author: TOUSSAINT, Chief Judge.

text:
    Brian AURINGER, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-950.
    Court of Appeals of Minnesota.
    May 10, 2005.

      John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN, and Michael K. Riley, Nicollet County Attorney, Michelle M. Zehnder Fischer, St. Peter, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; TOUSSAINT, Chief Judge; and PETERSON, Judge.
   OPINION

TOUSSAINT, Chief Judge.

In this appeal from an order denying a postconviction petition challenging appellant’s convictions for first- and second-degree criminal sexual conduct, appellant argues that the statutory definition of sexual penetration does not include digital penetration of the victim’s vagina through her clothing. Appellant also argues that the trial court committed plain error at trial in admitting an audiotape of appellant’s statement to police, during which the officer allegedly vouched for the credibility of the victim’s report. Because we conclude the term “sexual penetration” unambiguously includes penetration through clothing and the trial court did not err in admitting the audiotape, we affirm.

FACTS

Thirty-eight-year-old appellant Brian Jay Auringer provided after-school care for Tammy and Paul Burandt’s six-year-old twins and Tammy’s 12-year-old daughter from a previous marriage, P.S. On May 16, 2001, Mrs. Burandt took P.S. to a clinic for a camp physical exam. Nurse Practitioner Nancy McLoone conducted the exam. P.S. told McLoone that she was having trouble sleeping because she “thinks a lot about things and worries,” and Auringer was hurting her. McLoone also noted that P.S. seemed sad and was tearful when talking about Au-ringer and opined that P.S. exhibited common characteristics of an abused child.

Mrs. Burandt was present during the exam. When P.S. said Auringer had hurt her, Mrs. Burandt asked P.S. if she was telling the truth this time because P.S. had previously made similar allegations against her father and stepfather. P.S. tearfully told her mother it was true. P.S. told McLoone that Auringer had hurt her the previous day, May 15, and many other times. She also explained that she had not told anyone because Auringer said he would hang her if she did. McLoone reported the alleged abuse to social services.

Detective Curt Turna was in charge of the investigation. He referred P.S. for a “Corner House” interview with Brenda Dittrich of Nicollet County Child Protection. Dittrich’s May 18 interview with P.S. was videotaped and played to the jury. Using dolls, P.S. described Auringer inserting his fingers into her vagina. She also described incidents of him touching her privates on the couch, on the stairs, in the bathroom, and the bedroom, and him placing her hand on his penis in the bedroom.

Detective Tuma asked Auringer to talk to him about P.S.’s allegations. Auringer agreed to appear for an interview on May 24. The interview was audiotaped and played to the jury without objection. Au-ringer explained to the detective that the Burandts had told him to be careful because P.S. had previously made allegations against Mr. Burandt. Auringer told the detective he thought P.S. was “probably pulling the same stunt like she did ... to Paul.” The detective clarified that P.S. had not claimed that Auringer had “raped” her, but she had claimed that he had “done some things to her.” The detective said he wanted Auringer to tell him the truth because P.S. “tells a pretty convincing story and I wanna be able to speak to your truthfulness at our County Attorney’s Office.” He told Auringer that he had to convince the county attorney that what P.S. alleged did not happen. After Au-ringer denied putting his hand between P.S.’s legs, the detective said: “that’s what she’s telling me and she’s pretty convincing about it. Now ... if you did it, I want to hear it now, cause ... it’s gonna go kinda tough for you if ... you’re lying to me.” Turna also asked Auringer why he thought P.S. would say these things, and Auringer explained that she might have been mad at him for taking some makeup away from her. Again, trying to elicit more information from Auringer, Turna said “I gotta ... talk to the County Attorney about something and with what we got here, Brian, you know what I’m sayin’? She tells a pretty good story. You follow-in’ me?” Then, Turna gave Auringer a chance to blame P.S., saying, “Did she kinda coerce you into something or — or convince you to do something here- — -touch her or whatever?” Again, Turna clarified that he had to tell the County Attorney something and he’d rather say Auringer told him the truth than “you know, you have to believe what the kid said.” When Auringer began admitting that some touching could have happened, Tuma again stated that the county attorney would decide who was telling the truth, so Auringer should tell him the truth. Auringer eventually admitted that P.S. touched his penis in the bedroom.

At trial, P.S. testified that Auringer had threatened to shoot or hang her if she reported the conduct. She also testified to Auringer touching her breasts over her clothing in the bathroom; unzipping his pants and placing her hand on his penis in a bedroom; touching and inserting his fingers into her vagina through her clothing in the bedroom; touching and inserting his fingers into her vagina while they were on the couch; and touching and rubbing her vagina and buttocks while she was on the stairs.

The jury found Auringer guilty on two counts of first-degree and two counts of second-degree criminal sexual conduct. He was convicted of and sentenced for two counts of first-degree criminal sexual conduct under Minn.Stat. § 609.342, subds. 1(a), 2 (2000). Auringer now challenges his convictions on appeal from an order denying his petition for postconviction relief.

ISSUES
I. Does the first-degree criminal sexual conduct offense include digital penetration of the vagina through the victim’s clothing?
II. Did the audiotape of the investigating officer’s conversation with Au-ringer include impermissible vouching testimony, and, if so, did its admission constitute reversible plain error?
III. Should Auringer’s pro se brief be disregarded?
ANALYSIS
I.

Auringer argues that “inserting his finger into P.S. through her clothing” does not fall within the statutory definition of “sexual penetration” for first-degree criminal sexual conduct.

The standard of review for statutory interpretation is de novo. State v. Iverson, 664 N.W.2d 346, 350 (Minn.2003). A reviewing court’s goal in statutory interpretation is “to give effect to the intention of the legislature in drafting the statute.” State v. Orsello, 554 N.W.2d 70, 74 (Minn.1996). We rely on the plain meaning of the statute unless it is ambiguous. Iverson, 664 N.W.2d at 351.

The legal question raised by Auringer appears to be one of first impression in the Minnesota courts. The same question was raised under analogous federal law in United States v. Norman T., 129 F.3d 1099 (10th Cir.1997). There, the court interpreted the federal statute defining “sexual act” as “penetration, however slight, of the anal or genital opening of another” and concluded “penetration” includes penetration taking place through clothing. Id. at 1102-03.

Auringer was convicted under Minn. Stat. § 609.342, subd. 1(a) (2000), which states that it is a crime for a person to “engage[] in sexual penetration with another person ... if ... the complainant is under 13 years of age and the actor is more than 36 months older than the complainant.” “Sexual penetration” is, in relevant part, “any intrusion however slight” into the genitals of the complainant’s body. Minn.Stat. § 609.341, subd. 12(2) (2000).

Auringer’s admission on appeal that he “inserted” his finger into P.S.’s vagina would appear to unambiguously fall within the definition of sexual penetration. Au-ringer attempts to create an ambiguity, however, by contrasting the definition of “sexual penetration” with the definition of “sexual contact,” which is the basis for other criminal sexual conduct offenses. See Minn.Stat. §§ 609.342-3451 (2000). He makes no attempt to identify an ambiguity within the language of the first-degree criminal sexual conduct statute, in particular the definition of penetration. Instead, his argument relies solely on his comparison of the statutory definitions of penetration and contact.

Auringer argues that the legislature did not intend to include penetration through clothing as “penetration” because it did not expressly refer to clothing in the definition of sexual penetration. In contrast, Au-ringer points to the definition of sexual contact, which may occur either by touching bare skin or by touching through clothing. See Minn.Stat. § 609.341, subd. ll(a)-(c) (2000) (setting out several types of “sexual contact”).

A review of the criminal sexual conduct statutes demonstrates the legislature’s ability to precisely describe prohibited acts and prescribe appropriate penalties for each. Not only does the legislature provide detailed definitions of the applicable terms, including penetration and contact, Minn.Stat. § 609.341 (2000), but it describes five degrees of prohibited conduct specifically using those terms, Minn.Stat. §§ 609.342-.3451. The legislature also considered a number of factors in attaching a penalty to each criminal act: the age and mental competence of the complainant and the actor, consent, coercion, the specific conduct, and the relationship between complainant and actor. See id. Given the legislature’s attention to the details of these offenses, there is no merit in Auringer’s argument that the legislature actually intended to include other distinguishing elements in a definition whose meaning otherwise is plain. See generally State v. Koperski, 611 N.W.2d 569, 573 (Minn.App.2000) (holding this court may not supply what legislature has omitted).

Furthermore, there is no rule of statutory construction that requires symmetry between the statutory definitions of penetration and contact. The definitions of each are set out distinctly and with precision. And the operative word in the definition of penetration is “intrusion.” Minn. Stat. § 609.341, subd. 12(2). “Intrusion” is absent from all forms of touching described in the statutes. This, alone, is an adequate distinction between the two terms that removes any question of ambiguity. We see nothing irreconcilable in these unambiguous definitions.

If the presence of clothing were a relevant factor justifying distinct treatment in cases of penetration, there is no question that the legislature would have so stated. Accordingly, applying the plain meaning of the statutory definitions used in the first-degree criminal sexual conduct statute, we conclude that Auringer’s insertion of his fingers into P.S.’s vagina through her clothing constituted sexual penetration.

II.

Auringer argues that his rights to due process and a fair trial were denied when the jury heard an audiotape in which a well-credentialed sex crime investigator allegedly commented on the victim’s credibility.

Defense counsel did not attempt to suppress or object to admission of the audiotape. He also did not request redaction of any part of the tape or a cautionary jury instruction. Failure to object to the admission of evidence generally constitutes waiver of the right to appeal on that basis. State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999). However, an appellate court may consider a waived issue if there is (1) error; (2) that is plain; and (3) the error affects the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). To satisfy the third prong, a defendant bears a “heavy burden” of persuasion to show that “the error was prejudicial and affected the outcome of the case.” Id. at 741. If these three prongs are met, the trial court must then decide whether it should address the issue in order to “ensure fairness and the integrity of the judicial proceedings.” Id. at 740. Only after all these factors are satisfied may we exercise our discretion to correct an unobjected-to error. See id.; see also Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 1548-49, 137 L.Ed.2d 718 (1997) (describing plain error test, which Minnesota Supreme Court adopted in Griller).

It is well settled that one witness may not “vouch for or against the credibility of another witness.” State v. Ferguson, 581 N.W.2d 824, 835 (Minn.1998). The credibility of a witness is for the jury to decide. State v. Koskela, 536 N.W.2d 625, 630 (Minn.1995). More specifically, we generally “reject expert opinion testimony regarding the truth or falsity of a witness’ allegations about a crime, for the expert’s status may lend an unwarranted stamp of scientific legitimacy to the allegations.” State v. Myers, 359 N.W.2d 604, 611 (Minn.1984) (quotation omitted).

Here, the context of the audiotaped interview was made clear to the jury. Au-ringer appeared voluntarily, and the detective’s very clear objective was to elicit Auringer’s version of the facts so that the county attorney would have facts from both sides before deciding whether to charge Auringer. In the forty-page transcript, three times Tuma commented that P.S. gave a “convincing story.” Each time, the context was the detective’s attempt to persuade Auringer to be forthcoming and provide facts to rebut P.S.’s allegations. Cf. Ferguson, 581 N.W.2d at 835-36 (stating that because defendant was at police station, jury could have understood officer’s statements about credibility of defendant and other witnesses as mere attempt to get defendant to confess). Tuma never said that he was convinced P.S. had given a truthful statement; he referred to P.S. as providing a “story,” that, only absent Auringer’s side of it, was “convincing.” Tuma also provided Auringer with multiple opportunities to show that P.S. was motivated or prone to lie. Coupled with other testimony that P.S. had previously lied regarding abuse by her father and stepfather, Tuma’s comments did not prejudice Auringer or affect the outcome of his trial. Because the comments were not error, and, even if they-were, they were not reversible error, Auringer is not entitled to a new trial.

III.

Auringer has submitted a pro sé brief in which he denies the claims made against him and states his version of the facts. Because his brief is, in effect, an attempt to improperly supplement the record with additional facts, this court may disregard it as a violation of Minn. R. Civ.App. P. 110.01, which limits the record on appeal to the evidence presented to the district court.

DECISION

Because the definition of sexual penetration unambiguously encompasses penetration through clothing and because the trial court did not err in admitting the audiotaped interview, the postconviction court properly denied Auringer’s requested relief.

Affirmed.


source: Caselaw Access Project

author: DIETZEN, Judge.

license: Public Domain

text:
    AUTO-OWNERS INSURANCE COMPANY, Respondent, v. GREAT WEST CASUALTY, Appellant.
    No. A04-1591.
    Court of Appeals of Minnesota.
    May 10, 2005.

      Thomas E. Emmer, Teresa A. Anderson, Emmer & Associates, P.A., Maple Plain, MN, for respondent.
    Michael W. McNee, Tamara L. Novotny, Cousineau, McGuire & Anderson, Minneapolis, MN, for appellant.
    Considered and decided by GORDON SHUMAKER, Presiding Judge; TOUSSAINT, Chief Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

In this no-fault insurance benefits proceeding, appellant challenges the district court’s decision awarding summary judgment to respondent. The district court concluded that the insured’s injury arose out of the “maintenance or use” of an automobile-transport trailer insured by appellant, and not out of the “maintenance or use” of a stalled vehicle insured by respondent, which was loaded on top of the trailer. Because we conclude that the injury arose out of the “maintenance or use” of the stalled vehicle, and not the trailer, we reverse and remand.

FACTS

On February 9, 2001, David Martin, a driver for Crossman Auto Transport, Inc., drove an automobile-transport trailer loaded with used vehicles to Gessell Auto Sales, owned by Jerome Gessell. After parking the trailer on an adjacent street, Martin informed Gessell that one of the vehicles was stalled on the top deck of the trailer near the front of the cab. Martin asked Gessell for assistance in manually unloading the stalled vehicle from the trailer so it could be jump-started on the street. Gessell and a friend climbed up the trailer’s ladder to the stalled vehicle while Martin sat inside the stalled vehicle to release the brake. Gessell and the friend decided to pull back on the stalled vehicle’s fender because there was no room on the trailer to push the stalled vehicle from the front. Gessell placed one foot on the trailer’s wheel-track and one foot on a beam. "When Gessell and the friend pulled on the stalled vehicle’s fender, it rolled back quickly and Gessell jumped out of the way to avoid a collision. As Gessell moved out of the stalled vehicle’s path, his left foot slipped between two beams on the trailer, causing him to become wedged in between the beams, which seriously injured his left leg.

The accident was reported to appellant Great West Casualty Company, the insurer of the automobile-transport trailer, and respondent Auto Owners Insurance Company, the-insurer of Gessell and his business vehicles, including the stalled vehicle. In November 2002, respondent brought a complaint for declaratory judgment, alleging that it was not responsible for the payment of .no-fault benefits. On- cross-motions ' for summary judgment, the district court granted respondent’s motion, finding that Gessell’s injuries “arose out of the maintenance and use” of the automobile-transport trailer insured by appellant. Specifically, the district court held that (1) the trailer was an “active accessory” in causing Gessell’s injury; (2) the injury “occurred as a reasonable consequence” of the use of the trailer; and (3). the accident resulted from the use of the trailer for transportation purposes. . This appeal follows.

ISSUE

Did the • district court err in granting summary judgment for respondent by concluding that the injury resulted from the “maintenance or use” of the trailer?

ANALYSIS

“On an appeal from ' summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and' (2) whether the lower eourt[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). - We “must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On appeal from a declaratory judgment, we review the district court’s factual findings for clear error but review de novo its determinations of questions of law. Rice Lake Contracting Corp. v. Rust Env’t & Infrastructure, Inc., 549 N.W.2d 96, 98-99 (Minn.App.1996), review denied (Minn. Aug. 20,1996).

The parties acknowledge that there are no genuine issues of material fact in dispute, and that the only issue is how Minnesota’s no-fault insurance benefits statute applies to apportion responsibility for Gessell’s benefits. We do not defer to the district court’s application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989). It is undisputed that Gessell was not a driver or occupant of the automobile-transport trailer or the stalled vehicle at the time of the accident. Therefore,- the issue is whether Gessell’s injury arose “from the maintenance or use of a motor vehicle.” Minn.Stat. § 6533.47, subd. 3 (2000). If the injury occurred from the “maintenance or use” of a vehicle, and the injured person “is not a driver or occupant of another involved motor vehicle, the security for the payment of basic economic loss benefits is the security covering the vehicle, or if none, the security under which the injured person is an insured.” Id. We now turn to an analysis of existing precedent to determine whether Gessell’s injury arose from the “maintenance or use” of the automobile-transport trailer or the stalled vehicle.

Determining whether an injury occurred from the “maintenance or use” of a vehicle depends upon the facts presented. Galle v. Excalibur Ins. Co., 317 N.W.2d 368, 370 (Minn.1982). But “[w]hether an injury arose out of the maintenance or use of a motor vehicle is a question of law.” Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 842 (Minn.App.1994), review denied (Minn. June 2,1994).

The Minnesota Supreme Court has established a three-part test to determine when an injury occurred from the “maintenance or use” of a vehicle. Cont’l W. Ins. Co. v. King, 415 N.W.2d 876, 877-78 (Minn.1987). First, the vehicle must be an “active accessory” in the cause of the injury. Id. at 878. The “active accessory” causation standard is “something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury.” Id. (quotation omitted). Second, there cannot be an act of independent significance that breaks the chain of causation between the vehicle and the injury. Id. For example, a motorcyclist was ineligible for no-fault benefits when a police officer left his squad car and battered the motorcyclist because the tort broke the causal connection between the “maintenance or use” of the squad car and the motorcyclist’s injury. Id. (citing Holm v. Mut. Serv. Cas. Ins. Co., 261 N.W.2d 598, 603 (Minn.1977)). Third, assuming a causal link between the “maintenance or use” of the vehicle and the injury, “coverage should exist only for injuries resulting from use of an automobile for transportation purposes.” Id. (citation omitted). For example, coverage was denied when an insured’s children were asphyxiated when their mother used a vehicle to commit suicide in the family’s garage. Id. (citing Classified Ins. Corp. v. Vodinelich, 368 N.W.2d 921, 923 (Minn.1985)).

The district court applied the King test to the facts of this dispute and held that appellant, the insurer of the automobile-transport trailer, was responsible for payment of no-fault benefits because the trailer was an “active accessory” in causing Gessell’s injury. In other words, the district court reasoned that at the time of the injury, Gessell was performing a transaction essential to the use of the trailer— unloading a vehicle — so the element of causation was met. See Kern v. Auto Owners Ins. Co., 526 N.W.2d 409, 411 (Minn.App.1995) (concluding truck was “active accessory” to pedestrian’s injury because truck “was designed specifically to accommodate and transport materials such as the building materials involved. Put another way, the accident happened, not in a unique or bizarre way, but in a way utilizing the specific design and usage of a pickup truck.”).

We disagree. Under the first prong of the King test, the automobile-transport trailer was the mere situs for Gessell’s injury because the actual cause of his injury arose out of the “maintenance or use” of the stalled vehicle. See Anderson v. Am. Cas. Co., 504 N.W.2d 467, 468 (Minn.1993) (concluding trailer was mere situs of in- . sured’s injury when insured lost control of bulldozer loaded on trailer). Gessell’s undisputed testimony is that there was nothing about the trailer that caused Mm to fall and that he simply moved to avoid getting hit by the stalled vehicle. The stalled vehicle was not the mere situs of the injury, but it was the movement of the stalled vehicle itself that caused Gessell to jump out of the way and fall between the trailer’s beams. Accordingly, we conclude that there is an element of causation between the stalled vehicle and Gessell’s injury.

Caselaw construing the first prong supports our determination. In Anderson, an insured was injured when a bulldozer he was attempting to drive off a trailer fell over the trailer’s guardrail. Id. at 467. The insured testified that he could not control the bulldozer because dew had accumulated on its treads, and he noted that neither the trailer nor the bulldozer were in a defective condition. Id. In that case, the supreme court denied no-fault benefits because the trailer was not an “active accessory” in the cause of the accident. Id. at 468. The Anderson Court reasoned that there was no causal connection between the “maintenance or use” of the trailer and the injury; the trailer was the mere situs of the injury, which was actually caused by the presence of dew on the bulldozer’s treads. Id.

Like Anderson, our case involves a vehicle (stalled vehicle) located within a vehicle (automobile-transport trailer). In other words, the stalled vehicle is equivalent to the bulldozer with dew on its treads that was the actual cause of the injury. Here, it was the sudden movement of the stalled vehicle that caused Gessell to jump to avoid a collision for which he sustained injuries. The automobile-transport trailer is equivalent to the trailer carrying the bulldozer in Anderson that was simply the situs of the injury. Nothing in the “maintenance or use” of the automobile-transport trailer caused Gessell’s injuries.

In another case, the supreme court denied no-fault benefits to an insured who was injured while operating a backhoe that was mounted on the back of a truck. Waldbillig v. State Farm Mut. Auto. Ins. Co., 321 N.W.2d 49, 53 (Minn.1982). The court held that the operation of the backhoe did not relate to the “maintenance or use” of the truck, because the backhoe was completely separated from the truck at the time of the injury. Id. at 50-51 (“The mere fact that an accident occurred while the injured party was on, in or near a statutorily defined motor vehicle, of itself is not dispositive.”). Here, as in Waldbil-lig, the relevance of the automobile-transport trailer is merely its fortuitous proximity to the stalled vehicle, which was the actual cause of Gessell’s injuries.

Respondent counters that this situation is more like a case where an insured pedestrian sought no-fault benefits when she was struck by siding that blew out of a nearby truck. See Kern, 526 N.W.2d at 410-11. In Kern, this court determined that the truck was an “active accessory” to the injury because the injury occurred in a method that utilized “the specific design and usage” of the truck. Id. at 411. But Kern is inapplicable here because there is no indication that Gessell’s injury occurred through “the specific design and usage” of the automobile-transport trailer. No defect in “the specific design or usage” of the automobile-transport trailer is alleged to have caused Gessell to jump to avoid a collision with the stalled vehicle. Instead, Gessell simply jumped to avoid the stalled vehicle.

In a consolidated case decided before Klug, the supreme court allowed no-fault benefits to an insured who was injured when a trailer’s door cable snapped. Galle, 317 N.W.2d at 369-71. The court allowed no-fault benefits for the trailer-cable injury because the injury was caused “by a part of the vehicle itself.” Id. at 370; see also N. River Ins. Co. v. Fairyland Ins. Co., 346 N.W.2d 109, 114 (Minn.1984) (concluding that no-fault benefits applied when farmer was injured while removing tarpaulin from trailer because farmer “was injured by a part of the vehicle itself which malfunctioned ... when he alighted from the vehicle”). But these cases are distinguishable because the claims resulted from defects in the underlying vehicles. Here, there is no indication that Gessell’s injury occurred through a defect in the “specific design and usage” of the automobile-transport trailer. Instead, the stalled vehicle, insured by respondent, was the reason why Gessell climbed on to the trailer in the first place. Under existing easelaw, application of the first factor of the Klug test results in a determination that the stalled vehicle, not the automobile-transport trailer, was the “active accessory” to Gessell’s injuries. We now apply the remainder of the Klug test to determine responsibility for Gessell’s no-fault benefits.

Turning to the second prong of the Klug test, there was no act of independent significance that broke the causal chain between the stalled vehicle and Gessell’s injury. In other words, the injury “occurred as a reasonable consequence” of the plan to pull the stalled vehicle off the trailer. Under the third prong, the stalled vehicle was being used for transportation purposes at the time of the injury. See Kemmerer, 513 N.W.2d at 843 (concluding that no-fault benefits must be paid when truck-topper door injured insured while camping because at time of injury, truck was being used for transportation purposes since it was about to be moved to another campsite). Here, the possibility of the vehicle stalling was clearly a risk associated with motoring. See id. (commenting that policy behind awarding no-fault benefits is to restrict “coverage to risks associated with motoring”). Attempting to move the stalled vehicle off the trailer was a risk integral to the nature of the use of the stalled vehicle. Therefore, because the three-part Klug test applies to the stalled vehicle, Gessell’s injury occurred from the “maintenance or use” of the stalled vehicle, not the automobile-transport trailer, and the district court erred by granting respondent’s motion for summary judgment. Accordingly, respondent is responsible for payment of Gessell’s no-fault benefits under Minn.Stat. § 65B.47, subd. 3.

DECISION

Because we conclude that Gessell’s injuries arose out of the “maintenance or use” of the stalled vehicle under Minn.Stat. § 65B.47, subd. 3 (2000), the district court’s grant of summary judgment in favor of respondent is reversed. We reverse and remand for an order in accord with this opinion.

Reversed and remanded.

      . State law at the time of the accident provided that all persons injured from the “maintenance or use of a motor vehicle” had a right to economic-loss benefits. Minn.Stat. § 65B.46, subd. 1 (2000). To be eligible for benefits, a motor vehicle must be maintained or used "as a vehicle, including ... occupying, entering into, and alighting from it.” Minn.Stat. § 65B.43, subd. 3 (2000).


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Cheyenne Douglas LUSSIER, Appellant.
    No. A04-1316.
    Court of Appeals of Minnesota.
    May 10, 2005.

      John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Timothy R. Faver, Beltrami County Attorney, Bemidji, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; WRIGHT, Judge; and HUSPENI, Judge.

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

   OPINION

WRIGHT, Judge.

Appellant asserts that his right to due process was violated because the state intentionally delayed charging him with first-degree burglary in order to obtain a substantially increased criminal history score and sentence. We affirm.

FACTS

On March 15, 2003, hours after police received a report of a home burglary, appellant Cheyenne Lussier was arrested. On March 18, 2003, in connection with this incident, the state charged Lussier with one count of second-degree burglary, in violation of Minn.Stat. § 609.582, subd. 2 (2002); one count of third-degree burglary, in violation of Minn.Stat. § 609.582, subd. 4 (2002); and three counts of attempted theft of a motor vehicle, in violation of Minn.Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (2002). Lussier subsequently pleaded guilty to these charges, and on May 5, 2003, Lussier was sentenced to 33 months’ imprisonment.

On March 21, 2003, while Lussier was in custody for the March 15 burglary, he admitted his involvement in a home burglary committed on November 27, 2002. On May 7, 2003, the state charged Lussier with one count of first-degree burglary with a dangerous weapon, in violation of Minn.Stat. § 609.582, subd. 1(b) (2002), for the November 27 offense. Lussier moved to dismiss this charge, alleging prosecuto-rial misconduct and violation of his right to due process. According to Lussier, the state had probable cause to charge him with the November 27 burglary before it was charged on May 7, but the state delayed prosecution of the November 27 burglary offense so that the convictions of the March 15 offenses would increase the severity of his criminal history score for the November 27 burglary.

In support of this assertion, Lussier relied on a statement by the prosecutor at the guilty plea hearing on the March 15 offenses. Regarding the sentences on the five counts, as well as the sentence executed upon the revocation of probation on another offense, the prosecutor explained to the district court, “I looked for a way to make them consecutive, but I couldn’t find it. So that is my understanding, that under the Guidelines, they would be concurrent sentences, Your Honor.” Lussier argued that, because the state’s prior attempt at securing consecutive sentences had been frustrated, the state improperly delayed prosecution of the November 27 offense to increase the severity of the sentence. The convictions arising from the March 15 incident increased Lussier’s criminal history score from three to six and increased his presumptive guideline sentence from 78 to 108 months.

The state denied the allegations of bad faith or improper motive. In its order dated August 4, 2003, the district court denied Lussier’s motion to dismiss.

Lussier pleaded guilty to first-degree burglary with a dangerous weapon on December 3, 2003. Relying on its argument that the state had delayed prosecution to obtain a more severe sentence, Lussier moved for a downward durational departure. He sought a sentence of 78 months, based on a criminal history score that did not reflect the convictions of the March 15 offenses. The district court denied the departure motion and sentenced Lussier to 108 months’ imprisonment. This appeal followed.

ISSUE

Did the defendant establish that a pre-charge delay resulted in a violation of the right to due process?

ANALYSIS

Lussier argues that his sentence was imposed in violation of his right to due process because the state intentionally delayed charging him with the November 27 offense in order to obtain a substantially increased criminal history score, resulting in a longer sentence. Whether a sentence violates the right to due process is a question of law, which we review de novo. See State v. Gutierrez, 667 N.W.2d 426, 438 (Minn.2003) (reviewing de novo challenge to sentence under cruel-or-unusual-punishment prohibition of Minnesota Constitution).

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the United States Supreme Court considered the effect of a decision by the state to delay charging an offense. The Marion court held that, in accordance with constitutional guarantees of due process, dismissal is required if “it were shown at trial that the pre-indictment delay ... caused substantial prejudice to' [the defendants’] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” Id. at 324, 92 S.Ct. at 465. The Court did not define which, circumstances constitute prejudicial delay, but it observed:

Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accom- • modate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the eircum-stances of each case.

Id. at 324-25, 92 S.Ct. at 465-66.

Here, a threshold consideration is whether prejudice can be based on a pre-charge delay that affects sentencing. Such a broad definition of prejudice cannot be derived from Marion, which refers only to delay that “caused substantial prejudice to [the defendants’] rights to a fair trial.” We adopted this definition of prejudice in State v. Klindt, observing that prejudice must be related to the ability to mount an effective defense at trial. 400 N.W.2d 127, 129 (Minn.App.1987). Thus, when a defendant pleads guilty, that defendant waives the right to challenge a pre-charge delay. Id. Because Lussier pleaded guilty, we conclude that he did not suffer prejudice at trial and, therefore, cannot proceed with a due process challenge to his sentence under a theory of pre-charge delay.

We note that our decision, in Klindt is contrary to the majority rule in other jurisdictions that have considered the issue. When a pre-charge delay affects only sentencing, some jurisdictions characterize the potential prejudice as “speculative.” United States v. Brockman, 183 F.3d 891, 897 (8th Cir.1999); United States v. Martinez, 77 F.3d 332, 336-37 (9th Cir.1996). But these jurisdictions nevertheless have found sufficient prejudice to inquire further into whether the delay was the result of an improper state motive. Brockman, 183 F.3d at 896; Martinez, 77 F.3d at 336; State v. Trompeter, 555 N.W.2d 468, 471 (Iowa 1996); Randall v. State, 806 So.2d 185, 215-16 (Miss.2001). Given that approximately 97 percent of criminal proceedings in Minnesota are resolved without trial, Minnesota Court Services, 2004 Research & Evaluation Data, w'e query whether due process protection should not also extend to a pre-charge delay that affects sentencing when conviction is pursuant to a guilty plea.

If a due process challenge' to a sentence imposed following a guilty plea were permitted to proceed on the basis of a pre-charge delay, we would then consider whether Lussier could establish a violation of due process. Although authorities have not adopted a uniform standard as to the defendant’s burden for this claim, most require the defendant to prove both substantial prejudice and improper state motive. United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir.1996); United States v. McCoy, 977 F.2d 706, 711 (1st Cir.1992); 3 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 18.5(b) (2d ed.1999). And this is the standard that the Minnesota Supreme Court has adopted. State v. Hanson, 285 N.W.2d 487, 489 (Minn.1979) (requiring defendant to establish proof of both substantial prejudice and improper state motive); State v. F.C.R., 276 N.W.2d 636, 639 (Minn.1979) (same).

Several principles limit the scope of substantial prejudice based on a prosecutor’s exercise of discretion as to when and whether to proceed with criminal charges. United States v. Lovasco, 431 U.S. 783, 791, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977). A mere averment of delay will not establish prejudice. McCoy, 977 F.2d- at 711; United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir.1989). Moreover, prejudice cannot be inferred from a pre-charge delay to conduct additional investigation or from a failure to proceed with charges immediately after probable cause is established. Lovasco, 431 U.S. at 791-94, 97 S.Ct. at 2049-51. Although the Minnesota Supreme Court has not addressed this issue directly, it accords substantial deference to the state’s, decision regarding when to initiate criminal charges. F.C.R., 276 N.W.2d at 638.

Some courts have suggested that, when a delay results in a disproportionate criminal history, there is sufficient prejudice to require a downward durational departure. Brockman, 183 F.3d at 897; Martinez, 77 F.3d at 336-37. When a due process claim proceeds on this basis, prejudice may be assumed in order to reach the issue of improper state motive. Martinez, 77 F.3d at 336. Because Lussier received a more severe sentence, apparently due to a delay in charging, for the purpose of our analysis, we also shall assume substantial prejudice in order to address whether there is proof of an improper state motive.

Our research has produced only two cases that have considered whether a pre-charge delay, resulting in a more severe criminal history, is attributable to an improper state motive. In Brockman, the Eighth Circuit noted that any increased criminal history is the product of the defendant’s actions and cannot be attributed to the state. 183 F.3d at 896. In Randall v. State, when an intervening offense caused a defendant to be eligible for the death penalty but the defendant failed to offer any proof of improper state motive, the Mississippi Supreme Court held that an improper motive may not be inferred. 806 So.2d at 215-16.

Lussier claims that, because the state was unable to obtain consecutive sentencing for the March 15 offenses, the state delayed prosecution of the November 27 offense in order to obtain a more severe penalty. This assertion is based solely on the prosecutor’s statement at the guilty plea hearing for the March 15 offense, when he noted that he was unable to obtain consecutive sentences.

It is the prerogative of the state to request a sentence from the district court, State v. Krotzer, 548 N.W.2d 252, 253-54 (Minn.1996), and an improper motive cannot be established by an accurate statement of the law, In re Lord, 255 Minn. 370, 381, 97 N.W.2d 287, 294 (1959). Here, during a discussion with the district court regarding sentencing options, the prosecutor accurately stated that consecutive sentencing was not available for the March 15 offenses. See Minn. Sent. Guidelines II.F (concurrent sentencing presumption except in limited circumstances). Aside from a single accurate statement of the law, Lus-sier relies entirely on the fact of delay to establish an improper state motive. But we cannot infer an improper state motive from such delay alone, even when it results in a more severe criminal history score and a longer sentence. See Brockman, 183 F.3d at 896; Sherlock, 962 F.2d at 1354. Lussier has not established an improper state motive, which provides a second basis to reject his claimed denial of due process.

DECISION

Because Lussier entered a guilty plea, Lussier is unable to establish that a pre-charge delay substantially prejudiced his rights at trial. He, therefore, waived the right to assert that such delay violated his right to due process.

Affirmed.

      . The state raises two procedural objections to this appeal. The state first asserts that, because Lussier did not demand recalculation of his criminal history score before the district court, he cannot seek this relief on appeal. Although Lussier did not seek recalculation, he sought equivalent relief in the form of a downward durational departure. Both parties litigated the due process issue, and the district court ultimately decided against Lus-sier. Because Lussier’s claim of prejudicial pre-charge delay was litigated before and decided by the district court, it is properly preserved for appeal. State v. Foreman, 680 N.W.2d 536, 539 (Minn.2004).
      The state also contends that Lussier’s appeal was untimely. Although Lussier’s notice of appeal was filed 92 days after his sentencing, it was properly filed with an affidavit of service by mail, which establishes that the notice of appeal was mailed before the 90-day deadline. Thus, Lussier’s appeal is timely. Minn. R. Civ.App. P. 125.03 (providing that service by mail is complete on mailing); State v. Kortkamp, 633 N.W.2d 863, 866 (Minn.App.2001).

      . Most jurisdictions, however, have not squarely addressed whether prejudice can be based on delay that affects the severity of a sentence. Some jurisdictions have considered instead whether prejudice can be based on a delay that prevents a sentence to be served concurrently with a prior conviction. Most have held that such delay, by itself, is insufficient to support a claim of actual prejudice. See, e.g., United States v. Stokes, 124 F.3d 39, 44 (1st Cir.1997); United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir.1989); State v. Higa, 102 Hawaii 183, 74 P.3d 6, 10 (2003); Jones v. State, 96 Nev. 240, 607 P.2d 116, 117 (1980). Without expressly deciding the prejudice element, other jurisdictions have decided that, without an improper state motive, a lost opportunity for a concurrent sentence does not violate the right to due process. See, e.g., Commonwealth v. Imbruglia, 377 Mass. 682, 387 N.E.2d 559, 564-65 (1979). The Minnesota Supreme Court reached this same conclusion in State v. F.C.R., 276 N.W.2d 636 (Minn.1979). Without considering whether the denial of a concurrent sentence caused prejudice, the F.C.R. court held that, in the'absence of an improper state motive, a lost opportunity for a concurrent sentence does not violate the right to due process. Id. at 639.

      . Some courts have held that an improper state motive may not be inferred from the fact that charging is delayed until completion of a separate proceeding. Stokes, 124 F.3d at 45 (finding that prosecutor admitted federal prosecution was contingent on outcome of state prosecution); see also State v. Waterhouse, 62 Or.App. 12, 659 P.2d 1013, 1016 (1983) (holding that prosecution after discharge from parole was not prejudicial). The Minnesota Supreme Court reached a similar conclusion in F.C.R., noting in dictum that "[t]he mere fact that a prosecutor waits to see how long a defendant serves on a prior offense before charging him with another crime does not deny the defendant due process.” 276 N.W.2d at 639.


author: PORITSKY, Judge.

text:
    In the Matter of the Expulsion of Z.K. (A04-1617) and S.K. (A04-1618) from Anoka Hennepin Independent School District No. 11.
    Nos. A04-1617, A04-1618.
    Court of Appeals of Minnesota.
    May 17, 2005.

      Alfred Stanbury, Stanbury Law Firm, P.A., Minneapolis, MN, for relators.
    Stephen M. Knutson, Michelle D. Ken-ney, Knutson, Flynn, & Deans, P.A., Men-dota Heights, MN, for respondent Independent School District No. 11.
    Mike Hatch, Attorney General, Martha J. Casserly, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Department of Education.
    Considered and decided by MINGE, Presiding Judge; WRIGHT, Judge; and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

Relators S.K. and Z.K. were expelled from respondent school district because they were involved in shooting another juvenile with a BB gun. The school board expelled both relators for periods of one year. On appeal from the Commissioner of Education’s order affirming the school board’s expulsion order, relators argue that the commissioner’s decision must be reversed because (1) the hearing waivers were invalid and nullified the school board’s decision; (2) the school district lacks jurisdiction over student acts occurring off school property and outside a school zone; (3) the commissioner’s decision was based on insubstantial, conflicting, and inadmissible evidence; and (4) the expulsion decisions were arbitrary and capricious. We conclude that because the parents did not receive proper notice of the availability of free or low-cost legal assistance as required by Minn.Stat. § 121A.47, subd. 2(f)(1) (2004), the hearing-waivers were invalid. Therefore, we reverse and remand.

FACTS

This appeal arose from an incident that resulted in the expulsion of two brothers, relators Z.K. and S.K., from Sandburg Middle School (Sandburg) in Anoka County. At the time of the incident, Z.K., and his friend and neighbor B.H. were eighth-grade students at Sandburg, and Z.K’s brother, S.K., was a sixth-grade student at Sandburg. T.K., the victim in the incident, was S.K’s classmate.

On the morning of May 11, 2004, Z.K. and S.K. met B.H. in the parent’s garage before the school bus arrived. The boys observed T.K., who was waiting at the bus stop, and B.H. suggested that they shoot T.K. with a BB gun. The gun, which belonged to B.H., had been previously left at the brothers’ home. One of the brothers got the gun and gave it to B.H. Then one of the brothers called out to T.K. to come over to their house to play basketball. B.H. hid behind the retaining wall with the B.B. gun, and when T.K. arrived, B.H. popped up and pointed the gun at T.K. As T.K. turned and ran back toward the bus stop, B.H. shot the BB gun at T.K., hitting him in the back. B.H. then handed the gun to Z.K. who also shot in the direction of T.K.

Shortly after the incident, the boys boarded the school bus and went to school. Later that day, an unidentified student informed Sandburg Assistant Principal Deb Shepard of the BB-gun incident. Shepard called T.K. into her office, and he admitted that he had been shot with a BB gun that morning. T.K. identified S.K., Z.K., and B.H. as the students involved. Shepard and David Law, another Assistant Principal at Sandburg, called S.K. and Z.K. into Law’s office to discuss the morning’s incident. Law informed the brothers that the matter was serious, and that if they were comfortable with doing so, he would take their statement. Law then met with each boy individually, and each boy told Law his version of the events while Law typed it on the computer. Each boy then read the statement and signed it.

At the end of the school day on May 11, school officials met with S.K. and Z.K’s parents to explain the situation. The parents were informed that S.K. and Z.K. each received an initial ten-day out-of-school suspension for their conduct. The parents were also informed that the suspension was “pending possible expulsion.” The next day, Doug Hodson, the Assistant Principal of Alternative Programs for the School District, talked with the mother about the situation. During the conversation, the mother asked Hodson if the family should retain a lawyer. According to the mother, Hodson replied that “if [they] knew or had a family friend who was a lawyer, sure,” but “not to spend a lot of money on a lawyer because that would probably be a waste since [they] probably would not win against District 11.” The mother subsequently shared Hodson’s advice with her husband. Hodson, however, denied making the statement.

On May 14, 2004, the family met with Hodson. At the meeting, the parents admitted that their boys “did a stupid thing,” and provided Hodson with handwritten notes from S.K. and Z.K. explaining the events of May 11. Hodson then provided the .family with letters informing them that the action being recommended by the School District was expulsion of S.K. and Z.K. Hodson advised the family that “the School District administration intended to recommend that [S.K.] be expelled for the remainder of the school year and that [Z.K.] be expelled for one year under probationary conditions, however the [s]chool [b]oard makes the final decision and has the authority to expel each student for a period of up to one calendar year.” Hod-son also explained that in determining whether to expel the boys, a deciding factor could be where the incident took place. Hodson informed the family that if they disputed the facts, or felt the location of the incident was at issue and the incident did not warrant an expulsion, S.K. and Z.K. each had the right to a hearing before a hearing officer who would review all the evidence and make a recommendation to the school board as to whether S.K. and Z.K. should be expelled. But in response to Hodson’s advisements regarding a hearing, Hodson claims that the father commented “why get an attorney when that is what happened?” According to Hodson, he replied by explaining that it was then-decision, but reassured them that they would have an opportunity to address the situation with the school board members at a later meeting.

At the end of the meeting with Hodson, the parents signed waivers for both S.K. and Z.K. that waived their right to hearings on the matter and further provided that the school board may proceed to expel the brothers without a hearing. Shortly thereafter, the school board held a closed session meeting where the incident was discussed. The parents were allowed to attend the closed session meeting, and the father provided the board with a typed statement of his comments regarding the situation.

After considering the situation in light of the District’s policy, the school board adopted a resolution expelling S.K. for one calendar year, but allowing him to return to school on November 15, 2004, under probationary conditions. The school board also adopted a resolution expelling Z.K. for one calendar year, but allowing him to return to school on April 11, 2005, under probationary conditions. The family was mailed copies of the resolution on May 25, 2004.

Relators appealed the school board’s actions to the Commissioner of the Minnesota Department of Education. On August 9, 2004, the commissioner issued a decision affirming the school board’s expulsion of S.K. and Z.K. Relators appeal by writ of certiorari, and the appeals were consolidated for review.

ISSUES

I. Were the hearing waivers invalid?

II. Did the School District have jurisdiction to expel S.K. and Z.K.?

III. Did the commissioner base its decision on insubstantial, conflicting, and inadmissible evidence, thereby rendering the decisions in error?

IV. Was the commissioner’s decision arbitrary and capricious?

ANALYSIS

A reviewing court may reverse an administrative agency’s decision only if the decision violates a constitutional provision, is outside the statutory authority or jurisdiction of the agency, is based on unlawful procedures, reflects an error of law, is unsupported by substantial evidence, or is arbitrary and capricious. Minn.Stat. § 14.69 (2004).

I.

Relators argue that the school board’s decision should be reversed because the waivers signed by relators were invalid. But the school board argues that notwithstanding the validity of the waivers, rela-tors’ appeal should be dismissed because the commissioner does not have authority to review the matter. The school board further contends that relators waived this issue by failing to raise it below.

A Authority to review the matter

The school board argues that the commissioner does not have authority to review the matter because relators did not have the right to appeal the school board’s expulsion orders. The board argues that (1) under the statute authorizing an appeal to the commissioner, the board must have made a decision and (2) that its expulsion orders in this case were not decisions. This argument is based on Minn.Stat. § 121A.49 (2004), which allows a party to appeal from a decision of the school-board, and on Minn.Stat. § 121A.47, subd. 13 (2004), which provides that the school board shall base its decision on the recommendation of the hearing officer or school board member. Thus, the school board reasons, if there were no prior action by a hearing officer or board member, the board cannot make a decision, but instead, “simply takes action to expel the student based upon the waiver.” The school board concludes that when relators waived their right to a hearing, they also waived the right to appeal.

This argument fails. ' Minn.Stat. § 121A.47 (2004), which governs expulsion, speaks of initiating an “action” in subdivision 1 and uses the phrase “proposed action” in subdivisions 8 and 9 in outlining the pupil’s procedural rights. However, when the statute, in subdivision 13, gets to describing the ultimate act taken by the school board at the conclusion of the proceeding, it uses the word “decision,” as the school board notes; but it does not use the word “action.” The school board’s argument requires that subdivision 13 be read to 'state that the ultimate act taken by a school board is either a decision (which is appealable to the commissioner) or an action (which is not). But because the legislature used only the ■ word “decision” in describing the ultimate act, we conclude that any act of a. school board in expelling a student is a decision and is appealable within the meaning of section 121A.49.

Moreover, we note that in each of the school board’s resolutions to expel re-lators, the notifications specifically provide that “[relators] have the right to..appeal this decision to [the] Department of Education.” (Emphasis added.) Due process includes the right of appeal from or review of a decision regarded by a litigant as unjust. Hunter v. Zenith Dredge Co., 220 Minn. 318, 326, 19 N.W.2d 795, 799 (1945). Although the waivers, signed by relators addressed the right to a hearing before the school board, the waivers did not mention a right to appeal. To conclude that the commissioner has no authority to review the school board’s decision because rela-tors waived their right to a hearing on the matter would fly in the face of conventional due process rights.

Finally, as applied to the facts of this case, the school board’s argument is circular. If the board’s action of expulsion is based on the waivers (as the school board asserts), and if the waiver turns out to be invalid, the only way the parent can challenge the waiver, and hence the expulsion, is by an appeal. But, under the school board’s argument, the very waivers that the parents allege are invalid would operate to waive their right to challenge the validity of the waivers. This reading leads to an absurd result. See Minn.Stat. § 645.17 (2004) (stating the legislature does not intend a result that is absurd). On all the above considerations, we conclude that relators did not waive their right to appeal and that the commissioner had authority to review the matter.

B. Failure to raise the issue below

The school board next argues that even if the commissioner had authority to review the decision, this court should not address the waiver issue because relators failed to raise it below. The general rule that matters not raised below are not addressed on appeal extends to appeals from administrative decisions. E.N. v. Special Sch. Dist. No. 1, 603 N.W.2d 344, 348 (Minn.App.1999). But an appellate court, in its discretion, may review any matter in the interest of justice. Agra Res. Coop v. Freeborn County Bd. of Comm’rs., 682 N.W.2d 681, 684 (Minn.App.2004).

In any event, the record reflects that relators raised the issue of the validity of the hearing-waivers before the commissioner. Relators’ brief in support of their appeal to the commissioner distinctly raised the issue, which is reflected by the commissioner’s order that provides: “[re-lators] challenge[ ] the validity of the waiver of expulsion hearing asserting that [their] parents were discouraged from obtaining legal counsel, and that they were led to believe that [relators] would only be expelled for the remainder of the school year.” Accordingly, the issue is properly before this court.

C. Validity of the hearing-waiver

Relators argue that when they waived their right to a hearing, they were not fully informed of their rights under the Pupil Fair Dismissal Act (PFDA). Specifically, relators base their argument on MinmStat § 121A.47, subd. 2(f)(1), which requires that written notice of intent to expel a student must:

(f) inform the pupil and parent or guardian of the right to:
(1) have a representative of the pupil’s own choosing, including legal counsel, at the hearing. The district shall advise the pupil’s parent or guardian that free or low-cost legal assistance may be available and that a legal assistance resource list is available from the Department of Education.

Relators contend that because they were not advised “that free or low-cost legal assistance may be available and that a legal assistance resource list is available from the Department of Education,” their hearing-waivers were invalid. We note that the statute does not make such assistance dependent on financial need. See id.

At the May 14, 2004, meeting between Hodson and relators, Hodson provided re-lators with letters from the school district informing relators that expulsion was being recommended. These letters provide that: “I have enclosed for your information a copy of the [PFDA].” Although the copies of the PFDA were not attached to the May 14 letters contained in the record, the- school board insists that relators were provided with a copy, and relators do not dispute this fact. We therefore assume that relators were provided with copies of the entire PFDA.

But according to the record, a copy of the entire PFDA was the only notice that relators received of the availability of legal assistance. The record reflects that relators had voiced a concern about obtaining legal counsel and were worried about the cost. Although the nature of the conversation concerning the. retention of legal counsel is disputed, the record' clearly indicates that relators were not specifically advised “that free or low-cost legal assistance may be available and that a legal assistance resource list is available from the Department of Education.” Minn. Stat. § 121A.47, subd. 2(f)(1). The PFDA consists of 17 sections, with some sections containing numerous subdivisions. The availability of free or low-cost counsel appears in one sentence in section 121A.47 (entitled, “Exclusion and Expulsion Procedures”), subdivision 2 (entitled ‘"Written notice”). Even assuming that relators received a copy of the entire PFDA, in our opinion the mere receipt of the entire PFDA is not sufficient notice of the availability of low-cost legal assistance or of the existence of the department’s legal assistance resource list.

Moreover, the record indicates that Hodson advised the brothers’ parents that “■with respect to the length of expulsion, the School District administration intended to recommend that [S.K.] be expelled for the remainder of the school year and that [Z.K.] be expelled for one year under probationary conditions....” We recognize that Hodson also told relators that “the [s]chool [b]oard makes the final decision and has the authority to expel each student for a period of up to one calendar year,” but the fact that Hodson indicated to the brothers’ parents that the recommended length of expulsion was somewhat less than the expulsion that S.K. and Z.K. actually received, further compounds the lack of notice provided to relators concerning the availability of low-cost legal counsel. On these circumstances, we conclude that the noticé did not adequately advise relators that free or low-cost legal assistance was available, and, therefore, the waivers were not knowing and intelligent. While we are mindful of the catastrophic events that have resulted from guns in the hands of students, we are equally mindful of thé legislative requirement that students be treated fairly, including the requirement that students be advised that' “free or low-cost legal assistance” may be available. Because we conclude that rela-tors’ waivers were not knowing or intelligent, we reverse the school board’s decision expelling Z.K. and S.K., and remand the matter to the school board for further proceedings.

II.

Relators also contend that because the incident occurred “near” the bus stop, rather than “at” the bus stop, the incident is outside the scope of the weapons policy. Thus, relators argue that the school board did not have jurisdiction over the incident.

In concluding that the school board had jurisdiction over the matter, the commissioner cited a previous decision that held:

The District is empowered to discipline a student for off-campus misconduct if the school can show either that 1) the misconduct is a continuation of or has a nexus with improper conduct that occurred on school grounds, or 2) the student’s actions have a direct and immediate effect either on school discipline or on the general safety and welfare of the students.

In the Matter of the Expulsion of J.M. from ISD No. 834, Minnesota Department of Children, Families & Learning (Feb. 18, 1997). The facts here are relatively undisputed. The victim was lured away from the bus stop under the guise of playing basketball. The victim was then shot with a BB gun. The brothers were involved in the incident, and all individuals involved in the matter were students at Sandburg Middle School. Under the specific facts of this case, the School District had discretion to apply its disciplinary policy to the actions of S.K. and Z.K. in order to protect the general safety and welfare of its students. Therefore, we conclude that the school board had jurisdiction over the matter, -and we need not address relators’ argument concerning the precise location where the incident occurred.

The relators’ other arguments are moot in light of our decision to reverse and remand for further proceedings.

DECISION

The waivers signed by relators were invalid because relators were not properly advised that free or low-cost legal assistance may be available and that a legal assistance resource list is available from the Department of Education. Because the waivers were invalid, the decision of the school board expelling both students is reversed and the matter remanded for further proceedings before the board. We express no opinion concerning the ultimate outcome of the proceeding.

Reversed and remanded.

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

      . Appellate courts generally apply the law as it exists at the time they rule on a case, unless a change in the law affects rights that were vested before the change. See Interstate Power Co. v. Nobles Cty. Bd. of Comm’rs, 617 N.W.2d 566, 575 (Minn.2000).

      . S.K. and Z.K. are collectively referred to in this opinion as "the brothers.” Their parents are referred to as "the parents” and their mother and father as "the mother” and "the father” respectively.

      . See supra, note 1.

      . Minn.Stat. § 121A.49 (2004) provides in pertinent part:
      A party to an exclusion or expulsion decision made under [the PFDA] may appeal the decision to the commissioner of education within 21 calendar days of school board action.

      In an appeal under this section, the commissioner may affirm the decision of the agency, may remand the decision for additional findings, or may reverse or modify the decision if the substantial rights of the petitioners have been prejudiced:...

      . Minn.Stat. § 121A.47, subd. 13 (2004), provides:
      The school board shall base its decision upon the recommendation of the hearing officer or school board member or committee and shall render its decision at a meeting held within five days after receiving the recommendation. The school board may provide the parties with the opportunity to present exceptions and comments to the hearing officer’s recommendations provided that neither party presents any evidence not admitted at the hearing. The decision by the school board must be based on the record, must be in writing, and must state the controlling facts on which the decision is made in sufficient detail to apprise the parties and the commissioner of education of the basis and reason for the decision.

      .The school board cites State v. Xiong, 638 N.W.2d 499 (Minn.App.2002), review denied (Minn. April 16, 2002) in support of its proposition that the commissioner did not have authority to review the matter. But this case is distinguishable from Xiong because the issue here is whether review is permitted after relators waived their right to a hearing. In contrast, the issue in Xiong was not whether review was pérmitted, but rather the standard to be applied after the probationer waived his right to-a "contested hearing" on the matter. See id. (holding that probationer's waiver of a "contested hearing” was equivalent to a stipulation to the state's allegations in the violation report, reserving only the right of the probationer to argue mitigation).

      . The record shows that prior to the May 14 meeting, Hodson received the principal's written recommendation that both S.K. and Z.K. be expelled for a period of one calendar year. Hodson also received the assistant principals’ recommendations that S.K. be expelled for the remainder of the school year and that Z.K. be expelled for one year under probationary conditions. It is unclear from the record whether relators were notified of the principal and assistant principals’ recommendations.

      . The school board claims that relators waived the issue because they failed to raise it below. But again, the record reveals that the issue was properly raised below.


author: MARING, Justice.

text:
    2005 ND 85
    Kenneth A. EBERTS, Allan E. Eberts, and Dennis J. Eberts, Plaintiffs and Appellees, v. BILLINGS COUNTY BOARD OF COMMISSIONERS, Defendant and Appellant.
    No. 20040309.
    Supreme Court of North Dakota.
    May 3, 2005.

      Albert J. Hardy, Hardy, Maus & Nord-sven, P.C., Dickinson, N.D., for plaintiffs and appellees.
    Tami Lyn Norgard (argued) and H. Patrick Weir (on brief), Vogel Law Firm, Fargo, N.D., for defendant and appellant.
    Brian L. Bergeson, Schulz Lervick Geiermann & Bergeson Law Offices, P.C., Bismarck, N.D., for amicus curiae North Dakota Association of Counties.
   MARING, Justice.

[¶ 1] The Billings County Board of Commissioners (“Board”) appealed from an order temporarily enjoining it from proceeding under N.D.C.C. § 24-05-09 to condemn land owned by Kenneth, Allan, and Dennis Eberts, or from surveying or recording a survey of a roadway across Eberts’ property. The Board alternatively seeks a supervisory writ to review the trial court’s decision to grant the temporary injunction. We conclude review of the temporary injunction is proper, and the Board may proceed under N.D.C.C. § 24-05-09. We reverse and remand with instructions to dismiss Eberts’ action.

I

[¶ 2] On August 3, 2004, the Board passed a resolution identifying pending congressional legislation to purchase the “Eberts Ranch” for a national park and stating the Board was concerned that if the federal government acquired the land, public access for a crossing of the Little Missouri River in that area would be lost. The resolution declared a public necessity requiring the taking of an existing private road through the Eberts’ property from the road’s intersection with “Blacktail Road” to the intersection with “Bell Lake Road.” The resolution directed that, under N.D.C.C. § 24-05-09, the road shall be surveyed and described by a licensed surveyor, and a plat prepared and recorded with the Billings County Recorder.

[¶ 3] The Eberts sued the Board, seeking to temporarily enjoin it from proceeding under N.D.C.C. § 24-05-09, or from surveying or recording a survey of the road. Eberts also sought a permanent injunction and declaration that N.D.C.C. § 24-05-09 was not applicable to the road. The Eberts alleged that statute was not applicable because it deals with the acquisition of right-of-way, and the Board had not commenced eminent domain proceedings under N.D.C.C. ch. 32-15. The Eberts claimed they had been negotiating a sale of their ranch to the United States Park Service, and the Board’s actions would cause them irreparable damage and injury and frustrate and prevent that sale. The trial court temporarily enjoined the Board from proceeding under N.D.C.C. § 24-05-09, or from surveying or recording a survey of the road. The Board appealed the order granting the temporary injunction, and, alternatively, sought a supervisory writ to review the,order.

II

[¶ 4] The Board argues the trial court’s order granting the temporary injunction is appealable. The Eberts argue the court’s order is not appealable absent a certification under N.D.R.Civ.P. 54(b).

[¶ 5] Ordinarily, a temporary injunction before trial is not reviewable by interlocutory appeal. Fargo Women’s Health Org., Inc. v. Lambs of Christ, 502 N.W.2d 536, 537 (N.D.1993); Fargo Women’s Health Org., Inc. v. Lambs of Christ, 488 N.W.2d 401, 405-06 (N.D.1992). Consistent with our finality doctrine, we usually require compliance with the certification requirements of N.D.R.Civ.P. 54(b) before we will review an interlocutory order. Fargo Women’s Health, 502 N.W.2d at 537. However, when interim relief affects fundamental interests of the litigants, we may review interim relief without a Rule 54(b) certification. Fargo Women’s Health, 502 N.W.2d at 537-38. In Fargo Women’s Health, 488 N.W.2d at 406, a preliminary injunction attempted to balance the rights to deliver and receive medical care against fundamental constitutional rights of free speech and assembly. We said the injunction served an active rather than an incidental purpose, and we concluded review of the order was proper. Id. '

[¶ 6] Here, the temporary injunction involves consideration of a political subdivision’s right to use quick take provisions for condemnation proceedings. The quick take procedures have significant constitutional underpinnings for governmental entities, and we .conclude review of the temporary injunction is proper. See Fargo Women’s Health, 488 N.W.2d at 405-06.

Ill

[¶ 7] The Board argues the trial court erred in granting Eberts a preliminary injunction, because a landowner cannot stop a county from using the quick take proceedings in N.D.C.C. § 24-05-09 under the auspice of challenging a county’s determination of public necessity. The Eberts argue a county may not use the quick take proceedings to take private property when the county does not have a present public use or necessity for the property and condemnation proceedings are instituted to frustrate a sale of the land. The Eberts argue the Board must proceed under N.D.C.C. ch. 32-15, and the court did not err in preliminarily enjoining the county from proceeding under N.D.C.C. § 25-04-09.

[¶ 8] A.trial court’s discretion to grant or deny a preliminary injunction is based on the following factors: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; and (4) effect on the public interest. Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 ND 60, ¶ 24, 676 N.W.2d 752; Vorachek v. Citizens State Bank, 461 N.W.2d 580, 585 (N.D.1990). The decision to grant or deny a preliminary injunction is within the discretion of a trial court, and its determination will not be disturbed on appeal absent an abuse of discretion. Nodak Mut., 2004 ND 60, ¶ 24, 676 N.W.2d 752. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Id.

[¶ 9] The trial court’s decision to grant a preliminary injunction involves issues about a county’s authority to condemn land for a road. Article I, § 16, N.D. Const., authorizes eminent domain proceedings and provides:

Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, unless the owner chooses to accept annual payments as may be provided for by law. No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money or ascertained and paid into court for the owner, unless the owner chooses annual payments as may be provided by law, irrespective of any benefit from any improvement proposed by such corporation. Compensation shall be ascertained by a jury, unless a jury be waived. When the state or any of its departments, agencies or political subdivisions seeks to acquire right of way, it may take possession upon making an offer to purchase and by depositing the amount of such offer with the clerk of the district court of the county wherein the right of way is located. The clerk shall immediately notify the owner of such deposit. The oumer may thereupon appeal to the court in the manner provided by law, and may have a jury trial, unless a jury be waived, to determine the damages, which damages the owner may choose to accept in annual payments as may be provided for by law. Annual payments shall not be subject to escalator clauses but may be supplemented by interest earned.

(Emphasis added).

[¶ 10] Under that provision, private property generally may not be taken for a public use without just compensation having first been made to the owner; however, the underscored language was adopted in 1956 to authorize the legislature to enact “quick take” condemnation procedures for the state and its departments, agencies, or political subdivisions. Johnson v. Wells County Water Res. Bd., 410 N.W.2d 525, 528-29 (N.D.1987). The “quick take” authorization in N.D. Const, art. I, § 16 is not self-executing, and legislation is necessary to effectuate the quick take authority. Johnson, at 529. In Johnson, at 529-30, we held the legislature had not authorized a County Water Resource Board to use quick take proceedings, and the Water Resource Board’s eminent domain authority under N.D.C.C. § 61-16.1-09(2) was limited to the procedures in N.D.C.C. ch. 32-15.

[¶ 11] The quick take provisions of N.D. Const, art. 1, § 16 and N.D.C.C. § 24-01-22.1 authorize the Highway Department to take possession of property by depositing an offer for the property with the clerk of district court and permit the owner to then appeal in the manner provided by N.D.C.C. ch. 32-15. See Haveluck v. State, 333 N.W.2d 425, 428 (N.D.1983). In other instances in which an acquiring agency may exercise the power of eminent domain without using quick take procedures, it must proceed by summons and complaint served upon the property owner, and a trial must be had and an order entered under N.D.C.C. ch. 32-15 before title vests in the acquiring agency. Haveluck, at 428. See N.D.C.C. § 32-15-29 (authorizing condemner to take possession of property at any time after entry of judgment and payment in full). Chapter 32-15, N.D.C.C., is a separate procedure for eminent domain for the taking of private property for public use, which provides owners with greater protections than quick take procedures. Johnson, 410 N.W.2d at 529; Haveluck, at 428.

[¶ 12] Under N.D.C.C. § 24-01-01; the legislature has declared that “[p]roviding adequate public highway facilities, including rural and urban links, [is] a proper public use and purpose,” and has placed a high degree of trust in the hands of those officials, including the director of the department of transportation and boards of county commissioners, “whose duty it is ... to ... develop ... highway facilities of this state, for the present as well as for future use.” Section 24-05-09, N.D.C.C., authorizes a board of county commissioners to condemn land it deems necessary for present use as a highway in the county:

The board of county commissioners of any county of the state, by resolution or order, as part of the cost of constructing, reconstructing, widening, altering, changing, locating, relocating, aligning, realigning, or maintaining, any highway in said county, may purchase, acquire, take over, or condemn, under the right and power of eminent domain, for such county, any and all lands which it deems necessary for the present use, either temporary or permanent, and to provide adequate drainage in the improvement, constructing, reconstructing, widening, altering, changing, locating, relocating, aligning, realigning, or maintaining of any highways in said county, and by the same means it may acquire said lands notwithstanding the fact that the title thereto is vested in the state or any of its subdivisions. Whenever the board of county commissioners determines, by resolution or order, that the public necessity requires the taking of land as aforesaid, it shall cause said lands to be surveyed and described and a plat thereof prepared and recorded in the office of the recorder of the county wherein the same is located. The board of county commissioners, or its duly authorized agents and employees, may enter upon any land for the purpose of making such survey, examination, or test, but in case of damages to the premises the board of county commissioners forthwith shall pay to the owner of said premises the amount of such damages.

[¶ 13] If a board of county commissioners is unable to purchase land under N.D.C.C. § 24-05-09 for use as a highway at a price deemed reasonable by the board, the board shall declare the necessity for the taking of the land and shall direct a special board consisting of the county auditor, the county treasurer, and the county recorder to fix the damages for the taking of the land. N.D.C.C. § 24-05-10. The specially constituted board shall hold a hearing for all persons or parties interested or aggrieved by the taking and shall proceed to fix damages to be paid by the county. N.D.C.C. § 24-05-11. When the special board determines and awards damages, the county commissioners shall pay the amount to the clerk of the district court. N.D.C.C. § 24-05-12. If no appeal is taken from the award within thirty days from the date of deposit with the clerk of the district court, the title to the land taken vests in the county. N.D.C.C. § 24-05-13. However, any party aggrieved by the award “shall have the remedy now provided by law for an appeal from any determination of the board of county commissioners in the taking of lands by a county for highway purposes,” and the “issues involved in the appeal so taken must be tried and determined at the next term of the district court,” with damages assessed by a jury, unless a trial by jury is waived. N.D.C.C. § 24-05-14.

[¶ 14] An appeal to the district court under N.D.C.C. § 24-05-14 does not stay the condemnation proceeding, and the board of county commissioners may proceed with use of the condemned property during the appeal, but the board is liable for any additional amount awarded to the aggrieved party on appeal. N.D.C.C. § 24-05-15. The language of N.D.C.C. § 24-05-15 authorizes the county to use the property during an appeal and constitutes a taking of property within the meaning of quick take procedures. See Kessler v. Thompson, 75 N.W.2d 172, 189 (N.D.1956) (on petition for rehearing) (stating similar provision in N.D.R.C. § 24-0124 (1953 Supp.) constituted at least a partial taking prior to a court determination the taking was necessary and before compensation for the land had been determined and paid into court). We conclude N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorize a board of county commissioners to condemn property for roads using quick take procedures.

[¶ 15] We reject Eberts’ argument the quick take procedure may not be used in this case, because they claim there is no present public use or necessity for the road. In City of Medora v. Golberg, 1997 ND 190, ¶¶ 4, 11, 569 N.W.2d 257, in the context of an eminent domain proceeding under N.D.C.C. ch. 32-15 and not a quick take proceeding, we concluded a proposed use for property as a public roadway satisfied the public use requirement. Under N.D.C.C. § 24-05-09, a board of county commissioners may condemn “all lands which it deems necessary for the present use.” Section 24-01-01, N.D.C.C., places a high degree of trust in the hands of those officials, including a board of county commissioners, “whose duty it is, within the limits of available funds,” “to plan, develop, operate, maintain, and protect the highway facilities of this state, for present as well as future use.” Moreover, the preparation of a survey before initiation of condemnation proceedings is appropriate. Square Butte Elec. Co-op. v. Dohn, 219 N.W.2d 877, 883 (N.D.1974). In Square Butte, at 883, we held that for purposes of entering land for a survey for possible condemnation proceedings, a party must show it is in a category of entities entitled to seek eminent domain and is not required to show necessity at that stage of the proceeding. See N.D.C.C. §§ 24-05-09 and 32-15-06.

[¶ 16] We conclude the Board’s action complies with the statutory requirements of N.D.C.C. § 24-05-09. Accordingly, we conclude the trial court misapplied the law in determining that N.D.C.C. § 24-05-09 was not applicable to the Board’s action. The Board is authorized to proceed under N.D.C.C. § 24-05-09, and we therefore conclude the court abused its discretion in granting a preliminary injunction to enjoin the Board from proceeding under N.D.C.C. § 24-05-09, or from surveying or recording a survey of a roadway across Eberts’ property.

[¶ 17] In Tormaschy v. Hjelle, 210 N.W.2d 100, 103-04 (N.D.1973), we held the state had authority to use quick take procedures to condemn land for a sewage lagoon in conjunction with sanitary facilities at an interstate highway rest area. We vacated an injunction that precluded the highway commissioner from using quick take procedures, and we remanded for entry of judgment dismissing the landowner’s action without prejudice to the landowner’s right to appeal to the trial court for a jury trial on the issue of compensation for the land. Id. at 104. Our decision in Tormaschy compels a similar result in this case. We reverse the trial court’s order granting a preliminary injunction, we vacate the injunction, and we remand for entry of judgment dismissing the Eberts’ action without prejudice to their right to appeal under N.D.C.C. § 24-05-14. See Tormaschy, at 104.

Ill

[¶ 18] We reverse and remand for proceedings consistent with this opinion.

[¶ 19] GERALD W. YANDE WALLE, C.J., and DALE V. SANDSTROM, J., and BRUCE E. BOHLMAN, S.J., concur.

[¶ 20] The Honorable BRUCE E. BOHLMAN, S.J., sitting in place of KAPSNER, J., disqualified.

[¶ 21] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.