author: PAUL H. ANDERSON, Justice.

text:
    Timothy A. SUNDBY, Respondent, v. CITY OF ST. PETER, Self-Insured, adm’d by Berkley Risk Administrators Co., Respondents, Rolco, Inc., and State Fund Mutual Insurance Co., Respondents, and Special Compensation Fund, Relator.
    No. A04-1047.
    Supreme Court of Minnesota.
    March 17, 2005.

      Mike Hatch, Attorney General, State of Minnesota, Rory H. Foley, Assistant Attorney General, St. Paul, MN, for Relator.
    Jerold M. Lucas, MacKenzie & Gustaf-son, Ltd, St. Peter, MN, for Respondent Sundby.
    Richard Riemer, Erstad & Riemer, P.A., Minneapolis, MN, for Respondent City of Saint Peter.
    Andrew W. Lynn, Lynn, Scharfenberg & Associates, Minneapolis, MN, for Respondent Rolco, Inc.
   OPINION

PAUL H. ANDERSON, Justice.

We review on certiorari a decision of the Workers’ Compensation Court of Appeals (WCCA) affirming a workers’ compensation judge’s determination that, under Minn.Stat. § 176.101, subd. 4 (2004), Social Security Disability Insurance (SSDI) child’s benefits are to be included when calculating the amount of reduction in an employer’s payment of workers’ compensation benefits. We conclude that SSDI child’s benefits are includable in the calculation to reduce payments; therefore, we affirm.

The parties stipulated to the underlying facts. On December 31, 1986, Timothy Sundby sustained a lower back injury and a left foot fracture while employed by the City of Saint Peter as an apprentice lineman. As a result of the injuries, Sundby undement multiple surgeries, including fusion of part of his spine. The City of Saint Peter accepted liability for the injury and paid medical expenses, wage-loss benefits, and economic recovery compensation.

On June 27, 1992, while employed as a maintenance person by Rolco, Inc., Sundby sustained further injury to his lower back, which required additional surgery. Rolco and its workers’ compensation insurer, State Fund Mutual Insurance Company, accepted liability and paid workers’ compensation benefits to Sundby. Following the 1992 injury, State Fund Mutual paid Sundby temporary total disability benefits and the City of Saint Peter continued to pay temporary partial disability benefits pursuant to Kirchner v. County of Anoka, 410 N.W.2d 825 (Minn.1987). As of November 9, 1993, Sundby had received a total of $25,000 in weekly disability benefits from State Fund Mutual and the City of Saint Peter, collectively.

In addition to workers’ compensation benefits, Sundby also sought disability benefits under the Social Security Act. By Notice of Award dated July 12, 1999, Sundby was awarded SSDI benefits effective June 1, 1993. The initial amount of Sundby’s SSDI benefits was $619.10 per month.

At the time of his injuries, Sundby was financially responsible for three children and, after his divorce, he had ongoing child support obligations for the children when they were not in his custody. Therefore, as a consequence of his disability, Sundby was awarded SSDI child’s benefits for his children at a rate of 50 percent of his monthly SSDI benefit rate, or an initial monthly amount of $309.55. Effective December 1, 2002, Sundby received an SSDI monthly benefit of $807.70 and a child’s benefit for his one remaining minor child in the amount of $403.80. As this child’s benefit accrued, it was paid through Sund-by into a direct deposit account in the minor child’s name. Under the Social Security Act, 42 U.S.C. § 424a(a)(5) (2000), Sundby’s SSDI benefit and the child’s SSDI benefit that Sundby received were subject to reduction because of Sundby’s concurrent receipt of workers’ compensation temporary total and temporary partial disability benefits.

Sundby subsequently sought permanent total disability and supplementary workers’ compensation benefits, and the City of Saint Peter, Rolco, and State Fund Mutual sought reimbursement from the Special Compensation Fund (Fund) for any supplementary benefits that were due. The parties, all represented by counsel, negotiated a stipulation of settlement by which they agreed that (1) Sundby was permanently totally disabled as of October 21, 1992; (2) all weekly workers’ compensation benefits previously paid were to be deemed permanent total disability benefits; and (3) these workers’ compensation benefits could be reduced by the amount of any social security disability benefits. The parties agreed that the 208-week threshold for supplementary benefits was reached on December 31, 1990. The parties also agreed that, as a result of the reclassification, permanent total disability benefits in the amount of $25,000 had been paid as of November 9,1993.

The reclassification of Sundby’s weekly workers’ compensation disability benefits from temporary to permanent benefits resulted in an overpayment of workers’ compensation benefits and it was agreed that the overpayment should be taken out of Sundby’s retroactive award of SSDI benefits. But the parties disputed whether the SSDI child’s benefits were includable in the workers’ compensation government benefits offset provision under Minn.Stat. § 176.101, subd. 4. They ultimately agreed to reserve this issue for a hearing. If the SSDI child’s benefits are not included when determining the amount of Sundby’s workers’ compensation government benefits offset, the overpayment to Sundby is $32,008.51; but, if the child’s benefits are included, the overpayment is $47,158.33. The settlement stipulation was approved, and an award was issued on October 2, 2001.

A workers’ compensation judge heard the dispute over the inclusion or exclusion of the SSDI child’s benefits in the workers’ compensation offset on September 30, 2003. The judge determined that the offset provision under MinmStat. § 176.101, subd. 4, included all government benefits, including SSDI child’s benefits. The judge’s decision had a direct effect on the amount of the employee’s benefits that were payable by the Fund. Payment of supplementary benefits is the responsibility of the employer or insurer, but the employer or insurer has the right to full reimbursement from the Fund. Minn.Stat. § 176.132, subd. 3 (1994) (repealed 1995). The amount of supplementary benefits depends on the amount of the offset. Moreover, because Sundby became eligible for supplemental benefits on December 31, 1990, the inclusion or exclusion of SSDI child’s benefits in the offset determines the amount of reimbursement owed to the Fund. The larger the amount of social security benefits, the larger the offset will be. A larger offset increases the portion of the employee’s weekly payment that is the ultimate liability of the Fund. Consequently, if the offset includes both Sund-by’s SSDI and the child’s SSDI, the amount of supplementary benefits, and therefore the Fund’s liability, is greater than it would be if only Sundby’s SSDI is included in the calculation.

On appeal, the WCCA affirmed. Sundby v. City of Saint Peter, 2004 WL 1195639, at *7 (Minn. WCCA May 10, 2004). In affirming the inclusion of SSDI child’s benefits in the offset calculation, the WCCA concluded that the state and federal offset provisions are effectively reciprocal and are aimed primarily at avoiding the duplication of wage-loss benefits. The WCCA said:

The purpose of the offset provision of Minn.Stat. § 176.101, subd. 4, is to reduce the duplication of benefits between the Social Security system and workers’ compensation. Kloss v. E. & H. Earthmovers, 472 N.W.2d 109, 44 W.C.D. 530 (Minn.1991). Both SSDI and child’s insurance benefits are for the purpose of replacing to the family the wage loss caused by the disability of a parent. Minn.Stat. § 176.101, subd. 4, as originally enacted, allowed an offset of permanent total disability benefits only against Old Age and Survivors Insurance benefits paid to the employee. As amended, the statute broadened the categories of benefits against which the offset may be taken and eliminated the requirement that the Social Security benefit be paid to the disabled employee. Clearly, the legislative intent in amending the statute was to broaden the offset statute. We conclude a child’s insurance benefit payable solely because a child’s parent is entitled to SSDI benefits is based on the same considerations as are workers’ compensation benefits paid to the employee.

Sundby, 2004 WL 1195639, at *7.

The Fund sought certiorari review under Minn.Stat. § 176.471 (2004).

I.

We will not disturb a WCCA decision “unless it is manifestly contrary to the evidence,” but we are not bound to follow the WCCA’s conclusions of law. Bradley v. Vic’s Welding, 405 N.W.2d 243, 245 (Minn.1987).

Minnesota Statutes § 176.101, subd. 4, provides that permanent total disability benefits are payable to the injured employee at a compensation rate of 66-2/3 percent of the employee’s daily wage at the time of injury, subject to maximum and minimum compensation rates. When permanent total disability compensation is payable, the employer pays the weekly benefits until they have paid a total of $25,000 in wage-loss benefits. Id. After the employer has paid $25,000 in benefits, the employer’s amount of workers’ compensation benefits is reduced “by the amount of any disability benefits being paid by any government disability benefit program if the disability benefits are occasioned by the same injury or injuries which give rise to payments under this subdivision.” Id.

Only permanent total disability compensation may be credited toward the $25,000 threshold. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 544 (Minn.1983). Consequently, if an initial finding of temporary total disability is superseded by a subsequent finding of permanent total disability, the temporary total disability benefits already paid will be reclassified as permanent total disability payments and will count toward the $25,000 threshold. Id. at 542 n. 4. Temporary total benefits can be reclassified as permanent total disability benefits by stipulation of the parties. Wilken v. Int’l Harvester Co., 363 N.W.2d 763, 770 (Minn.1985). As previously noted, Sundby’s temporary total disability benefits were reclassified as permanent total disability benefits.

For a time, Minn.Stat. § 176.101, subd. 4, only reduced the employee’s workers’ compensation payments based on any social security old age and survivor benefits the employee received. Social security disability benefits could not be used as part of the offset. Telle v. Northfield Iron Co., 278 Minn. 129, 132, 153 N.W.2d 270, 272 (1967) (holding that credit for social security old age and survivor benefits does not also include credit for federal disability benefits). In 1967, the statute was amended to include any government disability benefits in the offset. Act of June 2, 1967, ch. 40, § 9, 1967 Minn. Laws Extra Sess. 2234-35, 2238 (currently codified at Minn. Stat. § 176.101, subd. 4 (2004)). Disability benefits are included in this offset. See Wilken, 363 N.W.2d at 768 (allowing employer to take offset for SSDI benefits under the amended statute).

As explained by Professor Arthur Larson, workers’ compensation is part of an overall system of wage-loss protection, and offset provisions simply are a means of coordinating benefits. 9 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 157.01 (2003). Professor Larson states:

Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a worker undergoes a period of wage loss due to all three conditions, it does not follow that he or she should receive three sets of benefits simultaneously and thereby recover more than his or her actual wage. The worker is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable once it is recognized that workers’ compensation, unemployment, nonoccupational sickness and disability insurance, and old age and survivors’ insurance are all parts of a system based upon a common principle.

Id. at 157-2-3.

Certain provisions of the Social Security Act confirm that workers’ compensation wage-loss protection is part of a coordinated benefits system. These provisions require that SSDI benefits for any month be reduced to the point at which the combined social security and periodic workers’ compensation benefits do not exceed 80 percent of the individual’s average current earnings. 42 U.S.C. § 424a(a)(5) (2000). The social security offset includes the claimant’s disability benefits as well as any auxiliary benefits payable on the same social security account. 42 U.S.C. § 424a(a) (providing that if a claimant is entitled to workers’ compensation, the total of his benefits under section 423 and any benefits under section 402 shall be reduced). SSDI child’s benefits, payable under section 402, are therefore subject to the social security offset. See 42 U.S.C. § 402(d) (child’s benefits).

The SSDI child’s benefit is payable until the eligible child has attained the age of 18, or 19 if the child is a full-time elementary or secondary school student. 42 U.S.C. § 402(d)(1)(B) (2000). Generally, if a child is under the age of 18, benefits are paid to a representative payee. 20 C.F.R. § 404.2010(b) (2004). In selecting a representative payee for a child under age 18, first preference is given to the natural or adoptive parent. 20 C.F.R. § 404.2021. The representative payee has the responsibility to use the benefits “only for the use and benefit of the [child] beneficiary in a manner and for the purposes he or she determines, under the guidelines in this subpart.” 20 C.F.R. § 404.2085. Benefits certified to a representative payee are to be used for the child’s current maintenance, which includes costs “incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.” 20 C.F.R. § 404.2040(a)(1).

As previously indicated, Social Security Act disability benefits are reduced by other benefits received by both the claimant and the child. 20 C.F.R. § 404.408(c) (providing that the total of monthly benefits payable under the Act is reduced by the other public benefits payable for that month). The offset is applied first to the total family benefit and then to the claimant’s disability benefits. 20 C.F.R. § 404.408(h); 1 Barbara Samuels, Social Security Disability Claims: Practice and Procedure § 9:36 at 9-40 (2d ed. 1994) (“The offset or reduction in [SSDI] is applied to dependents first and then to the benefits due the worker individually.”). There is, however, a reverse offset exception to the operation of section 424a. This exception comes into effect if, before February 19, 1981, a state workers’ compensation law or plan provided for a reduction in workers’ compensation benefits because of SSDI benefits. 42 U.S.C. § 424a(d). Seventeen jurisdictions, including Minnesota and the District of Columbia, qualify for this reverse offset exception. Larson & Larson, supra § 157.03(5)(a) at 157-18.

Sundby had child support obligations which were subject to a statutory offset by child’s SSDI benefits. While Sundby was receiving temporary total disability benefits, the SSDI benefits paid to Sundby and child’s benefits paid on behalf of his children were reduced by Sundby’s workers’ compensation wage-loss benefits. Following the settlement and reclassification of Sundby’s workers’ compensation benefits from temporary total disability benefits to permanent total disability benefits, the Social Security Administration awarded retroactive full SSDI claimant’s and child’s benefits. Concluding that the state and federal offsets were reciprocal, the WCCA determined that the SSDI child’s benefits were includable in the calculation of the amount of the reduction in Sundby’s workers’ compensation benefits.

In support of its position that the child’s SSDI benefits are not includable in the calculation of the reduction of workers’ compensation benefits, the Fund makes three main arguments. First, it asserts that inclusion of SSDI child’s benefits in the workers’ compensation offset calculation is contrary to the approach we outlined in Potucek v. City of Warren, 585 N.W.2d 333, 336 (Minn.1995). Potucek involved application of section 176.101, subd. 4’s offset provision in the context of state pension and disability systems. In Potucek, the injured employee’s work-related disability also made the employee eligible for Public Employees Retirement Association (PERA) disability pension benefits. Id. at 334. Under his PERA disability plan, the employee had the option of choosing either a higher monthly payment under a single life annuity plan or a lower monthly payment under a joint and surviv- or annuity plan. Id. at 334-35. The employee elected to receive the lower monthly benefit under the joint and survivor annuity plan. Id. After the employee made this election, his employer sought to reduce the employee’s permanent total disability benefits based on the higher monthly benefit payable under the employee’s single life annuity plan on the ground that the employee could have elected to receive this higher amount. Id.

We conclude that Potucek is not controlling here. In Potucek, we expressly stated that we were addressing the “entirely different” circumstances between workers’ compensation programs and retirement programs. Id. at 336. We held that the offset for retirement benefits was confined to the amount of benefits actually disbursed, stating that, while Minn.Stat. § 176.101, subd. 4, “furnishes an offset for government benefits being paid, we see nothing in that provision that justifies calculating the amount of the offset for government benefits on an actuarial basis rather than the amount of government benefits actually being paid.” Potucek, 535 N.W.2d at 336. We explained:

In recognition that workers’ compensation is but one element of a system of wage-loss protection, the Minnesota legislature early on provided a means for coordinating workers’ compensation with the federal social security system and the state pension system. At the same time, it must be remembered that workers’ compensation and retirement programs are based upon entirely different considerations so that offsets aimed at preventing duplicate benefits must be read with the basic purposes of each system in mind.

Id. (footnote omitted). We also noted that “an employee ought not be required to subsidize the workers’ compensation system by requiring him to forgo a retirement and disability option that the employer is obligated by statute to make available.” Id.

Second, the Fund argues that inclusion of the SSDI child’s benefits in the offset calculation is inconsistent with our prior case law related to coordinating survivor benefits. The Fund cites Redland v. Nelson’s Quality Eggs, Inc. in support of its argument. 291 N.W.2d 371 (Minn.1980). In Redland, we concluded that a widow who received social security “mother’s insurance benefits” received no benefits under any government survivor program within the meaning of the state statute. Id. at 373. The survivor-offset provision, however, was later amended to specifically include social security mother’s insurance benefits in the offset, effectively invalidating the impact of Redland. Meils, by Meils v. Northwestern Bell Tel. Co., 355 N.W.2d 710, 716 (Minn.1984) (noting that amendment was designed to vitiate our holding in Redland). Moreover, unlike beneficiaries’ rights applicable in this case, the rights of surviving dependents are separate, inchoate rights. Owens, by Owens v. Water Gremlin Co., 605 N.W.2d 733, 735 (Minn.2000).

Third, the Fund argues that where the offset does not specify the inclusion of SSDI child’s benefits in the workers’ compensation offset calculation, the offset should be confined to SSDI benefits actually received by Sundby, citing Kane v. McGough Constr. Co., 1998 WL 126882 (Minn. WCCA Mar. 11, 1998); Bradwell v. U.S. Roof Tech. Corp., Findings and Order of Compensation Judge Penny Johnson (Minn.Off.Admin.Hrgs. Apr. 29, 2003); and Pigman v. Maroney’s Serv., Findings and Order of Compensation Judge Harold W. Schultz, II (Minn.Off.Admin.Hrgs. Apr. 9, 1999). In Kane, the WCCA determined that the offset calculation applied to federal benefits actually being paid, and not to the right to federal benefits. Kane, 1998 WL 126882, at *3 (citing Potucek, 535 N.W.2d at 336).

In response to this third argument, we note that the cases the Fund cites are decisions by compensation judges. These cases are not binding on our court. Moreover, while the judges in Bradwell and Pigman declined to include SSDI child’s benefits in the workers’ compensation offset calculation, other workers’ compensation judges have included SSDI child’s benefits in the calculation. See, e.g., Wie-land v. Andersen Windows, Findings and Order of Compensation Judge Rolf G. Hagen (Minn.Off.Admin.Hrgs. Dec. 12, 1996) (concluding that child’s benefits are included in offset calculation); Ihns v. Triad Mfg., Findings and Order of Compensation Judge Thomas W. Walsh (Minn.Off.Admin.Hrgs. Nov. 3, 1995) (concluding that child’s benefits are included in offset calculation). Therefore, the workers’ compensation cases cited by the Fund do not provide compelling support for the Fund’s position. Nonetheless, when compared with other inapposite workers’ compensation decisions, they do demonstrate the need for us to address this issue.

While Sundby simultaneously received temporary workers’ compensation and SSDI benefits, the federal government was authorized under the Social Security Act to offset or reduce the primary and auxiliary SSDI benefits, with the offset applied to Sundby’s total family benefit first and then to his individual benefit. But when Sund-by’s workers’ compensation benefits were reclassified as permanent under section 176.101, subd. 4, his full SSDI benefits were reinstated. At this point, the City of Saint Peter, Rolco, and State Fund Mutual were authorized to reduce Sundby’s workers’ compensation benefits by the amount of all of his SSDI benefits. See Samuels, supra § 9:30 at 9-32 (discussing reverse offset under the Social Security Act). Minnesota Statutes § 176.101, subd. 4, expressly states that the “amount of the weekly compensation benefits being paid by the employer shall be reduced by the amount of any disability benefits being paid by any government disability benefit program.” As the WCCA concluded, the applicable state and federal offsets are effectively reciprocal, allowing employers and insurers to take advantage of the offset the federal government would otherwise make. Cf. Stuckey v. Dep’t. of Labor & Indus., 129 Wash.2d 289, 916 P.2d 399, 405 (1996) (stating that the calculation of a workers’ compensation offset includes all social security disability benefits based on the workers’ primary insurance amount); Modern Plating Co. v. Whitton, 394 So.2d 515, 517 (Fla.Dist.Ct.App.) (holding that the workers’ compensation offset includes total social security disability benefits received by claimant and his dependents), rev. denied, 402 So.2d 614 (Fla.1981); Samuels, supra § 9:29 at 9-30 (stating that the social security offset against workers’ compensation benefits includes the claimant’s disability benefits plus any auxiliary benefits payable on the same account).

We have said that “offsets aimed at preventing duplicate benefits must be read with the basic purposes of each system in mind.” Potucek, 535 N.W.2d at 336. Bearing in mind the purposes of the state and federal systems and the reciprocal nature of the offsets, we conclude that the inclusion of SSDI child’s benefits in calculating the reduction of state workers’ compensation benefits advances the legislature’s intent to reduce the state’s compensation burden by taking advantage of the workers’ compensation government benefits offset to its fullest extent. Accordingly, we hold that SSDI child’s benefits are to be included when calculating the amount of the reduction in an employer’s payment of workers’ compensation benefits under Minn.Stat. § 176.101, subd. 4.

II.

The Fund makes the argument that the WCCA exceeded its authority in examining the Social Security Act. The WCCA’s jurisdiction does not extend to interpreting or applying legislation designed specially for the handling of claims outside the workers’ compensation system. Taft v. Advance United Expressways, 464 N.W.2d 725, 727 (Minn.1991) (holding that the jurisdiction of the WCCA did not extend to interpreting or applying the law related to claims against the Minnesota Insurance Guaranty Association). In that Minn.Stat. § 176.101, subd. 4, is a means for the coordination of workers compensation with the federal social security system, the WCCA looked to federal law for instruction in ascertaining the appropriate inclusion of SSDI benefits in the workers’ compensation benefits offset calculation. We conclude that the WCCA neither construed nor applied federal law and therefore the Fund’s argument on this point lacks merit.

Affirmed.

ANDERSON, G. BARRY, J., not having been a member of the court at the time of submission, took no part in the consideration or decision of this case.

      . In Kirchner, 410 N.W.2d at 828-29, we held that an employee, whose first compensable injury results in an award of temporary partial disability benefits and who sustains a second compensable injury, receives temporary partial benefits calculated on the wage basis for the first injury as well as temporary total disability benefits calculated on the lower wage basis for the second- injury. But we also held that the combined temporary partial disability and temporary total disability benefits cannot exceed the statutory maximum for the second-injury temporary total disability benefits.

      . The repeal of Minn.Stat. § 176.132, subd. 3, has no express effective date, so by operation of law it became effective August 1, 1995. Minn.Stat. § 645.02 (2004). Ultimate liability for supplementary benefits is imposed on the Special Compensation Fund, and the Fund has taken the position that the repeal of supplementary benefits is not retroactive and it reimburses supplementary benefits for injuries occurring before October 1, 1995. Minnesota Workers' Compensation Deskbook § 13.4, at 13-9 (Jay T. Hartman & Thomas D. Mottaz eds., 2d ed.1997).

      . Minnesota Statutes § 176.132 granted an injured employee supplementary workers’ compensation benefits in addition to temporary total or permanent total disability benefits once the employee had received 208 weeks of wage-loss benefits. Supplementary benefits were paid by the employer, with a right of reimbursement from the Special Compensation Fund, to certain recipients of permanent total or temporary total compensation as an additional benefit to bring the total weekly benefit to 65 percent of the statewide average weekly wage. Supplementary benefits were available to those injured workers whose compensation rate on the date of injury was less than 65 percent of the statewide average weekly wage (including annual escalations of the rate pursuant to Minn.Stat. § 176.645 (2004)) or whose rates fell below that level because of government disability benefits offsets. Wilken v. Int'l Harvester Co., 363 N.W.2d 763, 768 (Minn.1985). In 1995, the supplementary benefits provision was repealed, and Minn.Stat. § 176.101, subd. 4, was amended to establish the minimum permanent total rate at 65 percent of the statewide average weekly wage. Act of May 25, 1995, ch. 231, art. 1, § 20, and aft. 2, § 110, 1995 Minn. Laws 1990, 2072.

      . Minnesota Statutes § 176.101, subd. 4, provides in relevant part:
      For permanent total disability, as defined in subdivision 5, the compensation shall be 66-2/3 percent of the daily wage at the time of the injury, subject to a maximum weekly compensation equal to the maximum weekly compensation for a temporary total disability and a minimum weekly compensation equal to 65 percent of the statewide average weekly wage. This compensation shall be paid during the permanent total disability of the injured employee but after a total of $25,000 of weekly compensation has been paid, the amount of the weekly compensation benefits being paid by the employer shall be reduced by the amount of any disability benefits being paid by any government disability benefit program if the disability benefits are occasioned by the same injury or injuries which give rise to payments under this subdivision. This reduction shall also apply to any old age and survivor insurance benefits.

      . 42 U.S.C. § 424a(a) defines "average current earnings” as follows:
      [A]n individual’s average current earnings means the largest of (A) the average monthly wage * * * used for purposes of computing his benefits under section 423 of this title, (B) one-sixtieth of the total of his wages and self-employment income * * * for five consecutive calendar years after 1950, * * * or (C) one-twelfth of the total of his wages and self-employment income ⅞ ⅜ * for caienc[ar year in which he had the highest such wages and income during the period consisting of the calendar year in which he became disabled * * * and the five years preceding that year.

      . 20 C.F.R. § 404.408(h)(2) explains the priorities involved in the reduction of benefits based on disability on account of receipt of state disability benefits:
      Whenever a reduction in the total of benefits for any month based on an individual's earnings record is made under paragraph (a) of this section, each benefit, except the disability insurance benefit, is first proportionately decreased. Any excess reduction over the sum of all the benefits, other than the disability insurance benefit, is then applied to the disability insurance benefit. Example 1: Effective September 1981, Harold is entitled to a monthly disability primary insurance amount of $507.90 and a monthly public disability benefit of $410.00 from the State. Eighty percent of Harold’s average current earnings is $800.00. Because this amount ($800.00) is higher than Harold's disability insurance benefit ($507.90), we subtract Harold's monthly public disability benefit ($410.00) from eighty percent of his average current earnings ($800.00). This leaves Harold a reduced monthly disability benefit of $390.00. Example 2: In September 1981, Tom is entitled to a monthly disability primary insurance amount of $559.30. His wife and two children are also entitled to monthly benefits of $93.20 each. The total family benefit is $838.90. Tom is also receiving a monthly workers' compensation benefit of $500.00 from the State. Eighty percent of Tom’s average current earnings is $820.10. Because the total family benefit ($838.90) is higher than 80 percent of the average current earnings ($820.10), we subtract the monthly workers’ compensation benefit ($500.00) from the total family benefit ($838.90), leaving $338.90 payable. This means the monthly benefits to Tom’s wife and children are reduced to zero, and Tom’s monthly disability benefit is reduced to $338.90.

      . Under Minn.Stat. § 518.551, subd. 5(1) (2004),
      In establishing or modifying child support, if a child receives a child’s insurance benefit under United States Code, title 42, section 402, because the obligor is entitled to old age or disability insurance benefits, the amount of support ordered shall be offset by the amount of the child's benefit.


source: Caselaw Access Project

author: KLAPHAKE, Judge. RANDALL, Judge

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Dennis Gordon LEE, Respondent.
    No. A04-1402.
    Court of Appeals of Minnesota.
    March 7, 2005.
    Mike Hatch, Attorney General, St. Paul, MN; and Joe E. Judd, Assistant Todd County Attorney, Long Prairie, MN, for appellant.
    Robert E. Pottratz, Melrose, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge, RANDALL, Judge, and KLAPHAKE, Judge.
   OPINION

KLAPHAKE, Judge.

After respondent Dennis Gordon Lee pleaded guilty to charges of driving after revocation and failure to provide insurance, the district court granted a stay of adjudication and imposed conditions that included service of jail time. The state filed this appeal, arguing that the district court erred in sentencing Lee, over the state’s objection, to a stay of adjudication in the absence of a clear abuse of discretion by the state in the exercise of its charging function. Lee challenges the state’s right to appeal. Because Minn. R.Crim. P. 28.04 does not authorize an appeal by the state from a sentence in a non-felony case, we dismiss this appeal.

FACTS

On February 9, 2004, Lee’s vehicle was stopped by police officers in the City of Long Prairie, which is located in Todd County, Minnesota. The officers stopped Lee because one of them recognized him and knew, based on a check of his license a few days earlier, that his license was revoked. Lee also admitted to the officers that he did not have insurance on the vehicle he was driving.

Lee was charged by formal complaint with three misdemeanors:. (1) driving after revocation under Minn.Stat. § 171.24 (2002); (2) failure to provide proof of insurance under Minn.Stat. § 169.791 (2002); and (3) failure to provide insurance under MinmStat. § 169.797 (2002).

On June 21, 2004, Lee pleaded guilty to driving after revocation and failure to provide insurance. The court ordered a pre-sentence investigation (PSI) and set a date for sentencing.

The transcript of the July 28, 2004 hearing begins: “Then I’ll call for sentencing hearing the matter of the State v. Dennis Gordon Lee.” The PSI was submitted and indicated that Lee “lost his license” in 1999 and 2004 for failure to pay child support. The PSI further noted that “there appears to be a disagreement regarding the possibility of defendant receiving a stay of adjudication” and that “I cannot recommend a stay of adjudication in this matter.” The PSI finally noted that “should [Lee] get adjudicated on this matter, he will lose his license for another year[J”

The prosecutor argued that there was no abuse of discretion in the charging decision, that there were no substantial and compelling reasons for a stay of adjudication, and that the collateral consequence of yet another license violation was not a special circumstance warranting a stay of adjudication. Defense counsel argued that none of Lee’s license violations involved driving conduct and that his record was driven by economics: (1) his first violation occurred at age 21 when he lost his license as a consequence of failure to provide insurance; (2) he thereafter had two violations for driving after withdrawal; (3) his license was reinstated, but thereafter suspended for failure to pay a fíne; (4) after “falling behind on his child support,” his license was again suspended; (5) during this suspension, he incurred two more violations for driving after withdrawal; and (6) after his license was reinstated, he was laid off of work and could not afford insurance, which resulted in another license withdrawal. At the time of the hearing, Lee’s license had been reinstated. In addition, Lee had insurance, was current in his child support, was living in Long Prairie, and was employed by a St. Cloud construction firm and working in Clear-water. Defense counsel pleaded with the district court to help Lee get off this “merry-go-round.” In response, the prosecutor objected and argued that “I don’t think that a stay of adjudication is an appropriate sentence[.]”

The district court agreed with the state that this was not “an abuse of discretion in charging.” The district court went on to state: “I also believe ... that if we have a full-time employed person now with a driver’s license, with insurance, with child support ... I don’t think we serve the public interest by stopping that. And so, I am going to stay adjudication on some pretty strict eonditions[.]” The district court further noted that Lee’s guilty plea represented a violation of a prior probationary order.

The district court imposed the following conditions on Lee: (1) pay $500 toward the cost of prosecution on each of two counts; (2) serve 90 days in county jail on each of two counts, one-half suspended; and (3) have no further moving, license, or insurance violations and file proof of insurance every three months with the court. The court also issued a sentencing order with the following conditions: (1) 45 days in jail on each of two counts, stayed for one year; (2) 45 days to be served in jail at defendant’s expense on each of two counts; (3) $60 surcharge on each plea; (4) $5 law library fee on each plea; and (5) $500 prosecution fee on each plea.

ISSUE

Can the state appeal from a stay of adjudication in a non-felony case that includes service of jail time?

ANALYSIS

The right of the state to appeal in criminal cases is strictly construed. State v. Kivi, 554 N.W.2d 97, 100 (Minn.App.1996) (stating that state’s right to appeal in criminal case is strictly construed, and state may appeal only where expressly authorized by statute), review denied (Minn. Dec. 17, 1996); State v. Rhines, 435 N.W.2d 542, 544 (Minn.App.1989) (same), review denied (Minn. Mar. 17, 1989). Under the rules of criminal procedure, the state may appeal from a sentence only in a felony case. Minn.R.Crim. P. 28.04, subd. 1(2).

In State v. Thoma, 569 N.W.2d 205, 208 (Minn.App.), aff'd mem., 571 N.W.2d 773 (Minn.1997), this court held that a district court’s stay of adjudication in a non-felony case was appealable by the state as a “pretrial order” under Minn. R.Crim. P. 28.04, subd. 1(1). Thoma, 569 N.W.2d at 206-07, involved four petty misdemeanors for shoplifting and one misdemeanor for underage drinking and driving. In each of the four petty misdemeanors, the district court accepted the defendants’ guilty pleas and stayed adjudication; our decision does not specify whether there were other consequences. Id. In the case involving the underage drinking and driving charge, the defendant agreed to plead guilty in exchange for the prosecutor’s agreement that there would be no “executed jail time.” Id. at 207. The district court stayed adjudication for 90 days and ordered the defendant to pay $50 for the costs of prosecution and to comply with other conditions that were not specified in our decision. Id. Thus, none of the Thoma cases resulted in served jail time as a condition of the stay of adjudication.

Thoma has been followed in subsequent cases from this court. See, e.g., State v. Ohrt, 619 N.W.2d 790, 792 (Minn.App. 2000); Smith v. State, 615 N.W.2d 849, 851 (Minn.App.2000), review denied (Minn. Sept. 26, 2000); State v. Prabhudail, 602 N.W.2d 413, 414 (Minn.App.1999), review denied (Minn. Jan. 18, 2000). However, none of these cases discuss or appear to involve service of jail time. Although one case from this court involved a four-day jail sentence, the majority in that case did not discuss the jurisdictional issue, even though the dissent did. See State v. Scaife, 608 N.W.2d 163, 164-65 (Minn.App.2000), revieiv denied (Minn. May 16, 2000). Because this case involves an appeal from a stay of adjudication that included service of jail time, we believe it must be characterized as an appeal from a non-felony sentence and not from a pretrial order as in Thoma.

In addition, for all intents and purposes, the stay of adjudication here was treated as part of a sentencing proceeding, not as part of any pretrial proceedings. In particular, after Lee entered his guilty plea on two misdemeanor charges, the district court ordered a PSI and set a date for sentencing. At that hearing, the state was given an opportunity for allocution, during which the prosecutor argued that a stay was not an appropriate sentence for Lee. The district court issued an order in which it recited two misdemeanor counts, imposed a jail sentence of 45 days on each of these two counts, and ordered payment of the costs of jail, surcharges, and law library fees, all of which are generally associated with sentencing — and not pretrial— orders. The state’s appeal papers indicated that it was appealing from the “sentence” of July 28, 2004 and that its appeal challenged “the district court’s stay of adjudication of the guilty plea as part of the court’s sentencing order.” Characterizing Lee’s stay of adjudication as a “pretrial” order ignores these additional facts, which are unique to sentencing proceedings.

Finally, our decision here is entirely consistent with the supreme court’s description of a stay of adjudication as a “final disposition of a criminal case” and a “sentencing option.” State v. Krotzer, 548 N.W.2d 252, 254 (Minn.1996). Moreover, the state has not called our attention to any authority that would authorize the imposition of jail time as a sanction at pretrial stages of criminal proceedings, or at any other time before sentencing, and we are aware of no such authority. Unlike the consequences in Thoma, the consequences here, which included service of 45 days in jail, cannot be characterized as anything but a sentence. We therefore distinguish this case from Thoma and expressly limit our holding to cases involving non-felony stays of adjudication that include service of jail time.

DECISION

Because the non-felony stay of adjudication involved here included jail time that must be served, it cannot be considered a “pretrial” order subject to appeal by the state. We therefore dismiss this appeal as unauthorized by Minn.R.Crim. P. 28.04. See State v. Loyd, 627 N.W.2d 653, 655 (Minn.App.2001) (dismissing state’s appeal from district court’s modification of gross-misdemeanor sentence).

Appeal dismissed.

RANDALL, Judge

(concurring specially)-

“Legal interpretation takes place in a field of pain and death.”
This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.

Robert M. Cover, Violence and the World, Yale L.J. 1601, (July 1986).

I fully concur with the majority’s reasoning that in looking at the state’s (appellant’s) brief and the defendant’s (respondent’s) brief, and the sentencing order of the district court, which included a monetary fine, a certain amount of time in jail, surcharges, and costs, the only possible conclusion is that appellant, respondent, and the district court treated this case as a sentence and then an appeal from that sentence. The statement of the case for appellant said:

At a sentencing hearing in the instant case, the district court judge sentenced the defendant to a stay of adjudication over the state’s objection in a non-felony case in the absence of a clear abuse of discretion by the state in the exercise of the charging function. The state appeals from that sentence.

On page 11 of the state’s appellant’s brief, under the heading “Legal Analysis,” the first sentence is “the state is appealing the sentencing order of the district court in a non-felony case.”

This was an appeal from a misdemeanor sentence. As the majority points out, Minn. R.Crim. P. 28.04 does not authorize sentencing appeals by the state on gross misdemeanors or misdemeanors.

There is some authority that appears to go the other way. See State v. Thoma, 569 N.W.2d 205, 208 (Minn.App.1997) aff'd mem. 571 N.W.2d 773 (Minn.1997). An examination of misdemeanor sentencing cases by the Minnesota Supreme Court shows that the 28.04 issue has never been precisely identified by the Minnesota Supreme Court and addressed. State v. Cash, 558 N.W.2d 735 (Minn.1997), State v. Foss, 556 N.W.2d 540 (Minn.1996).

The issue is simple. If stays of adjudication on felony charges are handled as sentencing appeals, why are not misdemeanor charges on stays of adjudication handled as sentencing appeals (and thus barred by Minnesota Rules of Criminal Procedure 28.04).

The seminal case in stays of adjudication is State v. Krotzer, 548 N.W.2d 252 (Minn.1996). In Krotzer, a felony charge of third degree criminal sexual conduct, as this misdemeanor case of Lee, from the state’s appeal of Krotzer’s sentence to the Minnesota Court of Appeals, and on to the Minnesota Supreme Court by certiorari, Krotzer was in all respects handled as a sentencing appeal. Id. at 254. It was understood to be a sentencing appeal by the state pursuant to the Rules of Criminal Procedure that allowed the state or the defendant to appeal from a sentence in a felony case. Id. at 255. Its posture on appeal was absolutely identical to the posture of State v. Lee. Krotzer’s sentence included terms of probation and terms of incarceration as part of probation. Id. at 253. Those terms were imposed on defendant Krotzer and he had to abide by them and had to serve his jail time. Id. Krotzer involved a sentencing hearing and a sentencing order. Then, there was a stay of adjudication of guilt to allow a deserving defendant to avoid the label of “sexual predator,” a harsh collateral consequence. Id. at 254. Identical to Krotzer, in this case, there were terms of probation which included some incarceration and some fines and then a formal stay of adjudication of guilt to enable the defendant to get on with his life, provide child support, and keep his driver’s license the loss of which would be a harsh collateral consequence.

I can only conclude it is unethical to disenfranchise an entire class of criminal defendants in the State of Minnesota, meaning the thousands of Minnesotans each year who are charged with misdemeanors, by depriving them of the benefit of Minn. R.Crim. P. 28.04. When their criminal charge is handled, not just like, but identical to the felony charges in Krot-zer they are entitled to point to Minn. R.Crim. P. 28.04 when the state appeals claiming their sentence was too lenient.

Not only is there no rule or law stating that stays of adjudication in felonies are “different” from stays of adjudication for misdemeanors, we are faced with the longtime settled law that if there is an ambiguity, penal statutes are construed strictly in favor of the defendant and against the state. State v. Serstock, 402 N.W.2d 514, 516 (Minn.1987), State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993), State v. Haas 280 Minn. 197, 200, 159 N.W.2d 118, 121 (Minn.1968).

In State v. Thoma, our court found that non-felony stays of adjudication at sentencing were somehow “different” and the essential component of the reasoning was “the stay of adjudication functions in effect as a continuance for dismissal, which can fairly be characterized as a pretrial order.” 569 N.W.2d 205, 207 (Minn.App.), aff'd mem., 571 N.W.2d 773 (Minn.1997),

There is no other way to characterize this argument, but to take it head-on. First, the Minnesota Supreme Court, in thoroughly analyzing the stay of adjudication issue in Krotzer, not only did not look upon it as a “continuance for dismissal,” but in all respects treated it as a sentencing appeal by the state. Further, we note that misdemeanor sentences in Minnesota and “continuance for a dismissal” in Minnesota not only are different, but have never once in the State of Minnesota been used in the same breath. No district court judge in the State of Minnesota ever, including any judge sitting now or any judge sitting previously, or any Minnesota District Court Judge sitting on the Minnesota Court of Appeals or the Minnesota Supreme Court ever, when the record showed a continuance for dismissal (for example let us say six months or twelve months) said to the defendant at the end of hearing:

By the way, before you start your six months of a continuance for a dismissal premised on your committing no same or similar offenses in the next six months, I’m going to sentence you to 90 days in the Hennepin County Workhouse, and I’m going to fine you $500. I’m going to stay the execution of 45 days of that sentence in the workhouse; I’m going to stay execution of $250 of the $500 fine, and put you on probation for six months on the usual terms of probation, including being on your best behavior and committing no other offenses, in addition, I’m going to impose a surcharge on the criminal fine and a library fine.

This has never been done in the State of Minnesota, and never will be. No judge imposes a “sentence” at the start of the informal probationary period of a continuance for dismissal. The sentence is imposed only if during the continued period, there is a charge of a violation and then a finding of guilty. Only at that time then is the “sentence” imposed.

To disenfranchise people who are charged with misdemeanors and deprive them of the due process benefits of Minn. R.Crim. P. 28.04, which prevents the state from appealing a misdemeanor sentence that they thought too lenient on the argument that a misdemeanor sentence is not really a sentence but is a “continuance for dismissal,” and therefore is some kind of pretrial order, does violence to the English language. It does violence to the constitutional right of people charged with misdemeanor crimes to be afforded due process.

The anomaly of Tlioma has been criticized by Minnesota district court judges and commentators. Minnesota Practice, McCarr & Nordby, § 37.17, says in relevant part:

In a highly questionable decision, it has been held that a trial judge’s stay of adjudication is a “pre-trial” order, and therefore, appealable by the State (though it is always a post-trial or post-guilty plea act). This decision not only does violence to the plain meaning of the term “pre-trial,” but appears contrary to the rule mentioned above that the State’s right to appeal must be narrowly construed and exists only where expressly authorized.

9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 36.3 (3d ed.2001). (Footnotes omitted).

Tlioma goes on to buttress its argument that a misdemeanor sentence is not a sentence when it’s a stay of adjudication because of some claimed lack of finality or some lack of a “final judgment.” Tlioma at 207. It is true that a stay of adjudication on a sentence means that guilt is not formally entered, but that is just a mechanical device to help a person clear his criminal record. As the Minnesota Supreme Court stated in State v. Hoelzel, 639 N.W.2d 605, 610 (Minn.2002):

Nevertheless, when formal adjudication and entry or judgment are prohibited, a final disposition must still be made and entered on the record, reflecting what action was taken by the court. Thus, even when there is a stay of adjudication, a final disposition must be made and stay of adjudication must be entered on the record.

The Hoelzel case was on another issue, but I cite to it to point out the fact that if there is a “stay of adjudication” that does not mean that you did not have a real court proceeding with a real sentence and conditions of that sentence. Going to jail as part of the terms of probation is part of a real sentence. I cite Hoelzel to point out that even when there is a stay of adjudication, that fact is still part of the official record. The fact that the guilt was not formally adjudicated did not prevent the state from appealing the sentencing order in Krotzer and does not prevent the state from appealing the sentencing in this case. Minn. R.Crim. P. 28.04 prevents the state from appealing in this case.

Stays of adjudication are similar to stays of imposition of sentence. With a stay of imposition, if the defendant gets through the probationary period without revocation his felony is marked down in Minnesota to a misdemeanor. With a stay of adjudication if you successfully get through the period of probation, your record is marked down to a “zero” conviction. The state has no reason to complain. The state routinely agrees to stays of imposition and has no power to force the district court judge not to use them. Thus high-level felonies can be marked down to misdemeanors. In Krotzer (third degree criminal sexual conduct) the state recommended a stay of imposition (to its credit, a favorable recommendation) and thus agreed to accept a “markdown” for the serious felony to a misdemeanor. Krotzer at 253. That is far less of a markdown than a stay of adjudication on a misdemeanor or a petty misdemeanor where the final result is no conviction.

The identical format was recognized in State v. Lattimer. Lattimer involved the serious felony of criminal vehicle operation resulting in great bodily harm. 624 N.W.2d 284 (Minn.App.2001), Minn.Stat. § 609.21 subd. 2 (1998). As in Krotzer, there was no abuse of discretion in the charge. In Krotzer, even though the judge disagreed with the charge because it carried the sexual predator label, it was nowhere near “an abuse of discretion” charge. If victims and victims’ families could control domestic abuse charging by claiming the charge “is egregious and an abuse of discretion” half of domestic assaults in this state would never be charged, and half of those charged would be dismissed between charge and trial. It is not that uncommon for victims who were close to the defendant to have some reluctance to proceed with criminal charges when the full effects of that criminal charge are known, and the heat of anger from being assaulted has worn down. Wisely, we do take a victim’s feelings into account as one element of sentencing but it is not determinative. It would be outrageous to claim that the county attorney in Krotzer abused his discretion in bringing the charge. The charge fit the facts. As Krotzer points out, the prosecution’s disagreement with the sentencing judge was the sentence, not the charge. The charge in Lattimer fairly fit the facts. There, as in Krotzer, a conscientious trial judge worked hard to develop a sentence commensurate with remorse, rehabilitation, and the avoidance of a negative collateral consequence — meaning the loss of-defendant’s driver’s license which would have hampered the bond between the defendant, the victim and the victim’s family. Both Krotzer and Lattimer point out the “myth” of “interference with prosecutorial discretion.” In both cases the state picked the charge, proved up the charge, and merely had a sentencing disagreement with the court, not a charging disagreement. In Krotzer, the court stated:

[T]he prosecutor’s power to file charges and prosecute an individual was not infringed upon here. As Krotzer states, the Carver County prosecutor investigated the allegations against Krotzer, filed criminal charges, obtained a guilty plea, and recommended a disposition and sentence to the court. The trial court then postponed acceptance of the plea and placed Krotzer on probation, but this did not affect the prosecutor’s carefully defined role. See Olson, 325 N.W.2d at 18. The final disposition of a criminal case is ultimately a matter for the presiding judge. As we stated in Olson, once the legislature has defined the range of punishments for a particular offense, it cannot “condition the imposition of the sentence by the court upon the prior approval of the prosecutor.” Id. See People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal.Rptr. 21, 26, 520 P.2d 405, 410 (1974) (prosecutor may not “veto” trial judge’s decision to divert defendant into pretrial treatment program because “disposition is a function of the judicial power no matter what the outcome”).

Krotzer at 254.

Both Krotzer and Lattimer are classic cases of nothing more than a stayed sentence, akin to a dispositional downward departure. Minn. Sent. Guidelines II. D.2a. There is no logical reason for some of Krotzer’s progeny to go into flights of fancy about “undefined special circumstance.” Krotzer is a good case that is an effective tool for district court judges when exercising their independent right to fashion a sentence to fit the ultimate facts of a case. The ultimate facts are never known until the conclusion of the pre-sentence investigation, and or, the sentencing hearing when the defendant and his attorney, and the state have the right of allocution. I agree that the legislature sets the maximum penalty for crimes, but it cannot set individual sentences for crimes “that have yet to be committed” by defendants years to come in the future. As Krotzer points out, the inherent power of the judiciary to set the particulars of a sentence is inherent and final. Krotzer at 255.

If you acknowledge that a stay of adjudication, like a stay of execution or a stay of imposition, is just a lenient reasonable sentence fashioned on the facts, and is just a dispositional downward departure, the state can stop crying “that the sky is falling down” when there is a stay of adjudication.

A respected commentator stated in relevant part:

A stay of adjudication is essentially a continuance of sentencing without final adjudication of guilt, usually upon certain conditions, and with the prospect of avoiding a conviction. In State v. Krot-zer, the Minnesota Court of Appeals and Supreme Court, in well-reasoned opinions, recognized that the stay of adjudication is an inherent judicial power, which does not infringe upon the executive branch’s domain under the separation of powers doctrine. Then, however, in State v. Foss, a cursory and very poorly reasoned order, the Supreme Court greatly confused a situation which had been well-analyzed in Krotzer. The Foss order suggests that a stay of adjudication is appropriate only where “special circumstances” in a record display a “dear abuse of discretion in the exercise of the charging function.” But this is not what the Krotzer opinion said, and it is entirely inconsistent with Krotzer’s correct analysis of the separation of powers doctrine. The Foss order will not bear scrutiny and it is to be hoped the court will abandon it.
Two things should be obvious here, and appeared to be in Krotzer. First, the accusatory function is inherently and exclusively an executive function so long as probable cause is shown, the statute of limitations has not run, and there is no other fatal defect in the charge, the courts have no right or power to interfere with it. Second, the sentencing decision is inherently and exclusively judicial, with the sentencing parameters established by the legislature. Prosecutors may not control the decision, beyond the right to advocate for a particular disposition. The Foss court appears momentarily to have lost the understanding of this that it had demonstrated just months earlier in Krotzer.
The idea that the remedy for a clear abuse of discretion in charging is a stay of adjudication is insupportable. First, if the charge is constitutional and otherwise lawful, the courts have no right to undo it. Second, if it is not constitutional or lawful, the only and obvious remedy is immediate dismissal, not a stay of adjudication. Foss thus stands for the wholly untenable proposition that a defendant who has been wrongly accused may be placed upon probation and even jailed as a condition of probation and, of course, ultimately convicted if the probation is violated.
The legislature has attempted to remove a judge’s power to stay adjudication, except by agreement of the parties, but under the separation of powers, as discussed in Krotzer, this is clearly an invalid incursion into the judicial sphere by the legislature.
The Foss order has had a number of unfortunate consequences. It confused the law on the separation of powers in a very important area. Because it did not overrule or reverse Krotzer, it left the bench and bar with two conflicting, and ultimately irreconcilable, decisions to struggle with. And it deprived trial judges of a sometimes very important, useful, and productive tool for dealing with the disposition of particular cases. The Supreme Court would do a considerable service to the bench, the bar, and the administration of justice if it would promptly abrogate the Foss order and reaffirm the validity of the Krotzer opinion.
A judge staying adjudication does not accept the guilty plea.
The defendant, however, may be placed in jail as a condition of the stay.
A stay of adjudication is specifically provided for by statute for certain drug offenses. Because of the separation of powers question discussed above, however, this provision is probably invalid and superfluous, since the power is inherent in the judiciary independent of the statute. A similar provision applies to juveniles.
Recent studies have repeatedly shown that members of minorities are prosecuted with a frequency and sentenced with a severity in great disproportion to the representation in the population at large. A part of this very serious problem is that minorities are much more often arrested and prosecuted for low-level offenses, usually in relatively distressed areas of large cities. This, in turn, results in criminal records which interfere with employability (and thus lead to public dependence and further crime), and enhance the seriousness of later charges and penalties. The stay of adjudication is (or was, before the Foss decision, and could be again if the court would reverse it) a device with which trial judges can to a degree temper this insupportable process of stigmatizing minorities.
This is not to say, of course, that a defendant’s race is in itself a proper basis for a sentencing decision; clearly it is not. But trial judges are well informed as to the total circumstances of an offense and an offender; they can draw upon their experience of hundreds and thousands of cases; they are familiar with arrest and prosecution practices within their communities and are thus able to discern disparate treatment of potential offenders in different parts of a jurisdiction. Yet, judges also realize that in most of these instances the prosecutor has not “abused discretion” in charging the defendant; there is usually ample probable cause the offense was committed. Most of these defendants are pro se or represented by public defenders, whose caseloads are often intolerably heavy. Plea bargains are offered at initial appearances which result in little or no penalty beyond a day or two in jail, and which defendants naturally accept. Thus, there is little incentive to dispute the issues involved. This saves the courts the enormous expense of trial of these offenses. But the cases nevertheless create criminal records (and incidentally fill already overburdened jails). It is highly desirable for judges to have the power in these circumstances to stay adjudication, in appropriate cases, and provide programs to help the offender avoid further misconduct and spare the public the grief and expense it causes.
Neither defense lawyers nor judges should abandon the hope that the Foss ruling will be altered. Prosecutors, remembering the duty ultimately to seek justice, not merely convictions, should also be open to more sympathetic consideration of stays of adjudication.

9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 36.3 (3d ed.2001). (Footnotes omitted).

It is true that the Supreme Court has granted further review of misdemeanor sentences, in State v. Cash, 558 N.W.2d 735 (Minn.1997), and State v. Foss, 556 N.W.2d 540 (Minn.1996). However, in neither case did the Minnesota Supreme Court precisely consider the jurisdictional issue of Minn. R.Crim. P. 28.04, nor did the Minnesota Supreme Court remand either of those two cases to this court to first decide the jurisdictional issue of Minn. R.Crim. P. 28.04.

I understand that Thoma still stands for the proposition that the state can appeal a misdemeanor sentence when there is a stay of adjudication on the theory that it is some kind of pretrial order. I do not attempt to overrule Thoma. I make no attempt at distinguishing Thoma from this case. Both cases are out there, Thoma, and now this one. The Minnesota Supreme Court will have to take a stand and make a definitive statement on the precise issue. The issue could be defined as follows:

When the charge is a felony and the district court judge hears a defendant’s plea of guilty and finds that the essential facts of the charged crime are proven and goes on to order a pre-sentence investigation, and then at sentencing goes on to look at different sentencing options, including an executed sentence, a stay of execution, a stay of imposition, and a stay of adjudication and then selects a stay of adjudication, and the state appeals that sentence to an appellate court, that procedure is known as a sentencing appeal.
When the criminal charge is a misdemeanor (or a petty misdemeanor), and, the identical format to Krotzer is followed, meaning a plea hearing, a determination that a crime was committed, a pre-sentence investigation, and then a sentence composed of probation, jail time, costs, surcharges, etc., and then a stay of adjudication, why is it not an appeal from that sentence the same as a sentencing appeal in Krotzer leading to the logical bar of Minn. R. Civ. Pro. 28.04.

I will not, at the expense of the thousands of Minnesotans who are charged with misdemeanors each year, assume that misdemeanor defendants are not clothed with the constitutional right of due process (meaning the benefit of statutes specifically addressing misdemeanors namely Minn. R.Crim. P. 28.04). The Minnesota Supreme Court will have to spell that out.

There is no other satisfactory answer than a full review of this precise question. Stays of adjudication, as the prosecution freely admitted in Lattimer, have been going on for years, both before and after Krotzer, and it’s only the arbitrary state’s appeal that questions their validity as a sentence.

This haphazard approach without a firm and final review by the Minnesota Supreme Court has led to the triangulation we now face between the district court judges, the Minnesota Court of Appeals, and the Minnesota Supreme Court.

In conclusion, the first issue the Supreme Court must address is a misdemeanor sentence when there is a stay of adjudication and the effect of Minn. R.Crim. P. 28.04. If 28.04 is specifically amended to carve out a prospective niche for appeals of stays of adjudication on misdemeanors, I suggest it is questionable public policy, but it would be an honest answer to the split on this court.

The second issue is the basis for a stay of adjudication on felonies, and on misdemeanors if an appealability exception is carved out. I suggest strongly that the justification be, as I stated before, nothing more complicated than the standard for a downward dispositional departure.

Krotzer is a good case. Let us all just read it and follow it.

      . We recognize that the supreme court has issued decisions in at least two cases involving appeals by the state from non-felony stays of adjudication. See, e.g., State v. Cash, 558 N.W.2d 735 (Minn. 1997); State v. Foss, 556 N.W.2d 540 (Minn.1996). We further recognize that the supreme court has cited Thoma as authority in at least two cases involving felony appeals. See, e.g., State v. Hoelzel, 639 N.W.2d 605, 608 (Minn.2002); State v. Verschelde, 595 N.W.2d 192, 196 (Minn.1999). In none of these cases, however, did the supreme court decide the issue presented here: whether the state has the right to appellate review of a non-felony stay of adjudication that includes jail time that must be served.

      . The clear inherent power of the judiciary to fashion a sentence as set out in Krotzer, eliminates the state's attempt to control stays of adjudication by way of Minn.Stat. 609.095, subd. b.

      . See McCarr and Nordby footnote # 19

      . In Thoma four of the five charges were petty misdemeanors. See Minn.Stat. 609.02, subd. 4a. Since petty misdemeanors are not crimes and are subject only to a maximum fine of $300, the reasoning behind the bar of Minn. R.Crim. Pro. 28.04 to appeals of misdemean- or sentences (efficiency, avoidance of court clogging, no such things as "upward departures” in a misdemeanor sentence) applies double to petty misdemeanors! Why does the state waste the taxpayer’s money by appealing a petty misdemeanor sentence to this court and then to the Minnesota Supreme Court?
      If a sentence in a petty misdemeanor case is a $100 fine and the judge stays $50 of it, does the state go through the formality and expense of that appeal to argue that the district court should have set a fine of $150 and then only stayed $75 of it!
      If the district court judges in Krotzer and Lattimer were entrusted with the discretion to employ a stay of adjudication on the felonies of third degree criminal sexual conduct and criminal vehicular operation resulting in great bodily harm, they should be trusted carte blanche to handle misdemeanors and the miscreants in Thoma et al, who shop lifted Similac for her baby and the other "Ma Barkers” who shop lifted $13.06 and $7.73 worth of food.


author: MINGE, Judge.

text:
    AG SERVICES OF AMERICA, INC., an Iowa Corporation, Respondent, v. Mary SCHROEDER, et al., Appellants, Rosemary Stalter, et al., Defendants.
    No. A04-1150.
    Court of Appeals of Minnesota.
    March 8, 2005.

      Reed H. Glawe, Peter D. Favorite, Gis-lason & Hunter, L.L.P., New Ulm, MN, for respondent.
    William L. French, Rochester, MN; and Jeffrey A. Mintz, Wendland Utz & Mintz, Ltd., Rochester, MN, for appellants.
    Considered and decided by MINGE, Presiding Judge; TOUSSAINT, Chief Judge; and SCHUMACHER, Judge.
   OPINION

MINGE, Judge.

Appellants Mary Schroeder, Rolf A. Schroeder, and Jean L. Schroeder (Schroeders) challenge summary judgment granted to respondent, Ag Services of America, Inc. (Ag Services). Because the district court erred as a matter of law by holding that certain statutory requirements incident to the right of first refusal for agricultural land under Minn.Stat. § 500.245 (2004) are not mandatory, we reverse. Because Ag Services failed to give the 14-day notice of intent to sell required by law, the district court erred in determining that Ag Services entered into a valid and enforceable purchase agreement with Ken Vagts, the real estate broker, to convey the land. Because the Schroeders have failed to produce any facts to support their contentions that Ag Services misrepresented its willingness to extend the statutory redemption period and breached an agreement with the Schroeders, we affirm the district court’s order denying the Schroeders’ motion to amend their answers to add such counterclaims. Because we have concluded that the purchase agreement between Ag Services and Vagts is unenforceable, we do not address the district court’s refusal to add a declaratory-judgment action to determine whether the purchase agreement is void, and refusal to add Vagts as an indispensable party. Because the Schroe-ders did not raise the issue in the district court of removing the district court judge, we will not consider that issue for the first time on appeal. We affirm in part and reverse in part.

FACTS

This dispute concerns agricultural land in Houston County that the Schroeders previously owned. On October 17, 2000, Ag Services foreclosed on its mortgage and purchased the land for $821,151.

The Schroeders negotiated with Ag Services about redeeming the property during the 12-month redemption period. Although no formal agreement was reached before the redemption period expired on October 17, 2001, the Schroeders were optimistic that they would be able to retain the property. Following up on oral negotiations that began in June 2001, an agent of the Schroeders sent Ag Services a written offer to purchase the property on October 31, 2001. The terms of this offer included a purchase price of $1 million and required that Ag Services finance $500,000, secured by a junior mortgage. The offer was never accepted.

On November 20, 2001, Ag Services approached Ken Vagts, a real estate broker and owner of the Alliance Land Company (Alliance), to list the property for sale. Vagts offered to personally purchase the property for $1.2 million. On November 21, 2001, Ag Services and Vagts signed a purchase agreement for that figure and Vagts paid $20,000 in earnest money. At the same time, Vagts, as a representative of Alliance, entered into a listing agreement granting Alliance the exclusive right to sell the land and guaranteeing Alliance a minimum commission of $36,000, regardless of who purchased the property. The purchase agreement with Vagts was set for closing on February 15, 2002.

Also on November 20, 2001, Ag Services met with the Schroeders to discuss their interest in purchasing the property. At this meeting, the Schroeders made an oral offer to pay $800,000 for the property. Ag Services rejected the Schroeders’ offer. On November 21, as soon as it had completed the discussion with Vagts, Ag Services informed the Schroeders of the agreement with Vagts and hand delivered copies of Vagts’ purchase agreement to them. The Ag Services representative orally informed the Schroeders that their statutory right of first refusal was triggered by the delivery of the copy of the purchase agreement. On November 30, 2001, Ag Services sent the Schroeders written statutory notice of their right of first refusal, which specified that the Schroeders had 65 days to exercise that right and if so exercised, 10 days to make payment. Attached to the mailed notice was another copy of the purchase agreement between Vagts and Ag Services.

On February 1, 2002, the Schroeders notified Ag Services that they were exercising their right of first refusal and that they would complete the purchase of the property in accordance with the terms of the purchase agreement with Vagts. The Schroeders did not make payment within the 10-day period or subsequently.

As a result of title objections raised by Vagts’ lender, the closing between Ag Services and Vagts was postponed pending successful completion of a quiet-title action. On April 8, 2002, Ag Services initiated a quiet-title action to correct the legal description that had been used in the mortgage foreclosure and any other issues. The Schroeders answered the quiet-title action and counterclaimed arguing that their right of first refusal had not expired and that Ag Services was permitting waste on the property, and requesting the appointment of a receiver. Ag Services moved for summary judgment and the Schroeders moved to amend their answer to add counterclaims and sought a continuance to conduct discovery. The district court granted the summary judgment motion and dismissed the Schroeders’ motion. The Schroeders appealed and on June 24, 2003, this court reversed and remanded on the ground that the district court abused its discretion in failing to grant a continuance to conduct discovery. Ag Services of America, Inc. v. Schroeder, C3-02-1989, 2003 WL 21448874 (Minn.App. June 24, 2003).

Following the close of discovery, Ag Services filed a second motion for summary judgment arguing that the Schroe-ders’ right of first refusal had terminated and that Ag Services should be adjudged fee-title owner. In the course of discovery, it was learned that Ag Services failed to give the Schroeders the statutorily required 14-day notice of intent to sell or affidavit affirming the purchase agreement. The Schroeders claimed that as a result of such failures, their statutory right of first refusal had not been extinguished. In addition, the Schroeders moved for leave to amend their answers to add counterclaims that Ag Services intentionally or negligently misrepresented that it would extend the period for redeeming from the mortgage foreclosure; that Ag Services breached its contract with them by selling the property to Vagts; and that the purchase agreement between Vagts and Ag Services was void. The district court granted Ag Services’ motion for summary judgment and denied the Schroeders’ request to amend. The Schroeders again appeal to this court.

ISSUES
I. Did the district court err in concluding that the statutory provisions for providing a 14-day notice of intent to sell and an affidavit affirming the purchase agreement under Minn.Stat. § 500.245 (2004) are directive?
II. Was Ag Services required to give the statutorily required 14-day notice of intent to sell prior to agreeing to sell the property to Vagts?
III. Did the district court abuse its discretion in denying the Schroeders’ motion to add counterclaims for intentional and negligent misrepresentation and breach of contract?
IV. May the Schroeders remove the district court judge who has heretofore heard this matter from further consideration of the case?

ANALYSIS

The district court should grant summary judgment when there is no genuine issue of material fact and either party is entitled to a judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On an appeal from summary judgment, this court reviews the record to determine: (1) whether any genuine issues of material fact exist; and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

I.

The first issue is whether the statutory notice of intent to sell and the statutory affidavit affirming the purchase agreement must be given to comply with the right of first refusal. The district court found as a matter of law that the statutory provisions under Minn.Stat. § 500.245 (2004) requiring a 14-day notice of intent to sell and an affidavit affirming the purchase agreement, are directive, not mandatory, and that Ag Services substantially complied with the statutory directive. A reviewing court need not defer to a district court’s decision on a pure question of law. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Statutory interpretation is a question of law subject to de novo review. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996); Harbal v. Fed. Land Bank of St. Paul, 449 N.W.2d 442, 446 (Minn.App.1989), review denied (Minn. Feb. 21, 1990).

The appellate court’s function in interpreting statutes is to ascertain and effectuate legislative intent. See Minn.Stat. § 645.16 (2004). “The fundamental rule of statutory construction is to look first to the specific statutory language and be guided by its natural and most obvious meaning.” State v. Nelson, 671 N.W.2d 586, 589 (Minn.App.2003). If a statute is unambiguous, its plain meaning is applied. Beau-lieu, 552 N.W.2d at 701. A statute is unambiguous if it is not “reasonably susceptible to more than one interpretation.” Id. If there is clear manifestation of the legislature’s intent through the statute’s “ ‘plain and unambiguous language,’ statutory construction is not necessary nor is it permitted.” Minn.Stat. § 645.16 (stating that if a law is unambiguous, “the letter of the law shall not be disregarded under the pretext of pursuing the spirit”); Beaulieu, 552 N.W.2d at 701 (quoting Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn.1995)).

The right of first refusal for agricultural land was created in 1986 in response to a farm crisis and was part of a package of legislation passed to assist family farms. 1986 Minn. Laws. ch. 398, art. 19 (“there is a rural economic emergency resulting from the agricultural economic depression. Foreclosure sales and subsequent deficiency judgments are debilitating the people foreclosed.”). In establishing the right of first refusal, the legislature intended to grant farmers a substantive right, which was recognized by the courts. See Crowell v. Delafield Farmers Mut. Fire Ins. Co., 463 N.W.2d 737, 739-40 (Minn.1990) (finding that after the expiration of the foreclosure redemption period, but during right-of-first-refusal period, farmers had insurable interest in and were entitled to insurance proceeds for destruction of them farm house). The statute states in pertinent part:

Subdivision 1. Disposal of land.. (a) A ... corporation, or limited liability company may not lease or sell agricultural land or a farm homestead before offering or making a good faith effort to offer the land for sale or lease to the immediately preceding former owner.... The offer must be made on the notice to offer form under subdivision 2.The seller must provide written notice to the immediately proceeding former owner that the agricultural land or farm homestead will be offered for sale at least lk days before the agricultural land or farmstead is offered for sale.
Subdivision 2. Notice of offer, (a) The ... corporation, or limited liability company subject to subdivision 1 must provide a notice of an offer to sell....
(b) For an offer to sell, a copy of the purchase agreement containing the price and terms of the highest offer made by a third party that is acceptable to the seller and a signed affidavit by the seller affirming that the purchase agreement is true, accurate, and made in good faith must be included with the notice under this subdivision ....
(d) The affidavit under paragraphs (b) and (c) is subject to section 609.48 [perjury statute].

Minn.Stat. § 500.245 (emphasis added). The record indicates and the district court found that Ag Services failed to comply ■with the 14-day-notice and affidavit-of-good-faith provisions. The district court concluded that the term “must” in the 14-day notice and affidavit provisions is ambiguous and then determined that the provisions are directive because the statute does not provide consequences for failing to comply with its requirements.

The Minnesota statutes contain definitions for interpreting “words, terms and phrases used in Minnesota Statutes or any legislative act.” Minn.Stat. § 645.44, subd. 1 (2004). In 2001 the legislature amended the section to add a subdivision that explicitly defines “must” as “mandatory.” Minn.Stat. § 645.44 subd. 15a (2004); Laws 2001, 1st Spec. Sess., c. 10, art. 2, § 84, added subd. 15a defining “must.” Subsequent cases have relied on this subdivision to interpret other statutes that contain the term “must” as mandatory. See, e.g., Cole v. Metro. Council HRA, 686 N.W.2d 334, 338 (Minn.App.2004) (finding “must” language in section 8 regulations prohibited officer from considering hardships in evaluating termination of benefits); Dyrdal v. Golden Nuggets, Inc., 672 N.W.2d 578, 589 (Minn.App.2003) (holding statutory requirement that motion for sanctions be made separately was mandatory), affd on other grounds, 689 N.W.2d 779 (Minn.2004).

Here the language of the right of first refusal statute is plain, unambiguous, and clearly states that a 14-day notice of intent to sell and an affidavit of good-faith purchase agreement “must” be provided. The district court erred as a matter of law in finding that the provisions of the right-of-first-refusal statute were directive and that strict compliance with the statute was not required. Failure to give the mandatory notice of intent to sell and failure to provide the required affidavit constitute failure to offer the right of first refusal as required by law. Because the affidavit of good faith that is required as a part of the notice of the right of first refusal has not been properly given, the Schroeders still have the right of first refusal. The district court erred in entering summary judgment quieting title.

Ag Services argues that it is entitled to summary judgment even though it failed to abide by the provisions of the statute because the Schroeders were not prejudiced and failed to demonstrate that they could have performed if they had received proper notice. Ag Services does not cite any authority to support a requirement that prior owners must additionally show prejudice in order to preserve their right of first refusal under the law. The statute does not require and we will not read this restriction into the statute.

II.

The next issue is the validity of Vagts’ purchase agreement. The apparent purpose of the 14-day notice of intent to sell the property is to place the former owner on notice that the seller is considering the sale of the property. See Minn. Stat. § 500.245, subd. 1(a). The former owner then has two weeks to take whatever steps that former owner considers advisable to advance or protect his interests. This might include making offers or attempting to negotiate a purchase before a third party negotiates contractual rights. The notice is a warning to the former owners that in 14 days another party may have contract rights in the property.

The record in this case is replete with evidence that the Schroeders were not clear as to what was happening. The record indicates that they thought their redemption period from the foreclosure was still open. They were attempting to negotiate a “redemption” through an intermediary several weeks after that period had expired. At that time their agent made an offer to purchase the property. Without first saying it planned to talk with a third party, Ag Services inquired of the Schroe-ders what their interest was in purchasing the property. They orally offered $800,000, which was $200,000 less than they had offered in writing three weeks earlier. The district court found that Ag Services rejected the Schroeders’ offer, orally informed them of Vagts’ $1.2 million offer, gave them a copy of Vagts’ purchase agreement, and advised them that the 65-day right-of-first-refusal period was beginning to run from November 21, 2001. A week later, Ag Services sent written notice that the right of first refusal began to run on November 30, 2001, and provided copies of the purchase agreement and listing agreement. Next, a dispute arose over the role of Ken Vagts and Alliance and whether the minimum commission for Alliance was really a $36,000 discount to Vagts. Although the district court has found that Vagts, Alliance, and Ag Services were all acting in good faith, the situation involving Vagts, Alliance, and the guaranteed commission created confusion and ambiguities.

The statute providing for the right of first refusal is detailed. See Minn.Stat. § 500.245. By requiring the notice of intent to sell and an affidavit of good faith regarding the price, the legislature created formalities that were intended to avoid such ambiguities. Id., subds. 1(a), 2(b). It is significant that in requiring the affidavit, the legislature included a cross-reference to the criminal perjury statute. See Minn. Stat. § 500.245, subd. 2(d). This appears intended to warn those who prepare and sign the affidavit of its seriousness. See Lilyerd v. Carlson, 499 N.W.2d 803, 811 (Minn.1993) (noting that equitable remedies such as specific performance and setting aside an agreement are appropriate in right of first refusal actions); Harbal, 449 N.W.2d at 448-49 (affirming avoidance of sale as necessary for the enforcement of the statutory right of first refusal). The failure of Ag Services to carefully comply with the statute is not irrelevant to the ensuing confusion in this matter.

The Schroeders have urged that the purchase agreement between Ag Services and Vagts be set aside because of a lack of good faith. The district court denied their motion to amend their answer to add a declaratory judgment claim that Vagts’ purchase agreement is void. We do not reach this question. Rather, we conclude that the failure to give the 14-day advance notice of intent to sell is a prior failure. As we have observed, this notice requirement can serve a useful purpose. We conclude that until the notice of intent is given, as required by law, Ag Services could not, as a matter of law, contract to sell the property to a third party and that the purchase agreement with Vagts is unenforceable.

The Schroeders also appeal the dismissal of their claim that Ag Services was committing waste and requesting the appointment of a receiver. This issue was not argued in the briefs and accordingly is deemed waived. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982).

III.

The Schroeders argue that the district court abused its discretion in denying their motion to amend their answer to add two counterclaims relating to the extension of the redemption period. A party may amend its pleading by leave of the court. Minn. R. Civ. P. 15.01. The district court should liberally grant motions to amend when justice requires and doing so will not result in prejudice to the adverse party. Minn. R. Civ. P. 15.01; Fabio, 504 N.W.2d at 761. But courts can deny motions to amend when the additional claims cannot withstand summary judgment. Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 332 (Minn.2004) (affirming denial of motion because motion would not survive summary judgment); M.H. v. Caritas Family Seros., 488 N.W.2d 282, 290 (Minn.1992) (upholding denial of motion to add tort claim when no facts supported claim). “Generally, the decision to permit or deny amendments to pleadings is within the discretion of the district court and will not be reversed absent a clear abuse of discretion.” Johns v. Harborage I, Ltd., 664 N.W.2d 291, 295 (Minn.2003).

The Schroeders argue that Ag Services intentionally or negligently misrepresented that it would extend the statutory redemption period. To establish intentional misrepresentation, the appellant must show that the respondent falsely or misleadingly represented a material fact with the intent to induce appellant’s conduct and that appellant acted in reliance on the respondent’s false or misleading representations to his detriment. See, e.g., Weise v. Red Owl Stores, Inc., 286 Minn. 199, 202-03, 175 N.W.2d 184, 187 (1970), overruled on other grounds by State by Humphrey v. Alpine Air Prods., Inc., 500 N.W.2d 788 (Minn.1993) (listing essential elements necessary to establish intentional misrepresentation).

The Schroeders present no evidence that Ag Services made any representation regarding the extension of the redemption period. Based on the district court’s findings, it appears that the Schroeders’ evidence in support of their claim is a letter from their agent to their attorney in which the agent writes, “I again requested a letter [from Ag Services] stating that we were in agreement and Ag Services was extending the deadline.” The agent does not explain what “deadline,” and the court is left to speculate whether this in fact is a reference to an extension of the redemption. The situation is further confused because the agent was offering to purchase the property for more than the amount necessary to redeem. Also, the Schroeders offer no facts to explain how they relied on this alleged representation.

Similarly, the Schroeders offer no facts to establish a claim that Ag Services made a negligent misrepresentation. Such a cause of action requires a showing that one acted negligently in communicating information and that the party owes a duty of reasonable care to the person to whom the information was provided. See Florenzano v. Olson, 387 N.W.2d 168, 174 (Minn.1986); Smith v. Woodwind Homes, 605 N.W.2d 418, 424 (Minn.App.2000).

The breach-of-contract claim is also vague and not developed. It is not clear whether the Schroeders are referring to a contract extending the redemption period or granting them the right to purchase the property. The claim that Ag Services breached its contract to extend the redemption period further fails because an extension of the statutory redemption period involves an interest in land; agreements to create an interest in land are void unless the terms are memorialized in writing, and here there is no evidence of any written agreement. See Minn.Stat. § 513.05 (2004). Finally, there is no evidentiary support for a claim for breach of contract to sell the property because the Schroeders have failed to produce any evidence that their offers were accepted. See Schwinn v. Griffith, 303 N.W.2d 258, 261 (Minn.1981) (finding that where a writing is required for the contract, a written offer to sell “does not evidence a completed contract and a written acceptance is required”). We conclude that the record supports the district court’s denial of the Schroeders’ motion to add a counterclaim for intentional or negligent misrepresentation and breach of contract.

IV.

Finally, the Schroeders request that we direct the district court judge to remove himself from this case. The Schroeders made no motion in district court seeking this relief, and we decline to address the issue in the absence of prior consideration by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988); see also Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn.1990) (holding that a party must bring a motion demonstrating “prejudice or implied or actual bias” if the party failed to remove the judge before trial), superceded by statute on other grounds, Minn.Stat. § 549.21 (1990); Haefele v. Haefele, 621 N.W.2d 758, 766 (Minn.App.2001) (removal of judge rests within district court’s discretion); Maher v. Maher, 393 N.W.2d 190, 193 n. 2 (Minn.App.1986) (rejecting appellant’s argument to assigning different judge on remand). We also caution the Schroeders that adverse rulings are not a basis for imputing bias to a judge. Olson v. Olson, 392 N.W.2d 338, 341 (Minn.App.1986).

DECISION

We reverse the determination of the district court that the statutorily required 14-day notice of intent to sell and affidavit of good faith are not mandatory and hold that because of Ag Services’ failure to give that notice and affidavit, the Schroeders still have a right of first refusal and the purchase agreement between Ag Services and Vagts is unenforceable. We affirm the denial by the district court of the Schroe-ders’ motion to add counterclaims to reinstate the redemption period. We deny the request of the Schroeders to remove the district court judge.

Affirmed in part and reversed in part.

      . Chapter 398 also included the following legislation: an act that provided for mandatory mediation between debtor and creditor; a family-farm legal-assistance program; a rural finance authority to provide credit to farmers. Act of Mar. 21, 1986, ch. 398, art. 1 (codified at Minn.Stat. § 583.26); Act of Mar. 21, 1986, ch. 398, art. 3 (codified at Minn.Stat. § 480.250); Act of Mar. 21, 1986, ch. 398, art. 6 (codified at Minn.Stat. § 41B.01).

      . The amendment applies in this case because the amendment went into effect on July 1, 2001, and Ag Services' failure to comply with the statutory provisions did not occur until more than three months later.

      . This court has found other statutes predating enactment of Minn.Stat. § 645.44, subd. 15a involving "must” unambiguous and mandatory. See, e.g., Demolition Landfill Servs., L.L.C. v. City of Duluth, 609 N.W.2d 278, 281-82 (Minn.App.2000) (stating statute requiring agency to simultaneously provide written reasons denying zoning permit was unambiguous and mandatory), review denied (Minn. July 25, 2000). Because the plain meaning of the statute is controlling in this case, we do not consider whether the absence of statutorily defined consequences for its violation makes the statute "directive” and requires a finding of actual prejudice or other factors to ascertain the remedy. See Beaulieu, 552 N.W.2d at 701-02, 704. (The majority eschews the mandatory/directive analysis in considering the meaning of the word "shall.” The dissent protests that the majority is departing from caselaw which interprets statutory provisions as either directive or mandatory based on whether the statute provides a remedy or penalty for failing to comply with the statute’s mandate).

      . The validity of the listing agreement with Alliance is not directly challenged in this appeal, and we do not reach that issue.

      . We note that the district court found that Dean Schroeder violated the statutory prohibition of negotiating a sale of property after exercising the right of first refusal. Minn. Stat. § 500.245, subd. l(n). He is not a party in this action and it appears that he had no right of first refusal. Therefore, we caution the district court in imputing his actions to the Schroeders when it is unclear whether he had any authority to negotiate the sale of the farmland.