author: STREIT, Justice.

text:
    Judith Kay GRABER, Appellant, v. CITY OF ANKENY, Iowa, Appellee.
    No. 01-1994.
    Supreme Court of Iowa.
    Jan. 23, 2003.

      John P. Roehrick of Roehrick, Hutting, Krull, & Blumberg, P.C., Des Moines, for appellant.
    John Werner and Donna R. Miller of Grefe & Sidney, P.L.C., Des Moines, for appellee.
   STREIT, Justice.

Judith Graber and Kristie Allen collided at a T-intersection in the City of Ankeny. Graber sued the city claiming it negligently timed the traffic signals at this intersection proximately causing her injuries. The city argued it is immune from liability under the discretionary function immunity statute of Iowa Code section 670.4(3) (2001). The trial court found the city is entitled to immunity and Graber appealed. Because we find the action of the city in timing the sequence of the traffic lights is not a discretionary decision based upon legitimate public policy considerations, we reverse.

I. Background and Facts

In 1996, Judith Graber approached the T-intersection at State Street and Orala-bor in the City of Ankeny. The light controlling the movement of her lane of traffic turned green. Traveling to the north, Graber entered the intersection to make a left-hand turn. At the same time, an east-bound car driven by Kristie Allen entered the intersection even though she had a red light. Allen’s car hit Graber’s car broadside. Graber sustained serious injuries. Allen testified the stop light controlling the movement of her lane of traffic changed from green to yellow to red so quickly that she did not have time to stop.

Graber sued the city claiming it negligently set the timing of the traffic lights at the intersection. A jury found the city was not liable for Graber’s injuries. Gra-ber appealed. Because we found the trial court improperly admitted settlement evidence prejudicing Graber’s substantial rights, we remanded the case for a retrial. Graber v. City of Ankeny, 616 N.W.2d 633 (Iowa 2000). The city then amended its answer claiming governmental function immunity based on Iowa Code section 670.4(3). The court granted a motion for summary judgment based upon the added defense. The district court found the timing sequence of the traffic lights is a discretionary function entitled to immunity and dismissed Graber’s case. Graber appeals.

Graber contends the city is not immune for its actions in timing the sequence of traffic lights because it did not exercise discretion in simply following the mandates of the Manual on Uniform Traffic Control Devices (MUTCD). The city claims the MUTCD is not mandatory but contains recommendations and guidelines. The city further argues it is immune from liability because it exercised discretion and made policy-based judgments in timing the sequence of the traffic lights.

II. Scope of Review

Our review of the district court’s grant of the motion for summary judgment is for correction of errors at law. Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 442 (Iowa 2002). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3) (2002).

III. The Merits

Our only question on appeal is whether the city’s action involved in timing the sequence of traffic lights is a discretionary function entitled to immunity from liability. Iowa Code section 670.2 (2001) provides “every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties.” A municipality is not liable, however, for certain discretionary functions. Iowa Code section 670.4(3) contains our provision for governmental function immunity which provides a municipality is immune from

Any claim based upon an act or omission of an officer or employee of the municipality, exercising due care, in the execution of a statute, ordinance, or regulation, whether the statute, ordinance or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the municipality or an officer or employee of a municipality, whether or not the discretion is abused.

Iowa Code § 670.4(3). Graber argues the immunity does not apply and the city is liable for her injuries. The city argues it is immune because it exercised discretion and its actions were based on numerous policy considerations.

Immunity is based upon the desire to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Goodman v. City of LeClaire, 587 N.W.2d 232, 237 (Iowa 1998) (quoting Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531, 541 (1988)). In determining whether the discretionary function immunity of Iowa Code section 670.4(3) applies, we apply the test announced by the United States Supreme Court in Berkovitz, 486 U.S. at 536-37, 108 S.Ct. at 1958-59, 100 L.Ed.2d at 540-41. See Goodman, 587 N.W.2d at 238 (adopting the Berkovitz test). The first step is to determine whether there was an element of judgment or discretion involved in the city’s decision. Doe, 652 N.W.2d at 443. If we find the city exercised choice in timing the traffic lights, then we must determine whether this kind of judgment is the type the discretionary function immunity was designed to shield from liability. Id. If the answer to either of these questions is negative, then the discretionary function immunity is not available as defense. Id. The general rule is that of municipal liability — immunity is the exception. Id.

A. Did the City Exercise Discretion?

Graber argues the city’s action in timing the sequence of the traffic lights is not immune because it was governed by the MUTCD which leaves no room for discretion. The city argues the MUTCD is not mandatory but works merely as a guideline. The United States Department of Transportation publishes a volume entitled, “Manual on Uniform Traffic Control Devices.” Our legislature has directed the department of transportation to “adopt a manual on specifications for a uniform system of traffic-control devices consistent with the provisions of this chapter [321]....” Iowa Code §§ 321.252 (directive for state authorities), 321.255 (directive for local authorities); Iowa Admin. Code r. 761-130.1 (1996). Pursuant to a local ordinance, the city established that traffic control devices were to be placed and maintained in accordance with the MUTCD and specifications of the Iowa Department of Transportation. See Ankeny Mun.Code § 10.12.010. Based on the provisions of the MUTCD, the trial court determined the city’s action was discretionary.

Graber has not presented any evidence to support the conclusion that the MUTCD’s provisions prevent choices in running the city’s traffic lights. There are no statutes or contractual provisions that restrict the city’s timing of the sequence of traffic signals in such a way as to eliminate all aspects of discretion or judgment. The MUTCD provisions do not support a finding that the timing of traffic signals is mandatory.

Graber relies on one provision of the MUTCD to support her conclusion that the MUTCD is mandatory. In the MUTCD’s prefatory provisions, it states:

Engineering Study Required
The decision to use a particular device at a particular location should be made on the basis of an engineering study of the location. Thus, while this Manual provides standards for design and application of traffic control devices, the Manual is not a substitute for engineering judgment. It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation.
Qualified engineers are needed to exercise the engineering judgment inherent in the selection of traffic control devices, just as they are needed to locate and design the roads and streets which the devices complement. Jurisdictions with responsibility for traffic control that do not have qualified engineers on their staffs, should seek assistance from the State highway department, their county, a nearby large city, or a traffic consultant.

MUTCD § 1A-4 (emphasis added). Gra-ber argues this section imposes a duty upon the city to perform engineering studies in the operation and maintenance of traffic control devices and general regulation of traffic. However, the requirement that an engineering study be performed applies not to the operation of traffic control devices, but to the initial decision to use a particular type of traffic control device at a particular location. As to the city’s original decision to use traffic lights at this intersection, the national manual functioned as an aid to guide the exercise of professional judgment in that choice. The MUTCD is not meant to function as a substitute for professional judgment in the selection of traffic control devices.

There is no other similar provision in the MUTCD imposing an engineering study requirement upon a city’s operation of traffic control devices. The MUTCD addresses the timing of traffic signals in section 4B-20. This provision states, “traffic control signals shall be operated in a manner consistent with traffic requirements.” Because the demands on traffic signals change with the traffic flow, pedestrian traffic, and other such variables, the MUTCD recommends engineering studies and information should be reevaluated periodically.

In most cases the installation of a highway signal will operate either to the advantage or disadvantage of the vehicles and persons controlled.... Engineering studies should be made of operating signals to determine if the type of installation and the timing program meet the current requirements of traffic.

MUTCD § 4A-2; see also id. § 4B-20 (because “traffic flows and patterns change, it is necessary that the engineering data be updated and re-evaluated regularly”). After the original installation is completed, the MUTCD suggests “regular checks including the use of accurate timing devices should be made.” Id. § 4B-20. Use of the word “should” indicates it is “recommended but not mandatory.” Id. § 1A-5.

The Ankeny ordinance adopting the MUTCD states:

[t]he council shall cause to be placed and maintained such traffic-control devices upon highways under its jurisdiction as it may deem necessary to indicate and carry out the provisions of this chapter ... or to regulate, warn or guide traffic.

Ankeny Mun.Code § 10.12.010 (emphasis added). The “deem necessary” language contained in the Ankeny ordinance indicates the city must make a judgment both as to whether to place a traffic control device at a particular intersection and how to maintain it. This includes discretion for the timing of traffic signals.

In deciding whether it is necessary to install traffic signals and how to time those signals, the city considers a multitude of factors. These factors will be discussed in more detail below. We address only one factor here — mathematical computations used to determine proper timing. Graber argues no discretion existed in the city’s action in determining the timing sequence because the city engineer merely fed information into a computer resulting in the timing sequence to be implemented. However, the consideration of this data alone does not make the city’s decision devoid of any discretion. Furthermore, there is nothing in the record to suggest the city did not consider other factors but merely relied upon the numbers from the computer. To the contrary, the evidence suggests there were a number of considerations inherent in the city’s action in timing the traffic lights.

A number of other jurisdictions have considered whether the national MUTCD functions as a mandate or as a guideline. The majority of these jurisdictions have determined the MUTCD is nothing more than a guideline. See, e.g., Cope v. Scott, 45 F.3d 445, 451 (D.C.Cir.1995); McComb v. Tamlyn, 173 Or.App. 6, 20 P.3d 237, 241 (2001) (provisions of MUTCD do not require traffic engineer to use particular signal in designing specific intersection because manual vests city engineer with discretion in making such decisions); Dep’t of Transp. v. Sanchez, 75 S.W.3d 24, 28-29 (Tex.App.2001) (3.5 second clearance interval for traffic signals was set within the discretionary guidelines stated in paragraph 4B-15 of the Texas MUTCD); Searles v. Agency of Transp., 171 Vt. 562, 762 A.2d 812, 814 (2000); Harmann v. Schulke, 146 Wis.2d 848, 432 N.W.2d 671, 674 (Ct.App.1988). See also Zank v. Larson, 552 N.W.2d 719, 722 n. 2 (Minn.1996) (Minnesota MUTCD “affords substantial discretion to local governmental units regarding all red clearance intervals”). We align ourselves with the majority of jurisdictions considering this issue.

The legislature recognized it is not possible to detail motor vehicle safety regulations for all situations. Because of this limitation, it has given state and local authorities the ability to carry out the purposes of our traffic signs, signals, and markings laws. See Iowa Code § 321.252. The guidelines promulgated by the MUTCD are sufficient to advise local authorities in their efforts to promote public safety. Relevant to the case before us, the MUTCD states engineering studies should be used to determine the proper timing of the sequence of traffic signals. However, the analysis of the results of such studies and the implementation of the appropriate timing sequence necessarily involves judgment. The MUTCD is very clear that it is not meant to serve as a substitute for engineering judgment. Such a clear statement of intent negates Graber’s argument that the MUTCD is mandatory. Nothing in the MUTCD requires the city to follow a particular procedure in timing the sequence of traffic lights. Local authorities have the ultimate choice to decide the appropriate timing sequence for a particular traffic light. The city’s action in timing the traffic signals rested solely upon elements of judgment and discretion. We now must determine whether this is the type of judgment the discretionary function immunity was designed to shield from liability.

B. Is This the Type of Decision the Immunity is Designed to Protect?

We next turn to the second part of the Berkovitz test. The city argues its decision in timing the traffic lights is immune from liability because it was based upon policy considerations. Though Graber has not cited any decisions holding that timing traffic signals in a certain manner is not immune from liability, our research revealed this very issue has been considered once before by our court. Over thirty-six years ago in Gorman v. Adams, we held the City of Cedar Rapids was not entitled to immunity for its “new and unusual signaling sequence” of a traffic light which caused an accident. 259 Iowa 75, 84, 143 N.W.2d 648, 653 (1966). In that case, the plaintiff entered an intersection driving in a westerly direction. The defendant, driving in an easterly direction, left her lane of traffic to turn and cross northeasterly into the westbound lane of traffic. In doing so, the defendant blocked the westbound lane in which the plaintiff was traveling. The two cars collided. The plaintiff argued the timing of the traffic lights caused a defect in the condition of the road for which the city was not immune from liability.

In Gorman, we recognized the rule of governmental immunity is to be strictly construed against a municipality. Id. at 80, 143 N.W.2d at 651. We stated, even “assuming that the city was exercising a governmental function, nevertheless liability may arise.” Id. at 82, 143 N.W.2d at 652. Despite the several cases finding the tuning of traffic signals is a governmental function entitled to immunity, we held to the contrary. We based this decision, in part, upon Iowa Code section 389.12 (1962), stating a municipality

shall have the care, supervision, and control of all public highways, streets, avenues, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.

Iowa Code § 389.12 (1962). Gorman seemingly interpreted this statute to mean “care, supervision, and control” of streets includes the actions of a city in regulating traffic.

We held the timing of traffic lights is indistinguishable from a city’s failure to maintain a traffic signal in good physical condition. We analogized Gorman to a previous case in which we denied immunity where a boy was killed by a falling traffic signal. See Hall v. Town of Keota, 248 Iowa 131, 79 N.W.2d 784 (1956). The nuts and bolts of the light pole were worn and rusted so that the traffic signal “became a trap and an inherently dangerous instrumentality.” Id. at 134, 79 N.W.2d at 785.

Our case law on discretionary function immunity has been significantly refined in the past thirty-six years and continues to evolve. Though our current state tort claims statute is nearly identical to the statute in effect in 1962, our analysis of immunity cases has greatly changed. In Gorman, we did not examine whether the city based its decision in timing the traffic lights on legitimate policy considerations. Instead, we determined the city’s failure to perform the statutory duty imposed by section 389.12 resulted in liability despite the fact the function involved was a governmental action based upon judgment. We do not decide the case before us based upon our holding in Gorman. Rather, our analysis must go further to determine whether the city’s timing of the traffic signals was based upon legitimate public policy considerations. For the reasons stated below, we hold the city’s actions in timing the sequence of the particular traffic signals at the intersection of State Street and Oralabor is not immune from liability.

At some point, a distinction must be drawn between a mere choice and a choice based upon the “meaningful exercise of discretion.” See Christensen v. Mower County, 587 N.W.2d 305, 308 (Minn.Ct.App.1998). It can be argued every action taken by a government employee involves the exercise of discretion. However, not all actions involving discretion are immune from liability. “[T]he operative distinction is the one between a judgment that embodies a professional assessment undertaken pursuant to a policy of settled priorities and a fully discretionary judgment that balances incommensurable values in order to establish those priorities.” Shansky v. United States, 164 F.3d 688, 694 (1st Cir.1999). We must determine

whether some plausible policy justification could have undergirded the challenged conduct. The critical question is whether the acts or omissions that form the basis of the suit are susceptible to a policy-driven analysis, not whether they were the end product of a policy-driven analysis.

Id. (citing Rosebush v. United States, 119 F.3d 438, 444 (6th Cir.1997)). In other words, an immune governmental action is one that weighs competing ideals in order to promote those concerns of paramount importance over the less essential, opposing values. Whether or not the city actually made its decision with policy considerations in mind is not determinative. Instead, the city’s actions in timing the lights must be amenable to a policy-based analysis. The circumstances must show the city legitimately could have considered social, economic, or political policies when making judgments as to the timing of the traffic signal.

In examining whether the city’s decision was based upon legitimate policy considerations, the existence of professional judgment may be one factor to consider. However, professional judgment alone is not sufficient to elevate the discretionary function to such a level as to immunize it from liability. We do not consider the subjective intent of the person making the governmental decision as it is irrelevant to our immunity analysis. Shansky, 164 F.3d at 692. Rather, we look at the nature of the governmental action to determine whether the city could have considered legitimate policy-based factors in its decision to set the timing sequence of the traffic lights in a particular manner. Legitimate policy-based considerations are those supported by social, political, or economic policies. Doe, 652 N.W.2d at 444. It takes more than a mere label of “policy” to rise to the level of a legitimate policy-based consideration. To be legitimate, the policies must be ones which the municipality genuinely could have considered and balanced in making its judgment.

Undeniably, there are a number of factors the city could have considered in determining the timing of the traffic signals at this intersection. The Ankeny municipal ordinance reflects the city’s policy interest in warning and guiding traffic throughout the city. The city considered the configuration of the intersection, the volume and direction of traffic into the intersection, and whether it was necessary to favor certain drivers over others. The city needed to set the sequence of the lights to accommodate eighty percent of the traffic making turning movements. As a general safety concern, the city was already having problems at this intersection with the original four-and-a-half second yellow interval. It was concerned that increasing the length of the yellow could cause more drivers to attempt to beat the red light.

In general, when a city determines the timing sequence of traffic signals, it bases its decision, in part, upon the desire to provide orderly and safe movement of traffic throughout the city. See Aguehounde v. Dist. of Columbia, 666 A.2d 443, 448 (D.C.1995). As such, it was necessary for the city to consider traffic in surrounding areas as it affects a particular intersection. Finally, pedestrian traffic may be considered in deciding the appropriate timing of traffic signals. See id.

All of the above considerations are based upon one priority only — the city’s overarching safety concern. “[W]hether a discretionary act is policy-driven cannot be short-circuited simply by raising the specter of a general safety concern.” Shansky, 164 F.3d at 693. The mere existence of a sweeping safety consideration does not catapult the city’s actions into the zone of immunity for decisions based upon social, economic, or political policy. See Doe, 652 N.W.2d at 445. Though the city may have considered preordained safety policies, that is not sufficient to ascend to the level of an immune policy-based action. Almost every decision made by a public employee is done with respect to general safety considerations. However, individual decisions made under the umbrella of safety considerations are not immune. There must be something more than bald-faced assertions of safety at the center of the city’s decision.

Other than pre-determined safety considerations, there is no evidence that anyone of authority balanced any priorities of competing importance. See Shansky, 164 F.3d at 694; Messerschmidt v. City of Sioux City, 654 N.W.2d 879, 882-83 (Iowa 2002). The city has failed to show any broad-sweeping economic, political, or social considerations were at the heart of its decision on how to time this traffic signal. There is no evidence to suggest the city’s judgment would have involved any policy-making. Doe, 652 N.W.2d at 444 (“[t]he more the ... judgment involved policy-making the more it is to be recognized as immune from judicial process”). The city’s conduct was not “entwined in a layer of policy-making that exceeded the mere application of rules to facts.” Id. at 446. The city’s decision in timing these traffic signals is the same as the ordinary, day-to-day decisions faced by all municipalities in regulating their streets. The factors considered by the city here are not legitimate policy-based considerations implicating governmental functions. Id. at 445. A governmental action is not afforded immunity simply because a municipality announces that the action was policy-based. The challenged action must lend itself to a policy-based analysis. Here, the city judgment was based on nothing more than a generic safety consideration. As such, the city is not immune from Graber’s tort action.

The facts before us show the movement of both Graber and Allen was controlled by the traffic signals that were operating according to the timing sequences the city had previously set. In setting the sequence, the city’s professional judgment did not rise to the level of that of an immune discretionary function because it was not based upon legitimate policy considerations. We reverse and remand.

IV. Conclusion

The city exercised its discretion when it decided the proper timing of the traffic lights at the intersection of State Street and Oralabor. However, this choice was not based upon any broad-sweeping policy considerations. The city is therefore not immune from liability for its actions in timing these traffic signals. Because genuine issues of material fact existed as to the city’s liability, the city’s motion for summary judgment should not have been granted. We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Iowa Code section 389.12 has since been repealed and is now contained as modified in Iowa Code section 364.12 (2001). Iowa Code section 364.12 provides, subject to enumerated exceptions,
      A city shall keep all public grounds, streets, sidewalks, alleys, bridges, culverts, overpasses, underpasses, grade crossing separations and approaches, public ways, squares, and commons open, in repair, and free from nuisance....
      Iowa Code § 364.12.

      . The majority of jurisdictions considering whether a municipality is immune from suits based upon its judgment in timing traffic signals have answered in the affirmative. See, e.g., Aguehounde, 666 A.2d at 448 (citing safety considerations and professional judgment of traffic engineers); Zank, 552 N.W.2d at 722 (citing safety considerations); Ciambrone, 558 A.2d at 51 (citing safety considerations and "overall planning of traffic control”); Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63, 68 (1960) (citing safety considerations and professional judgment); Hamilton v. Town of Hamlet, 238 N.C. 741, 78 S.E.2d 770, 771 (1953) (citing safety considerations and noting that immunity is the rule, not the exception); Shunkwiler v. Ohio Dep't of Transp., 66 Ohio Misc.2d 96, 643 N.E.2d 593, 594-95 (1992); Davis v. City of Cleveland, 709 S.W.2d 613, 615 (Tenn.Ct.App.1986) (citing professional judgment). We do not find these cases helpful because they appear to apply immunity based upon either the assertion that safety considerations and/or professional judgment were involved. Neither general safety concerns nor mere assertions of professional judgment are sufficient to confer immunity upon a municipality. A handful of jurisdictions do not engage in an analysis of whether the municipality balanced legitimate public policies. See, e.g., Conover v. Bd. of County Comm’rs, 527 So.2d 946, 946 (Fla.Ct.App.1988); Raisanen v. City of Milwaukee, 35 Wis.2d 504, 151 N.W.2d 129, 134 (1967). These cases are likewise unhelpful to our Ber-kovitz analysis because they completely bypass the second part of the discretionary function test.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    IOWA MANAGEMENT & CONSULTANTS, INC., Appellee, v. SAC & FOX TRIBE OF THE MISSISSIPPI IN IOWA, Appellant.
    No. 01-0395.
    Supreme Court of Iowa.
    Jan. 23, 2003.

      Steven F. Olson and Brad S. Jolly of Bluedog, Olson & Small, P.L.L.P., Minneapolis, Minnesota, and Roger Sehoell of Grimes, Buck, Sehoell & Beach, Marshall-town, for appellant.
    Fred L. Dorr of Wasker, Dorr, Wimmer & Mareouiller, P.C., Des Moines, for ap-pellee.
   CARTER, Justice.

The Sac and Fox Tribe of the Mississippi in Iowa (the tribe) appeals from an order compelling arbitration of a consulting firm’s claims for compensation under a written agreement with the tribe. The appellee is Iowa Management and Consultants, Inc. (consulting firm). The district court ordered that arbitration of the claim should proceed. The tribe urges on appeal that the district court lacked subject matter jurisdiction to hear the matter and, in the alternative, that the contract upon which the consulting firm’s claims are based is void under federal law.

After reviewing the record and considering the arguments presented, we conclude that the district court did have subject matter jurisdiction to adjudicate both the petition to compel arbitration and the tribe’s federal-law defenses thereto. With respect to the claimed invalidity of the contract under federal law, including the arbitration provision contained therein, we find that the district court improperly resolved that issue on a motion without allowing the tribe to present evidence concerning whether the agreement was, as it alleges, a prohibited management contract. The judgment of the district court is affirmed in part and reversed in part. The case is remanded to the district court for a determination of the tribe’s federal-law claim that the contract is void under federal statutes.

The tribe is a federally recognized Indian Tribe located near Tama, Iowa. It engages in gaming activity on its lands in accordance with the Indian Gaming Regulatory Act, 25 U.S.C. § 2701. The consulting firm is an Iowa corporation, which entered into a contract with the tribe in December 1996. The agreement was later revised, amended, and re-executed on October 14, 1997. Under the agreement, the consulting firm was to provide “technical assistance, training, and advice” to the tribe on “matters relating to the operation and business activities ... including, but not limited to, organization and administration, planning and development, marketing, customer relations and any other matters requested.” The agreement, as amended, expressly disclaims any functions of the consulting firm with respect to casino management. The consulting firm was initially to receive compensation of $150,000 per month. After the consulting firm had performed services for approximately eleven months, the Tribal Council notified the firm that the agreement was suspended, and the firm’s compensation was terminated.

The contract provided:

VI. TERMINATION AND REMEDIES
B. Remedies for Breach/Dispute Resolution
1. All disputes, controversies or claims arising out of or relating to this Consulting Agreement or any other agreement between the parties relating to the Consulting Agreement executed contemporaneously with or subsequent to this Agreement, and the Ordinance or any rules, regulations, actions or decisions relating thereto or in general by or on behalf of the Tribe, the Tribal Council or the Tribal Gaming Commission shall be settled exclusively by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, the Federal Arbitration Act and the following procedures:
3. The Tribe expressly waives sovereign immunity for the purpose of permitting or compelling arbitration as provided in this Agreement and to be sued in any court of competent jurisdiction by Consultant for the purpose of compelling arbitration or enforcing any arbitration award or judgment arising out of this Consulting Agreement or any other agreement between the parties relating to the consulting services executed contemporaneously with or subsequent to this Agreement.
... [T]he Tribe hereby waives any right it may possess to require the Consultant to exhaust tribal remedies or appear before any tribal court that may be established by the Tribe.

The consulting firm contended that the tribe’s suspension of the agreement was a breach of contract and filed a demand for arbitration based on the arbitration clause in the agreement. When the tribe did not acquiesce in this request, the consulting firm commenced an action in the United States District Court for the Northern District of Iowa, seeking an order compelling arbitration. That action was dismissed for lack of federal jurisdiction. The dismissal order of the federal district court was affirmed. Iowa Mgmt. & Consultants, Inc. v. N. Sac & Fox Tribe of the Mississippi in Iowa, 207 F.3d 488, 489 (8th Cir.2000).

In upholding the district court’s order that it lacked subject matter jurisdiction, the federal court of appeals concluded that the claim for arbitration under a contract with the tribe was a state-law claim that the federal courts had no jurisdiction to resolve, notwithstanding the fact that it invited federal law defenses. Id. The consulting firm then commenced the present action in the Iowa District Court, seeking to compel arbitration under the agreement. The district court rejected the tribe’s challenge to the subject matter jurisdiction of the state court. Without hearing any evidence on the matter, the court also rejected the tribe’s claim that under federal law the entire agreement, including the arbitration clause, was invalid.

I. The Issues.

The tribe’s primary argument on appeal is stated as follows in its written argument:

The district court erred when it concluded it could determine the scope of the Gaming Commission’s jurisdiction to declare whether [the consultant’s] contract was void. The district court compounded its error when it asserted jurisdiction to determine the validity of a contract involving Indian gaming services. The district court’s order contravenes Congress’s express intent when adopting the Indian Gaming Regulation Act, violates federal law laid down by the United States Circuit Court for the Eighth Circuit and the United States Supreme' Court, and is contrary to the decisions of those state courts addressing the issue of the preemptive effect of IGRA.

In the alternative, it urges that, if the district court did properly assume jurisdiction to determine the validity of the agreement, the agreement is void under federal law.

II. Whether the District Court’s Order Was Final.

We must first consider the consulting firm’s contention that the district court’s order was not a final judgment from which an appeal may be taken. This issue turns on whether any further action remained to be taken in the proceeding before the district court following the entry of the order. Deerfield Constr. Co. v. Crisman Corp., 616 N.W.2d 630, 632 (Iowa 2000). We are satisfied that the order from which the present appeal has been taken finally resolved all issues in the proceeding before the court. Although there is always the possibility of further litigation between the parties to this dispute, that must come in a new proceeding. The district court did not retain jurisdiction in the case at issue here.

III.The Jurisdictional Argument.

In considering the tribe’s argument, we begin with the federal court of appeals’ characterization of this dispute in its opinion rejecting federal court jurisdiction. That court viewed the controversy as “a routine contract action involving the Tribe, a matter over which federal courts do not have jurisdiction.” Iowa Mgmt. & Consultants, 207 F.3d at 489. The consulting firm carefully avoided changing the character of the litigation when refiling the claim in state court.

The arbitration agreement provided that it may be enforced in “any court of competent jurisdiction.” Consequently, we are convinced that, after the federal appeals court ruling rejecting federal court jurisdiction, the consulting firm was left with no place to go other than a state court of general jurisdiction. If we conclude that the Iowa court had jurisdiction to compel arbitration of this dispute, which we do, then the consideration of the tribe’s federal-law challenge to the entire agreement (which contention was tendered by the tribe in state court) had to be adjudicated in that forum in order to resolve the entire controversy. The alternative would have been to simply ignore those defenses, a result we are certain the tribe does not advocate.

The Supreme Court has recognized that an Indian tribe is not subject to suit in a state court, even for breach of contract, unless Congress has authorized the suit or the tribe has waived its immunity. Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 1702-03, 140 L.Ed.2d 981, 985 (1998). But, it has also recognized that a tribe may waive this immunity from suit in state court by making a contract that expressly agrees to arbitrate disputes and to permit the enforcement of arbitrable awards in any court of competent jurisdiction. C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 420, 121 S.Ct. 1589, 1595, 149 L.Ed.2d 623, 632 (2001); accord Sokaogon Gaming Enters. Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 661 (7th Cir.1996) (same).

In Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412 (8th Cir.1996), the federal court of appeals was faced with an effort to compel arbitration of a contract dispute with an Indian tribe. That action was brought in federal court. In discussing the arbitration clause, the court stated:

The Tribes have clearly and unequivocally waived their sovereign immunity under the contract and the parties have chosen binding arbitration as a dispute resolution procedure.... The problem is that the Tribes are challenging the legal validity of the contract itself, specifically the actions of its former Chairman leading to the execution of the contract. This challenge to the document itself therefore calls into question all provisions contained therein (including provisions relating to arbitration, sovereign immunity, and federal district court jurisdiction).

Bruce H. Lien, 93 F.3d at 1417. The court held that, if a challenge to the validity of the entire agreement was successful, this would nullify the provisions for mandatory arbitration and waiver of sovereign immunity. The court, in determining the proper forum to adjudicate the validity of the agreement, chose the tribal court subject to review by the federal district court for North Dakota. Id.

It is somewhat puzzling why the federal court had jurisdiction to consider the same type of controversy in the Bruce H. Lien case that it rejected for want of jurisdiction in the federal litigation of the present dispute. We assume this has something to do with the exclusive jurisdiction of the tribal court. In the present case, we need not consider possible jurisdiction of a tribal court to resolve a challenge to the validity of the agreement because the tribe has not urged exclusive tribal court jurisdiction to resolve the validity of the contract, and the record reflects that the tribe has no court of competent jurisdiction to resolve this dispute.

Based on the conclusions we have reached concerning the posture of the litigation, we affirm that portion of the district court’s ruling assuming jurisdiction to hear the application to compel arbitration. We also uphold that court’s jurisdiction to resolve the tribe’s federal defenses to the validity of the agreement. However, our inquiry does not end at this point. We agree with the premise advanced in Bruce H. Lien, 93 F.3d at 1417, that, if the entire agreement is invalid under federal law, this would also invalidate the provision in the agreement for arbitration of disputes. Consequently, we must consider whether, on the record presented, the federal law challenges to the validity of the entire agreement, including the arbitration clause, were properly resolved by the district court.

IV. Challenge to the Validity of the Agreement.

The Iowa Gaming Regulation Act requires that all management contracts be approved by the National Indian Gaming Council (NIGC). 25 U.S.C. § 2711. For purposes of this requirement, the applicable agency regulation defines a management contract as “any contract, subcontract, or collateral agreement between an Indian tribe and a contractor or between a contractor and a subcontractor if such contract or agreement provides for the management of all or part of a gaming operation.” 25 C.F.R. § 502.15.

The consulting firm has contended throughout this litigation that its contract with the tribe is not a management agreement and thus need not receive NIGC approval. Federal courts have held that the determination of whether a particular arrangement is a management contract need not be based entirely on the language of the particular agreement with the tribe. United States ex rel. Bernard v. Casino Magic Corp., 293 F.3d 419, 424 (8th Cir.2002). Extrinsic evidence may be considered, including a review of the activities performed and expected to be performed under the agreement. Id.

In the present case, the tribe on January 2, 1997, inquired of the NIGC whether its agreement with the consulting firm was a management contract requiring NIGC approval. The NIGC responded to that request as follows:

Although we are not prepared to conclude, at this time, that the agreement is a management contract, it does raise several concerns about the actual relationship between the consultant and the tribe. For this reason, the matter has been referred to the Enforcement Division for further investigation regarding whether the consultant is acting as a de facto manager of the gaming operation.

In a later communication with the tribe dated November 4, 1998, the NIGC stated:

As you know, we have subjected the Tribe’s relationship with IMCI [the consulting firm] to intense scrutiny. Our field investigator visited twice; we have reviewed materials which have been submitted by the Tribe and the Tribe’s Gaming Commission as well as information provided by Mr. Junkins’ counsel; and two attorneys from the NIGC visited Tama and conducted interviews of a number of individuals.
At this point, I have decided not to commit additional resources to this matter. While it is clear that Mr. Junkins, as the agent of IMCI [the consulting firm], played an active role in the development of the expanded casino and hotel facilities, it is not possible to conclude on the basis of the existing evidence, that his conduct constituted management of all or part of the Meskwaki gaming operation within the meaning of the Indian Gaming Regulatory Act.

In its challenge to the consulting firm’s effort to compel arbitration, the tribe contends that, notwithstanding the failure of the NIGC to find that the contract at issue here was a management contract as defined in 25 C.F.R. § 502.15, that agreement was a management contract and is thus void for want of NIGC approval. The district court rejected this contention on two grounds: (1) the NIGC has made a determination that the agreement is not a management contract; and (2) in the prior federal litigation to enforce arbitration, the federal court of appeals characterized the agreement as one over which federal courts were without jurisdiction. We believe that in so ruling the district court has mischaracterized both the nature of the NICG’s action and the scope of the federal court adjudication.

The action taken by the NIGC was only an investigation by its enforcement division to determine whether the consulting firm’s actions were unlawful because it was acting pursuant to an agreement, which the NIGC was required to approve and had not. That investigation did not produce enough evidence to support the issuance of sanctions against the consulting firm. At no time in the process, however, did the NIGC purport to render an adjudication of the validity of the agreement. Consequently, we view that issue as still open for the tribe to assert by way of defense to the present suit to compel arbitration.

With respect to the district court’s reliance on the federal court of appeals’ characterization of this action as “a routine contract action,” that conclusion was reached solely on the allegations of the consulting firm’s federal court complaint in accordance with the federal law “well-pleaded complaint rule.” See Iowa Mgmt. & Consultants, 207 F.3d at 488. The court’s decision did not involve in any way an adjudication of whether the contract was a management contract for which NIGC approval was required.

We are convinced that the tribe has sufficiently asserted a challenge to the entire agreement, including the arbitration clause, based on a failure to secure approval of the NIGC as required by 25 U.S.C. § 2711. The district court erred in resolving this issue as a matter of law based entirely on the motion papers in the proceedings to compel arbitration. Genuine issues of material fact exist that must be resolved in order to adjudicate this federal-law defense to the effort to compel arbitration.

V. The Tribal Gaming Commission’s Rejection of the Agreement.

An issue concerning the validity of the contract between the consulting firm and the tribe that may be determined at this time as a matter of law is the tribe’s contention concerning the action of its tribal gaming commission. That commission was created by a tribal gaming ordinance enacted in accordance with 25 U.S.C. § 2710(d)(1). Prior to the present litigation, that commission purported to invalidate the agreement at issue here on the ground that it was a management contract not approved by the NIGC. In addition, under the tribal ordinance, the tribal gaming commission has authority to withhold approval of certain agreements that are not management contracts. These are agreements

entered into by the tribe’s gaming enterprise or by any management contractor on behalf thereof ... if the contract:
(1) Exceeds the value of $5000.00 in any 12-month period.
(2) Is a contract in which any employee, agent or contractor, including any management contractor employed by the Tribe or by the tribe’s gaming enterprise, or any officer or director of any such management contractor or of any parent company thereof has either a direct or indirect economic or beneficial interest.

We are satisfied that the tribal gaming commission’s apparent conclusion concerning whether the disputed agreement was a management contract is without preclusive effect for purposes of the district court’s determination of that issue in the present case. In Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1043-44 (9th Cir.1996), the federal court determined that a tribal gaming commission was without authority to adjudicate the validity of a private-party agreement with the tribe. Rather, its function was to monitor compliance by management contractors with the governing agreement and federal law. Crow Tribe of Indians, 87 F.3d at 1043-44.

With respect to the tribe’s contention that the tribal gaming ordinance gives it authority to curtail contracts that are not management contracts if they exceed the value of $5000, that grant of authority is limited to contracts entered into by the tribe’s gaming enterprise or any management contractor on behalf thereof. As the district court correctly found, the present contract was not entered into by the tribe’s gaming enterprise but rather by the tribal council. Consequently, the contract is not one that must be approved by the tribal gaming commission under the ordinance.

The tribe also urges that the compact that it entered into with the State of Iowa acknowledges the authority of the tribal gaming commission to render decisions such as that commission’s ruling that the consulting firm’s agreement with the tribe required NIGC approval. We are convinced that the decisions relegated to the tribal gaming commission under the compact do not include the power to decide whether a particular agreement is a management agreement under 25 C.F.R. § 502.15.

We have considered all issues presented. The judgment of the district court is affirmed in regard to its assumption of jurisdiction to hear and decide both the petition to compel arbitration and the tribe’s federal-law defenses thereto. The district court’s judgment is reversed to the extent that it attempted to resolve the tribe’s assertion of contract invalidity under 25 U.S.C. § 2711 without a hearing and the presentation of evidence relating to that issue. The case is remanded for further proceedings in the district court consistent with this opinion. Costs are assessed equally between the parties.'

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . We note that the federal court in Sokaogon Gaming, 86 F.3d at 661, suggests that, under the holding of Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), a finding of invalidity as to the main contract will not necessarily invalidate the arbitration clause. We do not believe that the Prima Paint decision supports that result in the present case. If the agreement was a management contract, all provisions thereof, including the arbitration clause, required NIGC approval pursuant to 25 U.S.C. § 2711.


text:
    Marcy A. BENNER, Respondent, v. ESSENTIAL NURSING SERVICES, INC., Uninsured, Respondent, Ezra Nyankira, Uninsured, Respondent, Amos SAMOITA, Uninsured, Respondent, Thomas Nyagaka, Uninsured, Respondent, Crestview Nursing Home, and American Comp. Insurance/RTW, Relators, and Blue Cross/Blue Shield/Blue Plus of Minn., Unity Hospital, Intervenors, and Special Compensation Fund, Respondent.
    No. C4-02-1774.
    Supreme Court of Minnesota.
    Jan. 27, 2003.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 12, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ Russell A. Anderson Associate Justice


author: /s/ Alan C. Page Associate Justice

text:
    Carolyn HOLCOMB, Respondent, v. ITASCA MEDICAL CENTER, and Ace USA, Relators, and Lakewalk Surgery Center, Intervenor.
    No. C7-02-1980.
    Supreme Court of Minnesota.
    Jan. 29, 2003.
    Hon. William R. Pederson, Workers’ Compensation Court of Appeals.
    Robin D. Simpson, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for Relators.
    Martin T. Montilino, Borkon, Ramstead, Mariani, Fishman & Carp, Ltd., Minneapolis, MN, for Respondent Employee.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 16, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ Alan C. Page Associate Justice


author: GILBERT, Justice. MEYER, Justice BLATZ, Chief Justice

text:
    STATE of Minnesota, Respondent, v. Michael LARIVEE, Petitioner, Appellant.
    No. C2-01-1942.
    Supreme Court of Minnesota.
    Jan. 30, 2003.

      Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., Eagan, for Appellant.
    Mike Hatch, Minnesota Attorney General, Todd P. Zettler, Scott Joint Prosecution, Shakopee, for Respondent.
   OPINION

GILBERT, Justice.

Appellant Michael Larivee was charged with driving under the influence of alcohol — child endangerment in violation of Minn. Stat § 169.121, subd. 1(a) and subd. 3(c)(4) (1998), refusal to submit to testing in violation of Minn.Stat. § 169.121, subd. la and subd. 3(c)(4) (1998), and failure to properly stop at a stop sign in violation of Minn.Stat. § 169.30 (1998). The district court ruled that by being denied access to an independent blood-alcohol test, the appellant’s due process right to a fair trial was violated on the driving under the influence charge but not on the refusal to test charge. The district court also found that collateral estoppel prevented appellant from relitigating whether he refused to submit to testing in violation of Minn.Stat. § 169.123, subd. 2(b), because that precise issue was addressed in the implied consent hearing.

The district court certified the case to the court of appeals pursuant to Minn. R.Crim. P. 28.03, finding that the case presented an issue of constitutional dimension, which was an issue of first impression in this state, and had been decided differently by courts around the country. The case was then stayed pending resolution in Minnesota’s appellate courts.

The district court in certifying the case failed to articulate the precise question to be resolved by the appellate courts. The court of appeals heard the case and construed the certified question to be “whether a defendant’s rights to due process and a fair trial are violated when he is denied his request to obtain an independent blood-alcohol-level test after he first refuses to submit to the police-administered test.” State v. Larivee, 644 N.W.2d 100, 104 (Minn.App.2002). The court of appeals interpreted the statute to require submission to the police-administered test as a condition precedent to the right to obtain an independent test, found no merit on constitutional claims, and held that collateral estoppel did not apply here because the result in a civil proceeding cannot be used to bind a criminal defendant on any element of the crime. We affirm.

The incident that gave rise to the charges occurred at 3 p.m. on Friday, November 17, 2000, when the appellant was picking up two children from the Jordan High School parking lot. A police officer stopped the appellant after he saw him make an excessively wide turn and disregard a stop sign. While speaking with appellant, the officer smelled the strong odor of alcohol on the appellant’s breath, saw that his eyes were glassy and bloodshot, and noticed that his speech was slightly slurred. The appellant failed the field sobriety tests administered by the officer. When asked by the officer if he had been drinking, appellant admitted drinking a “half bottle” of wine during his 2 p.m. lunch. The officer then administered a portable breath test to appellant, which he failed. The officer read the Minnesota Implied Consent Advisory and the appellant asked to call an attorney. After talking to his attorney on the telephone from the police station, the appellant said, “Upon advice of my attorney, I don’t feel like taking it.” Then, reading from a note he had made stated, “However, I would request my own test from an individual outfit that would come out here to the jail station.” Appellant was taken to the Scott County Jail. The arresting officer advised the jail staff that appellant had requested his own test, and left the jail believing the jail staff was providing the appellant a telephone.

While being booked, appellant again requested his own test. The booking sergeant, without conferring with anyone else, denied that request because he believed that “only a person who has completed a test at the arresting officer’s request has the right to arrange for his own test.” The district court took judicial notice of the fact that appellant’s first opportunity to go before a Scott County judge for a bail hearing was the Monday following appellant’s Friday afternoon arrest.

I.

The district court certified this case to the court of appeals without formulating a precise legal question. A certified question “should be carefully and precisely framed so as to present distinctly and clearly the question of law involved.” Thompson v. State, 284 Minn. 274, 277, 170 N.W.2d 101, 103 (1969). When the district court fails to properly frame the issues, the appellate court has the authority to clarify the question certified. See State v. Wicks, 258 N.W.2d 598, 599-600 (Minn.1977). Therefore, this court as a preliminary matter must decide precisely what question is to be addressed. In this case, the district court certified only the issues relating to the driving under the influence charge, not those stemming from the refusal to submit to testing charge. The primary issue is whether the appellant’s constitutional right to due process and a fair trial was violated with regard to the driving under the influence charge when, while in custody, he was denied the opportunity to obtain an independent blood-alcohol-concentration test. To fully address that question this court must first determine the extent of the statutory right to an independent test. Finally, this court granted a petition for cross-review of whether the appellant can be barred from litigating in his criminal driving under the influence trial an issue previously decided in a civil implied consent hearing.

The first issue is whether Minn. Stat. § 169.123, subd. 3(a) (1998) , required appellant to submit to a police administered blood-alcohol-concentration test as a condition precedent to accessing his own independent test. This court reviews questions of statutory interpretation de novo. Scott v. Minneapolis Police Relief Ass’n, Inc., 615 N.W.2d 66, 70 (Minn.2000). When interpreting a statute, this court’s purpose is to determine the intent of the legislature. Kulinski v. Medtronic Bio-Medicus, Inc., 577 N.W.2d 499, 502 (Minn. 1998). “A statute should be interpreted, whenever possible, to give effect to all of its provisions, and ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” Baker v. Ploetz, 616 N.W.2d 263, 269 (Minn.2000) (quoting Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). Words and phrases are to be given their ordinary meaning. Baker, 616 N.W.2d at 268.

Minnesota Statutes § 169.123, subd. 3(a) states in relevant part:

The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state.

The sentence in the statute that creates the right to an independent test starts by stating, “The person tested has the right.” Here, the appellant refused the police-administered test, and none was taken. Thus, he was not a “person tested” and under the statute had no right to obtain an independent test. Likewise, the statute makes provision for an independent chemical test “provided” that certain conditions are met. The word provided generally means “on condition that.” The conditions in this statute are that the additional test occurs at the place of custody after the peace officer administers the test and at no expense to the state. The language of the conditions set forth in the statute includes the phrases “in addition,” “additional test,” and “after the test administered,” all of which indicate that the statute is intended to grant a statutory right only to those who have first submitted to the police-administered test.

Therefore, we hold that when a person charged with a Minn.Stat. § 169.123, subd. 3(a) related driving charge is in custody, the person must submit to the state’s test as a condition precedent to the right to an independent test. Here, appellant was in custody and refused to allow the police officer to direct the administration of the state’s chemical test. As such, appellant was not charged with driving with over .10 blood-alcohol level pursuant to Minn.Stat. § 169.121, subd. 1(d) (1998). Minnesota Statutes § 169.123, subd. 3(a) allows for an additional test on condition that other statutory requirements are met. Thus, we affirm the court of appeals as to the statutory interpretation.

II.

Next, we address the issue of whether appellant’s constitutional right to due process and a fair trial was violated when the appellant was denied the right to obtain an additional test sample of his blood-alcohol concentration because he had refused to submit to the state’s test. The district court found that denying the appellant the right to secure his own test after he had refused the officer-administered test violated due process. The district court judge believed that when the defendant was not “immediately released from custody and therefore able to obtain his own test,” it was “fundamentally unfair” to “den[y][him] the right to obtain any evidence of value concerning any criminal DUI charge.”

In coming to that conclusion, the district court found the reasoning of the Montana Supreme Court in State v. Swanson, 222 Mont. 357, 722 P.2d 1155, 1157 (1986), persuasive and quoted the holding from that case, “[w]hen the crime involves intoxication, the accused has a right to obtain a sobriety test independent of that offered by the arresting officer.” However, in Swanson, the appellant was allowed to obtain his own test and he did so. But, the police failed to properly preserve the sample while he was in custody and, therefore, it could not be used because of spoliation. Id. at 1156.

Neither the district court decision nor the Montana case upon which it relied adequately addresses the appropriate authority for deciding when a denial of access to evidence amounts to a due process violation. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny provide the standard for determining when due process is violated. This court has found that to succeed on a Brady claim, defendant must show (1) that the evidence at issue was favorable to him; (2) that evidence was willfully or inadvertently suppressed by the state; and (3) that he was thereby prejudiced. Woodruff v. State, 608 N.W.2d 881, 888 (Minn.2000) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).

In California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the Supreme Court held that the state’s failure to preserve breath samples for defendants charged with driving while intoxicated did not violate the Federal Constitution. The Court held that the Constitution only requires states to preserve evidence, “that might be expected to play a significant role in the suspect’s defense.” Id. at 488, 104 S.Ct. 2528. The Court went on to hold that to meet that standard, the “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489, 104 S.Ct. 2528. The Court, in ruling that the conditions were not met, based its decision, in part, on the reliability and accuracy of the equipment used, and found that the chance the breath samples were exculpatory was extremely low. Id.

In the case before this court, the appellant refused to take the police-administered blood-alcohol-concentration test and was subsequently denied access to an independent test. In Trombetta, the evidence not preserved by the police was captured breath samples. Id. Here, the evidence the police did not allow the appellant to capture and preserve was a measurement of the level of alcohol in his blood stream. In Trombetta, there were test results once available; here there are none. Thus, the analysis must turn on whether an independent alcohol-concentration test possesses an exculpatory value apparent at the time the access to the test was denied. We must determine if an alcohol-concentration test might be expected to play a significant role in appellant’s defense.

Because appellant did not take the test, he was not charged with driving with blood-alcohol level over .10 in violation of Minn.Stat. § 169.121, subd. 1(d). He was charged with driving under the influence. While the test may have been probative of driving under the influence, it could not be expected to play a significant role in appellant’s defense in light of the fact that appellant had the odor of alcohol on his breath, had glassy bloodshot eyes, failed the field sobriety test, admitted to drinking a half bottle of wine shortly before, and failed the portable breath test. The court of appeals found no merit in appellant’s constitutional argument and stated that, “Larivee points to nothing to suggest that an independent test would not have corroborated intoxication.” Larivee, 644 N.W.2d at 105. We agree.

Even if the independent blood test met the standard of constitutional materiality presented above, for the appellant to prevail under the Trombetta standard he must show he was “unable to obtain comparable evidence by other reasonably available means.” Trombetta, 467 U.S. at 489, 104 S.Ct. 2528. There is no evidence in the record that the alcohol-concentration tests administered by the state are inaccurate. Indeed, in oral argument before this court, defense counsel conceded he was unaware of any difference in the reliability of the test administered by the police and an independent test. The only difference pointed out is that police have possession of the test they administer, but not the independent test. As such, based on this record, the police-administered test the appellant refused was comparable evidence reasonably available to him.

Appellant attempts to distinguish the facts of this case from Trombetta by arguing that the officer here acted in bad faith; whereas, in Trombetta and Arizona v. Youngblood, 488 U.S. 51, 56, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the police acted “‘in good faith and in accord with their normal practice.’ ” Trombetta, 467 U.S. at 488, 104 S.Ct. 2528 (quoting Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961)). Based on the record before this court, there is no evidence of bad faith. The district court’s findings of fact indicate that the booking officer, without conferring with anyone else, refused appellant’s request for his own test made during the routine booking process. The booking officer based this refusal on his belief that “only a person who has completed a test at the arresting officer’s request has the right to arrange for his own test.” Here, it is clear that the denial of access, although deliberate, was made without animus and in accord with what the booking officer believed was the appropriate procedure. Furthermore, as the court of appeals noted, the state too is without a chemical test to use against the appellant. Larivee, 644 N.W.2d at 106.

There are cases from other jurisdictions that have found that denying a defendant access to an independent test upon refusal to submit to the state’s test is a violation of due process. The case the district court found persuasive, State v. Swanson, 222 Mont. 357, 722 P.2d 1155 (1986), is one. Intermediate appellate courts in Arizona and Tennessee have concluded similarly. See Smith v. Cada, 114 Ariz. 510, 562 P.2d 390 (Ct.App.1977); State v. Choate, 667 S.W.2d 111 (Tenn.Crim.App.1983).

However, many other jurisdictions that have addressed this issue have found no due process violation. In State v. Zoss, 360 N.W.2d 523, 524 (S.D.1985), the South Dakota Supreme Court was faced with a similar situation where the defendant refused a state administered test and then requested her own independent test. The South Dakota Supreme Court followed Trombetta and Brady and found that there was no assurance that the blood test would be exculpatory. Zoss, 360 N.W.2d at 525. That court went oh to state that it was the defendant who withheld the evidence by refusing to submit to the test, not the state. Id.

Likewise, intermediate courts of appeal in Michigan and Georgia have held that a defendant’s due process rights are not violated by being denied the opportunity to access an independent test after having refused to submit to the state’s test.

The supreme courts of Indiana and Arkansas, without addressing the constitutional issues, have found that the statutes in those states require submission to the state’s test as a prerequisite to obtaining an independent test. See Hill v. Otte, 258 Ind. 421, 281 N.E.2d 811 (1972), McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991).

This court concludes that the constitutional due process issue in this case should be addressed consistent with Brady and its progeny. Thus, we join the jurisdictions that have found no constitutional violation in circumstances such as those present here. We affirm the court of appeals and hold that the appellant’s constitutional right to due process and a fair trial was not violated when, while in custody, he was denied the right to obtain an independent blood-alcohol-concentration test after having refused to submit to the police-administered test.

Having decided in the state’s favor on the primary issue in this case, we need not address the state’s argument that the doctrine of collateral estoppel bars the appellant from litigating in his criminal DUI trial a legal issue previously litigated in the implied consent proceeding arising from the same incident.

Affirmed.

Concurring in part, dissenting in part, BLATZ, C.J, and MEYER, J.

MEYER, Justice

(concurring in part, dissenting in part).

I agree with the majority’s interpretation of Minn.Stat. § 169.123, subd. 3(a) (1998). I disagree with the majority’s conclusion that the statute is constitutional; to condition an individual’s right to access evidence for his or her defense on the state’s access to that same evidence deprives an individual of his or her due process right to gather possible exculpatory-evidence.

A person arrested in Minnesota for driving while intoxicated is brought into a system of laws designed to effectively detect, deter, and punish his or her conduct. Our laws exact serious civil, criminal, and financial penalties for someone suspected of driving while impaired. Minnesota statutes permit a police officer who suspects an individual is driving while impaired to “require the driver to provide a sample of the driver’s breath for a preliminary screening test.” Minn.Stat. § 169A.41, subd. 1 (2002). If the driver refuses the preliminary screening test, his or her refusal is admissible evidence in a criminal prosecution for drunk driving. Minn.Stat. § 169A.45, subd. 3 (2002). In addition, if a driver refuses either a blood, breath, or urine test after the preliminary screening test, he or she faces two potential sanctions: (1) the state revokes his or her driver’s license for a year under the state’s civil administrative powers, and (2) the refusal is a crime with its own punishment. Minn.Stat. § 169A.52, subd. 3 (2000); Minn.Stat. § 169A.20, subds. 2, 3 (2002).

Minnesota and federal case law uphold the state’s legitimate interest in encouraging drivers to submit to chemical testing. The United States Supreme Court has upheld a state’s right to act on that interest by requiring a suspected intoxicated driver to submit to a blood-alcohol test, and legislating that an individual’s refusal to consent to such a test can be introduced as evidence of intoxication. See South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); Schmerber v. California, 384 U.S. 757, 770-72, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). We have held that a criminal'prosecution for refusal to submit to chemical testing does not violate Fifth Amendment rights of people suspected of drunk driving. See McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn.1991).

The majority’s holding today, however, oversteps legitimate boundaries of what the state can do to compel a suspect to give a potentially inculpatory chemical sample. Larivee was punished for his refusal to take the state’s test. He was charged with test refusal and his driver’s license was revoked. The majority penalizes him further by disallowing him access to his own test, a penalty not permitted under the constitutional right to due process and a fair trial.

The majority relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), for guidance in deciding when a denial of access to evidence amounts to a due process violation. Brady and Trombetta are inapposite because in both cases the Court addressed the rights of a defendant to access evidence in the government’s possession. Here, we are confronted with a very different question, to-wit, whether thé statute requiring Lari-vee to submit to the state’s blood-alcohol-level test before he could avail himself of an independent test violates due process of law.

At issue in Trombetta was whether California was obligated to preserve potentially exculpatory evidence it had gathered. Trombetta complained of the failure of California police to preserve breath samples that police had gathered for independent testing. Before reaching the issue, however, the Court set out three categories of “access-to-evidence” cases. One category involved the government’s obligation to turn over exculpatory evidence in its possession to the accused. Another category, applicable to the facts of Trom-betta, involved the government’s duty to preserve evidence in its possession for defendants. In addressing the government’s duty to preserve evidence in such a case, the Court set out a two-part test of constitutional materiality. Preservation is required where the evidence at issue is obviously exculpatory and the defendant has no reasonable alternative method of obtaining comparable evidence. Trombetta, 467 U.S. at 489, 104 S.Ct. 2528. The Court later added that the defendant must also show bad faith by the police to prevail. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Because Trombetta was concerned with the “preservation” of evidence and not the attainment of evanescent evidence in the first instance, it does not provide the appropriate analysis for this case.

It was the third category of cases set out in Trombetta — described by the Court as “less clear” and left undecided — that encompasses our case today. This eate-gory involved “the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government’s possession.” Trombetta, 467 U.S. at 486, 104 S.Ct. 2528 (emphasis added). The United States Supreme Court has not yet returned to address this category.

Under the Due Process Clause, the government must give defendants “a meaningful opportunity to present a complete defense.” Id. at 485, 104 S.Ct. 2528. The Due Process Clause protects defendants against the government “hampering] a criminal defendant’s preparation for trial.” Id. at 486, 104 S.Ct. 2528. At a minimum, the statute at issue here hampers a driver’s ability to present a complete defense by depriving him or her of the opportunity to obtain independent blood-alcohol testing unless he or she first submits to such testing by the state. The state has the right to criminally penalize the refusal to submit to the state’s required test as a condition of being licensed. See McDonnell, 473 N.W.2d at 855. However, it is a wholly different matter to hold that the state can prevent the ability of a defendant to obtain potentially exculpatory — and importantly evanescent — evidence to defend against a criminal charge involving driving under the influence. The majority ignores this distinction and, in doing so, undermines the defendant’s right to present a meaningful defense. This sequence is important because of the evanescent nature of the evidence.

Courts around the nation concur that individuals who are accused of driving while intoxicated have a right to independent blood tests. See, e.g., In re Koehne, 54 Cal.2d 757, 8 Cal.Rptr. 435, 356 P.2d 179, 180-81 (1960); Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122, 1126 (1983); State v. Snipes, 478 S.W.2d 299, 303 (Mo.1972); State v. Dake, 247 Neb. 579, 529 N.W.2d 46, 49 (1995); and Schroeder v. State, 105 Nev. 179, 772 P.2d 1278, 1281 (1989). Very few courts, however, have addressed the precise question of whether it is constitutional to legislate that the government is first in line to take blood-alcohol samples from the suspect. Of the three state supreme courts that have addressed this same question, two found that accused drivers had a constitutional right to an independent test, regardless of their compliance with police-administered exams. See State v. Swanson, 222 Mont. 357, 722 P.2d 1155, 1157 (1986); State v. Lewis, 266 S.C. 45, 221 S.E.2d 524, 526 (1976). But see State v. Zoss, 360 N.W.2d 523, 525 (S.D.1985). Intermediate courts in three other states have reached the same conclusion. See Smith v. Cada, 114 Ariz. 510, 562 P.2d 390, 393 (Ct.App.1977); State v. Dressler, 433 N.W.2d 549, 550 (N.D.Ct.App.1988); and State v. Choate, 667 S.W.2d 111, 112 (Tenn.Crim.App.1983).

For these reasons, I would join Montana and South Carolina and hold that Minn.Stat. § 169.123, subd. 3(a) violates the Due Process Clause of the Fourteenth Amendment by conditioning an individual’s right to access potentially exculpatory evidence on the state’s.prior access to that evidence. The state may not unreasonably interfere with an individual’s timely, reasonable attempts to secure an independent examination. Therefore, I would reverse the court of appeals and answer the district court’s certified question, as construed by the court of appeals, in the affirmative.

BLATZ, Chief Justice

(concurring in part, dissenting in part).

I join in the concurrence/dissent of Justice Meyer.

      . Since the incident that gave rise to this event, Minn.Stat. § 169.123, subd. 3(a), was repealed by Act effective Jan. 1, 2001, ch. 478, art. 2, § 8, 2000 Minn. Laws 1484, 1537-38. The current law on this topic, Minn.Stat. § 169A.51, subd. 7(b) (2002), uses the identical language as the version of the statute at issue here.

      . Webster's Third New International Dictionary, 1827 (1993).

      . The dissent cites dicta from three cases where courts opined that drivers had a constitutional right to an independent test, regardless of their compliance with police-administered exams. Swanson, 222 Mont. 357, 722 P.2d 1155 (1986); State v. Lewis, 266 S.C. 45, 221 S.E.2d 524, (1976); State v. Choate, 667 S.W.2d 111 (Tenn.Crim.App.1983). In another case cited by the dissent, the constitutional issue is not addressed; rather, the court held that statutory law required that a driver be granted access to an independent test even when refusing the police-administered test. State v. Dressler, 433 N.W.2d 549 (N.D.Ct.App.1988).

      . See People v. Dewey, 172 Mich.App. 367, 431 N.W.2d 517 (1988); Allen v. State, 229 Ga.App. 435, 494 S.E.2d 229 (1997).

      . Although the sections were numbered differently in 1998, I will cite the current statutes. The consequences for refusing to lake a breath or chemical test have been the same since 1998.

      . The admission of the refusal highlights the fact that a prosecution for driving while impaired is not stymied by a suspect’s refusal to submit to testing. Officers simply testify to an accused’s guilt based on the same factors that gave them probable cause to require the test.

      . The Court has noted that the due process rights of defendants could be violated by a state’s prejudicial and intentional delay in bringing an indictment or deporting key witnesses, because both diminish the defendant's ability to mount a defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 868-70, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

      . The potential ramifications of the majority's holding may not be readily apparent from the facts before us today, but can be foreshadowed by a reference to a recent case from this court. In Krosch, blood-alcohol testing was not done by the state, nor requested by the defendant, even though police suspected intoxication, and impairment may have provided a defense to an element of first-degree murder. See State v. Krosch, 642 N.W.2d 713, 716-17 (Minn.2002). We must ask whether in that case we would have conditioned the defendant’s request for access to evanescent evidence upon submission to a test by the state, when the request is made solely for the purpose of defending himself against murder charges in the first degree. I suggest we would not.


author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Kerry Dean STEVENSON, Petitioner, Appellant.
    No. C8-01-505.
    Supreme Court of Minnesota.
    Feb. 6, 2003.

      Mike Hatch, Attorney General, St. Paul, Robert M.A. Johnson, Anoka County Attorney, Robert Goodell, Assistant County Attorney, Anoka, for State of MN.
    John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Minneapolis; Timothy Mulrooney, Special Asst. State Public Defender, Henson & Efron, P.A., Minneapolis, for Kerry Dean Stevenson.
   OPINION

HANSON, Justice.

Appellant Kerry Dean Stevenson was charged with one count of indecent exposure and one count of fifth-degree criminal sexual conduct, which criminalizes certain conduct when performed “in the presence of a minor.” The district court found Stevenson guilty of indecent exposure, not guilty of fifth-degree criminal sexual conduct (interpreting the “presence” requirement to mean the conduct, was “actually viewed by a minor”), but guilty of attempted fifth-degree criminal sexual conduct, because Stevenson had taken a substantial step toward having his conduct viewed by a minor. The court of appeals affirmed both convictions. We granted both parties’ petitions for review and affirm both convictions, although we affirm the attempt conviction on other grounds because we interpret the “presence” requirement to mean “reasonably capable of being viewed by a minor.”

On July 23, 2000, Abrían Carpenter was visiting the public park at Moore Lake Beach in Fridley, Minnesota. Walking near the parking lot, Carpenter noticed a silver pickup truck without a handicapped sticker parked in a handicapped spot. When he approached the driver’s side window of the truck, Carpenter saw Stevenson sitting in the driver’s seat, masturbating. Stevenson’s truck was parked facing a playground area that was only 10 to 15 feet in front of the truck. Carpenter testified that 10 to 15 children, ranging in age from approximately 2 to 13, were playing in the playground.

Carpenter informed a lifeguard of what he had seen, and the lifeguard called the police, who arrested Stevenson. According to subsequent police measurements, the driver’s side window of Stevenson’s truck was about 3½ feet from the ground. The district court found that the windshield and driver’s side window of Stevenson’s truck were not tinted.

Stevenson was charged with fifth-degree criminal sexual conduct and indecent exposure. Stevenson waived his right to a jury trial and agreed to a “paper trial” before the district court. The district court found Stevenson guilty of indecent exposure but not guilty of fifth-degree criminal sexual conduct, because the court interpreted the presence requirement to mean actually viewed by a minor. The court then found Stevenson guilty of the lesser-included (though uncharged) crime of attempted fifth-degree criminal sexual conduct because he had taken substantial steps to be viewed by a minor. Stevenson was sentenced to 16 months in prison and was fined $1,000.

The court of appeals affirmed both convictions. State v. Stevenson, 637 N.W.2d 857, 862-64 (Minn.App.2002). As to fifth-degree criminal sexual conduct, the court determined that the presence requirement was ambiguous because it could mean either “in proximity” or “in view” of a minor. Id. at 862. It applied the rule of lenity to adopt the narrower “in view” interpretation. Id. The court of appeals concluded that because no minor saw Stevenson’s conduct, the completed crime had not been proven, but the evidence was sufficient to prove attempt. Id. at 863-64.

Stevenson petitioned for review of the sufficiency of the evidence supporting his convictions. The state cross-petitioned for review of the court of appeals’ interpretation of the presence requirement in fifth-degree criminal sexual conduct. We granted both petitions.

I.

Stevenson claims that there was insufficient evidence to convict him of attempted fifth-degree criminal sexual conduct. The fifth-degree criminal sexual conduct statute provides that

[a] person is guilty of criminal sexual conduct in the fifth degree:
(1) if the person engages in nonconsen-sual sexual contact; or
(2) the person engages in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.

Minn.Stat. § 609.3451, subd. 1 (2000). The parties dispute the meaning of the phrase “in the presence of a minor.” This is a question of first impression for this court.

A. Statutory Construction

Construction of a statute is a legal conclusion; this court thus reviews questions of statutory construction under a de novo standard. In re A.A.E., 590 N.W.2d 773, 776 (Minn.1999). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Riley v. 1987 Station Wagon, 650 N.W.2d 441, 443 (Minn.2002) (quoting Minn.Stat. § 645.16 (2000)). When interpreting a statute, this court first looks “to see whether the statute’s language, on its face, is clear or ambiguous.” American Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). A statute is only ambiguous when its language is subject to more than one reasonable interpretation. Id. When the statute in question is a criminal statute, courts should resolve ambiguity concerning the ambit of the statute in favor of lenity. State v. Niska, 514 N.W.2d 260, 265 (Minn.1994) (citing Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971)).

Stevenson argues that the presence requirement is ambiguous because it is subject to at least two meanings, one broad and one narrow: “in the proximity of a minor” and “actually witnessed by a minor.” The state responds that the only reasonable interpretation of the requirement is “reasonably likely to be witnessed by a minor.” Neither party is able to provide definitive support for their interpretation and both recognize that the term “presence” may be used to mean different things in different statutes. “In law it is probable that different conceptions of ‘presence’ will exist for different purposes.” London v. Maryland Cas. Co., 210 Minn. 581, 584, 299 N.W. 193, 194 (1941).

We conclude that the plain meaning of the presence requirement is necessarily broader than “actually viewed by a minor,” which would be included within but does not define the outer limits of the statutory phrase. The legislature was capable of narrowing the presence requirement by specifically stating that the conduct must actually be viewed by a minor, but it did not do so. Stevenson’s narrow interpretation would frustrate the legislative intent that is evident from the choice of a broad phrase and, therefore, is not a reasonable interpretation.

While necessarily broader than “actually viewed by a minor,” the presence requirement is subject to two reasonable broader interpretations: either “in the proximity of a minor” or “reasonably capable of being viewed by a minor.” Under the rule of lenity, we adopt the narrower of these two reasonable interpretations. See Niska, 514 N.W.2d at 265; Rewis, 401 U.S. at 812, 91 S.Ct. 1056. Because it is narrower than proximity, we interpret “in the presence of a minor” to mean “reasonably capable of being viewed by a minor.”

B. Sufficiency of the Evidence

When reviewing a claim of insufficiency of the evidence in a criminal matter, this court determines whether the trier of fact could reasonably conclude that the defendant was guilty of the offense charged. State v. Landa, 642 N.W.2d 720, 725 (Minn.2002). We view the evidence in the light most favorable to the decision and assume that the trier of fact disbelieved any testimony in conflict with the result it reached. Id.

The district court found Stevenson guilty of attempted fifth-degree criminal sexual conduct. Under Minn.Stat. § 609.17, subd. 1,

Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime * * ⅜.

Minn.Stat. § 609.17, subd. 1 (2000). This court has held that “[sjpecific intent that would give rise to an attempt to commit a certain crime is the intent to commit that particular crime.” State v. Zupetz, 322 N.W.2d 730, 734 (Minn.1982) (emphasis omitted).

Fifth-degree criminal sexual conduct only requires that the accused’s conduct be reasonably capable of being viewed by a minor. The district court found facts that establish that Stevenson placed himself in a position where he was reasonably capable of being viewed by a minor. The court said that “it would be possible for a child who is climbing on monkey bars or going up the slide to see into a Chevy S-10 pickup truck through the windshield” because he or she “would have an elevated position.” The court also noted that a child more than 3½ feet tall would have been able to see into the side windows of the truck, as would a child being carried past the truck by an adult or riding past the truck on a bicycle. The evidence was clear that Stevenson chose this location for his conduct, parking in a handicapped stall directly in front of the playground. Accordingly, we affirm Stevenson’s conviction for attempted fifth-degree criminal sexual conduct.

II.

Stevenson also challenges his conviction for indecent exposure. The Minnesota indecent exposure statute provides as follows:

A person who commits any of the following acts in any public place, or in any place where others are present, is guilty of a misdemeanor:
(1) willfully and lewdly exposes the person’s body, or the private parts thereof;
(2) procures another to expose private parts; or
(3) engages in any open or gross lewdness or lascivious behavior, or any public indecency other than behavior specified in this subdivision.

Minn.Stat. § 617.23, subd. 1 (2000). The district court found Stevenson guilty under subdivisions 1(1) and 1(3) of the statute.

To prevail in a prosecution for indecent exposure, the state must show that the charged conduct “was committed with the deliberate intent of being indecent or lewd.” State v. Peery, 224 Minn. 346, 351, 28 N.W.2d 851, 854 (1947); see also State v. Prince, 296 Minn. 490, 491, 206 N.W.2d 660, 660 (1973) (following Peery). The Peery court continued:

To establish intent where the act does not occur in a public place or otherwise where it is certain to be observed, some evidence further than the act itself must be presented. Ordinarily, intent is established by evidence of motions, signals, sounds, or other actions by the accused designed to attract attention to his exposed condition, or by his display in a place so public and open that it must be reasonably presumed that it was intended to be witnessed.

224 Minn. at 352, 28 N.W.2d at 854.

The court of appeals held that Stevenson was masturbating in a “public place” because he had a diminished expectation of privacy in his truck. Stevenson, 637 N.W.2d at 864. In doing so, the court noted that it was “almost certain” that Stevenson would be observed, given the large number of people in the immediate vicinity of the truck. Id. On these bases, the court concluded that it was reasonable to infer Stevenson’s intent to be indecent under the Peery standard. Stevenson, 637 N.W.2d at 864.

The court of appeals’ analysis partially misconstrues Peery. In Peery, we held that intent to be indecent can be inferred from the fact that the charged conduct occurs in public “or otherwise where it is certain to be observed.” Peery, 224 Minn. at 352, 28 N.W.2d at 854. Our concept of “public” was not based on the privacy expectations of the defendant but on the likelihood that the conduct would be witnessed by others. In fact, we can conceive of circumstances where a person has no reasonable expectation of privacy but still would not be guilty of indecent exposure because the likelihood that the conduct would be witnessed is small.

The relevant question is whether Stevenson’s conduct was so likely to be observed “that it must be reasonably presumed that it was intended to be witnessed.” Peery, 224 Minn. at 352, 28 N.W.2d at 854. The court of appeals observed that “given the location of Stevenson’s vehicle, parked next to a public sidewalk adjacent to a beach where there were hundreds of people, it was almost certain that someone would walk by and observe Stevenson masturbating.” Stevenson, 637 N.W.2d at 864. We agree and conclude that the district court properly inferred Stevenson’s intent to be indecent.

Affirmed.

      . In the "paper trial,” the state presented its evidence in the form of police reports (including a statement given to police by witness Carpenter) rather than by in-court testimony.

      . Stevenson argues that under the “proximity'' interpretation, the instant statute is unconstitutionally vague. See Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). If this were correct, we would adopt the “reasonably capable of being viewed” interpretation for the added reason that, when possible, we construe statutes in order to uphold their constitutionality. See Hince v. O'Keefe, 632 N.W.2d 577, 582-83 (Minn.2001). In light of our holding on lenity grounds, however, we need not address the issue of vagueness.

      . We adopt the word "viewed” because it is relevant to the facts of this case. There may be circumstances in which the sexual conduct may be perceived through senses other than sight and still fit the statutory presence requirement, but we do not address that issue here.

      . Under subdivision 2(2) of the same statute, Stevenson was charged and convicted of gross misdemeanor indecent exposure because of his prior criminal history. See Minn.Stat. § 617.23, subd. 2(2).

      . Consider, for example, someone swimming in the nude in a remote lake deep within the Boundary Waters Canoe Area. In a Fourth Amendment context, the person has no reasonable expectation of privacy; but the conduct is extremely unlikely to be witnessed by anyone — and therefore it cannot support a Peery inference of intent to be indecent.

      . This reading of "public” comports with the rulings of other states’ courts interpreting similar indecent exposure laws. For example, courts have consistently held that while the interior of a car is not necessarily a public place in the context of indecent exposure, a car can be public "under circumstances indicating that the car’s interior is visible to a member of the passing public, and that the vehicle is situated in a place where it likely would be observed by such a person.” People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d 788, 793 (1991); see also Honeycutt v. State, 690 S.W.2d 64, 66 (Tex.App.1985) (overturning conviction for indecent exposure inside a car parked "behind a vacant building next to a fence in a dark parking lot ⅜ * ⅜ at 2:00 a.m.” because it was “highly unlikely that any member of the public ⅜ * * would approach [the] car”); Commonwealth v. Gonzales, 249 Pa.Super. 359, 378 A.2d 335, 335 (1977) (upholding public indecency conviction where defendant "was observed masturbating in the front seat of an automobile double parked during daylight hours by a city detective and a bank employee”); A.G. Barnett, Annotation, Criminal Offense Predicated upon Indecent Exposure, 94 A.L.R.2d 1353, § 12 (collecting cases regarding "public place” in context of indecent exposure); Joel E. Smith, Annotation, What Constitutes "Public Place’’ Within Meaning of Statutes Prohibiting Commission of Sexual Act in Public Place, 96 A.L.R.3d 692 (collecting cases regarding “public place” in context of other similar sex crimes).