author: LANCASTER, Justice.

text:
    A&H VENDING COMPANY, et al., Respondents, v. COMMISSIONER OF REVENUE, Relator.
    No. C0-99-1596.
    Supreme Court of Minnesota.
    April 6, 2000.

      Michael Hatch, Atty. Gen., Thomas K. Overton, Asst. Atty. Gen., St. Paul, for relator.
    Todd I. Freeman, John A. Cotter, Mark D. Christopherson, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, for respondent.
   OPINION

LANCASTER, Justice.

Respondent taxpayers are in the business of operating various video games, pinball machines, juke boxes and similar amusement devices at business establishments such as video arcades, restaurants and pool halls. Respondents, 17 separate businesses, sought refunds of sales tax paid on their purchases of amusement devices used in their businesses. The tax court, relying on its previous decision in Minntertainment Co. v. Commissioner of Revenue, No. 6659, 1997 WL 45346 (Minn. T.C. Feb. 3, 1997), granted summary judgment in favor of respondents. The Commissioner of Revenue seeks reversal of the summary judgment order, arguing that the tax court has misinterpreted the purchase for resale provisions of Minn.Stat. § 297A.01, subd. 4 (1998). The Commissioner maintains that respondents do not resell the amusement devices as the tax court found, but instead use the amusement devices to provide the service of entertainment. We agree with the Commissioner and reverse the tax court.

Between March 1990 and November 1997, respondents purchased amusement devices and equipment replacement parts and paid sales tax on these purchases. Respondents also paid sales tax on the revenues generated by collecting coins deposited in the amusement devices and selling tokens used to operate the amusement devices.

Following the tax court’s decision in Minntertainment, each of the respondents filed a timely request for a refund of sales tax paid on the initial purchase of the amusement devices, as well as sales tax paid on the purchase of repair and upkeep material. Respondents contended that because the amusement devices were purchased for the purpose of selling the use of the devices to customers, the purchases of the amusement devices were for the tax-exempt purpose of resale under Minn.Stat. § 297A.01, subd. 4. In notices dated February 6, 1998, the Commissioner denied respondents’ requests for refunds on the ground that the purchases of the amusement devices were “sales at retail” as defined in Minn.Stat. § 297A.01, subd. 4, and therefore an excise tax was due under Minn.Stat. § 297A.02, subd. 1 (1998).

Respondents jointly appealed to the tax court and filed a motion for summary judgment. The Commissioner opposed the motion and filed a separate motion for summary judgment arguing that the 1997 Amendment to section 297A.01, subd. 4, explicitly rejected the notion that the purchase of amusement devices was for a “resale” purpose. The Commissioner also filed an affidavit stating that the claimed refunds had not been audited for accuracy. The tax court granted summary judgment to the respondents and awarded sales tax refunds totaling $1,086,226.80. See A & H Vending Co. v. Commissioner of Revenue, No. 7051, 1999 WL 549686 (Minn. T.C. July 23,1999).

The tax court held that the legislature’s 1997 Amendment to Minn.Stat. § 297A.01, subd. 4(i), did not apply to the taxation of the purchase of amusement devices. The tax court also held, relying on its decision in Minntertainment, that respondents’ purchases of amusement devices fell within the “purchased for resale” exclusion to sales tax. The Commissioner then sought review by this court.

In Minntertainment, the tax court was faced with a request for refunds of sales tax paid on initial purchases of amusement devices used by the Minntertainment company in operating Camp Snoopy at the Mall of America. In Minntertainment, the tax court observed that the granting of the privilege of having access to and use of amusement devices is a “sale” subject to tax under Minn.Stat. § 297A.01, subd. 3, and reasoned that the initial purchase of the devices must therefore be a “purchase for resale.” 1997 WL 45346 at *2. The tax court rejected the Commissioner’s argument that Minntertainment used the devices to provide the service of entertainment, and concluded instead that “customers are entertained and amused when they use the equipment.” Id. We never reviewed the decision because the parties withdrew the appeal after the legislature passed the 1997 Amendment.

We review a grant of summary judgment to determine whether there are any genuine issues of material fact and whether the granting court erred in its application of the law. See Hedglin v. City of Willmar, 582 N.W.2d 897, 901 (Minn.1998). Decisions of the tax court are not binding on this court. See Weigel v. Commissioner of Revenue, 566 N.W.2d 79, 83 n. 4 (Minn.1997). We review questions of law, such as the interpretation of a statute by the tax court, de novo. See Minnesota Twins Partnership v. Commissioner of Revenue, 587 N.W.2d 287, 289 (Minn.1998).

Respondents first argue that the doctrine of collateral estoppel precludes the Commissioner from relitigating the tax court’s holding in Minntertainment. We have held that for collateral estoppel to apply, “each of the following elements must be satisfied”:

(1) [t]he issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (8) the es-topped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Care Institute, Incorporated-Maplewood v. County of Ramsey, 576 N.W.2d 734, 737 (Minn.1998) (quoting Tarutis v. Commissioner of Revenue, 393 N.W.2d 667, 669 (Minn.1986)). In Tarutis, we said:

Collateral estoppel in income tax cases “must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal principles remain unchanged.”

393 N.W.2d at 669 (quoting Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599-600, 68 S.Ct. 715, 92 L.Ed. 898 (1948)). Tarutis was an income tax case, but we saw no reason to treat property tax cases differently in Care Institute, nor do we see a reason to treat this sales tax case differently. See Care Institute, 576 N.W.2d at 737.

We declined to apply collateral es-toppel against Ramsey County in Care Institute where Care Institute, Inc. was not a party to the prior litigation and the issues were not identical. See 576 N.W.2d at 737. Our opinion in Care Institute is consistent with the United States Supreme Court decision in United States v. Mendoza, 464 U.S. 154, 162-63, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), where the Court held that non-mutual offensive collateral es-toppel does not apply against the government. While we decline to adopt a blanket rule that there must always be mutuality of parties before collateral estoppel can apply against the government, respondents’ argument nevertheless falls short of the mark. Here, none of the respondents were a party to Minntertainment, and we reject respondents’ collateral estoppel argument.

We turn next to an analysis of the statute governing sales tax. This is a question of law that we review de novo. See Hedglin, 582 N.W.2d at 901. “When we interpret statutes, we must ascertain and effectuate the intention of the legislature.” Id. See also Minn.Stat. § 645.16 (1998). “If the words of the statute are free from ambiguity, we will not disregard them. Therefore, any statutory construction must begin with the language of the statute.” Hedglin, 582 N.W.2d at 901.

The presumption in Minnesota is that all sales and purchases are taxable. Minnesota Statutes § 297A.09 (1998), provides:

For the purpose of the proper administration of this chapter and to prevent evasion of the tax, it shall be presumed that all gross receipts are subject to the tax until the contrary is established. The burden of proving that a sale is not a sale at retail is upon the person who makes the sale, but that person may take from the purchaser, at the time the exempt purchase occurs, an exemption certificate to the effect that the property purchased is for resale or that the sale is otherwise exempt from the application of the tax imposed by sections 297A.01 to 297A.44. A person asserting a claim that certain sales are exempt, who does not have the required exemption certificates in their possession, shall acquire the certificates within 60 days after receiving written notice from the commissioner that the certificates are required. If the certificates are not obtained within the 60-day period, the sales are deemed taxable sales under this chapter.

(Emphasis added.) The general goal of sales and use taxes is to establish a complementary scheme whereby every sale is presumed taxable unless specifically exempted. See Morton Buildings v. Commissioner of Revenue, 488 N.W.2d 254, 258 (Minn.1992). The burden of proving an exemption from taxation rests with the party seeking the exemption. Weigel, 566 N.W.2d at 80-81.

Respondents and the Commissioner agree that sales tax is properly imposed on the revenue generated from sales of game-operating tokens and from the coins deposited into the amusement devices. They strongly disagree on whether the purchase of an amusement device for the purpose of generating income is subject to sales tax or is exempted by the purchase for resale provision of chapter 297A. That provision, contained in section 297A.01, subd. 4, provides: “(a) A ‘retail sale’ or ‘sale at retail’ means a sale for any purpose other than resale in the regular course of business.” (Emphasis added.) A purchase intended for resale in the regular course of business is exempt from the tax imposed on a “sale at retail” because the state will presumably collect the sales tax at the time of “resale,” thereby avoiding double taxation. Respondents argue that their purchase of the amusement devices is exempt because respondents will resell the use of the amusement devices to their customers. We must therefore determine whether respondents’ purchase of the amusement devices was a purchase for resale under Minn.Stat. § 297A.01, subd. 4.

Minnesota Statutes § 297A.01, subd. 3 (1998), defines sales that are subject to sales and use tax as follows:

A “sale” and a “purchase” includes, but is not limited to, each of the following transactions:
(a) Any transfer of title or possession, or both, of tangible personal property, whether absolutely or conditionally, and the leasing of or the granting of a license to use or consume tangible personal property other than manufactured homes used for residential purposes for a continuous period of 30 days or more, for a consideration in money or by exchange or barter;
* * * *
(d) The granting of the privilege of admission to places of amusement, recreational areas, or athletic events, except a world championship football game sponsored by the national football league, and the privilege of having access to and the use of amusement devices, tanning facilities, reducing salons, steam baths, turkish baths, health clubs, and spas or athletic facilities[.]

(Emphasis added.)

Under subdivision 3(d) the taxable event at issue in this case is the granting of the privilege of having access to and the use of amusement devices. For sales tax purposes, the taxable event is not the customers’ use of the amusement devices, but rather the customers’ acquisition of the privilege of having access to the amusement devices. No actual use of the amusement devices is required when respondents sell tokens to their customers or when customers deposit coins in the devices. If, for example, a person buys a pocketful of tokens but never uses them, the purchase is nevertheless a taxable event. "Whether the customers actually use the devices after paying consideration for the privilege of having access to the devices is not relevant to the taxation. Thus, we are not persuaded by the Minntertainment court’s reasoning that having access to an amusement device is a use, a use is a sale, and the initial purchase is necessarily a purchase for resale.

We first dealt with section 297A.01, subd. 4, in Sellner Mfg. Co., Inc. v. Commissioner of Taxation, 295 Minn. 71, 72, 202 N.W.2d 886, 889 (1972), where we held that the sale of amusement ride equipment was not taxable because the equipment was delivered out of state. Implicit in Sellner is the view that had the amusement ride remained in Minnesota, the purchase of the amusement device would have been a taxable event.

We examined section 297A.01, subd. 4, most recently in Minnesota Twins. We held there that the Minnesota Twins did not resell ticket stock and novelty items to their fans, but instead provided those items as part of the fans’ overall purchase of the service of being entertained by a ball game. See Minnesota Twins, 587 N.W.2d at 290. We held that customers did not pay consideration for the actual ticket stub, but instead bought the privilege of having access to the service of being entertained. See id. at 289-90. Supplies purchased and used for the purpose of providing services are ultimately used by the service provider, who is in turn responsible for sales or use tax. See id. at 289.

Similarly here, customers purchase tokens or deposit coins in the amusement devices in order to be entertained by the devices. Customers who pay for “the privilege of having access to and the use of amusement devices” do not temporarily purchase the amusement devices themselves, or purchase a license to operate the devices as argued by respondents. Instead, customers pay for the amusement that they expect to receive from the device. Respondents’ purchase of the amusement devices was not for the purpose of resale, but rather to support the service of entertainment provided by respondents. The taxation of the purchase of the amusement devices does not violate the general sales tax scheme in Minnesota that seeks to impose tax only on sales of the finished product to the ultimate user. See Black Photo U.S.A., Inc. v. Commissioner of Revenue, 498 N.W.2d 433, 434 (Minn.1993).

We have stated that, “[i]n ascertaining legislative intent, administrative interpretations of a statute may be considered, and where such interpretations are of long standing, they are entitled to great respect and should not be disturbed except for very cogent reasons.” Gale v. Commissioner of Taxation, 228 Minn. 345, 351, 37 N.W.2d 711, 716 (1949) (internal citation omitted); see also Governmental Research Bureau, Inc. v. St. Louis County, 258 Minn. 350, 357, 104 N.W.2d 411, 416 (Minn. 1960). The decision in Minntertainment was a contravention of the Commissioner’s long-standing interpretation that the purchase of an amusement device is not for the purpose of resale but is a taxable event. A sales tax fact sheet produced by the Department of Revenue in July 1988 states: “you must pay sales tax when you purchase items that you use in providing services to your customers such as * * * recreation equipment and coin operated amusement devices such as ping pong, pool tables, foosball, golf and volleyball equipment, pinball machines, juke boxes, etc.” Similar language is contained in a 1981 sales tax newsletter produced by the Department, and in subsequent newsletters and fact sheets produced for taxpayers. The Commissioner’s long-standing interpretation was that sales tax was due when these devices were purchased by vendors, and we reach the same conclusion.

When the tax court issued Minntertainment, the purchase for resale provision of the sales tax statute did not contain any specific reference to coin-operated amusement devices. That language was, as we have observed, added in the 1997 Amendment. The language seems clearly to have been intended to, and in fact did, address the decision in Minntertainment. The statute refers pointedly to coin-operated dispensers of goods or services; it exempts cases “currently pending before the Minnesota Supreme Court” (an appeal of Minntertainment was currently pending before this court); and the case was discussed on the floor of the Senate. Nevertheless, the tax court in this case decided that the 1997 Amendment affirmed the tax court’s holding in Minntertainment. The tax court reasoned that because it had said that Minntertainment did not sell the “service” of providing entertainment, in order to overrule Minntertainment the legislature would have had to expand the definition of taxable “services” to include the “service of providing entertainment.”

Although amending the definition of services would have been one way to address the Minntertainment decision, we believe the legislature intended to achieve the same result with the addition of subdivision 4(i) to section 297A.01. In that amendment the legislature expressly stated that coin-operated devices that “furnish, provide, or dispense goods or services” shall not be considered property for resale. Id. The most reasonable interpretation of this language is that the legislature intended to define the universe of coin-operated machines by including those that furnish goods and services. The tax court’s reading would mean that the legislature thought there was a third category of coin-operated machines that provides neither goods nor services, that amusement devices fall within that category, and that this undefined third category of machines should be treated differently for sales tax purposes. We can see no logical reason why the legislature would intend such a result and decline to interpret the amendment in that manner. See Minn.Stat. § 645.17(1) (1998) (establishing presumption that legislature does not intend absurd or unreasonable result). Rather, it is clear that the legislature considered coin-operated devices to dispense a service, notwithstanding the opinion of the tax court to the contrary.

The 1997 Amendment contained language indicating that it was a “clarifying amendment,” not intended to change, but to clarify the law. • Naturally, we are not bound to and do not accept the legislature’s interpretation of a prior legislature’s intent. Because the legislature in 1997 said that amusement devices dispense services does not mean that that was the law before the amendment. However, it does not 'preclude an interpretation consistent with the legislature’s “clarification.”

We are of the opinion that respondents do not resell the devices, but that respondents sell the service of entertainment to their customers through the use of the devices. Moreover, we hold that this was the intended application of the law even before the 1997 Amendment and thus disagree with the contrary conclusion in Minntertainment.

Because we hold that Minntertainment’s construction of chapter 297A was erroneous, we need not address respondents’ arguments on the constitutionality of the 1997 Amendment’s retroactivity. The 1997 Amendment did not change the law; it reaffirmed the law’s proper pre-Minntertamment meaning.

The decision of the tax court is reversed.

Reversed.

      . Respondents only seek refunds dating back to 1992.

      . The Commissioner denied the refund request of respondent Kerrs Co. Inc. (Twin Ports Arrowhead Amusement) on January 23, 1998. The sixteen other respondents' refund requests were denied in separate orders that were released together on February 6, 1998.

      . Act of June 2, 1997, ch. 231, art. 7, §§ 5, 42, 1997 Minn. Laws 2395, 2529, 2546 (hereinafter 1997 Amendment).

      . Minn.Stat. § 297A.01, subd. 4(i) (1998), was added to subdivision 4, and provides:
      Tangible personal property that is utilized or employed in the furnishing or providing of services under section 297A.01, subdivision 3, paragraph (d), or in conducting lawful gambling under chapter 349 or the state lottery under chapter 349A, including property given as promotional items, shall not be considered property purchased for resale. Machines, equipment, or devices that are used to furnish, provide, or dispense goods or services, including coin-operated devices, shall not be considered property purchased for resale.

      (Emphasis added.)

      . Non-mutual offensive collateral estoppel occurs when a different plaintiff seeks to preclude a defendant from relitigating an issue that the defendant had previously litigated and lost in a prior action. See Mendoza, 464 U.S. at 159 n. 4, 104 S.Ct. 568, 78 L.Ed.2d 379; cf. United States v. Stauffer Chem. Co., 464 U.S. 165, 174, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984) (holding that mutual (identical party) defensive collateral estoppel may be asserted against the government).

      . Respondents rely on Copy Duplicating Products, Inc. v. Commissioner of Revenue, No. 6378, 1995 WL 412579 (Minn. T.C. July 10, 1995), to support their alternative argument that they grant a license of use to their customers, which would be a resale for tax purposes. In Copy Duplicating, the Commissioner attempted to impose a fair-market value tax on copy machines when they were converted from leased copiers to coin-operated machines placed in public areas. The tax court rejected the Commissioner’s imposition of tax on the copiers, holding that both leases and the granting of a use license are contained in Minn.Stat. § 297A.01, subd. 3(a) (1998). See 1995 WL 412579 at *3. The court held that such a conversion did not alter the non-taxable resale characteristic of these copiers. The tax court rejected the Commissioner’s analogy of copiers to amusement devices because it failed “to see how copiers are machines providing amusement under Minnesota statutes.” Id. at *6. As amusement devices are specifically governed by Minn.Stat. § 297A.01, subd. 3(d), we are not persuaded by respondents’ license argument.

      . See Anderson v. Firle, 174 Minn. 333, 337, 219 N.W. 284, 285 (1928) ("We recognize the rule that one Legislature is not the interpreter of the laws enacted by a prior Legislature.”).


source: Caselaw Access Project

author: KLAPHAKE, Judge

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Donald Lee DUNCAN, Appellant.
    No. CX-99-665.
    Court of Appeals of Minnesota.
    March 14, 2000.
    Review Denied May 16, 2000.

      Mike Hatch, Attorney General,St. Paul, and Paul J. Kiltinen, Dodge County Attorney, Gary Remine, Assistant County Attorney, Mantorville, for respondent.
    John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by CRIPPEN, Presiding Judge, KLAPHAKE, Judge, and SHUMAKER, Judge.
   OPINION

KLAPHAKE, Judge

Donald Lee Duncan appeals his convictions for two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. On appeal, Duncan argues that (1) the prosecutor committed misconduct in his closing argument; (2) the trial court improperly-admitted Spriegl evidence; (3) the trial court erred in instructing the jury on Duncan’s right not to testify without obtaining his consent; and (4) the evidence was insufficient to support his convictions for criminal sexual conduct in the first degree. Because Duncan was denied his right to a fair trial, we reverse and remand.

FACTS

In early 1998, Duncan was residing with his daughter in Mantorville. Because Duncan was a five-time convicted sex offender and his daughter was one of his prior victims, this violated a condition of his release from prison. Another condition of release was that Duncan was to have no contact with minors. Despite this restriction, Duncan spent time with three juvenile females: ten-year-old D.N., nine-year-old K.H., and three-year-old A.N. On February 18, 1998, D.N. and K.H. alleged that Duncan had sexually assaulted them. D.N. also indicated that Duncan had assaulted A.N., but A.N. never made such a claim, and Duncan was not charged with any offense related to A.N.

D.N. and K.H. provided videotaped statements to Dodge County Chief Deputy Gary Thompson. D.N. claimed that Duncan put his hand underneath her underwear and rubbed her vagina. K.H. claimed that Duncan had touched her vagina on two separate occasions. In Thompson’s interview with Duncan, Thompson made numerous references to A.N., including an accusation that Duncan had fondled her.

Later that night, Deputy John Snaza responded to a call from D.N.’s father, who claimed that the girls had not provided Thompson with complete information. Snaza interviewed D.N. and K.H. and recorded the conversation. K.H. twice answered in the affirmative when asked whether Duncan had put his finger inside of her vagina. Without prompting, K.H. also volunteered an apparent further reference to penetration: “He like squeezed it in, and it hurt. His fingernails is really hurting.” D.N. said that Duncan’s fingers had not gone in her body, but that he had rubbed around her vagina and in her “crack.” Duncan was charged with one count of first-degree criminal sexual conduct for each girl in violation of Minn.Stat. § 609.342, subd. 1(a) (1996), and one count of second-degree criminal sexual conduct for each girl in violation of Minn.Stat. § 609.343, subd. 1(a) (1996).

Prior to trial, the court ruled that the interviews with D.N., K.H., and Duncan were admissible in their entirety, without redacting references to A.N. The court also ruled that the state would be allowed to use Duncan’s five prior convictions as Spriegl evidence.

At trial, both D.N. and K.H. testified. K.H. identified her general vaginal area as “2.” She testified that Duncan had touched her on two separate occasions and that at one time he touched her “2.” D.N. testified that Duncan had touched her “crotch” with his fingers. She said that Duncan had touched “outside” her crotch, as opposed to “inside,” and that he had touched her “in between the lips,” “not very far inside, but just in between them.”

The defense theory at trial was that Duncan had not engaged in any inappropriate conduct with the girls and, possibly, that the claims had been fabricated by Duncan’s daughter. Neither the daughter nor Duncan testified. Following the close of Duncan’s case, the trial court allowed the state to present evidence of Duncan’s conditions of release for his previous convictions.

In his closing argument, the prosecutor referred to Duncan as a “predator” and twice said that Duncan was “lying” when he denied inappropriate contact with the girls. The prosecutor referred extensively to Duncan’s prior convictions. The prosecutor also commented on defense theories, potential future victims of Duncan, and efforts of law enforcement officials. Duncan was convicted on all four counts and sentenced to two concurrent life sentences.

ISSUES

1. Did the prosecutor commit misconduct in his closing argument?

2. Did the trial court err in admitting Spriegl evidence?

3. , Did the trial court err in instructing the jury on Duncan’s right not to testify without obtaining his consent on the record?

4. Were the trial court’s errors and the prosecutorial misconduct prejudicial?

5. Was the evidence sufficient to support Duncan’s convictions?

6. Should parts of the state’s appellate brief be stricken?

ANALYSIS

I. Prosecutorial Misconduct

Duncan argues that the prosecutor committed numerous instances of misconduct during his closing argument. We agree. A prosecutor’s duty is not to seek a conviction at any price but, rather, is to act as a “minister of justice.” State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993) (quotation omitted). The prosecutor’s closing arguments must not “distract the jury from its proper role of deciding whether the state has met its burden.” State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (citation omitted). In the instant case, the prosecutor made numerous improper comments that we detail below.

A.Improper Use of Spriegl Evidence

The prosecutor referred at length to Duncan’s five prior criminal sexual conduct convictions. There is nothing inappropriate, of course, about referring to properly admitted Spriegl evidence in a closing argument. But such evidence may not be used as a means to attack the defendant’s character or to establish a criminal propensity. See State v. DeWald, 463 N.W.2d 741, 745 (Minn.1990) (prosecu-torial misconduct to use convictions admitted for impeachment purposes to attack character); Minn. R. Evid. 404(b) (evidence of character may not be used to show propensity).

While some of the prosecutor’s argument with respect to the convictions was proper, he improperly insinuated that Duncan was merely following his nature in committing the present offenses. In the most egregious instance, the prosecutor argued, “When we get to Mr. Duncan, the theme is, did the zebra change its stripes?” There, the implication clearly was that Duncan’s prior crimes showed his propensity to engage in farther criminal sexual conduct. This improper use of Duncan’s prior convictions constituted serious misconduct.

B. Injecting Personal Opinions on Credibility

On two separate occasions in his closing argument, the prosecutor said that Duncan was “lying” when he denied inappropriate contact with the girls. The supreme court has set forth the limits for prosecutorial comment on credibility as follows:

An advocate may indeed point to circumstances which cast doubt upon a witness’ veracity or which corroborates his or her testimony, but he may not throw onto the scales of credibility the weight of his own personal opinion.

State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). In the present case, the prosecutor clearly crossed the line, injecting his personal opinion that Duncan was lying.

C. Disparaging the Defense

In response to Duncan’s claim that he was going to be a good grandfather, the prosecutor said, “Well, pity the grandkid, because he is practicing [on KH. and D.N.].” It is prosecutorial misconduct to disparage the defendant himself. State v. Griese, 565 N.W.2d 419, 427 (Minn.1997); State v. Gerald, 486 N.W.2d 799, 803 (Minn.App.1992). The prosecutor’s statement was clearly intended to belittle and disparage Duncan.

D. Inflaming Juror Passions

The prosecutor referred to Duncan as a “predator” and used various forms of the word several other times during his closing argument. The prosecutor must refrain from making statements that will inflame the passions or prejudices of the jury. State v. Porter, 526 N.W.2d 359, 363 (Minn.1995). Although there was some evidence regarding the predatory behavior of child molesters in the record, we can only infer that the prosecutor’s repeated use of this term during his closing argument was intended to inflame the prejudices of the jury.

E. Protecting Society

It is improper for the prosecutor to make statements urging the jury to protect society or to send a message with its verdict. Salitros, 499 N.W.2d at 819; State v. Thompson, 520 N.W.2d 468, 472 (Minn.App.1994), review denied (Minn. Oct. 27, 1994). In the present case, the prosecutor argued:

What is fortunate in this case is that this was found out soon enough, because the progression of perpetration and control of a victim demonstrated by [Duncan’s] history leads from sexual contacts to multiple incidents of penetration over an extended period of time.
⅝ ⅜ ⅜ ⅜
It’s time in this country that we start believing kids. * * * At least there is some pride in Dodge County law enforcement!.] * * 1 At least Dodge County law enforcement has officers trained in the area of how to treat children respectfully.

The remarks could be construed as a request that the jury return a guilty verdict in order (1) to protect future victims of Duncan, and (2) to send a message generally affirming the allegations of children and the work of law enforcement. The remarks constituted misconduct.

F.Argument as a Whole

In determining whether prosecu-torial misconduct was prejudicial, we must consider the argument as a whole. State v. Richardson, 514 N.W.2d 573, 579 (Minn.App.1994). We are not convinced that the prosecutor’s misconduct, although serious, was prejudicial. We need not determine whether the misconduct was prejudicial, however, because we hold that the misconduct, combined with other trial errors, denied Duncan a fair trial.

II. Spriegl Evidence

Evidence of other crimes is not admissible to prove the defendant’s character. Minn. R. Evid. 404(b). Other crimes evidence, however, may be admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

Evidence of other crimes should not be admitted into evidence unless:

(1) notice is given that the state intends to use the evidence; (2) the state clearly indicates what the evidence is being offered to prove; (3) the evidence is clear and convincing that the defendant participated in the other offense; (4) the Spriegl evidence is relevant and material to the state’s case; and (5) the probative value of the Spriegl evidence is not outweighed by its potential for unfair prejudice.

State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998) (citations omitted).

Duncan argues that the trial court committed reversible error when it allowed three types of evidence: (1) the references to A.N. in the videotaped and audiotaped interviews; (2) his prior criminal sexual conduct convictions; and (3) his parole violations. The trial court’s evidentiary rulings will not be disturbed absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989).

A. References to AN.

Over Duncan’s objection, the trial court played the taped interviews without redacting any reference to A.N. Neither the trial court nor the state contended that the references’ potential for prejudice did not substantially outweigh their probative value. Instead, the trial court thought the references to A.N. were “inextricably intertwined with the evidence of the charged offenses” and the state similarly argues that redacting the tapes would have been too difficult. We are not persuaded by those arguments. There are many simple ways to redact statements from taped interviews without detracting from the content. The tapes may be edited, the inadmissible portions may be muted, or a transcript omitting the portions may be read to the jury. Considering the potential for prejudice in allowing the jury to hear the references to A.N. and the ease with which the references could have been omitted, the trial court erred in failing to require redaction of the tapes’ references to A.N.

B. Duncan’s Prior Convictions

Duncan challenges the admission, as Spriegl evidence, of his five prior criminal sexual conduct convictions. Duncan concedes that all but one of the Spriegl factors were met. Specifically, Duncan contends that the probative value of the evidence was outweighed by its unfair prejudice.

In criminal sexual conduct cases, prior sexual conduct convictions are often probative where the defendant disputes that the sexual conduct occurred or where the defendant asserts the victim is fabricating the allegations. See State v. Wermerskirchen, 497 N.W.2d 235, 241-42 (Minn.1993). In such cases, the prior convictions are relevant to show a common plan or scheme on the part of the defendant. Id.

Here, Duncan contended that the sexual conduct never occurred and that the allegations against him were fabricated at his daughter’s behest. His prior criminal sexual conduct convictions, all involving young girls, were therefore highly relevant to show a common plan or scheme.

The potential for prejudice, however, is likewise great. The dangers inherent in admitting, in a criminal sexual conduct prosecution, five prior sexual conduct convictions is obvious. Admitting the convictions presented a relatively high risk that the jury might convict based on the prior convictions alone.

In determining the potential for prejudice, the trial court must also consider how crucial the evidence is to the state’s case. Kennedy, 585 N.W.2d at 391-92. The Spriegl evidence should be admitted only if the state’s case is weak. Id. The state’s case against Duncan was weak. The state’s evidence essentially consisted of the statements of the two girls.. There was no physical evidence of assault. Moreover, Duncan presented evidence that one of the victims had recanted her story. Although the question of whether the probative value of the convictions was outweighed by their prejudice is a close one, we conclude that the admission of the convictions was not an abuse of discretion.

C.Duncan’s Conditions of Release

Duncan argues the trial court erred by admitting testimony regarding his conditions of release from prison. The state argues that the evidence was relevant to show that his daughter had no motive to fabricate sexual misconduct claims because she could send Duncan back to prison merely by reporting his parole violations. We disagree. The probative value of the violations was minimal. Further, Duncan faced much more serious sanctions for new criminal sexual conduct charges than he would face for a parole violation. Hence, admission of the evidence was erroneous.

III.Jury Instruction

The trial court instructed the jury on the existence of Duncan’s right not to testify and on their duty to decline to draw any inferences from his failure to testify. The trial court did not obtain on the record Duncan’s consent to give the instruction. Duncan argues that the trial court committed reversible error in giving the instruction without obtaining his consent.

Ordinarily, an instruction on a defendant’s right not to testify should not be given unless the defendant personally requests it. State v. Thompson, 430 N.W.2d 151, 153 (Minn.1988). A record should be made of the defendant’s preference on the issue. Id. In the present case, the trial court clearly erred by giving the jury instruction without Duncan’s consent. The state argues that Duncan implicitly consented when his attorney failed to object to the instruction. But that argument is contrary to- the precepts set forth in Thompson requiring the defendant to expressly consent to the instruction.

The fact that the record is silent as to whether the defendant wanted the instruction does not mandate a new trial. Id. As with the other errors, we are not prepared to hold that the failure to obtain Duncan’s consent was reversible error. Nevertheless, we observe that, in light of the fact that the central issue in the case was the credibility of the girls’ statements, the jury instructions may have had the deleterious effect of emphasizing Duncan’s failure to take the witness stand and deny the allegations.

IV. Cumulative Effect of Errors

Each instance of error or misconduct in this case, when considered individually, was harmless. But our appellate decisions have repeatedly emphasized that when the cumulative effect of numerous errors constitutes the denial of a fair trial, the defendant is entitled to a new trial. See, e.g., State v. Keeton, 589 N.W.2d 85, 91 (Minn.1998); State v. Hawkins, 260 N.W.2d 150, 157 (Minn.1977); State v. Jahnke, 353 N.W.2d 606, 611 (Minn.App.1984).

This case was a relatively close one. The prosecution depended almost solely on the somewhat imprecise and equivocal interviews and testimony of the young victims. Considering both the cumulative effect of all the trial errors and misconduct, as well as the closeness of the case, we conclude that Duncan was deprived of his right to a fair trial. Accordingly, we reverse and remand for a new trial.

V. Sufficiency of the Evidence

Duncan also argues, in addition to the error we have found to be prejudicial, that the evidence was insufficient to sustain his convictions on the two counts of first-degree criminal sexual conduct. Minn.Stat. §§ 609.342, subd. 1(a), 609.343, subd. 1(a) (1996). We have reviewed the record and determine that there was sufficient evidence to support the convictions; on remand the state will be allowed to attempt to prove its case on the first-degree charges once again.

VI. Motion to Strike

Duncan moved to strike nine separate parts of the state’s appellate brief. The motion to strike has been used generally, but not exclusively, as a remedy where a brief references facts not in the record. See, e.g., State v. Dalbec, 594 N.W.2d 530, 533 (Minn.App.1999); Pfleiderer v. Pfleiderer, 591 N.W.2d 729, 732 (Minn.App.1999); Bartl v. Bartl, 497 N.W.2d 295, 301 (Minn.App.1993). The motion has also been granted where the brief does not conform to the rules of appellate procedure, Cole v. Star Tribune, 581 N.W.2d 364, 371-72 (Minn.App.1998), or where the “brief is used as a vehicle for disrespect, insult, and slanderous accusations.” State v. Gamelgard, 287 Minn. 74, 82, 177 N.W.2d 404, 409 (1970).

Duncan’s motion seeks to strike arguments that are not supported by legal citations and arguments with which he disagrees. As such, they do not violate this court’s rules or existing case law. Accordingly, we decline to strike any part of the state’s brief.

DECISION

The prosecutor committed misconduct in his closing argument. The trial court also erred in not redacting references to Spriegl evidence for an uncharged and unproven incident and instructing the jury without Duncan’s consent on his right not to testify. Taken cumulatively, these errors deprived Duncan of his right to a fair trial.

Reversed and remanded for new trial; motion denied.

      . Duncan also contends, but does not raise as a separate basis for reversal, that the trial court’s jury instruction on penetration was erroneous. The trial court instructed the jury that "[p]enetration includes rubbing of the fingers between the folds of the vagina.” The court adapted its instruction from the language of this court's decision in State v. Shamp, 422 N.W.2d 520 (Minn.App.1988), review denied (Minn. June 10, 1988).
      In this regard, we note only that the supreme court has cautioned against the use of language in appellate decisions for jury instructions because the language, when taken out of context, can be misleading. Alholm v. Wilt, 394 N.W.2d 488, 491 (Minn.1986). Moreover, such instructions may have the impermissible effect of over-emphasizing particular facts. Id. We further note that 10 Minnesota Practice, CRIMJIG 12.05 (1999), generally provides a sufficient definition of “sexual penetration.”


author: SHUMAKER, Judge.

text:
    EDWARD KRAEMER & SONS, INC., a Wisconsin corporation, Appellant, v. ASHBACH CONSTRUCTION CO., Defendant, United Fire & Casualty Co., an Iowa corporation, Respondent.
    No. C3-99-1592.
    Court of Appeals of Minnesota.
    April 11, 2000.
    Review Denied June 13, 2000.

      Jane Everson Volz, Lakeville (for appellant).
    David H. Gregerson, Mark J. Johnson, Lang, Pauly, Gregerson & Roscow, Ltd., Minneapolis (for respondent).
    LuAnn M. Petricka, Luann M. Petricka, P.A., Minneapolis, for amicus curiae Minnesota Seeding Contractors Association, Inc.
    Considered and decided by CRIPPEN, Presiding Judge, KLAPHAKE, Judge, SHUMAKER, Judge.
   OPINION

SHUMAKER, Judge.

Appellant Edward Kraemer & Sons, Inc. was a materials supplier on two construction projects. When the general contractor failed to pay for the materials, appellant served notices of claims against the payment bonds provided by the surety, respondent United Fire & Casualty Co. Respondent denied the claims because the notices were untimely.

Appellant contended that the notice requirement did not apply because the general contractor’s address did not appear on one of the bonds, and, on the other, only a post office box was listed for the surety. A street address was listed for the surety’s attorney-in-fact.

The district court granted summary judgment to respondent. We affirm. The surety sufficiently complied with the address requirement for payment bonds, and appellant’s claim notices were untimely.

FACTS

Ashbach Construction was the general contractor on a road repair project for the Minnesota Department of Transportation and on an airport renovation project for the Metropolitan Airports Commission.

Appellant Edward Kraemer & Sons contracted with Ashbach to supply aggregate materials for each project. Kraemer supplied materials for the road repair between September 4 and September 9, 1997, and for the airport renovation between October 6 and November 10,1997.

Respondent United Fire & Casualty was the surety that provided a payment bond for each project.

When Ashbach failed to pay for the aggregate materials, Kraemer sent notices of claims against the bonds by certified mail to Ashbach and United Fire. On the road repair project, Kraemer sent its claim notice 184 days after its last delivery of materials; and on the airport job, 122 days after the last delivery to that project.

United Fire denied both claims, stating that Kraemer failed to comply with Minn. Stat. § 574.31, subd. 2(a) (1998), which requires bond claim notices to be served within 120 days after the last delivery of materials.

Kraemer then sued Ashbach and United Fire. In its claim against United Fire, Kraemer alleged that the surety’s breach of its contract with Ashbach resulted in damages to Kraemer as a third-party beneficiary of the payment bonds.

United Fire and Kraemer brought cross-motions for summary judgment. United Fire argued that timely claim notice is a condition precedent to recovery against a payment bond and that Kraemer’s notices were untimely. Kraemer responded that the notice requirement did not apply here because the bonds did not comply with the address requirement of the bond statute. Alternatively, Kraemer argued that its notice on the airport job was timely because it was served within 120 days after completion of the project.

The district court rejected Kraemer’s arguments, held that Kraemer failed to give timely notices, and granted summary judgment to United Fire. Kraemer appeals.

ISSUES

By statute, a payment bond must list the address of the contractor and the surety. Minn.Stat. § 574.28 (1998). If the contractor fails “to state its address or the address of the surety,” the claimant need not provide “the surety or the contractor written notice of its claim * * * .” Minn.Stat. § 574.31, subd. 2(b) (1998)

1. Is a surety’s right to notice forfeited when the bond contains the surety’s address but not the contractor’s address?

2. Is a surety’s right to notice forfeited when the bond contains the contractor’s post office box, the name and address of the surety’s attorney-in-fact, and only a post office box for the surety?

ANALYSIS

On appeal from summary judgment, this court determines 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); see also Minn. R. Civ. P. 56.03. This court views the evidence in the light most favorable to the party opposing the motion. Bol v. Cole, 561 N.W.2d 143, 146 (Minn.1997).

Proper construction of a statute is a question of law, which this court reviews de novo. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 383 (Minn.1999).

As a condition precedent to a claim against a payment bond, the claimant must serve notice on the surety personally or by certified mail within 120 days after the claimant’s last delivery of materials. Minn.Stat. § 574.31, subd. 2(a) (1998). Service by certified mail must be made “to the addresses of the contractor and surety listed on the bond.” Id.

Under Minn.Stat. § 574.28 (1998), payment “bonds must list the address of the contractor on whose behalf the bonds were issued and of the surety providing the bonds.”

If the contractor providing the payment bond fails to comply with the filing requirements of section 574.28 by failing to state its address or the address of the surety providing the bond, then a claimant under the bond need not provide the surety or the contractor written notice of its claim* * *.

Minn.Stat. § 574.31, subd. 2(b) (1998).

The road repair project bond contains no address for Ashbach, but lists in the “Acknowledgment of Surety” the address of 118 Second Avenue S. E., Cedar Rapids, Iowa 52407 for United Fire, and 5851 Cedar Lake Road, Minneapolis, Minnesota 55416 for United Fire’s attorney-in-fact.

It is because this bond does not list the general contractor’s address that Kraemer contends the surety, for which two addresses are given, is not entitled to the 120-day bond claim notice.

The airport project bond contains no street address for Ashbach but gives a post office box address with the city, state, and zip code. For United Fire there is listed a post office box address, and a city, state, and zip code. There is also fisted a person’s name and a street address, city, state, and zip code for the surety’s attorney-in-fact.

Kraemer contends that post office box addresses are not sufficient and that the street address of a surety’s attorney-in-fact is not the address of the surety, as the statute requires.

It is not disputed that Kraemer sent notice of claims against both bonds on March 12, 1998, to United Fire’s street address in Cedar Rapids, Iowa, and that United Fire received both notices.

Kraemer’s first argument is that we should read the word “or” as “and” in the portion of Minn.Stat. § 574.31, subd. 2(b) that makes the notice requirement inapplicable if the contractor fails to give “its address or the address of the surety.” (Emphasis added.) Presumably, Kraemer would also have us read the second disjunctive in the statute as an “and” as well: “Then the claimant under the bond need not provide the surety or the contractor written notice * * * .” Id. (Emphasis added).

“The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (1998). It is presumed that the legislature does not intend an unreasonable result. Minn.Stat. § 645.17(1) (1998). When the words of a statute as applied to a particular situation are clear, the letter of the law must not be disregarded “under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (1998). “Absent context revealing that the word ‘or’ should be read as a conjunctive, we have generally read ‘or’ to be disjunctive.” Amaral, 598 N.W.2d at 385 (citation omitted). See also United States v. Smith, 35 F.3d 344, 347 (8th Cir.1994) (“[W]e thus decline to abandon the ordinary disjunctive meaning accorded to ‘or’ in favor of a conjunctive ‘and,’ as such a construction would defeat the plain language of the statute and would not foster any clearly articulated legislative intent to the contrary.”).

The clear intent of Minn.Stat. § 574.31, subd. 2(a) is that a bond claimant be required, to give notice to a surety within a prescribed time to be allowed to pursue the claim. If a claimant is to be held to the notice requirement, he needs to know how, to whom, and where to give notice. Minn.Stat. § 574.31, subd. 2(a) requires personal service or service by certified mail to the surety’s address fisted on the bond. Minn.Stat. § 574.28 requires that the surety’s address be fisted on the bond. We agree with the district court that these provisions are intended to facifi-tate the giving of the requisite notice to the surety.

For a claim against a bond, it is reasonable that the claimant not be held to the notice requirement unless the bond discloses the address at which the surety can be served. If the bond contains no address for service on the surety, it is a reasonable conclusion that the legislature intended that the surety is not entitled to the benefit of the statutory notice requirement. This is the sense of MinmStat. § 574.31, subd. 2(b). We believe this reading of the bond notice and address provisions is a logical, fair, and plausible plain-language reading that honors the intent of the law.

Kraemer’s reading, on the other hand, is strained and leads to an unfair result. It means that, despite satisfaction of the mandated disclosure as to the surety, the lack of disclosure as to the contractor forfeits the compliant surety’s right to notice.

Kraemer also contends that the bond on the airport project violates the address requirement of Minn.Stat. § 574.28 because the bond lists a post office box for the surety rather than a street address. But that bond also includes a name and a street address for the surety’s attorney-in-fact. The statute does not expressly require a street address. Nevertheless, the statute must be read to require an address at which notice actually can be served, either personally or by certified mail. The record does not show whether a post office box is an address at which certified mail can be received. But surely the name and street address of the surety’s attorney-in-fact fulfills the statutory purpose of ensuring a place at which service can be made.

DECISION

The addresses provided on respondent’s payment bonds were sufficient to facilitate the giving of notice of claim. The claimant’s statutory obligation to give notice within 120 days was not excused. Because appellant’s claim notices were untimely, the district court properly granted summary judgment to respondent.

Affirmed.


author: KONENKAMP, Justice.

text:
    2000 SD 35
    Timothy J. BERGEE, Nicholas A.Cote, Larry A. Eaton, Glen R. Gunnoe, Minh Hoang, Bryan S. Holm, Daniel W. Knight, Edward A. Newa, Robert L. Phillips, Tod H. Richards, Scott A. Schmidt, Clint R. Terry, and Mark Weaver, Appellants, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.
    No. 21058.
    Supreme Court of South Dakota.
    Argued Dec. 2, 1999.
    Decided March 8, 2000.
    Rehearing Denied April 12, 2000.

      Michael D. Bornitz of James & Associates, Yankton, South Dakota, Attorneys for appellant Bryan S. Holm.
    Paul R. Boschma, Springfield, South Dakota, Attorney for appellants.
    Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for appel-lee.
   KONENKAMP, Justice.

[¶ 1.] Is denial of parole an appealable decision for inmates sentenced to prison for crimes committed before July 1, 1996? The circuit court held that parole hearings are not contested cases subject to appeal under South Dakota’s Administrative Procedure Act. We affirm. We also find no violation of equal protection when South Dakota’s new parole laws were not applied retroactively.

Background

[¶ 2.] Plaintiffs are inmates at the Springfield State Prison who were denied parole by the South Dakota Board of Pardons and Paroles. They are serving sentences for crimes committed before July 1, 1996. In some cases, the Board did not explain its denial. In other instances, the Board ruled that, considering their offenses, the inmates had not been imprisoned long enough or that society would not be protected if they were paroled. No transcript or other verbatim record was kept of the Board’s hearings.

[¶ 3.] These inmates each appealed to the circuit court under the Administrative Procedure Act, SDCL 1-26. After consolidating the cases, the circuit court granted the Board’s motion to dismiss, ruling that a decision to award or deny parole is not appealable. Before this Court the inmates contend: (1) parole hearings are appeal-able contested cases; (2) parole hearings before a single member of the Board violate SDCL 24-13-4.3; (3) parole hearings must be recorded like other contested hearings; (4) written reasons are required for denial of parole; (5) the Board acted arbitrarily and capriciously in refusing to return inmate Holm’s good time; and (6) their equal protection rights were violated as a result of the Board’s refusal to apply the provisions of SDCL ch. 24-15A to them.

Standard of Review

[¶ 4.] Rulings on the constitutionality of laws and the construction of statutes are reviewed under the de novo standard. State v. Shadbolt, 1999 SD 15, ¶ 10, 590 N.W.2d 231, 233 (citing Engelhart v. Kramer, 1997 SD 124, ¶ 8, 570 N.W.2d 550, 552); Wegleitner v. Sattler, 1998 SD 88, ¶ 4, 582 N.W.2d 688, 689 (citation omitted). Statutes are presumed to be constitutional. Kyllo v. Panzer, 535 N.W.2d 896, 898 (S.D.1995) (citing Specht v. City of Sioux Falls, 526 N.W.2d 727, 729 (S.D.1995)). To successfully challenge the constitutionality of a statute, it must be shown beyond a reasonable doubt that the Legislature exceeded its constitutionally mandated power. City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 131 (S.D.1994). Although “legislative acts are presumed to be constitutional, that presumption disappears when the unconstitutionality of the act is, ‘clearly and unmistakenly shown and there is no reasonable doubt that it violates constitutional principles.’ ” South Dakota Educ. Ass’n v. Barnett, 1998 SD 84, ¶ 22, 582 N.W.2d 386, 392 (quoting Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994) (citations omitted)). “If a statute can be construed so as not to violate the constitution, that construction must be adopted.” Cary v. City of Rapid City, 1997 SD 18, ¶ 10, 559 N.W.2d 891, 893 (citations omitted).

Analysis and Decision 1. Parole Hearings Not Contested Proceedings

[¶ 5.] As the inmates became eligible for parole, each received a hearing under SDCL 24-15-8. Now they seek court review. They contend that a parole hearing is a “contested case” as that term is defined in SDCL l-26-l(2). Relying on the statutory definition, the inmates first argue that a contested case is a proceeding concerning a privilege, and parole is a privilege. See Watkins v. Class, 1997 SD 76, ¶ 18, 566 N.W.2d 431, 435. Second, the inmates reason that because appealable contested cases include agency decisions, and because the Board is an agency required by SDCL 24-15-8 to conduct parole hearings, the Board’s decisions are appeal-able. They assert that while some proceedings are exempted from the definition of contested cases, parole hearings are not among those excluded. Thus, the inmates conclude that the Legislature intended parole hearings to be included in the definition.

[¶ 6.] Parole hearings are not adversary in nature, a usual characteristic of contested cases. Witnesses are not ordinarily called, sworn, and subject to cross-examination. The rules of evidence are inapplicable, as the Board may consider any matter bearing on an inmate’s fitness for release. “Parole is the discretionary conditional release of an inmate from actual penitentiary custody before the expiration of his term of imprisonment.” SDCL 24-15-1.1. “A prisoner is never entitled to parole.” Id. The Board may grant an inmate parole if, in the Board’s judgment, it is in the best interest of both the prisoner and society. Id.

[¶ 7.] The inmates rely on Tibbetts v. State, 336 N.W.2d 658 (S.D.1983) to support their position that a parole hearing under SDCL 24-15-8 is appealable. In Tibbetts, we held that inmates have the right to judicial review of final decisions entered by the Board of Charities and Corrections. Tibbetts dealt with reduction of good time credit, however. A hearing before such action is required by SDCL 24-2-12. “[MJinimal due process procedures must be followed before good time may be revoked.” Lewis v. Class, 1997 SD 67, ¶ 21, 565 N.W.2d 61, 64 (citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).

[¶ 8.] South Dakota has no similar statutory hearing requirement when discretionary parole is denied. Parole, “an executive branch function” under SDCL 24-15-8, is a matter of grace, a conditional release. State v. Puthoff, 1997 SD 83, ¶ 10, 566 N.W.2d 439, 442; Watkins, 1997 SD 76, ¶ 18, 566 N.W.2d at 435. “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668, 675 (1979). “That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained.” Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2105, 60 L.Ed.2d at 677 (citation omitted); see also Puthoff, 1997 SD 83, ¶ 6, 566 N.W.2d 439, 442. A “hope” is not a protected due process interest. Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2105, 60 L.Ed.2d at 677-78. To have a protected right under due process, persons must possess more than a one-sided expectance. They must have a legal “entitlement.” Id. at 7, 99 S.Ct. at 2103-04, 60 L.Ed.2d at 675 (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972)).

[¶ 9.] As there is no interest protected by due process when parole is denied under SDCL 24-15-8, and because parole is purely discretionary for these inmates, we conclude that parole hearings are not contested cases subject to appeal.

2.Single Board Member Parole Hearings Permissible

[¶ 10.] The inmates were each granted a parole hearing before a single member of the Board. They urge us to interpret the statutes governing parole to require a hearing before multiple Board members: the member designated as a hearing officer along with two or more other members. SDCL 24-13-4.2 provides:

The chairman of the board may designate individual parole board members as hearing officers who may conduct hearings, hear applications, take testimony and make recommendations to the board regarding the granting, denial, revocation, rescission or an administrative continuance of a parole. The recommendation shall be in writing and reviewed by the board or a panel of the board who may adopt, modify or reject the recommendations.

This statute must be read together with SDCL 24-13 — 4.3:

The chairman of the board may designate panels of two or more board members to conduct hearings, hear applications, take testimony and take final action regarding the granting, denial, revocation, rescission or an administrative continuance of a parole.

[¶ 11.] “We interpret statutes in accord with legislative intent.” Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶ 4, 543 N.W.2d 787, 789 (citation omitted). Intent should be determined first from the plain and ordinary meaning of the statutory language. Id. When a statute’s language is clear, certain, and unambiguous, our function confines us to declare its meaning as plainly expressed. US West Communications, Inc. v. Public Utilities Comm’n, 505 N.W.2d 115, 123 (S.D.1993).

[¶ 12.] A plain reading of these two statutes reveals that, while a panel of two or more is required for final action on parole, an individual Board member may conduct a hearing. Nothing in the record discloses that any member alone took final action. To the contrary, the entire Board acted on each inmate’s case and approved the action recommended by the single Board member. Hearings before one Board member were, therefore, not illegal or invalid.

3. Recording of Parole Hearings Not Required

[¶ 13.] The inmates argue that even if parole hearings are not contested cases, a verbatim record should be kept so that a reviewing court may examine the decisions in the event improper criteria are used. We are not persuaded by this argument. In discussing review of parole procedures, the United States Supreme Court stated in Greenholtz:

[T]here simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release.

442 U.S. at 7, 99 S.Ct. at 2104, 60 L.Ed.2d at 675 (internal citations omitted). We hold that the Board is not required to record parole hearings.

4. Written Reasons for Parole Denial Not Required

[¶ 14.] The circuit court decided that the Board need not give parole applicants reasons for the denial of discretionary parole under SDCL 24-15. The inmates contend that without knowing the reasons parole was denied there is no opportunity for a meaningful review of the Board’s decision. They contend this violates their due process rights. With unspecified reasons for denial, they argue, there is no way to ensure the Board complied with statutory directives.

[¶ 15.] Parole boards have broad discretion in deciding whether to grant parole. Farries v. United States Bd. of Parole, 484 F.2d 948, 949 (7th Cir. 1973). When parole is denied, an inmate need not be given a reason. Id. The Court in Greenholtz stated:

[W]e find nothing in the due process concepts ... that requires the Parole Board to specify the particular “evidence” in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The Board communicates the reason for its denial as a guide to the inmate for his future behavior. To require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board’s parole-release determination with a guilt determination.

442 U.S. at 15-16, 99 S.Ct. at 2108, 60 L.Ed.2d at 680-81 (internal citations omitted).

[¶ 16.] In Peck v. Battey, 721 F.2d 1157 (8th Cir.1983), the Eighth Circuit considered denial of commutation and parole without providing reasons. The court explained that because the applicable statutes did not require the granting of commutation or parole upon a set criteria, the inmate did not have “a statutorily created expectation” of early release, and was therefore not entitled to written reasons for denial. Id. at 1159.

[¶ 17.] A grant or denial of parole is purely discretionary for these inmates. The statutory guidelines in SDCL 24-13-7 state that “the board of pardons and paroles may utilize the following standards in granting or denying paroles.... ” (Emphasis added.) The very nature of a parole hearing requires no reasons for denial. We affirm the circuit court on this issue.

5. Refusal to Return Inmate Holm’s Good Time

[¶ 18.] One of the inmates in this appeal, Holm, asserts that the record does not reflect an adequate basis to support the Board’s decision refusing to return his good conduct time because there were no findings of fact or conclusions of law. As the Board did not make a record to support its decision, Holm contends the only “reasonable” conclusion to be drawn is that the Board acted in an arbitrary and capricious manner. Holm appeared before the Board seeking both the return of good time and the grant of parole. The Board denied both requests because insufficient time had “elapsed since revocation.”

[¶ 19.] In South Dakota, the Parole Board may restore good time to inmates, pursuant to its administrative regulations. “The inmate may request the return of withheld good time when next appearing for parole. The board may consider the inmate’s institutional record since his return to the institution and may return any or all of the good time previously withheld.” S.D.Admin.R. 17:60:03:13. SDCL 24-2-12.2 makes clear that the restoration of good conduct time is discretionary, stating that “[u]pon the recommendation of the warden, the secretary of the Department of Corrections may, at any time prior to the inmate’s final discharge, restore time granted for good conduct which has been forfeited.... ” Because the return of good time is discretional, there is no protected liberty interest in its restoration. See Hallmark v. Johnson, 118 F.3d 1073, 1079-80 (5th Cir.1997) (state statutes give complete discretion in restoring good time credits; there is no protected liberty interest in the restoration of credits) (citing Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2105, 60 L.Ed.2d at 669). Therefore, we find Holm’s assertion meritless.

6. No Denial of Equal Protection

[¶ 20.] When the inmates sought parole, the Board reviewed their cases under SDCL 24-15-8. This statute governs parole for those serving sentences for crimes committed before July 1, 1996. It cannot be applied to inmates serving sentences for crimes committed after July 1, 1996. For those inmates the applicable statute is SDCL 24-15A-38. Under the old parole system, governed by SDCL 24-15-8, parole is discretionary in that the Board may order parole if it is satisfied that certain factors have been met. In contrast, under the new system, SDCL 24-15A-38 allows the Board no discretion: inmates shall be granted parole if their program directives have been met.

[¶ 21.] The inmates argue that the application of the discretionary parole statute results in unequal treatment for them as compared with those to whom the non-discretionary language of SDCL 24-15A-38 applies. Because the granting of parole is discretionary, the inmates can be denied parole even when the Board is satisfied that the guidelines are met. However, when the language of SDCL 24-15A-38 is applied, parole must be granted if the requirements of the statute are achieved. This unequal treatment, the inmates assert, violates their right to equal protection under both Article VI, Section 18 of the South Dakota Constitution and the Fourteenth Amendment of the United States Constitution.

[¶ 22.] When analyzing an equal protection claim, we apply one of three tests determined by the character of the interest involved. Lyons v. Lederle Lab., 440 N.W.2d 769, 771 (S.D.1989). Strict scrutiny applies when examining suspect classes or fundamental rights. Id. The substantial relation test applies to claims involving gender and legitimacy. Id. Finally, the rational basis test applies when analyzing all other classes. Id. As the rational basis test is applicable here, we analyze the asserted violation of equal protection in two aspects:

The first part of the test is whether the statute does set up arbitrary classifications among various persons subject to it. The second part of the test is whether there is a rational relationship between the classification and some legitimate legislative purpose.

City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331, 333 (1975) (citations omitted).

[¶23.] The inmates contend the classification is arbitrary because similarly situated inmates can be treated differently based simply on the date they committed a crime. They do not claim, however, that those convicted of committing similar offenses before July 1996 have received unequal treatment. “It does not violate the equal protection clause to require people sentenced before [the effective date of a newly enacted parole statute] to serve out their sentences under the system that was in place when they committed their crimes.” Huggins v. Isenbarger, 798 F.2d 203, 207 (7th Cir.1986) (citation omitted). That those sentenced under later determinate sentencing statutes are “automatically” released does not mean that inmates sentenced under the old discretionary parole system are entitled to early release. Id.

[¶ 24.] The inmates believe that there is no rational relationship between the classification and the legislative purpose. They assert that the date the new parole law became effective was arbitrarily set and was not relevant to the purpose of the law. Other courts have ruled that legislative decisions not giving retroactive effect to new parole and penal laws properly relate to legitimate legislative purposes. See Thompson v. Missouri Bd. of Parole, 929 F.2d 396, 400-01 (8th Cir.1991) (avoiding the re-adjudication of sentences issued under prior law was rational basis to prospectively revise penal laws); McQueary v. Blodgett, 924 F.2d 829, 834 (9th Cir.1991) (improvement in sentencing rational governmental purpose); State ex rel. Kost v. Erickson, 353 N.W.2d 237, 240 (Minn.App.1984) (“administrative difficulties in recalculating the sentences of the many convicts in prison under the indeterminate sentencing system” amounted to a rational basis for the decision).

[¶ 25.] Certainly, our Legislature could reasonably have had as its purpose avoiding redetermination of sentences handed down under the prior law, knowing that judges would have relied on then-existing parole eligibility in devising fair sentences. Such purpose is rationally related to the classification. Therefore, we find that the inmates’ equal protection rights were not violated by the Board’s application of the old parole laws to those sentenced for crimes committed before the effective date of SDCL 24-15A-38.

[¶ 26.] Affirmed.

[¶ 27.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . SDCL 24-15-8 provides in relevant part:
      When an inmate becomes eligible for consideration for parole, he shall be called before the Board of Pardons and Paroles to personally present his application for parole .... The board may issue an order to the Department of Corrections of the penitentiary that the inmate shall be paroled if it is satisfied that:
      (1) The inmate has been confined in the penitentiary for a sufficient length of time to accomplish his rehabilitation;
      (2) The inmate will be paroled under the supervision and restrictions provided by law for parolees, without danger to society; and
      (3) The inmate has secured suitable employment or beneficial occupation of his time likely to continue until the end of the period of his parole in some suitable place within or without the state where he will be free from criminal influences.
      Neither this section nor its application may be the basis for establishing a constitutionally protected liberty, property or due process interest in any prisoner.

      . Although this is not an appeal issue, we express our concern with the trial court’s action in appointing counsel for these prisoners at public expense. There was no authority for such action. Under our statutory scheme, a judge has the prerogative to appoint counsel for a defendant in a criminal case (SDCL 23A-40-6), a petitioner in a habe-as corpus proceeding (SDCL 21-27-4), a minor in a juvenile delinquency adjudication (SDCL 26-7A-31), a child and its parents in an abuse and neglect case (SDCL 26-7A-54 and 26-8A-18) and a mentally ill person in an involuntary commitment proceeding (SDCL 27A-11A-7). There is no statutory authority for a judge to appoint counsel to represent a plaintiff in a civil appeal from a parole board decision, such as in the cases presented here.
      The ramification of the court’s decision to appoint counsel in this case is particularly important because Bon Homme County, as the site of Springfield State Prison, has a disproportionately large prison population (735 inmates as of January 31, 1999) in comparison to its general population of approximately 7,000. To require Bon Homme County to bear the financial burden imposed by court-appointed counsel fees for the inmates at Springfield for this type of expenditure is extremely unfair and inappropriate.
      However, now that the court has appointed counsel, the only fair resolution is to direct that the plaintiffs’ legal costs be apportioned among the counties from which the prisoners were sentenced. (It does not appear that any of the prisoners in this litigation were sentenced from Bon Homme County). Specifically, the legal fees of attorney Michael Bor-nitz, who represented Bryan Holm, should be apportioned to the county from where he was sentenced. Similarly, the fees of attorney Paul Boschma, who represented the other twelve plaintiffs, should be apportioned among their sentencing counties.
      The apportionment of counsel fees in this situation is consistent with our treatment of court-appointed counsel costs in other instances where such appointments are statutorily prescribed. To hold otherwise would be inappropriate, unfair and unduly burdensome to Bon Homme County, and it would set a costly precedent for future prisoner suits.

      .“Contested case” is defined as:
      [A] proceeding, including rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing but the term does not include the proceedings relating to rule making other than rate-making, proceedings related to inmate disciplinary matters as defined in § 1-15-20, or student academic or disciplinary proceedings under the jurisdiction of the Board of Regents or complaints brought by students attending institutions controlled by the Board of Regents about their residency classifica-lion under §§ 13-53-23 to 13-53-41, inclusive!.]
      SDCL 1-26-1(2).

      . SDCL 24-2-12 provides in part: "The disciplinary board, established by rules promulgated by the Department of Corrections, may take away time granted for good conduct ... for violating any of the rules or policies of the Department of Corrections, following a hearing and subject to the approval of the warden.”

      . SDCL 24-15A-3 states in part: "The provisions of §§ ... 24-15-8 ... do not apply to any person sentenced to prison for a crime committed after July 1, 1996.”

      . SDCL 24-15A-38 states:
      Each inmate shall be released from incarceration to parole supervision, without a hearing with the board, at the time of the inmate’s initial parole date, if the inmate has substantively met the requirements of the individual program directive established by the department, agreed to the conditions of supervision and has an approved parole release plan.

      . The inmates also complain that "by rule and policy, parole directives” are required for "all inmates,” including those sentenced for crimes committed before the effective date of the new parole laws. The "old law” inmates feel they are compelled to follow the new law’s strictures without obtaining its benefits. As parole is at least partly dependent on an inmate’s rehabilitation, the Board can reasonably demand that inmates accomplish some form of self-improvement. Using the same "program directives” for all inmates is not a form of discrimination, but an equal opportunity for the "old law” inmates to demonstrate their eligibility for parole.

      .Article VI, Section 18 of the South Dakota Constitution states: "No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.”
      The Equal Protection Clause of the United States Constitution provides:
      No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

        U.S. Const, amend. XIV, § 1.

      . The Legislature could also have concluded that the ex post facto clauses of the United States Constitution, U.S. Const art I, § 10, and the South Dakota Constitution, S.D. Const, art. VI, § 12, may prevent applying the new parole rules to inmates sentenced before the effective date of the new law.

      . The inmates seek advice, in the event their challenge to the parole system fails, on the proper procedure to obtain access to the courts. Advisory opinions are given in rare, constitutionally sanctioned cases. S.D. Const. art. V, § 5. We decline to render opinions serving only to establish precedent for anticipated disputes. Boesch v. City of Brookings, 534 N.W.2d 848, 850 (S.D.1995).