author: RANDALL, Judge.

text:
    UNITY CHURCH OF ST. PAUL, et al., Respondents, Adath Jeshurun Congregation, et al., Respondents, City of Minneapolis, Respondent, People Serving People, Inc., et al., Respondents, v. STATE of Minnesota, Appellant.
    No. A04-1302.
    Court of Appeals of Minnesota.
    April 12, 2005.

      Mike Hatch, Attorney General, Lori Swanson, Solicitor General, Thomas R. Ra-gatz, Ann K. Bloodhart, Assistants Attorneys General, St. Paul, MN, for appellant.

      Marshall H. Tanick, Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, for respondents Unity Church of St. Paul, et al.
    David Lillehaug, Fredrikson & Byron, P.A., Minneapolis, MN, for respondents Adath Jeshurun Congregation, et al.
    Peter Ginder, Acting Deputy Minneapolis City Attorney, Burt T. Osborne, Assistant City Attorney, Minneapolis, MN, for respondent City of Minneapolis.
    John B. Gordon, Elizabeth H. Schmies-ing, Faegre & Benson LLP, and Joseph W. Hammell, Dorsey & Whitney LLP, and James P. McCarthy, Lindquist & Vennum PLLP, Minneapolis, MN, for respondents People Serving People, et al.
    Joseph E. Olson, David M. Gross, St. Louis Park, MN, for amicus curiae Gun Owners Civil Rights Alliance.
    William Z. Pentelovich, Dawn C. Van-Tassel, Maslon, Edelman, Borman & Brand, LLP, Minneapolis, MN and Teresa J. Nelson, American Civil Liberties Union of Minnesota, St. Paul, MN, for amicus curiae American Civil Liberties Union of Minnesota.
    Considered and decided by RANDALL, Presiding Judge; HALBROOKS, Judge; and MINGE, Judge.
   OPINION

RANDALL, Judge.

This lawsuit involves respondent religious and charitable organizations’ constitutional challenge to the Minnesota Citizens’ Personal Protection Act of 2003(PPA). The district court granted partial summary judgment in favor of respondents, holding that 2003 Minn. Laws, ch. 28 violated the single-subject requirement of Minn. Const. Art. IV, § 17. The district court remedied the violation by severing the PPA from the rest of chapter 28.

Appellant argues that (1) 2003 Minn. Laws ch. 28 does not violate the single-subject requirement of Minn. Const. Art. IV, § 17 and (2) the PPA does not violate the Freedom of Conscience clause of the Minnesota Constitution as applied to respondents.

We conclude the district court properly found that chapter 28 violates the single-subject requirement of the Minnesota Constitution. Then, the district court properly severed the disparate portion of the bill (the PPA) from the remainder of chapter 28. Since we affirm the district court on the single-subject issue, we decline to address appellant’s Freedom of Conscience clause argument on an advisory basis.

FACTS

The history of the PPA is an integral part of the parties’ legal arguments. On January 30, 2003, Representative Lynda Boudreau introduced the PPA as H.F. 261. State of Minnesota, Journal of the House, Eighty-Third Session 174 (Jan. 30, 2003). H.F. 261 was titled in part, “a bill for an act relating to public safety: enacting the Minnesota Citizens’ Personal Protection Act of 2003;.... ” Id. The bill proposed a “must issue” system for issuing permits to carry handguns in public places, mandating statewide uniformity for handgun permitting and requiring sheriffs to grant handgun permits to anyone who meets specified criteria. H.F. 261, third engrossment. The bill also curtailed the ability of private establishments to ban firearms and proposed specific rules that private establishments must follow to ban firearms within set limits. Id. H.F. 261 further proposed amendments to the criminal law, creating new firearm crimes and modifying existing crimes. Id.

H.F. 261 passed through the House Civil Law Committee, the House Committee on Judiciary Policy and Finance, and the House Committee on Ways and Means, with the recommendation that it pass as amended. State of Minnesota, Journal of the House, Eighty-Third Session 242, 350, 1240 (Feb. 13, 2003, Feb. 27, 2003, Apr. 7, 2003). On April 23, 2003, H.F. 261 was placed on the House’s calendar for consideration. Id. at 2643.

Meanwhile, S.F. 842 was introduced in the Senate on March 13, 2003 as a “bill for an act relating to natural resources.” State of Minnesota, Journal of the Senate, Eighty-Third Session 337 (Mar. 13, 2003). S.F. 842 contained several statutory amendments relating to (1) natural resource grants; (2) gifts or grants of land to the state; (3) snowmobile registration applications; (4) snowmobile safety course reciprocity; (5) watercraft licensing; (6) game and fish fines; (7) fish house identification; (8) fish house license display; and (9) the state parks’ working capital fund. After proceeding through the Senate Environment and Natural Resources Committee, S.F. 842 passed the Senate on March 24, 2003 by a vote of 65-0 and was sent to the House for consideration. State of Minnesota, Journal of the Senate, Eighty-Third Session 426 (Mar. 24, 2003). The House Committee on Environment and Natural Resources Finance amended S.F. 842 to (1) rescind the need for legislative approval for state park fees and (2) make adjustments to laws regulating and punishing littering within outdoor recreation systems and on highways. Hearing on S.F. 842 before the House Comm, on Env’t and Natural Res. (Apr. 11, 2003).

On April 23, 2003, the same day the PPA was to be considered, S.F. 842 was brought to the House floor. State of Minnesota, Journal of the House, Eighty-Third Session 2644 (Apr. 23, 2003). Several representatives referred to S.F. 842 as a “DNR technical bill.” House Floor Debate on S.F. No. 842 (Apr. 23, 2003) (statements of Rep. Cornish, Rep. Kelliher, Rep. Paulsen, Rep. Entenza). Representative Cornish offered an amendment to the bill, authorizing the DNR commissioner to recognize out-of-state safety courses for motorcycles, ATVs, and watercraft and adding a clause to the statutory provision requiring a firearms safety certificate to obtain a hunting license. Id.; State of Minnesota, Journal of the House, Eighty-Third Session 2644 (Apr. 23, 2003). The amendment passed.

Representative Boudreau then moved to amend S.F. 842 to include H.F. 261, the PPA, and to divide the PPA and DNR bill into 2 separate articles. House Floor Debate on S.F. No. 842 (Apr. 23, 2003). Before voting on this motion, Representative Lynn Osterman moved to amend H.F. 261 to include “Article 3,” a lifetime ban on firearm possession for violent felons. State of Minnesota, Journal of the House, Eighty-Third Session 2660 (Apr. 23, 2003).

The House passed Osterman’s amendment by a vote of 112 to 18. Id. at 2666. The House next passed Boudreau’s amendment to S.F. 842, which now included both the PPA and the ban on firearm possession for violent felons, by a vote of 88 to 46. Id. at 2678. Following these amendments, the House passed S.F. 842, containing both the original DNR provisions and the new firearm legislation, by the same margin and returned the bill to the Senate on April 28, 2003. Id. at 2679. S.F. 842 was still titled “an act relating to natural resources.” State of Minnesota, Journal of the Senate, Eighty-Third Session 1389 (Apr. 28, 2003).

Once in the Senate, Senator Olson moved that the Senate concur in the House amendments and re-pass S.F. 842. Id. After seven hours of debate, the Senate re-passed S.F. 842 as amended by the House by a vote of 37 to 30. Senate Floor Debate on S.F. No. 842 (Apr. 28, 2003). Governor Tim Pawlenty signed S.F. 842 into law the evening of April 28, 2003. State of Minnesota, Journal of the Senate, Eighty-Third Session 1534 (Apr. 29, 2003). When signed into law, S.F. 842 was divided into three articles. The PPA is Article 2. Article 1 relates to natural resources, and Article 3 relates to violent felons in possession of firearms.

Soon thereafter, respondents Unity Church of St. Paul d/b/a Unity Church Unitarian and White Bear Unitarian Uni-versalist Church filed a complaint in Ramsey County District Court challenging the constitutionality of provisions of the PPA, arguing that the act violates the Freedom of Conscience clause of the Minnesota Constitution, Minn. Const. Art. I, § 16. Over the next several months, three groups of intervenors joined the lawsuit, known during the litigation as “Religious Organizations,” the City of Minneapolis, and “Charitable Agencies.” The intervening respondents raised additional constitutional challenges to the PPA, including the claim that the PPA violates the single-subject requirement of Minn. Const. Art. IV, § 17. The original plaintiffs then amended their complaint to conform to the Religious Organizations’ complaint.

Respondents filed motions for partial summary judgment on several different grounds, some raising Freedom of Conscience clause challenges, and others making “takings” (improper use of eminent domain — no compensation) arguments. But all respondents singularly argued that 2003 Minn. Laws ch. 28 violated the single-subject requirement of Minn. Const. Art. IV, § 17.

Appellant State of Minnesota moved the district court to dismiss the action. Instead, the district court granted summary judgment in favor of respondents, concluding that “the Minnesota Citizens’ Personal Protection Act 200[3], known as Senate File 842, violates Article 4, Section 17 of the Minnesota Constitution because it embraces more than one subject.” The district court severed the PPA from the rest of 2003 Minn. Laws ch. 28, leaving the DNR-amendments bill as law.

The district court did not rule on respondents’ other arguments, namely whether the PPA violates the Freedom of Conscience clause of the Minnesota Constitution, and whether the PPA constitutes a property taking without compensation in violation of the state and federal constitutions. The district court “[made] comment regarding both issues to provide guidance to the Appellate Courts.” This appeal followed.

ISSUES

I. Does 2003 Minn. Laws ch. 28 violate the single-subject requirement of Minn. Const. Art. IV, § 17?

II. Does the Minnesota Citizens’ Personal Protection Act of 2003 violate the Freedom of Conscience clause of Minn. Const. Art. I, § 16?

ANALYSIS

On appeal from summary judgment, we must determine whether , there are any genuine issues of material fact and whether the district court erred in its application of the law. Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn.1999). Where there are no material facts in dispute, our review is limited to determining whether the district court correctly applied the law. Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 298 (Minn.2000).

The constitutionality of a statute presents such a question of law, which we review de novo. State v. Behl, 564 N.W.2d 560, 566 (Minn.1997). Minnesota statutes are presumed constitutional, and, therefore, this court exercises its power to declare a statute unconstitutional “with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). A party challenging a statute carries the heavy burden of demonstrating beyond a reasonable doubt that a statute is unconstitutional. Behl, 564 N.W.2d at 566.

I.

Minnesota Constitution, Article IV, Section 17 — Single-Subject Requirement

Appellant challenges the district court’s determination that 2003 Minn. Laws ch. 28 ^violates the single-subject requirement of the Minnesota Constitution.

First, and importantly to the parties, in reviewing the district court’s findings, we are not reviewing the merits of the PPA. We are simply reviewing the district court’s determination that the subject matter of the various provisions contained in 2003 Minn. Laws ch. 28 was not germane to a single subject. This case does not address the merits of the PPA and constitutes no comment on the public policy underlying the act itself (other than to reiterate that the public policy of “single-subject germaneness” has been embedded in the Minnesota Constitution since passage in 1857.)

To ensure that all readers of this opinion, legal and lay persons, have a common language, we have a commentary. The PPA has been widely known, debated, and discussed, under a nickname — the “conceal and carry” bill. Somehow, the nickname “conceal and carry” got on the bill and stuck like a porcupine’s quills in the nose of an overaggressive hunting dog. To set the record straight, both sides agree there is not now, nor has there ever been, any “conceal” in the laws surrounding the regulation and application for a permit to carry a handgun on one’s person. “Conceal” has never been a part of the PPA. The PPA allows you, if you have the permit, to carry the handgun openly or to have it beneath some article of clothing where it does not show. If you do not get the permit, it does not matter whether you wish to carry the handgun outside or inside your clothing. You cannot do it without being criminally liable. 2003 Minn. Laws ch. 28, art. 2, § 4. The same thing is true of the former handgun permit law, which the PPA supplanted. Under the prior law, in effect since the start of Minnesota’s handgun permitting laws (1975 Minn. Laws ch. 378 § 4, codified at Minn.Stat. § 624.714 (1976)), if you had a permit to carry a handgun, it did not matter whether you displayed it openly or concealed it. If you did not have a permit under the prior law to carry a handgun, it would also not matter whether you displayed it openly or concealed it. You could not. Thus, a more accurate short-term handle for the PPA at issue would be the “handgun carry” bill, nothing more.

In discussing the district court’s ruling, both sides agree the starting point is the constitutional provision. Article 4, section 17, requires that “[n]o law shall embrace more than one subject, which shall be expressed in its title.” Minn. Const. Art. IV, § 17. We confine our analysis to the “single-subject requirement” since respondents did not claim a violation of the “title requirement” of Minn. Const. Art. IV, § 17.

The purpose of the single-subject requirement is to prevent “log rolling legislation” or “omnibus bills” in which dissimilar subjects are united in one bill and carried through by a combination of interests. Associated Builders, 610 N.W.2d at 299 (quoting Johnson v. Harrison, 47 Minn. 575, 577, 50 N.W. 923, 924 (1891)). In other words, this provision ensures that each piece of legislation receives separate and individual consideration on the merits by prohibiting the insertion of wholly unrelated matters. Defenders of Wildlife v. Ventura, 632 N.W.2d 707, 711 (Minn.App.2001), review denied (Minn. Oct. 24, 2001). The singlesubject provision is not intended to preclude the enactment of comprehensive legislation addressing related topics within a general subject area. Metro. Sports Facilities Comm’n v. County of Hennepin, 478 N.W.2d 487, 490 (Minn.1991).

While the single-subject provision is mandatory, “the single subject provision should be interpreted liberally and the restriction [will] be met if the bill [is] germane to one general subject ... ‘it is to be given a liberal, and not a strict, construction.’ ” Associated Builders, 610 N.W.2d at 299 (quoting Johnson, 47 Minn. at 577, 50 N.W. at 924) (emphasis added); see also Defenders of Wildlife, 632 N.W.2d at 711. This judicial approach affords the appropriate and needed deference to the Minnesota legislature. Because of this high degree of deference given to the legislature to perform its constitutional role, there is an historical scarcity of attacks on legislation on single-subject grounds (approximately 60 in the past 148 years), and an even scarcer number of successful attacks. See generally Associated Builders, 610 N.W.2d at 300-02 (outlining history of constitutional attacks to legislation under the single-subject requirement). We were able to identify only five in the last 148 years. In sum, the single-subject provision has historically been given a liberal construction to benefit the legislature.

At the oral argument on this case, appellant referred, at times, to not wanting “liberal” or “activist” judges to overstep the will of the Minnesota legislature. Simply put, the term “liberal/activist judge” is, in reality, a “non-term.” Both parties to this debate recognize the truth. What one calls “a well-reasoned conservative judicial opinion by a son or daughter of the founding fathers” means only that the judge ruled in your favor! When the judge rules against you and in favor of your opponent, on the identical facts and argument, you will now turn to the banal cliché that the judge “is too activist” for me. The term is meaningless, self-defeating, and, worse, it actually weakens appellant’s position.

What appellant is arguing for is a broad, liberal, and expansive interpretation of Article IV, Section 17, which the judiciary has traditionally applied to the all-encompassing bills of the legislature. If the judiciary were to take a strict, narrow, conservative approach to the constitutional mandate that “no law shall embrace more than one subject, which shall be expressed in its title,” virtually every appropriations bill, every omnibus bill, every technical cleanup bill, and every other type of multi-act legislation that the legislature routinely deals out, without even thinking about it, would be subject to Article IV scrutiny, and many would fail. The last thing appellant wants here is a strict, narrow, conservative approach to the meaning of some pretty plain English — no law shall embrace more than one subject.

Thus, we follow the traditional broad, liberal, and expansive interpretive rule set out in Associated Builders. The Minnesota legislature wants the judiciary to refrain from taking a strict constructionist approach to single-subject-provision jurisprudence. That has been the experience of the Minnesota judiciary.

A. Germaneness

Keeping these overarching considerations in mind, a reviewing court applies a germaneness analysis to determine whether a law violates the single-subject requirement of article 4, section 17. Associated Builders, 610 N.W.2d at 302-03; Blanch v. Suburban Hennepin Reg’l Park Dist., 449 N.W.2d 150, 154 (Minn.1989). This means that the single-subject requirement will be met as long as all matters in the bill are “germane to” one general subject, meaning that “all matters treated of should fall under some one general idea, be so connected with or related to each other, either logically or in popular understanding, as to be parts of ... one general subject.” Associated Builders, 610 N.W.2d at 300 (quoting Johnson, 47 Minn. at 577, 50 N.W. at 924). The term “general subject” should be given a broad and extended meaning. Id. at 300-01, 50 N.W. 923.

To be germane to a single subject, the various sections of the bill need only be connected by a “mere filament” to one another and to the general subject. See Blanch, 449 N.W.2d at 154-55 (holding park bill was “germane” to the broad subject of appropriations for state government operation even though the common thread running through the sections was a “mere filament”). In other words, the connection between several matters to render them germane to one subject and to each other, “can be of various kinds, as, for example, of means to ends ... or that all are designed for the same purpose, or that both are designated by the same term.” Johnson, 47 Minn. at 578, 50 N.W. at 924. Subjects will be considered impermissibly duplicitous if the subjects lack any “legitimate connection with or relation to each other.” Id. at 577, 50 N.W. at 924. In other words, provisions are not germane if they pertain to wholly unrelated matters. State v. Cassidy, 22 Minn. at 312, 322 (1875).

As noted, because of the liberal deference given to the legislature, Minnesota courts have rarely invalidated laws for a lack of germaneness. Defenders of Wildlife, 632 N.W.2d at 712. For instance, a constitutional amendment levying taxes on motor vehicle fuel and issuing bonds to finance highway construction was found germane to the subject of transportation where every matter in the chapter concerned the use, financing, and construction of a public highway transportation system and there was no evidence of fraud. Wass v. Anderson, 312 Minn. 394, 399-400, 252 NW.2d 131, 135-36 (1977). A provision exempting space in the Metrodome from property taxation was held germane to the subject of taxation present in the title of a large fiscal omnibus bill. Metro. Sports Facilities Comm’n, 478 N.W.2d at 490. A law providing for wolf management was related to other parts of the bill including fish and wildlife management, hunting and fishing licenses, and revenue raised for the game and fish fund- — all related to the general subject of natural resources. Defenders of Wildlife, 632 N.W.2d at 713; see also Masters v. Comm’r, Minn. Dep’t of Natural Res., 604 N.W.2d 134, 138 (Minn.App.2000) (holding the areas of environment, natural resources, and agriculture constitute one subject). Confirming that subjects are to be construed broadly, a law authorizing a park district to acquire land, designed to make possible the utilization of funds previously appropriated, was germane to the subject of “appropriations for the operation of state government.” Blanch, 449 N.W.2d at 155. The common thread running through the various sections of the bill, appropriations for a wide range of state agencies, was “indeed a mere filament.” Id.; see also 1998 Minn. Laws ch. 686, art. 1.

However, having set out the historic liberal interpretation of Article IV, Section 17, we note that the Minnesota Supreme Court recently sounded an alarm to the Minnesota legislature that the judiciary will strike down oversweeping legislation. The Minnesota Supreme Court drew the line in Associated Builders, holding that an amendment requiring prevailing wages in school construction and remodeling regardless of whether the project was publicly funded was not related — not even by a “mere filament” — to an omnibus tax relief and reform bill governing the financing and operation of state government. 610 N.W.2d at 303. The Associated Builders court expressed its frustration with “garbage” or omnibus bills encompassing many unrelated subjects. Id. Associated Builders held that any bill containing vastly dissimilar provisions such as “provisions relating to agricultural land, a council of Asian Pacific Minnesotans and the establishment of a recycling program” must be struck down. Id. at 301 (citing State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 784 (Minn.1986) (Yetka, J., concurring specially)).

In the case of the PPA, the district court found ascertaining a single subject in chapter 28 to be an impossible task. The district court explained,

It is clear that [the Personal Protection Act], which regulates firearms, contains a totally different subject matter from the regulatory provision and from the Department of Natural Resources found in Minnesota Statute 84.01, et. al. This law is unconstitutional because it clearly violates not only the intent, but also the clear meaning of Article 4, Section 17 of the Minnesota Constitution.

As the district court noted, article 2 of chapter 28, the PPA, plainly relates to handgun permitting, regulating who may obtain a permit and how those permits must be issued. Other portions of article 2 create new firearm crimes, modify existing crimes, and recognize the right of law-abiding citizens to self-protection through the lawful use of self-defense. The PPA also sets limits on the ability of private establishments to ban guns from their premises. Chapter 28, article 3, enacts a permanent ban on firearm possession for violent felons. Articles 2 and 3, taken together, are germane to one general subject — namely handgun permitting and firearm regulation. On the other hand, the provisions in article 1 of chapter 28 do not relate to handgun permitting and firearm regulation. Article 1 contains an array of “boilerplate” DNR-related amendments addressing (1) legislative approval of state park fees; (2) the commissioner’s authority to enter into grant agreements; (3) the commissioner’s authority to accepts gifts on behalf of the state; (4) snowmobile registration; (5) interstate reciprocity agreements for off-highway motorcycle, ATV, and watercraft safety courses; (6) littering on a highway; (7) watercraft licensing applications; (8) fines for violating game and fish laws; (9) fish house identification; (10) fish house license display; (11) hunting licensing; and (12) the state parks’ working capital fund. Article 1 contains varied provisions, and giving these provisions a common-sense interpretation, the DNR amendments (article 1) all relate to the single subject of “natural resources” or “the environment.” See Defenders of Wildlife, 632 N.W.2d at 713; Masters, 604 N.W.2d at 138. It was apparent to the district court that the subjects “natural resources” and “the environment” were not germane to mandatory handgun permitting.

Viewing chapter 28 in its entirety, we affirm the district court’s conclusion that the two disparate subjects contained within lack a legitimate connection to one another. Thus, chapter 28 fails the germaneness analysis. See Johnson, 47 Minn. at 577, 50 N.W. at 924. We are compelled to find that chapter 28, which contains dissimilar provisions, must be declared unconstitutional in violation of the single-subject requirement. See Associated Builders, 610 N.W.2d at 301 (noting that, contrary to prior deferential decisions, any bill containing vastly dissimilar provisions must be struck down).

The legislative history of S.F. 842 sheds light on the discrepancy between article 1 (the DNR technical amendment bill) and articles 2 and 3 (handgun permitting and firearm regulation) and supports the district court’s conclusion that chapter 28 lacks one cohesive, single subject. See Defenders of Wildlife, 632 N.W.2d at 714 (acknowledging that legislative history may provide evidentiary support of single-subject violations). Article 1 — the original S.F. 842 — was titled in part, “an act relating to natural resources” and was known to legislators as “a DNR technical bill.” Only when the House amended S.F. 842 to include the PPA and provisions restricting a felon’s ability to possess firearms, did the bill expand to encompass topics well outside of “natural resources” and “the environment,” namely, handgun permitting

But, appellant contends that because the PPA, in terms of size and exposure, is distinguishable from the provision at issue in Associated Builders — the recent case in which the supreme court found a violation of the single-subject requirement — chapter 28 should be upheld. Appellant further notes that the PPA, unlike the offending provision in Associated Builders, is not a tiny section of an immense omnibus bill that passed through the legislature unnoticed. Appellant contends out that the PPA, as amended to S.F. 842, received extensive legislative attention in both the House and the Senate.

Appellant is correct that the House engaged in extensive debate before passing S.F. 842. The Senate discussed the act for over seven hours before re-passing the bill. That is all true, but the legislative exposure disparity between the PPA and the provision at issue in Associated Builders is a distinction without a difference. Yes, the Minnesota Supreme Court has expressed frustration with “midnight-passed garbage” or omnibus bills because these types of bills often run afoul of the single-subject requirement. But that cannot mean that bills that receive more legislative attention and more column inches in the newspaper will never violate the single-subject requirement. The proper inquiry on a constitutional challenge under Minn. Const., art. IV, § 17 is whether the law is germane to a single subject, not whether a bill was hotly debated or whether it passed through legislative committees unnoticed.

B. Logrolling and other Practical Considerations

Appellant also gives considerable weight in its brief to its claim that there was no impermissible logrolling in the passage of S.F. 842. Appellant argues that the mischief the single-subject requirement is intended to address is not present. Appellant urges this court to consider this and related “practical considerations,” to conclude that 2003 Minn. Laws ch. 28 does not violate the single-subject requirement. We are not persuaded.

The Associated Builders court addressed appellant’s precise argument and determined that the contention was misdirected. 610 N.W.2d at 303 (addressing whether the absence of impermissible logrolling preserved the law from constitutional attack). Associated Builders clarified that “[t]he purpose of preventing logrolling is to preclude unrelated subjects from appearing in a popular bill, not to eliminate unpopular provisions in a bill that genuinely encompasses one general subject.” Id. (emphasis added). In other words, the evil in bundling disparate provisions in one law is not in putting unpopular germane provisions with popular germane provisions. The evil in bundling disparate provisions in one law is in putting popular and unpopular germane provisions with nongermane provisions.

What the Minnesota Constitution requires is germaneness. It does not require the absence of legislative maneuvering to enact unpopular, but germane, bills. In fact, the legislature has a long tradition of such permissible maneuvering since statehood. It is essential, to get any bills passed in a state that has disparate concerns in different regions of the state, and disparate concerns even within one region, that popular and less popular bills (germane) get lumped together to attract the needed votes. The judiciary understands and appreciates that.

Appellant also makes much of the extensive media attention shed on the PPA, citing Defenders of Wildlife, 632 N.W.2d at 714, and Lifteau v. Metro. Sports Facilities Comm’n, 270 N.W.2d 749, 753 (Minn.1978), for the proposition that a provision in a bill that receives a large amount of media attention does not offend the purpose behind the single-subject requirement. We note the Defenders court only said the wolf management plan received considerable public and legislative attention to rebut the argument that the provision was given little consideration. 632 N.W.2d at 714. Defenders did not hold that media attention was determinative in considering whether the single-subject restriction was violated. Id. The wolf management plan was held to be constitutional, not because it received public attention, but because it was germane to “natural resources” — the law’s general subject.

After closely examining the record, we hold the district court properly concluded that 2003 Minn. Laws ch. 28 violates the single-subject requirement of Minn. Const. Art. IV, § 17 and is unconstitutional. Our affirmance of the district court neither prejudges the merits of the PPA nor the public policy behind the debate on the merits. Our holding does not prevent the Minnesota Legislature from attempting to pass future “carry bills.”

This case is about performing the judiciary’s constitutional role of upholding the Minnesota Constitution and giving effect to each of its provisions. To date, the 148 years of Minnesota’s statehood have produced approximately five successful attacks on legislation under the single-subject requirement of the Minnesota Constitution. If the legislature deems it an impediment that perhaps one bill gets shot down on an average of once every 20 or 30 years, they, not the courts, hold the keys to amending the Minnesota Constitution and repealing the single-subject requirement. The Minnesota legislature originally passed Article IV, Section 17, and, to date, the legislature has not set the wheels in motion to repeal it. The legislature writes the constitutional provisions. The judiciary simply has an obligation to interpret them.

C. Severance

Having affirmed the district court’s conclusion that 2003 Minn. Laws ch. 28 violates the single-subject requirement, we next consider the district court’s remedy. The district court severed the PPA from chapter 28, and let article 1, the DNR bill, stand. Both parties propose severing the “offending” portions of chapter 28, but disagree on which parts to sever. Appellant argues that the district court improperly severed the PPA from chapter 28 and requests that this court instead sever the DNR amendments contained in article 1, leaving articles 2 and 3 standing as the law. Respondents maintain that the district court correctly severed the PPA because it was, without dispute, the “offending amendment.” We agree with respondents. Appellant does not (and cannot) disagree that the handgun carry portion of the bill, and the handgun carry portion only, is the center of this debate. Appellant does not dispute that the DNR technical amendments contained in article 1 are not offensive and are not the subject of this “single-subject” lawsuit.

In remedying constitutional deficiencies, the judiciary should be hesitant to declare more of a law unconstitutional than absolutely necessary to avoid “overstepping our judicial bounds in disregard of the constitutional principle of separation of powers.” Associated Builders, 610 N.W.2d at 305 (citing Koehnen v. Dufuor, 590 N.W.2d 107, 113 (Minn.1999)). The established rule is that:

while a part of [a] statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning.

Id. (quoting Anderson v. Sullivan, 72 Minn. 126, 133, 75 N.W. 8, 9-10 (1898)).

In the single-subject context, the supreme court has expressly advised the judiciary, if possible, to “[bring] the law into constitutional compliance by severing a provision that is not germane to the theme of the law.” Associated Builders, 610 N.W.2d at 305. And where litigation challenges only one aspect of a law, the judiciary should sever the provision being challenged and decline to prejudge unchallenged portions of the law. Id. Importantly, Minnesota courts have historically severed the challenged section, leaving the rest of the law intact. See, e.g., Egekvist Bakeries, Inc. v. Benson, 186 Minn. 520, 523, 243 N.W. 853, 854 (1932); In re Day, 93 Minn. 178, 182, 102 N.W. 209, 211 (1904); Winters v. City of Duluth, 82 Minn. 127, 132-33, 84 N.W. 788, 790 (1901). The Associated Builders court followed this 100-year line of historical cases in deciding to sever an offending amendment while permitting the other provisions of a session law to stand. 610 N.W.2d at 304-05.

We note that the severance remedy is not without criticism. Justice Anderson in a concurring opinion in Associated Builders stated, “Severance of a challenged provision of a law found to be in violation of Section 17 would defeat Section 17’s purpose and establish the judiciary as a ‘super-legislature.’ ” After acknowledging that reasoned argument, it is correct to say that, under current law, it is preferable to sever the challenged “offending amendment” rather than invalidate unchallenged provisions of the law or strike down the entire session law. Associated Builders stands as a reminder that, when possible, the judiciary should decide in favor of “a more pragmatic result that is [still] consistent with our constitution” and avoid “the draconian outcome of holding ... that an unrelated provision in a law should bring the whole law down.” Id. at 307.

Here, the district court took the pragmatic approach, severing the PPA from chapter 28 and leaving the DNR bill as law. We agree that the PPA is plainly the disputed amendment that was attached to the DNR technical bill to assist the PPA’s passage through the Senate. The DNR technical provisions are not being litigated. It would overstep our judicial function to sever portions of article 1 for the purpose of upholding the PPA, where no party contested the constitutionality of the DNR provisions. That step by us could only be seen as a political commentary on the merits of the handgun carry bill. That is not for us; it is for the legislature.

We note that because of the various amendments to S.F. 842, the bill, in its final form (signed by the governor’s office), contained an article 2, denoting the PPA, and an article 3, with article 3 covering the firearms regulation provision as it applied to violent felons. Article 3 was not mentioned specifically by the district court in its order. Regardless, we find no dispute over the intent of the district court judge who signed the order now on appeal. The specific intent in the court’s order and accompanying memorandum was to find “[t]hat the [PPA] known as S.F. 842, violates Article 4, Section 17 of the Minnesota Constitution,” the single-subject provision.

Neither the district court’s order nor its memorandum broke down the PPA into article 2, handgun permitting, and article 3, violent felons in possession. What is clear is the district court’s intent to sever the PPA, having found it unconstitutional (on germaneness grounds) from the non-germane portion of the bill, meaning article 1, the DNR natural resources provisions. Although not mentioning article 3 by numerical name, we can only conclude the district court deemed article 3 part of the PPA for the purpose of its analysis. We will not assume the absurd result that the district court found article 2, the handgun carry portion, to be not germane to article 1, the DNR portion of the bill, but then went on to find article 3, the amendment to the PPA prohibiting the possession of firearms by certain felons, to be germane to article 1, the DNR provisions. It cannot be said that article 3 is germane to article 1 after a finding that article 2 is not.

We agree with the district court’s determination that severance was appropriate. Associated Builders recommends preserving as much of a law as possible out of deference to the Minnesota Legislature. That the district court did.

Accordingly, we affirm the district court’s decision to sever the PPA (articles 2 and 3) from chapter 28 and, thus, bring 2003 Minn. Laws. ch. 28 into constitutional compliance with Minn. Const. art. IV, § 17.

II.

Freedom of Conscience

Appellant next argues that the district court’s comments addressing whether the PPA violates the Freedom of Conscience clause, Art. I, § 16, of the Minnesota Constitution are unreviewable dicta. Respondents agree with appellant that the district court’s comments are dicta and do not require an analysis. As such, respondents chose not to respond to appellant’s position that the dicta was not a correct expression of existing law.

Both appellant and respondents agree the district court did not rule that the PPA violated the Freedom of Conscience clause. The district court explained that it merely “[made] comment regarding [the conscience clause issue] to provide guidance to the Appellate Courts.” The district court opined that if it were to reach the issue, it would likely find the PPA unconstitutional on this ground also.

The district court found that, “The plaintiffs and intervening plaintiffs are unquestionably sincere in their [religious] beliefs.” The district court further stated that, “There is no question that the Act infringes upon those beliefs as it relates to the use of their properties,” and noted that, “The State ... has not identified a compelling interest, which necessitates the infringement upon plaintiffs’ and intervening plaintiffs’ sincere beliefs.”

We recognize, as the district court did, that four of the respondents have raised a serious challenge to the PPA based on the Freedom of Conscience clause. All four religious institutions have either explicitly banned guns from their premises on religious grounds or operate with a general understanding that weapons are banned from the premises to further principles of non-violence and peace.

Respondents argued below that the PPA infringes on their sincerely held beliefs by mandating that handgun carriers be allowed to bring a gun into the church unless the church posts conspicuous signs and verbally confronts their armed guests. See Minn.Stat. § 624.714, subds. 17(a), (b), (f) (Supp.2003). Respondents also challenged portions of the PPA that disallow the churches from banning firearms in their parking lots, Id., subd. 17(c) (Supp.2003), prohibiting persons who lease space from the church and their guests from carrying firearms, Id., subd. 17(e) (Supp.2003), and prohibiting employees from carrying firearms in parking areas, Id., subd. 18(a)-(c) (Supp.2003). Respondents argued that these particular provisions im-permissibly infringed on the free exercise of their sincerely held religious beliefs of peace and non-violence.

We agree with the district court that respondents’ arguments were squarely presented at the district court level. However, because we affirm the district court on the Minn. Const. art IV, § 17 issue, we decline to discuss respondents’ religious arguments on an advisory basis. See State v. Hickman, 666 N.W.2d 729, 733 (Minn.App.2003) (holding that a party is not entitled to appellate review of an advisory opinion of the district court). There are other courts and other days.

DECISION

The district court properly held that 2003 Minn. Laws ch. 28 violates the single-subject requirement of the Minnesota Constitution, art. IV, § 17.

The district court properly severed the Minnesota Citizens’ Personal Protection Act of 2003, chapter 28, to protect the remainder. We hold that both articles 2 and 3 of chapter 28 must be severed to bring chapter 28 into constitutional compliance.

Affirmed.

      . The identical companion bill to H.F. 261, S.F. 222, was introduced in the Senate on January 30, 2003, but was eventually withdrawn by its author from the Crime Prevention and Public Safety Committee on March 20, 2003. State of Minnesota, Journal of the Senate, Eighty-Third Session 137, 390 (Jan. 30, 2003, Mar. 20, 2003).

      . Another group of religious organizations filed a declaratory judgment action in Henne-pin County on May 29, 2003 challenging the constitutionality of the PPA as applied to them. On June 6, 2003, the district court issued an order granting in part the organizations’ motion for a temporary injunction. The district court temporarily enjoined enforcement of the part of the act requiring the organizations to post a sign of specified size and typeface and to make an oral request to persons entering the building in order to ban firearms from the church building. The organizations appealed to this court, arguing that the district court abused its discretion by refusing to enjoin enforcement of other portions of the act prohibiting the churches from banning guns in their parking lots and from disallowing tenants to carry guns on church grounds. In an opinion filed January 13, 2004, this court concluded that appellants had standing to challenge the Personal Protection Act and remanded to the district court for additional findings on the district court’s decision to deny in part the temporary injunction. Edina Cmty. Lutheran Church v. State, 673 N.W.2d 517, 523 (Minn.App.2004). Judge Rosenbaum, on remand, expanded the scope of the temporary injunction and stated that the Personal Protection Act infringed upon the religious organizations’ free exercise of religion. Edina Cmty. Lutheran Church v. State, No. MC 03-008185, 2004 WL 632766, at * 3 (Minn.Dist.Ct. Mar. 16, 2004). The parties understand that the temporary injunction will remain in effect pending appellate review of Unity Church v. State. See The Minnesota Conference United Church of Christ, Email Newsletter, Update on Conceal and Carry by David Lillehaug, http://en-deo .com/mnucchpnletters.php ?sc=EEML & aid=216 (last updated August 27, 2004).

      . Dissimilar or nongermaneness is the key word. That cannot be lost in all the smoke and mirrors that surround this debate. Legislation that someone claims is "log-rolling legislation" has always been permissible when similar subjects are united in one bill and the bill is passed by a combination of legislators, all of whom are united in wanting their part of the bill to go through.

      . Although the Associated Builders court impliedly adopted the "mere filament” test in its holding, the test is not without criticism. Justice Paul Anderson in a concurring and dissenting opinion in Associated Builders stated, "While the 'mere filament’ test has served this court for many years, its interpretation has now become so deferential as to render Section 17 ineffectual. Part I of the majority opinion correctly reflects the trend of our court’s decisions on Section 17 over the past 15 years and returns our court to its proper role in interpreting this section of our constitution, namely to give each part of the constitution the plain meaning and effect of its language.” 610 N.W.2d at 311.

      . A "garbage bill” is "legislation where, near the tail end of a session, a group of individual ideas will be combined into one bill to wrap up the legislative business to avoid acting separately on each.” State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 785 (Minn.1986) (Yetka, J., concurring specially).

      . The term has different meanings, but is commonly used to describe noncontroversial standard preliminary language or, in this case, noncontroversial various amendments that would be too time consuming to put in separate bills. The proof of this is seen in the senate vote of 65 to 0 on the original contents of article 1. When the Minnesota senate votes 65 to 0 on a bill, it can quietly be said that the bill is not controversial.

      . Lifteau is also distinguishable because that case addressed a potential violation of the title requirement of article 4, section 17, in which "public awareness” is a critical factor, unlike in the single subject analysis. 270 N.W.2d at 753.

      . Paragraphs 1-4 of the district court’s judgment dated July 13, 2004 inadvertently refer to the PPA as the "Minnesota Citizens Personal Protection Act of 2002.” It is clear from the parties’ arguments and other portions of the district court's order that the district court was referring to the "Minnesota Citizens Personal Protection Act of 2003.” Paragraph 6 of the district court judgment inadvertently refers to the controlling constitutional provision as "Article 45, section 17.” All other parts of the order and the parties' briefs agree the controlling section is Article 4, section 17 — the single-subject provision.

      . The particular respondents raising a Freedom of Conscience clause challenge are Unity Church of St. Paul, White Bear Unitarian Universalist Church, Gloria Dei Lutheran Church, and Eckankar.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2005 ND 70
    Clinton Alan HARTER, Petitioner and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20040281.
    Supreme Court of North Dakota.
    April 6, 2005.

      Chad R. McCabe, Vinje Law Firm, Bismarck, ND, for petitioner and appellant.
    Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appel-lee.
   KAPSNER, Justice.

[¶ 1] Clayton Harter appeals the district court’s judgment affirming a North Dakota Department of Transportation (“Department”) hearing officer’s decision to suspend his driving privileges for 91 days, arguing North Dakota statutory law does not provide for such a suspension and any ambiguities in the law should be construed against the Department and in favor of Harter. We find the statute provides for the suspension and the criminal rule of lenity does not apply in civil matters. We affirm.

I.

[¶ 2] Harter was stopped for speeding, making loud acceleration sounds, and crossing the lane-dividing line on May 23, 2004. He was 20 years old. The officer smelled alcohol and noticed Harter had bloodshot eyes and slurred speech. Harter passed all the field sobriety tests except the one-leg stand test. He was arrested for Minor in Consumption and detained for blood alcohol concentration testing. Tests indicated his blood alcohol concentration was .05% by weight, which is below the legal limit for driving for adults 21 or older but above the legal limit for persons under the age of 21.

[¶ 3] A hearing was held in front of a Department hearing officer, and Harter’s driving privileges were suspended for 91 days under N.D.C.C. § 39 — 20—04.1(1)(a). Harter filed an appeal with the district court and the hearing officer’s decision was affirmed.

II.

[¶ 4] Harter argues his license cannot be suspended under N.D.C.C. § 39-20-04.1(1)(a) because that section provides a penalty if the driver’s alcohol concentration was “at least eight one-hundredths of one percent by weight and under eighteen one-hundredths of one percent by weight.” The statute reads, in part:

1. After the receipt of a person’s operator’s license, if taken under section 39-20-03.1 or 39-20-03.2, and the certified report of a law enforcement officer and if no written request for hearing has been received from the arrested person under section 39-20-05, or if that hearing is requested and the findings, conclusion, and decision from the hearing confirm that the law enforcement officer had reasonable grounds to arrest the person and test results show that the arrested person was driving or in physical control of a vehicle while having an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to a person under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight at the time of the performance of a test within two hours after driving or being in physical control of a motor vehicle, the director shall suspend the person’s operator’s license as follows:
a. For ninety-one days if the person’s driving record shows that, within the five years preceding the date of the arrest, the person has not previously violated section 39-08-01 or equivalent ordinance or the person’s operator’s license has not previously been suspended or revoked under this chapter and the violation was for an alcohol concentration of at least eight one-hundredths of one percent by weight and under eighteen one-hundredths of one percent by weight.

N.D.C.C. § 39-20-04.1.

[¶ 5] Harter argues part 1 refers to persons under the age of 21 with an alcohol concentration of at least .02% by weight, but subpart (a) does not, so sub-part (a) must not apply to persons under the age of 21. He argues the statute is unambiguous, so no extrinsic aids are required for interpretation. The Department argues the language of part 1 referring to persons under the age of 21 should be read into the following subpart and urges this Court to consider legislative intent and find that the legislature intended to apply suspension to persons under the age of 21 who drive with an alcohol concentration of at least .02% by weight.

[¶ 6] This Court reviews “the record and decision of the administrative agency, not the ruling of the district court.” Phipps v. N.D. Dep’t of Transp., 2002 ND 112, ¶ 6, 646 N.W.2d 704. We will affirm the agency’s decision unless:

1.The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

Id,.; N.D.C.C. § 28-32-46.

[¶ 7] “When an ‘appeal involves the interpretation of a statute, a legal question, this Court will affirm the agency’s order unless it finds the agency’s order is not in accordance with the law.’ ” Phipps, 2002 ND 112, ¶ 7, 646 N.W.2d 704 (quoting Erickson v. N.D. Dep’t of Transp., 507 N.W.2d 537, 539 (N.D.1993)). Statutory interpretation is a question of law subject to full review upon appeal. Phipps, at ¶ 7.

Our primary objective in the interpretation of a statute is to ascertain the intent of the legislature. We look first to the language of the statute. If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit. If a statute’s language is ambiguous or of doubtful meaning, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain legislative intent.

Id. “A statute is ambiguous if it is susceptible to meanings that are different, but rational.” Public Service Commission v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186. This Court “presume[s] the Legislature did not intend an absurd or ludicrous result or unjust consequences,” and “construe[s] statutes in a practical manner and give[s] consideration to the context of the statutes and the purposes for which they were enacted.” Id. at ¶ 21.

[¶ 8] We conclude the statute is ambiguous and therefore look to the legislative history. The reference to “a person under twenty-one years of age” in part 1 was added during the 1997 legislative session at the request of the North Dakota Department of Transportation. The Department testified:

The bill would implement “zero tolerance” for drivers under 21 years of age. While it is called “zero tolerance,” the level required, and the level in this bill draft, is .02 blood alcohol content (“BAC”).
The requirement was mandated by Congress in the National Highway System bill. At least 37 states now have such laws; many of them were in place before the Congressional mandate. If we fail to enact a law by October 1, 1997, the state of North Dakota will lose five percent of our allocated federal aid highway funds (approximately $5 million) on October 1, 1998, and ten percent each year thereafter. The only way for us to get by without passing a “zero tolerance” law is for Congress to either change or repeal the requirement.

Hearing on H.B. 1111 Before the Senate Transportation Comm., 55th N.D. Legis. Sess. (Feb. 27, 1997) (testimony of Keith C. Magnusson, Driver and Vehicle Services Director, North Dakota Department of Transportation). The amendment was in response to a mandate by Congress in the National Highway System bill requiring states to adopt a “zero tolerance” policy for drivers under 21 years of age or face a severe loss of federal highway funds. The statutory construction urged by Harter would result in no penalties for persons under the age of 21 who drive with an alcohol concentration of at least .02% by weight but less than .08% by weight. The legislature, faced with a loss of federal highway funds if they did not penalize persons under the age of 21 who drove with an alcohol concentration of at least .02% by weight, certainly did not intend such a result.

[¶ 9] We read the provision for persons under the age of 21 in part 1 as applying to each of the following subsections, even though it is not repeated throughout the statute. Any other construction would be “ludicrous and absurd.” State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878. Therefore subpart (a) must be understood, in the context of minors, to refer to alcohol content of at least .02% and under .18% by weight.

III.

[¶ 10] Harter asks this Court to apply the rule of lenity if we find the statute is ambiguous. The rule of lenity “requires ambiguous criminal statutes to be construed in a defendant’s favor.” Laib, 2002 ND 95, ¶ 15, 644 N.W.2d 878. While this Court has frequently applied the rule of lenity in criminal cases, see, e.g., State v. Higgins, 2004 ND 115, ¶ 13, 680 N.W.2d 645; State v. Beciraj, 2003 ND 173, ¶ 14, 671 N.W.2d 250; State v. Rue, 2001 ND 92, ¶ 33, 626 N.W.2d 681, it has never been adopted in civil matters. This Court has consistently held that suspension of a driver’s license is not criminal in nature. See State v. Barth, 545 N.W.2d 162 (N.D.1996); State v. Zimmerman, 539 N.W.2d 49 (N.D.1995).

[¶ 11] Harter directs this Court to Louisiana cases that found suspension of a driver’s license to be penal in nature and applied the rule of lenity. See Nunnally v. State Dep’t of Public Safety and Corrections, 663 So.2d 254, 256 (La.App. 3 Cir., 1995) (statute revoking driving privileges is penal so interpretation rule applies); Calamia v. Louisiana Dep’t of Public Safety and Corrections, 706 So.2d 152, 155 (La.App. 1 Cir., 1997) (“statutory provisions which result in the suspension of a driver’s license must be strictly construed”). Harter was unable to direct this Court to any other jurisdiction that has expanded the application of the rule beyond criminal matters. We find the Louisiana approach to be a minority view and decline to adopt it in North Dakota.

IV.

[¶ 12] We conclude N.D.C.C. § 39-20-04.1 provides for the suspension of the driver’s license of a person under the age of 21 when that person operates a motor vehicle with an alcohol concentration of at least .02% by weight and affirm the suspension of Harter’s driver’s license.

[¶ 13] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.

[¶ 14] 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.


author: VANDE WALLE, Chief Justice.

text:
    2005 ND 72
    Lisa Barnhart PAULSON, Plaintiff and Appellant, v. Benjamin B. PAULSON, Defendant and Appellee.
    No. 20040242.
    Supreme Court of North Dakota.
    April 6, 2005.

      Valeska A. Hermanson, McKennett Ste-nehjem Reierson Forsberg & Hermanson, P.C., Williston, N.D., for plaintiff and appellant.
    Ronald A. Reichert, Reichert & Herauf, P.C., Dickinson, N.D., for defendant and appellee.
    Sandra Kay Kuntz, Guardian ad Litem, Mackoff, Kellogg, Kirby & Kloster, Dickinson, N.D.
   VANDE WALLE, Chief Justice.

[¶ 1] Lisa Barnhart Paulson (“Barn-hart”) appealed from a judgment granting her and Benjamin B. Paulson a divorce and awarding custody of their son to Benjamin Paulson with restricted supervised visitation for Barnhart. We affirm the custody award to Paulson but reverse and remand for a redetermination of Barn-hart’s visitation privileges.

I

[¶ 2] Barnhart and Paulson were married on July 26, 2001. They had two children of their marriage; a son, who was two years old at the time of the divorce proceedings, and a daughter, who was only two months old when she and Barnhart were involved in a car accident in January 2003, which resulted in the child’s death and severe injuries to Barnhart. The parties separated in September 2003 and Barnhart filed for divorce. Upon allegations of possible sexual abuse by Paulson against the son and because of inconclusive medical examinations to verify or refute the allegations, the boy was placed in foster care on March 15, 2004. Proceedings were subsequently held in juvenile court to resolve allegations the boy was a deprived child. The juvenile court entered an order on July 2, 2004 placing the boy in Paul-son’s custody with limited supervised visitation for Barnhart.

[¶ 3] After a hearing on the divorce complaint, the court dissolved the parties’ marriage on the ground of irreconcilable differences and awarded custody of their son to Paulson with supervised visitation for Barnhart “as determined by Dr. Angela Cavett.” The court also divided the parties’ marital property and ordered Barnhart to pay child support of $168 per month. Barnhart’s appeal concerns that part of the judgment awarding custody to Paulson and granting her restricted visitation privileges.

II

[¶ 4] Barnhart asserts the trial court denied her a fair trial because the court appointed Sandra Kuntz to act in the capacity of both custody investigator and guardian ad litem for the son. Barnhart asserts that as custody investigator Kuntz acted as the child’s advocate in violation of Rule 8.6, N.D.R.Ct., and Kuntz testified at the hearing in violation of the permissible responsibilities of a guardian ad litem under Rule 8.7, N.D.R.Ct.

[¶ 5] Relevant to this issue, Rule 8.6, N.D.R.Ct., provides:

(c) Court Proceedings. A custody investigator shall attend all court proceedings and shall testify when requested. A custody investigator may not call a witness, question a witness, file a motion, or act as a legal advocate.

Rule 8.7, N.D.R.Ct., provides, in relevant part:

(d) Responsibilities of Guardian ad Litem.
(1) A guardian ad litem shall advocate the best interests of the child as to legal custody, physical placement, visitation, and support. A guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and, consistent with the Rules of Professional Conduct, shall consider, but not be bound by, the wishes of the child or others as to the best interests of the child.
(e) Court Proceedings. A guardian ad litem may present a case, cross-examine a witness, deliver a summation, prepare a memorandum of law, file a motion, and file or participate in an appeal on issues involving the best interests of the child.

Barnhart also relies on the explanatory note to Rule 8.7, N.D.R.Ct., which provides, in relevant part:

The role of a guardian ad litem is to act as an attorney. A guardian ad litem is not to act as a custody investigator by preparing a custody investigation report or giving testimony.

Rule 8.6(c), N.D.R.Ct., provides that a custody investigator may not call or question a witness or act as a legal advocate. The note to Rule 8.7, N.D.R.Ct., explains that a guardian ad litem is not to act as a custody investigator or give testimony. When, however, a guardian ad litem files a report and recommendation the parties have a right to call the guardian ad litem as a witness and to cross-examine the guardian ad litem with leading questions. See Goff v. Goff 2000 ND 57, ¶ 10, 607 N.W.2d 573. It is within the trial court’s discretion to assign the weight to be given to a guardian ad litem’s testimony and recommendation. Hogan v. Hogan, 2003 ND 105, ¶¶ 10-11, 665 N.W.2d 672.

[¶ 6] In this case, the court initially appointed Kuntz as custody investigator. Later, upon stipulation of the parties, the court amended its order and appointed Kuntz to act as both custody investigator and guardian ad litem for the child. Barnhart made no objection to Kuntz acting in this capacity until after Kuntz had submitted her final .report, which in effect was an investigative report, wherein she recommended that custody be awarded to Paulson. A person may waive all rights and privileges to which that person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution. Toni v. Toni 2001 ND 193, ¶ 10, 636 N.W.2d 396. A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. Pfeifle v. Tanabe, 2000 ND 219, ¶ 18, 620 N.W.2d 167. Waiver may be established either by an express agreement or by inference from acts or conduct. Id. The existence of waiver is generally a question of fact, but if circumstances of an alleged waiver are admitted or clearly established and reasonable persons can draw only one conclusion from those circumstances, the existence of waiver is a question of law. Id.

[¶ 7] It is undisputed the parties agreed to have the court appoint one person to act as both custody investigator and guardian ad litem for the child in this case. Under these circumstances, we conclude, as a matter of law, Barnhart waived her right to object that Kuntz was acting in violation of Rule 8.6, N.D.R.Ct., when she proceeded as the child’s advocate or that she violated Rule 8.7, N.D.R.Ct., when she testified at the hearing.

III

[¶ 8] Barnhart asserts the trial court made two findings of fact regarding the issue of custody which are clearly erroneous. The court’s custody determination is a finding of fact which will not be reversed unless it is clearly erroneous. Krank v. Krank, 2003 ND 146, ¶ 6, 669 N.W.2d 105. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Id.

A

[¶ 9] The trial court found:

Allegations of sexual abuse were investigated by the Bureau of Criminal Investigation, including numerous interviews with Benjamin Paulson, a forensic examination of [the child], and polygraph examinations of Lisa Barnhart Paulson and Benjamin Paulson, and the conclusion of the investigation was that no abuse of [the child] by Benjamin Paul-son was evidenced.

Barnhart asserts the conclusions of the Bureau of Criminal Investigation were never introduced into evidence and, therefore, this finding is not supported by evidence and is clearly erroneous. The guardian ad litem’s report was introduced into evidence, and within that report the guardian ad litem states:

The law enforcement and social services investigations of [the child’s] statements reveal no substantial evidence to support any abuse of or danger to [the child] by his father.

While the Bureau of Criminal Investigation’s report and conclusions apparently were not introduced into evidence, this statement by the guardian in her report provides a basis upon which the trial court could find that the criminal investigation resulted in no finding that abuse had been committed upon the child by the father. We conclude, therefore, the court’s finding is not clearly erroneous.

B

[¶ 10] The trial court also made the following specific finding:

Further allegations of sexual abuse were analyzed by Alonna K. Norberg, M.D., of the MeritCare Coordinated Treatment Center in Fargo, North Dakota, and she did not conclude that the child had been a victim of sexual assault.

Barnhart asserts the parties stipulated to a resolution in the juvenile court case, and consequently the evaluation of Norberg was never introduced into evidence in that case or this one. She asserts the trial court’s finding, therefore, is not supported by the evidence.

[¶ 11] Relevant to this issue, Paulson testified:

A.... [A]fter the incident where he made statements at Family Connection and to Dr. Cavett — I immediately took him to the hospital here in town to be examined because if he’s saying I pub— what is it — was a train in his butt, or a broomstick, or whatever, or some large object, there would definitely be some physical evidence of that, so I took him in right away knowing that there’s no physical evidence of this stuff.
Q. And was that the report that there was no physical evidence?
A. Yeah, and then I took him back, I believe, the next day — or the following day in compliance with Social Services and they — they actually went with us and, once again, there was nothing, and then we went to Fargo shortly after that for a — to a very specialized professional that deals with children’s bottoms and, once again, there was nothing, and I cooperated very willingly with all of this as I have through the whole thing.

While Norberg’s name was not specifically mentioned in this line of testimony, Paul-son made reference to her as “a very specialized professional” in Fargo and testified “there was nothing” from the result of her examination to conclude he had sexually abused the child. This evidence supports the court’s finding, and we conclude the finding is not clearly erroneous.

[¶ 12] Furthermore, we view these two questioned findings in the context of all of the court’s extensive findings, relevant to the issue of custody:

[T]he Plaintiff, Lisa Barnhart Paulson, has perpetrated numerous allegations of sexual abuse of the minor child ... by the Defendant, Benjamin B. Paul-son .... [T]he alleged abuse reports have been investigated by Social Services and found to be unwarranted.
[A] forensic interview of the child ... was conducted by Paula Condol, M.S., L.P.C.C., of the Children’s Advocacy Center in Bismarck, North Dakota, who concluded that [the child] did not disclose any sexual abuse.
.[A] physical examination of the child ... was performed by Dr. Perkerewiez, who found no physical evidence of sexual abuse of [the child]....
Dr. Kathy Blohm, a licensed psychologist, of Bismarck, North Dakota, after an interview with [the child] and Lisa Barnhart Paulson, had suspicions of false allegations of Lisa.
[A]fter a visit with [the child] by Benjamin Paulson, Lisa Barnhart Paulson and her mother took [the child] to St. Joseph’s Hospital and Health Center in Dickinson, alleging physical abuse by Benjamin Paulson to [the child] and upon examination and testing by doctors at St. Joseph’s Hospital and Health Center, no abuse was found....
The Juvenile Court for Bowman County has investigated the allegations and the issue of custody of the minor child ... and has ordered that the Defendant, Benjamin Paulson, have custody of [the child] and that Lisa’s visitation be controlled by Dr. Angela Cavett, a therapeutic psychologist.
[A]ll parties agreed in the Bowman County juvenile case that' Benjamin Paulson should have custody of [the child] and Lisa Barnhart Paulson would have supervised visitation....
The Court has taken judicial notice of Bowman County Juvenile Case No. 06-04R-04, and specifically incorporates herein by reference and adopts as a part of the Court’s findings, the parties’ stipulation, the findings of fact, order of disposition, and the attached report of Julie Alexander, guardian ad litem.... Dr. Cavett, the child’s psychologist, testified that parents-attempting to determine whether a child has been sexually abused sometimes resort to behaviors that are inappropriate. Such behaviors include:
•Photographing the child upon his return from visits
•Repeatedly inspecting the child’s genitals after visits with the other parent
•Recording the child’s statements on audiotape or videotape
•Bringing the child to a physician for repeated sexual abuse examinations
•Barraging the child with questions after visits
Dr. Cavett testified that such behaviors can be considered abusive and can have as great an impact on the child as actual sexual abuse. Such behaviors can create an atmosphere of anxiety, danger, lack of safety and alienation. The guardian ad litem report of Sandra K. Kuntz documents similar behaviors engaged by Lisa Barnhart Paulson.

[¶ 13] The trial court found Barnhart had made numerous allegations that Paul-son sexually abused their son, none of which were substantiated. The court also found Paulson had not committed any acts of abuse upon his son. Barnhart has neither objected to nor alleged those findings by the trial court are not supported by the record evidence.

[¶ 14] In determining custody, Section 14-09-06.2(1), N.D.C.C., lists the relevant factors to be considered by the court:

a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence....
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests ....
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

Upon examining the evidence and considering all of the relevant factors under N.D.C.C. § 14-09-06.2, the court concluded:

The factors, c, e, h, i, j, k appear to favor neither parent. While both parents have a tremendous love and affection for the child ... the mental health problems concerning the mother, Lisa Paulson, raise serious concerns about her ability to have and develop a healthy emotional tie with [the boy]. Coupled with the pattern of untruthfulness that surrounds Lisa’s reports and conduct throughout these proceedings, it appears that the best interests of factors a, b, f, j, 1 favor the father, Beni Paulson. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity has yet to be established for [the child]. This is a resourceful 2½ year old boy who, for over the past year, has survived a traumatic accident, as well as endured the loss of a sibling, parental and family-discord, divorce, and placement in foster care. [The child] needs to be placed in an environment that will allow him the necessity of finding that stability, safety and peace that will heal his losses and nurture his development.
It is therefore recommended that the legal and physical care, custody and control of [the child] be placed with his natural father, Benjamin Paulson.

We conclude the court’s findings are supported by the evidence and are not clearly erroneous. We further conclude the evidence supports the court’s award of custody to Paulson and that decision is not clearly erroneous.

IV.

[¶ 15] Barnhart asserts the trial court denied her a fair trial because the court denied her motion for continuance when she discovered two days before the trial that the court-appointed psychologist, Chris Hertler, who was appointed to conduct independent evaluations of the parties, had begun treating Paulson and was also the supervisor of the boy’s psychologist.

[¶ 16] A continuance is the proper remedy for a party claiming unfair surprise. Reimche v. Reimche, 1997 ND 138, ¶ 9, 566 N.W.2d 790. This Court will not reverse a trial court’s decision to deny a continuance absent an abuse of discretion by the trial court. State v. Hilgers, 2004 ND 160, ¶ 38, 685 N.W.2d 109; Riemers v. Peters-Riemers, 2004 ND 153, ¶ 32, 684 N.W.2d 619. The court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Alerus Financial, N.A. v. Lamb, 2003 ND 158, ¶ 6, 670 N.W.2d 351.

[¶ 17] A claim of bias by a licensed psychologist who is testifying in a case is a matter that goes to the weight to be accorded the psychologist’s opinion, and not its admissibility. Loll v. Loll, 1997 ND 51, ¶ 22, 561 N.W.2d 625. Hertler testified that he completed his report of the parties’ evaluations prior to beginning treatment for Paulson. Paulson’s attorney was given full opportunity to cross-examine Hertler. In addition, all motions in the case were to be filed in time to be heard at a scheduled pre-trial conference and Barnhart’s counsel failed, without excuse, to attend that pre-trial conference. The trial court partially based its denial of the request for continuance on that failure. Under these circumstances, we conclude the trial court did not abuse its discretion in denying Barnhart’s request for a continuance.

V

[¶ 18] Barnhart asserts the trial court improperly delegated to psychologist Angela Cavett the court’s authority to schedule visitation. Upon awarding Paul-son custody of the parties’ son, the court awarded visitation to Barnhart as follows:

[T]he Plaintiff,- Lisa Barnhart Paulson, shall have visitation as determined by Dr. Angela Cavett, as is more fully delineated in the action filed in Bowman County Juvenile Court, In the Interest ofC.P., a child, Case No. 2004R-04, and this visitation procedure shall continue in the event the juvenile case is termi-nated_ [T]he Plaintiff shall be responsible for any costs associated with visitation.

The July 2, 2004, juvenile court order, referenced by the trial court in this case, provided:

Lisa Barnhart Paulson shall receive supervised visitation with [her son] through the Family Connections in Dickinson, North Dakota. At Dr. Ca-vett’s recommendation to the Custodian, Lisa Barnhart Paulson shall have supervised visitation with [her son] through a licensed social worker approved by Dr. Cavett and all other parties. Dr. Cavett shall continue to make recommendations for visitations to the Custodian based upon [the boy’s] therapeutic progression.

[¶ 19] After a custody decision has been made, visitation is governed by N.D.C.C. § 14-05-22(2), which provides, in relevant part:

After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.

Visitation is a right of the child and is presumed to be in the child’s best interest. Oldham v. Oldham, 2004 ND 62, ¶ 13, 677 N.W.2d 196. The trial court’s decision on visitation is a finding of fact and will not be reversed unless it is clearly erroneous. Id. Under the statute, the court must grant such rights of visitation as will enable the child and noncustodial parent to maintain a parent-child relationship that is beneficial to the child, unless the court finds that visitation is likely to “endanger the child’s physical or emotional health.” Dr. Angela Cavett, the child’s treating psychologist, testified the visitation plan she envisions is that the boy will see his mother when they have therapy together, and his mother will also have supervised visits when Dr. Ca-vett recommends it. Dr. Cavett testified the child is not in physical danger in Barn-hart’s care, but she believes all visits should be supervised because with unsupervised visits the child may be “bombarded with ... more possible allegations of child abuse.”

[¶ 20] This case is distinguishable from the circumstances in the recently decided case of Wigginton v. Wigginton, 2005 ND 31, ¶ 7, 692 N.W.2d 108, wherein the mother was awarded custody of the parties’ two minor children with visitation for the father “to be conducted at the sole discretion of’ the mother. The trial court found that the children’s father continued to use methamphetamine within a few days of the trial and his use of contraband drugs “harmed his relationship with his children and did place his children in danger.” The trial court stated that giving the custodial parent control of visitation was unusual and not done lightly, but under the circumstances it was necessary to keep the children from harm. The trial court was convinced the custodial parent wanted the children to maintain a relationship with their father and would do everything possible to encourage reasonable visitations if and when those visitations would be safe for the children. This Court upheld the restricted visitations under these “highly unusual” circumstances, stating:

Giving the custodial parent such complete discretionary authority over the manner and timing of visitation should be used only when there is a demonstrated need to protect the children from the potential for physical or emotional harm and where, as here, the custodial parent has demonstrated that he or she is “deeply concerned that the children, for the children’s benefit, maintain a relationship with” the noncustodial parent.

Id. at ¶ 12 (emphasis in original).

[¶ 21] Generally, the trial court cannot delegate to anyone the power to decide questions of child custody or related issues. See Owan v. Owan, 541 N.W.2d 719, 722 (N.D.1996). Visitation should be restricted only upon a showing by a preponderance of the evidence that unrestricted visitation is likely to endanger the child’s physical or emotional health. Wigginton, 2005 ND 31, ¶ 11, 692 N.W.2d 108. Unlike the circumstances in Wiggin-ton, there was no finding in this case that visitations between Barnhart and her son would necessarily endanger the child’s physical or emotional health. Consequently, we conclude the trial court impermissi-bly delegated its authority, under the circumstances, by allowing Dr. Cavett to set the visitation schedule, carte blanche. We, therefore, reverse the court’s visitation order and remand for a redetermination of appropriate visitation, which the court must schedule and retain authority to modify.

VI

[¶ 22] We hold the trial court did not deny Barnhart a fair trial in this case, the court’s findings relevant to the issue of custody are supported by the evidence and are not clearly erroneous, and the court did not abuse its discretion in denying Barnhart’s request for a continuance prior to the start of the trial. We further conclude, however, the court impermissibly delegated its authority to decide visitation. We, therefore, affirm the court’s award of custody but reverse the court’s visitation decision and remand for a redetermination of reasonable visitation for Barnhart.

[¶ 23] DALE V. SANDSTROM, CAROL RONNING KAPSNER and MARY MUEHLEN MARING, JJ., concur.

[¶ 24] 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.


text:
    2005 ND 71
    H-T ENTERPRISES, Plaintiff and Appellee v. ANTELOPE CREEK BISON RANCH, comprised of Douglas G. Candee and Keith Candee, Defendant and Appellant.
    No. 20040194.
    Supreme Court of North Dakota.
    April 6, 2005.
    Rehearing Denied April 26, 2005.

      Michael J. Maus, Hardy, Maus & Nord-sven, P.C., Dickinson, N.D., for plaintiff and appellee.

      Suzanne M. Sehweigert (argued), Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., and David D. Beaudoin (on brief), Omaha, NE, for defendant and appellant.
   VANDE WALLE, Chief Justice.

¶ 1 Antelope Creek Bison Ranch (“ACBR”), comprised of Douglas G. Can-dee and Keith Candee, appealed an amended judgment and three orders entered in an eviction action brought by H-T Enterprises (“H-T”). We affirm.

I

¶ 2 On January 3, 2000, ACBR leased from H-T about 7,400 acres for a bison ranch for a term beginning January 1, 2000, and terminating December 31, 2004. The lease provided, in part:

3. LEASE PAYMENTS: Lessee shall pay annual rent for the property in the amount of $45,000.00 to be paid as follows:
a. One-half due on or before January 1st of each year of this lease including payment on or before January 25, 2000.
b. The remaining of the annual rent is to be paid on or before November 25, 2000.
5. FENCING: Lessee agrees to assume all cost associated with installation of the necessary fencing to complete the use of the entire property for buffalo. H-T Enterprises would agree to provide fencing materials. After initial installation of the fence, maintenance of the fence would be the responsibility of the Lessee.
12.RESEEDING: Costs above any government share shall be the responsibility of Lessee. Total crop can be used by the Lessee provided such usage is consistent with good farming/ranching practices.
13. ACCESS TO PROPERTY BY LESSOR: The Lessor herewith retains the right of access to the above described premises at reasonable times to inspect the premises and otherwise perform whatever acts the Lessor may deem necessary.
14. POSSESSION AND DEFAULT: The Lessee shall be entitled to possession upon execution of this agreement and subject to the terms of this lease. In the event that the Lessee should default in the performance of any of the terms, covenants and/or conditions of this lease, Lessor may, in addition to every remedy now or hereafter available to the Lessor in law or equity, have the following rights and remedies as set forth and such shall be deemed cumulative and not exclusive. Lessor shall have the right to re-enter the premises without affecting thereby the termination of lease by giving Lessee notice of such intention. Lessor may terminate the lease or elect to relet the premises.
15. WAIVER: Waiver of any breach of any of the provisions of this lease by the Lessor shall not constitute a continuing waiver or a waiver of any subsequent breach by Lessee.
16. TIME OF THE ESSENCE: If it further agreed that time is of the essence of this agreement and specific times mentioned herein shall be strictly adhered to.
18. LAND LEASE: The premises is leased to the Lessee for the purposes of using the above described premises as pasture land, seed grain production, forage (hay) production, and crop raising. No pasture land shall be broken up or seeded absent consent by Lessor.

¶ 3 On December 6, 2002, H-T notified ACBR to quit and vacate the leased premises. On January 16, 2003, H-T commenced an eviction action against ACBR. The complaint alleged, among other things, that “annual rent payment was in the amount of $45,000 with the first half to be due and payable on January 1st of each year and the remainder to be paid on or before November 25th of each year,” ACBR “did not make the November 25th payment for the year 2002,” and ACBR “has over grazed the premises and, thus, has committed waste.” The complaint sought possession of the premises and “rental due as of December 6, 2002, for $19,602.72 together with the accruing daily rental in the amount of $123.28.” ACBR answered, denying nonpayment of rent and waste, and counterclaimed, alleging H-T’s constructive eviction of ACBR “has denied [ACBR] the ability to recoup its capital expenditures which constituted permanent improvements to the leased property in a value to be proven, but in amounts in excess of $25,000.” ACBR sought a judgment that H-T “take nothing by its Complaint” and “a determination that no rental monies are due and for a further determination that [H-T’s] actions ha[ve] resulted in constructive and actual breaches and eviction from the leased premises.”

¶ 4 After a hearing on January 28, 2003, the district court found ACBR “did not pay its rent payment due November 25, 2002, in the amount of $22,500,” concluded ACBR was in default, the lease was terminated, H-T was entitled to eviction, and entitled to a judgment for unpaid rent. The court ordered the money judgment stayed for 60 days to allow ACBR to pursue its “claim for offset through improvements to the leased property.” Judgment was entered accordingly on February 4, 2003.

¶ 5 ACBR filed a motion for offsets. After a hearing, the district court issued an order denying ACBR’s claims for offsets and issued an order for entry of an amended judgment. On May 13, 2004, an amended judgment was entered that evicted ACBR and awarded H-T judgment against ACBR for:

$22,500.00 for rent through December 31, 2002, and $123.29 per day from January 1, 2003, through February 10, 2003, in the amount of $4,685.02 for a total of $27,185.02 and for costs and disbursements ... of $110.00 with interest at 12% from and after February 4, 2003.

ACBR moved for reconsideration, which the district court denied.

ACBR has raised the following issues on appeal:

I. Whether the District Court erred in summarily evicting Antelope Creek Bison Ranch and its livestock from H-T’s premises for failing to pay rent when due?
II. Whether the District Court erred in calculating the rent owing to HT?
III. Whether the District Court erred in failing to award Antelope Creek Bison Ranch its claim for offsets for the improvements made to the lease property and H-T’s breach of the Lease?

II

¶ 6 Under N.D.C.C. § 33-06-01, an eviction action may be brought to recover the possession of real estate if, among other things, a lessee fails to pay rent for three days after it is due or violates a material term of a written lease. Section 33-06-04, N.D.C.C., provides, in part:

An action of eviction cannot be brought in a district court in connection with any other action,- except for rents and profits accrued or for damages arising by reason of the defendant’s possession. No counterclaim can be interposed in such action, except as a setoff to a demand made for damages or for rents and profits.

“An eviction action under N.D.C.C. ch. 33-06, is a summary proceeding to recover possession of real estate.” Anderson v. Heinze, 2002 ND 60, ¶ 11, 643 N.W.2d 24. The purpose of the no-counterclaim provision in N.D.C.C. § 33-06-04 is to get a speedy determination of possession. VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 11, 672 N.W.2d 445. A defendant may show the character of the parties’ possessory rights, evidence of a strained relationship having a bearing on whether a material breach has occurred, and affirmative defenses. Id. at ¶¶ 12, 13. An action for eviction invokes a court’s equitable jurisdiction. In re Estate of Binder, 366 N.W.2d 454, 456 (N.D.1985). Payment or nonpayment of a sum of money is a question of fact. First Interstate Bank of Fargo, N.A. v. Rebarchek, 511 N.W.2d 235, 243 (N.D.1994). Whether or not a certain state of facts is contrary to equity is a conclusion of law. Midland Diesel Serv. & Engine Co. v. Sivertson, 307 N.W.2d 555, 557 (N.D.1981). We will not reverse a trial court’s finding of fact unless it is clearly erroneous. Sweeney v. Sweeney, 2005 ND 47, ¶ 11, 693 N.W.2d 29. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the evidence, this Court has a definite and firm conviction a mistake has been made.” Id. A trial court’s conclusions of law are fully renewable on appeal. Fladeland v. Gudbranson, 2004 ND 118, ¶ 7, 681 N.W.2d 431.

A

¶ 7 ACBR contends the court erred in summarily evicting it and its livestock from H-T’s premises for failing to pay rent, arguing the failure to pay rent was not sufficient to compel eviction, H-T waived its right to allege breach of contract by accepting late rental payments in the past, and the lease was ambiguous about the due date for rent payments. At the initial hearing, Douglas Candee told the court:

I guess that the relief that I would lay on the table, and maybe it’s in the paperwork here, is that if we can walk away from each other, now at this point, I not putting anymore rent into the place for this last half of the year in exchange for the amounts of capital improvements that I have not billed for and that I won’t be able to recover on the place. That would be my request or asking of the court.

Candee told the district court he did not object to termination of the lease. Furthermore, the provisions of the lease quoted above belie ACBR’s contentions under the practice of the parties. We conclude the court’s finding of nonpayment of rent is not clearly erroneous and we conclude the court did not err in evicting ACBR from the leased premises.

B

¶ 8 ACBR contends the court erred in calculating the amount of rent owing HT, because almost all of the animals were-removed in December 2002, with only a few bulls remaining in a small area of the ranch until February 7, 2003, and “equity would dictate that ACBR could not be charged for the full rental rate of $123.29 per day, until the final bull was removed.” From the arguments presented, we are not persuaded the district court’s award of the daily rental value of the ranch until all the animals were removed is either clearly erroneous or inequitable.

C

¶ 9 ACBR contends the district court erred in failing to award ACBR its claim for offsets under N.D.C.C. § 33-06-04 for the improvements it made to the leased property in the form of fencing, dams, dikes, access roads, and fertilizer application; for H-T’s breach of the lease; and for the value, or return, of hay left on the premises.

i

¶ 10 For the proposition that it is entitled to an offset in the amount of its expenses in improving the leased property because its enjoyment of the improvements has been cut prematurely by two years with the termination of the lease, ACBR relies upon Miami Dade Ind. Park, Inc. v. Miami Dyeing & Printing, Inc. (In re Miami Dyeing & Printing, Inc.), 14 B.R. 947 (Bankr.S.D.Fla.1981), and Ehrman v. Feist, 1997 ND 180, 568 N.W.2d 747. Reliance upon those decisions is misplaced, as they involved leases giving the lessees options to purchase the leasehold properties they made improvements to during the lease. ACBR has not drawn our attention to any authority holding that a tenant evicted for nonpayment of rent is entitled to an offset for the value of improvements made to leasehold property without a purchase option. Section 33-06-04, N.D.C.C., does not authorize a counterclaim as an offset that is not otherwise recognized under law. We conclude the district court did not err in denying ACBR’s claim for an offset for the value of its improvements.

ii

¶ 11 ACBR asserts that, “in September 2001, H-T, without ACBR’s permission, seeded the only 150 acres of cropland into native grasses, all to the detriment of ACBR and its livestock.” ACBR contends: “H-T breached the lease agreement by seeding 150 acres of the leased land, which Antelope Creek Bison Ranch is entitled to a claim of offset for the loss of use of those acres.” In denying ACBR’s claim for offsets, the trial court explained: “Even if the tillage of 150 acres had been an impermissible interference with the leasehold, there is no reliable evidence which might permit damage calculation. In any event, damages would be nominal.” ACBR contends “[t]he District Court had more than enough evidence in which to calculate an offset, but erroneously failed to do so.”

¶ 12 At the initial hearing, H-T’s president said that what H-T seeded in 2001 was “under the Equip Contract with the government that we have to reseed back to grass in order to keep the payment.” At the hearing on ACBR’s claim for offsets, Douglas Candee testified about the 150 acres H-T seeded in 2001: “Under the contract it was anticipated that H-T would want to convert that back to hay land ... I think it was anticipated in the lease ... I was agreeing that we would conform or do the conservation work on the equip conservation plan.” Thus, at the outset of the lease, the parties contemplated that the 150 acres in question would be seeded to grass. We conclude the court did not err in denying ACBR’s claimed offset,

iii

¶ 13 ACBR contends it is entitled to the return of 18 tons of hay it left on the leased land or an offset for its value of $1,800. The trial court denied the claim:

Lessee claims that he left eighteen ton of his hay when he removed his livestock. Lessor claims that the only hay on the leasehold is that belonging to Nancy Herauf. In the ten months since the hearing on this matter, I have patiently awaited divine inspiration to reveal to me if there is hay and to whom it might belong. Nothing has arrived that would raise my confidence level to a preponderance of the evidence and, remaining perplexed and unconvinced, I must deny that claim.

¶ 14 Douglas Candee testified the hay left at the termination of the lease “was the 2001 production off of Section 19 and I estimated that to be eighteen tons of hay,” which he “would have valued it given the shortage and stuff at $1,800, $100 per ton.” On cross-examination, Candee testified:

Q. Now, you understood that — as I understood, you irrigated fourteen acres of land in Section 19 that was actually owned by Nancy Herauf?
A. I believe at the time that we irrigated I was either not — we irrigated it twice, we irrigated it in the year 2000 and we irrigated in 2001, and there was no designation made that we shouldn’t be irrigating it and that we couldn’t expect the crop off it unless that was granted in there the first year and not the second year.
Q. Well, first of all, do you know at this point in time, Nancy Herauf owns that land, not H-T Ranch?
A. I do now.
Q. And of course your lease references to Section 19, doesn’t it?
A. Pardon?
Q. Your lease, the written lease, says 250 in Section 19, so you knew you didn’t lease the entire section?
A. Right, because that’s other ownership in part of Section 19, I was aware of that.
Q. And so that hay that you’re talking about for $1,800 is actually hay that is grown on ground owned by Nancy Herauf?
A. I’m led to believe that now after the fact, yes.

Nancy Herauf was not a party to the lease and her land was excluded from the lease. ACBR did not prove it had a right to the hay left on the leasehold or its value. We conclude the trial court did not err in denying ACBR’s hay claim.

Ill

¶ 15 H-T has requested attorney fees. Absent statutory or contractual authority, the American Rule assumes parties to a lawsuit bear their own attorney fees. Danzl v. Heidinger, 2004 ND 74, ¶ 6, 677 N.W.2d 924. H-T has not drawn our attention to any statutory or contractual authority for an attorney fee award in this case. We deny the request for attorney fees.

IV

¶ 16 The amended judgment and orders are affirmed.

¶ 17 MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM:, JJ., concur.

¶ 18 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.