author: LANSING, Judge.

text:
    In the Matter of the Appeal of the Exclusion of Edward MOLNAR from Canterbury Park.
    No. A05-2261.
    Court of Appeals of Minnesota.
    Sept. 5, 2006.

      Howard S. Carp, David G. Johnson, Bor-kon, Ramstead, Mariani, Fishman & Carp, Ltd., Minneapolis, MN, for relator Edward Molnar.
    Mike Hatch, Attorney General, Gregory P. Huwe, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Racing Commission.
    Mark A. Jacobson, Lindquist & Vennum, P.L.L.P., Minneapolis, MN, for respondent Canterbury Park.
    Considered and decided by LANSING, Presiding Judge; RANDALL, Judge; and WILLIS, Judge.
   OPINION

LANSING, Judge.

Edward Molnar appeals from an order of the Minnesota Racing Commission, upholding Canterbury Park’s decision to exclude him permanently from its card club. Molnar argues that Canterbury Park violated his constitutional and statutory right to due process in its temporary-exclusion decision and that the racing commission abused its discretion on evidentiary issues and by upholding Canterbury Park’s permanent-exclusion decision. Molnar also maintains that the commission exceeded its authority by affirming his permanent exclusion rather than imposing a fine. Because we conclude that Canterbury Park did not violate Molnar’s due process rights and that the Minnesota Racing Commission did not err or abuse its discretion, we affirm.

FACTS

Canterbury Park is a privately owned corporation licensed by the Minnesota Racing Commission to conduct live racing. The commission has also authorized Canterbury Park to operate a card club on its premises. Edward Molnar has been a regular patron of the card club since it opened in 2000. He also races and houses quarter horses at Canterbury Park.

The Card Club

The operation of the card club is regulated by the racing commission. To obtain authorization to operate the card club, Canterbury Park formulated a plan of operation that provides the “necessary details for conducting card playing activities.” Minn.Stat. § 240.30, subd. 6 (2004). Section VIII of this plan states Canterbury Park’s intention to offer patrons a “clean, friendly and pleasant place to play cards” and reserves Canterbury Park’s right to exclude from the card club any person who engages in “[t]alk or action demeaning of other players or employees.”

Canterbury Park also requires all patrons to follow the “California Games House Rules,” which prohibit, among other things, “[o]ffensive or abusive language.” The commission’s rules additionally require patrons to comply with a security officer’s orders and not to interfere in the performance of their official duties. Minn. R. 7897.0100, subp. 7 (2005). And Canterbury Park is authorized by statute to exclude from the card club any person who violates “any state law or commission rule or order or who is a threat to racing integrity or the public safety.” Id. § 240.27, subd. 5 (2004).

Molnar’s First Exclusion

In August 2003, Canterbury Park excluded Molnar from the card club for nine months, based on allegations that he had inappropriately touched female employees. An employee reported that Molnar came up behind her, put his arm around her neck and whispered into and licked her ear. A card dealer also reported that Molnar had come up behind her and grabbed her around the waist. In response to these reports, a pit manager told Molnar that touching female employees was inappropriate and that Canterbury Park had a responsibility to take harassment accusations seriously.

A short time later, another card dealer reported that Molnar came up behind her and poked her in the side. She also reported a previous contact in which Molnar had come up behind her and rubbed her shoulders. Following this report, the pit manager told Molnar that he had received another complaint of inappropriate touching and asked him to leave.

In response to these reports, Canterbury Park appointed an exclusionary committee to review the allegations against Molnar and decide on an appropriate course of action. The committee investigated the reports and decided to exclude Molnar from the card club for nine months. The exclusion notice sent to Molnar indicated that Molnar could seek review of the committee’s decision by writing to the security department. It also indicated that further inappropriate behavior would not be tolerated and would result in permanent exclusion. Molnar did not appeal to the security department or to the Minnesota Racing Commission, but instead inquired by phone, e-mail, and regular mail about the reason for his exclusion. In response to Molnar’s inquiry, Canterbury Park sent Molnar a letter on December 30, 2003, stating that their “investigation gave [them] reasonable cause to believe that [Molnar] violated the rights of one of [Canterbury Park’s] employees by touching her inappropriately.” But Canterbury Park did not respond to Molnar’s repeated requests for more specific information about the incident that led to his exclusion.

Molnar’s Second Exclusion

Molnar returned to the club in May 2004. In December, several employees complained that Molnar was making lewd comments, using profanity, making obscene gestures for hit signals, and covering his bets while giving the stay signal. The floor person and the assistant pit manager asked Molnar to stop this behavior. But when the assistant pit manager made this request, Molnar became orally combative. He was similarly combative when the assistant food-and-beverage manager took away his drink and told him that he would not be served more alcohol. And, when asked to leave the card club, Molnar refused to comply with a security officer’s request to confirm his identification.

Canterbury Park convened its exclusionary committee again, and the committee determined to exclude Molnar permanently from the card club. This time, Molnar appealed the committee’s decision to the racing commission. The commission designated an Exclusion Appeal Panel to hear the appeal.

In June 2005 the appeal panel, which consisted of three commission members, held an evidentiary hearing. The panel continued the hearing after Molnar requested an opportunity to view Canterbury Park’s surveillance videotapes and more time to prepare his case. When the hearing reconvened, both parties called witnesses, submitted documentary evidence, and presented oral argument.

The appeal panel issued findings, conclusions, and recommendations. The panel concluded that Molnar engaged in “unacceptable and inappropriate behavior on several occasions during 2003 and 2004,” and that some of his behavior constituted sexual harassment and violated the law and Canterbury Park policies. The panel also concluded that Molnar failed to cooperate with security personnel. Based on these determinations, the panel recommended upholding Molnar’s permanent exclusion from the card club. The panel also recommended that Canterbury Park be required to (1) post more prominently the card club’s rules of conduct; (2) rename the “California Games House Rules,” which govern appropriate behavior in the card club, to “Canterbury Card Club House Rules”; (3) add to the house rules a provision expressly prohibiting sexual harassment of patrons and employees; (4) make the plan of operation more accessible to the public; and (5) include the specific reasons for an exclusion in the notice of exclusion. The appeal panel found that, while Canterbury Park “did a less than perfect job” of alerting Molnar to the basis for his initial, temporary exclusion from the club, Molnar’s exclusion was “procedurally adequate.”

Molnar filed written objections to the appeal panel’s findings, conclusions, and recommendations. The racing commission affirmed the panel’s decision and issued an order upholding Molnar’s permanent exclusion from the card club. This appeal follows.

ISSUES

I. Did Canterbury Park violate Molnar’s constitutional and statutory right to due process by temporarily excluding him from the card club without adequate notice and an opportunity for a hearing?

II. Are Canterbury Park’s rules of conduct and plan-of-operation provisions void for vagueness?

III. Did the racing commission exceed its authority by affirming Molnar’s exclusion from the card club instead of imposing a fine?

IV. Does the record support Molnar’s claim that Canterbury Park destroyed or refused to provide him exculpatory videotapes depicting the behavior that formed the basis for his exclusion?

V. Is the racing commission’s order affirming Molnar’s exclusion supported by substantial evidence in the record as a whole?

ANALYSIS

We review an agency decision to determine whether it violates constitutional provisions, exceeds the agency’s jurisdiction or statutory authority, is made through unlawful procedure, is unsupported by substantial evidence in view of the entire record, or is arbitrary and capricious. Minn.Stat. § 14.69 (2004). Judicial review presumes the correctness of an agency decision. Gramke v. Cass County, 453 N.W.2d 22, 25 (Minn.1990). The party seeking review thus bears the burden of establishing that the decision violates one or more of the provisions of section 14.69. Markwardt v. State, Water Res. Bd., 254 N.W.2d 371, 374 (Minn.1977).

Appellate courts retain the authority to review de novo an agency’s determination of the meaning of words in a statute. In re Denial of Eller Media Co.'s Applications for Outdoor Adver. Device Permits, 664 N.W.2d 1, 7 (Minn.2003). We will not defer to an agency’s interpretation of its own rule if its interpretation is contrary to its plain meaning. Citizens Advocating Responsible Dev. v. Kandiyohi County Bd. of Comm’rs, 713 N.W.2d 817, 827 (Minn.2006). We accord deference, however, to an agency’s expertise that is exercised within the scope of its authority, its findings on conflicting testimony, the weight given to expert testimony, and the inferences reasonably drawn from the testimony. In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn.2001).

I

Molnar argues that Canterbury Park violated his constitutional and statutory right to due process by temporarily excluding him from the card club in August 2003 without adequate notice and an opportunity for a hearing. We disagree.

Constitutional Violation

The Fourteenth Amendment protects liberty and property rights against state action, but offers no protection against private conduct. Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982); Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948) (stating that Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful”); Coller v. Guardian Angels Roman Catholic Church, 294 N.W.2d 712, 716-17 (Minn.1980) (holding that private-school teacher who directed state-sponsored program had no due process claim in absence of state action). Because Canterbury Park is a privately owned corporation, it is not ordinarily subject to the restrictions of the Fourteenth Amendment.

Molnar argues that Canterbury Park is subject to the Fourteenth Amendment because it is extensively regulated by, or in a symbiotic relationship with, the state. On this record, we conclude otherwise.

State Regulation

Private conduct may be subject to governmental constraints when it is regulated by the state and “there is a sufficiently close nexus between the [s]tate and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the [s]tate itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). No precise formula exists for determining when private conduct may be considered state action. Gilmore v. City of Montgomery, Ala., 417 U.S. 556, 574, 94 S.Ct. 2416, 2427, 41 L.Ed.2d 304 (1974). But a well-settled principle indicates that, for Fourteenth Amendment purposes, the extensive regulation of a private business is alone insufficient to transform private conduct into state action. See, e.g., Jackson, 419 U.S. at 350, 95 S.Ct. at 453 (holding that customer of extensively regulated private utility did not have due process right to notice and hearing before termination of her service). The state is responsible for private conduct only “when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [s]tate.” Blum, 457 U.S. at 1004, 102 S.Ct. at 2786 (stating that mere authorization or approval of private initiative is insufficient to constitute state action). This requirement assures that “constitutional standards are invoked only when it can be said that the [s]tate is responsible for the specific conduct of which the [litigant] complains.” Id. (emphasis in original).

In evaluating whether extensive state regulation of a private entity establishes a nexus that would fuse the entity’s conduct and state action, we recognize a distinction between a private entity’s request for approval of a particular practice and a regulatory body’s requirement of the practice. Jackson, 419 U.S. at 355, 95 S.Ct. at 456. Approval of a private entity’s practice when the regulatory body “has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the [private entity] and approved by the [regulatory body] into ‘state action.’ ” Id. at 357, 95 S.Ct. at 456-57. Thus, when the initiative for a practice comes from a private entity and not the state, the private entity’s choice to implement a practice allowed by state law does not amount to state action for purposes of the Fourteenth Amendment. Id.

The racing commission approved Canterbury Park’s plan of operation, and Canterbury Park is statutorily authorized to exclude patrons who threaten racing integrity or the public safety. See MinmStat. § 240.27, subd. 5 (2004) (providing grounds for exclusion of persons from licensed race tracks). But the racing commission did not endorse the proposed practice by ordering it. The racing commission did not expressly scrutinize or approve the exclusion provision in the plan of operation, but merely authorized Canterbury Park to follow the permissible exclusionary practice. See MinmStat. § 240.30, subd. 6 (2004) (requiring licensees to submit for approval plan of operation that includes “all necessary details for conducting card playing activities,” but not requiring exclusion policy). Ordinary authorization or approval of a private initiative is insufficient to convert private conduct into state action. Blum, 457 U.S. at 1004-05, 102 S.Ct. at 2786 (“Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the [s]tate responsible for those initiatives under the terms of the Fourteenth Amendment.”); see also Rendell-Baker v. Kohn, 457 U.S. 830, 840-43, 102 S.Ct. 2764, 2771-72, 73 L.Ed.2d 418 (1982) (holding that regulation giving state agency power to approve private school’s hiring decisions is insufficient to transform school’s decisions into state action).

In addition to not endorsing the practice, the state did not initiate Molnar’s exclusion. The Minnesota Racing Commission did not encourage Canterbury Park to exclude Molnar or otherwise participate in the exclusion decision. Canterbury Park’s decision to exclude Molnar was made by Canterbury Park employees based on business standards established by Canterbury Park, not the state. See Blum, 457 U.S. at 1008, 102 S.Ct. at 2788 (holding that because decision of private nursing home “turn[ed] on medical judgments made by private parties according to professional standards that are not established by the [s]tate,” decision did not amount to state action despite extensive regulation by state). The primary motivation to exclude Molnar was not a state interest, but was instead Canterbury Park’s economic and private interest in maintaining a safe business environment and in preventing sexual harassment.

For these reasons, we conclude that Canterbury Park’s exercise of a statutorily authorized choice to exclude Molnar does not equate to state action for Fourteenth Amendment purposes. The state’s regulatory scheme in this case, however detailed, did not make the state a partner in Canterbury Park’s exclusion decisions. Neither general involvement by the state nor extensive regulation is sufficient to support a finding of state action. Scott v. Eversole Mortuary, 522 F.2d 1110, 1115 (9th Cir.1975) (holding that extensive regulation of private entity does not convert private entity’s conduct into state action). Instead, the evidence must show that the state affirmatively supported the private conduct challenged. Musso v. Suriano, 586 F.2d 59, 62 (7th Cir.1978). The evidence in this case does not show that the state affirmatively supported Canterbury Park’s decision to exclude Molnar.

Symbiotic Relationship

Molnar also suggests that his exclusion from Canterbury Park amounts to state action because Canterbury Park and the state have a symbiotic relationship. But Molnar has not established that Canterbury Park and the state have a symbiotic relationship. A symbiotic relationship between a private entity and the state exists when the state has “so far insinuated itself into a position of interdependence with [the private entity] that it must be recognized as a joint participant in the challenged activity.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (1961). In analyzing whether a symbiotic relationship existed between a state agency and a private entity, we consider whether the private entity benefits directly from state action, whether the state agency, in turn, benefits from the private entity’s conduct, and whether the state agency was eompli-cit in the objectionable policy based on its failure to intervene. Id. at 728-25, 81 S.Ct. at 861. Thus, when the state elects to “place its power, property and prestige behind” a private entity’s action, the action “cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.” Id. at 725, 81 S.Ct. at 862.

Molnar has not established that the state so far insinuated itself into a position of interdependence with Canterbury Park that it must be recognized as a joint participant in Canterbury Park’s exclusion decisions. Molnar does not allege that Canterbury Park operates under a lease with the state, on public land, or in buildings owned and maintained by the state and dedicated to a public purpose. Nor does he allege that there is a mutually beneficial financial relationship between the state and Canterbury Park comparable to that in Burton. Like other corporations, Canterbury Park is subject to taxation by the state. See Minn.Stat. § 240.15 (2004) (providing for imposition of tax). And card-club revenue is subject to extensive regulations. See id. § 240.135 (2004) (requiring licensees to set aside certain amounts for designated purposes). But Molnar has not established, and the record does not reflect, a mutually beneficial financial relationship. See Brennan v. Mineapolis Soc’y for Blind, Inc., 282 N.W.2d 515, 528 (Minn.1979) (determining that mutually conferred benefits between state and private entity did not establish symbiotic relationship). The record does not therefore support Molnar’s claim that Canterbury Park and the state had a symbiotic relationship.

Because Canterbury Park, as a private corporation, was not constitutionally required to provide Molnar with a hearing before excluding him from the card club, we find no merit in Molnar’s argument that Canterbury Park violated his constitutional right to due process.

Statutory Violation

Relying on Minnesota Statute section 240.27, subdivisions 2 and 5 (2004), Molnar also argues that he was statutorily entitled to notice and a hearing before Canterbury Park first excluded him from the card club in 2003. But Molnar’s claim is inconsistent with the plain meaning of the statute.

Subdivision 2 of the statute governs exclusion orders made by the commission, not the licensee. Minn.Stat. § 240.27, subd. 2 (providing that an “order to exclude a person from any or all licensed racetracks in the state must be made by the commission at a public hearing of which the person to be excluded must have at least five days’ notice” (emphasis added)). Thus, by its terms, the statute does not apply to Canterbury Park’s decision to exclude Molnar in 2003. Although subdivision 5 recognizes that a licensee may exclude a person from its premises, it requires a hearing only on appeal to the racing commission. Id., subd. 5 (providing that person excluded by licensee from racetrack premises “must be given a public hearing on the appeal upon request”). Subdivision 5 therefore did not require Canterbury Park to provide Molnar with a hearing. And because Molnar did not appeal his initial exclusion to the commission, the commission had no statutory obligation to give Molnar a public hearing in connection with his initial exclusion.

Molnar argues that, because his first exclusion was a factor in the racing commission’s decision to exclude him from the card club permanently, Canterbury Park violated his due process rights by failing to inform him that he had a right to a hearing on appeal. But Molnar has provided no authority to support his claim that Canterbury Park had a duty to advise him of his right to appeal the temporary exclusion.

II

Molnar next argues that his exclusion from the card club violated his due process rights because the rules of conduct he was alleged to have violated were unconstitutionally vague. Specifically, Molnar claims that Canterbury Park’s rules prohibiting “offensive or abusive language” and “[t]alk or action demeaning of other players or employees” were so ambiguous that they failed to give patrons reasonable notice of what conduct they prohibited and caused them to “guess at appropriate conduct.” For two reasons, we disagree.

First, the vagueness doctrine applies only to legislative enactments. See Ronald D. Rotunda & John Nowak, Treatise on Constitutional Law — Substance & Procedure § 20.9 (2d ed. 1992) (explaining vagueness doctrine). The doctrine is embodied in the Due Process Clause of the Fourteenth Amendment, which “requires the government to give notice to individuals of government actions which would deprive those individuals of a constitutionally protected life, liberty, or property interest.” Id. § 17.8 (emphasis added); see Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303, 1308 (8th Cir.1997). Molnar does not challenge as vague the statute regulating the exclusion of persons from Canterbury Park; instead, he limits his challenge to Canterbury Park’s house rules and section VIII of the plan of operation, neither of which is a legislative enactment. Unlike the state, Canterbury Park, as a private business, is not constitutionally required to give notice to patrons of actions that might deprive them of a constitutional right. Accordingly, the house rules and the plan of operation are exempt from the vagueness doctrine.

Second, even if the vagueness doctrine applied, vagueness challenges under the Due Process Clause must be analyzed as applied to the facts of the case at issue and “may be overcome in any specific case where reasonable persons would know that their conduct is at risk.” Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857, 100 L.Ed.2d 372 (1988). The record in this case reflects that Molnar knew that his conduct was at risk. Molnar admitted that his behavior was “improper,” and the record shows that he was repeatedly warned not to touch female employees and not to make remarks that were sexual or lewd. Molnar also admitted that he had seen the house rules but claims that he did not pay attention to them because they were entitled “California Games House Rules.” Although the commission found the title of the house rules to be misleading and ordered Canterbury Park to rename the rules, the commission rejected Molnar’s claim that he did not have notice that his conduct was improper. The commission’s finding was based on credibility determinations and is therefore entitled to deference. See Blue Cross & Blue Shield, 624 N.W.2d at 278 (stating that credibility determinations, weighing of evidence, and drawing of legitimate inferences from facts are functions within discretion of fact-finder and, ordinarily, will not be overturned). Regardless of whether Molnar knew that his conduct was at risk, his vagueness challenge fails because the standard for overcoming a vagueness challenge is a reasonable-person standard. Even without the repeated warnings, a reasonable person in Molnar’s position would have known that his conduct was at risk. We therefore are not persuaded by Molnar’s vagueness challenge.

Ill

Relying on the interplay between Minnesota Statutes sections 240.22 and 240.30, subdivision 7(c) (2004), Molnar next argues that the commission exceeded its authority by excluding him from the card club instead of merely fining him. These sections do not, however, restrict a licensee’s authority to exclude patrons from its premises.

Section 240.22 authorizes the commission to establish a schedule of civil fines for violations of horse-racing laws or the commission’s rules and to impose a fine from this schedule on a licensee. Minn. Stat. § 240.22 (2004). Section 240.30, subdivision 7(c), provides that a “violation of a law or rule relating to card club operation or a violation of an approved plan of operation is deemed to be a violation of law or rule for purposes of section 240.22.” Read together, these sections provide that violations of a plan of operation or of laws or rules governing card-club operation may result in the imposition of a fine on the licensee.

Molnar argues that, by equating violations of an operational plan or card-club laws or rules to violations “for purposes of section 240.22,” subdivision 7(c) grants Canterbury Park only the authority to fine patrons for those violations. For four reasons, we do not agree. First, the plan of operation and card-club operation are the responsibility of the licensee; patrons cannot, by violating either, subject themselves to a fine under subdivision 7(c). Second, section 240.22 expressly authorizes the commission to fine a licensee, not a patron of a licensee. Third, even if subdivision 7(c) applied to patrons of a licensee, the mere fact that it subjects certain violations to a fine does not necessarily mean that it precludes exclusion as a remedy for the same violations. Finally, Molnar’s proposed construction of subdivision 7(c) is inconsistent with Minnesota Statute section 240.27, subdivision 5, which unambiguously authorizes licensees to exclude from its premises any “person who is in violation of any state law or commission rule or order or who is a threat to racing integrity or the public safety.” See Minn.Stat. § 645.16 (2004) (providing that statute should be interpreted to give effect to all its provisions). The commission did not therefore exceed its authority by upholding Canterbury Park’s exclusion decision instead of merely fining Molnar.

IV

Molnar also argues that the racing commission abused its discretion by considering allegations of improper behavior despite Molnar’s claim that Canterbury Park destroyed or refused to provide Molnar videotape evidence depicting the alleged behavior. The record does not, however, support Molnar’s claim.

The exclusion-appeal panel issued a subpoena directing Canterbury Park to provide surveillance videotapes of the events that occurred in August 2003 and December 2004. Canterbury Park provided a complete videotape of the December events. But Molnar claims that Canterbury Park provided only an edited version of two of the incidents alleged to have occurred in August 2003. According to Molnar, “other video tape[s] [were] in the care, custody and control only of Canterbury Park and its employees. Either Canterbury Park violated the terms of the subpoena or destroyed evidence which likely would have been exculpatory.” Molnar argues that because the videotape Canterbury Park provided was exculpatory, the court can reasonably assume that the videotape it did not provide would have been exculpatory too. We disagree.

Although Molnar raises this issue on appeal, he did not raise it at the hearing, in his objections to the panel’s findings and conclusions, or during oral argument before the commission. The issue, therefore, is not properly before this court. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating that appellate courts generally do not consider issues not raised in proceedings below). Even if the issue were properly before this court, the record contains no evidence that any videotapes existed other than those that Canterbury Park submitted at the time of the hearing, that Canterbury Park destroyed or refused to produce those tapes, or that the tapes would have been exculpatory. Molnar’s claim is therefore without merit.

Y

Finally, Molnar argues that the racing commission’s order upholding his permanent exclusion from Canterbury Park is not supported by substantial evidence in the record as a whole. We conclude otherwise.

The racing commission upheld Canterbury Park’s decision to exclude Molnar from its premises permanently based on a determination that Molnar (1) engaged in unacceptable and inappropriate behavior, some of which violated Canterbury Park policies, the Minnesota Human Rights Act, and Title VII of the Civil Rights Act of 1964; (2) failed to cooperate with security personnel; and (3) constituted a threat to public safety.

The commission determined that Molnar violated Canterbury Park’s policies against “abusive language” and conduct “demeaning of other players or employees,” and the record supports the commission’s determination. The record shows that, in August 2003, a waitress complained that Molnar had approached her from behind, put his arm around her shoulder, and whispered into and then licked her ear. The incident was recorded on surveillance videotape, which the commission reviewed in making its decision to uphold Molnar’s exclusion.

A casino dealer testified that, while she was suiting cards, Molnar came by and grabbed her around the waist. She also stated that on a previous occasion Molnar rubbed her shoulders and that, despite requests that he not do so, Molnar made sexual remarks to her and to other female employees. Another dealer testified that Molnar put his hands on her sides and moved his hands upward by wiggling his fingers and palms. She also stated that she had seen Molnar touch other employees inappropriately.

Another employee, who acts as both a supervisor and a dealer, similarly testified that in 2003 Molnar kissed her cheek. She stated that in 2004, she asked to be transferred to a different area because Molnar kept asking her to come around the table and give him a hug. She also stated that Molnar had a “really vulgar mouth,” and she provided examples of Molnar’s sexual comments.

Additionally, a pit manager testified that he spoke to Molnar about the complaint he had received from the dealers and told him that Canterbury Park needed to take sexual-harassment complaints seriously. .Another pit manager testified that Molnar frequently made lewd comments and that he had received complaints from dealers about inappropriate touching. The pit manager also stated that Molnar was orally abusive and hostile when he was told that his behavior was not appropriate. The manager concluded that Molnar’s behavior jeopardized gaming integrity. Finally, a security officer testified that Molnar refused his request for identification.

The record amply supports the racing commission’s determination that Molnar’s behavior was inappropriate, threatened public safety, and justified Canterbury Park’s decision to permanently exclude him from the card club.

We also note that Canterbury Park’s action was justified by its need to comply with federal and state anti-discrimination law. The Minnesota Human Rights Act (MHRA) prohibits unfair discriminatory practices in employment, housing, public accommodations, public services, and education. Minn.Stat. §§ 363A.08-.13 (2004). And Title VII of the Civil Rights Act (Title VII) prohibits discrimination in employment. Because Molnar is a casino patron rather than an employer, his actions would not directly invoke the provisions of either the MHRA or Title VII. But Canterbury Park could nonetheless be liable under Title VII for Molnar’s sexually harassing conduct. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073-74 (10th Cir.1998) (“An employer who condones or tolerates the creation of [a hostile work] environment should be held liable regardless of whether the environment was created by a co-employee or a non-employee, since the employer ultimately controls the conditions of the work environment.”); Powell v. Las Vegas Hilton Corp., 841 F.Supp. 1024, 1028 (D.Nev.1992) (stating that employer may be held liable under Title VII for sexual harassment of employee by nonem-ployees, including customers, if employer knows or should have known of conduct and fails to take immediate and appropriate corrective action).

After employees complained about Molnar’s inappropriate touching and sexually explicit comments, Canterbury Park had a duty to investigate and take appropriate action to avoid liability under Title VII. Molnar was repeatedly warned that touching female employees was inappropriate and exposed the club to liability for sexual harassment. The commission could reasonably conclude that Canterbury Park’s actions were necessary to ensure compliance with federal and state anti-discrimination law.

DECISION

Canterbury Park did not violate Molnar’s constitutional or statutory right to due process when it excluded him from the card club in August 2003. Nor did the commission abuse its authority or its discretion by permanently excluding Molnar rather than merely fining him or by considering all allegations of improper behavior. The commission’s order is supported by the evidence in the record.

Affirmed.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice. MARING, Justice, SANDSTROM, Justice,

license: Public Domain

text:
    2006 ND 177
    CITY OF FARGO, Plaintiff and Appellee, v. Eldin Nino KOMAD, Defendant and Appellant.
    No. 20050452.
    Supreme Court of North Dakota.
    Aug. 16, 2006.

      Tristan J. Van de Streek, City Prosecutor, Fargo, N.D., for plaintiff and appellee.
    Jesse N. Lange (argued), Aaland Law Office, Fargo, N.D., and L. Patrick O’Day Jr. (on brief), Fargo, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Eldin Komad appealed from a district court judgment of conviction for theft alleging his constitutional and statutory right to be present at trial was violated by the district court. Komad was charged with theft by the City of Fargo. Komad initially appeared and was tried and convicted in Fargo Municipal Court. Komad appealed his municipal court conviction to the district court. Komad was not present on his scheduled trial date in the district court. The district court conducted Ko-mad’s trial despite his absence. Komad was found guilty of the theft crime. We reverse and remand.

I

[¶ 2] On December 12, 2005 at 1:30 p.m., the date scheduled for trial in the district court, Komad’s attorney was present but Komad was not. Komad’s attorney explained to the judge that Komad contacted his attorney that day to explain he was stranded in Chicago due to bad weather and he was waiting for a flight. Komad’s attorney explained Komad would not be in Fargo until 4 p.m. that day.

[¶ 3] Due to Komad’s absence, his attorney requested a continuance. The City opposed the continuance arguing Komad’s excuse was false. The City asked that a bench warrant be issued. The judge listened to the request, denied the continuance and asked if it would be appropriate to dismiss the appeal. The City then moved to dismiss Komad’s appeal. The district court judge stated the trial would proceed or the appeal would be dismissed. Komad’s attorney stated he had no choice but to proceed with the trial despite Ko-mad’s absence. The bench trial proceeded and Komad was convicted of the theft charge. Komad asks this Court to reverse his conviction and remand the case for a new trial.

II

[¶ 4] Section 40-18-19, N.D.C.C., allows a defendant to appeal a municipal court judgment of conviction to the district court “in accordance with the North Dakota Rules of Criminal Procedure.” N.D.C.C. § 40-18-19 (2005 Supp.). When a defendant appeals a municipal court conviction to the district court, the action is transferred “to such district court for trial anew.” Id.; N.D.R.Crim.P. 37(j); City of Grand Forks v. Lamb, 2005 ND 103, ¶ 7, 697 N.W.2d 362. “The district court does not review the record and decision of the municipal court, but holds an entirely new trial and independently determines whether the defendant has violated the ordinance.” Lamb, at ¶ 7; see City of Bismarck v. Uhden, 513 N.W.2d 373, 380 (N.D.1994) (stating that although the appeal procedure under N.D.C.C. § 40-18-19 is “cumbersome and duplicative,” appeals must be for trial anew because municipal courts are not courts of record).

Ill

[¶ 5] The right of a defendant to be present at trial is rooted in the Confrontation Clause of the Sixth Amendment to the United States Constitution. City of Mandan v. Baer, 1998 ND 101, ¶ 8, 578 N.W.2d 559. The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him” in all criminal prosecutions. U.S. Const. Amend. VI; Baer, at ¶ 8. We have a similar guarantee in the North Dakota Constitution: “In criminal prosecutions in any court whatever, the party accused shall have the right ... to appear and defend in person.” N.D. Const, art. I, § 12; Baer, at ¶ 8. “One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

[¶ 6] “North Dakota has long recognized the constitutional right of a defendant to be personally present during the whole of a trial.” Baer, 1998 ND 101, ¶ 9, 578 N.W.2d 559. The right to be present is not absolute and may be voluntarily waived by the defendant. N.D.R.Crim.P. 43(c)(1) and (2); Baer, at ¶ 9. The right may also be lost by a defendant’s unruly and disruptive behavior. N.D.R.Crim.P. 43(c)(3); Baer, at ¶ 9.

[¶ 7] Here, however, Komad did appear in the municipal court for trial and the current proceeding is an appeal from the conviction in municipal court. In City of Minot v. Davis, 84 N.W.2d 891, syll. 1 (N.D.1957), this Court held: “A trial anew in district court, by virtue of a right of appeal and a statute directing the procedure upon appeal, is not the exercise of original jurisdiction by the district court.” We conclude Komad’s constitutional right to be present at trial was met when he appeared and was tried in municipal court and that there is no constitutional right to be present for trial anew on appeal.

IV

[¶ 8] However," in addition to the constitutional guarantee, N.D.R.Crim.P. 43(a), one of the rules of criminal procedure made applicable to the appeal by N.D.C.C. § 40-18-19 requires a defendant to be present at the initial appearance, the arraignment, the plea, every stage of the trial, and sentencing. The defendant waives the right to be present at trial under N.D.R.Crim.P. 43(c) if, after being initially present at trial or having pleaded guilty, the defendant is voluntarily absent or persists in disruptive conduct justifying the removal of the defendant from the courtroom. Rule 43(b), N.D.R.Crim.P., states the defendant need not be present for a misdemeanor offense if the defendant gives written consent for arraignment, plea, trial, and sentencing to occur in the defendant’s absence, the proceeding involves a conference or hearing on a question of law, or the proceeding involves a sentence correction or reduction.

[¶ 9] In construing a statute whose language is clear, certain and unambiguous, the only duty of the court is to give effect to legislative intent expressed therein and, if the statute does not violate some provision of the constitution, the court must give effect to the law. Brenna v. Hjelle, 161 N.W.2d 356 (N.D.1968). We will not disregard the letter of the statute under the pretext of pursuing its spirit and only when the statute is ambiguous on its face will we resort to legislative intent. Douville v. Pembina County Water Resource Dist., 2000 ND 124, 612 N.W.2d 270. We apply the same settled principle of construction to the rules we adopt as we do to the statutes enacted by our co-equal branch of government.

[¶ 10] Here, the statute unambiguously provides that an appeal from a municipal court judgment of conviction to the district court is to be “in accordance with the North Dakota Rules of Criminal Procedure.” There is no ambiguity in those words. Although ordinarily judicial procedure is for the judicial branch to determine, N.D. Const., Art. VI, § 3. Section 8 of the Constitution provides that the “district court shall have ... such appellate jurisdiction as may be provided by law or by rule of the supreme court.” Thus the judicial and legislative branches share authority when establishing the procedure for the appellate jurisdiction of the district court.

[¶ 11] The Legislature exercised its authority in authorizing an appeal from municipal court to the district. While there may be no constitutional requirement for an appeal in these instances in which the defendant has not chosen to remove the action to district court in order to have it tried by a jury, see N.D.C.C. § 40-18-15.1, once the Legislature has authorized the right to appeal it becomes the obligation of the judicial branch to assure that the right of the defendant to that appeal is protected. The legislative grant of the right of an appeal from municipal court contains two components, one, that the appeal is to take the form of a “trial anew” and the second is that it be taken in accordance with the North Dakota Rules of Criminal Procedure. The “trial anew” provision recognizes that municipal courts are not courts of record, see N.D.C.C. § 27-01-01, and there is no record for the district court to review on appeal. The second component of the statutory right to appeal is that it be taken in accordance with the North Dakota Rules of Criminal Procedure. Rule 37, N.D.R.Crim.P., entitled “Appeal As Of Right To District Court; How Taken” specifies the procedure in taking the appeal but it does not specify the procedure of the “trial anew” once the appeal is taken. The proceedings at the actual trial are necessarily found in the other rules of criminal procedure.

[¶ 12] There is no limitation in the legislation as to the Rules of Criminal Procedure applicable to the appeal from municipal court nor has the judicial branch supplied any such limitations. Rule 43 of the North Dakota Rules of Criminal Procedure, entitled “Defendant’s Presence” and found under the heading “General Provisions” therefore applies to appeals from municipal courts as well as to criminal actions initiated in district court. Rule 43, N.D.R.Crim.P., provides in part:

(a) When Required. Unless this rule provides otherwise, the defendant must be present at:
(2) every trial stage, including jury impanelment and the return of the verdict;
(b) When Not Required.
A defendant need not be present under any of the following circumstances:
(1) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant’s absence.
(2) Conference or Hearing on Legal Question. The proceeding involves only a conference or hearing on a question of law.
(3) Sentence Correction. The proceeding involves the correction or reduction of sentence under Rule 35.
(c)Waiving Continued Presence. The further progress of the trial, including the return of the verdict and the imposition of sentence, may not be prevented and the defendant waives the right to be present if the defendant, initially present at trial or having pleaded guilty:
(1) is voluntarily absent after the trial has begun (whether or not the defendant has been informed by the court of the obligation to remain during the trial);
(2) is voluntarily absent at the imposition of sentence; or
(3) after being warned by the court that disruptive conduct will cause the removal of the defendant from the courtroom, persists in conduct that justifies the defendant’s exclusion from the courtroom.

[¶ 13] Clearly under Rule 43(a) the defendant must be present at the actual trial as well as other proceedings in addition to trial. Rule 43(b) specifies when the presence of the defendant is not required. None of those provisions is applicable to the facts in this case. Rule 43(c) specifies when the defendant waives the right to be present at trial. Again, none of those provisions is applicable to the case at hand.

[¶ 14] Nothing in the record indicates Komad gave written consent to be tried in absentia or otherwise voluntarily waived his right to be present at trial. Rule 43, N.D.R.Crim.P., provides the defendant voluntarily waives the right to be present by actions taken after being initially present at trial; thus the right to be present is not absolute and can be waived without the defendant’s consent if the defendant is unruly or disruptive during the trial and the defendant’s behavior justifies removing the defendant from the courtroom, or if the defendant is voluntarily absent after trial has begun. Here, Ko-mad was never present at trial in the district court.

[¶ 15] The City argued Komad’s excuse for his absence from the trial was false but the City failed to support its assertion with any evidence. Furthermore, assuming for purpose of argument only, that the district court had the discretion to dismiss the case or order it to trial without the presence of the defendant, the district court made no findings. We are without reason as to why, on the record before us, the district court insisted on conducting the trial in Komad’s absence or dismissing the appeal other than his failure to appear. Whether that failure was justified or unjustified is not apparent, yet that determination is essential in determining whether the trial court abused its discretion in giving Ko-mad’s counsel the Hobson’s choice between dismissal or proceeding with trial without Komad being present. On this record, neither choice protected Komad’s statutory rights.

[¶ 16] Komad was tried in violation of N.D.R.Crim.P. 43. The City speculates the error was harmless but predicates its speculation on the premise that the district judge had the discretion to dismiss Komad’s appeal to the district court. The district judge’s discretion was to determine whether to grant the continuance or issue a bench warrant for Komad or to do both. We have concluded that dismissal of the appeal would have been a violation of N.D.R.Crim.P. 43 and the judge was without discretion to dismiss. The error was not harmless.

V

[¶ 17] We reverse and remand for a new trial.

[¶ 18] CAROL RONNING KAPSNER, J., concurs.

MARING, Justice,

concurring specially.

[¶ 19] I respectfully concur specially. I write only to state that I am of the opinion both Rule 43 and Rule 37, N.D.R.Crim.P., should be amended to provide for summary affirmance of the judgment when the defendant abandons his appeal from municipal court by failing to appear at the trial anew in district court. I agree with the dissent that it was the intent of those developing Rule 37 that such a remedy should be available for this situation. The drafters relied on N.D.C.C. § 33-12-41 to provide that remedy, but it has been repealed without this remedy being incorporated into our rales of criminal procedure.

[¶ 20] Without this remedy, the district court will be required to expend funds and time issuing bench warrants for all those defendants who decide to abandon their appeals by absenting themselves from the trial anew. This is a waste of judicial resources, when a trial has already taken place. The district court should have the ability to summarily affirm the municipal court judgment under that circumstance.

[¶ 21] MARY MUEHLEN MARING

SANDSTROM, Justice,

dissenting.

[¶ 22] Because the district court proceeded properly, the judgment should be affirmed. Eldin Komad’s argument that the district court violated his constitutional right to be present at trial is without merit. Further, the district court’s actions were consistent with our rules and statutes. I, therefore, respectfully dissent.

I

[¶23] In Fargo Municipal Court, Ko-mad was charged with theft. At a bench trial, Komad was found guilty. He appealed to the district court for “trial anew” as provided by N.D.C.C. § 40-18-19.

[¶ 24] On December 12, 2005, at 1:30 p.m., the date scheduled for the “trial anew” on appeal in the district court, Ko-mad’s attorney was present, but Komad was not. Komad’s attorney told the court that Komad had notice of the trial and that Komad, having called earlier that day to say he was “stuck” in Chicago because of bad weather, was “apparently” waiting for a flight. Komad’s attorney said Komad would not be in Fargo until 4:00 p.m. that day.

[¶ 25] Komad’s attorney requested a continuance. The City opposed the continuance, arguing Komad’s excuse was false. The City asked that a bench warrant be issued. The court denied the continuance. The City then moved to dismiss Komad’s appeal. The court stated the trial would proceed or the appeal would be dismissed. Komad’s attorney stated he would proceed with the trial despite Komad’s absence. At the conclusion of the trial anew, the court ruled that the prosecution had met its burden, and judgment of conviction was entered. Komad appealed to this Court.

[¶ 26] The municipal court had jurisdiction under N.D.C.C. § 40-18-01(1). The district court had appellate jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06(4) and 40-18-19. Komad’s appeal was timely under N.D.RApp.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

[¶ 27] On appeal to this Court, Komad argues the district court should have delayed the trial anew in district court until he could be present because he has a constitutional right to be present during every stage of trial. The City argues no error occurred because Komad was present at his first trial in municipal court, his absence was voluntary, and the district court judge had the discretion to dismiss the case when Komad failed to appear at the district court appeal.

A

[¶ 28] The right of a defendant to be present at trial is rooted in the Confrontation Clause of the Sixth Amendment to the United States Constitution. City of Mandan v. Baer, 1998 ND 101, ¶ 8, 578 N.W.2d 559. The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him” in all criminal prosecutions. U.S. Const, amend. VI. The North Dakota Constitution also provides: “In criminal prosecutions in any court whatever, the party accused shall have the right ... to appear and defend in person.” N.D. Const, art. I, § 12.

[¶ 29] A fundamental error in Komad’s argument is that he perceives the district court proceeding as being the original trial rather than an appeal. Komad asserts, “He was not present for any part of his trial.” Komad was, in fact, as the record explicitly reflects, present for his trial in municipal court. Komad concedes that the right to be present is not absolute; however, the defendant may waive this right. N.D.R.Crim.P. 43(c)(1) and (2); Baer, at ¶ 9. Rule 43(c), N.D.R.Crim.P., provides, in relevant part:

The further progress of the trial, including the return of the verdict and the imposition of sentence, may not be prevented and the defendant waives the right to be present if the defendant, initially present at trial or having pleaded guilty:
(1) is voluntarily absent after the trial has begun (whether or not the defendant has been informed by the court of the obligation to remain during the trial);
(2) is voluntarily absent at the imposition of sentence;....

Here the defendant was initially present at trial and absented himself from his appeal “trial anew.” Under Rule 43, Komad waived his right to be present.

[¶ 30] The Federal courts, with their corresponding Rule 43, have held that a defendant’s constitutional rights have not been violated when a defendant had notice of the trial and failed to appear, including subsequent trials, and the court can proceed without the defendant’s presence. For example, in United States v. Barton, 647 F.2d 224, 238 (2d Cir.1981), the court held that the defendant voluntarily waived his right to be present at trial when the week prior to trial he had surgery that, although needed, the defendant had known about for seventeen months:

It is beyond dispute that a defendant has a constitutional right to be present at the trial of charges against him. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973). It is well settled, however, that this right may be waived if the defendant voluntarily and deliberately absents himself from the trial without good cause. E.g., United States v. Reed, 639 F.2d 896 (2d Cir.1981); United States v. Pastor, 557 F.2d 930 (2d Cir.1977); United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972). In the present case, the parties had agreed on November 14, 1979, that the voir dire would begin on January 8, 1980. Barton’s attorney stated that Barton had no objection, and thereafter informed Barton of the date on which trial was to begin. Nonetheless, less than one week before trial, Barton elected to undergo spinal surgery. At the hearing on Barton’s severance motion Barton’s physician testified that, while medically necessary, the operation was not performed on an emergency basis; that he had diagnosed Barton’s condition in August 1978, some 17 months earlier, and had several times thereafter unsuccessfully urged Barton to undergo surgery. He stated that Barton’s request for surgery in January 1980 came “out of the blue.”

Id.; see also State v. Dwight, 378 N.J.Super. 289, 875 A.2d 986, 989 (Ct.App.Div.2005) (the defendant’s notice of time and location of the first trial, for which he was absent and which ended in a mistrial, gave him notice of the second trial, in which he was absent but convicted, so his constitutional rights were not violated).

[¶ 31] Komad had been present throughout his trial in municipal court, and he had his full right to confront the witnesses against him. Furthermore, the evidence in the record reflects that he was not denied similar opportunities in his district court appeal, except as a result of his own actions. Therefore, Komad’s claim that he had a constitutional right to be present at his district court appeal fails.

[¶ 32] Even viewing the trial anew in district court as an original proceeding, under Rule 43, N.D.R.Crim.P., and consistent with the defendant’s constitutional rights, the district court could properly have proceeded in Komad’s absence.

B

[¶ 33] The constitutional right to be present applies to trials, however, and not to appeals. There is no constitutional right to a state court appeal. Martinez v. Court of Appeal of California, 528 U.S. 152, 160, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000); State v. Causer, 2004 ND 75, ¶ 22, 678 N.W.2d 552. Furthermore, there is no constitutional right of a defendant-appellant to be present for an appeal. Martinez, at 163, 120 S.Ct. 684 (“a lay appellant’s rights to participate in appellate proceedings have long been limited by the well-established conclusions that he has no right to be present during appellate proceedings”).

[¶ 34] In City of Minot v. Davis, this Court unanimously held, “A trial anew in district court, by virtue of a right of appeal and a statute directing the procedure upon appeal, is not the exercise of original jurisdiction by the district court.” 84 N.W.2d 891, syll. 1 (N.D.1957). This Court explained:

The defendant was found guilty in Police Magistrate’s Court of the City of Minot, of violating a city ordinance. He appealed from the judgment of the Police Magistrate to the District Court of Ward County. Upon motion of the city this appeal was dismissed by the district court and defendant has appealed to this court from the order of dismissal.
The motion to dismiss and the district court’s order of dismissal were based upon the ground that the only appeal from police magistrate’s court provided by the legislature requires a complete new trial in district court; that this new trial is an exercise of original and not appellate jurisdiction; that under Section 113 of the North Dakota Constitution the police magistrate has exclusive original jurisdiction of all cases arising under city ordinances; that an appeal by the method granted violates Section 113 of the Constitution and there being no other appellate procedure provided for with respect to police magistrate’s court, no constitutional right of appeal from a judgment of that court exists.
Section 114 of the North Dakota Constitution provides:
Appeals shall lie from the county court, final decisions of justices of the peace and police magistrates in such cases and pursuant to such regulations as may be prescribed by law.
Section 40-1819, NDRC 1943, as amended by Chapter 266, Laws of N.D. 1955, provides for appeals from police magistrate’s court. Section 33-1240, NDRC 1943, provides that such an appeal transfers the action to the district court for trial anew. The question before us here is whether such a trial, upon appeal, by the district court is an exercise of original jurisdiction and therefore, in a case arising under a municipal ordinance, in. violation of Section 113 of the Constitution which vests exclusive original jurisdiction in such matters in police magistrate’s court.
Recently, in the Matter of the Estate of Nystuen, N.D., 80 N.W.2d 671, we had occasion to consider this precise question. In the Nystuen case, the question arose in connection with a trial anew in the district court upon an appeal from county court in a probate matter of which, by Section 111 of the Constitution, the county court has exclusive original jurisdiction. In that case we gave the question extended consideration and reaffirmed the decision of this court in the Matter of Peterson’s Estate, 22 N.D. 480, 134 N.W. 751, which held that a trial anew in district court, by virtue of a right of appeal and a statute directing the procedure upon appeal, is not the exercise by the district court of original jurisdiction. This is the settled law of this state. It follows that'the order of the district court dismissing defendant’s appeal was in error. The order is therefore reversed.

Id. at 891-92. Thus, this Court has clearly held that the proceeding in district court after conviction in municipal court is appellate in nature, not an original proceeding.

[¶ 35] The fact that the rule provides for a “trial anew” does not change the proceeding from an appeal into an original trial. In an appeal from a judgment of a municipal court, the evidence is “heard anew” because the evidence is not recorded or transcribed in municipal court. N.D.C.C. §§ 27-01-01, 40-18-19; see also City of Bismarck v. Uhden, 513 N.W.2d 373, 380 (N.D.1994) (the appeal procedure under N.D.C.C. § 40-18-19 is “cumbersome and duplicative,” but must be for trial anew because municipal courts are not courts of record). This Court long provided for a “trial de novo” or a “trial anew” on appeal to it. See Herbert L. Meschke & Ted Smith, The North Dakota Supreme Court: A Century of Advances, 76 N.D. L.Rev. 217, 277-82 (2000) (detailing the history of “trial anew” in North Dakota and the elimination of the practice on appeal to the Supreme Court). This Court just recently eliminated a “procedure similar to the former trial de novo” for appeals of juvenile cases. Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913; see also N.D.R.Civ.P. 52, Explanatory Note (“Subdivision (a) was further amended, effective March 1, 2004, to provide that findings of fact in juvenile matters, including referee findings adopted by the district court, are not to be set aside unless clearly erroneous.”). Although in neither of these cases did the Court hear new witnesses, it decided the facts itself on the basis of the transcribed testimony and submitted exhibits. That practice did not change the status of a case before this Court to an exercise of original trial jurisdiction; the posture of the case was still that of an appeal.

C

[¶ 36] Although not necessary to the resolution of this case, the history of the statute and the rule also do not support Komad’s position.

[¶ 37] Before our statutes provided for the appeal to district court as provided by the Rules of Criminal Procedure, the statutes themselves provided for the procedure on appeal to the district court. North Dakota Century Code § 40-18-19 (1968) provided:

An appeal may be taken to the district court from any judgment in a municipal judge’s court in the same form and manner as appeals are taken and perfected from a judgment of conviction of a defendant in justice court, and in accordance with sections 33-12-34, 33-12-35, and 33-12-39, and shall be tried in the district court in accordance with sections 33-12-40 and 33-12-41, and bail shall be taken in accordance with sections 33-12-36 and 33-12-37, and witnesses may be placed under bond as provided for in section 33-12-38. On all appeals from a determination in a municipal judge’s court the district court shall take judicial notice of all the ordinances of the city.

The statutes specifically provided that if the defendant failed to appear in district court when he was required’ to do so, the appeal would be affirmed summarily. Section 33-12-41, N.D.C.C. (1960), incorporated by reference in the statute above, provided:

No appeal from the judgment of a county justice in a criminal action shall be dismissed. If the appeal is not taken in time or if the defendant fails to appear in the district court when his presence is required, the judgment of the justice shall be affirmed summarily and entered as the judgment of the district court and carried into effect as such.

[¶ 38] In 1968-1969, when the new Rules of Criminal Procedure were being developed, the discussion turned to appeals from municipal court to the district court and reflected a consensus that the procedural aspects should be governed by rules as opposed to statutes. Because there were not yet Rules of Appellate Procedure, the provisions were put into the criminal rules but were specifically labeled as applying to appeals to district court.

[¶ 39] The minutes of the Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure, February 20, 1969, at page 16, reflect:

Mr. Sand also read the comments accompanying the draft. He then moved the adoption of Rule 37(a)(1) as read.
Mr. Persinger seconded the motion.
Mr. Sand said that he thinks that unless we have new appellate rules, we should have something in our criminal rules relating to appellate procedures.

The minutes of the Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure, May 15, 1969, at page 3, reflect:

Mr. Sand said that his thinking, in developing Rule 37, was that what may be appealed is a matter that should be covered by statute, but that procedure to be followed in making an appeal is properly governed by a rule.

The committee specifically labeled Rule 37 as governing appeals to district court. The committee’s discussion, at page 4, reflects why the title is relevant:

Judge Burdick objected to the wording of the headings of certain subsections of Rule 37, stating that they were not part of the rule but simply headings. Mr. Sand noted that there is a difference between the titles of statutes and those of rules, in that the titles of statutes are composed by persons other [than] those who adopt the statutes, but in the case of rules, the titles are written by the composers of the rules.

[¶ 40] The minutes reflect that the committee considered the provision providing for summary affirmance of the appeal in district court if the defendant-appellant failed to appear. The minutes of the Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure, July 10, 1969, at page 5, reflect:

Mr. Sand asked: Should anything be said in this rule about § 33-12-41, Appeal not dismissed — When judgment affirmed? He read the section:
33-12^41. Appeal not dismissed— When judgment affirmed. — No appeal from the judgment of a county justice in a criminal action shall be dismissed. If the appeal is not taken in time or if the defendant fails to appear in the district court when his presence is required, the judgment of the justice shall be affirmed summarily and entered as the judgment of the district court and carried into effect as such.
Mr. Sand asked: By adopting the rule are we abrogating this section?
Judge Muggli asked: Should another subsection be added to the rule providing for abandonment of appeal?
Judge Burdick said he would favor marking § 33-12-41 for revision but basically to be retained.
Judge Muggli said he would like to have a similar section that would apply.

[¶ 41] The committee ultimately decided the statutory provision should be retained and listed the section as having been considered but not superceded. See N.D.R.Crim.P. 37, Explanatory Note. Thus the history reflects the drafters’ specific intent that if a defendant-appellant fails to appear in district court, the appeal should be affirmed summarily. Even though, after the unification of the courts over the decades, section 33-12-41 is no longer in the Century Code, it continues to be referenced in the North Dakota Rules of Criminal Procedure. Id.

D

[¶ 42] The defendant-appellant had been present throughout his municipal court trial. Under Rule 43 and consistent with constitutional rights, the defendant having been present at trial and having not appeared, the district court could proceed. The words and history of Rule 37 and the statute reflect that the district court proceeding was a first-level appellate proceeding. There was no constitutional right to a state court appeal and no constitutional right for a defendant to be present on appeal. The rulemaking history reflects a specific intent that in the absence of the defendant-appellant, the appeal could have been affirmed summarily. Because the district court could have proceeded or affirmed summarily, it did not err by doing the former.

Ill

[¶ 43] The criminal judgment of the district court should be affirmed.

[¶ 44] DANIEL J. CROTHERS, dissents.


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 180
    MOUNTRAIL BETHEL HOME, Plaintiff and Appellant, v. Colin LOVDAHL, Defendant, and Bonnie Lovdahl, Defendant and Appellee.
    No. 20060002.
    Supreme Court of North Dakota.
    Aug. 16, 2006.

      Peter H. Furuseth, Furuseth Law Firm, P.C., Williston N.D., for plaintiff and appellant.
    Jason R. Vendsel, McGee, Hankla, Backes & Dobrovolny, Minot, N.D., for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Mountrail Bethel Home (“MBH”) appealed from a district court judgment dismissing its claim against Bonnie Lovdahl for payment of nursing home services provided to Colin Lovdahl. We conclude the district court’s findings are insufficient to determine whether there was a contract between Bonnie Lovdahl and MBH, and we reverse the judgment and remand for further proceedings.

I

[¶2] Bonnie and Colin Lovdahl were married on November 28, 1964. In November 1999, Colin Lovdahl suffered a severe stroke, and in December 2000, he began residing at MBH, a nursing home. Bonnie Lovdahl signed an “Admission Agreement” that set out the terms of Colin Lovdahl’s admission to MBH. Bonnie Lovdahl testified that she signed the Admission Agreement on her husband’s behalf and at his request, and an MBH social worker also testified that Colin Lovdahl asked his wife to sign the agreement for him. At the time of his admission, Colin Lovdahl qualified for Medicaid, which paid the entire monthly cost of his care, except for a private room charge that Bonnie Lovdahl paid.

[IT 3] On November 15, 2000, shortly before Colin Lovdahl was admitted into the nursing home, he transferred all of his real property interests to Bonnie Lovdahl by a quit claim deed. Bonnie Lovdahl testified that she informed the Medicaid eligibility workers about the property transfer when-she applied for Medicaid for Colin Lovdahl. On May 30, 2001, Bonnie Lovdahl transferred all the real property she had acquired from Colin Lovdahl to their children by means of a warranty deed, reserving a life estate for herself.

[¶ 4] In April 2002, Bonnie and Colin Lovdahl were divorced. Colin Lovdahl was still living at MBH, and his account was current with no amount due. The divorce decree did not mention the MBH contract or who would be responsible for any future debts to MBH. Each party was awarded the personal property in their possession at the time of the divorce, and the decree did not mention any interest either party had in any real property.

[¶ 5] Before the divorce, Bonnie Lovdahl was authorized to act under a power of attorney for Colin Lovdahl, and after the divorce, that authority was transferred to the Lovdahls’ daughter. After the divorce, Bonnie Lovdahl also stopped paying Colin Lovdahl’s private room charge. In June 2002, Medicaid stopped paying for Colin Lovdahl’s care after determining he was no longer eligible for the program because he did not receive any of the available assets in the divorce. Notice of Colin Lovdahl’s ineligibility was sent to his daughter. Between June 2002, and December 2002, MBH did not receive any payments for Colin Lovdahl’s care, and the amount due for those months totaled $80,828.03. MBH sent all bills and correspondence about Colin Lovdahl’s account to his daughter because MBH had been notified that she was authorized to act for him under a power of attorney. MBH did not attempt to collect payment for Colin Lovdahl’s care from Bonnie Lovdahl or give her notice that his account was past due.

[¶ 6] In December 2002, Bonnie Lovdahl hired an attorney for Colin Lovdahl to help him become eligible for Medicaid again. The attorney contacted MBH to discuss Colin Lovdahl’s eligibility, and the attorney and MBH discussed payment of the unpaid portions of Colin Lovdahl’s account, including whether Bonnie Lovdahl would assume responsibility for the debt and sell some real estate to pay the debt. Bonnie Lovdahl testified that she fired the attorney after the attorney suggested she accept responsibility for the debt. On December 27, 2002, Colin Lovdahl again became eligible for Medicaid, and all the nursing home expenses he incurred after that day were paid in full.

[¶ 7] In February 2003, MBH sent Bonnie Lovdahl a letter stating it believed she was responsible for the unpaid amounts on Colin Lovdahl’s account under the divorce decree. In October 2004, MBH sued Colin and Bonnie Lovdahl, alleging the Lovdahls contracted with MBH for nursing home services and seeking $35,626.57 for breach of contract. MBH also argued that if Colin Lovdahl would have received a fair share of the parties’ assets in the divorce he would have been able to pay the nursing home bill. In November 2004, a default judgment was entered against Colin Lovdahl, but he had died and his estate did not have any assets to satisfy the debt. After a trial on MBH’s contract claim against Bonnie Lovdahl, the district court found Bonnie Lovdahl was not liable for the unpaid nursing home expenses because any possible obligation Bonnie Lovdahl had to pay for Colin Lovdahl’s nursing home care did not survive the divorce. The court also found it could not question Medicaid’s eligibility determinations or “undo” the divorce.

II

[¶ 8] MBH argues the district court erred in failing to find an enforceable contract between MBH and Bonnie Lovdahl. MBH claims that the language of the Admission Agreement clearly provides that Bonnie Lovdahl signed the agreement as the responsible party and was aware she would be obligated to pay any portion of the nursing home expenses Medicaid did not cover. MBH also argues her obligation did not terminate when the Lovdahls divorced. MBH cites N.D.C.C. §§ 14-07-08(3) and 14-07-10, which are the statutes that set out spouses’ mutual liability for certain debts, in support of its claim that Bonnie Lovdahl is liable for Colin Lovdahl’s nursing home debt.

[¶ 9] Bonnie Lovdahl argues the district court correctly concluded that she was not liable for the debts Colin Lovdahl incurred after their divorce. She also claims the district court implicitly found there was no contract between MBH and Bonnie Lovdahl.

[¶ 10] The issue before the district court was whether there was a contract between Bonnie Lovdahl and MBH for nursing home services for Colin Lovdahl. After making detailed findings of fact, the district court decided:

the Court finds that there is no basis for holding Bonnie liable for the cost of Colin’s post-divorce nursing home care at MBH. If Bonnie’s signing of the Admission Agreement somehow obligated Bonnie to pay for the cost of Colin’s care, that obligation terminated upon the parties’ divorce — and, in any event, the evidence is clear that: (a) the cost of Colin’s care was being paid by Medicaid at the time of the divorce; (b) Colin’s account with MBH was current at that time; and, (c) the same did not become delinquent until after the divorce Judgment was entered.
Once Colin became a self-pay resident, it was incumbent upon MBH to ascertain how and by whom the cost of his care was to be paid — and preferably sooner rather than later, so as to avoid the situation MBH now finds itself in. While this is not meant to be critical of MBH’s decision-making process in this matter- — and perhaps MBH was indeed “too nice” to Colin and the Lovdahl family in terms of how MBH dealt with this situation — the fact remains that MBH was in a position to mitigate its damages, but waited several months before deciding (apparently) to discharge Colin for non-payment. While the Court is by no means unsympathetic to MBH’s plight, the foregoing analysis demonstrates that MBH’s claim against Bonnie must be dismissed. (Emphasis in original.)

[¶ 11] The district court did not make any findings about whether a contract existed between MBH and Bonnie Lovdahl. “ ‘To create an enforceable contract, there must be a mutual intent to create a legal obligation.’ ” Lenthe Invs., Inc. v. Service Oil, Inc., 2001 ND 187, ¶ 9, 636 N.W.2d 189 (quoting Lire, Inc. v. Bob’s Pizza Inn Restaurants, Inc., 541 N.W.2d 432, 434 (N.D.1995)). A court may consider the parties’ conduct to determine the parties’ intent. See Johnson Const., Inc. v. Rugby Mun. Airport Authority, 492 N.W.2d 61, 66 (N.D.1992). “It is the words of the contract and the manifestations of assent which govern, not the secret intentions of the parties.” Amann v. Frederick, 257 N.W.2d 436, 439 (N.D.1977). Whether a contract exists is a question of fact, which we review under the clearly erroneous standard. Lenthe, at ¶ 7. “ ‘[A] finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.’ ” Id. (quoting Lonesome Dove Petroleum, Inc. v. Nelson, 2000 ND 104, ¶ 15, 611 N.W.2d 154). A district court must state its findings of fact and conclusions of law with sufficient specificity to afford us a clear understanding of the court’s decision. Radspinner v. Charlesworth, 346 N.W.2d 727, 730 (N.D.1984).

[¶ 12] The evidence before the court included the Admission Agreement signed by Bonnie Lovdahl as “resident or responsible party,” Bonnie Lovdahl’s testimony that she signed the agreement on behalf and at the request of her husband, and testimony from the MBH social worker who assisted Bonnie Lovdahl in filling out the admission forms. There was also testimony from the MBH administrator regarding the home’s billing practices. The administrator testified MBH was aware of the divorce and had received notice that Bonnie Lovdahl no longer had authority to act under a power of attorney for Colin Lovdahl, MBH did not send Bonnie Lovdahl a bill for the unpaid amounts until after Cohn Lovdahl became eligible for Medicaid again, and how MBH attempted to collect the unpaid amount. There was sufficient evidence before the district court to decide whether a contract existed between MBH and Bonnie Lovdahl, but the court did not make a finding on this issue. If, as Bonnie Lovdahl argues, the court implicitly found a contract did not exist, the court’s findings are not adequate.

[¶ 13] If a contract did exist between Bonnie Lovdahl and MBH, we do not agree with the district court’s conclusion that any obligation Bonnie Lovdahl had to pay for the nursing home services terminated upon the Lovdahls’ divorce. The court failed to cite any authority for its decision. The court’s findings indicate it may have relied on N.D.C.C. §§ 14-07-08(3) and 14-07-10 as the basis for its finding that Bonnie Lovdahl was no longer obligated to pay for Colin Lovdahl’s care after the divorce. The court said:

The two (2) statutes upon which MBH relies in support of its claim, N.D.C.C. 14-07-08(3) and N.D.C.C. 14-07-10, are not helpful to MBH under the facts of this case.... While the Admission Agreement could be construed as creating a contractual obligation on the part of Bonnie to pay for nursing home care provided in behalf of Colin, no debt for such care existed at the time of the parties’ divorce — all of the charges for nursing home care which are at issue in this case were incurred after the parties’ divorce. While ex-spouses may be liable post-divorce for certain debts incurred during the marriage, ex-spouses are generally not liable post-divorce for debts incurred after the divorce. (Emphasis in original.)

[¶ 14] The court’s reliance on those statutes would arguably be correct if those statutes were the sole basis MBH was relying on to establish Bonnie Lovdahl’s liability. Section 14-07-08(3), N.D.C.C., states, “[t]he husband and wife are liable jointly and severally for any debts contracted by either, while living together, for necessary household supplies of food, clothing, and fuel, medical care, and for shelter for themselves and family, and for the education of their minor children.” Similarly, N.D.C.C. § 14-07-10 states,

[t]he parties to a marriage are mutually hable to any person who in good faith supplied either party with articles necessary for their support. Such persons may recover the reasonable value from either party except in the cases when by law one party is not liable for the support of the other.

Under those statutes, a former spouse may be liable for some debts her ex-spouse incurred during the marriage, but a former spouse is generally not liable for the debts her ex-spouse incurs after the marriage has ended.

[¶ 15] Here, MBH asked the court to find the written Admission Agreement, which Bonnie Lovdahl signed, was a contract between Bonnie Lovdahl and MBH. MBH sought to hold Bonnie Lovdahl liable for Colin Lovdahl’s nursing home care, not because she was Colin Lovdahl’s spouse at the time of the contract, but because she was a direct party to the contract for the nursing home services. Sections 14-07-08(3) and 14-07-10, N.D.C.C., create liability for certain debts for a spouse who is not a direct party to a contract. When one spouse is a party to a contract, her liability does not terminate simply because she is no longer married to the person the contract benefits.

[¶ 16] Moreover, if she was a party to the contract, we have found no other basis to say Bonnie Lovdahl’s obligation terminated when the Lovdahls divorced. The divorce decree does not mention the nursing home contract, or state that all further debts incurred by each party are the responsibility of that party. The terms of the Admission Agreement do not state that the agreement terminates if the Lovdahls divorced. Nor do we find any case law to support the court’s finding that a former spouse, who is a direct party to a contract that benefits an ex-spouse, is no longer bound by that contract upon divorce. The district court did not make any findings about whether Bonnie Lovdahl terminated the contract, if one existed, according to its terms. If Bonnie Lovdahl and MBH had a contract for nursing home services, we have found no legal authority to support a claim that the Lovdahls’ divorce terminated her obligation under the contract. If Bonnie Lovdahl signed the Admission Agreement solely on Colin Lovdahl’s behalf and is not a party to the agreement, then she cannot be held responsible for any unpaid amounts incurred after the divorce.

[¶ 17] The issue before the district court was whether a contract existed between MBH and Bonnie Lovdahl, and the court failed to make any findings on this issue. On remand, the district court must address whether a contract existed between Bonnie Lovdahl and MBH. Cf. Weinreis v. Hill, 2005 ND 127, ¶ 12, 700 N.W.2d 692 (remanded after an issue was raised and evidence was presented, but the court did not address the issue). We reverse the district court’s judgment and remand for further proceedings consistent with this opinion.

[¶ 18] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.