the children had been in foster care for at least four hundred fifty out of the previous six hundred sixty nights. Accordingly, the juvenile court terminated Jane’s parental rights.

[¶ 7] Jane appeals.

II

[¶8] Under' N.D.C.C. § 27-20-44(l)(b)(l), the juvenile court may terminate parental rights provided the State can establish by clear and convincing evidence: (1) the child is a.deprived child; (2) the causes and .conditions of that deprivation are likely to continue; and, (3) the child is suffering, or is likely in the future to suffer serious physical, mental,. moral, or emotional harm. In the Interest of D.F.G., 1999 ND 216, ¶ 11, 602 N.W.2d 697 (citing N.D.C.C. § 27-20-44(l)(b)). Under N.D.C.C. § 27-20—44(1)(b)(2), the juvenile court may terminate parental rights if the child is deprived and in foster care or the control, care, and custody of the state for four hundred fifty out of the previous six hundred sixty nights. See In the Interest of D.F.G., 1999 ND 216, ¶ 15 n. 3, 602 N.W.2d 697.

[¶ 9] On' review, this Court will not set aside the juvenile court’s findings of fact unless they are clearly erroneous. N.D.R.Civ.P. 52(a). “A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous view of the law.” In the Interest of T.T., 2004 ND 138, ¶ 5, 681 N.W.2d 779. Under N.D.R.Civ.P. 52(a) “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

A

[¶ 10] Jane argues the juvenile court erred in concluding it could order termination of parental rights under either paragraph (1) or (2) of N.D.C.C. § 27-20-44(l)(b). The relevant portions of N.D.C.C. § 27-20-4:4(l)(b) provide:

1. The court .by order may terminate the parental rights of a parent with respect to the parent’s child if:
b. The child is a deprived child and the court finds:
(1) The conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm;
(2) The child has been in foster care, in the care, custody, and control of the department, or a county social service board, or, in cases arising out of an adjudication by the juvenile court that a child is an unruly child, the division of juvenile services, for at least four hundred fifty out of the previous six hundred sixty nights; or ...

N.D.C.C. § 27-20-44. Jane states that the juvenile court cannot terminate parental rights under paragraph (2) based only on a finding of deprivation and “purely a mathematical calculation” that the child has been in foster care- or the care of the state for the requisite period of time. Jane relies on In the Interest of K.S. and A.S. to support her argument that a termination based solely on the criteria of paragraph (2) is - not allowed. See 2002 ND 164, 652 N.W.2d 341. In Interest of K.S. and A.S. we stated:

To terminate parental rights, the evidence must show that as a result of the continued deprivation the children are suffering or will in the future probably suffer physical, mental, moral, or emotional harm.

Id. at' ¶ 25; Jane interprets this to mean a juvenile court must make the findings required in paragraph (1) before it can make findings under paragraph (2). According to Jane, a juvenile court could never base a termination of parental rights on paragraph (2) without making the same findings required under paragraph (1). We disagree.

[¶ 11] In the Interest of K.S. and A.S. dealt with a petition for termination filed under N.D.C.C. § 27-20-44(l)(b)(l). Facts that would implicate paragraph (2) were not present. See id. at ¶¶ 4-5 (noting that the children were removed from the home on October 26, 2000, and the petition for termination of parental rights was filed July 26, 2001). The portion of In the Interest of K.S. and A.S. that Jane relies on is misplaced in an analysis conducted solely under paragraph (2).

[¶ 12] “Words in a statute are to be understood in their ordinary sense, that is the meaning an ordinary person could get from reading the section.” State v. Velasquez, 1999 ND 217, ¶ 4, 602 N.W.2d 693; see N.D.C.C. § 1-02-02.

Under N.D.C.C. § 27-20-44(l)(b)(2) (1999), termination is proper where the child is a deprived child and “the child has been in foster care, in the care, custody, and control of the department, or a county social service board ... for at least four hundred fifty out of the previous six hundred sixty nights.”

In the Interest of D.F.G., 1999 ND 216, ¶ 15 n. 3, 602 N.W.2d 697. A juvenile court may order a termination of parental rights based solely on such a finding.

[¶ 13] Jane also questioned why an “or” was deleted from the end of N.D.C.C. § 27-20-44(l)(b) by the 1999 Legislative Assembly. Jane intimated the removal of “or” indicates the legislature intended to require that the criteria of both paragraph (1) and (2) of subdivision (b) must be met before a termination under paragraph (2) may be made. As it existed before 1999, the relevant portions of N.D.C.C. § 27-20-44 provided:

1. The court by order may terminate the parental rights of a parent with respect to his child if:
a. The parent has abandoned the child;
b. The child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; or
c. The written consent of the parent acknowledged before the court has been given.

In 1999, the legislature amended N.D.C.C. § 27-20-44 as follows:

27-20-44. Termination of parental rights.
1. The court by order may terminate the parental rights of a parent with respect to Ms the parent’s child if:
a. The parent has abandoned the child;
b. The child is a deprived child and the court finds that-fhe:
(1) The conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; or
(2) The child has been in foster care, in the care, custody, and control of the department, or a county social service board, or, in cases arising out of an adjudication by the juvenile court that a child is an unruly child, the division of juvenile services, for at least four hundred fifty out of the previous six hundred sixty nights; or
(3) A court of competent jurisdiction has convicted the child’s parent of one of the following crimes, or of an offense under the laws of another jurisdiction which requires proof of substantially similar elements:
(a) A violation of section 12.1-16-01, 12.1-16-02, or 12.1-16-03 in which the victim is another child of the parent;
(b) Aiding, abetting, attempting, conspiring, or soliciting a violation of section 12.1-16-01, 12.1-16-02, or 12.1-06-03 in which the victim is a child of the parent; or
(c) A violation of section 12.1-17-02 in which the victim is a child of the parent and has suffered serious bodily injury; or
c. The written consent of the parent acknowledged before the court has been given.

1999 N.D. Sess. Laws ch. 282, § 9. In amending the statute, the legislature did not remove the “or” that connected subdivisions (a), (b), and (c). It expanded the elements of subdivision (b), creating three separate and distinct elements that, when coupled with a finding of deprivation, would allow for termination of parental rights. An “or” still connects subdivisions (a), (b), and (c). The legislature ádheres to commonly accepted grammatical rules. See N.D.C.C. § 1-02-03; see also N.D.C.C. § 1-02-05. The word “or” is “used as a function word to indicate an alternative” and, in logic, is a “sentential connective that forms a complex sentence which is true when at least one of its constituent sentences is true.” Merriam-Webster’s Collegiate Dictionary 872 (11th ed. 2005). It introduces “any of the possibilities in a series, but usually [is] used only before the last.” Webster’s New World Dictionary of the American Language 999 (2nd ed. 1980).

[¶ 14] Section 27-20-44(l)(b)(2), N.D.C.C., is clear. Under that section, a court may terminate parental rights solely on a finding of (1) deprivation and (2) that “[t]he child has been in foster care, in the care, custody, and control of the department, or a county social service board, or, in cases arising out of an adjudication by the juvenile court that a child is an unruly child, the division of juvenile services, for at least four hundred fifty out of the previous six hundred sixty nights.”

[¶ 15] In a great number of cases in which termination is proper under N.D.C.C. § 27-2(M4(l)(b)(2), we suspect the petitioner would also be able to establish a case for termination under paragraph (1). See, e.g., In the Interest of T.J.L., 2004 ND 142, ¶¶ 9, 11, 682 N.W.2d 735; In the Interest of J.P., 2004 ND 25, ¶ 25, 674 N.W.2d 273. This does not mean, however, that a finding of termination under paragraph (2) alone is improper.

[¶ 16] Termination based on findings under paragraph (2) is not mandatory. Section 27-20-44, N.D.C.C., gives the juvenile court discretion, when the burden of proof has been met, to decide whether termination is appropriate under any provision of the statute. A court that finds the criteria for termination may instead make an order for disposition under N.D.C.C. § 27-20-30 if it is in the child’s best interest. See N.D.C.C. § 27-20-44(2). However, the filing of a petition for termination is mandatory if the child has been in foster care or the custody of the state for at least four hundred fifty out of the previous six hundred sixty nights. See N.D.C.C. § 27-20-20.1(2)(a).

[¶ 17] ' Section 27-20^4, N.D.C.C., was amended and reenacted and N.D.C.C. § 27-20-20.1 was enacted in 1999 under Senate Bill No. 2171. 1999 N.D. Sess. Laws ch. 282, §§ 9 and 10. The purpose of the bill was to implement the requirements of the federal Adoption and Safe Families Act of 1997. The Adoption and Safe Families Act requires:

[I]n the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, or, if a court of competent jurisdiction has determined a child to be an abandoned infant (as defined under State law) .... the State shall file a petition to terminate the parental rights of the child’s parents (or, if such a petition has been filed by another party, seek to be joined as a party to the petition), and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption....

42 U.S.C. 675(5)(E). “This is not a requirement that states terminate parental rights in these circumstances, but states must initiate termination proceedings by filing a petition.” Bill Analysis of P.L. 105-89, Adoption and Safe Families Act of 1997, National Conference of State Legislatures, p. 5. (December 8,1997).

[¶ 18] We reject Jane’s argument that a juvenile court cannot terminate parental rights under either N.D.C.C. § 27-20-44(l)(b)(l) or (2). Findings under either paragraph (1) or (2) of N.D.C.C. § 27-20-44(l)(b) are sufficient to support termination. Here, the juvenile court found termination was appropriate under either paragraph. We agree. In doing so, we also reject Jane’s argument there is insufficient evidence to support the juvenile court’s findings that her children have been and are presently deprived; the conditions of deprivation are likely to continue or will not be remedied; and, due to that deprivation, the children are suffering or will probably suffer serious physical, mental, emotional, or moral harm.

B

[¶ 19] Jane also argues the juvenile court erred when it adopted by reference matters of fact set forth in an earlier memorandum opinion, the juvenile court’s conclusions of law were not supported by its findings of fact, and the juvenile court’s order was not supported by its conclusions of law. We do not agree.

Ill

[¶ 20] Because the juvenile court did not err in its statutory interpretation and clear and convincing evidence exists to support its order terminating parental rights, we affirm.

[¶ 21] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., and BENNY A. GRAFF, Surrogate Judge, concur.

[¶ 22] The Honorable BENNY A. GRAFF, Surrogate Judge, sitting in place of SANDSTROM, J., disqualified.

      . The names of the parties are pseudonyms.